Exhibit 10.11
EXECUTION COPY
U.S. $500,000,000
FIVE YEAR CREDIT AGREEMENT
Dated as of August 8, 2000
Among
MONSANTO COMPANY
and
PHARMACIA CORPORATION
as Borrowers,
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THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders,
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CITIBANK, N.A.
as Administrative Agent,
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THE CHASE MANHATTAN BANK
as Syndication Agent,
-- ----------- -----
COMMERZBANK AG NEW YORK AND GRAND CAYMAN BRANCHES
and
BANK ONE, NA
as Co-Documentation Agents
-- ---------------- ------
and
XXXXXXX XXXXX XXXXXX INC. and CHASE SECURITIES INC.
as Co-Lead Arrangers and Joint Book Managers
-- ------- --------- --- ----- ---- --------
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms............................................. 1
SECTION 1.02. Computation of Time Periods....................................... 11
SECTION 1.03. Accounting Terms.................................................. 11
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances..................................... 12
SECTION 2.02. Making the Revolving Credit Advances.............................. 12
SECTION 2.03. The Competitive Bid Advances...................................... 13
SECTION 2.04. Fees.............................................................. 15
SECTION 2.05. Termination or Reduction of the Commitments....................... 16
SECTION 2.06. Repayment of Revolving Credit Advances............................ 16
SECTION 2.07. Interest on Revolving Credit Advances; Regulation D Compensation.. 16
SECTION 2.08. Interest Rate Determination....................................... 17
SECTION 2.09. Optional Conversion of Revolving Credit Advances.................. 17
SECTION 2.10. Optional Prepayments of Revolving Credit Advances................. 18
SECTION 2.11. Increased Costs................................................... 18
SECTION 2.12. Illegality........................................................ 19
SECTION 2.13. Payments and Computations......................................... 20
SECTION 2.14. Taxes............................................................. 21
SECTION 2.15. Sharing of Payments, Etc.......................................... 22
SECTION 2.16. Use of Proceeds................................................... 23
SECTION 2.17. Extension of Termination Date..................................... 23
SECTION 2.18. Evidence of Debt.................................................. 24
i
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03............. 25
SECTION 3.02. Conditions Precedent to Monsanto Effective Date............................. 26
SECTION 3.03. Conditions Precedent to Each Revolving Credit Borrowing and Extension Date.. 27
SECTION 3.04. Conditions Precedent to Each Competitive Bid Borrowing...................... 27
SECTION 3.05. Determinations Under Sections 3.01 and 3.02................................. 28
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers............................. 28
SECTION 4.02. Representation and Warranty of the Lenders.................................. 29
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants....................................................... 29
SECTION 5.02. Negative Covenants.......................................................... 30
SECTION 5.03. Financial Covenant.......................................................... 32
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default........................................................... 32
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action.................................................... 33
SECTION 7.02. Agent's Reliance, Etc....................................................... 34
SECTION 7.03. Citibank and Affiliates..................................................... 34
SECTION 7.04. Lender Credit Decision...................................................... 34
SECTION 7.05. Indemnification............................................................. 34
SECTION 7.06. Successor Agent............................................................. 35
SECTION 7.07. Other Agents................................................................ 35
ii
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc............................................................ 35
SECTION 8.02. Notices, Etc............................................................... 35
SECTION 8.03. No Waiver; Remedies........................................................ 35
SECTION 8.04. Costs and Expenses......................................................... 36
SECTION 8.05. Right of Set-off........................................................... 36
SECTION 8.06. Binding Effect............................................................. 37
SECTION 8.07. Assignments and Participations............................................. 37
SECTION 8.08. Confidentiality............................................................ 39
SECTION 8.09. Governing Law.............................................................. 39
SECTION 8.10. Execution in Counterparts.................................................. 39
SECTION 8.11. Jurisdiction, Etc.......................................................... 39
SECTION 8.12. Resignation of Pharmacia as Borrower....................................... 39
SECTION 8.13. Waiver of Jury Trial....................................................... 39
Schedules
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Schedule I - List of Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
Exhibits
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Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Assumption Agreement
Exhibit E - Form of Notice of Extension of Termination Date
iii
FIVE YEAR CREDIT AGREEMENT
Dated as of August 8, 2000
MONSANTO COMPANY, a Delaware corporation ("Monsanto"), PHARMACIA
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CORPORATION, a Delaware corporation ("Pharmacia" and, together with Monsanto,
---------
the "Borrowers"), the banks, financial institutions and other institutional
---------
lenders (the "Initial Lenders") listed on the signature pages hereof, CITIBANK,
---------------
N.A. ("Citibank"), as administrative agent (the "Agent") for the Lenders (as
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hereinafter defined), XXXXXXX XXXXX XXXXXX INC. and CHASE SECURITIES INC., as
co-lead arrangers and joint book managers, THE CHASE MANHATTAN BANK, as
syndication agent, and COMMERZBANK AG NEW YORK AND GRAND CAYMAN BRANCHES
("Commerzbank") and BANK ONE, NA, as co-documentation agent, agree as follows:
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
---------------------
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" means a Revolving Credit Advance or a Competitive Bid
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Advance.
"Affiliate" means, as to any Person, any other Person that, directly
---------
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 5% or more of the
Voting Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise.
"Agent's Account" means the account of the Agent maintained by the
---------------
Agent at Citibank with its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Account No. 00000000, Attention: Xxxxxxx Xxxxx.
"Aggregate Amount of Financing Outstanding" at any time means the
-----------------------------------------
aggregate amount of proceeds received in connection with a Permitted
Receivables Financing, less (a) any amounts collected in connection with
the accounts receivable sold, conveyed or otherwise transferred pursuant to
such financing and (b) the amount of any defaulted accounts receivable the
uncollectibility of which is a risk assumed by the transferee of such
accounts receivable.
"Applicable Lending Office" means, with respect to each Lender, such
-------------------------
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of a Competitive Bid Advance, the office of such
Lender notified by such Lender to the Agent as its Applicable Lending
Office with respect to such Competitive Bid Advance.
"Applicable Margin" means, as to any Borrower, for Base Rate Advances
-----------------
made to such Borrower, 0.0% per annum and, for Eurodollar Rate Advances
made to such Borrower as of any date, a percentage per annum determined by
reference to the Public Debt Rating of such Borrower in effect on such date
as set forth below:
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Public Debt Rating Public Debt Rating Applicable Margin for
(Short Term Rating) (Long Term Rating) Eurodollar Rate Advances
S&P/Xxxxx'x S&P/Xxxxx'x
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Xxxxx 0 Xxxxx 0
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A-1+ and P-1 A+ or A1 0.180%
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Xxxxx 0 Xxxxx 0
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Lower than Level 1 but at least Lower than Level 1 but at least
A-1 and P-1 A or A2 0.220%
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Xxxxx 0 Xxxxx 0
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Lower than Level 2 but Lower than Level 2 but at at least
at least A-1 or P-1 A- or A3 0.305%
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Xxxxx 0 Xxxxx 0
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Lower than Level 3 but Lower than Level 3 but at
at least A-2 and P-2 least BBB+ or Baa1 0.500%
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Xxxxx 0 Xxxxx 0
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Lower than Xxxxx 0 Xxxxx xxxx Xxxxx 0 0.800%
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"Applicable Percentage" means, as to any Borrower, a percentage per
---------------------
annum determined by reference to the Public Debt Rating of such Borrower in
effect on such date as set forth below:
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Public Debt Rating Public Debt Rating Applicable
(Short Term Rating) (Long Term Rating) Percentage
S&P/Xxxxx'x S&P/Xxxxx'x
--------------------------------------------------------------------------------------------------------------
Xxxxx 0 Xxxxx 0
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A-1+ and P-1 A+ or A1 0.070%
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Xxxxx 0 Xxxxx 0
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Lower than Level 1 but Lower than Level 1 but at
at least A-1 and P-1 least A and A2 0.080%
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Xxxxx 0 Xxxxx 0
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Lower than Level 2 but Lower than Level 2 but at least
at least A-1 or P-1 A- or A3 0.095%
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Xxxxx 0 Xxxxx 0
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Lower than Level 3 but Lower than Level 3 but at least
at least A-2 and P-2 BBB+ or Baa1 0.125%
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Xxxxx 0 Xxxxx 0
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Lower than Xxxxx 0 Xxxxx xxxx Xxxxx 0 0.200%
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2
"Applicable Utilization Fee" means, as to any Borrower, for each date
--------------------------
on which the aggregate principal amount of the Advances exceeds 25% of the
aggregate Commitments, a percentage per annum determined by reference to
the Public Debt Rating of such Borrower in effect on such date as set forth
below:
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Public Debt Rating Public Debt Rating Applicable
(Short Term Rating) (Long Term Rating) Utilization Fee
S&P/Xxxxx'x S&P/Xxxxx'x
--------------------------------------------------------------------------------------------------------------
Xxxxx 0 Xxxxx 0
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A-1+ and P-1 A+ or A1 0.050%
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Xxxxx 0 Xxxxx 0
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Lower than Level 1 but Lower than Level 1 but
at least A-1 and P-1 at least A or A2 0.050%
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Xxxxx 0 Xxxxx 0
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Lower than Level 2 but Lower than Level 2 but at least
at least A-1 or P-1 A- or A3 0.100%
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Xxxxx 0 Xxxxx 0
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Lower than Level 3 but Lower than Level 3 but at least
at least A-2 and P-2 BBB+ or Baa1 0.125%
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Xxxxx 0 Xxxxx 0
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Lower than Xxxxx 0 Xxxxx xxxx Xxxxx 0 0.250%
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"Assignment and Acceptance" means an assignment and acceptance entered
-------------------------
into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section 2.17(c).
---------------
"Assumption Agreement" has the meaning specified in Section 2.17(c).
--------------------
"Base Rate" means a fluctuating interest rate per annum in effect from
---------
time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is
no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1%
per annum, plus (ii) the rate obtained by dividing (A) the latest
----
three-week moving average of secondary market morning offering rates
in the United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for Citibank with
respect to liabilities consisting of or including (among other
liabilities) three-month U.S. dollar non-personal time deposits in the
United States, plus (iii) the average during such three-week period
----
of the annual assessment rates estimated by Citibank for determining
the then
3
current annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S. dollar deposits
of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as provided
-----------------
in Section 2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing or a Competitive Bid
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Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
"Commitment" means as to any Lender (a) the amount set forth opposite
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such Lender's name on the signature pages hereof, (b) if such Lender has
become a Lender hereunder pursuant to an Assumption Agreement, the amount
set forth in such Assumption Agreement or (c) if such Lender has entered
into any Assignment and Acceptance, the amount set forth for such Lender in
the Register maintained by the Agent pursuant to Section 8.07(d), as such
amount may be reduced pursuant to Section 2.05.
"Competitive Bid Advance" means an advance by a Lender to a Borrower
-----------------------
as part of a Competitive Bid Borrowing resulting from the competitive
bidding procedure described in Section 2.03 and refers to a Fixed Rate
Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
-------------------------
simultaneous Competitive Bid Advances from each of the Lenders whose offer
to make one or more Competitive Bid Advances as part of such borrowing has
been accepted by the Borrower under the competitive bidding procedure
described in Section 2.03.
"Competitive Bid Note" means a promissory note of the Borrower of a
--------------------
Competitive Bid Advance payable to the order of any Lender, in
substantially the form of Exhibit A-2 hereto, evidencing the indebtedness
of such Borrower to such Lender resulting from such Competitive Bid Advance
made by such Lender.
"Competitive Bid Reduction" has the meaning specified in Section 2.01.
-------------------------
"Confidential Information" means information that any Borrower
------------------------
furnishes to the Agent or any Lender which information is non-public,
confidential or proprietary in nature, but does not include any such
information (a) that is or becomes generally available to the public other
than as the result of an unauthorized disclosure by the Agent or any Lender
or (b) that is or becomes available to the Agent or such Lender from a
source other than a Borrower and the Agent or such Lender had no reason to
believe that such source did not have legitimate possession of such
information or such source was under any obligation to keep such
information confidential.
"Consenting Lender" has the meaning specified in Section 2.17(b).
-----------------
"Consolidated" refers to the consolidation of accounts in accordance
------------
with GAAP.
"Consolidated Net Worth" at any time, means the sum of the capital
----------------------
stock (excluding treasury stock and capital stock subscribed for and
unissued) and surplus (including earned surplus, capital surplus and the
balance of the current profit and loss account not transferred to surplus)
accounts of such Borrower and its Subsidiaries appearing on the most recent
consolidated balance sheet of such Borrower and its Subsidiaries delivered
pursuant to Section 5.01(f)(i) or (ii), as applicable, prepared in
accordance with generally accepted accounting principles consistent with
those applied in the preparation of the financial statements referred to in
Section 4.01(e).
4
"Convert", "Conversion" and "Converted" each refers to a conversion of
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Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all indebtedness
----
of such Person for borrowed money, (b) all obligations of such Person for
the deferred purchase price of property or services (other than trade
payables not overdue by more than 60 days incurred in the ordinary course
of such Person's business), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all obligations
of such Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement
in the event of default are limited to repossession or sale of such
property), (e) all obligations of such Person as lessee under leases that
have been or should be, in accordance with GAAP, recorded as capital
leases, (f) all obligations, contingent or otherwise, of such Person in
respect of acceptances, letters of credit or similar extensions of credit,
(g) all obligations of such Person in respect of Hedge Agreements, (h) all
Debt of others referred to in clauses (a) through (g) above or clause (i)
below guaranteed directly or indirectly in any manner by such Person, or in
effect guaranteed directly or indirectly by such Person through an
agreement (1) to pay or purchase such Debt or to advance or supply funds
for the payment or purchase of such Debt, (2) to purchase, sell or lease
(as lessee or lessor) property, or to purchase or sell services, primarily
for the purpose of enabling the debtor to make payment of such Debt or to
assure the holder of such Debt against loss, (3) to supply funds to or in
any other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received or
such services are rendered) or (4) otherwise to assure a creditor against
loss, and (i) all Debt referred to in clauses (a) through (h) above 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 (including, without
limitation, accounts and contract rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such Debt.
"Debt for Borrowed Money" of any Person means, without duplication,
-----------------------
(a) all indebtedness of such Person for borrowed money, (b) all obligations
of such Person evidenced by notes, bonds, debentures or other similar
instruments, (c) all obligations of such Person as lessee under leases that
have been or should be, in accordance with GAAP, recorded as capital
leases, (d) during the term of a Permitted Receivables Financing, the
Aggregate Amount of Financing Outstanding in connection with domestic
accounts receivable pursuant to such financing and (e) all Debt of others
referred to in clauses (a) through (d) above guaranteed directly or
indirectly in any manner by such Person.
"Default" means any Event of Default or any event that would
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constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
--------------------
"Domestic Lending Office" means, with respect to any Lender, the
-----------------------
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assumption Agreement or the
Assignment and Acceptance pursuant to which it became a Lender, or such
other office of such Lender as such Lender may from time to time specify to
the Borrowers and the Agent.
"XXXXX" means the electronic disclosure system for the receipt,
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storage, retrieval and dissemination of public documents filed with the
Securities and Exchange Commission.
"Effective Date" has the meaning specified in Section 3.01.
--------------
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender;
-----------------
and (iii) any other Person approved by the Agent and, unless an Event of
Default has occurred and is continuing at the time any assignment is
effected in accordance with Section 8.07, the Borrowers, such approval not
to be unreasonably withheld or delayed; provided, however, that neither any
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Borrower nor an Affiliate of any Borrower shall qualify as an Eligible
Assignee.
5
"Environmental Action" means any action, suit, demand, demand letter,
--------------------
claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating to any Environmental Law, Environmental Permit or
Hazardous Materials or arising from alleged injury or threat of injury to
health, safety or the environment, including, without limitation, (a) by
any governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any governmental
or regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
-----------------
statute, law, ordinance, rule, regulation, code, order, judgment, decree or
written judicial policy or guidance that is publicly available, in each
case relating to pollution or protection of the environment, health and
safety as they relate to Hazardous Materials or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
--------------------
number, license or other authorization required under any Environmental
Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
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ERISA is a member of any Borrower's controlled group, or under common
control with any Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) the occurrence of a reportable event, within
-----------
the meaning of Section 4043 of ERISA, with respect to any Plan unless the
30-day notice requirement with respect to such event has been waived by the
PBGC; (b) the application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of
intent to terminate such Plan pursuant to Section 4041(c) of ERISA
(including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (d) the cessation of operations at a facility of
any Borrower or any ERISA Affiliate in the circumstances described in
Section 4062(e) of ERISA; (e) the withdrawal by any Borrower or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for which it was
a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for the imposition of a lien under Section 302(f) of ERISA shall
have been met with respect to any Plan; (g) the adoption of an amendment to
a Plan requiring the provision of security to such Plan pursuant to Section
307 of ERISA; or (h) the institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of
any event or condition described in Section 4042 of ERISA that constitutes
grounds for the termination of, or the appointment of a trustee to
administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
------------------------
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
-------------------------
office of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule I hereto or in the Assumption Agreement or the
Assignment and Acceptance pursuant to which it became a Lender (or, if no
such office is specified, its Domestic Lending Office), or such other
office of such Lender as such Lender may from time to time specify to the
Borrowers and the Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
---------------
Rate Advance comprising part of the same Revolving Credit Borrowing, an
interest rate per annum equal to the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Telerate Markets Page
3750 (or any successor page) as the London interbank offered rate for
deposits in U.S. dollars at approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period or, if for any reason such rate is not
available, the average (rounded upward to the nearest whole multiple of
1/16 of 1% per annum, if such average is not such a multiple) of the rate
per annum at which deposits in U.S. dollars are offered by the principal
office of each of the
6
Reference Banks in London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before the first day
of such Interest Period in an amount substantially equal to such Reference
Bank's ratable share of an amount equal to such Revolving Credit Borrowing
to be outstanding during such Interest Period and for a period equal to
such Interest Period. If the Telerate Markets Page 3750 (or any successor
page) is unavailable, the Eurodollar Rate for any Interest Period for each
Advance comprising part of the same Revolving Credit Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks two Business Days before the
first day of such Interest Period, subject, however, to the provisions of
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Section 2.08.
"Eurodollar Rate Advance" means an Advance that bears interest as
-----------------------
provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
----------------------------------
Eurodollar Rate Advances or LIBO Rate Advances comprising part of the same
Borrowing means the reserve percentage applicable two Business Days before
the first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate
on Eurodollar Rate Advances or LIBO Rate Advances is determined) having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
-----------------
"Extension Date" has the meaning specified in Section 2.17(b).
--------------
"Federal Funds Rate" means, for any period, a fluctuating interest
------------------
rate per annum equal for each day during such period to 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 for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by
it.
"Fixed Rate Advances" has the meaning specified in Section 2.03(a)(i).
-------------------
"Funded Debt" at any time, means Debt for Borrowed Money in respect of
-----------
the Advances made to a Borrower, in the case of a Borrower, at such time
and all other Debt for Borrowed Money that by its terms matures more than
one year after the date of its creation or matures within one year from
such date but is renewable or extendible, at the option of such Person, to
a date more than one year after such date or arises under a revolving
credit or similar agreement that obligates the lender or lenders to extend
credit during a period of more than one year after such date as set forth
in the then most recent financial statements of such Borrower and its
Subsidiaries delivered pursuant to Section 5.01(f)(i) or (ii), as
applicable, prepared in accordance with generally accepted accounting
principles consistent with those applied in preparation of the financial
statements referred to in Section 4.01(e).
"GAAP" has the meaning specified in Section 1.03.
----
"Hazardous Materials" means (a) petroleum and petroleum products,
-------------------
byproducts or breakdown products, radioactive materials, asbestos-
containing materials, polychlorinated biphenyls and radon gas and (b) any
other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
7
"Hedge Agreements" means interest rate swap, cap or collar agreements,
----------------
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other similar agreements.
"Information Memorandum" means the information memorandum dated July
----------------------
11, 2000 (including all exhibits and attachments thereto) used by the Agent
in connection with the syndication of the Commitments, as up-dated from
time to time by any subsequent filings by either Borrower with the
Securities and Exchange Commission.
"Interest Period" means, for each Eurodollar Rate Advance comprising
---------------
part of the same Revolving Credit Borrowing and each LIBO Rate Advance
comprising part of the same Competitive Bid Borrowing, the period
commencing on the date of such Eurodollar Rate Advance or LIBO Rate Advance
or the date of the Conversion of any Base Rate Advance into such Eurodollar
Rate Advance and ending on the last day of the period selected by the
relevant Borrower pursuant to the provisions below and, thereafter, with
respect to Eurodollar Rate Advances, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on the
last day of the period selected by the such Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be one,
two, three or six months or, if available to all Lenders, nine or twelve
months, as the relevant Borrower may, upon notice received by the Agent not
later than 11:00 A.M. (New York City time) on the third Business Day prior
to the first day of such Interest Period, select; provided, however, that:
-------- -------
(i) the Borrowers may not select any Interest Period that ends
after the Termination Date;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Revolving Credit
Borrowing or for LIBO Rate Advances comprising part of the same
Competitive Bid Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
-------- -------
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on
the last day of a calendar month or on a day of an initial calendar
month for which there is no numerically corresponding day in the
calendar month that succeeds such initial calendar month by the number
of months equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such succeeding
calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
---------------------
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Lenders" means the Initial Lenders, each Assuming Lender that shall
-------
become a party hereto pursuant to Section 2.17 and each Person that shall
become a party hereto pursuant to Section 2.11, Section 2.12 or Section
8.07.
"Leverage Ratio" of a Borrower means the ratio of Consolidated Funded
--------------
Debt of such Borrower and its Subsidiaries to the sum of Consolidated
Funded Debt of such Borrower and its Subsidiaries plus Consolidated Net
----
Worth.
"LIBO Rate" means, for any Interest Period for all LIBO Rate Advances
---------
comprising part of the same Competitive Bid Borrowing, an interest rate per
annum equal to the rate per annum (rounded upward to the nearest 1/100 of
1%) appearing on Telerate Markets Page 3750 (or any successor page) as the
London interbank offered rate for deposits in U.S. dollars at approximately
11:00 A.M. (London time) two
8
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period or, if for any reason such rate is not
available, the average (rounded upward to the nearest whole multiple of
1/16 of 1% per annum, if such average is not such a multiple) of the rate
per annum at which deposits in U.S. dollars are offered by the principal
office of each of the Reference Banks in London, England to prime banks in
the London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal to the amount that would be the Reference Banks' respective ratable
shares of such Borrowing if such Borrowing were to be a Revolving Credit
Borrowing to be outstanding during such Interest Period and for a period
equal to such Interest Period. If the Telerate Markets Page 3750 (or any
successor page) is unavailable, the LIBO Rate for any Interest Period for
each LIBO Rate Advance comprising part of the same Competitive Bid
Borrowing shall be determined by the Agent on the basis of applicable rates
furnished to and received by the Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject,
-------
however, to the provisions of Section 2.08.
-------
"LIBO Rate Advance" has the meaning specified in Section 2.03(a)(i).
-----------------
"Lien" means any lien, security interest or other charge or
----
encumbrance of any kind, or any other type of preferential arrangement
having the effect of security, including, without limitation, the lien or
retained security title of a conditional vendor.
"Long Term Rating" has the meaning assigned in the definition of
----------------
"Public Debt Rating".
"Material Adverse Change" means any material adverse change in the
-----------------------
financial condition or results of operations of either Borrower or either
Borrower and its Consolidated Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
financial condition or results of operations of either Borrower or either
Borrower and its Consolidated Subsidiaries taken as a whole or (b) the
ability of either Borrower to perform its obligations under this Agreement
or any Note to which it is a party.
"Material Subsidiary" of either Borrower means, at any time, a
-------------------
domestic Consolidated Subsidiary of such Borrower having (i) at least 10%
of the total Consolidated assets of such Borrower and its Subsidiaries
(determined as of the last day of the most recent fiscal quarter of such
Borrower) or (ii) at least 10% of the Consolidated net sales of such
Borrower and its Subsidiaries for the twelve month period ending on the
last day of the most recent fiscal quarter of such Borrower.
"Monsanto Effective Date" has the meaning specified in Section 3.02.
-----------------------
"Moody's" means Xxxxx'x Investors Service, Inc.
-------
"Multiemployer Plan" means a multiemployer plan, as defined in Section
------------------
4001(a)(3) of ERISA, to which any Borrower 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.
"Multiple Employer Plan" means a single employer plan, as defined in
----------------------
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Borrower or any ERISA Affiliate and at least one Person other than the
Borrowers and the ERISA Affiliates or (b) was so maintained and in respect
of which any Borrower or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Net Asset Transfer" means the transfer by Pharmacia to Monsanto of,
------------------
among other things, certain assets and liabilities comprising the
agricultural business of Pharmacia, as more particularly described in the
Information Memorandum.
9
"Non-Consenting Lender" has the meaning specified in Section 2.17(b).
---------------------
"Note" means a Revolving Credit Note or a Competitive Bid Note.
----
"Notice of Revolving Credit Borrowing" has the meaning specified in
------------------------------------
Section 2.02(a).
"Notice of Competitive Bid Borrowing" has the meaning specified in
-----------------------------------
Section 2.03(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
----
successor).
"Permitted Receivables Financing" means any financing pursuant to
-------------------------------
which the Borrower or any Subsidiary of the Borrower may sell, convey, or
otherwise transfer to a Receivables Subsidiary or any other Person, or
grant a security interest in, any accounts receivable (and related assets)
of the Borrower or such Subsidiary, provided that such financing shall be
on customary market terms and shall be with limited or no recourse to the
Borrower and its Subsidiaries (other than the Receivables Subsidiary)
except to the extent customary for such transactions.
"Person" means an individual, partnership, corporation (including a
------
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
----
"Public Debt Rating" means, as to any Borrower as of any date, the
------------------
lowest rating that has been most recently announced by either S&P or
Moody's, as the case may be, for any class of non-credit enhanced long-term
senior unsecured debt issued by such Borrower (its "Long Term Rating"), or,
----------------
if such Borrower does not have in effect a rating for non-credit enhanced
long-term senior unsecured debt, the lowest rating that has been most
recently announced by either S&P or Moody's, as the case may, be for such
Borrower's commercial paper (its "Short Term Rating"). For purposes of the
-----------------
foregoing, (a) if only one of S&P and Moody's shall have in effect a Public
Debt Rating, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee shall be determined by reference to the
available rating; (b) if neither S&P nor Moody's shall have in effect a
Public Debt Rating, the Applicable Margin, the Applicable Percentage and
the Applicable Utilization Fee will be set in accordance with Level 3 under
the definition of "Applicable Margin", "Applicable Percentage" or
----------------- ---------------------
"Applicable Utilization Fee", as the case may be; (c) if the ratings
---------------------------
established by S&P and Moody's shall fall within different levels, the
Applicable Margin, the Applicable Percentage and the Applicable Utilization
Fee shall be based upon the higher rating; (d) if any rating established by
S&P or Moody's shall be changed, such change shall be effective as of the
date on which such change is first announced publicly by the rating agency
making such change; and (e) if S&P or Moody's shall change the basis on
which ratings are established, each reference to the Public Debt Rating
announced by S&P or Moody's, as the case may be, shall refer to the then
equivalent rating by S&P or Moody's, as the case may be.
"Receivables Subsidiary" means a bankruptcy-remote, special-purpose
----------------------
wholly owned Subsidiary formed in connection with a Permitted Receivables
Financing.
"Reference Banks" means Citibank, The Chase Manhattan Bank and
---------------
Commerzbank; provided that the Borrower may at any time substitute another
--------
Lender as one of the Reference Banks, but such substitution shall terminate
after 30 days if within such period the Required Lenders shall have
notified the Agent of their objection to such substitution.
"Register" has the meaning specified in Section 8.07(c).
--------
"Required Lenders" means at any time Lenders owed more than 50% of the
----------------
then aggregate unpaid principal amount of the Revolving Credit Advances
owing to Lenders, or, if no such principal amount is then outstanding,
Lenders having more than 50% of the Commitments.
10
"Revolving Credit Advance" means an advance by a Lender to a Borrower
------------------------
as part of a Revolving Credit Borrowing and refers to a Base Rate Advance
or a Eurodollar Rate Advance (each of which shall be a "Type" of Revolving
----
Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
--------------------------
simultaneous Revolving Credit Advances of the same Type made by each of the
Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of a Borrower payable
---------------------
to the order of any Lender, in substantially the form of Exhibit A-1
hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the Revolving Credit Advances made to such Borrower
by such Lender.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
---
Companies, Inc.
"Short Term Rating" has the meaning assigned in the definition of
-----------------
"Public Debt Rating".
"Single Employer Plan" means a single employer plan, as defined in
--------------------
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Borrower or any ERISA Affiliate and no Person other than the Borrowers and
the ERISA Affiliates or (b) was so maintained and in respect of which any
Borrower or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"Subsidiary" of any Person means any corporation, partnership, joint
----------
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) the interest in the capital or
profits of such limited liability company, partnership or joint venture or
(c) the beneficial interest in such trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Termination Date" means the earlier of (a) August 8, 2005, subject
----------------
to the extension thereof pursuant to Section 2.17 and (b) the date of
termination in whole of the Commitments pursuant to Section 2.05 or 6.01;
provided, however, that the Termination Date of any Lender that is a Non-
-------- -------
Consenting Lender to any requested extension pursuant to Section 2.17 shall
be the Termination Date in effect immediately prior to the applicable
Extension Date for all purposes of this Agreement.
"Voting Stock" means capital stock issued by a corporation, or
------------
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening of
such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in
---------------------------
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
----------------
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP").
----
11
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender severally
-----------------------------
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to any Borrower from time to time on any Business Day during the
period from the Effective Date until the Termination Date in an aggregate amount
not to exceed at any time outstanding such Lender's Commitment, provided that
--------
the aggregate amount of the Commitments of the Lenders shall be deemed used from
time to time to the extent of the aggregate amount of the Competitive Bid
Advances then outstanding and such deemed use of the aggregate amount of the
Commitments shall be allocated among the Lenders ratably according to their
respective Commitments (such deemed use of the aggregate amount of the
Commitments being a "Competitive Bid Reduction"), provided, further, that no
----------------------------------------------
Revolving Credit Advances shall be made to Monsanto until the Monsanto Effective
Date. Each Revolving Credit Borrowing shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and shall
consist of Revolving Credit Advances of the same Type made on the same day by
the Lenders ratably according to their respective Commitments. Within the limits
of each Lender's Commitment, the Borrowers may borrow under this Section 2.01,
prepay pursuant to Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
------------------------------------
Revolving Credit Borrowing shall be made on notice, given not later than 11:00
A.M. (New York City time) on the third Business Day prior to the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurodollar Rate Advances, or not later than 11:00 A.M. (New York
City time) on the date of the proposed Revolving Credit Borrowing in the case of
a Revolving Credit Borrowing consisting of Base Rate Advances, by the relevant
Borrower to the Agent, which shall give to each Lender prompt notice thereof by
telecopier or telex. Each such notice of a Revolving Credit Borrowing (a "Notice
------
of Revolving Credit Borrowing") shall be by telephone, confirmed immediately in
-----------------------------
writing, or telecopier or telex, in substantially the form of Exhibit B-1
hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type
of Advances comprising such Revolving Credit Borrowing, (iii) aggregate amount
of such Revolving Credit Borrowing, and (iv) in the case of a Revolving Credit
Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for
each such Advance. Each Lender shall, before 1:00 P.M. (New York City time) on
the date of such Revolving Credit Borrowing, make available for the account of
its Applicable Lending Office to the Agent at the Agent's Account, in same day
funds, such Lender's ratable portion of such Revolving Credit Borrowing. After
the Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Agent will make such funds available to
the Borrower that requested such Revolving Credit Borrowing at the Agent's
address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrowers may not select Eurodollar Rate Advances for any Revolving
Credit Borrowing if the aggregate amount of such Revolving Credit Borrowing is
less than $15,000,000 or if the obligation of the Lenders to make Eurodollar
Rate Advances shall then be suspended pursuant to Section 2.08 or 2.12 and (ii)
the Eurodollar Rate Advances may not be outstanding as part of more than six
separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be irrevocable and
binding on the Borrower providing such notice. In the case of any Revolving
Credit Borrowing that the related Notice of Revolving Credit Borrowing specifies
is to be comprised of Eurodollar Rate Advances, such Borrower shall indemnify
each Lender against any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the date specified in such Notice
of Revolving Credit Borrowing for such Revolving Credit Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Revolving Credit Advance to be made by such Lender as part of
such Revolving Credit Borrowing when such Revolving Credit Advance, as a result
of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender prior to
the date of any Revolving Credit Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such Revolving Credit
Borrowing, the Agent may assume that such Lender has made such portion available
to the Agent on the date of such Revolving Credit Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the relevant Borrower on such date a
12
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Agent, such Lender and the Borrower
that requested such Borrowing severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to such Borrower until the date such
amount is repaid to the Agent, at (i) in the case of such Borrower, the interest
rate applicable at the time to Revolving Credit Advances comprising such
Revolving Credit Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the Agent such corresponding amount,
such amount so repaid shall constitute such Lender's Revolving Credit Advance as
part of such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to
be made by it as part of any Revolving Credit Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Revolving Credit
Advance on the date of such Borrowing, but no Lender shall be responsible for
the failure of any other Lender to make the Revolving Credit Advance to be made
by such other Lender on the date of any Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
----------------------------
severally agrees that any Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below; provided that, following the making of each
--------
Competitive Bid Borrowing, the aggregate amount of the Advances then outstanding
shall not exceed the aggregate amount of the Commitments of the Lenders
(computed without regard to any Competitive Bid Reduction) and provided, further
-------- -------
that no Competitive Bid Advances shall be requested by Monsanto until the
Monsanto Effective Date.
(i) Any Borrower may request a Competitive Bid Borrowing under this
Section 2.03 by delivering to the Agent, by telecopier or telex, a notice
of a Competitive Bid Borrowing (a "Notice of Competitive Bid Borrowing"),
-----------------------------------
in substantially the form of Exhibit B-2 hereto, specifying therein the
requested (v) date of such proposed Competitive Bid Borrowing, (w)
aggregate amount of such proposed Competitive Bid Borrowing, (x) in the
case of a Competitive Bid Borrowing consisting of LIBO Rate Advances,
Interest Period, or in the case of a Competitive Bid Borrowing consisting
of Fixed Rate Advances, maturity date for repayment of each Fixed Rate
Advance to be made as part of such Competitive Bid Borrowing (which
maturity date may not be earlier than the date occurring 30 days after the
date of such Competitive Bid Borrowing or later than the Termination Date),
(y) interest payment date or dates relating thereto, and (z) other terms
(if any) to be applicable to such Competitive Bid Borrowing, not later than
10:00 A.M. (New York City time) (A) at least one Business Day prior to the
date of the proposed Competitive Bid Borrowing, if such Borrower shall
specify in the Notice of Competitive Bid Borrowing that the rates of
interest to be offered by the Lenders shall be fixed rates per annum (the
Advances comprising any such Competitive Bid Borrowing being referred to
herein as "Fixed Rate Advances") and (B) at least five Business Days prior
-------------------
to the date of the proposed Competitive Bid Borrowing, if such Borrower
shall instead specify in the Notice of Competitive Bid Borrowing that the
rates of interest be offered by the Lenders are to be based on the LIBO
Rate (the Advances comprising such Competitive Bid Borrowing being referred
to herein as "LIBO Rate Advances"). Each Notice of Competitive Bid
------------------
Borrowing shall be irrevocable and binding on the Borrower giving such
Notice of Competitive Bid Borrowing. The Agent shall in turn promptly
notify each Lender of each request for a Competitive Bid Borrowing received
by it from a Borrower by sending such Lender a copy of the related Notice
of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more Competitive Bid Advances to the
Borrower requesting such proposed Competitive Bid Borrowing as part of such
proposed Competitive Bid Borrowing at a rate or rates of interest specified
by such Lender in its sole discretion, by notifying the Agent (which shall
give prompt notice thereof to the relevant Borrower), before 9:30 A.M. (New
York City time) on the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of Fixed Rate Advances
and before 10:00 A.M. (New York City time) three Business Days before the
date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances, of the minimum
amount and maximum amount of each Competitive Bid Advance which such Lender
would be willing to make as part of such proposed Competitive Bid Borrowing
(which amounts may, subject to the
13
proviso to the first sentence of this Section 2.03(a), exceed such Lender's
Commitment, if any), the rate or rates of interest therefor and such
Lender's Applicable Lending Office with respect to such Competitive Bid
Advance; provided that if the Agent in its capacity as a Lender shall, in
--------
its sole discretion, elect to make any such offer, it shall notify the
relevant Borrower of such offer at least 30 minutes before the time and on
the date on which notice of such election is to be given to the Agent by
the other Lenders. If any Lender shall elect not to make such an offer,
such Lender shall so notify the Agent, before 10:00 A.M. (New York City
time) on the date on which notice of such election is to be given to the
Agent by the other Lenders, and such Lender shall not be obligated to, and
shall not, make any Competitive Bid Advance as part of such Competitive Bid
Borrowing; provided that the failure by any Lender to give such notice
--------
shall not cause such Lender to be obligated to make any Competitive Bid
Advance as part of such proposed Competitive Bid Borrowing.
(iii) The Borrower requesting such proposed Competitive Bid Borrowing
shall, in turn, before 10:30 A.M. (New York City time) on the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Advances and before 11:00 A.M. (New York
City time) three Business Days before the date of such proposed Competitive
Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by giving the Agent
notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole discretion, by
giving notice to the Agent of the amount of each Competitive Bid
Advance (which amount shall be equal to or greater than the minimum
amount, and equal to or less than the maximum amount, notified to the
relevant Borrower by the Agent on behalf of such Lender for such
Competitive Bid Advance pursuant to paragraph (ii) above) to be made
by each Lender as part of such Competitive Bid Borrowing, and reject
any remaining offers made by Lenders pursuant to paragraph (ii) above
by giving the Agent notice to that effect. The relevant Borrower
shall accept the offers made by any Lender or Lenders to make
Competitive Bid Advances in order of the lowest to the highest rates
of interest offered by such Lenders. If two or more Lenders have
offered the same interest rate, the amount to be borrowed at such
interest rate will be allocated among such Lenders in proportion to
the amount that each such Lender offered at such interest rate.
(iv) If the relevant Borrower notifies the Agent that such Competitive
Bid Borrowing is cancelled pursuant to paragraph (iii)(x) above, the Agent
shall give prompt notice thereof to the Lenders and such Competitive Bid
Borrowing shall not be made.
(v) If the relevant Borrower accepts one or more of the offers made
by any Lender or Lenders pursuant to paragraph (iii)(y) above, the Agent
shall in turn promptly notify (A) each Lender that has made an offer as
described in paragraph (ii) above, of the date and aggregate amount of such
Competitive Bid Borrowing and whether or not any offer or offers made by
such Lender pursuant to paragraph (ii) above have been accepted by such
Borrower, (B) each Lender that is to make a Competitive Bid Advance as part
of such Competitive Bid Borrowing, of the amount of each Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid
Borrowing, and (C) each Lender that is to make a Competitive Bid Advance as
part of such Competitive Bid Borrowing, upon receipt, that the Agent has
received forms of documents appearing to fulfill the applicable conditions
set forth in Article III. Each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing shall, before 12:00 noon
(New York City time) on the date of such Competitive Bid Borrowing
specified in the notice received from the Agent pursuant to clause (A) of
the preceding sentence or any later time when such Lender shall have
received notice from the Agent pursuant to clause (C) of the preceding
sentence, make available for the account of its Applicable Lending Office
to the Agent at the Agent's Account, in same day funds, such Lender's
portion of such Competitive Bid Borrowing. Upon fulfillment of the
applicable conditions set forth in Article III and after receipt by the
Agent of such funds, the Agent will make such funds available to the
relevant Borrower at the Agent's address referred to in Section 8.02.
Promptly after each Competitive Bid Borrowing the Agent will notify each
Lender of the amount of the Competitive Bid
14
Borrowing, the consequent Competitive Bid Reduction and the dates upon which
such Competitive Bid Reduction commenced and will terminate.
(vi) If the relevant Borrower notifies the Agent that it accepts one or
more of the offers made by any Lender or Lenders pursuant to paragraph
(iii)(y) above, such notice of acceptance shall be irrevocable and binding
on such Borrower. Such Borrower shall indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in the related Notice of Competitive
Bid Borrowing for such Competitive Bid Borrowing the applicable conditions
set forth in Article III, including, without limitation, any loss (excluding
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Competitive Bid Advance to be made by such Lender as part
of such Competitive Bid Borrowing when such Competitive Bid Advance, as a
result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each Competitive Bid Borrowing, the Borrowers shall be
in compliance with the limitation set forth in the proviso to the first sentence
of subsection (a) above.
(c) Within the limits and on the conditions set forth in this Section
2.03, the Borrowers may from time to time borrow under this Section 2.03, repay
or prepay pursuant to subsection (d) below, and reborrow under this Section
2.03, provided that a Competitive Bid Borrowing shall not be made within three
--------
Business Days of the date of any other Competitive Bid Borrowing.
(d) Each Borrower shall repay to the Agent for the account of each
Lender that has made a Competitive Bid Advance to such Borrower, on the maturity
date of each Competitive Bid Advance (such maturity date being that specified by
such Borrower for repayment of such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above and provided in the Competitive Bid Note evidencing such Competitive Bid
Advance), the then unpaid principal amount of such Competitive Bid Advance. No
Borrower shall have any right to prepay any principal amount of any Competitive
Bid Advance unless, and then only on the terms, specified by the relevant
Borrower for such Competitive Bid Advance in the related Notice of Competitive
Bid Borrowing delivered pursuant to subsection (a)(i) above and set forth in the
Competitive Bid Note evidencing such Competitive Bid Advance.
(e) Each Borrower shall pay interest on the unpaid principal amount of
each Competitive Bid Advance made to it from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such Competitive Bid Advance
specified by the Lender making such Competitive Bid Advance in its notice with
respect thereto delivered pursuant to subsection (a)(ii) above, payable on the
interest payment date or dates specified by such Borrower for such Competitive
Bid Advance in the related Notice of Competitive Bid Borrowing delivered
pursuant to subsection (a)(i) above, as provided in the Competitive Bid Note
evidencing such Competitive Bid Advance. Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on the
amount of unpaid principal of and interest on each Competitive Bid Advance owing
to a Lender, payable in arrears on the date or dates interest is payable
thereon, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Competitive Bid Advance under the terms of
the Competitive Bid Note evidencing such Competitive Bid Advance unless
otherwise agreed in such Competitive Bid Note.
(f) The indebtedness of a Borrower resulting from each Competitive Bid
Advance made to such Borrower as part of a Competitive Bid Borrowing shall be
evidenced by a separate Competitive Bid Note of such Borrower payable to the
order of the Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrowers agree to pay
---- ------------
to the Agent for the account of each Lender a facility fee on the aggregate
amount of such Lender's Commitment from the Effective Date in the case of each
Initial Lender and from the later of the Effective Date and the effective date
specified in the Assumption Agreement or the Assignment and Acceptance pursuant
to which it became a Lender in the case of each other Lender until the
Termination Date at a rate per annum equal to the Applicable Percentage in
effect from time
15
to time, payable in arrears quarterly on the last day of each March, June,
September and December commencing September 30, 2000, and on the Termination
Date.
(b) Agent's Fees. The Borrowers shall pay to the Agent for its own
------------
account such fees as may from time to time be agreed between the Borrowers and
the Agent.
SECTION 2.05. Termination or Reduction of the Commitments. The
-------------------------------------------
Borrowers shall have the right, upon at least three Business Days' notice to the
Agent, to terminate in whole or reduce ratably in part the unused portions of
the respective Commitments of the Lenders, provided that each partial reduction
--------
shall be in the aggregate amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof and provided further that the aggregate amount of
-------- -------
the Commitments of the Lenders shall not be reduced to an amount that is less
than the aggregate principal amount of the Competitive Bid Advances then
outstanding.
SECTION 2.06. Repayment of Revolving Credit Advances. Each Borrower
--------------------------------------
shall repay to the Agent for the ratable account of the Lenders on the
Termination Date the aggregate principal amount of the Revolving Credit Advances
made to such Borrower then outstanding.
SECTION 2.07. Interest on Revolving Credit Advances; Regulation D
---------------------------------------------------
Compensation. (a) Scheduled Interest. Each Borrower shall pay interest on the
------------ ------------------
unpaid principal amount of each Revolving Credit Advance made to such Borrower
owing to each Lender from the date of such Revolving Credit Advance until such
principal amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving Credit
------------------
Advance is a Base Rate Advance, a rate per annum equal at all times to the
sum of (x) the Base Rate in effect from time to time plus (y) the
----
Applicable Margin in effect from time to time plus (2) the Applicable
----
Utilization Fee, if any, in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December,
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Revolving
------------------------
Credit Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Revolving Credit Advance to the
sum of (x) the Eurodollar Rate for such Interest Period for such Revolving
Credit Advance plus (y) the Applicable Margin in effect from time to time
----
plus (z) the Applicable Utilization Fee, if any, in effect from time to
----
time, payable in arrears on the last day of such Interest Period and, if
such Interest Period has a duration of more than three months, on each day
that occurs during such Interest Period every three months from the first
day of such Interest Period and on the date such Eurodollar Rate Advance
shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
----------------
of an Event of Default under Section 6.01(a), each Borrower shall pay interest
on (i) the unpaid principal amount of each Revolving Credit Advance made to it
owing to each Lender, payable in arrears on the dates referred to in clause (a)
above, at a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid on such Revolving Credit Advance pursuant to clause
(a) above and (ii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable hereunder that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to clause (a)(i) above.
(c) Regulation D Compensation. Each Lender that is subject to reserve
-------------------------
requirements of the Board of Governors of the Federal Reserve System (or any
successor) may require the Borrowers to pay, contemporaneously with each payment
of interest on Eurodollar Rate Advances or LIBO Rate Advances, additional
interest on the related Eurodollar Rate Advances or LIBO Rate Advances, as
applicable, of such Lender at the rate per annum equal to the excess of (i)(A)
the applicable Eurodollar Rate or LIBO Rate, divided by (B) one minus the
Eurodollar Rate Reserve Percentage over (ii) the rate specified in clause
(i)(A). Any Lender wishing to require payment of such additional interest shall
so notify the Agent and the Borrowers, in which case such additional interest on
the Eurodollar Rate Advances or LIBO Rate Advances, as applicable, of such
Lender shall be payable to
16
such Lender at the place indicated in such notice with respect to each Interest
Period commencing after the giving of such notice.
SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank
---------------------------
agrees to furnish to the Agent timely information for the purpose of determining
each Eurodollar Rate and each LIBO Rate. If any one or more of the Reference
Banks shall not furnish such timely information to the Agent for the purpose of
determining any such interest rate, the Agent shall determine such interest rate
on the basis of timely information furnished by the remaining Reference Banks.
The Agent shall give prompt notice to the Borrowers and the Lenders of the
applicable interest rate determined by the Agent for purposes of Section
2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference Bank for
the purpose of determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Agent that the Eurodollar Rate for any Interest Period for
such Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Borrowers and the
Lenders, whereupon (i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance, and (ii) the obligation of the Lenders to make, or to Convert Revolving
Credit Advances into, Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Borrowers and the Lenders that the circumstances causing
such suspension no longer exist.
(c) If any Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Agent will
forthwith so notify such Borrower and the Lenders and such Advances will
automatically, on the last day of the then existing Interest Period therefor,
Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $10,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
(f) If Telerate Markets Page 3750 (or any successor page) is
unavailable and fewer than two Reference Banks furnish timely information to the
Agent for determining the Eurodollar Rate or LIBO Rate for any Eurodollar Rate
Advances or LIBO Rate Advances, as the case may be,
(i) the Agent shall forthwith notify the Borrowers and the Lenders
that the interest rate cannot be determined for such Eurodollar Rate
Advances,
(ii) with respect to Eurodollar Rate Advances, each such Advance will
automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance (or if such Advance is then a
Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate Advances or
LIBO Rate Advances, or to Convert Revolving Credit Advances into, Eurodollar
Rate Advances shall be suspended until the Agent shall notify the Borrowers
and the Lenders that the circumstances causing such suspension no longer
exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances. Each
------------------------------------------------
Borrower may on any Business Day, upon notice given to the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.08 and 2.12,
Convert all Revolving Credit Advances made to it of one Type comprising the same
Borrowing into Revolving Credit Advances of the other Type; provided, however,
-------- -------
that any Conversion of Eurodollar Rate Advances into Base Rate Advances
17
shall be made only on the last day of an Interest Period for such Eurodollar
Rate Advances, any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be in an amount not less than the minimum amount specified in
Section 2.02(b) and no Conversion of any Revolving Credit Advances shall result
in more separate Revolving Credit Borrowings than permitted under Section
2.02(b). Each such notice of a Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Revolving
Credit Advances to be Converted, and (iii) if such Conversion is into Eurodollar
Rate Advances, the duration of the initial Interest Period for each such
Advance. Each notice of Conversion shall be irrevocable and binding on the
Borrower giving such notice.
SECTION 2.10. Optional Prepayments of Revolving Credit Advances. Each
-------------------------------------------------
Borrower may, in the case of Eurodollar Rate Advances, upon at least two
Business Days' notice to the Agent and, in the case of Base Rate Advances, upon
notice to the Agent not later than 10:00 A.M. (New York City time) on the date
of the proposed prepayment, stating in each case the proposed date and aggregate
principal amount of the prepayment, and if such notice is given such Borrower
shall, prepay the outstanding principal amount of the Revolving Credit Advances
made to it comprising part of the same Revolving Credit Borrowing in whole or
ratably in part, together with accrued interest to the date of such prepayment
on the principal amount prepaid; provided, however, that (x) each partial
-------- -------
prepayment shall be in an aggregate principal amount of $10,000,000 or an
integral multiple of $1,000,000 in excess thereof and (y) in the event of any
such prepayment of a Eurodollar Rate Advance, such Borrower shall be obligated
to reimburse the Lenders in respect thereof pursuant to Section 8.04(c).
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
---------------
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances or LIBO Rate Advances
(excluding for purposes of this Section 2.11 any such increased costs resulting
from (i) Taxes or Other Taxes (as to which Section 2.14 shall govern) and (ii)
changes in the basis of taxation of overall net income or overall gross income
by the United States or by the foreign jurisdiction or state under the laws of
which such Lender is organized or has its Applicable Lending Office or any
political subdivision thereof), then such Lender may from time to time give
notice of such circumstances to the Borrower (with a copy of such notice to the
Agent); provided, however, that each Lender agrees, before giving any such
-------- -------
notice, to use its reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to designate a different Applicable Lending
Office if the making of such designation would avoid the need for, or reduce the
amount of, such increased costs and would not be disadvantageous to such Lender.
The amount sufficient to compensate such Lender in light of such increase in
costs to such Lender or any corporation controlling such Lender shall be
determined by such Lender in good faith on a basis that allocates the amounts
sufficient to compensate such Lender in light of such increase ratably among all
applicable Advances. A certificate specifying the event referred to in this
Section 2.11(a), the amount sufficient to compensate such Lender and the basis
of its calculations (which shall be reasonable), submitted in good faith to the
Borrower and the Agent by such Lender, shall be conclusive and binding for all
purposes, absent manifest error. Each Lender agrees to provide reasonably
prompt notice to the Borrower of the occurrence of any event referred to in the
first sentence of this Section 2.11(a).
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) after the date
hereof affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and that
the amount of such capital is increased by or based upon the existence of such
Lender's commitment to lend hereunder and other commitments of this type, then,
such Lender may from time to time give notice of such circumstances to the
Borrower (with a copy of such notice to the Agent); provided, however, that each
-------- -------
Lender agrees, before giving any such notice, to use its reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Applicable Lending Office if the making of such
designation would avoid the need for, or reduce the amount of, the cost to such
Lender of such increase in the amount of capital maintained by such Lender and
would not be disadvantageous to such Lender. The amount sufficient to
compensate such Lender in light of such increase in capital maintained by such
Lender or any corporation controlling such Lender shall be determined by such
Lender in good faith to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's commitment
to lend hereunder. A certificate specifying the event referred to in this
Section 2.11(b), the amount sufficient to compensate such Lender and the basis
of its calculations (which shall be reasonable), submitted in good faith to the
Borrower and the Agent by such Lender, shall be conclusive and binding for all
purposes, absent manifest error. Each Lender
18
agrees to provide reasonably prompt notice to the Borrower of the occurrence of
any event referred to in the first sentence of this Section 2.11(b).
(c) The Borrower shall, within five days of receiving a notice from
any Lender pursuant to clause (a) or (b) of this Section 2.11, elect (and shall
notify such Lender and the Agent of such election) to:
(i) pay to the Agent for the account of such Lender, from time to time
commencing on the date of notice by such Lender and as specified by such
Lender, (A) the amount such Lender has set forth in the certificate which
such Lender has delivered to the Borrower pursuant to clause (a) of this
Section 2.11 or (B) the amount such Lender has set forth in the certificate
which such Lender has delivered to the Borrower pursuant to clause (b) of
this Section 2.11, as the case may be; or
(ii) terminate such Lender's Commitment on a date which shall be
specified in the notice sent by the Borrower, and such Lender's Commitment
shall terminate on such date; provided, however, that the aggregate amount
-------- -------
of the Commitments of the Lenders shall not be reduced, as a result of any
such termination, to an amount that is less than the sum of the aggregate
principal amount of the Advances then outstanding; provided, further, that
-------- -------
such termination shall not be effective if, after giving effect to such
termination, the aggregate amount of the Commitments so terminated or
assigned under this Section 2.11 and Section 2.12(b) during the term of
this Agreement would exceed 25% of the aggregate amount of the Commitments
as of the Effective Date; and provided further, that upon termination of a
-------- -------
Lender's Commitment under this Section 2.11(c)(ii), the Borrower shall on
the date such termination becomes effective pay, prepay or cause to be
prepaid the aggregate principal amount of all Advances owing to such
Lender, together with accrued interest thereon to the date of payment of
such principal amount, all facility fees and other fees payable to such
Lender and all other amounts payable to such Lender under this Agreement
(including, but not limited to, any increased costs or other additional
amounts (computed in accordance with this Section 2.11), and any Taxes,
incurred by such Lender prior to the effective date of such termination and
amounts payable under Section 8.04(a)). Upon such payments and
prepayments, the obligations of such Lender hereunder, by the provisions
hereof, shall be released and discharged. Such Lender's rights under
Sections 2.11, 2.14 and 8.04(b), and its obligations under Section 7.05,
shall survive such release and discharge as to matters occurring prior to
date of such termination; or
(iii) require that such Lender assign to the Borrower's designated
assignee or assignees, in accordance with the terms of Section 8.07, all
Advances then owing to such Lender and all rights and obligations of such
Lender hereunder; provided that (A) each such assignment shall be either an
--------
assignment of all of the rights and obligations of the assigning Lender
under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or assignments
which together cover all of the rights and obligations of the assigning
Lender under this Agreement, (B) no Lender shall be obligated to make any
such assignment as a result of a demand by the Borrower pursuant to this
Section 2.11(c) unless and until such Lender shall have received one or
more payments from either the Borrower or one or more assignees in an
aggregate amount at least equal to the aggregate outstanding principal
amount of all Advances owing to such Lender, together with accrued interest
thereon to the date of payment of such principal amount, all facility fees
and other fees payable to such Lender and all other amounts payable to such
Lender under this Agreement (including, but not limited to, any increased
costs or other additional amounts (computed in accordance with this Section
2.11), and any Taxes, incurred by such Lender prior to the effective date
of such assignment and amounts payable under Section 8.04(a)) and (C) each
such assignment shall be made pursuant to an Assignment and Acceptance;
provided, however, that such assignment shall not be effective if, after
-------- -------
giving effect to such assignment, the aggregate amount of the Commitments
so assigned or terminated under this Section 2.11 and Section 2.12(b)
during the term of this Agreement would exceed 25% of the aggregate amount
of the Commitments as of the Effective Date. Upon such payments and
prepayments, the obligations of such Lender hereunder, by the provisions
hereof, shall be released and discharged; provided, however, that such
--------
Lender's rights under Sections 2.11, 2.14 and 8.04(b), and its obligations
under Section 7.05, shall survive such release and discharge as to matters
occurring prior to the date of termination of such Lender's Commitment.
SECTION 2.12. Illegality. (a) Notwithstanding any other provision of
----------
this Agreement, if any Lender (any such Lender being referred to herein as an
"Affected Lender") shall notify the Agent that the
---------------
19
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
LIBO Rate Advances or to fund or maintain Eurodollar Rate Advances or LIBO Rate
Advances hereunder, the obligation of the Lenders to make, or to Convert
Revolving Credit Advances into, Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist. The Borrower's right to require an
assignment in accordance with clause (b)(ii) below shall not be effective to the
extent that Lenders representing a majority of the Commitments then outstanding
shall be "Affected Lenders".
(b) The Borrower shall, within five days of receiving a notice from any
Affected Lender pursuant to clause (a) of this Section 2.12, elect (and shall
notify such Affected Lender and the Agent of such election) to:
(i) prepay in full all Eurodollar Rate Advances or LIBO Rate Advances
then outstanding, together with interest thereon, unless in the case of
Eurodollar Rate Advances the Borrower, within five Business Days of written
notice from the Agent, converts all Eurodollar Rate Advances of all Lenders
then outstanding into Base Rate Advances in accordance with Section 2.09;
or
(ii) require that such Affected Lender assign to the Borrower's
designated assignee or assignees, in accordance with the terms of Section
8.07, all Advances then owing to such Affected Lender and all rights and
obligations of such Affected Lender hereunder; provided that (A) each such
--------
assignment shall be either an assignment of all of the rights and
obligations of the assigning Affected Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently
with another such assignment or assignments which together cover all of the
rights and obligations of the assigning Affected Lender under this
Agreement, (B) no Affected Lender shall be obligated to make any such
assignment as a result of a demand by the Borrower pursuant to this Section
2.12(b) unless and until such Affected Lender shall have received one or
more payments from either the Borrower or one or more assignees in an
aggregate amount at least equal to the aggregate outstanding principal
amount of all Advances owing to such Affected Lender, together with accrued
interest thereon to the date of payment of such principal amount, all
facility fees and other fees payable to such Affected Lender and all other
amounts payable to such Affected Lender under this Agreement (including,
but not limited to, any increased costs or other additional amounts
(computed in accordance with Section 2.11), and any Taxes, incurred by such
Affected Lender prior to the effective date of such assignment and amounts
payable under Section 8.04(a)) and (C) each such assignment shall be made
pursuant to an Assignment and Acceptance; provided, however, that such
-------- -------
assignment shall not be effective if, after giving effect to such
assignment, the aggregate amount of the Commitments so assigned or
terminated under this Section 2.12(b) and Section 2.11 during the term of
this Agreement would exceed 25% of the aggregate amount of the Commitments
as of the Effective Date. Upon such payments and prepayments, the
obligations of such Affected Lender hereunder, by the provisions hereof,
shall be released and discharged; provided, however, that such Affected
-------- -------
Lender's rights under Sections 2.11, 2.14 and 8.04(b), and its obligations
under Section 7.05, shall survive such release and discharge as to matters
occurring prior to the date of termination of such Affected Lender's
Commitment.
SECTION 2.13. Payments and Computations. (a) Each Borrower shall
-------------------------
make each payment hereunder and under the Notes not later than 11:00 A.M. (New
York City time) on the day when due in U.S. dollars to the Agent at the Agent's
Account in same day funds. The Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or
facility fees ratably (other than amounts payable pursuant to Section 2.03,
2.11, 2.14 or 8.04(c)) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of any other
amount payable to any Lender to such Lender for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon any Assuming Lender becoming a Lender hereunder as a result of
an extension of the Termination Date pursuant to Section 2.17, and upon the
Agent's receipt of such Lender's Assumption Agreement and recording of the
information contained therein in the Register, from and after the applicable
Extension Date, the Agent shall make all payments hereunder and under any Notes
issued in connection therewith in respect of the interest assumed thereby to the
Assuming Lender. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(d), from and after the effective date specified in such
20
Assignment and Acceptance, the Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) All computations of interest based on the Base Rate shall be made
by the Agent on the basis of a year of 365 or 366 days, as the case may be, and
all computations of interest based on the Eurodollar Rate or the LIBO Rate or
the Federal Funds Rate or in respect of Fixed Rate Advances and of facility fees
shall be made by the Agent on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or facility fees are payable.
Each determination by the Agent of an interest rate and of facility fees
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(c) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or facility fee, as the case
may be; provided, however, that, if such extension would cause payment of
-------- -------
interest on or principal of Eurodollar Rate Advances or LIBO Rate Advances to be
made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(d) Unless the Agent shall have received notice from the relevant
Borrower prior to the date on which any payment is due to the Lenders hereunder
that such Borrower will not make such payment in full, the Agent may assume that
such Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent such Borrower shall not have so made such payment in full to
the Agent, each Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrowers
-----
hereunder or under the Notes shall be made, in accordance with Section 2.13,
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, excluding, in the case of each Lender and the Agent, taxes
---------
imposed on its overall net income, and franchise taxes imposed on it in lieu of
net income taxes, by the jurisdiction under the laws of which such Lender or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction
of such Lender's Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If any Borrower shall be required by law to
-----
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender or the Agent, (i) the sum payable shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such Lender or
the Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Borrower shall make such
deductions and (iii) such Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Borrowers shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "Other
-----
Taxes").
-----
(c) The Borrowers shall indemnify each Lender and the Agent for and
hold it harmless against the full amount of Taxes or Other Taxes (including,
without limitation, taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 2.14) imposed on or paid by such Lender or the Agent
(as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto.
21
This indemnification shall be made within 30 days from the date such Lender or
the Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
making such payment shall furnish to the Agent, at its address referred to in
Section 8.02, the original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder or under the Notes by or on behalf
of such Borrower through an account or branch outside the United States or by or
on behalf of such Borrower by a payor that is not a United States person, if
such Borrower determines that no Taxes are payable in respect thereof, such
Borrower shall furnish, or shall cause such payor to furnish, to the Agent, at
such address, an opinion of counsel acceptable to the Agent stating that such
payment is exempt from Taxes. For purposes of this subsection (d) and subsection
(e), the terms "United States" and "United States person" shall have the
------------- --------------------
meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assumption
Agreement or the Assignment and Acceptance pursuant to which it becomes a Lender
in the case of each other Lender, and from time to time thereafter as requested
in writing by the Borrowers (but only so long as such Lender remains lawfully
able to do so), shall provide each of the Agent and the Borrowers with two
original Internal Revenue Service forms W-8BEN or W-8ECI, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Notes. If the form
provided by a Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender provides the appropriate forms certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided,
--------
however, that, if at the date of the Assignment and Acceptance pursuant to which
-------
a Lender assignee becomes a party to this Agreement, the Lender assignor was
entitled to payments under subsection (a) in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender assignee
on such date. If any form or document referred to in this subsection (e)
requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service form W-8BEN or W-8ECI, that the Lender reasonably considers to
be confidential, the Lender shall give notice thereof to the Borrowers and shall
not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender has failed to provide
the Borrowers with the appropriate form described in Section 2.14(e) (other than
----- ----
if such failure is due to a change in law occurring subsequent to the date on
which a form originally was required to be provided, or if such form otherwise
is not required under subsection (e) above), such Lender shall not be entitled
to indemnification under Section 2.14(a) or (c) with respect to Taxes imposed by
the United States by reason of such failure; provided, however, that should a
-------- -------
Lender become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrowers shall take such steps as the Lender shall reasonably
request to assist the Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant to this
Section 2.14 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurodollar Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any
------------------------
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Revolving Credit Advances owing to it
(other than pursuant to Section 2.11, 2.14 or 8.04(c)) in excess of its ratable
share of payments on account of the Revolving Credit Advances obtained by all
the Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Revolving Credit Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
-------- -------
payment is thereafter recovered from such purchasing Lender, such purchase from
22
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. Each Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of
such Borrower in the amount of such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances shall be
---------------
available (and each Borrower agrees that it shall use such proceeds) solely for
general corporate purposes of such Borrower and its Subsidiaries.
SECTION 2.17. Extension of Termination Date. (a) At least 60 days
-----------------------------
but not more than 90 days prior to each anniversary of the Effective Date, the
Borrowers, by written notice to the Agent, may request an extension of the
Termination Date in effect at such time by one year from its then scheduled
expiration. The Agent shall promptly notify each Lender of such request, and
each Lender shall in turn, in its sole discretion, not earlier than 30 days but
not later than 20 days prior to such anniversary date, notify the Borrowers and
the Agent in writing as to whether such Lender will consent to such extension,
such notice to be in substantially the form of Exhibit E hereto. If any Lender
shall fail to notify the Agent and the Borrowers in writing of its consent to
any such request for extension of the Termination Date at least 20 days prior to
such anniversary date, such Lender shall be deemed to be a Non-Consenting Lender
with respect to such request. The Agent shall notify the Borrowers in writing
not later than 15 days prior to such anniversary date of the decision of the
Lenders regarding the Borrowers' request for an extension of the Termination
Date.
(b) If all the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.16, the Termination Date in
effect at such time shall, effective as at the applicable anniversary of the
Effective Date (the "Extension Date"), be extended for one year; provided that
-------------- --------
on each Extension Date, the applicable conditions set forth in Article III shall
be satisfied. If less than all of the Lenders consent in writing to any such
request in accordance with subsection (a) of this Section 2.16, the Termination
Date in effect at such time shall, effective as at the applicable Extension
Date, be extended as to those Lenders that so consented (each a "Consenting
----------
Lender") but shall not be extended as to any other Lender (each a "Non-
------ ----
Consenting Lender"). To the extent that the Termination Date is not extended as
-----------------
to any Lender pursuant to this Section 2.16 and the Commitment of such Lender is
not assumed in accordance with subsection (c) of this Section 2.16 on or prior
to the applicable Extension Date, the Commitment of such Non-Consenting Lender
shall automatically terminate in whole on such unextended Termination Date
without any further notice or other action by the Borrowers, such Lender or any
other Person; provided that such Non-Consenting Lender's rights under Sections
--------
2.11, 2.14 and 8.04, and its obligations under Section 7.05, shall survive the
Termination Date for such Lender as to matters occurring prior to such date. It
is understood and agreed that no Lender shall have any obligation whatsoever to
agree to any request made by the Borrowers for any requested extension of the
Termination Date.
(c) If less than all of the Lenders consent to any such request
pursuant to subsection (a) of this Section 2.17, the Agent shall promptly so
notify the Consenting Lenders, and each Consenting Lender may, in its sole
discretion, give written notice to the Agent not later than 10 days prior to the
Extension Date of the amount of the Non-Consenting Lenders' Commitments for
which it is willing to accept an assignment. If the Consenting Lenders notify
the Agent that they are willing to accept assignments of Commitments in an
aggregate amount that exceeds the amount of the Commitments of the Non-
Consenting Lenders, such Commitments shall be allocated among the Consenting
Lenders willing to accept such assignments in such amounts as are agreed between
the Borrowers and the Agent. If after giving effect to the assignments of
Commitments described above there remains any Commitments of Non-Consenting
Lenders, the Borrowers may arrange for one or more Consenting Lenders or other
Eligible Assignees that agrees to an extension of the Termination Date (an
"Assuming Lender") to assume, effective as of the Extension Date, any Non-
---------------
Consenting Lender's Commitment and all of the obligations of such Non-Consenting
Lender under this Agreement thereafter arising, without recourse to or warranty
by, or expense to, such Non-Consenting Lender; provided, however, that the
-------- -------
amount of the Commitment of any such Assuming Lender as a result of such
substitution shall in no event be less than $10,000,000 unless the amount of the
23
Commitment of such Non-Consenting Lender is less than $10,000,000, in which case
such Assuming Lender shall assume all of such lesser amount; and provided
--------
further that:
-------
(i) any such Consenting Lender or Assuming Lender shall have paid to
such Non-Consenting Lender (A) the aggregate principal amount of, and any
interest accrued and unpaid to the effective date of the assignment on, the
outstanding Advances, if any, of such Non-Consenting Lender plus (B) any
----
accrued but unpaid facility fees owing to such Non-Consenting Lender as of
the effective date of such assignment;
(ii) all additional costs reimbursements, expense reimbursements and
indemnities payable to such Non-Consenting Lender, and all other accrued
and unpaid amounts owing to such Non-Consenting Lender hereunder, as of the
effective date of such assignment shall have been paid to such Non-
Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 8.07(a) for such
assignment shall have been paid by the Assuming Lender;
provided further that such Non-Consenting Lender's rights under Sections 2.11,
-------- -------
2.14 and 8.04, and its obligations under Section 7.05, shall survive such
substitution as to matters occurring prior to the date of substitution. At
least three Business Days prior to any Extension Date, (A) each such Assuming
Lender, if any, shall have delivered to the Borrowers and the Agent an
assumption agreement in substantially the form of Exhibit D (each an "Assumption
----------
Agreement") or an Assignment and Acceptance, as appropriate, duly executed by
---------
such Assuming Lender, such Non-Consenting Lender, the Borrowers and the Agent,
(B) any such Consenting Lender shall have delivered confirmation in writing
satisfactory to the Borrowers and the Agent as to the increase in the amount of
its Commitment and (C) each Non-Consenting Lender being replaced pursuant to
this Section 2.17 shall have delivered to the Agent any Note or Notes held by
such Non-Consenting Lender. Upon the payment or prepayment of all amounts
referred to in clauses (i), (ii) and (iii) of the immediately preceding
sentence, each such Consenting Lender or Assuming Lender, as of the Extension
Date, will be substituted for such Non-Consenting Lender under this Agreement
and shall be a Lender for all purposes of this Agreement, without any further
acknowledgment by or the consent of the other Lenders, and the obligations of
each such Non-Consenting Lender hereunder shall, by the provisions hereof, be
released and discharged.
(d) If the Lenders having more than 50% of the Commitments (after
giving effect to any assignments pursuant to subsection (b) of this Section
2.17) consent in writing to a requested extension (whether by execution or
delivery of an Assumption Agreement, an Assignment and Acceptance or otherwise)
not later than one Business Day prior to such Extension Date, the Agent shall so
notify the Borrowers, and, upon satisfaction of the applicable conditions set
forth in Article III, the Termination Date then in effect shall be extended for
the additional one year period as described in subsection (a) of this Section
2.17, and all references in this Agreement, and in the Notes, if any, to the
"Termination Date" shall, with respect to each Consenting Lender and each
----------------
Assuming Lender for such Extension Date, refer to the Termination Date as so
extended. Promptly following each Extension Date, the Agent shall notify the
Lenders (including, without limitation, each Assuming Lender) of the extension
of the scheduled Termination Date in effect immediately prior thereto and shall
thereupon record in the Register the relevant information with respect to each
such Consenting Lender and each such Assuming Lender.
SECTION 2.18. Evidence of Debt. (a) Each Lender shall maintain in
----------------
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Advance owing
to such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder in respect
of Advances. Each Borrower agrees that upon notice by any Lender to such
Borrower (with a copy of such notice to the Agent) to the effect that a Note is
required or appropriate in order for such Lender to evidence (whether for
purposes of pledge, enforcement or otherwise) the Advances owing to, or to be
made by, such Lender, such Borrower shall promptly execute and deliver to such
Lender a Note payable to the order of such Lender in a principal amount up to
the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 8.07(d)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date and amount of
each Borrowing made hereunder, the Type of Advances comprising such Borrowing
and, if
24
appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assumption Agreement and each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due and payable or
to become due and payable from each Borrower to each Lender hereunder and (iv)
the amount of any sum received by the Agent from each Borrower hereunder and
each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant to
subsection (b) above, and by each Lender in its account or accounts pursuant to
subsection (a) above, shall be prima facie evidence of the amount of principal
----- -----
and interest due and payable or to become due and payable from each Borrower to,
in the case of the Register, each Lender and, in the case of such account or
accounts, such Lender, under this Agreement, absent manifest error; provided,
--------
however, that the failure of the Agent or such Lender to make an entry, or any
-------
finding that an entry is incorrect, in the Register or such account or accounts
shall not limit or otherwise affect the obligations of the Borrowers under this
Agreement.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
------------------------------------------------------
and 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and
--------
as of the first date (the "Effective Date") on which the following conditions
--------------
precedent have been satisfied:
(a) As of the Effective Date, there shall have occurred no Material
Adverse Change since December 31, 1999, other than any changes reflected in
subsequent filings by either Borrower with the Securities and Exchange
Commission prior to the date hereof.
(b) As of the Effective Date, there shall exist no action, suit,
investigation, litigation or proceeding affecting any Borrower or any of
its Consolidated Subsidiaries pending or, to its knowledge, threatened
before any court, governmental agency or arbitrator that (i) could be
reasonably likely to have a Material Adverse Effect other than the matters
described on Schedule 3.01(b) hereto (the "Disclosed Litigation") or (ii)
--------------------
purports and is reasonably likely to affect the legality, validity or
enforceability of this Agreement or any Note or the consummation of the
transactions contemplated hereby.
(c) As of the Effective Date, Pharmacia shall not have been notified
that anything has come to the attention of the Lenders during the course of
their due diligence investigation to lead them to believe that the
Information Memorandum was or has become misleading, incorrect or
incomplete in any material respect; without limiting the generality of the
foregoing, the Lenders shall have been given such access to the management,
records, books of account, contracts and properties of the Borrowers and
their Subsidiaries as they shall have reasonably requested.
(d) All governmental and third party consents and approvals necessary
in connection with the transactions contemplated hereby shall have been
obtained (without the imposition of any conditions that are not acceptable
to the Lenders) and shall remain in effect, and no law or regulation shall
be applicable in the reasonable judgment of the Lenders that restrains,
prevents or imposes materially adverse conditions upon the transactions
contemplated hereby.
(e) The Borrowers shall have notified each Lender and the Agent in
writing as to the proposed Effective Date.
(f) The Borrowers shall have paid all accrued fees and expenses of the
Agent and the Lenders (including the accrued fees and expenses of counsel
to the Agent).
(g) On the Effective Date, the following statements shall be true and
the Agent shall have received for the account of each Lender a certificate
signed by a duly authorized officer of Pharmacia, dated the Effective Date,
stating that:
25
(i) The representations and warranties of Pharmacia contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(h) The Agent shall have received on or before the Effective Date the
following, each dated such day, in form and substance satisfactory to the Agent
and (except for the Revolving Credit Notes) in sufficient copies for each
Lender:
(i) The Revolving Credit Notes to the order of the Lenders to the
extent requested by any Lender pursuant to Section 2.18.
(ii) Certified copies of the resolutions of the Board of Directors of
Pharmacia approving this Agreement and the Revolving Credit Notes to be
delivered by it, and of all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to this Agreement
and such Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of
Pharmacia certifying the names and true signatures of the officers of such
Borrower authorized to sign this Agreement and such Notes to be delivered by
it and the other documents to be delivered by it hereunder.
(iv) A favorable opinion of the General Counsel or Associate General
Counsel of Pharmacia, in form and substance satisfactory to the Agent.
(v) A favorable opinion of Shearman & Sterling, counsel for the Agent,
in form and substance satisfactory to the Agent.
(i) The Borrowers shall have terminated the commitments, and paid in full
all Debt, interest, fees and other amounts outstanding, under (i) the 364-Day
Credit Agreement dated as of August 10, 1999 among Monsanto Company, the lenders
and agents parties thereto and Citibank, as administrative agent and (ii) the
Five-Year Credit Agreement dated as of August 15, 1994, as amended and restated
as of February 2, 1995 and as amended and restated as of February 13, 1996 among
Monsanto Company, the lenders and agents parties thereto and Citibank, as
administrative agent, and each of the Lenders that is a party to each such
credit agreement hereby waives, upon execution of this Agreement the requirement
of prior notice under each such credit agreement relating to the termination of
commitments thereunder.
SECTION 3.02. Conditions Precedent to Monsanto Effective Date. Sections
-----------------------------------------------
2.01 and 2.03 shall become effective as to Monsanto on and as of the first date
(the "Monsanto Effective Date") on which the following conditions precedent have
-----------------------
been satisfied:
(a) On the Monsanto Effective Date, the following statements shall be
true and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer Monsanto, dated the Monsanto
Effective Date, stating that:
(i) The representations and warranties of Monsanto contained in Section
4.01 are correct on and as of the Monsanto Effective Date, and
(ii) No event has occurred and is continuing that constitutes a
Default.
(b) The Agent shall have received on or before the Monsanto Effective
Date the following, each dated such day, in form and substance satisfactory to
the Agent and in sufficient copies for each Lender:
(i) Certified copies of the resolutions of the Board of Directors of
Monsanto approving (or ratifying) this Agreement and the Notes to be delivered
by it, and of all documents
26
evidencing other necessary corporate action and governmental approvals, if
any, with respect to this Agreement and such Notes.
(ii) A certificate of the Secretary or an Assistant Secretary of
Monsanto certifying the names and true signatures of the officers of
Monsanto authorized to sign this Agreement and the Notes to be delivered by
it and the other documents to be delivered hereunder.
(iii) A favorable opinion of the General Counsel or Associate General
Counsel of Monsanto, in form and substance satisfactory to the Agent.
(iv) A certified, executed copy of each of the "separation agreement",
the "corporate agreement", the "tax sharing agreement", the "intellectual
property transfer agreement" and the "employee benefits and compensation
allocation agreement" (as described in Monsanto's Form S-1 attached to the
Information Memorandum) relating to the Net Asset Transfer and a copy of
Monsanto's up-dated Form S-1 relating to the Net Asset Transfer.
(c) The Net Asset Transfer shall have been consummated in a manner not
materially inconsistent with the manner described in the Information Memorandum
(and this condition shall be deemed to have been satisfied if the Agent or any
Lender has not given notice to the contrary to the Borrower within 5 Business
Days after actual receipt by the Agent or such Lender, as applicable, of the
documents described in Section 3.02(b)(iv)) and (B) that immediately after
consummation of the Net Asset Transfer, Consolidated Net Worth of Monsanto is at
least $5,750,000,000.
SECTION 3.03. Conditions Precedent to Each Revolving Credit Borrowing
-------------------------------------------------------
and Extension Date. The obligation of each Lender to make a Revolving Credit
--------------
Advance on the occasion of each Revolving Credit Borrowing and each extension of
Commitments pursuant to Section 2.17 shall be subject to the conditions
precedent that the Effective Date shall have occurred and on the date of such
Revolving Credit Borrowing or the applicable Extension Date the following
statements shall be true (and each of the giving of the applicable Notice of
Revolving Credit Borrowing, request for Commitment Extension and the acceptance
by the relevant Borrower of the proceeds of such Revolving Credit Borrowing
shall constitute a representation and warranty by such Borrower that on the date
of such Revolving Credit Borrowing or such Extension Date such statements are
true):
(a) the representations and warranties contained in Section 4.01
(except in the case of each Revolving Credit Borrowing, the representations
set forth in subsection (e) thereof and in subsection (f)(i) thereof) are
correct on and as of the date of such Revolving Credit Borrowing or such
Extension Date, before and after giving effect to such Revolving Credit
Borrowing or such Extension Date and to the application of the proceeds
therefrom, as though made on and as of such date, and
(b) no event has occurred and is continuing, or would result from such
Revolving Credit Borrowing or such Extension Date or from the application
of the proceeds therefrom, that constitutes a Default.
SECTION 3.04. Conditions Precedent to Each Competitive Bid Borrowing.
------------------------------------------------------
The obligation of each Lender that is to make a Competitive Bid Advance on the
occasion of a Competitive Bid Borrowing to make such Competitive Bid Advance as
part of such Competitive Bid Borrowing is subject to the conditions precedent
that (i) the Agent shall have received the written confirmatory Notice of
Competitive Bid Borrowing with respect thereto, (ii) on or before the date of
such Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing, the
Agent shall have received a Competitive Bid Note payable to the order of such
Lender for each of the one or more Competitive Bid Advances to be made by such
Lender as part of such Competitive Bid Borrowing, in a principal amount equal to
the principal amount of the Competitive Bid Advance to be evidenced thereby and
otherwise on such terms as were agreed to for such Competitive Bid Advance in
accordance with Section 2.03, and (iii) on the date of such Competitive Bid
Borrowing the following statements shall be true (and each of the giving of the
applicable Notice of Competitive Bid Borrowing and the acceptance by the
relevant Borrower of the proceeds of such Competitive Bid Borrowing shall
constitute a representation and warranty by such Borrower that on the date of
such Competitive Bid Borrowing such statements are true):
27
(a) the representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection (e)
thereof and in subsection (f)(i) thereof) are correct on and as of the date of
such Competitive Bid Borrowing, before and after giving effect to such
Competitive Bid Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date, and
(b) no event has occurred and is continuing, or would result from such
Competitive Bid Borrowing or from the application of the proceeds therefrom,
that constitutes a Default.
SECTION 3.05. Determinations Under Sections 3.01 and 3.02. For
-------------------------------------------
purposes of determining compliance with the conditions specified in Section 3.01
and 3.02, each Lender shall be deemed to have consented to, approved or accepted
or to be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Agent responsible for the transactions contemplated by this
Agreement shall have received notice from such Lender prior to the date that the
Borrowers, by notice to the Lenders, designate as the proposed Effective Date or
Monsanto Effective Date, as the case may be, specifying its objection thereto.
The Agent shall promptly notify the Lenders of the occurrence of the Effective
Date or Monsanto Effective Date, as the case may be.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers. Each
-----------------------------------------------
Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by such Borrower of this
Agreement and the Notes to be delivered by it, and the consummation of the
transactions contemplated hereby, are within such Borrower's corporate
powers, have been duly authorized by all necessary corporate action, and do
not contravene (i) such Borrower's charter or by-laws or (ii) law or any
contractual restriction binding on or affecting such Borrower.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
such Borrower of this Agreement or the Notes to be delivered by it, other
than those authorizations, approvals, notices, filings and actions that
have been obtained, filed or taken on or before the Effective Date (in the
case of Pharmacia) or the Monsanto Effective Date (in the case of
Monsanto).
(d) This Agreement has been, and each of the Notes to be delivered by
it when delivered hereunder will have been, duly executed and delivered by
such Borrower. This Agreement is, and each of the Notes when delivered
hereunder will be, the legal, valid and binding obligation of such Borrower
enforceable against such Borrower in accordance with their respective
terms.
(e) The Consolidated balance sheet of such Borrower and its
Subsidiaries as at December 31, 1999, and the related Consolidated
statements of income and cash flows of such Borrower and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of
PricewaterhouseCoopers LLP or Deloitte & Touche LLP, as applicable,
independent public accountants, and the Consolidated balance sheet of the
Borrower and its Subsidiaries as at March 31, 2000, and the related
Consolidated statements of income and cash flows of such Borrower and its
Subsidiaries for the three months then ended, duly certified by the Chief
Financial Officer, Treasurer, Assistant Treasurer, Controller or Assistant
Controller of such Borrower, copies of which have been furnished to each
Lender, fairly present, subject, in the case of said balance sheet as at
March 31, 2000, and said statements of income and cash flows for the three
months then ended, to year-end audit adjustments, the Consolidated
financial condition of such Borrower and its Subsidiaries as at such dates
and the Consolidated results of the operations of such Borrower and its
28
Subsidiaries for the periods ended on such dates, all in accordance with
generally accepted accounting principles consistently applied. Except as
disclosed in Pharmacia's Quarterly Report on Form 10-Q for the quarter
ending March 31, 2000 and Monsanto's Form S-1 filed on May 12, 2000, as
amended, since December 31, 1999, there has been no Material Adverse
Change.
(f) There is no pending or, to the knowledge of such Borrower,
threatened action, suit, investigation, litigation or proceeding,
including, without limitation, any Environmental Action, affecting such
Borrower or any of its Consolidated Subsidiaries before any court,
governmental agency or arbitrator that (i) is reasonably likely to have a
Material Adverse Effect (other than the Disclosed Litigation), and there
has been no material adverse change in the status, or financial effect on
such Borrower or any of its Consolidated Subsidiaries, of the Disclosed
Litigation from that described on Schedule 3.01(b) hereto or (ii) purports
to affect the legality, validity or enforceability of this Agreement, any
Note or the consummation of the transactions contemplated hereby.
(g) Such Borrower is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 4.02. Representation and Warranty of the Lenders. Each Lender
------------------------------------------
represents and warrants that in good faith it has not and will not rely upon any
margin stock (as such term is defined in Regulation U of the Board of Governors
of the Federal Reserve System) as collateral in the making and maintaining of
its Advances hereunder.
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
---------------------
remain unpaid or any Lender shall have any Commitment hereunder, each Borrower
will:
(a) Compliance with Laws, Etc. Comply, and cause each of its Material
--------------------------
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA and Environmental Laws, except such non-
compliance as would not have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
---------------------
Material Subsidiaries to pay and discharge, before the date on which
penalties are attached thereto, all taxes, assessments and governmental
charges or levies imposed upon it or upon its property; provided, however,
-------- -------- -------
that neither Borrower nor any of its Material Subsidiaries shall be
required to pay or discharge any such tax, assessment, charge or claim that
is being contested in good faith and by proper proceedings or are not of
material importance to the business, financial condition or results of
operations of the Borrower and its Consolidated Subsidiaries.
(c) Maintenance of Insurance. Maintain, and cause each of its Material
------------------------
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
as is consistent with prudent business practice. This section shall not
prevent the use of deductible or excess loss insurance and shall not
prevent a Borrower or a Consolidated Subsidiary from acting as a self-
insurer or maintaining insurance with a Subsidiary or Subsidiaries so long
as such action is consistent with sound business practice.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain its
-----------------------------------------
corporate existence, rights (charter and statutory) and franchises;
provided, however, that each Borrower may consummate any merger or
-------- -------
consolidation permitted under Section 5.02(b) and provided further that
-------- -------
neither Borrower shall be required to preserve any right or franchise if
such Borrower shall determine that the preservation thereof is no longer
desirable in the conduct of the business of such Borrower.
29
(e) Keeping of Books. Keep, and cause each of its Material
----------------
Subsidiaries to keep, proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of such Borrower and each such Material Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(f) Reporting Requirements. Furnish to the Agent, and in sufficient
----------------------
copies for the Lenders (provided, however, that, in the case of the
-------- -------
Consolidated balance sheet and Consolidated statements of income and cash flows
referred to in clause (i) below, the annual audit report and accompanying
information referred to in clause (ii) below and the reports and registration
statements referred to in clause (iv) below, such information will be deemed to
have been furnished to the Agent if it is readily available through XXXXX):
(i) as soon as available and in any event within 60 days after the end
of each of the first three quarters of each fiscal year of such Borrower,
the Consolidated balance sheet of such Borrower and its Subsidiaries as of
the end of such quarter and Consolidated statements of income and cash
flows of such Borrower and its Subsidiaries for the period commencing at
the end of the previous fiscal year and ending with the end of such
quarter, duly certified (subject to year-end audit adjustments) by the
Chief Financial Officer, Treasurer, Assistant Treasurer, Controller,
Assistant Controller, or other authorized financial officer of such
Borrower as having been prepared in accordance with generally accepted
accounting principles and certificates of the Chief Financial Officer
Treasurer, Assistant Treasurer, Controller or Assistant Controller of such
Borrower as to compliance with the terms of this Agreement;
(ii) as soon as available and in any event within 180 days after the end
of each fiscal year of such Borrower, a copy of the annual audit report for
such year for such Borrower and its Subsidiaries, containing the
Consolidated balance sheet of such Borrower and its Subsidiaries as of the
end of such fiscal year and Consolidated statements of income and cash
flows of such Borrower and its Subsidiaries for such fiscal year, in each
case accompanied by an opinion acceptable to the Required Lenders by
PricewaterhouseCoopers LLP, Deloitte & Touche LLP or other independent
public accountants acceptable to the Required Lenders;
(iii) as soon as possible and in any event within five days after the
determination by the Borrower of the occurrence of a Default that is
continuing on the date of such statement, a statement of the Chief
Financial Officer, Treasurer, Assistant Treasurer, Controller, Assistant
Controller, or other authorized financial officer of the relevant Borrower
setting forth details of such Default and the action that such Borrower has
taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies of all
material reports that such Borrower sends to its securityholders (or any
class of them) or its creditors (or any class of them), and copies of all
reports and registration statements that such Borrower or any Subsidiary
files with the Securities and Exchange Commission;
(v) promptly after the commencement thereof, notice of all actions and
proceedings before any court, governmental agency or arbitrator affecting
such Borrower or any of its Subsidiaries of the type described in Section
4.01(f); and
(vi) such other information (excluding trade secrets) respecting such
Borrower or any of its Subsidiaries as any Lender through the Agent may
from time to time reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance shall
------------------
remain unpaid or any Lender shall have any Commitment hereunder, no Borrower
will:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
----------
Material Subsidiaries to create or suffer to exist, any Lien on or with respect
to any of its properties, whether now owned or hereafter
30
acquired, or assign, or permit any of its Material Subsidiaries to assign, any
right to receive income, other than:
(i) (A) Liens for taxes, assessments, governmental charges or levies
or other amounts owed to governmental entities other than for borrowed
money; (B) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens and other similar Liens arising
in the ordinary course of business securing obligations that are not
overdue for a period of more than 30 days or that are being contested in
good faith; (C) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or statutory
obligations; (D) easements, rights of way and other encumbrances on title
to real property that do not render title to the property encumbered
thereby unmarketable or materially adversely affect the use of such
property for its present purposes; and (E) Liens in favor of a landlord
arising in the ordinary course of business,
(ii) purchase money Liens upon or in any property, assets or stock
acquired or held by the Borrower or any Material Subsidiary in the ordinary
course of business to secure the purchase price or construction cost of
such property or to secure Debt incurred solely for the purpose of
financing the acquisition or construction of such property whether incurred
prior or subsequent to such acquisition or construction, or Liens existing
on such property at the time of its acquisition (other than any such Lien
created in contemplation of such acquisition) or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount,
provided, however, that no such Lien shall extend to or cover any property
-------- -------
other than the property being acquired, and no such extension, renewal or
replacement shall extend to or cover any property not theretofore subject
to the Lien being extended, renewed or replaced,
(iii) Liens existing on the Effective Date,
(iv) (A) assignments of the right to receive income in connection with
any Permitted Receivables Financing and (B) other Liens that would
otherwise be prohibited; provided that the Aggregate Amount of Financing
--------
Outstanding in connection with Permitted Receivables Financings described
in clause (A), plus the aggregate principal amount of Debt secured by Liens
described in clause (B) at any time outstanding, shall not exceed 10% of
the Consolidated Net Worth of such Borrower at such time,
(v) the replacement, extension or renewal of any Lien permitted by
clauses (ii) and (iii) above upon or in the same property theretofore
subject thereto or the replacement, extension or renewal (without increase
in the amount or change in any direct or contingent obligor) of the amount
secured thereby, and
(vi) intercompany Liens.
(b) Mergers, Etc. Merge or consolidate with or into, or convey, transfer,
------------
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to, any Person, or permit any of its Material Subsidiaries
to do so, except that (x) any Material Subsidiary of such Borrower may merge or
consolidate with or into, or dispose of assets to, any other Material Subsidiary
of such Borrower or any other Subsidiary of such Borrower that shall become a
Material Subsidiary as a result of such transaction and (y) any Material
Subsidiary of such Borrower may merge into or dispose of assets to such
Borrower, provided, in each case, that no Default shall have occurred and be
--------
continuing at the time of such proposed transaction or would result therefrom.
Nothing in this Section 5.02(b) shall prevent the consummation of the net asset
transfer by Pharmacia to Monsanto consistent with the methodology described in
the Information Memorandum.
(c) Change in Nature of Business. Make, or permit any of its Subsidiaries
----------------------------
to make, any material change in the nature of its business taken as a whole as
carried on at the date hereof.
31
SECTION 5.03. Financial Covenant. So long as any Advance shall
------------------
remain unpaid or any Lender shall have any Commitment hereunder, each Borrower
shall maintain at the end of each fiscal quarter of such Borrower a Leverage
Ratio of not more than 0.45:1.00.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
-----------------
("Events of Default") shall occur and be continuing:
-----------------
(a) Any Borrower shall fail to pay any principal of any Advance when
the same becomes due and payable; or any Borrower shall fail to pay any
interest on any Advance or make any other payment of fees or other amounts
payable under this Agreement or any Note within five Business Days after
the same becomes due and payable; or
(b) Any representation or warranty made by any Borrower herein or by
any Borrower (or any of its officers) in connection with this Agreement
shall prove to have been incorrect in any material respect when made; or
(c) (i) Any Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d) or (f)(iii), 5.02(a),
5.02(b) or 5.03, or (ii) any Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(f)(i) or (ii) if such
failure shall remain unremedied for 5 days after written notice thereof
shall have been given to such Borrower by the Agent or any Lender, or (iii)
any Borrower shall fail to perform or observe any other term, covenant or
agreement contained in this Agreement on its part to be performed or
observed if such failure shall remain unremedied for 30 days after written
notice thereof shall have been given to such Borrower by the Agent or any
Lender; or
(d) Any Borrower or any of its Material Subsidiaries shall fail to pay
any principal of or premium or interest on any Debt that is outstanding in
a principal or notional amount of at least $50,000,000 in the aggregate
(but excluding Debt outstanding hereunder) of such Borrower or such
Material Subsidiary (as the case may be), when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument relating to
such Debt; or any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or an
offer to prepay, redeem, purchase or defease such Debt shall be required to
be made, in each case prior to the stated maturity thereof; or
(e) Any Borrower or any of its Material Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against any Borrower or any of its Material Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in
the case of any such proceeding instituted against it (but not instituted
by it), either such proceeding shall remain undismissed or unstayed for a
period of 30 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against,
or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur;
or any Borrower or any of its Material Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in this
subsection (e); or
32
(f) Any judgment or order for the payment of money in excess of
$75,000,000 in the aggregate shall be rendered against any Borrower or any
of its Material Subsidiaries and either (i) a lawsuit shall have been
properly commenced by any creditor to enforce such judgment or order or
(ii) such judgment is not, within 30 days after entry thereof, paid,
bonded, discharged or stayed during appeal, or is not discharged within 30
days after the expiration of such stay; provided, however, that the
-------- -------
rendering of any such judgment or order shall not be an Event of Default
under this Section 6.01(f) if and for so long as (i) the amount of such
judgment or order is covered by a valid and binding policy of insurance
between the defendant and the insurer covering payment thereof and (ii)
such insurer, which shall be rated at least "A" by A.M. Best Company, has
been notified of, and has not properly disputed the claim made for payment
of, the amount of such judgment or order; or
(g) Any Person or two or more Persons acting in concert (other than,
in the case of Monsanto, Pharmacia and its Subsidiaries) shall have, on or
after the date of this Agreement, acquired beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934), directly or indirectly, of Voting Stock
of any Borrower (or other securities convertible into such Voting Stock)
representing 25% or more of the combined voting power of all Voting Stock
of such Borrower; or (ii) during any period of up to 24 consecutive months,
commencing on or after the date of this Agreement, individuals who at the
beginning of such 24-month period were directors of any Borrower (together
with any new directors who (A) were properly and duly elected to the board
of directors pursuant to such Borrower's bylaws by the affirmative vote of
a majority of the remaining directors then in office or (B) were nominated
by a majority of the remaining members of the board of directors of such
Borrower and thereafter elected as directors by the shareholders of such
Borrower) shall cease for any reason to constitute a majority of the board
of directors of such Borrower; or
(h) Any Borrower or any of its ERISA Affiliates shall incur, or, in
the reasonable opinion of the Required Lenders, shall be reasonably likely
to incur liability in excess of $75,000,000 in the aggregate as a result of
one or more of the following: (i) the occurrence of any ERISA Event,
provided that the occurrence of the ERISA Event described in PBGC
--------
Regulation Sections 4040.23, 4043.29 or 4043.32 shall constitute an Event
of Default under this Section 6.01(h) only if it is reasonably expected to
result in a Material Adverse Effect, (ii) the partial or complete
withdrawal of such Borrower or any of its ERISA Affiliates from a
Multiemployer Plan; or (iii) the reorganization or termination of a
Multiemployer Plan;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrowers, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrowers, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrowers; provided, however, that in the
-------- -------
event of an actual or deemed entry of an order for relief with respect to any
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrowers.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints
------------------------
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
-------- -------
required to take any action that exposes the Agent to personal
33
liability or that is contrary to this Agreement or applicable law. The Agent
agrees to give to each Lender prompt notice of each notice given to it by any
Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of its
---------------------
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (i) may treat the
Lender that made any Advance as the holder of the Debt resulting therefrom until
the Agent receives and accepts an Assumption Agreement entered into by an
Assuming Lender as provided in Section 2.17 or an Assignment and Acceptance
entered into by such Lender, as assignor, and an Eligible Assignee, as assignee,
as provided in Section 8.07; (ii) may consult with legal counsel (including
counsel for the Borrowers), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of any Borrower or to inspect the property (including the
books and records) of any Borrower; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in respect
of this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram or telex) believed
by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
-----------------------
Commitment, the Advances made by it and any Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, any
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of any Borrower or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that
----------------------
it has, independently and without reliance upon the Agent or any other Lender
and based on the financial statements referred to in Section 4.01 and such other
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 Agent 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.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the
---------------
Agent (to the extent not reimbursed by the Borrowers), ratably according to the
respective principal amounts of the Revolving Credit Advances then owed to each
of them (or if no Revolving Credit Advances are at the time outstanding, ratably
according to the respective amounts of their Commitments), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the Agent in
any way relating to or arising out of this Agreement or any action taken or
omitted by the Agent under this Agreement (collectively, the "Indemnified
-----------
Costs"), provided that no Lender shall be liable for any portion of the
----- --------
Indemnified Costs resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including counsel fees) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Agent is not reimbursed for such expenses by the
Borrowers. In the case of any investigation, litigation or proceeding giving
rise to any Indemnified Costs, this Section 7.05 applies whether any such
investigation, litigation or proceeding is brought by the Agent, any Lender or a
third party.
34
SECTION 7.06. Successor Agent. The Agent may resign at any time by
---------------
giving written notice thereof to the Lenders and the Borrowers and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $50,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 7.07. Other Agents. Each Lender hereby acknowledges that
------------
neither the documentation agent nor any other Lender designated as any "Agent"
on the signature pages hereof has any liability hereunder other than in its
capacity as a Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
---------------
provision of this Agreement or the Revolving Credit Notes, nor consent to any
departure by any Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
-------- -------
or consent shall, unless in writing and signed by all the Lenders, do any of the
following: (a) waive any of the conditions specified in Section 3.01, (b)
increase the Commitments of the Lenders or subject the Lenders to any additional
obligations, (c) reduce the principal of, or interest on, the Revolving Credit
Advances or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Revolving Credit
Advances or any fees or other amounts payable hereunder, (e) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Revolving Credit Advances, or the number of Lenders, that shall be required for
the Lenders or any of them to take any action hereunder or (f) amend this
Section 8.01; provided further that no amendment, waiver or consent shall,
-------- -------
unless in writing and signed by the Agent in addition to the Lenders required
above to take such action, affect the rights or duties of the Agent under this
Agreement or any Note; and provided further that this Section 8.01 shall not
-------- -------
apply to changes in Commitments pursuant to Section 2.11, Section 2.12, Section
2.17 or any other Section of this Agreement.
SECTION 8.02. Notices, Etc. All notices and other communications
------------
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and mailed, telecopied, telegraphed, telexed or delivered,
if to Pharmacia, at its address at 000 Xxxxx 000 Xxxxx, Xxxxxxx, Xxx Xxxxxx,
00000, Attention: Xxxxxxxxx Xxx Xxxxx, Treasurer; if to Monsanto, at its address
at 000 X. Xxxxxxxxx Xxxxxxxxx, Xx Xxxxx, Xxxxxxxx 00000, Attention: Chief
Financial Officer, with an information copy to the Secretary at the same
address, if to any Initial Lender, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender, at its Domestic
Lending Office specified in the Assignment and Acceptance pursuant to which it
became a Lender; and if to the Agent, at its address at Xxx Xxxxx Xxx, Xxx
Xxxxxx, Xxxxxxxx 00000, Attention: Bank Loan Syndications Department; or, as to
the Borrowers or the Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written notice to
the Borrowers and the Agent. All such notices and communications shall, when
mailed, telecopied, telegraphed or telexed, be effective upon receipt. Delivery
by telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be executed
and delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
-------------------
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor
35
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrowers agree to pay on
------------------
demand all reasonable costs and expenses of the Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agent with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under this
Agreement. The Borrowers further agree to pay on demand all reasonable costs and
expenses of the Agent and the Lenders, if any (including, without limitation,
reasonable counsel fees and expenses), in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for the
Agent and each Lender in connection with the enforcement of rights under this
Section 8.04(a).
(b) Each Borrower severally agrees to indemnify and hold harmless the
Agent and each Lender and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
-----------------
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the actual or proposed use
of the proceeds of the Advances by such Borrower or any of its Subsidiaries or
(ii) the actual or alleged presence of Hazardous Materials on any property of
such Borrower or any of its Subsidiaries or any Environmental Action relating in
any way to such Borrower or any of its Subsidiaries, except to the extent such
claim, damage, loss, liability or expense resulted from such Indemnified Party's
gross negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 8.04(b)
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Borrower, its directors, shareholders
or creditors or an Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. The Borrowers also agree not to assert any
claim against the Agent, any Lender, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys and agents, on any theory
of liability, for special, indirect, consequential or punitive damages arising
out of or otherwise relating to the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance or LIBO Rate Advance is made by any Borrower to or for the account
of a Lender other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10
or 2.12, acceleration of the maturity of the Advances pursuant to Section 6.01
or for any other reason, or by an Eligible Assignee to a Lender other than on
the last day of the Interest Period for such Advance upon an assignment of
rights and obligations under this Agreement pursuant to Section 8.07 as a result
of a demand by the Borrowers pursuant to Section 8.07(a), the Borrowers shall,
upon demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion, including, without limitation, any
loss (excluding loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in Sections 2.11, 2.14 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Nothing herein shall derogate any
----------------
Lender's right, if any, if and to the extent payment owed to such Lender is not
made when due hereunder or under any Note held by such Lender, to set off from
time to time against any or all of a Borrower's deposit (general or special,
time or demand, provisional or final) accounts with such Lender any amount so
due. Each Lender agrees promptly to notify such
36
Borrower after any such set off and application made by such Lender, provided
that the failure to give such notice shall not affect the validity of such set
off and application. The rights of each Lender under this Section 8.05 are in
addition to other rights and remedies which such Lender may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
--------------
(other than Sections 2.01 and 2.03, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrowers and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of the
Borrowers, the Agent and each Lender and their respective successors and
assigns, except that the Borrowers shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may
------------------------------
and, if demanded by the Borrowers (following a demand by such Lender pursuant to
Section 2.11 or Section 2.12) upon at least 5 Business Days' notice to such
Lender and the Agent or if required pursuant to Section 2.17, will assign to one
or more Persons all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Revolving Credit Advances owing to it and any Revolving Credit Note or Notes
held by it, and any Competitive Bid Advances or Competitive Bid Notes held by it
required to be assigned pursuant to Section 2.11 or Section 2.12) with the
consent of the Agent and, so long as no Default has occurred and is continuing,
the Borrowers (which consent shall not unreasonably be withheld); provided,
--------
however, that (i) each such assignment shall be of a constant, and not a
-------
varying, percentage of all rights and obligations under this Agreement (other
than any Competitive Bid Advances owing to it and any Competitive Bid Notes held
by it, except any such Competitive Bid Advances or Competitive Bid Notes
required to be assigned pursuant to Section 2.11 or Section 2.12), (ii) except
in the case of an assignment to an Affiliate of such Lender or a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof, (iii) each such assignment
shall be to an Eligible Assignee, and (iv) the parties to each such assignment
shall execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Revolving Credit Note
subject to such assignment and a processing and recordation fee of $3,500. Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
(other than its rights under Sections 2.11, 2.14 and 8.04 to the extent any
claim thereunder relates to an event arising prior to such assignment) and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning 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 or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any
Borrower or the performance or observance by any Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning 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; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such
37
action as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender.
(c) The Agent shall maintain at its address referred to in Section 8.02
a copy of each Assumption Agreement and each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Advances owing to, each Lender from time to time (the "Register"). The entries
--------
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrowers, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrowers or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Revolving Credit Note or Notes subject to such assignment, the
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrowers.
(e) Each Lender may sell participations to one or more banks or other
entities (other than any Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and any
Note or Notes held by it); provided, however, that (i) such Lender's obligations
-------- -------
under this Agreement (including, without limitation, its Commitment to the
Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrowers, the Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of this Agreement or any Note or the Guaranty, or any
consent to any departure by any Borrower therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Advances or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, or postpone any date fixed for any payment
of principal of, or interest on, the Advances or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation.
Upon the sale of a participation pursuant to this Section 8.07(e), such Lender
shall promptly provide notice to the Borrowers of the sale of a participation
(other than a sale of a participation pursuant to Section 2.15); provided,
--------
however, that the failure by such Lender to provide such notice shall not
-------
invalidate the sale of such participation.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 8.07, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to any Borrower furnished to such Lender by or on behalf of
any Borrower; provided that, prior to any such disclosure, the assignee or
--------
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information relating to any Borrower
received by it from such Lender; provided further that, so long as no Default
-------- -------
has occurred and is continuing, the Borrower shall have consented in advance to
the disclosure of any non-public information, such consent not to be
unreasonably withheld.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and any Note held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
(h) Each Lender agrees that it will not assign any right, obligation or
Note, or sell any participation, in any manner or under any circumstances that
would require registration, qualification or filings under the securities laws
of the United States of America, of any state or any country.
38
SECTION 8.08. Confidentiality. Neither the Agent nor any Lender
---------------
shall disclose any Confidential Information to any other Person without the
consent of the Borrowers, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and, to
the extent contemplated by Section 8.07(f), to actual or prospective assignees
and participants, and then only on a confidential basis, (b) as required by any
law, rule or regulation or judicial process, provided that the Agent or such
--------
Lender, as the case may be, has notified the Borrower and has otherwise taken
reasonable steps to protect such information from any unnecessary disclosure,
and (c) as requested or required by any state, federal or foreign authority or
examiner regulating banks or banking, provided that, without prejudice to its
--------
right to disclose to such examiner or regulator, the Agent and the Lenders agree
to use reasonable efforts to limit the amount of Confidential Information which
is disclosed.
SECTION 8.09. Governing Law. This Agreement and the Notes shall be
-------------
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.10. Execution in Counterparts. This Agreement may be
-------------------------
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto
-----------------
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 Notes, 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 any such New York State court 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 party may
otherwise have to bring any action or proceeding relating to this Agreement or
the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
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 Notes 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.
SECTION 8.12. Resignation of Pharmacia as Borrower. At any time
------------------------------------
after the Monsanto Effective Date and upon the payment and performance in full
of all Pharmacia's indebtedness, liabilities and obligations under this
Agreement and the Notes, then so long as at such time no Notice of Revolving
Credit Borrowing or Notice of Competitive Bid Borrowing by Pharmacia is
outstanding and no Default has occurred and is continuing, Pharmacia may
terminate its status as a Borrower hereunder upon delivery of written notice to
such effect to the Agent (which notice the Agent shall forward promptly to the
Lenders). Thereafter, the Lenders shall have no further obligations to make any
Advances to Pharmacia and Pharmacia shall have no further obligations under this
Agreement (other than its obligations under Sections 2.11, 2.14 and 8.04 to the
extent any liability thereunder relates to an event arising prior to such
termination) and shall not be deemed to be a Borrower hereunder for any other
circumstance or purpose.
SECTION 8.13. Waiver of Jury Trial. Each of the Borrowers, the Agent
--------------------
and the Lenders hereby irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
39
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.
MONSANTO COMPANY
By____________________________
Title:
PHARMACIA CORPORATION
By____________________________
Title:
CITIBANK, N.A.,
as Agent
By____________________________
Title:
Initial Lenders
---------------
Commitment
----------
$63,333,333.33 CITIBANK, N.A.
By____________________________
Title:
$63,333,333.33 THE CHASE MANHATTAN BANK
By____________________________
Title:
$53,333,333.33 BANK ONE, NA (MAIN OFFICE CHICAGO)
By____________________________
Title:
$53,333,333.33 COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By____________________________
Title:
40
$36,666,666.67 THE BANK OF TOKYO - MITSUBISHI, LTD.,
CHICAGO BRANCH
By____________________________
Title:
$36,666,666.67 FLEET NATIONAL BANK
By____________________________
Title:
$36,666,666.67 SOCIETE GENERALE
By____________________________
Title:
$23,333,333.33 BANCA COMMERCIALE ITALIANA, CHICAGO BRANCH
By____________________________
Title:
$16,666,666.67 BARCLAYS BANK PLC
By____________________________
Title:
$16,666,666.67 BBL INTERNATIONAL (U.K) LIMITED
By____________________________
Title:
$16,666,666.67 THE BANK OF NEW YORK
By____________________________
Title:
$16,666,666.67 CREDIT AGRICOLE INDOSUEZ
By____________________________
Title:
$16,666,666.67 KBC BANK N.V.
By____________________________
Title:
41
$16,666,666.67 THE NORTHERN TRUST COMPANY
By____________________________
Title:
$16,666,666.67 WACHOVIA BANK, N.A.
By____________________________
Title:
$16,666,666.67 WESTPAC BANKING CORPORATION
By____________________________
Title:
$500,000,000 Total of the Commitments
42
SCHEDULE I -
APPLICABLE LENDING OFFICES
--------------------------------------------------------------------------------------------------------------------
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
---------------------- ----------------------- -------------------------
--------------------------------------------------------------------------------------------------------------------
BANCA COMMERCIALE ITALIANA, CHICAGO Banca Commerciale Italiana, Banca Commerciale Italiana, Chicago
BRANCH Chicago Branch Branch
000 X. Xxxxx XxXxxxx, Xxxxx 0000 000 X. Xxxxx XxXxxxx, Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Credit Administration Attn: Credit Administration
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
--------------------------------------------------------------------------------------------------------------------
THE BANK OF NEW YORK The Bank of New York The Bank of New York
000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx Attn: Xxxxx Xxxxxx
T: 212-635-8216 T: 212-635-8216
F: 000-000-0000 F: 000-000-0000
--------------------------------------------------------------------------------------------------------------------
BANK ONE, NA (MAIN OFFICE CHICAGO) Bank One, NA, (Main Office Chicago) Bank One, NA, (Main Office Chicago)
Chicago, Illinois Chicago, Illinois
ABA: 000000000 ABA: 000000000
LS2 Incoming LS2 Incoming
481152860000 481152860000
Ref: Monsanto Co Ref: Monsanto Co
Attn: Xxx Xxxxx Attn: Xxx Xxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000/3013 Fax: 000-000-0000/3013
--------------------------------------------------------------------------------------------------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD., The Bank of Tokyo - Mitsubishi, Ltd., The Bank of Tokyo - Mitsubishi,
CHICAGO BRANCH Chicago Branch Ltd., Chicago Branch
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxxx Xxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
--------------------------------------------------------------------------------------------------------------------
BARCLAYS BANK PLC Barclays Bank PLC Barclays Bank PLC
Xxxx Xxxxxxxx Xxxx Xxxxxxxx
Global Services Unit Global Services Xxxx
0 Xxx Xxxxx Xxxxxxxxx 0 Xxx Xxxxx Xxxxxxxxx
Canary Wharf Canary Wharf
Xxxxxx Xx0 0XX Xxxxxx Xx0 0XX
Tel: 000-0000-0000 Tel: 000-0000-0000
Fax: 000-0000-0000 Fax: 000-0000-0000
--------------------------------------------------------------------------------------------------------------------
BBL INTERNATIONAL (U.K.) LIMITED BBL International (U.K.) Limited BBL International (U.K.) Limited
6 Broadgate 0 Xxxxxxxxx
Xxxxxx, XX0X 0XX Xxxxxx, XX0X 0XX
Attn: Credit Department Attn: Credit Department
T: 00-000-000-0000 T: 00-000-000-0000
F: 00-000-000-0000 F: 00-000-000-0000
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
THE CHASE MANHATTAN BANK The Chase Manhattan Bank The Chase Manhattan Bank
000 Xxxx Xxxxxx, 00xx Xxxxx 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx Attn: Xxxxxxx X. Xxxxxxxx
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
--------------------------------------------------------------------------------------------------------------------
CITIBANK, N.A. Citibank, N.A. Citibank, N.A.
Two Penns Way Xxx Xxxxx Xxx
Xxxxx 000 Xxxxx 000
Xxx Xxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
Attn: Xxx Xxxxxxxxxx Attn: Xxx Xxxxxxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
--------------------------------------------------------------------------------------------------------------------
COMMERZBANK AG, NEW YORK AND GRAND Commerzbank AG, Grand Cayman Branch Commerzbank AG, Grand Cayman Branch
CAYMAN BRANCHES x/x Xxx Xxxx Xxxxxx x/x Xxx Xxxx Branch
Two World Financial Center Two World Financial Center
New York, NY 10281-1050 Xxx Xxxx, XX 00000-0000
Attn: Xx. Xx Xxxxxx Attn: Xx. Xx Xxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
--------------------------------------------------------------------------------------------------------------------
CREDIT AGRICOLE INDOSUEZ Credit Agricole Indosuez Credit Agricole Indosuez
00 X. Xxxxxx Xxxxxx 00 X. Xxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxx Attn: Xxxxxxxx Xxxx
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
--------------------------------------------------------------------------------------------------------------------
FLEET NATIONAL BANK Fleet National Bank Fleet National Bank
000 Xxxxxxx Xxxxxx MADE 10010A 000 Xxxxxxx Xxxxxx MADE 10010A
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx - Xxxxxx Attn: Xxxx Xxxxxxx - Xxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
--------------------------------------------------------------------------------------------------------------------
KBC BANK N.V. KBC Bank N.V. KBC Bank N.V.
New York Branch New York Branch
000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Loan Administration Attn: Loan Administration
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
--------------------------------------------------------------------------------------------------------------------
THE NORTHERN TRUST COMPANY The Northern Trust Company The Northern Trust Company
50 X. XxXxxxx 00 X. XxXxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Ms. Xxxxx Honda Attn: Ms. Xxxxx Honda
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
--------------------------------------------------------------------------------------------------------------------
SOCIETE GENERALE Societe Generale Societe Generale
0000 Xxxx Xxx. Xxxxx 0000 0000 Xxxx Xxx. Xxxxx 0000
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxxx Xxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
WACHOVIA BANK, N.A. Wachovia Bank, N.A. Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx, X.X. 000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx Attn: Xxxx Xxxxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
--------------------------------------------------------------------------------------------------------------------
WESTPAC BANKING CORPORATION Westpac Banking Corporation Westpac Banking Corporation
000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxx Xxxx, XX Xxx Xxxx, XX
Attn: Xxxxx Xxxxxxxxx Attn: Xxxxx Xxxxxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
--------------------------------------------------------------------------------------------------------------------
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 2000
FOR VALUE RECEIVED, the undersigned, ____________________, a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
--------
____________________ (the "Lender") for the account of its Applicable Lending
------
Office on the Termination Date (each as defined in the Credit Agreement referred
to below) the principal sum of U.S.$[amount of the Lender's Commitment in
figures] or, if less, the aggregate principal amount of the Revolving Credit
Advances made by the Lender to the Borrower pursuant to the Five Year Credit
Agreement dated as of August 8, 2000 among the Borrower, the Lender and certain
other lenders parties thereto, Citibank, N.A., as Agent for the Lender and such
other lenders, Xxxxxxx Xxxxx Xxxxxx Inc. and Chase Securities Inc., as co-lead
arrangers and co-book managers, The Chase Manhattan Bank, as syndication agent,
and Commerzbank AG New York and Grand Cayman Branches and Bank One, NA, as co-
documentation agents (as amended or modified from time to time, the "Credit
------
Agreement"; the terms defined therein being used herein as therein defined),
---------
outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal amount
of each Revolving Credit Advance from the date of such Revolving Credit Advance
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Agent, at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, in same day funds. Each Revolving Credit Advance owing to the
Lender by the Borrower pursuant to the Credit Agreement, and all payments made
on account of principal thereof, shall be recorded by the Lender and, prior to
any transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the Revolving Credit Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, (i) provides for the making of Revolving Credit
Advances by the Lender to the Borrower from time to time in an aggregate amount
not to exceed at any time outstanding the U.S. dollar amount first above
mentioned, the indebtedness of the Borrower resulting from each such Revolving
Credit Advance being evidenced by this Promissory Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified.
[NAME OF BORROWER]
By____________________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
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Amount of
Date Amount of Principal Paid Unpaid Principal Notation
Advance or Prepaid Balance Made By
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EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 2000
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
--------
_________________________ (the "Lender") for the account of its Applicable
------
Lending Office (as defined in the Five Year Credit Agreement dated as of August
8, 2000 among the Borrower, the Lender and certain other lenders parties
thereto, Citibank, N.A., as Agent for the Lender and such other lenders, Xxxxxxx
Xxxxx Xxxxxx Inc. and Chase Securities Inc., as co-lead arrangers and co-book
managers, The Chase Manhattan Bank, as syndication agent, and Commerzbank AG New
York and Grand Cayman Branches and Bank One, NA, as co-documentation agents (as
amended or modified from time to time, the "Credit Agreement"; the terms defined
----------------
therein being used herein as therein defined)), on _______________, 200_, the
principal amount of U.S.$_______________.
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a year of _____
days for the actual number of days elapsed).
Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Agent, for the account of the Lender at
the office of Citibank, N.A., at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 in
same day funds.
This Promissory Note is one of the Competitive Bid Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
[NAME OF BORROWER]
By__________________
Title:
EXHIBIT B-1- FORM OF
NOTICE OF REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000 [Date]
Attention: Bank Loans Syndications Department
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Five Year Credit
Agreement, dated as of August 8, 2000 (as amended or modified from time to time,
the "Credit Agreement", the terms defined therein being used herein as therein
----------------
defined), among the undersigned, certain Lenders parties thereto, Citibank,
N.A., as Agent for said Lenders, Xxxxxxx Xxxxx Xxxxxx Inc. and Chase Securities
Inc., as co-lead arrangers and co-book managers, The Chase Manhattan Bank, as
syndication agent, and Commerzbank AG New York and Grand Cayman Branches and
Bank One, NA, as co-documentation agents, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Revolving Credit Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Revolving Credit Borrowing (the "Proposed Revolving Credit Borrowing") as
-----------------------------------
required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing is
_______________, 2000.
(ii) The Type of Advances comprising the Proposed Revolving Credit
Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit Borrowing
is $_______________.
[(iv The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Revolving Credit Borrowing is __________ month[s].]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01
of the Credit Agreement (except the representations set forth in the last
sentence of subsection (e) thereof and in subsection (f)(i) thereof) are
correct, before and after giving effect to the Proposed Revolving Credit
Borrowing and to the application of the proceeds therefrom, as though made on
and as of such date; and
(B) no event has occurred and is continuing, or would result from such
Proposed Borrowing Revolving Credit or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
[NAME OF BORROWER]
By_____________________________
Title:
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Five Year Credit
Agreement, dated as of August 8, 2000 (as amended or modified from time to time,
the "Credit Agreement", the terms defined therein being used herein as therein
----------------
defined), among the undersigned, certain Lenders parties thereto, Citibank,
N.A., as Agent for the Lender and such other lenders, Xxxxxxx Xxxxx Xxxxxx Inc.
and Chase Securities Inc., as co-lead arrangers and co-book managers, The Chase
Manhattan Bank, as syndication agent, and Commerzbank AG New York and Grand
Cayman Branches and Bank One, NA, as co-documentation agents, and hereby gives
you notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement that
the undersigned hereby requests a Competitive Bid Borrowing under the Credit
Agreement, and in that connection sets forth the terms on which such Competitive
Bid Borrowing (the "Proposed Competitive Bid Borrowing") is requested to be
----------------------------------
made:
(A) Date of Competitive Bid Borrowing ______________________
(B) Amount of Competitive Bid Borrowing ______________________
(C) [Maturity Date] [Interest Period] ______________________
(D) Interest Rate Basis ______________________
(E) Interest Payment Date(s) ______________________
(F) ___________________ ______________________
(G) ___________________ ______________________
(H) ___________________ ______________________
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(a) the representations and warranties contained in Section 4.01 of
the Credit Agreement (except the representations set forth in the last
sentence of subsection (e) thereof and in subsection (f)(i) thereof) are
correct, before and after giving effect to the Proposed Competitive Bid
Borrowing and to the application of the proceeds therefrom, as though made
on and as of such date;
(b) no event has occurred and is continuing, or would result from the
Proposed Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default;
(c) no event has occurred and no circumstance exists as a result of
which the information concerning the undersigned that has been provided to
the Agent and each Lender by the undersigned in connection with the Credit
Agreement would include an untrue statement of a material fact or omit to
state any material fact or any fact necessary to make the statements
contained therein, in the light of the circumstances under which they were
made, not misleading; and
(d) the aggregate amount of the Proposed Competitive Bid Borrowing and
all other Borrowings to be made on the same day under the Credit Agreement
is within the aggregate amount of the unused Commitments of the Lenders.
The undersigned hereby confirms that the Proposed Competitive Bid
Borrowing is to be made available to it in accordance with Section 2.03(a)(v) of
the Credit Agreement.
Very truly yours,
[NAME OF BORROWER]
By__________________
Title:
EXHIBIT C - FORM OF ASSIGNMENT
AND ACCEPTANCE
Reference is made to the Five Year Credit Agreement dated as of August
8, 2000 (as amended or modified from time to time, the "Credit Agreement") among
----------------
Monsanto Company, a Delaware corporation ("Monsanto") Pharmacia Corporation, a
--------
Delaware corporation ("Pharmacia" and together with Monsanto, the "Borrowers"),
--------- ---------
the Lenders (as defined in the Credit Agreement), Citibank, N.A., as agent for
the Lenders (the "Agent), Xxxxxxx Xxxxx Xxxxxx Inc. and Chase Securities Inc.,
-----
as co-lead arrangers and co-book managers, The Chase Manhattan Bank, as
syndication agent, and Commerzbank AG New York and Grand Cayman Branches and
Bank One, NA, as co-documentation agents. Terms defined in the Credit Agreement
are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement as of the date hereof (other than in respect of Competitive Bid
Advances and Competitive Bid Notes) equal to the percentage interest specified
on Schedule 1 hereto of all outstanding rights and obligations under the Credit
Agreement (other than in respect of Competitive Bid Advances and Competitive Bid
Notes). After giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Advances owing to the Assignee will be as set
forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Borrower or the
performance or observance by any Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Revolving Credit Note, if any, held by the Assignor [and
requests that the Agent exchange such Revolving Credit Note for a new Revolving
Credit Note payable to the order of the Assignor in an amount equal to the
Commitment retained by the Assignor under the Credit Agreement, as specified on
Schedule 1 hereto].
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor 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
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will perform
in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; (vi) attaches
any U.S. Internal Revenue Service forms required under Section 2.14 of the
Credit Agreement; and (vii) makes the representation and warranty set forth in
Section 4.02 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
--------------
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Revolving Credit Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and facility
fees with respect thereto) to the Assignee. The Assignor and Assignee shall
make all appropriate adjustments in payments under the Credit Agreement and the
Revolving Credit Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Amount of Commitment assigned: $_______________
Assignee's Commitment: $_______________
Aggregate outstanding principal amount of Revolving Credit Advances assigned: $_______________
Effective Date*: _______________, 200_
[NAME OF ASSIGNOR], as Assignor
By__________________________________________________
Title:
Dated: _______________, 200_
[NAME OF ASSIGNEE], as Assignee
By__________________________________________________
Title:
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted [and Approved]** this
__________ day of _______________, 200_
CITIBANK, N.A., as Agent
By_____________________________________
Title:
[Approved this __________ day
of _______________, 200_
___________________________
* This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the Agent.
** Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee".
MONSANTO COMPANY
By______________________________]*
Title:
PHARMACIA CORPORATION
By______________________________]*
Title:
__________________________
* Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee".
EXHIBIT D- FORM OF
ASSUMPTION AGREEMENT
Dated:
Monsanto Company
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Citibank, N.A.,
as Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: __________________
Ladies and Gentlemen:
Reference is made to the Five Year Credit Agreement dated as of August
8, 2000 (as amended or modified from time to time, the "Credit Agreement") among
----------------
Monsanto Company, a Delaware corporation ("Monsanto") Pharmacia Corporation, a
--------
Delaware corporation ("Pharmacia" and together with Monsanto, the "Borrowers"),
--------- ---------
the Lenders (as defined in the Credit Agreement), Citibank, N.A., as agent for
the Lenders (the "Agent), Xxxxxxx Xxxxx Xxxxxx Inc. and Chase Securities Inc.,
-----
as co-lead arrangers and co-book managers, The Chase Manhattan Bank, as
syndication agent, and Commerzbank AG New York and Grand Cayman Branches and
Bank One, NA, as co-documentation agents. Terms defined in the Credit Agreement
are used herein with the same meaning.
The undersigned proposes to become an Assuming Bank pursuant to
Section 2.17 of the Credit Agreement and, in that connection, hereby agrees that
it shall become a Lender for purposes of the Credit Agreement on [applicable
Termination Date] and that its Commitment shall as of such date be $_________.
The undersigned (the "Assuming Bank") (i) confirms that it has
-------------
received a copy of the Credit Agreement, together with copies of the financial
statements referred to in Section 5.01(f) thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assumption Agreement; (ii) agrees that it will,
independently and without reliance upon the Agent 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
the Credit Agreement; (iii) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (iv) agrees that it will perform in
accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; (v) confirms
that it is an Eligible Assignee; [and] (vi) specifies as its Domestic Lending
Office (and address for notices) and Eurodollar Lending Office the offices set
forth beneath its name on the signature pages hereof; [and (vii) attaches any
U.S. Internal Revenue Service forms required under Section 2.14] of the Credit
Agreement]/1/ and [(vii)] [(viii)] makes the representation and warranty set
forth in Section 4.02 of the Credit Agreement.
The effective date for this Assumption Agreement shall be [applicable
Termination Date]. Upon delivery of this Assumption Agreement to the Borrower
and the Agent and acceptance and recording of this Assumption Agreement by the
Agent, as of [date specified above], the Assuming Bank shall be a party to the
Credit Agreement and have the rights and obligations of a Lender thereunder. As
of [date specified above], the Agent shall make all payments under the Credit
Agreement in respect of the interest assumed hereby (including, without
limitation, all payments of principal, interest and facility fees) to the
Assuming Bank.
___________________
/1/ If the Assuming Bank is organized under the laws of a jurisdiction outside
the United States.
This Assumption Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of this Assumption Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Assumption Agreement.
This Assumption Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
Very truly yours,
[NAME OF ASSUMING BANK]
By____________________________
Name:
Title:
Domestic Lending Office
(and address for notices):
[Address]
Eurodollar Lending Office:
[Address]:
Above Acknowledged and Agreed to:
MONSANTO COMPANY
By_______________________________
Name:
Title:
[PHARMACIA CORPORATION]
By_______________________________
Name:
Title:
Accepted this ____ day of
_________, _________
CITIBANK, N.A.,
as Agent
By______________________________
Name:
Title:
EXHIBIT E- FORM OF NOTICE OF
EXTENSION OF TERMINATION DATE
[Date]
Citibank, N.A.,
as Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: __________________
Monsanto Company
----------------
Ladies and Gentlemen:
Reference is made to the Five Year Credit Agreement dated as of August
8, 2000 (as amended or modified from time to time, the "Credit Agreement") among
----------------
Monsanto Company, a Delaware corporation ("Monsanto") Pharmacia Corporation, a
--------
Delaware corporation ("Pharmacia" and together with Monsanto, the "Borrowers"),
--------- ---------
the Lenders (as defined in the Credit Agreement), Citibank, N.A., as agent for
the Lenders (the "Agent), Xxxxxxx Xxxxx Xxxxxx Inc. and Chase Securities Inc.,
-----
as co-lead arrangers and co-book managers, The Chase Manhattan Bank, as
syndication agent, and Commerzbank AG New York and Grand Cayman Branches and
Bank One, NA, as co-documentation agents. Terms defined in the Credit Agreement
are used herein with the same meaning.
Pursuant to Section 2.17 of the Credit Agreement, the Lender named
below hereby notifies the Agent as follows:
[The Lender named below desires to extend the Termination Date with
respect to [all] [$______] of its Commitment for a period of one
year.]
[The Lender named below desires to extend the Termination Date with
respect to all of its Commitment for a period of one year and offers
to increase its Commitment commencing [______________] to
$__________.]
[The Lender named below does NOT desire to extend the Termination Date
with respect to any of its Commitment for a period of one year.]
This notice is subject in all respects to the terms of the Credit
Agreement, is irrevocable and shall be effective only if received by the Agent
no later than [______________]./1/
Very truly yours,
[NAME OF LENDER]
By:_____________________________
Name:
Title:
___________________________________
/1/ This date shall be no later than 20 days prior to the then scheduled
Termination Date in the case of an Extending Lender's notice to extend its
Commitment and no later than 15 days prior to the then scheduled Termination
Date in the case of an Extending Lender's offer to increase its Commitment.
