Exhibit 10.29
CREDIT AGREEMENT dated as of
December 12, 1997, as amended and restated as
of November 17, 1998, among FREEPORT-McMoRan
SULPHUR LLC, a Delaware limited liability
company (the "Borrower"); McMoRan EXPLORATION
CO., a Delaware corporation, as guarantor (in
such capacity, the "Guarantor"); the
undersigned financial institutions
(collectively, the "Lenders"), THE CHASE
MANHATTAN BANK, a New York banking
corporation ("Chase"), as administrative
agent for the Lenders (in such capacity, the
"Administrative Agent"), and as documentary
agent for the Lenders (in such capacity, the
"Documentary Agent"; the Administrative Agent
and the Documentary Agent being,
collectively, the "Agents") and HIBERNIA
NATIONAL BANK, a national banking association
("Hibernia"), as co-agent for the Lenders
(the "Co-Agent").
The Boards of Directors of Freeport-McMoRan
Sulphur Inc., a Delaware corporation ("FSC"), and McMoran
Oil & Gas Co., a Delaware corporation ("MOXY"), have
approved a transaction that will result in FSC and MOXY
becoming wholly-owned subsidiaries of the Guarantor, which
is a newly formed publicly traded holding company. In
connection with such transaction, (i) FSC and MOXY
stockholders will receive shares of the common stock of the
Guarantor in exchange for their shares of common stock of
MOXY or FSC, as applicable, (ii) FSC will merge (the "FSC
Merger") into Freeport-McMoRan Sulphur LLC, a Delaware
limited liability company ("Sulphur LLC"), and (iii) MOXY
will merge (the "MOXY Merger") into McMoRan Oil & Gas LLC, a
Delaware limited liability company. The FSC Merger and the
MOXY Merger are referred to collectively herein as the
"Mergers". References in this Agreement to Sulphur LLC and
the Borrower shall mean Freeport-McMoRan Sulphur LLC.
The Borrower has requested that the Lenders
(i) amend and restate the terms and provisions of the
original Credit Agreement dated December 12, 1997 (the
"Original Credit Agreement"), among FSC, the Lenders, Chase
and Hibernia, in the form hereof, and (ii) extend credit to
it in order to enable it to borrow on a revolving credit
basis at any time and from time to time prior to the
Maturity Date (as herein defined). The aggregate principal
amount of all revolving credit loans at any time outstanding
hereunder shall not exceed $100,000,000.
The Borrower also has requested that the Guarantor
guarantee the Obligations (as herein defined) by entering
into this Agreement. The Guarantor is the direct parent of
the Borrower and acknowledges that it will derive
substantial benefit from the amendment and restatement of
the terms and provisions of the Original Credit Agreement
and the making of the Loans by the Lenders. As
consideration therefor and in order to induce the Lenders to
amend and restate the terms and provisions of the Original
Credit Agreement and make Loans hereunder, the Guarantor is
willing to execute this Agreement.
The Lenders are willing to amend and restate the
terms and provisions of the Original Credit Agreement in the
form hereof, to make Loans to the Borrower and to consent to
the consummation of the FSC Merger, in each case upon the
terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises
and of the mutual covenants herein contained, the parties
hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. As used in this
Agreement, the following terms have the meanings indicated
(any term defined in this Article I or elsewhere in this
Agreement in the singular and used in this Agreement in the
plural shall include the plural, and vice versa):
"Administrative Questionnaire" means an
Administrative Questionnaire in the form of Exhibit A.
"Affiliate" means, when used with respect to a
specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or
is Controlled by or is under common Control with the Person
specified.
"Alternate Base Rate" means for any day, a rate
per annum (rounded upwards, if not already a whole multiple
of 1/100 of 1%, to the next higher 1/100 of l%) equal to the
greatest of (a) the Prime Rate in effect on such day,
(b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect for such day
plus 1/2 of 1%. For purposes hereof, the term "Prime Rate"
means the rate of interest per annum publicly announced from
time to time by Chase as its prime rate in effect at its
principal office in The City of New York; each change in the
Prime Rate shall be effective on the date such change is
publicly announced as being effective. "Base CD Rate" means
the sum of (x) the product of (i) the Three-Month Secondary
CD Rate and (ii) Statutory Reserves and (y) the Assessment
Rate. "Three-Month Secondary CD Rate" means, for any day,
the secondary market rate for three-month certificates of
deposit reported as being in effect on such day (or, if such
day shall not be a Business Day, the next preceding Business
Day) by the Board through the public information telephone
line of the Federal Reserve Bank of New York (which rate
will, under the current practices of the Board, be published
in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day,
the average of the secondary market quotations for three-
month certificates of deposit of major money center banks in
New York City received at approximately 10:00 a.m., New York
City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by the
Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing
selected by it. "Federal Funds Effective Rate" means, for
any day, the weighted average of the rates on overnight
Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average
of the quotations for the day of such transactions received
by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it. If for any reason
the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error)
that it is unable to ascertain the Base CD Rate or the
Federal Funds Effective Rate or both for any reason,
including the inability or failure of the Administrative
Agent to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined
without regard to clause (b) or (c), or both, of the first
sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist.
Any change in the Alternate Base Rate due to a change in
the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate, the Three-
Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
"Applicable LIBO Rate" means on a per annum basis,
in respect of any LIBO Rate Loan, for each day during the
Interest Period for such Loan, the sum of (i) the LIBO Rate
as determined by the Administrative Agent plus (ii) the
Applicable Margin.
"Applicable Margin" means, with respect to any
LIBO Rate Loan or Reference Rate Loan, or with respect to
the Commitment Fees, as the case may be, the applicable
percentage set forth on Schedule I under the caption "LIBOR
Spread", "ABR Spread" or "Commitment Fee Percentage", as the
case may be, based upon the Leverage Ratio as of the most
recent determination date. For purposes of the foregoing,
(i) the Leverage Ratio shall be determined as of the end of
each fiscal quarter of the Guarantor's fiscal year based
upon the Guarantor's consolidated financial statements
delivered pursuant to Section 5.01(a)(i) and (ii) each
change in the Applicable Rate resulting from a change in the
Leverage Ratio shall be effective during the period
commencing on and including the third day after the date of
delivery to the Administrative Agent of such consolidated
financial statements indicating such change and ending on
the date immediately preceding the effective date of the
next such change; provided that the Leverage Ratio shall be
deemed to be the applicable rate per annum set forth on
Schedule I under the caption "Above 3.5x" (x) at any time
that an Event of Default has occurred and is continuing or
(y) if the Guarantor fails to deliver the consolidated
financial statements required to be delivered by it pursuant
to Section 5.01(a)(i), during the period from the expiration
of the time for delivery thereof until such consolidated
financial statements are delivered.
"Applicable Percentage" of any Lender means the
percentage set opposite such Lender's name on Schedule II,
as modified from time to time as provided hereby.
"Applicable Reference Rate" means on a per annum
basis in respect of any Reference Rate Loan, for any day,
the sum of the Alternate Base Rate plus the Applicable
Margin.
"Assessment Rate" means, with respect to each day
during an Interest Period, the annual assessment rate
(rounded upwards, if not already a whole multiple of 1/100
of l%, to the next highest whole multiple of 1/100 of 1%) in
effect on such day that is payable by a member of the Bank
Insurance Fund classified as "well-capitalized" and within
supervisory subgroup "B" (or a comparable successor risk
classification) within the meaning of 12 C.F.R. Part 327 (or
any successor provision) to the Federal Deposit Insurance
Corporation for insurance by such Corporation of time
deposits made in dollars at the offices of such member in
the United States; provided that if, as a result of any
change in any law, rule or regulation, it is no longer
possible to determine the Assessment Rate as aforesaid, then
the Assessment Rate shall be such annual rate as shall be
determined by the Administrative Agent to be representative
of the cost of such insurance to the Lenders.
"Board" means the Board of Governors of the
Federal Reserve System of the United States.
"Borrowing Date" means, with respect to any Loan,
the date on which such Loan is disbursed.
"Business Day" means any day other than a
Saturday, Sunday or a day on which banks in New York City
are authorized or required by law to close; provided,
however, that when used in connection with a LIBO Rate Loan,
the term "Business Day" shall also exclude any day on which
banks are not open for dealings in Dollar deposits in the
London interbank market.
"Capitalized Lease Obligation" means the
obligation of any Person to pay rent or other amounts under
a lease of (or other agreement conveying the right to use)
real and/or personal property which obligation is, or in
accordance with GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting
Standards Board) is required to be, classified and accounted
for as a capital lease on a balance sheet of such Person
under GAAP, and for purposes of this Agreement the amount of
such obligation shall be the capitalized amount thereof
determined in accordance with GAAP.
"CERCLA" means, collectively, the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. SS 9601 et seq.
A "Change in Control" shall be deemed to have
occurred if (a) any Person or group (within the meaning of
Rule 13d-5 of the SEC as in effect on the Restatement Date),
other than, in the case of the Borrower, the Guarantor,
shall own directly or indirectly, beneficially or of record,
shares representing 30% or more of the aggregate ordinary
voting power represented by the issued and outstanding
capital stock of the Borrower and the Guarantor; or (b) a
majority of the seats (other than vacant seats) on the Board
of Directors of the Guarantor shall at any time be occupied
by Persons who were not (i) members of the Board of
Directors of the Guarantor on the Restatement Date or
(ii) appointed as, or nominated for election as, directors
by a majority of the directors who are (x) referred to in
clause (i) and (y) other directors who are appointed or
nominated in accordance with this clause (ii).
"Closing Date" means December 12, 1997.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Commitment" means, with respect to each Lender,
the commitment of such Lender hereunder to make revolving
loans as set forth on Schedule II, or in the Commitment
Transfer Supplement pursuant to which such Lender assumed
its Commitment, as the same may be permanently terminated or
reduced from time to time pursuant to Section 2.07 and
pursuant to assignments by such Lender pursuant to Section
10.03. The Commitment of each Lender shall automatically
and permanently terminate on the Maturity Date.
"Commitment Fee" has the meaning assigned to such
term in Section 2.06(a).
"Commitment Termination Date" has the meaning
assigned to such term in Section 2.06(a).
"Commitment Transfer Supplement" means a
Commitment Transfer Supplement entered into by a Lender and
an assignee, and accepted by the Administrative Agent, in
the form of Exhibit B or such other form as shall be
approved by the Administrative Agent.
"Confidential Information Memorandum" means the
Confidential Information Memorandum of the Borrower dated
October 17, 1997.
"Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of
the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise,
and "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Credit Event" means the making of a Loan.
"Debt" of any Person means, without duplication,
(a) all obligations of such Person for borrowed money,
(b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all
obligations of such Person for the unearned balance of any
payment received under any contract outstanding for
180 days, (d) all obligations of such Person under
conditional sale or other title retention agreements
relating to property or assets purchased by such Person,
(e) all obligations of such Person issued or assumed as the
deferred purchase price of property or services (excluding
(x) the Pennzoil Obligations and (y) trade accounts payable
and accrued obligations incurred in the ordinary course of
business so long as the same are not 180 days overdue or, if
overdue, are being contested in good faith and by
appropriate proceedings), (f) all Debt of others secured by
(or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not
the obligations secured thereby have been assumed, (g) all
Guarantees by such Person of Debt of others, (h) all
Capitalized Lease Obligations of such Person, (i) all
recourse obligations of such Person with respect to sales of
accounts receivable which would be shown under GAAP on the
balance sheet of such Person as a liability, (j) all
obligations of such Person as an account party (including
reimbursement obligations to the issuer of a letter of
credit) in respect of bankers' acceptances and letters of
credit Guaranteeing Debt and (k) all noncontingent
obligations of such Person as an account party (including
reimbursement obligations to the issuer of a letter of
credit) in respect of letters of credit other than those
referred to in clause (j) above. The Debt of any Person
shall include the Debt of any partnership in which such
Person is a general partner but shall exclude obligations
under leases which are characterized as Operating Leases.
"Default" means any event or condition which upon
the giving of notice or lapse of time or both would become
an Event of Default.
"Dollars" or "$" means United States Dollars.
"Domestic Office" means, for any Lender, the
Domestic Office set forth for such Lender on the signature
pages hereof, unless such Lender shall designate a different
Domestic Office by notice in writing to the Administrative
Agent and the Borrower.
"EBITDA" means, for any fiscal quarter, the sum of
(a) the Guarantor's consolidated net income (loss) (before
deducting taxes and minority interests in net income (loss)
of consolidated subsidiaries, but disregarding all
extraordinary or unusual noncash items in calculating such
net income); (b) consolidated interest paid or accrued on
the Loans to the Borrower and on other consolidated Debt of
the Guarantor during such quarter and deducted in
determining the Guarantor's consolidated net income; and
(c) the Guarantor's consolidated depreciation, depletion and
amortization charges deducted in computing the Guarantor's
consolidated net income; provided that such calculations of
items (a) through (c) will exclude items relating to
Nonrestricted Subsidiaries.
"EBITDA Ratio" means at the end of any fiscal
quarter, the cumulative sum, for the four consecutive fiscal
quarters ending with such quarter, of (a) the Guarantor's
EBITDA to (b) interest expense and capitalized interest paid
or accrued on consolidated Debt of the Guarantor, including
the Loans, during such four consecutive fiscal quarters,
excluding any interest expense or capitalized interest paid
or accrued on the Debt of Nonrestricted Subsidiaries.
"Effective Date" means the date on which the
conditions specified in Section 4.01 are satisfied (or
waived in accordance with Section 10.07).
"environment" shall mean ambient air, surface
water and groundwater (including potable water, navigable
water and wetlands), the land surface or subsurface strata
or as otherwise defined in any Environmental Law.
"Environmental Claim" means any written notice of
violation, claim, demand, order, directive, cost recovery
action or other cause of action by, or on behalf of, any
Governmental Authority or any Person for damages, injunctive
or equitable relief, personal injury (including sickness,
disease or death), Remedial Action costs, tangible or
intangible property damage, natural resource damages,
nuisance, pollution, any adverse effect on the environment
caused by any Hazardous Material, or for fines, penalties or
restrictions, resulting from or based upon: (a) the threat
or existence, or the continuation of the existence, of a
Release (including sudden or non-sudden, accidental or
nonaccidental Releases); (b) exposure to any Hazardous
Material; (c) the presence, use, handling, transportation,
storage, treatment or disposal of any Hazardous Material; or
(d) the violation of any Environmental Law or Environmental
Permit.
"Environmental Law" means any and all applicable
treaties, laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural
resources, the management, Release or threatened Release of
any Hazardous Material or to health and safety matters,
including CERCLA, the Solid Waste Disposal Act, as amended
by the Resource Conservation and Recovery Act of 1976 and
Hazardous and Solid Amendments of 1984, 42 U.S.C. SS 6901 et
seq., the Federal Water Pollution Control Act, as amended by
the Clean Water Act of 1977, 33 U.S.C. 1251 et seq., the
Clean Air Act of 1970, as amended 42 U.S.C. 7401 et seq.,
the Toxic Substances Control Act of 1976, 15 U.S.C. SS 2601
et seq., the Occupational Safety and Health Act of 1970, as
amended, 29 U.S.C. SS 651 et seq., the Emergency Planning
and Community Right-to-Know Act of 1986, 42 U.S.C. SS 11001
et seq., the Safe Drinking Water Act of 1974, as amended,
42 U.S.C. SS 300(f) et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. SS 1801 et seq., and any
similar or implementing state or local law, and all
amendments or regulations promulgated thereunder.
"Environmental Permit" means any permit, approval,
authorization, certificate, license, variance, filing or
permission required by or from any Governmental Authority
pursuant to any Environmental Law.
"Equity Payment" means any dividend or
distribution on, or purchase, redemption or other payment in
respect of, the capital stock of the Borrower or the
Guarantor, as the case may be, whether in cash or in kind.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time.
"ERISA Affiliate" means any trade or business
(whether or not incorporated), that together with the
Borrower or the Guarantor, as the case may be, is treated as
a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer
under Section 414 of the Code.
"ERISA Event" means (i) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued
thereunder, with respect to a Plan; (ii) the adoption of any
amendment to a Plan that would require the provision of
security pursuant to Section 401(a)(29) of the Code;
(iii) the existence with respect to any Plan of an
"accumulated funding deficiency" (as defined in Section 412
of the Code), whether or not waived; (iv) the incurrence of
any liability under Title IV of ERISA with respect to any
Plan or Multiemployer Plan, other than any liability for
contributions not yet due or payment of premiums not yet
due; (v) the receipt by the Borrower, the Guarantor or any
ERISA Affiliate from the PBGC of any notice relating to the
intention of the PBGC to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (vi) the receipt
by the Borrower, the Guarantor or any ERISA Affiliate of any
notice concerning the imposition of Withdrawal Liability or
a determination that a Multiemployer Plan is, or is expected
to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; and (vii) any other similar event or
condition with respect to a Plan or Multiemployer Plan that
could reasonably result in liability of the Borrower or the
Guarantor.
"Event of Default" means any Event of Default
defined in Article VII.
"Financial Officer" of any corporation means the
principal financial officer, principal accounting officer,
treasurer, assistant treasurer or controller of such
corporation.
"FRP" means Freeport-McMoRan Resource Partners,
Limited Partnership, a Delaware limited partnership.
"FSC" has the meaning assigned to such term in the
preamble to this Agreement.
"FSC Merger" has the meaning assigned to such term
in the preamble to this Agreement.
"GAAP" has the meaning assigned to such term in
Section 1.02.
"Governmental Authority" means any Federal, state,
local or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"Governmental Rule" means any statute, law,
treaty, rule, code, ordinance, regulation, permit,
certificate or order of any Governmental Authority or any
judgment, decree, injunction, writ, order or like action of
any court, arbitrator or other judicial or quasi judicial
tribunal.
"Guarantee" means, with respect to any Person, any
obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing
any Debt or obligation of any other Person in any manner,
whether directly or indirectly, and including, without
limitation, any agreement or obligation (i) to pay dividends
or other distributions upon the stock of such other Person,
or any obligation of such other Person, direct or indirect,
(ii) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or obligation or to
purchase (or advance or supply funds for the purchase of)
any security for the payment of such Debt, obligation,
dividend or distribution, (iii) to purchase or lease
property, securities or services for the purpose of assuring
the owner of such Debt or obligation or the holder of such
stock of the payment of such Debt, obligation, dividend or
distribution including, without limitation, any take-or-pay
contract or agreement to buy a minimum amount or quantity of
production or to provide an operating subsidy which, in each
case, is utilized for a third party financing, or (iv) to
maintain working capital, equity capital or any other
financial statement condition of the primary obligor, so as
to enable the primary obligor to pay such Debt, obligation,
dividend or distribution; provided, however, that the term
Guarantee shall not include any endorsement for collection
or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or
radioactive materials, substances or wastes, hazardous or
toxic materials, substances or wastes, pollutants, solid,
liquid or gaseous wastes, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls ("PCBs") or PCB-containing
materials or equipment, radon gas, infectious or medical
wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.
"Hedge Agreement" means any interest rate,
currency or commodity swap, cap, floor or collar agreement
or similar hedging arrangement providing for the transfer or
mitigation of interest rate, commodity price or currency
value or exchange rate risks, either generally or under
specific contingencies.
"Interest Payment Date" means (i) as to any
Reference Rate Loan, the next succeeding March 31, June 30,
September 30 or December 31 (subject to Section 2.16), or if
earlier, the Maturity Date, and (ii) as to any LIBO Rate
Loan, the last day of the Interest Period applicable to such
Loan (and, in the case of any Interest Period of more than
three months' duration, the date that would be the last day
of such Interest Period if such Interest Period were of
three months' duration) and the date of any continuation or
conversion of any Loan as or into a Loan of the same or a
different type.
"Interest Period" means (i) as to any LIBO Rate
Loan, the period commencing on the date of such LIBO Rate
Loan or on the last day of the immediately preceding
Interest Period applicable to such Loan, as the case may be,
and ending on the numerically corresponding day (or, if
there is no numerically corresponding day, on the last day)
in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect, and (ii) as to any
Reference Rate Loan, the period commencing on the date of
such Reference Rate Loan or on the last day of the
immediately preceding Interest Period applicable to such
Loan, as the case may be, and ending on the earliest of
(x) the next succeeding March 31, June 30, September 30 or
December 31, (y) the Maturity Date and (z) the date such
Loan is prepaid or converted as permitted hereby; provided,
however, that (1) if any Interest Period would end on a day
that shall not be a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless, with
respect to LIBO Rate Loans only, such next succeeding
Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding
Business Day, (2) no Interest Period with respect to any
Loan shall end later than the Maturity Date and (3) interest
shall accrue from and including the first day of an Interest
Period to but excluding the last day of such Interest
Period.
"Lender" means each financial institution
signatory hereto and its successors and permitted assigns
under Section 10.03.
"Leverage Ratio" means, on any date, the ratio of
(a) Total Debt as of such date to (b) EBITDA for the period
of four consecutive fiscal quarters of the Guarantor most
recently ended as of such date, all determined on a
consolidated basis in accordance with GAAP.
"LIBO Rate" means, with respect to any LIBO Rate
Loan for any Interest Period, the rate appearing on
Page 3750 of the Telerate Service (or on any successor or
substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations
comparable to those currently provided in such page of such
Service, as determined by the Administrative Agent from time
to time for purposes of providing quotations of interest
rates applicable to Dollar deposits in the London interbank
market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity
comparable to such Interest Rate. In the event that such
rate is not available at such time for any reason, then the
"LIBO Rate" with respect to such LIBO Rate Loan for such
Interest Period shall be the rate at which Dollar deposits
of $5,000,000 and for a maturity comparable to such Interest
Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the
London interbank market at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such
Interest Period.
"LIBO Rate Loan" means any Loan for which interest
is determined, in accordance with the provisions hereof, at
the Applicable LIBO Rate.
"LIBOR Office" means, for any Lender, the LIBOR
Office set forth for such Lender on the signature pages
hereof or as otherwise notified in writing to the
Administrative Agent and the Borrower, unless such Lender
shall designate a different LIBOR Office by notice in
writing to the Administrative Agent and the Borrower.
"Lien" means with respect to any asset, (a) a
mortgage, deed of trust, lien, pledge, encumbrance, charge
or security interest in or on such asset, (b) the interest
of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement
relating to such asset, (c) in the case of securities, any
purchase option, call or similar right of a third party with
respect to such securities and (d) other encumbrances of any
kind, including, without limitation, production payment
obligations.
"Loan" means any loan made pursuant to
Section 2.01.
"Loan Documents" means this Agreement and all
other agreements, certificates and instruments now or
hereafter entered into in connection therewith or in
furtherance thereof, in each case as amended and modified
from time to time.
"Margin Stock" has the meaning assigned to such
term in Regulation U.
"Material Adverse Effect" means (a) a materially
adverse effect on the business, assets, operations,
prospects or condition, financial or otherwise, of the
Guarantor, the Borrower and the Restricted Subsidiaries,
taken as a whole, (b) material impairment of the ability of
the Guarantor, the Borrower or any of the Restricted
Subsidiaries to perform any of its obligations under any
Loan Document to which it is or will be a party or (c)
material impairment of the rights of or benefits available
to the Lenders under any Loan Document.
"Maturity Date" means the fifth anniversary of the
Effective Date, or, if earlier, the date of termination of
the Commitments pursuant to the terms hereof.
"Merger" has the meaning assigned to such term in
the preamble to this Agreement.
"MOXY" has the meaning assigned to such term in
the preamble to this Agreement.
"Multiemployer Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the
Borrower, the Guarantor or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within
any of the preceding five plan years made or accrued an
obligation to make contributions.
"Net Proceeds" means (i) the gross fair market
value of the consideration or other amounts payable to or
receivable by the Borrower or any of the Restricted
Subsidiaries in respect of any sales, transfers,
distributions or other dispositions (including by merger or
consolidation) of assets or properties (including any
capital or other equity interests owned), less (ii) the
amount, if any, of all taxes (but only to the extent such
Person reasonably estimates that such taxes will be paid on
the date of the next tax filing by such Person or such
Affiliate of such Person), and reasonable and customary
fees, commissions, costs and other expenses (other than
those payable to the Borrower or any of the Restricted
Subsidiaries) which are incurred in connection with such
sales, transfers, distributions or other dispositions and
are payable by the seller or the transferor of the assets or
property to which such sales, transfers, distributions or
other dispositions relate, but only to the extent not
already deducted in arriving at the amount referred to in
clause (i), and less (iii) amounts used within 120 days from
the date of closing or effectiveness of the original
transaction in question by the seller or transferor to
purchase other assets used in the business of it and its
Wholly-Owned Restricted Subsidiaries and not pledged or
encumbered to any other Person.
"Non-Excluded Taxes" has the meaning assigned such
term in Section 2.17(a).
"Nonrestricted Subsidiary" means (i) any of the
Subsidiaries of the Guarantor or the Borrower listed on
Schedule III hereto as a Nonrestricted Subsidiary, (ii) any
Subsidiary of any Nonrestricted Subsidiary, (iii) any
surviving Person (other than the Borrower, the Guarantor or
a Restricted Subsidiary) into which any of such Persons
referred to in clause (i) or (ii) is merged or consolidated,
subject to Section 5.02(c), and (iv) any Subsidiary of the
Guarantor or the Borrower organized after the date of this
Agreement for the purpose of acquiring the stock or other
ownership interests or assets of another Person or for
start-up ventures or exploration programs or activities and
designated as a Nonrestricted Subsidiary by the Guarantor or
the Borrower, as applicable, as of the time of its
organization. By written notice to the Administrative
Agent, the Guarantor or the Borrower, as applicable, may
(x) declare any Nonrestricted Subsidiary to be a Restricted
Subsidiary and such former Nonrestricted Subsidiary shall
thereafter be deemed to be a Restricted Subsidiary for all
purposes of this Agreement or (y) at any time other than
when a Default or Event of Default has occurred and is
continuing or would exist after giving effect to such
declaration, in any fiscal year, declare one or more
Restricted Subsidiaries, the direct or indirect interest of
the Guarantor and the Borrower in such Restricted
Subsidiaries having an equity value or loan investment of
less than $5,000,000 in the aggregate, to be a Nonrestricted
Subsidiary and any such former Restricted Subsidiary shall
thereafter be deemed to be a Nonrestricted Subsidiary for
all purposes of this Agreement.
"Obligations" has the meaning assigned to such
term in Section 9.01.
"Operating Lease" means any lease other than a
lease giving rise to a Capitalized Lease Obligation.
"Original Credit Agreement" has the meaning
assigned to such term in the preamble to this Agreement.
"Other Taxes" has the meaning assigned such term
in Section 2.17(b).
"Participants" has the meaning assigned such term
in Section 10.03(b).
"PBGC" means the Pension Benefit Guaranty
Corporation referred to and defined in ERISA.
"Pennzoil Obligations" means the deferred purchase
price obligations incurred by FRP in connection with the
purchase from Pennzoil Company of the Xxxxxxxxx mining
operations and associated physical assets.
"Permitted Investments" means customary portfolio
cash management investments made pursuant to prudent cash
management practices.
"Person" means any natural person, corporation,
limited liability company, partnership, joint venture,
trust, incorporated or unincorporated association, joint
stock company, government (or an agency or political
subdivision thereof) or other entity of any kind.
"Plan" means any employee pension benefit plan
(other than a Multiemployer Plan) which is subject to the
provisions of Title IV of ERISA or Section 412 of the Code
and in respect of which the Borrower, the Guarantor or any
ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer"
as defined in Section 3(5) of ERISA.
"Properties" has the meaning assigned such term in
Section 3.01(n)(1).
"Purchasing Lender" has the meaning assigned such
term in Section 10.03(c).
"Reference Rate Loan" means any Loan for which
interest is determined, in accordance with the provisions
hereof, at the Applicable Reference Rate.
"Register" has the meaning assigned such term in
Section 10.03(d).
"Regulation D" means Regulation D of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Regulation U" means Regulation U of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Regulation X" means Regulation X of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Release" means any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, disposing, depositing,
dispersing, emanating or migrating of any Hazardous Material
in, into, onto or through the environment.
"Remedial Action" means (a) "remedial action" as
such term is defined in CERCLA, 42 U.S.C. S 9601(24), and
(b) all other actions required by any Governmental Authority
or voluntarily undertaken to: (i) cleanup, remove, treat,
xxxxx or in any other way address any Hazardous Material in
the environment; (ii) prevent the Release or threat of
Release, or minimize the further Release of any Hazardous
Material so it does not migrate or endanger or threaten to
endanger public health, welfare or the environment; or (iii)
perform studies and investigations in connection with, or as
a precondition to, (i) or (ii) above.
"Required Lenders" means, subject to
Section 10.07(b), at any time Lenders having Commitments
representing more than 50% of the aggregate Commitments
hereunder or, if the Commitments have been terminated,
Lenders holding Loans representing more than 50% of the
aggregate principal amount of the Loans.
"Responsible Officer" of any corporation means any
executive officer or Financial Officer of such corporation
and any other officer or similar official thereof
responsible for the administration of the obligations of
such corporation in respect of this Agreement.
"Restatement Date" means the date on which the
conditions specified in Section 4.02 are satisfied (or
waived in accordance with Section 10.07).
"Restricted Subsidiary" means any Subsidiary of
the Guarantor (other than the Borrower) or the Borrower that
is not a Nonrestricted Subsidiary.
"SEC" means the Securities and Exchange
Commission.
"Spin-Off" means the distribution by FRP to its
unitholders of the shares of capital stock of the Borrower,
thereby leaving the Borrower as a publicly held company.
"Statutory Reserves" means a fraction (expressed
as a decimal), the numerator of which is the number one and
the denominator of which is the number one minus the
aggregate of the maximum reserve percentages (including,
without limitation, any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by
the Board and any other banking authority, domestic or
foreign, to which the Administrative Agent or any Lender
(including any branch, Affiliate, or other funding office
making or holding a Loan) is subject (a) with respect to the
Base CD Rate (as such term is used in the definition of
"Alternate Base Rate"), for new negotiable nonpersonal time
deposits in Dollars of over $100,000 with maturities
approximately equal to the applicable Interest Period, and
(b) with respect to the LIBO Rate, for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall
include, without limitation, those imposed under Regulation
D. Statutory Reserves shall be adjusted automatically on
and as of the effective date of any change in any reserve
percentage.
"Subsidiary" means as to any Person, any
(i) corporation at least a majority of whose securities
having ordinary voting power for the election of directors
(other than securities having such power only by reason of
the happening of a contingency) or (ii) limited liability
company at least a majority of whose aggregate outstanding
equity interests are at the time owned by such Person and/or
one or more other Subsidiaries of such Person and any
partnership (other than joint ventures for which the
intention under the applicable agreements, including
operating agreements, if any, is that such joint ventures be
partnerships solely for purposes of the Code) in which such
Person or a Subsidiary of such Person is a general partner.
"Sulphur LLC" has the meaning assigned to such
term in the preamble to this Agreement.
"Sulphur Supply Agreement" has the meaning
assigned to such term in clause (r) of Article IV.
"Third Party" has the meaning assigned to such
term in Section 5.02(j).
"Total Commitment" means the sum of all the then
effective Commitments.
"Total Debt" means, as of any date of
determination, without duplication, the aggregate principal
amount of Debt of the Borrower, the Guarantor and the
Restricted Subsidiaries outstanding as of such date,
determined on a consolidated basis in accordance with GAAP,
excluding the effects of any Nonrestricted Subsidiaries.
"Transfer Effective Date" has the meaning assigned
to such term in each Commitment Transfer Supplement.
"Transferee" means any Participant or Purchasing
Lender, as such terms are defined in Sections 10.03(b) and
(c), respectively.
"Wholly-Owned Restricted Subsidiary" means any
Restricted Subsidiary, all of the stock or equity interest
of which is at the time owned, directly or indirectly,
beneficially or of record, by the Guarantor or the Borrower
or one or more other Wholly-Owned Restricted Subsidiaries of
the Guarantor or the Borrower.
"Withdrawal Liability" means liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Accounting Terms. Except as
otherwise herein specifically provided, each accounting term
used herein shall have the meaning given it under United
States generally accepted accounting principles in effect
from time to time (with such changes thereto as are approved
or concurred in from time to time by the Guarantor's
independent public accountants, as applicable) applied on a
basis consistent with those used in preparing the financial
statements referred to in Section 5.01(a) ("GAAP");
provided, however, that each reference in Section 5.02, or
in the definition of any term used in Section 5.02, to GAAP
shall mean generally accepted accounting principles as in
effect on the Restatement Date and as applied by the
Borrower and the Guarantor in preparing the financial
statements referred to in Section 3.01(e). In the event any
change in GAAP materially affects any provision of this
Agreement, the Lenders, the Borrower and the Guarantor agree
that they shall negotiate in good faith in order to amend
the affected provisions in such a way as will restore the
parties to their respective positions prior to such change,
and until such amendment becomes effective the Borrower's
and the Guarantor's compliance with such provisions shall be
determined on the basis of GAAP as in effect immediately
before such change in GAAP became effective.
SECTION 1.03. Section, Article, Exhibit and
Schedule References, etc. Unless otherwise stated, Section,
Article, Exhibit and Schedule references made herein are to
Sections, Articles, Exhibits or Schedules, as the case may
be, of this Agreement. Whenever the context may require,
any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes"
and "including" shall be deemed to be followed by the phrase
"without limitation". Except as otherwise expressly
provided herein, any reference in this Agreement to any Loan
Document shall mean such document as amended, restated,
supplemented or otherwise modified from time to time.
ARTICLE II
The Loans
SECTION 2.01. Revolving Credit Facility. Upon
the terms and subject to the conditions and relying upon the
representations and warranties herein set forth, each
Lender, severally and not jointly, agrees to make Loans to
the Borrower, at any time and from time to time on or after
the Effective Date, and until the earlier of the Maturity
Date and the termination of the Commitment of such Lender in
accordance with the terms hereof, in an aggregate principal
amount at any one time outstanding not to exceed such
Lender's Applicable Percentage of the then effective unused
Total Commitment on the Borrowing Date for such Loan.
Within the foregoing limits, the Borrower may borrow, repay
and reborrow, prior to the Maturity Date, Loans subject to
the terms, provisions and limitations set forth herein.
SECTION 2.02. Loans. (a) The Loans made by the
Lenders to the Borrower on any one date shall be in an
aggregate principal amount which is (i) an integral multiple
of $1,000,000 and not less than $5,000,000 or (ii) equal to
the remaining available balance of the applicable
Commitments.
(b) Each Loan shall be either a Reference Rate
Loan or a LIBO Rate Loan as the Borrower may request
pursuant to Section 2.03. Subject to the provisions of
Sections 2.03 and 2.10, Loans of more than one type may be
outstanding at the same time.
(c) Each Lender shall make its portion, as
determined under Section 2.14, of each Loan hereunder on the
proposed date thereof by paying the amount required to the
Administrative Agent in New York, New York in immediately
available funds not later than 2:00 p.m., New York City
time, and the Administrative Agent shall by 3:00 p.m.,
New York City time, credit the amounts so received to the
general deposit account of the Borrower with the
Administrative Agent or, if Loans shall not be made on such
date because any condition precedent to a borrowing herein
specified is not met, return the amounts so received to the
respective Lenders. Unless the Administrative Agent shall
have received notice from a Lender prior to the date of any
Loan that such Lender will not make available to the
Administrative Agent such Lender's portion of such Loan, the
Administrative Agent may assume that such Lender has made
such portion available to the Administrative Agent on the
date of such Loan in accordance with this paragraph (c) and
the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall
have so made funds available, then to the extent that such
Lender shall not have made such portion available to the
Administrative Agent, such Lender and the Borrower severally
agree to repay without duplication to the Administrative
Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such
amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent at an interest
rate equal to (i) in the case of the Borrower, the interest
rate applicable at the time to the Loans comprising such
borrowing and (ii) in the case of such Lender, a rate
determined by the Administrative Agent to represent its cost
of overnight or short-term funds (which determination shall
be conclusive absent manifest error). If such Lender shall
repay to the Administrative Agent such corresponding amount,
such amount shall constitute such Lender's Loan for purposes
of this Agreement.
SECTION 2.03. Notice of Loans. (a) The Borrower
shall request a Loan by giving the Administrative Agent
telephonic (promptly confirmed in writing), written,
telecopy or telex notice in the form of Exhibit C with
respect to each Loan (i) in the case of a LIBO Rate Loan,
not later than 10:30 a.m., New York City time, three
Business Days before a proposed borrowing, and (ii) in the
case of a Reference Rate Loan, not later than 10:30 a.m.,
New York City time, on the date of a proposed borrowing.
Such notice shall be irrevocable (except that in the case of
a LIBO Rate Loan, the Borrower may, subject to Section 2.13,
revoke such notice by giving written or telex notice thereof
to the Administrative Agent not later than 10:30 a.m., New
York City time, two Business Days before such proposed
borrowing) and shall in each case refer to this Agreement
and specify (1) whether the Loan then being requested is to
be a Reference Rate Loan or LIBO Rate Loan, (2) the date of
such Loan (which shall be a Business Day) and amount
thereof, and (3) if such Loan is to be a LIBO Rate Loan, the
Interest Period or Interest Periods (which shall not end
after the Maturity Date) with respect thereto. If no
election as to the type of Loan is specified in any such
notice by the Borrower, such Loan shall be a Reference Rate
Loan. If no Interest Period with respect to any LIBO Rate
Loan is specified in any such notice by the Borrower, then
the Borrower shall be deemed to have selected an Interest
Period of one month's duration.
(b) The Borrower may continue or convert all or
any part of any Loan as or into a Loan of the same or a
different type in accordance with Section 2.10 and subject
to the limitations set forth herein. If the Borrower shall
not have delivered a borrowing notice in accordance with
this Section 2.03 prior to the end of the Interest Period
then in effect for any Loan requesting that such Loan be
converted or continued as permitted hereby, then the
Borrower shall (unless the Borrower has notified the
Administrative Agent, not less than three Business Days
prior to the end of such Interest Period, that such Loan is
to be repaid at the end of such Interest Period) be deemed
to have delivered a borrowing notice pursuant to this
Section 2.03 requesting that such Loan be converted into or
continued as a Reference Rate Loan of equivalent amount.
(c) Notwithstanding any provision to the contrary
in this Agreement, the Borrower shall not in any borrowing
notice under this Section 2.03 request any LIBO Rate Loan
which, if made, would result in more than 10 separate LIBO
Rate Loans of any Lender. For purposes of the foregoing,
Loans having different Interest Periods, regardless of
whether they commence on the same date, shall be considered
separate Loans.
SECTION 2.04. Repayment of Loans; Evidence of
Debt. (a) The Borrower hereby unconditionally agrees to
pay to the Administrative Agent for the account of each
Lender the then unpaid principal amount of all Loans of such
Lender on the Maturity Date.
(b) Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing the
indebtedness to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from
time to time under this Agreement.
(c) The Administrative Agent shall maintain
accounts for (i) the type of each Loan made and the Interest
Period applicable thereto, (ii) the amount of any principal
or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained
pursuant to paragraphs (b) and (c) of this Section 2.04
shall be prima facie evidence of the existence and amounts
of the obligations therein recorded; provided, however, that
the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any
manner affect the obligations of the Borrower to repay the
Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that any Loans made by
it be evidenced by a promissory note. In such event, the
Borrower shall prepare, execute and deliver to such Lender a
promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after
assignment pursuant to Section 10.03) be represented by one
or more promissory notes in such form payable to the order
of the payee named therein (of if such promissory note is a
registered note, to such payee and its registered assigns).
SECTION 2.05. Interest on Loans. (a) Subject to
the provisions of Section 2.08, each Reference Rate Loan
shall bear interest at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of
365 or 366 days, as the case may be, when determined by
reference to the Prime Rate, and over a year of 360 days at
all other times), equal to the Applicable Reference Rate.
(b) Subject to the provisions of Section 2.08,
each LIBO Rate Loan shall bear interest at a rate per annum
(computed on the basis of the actual number of days elapsed
over a year of 360 days) equal to the Applicable LIBO Rate
for the Interest Period in effect for such Loan.
(c) Interest on each Loan shall be payable on
each applicable Interest Payment Date. The Applicable
Reference Rate and the Applicable LIBO Rate shall be
determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
The Administrative Agent shall promptly advise the Borrower
and each Lender of such determination.
SECTION 2.06. Fees. (a) The Borrower shall pay
each Lender, through the Administrative Agent, on the last
Business Day of each March, June, September and December,
and on the date on which the Commitment of such Lender shall
be terminated as provided herein (the "Commitment
Termination Date"), in immediately available funds, a
commitment fee (a "Commitment Fee") from and including the
earlier of the Closing Date and the Effective Date through
and including the Commitment Termination Date on the amount
of such Lender's Applicable Percentage of the Total
Commitment during the quarter ending on such date (or
shorter period commencing with the earlier of the Closing
Date and the Effective Date or ending with the Commitment
Termination Date) equal to the applicable Commitment Fee
Percentage set forth in Schedule I.
(b) All Commitment Fees under this Section 2.06
shall be computed on the basis of the actual number of days
elapsed in a year of 365 or 366 days, as the case may be.
The Commitment Fees due to each Lender shall cease to accrue
on the earlier of the Maturity Date and the termination of
the Commitment of such Lender pursuant to Section 2.07.
(c) The Borrower agrees to pay to the
Administrative Agent, for its own account, on the Effective
Date and on each anniversary thereof, an administration fee
(the "Administrative Fee") as agreed between the Borrower
and the Administrative Agent.
(d) All such fees shall be paid on the dates due,
in immediately available funds, to the Administrative Agent
for distribution, if and as appropriate, among the Lenders.
Once paid, all such fees shall be fully earned and non-
refundable under any and all circumstances.
SECTION 2.07. Maturity and Reduction of
Commitments. (a) Upon at least five days' prior written,
telecopied or telex notice to the Administrative Agent, the
Borrower may without penalty at any time in whole
permanently terminate, or from time to time permanently
reduce, the Total Commitment, ratably among the Lenders in
accordance with the amounts of their respective Commitments;
provided, however, that each partial reduction of the
Commitment Amount shall be in a minimum principal amount of
$5,000,000 and an integral multiple of $1,000,000; provided
further, that the Total Commitment may not be reduced to an
amount which is less than the aggregate principal amount of
all Loans outstanding after such reduction.
(b) The Total Commitment shall be automatically
and permanently reduced by an amount equal to the Net
Proceeds of any nonordinary course asset disposition by the
Borrower and the Restricted Subsidiaries (other than in each
case, (i) dispositions of obsolete and worn-out property or
real estate not used or useful in its business and (ii)
sales of accounts receivable), in excess of a cumulative
aggregate amount of $25,000,000 for all such transactions
during the term of this Agreement; provided that such
aggregate amount shall not include any permitted Capitalized
Lease Obligations. The Commitment reductions required by
this Section 2.07(b) shall be effective as of the date of
closing or effectiveness of any transaction subject hereto;
provided that with respect to any noncash Net Proceeds, such
Commitment reductions shall be effective as of the date of
receipt of cash proceeds thereof; and provided further that
to the extent prepayment of any LIBO Rate Loan is required
pursuant to this Section 2.07(b), such prepayment may be
made at the end of the current Interest Period for such LIBO
Rate Loan if the required prepayment would otherwise give
rise to breakage costs under Section 2.13(a)(i).
(c) On the Maturity Date, the Commitments shall
automatically terminate and any outstanding Loans shall be
due and payable in full.
SECTION 2.08. Interest on Overdue Amounts;
Alternative Rate of Interest. (a) If the Borrower shall
default in the payment of the principal of or interest on
any Loan or any other amount becoming due hereunder or under
any other Loan Document, by acceleration or otherwise, the
Borrower shall on demand from time to time pay interest, to
the extent permitted by law, on such defaulted amount up to
the date of actual payment (after as well as before
judgment):
(i) in the case of the payment of principal of or
interest on a LIBO Rate Loan, at a rate 2% per annum
above the rate which would otherwise be payable under
Section 2.05(b) until the last date of the Interest
Period then in effect with respect to such Loan and
thereafter as provided in clause (ii) below; and
(ii) in the case of the payment of principal of or
interest on a Reference Rate Loan or any other amount
payable hereunder (other than principal of or interest
on any LIBO Rate Loan to the extent referred to in
clause (i) above), at a rate 2% per annum above the
Applicable Reference Rate.
(b) In the event, and on each occasion, that on
the day two Business Days prior to the commencement of any
Interest Period for a LIBO Rate Loan the Administrative
Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower absent manifest
error) that (i) Dollar deposits in the requested principal
amount of such LIBO Rate Loan are not generally available in
the London interbank market, (ii) the rates at which Dollar
deposits are being offered will not adequately and fairly
reflect the cost to any Lender of making or maintaining such
LIBO Rate Loan during such Interest Period or
(iii) reasonable means do not exist for ascertaining the
Applicable LIBO Rate, the Administrative Agent shall as soon
as practicable thereafter give written, telecopied or telex
notice of such determination to the Borrower and the other
Lenders, and any request by the Borrower for the making of a
LIBO Rate Loan pursuant to Section 2.03 or 2.10 shall, until
the Administrative Agent shall have advised the Borrower and
the Lenders that the circumstances giving rise to such
notice no longer exist, be deemed to be a request for a
Reference Rate Loan; provided, however, that if the
Administrative Agent makes the determination specified in
(ii) above, at the option of the Borrower such request shall
be deemed to be a request for a Reference Rate Loan only
from such Lender referred to in (ii) above; provided
further, however, that such option shall not be available to
the Borrower if the Administrative Agent makes the
determination specified in (ii) above with respect to three
or more Lenders. Each determination of the Administrative
Agent hereunder shall be conclusive absent manifest error.
SECTION 2.09. Prepayment of Loans. (a) The
Borrower shall have the right at any time and from time to
time to prepay any of its Loans, in whole or in part,
subject to the requirements of Section 2.13 but otherwise
without premium or penalty, upon prior written or telex
notice to the Administrative Agent by 10:30 a.m., New York
City time, on the date of such prepayment; provided,
however, that each such partial prepayment shall be in a
minimum amount of $5,000,000 and an integral multiple of
$1,000,000.
(b) In the event of any termination of the
Commitments, the Borrower shall repay or prepay all its
outstanding Loans on the date of such termination. On the
date of any partial reduction of the Commitments pursuant to
Section 2.07, the Borrower shall pay or prepay so much of
its Loans as shall be necessary in order that the aggregate
principal amount of the Loans (after giving effect to any
other prepayment of Loans on such date) outstanding will not
exceed the Total Commitment immediately following such
reduction.
(c) All prepayments under this Section 2.09 shall
be subject to Section 2.13. Each notice of prepayment
delivered pursuant to paragraph (a) above shall specify the
prepayment date and the principal amount of each Loan (or
portion thereof) to be prepaid, shall be irrevocable and
shall commit the Borrower to prepay such Loan by the amount
stated therein on the date stated therein. All prepayments
shall be applied first to Reference Rate Loans and then to
LIBO Rate Loans and shall be accompanied by accrued interest
on the principal amount being prepaid to the date of
prepayment. Any amounts prepaid may be reborrowed to the
extent permitted by the terms of this Agreement.
SECTION 2.10. Continuation and Conversion of
Loans. The Borrower shall have the right, subject to the
provisions of Section 2.08, (i) on three Business Days'
prior irrevocable notice by the Borrower to the
Administrative Agent, to continue or convert any type of
Loans as or into LIBO Rate Loans, or (ii) with irrevocable
notice by the Borrower to the Administrative Agent by
10:30 a.m. on the date of such proposed continuation or
conversion, to continue or convert any type of Loans as or
into Reference Rate Loans, in each case subject to the
following further conditions:
(a) each continuation or conversion shall be made
pro rata as to each type of Loan of the Borrower to be
continued or converted among the Lenders in accordance with
the respective amounts of their commitments and the notice
given to the Administrative Agent by the Borrower shall
specify the aggregate principal amount of Loans to be
continued or converted;
(b) in the case of a continuation or conversion of
less than all Loans of the Borrower, the Loans continued or
converted shall be in a minimum aggregate principal amount
of $5,000,000 and an integral multiple of $1,000,000;
(c) accrued interest on each Loan (or portion
thereof) being continued or converted shall be paid by the
Borrower at the time of continuation or conversion;
(d) the Interest Period with respect to any Loan
made in respect of a continuation or conversion thereof
shall commence on the date of the continuation or
conversion;
(e) any portion of a Loan maturing or required to
be prepaid in less than one month may not be continued as or
converted into a LIBO Rate Loan;
(f) a LIBO Rate Loan may be continued or converted
on the last day of the applicable Interest Period and,
subject to Section 2.13, on any other day;
(g) no Loan (or portion thereof) may be continued
as or converted into a LIBO Rate Loan if, after such
continuation or conversion, an aggregate of more than 10
separate LIBO Rate Loans of any Lender would result,
determined as set forth in Section 2.03(c);
(h) no Loan shall be continued or converted if
such Loan by any Lender would be greater than the amount by
which its Commitment exceeds the amount of its other Loans
at the time outstanding or if such Loan would not comply
with the other provisions of this Agreement; and
(i) any portion of a LIBO Rate Loan which cannot
be converted into or continued as a LIBO Rate Loan by reason
of clause (e) or (g) above shall be automatically converted
at the end of the Interest Period in effect for such Loan
into a Reference Rate Loan.
The Administrative Agent shall communicate the information
contained in each irrevocable notice delivered by the
Borrower pursuant to this Section 2.10 to the other Lenders
promptly after its receipt of the same.
The Interest Period applicable to any LIBO Rate
Loan resulting from a continuation or conversion shall be
specified by the Borrower in the irrevocable notice of
continuation or conversion delivered pursuant to this
Section 2.10; provided, however, that if no such Interest
Period for a LIBO Rate Loan shall be specified, the Borrower
shall be deemed to have selected an Interest Period of one
month's duration.
For purposes of this Section 2.10, notice received
by the Administrative Agent from the Borrower after
10:30 a.m., New York time, on a Business Day shall be deemed
to be received on the immediately succeeding Business Day.
SECTION 2.11. Reserve Requirements; Change in
Circumstances. (a) The Borrower shall pay to each Lender
on the last day of each Interest Period for any LIBO Rate
Loan so long as such Lender may be required to maintain
reserves against eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D of the Board)
(or so long as such Lender may be required to maintain
reserves against any other category of liabilities which
includes deposits by reference to which the interest rate on
any LIBO Rate Loan is determined as provided in this
Agreement or against any category of extensions of credit or
other assets of such Lender which includes any LIBO Rate
Loan) an additional amount (determined by such Lender and
notified to the Borrower), equal to the product of the
following for each affected LIBO Rate Loan for each day
during such Interest Period:
(i) the principal amount of such affected LIBO
Rate Loan outstanding on such day;
(ii) the remainder of (x) the product of Statutory
Reserves on such date times the Applicable LIBO Rate on
such day minus (y) the Applicable LIBO Rate on such
day; and
(iii) 1/360.
Each Lender shall separately xxxx the Borrower directly for
all amounts claimed pursuant to this Section 2.11(a).
(b) Notwithstanding any other provision herein,
if after the Effective Date any change in condition or
applicable law or regulation or in the interpretation or
administration thereof (whether or not having the force of
law and including, without limitation, Regulation D of the
Board) by any Governmental Authority charged with the
administration or interpretation thereof shall occur which
shall:
(i) subject any Lender (which shall for the
purpose of this Section include any assignee or lending
office of any Lender) to any tax of any kind whatsoever
with respect to its LIBO Rate Loans or other fees or
amounts payable hereunder or change the basis of
taxation of any of the foregoing (other than taxes
(including Non-Excluded Taxes) described in Section
2.17 and other than any franchise tax or tax or other
similar governmental charges, fees or assessments based
on the overall net income of such Lender by the U.S.
Federal government or by any jurisdiction in which such
Lender maintains an office, unless the presence of such
office is solely attributable to the enforcement of any
rights hereunder with respect to an Event of Default);
(ii) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets
of, deposits with or for the account of or credit
extended by any Lender;
(iii) impose on any such Lender or the London
interbank market any other condition affecting this
Agreement or LIBO Rate Loans made by such Lender; or
(iv) impose upon any Lender any other condition
with respect to any amount paid or to be paid by any
Lender with respect to its LIBO Rate Loans or this
Agreement;
and the result of any of the foregoing shall be to increase
the cost to any Lender of making or maintaining its LIBO
Rate Loans or Commitment hereunder, or to reduce the amount
of any sum (whether of principal, interest or otherwise)
received or receivable by such Lender or to require such
Lender to make any payment, in respect of any such Loan, in
each case by or in an amount which such Lender in its sole
judgment shall deem material, then the Borrower shall pay to
such Lender on demand such an amount or amounts as will
compensate the Lender for such additional cost, reduction or
payment.
(c) If any Lender shall have determined that the
applicability of any law, rule, regulation, agreement or
guideline adopted after the Effective Date regarding capital
adequacy, or any change after the Effective Date in any such
law, rule, regulation, agreement or guideline (whether such
law, rule, regulation, agreement or guideline has been
adopted) or in the interpretation or administration of any
of the foregoing by any Governmental Authority charged with
the interpretation or administration thereof, or compliance
by any Lender (or any lending office of such Lender) or any
Lender's holding company with any request or directive
regarding capital adequacy (whether or not having the force
of law) of any such Governmental Authority made or issued
after the Effective Date, has or would have the effect of
reducing the rate of return on such Lender's capital or on
the capital of such Lender's holding company, if any, as a
consequence of this Agreement or the Loans made pursuant
hereto to a level below that which such Lender or such
Lender's holding company could have achieved but for such
applicability, adoption, change or compliance (taking into
consideration such Lender's policies and the policies of
such Lender's holding company with respect to capital
adequacy) by an amount deemed by such Lender to be material,
then from time to time the Borrower shall pay to such Lender
such additional amount or amounts as will compensate such
Lender or such Lender's holding company for any such
reduction suffered.
(d) If and on each occasion that a Lender makes a
demand for compensation pursuant to paragraph (a), (b) or
(c) above, or under Section 2.17 (it being understood that a
Lender may be reimbursed for any specific amount under only
one such paragraph or Section) the Borrower may, upon at
least three Business Days' prior irrevocable written or
telex notice to each of such Lender and the Administrative
Agent, in whole permanently replace the Commitment of such
Lender; provided that such notice must be given not later
than the 90th day following the date of a demand for
compensation made by such Lender; and provided that the
Borrower shall replace such Commitment with the Commitment
of a commercial bank satisfactory to the Administrative
Agent. Such notice from the Borrower shall specify an
effective date for the termination of such Lender's
Commitment which date shall not be later than the 180th day
after the date such notice is given. On the effective date
of any termination of such Lender's Commitment pursuant to
this clause (d), the Borrower shall pay to the
Administrative Agent for the account of such Lender (A) any
Commitment Fees on the amount of such Lender's Commitment so
terminated accrued to the date of such termination, (B) the
principal amount of any outstanding Loans held by such
Lender plus accrued interest on such principal amount to the
date of such termination and (C) the amount or amounts
requested by such Lender pursuant to clause (a), (b) or (c)
above or Section 2.17, as applicable. The Borrower will
remain liable to such terminated Lender for any loss or
expense that such Lender may sustain or incur as a
consequence of such Lender's making any LIBO Rate Loan or
any part thereof or the accrual of any interest on any such
Loan in accordance with the provisions of this Section
2.11(d) as set forth in Section 2.13. Upon the effective
date of termination of any Lender's Commitment pursuant to
this Section 2.11(d) such Lender shall cease to be a
"Lender" hereunder; provided that no such termination of any
such Lender's Commitment shall affect (i) any liability or
obligation of the Borrower or any other Lender to such
terminated Lender which accrued on or prior to the date of
such termination or (ii) such terminated Lender's rights
hereunder in respect of any such liability or obligation.
(e) A certificate of a Lender (or Transferee)
setting forth such amount or amounts as shall be necessary
to compensate such Lender (or Transferee) as specified in
paragraph (a), (b) or (c) (and in the case of paragraph (c),
such Lender's holding company) above or Section 2.17, as the
case may be, shall be delivered as soon as practicable to
the Borrower, and in any event within 90 days of the change
giving rise to such amount or amounts, and shall be
conclusive absent manifest error. The Borrower shall pay
each Lender the amount shown as due on any such certificate
within 15 days after its receipt of the same. In preparing
such a certificate, each Lender may employ such assumptions
and allocations of costs and expenses as it shall in good
xxxxx xxxx reasonable. The failure of any Lender (or
Transferee) to give the required 90-day notice shall excuse
the Borrower from its obligations to pay additional amounts
pursuant to such Sections incurred for the period that is
90 days or more prior to the date such notice was required
to be given.
(f) Failure on the part of any Lender to demand
compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital
within the 90 days required pursuant to Section 2.11(e)
shall not constitute a waiver of such Lender's rights to
demand compensation for any increased costs or reduction in
amounts received or receivable or reduction in return on
capital for any period after the date that is 90 days prior
to the date of the delivery of demand for compensation. The
protection of this Section 2.11 shall be available to each
Lender regardless of any possible contention of invalidity
or inapplicability of the law, regulation or condition which
shall have occurred or been imposed. The Borrower shall not
be required to make any additional payment to any Lender
pursuant to Section 2.11(a) or (b) in respect of any such
cost, reduction or payment that could be avoided by such
Lender in the exercise of reasonable diligence, including a
change in the lending office of such Lender if possible
without material cost to such Lender. Each Lender agrees
that it will promptly notify the Borrower and the
Administrative Agent of any event of which the responsible
account officer shall have knowledge which would entitle
such Lender to any additional payment pursuant to this
Section 2.11. The Borrower agrees to furnish promptly to
the Administrative Agent official receipts evidencing any
payment of any tax.
SECTION 2.12. Change in Legality.
(a) Notwithstanding anything to the contrary herein
contained, if after the Effective Date any change in any law
or regulation or in the interpretation thereof by any
Governmental Authority charged with the administration or
interpretation thereof shall make it unlawful for any Lender
to make or maintain any LIBO Rate Loan or to give effect to
its obligations as contemplated hereby with respect to any
LIBO Rate Loan, then, by written notice to the Borrower and
to the Administrative Agent, such Lender may:
(i) declare that LIBO Rate Loans will not
thereafter (for the duration of such unlawfulness or
impracticality) be made by such Lender hereunder,
whereupon the Borrower shall be prohibited from
requesting LIBO Rate Loans from such Lender hereunder
unless such declaration is subsequently withdrawn; and
(ii) require that all outstanding LIBO Rate Loans
made by it be converted to Reference Rate Loans, in
which event (A) all such LIBO Rate Loans shall be
automatically converted to Reference Rate Loans as of
the end of the applicable Interest Period, unless an
earlier conversion date is legally required, (B) all
payments and prepayments of principal which would
otherwise have been applied to repay the converted LIBO
Rate Loans shall instead be applied to repay the
Reference Rate Loans resulting from the conversion of
such LIBO Rate Loans and (C) the Reference Rate Loans
resulting from the conversion of such LIBO Rate Loans
shall be prepayable only at the times the converted
LIBO Rate Loans would have been prepayable,
notwithstanding the provisions of Section 2.09.
(b) Before giving any notice to the Borrower and
the Administrative Agent pursuant to this Section 2.12, such
Lender shall designate a different LIBOR Office if such
designation will avoid the need for giving such notice and
will not in the judgment of such Lender, be otherwise
disadvantageous to such Lender. For purposes of Section
2.12(a), a notice to the Borrower by any Lender shall be
effective on the date of receipt by the Borrower.
SECTION 2.13. Indemnity. The Borrower shall
indemnify each Lender against any funding, redeployment or
similar loss or expense which such Lender may sustain or
incur as a consequence of (a) any event, other than a
default by such Lender in the performance of its obligations
hereunder, which results in (i) such Lender receiving or
being deemed to receive any amount on account of the
principal of any LIBO Rate Loan prior to the end of the
Interest Period in effect therefor (any of the events
referred to in this clause (i) being called a "Breakage
Event") or (ii) any Loan to be made by such Lender not being
made after notice of such Loan shall have been given by the
Borrower hereunder or (b) any default in the making of any
payment or prepayment of any amount required to be made
hereunder. In the case of any Breakage Event, such loss
shall include an amount equal to the excess, as reasonably
determined by such Lender, of (i) its cost of obtaining
funds for the Loan which is the subject of such Breakage
Event for the period from the date of such Breakage Event to
the last day of the Interest Period in effect (or which
would have been in effect) for such Loan over (ii) the
amount of interest (as reasonably determined by such Lender)
that would be realized by such Lender in reemploying the
funds so paid, prepaid or converted or not borrowed,
continued or converted by making a LIBO Rate Loan in such
principal amount and with a maturity comparable to such
period. A certificate of any Lender setting forth any
amount or amounts which such Lender is entitled to receive
pursuant to this Section shall be delivered to the Borrower
and shall be conclusive absent manifest error.
SECTION 2.14. Pro Rata Treatment. Except as
permitted under any of Section 2.08(b), 2.11, 2.12, 2.13 or
2.17, each borrowing under each type of Loan, each payment
or prepayment of principal of the Loans, each payment of
interest on the Loans, each other reduction of the principal
or interest outstanding under the Loans, however achieved,
including by setoff by any Person, each payment of the
Commitment Fees, each reduction of the Commitments and each
conversion or continuation of Loans shall be allocated pro
rata among the Lenders in the proportions that their
respective Commitments bear to the Total Commitment (or, if
such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their
outstanding Loans). Each Lender agrees that in computing
such Lender's portion of any borrowing to be made hereunder,
the Administrative Agent may, in its discretion, round each
Lender's percentage of such borrowing to the next higher or
lower whole Dollar amount.
SECTION 2.15. Sharing of Setoffs. Each Lender
agrees that if it shall, through the exercise of a right of
banker's lien, setoff or counterclaim against the Borrower
or pursuant to a secured claim under Section 506 of Title 11
of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by
such Lender under any applicable bankruptcy, insolvency or
other similar law or otherwise, or by any other means obtain
payment (voluntary or involuntary) in respect of any Loan of
the Borrower held by it as a result of which the unpaid
principal portion of the Loans of the Borrower held by it
shall be proportionately less than the unpaid principal
portion of the Loans of the Borrower held by any other
Lender (other than as permitted under any of Section
2.08(b), 2.11, 2.12, 2.13 or 2.17), it shall be deemed to
have simultaneously purchased from such other Lender at face
value, and shall promptly pay to such other Lender the
purchase price for, a participation in the Loans of the
Borrower held by such other Lender, so that the aggregate
unpaid principal amount of the Loans of the Borrower and
participation in Loans of the Borrower held by each Lender
shall be in the same proportion to the aggregate unpaid
principal amount of all Loans of the Borrower then
outstanding as the principal amount of the Loans of the
Borrower held by it prior to such exercise of banker's lien,
setoff or counterclaim was to the principal amount of all
Loans of the Borrower outstanding prior to such exercise of
banker's lien, setoff or counterclaim or other event;
provided, however, that if any such purchase or purchases or
adjustments shall be made pursuant to this Section 2.15 and
the payment giving rise thereto shall thereafter be
recovered, such purchase or purchases or adjustments shall
be rescinded to the extent of such recovery and the purchase
price or prices or adjustment restored without interest. To
the fullest extent permitted by applicable law, the Borrower
expressly consents to the foregoing arrangements and agrees
that any Lender holding a participation in a Loan of the
Borrower deemed to have been so purchased may exercise any
and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by the Borrower
hereunder to such Lender as fully as if such Lender had made
a Loan directly to the Borrower in the amount of such
participation.
SECTION 2.16. Payments. (a) Except as otherwise
provided in this Agreement, all payments and prepayments to
be made by the Borrower to the Lenders hereunder, whether on
account of Commitment Fees, payment of principal or interest
on any Loan or other amounts at any time owing hereunder or
under any other Loan Document, shall be made to the
Administrative Agent at its office at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, for the account of the several Lenders in
immediately available funds. All such payments shall be
made to the Administrative Agent as aforesaid not later than
10:30 a.m., New York City time, on the date due; and funds
received after that hour shall be deemed to have been
received by the Administrative Agent on the following
Business Day.
(b) As promptly as possible, but no later than
2:00 p.m., New York City time, on the date of each
borrowing, each Lender participating in the Loans made on
such date shall pay to the Administrative Agent such
Lender's Applicable Percentage of such Loan plus, if such
payment is received by the Administrative Agent after 2:00
p.m., New York City time, on the date of such borrowing,
interest at a rate per annum equal to the rate in effect on
such day, quoted by the Administrative Agent at its office
at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, for the overnight
"sale" to such Lender of Federal funds. At the time of, and
by virtue of, such payment, such Lender shall be deemed to
have made its Loan in the amount of such payment. The
Administrative Agent agrees to pay any moneys, including
such interest, so paid to it by the lending Lenders
promptly, but no later than 3:00 p.m., New York City time,
on the date of such borrowing, to the Borrower in
immediately available funds.
(c) If any payment of principal, interest,
Commitment Fee or any other amount payable to the Lenders
hereunder on any Loan shall fall due on a day that is not a
Business Day, then (except in the case of payments of
principal of or interest on LIBO Rate Loans, in which case
such payment shall be made on the next preceding Business
Day if the next succeeding Business Day would fall in the
next calendar month) such due date shall be extended to the
next succeeding Business Day, and interest shall be payable
on principal in respect of such extension.
(d) Unless the Administrative Agent shall have
been notified by the Borrower prior to the date on which any
payment or prepayment is due hereunder (which notice shall
be effective upon receipt) that the Borrower does not intend
to make such payment or prepayment, the Administrative Agent
may assume that the Borrower has made such payment or
prepayment when due and the Administrative Agent may in
reliance upon such assumption (but shall not be required to)
make available to each Lender on such date an amount equal
to the portion of such assumed payment or prepayment such
Lender is entitled to hereunder, and, if the Borrower has
not in fact made such payment or prepayment to the
Administrative Agent, such Lender shall, on demand, repay to
the Administrative Agent the amount made available to such
Lender, together with interest thereon in respect of each
day during the period commencing on the date such amount was
made available to such Lender and ending on (but excluding)
the date such Lender repays such amount to the
Administrative Agent, at a rate per annum equal to the rate,
determined by the Administrative Agent to represent its cost
of overnight or short-term funds (which determination shall
be conclusive absent manifest error).
(e) All payments of the principal of or interest
on the Loans or any other amounts to be paid to any Lender
or the Administrative Agent under this Agreement or any of
the other Loan Documents shall be made in Dollars, without
reduction by reason of any currency exchange expense.
SECTION 2.17. U.S. Taxes. (a) Any and all
payments by the Borrower hereunder shall be made, in
accordance with Section 2.16, free and clear of and without
deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all
liabilities with respect thereto imposed by the United
States or any political subdivision thereof, excluding taxes
imposed on the net income of an Agent or any Lender (or
Transferee) and franchise taxes of an Agent or any Lender
(or Transferee), as applicable, as a result of a connection
between the jurisdiction imposing such taxes and such Agent
or such Lender (or Transferee), as applicable, other than a
connection arising solely from such Agent or such Lender (or
Transferee), as applicable, having executed, delivered,
performed its obligations or received a payment under, or
enforced, this Agreement (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Non-Excluded
Taxes"). If the Borrower shall be required by law to deduct
any Non-Excluded Taxes from or in respect of any sum payable
hereunder to the Lenders (or any Transferee) or an Agent,
(i) the sum payable shall be increased by the amount
necessary so that after making all required deductions
(including deductions applicable to additional sums payable
under this Section 2.17) such Lender (or Transferee) or an
Agent (as the case may be) shall receive an amount equal to
the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the
relevant taxing authority or other Governmental Authority in
accordance with applicable law; provided, however, that no
Transferee of any Lender shall be entitled to receive any
greater payment under this Section 2.17 than such Lender
would have been entitled to receive with respect to the
rights assigned, participated or otherwise transferred
unless such assignment, participation or transfer shall have
been made at a time when the circumstances giving rise to
such greater payment did not exist.
(b) In addition, the Borrower agrees to bear and
to pay to the relevant Governmental Authority in accordance
with applicable law any current or future stamp or
documentary taxes or any other similar excise taxes, charges
or similar levies that arise from any payment made hereunder
or from the execution, delivery, registration or enforcement
of, or otherwise with respect to, this Agreement or any
other Loan Document and any property taxes that arise from
the enforcement of this Agreement or any other Loan Document
("Other Taxes").
(c) The Borrower will indemnify each Lender (or
Transferee) and each Agent for the full amount of Non-
Excluded Taxes and Other Taxes (including Non-Excluded Taxes
or Other Taxes imposed on amounts payable under this Section
2.17) paid by such Lender (or Transferee) or such Agent, as
the case may be, and any liability (including penalties,
interest and expenses (including reasonable attorney's fees
and expenses)) arising therefrom or with respect thereto. A
certificate as to the amount of such payment or liability
prepared by a Lender or Agent, or the Administrative Agent
on behalf of such Lender or Agent, absent manifest error,
shall be final, conclusive and binding for all purposes.
Such indemnification shall be made within 30 days after the
date such Lender (or Transferee) or such Agent, as the case
may be, makes written demand therefor.
(d) Within 30 days after the date of any payment
of Non-Excluded Taxes or Other Taxes by the Borrower to the
relevant Governmental Authority, the Borrower will furnish
to the Administrative Agent, at its address referred to on
the signature page, the original or a certified copy of a
receipt issued by such Governmental Authority evidencing
payment thereof.
(e) At the time it becomes a party to this
Agreement or a Transferee, each Lender (or Transferee) that
is organized under the laws of a jurisdiction outside the
United States shall (in the case of a Transferee, subject to
the immediately succeeding sentence) deliver to the Borrower
either a valid and currently effective Internal Revenue
Service Form 1001 or Form 4224 or, in the case of a Lender
(or Transferee) claiming exemption from U.S. Federal
withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest", a Form W-
8, or any subsequent version thereof or successors thereto,
(and if such Lender (or Transferee) delivers a Form W-8, a
certificate representing that such Lender (or Transferee) is
not a bank for purposes of Section 881(c) of the Code, is
not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and is not a
controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code)),
properly completed and duly executed by such Lender (or
Transferee) establishing that such payment is (i) not
subject to United States Federal withholding tax under the
Code because such payment is effectively connected with the
conduct by such Lender (or Transferee) of a trade or
business in the United States or (ii) totally exempt from
(or in case of a Transferee, entitled to a reduced rate of)
United States Federal withholding tax. Notwithstanding any
other provision of this Section 2.17(e), no Transferee shall
be required to deliver any form pursuant to this Section
2.17(e) that such Transferee is not legally able to deliver.
In addition, each Lender (or Transferee) shall deliver such
forms promptly upon the obsolescence or invalidity of any
form previously delivered, but only, in such case, to the
extent such Lender (or Transferee) is legally able to do so.
(f) Notwithstanding anything to the contrary
contained in this Section 2.17, the Borrower shall not be
required to pay any additional amounts to any Lender (or
Transferee) in respect of United States Federal withholding
tax pursuant to paragraph (a) above if the obligation to pay
such additional amounts would not have arisen but for a
failure by such Lender (or Transferee) to comply with the
provisions of paragraph (e) above.
(g) Any Lender (or Transferee) claiming any
additional amounts payable pursuant to this Section 2.17
shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document
requested by the Borrower or to change the jurisdiction of
its applicable lending office if the making of such a filing
or change would avoid the need for or reduce the amount of
any such additional amounts which may thereafter accrue and
would not, in the sole determination of such Lender, be
otherwise disadvantageous to such Lender (or Transferee).
(h) Without prejudice to the survival of any
other agreement contained herein, the agreements and
obligations contained in this Section 2.17 shall survive the
payment in full of the principal of and interest on all
Loans made hereunder.
(i) Nothing contained in this Section 2.17 shall
require any Lender (or Transferee) or the Administrative
Agent to make available any of its income tax returns (or
any other information that it deems to be confidential or
proprietary).
ARTICLE III
Representations and Warranties
SECTION 3.01. Representations and Warranties. As
of the Effective Date, in the case of the Borrower, the
Restatement Date, in the case of the Guarantor, and each
other date upon which such representations and warranties
are required to be made or deemed made pursuant to Section
6.01(i) by the Borrower and the Guarantor, each of the
Borrower and the Guarantor represents and warrants to each
Lender and Agent as follows:
(a) Organization, Powers. Each of the Borrower
and the Guarantor (i) is duly organized, validly existing
and in good standing under the laws of the State of
Delaware, (ii) has the requisite power and authority to own
its property and assets and to carry on its business as now
conducted and as proposed to be conducted, and (iii) is
qualified to do business in every jurisdiction where such
qualification is required, except where the failure so to
qualify would not have a material adverse effect on its
condition, financial or otherwise. Each of the Borrower and
the Guarantor has the power to execute, deliver and perform
its obligations under this Agreement and the other Loan
Documents to which it is or is to be a party and, in the
case of the Borrower, to borrow hereunder. Each of the
Borrower and the Guarantor has all requisite power, and has
all material governmental licenses, authorizations, consents
and approvals necessary to own its own assets and carry on
its business as now being or as proposed to be conducted.
(b) Authorization. The execution, delivery and
performance of this Agreement (including, without
limitation, performance of the obligations set forth in
Section 5.0l(l)) and the other Loan Documents to which the
Borrower or the Guarantor is or is to be a party and the
borrowings hereunder (i) have been duly authorized by all
requisite limited liability company or corporate, as
applicable and, if required, stockholder, action on the part
of the Borrower and the Guarantor and (ii) will not
(A) violate (x) any Governmental Rule or the Borrower's
articles of organization or operating agreement or the
Guarantor's certificate of incorporation or By-laws, as the
case may be, or (y) any provisions of any indenture,
agreement or other instrument to which the Borrower or the
Guarantor is a party, or by which the Borrower or the
Guarantor or any of their respective properties or assets
are or may be bound, (B) be in conflict with, result in a
breach of or constitute (alone or with notice or lapse of
time or both) a default under any indenture, agreement or
other instrument referred to in (ii)(A)(y) above or
(C) result in the creation or imposition of any Lien, charge
or encumbrance of any nature whatsoever upon any property or
assets of the Borrower or the Guarantor.
(c) Governmental Approvals. Except for those
consents, approvals and registrations listed on Schedule IV
hereto, each of which has been obtained and is in full force
and effect, no registration with or consent or approval of,
or other action by, any Governmental Authority is or will be
required in connection with the execution, delivery and
performance by the Borrower or the Guarantor of this
Agreement or any other Loan Document to which either of them
is, or is to be, a party or the borrowings hereunder by the
Borrower. Other than routine authorizations, permissions or
consents which are of a minor nature and which are
customarily granted in due course after application or the
denial of which would not materially adversely affect the
business, financial condition or operations of the Borrower
or the Guarantor, each of the Borrower and the Guarantor has
all franchises, licenses, certificates, authorizations,
approvals or consents from all national, state and local
governmental and regulatory authorities required to carry on
its business as now conducted and as proposed to be
conducted.
(d) Enforceability. This Agreement and each of
the other Loan Documents to which it is a party constitutes
a legal, valid and binding obligation of the Borrower and
the Guarantor, enforceable in accordance with their
respective terms (subject, as to the enforcement of remedies
against the Borrower or the Guarantor, to applicable
bankruptcy, reorganization, insolvency, moratorium and
similar laws affecting creditors' rights against the
Borrower or the Guarantor generally in connection with the
bankruptcy, reorganization or insolvency of the Borrower or
the Guarantor or a moratorium or similar event relating to
the Borrower or the Guarantor).
(e) Financial Statements. The Guarantor has
heretofore furnished to each of the Lenders an unaudited pro
forma condensed consolidated balance sheet and statement of
operations as of and for the portion of the fiscal year
ended June 30, 1998. The Borrower has heretofore furnished
to each of the Lenders an unaudited pro forma statement of
operations for the fiscal year ended December 31, 1996, and
an unaudited pro forma condensed consolidated balance sheet
and statement of operations as of and for the six-month
period ended June 30, 1997. All such balance sheets and
statements of operations of the Guarantor and the Borrower
present fairly the financial condition and results of
operations of the Borrower and its Subsidiaries as of the
dates and for the periods indicated. Such financial
statements and the notes thereto disclose all material
liabilities, direct or contingent, of each of the Guarantor
and the Borrower and their respective consolidated
Subsidiaries as of the dates thereof which are required to
be disclosed in the footnotes to financial statements
prepared in accordance with GAAP. The financial statements
referred to in this Section 3.01(e) have been prepared in
accordance with GAAP. There has been no material adverse
change since (i) December 31, 1997 (the last date as of
which the Borrower delivered audited financial statements to
the Lenders pursuant to the Original Credit Agreement), in
the businesses, assets, operations, prospects or condition,
financial or otherwise, of the Borrower and its
Subsidiaries, taken as a whole, and (ii) July 30, 1998, in
the businesses, assets, operations, prospects or condition,
financial or otherwise, of the Guarantor.
(f) Litigation; Compliance with Laws; etc.
(i) There are no actions, suits or proceedings at law or in
equity or by or before any governmental instrumentality or
other agency or regulatory authority now pending or, to the
knowledge of the Borrower or the Guarantor, threatened
against or affecting the Guarantor, the Borrower or any of
the Borrower's Subsidiaries or the businesses, assets or
rights of the Guarantor, the Borrower or any of the
Borrower's Subsidiaries (i) which involve this Agreement or
any of the other Loan Documents or any of the transactions
contemplated hereby or thereby or (ii) as to which there is
a reasonable possibility of an adverse determination and
which, if adversely determined, could, individually or in
the aggregate, materially impair the ability of the Borrower
or the Guarantor to conduct its business substantially as
now conducted, or materially and adversely affect the
businesses, assets, operations, prospects or condition,
financial or otherwise, of the Borrower or the Guarantor, or
impair the validity or enforceability of, or the ability of
the Borrower or the Guarantor to perform its obligations
under, this Agreement or any of the other Loan Documents to
which it is a party.
(ii) Neither the Borrower, the Guarantor nor any
of the Borrower's Subsidiaries is in violation of any
Governmental Rule, or in default with respect to any
judgment, writ, injunction, decree, rule or regulation of
Governmental Authority, where such violation or default
could result in a Material Adverse Effect.
(g) Title, etc. The Borrower, the Guarantor and
the Borrower's Subsidiaries have good and valid title to
their respective material properties, assets and revenues
(exclusive of oil, gas and other mineral properties on which
no development or production activities are being conducted
and commercially exploitable reserves have not been
discovered), in the case of the Borrower, the Guarantor and
the Restricted Subsidiaries, free and clear of all Liens
except such Liens as are permitted by Section 5.02(d) and
except for covenants, restrictions, rights, easements and
minor irregularities in title which do not individually or
in the aggregate interfere with the occupation, use and
enjoyment by the Borrower, the Guarantor or any of the
Restricted Subsidiaries of such properties and assets in the
normal course of business as presently conducted or
materially impair the value thereof for use in such
business.
(h) Federal Reserve Regulations; Use of Proceeds.
(i) Neither the Borrower, the Guarantor nor any of the
Borrower's Subsidiaries is engaged principally, or as one of
its important activities, in the business of extending
credit for the purpose of purchasing or carrying Margin
Stock.
(ii) No part of the proceeds of the Loans will be
used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, for any purpose
which entails a violation of, or which is inconsistent with,
the provisions of the Regulations of the Board, including,
without limitation, Regulations U or X thereof.
(iii) The Borrower will use the proceeds of all
Loans made to it for the funding of capital expenditures,
working capital and general corporate purposes.
(i) Taxes. The Borrower, the Guarantor and the
Restricted Subsidiaries have filed or caused to be filed all
material Federal, state, local and foreign tax returns which
are required to be filed by them, and have paid or caused to
be paid all taxes shown to be due and payable on such
returns or on any assessments received by any of them, other
than any taxes or assessments the validity of which the
Borrower, the Guarantor or the relevant Restricted
Subsidiary is contesting in good faith by appropriate
proceedings, and with respect to which the Borrower, the
Guarantor or such Restricted Subsidiary shall, to the extent
required by GAAP, have set aside on its books adequate
reserves.
(j) Employee Benefit Plans. Each of the
Borrower, the Guarantor and their respective ERISA
Affiliates is in compliance in all material respects with
the applicable provisions of ERISA and the Code and the
regulations and published interpretations thereunder. No
ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events,
could materially and adversely affect the financial
condition and operations of the Borrower, the Guarantor and
their ERISA Affiliates, taken as a whole. The present value
of all benefit liabilities under each Plan, determined on a
plan termination basis (based on those assumptions used for
financial disclosure purposes in accordance with Statement
of Financial Accounting Standards No. 87 of the Financial
Accounting Standards Board ("SFAS 87") did not, as of the
last annual valuation date applicable thereto, exceed by
more than $5,000,000 the value of the assets of such Plan,
and the present value of all benefit liabilities of all
underfunded Plans, determined on a plan termination basis
(based on those assumptions used for financial disclosure
purposes in accordance with SFAS 87) did not, as of the last
annual valuation dates applicable thereto, exceed by more
than $5,000,000 the value of the assets of all such
underfunded Plans.
(k) Investment Company Act. Neither the
Borrower, the Guarantor nor any of their respective
Subsidiaries is an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of
1940, as amended from time to time.
(1) Public Utility Holding Company Act. Neither
the Borrower, the Guarantor nor any of their respective
Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding
Company Act of 1935, as amended from time to time.
(m) Subsidiaries. Schedule III constitutes a
complete and correct list, as of the Effective Date or the
date of any update thereof required by Section 5.01(a)(6),
of all Restricted Subsidiaries with at least $1,000,000 in
total assets, indicating the jurisdiction of incorporation
or organization of each corporation or partnership and the
percentage of shares or units owned on such date directly or
indirectly by the Borrower or the Guarantor, as applicable,
in each. Each entity shown as a parent company owns on such
date, free and clear of all Liens (other than the Liens
permitted by Section 5.02(d)(iii)), the percentage of voting
shares or partnership interests outstanding of the
Restricted Subsidiaries shown on Schedule III, and all such
shares or partnership interests are validly issued and fully
paid.
(n) Environmental Matters. (1) The properties
owned, leased or operated by the Borrower, the Guarantor and
the Borrower's Subsidiaries (the "Properties") and all
operations of the Borrower, the Guarantor and the Borrower's
Subsidiaries are in compliance, and in the last three years
have been in compliance, with all Environmental Laws, and
all necessary Environmental Permits have been obtained and
are in effect, except to the extent that such noncompliance
or failure to obtain any necessary permits, in the
aggregate, could not reasonably be expected to result in a
Material Adverse Effect.
(2) There have been no Releases or threatened
Releases at, from, under or proximate to the Properties or
otherwise in connection with the operations of the Borrower
or its Subsidiaries, which Releases or threatened Releases,
in the aggregate, could reasonably be expected to result in
a Material Adverse Effect.
(3) Neither the Borrower, the Guarantor nor any
of the Borrower's Subsidiaries has received any notice of an
Environmental Claim in connection with the Properties or the
operations of the Borrower, the Guarantor or the Borrower's
Subsidiaries or with regard to any Person whose liabilities
for environmental matters the Borrower, the Guarantor or any
of the Borrower's Subsidiaries has retained or assumed, in
whole or in part, contractually, by operation of law or
otherwise, which, in the aggregate, could reasonably be
expected to result in a Material Adverse Effect, nor does
the Borrower, the Guarantor or the Borrower's Subsidiaries
have reason to believe that any such notice will be received
or is being threatened.
(4) Hazardous Materials have not been transported
from the Properties, nor have Hazardous Materials been
generated, treated, stored or disposed of at, on or under
any of the Properties in a manner that could give rise to
liability under any Environmental Law, nor has the Borrower,
the Guarantor or the Borrower's Subsidiaries retained or
assumed any liability, contractually, by operation of law or
otherwise, with respect to the generation, treatment,
storage or disposal of Hazardous Materials, which
transportation, generation, treatment, storage or disposal,
or retained or assumed liabilities, in the aggregate, could
reasonably be expected to result in a Material Adverse
Effect.
(o) No Material Misstatements. No information,
report (including any exhibit, schedule or other attachment
thereto or other document delivered in connection
therewith), financial statement, exhibit or schedule
prepared or furnished by the Borrower or the Guarantor to
the Administrative Agent or any Lender in connection with
this Agreement or any of the other Loan Documents or
included therein contained or contains any material
misstatement of fact or omitted or omits to state any
material fact necessary to make the statements therein,
taken as a whole in the light of the circumstances under
which they were made, not misleading.
(p) Year 2000. Any reprogramming required to
permit the proper functioning, in and following the year
2000, of (i) the Borrower's and the Guarantor's material
computer systems and (ii) equipment containing embedded
microchips (including systems and equipment supplied by
others or with which the Borrower's or the Guarantor's
systems interface) and the testing of all such systems and
equipment, as so reprogrammed, will be completed by June 30,
1999. The cost to the Borrower and the Guarantor of such
reprogramming and testing and of the reasonably foreseeable
consequences of year 2000 to the Borrower and the Guarantor
(including, without limitation, reprogramming errors and the
failure of others' systems or equipment) will not result in
a Default or a Material Adverse Effect. Except for such of
the reprogramming referred to in the preceding sentence as
may be necessary, the computer and management information
systems of the Borrower, the Guarantor and the Borrower's
Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue for the term of this Agreement to
be, sufficient to permit the Borrower to conduct its
business without Material Adverse Effect.
ARTICLE IV
Conditions to Effectiveness
SECTION 4.01. Conditions to Initial Credit Event.
Subject to satisfaction of the conditions to each Credit
Event required by Section 6.01, the Borrower may not borrow
Loans hereunder until the first date upon which the
following conditions have been satisfied:
(a) The Administrative Agent (or its counsel)
shall have received from each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party
or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed
signature of this Agreement) that such party has signed a
counterpart to this Agreement.
(b) The Administrative Agent and the Documentary
Agent shall have received, on behalf of themselves and the
Lenders, a favorable written opinion of (i) Counsel to the
Borrower, substantially to the effect set forth in Exhibit
D, and (ii) Jones, Walker, Waechter, Poitevent, Carrere &
Xxxxxxx, L.L.P., counsel for the Borrower, substantially to
the effect set forth in Exhibit E, in each case (A) dated
the Effective Date, (B) addressed to the Agents and the
Lenders, and (C) covering such other matters relating to the
Spin-Off, the Loan Documents and the transactions
contemplated thereby as the Administrative Agent and the
Documentary Agent shall reasonably request, and the Borrower
hereby instructs such counsel to deliver such opinions.
(c) All legal matters incident to this Agreement,
the borrowings and extensions of credit hereunder, the other
Loan Documents or the Spin-Off shall be satisfactory to the
Lenders and to Cravath, Swaine & Xxxxx, special counsel for
the Agents.
(d) The Administrative Agent and the Documentary
Agent shall have received (i) a copy of the certificate of
incorporation, including all amendments thereto, of the
Borrower, certified as of a recent date by the Secretary of
State of the state of its organization, and a certificate as
to the good standing of the Borrower as of a recent date,
from such Secretary of State; (ii) a certificate of the
Secretary or Assistant Secretary of the Borrower dated the
Effective Date and certifying (A) that attached thereto is a
true and complete copy of the By-laws of the Borrower as in
effect on the Effective Date and at all times since a date
prior to the date of the resolutions described in clause (B)
below, (B) that attached thereto is a true and complete copy
of resolutions duly adopted by the Board of Directors of the
Borrower authorizing the execution, delivery and performance
of the Loan Documents to which the Borrower is a party and
the borrowings hereunder, and that such resolutions have not
been modified, rescinded or amended and are in full force
and effect, (C) that the certificate of incorporation and
By-laws of the Borrower have not been amended since the date
of the last amendment thereto shown on the certificate of
good standing furnished pursuant to clause (i) above or the
date of the certificate furnished pursuant to clause (ii)
above, as applicable, and (D) as to the incumbency and
specimen signature of each officer executing any Loan
Document or any other document delivered in connection
herewith on behalf of the Borrower; (iii) a certificate of
another officer as to the incumbency and specimen signature
of the Secretary or Assistant Secretary executing the
certificate pursuant to clause (ii) above; and (iv) such
other documents as the Lenders or Cravath, Swaine & Xxxxx,
special counsel for the Agents, may reasonably request.
(e) The Administrative Agent and the Documentary
Agent shall have received a certificate, dated the Effective
Date and signed by a Financial Officer of the Borrower,
confirming compliance with the conditions precedent set
forth in paragraphs (i) and (iii) of Section 6.01.
(f) The Administrative Agent shall have received
all fees and other amounts due and payable on or prior to
the Effective Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder
or under any other Loan Document.
(g) (i) All actions related to the Spin-Off shall
have been completed on a generally tax-free basis with
respect to the Borrower (subject to exceptions approved by
the Administrative Agent), including arrangements in
connection with the Spin-Off with respect to existing
indebtedness of FTX and FRP, all on terms substantially the
same as those described in the Form S-1 filed with the SEC
in connection with the Spin-Off or otherwise satisfactory to
the Lenders (including all tax, accounting, corporate and
partnership matters) and all in accordance with applicable
law and documentation reasonably satisfactory to the
Lenders; and (ii) the Lenders shall be satisfied with the
capitalization and structure of the Borrower after the
consummation of the Spin-Off.
(h) After giving effect to the Spin-Off and the
other transactions contemplated hereby, the Borrower and its
Restricted Subsidiaries shall have outstanding no Debt or
preferred stock other than (i) the Loans and other
extensions of credit under this Agreement and (ii) the Debt
permitted under Section 5.02(g); provided, however, that
such Debt that shall remain outstanding after the Effective
Date pursuant to the terms of Section 5.02(g) shall be
satisfactory in all respects to the Lenders (including, but
not limited to, terms and conditions relating to the
interest rates, fees, amortization, maturity, subordination,
covenants, events of default and remedies).
(i) The Borrower shall have delivered to each
Lender a reserve report, in a form satisfactory to the
Administrative Agent, the Co-Agent and the Lenders, on the
sulphur properties of the Borrower and its Restricted
Subsidiaries.
(j) The Lenders shall have received (i) an
unaudited pro forma consolidated statement of operations of
the Borrower for the 1996 fiscal year, (ii) an unaudited pro
forma consolidated balance sheet and related statement of
operations of the Borrower for the six-month period ended
June 30, 1997 and (iii) other financial information,
including projections, all in form and substance
satisfactory to the Administrative Agent. Such financial
statements and other financial information provided to the
Lenders by the Borrower shall not be materially inconsistent
with such financial statements or other financial
information previously provided to the Lenders.
(k) There shall be no litigation or
administrative proceedings or other legal or regulatory
developments, actual or threatened, that, in the reasonable
judgment of the Lenders, involve a reasonable possibility of
a Material Adverse Effect or which would be materially
inconsistent with the assumptions underlying the projections
contained in the Confidential Information Memorandum.
(l) The Lenders shall be satisfied that the
consummation of the transactions contemplated by this
Agreement and the Spin-Off will not (i) violate any
applicable law, statute, rule or regulation (including, but
not limited to, ERISA, margin regulations and Environmental
Laws) or (ii) conflict with, or result in a default or event
of default under (x) any indenture relating to any existing
indebtedness of the Borrower or any of its Restricted
Subsidiaries that is not being repaid, repurchased or
redeemed in full on or prior to the Effective Date in
connection with the Spin-Off or (y) any other material
agreement of the Borrower or any of its Restricted
Subsidiaries, and the Administrative Agent shall have
received one or more legal opinions to such effect
satisfactory to the Administrative Agent, from counsel to
the Borrower satisfactory to the Administrative Agent.
(m) The Lenders shall be reasonably satisfied as
to the amount and nature of any environmental and employee
health and safety exposures to which the Borrower and its
Restricted Subsidiaries may be subject, and the plans of the
Borrower with respect thereto.
(n) The Borrower and each of its Restricted
Subsidiary shall have in place insurance with reputable
insurance companies or associations (or, to the extent
consistent with prudent business practice, through its own
program of self-insurance) in such amounts and covering such
risks as is usually carried by companies in similar
businesses and owning similar properties in the same general
areas in which the Borrower or such Restricted Subsidiary
operates.
(o) There shall have been no material adverse
change in the business, assets, operations, properties,
financial condition, contingent liabilities, prospects or
material agreements of the Borrower and its Restricted
Subsidiaries, taken as a whole, since August 26, 1997.
(p) The Lenders shall be reasonably satisfied in
all respects with the tax position and the contingent tax
and other liabilities of the Borrower and its Restricted
Subsidiaries and the plans of the Borrower with respect
thereto.
(q) All requisite material Governmental
Authorities and Third Parties shall have approved of or
consented to the Spin-Off and the other transactions
contemplated hereby to the extent required, all applicable
appeal periods shall have expired and there shall be no
governmental or judicial action, actual or threatened, that
could reasonably be expected to restrain, prevent or impose
burdensome conditions on the Spin-Off or the other
transactions contemplated hereby.
(r) The Lenders shall have received a copy, in a
form satisfactory to the Administrative Agent, of the
Agreement for Sulphur Supply dated as of July 1, 1993,
between FRP, IMC Fertilizer, Inc. and IMC-Agrico Company, as
such agreement shall be amended in connection with the Spin-
Off (the "Sulphur Supply Agreement").
(s) The Borrower shall have delivered to each
Lender a calculation of its Leverage Ratio and EBITDA Ratio
as of the fiscal quarter ended September 30, 1997.
SECTION 4.02. Conditions to Amendment and
Restatement. This amendment and restatement of the terms
and provisions of the Original Credit Agreement shall become
effective on the first date upon which the following
conditions have been satisfied; provided that unless and
until this Agreement becomes effective, the Original Credit
Agreement shall continue in effect on the terms thereof on
the date hereof:
(a) The Administrative Agent (or its counsel)
shall have received from each party hereto, including the
Guarantor, either (i) a counterpart of this Agreement signed
on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include
telecopy transmission of a signed signature of this
Agreement) that such party has signed a counterpart to this
Agreement.
(b) The Administrative Agent and the Documentary
Agent shall have received, on behalf of themselves and the
Lenders, a favorable written opinion of (i) the General
Counsel of the Guarantor, in a form agreed upon by the
Borrower, the Guarantor and the Lenders, and (ii) Jones,
Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P.,
counsel for the Guarantor, in a form agreed upon by the
Borrower, the Guarantor and the Lenders, in each case (A)
dated the Restatement Date, (B) addressed to the Agents and
the Lenders, and (C) covering such other matters relating to
the Loan Documents, the Mergers and the transactions
contemplated thereby as the Administrative Agent and the
Documentary Agent shall reasonably request, and the
Guarantor hereby instructs such counsel to deliver such
opinions.
(c) All legal matters incident to this Agreement,
the borrowings and extensions of credit hereunder or the
other Loan Documents shall be satisfactory to the Lenders
and to Cravath, Swaine & Xxxxx, special counsel for the
Agents.
(d) The Administrative Agent and the Documentary
Agent shall have received (i) a copy of the articles of
organization, including all amendments thereto, of the
Borrower and the certificate of incorporation, including all
amendments thereto, of the Guarantor, each certified as of a
recent date by the Secretary of State of the state of its
organization, and a certificate as to the good standing of
the Borrower and the Guarantor as of a recent date, from
such Secretary of State; (ii) a certificate of the Secretary
or Assistant Secretary of each of the Borrower and the
Guarantor dated the Restatement Date and certifying (A) in
the case of the Guarantor, that attached thereto is a true
and complete copy of the by-laws of the Guarantor as in
effect on the Restatement Date and at all times since a date
prior to the date of the resolutions described in clause (B)
below and, in the case of the Borrower, that attached
thereto is a true and complete copy of the operating
agreement of the Borrower as in effect on the Restatement
Date and at all times since a date prior to the resolutions
described in clause (B) below, (B) that attached thereto is
a true and complete copy of resolutions duly adopted by the
Board of Directors of the Guarantor, individually and in its
capacity as the sole member of the Borrower, authorizing
(i) the FSC Merger and (ii) the execution, delivery and
performance of the Loan Documents to which the Borrower or
the Guarantor is a party and the borrowings hereunder, and
that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that neither
the certificate of incorporation and By-laws of the
Guarantor nor the articles of organization and the operating
agreement of the Borrower have been amended since the date
of the last amendment thereto shown on the certificate of
good standing furnished pursuant to clause (i) above or the
date of the certificate furnished pursuant to clause (ii)
above, as applicable, and (D) as to the incumbency and
specimen signature of each officer executing any Loan
Document or any other document delivered in connection
herewith on behalf of the Borrower and the Guarantor; (iii)
a certificate of another officer as to the incumbency and
specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Lenders or Cravath, Swaine
& Xxxxx, special counsel for the Agents, may reasonably
request.
(e) The Administrative Agent and the Documentary
Agent shall have received a certificate, dated the
Restatement Date and signed by a Financial Officer of the
Guarantor, confirming compliance with the conditions
precedent set forth in paragraphs (i) and (iii) of Section
6.01.
(f) The Administrative Agent shall have received
all fees and other amounts due and payable on or prior to
the Restatement Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder
or under any other Loan Document.
(g) After giving effect to the Mergers and the
other transactions contemplated hereby, the Guarantor, the
Borrower and the Restricted Subsidiaries shall have
outstanding no Debt or preferred stock other than (i) the
Loans and other extensions of credit under this Agreement
and (ii) the Debt permitted under Section 5.02(g); provided,
however, that such Debt that shall remain outstanding after
the Restatement Date pursuant to the terms of
Section 5.02(g) shall be satisfactory in all respects to the
Lenders (including, but not limited to, terms and conditions
relating to the interest rates, fees, amortization,
maturity, subordination, covenants, events of default and
remedies).
(h) The Lenders shall have received an unaudited
pro forma condensed consolidated balance sheet and statement
of operations of the Guarantor as of and for the portion of
the fiscal year ended June 30, 1998. Such financial
statements and other financial information provided to the
Lenders by the Guarantor shall not be materially
inconsistent with such financial statements or other
financial information previously provided to the Lenders.
(i) There shall be no litigation or
administrative proceedings or other legal or regulatory
developments, actual or threatened, that, in the reasonable
judgment of the Lenders, involve a reasonable possibility of
a Material Adverse Effect.
(j) The Lenders shall be satisfied that the
consummation of the Mergers and the other transactions
contemplated by this Agreement will not (i) violate any
applicable law, statute, rule or regulation (including, but
not limited to, ERISA, margin regulations and Environmental
Laws) or (ii) conflict with, or result in a default or event
of default under (x) any indenture relating to any existing
indebtedness of the Guarantor, the Borrower or any of the
Restricted Subsidiaries that is not being repaid,
repurchased or redeemed in full on or prior to the date
hereof or (y) any other material agreement of the Guarantor,
the Borrower or any of the Restricted Subsidiaries.
(k) The Lenders shall be reasonably satisfied as
to the amount and nature of any environmental and employee
health and safety exposures to which the Guarantor and the
Restricted Subsidiaries (other than the Borrower and its
Subsidiaries) may be subject, and the plans of the Guarantor
with respect thereto.
(l) The Guarantor shall have in place insurance
with reputable insurance companies or associations (or, to
the extent consistent with prudent business practice,
through its own program of self-insurance) in such amounts
and covering such risks as is usually carried by companies
in similar businesses and owning similar properties in the
same general areas in which the Guarantor operates.
(m) There shall have been no material adverse
change in the business, assets, operations, properties,
financial condition, contingent liabilities, prospects or
material agreements of the Borrower and the Restricted
Subsidiaries, taken as a whole, since December 31, 1997 or
the Guarantor since July 30, 1998.
(n) The Lenders shall be reasonably satisfied in
all respects with the tax position and the contingent tax
and other liabilities of the Guarantor, the Borrower and the
Restricted Subsidiaries and the plans of the Guarantor and
the Borrower with respect thereto.
(o) All requisite material Governmental
Authorities and Third Parties shall have approved of or
consented to the transactions contemplated hereby and the
Mergers to the extent required, all applicable appeal
periods shall have expired and there shall be no
governmental or judicial action, actual or threatened, that
could reasonably be expected to restrain, prevent or impose
burdensome conditions on the Mergers or the other
transactions contemplated hereby.
(p) Each of the Mergers shall have been
consummated, or shall be consummated simultaneously with the
effectiveness of this agreement, in accordance with
applicable law and on terms and conditions reasonably
satisfactory to the Lenders. After giving effect to the
consummation of the Mergers, the Lenders shall be reasonably
satisfied with the capitalization and organizational
structure of the Borrower and the Guarantor.
ARTICLE V
Covenants
SECTION 5.01. Affirmative Covenants of the
Borrower and the Guarantor. Each of the Borrower and the
Guarantor covenants and agrees with each Lender and Agent
that from and after the Effective Date, in the case of the
Borrower, and from and after the Restatement Date, in the
case of the Guarantor, and so long as this Agreement shall
remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan,
all fees and all other expenses or amounts payable under any
Loan Document shall have been paid in full, that, unless the
Required Lenders otherwise provide prior written consent:
(a) Financial Statements, etc. (i) The
Guarantor shall furnish each Lender:
(1) within 95 days after the end of each fiscal
year, an audited consolidated balance sheet of the
Guarantor and its Subsidiaries (including the Borrower
and its Subsidiaries) as at the close of such fiscal
year and consolidated statements of operations,
stockholders' equity and cash flows of it and its
Subsidiaries (including the Borrower and its
Subsidiaries) for such year (and a separate unaudited
consolidated balance sheet and statements of
operations, stockholder's equity and cash flows of the
Guarantor and its Subsidiaries as at the close of and
for such fiscal year excluding the effects of the
Nonrestricted Subsidiaries), each certified by a
Financial Officer of the Guarantor on a consolidated
basis in accordance with GAAP consistently applied,
except as disclosed in such auditor's report;
(2) within 50 days after the end of each of the
first three quarters of each of its fiscal years, an
unaudited consolidated balance sheet of the Guarantor
and its Subsidiaries (including the Borrower and its
Subsidiaries) as at the end of such quarter, the
related consolidated statement of operations for such
quarter and the related consolidated statements of
operations and cash flows for the period from the
beginning of the fiscal year to the end of such quarter
(and a separate unaudited consolidated balance sheet as
at the end of such quarter, a statement of operations
for such quarter and statements of operations and cash
flows for the period from the beginning of such fiscal
year to the end of such quarter of the Guarantor and
its Subsidiaries excluding the effects of the
Nonrestricted Subsidiaries), each certified by a
Financial Officer of the Guarantor as fairly presenting
the financial condition and results of operations of
the Guarantor on a consolidated basis in accordance
with GAAP consistently applied;
(3) promptly after their becoming available,
(a) copies of all financial statements, reports and
proxy statements which the Guarantor shall have sent to
its stockholders generally, (b) copies of all
registration statements (excluding registration
statements relating to employee benefit plans) and
regular and periodic reports, if any, which it shall
have filed with the SEC, or any governmental agency
substituted therefor, and (c) if requested by any
Lender, copies of each annual report filed with any
Governmental Authority pursuant to ERISA with respect
to each Plan of the Guarantor or any of the Restricted
Subsidiaries (other than the Borrower and its
Subsidiaries);
(4) promptly upon the occurrence of any Default or
Event of Default, the occurrence of any default under
any other Loan Document, the commencement of any
proceeding regarding the Guarantor or any of the
Restricted Subsidiaries (including the Borrower and its
Subsidiaries) under any Federal or state bankruptcy
law, any other development that has resulted in, or
could reasonably be expected to result in, a Material
Adverse Effect, notice thereof, describing the same in
reasonable detail;
(5) at the time of provision of the financial
statements referred to in clauses (1) and (2) above, an
update of Schedule III to correct, add or delete any
required information; and
(6) from time to time, such further information
regarding the business, affairs and financial condition
of the Guarantor or any of the Restricted Subsidiaries
(other than the Borrower and any of its Subsidiaries)
as any Lender may reasonably request.
At the time the Guarantor furnishes financial statements
pursuant to the foregoing clauses (1) and (2), it also will
furnish each Lender a certificate signed by its Treasurer or
other authorized Financial Officer setting forth the
calculation of: (a) its Leverage Ratio as determined in
accordance with Section 5.02(e) and (b) its EBITDA Ratio as
determined in accordance with Section 5.02(f); provided,
however, that, with respect to data included in such
calculations related to the period prior to the consummation
of the Spin-Off and the Mergers, such data shall be
determined on a pro forma basis, and it will furnish a
certificate signed by its Treasurer or other authorized
Financial Officer certifying that no Default or Event of
Default has occurred, or if such a Default or Event of
Default has occurred, specifying the nature and extent
thereof and any corrective action taken or proposed to be
taken with respect thereto.
(ii) The Borrower shall furnish each Lender:
(1) within 95 days after the end of each fiscal
year, an unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as at the close of such
fiscal year and consolidated statements of operation
and changes in retained earnings and cash flow of it
and its Subsidiaries for such year, certified by a
Financial Officer of the Borrower, as fairly presenting
the financial condition and results of operations of
the Borrower on a consolidated basis in accordance with
GAAP consistently applied;
(2) within 50 days after the end of each of the
first three quarters of each of its fiscal years, a
consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such quarter and
consolidated statements of income of the Borrower and
its Subsidiaries, for such quarter and for the period
from the beginning of the fiscal year to the end of
such quarter, certified by a Financial Officer of the
Borrower as fairly presenting the financial condition
and results of operations of the Borrower on a
consolidated basis in accordance with GAAP consistently
applied;
(3) promptly after their becoming available,
(a) copies of all financial statements, reports and
proxy statements which the Borrower shall have sent to
its stockholders generally, (b) copies of all
registration statements (excluding registration
statements relating to employee benefit plans) and
regular and periodic reports, if any, which it shall
have filed with the SEC, or any governmental agency
substituted therefor, and (c) if requested by any
Lender, copies of each annual report filed with any
Governmental Authority pursuant to ERISA with respect
to each Plan of the Borrower or any of its
Subsidiaries;
(4) on or prior to April 1 of each year,
commencing with the April 1 immediately following the
Effective Date, the Borrower shall provide to each
Lender (i) an update with respect to the sulphur
reserves of the Borrower and the Restricted
Subsidiaries and (ii) projections for the Borrower's
business operations, in each case in a form
satisfactory to the Administrative Agent;
(5) promptly upon the occurrence of any Default or
Event of Default, the occurrence of any default under
any other Loan Document, the commencement of any
proceeding regarding the Borrower or any of its
Subsidiaries under any Federal or state bankruptcy law,
any other development that has resulted in, or could
reasonably be expected to result in, a Material Adverse
Effect, notice thereof, describing the same in
reasonable detail;
(6) at the time of provision of the financial
statements referred to in clauses (1) and (2) above, an
update of Schedule III to correct, add or delete any
required information; and
(7) from time to time, such further information
regarding the business, affairs and financial condition
of the Borrower or any of its Subsidiaries as any
Lender may reasonably request.
(b) Obligations, Taxes and Claims. Each of the
Borrower and the Guarantor shall, and shall cause each of
the Restricted Subsidiaries to, pay its material obligations
promptly and pay and discharge promptly when due all taxes,
assessments and governmental charges or levies imposed upon
it or upon its income or profits, or upon any property
belonging to it, prior to the date on which material
penalties attach thereto, as well as all lawful claims for
labor, materials and supplies or otherwise that, with
respect to any of the foregoing, if unpaid, could reasonably
be expected to give rise to a Lien upon such properties or
any part thereof which is not permitted by Section 5.02(d);
provided that neither the Borrower, the Guarantor nor any of
the Restricted Subsidiaries shall be required to pay or
discharge any such obligation, tax, assessment, charge, levy
or claim, the payment of which is being contested in good
faith by proper proceedings and with respect to which the
Borrower, the Guarantor or such Restricted Subsidiary shall
have, to the extent required by GAAP, set aside on its books
adequate reserves and such contest operates to suspend
collection of the contested obligation, tax, assessment or
charge and enforcement of such Lien and, in the case of a
mortgaged property, there is no risk of forfeiture of such
property.
(c) Maintenance of Existence; Conduct of
Business. Each of the Borrower and the Guarantor shall
preserve and maintain its corporate existence and all its
rights, privileges and franchises necessary or desirable in
the normal conduct of its business; provided that nothing
herein shall prevent any transaction permitted by Section
5.02(c).
(d) Compliance with Applicable Laws. Each of the
Borrower and the Guarantor shall, and shall cause each of
the Restricted Subsidiaries to, comply with the requirements
of all applicable laws, rules, regulations and orders of any
Governmental Authority, a breach of which would materially
and adversely affect its consolidated financial condition or
business, except where contested in good faith and by proper
proceedings and with respect to which the Borrower, the
Guarantor or such Restricted Subsidiary shall have, to the
extent required by GAAP, set aside on its books adequate
reserves.
(e) Litigation. Each of the Borrower and the
Guarantor shall promptly give to each Lender notice in
writing of all litigation and all proceedings before any
Governmental Authority or arbitration authorities affecting
the Borrower, the Guarantor or any of the Restricted
Subsidiaries, except those which, if adversely determined,
do not relate to the Loan Documents and which would not have
a material adverse effect on the business, assets,
operations or financial condition of the Borrower or the
Guarantor or the Borrower's or the Guarantor's ability to
comply with its obligations under the Loan Documents.
(f) ERISA. Each of the Borrower and the
Guarantor shall, and shall cause each of its ERISA
Affiliates to, comply in all material respects with the
applicable provisions of ERISA and the Code and furnish to
the Administrative Agent as soon as possible, and in any
event within 30 days after any Responsible Officer of the
Borrower or the Guarantor or any ERISA Affiliate, as
applicable, knows or has reason to know that any ERISA Event
has occurred that alone or together with any other ERISA
Event could reasonably be expected to result in liability of
the Borrower or the Guarantor in an aggregate amount
exceeding $25,000,000 or requires payment exceeding
$10,000,000 in any year, a statement of a Financial Officer
of the Borrower or the Guarantor, as applicable, setting
forth details as to such ERISA Event and the action that the
Borrower or the Guarantor, as applicable, proposes to take
with respect thereto.
(g) Compliance with Environmental Laws. Each of
the Borrower and the Guarantor shall comply, and the
Borrower shall cause each of its Subsidiaries and all
lessees and other Persons occupying the Properties to
comply, in all material respects with all Environmental Laws
and Environmental Permits applicable to its operations and
Properties; obtain and renew all material Environmental
Permits necessary for its operations and Properties; and
conduct any Remedial Action in accordance with Environmental
Laws; provided, however, that neither the Borrower, the
Guarantor nor any of the Borrower's Subsidiaries shall be
required to undertake any Remedial Action to the extent that
its obligation to do so is being contested in good faith and
by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances in accordance
with GAAP.
(h) Preparation of Environmental Reports. If a
default caused by reason of a breach of Section 3.01(n) or
5.01(g) shall have occurred and be continuing, at the
request of the Required Lenders through the Administrative
Agent, the Borrower or the Guarantor, as applicable, shall
provide to the Lenders within 45 days after such request, at
the expense of the Borrower or the Guarantor, as applicable,
an environmental site assessment report for the Properties
(which are the subject of such default) prepared by an
environmental consulting firm acceptable to the
Administrative Agent, indicating the presence or absence of
Hazardous Materials and the estimated cost of any compliance
or Remedial Action in connection with such Properties.
(i) Insurance. Each of the Borrower and the
Guarantor shall, and the Guarantor shall cause each of the
Restricted Subsidiaries to, (i) keep its insurable
properties adequately insured at all times; (ii) maintain
such other insurance, to such extent and against such risks,
including fire, flood and other risks insured against by
extended coverage, as is customary with companies in the
same or similar businesses; (iii) maintain in full force and
effect public liability insurance against claims for
personal injury or death or property damage occurring upon,
in, about or in connection with the use of any properties
owned, occupied or controlled by it in such amount as it
shall reasonably deem necessary; and (iv) maintain such
other insurance as may be required by law.
(j) Access to Premises and Records. Each of the
Borrower and the Guarantor shall, and the Borrower shall
cause each of its Subsidiaries to, maintain financial
records in accordance with GAAP, and, at all reasonable
times and as often as any Lender may reasonably request,
permit representatives of any Lender to have access to its
financial records and its premises and to the records and
premises of any of the Borrower's Subsidiaries and to make
such excerpts from and copies of such records as such
representatives deem necessary and to discuss its affairs,
finances and accounts with its officers and its independent
certified public accountants or other parties preparing
consolidated or consolidating statements for it or on its
behalf.
(k) Maintenance of Property. Each of the
Borrower and the Guarantor shall, and the Guarantor shall
cause each of the Restricted Subsidiaries to, keep and
maintain all property material to the conduct of the
business of the Guarantor or the Borrower and the Restricted
Subsidiaries, taken as a whole, in good working order and
condition, ordinary wear and tear excepted.
(l) Further Assurances. Each of the Borrower and
the Guarantor shall, and the Guarantor shall cause each of
its Subsidiaries to, execute any and all further documents,
financing statements, agreements and instruments, and take
all further actions, which may be required under applicable
law, or which the Required Lenders, the Administrative Agent
or the Documentary Agent may reasonably request, in order to
effectuate the transactions contemplated by this Agreement
and the other Loan Documents.
(m) Guarantor. The Guarantor shall limit its
activities to the ownership of all the outstanding shares of
capital stock of the Borrower, MOXY and any other
Subsidiaries. The Guarantor shall not own or acquire any
assets (other than shares of capital stock of the Borrower,
MOXY and any other Subsidiaries, cash and Permitted
Investments) or incur any liabilities (other than
liabilities under or permitted by the Loan Documents,
liabilities imposed by law (including tax liabilities) and
other liabilities incidental to its existence and permitted
business and activities). The Guarantor shall not permit
the Borrower to maintain a board of directors during the
term of this Agreement.
SECTION 5.02. Negative Covenants of the Borrower
and the Guarantor. Each of the Borrower and the Guarantor
covenants and agrees with each Lender and Agent that, from
and after the Effective Date, in the case of the Borrower,
and from and after the Restatement Date, in the case of the
Guarantor, and so long as this Agreement shall remain in
effect and until the Commitments have been terminated and
the principal of and interest on each Loan, all fees and all
other expenses or amounts payable under any Loan Document
have been paid in full, without the prior written consent of
the Required Lenders:
(a) Conflicting Agreements. Neither the Borrower
nor the Guarantor shall, and the Guarantor shall cause the
Restricted Subsidiaries not to, enter into any agreement
with any Person containing any provision which (i) would be
violated or breached by the performance of its obligations
under any Loan Document or under any instrument or document
delivered or to be delivered by it hereunder or thereunder
or in connection herewith or therewith, (ii) would prohibit
or restrict the Borrower or any of the Restricted
Subsidiaries in the payment of dividends or other
distributions or (iii) would prohibit or restrict the
ability of the Borrower or any of the Restricted
Subsidiaries to create Liens on any of their assets (other
than assets which are subject to Liens permitted pursuant to
paragraphs (ii), (iii), (iv) and (v) of Section 5.02(d) and
extensions and renewals and replacements thereof to the
extent permitted pursuant to Section 5.02(d)(vii).
(b) Hedge Transactions. The Borrower, the
Guarantor and the Restricted Subsidiaries shall enter into
or become obligated with respect to Hedge Agreements only in
the ordinary course of business to hedge or protect against
actual or reasonably anticipated exposures and not for
speculation.
(c) Consolidation or Merger; Disposition of
Assets and Capital Stock. Neither the Borrower nor the
Guarantor shall, and the Guarantor shall not permit any
Restricted Subsidiary to, merge into or consolidate with any
other Person or permit any other Person to merge into or
consolidate with it, or sell, lease, transfer or otherwise
dispose of (in one transaction or a series of transactions)
all or any substantial part of its assets (whether now owned
or hereafter acquired) or any capital stock or other
ownership interests of the Borrower or any Restricted
Subsidiary, except for (i) dispositions of accounts
receivable and dispositions of inventory in the ordinary
course of business, (ii) dispositions of obsolete or worn-
out property, or real estate not used or useful in its
business, (iii) subject to Sections 5.02(l) and (m),
dispositions of assets by the Borrower, the Guarantor or a
Restricted Subsidiary to another Restricted Subsidiary, the
Borrower or the Guarantor, (iv) subject to Section 5.02(j),
dispositions of assets by the Borrower, the Guarantor or a
Restricted Subsidiary to a Third Party, (v) to the extent
permitted by Section 5.02(n), the payment of Equity Payments
by the Borrower, the Guarantor or any Restricted Subsidiary,
(iv) subject to Section 2.07(b), sale and leaseback
transactions and (vii) investments in Permitted Investments
and dispositions thereof; and except that:
(A) the Borrower, the Guarantor or any Restricted
Subsidiary may merge or liquidate any other Person into
itself;
(B) any Restricted Subsidiary may be merged into
any other Person; provided that such other Person,
immediately following such merger, shall be deemed a
Restricted Subsidiary;
(C) subject to Section 2.07(b), the Borrower or
any Restricted Subsidiary may sell or otherwise dispose
of (including by merger or consolidation) any assets or
securities of any of their respective Subsidiaries;
(D) FSC may merge with and into Sulphur LLC
pursuant to the terms and conditions of the FSC Merger;
and
(E) the Guarantor may sell or otherwise dispose of
(including by merger or consolidation) any assets of or
any securities of any Nonrestricted Subsidiary;
provided, however, that in the case of a merger permitted by
clause (A) above, immediately thereafter and giving effect
thereto, the Borrower, the Guarantor or, as the case may be,
a Restricted Subsidiary would be the surviving Person and,
in the case of a merger permitted by clause (A) or (B) above
or of any disposition of assets or securities permitted by
clause (C) above, no Default or Event of Default would,
immediately thereafter and giving effect thereto, have
occurred and be continuing. Each sale or other disposition
permitted by clause (C) above shall be permitted only if the
Borrower or the Restricted Subsidiary shall receive fair
consideration therefor, as determined by the Board of
Directors of the Borrower or of such Restricted Subsidiary,
as the case may be, and certified by its Treasurer or
another of its Financial Officers to the Administrative
Agent.
(d) Liens. Neither the Borrower nor the
Guarantor shall, nor shall the Guarantor permit any of the
Restricted Subsidiaries to, create, incur, assume or suffer
to exist any Lien upon any of their respective properties,
revenues or assets (including stock or other securities of
any Person, including any Subsidiary), now owned or
hereafter acquired, except:
(i) required margin deposits on permitted Hedge
Agreements and foreign currency exchange agreements,
surety and appeal bonds and materialmen's, suppliers',
tax and other like Liens arising in the ordinary course
of its or such Restricted Subsidiary's business
securing obligations which are not overdue or are being
contested in good faith by appropriate proceedings and
as to which adequate reserves have been set aside on
its books to the extent required by GAAP, Liens arising
in connection with workers' compensation, unemployment
insurance and progress payments under government
contracts, and other Liens incident to the ordinary
conduct of its or such Restricted Subsidiary's business
or the ordinary operation of property or assets and not
incurred in connection with the obtaining of any Debt
or Guarantee;
(ii) Liens on assets or properties not owned as
of the Effective Date by the Borrower, the Guarantor or
any Restricted Subsidiary securing only purchase money
Debt of the Borrower or the Guarantor permitted by
Section 5.02(g)(v), which Liens are limited to the
specific property the purchase of which is financed by
such Debt;
(iii) Liens, existing at the time of the
acquisition by the Borrower, the Guarantor or any
Restricted Subsidiary of the majority of the capital
stock or other ownership interests or substantially all
of the assets of any other Person or existing at the
time of the merger of any such other Person into the
Borrower, the Guarantor or a Restricted Subsidiary, on
such capital stock or other ownership interests or
assets so acquired or on the assets of the Person so
merged into the Borrower, the Guarantor or such
Restricted Subsidiary; provided, however, that such
acquisition or merger (and the discharge of such Liens
referred to in the immediately succeeding proviso)
shall not otherwise result in an Event of Default or
Default; and provided further that all such Liens shall
be discharged within 180 days after the date of the
respective acquisition or merger;
(iv) Liens (as in effect on the Effective Date)
securing the Pennzoil Obligations on only the related
assets purchased from Pennzoil Company in an amount not
exceeding the amount of the Pennzoil Obligations;
(v) Liens of lessors of property (in such
capacity) leased by the Borrower, the Guarantor or a
Restricted Subsidiary pursuant to an Operating Lease or
a permitted Capitalized Lease Obligation, which Lien in
any such case is limited to the property leased
thereunder;
(vi) zoning restrictions, easements, rights-of-
way, restrictions on use of real property and other
similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial
in amount and do not materially detract from the value
of the property subject thereto or interfere with the
ordinary conduct of the business of the Borrower, the
Guarantor or any of their respective Subsidiaries;
(vii) extensions, renewals and replacements of
Liens referred to in paragraphs (i), (ii), (v), (vi)
and (viii) of this Section 5.02(d); provided that any
such extension, renewal or replacement Lien shall be
limited to the property or assets covered by the Lien
extended, renewed or replaced and that the obligations
secured by any such extension, renewal or replacement
Lien shall be in an amount not greater than the amount
of the obligations secured by the Lien extended,
renewed or replaced; and
(viii) Liens on equity or debt investments in Third
Parties owned by the Borrower, the Guarantor or a
Restricted Subsidiary (which Lien in any case is
limited to such pledged equity or debt investment)
which secure Debt of Third Parties or other Third Party
obligations (or Guarantees thereof); provided that such
pledged investments were initially acquired in
accordance with Section 5.02(j).
(e) Leverage Ratio. The Guarantor shall not
permit the Leverage Ratio to exceed 4.00 to 1.00.
(f) EBITDA Ratio. The Guarantor shall not permit
the EBITDA Ratio to be less than 3.00 to 1.00 at the end of
any fiscal quarter.
(g) Debt. Neither the Borrower, the Guarantor,
nor any Restricted Subsidiary shall incur, create, assume or
permit to exist any Debt of any of them except:
(i) the Loans;
(ii) Debt secured by the Liens permitted by Section
5.02(d)(iii); provided that such Debt is discharged
within 180 days of the relevant acquisition or merger;
(iii) unsecured recourse liabilities (not in excess
of the uncollectible amounts of the accounts receivable
sold) arising from the sale of accounts receivable;
(iv) unsecured loans and advances between the
Restricted Subsidiaries, to any Restricted Subsidiary
from the Borrower or the Guarantor, to the Borrower
from any Restricted Subsidiary or the Guarantor and to
the Guarantor from the Borrower or any Restricted
Subsidiary;
(v) purchase money Debt of the Borrower or the
Guarantor secured by Liens referred to in Section
5.02(d)(ii) not in excess of the purchase price of the
related asset in each individual case and not in excess
of $15,000,000 principal amount for all such
outstanding purchase money Debt in the aggregate;
(vi) unsecured Debt of the Borrower or the
Guarantor with a maturity less than 90 days pursuant to
uncommitted lines of credit with an outstanding
aggregate principal amount not at any time in excess of
$10,000,000;
(vii) additional Debt (including Guarantees of any
Debt of a Third Party and Capitalized Lease
Obligations) of the Borrower or the Guarantor with an
outstanding aggregate principal amount not at any time
in excess of $25,000,000 which shall, except for Liens
of Capitalized Lease Obligations permitted by
Section 5.02(d)(ii) or (vi), be unsecured;
(viii) additional Debt of the Borrower or the
Guarantor fully subordinated to the Loans and the other
obligations of the Borrower and the Guarantor under the
Loan Documents, as applicable, on terms with respect to
the subordination and maturity of such additional Debt
approved by the Administrative Agent; and
(ix) Debt consisting of a pledge of investments in
Nonrestricted Subsidiaries permitted by
Section 5.02(d)(viii); provided that such Debt is
recourse solely to the investment so pledged.
(h) Subordinated Debt Payments. Neither the
Borrower, the Guarantor nor any of the Restricted
Subsidiaries shall, directly or indirectly, make any
principal payment on, or repurchase of, any subordinated
debt referred to in clause (viii) of Section 5.02(g) with
proceeds of the Loans.
(i) Fiscal Year. Neither the Borrower nor the
Guarantor shall change its fiscal year to end on any date
other than December 31.
(j) Investments in Nonrestricted Subsidiaries and
Persons Not Subsidiaries. Neither the Guarantor, the
Borrower nor any of the Restricted Subsidiaries shall make
or permit to exist (x) any Guarantee by it or a Restricted
Subsidiary of the Debt of any Person which is not a
Restricted Subsidiary, including Nonrestricted Subsidiaries
(each such Person being a "Third Party"), in excess of
available amounts of Debt of the Borrower or the Guarantor
permitted under Section 5.02(g)(vii), or (y) any loans or
advances to, any purchase of stock, other securities or
evidences of indebtedness of, or any investment (whether by
transfer of assets or otherwise) or acquisition of any
investment whatsoever in or any other payment for the
benefit of, any Third Parties the aggregate outstanding
amount of which under this clause (y) at any time exceeds by
more than $50,000,000 the largest aggregate amount thereof
outstanding at any time in the Borrower's preceding fiscal
year; provided that, notwithstanding the provisions of
clauses (x) and (y) above, (i) the Guarantor, the Borrower
and the Restricted Subsidiaries may invest in Permitted
Investments, which investments shall not be included in the
calculation of such $50,000,000 annual limit, (ii) the
Guarantor may invest the proceeds of any equity issuance by
the Guarantor in any Third Party, which investments shall
not be included in the calculation of such $50,000,000
annual limit and (iii) the Guarantor may invest the proceeds
of any issuance of subordinated Debt permitted under
Section 5.02(g)(viii) in any Third Party so long as,
immediately after giving effect to such issuance, the
Leverage Ratio shall not exceed 3.00 to 1.00, which
investments shall be included in the calculation of such
$50,000,000 annual limit but may exceed such $50,000,000
annual limit.
(k) Federal Reserve Regulations. Neither the
Borrower nor the Guarantor shall, and the Guarantor shall
cause each of the Restricted Subsidiaries not to, use the
proceeds of any Loan in any manner that would result in a
violation of, or be inconsistent with, the provisions of
Regulations U or X. Neither the Borrower nor the Guarantor
shall, and the Guarantor shall cause each of the Restricted
Subsidiaries not to, take any action at any time that would
(A) result in a violation of the substitution and withdrawal
requirements of said Regulations, in the event the same
should become applicable to this Agreement or any Loan or
(B) cause the representation and warranty contained in
Section 3.01(h) at any time to be other than true and
correct.
(l) Borrower Transfers. Neither the Borrower nor
the Guarantor shall make any contribution or transfer of any
substantial portion of its assets to any Subsidiary other
than a Wholly-Owned Restricted Subsidiary unless otherwise
permitted under this Agreement.
(m) Transactions with Affiliates. Other than the
transactions constituting the Spin-Off and the Mergers,
neither the Borrower, the Guarantor nor the Restricted
Subsidiaries shall sell or transfer any property or assets
to, or purchase or acquire any property or assets from, or
otherwise engage in any other transactions with, any of its
Affiliates (other than among Wholly-Owned Restricted
Subsidiaries), except that as long as no Default or Event of
Default shall have occurred and be continuing, the Borrower,
the Guarantor or any Restricted Subsidiary may engage in any
of the foregoing transactions (i) in the case of a
transaction between the Borrower, the Guarantor or a
Restricted Subsidiary and a non-Wholly-Owned Restricted
Subsidiary, if the Borrower, the Guarantor or such
Restricted Subsidiary, as the case may be, has determined
that such transaction is in the best interests of the
Borrower, the Guarantor or such Restricted Subsidiary, as
the case may be, and (ii) in the case of any other
transaction between the Borrower, the Guarantor or a
Restricted Subsidiary and an Affiliate which is not a
Restricted Subsidiary, at prices and on terms and conditions
not less favorable to the Guarantor, the Borrower or such
Restricted Subsidiary, as the case may be, than could be
obtained on an arm's-length basis from unrelated third
parties. Notwithstanding the foregoing, (x) the Borrower,
the Guarantor or a Restricted Subsidiary may engage in the
foregoing transactions with a Wholly-Owned Restricted
Subsidiary and (y) a Wholly Owned Restricted Subsidiary may
engage in the foregoing transactions with another Wholly-
Owned Restricted Subsidiary.
(n) Equity Payments. Neither the Borrower nor
the Guarantor shall make an Equity Payment if there is then
continuing any Default or Event of Default (or a Default or
Event of Default would result therefrom or exist after
giving effect thereto); provided, however, that no such
Equity Payment by the Guarantor shall be made to the extent
that, after giving effect thereto, consolidated
stockholders' equity of the Guarantor (adjusted to exclude
the effect of extraordinary and unusual noncash items and
the Nonrestricted Subsidiaries) is less than $60,000,000.
(o) Scope of Borrower's and the Guarantor's
Business. As of the Effective Date, the Borrower and its
Restricted Subsidiaries (i) produce, purchase, process,
transport and sell elemental sulphur; (ii) produce and
process oil and gas and sell oil; and (iii) through a joint
venture, purchase, transport and sell sulphuric acid. The
Borrower, the Guarantor or the Restricted Subsidiaries may
expand its business into new areas associated with oil, gas,
sulphur, sulphuric acid and other related products,
including, without limitation, designing, building, owning
and operating sulphuric acid plants and sulphur recovery
units. The Borrower, the Guarantor and the Restricted
Subsidiaries shall not materially expand the nature of their
businesses from that described above.
ARTICLE VI
Conditions to Credit Events
SECTION 6.01. Conditions Precedent to Each Credit
Event. Each Credit Event shall be subject to the following
conditions precedent:
(i) the representations and warranties on the part
of the Borrower and the Guarantor contained in the Loan
Documents shall be true and correct in all material
respects at and as of the date of such Credit Event as
though made on and as of such date;
(ii) the Administrative Agent shall have received a
notice of such borrowing as required by Section 2.03;
(iii) no Event of Default shall have occurred and
be continuing on the date of such Credit Event or would
result after giving effect to such Credit Event;
(iv) the Loans to be made by the Lenders on such
date, and the use of the proceeds thereof and the
security arrangements contemplated hereby shall not
result in a violation of Regulation U or Regulation X,
as in effect on the date of such borrowing. If
required by Regulation U as a result of such use of
proceeds, the Borrower shall have delivered to the
Lenders a statement in conformity with the requirements
of Federal Reserve Form U-1 referred to in Regulation
U;
(v) there shall have been no amendments to the
articles of organization or operating agreement of the
Borrower or the certificate of incorporation or by-laws
of the Guarantor since the date of the Certificates
furnished by the Borrower and the Guarantor on the
Restatement Date, other than amendments, if any, copies
of which have been furnished to the Administrative
Agent; and
(vi) there shall be no proceeding for the
dissolution or liquidation of the Borrower or the
Guarantor or any proceeding to revoke (x) the articles
of organization of the Borrower or its limited
liability existence or (y) the certificate of
incorporation of the Guarantor or its corporate
existence, as applicable, which is pending or, to the
knowledge of the Borrower or the Guarantor, threatened
against or affecting either of them.
SECTION 6.02. Representations and Warranties with
Respect to Credit Events. Each Credit Event shall be deemed
a representation and warranty by the Borrower that the
conditions precedent to such Credit Event, unless otherwise
waived in accordance herewith, shall have been satisfied.
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. If any of the
following acts or occurrences (an "Event of Default") shall
occur and be continuing:
(a) default for three or more days in the payment
when due of any principal of any Loan;
(b) default for five or more days in the payment
when due of any interest on any Loan, or of any other
amount payable under the Loan Documents;
(c) any representation or warranty made or deemed
made in or in connection with any Loan Document or in
any certificate, letter or other writing or instrument
furnished or delivered to the Lenders or the Agents
pursuant to any Loan Document shall prove to have been
incorrect in any material respect when made or
effective or reaffirmed and repeated, as the case may
be;
(d) default by the Borrower or the Guarantor in
the due observance or performance of any covenant,
condition or agreement in Section 5.01(a)(i)(5) or
5.01(a)(ii)(4), respectively, with respect to notices
of Defaults or Events of Default, or Section 5.01(c) or
5.01(k), other than the covenant to preserve and
maintain all of the Borrower's and the Guarantor's
rights, privileges and franchises desirable in the
normal conduct of their respective businesses;
(e) default by the Borrower, the Guarantor or any
Restricted Subsidiary in the due observance or
performance of any covenant, condition or agreement in
Section 5.02 other than Section 5.02(i);
(f) default by the Borrower, the Guarantor or any
Restricted Subsidiary in the due observance or
performance of any other covenant, condition or
agreement in the Loan Documents which shall remain
unremedied for 30 days after written notice thereof
shall have been given to the Borrower by the
Administrative Agent or any Lender;
(g) either the Borrower, the Guarantor or any
Restricted Subsidiary shall (i) voluntarily commence
any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal
or state bankruptcy, insolvency, liquidation or similar
law, (ii) consent to the institution of, or fail to
contravene in a timely and appropriate manner, any
proceeding or the filing of any petition described in
clause (h) below, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian,
sequestrator or similar official for the Borrower, the
Guarantor or such Restricted Subsidiary or for a
substantial part of its property or assets, (iv) file
an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors,
(vi) become unable, admit in writing its inability or
fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any
of the foregoing;
(h) an involuntary proceeding shall be commenced
or an involuntary petition shall be filed in a court of
competent jurisdiction seeking (i) relief in respect of
the Borrower, the Guarantor or any Restricted
Subsidiary, or of a substantial part of the property or
assets of the Borrower, the Guarantor or any Restricted
Subsidiary, under Title 11 of the United States Code,
as now constituted or hereafter amended, or any other
Federal or state bankruptcy, insolvency, receivership
or similar law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator or similar official
for the Borrower, the Guarantor or any Restricted
Subsidiary or for a substantial part of the property of
the Borrower, the Guarantor or any Restricted
Subsidiary or (iii) the winding-up or liquidation of
the Borrower, the Guarantor or any Restricted
Subsidiary; and such proceeding or petition shall
continue undismissed for 60 days, or an order or decree
approving or ordering any of the foregoing shall
continue unstayed and in effect for 30 days;
(i) default shall be made with respect to (x) the
Pennzoil Obligations or (y) Hedge Agreements or (z) any
Debt of the Borrower, the Guarantor or any Restricted
Subsidiary if the effect of any such default shall be
to accelerate, or to permit the holder or obligee of
any such obligations or Debt (or any trustee on behalf
of such holder or obligee) to accelerate (with or
without notice or lapse of time or both), the maturity
of such Debt, the payment of any net termination value
in respect of Hedge Agreements and/or the payment of
the Pennzoil Obligations, as applicable, in an
aggregate amount in excess of $10,000,000; or any
payment, regardless of amount, of (A) net termination
value on any such obligation in respect of Hedge
Agreements, (B) any deferred purchase amount on the
Pennzoil Obligations and/or (C) any Debt of the
Borrower, the Guarantor or a Restricted Subsidiary, as
applicable, in an aggregate principal amount (or in the
case of a Hedge Agreement, net termination value) in
excess of $10,000,000, shall not be paid when due,
whether at maturity, by acceleration or otherwise
(after giving effect to any period of grace specified
in the instrument evidencing or governing such Debt or
other obligation);
(j) an ERISA Event shall have occurred with
respect to any Plan or Multi-Employer Plan that, when
taken together with all other ERISA Events, reasonably
could be expected to result in liability of the
Borrower, the Guarantor and/or any Restricted
Subsidiary and the Borrower's or the Guarantor's ERISA
Affiliates in an aggregate amount exceeding $25,000,000
or requires payments exceeding $10,000,000 in any year;
(k) one or more judgments for the payment of money
in an aggregate amount in excess of $10,000,000 shall
be rendered by a court or other tribunal against the
Borrower, the Guarantor or any Restricted Subsidiary
and shall remain undischarged for a period of
45 consecutive days during which execution of such
judgment shall not have been effectively stayed; or any
action shall be legally taken by a judgment creditor to
levy upon assets or properties of the Borrower, the
Guarantor or any Restricted Subsidiary to enforce any
such judgment;
(l) there shall have occurred a Change in Control;
or
(m) the termination of, or a material adverse
change (in the Agent's reasonable judgment) in the
terms of, the Sulphur Supply Agreement.
then, and in any such event (other than an event with
respect to the Borrower or the Guarantor described in clause
(g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and
at the request of the Required Lenders shall, by written,
telecopied, telex or telegraphic notice to the Borrower and
the Guarantor, take one or more of the following actions at
the same or different times: (i) declare the Total
Commitment to be terminated, whereupon the Total Commitment
shall forthwith terminate or (ii) declare the Loans and all
other sums then owing by the Borrower under the Loan
Documents to be forthwith due and payable, whereupon all the
principal of the Loans so declared to be due and payable,
together with accrued interest thereon and any unpaid
accrued fees and all other liabilities of the Borrower
accrued hereunder and under any other Loan Document, shall
become and be immediately due and payable without
presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower,
anything contained herein to the contrary notwithstanding;
provided, however, that upon the occurrence of any event
described in clause (g) or (h) of this Section 7.01 as to
which the Borrower or the Guarantor is the entity involved,
the Commitments will forthwith terminate and all sums then
owing by the Borrower to the Lenders on the Loans or
otherwise hereunder shall, without any declaration or other
action by any Lender or Agent hereunder, be immediately due
and payable and the Total Commitment hereunder shall be
immediately terminated without presentment, demand, protest
or other notice of any kind, all of which are expressly
waived by the Borrower, anything contained herein or in any
other Loan Document to the contrary notwithstanding.
Promptly following the making of any such declaration, the
Administrative Agent shall give notice thereof to the
Borrower and the Guarantor but failure to do so shall not
impair the effect of such declaration.
ARTICLE VIII
The Agents
(a) For convenience of administration and to
expedite the transactions contemplated by this Agreement,
Chase is hereby appointed as Administrative Agent and
Documentary Agent and Hibernia is appointed Co-Agent for the
Lenders under this Agreement. None of the Agents or Co-
Agent shall have any duties or responsibilities with respect
hereto except those expressly set forth herein or in the
other Loan Documents. Each Lender and its successors and
permitted assigns hereby irrevocably appoints and expressly
authorizes the Agents, without hereby limiting any implied
authority, to take such action as the Agents may deem
appropriate on its behalf and to exercise such powers under
this Agreement as are specifically delegated to such Person
by the terms hereof, together with such powers as are
reasonably incidental thereto. The Administrative Agent is
hereby expressly authorized by the Lenders, without hereby
limiting any implied authority, (a) to receive on behalf of
the Lenders all payments of principal of and interest on the
Loans and all other amounts due to the Lenders hereunder,
and promptly to distribute to each Lender its proper share
of each payment so received; (b) to give notice on behalf of
the Lenders to the Borrower and the Guarantor of any Event
of Default specified in this Agreement of which the
Administrative Agent has actual knowledge acquired in
connection with its agency hereunder or as directed by the
Required Lenders; and (c) to distribute to each Lender
copies of all notices, financial statements and other
materials delivered by the Borrower or the Guarantor
pursuant to this Agreement as received by the Administrative
Agent. The Co-Agent is hereby expressly authorized to
assist the Administrative Agent as requested by the
Administrative Agent.
(b) None of the Agents or any of their respective
directors, officers, agents or employees shall be liable as
such for any action taken or omitted to be taken by any of
them except for its or his own gross negligence or wilful
misconduct, or be responsible for any statement, warranty or
representation herein or the contents of any document
delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance
or observance by the Borrower, the Guarantor or any other
party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall
not be responsible to the Lenders for the due execution,
genuineness, validity, enforceability or effectiveness of
this Agreement or any other Loan Documents or other
instruments or agreements. The Agents shall in all cases be
fully protected in acting, or refraining from acting, in
accordance with written instructions signed by the Required
Lenders and, except as otherwise specifically provided
herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders and
each successor or permitted assign. Each Agent shall, in
the absence of knowledge to the contrary, be entitled to
rely on any instrument or document believed by it in good
faith to be genuine and correct and to have been signed or
sent by the proper Person or Persons. None of the Agents
nor any of their respective directors, officers, employees
or agents shall have any responsibility to the Borrower, the
Guarantor or any other party on account of the failure of or
delay in performance or breach by any Lender of any of its
obligations hereunder or to any Lender on account of the
failure of or delay in performance or breach by any other
Lender, the Borrower, the Guarantor or any other party of
any of their respective obligations hereunder or under any
other Loan Document or in connection herewith or therewith.
Each of the Agents may execute any and all duties hereunder
by or through agents or employees and shall be entitled to
rely upon the advice of legal counsel selected by it with
respect to all matters arising hereunder and shall not be
liable for any action taken or suffered in good faith by it
in accordance with the advice of such counsel. The Lenders
hereby acknowledge that none of the Agents shall be under
any duty to take any discretionary action permitted to be
taken by it pursuant to the provisions of this Agreement
unless it shall be requested in writing to do so by the
Required Lenders.
(c) To the extent that any Agent shall not be
reimbursed by the Borrower for any costs, liabilities or
expenses incurred in such capacity, each Lender agrees (i)
to reimburse the Agents, on demand (in the amount of its
Applicable Percentage hereunder) of any expenses incurred
for the benefit of the Lenders by the Agents, including
counsel fees and compensation of agents and employees paid
for services rendered on behalf of the Lenders and (ii) to
indemnify and hold harmless each Agent and any of its
directors, officers, employees or agents, on demand, in the
amount of such Applicable Percentage, from and against any
and all liabilities, taxes, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against it in its
capacity as Agent or any of them in any way relating to or
arising out of this Agreement or any other Loan Document or
any action taken or omitted by it or any of them under this
Agreement or any other Loan Document; provided, however,
that no Lender shall be liable to an Agent for any portion
of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or wilful
misconduct of such Agent or of its directors, officers,
employees or agents.
(d) With respect to the Loans made by it
hereunder, each Agent in its individual capacity and not as
Agent shall have the same rights and powers as any other
Lender and may exercise the same as though it were not an
Agent, and the Agents and their Affiliates may accept
deposits from, lend money to and generally engage in any
kind of business with the Borrower, the Guarantor or any of
their respective Subsidiaries or other Affiliates as if it
were not an Agent.
(e) Subject to the appointment and acceptance of
a successor Agent as provided below, any Agent may resign at
any time by giving written notice thereof to the Lenders,
the Borrower and the Guarantor. Upon any such resignation,
the Required Lenders shall have the right to appoint, and
the Borrower shall have the right to approve (such approval
not to be unreasonably withheld or delayed) a successor
Administrative Agent or Documentary Agent, as the case may
be. If no successor Agent or Documentary Agent, as the case
may be, shall have been so appointed and approved and shall
have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation, then the
retiring Person may, on behalf of the Lenders, appoint a
successor Administrative Agent or Documentary Agent, as the
case may be, which shall be a Lender with an office in New
York, New York, having a combined capital and surplus of at
least $500,000,000 or an Affiliate of any such Lender. Upon
the acceptance of any appointment as Administrative Agent or
Documentary Agent hereunder by a successor Administrative
Agent or Documentary Agent, as the case may be, such
successor Administrative Agent or Documentary Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Agent, and the
retiring Agent shall from and after such date be discharged
from its duties and obligations hereunder. After any such
retiring Agent's resignation hereunder as Administrative
Agent or Documentary Agent, as applicable, the provisions of
this Article VIII and Section 10.04 shall inure to its
benefit as to any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent or
Documentary Agent, as applicable.
(f) The Administrative Agent and the Documentary
Agent shall be responsible for supervising the preparation,
execution and delivery of this Agreement and the other
agreements and instruments contemplated hereby, any
amendment or modification thereto and the closing of the
transactions contemplated hereby and thereby.
(g) The obligations of the Administrative Agent
and the Documentary Agent shall be separate and several and
neither of them shall be responsible or liable for the acts
or omissions of the other, except, to the extent that any
such Agent serves in more than one agent capacity, such
Agent shall be responsible for the acts and omissions
relating to each such agency function.
(h) Each Lender acknowledges that it has,
independently and without reliance upon the Agents or any
other Lender and based on such documents and information as
it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without
reliance upon the Agents or any other Lender and based on
such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this
Agreement or any other Loan Document, any related agreement
or any document furnished hereunder or thereunder.
ARTICLE IX
Guarantee
SECTION 9.01. Guarantee. The Guarantor
unconditionally guarantees as a primary obligor and not
merely as a surety (a) the due and punctual payment of
(i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in
such proceeding) on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for
prepayment or otherwise and (ii) all other monetary
obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent,
fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receiver-
ship or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), of the Borrower to
the Lenders, the Agents and the Co-Agent under this
Agreement and the other Loan Documents, (b) the due and
punctual performance of all covenants, agreements,
obligations and liabilities of the Borrower under or
pursuant to this Agreement and the other Loan Documents and
(c) the due and punctual payment and performance of all
obligations of the Borrower, monetary or otherwise, under
each Hedging Agreement entered into with any counterparty
that was a Lender (or an Affiliate thereof) at the time such
Hedging Agreement was entered into (all the monetary and
other obligations referred to in the preceding clauses (a)
through (c) being collectively called the "Obligations").
The Guarantor further agrees that the Obligations may be
extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound
upon its guarantee notwithstanding any extension or renewal
of any Obligation.
SECTION 9.02. Obligations Not Waived. To the fullest
extent permitted by applicable law, the Guarantor waives
presentment to, demand of, payment from and protest to the
Borrower of any of the Obligations, and also waives notice
of acceptance of its guarantee and notice of protest for
nonpayment. To the fullest extent permitted by applicable
law, the obligations of the Guarantor hereunder shall not be
affected by (a) the failure of the Lenders, the Agents or
the Co-Agent to assert any claim or demand or to enforce or
exercise any right or remedy against the Borrower under the
provisions of this Agreement, any other Loan Document or
otherwise or (b) any rescission, waiver, amendment or
modification of, or any release from any of the terms or
provisions of this Agreement, any other Loan Document, any
Guarantee or any other agreement.
SECTION 9.03. Guarantee of Payment. The Guarantor
further agrees that its guarantee constitutes a guarantee of
payment when due and not of collection, and waives any right
to require that any resort be had by the Lenders, the Agents
or the Co-Agent to any security held for payment of the
Obligations or to any balance of any deposit account or
credit on the books of the Lenders, the Agents or the Co-
Agent in favor of the Borrower or any other Person.
SECTION 9.04. No Discharge or Diminishment of
Guarantee. The obligations of the Guarantor hereunder shall
not be subject to any reduction, limitation, impairment or
termination for any reason (other than the indefeasible
payment in full in cash of the Obligations), including any
claim of waiver, release, surrender, alteration or
compromise of any of the Obligations, and shall not be
subject to any defense or setoff, counterclaim, recoupment
or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the
foregoing, the obligations of the Guarantor hereunder shall
not be discharged or impaired or otherwise affected by the
failure of the Lenders, the Agents or the Co-Agent to assert
any claim or demand or to enforce any remedy under this
Agreement, any other Loan Document or any other agreement,
by any waiver or modification of any provision of any
thereof, by any default, failure or delay, wilful or
otherwise, in the performance of the Obligations, or by any
other act or omission that may or might in any manner or to
any extent vary the risk of the Guarantor or that would
otherwise operate as a discharge of the Guarantor as a
matter of law or equity (other than the indefeasible payment
in full in cash of all the Obligations).
SECTION 9.05. Defenses of Borrower Waived. To the
fullest extent permitted by applicable law, the Guarantor
waives any defense based on or arising out of any defense of
the Borrower or the unenforceability of the Obligations or
any part thereof from any cause, or the cessation from any
cause of the liability of the Borrower, other than the final
and indefeasible payment in full in cash of the Obligations.
The Lenders, the Agents and the Co-Agent may, at their
election, foreclose on any security held by one or more of
them by one or more judicial or nonjudicial sales, accept an
assignment of any such security in lieu of foreclosure,
compromise or adjust any part of the Obligations, make any
other accommodation with the Borrower or any other guarantor
or exercise any other right or remedy available to them
against the Borrower or any other guarantor, without
affecting or impairing in any way the liability of the
Guarantor hereunder except to the extent the Obligations
have been fully, finally and indefeasibly paid in cash.
Pursuant to applicable law, the Guarantor waives any defense
arising out of any such election even though such election
operates, pursuant to applicable law, to impair or to
extinguish any right of reimbursement or subrogation or
other right or remedy of the Guarantor against the Borrower
or any other guarantor, as the case may be, or any security.
SECTION 9.06. Agreement to Pay; Subordination. In
furtherance of the foregoing and not in limitation of any
other right that the Lenders, the Agents or the Co-Agent has
at law or in equity against the Guarantor by virtue hereof,
upon the failure of the Borrower to pay any Obligation when
and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, the
Guarantor hereby promises to and will forthwith pay, or
cause to be paid, to the Administrative Agent, or the
Documentary Agent, any of the Lenders or the Co-Agent as
designated by the Administrative Agent, in cash the amount
of such unpaid Obligations. Upon payment by the Guarantor
of any sums to the Administrative Agent or such other party
as provided above, all rights of the Guarantor against the
Borrower arising as a result thereof by way of right of
subrogation, contribution, reimbursement, indemnity or
otherwise shall in all respects be subordinate and junior in
right of payment to the prior indefeasible payment in full
in cash of all the Obligations. In addition, any
indebtedness of the Borrower now or hereafter held by the
Guarantor is hereby subordinated in right of payment to the
prior payment in full of the Obligations. If any amount
shall erroneously be paid to the Guarantor on account of
(i) such subrogation, contribution, reimbursement, indemnity
or similar right or (ii) any such indebtedness of the
Borrower, such amount shall be held in trust for the benefit
of the Lenders, the Agents and the Co-Agent and shall
forthwith be paid to the Administrative Agent to be credited
against the payment of the Obligations, whether matured or
unmatured, in accordance with the terms of the Loan
Documents.
SECTION 9.07. Information. The Guarantor assumes all
responsibility for being and keeping itself informed of the
Borrower's financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the
Obligations and the nature, scope and extent of the risks
that the Guarantor assumes and incurs hereunder, and agrees
that none of the Administrative Agent, the Documentary
Agent, the Lenders or the Co-Agent will have any duty to
advise the Guarantor of information known to it or any of
them regarding such circumstances or risks.
SECTION 9.08. Termination. The guarantee made in this
Article IX by the Guarantor (a) shall terminate when all the
Obligations have been indefeasibly paid in full and the
Lenders have no further commitment to lend under this
Agreement and (b) shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or
any part thereof, of any Obligation is rescinded or must
otherwise be restored by any of the Lenders, the Agents or
the Co-Agent upon the bankruptcy or reorganization of the
Borrower or otherwise.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Notices and other
communications provided for herein shall be in writing and
shall be delivered by hand or overnight or same day courier
service or mailed or sent by telex, telecopy, graphic
scanning or other telegraphic communications equipment of
the sending party to the appropriate party's address set
forth on the signature pages hereof. All notices and other
communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have
been given on the date of receipt if hand delivered or
delivered by any telecopy, telegraphic or telex
communications equipment or three days after being sent by
registered or certified mail, postage prepaid, return
receipt requested, in each case addressed to such party as
provided in this Section 10.01 or in accordance with the
latest unrevoked direction from such party.
SECTION 10.02. Survival of Agreement. All
covenants, agreements, representations and warranties made
by the Borrower and the Guarantor herein and in the
certificates or other instruments prepared or delivered in
connection with this Agreement or any other Loan Document
shall be considered to have been relied upon by the Lenders
and the Agents and shall survive the making by the Lenders
of the Loans regardless of any investigation made by the
Lenders or on their behalf, and shall continue in full force
and effect as long as the principal of or any accrued
interest on any Loan hereunder, any Commitment Fee or any
other fee or amount payable under the Loan Documents is
outstanding and unpaid and so long as the Commitments have
not been terminated.
SECTION 10.03. Successors and Assigns;
Participation; Purchasing Lenders. (a) This Agreement
shall be binding upon and inure to the benefit of the
Borrower, the Guarantor, the Lenders, the Agents and their
respective successors and assigns, except that neither the
Borrower nor the Guarantor may assign, delegate or transfer
any of its rights or obligations under this Agreement
without the prior written consent of each Lender. Any
Lender may at any time pledge or assign all or any portion
of its rights under this Agreement to a Federal Reserve Bank
to secure extensions of credit by such Federal Reserve Bank
to such Lender; provided that no such pledge or assignment
shall release a Lender from any of its obligations hereunder
or substitute any such Federal Reserve Bank for such Lender
as a party hereto.
(b) Any Lender may, in accordance with applicable
law, at any time sell to one or more banks or other entities
("Participants") participating interests in all or a portion
of any Loan owing to such Lender, any Commitment of such
Lender or any other interest of such Lender hereunder. In
the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under
this Agreement to the other parties to this Agreement shall
remain unchanged, such Lender shall remain solely
responsible for the performance thereof and the Borrower,
the Guarantor and the Agents shall continue to deal solely
and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Each
of the Borrower and the Guarantor agrees that if amounts
outstanding under this Agreement are due and unpaid, or
shall have been declared due or shall have become due and
payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in
respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender
under this Agreement; provided that such right of setoff
shall be subject to the obligation of such Participant to
share with the Lenders, and the Lenders agree to share with
such Participant, as provided in Section 2.15. The Borrower
also agrees that each Participant shall be entitled to the
benefits of Sections 2.11, 2.12, 2.13, 2.15, 2.17 and 10.05
with respect to its participation in the Commitments and the
Loans outstanding from time to time as if it were a Lender;
provided that no Participant shall be entitled to receive
any greater payment pursuant to such Sections than the
transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by
such transferor Lender to such Participant unless such
participation shall have been made at a time when the
circumstances giving rise to such greater payment did not
exist; and provided that the voting rights of any
Participant would be limited to amendments, modifications or
waivers decreasing any fees payable hereunder or the amount
of principal of or the rate at which interest is payable on
the Loans, extending any scheduled principal payment date or
date fixed for the payment of interest on the Loans or
changing or extending the Commitments.
(c) Any Lender may, in accordance with applicable
law and subject to Section 10.03(h), at any time assign by
novation all or any part of its rights and obligations under
this Agreement (including all or a portion of its Commitment
and the Loans at the time owing to it) (I) to any Lender or
any Affiliate thereof, without the Borrower's consent, or
(II) to one or more additional banks or financial
institutions (any such entity referred to in clause (I) or
(II) being a "Purchasing Lender") with the consent of the
Administrative Agent and the Borrower, such consent not to
be unreasonably withheld (it being understood that the
Borrower may withhold its consent to a Purchasing Lender (i)
which is not a commercial bank or savings and loan
institution or (ii) which would, as of the effective date of
such assignment, be entitled to claim compensation under
Section 2.11 which the transferor Lender would not be
entitled to claim as of such date), pursuant to a Commitment
Transfer Supplement in the form of Exhibit B, executed by
such Purchasing Lender and such transferor Lender (and, in
the case of a Purchasing Lender that is not then a Lender or
an Affiliate thereof, by the Borrower and the Administrative
Agent), and delivered for its recording in the Register to
the Administrative Agent, together with the registration and
processing fee required by Section 10.03(e) and an
Administrative Questionnaire for the Purchasing Lender if it
is not already a Lender. Assignments shall be by novation
only and a proportionate interest in the Loans and
Commitments to the Borrower must be assigned. Upon such
execution, delivery and recording (and, if required, consent
of the Borrower and the Administrative Agent), from and
after the Transfer Effective Date determined pursuant to
such Commitment Transfer Supplement (which shall be at least
five days after the execution and delivery thereof), (x) the
Purchasing Lender thereunder shall (if not already a party
hereto) be a party hereto and have the rights and
obligations of a Lender hereunder with a Commitment as set
forth in such Commitment Transfer Supplement, and (y) the
transferor Lender thereunder shall, to the extent assigned
by such Commitment Transfer Supplement, be released from its
obligations under this Agreement (and, in the case of a
Commitment Transfer Supplement covering all or the remaining
portion of a transferor Lender's rights and obligations
under this Agreement, such transferor Lender shall cease to
be a party hereto). Such Commitment Transfer Supplement
shall be deemed to amend this Agreement (including Schedule
II hereto) to the extent, and only to the extent, necessary
to reflect the addition of such Purchasing Lender (if not
already a party hereto) and the resulting adjustment of
Applicable Percentages arising from the purchase by such
Purchasing Lender of all or a portion of the rights and
obligations of such transferor Lender under this Agreement.
(d) The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at
one of its offices in The City of New York a copy of each
Commitment Transfer Supplement delivered to it and a
register (the "Register") for the recordation of the names
and addresses of the Lenders and the Commitment of, and
principal amount of the Loans owing to, each Lender from
time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the
parties hereto may treat each Person whose name is recorded
in the Register as the owner of the Loan recorded therein
for all purposes of this Agreement. The Register shall be
available for inspection by the parties hereto at any
reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of a Commitment Transfer
Supplement executed by a transferor Lender and a Purchasing
Lender (and, in the case of a Purchasing Lender that is not
then a Lender or an Affiliate thereof, by the Borrower, the
Guarantor and the Administrative Agent) together with
payment to the Administrative Agent of a registration and
processing fee of $3,500, the Administrative Agent shall
(i) promptly accept such Commitment Transfer Supplement and
(ii) on the Transfer Effective Date determined pursuant
thereto record the information contained therein in the
Register and give notice of such acceptance and recordation
to the Lenders, the Borrower and the Guarantor.
(f) Subject to Section 10.15, each of the
Borrower and the Guarantor authorizes each Lender to
disclose to any Participant or Purchasing Lender (each, a
"Transferee") and any prospective Transferee any and all
financial and other information in such Lender's possession
concerning the Borrower, the Guarantor and their respective
Affiliates which has been delivered to such Lender by or on
behalf of the Borrower or the Guarantor pursuant to this
Agreement or which has been delivered to such Lender by or
on behalf of the Borrower or the Guarantor in connection
with such Lender's credit evaluation of the Borrower, the
Guarantor and their respective Affiliates prior to becoming
a party to this Agreement.
(g) If, pursuant to this Section 10.03, any
interest in this Agreement is transferred to any Transferee
which is organized under the laws of any jurisdiction other
than the United States or any State thereof, the transferor
Lender shall immediately notify the Administrative Agent of
such transfer, describing the terms thereof and indicating
the identity and country of residence of each Transferee.
Such transferor Lender or Transferee shall indemnify and
hold harmless the Borrower, the Guarantor and the
Administrative Agent from and against any tax, interest,
penalty or other expense that the Borrower and the
Administrative Agent may incur as a consequence of any
failure to withhold United States taxes applicable because
of any transfer or participation arrangement that is not
fully disclosed to them as required hereunder.
(h) By executing and delivering a Commitment
Transfer Supplement, the transferor Lender thereunder and
the Purchasing Lender thereunder shall be deemed to confirm
to and agree with each other and the other parties hereto as
follows: (i) such transferor Lender warrants that it is the
legal and beneficial owner of the interest being assigned
thereby free and clear of any adverse claim and that its
Commitment, and the outstanding balance of its Loans, in
each case without giving effect to assignments thereof which
have not become effective, are as set forth in such
Commitment Transfer Supplement; (ii) except as set forth in
(i) above, such transferor Lender makes no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value
of this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto, or the
financial condition of the Borrower, the Guarantor or any of
their respective Subsidiaries or the performance or
observance by the Borrower, the Guarantor or any of their
respective Subsidiaries of any of its obligations under this
Agreement, any other Loan Document or any other instrument
or document furnished pursuant hereto; (iii) such Purchasing
Lender represents and warrants that it is legally authorized
to enter into such Commitment Transfer Supplement; (iv) such
Purchasing Lender confirms that it has received a copy of
this Agreement, together with copies of the most recent
financial statements, if any, delivered pursuant to
Section 5.01 and such other documents and information as it
has deemed appropriate to make its own credit analysis and
decision to enter into such Commitment Transfer Supplement;
(v) such Purchasing Lender will independently and without
reliance upon the Agents, such transferor Lender or any
other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under
this Agreement; (vi) such Purchasing Lender appoints and
authorizes the Agents to take such action as agent on its
behalf and to exercise such respective powers under this
Agreement and the other Loan Documents as are delegated to
the Agents by the terms hereof, together with such powers as
are reasonably incidental thereto; and (vii) such Purchasing
Lender agrees that it will perform in accordance with their
terms all the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
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SECTION 10.04. Expenses of the Lenders;
Indemnity. (a) The Borrower agrees to pay all out-of-pocket
expenses reasonably incurred by the Agents in connection
with the preparation and administration of this Agreement
and the other Loan Documents or with any amendments,
modifications or waivers of the provisions hereof or thereof
(whether or not the transactions hereby contemplated shall
be consummated) or reasonably incurred by the Agents or any
Lender in connection with the enforcement or protection of
their rights in connection with this Agreement and the other
Loan Documents or with the Loans made hereunder (whether
through negotiations, legal proceedings or otherwise),
including, but not limited to, the reasonable fees and
disbursements of Cravath, Swaine & Xxxxx, special counsel
for the Agents, and, in connection with such enforcement or
protection, the reasonable fees and disbursements of other
counsel for any Lender. The Borrower further agrees that
they shall indemnify the Lenders and the Agents from and
hold them harmless against any documentary taxes,
assessments or charges made by any Governmental Authority by
reason of the execution and delivery of or in connection
with the performance of this Agreement or any of the other
Loan Documents. Further, the Borrower agrees to pay, and to
protect, indemnify and save harmless each Lender, each
Agent, the Co-Agent and each of their respective officers,
directors, stockholders, employees, agents and servants from
and against, any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments,
demands, damages, costs or expenses (including, without
limitation, attorneys' fees and expenses) in connection with
any investigative, administrative or judicial proceeding,
whether or not such Lender, Agent or Co-Agent shall be
designated a party thereto of any nature arising from or
relating to (i) the execution or delivery of this Agreement
or any other Loan Document or any agreement or instrument
contemplated thereby, the performance by the parties thereto
of their respective obligations thereunder or the
consummation of the transactions contemplated hereby and
thereby (including the Spin-Off and the Mergers) or (ii) the
use of the proceeds of the Loans; and the Borrower also
agrees to pay, and to protect, indemnify and save harmless
each Lender, each Agent, the Co-Agent and each of their
respective officers, directors, stockholders, employees,
agents and servants from and against, any and all losses,
liabilities (including liabilities for penalties), actions,
suits, judgments, demands, damages, costs or expenses
(including, without limitation, attorneys' fees and expenses
in connection with any investigative, administrative or
judicial proceeding, whether or not such Lender, Agent or
Co-Agent shall be designated a party thereto) of any nature
arising from or relating to any actual or alleged presence
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or Release or threatened Release of Hazardous Materials on
any of the Properties or any Environmental Claim related in
any way to the Borrower, the Guarantor or their respective
Subsidiaries; provided that any such indemnity referred to
in this sentence shall not, as to any indemnified Person, be
available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment
to have resulted from the gross negligence or wilful
misconduct of such indemnified Person. If any action, suit
or proceeding arising from any of the foregoing is brought
against any Lender, Agent or other Person indemnified or
intended to be indemnified pursuant to this Section 10.04,
the Borrower, to the extent and in the manner directed by
such indemnified party, shall resist and defend such action,
suit or proceeding or cause the same to be resisted and
defended by counsel designated by the Borrower (which
counsel shall be satisfactory to such Lender, Agent or other
Person indemnified or intended to be indemnified). If the
Borrower shall fail to do any act or thing which it has
covenanted to do hereunder or any representation or warranty
on the part of the Borrower contained in this Agreement
shall be breached, any Lender or Agent may (but shall not be
obligated to) do the same or cause it to be done or remedy
any such breach, and may expend its funds for such purpose.
Any and all amounts so expended by any Lender or Agent
shall be repayable to it by the Borrower immediately upon
such Lender's or such Agent's demand therefor.
(b) The provisions of this Section 10.04 shall
remain operative and in full force and effect regardless of
the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby or
thereby, the repayment of any of the Loans, the invalidity
or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation
made by or on behalf of any Lender or any Agent. All
amounts due under this Section 10.04 shall be payable on
written demand therefor.
SECTION 10.05. Right of Setoff. If an Event of
Default shall have occurred and be continuing and the Loans
shall have been accelerated or any Lender shall have
requested the Administrative Agent to declare the Loans
immediately due and payable pursuant to Article VII, then
each Lender is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower or the Guarantor, as
applicable, against any of and all the obligations of the
Borrower or the Guarantor, as applicable, now or hereafter
existing under this Agreement, irrespective of whether or
not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured.
Each Lender agrees promptly to notify the Borrower or the
Guarantor, as applicable, after any such setoff and
application made by such Lender, but the failure to give
such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section
10.05 are in addition to other rights and remedies
(including, without limitation, other rights of setoff)
which such Lender may have.
SECTION 10.06. APPLICABLE LAW. THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
SECTION 10.07. Waivers; Amendments. (a) No
failure or delay of any Lender or Agent in exercising any
power or right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further
exercise thereof or the exercise of any other right or
power. The rights and remedies of the Lenders and the
Agents hereunder and under the other documents and
agreements entered into in connection herewith are
cumulative and not exclusive of any rights or remedies which
they would otherwise have. No waiver of any provision of
this Agreement, any other Loan Document or any other such
document or agreement or consent to any departure by the
Borrower or the Guarantor therefrom shall in any event be
effective unless the same shall be authorized as provided in
paragraph (b) below, and then such waiver or consent shall
be effective only in the specific instance and for the
purpose for which given. No notice or demand on the
Borrower or the Guarantor in any case shall entitle the
Borrower or the Guarantor, as the case may be, to any other
or further notice or demand in similar or other
circumstances.
(b) This Agreement (including any provision
hereof or thereof) may not be waived, amended or modified
except pursuant to an agreement or agreements in writing
entered into by the Borrower, the Guarantor and the Required
Lenders; provided, however, that no such agreement shall (i)
change the principal amount of, or extend or advance the
maturity of or any date for the payment (other than pursuant
to Section 2.07(b), which may be amended by the Required
Lenders) of any principal of or interest on, any Loan
(including, without limitation, any such payment pursuant to
Section 2.07(c) or paragraph (a) or (b) of Section 2.09), or
waive or excuse any such payment or any part thereof, or
change the rate of interest on any Loan, without the written
consent of each holder affected thereby, (ii) change or
extend the Commitment of any Lender without the written
consent of such Lender, or change any fees to be paid to any
Lender or Agent hereunder without the written consent of
such Lender or the Agent, as applicable, (iii) amend or
modify the provisions of this Section 10.07, Sections 2.08
through 2.15 or Section 10.04 or the definition of "Required
Lenders", without the written consent of each Lender or (iv)
release the Guarantor from its guarantee pursuant to
Article IX (except as expressly provided in Article IX), or
limit its liability in respect of such guarantee, without
the written consent of each Lender; and provided further
that no such agreement shall amend, modify or otherwise
affect the rights or duties of an Agent hereunder without
the written consent of such Agent.
SECTION 10.08. Severability. In the event any
one or more of the provisions contained in this Agreement
should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall not
in any way be affected or impaired thereby. The parties
shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 10.09. Counterparts. This Agreement may
be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together
shall constitute but one contract, and shall become
effective when copies hereof which, when taken together,
bear the signatures of each of the parties hereto shall be
delivered or mailed to the Administrative Agent and the
Borrower.
SECTION 10.10. Headings. Article and Section
headings and the table of contents included herein are for
convenience of reference only and are not to affect the
construction of, or to be taken into consideration in
interpreting, this Agreement.
SECTION 10.11. Entire Agreement. This Agreement,
the other Loan Documents, the fee letters between the Agents
and the Borrower and the exhibits and schedules hereto
contain the entire agreement among the parties hereto with
respect to the Loans and the related transactions. Any
previous agreement among the parties with respect to the
subject matter hereof is superseded by this Agreement, such
fee letters and the other Loan Documents. Nothing in this
Agreement or in the other Loan Documents, expressed or
implied, is intended to confer upon any party other than the
parties hereto any rights, remedies, obligations or
liabilities under or by reason of this Agreement or the
other Loan Documents.
SECTION 10.12. WAIVER OF JURY TRIAL, ETC. (A)
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.12.
(b) Except as prohibited by law, each party
hereto hereby waives any right it may have to claim or
recover in any litigation referred to in paragraph (a) of
this Section 10.12 any special, indirect, exemplary,
punitive or consequential damages or any damages other than,
or in addition to, actual damages.
(c) Each party hereto (i) certifies that no
representative, agent or attorney of any Lender has
represented, expressly or otherwise, that such Lender would
not, in the event of litigation, seek to enforce the
foregoing waivers and (ii) acknowledges that it has been
induced to enter into this Agreement or any other document,
as applicable, by, among other things, the mutual waivers
and certifications herein.
SECTION 10.13. Interest Rate Limitation.
Notwithstanding anything herein to the contrary, if at any
time the interest rate applicable to any Loan, together with
all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively,
the "Charges"), as provided for herein or in any other
document executed in connection herewith, or otherwise
contracted for, charged, received, taken or reserved by any
Lender, shall exceed the maximum lawful rate (the "Maximum
Rate") which may be contracted for, charged, taken, received
or reserved by such Lender in accordance with applicable
law, the rate of interest in respect of such Loan hereunder,
together with all Charges payable to such Lender, shall be
limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect
of such Loan but were not payable as a result of the
operation of this Section 10.13 shall be cumulated and the
interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the
Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to
the date of repayment, shall have been received by such
Lender.
SECTION 10.14. JURISDICTION; CONSENT TO SERVICE
OF PROCESS. (A) EACH OF THE BORROWER AND THE GUARANTOR
HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF
AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY
NEW YORK STATE COURT OR FEDERAL COURT OF THE UNITED STATES
OF AMERICA SITTING IN NEW YORK CITY, AND ANY APPELLATE COURT
FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY, OR FOR RECOGNITION OR ENFORCEMENT OF
ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT
PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED
IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY
OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT
SHALL AFFECT ANY RIGHT THAT ANY LENDER OR AGENT MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
AGAINST THE BORROWER OR THE GUARANTOR OR THEIR RESPECTIVE
PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(B) EACH OF THE BORROWER AND THE GUARANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN
ANY NEW YORK STATE OR FEDERAL COURT. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO
THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.
(C) EACH PARTY TO THIS AGREEMENT IRREVOCABLY
CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 10.01. NOTHING IN THIS AGREEMENT WILL
AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 10.15. Confidentiality. Each Lender
agrees (which agreement shall survive the termination of
this Agreement) that financial information, information from
the Guarantor's, the Borrower's and their respective
Subsidiaries' books and records, information concerning the
Borrower's, the Guarantor's and their respective
Subsidiaries' trade secrets and patents and any other
information received from the Borrower and its Subsidiaries
hereunder shall be treated as confidential by such Lender,
and each Lender agrees to use its best efforts to ensure
that such information is not published, disclosed or
otherwise divulged to anyone other than employees or
officers of such Lender and its counsel and agents; provided
that it is understood that the foregoing shall not apply to:
(i) disclosure made with the prior written
authorization of the Borrower or the Guarantor, as
applicable;
(ii) disclosure of information (other than that
received from the Borrower, the Guarantor and their
respective Subsidiaries prior to or under this
Agreement) already known by, or in the possession of,
such Lender without restrictions on the disclosure
thereof at the time such information is supplied to
such Lender by the Borrower, the Guarantor or their
respective Subsidiaries hereunder;
(iii) disclosure of information which is required
by applicable law or to a governmental agency having
supervisory or regulatory authority over any party
hereto;
(iv) disclosure of information in connection with
any suit, action or proceeding in connection with the
enforcement of rights hereunder or under the other Loan
Documents or in connection with the transactions
contemplated hereby or thereby;
(v) disclosure to any bank (or other financial
institution) which may acquire a participation or other
interest in the Loans or rights of any Lender
hereunder; provided that such bank (or other financial
institution) agrees to maintain any such information to
be received in accordance with the provisions of this
Section 10.15;
(vi) disclosure by any party hereto to any other
party hereto or their counsel or agents;
(vii) disclosure by any party hereto to any entity,
or to any Subsidiary of such an entity, which owns,
directly or indirectly, more than 50% of the voting
stock of such party, or to any Subsidiary of such an
entity; or
(viii) disclosure of information that prior to such
disclosure has become public knowledge through no
violation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above
written.
FREEPORT-McMoRan SULPHUR LLC,
by
Name:
Title:
ADDRESS FOR NOTICES:
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
President
Telephone: 000-000-0000
Telecopy: 000-000-0000
McMoRan EXPLORATION CO., as
Guarantor,
by
________________________
Name:
Title:
ADDRESS FOR NOTICES:
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Executive Vice
President and Chief
Financial Officer
Telephone: 000-000-0000
Telecopy: 000-000-0000
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent and Documentary Agent,
by
Name:
Title:
ADDRESS FOR NOTICES:
Loan & Agency Services
One Chase Xxxxxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
With a copy to:
Xxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
HIBERNIA NATIONAL BANK,
by
Name:
Title:
ADDRESS FOR NOTICES:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
BANK OF MONTREAL,
by
Name:
Title:
ADDRESS FOR NOTICES:
000 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
THE BANK OF NOVA SCOTIA,
by
Name:
Title:
ADDRESS FOR NOTICES:
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
THE BANK OF TOYKO-MITSUBISHI, LTD.,
HOUSTON AGENCY,
by
Name:
Title:
ADDRESS FOR NOTICES:
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
FIRST NATIONAL BANK OF COMMERCE,
by
Name:
Title:
ADDRESS FOR NOTICES:
000 Xx. Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
THE FUJI BANK LIMITED-HOUSTON
AGENCY,
by
Name:
Title:
ADDRESS FOR NOTICES:
0000 XxXxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
MELLON BANK, N.A.,
by
Name:
Title:
ADDRESS FOR NOTICES:
Three Mellon Bank Center
Room 1203
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
SCHEDULE I
APPLICABLE MARGIN FOR LOANS
AND COMMITMENT FEES
Debt to EBITDA LIBOR ABR Commitment Fee
Leverage Ratio Spread* Spread* Percentage
Below 2.5x 0.300% 0.000% 0.200%
2.5x - 3.5x 0.375% 0.000% 0.250%
Above 3.5x 0.500% 0.000% 0.375%
* At any time when more than $50,000,000 is borrowed under
this Agreement, the applicable spread shall be increased by
0.125%.
SCHEDULE II
LENDER COMMITMENTS
Lender Applicable Commitment
Percentage
THE CHASE MANHATTAN BANK 15% $15,000,000
HIBERNIA NATIONAL BANK 15% 15,000,000
THE BANK OF MONTREAL 12% 12,000,000
THE BANK OF NOVA SCOTIA 12% 12,000,000
THE BANK OF TOKYO-MITSUBISHI,
LTD., HOUSTON AGENCY 12% , 12,000,000
FIRST NATIONAL BANK OF 10% 10,000,000
COMMERCE
THE FUJI BANK LIMITED-HOUSTON
AGENCY 12% 12,000,000
MELLON BANK, N.A. 12% 12,000,000
TOTAL: 100% $100,000,000
SCHEDULE III
RESTRICTED SUBSIDIARIES
None.
NONRESTRICTED SUBSIDIARIES
McMoRan Oil & Gas LLC
SCHEDULE IV
GOVERNMENTAL APPROVALS
None.
