Exhibit 4.ii.(c)
Execution Copy
$650,000,000
AMENDED AND RESTATED FIVE-YEAR
CREDIT AGREEMENT
dated as of
December 8, 1999
among
IMC GLOBAL INC.,
Various Financial Institutions,
ROYAL BANK OF CANADA,
as Documentation Agent,
SUNTRUST BANK, ATLANTA,
as Co-Documentation Agent,
THE CHASE MANHATTAN BANK,
as Syndication Agent,
BANK ONE, NA,
as Co-Syndication Agent,
and
BANK OF AMERICA, N.A.,
as Administrative Agent
BANC OF AMERICA SECURITIES LLC,
Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions 1
SECTION 1.02. Accounting Terms and Determinations 12
SECTION 1.03. Types of Borrowing 13
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend 13
SECTION 2.02. Notice of Committed Borrowings 14
SECTION 2.03. Bid Rate Borrowings 14
SECTION 2.04. Notice to Banks; Funding of Loans 18
SECTION 2.05. Registry; Notes 19
SECTION 2.06. Maturity of Loans 19
SECTION 2.07. Interest Rates 19
SECTION 2.08. Fees 21
SECTION 2.09. Optional Termination or Reduction of Commitments 22
SECTION 2.10. Method of Electing Interest Rates 22
SECTION 2.11. Scheduled Termination of Commitments 23
SECTION 2.12. Optional Prepayments 23
SECTION 2.13. General Provisions as to Payments 24
SECTION 2.14. Funding Losses 24
SECTION 2.15. Computation of Interest and Fees 25
SECTION 2.16. Letters of Credit 25
SECTION 2.17. Regulation D Compensation 28
SECTION 2.18. Takeout of Swingline Loans 28
SECTION 2.19. Foreign Costs 29
ARTICLE 3
CONDITIONS
SECTION 3.01. Effectiveness 30
SECTION 3.02. Borrowings and Issuance of Letters of Credits 31
SECTION 3.03. First Borrowing by or Issuance of Letter of Credit
for Each Eligible Subsidiary 31
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power 32
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention 32
SECTION 4.03. Binding Effect 32
SECTION 4.04. Financial Information 32
SECTION 4.05. Litigation 33
SECTION 4.06. Compliance with Laws 33
SECTION 4.07. Environmental Matters 34
SECTION 4.08. Taxes 34
SECTION 4.09. Subsidiaries 34
SECTION 4.10. Regulatory Restrictions on Borrowing 34
SECTION 4.11. Full Disclosure 34
SECTION 4.12. Year 2000 35
ARTICLE 5
COVENANTS
SECTION 5.01. Information 35
SECTION 5.02. Payment of Obligations 37
SECTION 5.03. Maintenance of Property; Insurance 37
SECTION 5.04. Conduct of Business and Maintenance of Existence 37
SECTION 5.05. Compliance with Laws 38
SECTION 5.06. Inspection of Property, Books and Records 38
SECTION 5.07. Mergers and Sales of Assets 38
SECTION 5.08. Use of Proceeds 39
SECTION 5.09. Negative Pledge 39
SECTION 5.10. Debt of Subsidiaries 40
SECTION 5.11. Transactions with Affiliates 40
SECTION 5.12. Leverage Ratio 40
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default 41
SECTION 6.02. Notice of Default 43
SECTION 6.03. Cash Cover 43
ARTICLE 7
THE ADMINISTRATIVE AGENT
SECTION 7.01. Appointment and Authorization 44
SECTION 7.02. Administrative Agent and Affiliates 44
SECTION 7.03. Action by Administrative Agent 44
SECTION 7.04. Consultation with Experts 44
SECTION 7.05. Liability of Administrative Agent 44
SECTION 7.06. Indemnification 45
SECTION 7.07. Credit Decision 45
SECTION 7.08. Successor Administrative Agent 45
SECTION 7.09. Agents' Fees 45
SECTION 7.10. Other Agents 46
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate
or Unfair 46
SECTION 8.02. Illegality 46
SECTION 8.03. Increased Cost and Reduced Return 47
SECTION 8.04. Taxes 48
SECTION 8.05. Base Rate Loans Substituted for Affected
Fixed Rate Loans 50
SECTION 8.06. Substitution of Bank 51
ARTICLE 9
REPRESENTATIONS AND WARRANTIES OF ELIGIBLE SUBSIDIARIES
SECTION 9.01. Corporate Existence and Power 51
SECTION 9.02. Corporate and Governmental Authorization;
Contravention 51
SECTION 9.03. Binding Effect 51
SECTION 9.04. Taxes 52
ARTICLE 10
GUARANTY
SECTION 10.01. The Guaranty 52
SECTION 10.02. Guaranty Unconditional 52
SECTION 10.03. Discharge Only Upon Payment In Full;
Reinstatement In Certain Circumstances 53
SECTION 10.04. Waiver by the Company 53
SECTION 10.05. Subrogation 53
SECTION 10.06. Stay of Acceleration 53
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Notices 54
SECTION 11.02. No Waivers 54
SECTION 11.03. Expenses; Indemnification 54
SECTION 11.04. Sharing of Set-offs 55
SECTION 11.05. Amendments and Waivers 55
SECTION 11.06. Successors and Assigns 56
SECTION 11.07. Collateral 57
SECTION 11.08. Confidentiality 57
SECTION 11.09. Governing Law; Submission to Jurisdiction 58
SECTION 11.10. Counterparts; Integration 58
SECTION 11.11. Waiver of Jury Trial 58
SECTION 11.12. Effect of Amendment and Restatement;
Resignation of Resigning Agent 58
PRICING SCHEDULE
SCHEDULE I Existing Letters of Credit
EXHIBIT A - Note
EXHIBIT B - Form of Bid Rate Quote Request
EXHIBIT C - Form of Invitation for Bid Rate Quotes
EXHIBIT D - Form of Bid Rate Quote
EXHIBIT E-1 - Opinion of Special Counsel for the Company
EXHIBIT E-2 - Opinion of General Counsel of the Company
EXHIBIT F - Opinion of Xxxxx, Xxxxx & Xxxxx, Special Counsel for the
Administrative Agent
EXHIBIT G - Assignment and Assumption Agreement
EXHIBIT H - Form of Election to Participate
EXHIBIT I - Form of Election to Terminate
EXHIBIT J - Matters to be covered in Opinion of Counsel for Eligible
Subsidiaries
EXHIBIT K - Form of Notice of Borrowing
EXHIBIT L - Form of Notice of Interest Rate Election
AMENDED AND RESTATED FIVE-YEAR
CREDIT AGREEMENT
AMENDED AND RESTATED FIVE-YEAR CREDIT AGREEMENT dated as of
December 8, 1999 among IMC GLOBAL INC., a Delaware corporation (together
with its successors, the "Company"), various financial institutions, ROYAL
BANK OF CANADA, as Documentation Agent, SUNTRUST BANK, ATLANTA, as Co-
Documentation Agent, THE CHASE MANHATTAN BANK, as Syndication Agent, BANK
ONE, NA, as Co-Syndication Agent, and BANK OF AMERICA, N.A., as
Administrative Agent.
WHEREAS, the Company, the financial institutions listed on the
signature pages hereof and Xxxxxx Guaranty Trust Company of New York, as
administrative agent (in such capacity, the "Resigning Administrative
Agent"), are parties to a Five-Year Credit Agreement dated as of December
15, 1997 (as amended prior to the date hereof, the "Existing Credit
Agreement"); and
WHEREAS, the signatories hereto have agreed (a) to amend the Existing
Credit Agreement in certain respects, including (i) appointing Bank of
America, N.A. as Administrative Agent in place of the Resigning
Administrative Agent, (ii) revising certain definitions and (iii) adding a
utilization fee, and (b) to restate the Existing Credit Agreement in its
entirety pursuant hereto;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE DEFINITIONS
1.1. SECTION Definitions . The following terms, as used herein,
have the following meanings:
1.2.
1.3. "Acquisition" means an acquisition by the Company or any of its
Consolidated Subsidiaries of a company, a division, a location or a line of
business or of all or substantially all of the assets of any of the
foregoing.
1.4.
1.5. "Administrative Agent" means Bank of America, N.A. in its
capacity as administrative agent for the Banks hereunder, and its
successors in such capacity.
1.6.
1.7. "Administrative Questionnaire" means, with respect to each Bank,
the administrative questionnaire in the form submitted to such Bank by the
Administrative Agent and submitted to the Administrative Agent (with a copy
to the Company) duly completed by such Bank.
1.8.
1.9. "Affiliate" means (i) any Person that directly, or indirectly
through one or more intermediaries, controls the Company (a "Controlling
Person") or (ii) any Person (other than the Company or a Subsidiary) which
is controlled by or is under common control with a Controlling Person. As
used herein, the term "control" means possession, directly or indirectly,
of the power to vote 10% or more of any class of voting securities of a
Person or to direct or cause the direction of the management or policies of
a Person, whether through the ownership of voting securities, by contract
or otherwise.
1.10.
1.11. "Agent" means any one of the Administrative Agent, the
Documentation Agent, the Co-Documentation Agent, the Syndication Agent or
the Co-Syndication Agent, and "Agents" means any two or more of the
foregoing.
1.12.
1.13. "Agrico" means IMC-Agrico Company, a Delaware general
partnership, and its successors.
1.14.
1.15. "Applicable Lending Office" means, with respect to any Bank, (i)
in the case of its Domestic Loans, its Domestic Lending Office, (ii) in the
case of its Euro-Dollar Loans, its Euro-Dollar Lending Office, (iii) in the
case of its Bid Rate Loans, its Bid Rate Lending Office and (iv) in the
case of its Swingline Loans, its Swingline Lending Office.
1.16.
1.17. "Approved Officer" means the president, the chief financial
officer, the acting chief financial officer, the treasurer, a vice
president, an assistant treasurer or the controller of the Company or such
other representative of the Company as may be designated by any one of the
foregoing with the consent of the Administrative Agent.
1.18.
1.19. "Assignee" has the meaning set forth in Section 11.06(c).
1.20.
1.21. "Bank" means each bank or other financial institution listed on
the signature pages hereof, each Assignee which becomes a Bank pursuant to
Section 11.06(c), and their respective successors.
1.22.
1.23. "Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1%
plus the Federal Funds Rate for such day.
1.24.
1.25. "Base Rate Loan" means a Syndicated Loan which bears interest at
the Base Rate pursuant to the applicable Notice of Committed Borrowing or
Notice of Interest Rate Election or the provisions of Article 8.
1.26.
1.27. "Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by
any member of the ERISA Group.
1.28.
1.29. "Bid Rate (General)" has the meaning set forth in Section
2.03(d).
1.30.
1.31. "Bid Rate (General) Auction" means a solicitation of Bid Rate
Quotes setting forth Bid Rates (General) pursuant to Section 2.03.
1.32.
1.33. "Bid Rate (General) Loan" means a loan made or to be made by a
Bank pursuant to a Bid Rate (General) Auction.
1.34. "Bid Rate (Indexed) Auction" means a solicitation of Bid Rate
Quotes setting forth Bid Rate (Indexed) Margins based on the London
Interbank Offered Rate pursuant to Section 2.03.
1.35.
1.36. "Bid Rate (Indexed) Loan" means a loan made or to be made by a
Bank pursuant to a Bid Rate (Indexed) Auction (including such a loan
bearing interest at the Base Rate pursuant to Section 8.01(a)).
1.37.
1.38. "Bid Rate (Indexed) Margin" has the meaning set forth in Section
2.03(d).
1.39.
1.40. "Bid Rate Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it
may hereafter designate as its Bid Rate Lending Office by notice to the
Company and the Administrative Agent; provided that any Bank may from time
to time by notice to the Company and the Administrative Agent designate
separate Bid Rate Lending Offices for its Bid Rate (Indexed) Loans, on the
one hand, and its Bid Rate (General) Loans, on the other hand, in which
case all references herein to the Bid Rate Lending Office of such Bank
shall be deemed to refer to either or both of such offices, as the context
may require.
1.41.
1.42. "Bid Rate Loan" means a Bid Rate (Indexed) Loan or a Bid Rate
(General) Loan.
1.43.
1.44. "Bid Rate Quote" means an offer by a Bank to make a Bid Rate
Loan in accordance with Section 2.03.
1.45.
1.46. "Borrower" means the Company or any Eligible Subsidiary, as the
context may require, and their respective successors, and "Borrowers" means
all of the foregoing. References to "the Borrower" in connection with any
Loan or Letter of Credit are to the Borrower to which such Loan is or is to
be made or at whose request such Letter of Credit is or is to be issued.
As the context may permit, the terms "Borrower" and "Borrowers" include
the Company in its capacity as guarantor of the obligations of the other
Borrowers hereunder.
1.47.
1.48. "Borrowing" has the meaning set forth in Section 1.03.
1.49.
1.50. "Co-Documentation Agent" means SunTrust Bank, Atlanta in its
capacity as co-documentation agent for the Banks hereunder, and its
successors in such capacity.
1.51.
1.52. "Commitment" means (i) with respect to each Bank listed on the
signature pages hereof, the amount set forth opposite the name of such Bank
on the signature pages hereof, and (ii) with respect to each Assignee which
becomes a Bank pursuant to Section 11.06(c), the amount of the Commitment
thereby assumed by it, in each case as such amount may from time to time be
reduced pursuant to Section 2.09 or 11.06(c) or increased pursuant to
Section 11.06(c).
1.53.
1.54. "Committed Loan" means a Syndicated Loan or a Swingline Loan.
1.55.
1.56. "Company" has the meaning set forth in the introductory
paragraph.
1.57. "Consolidated Net Worth" means at any date the consolidated
shareholders' equity of the Company and its Consolidated Subsidiaries
determined as of such date (other than any amount attributable to stock
which is required to be redeemed or is redeemable at the option of the
holder, if certain events or conditions occur or exist or otherwise).
1.58.
1.59. "Consolidated Subsidiary" means, for any Person, at any date any
Subsidiary or other entity the accounts of which would be consolidated with
those of such Person in its consolidated financial statements if such
statements were prepared as of such date; unless otherwise specified
"Consolidated Subsidiary" means a Consolidated Subsidiary of the Company.
1.60.
1.61. "Co-Syndication Agent" means Bank One, NA in its capacity as co-
syndication agent for the Banks hereunder, and its successors in such
capacity.
1.62.
1.63. "Debt" of any Person means at any date, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable and
similar items arising in the ordinary course of business, (iv) all
obligations of such Person as lessee which are capitalized in accordance
with generally accepted accounting principles, (v) all non-contingent
obligations (and, for purposes of Section 5.09 and the definition of
Material Financial Obligations, all contingent obligations) of such Person
to reimburse any bank or other Person in respect of amounts paid under a
letter of credit or similar instrument, (vi) all Debt secured by a Lien on
any asset of such Person, whether or not such Debt is otherwise an
obligation of such Person, provided that the amount of such Debt treated as
Debt of such Person solely pursuant to this clause (vi) shall not exceed
the greater of the book value or the fair market value of the collateral,
and (vii) all Debt of others Guaranteed by such Person. For purposes of
clause (v) above, a reimbursement obligation in respect of a letter of
credit or similar instrument is contingent unless and until there shall
have been a drawing under such letter of credit or instrument.
1.64.
1.65. "Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or
both would, unless cured or waived, become an Event of Default.
1.66.
1.67. "Derivatives Obligations" of any Person means all obligations of
such Person in respect of any rate swap transaction, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity index
swap, equity or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor transaction, collar
transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including
any option with respect to any of the foregoing transactions) or any
combination of the foregoing transactions.
1.68.
1.69. "Documentation Agent" means Royal Bank of Canada in its capacity
as documentation agent in respect of this Agreement.
1.70. "Domestic Business Day" means any day except a Saturday, Sunday
or other day on which commercial banks in New York City, Charlotte or
Chicago are authorized by law to close.
1.71.
1.72. "Domestic Lending Office" means, as to each Bank, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Domestic Lending
Office) or such other office as such Bank may hereafter designate as its
Domestic Lending Office by notice to the Company and the Administrative
Agent.
1.73.
1.74. "Effective Date" means the date this Agreement becomes effective
in accordance with Section 3.01.
1.75.
1.76. "Election to Participate" means an Election to Participate
substantially in the form of Exhibit H hereto.
1.77.
1.78. "Election to Terminate" means an Election to Terminate
substantially in the form of Exhibit I hereto.
1.79.
1.80. "Eligible Subsidiary" means any Substantially-Owned Consolidated
Subsidiary of the Company as to which an Election to Participate shall have
been delivered to the Administrative Agent and as to which an Election to
Terminate shall not have been delivered to the Administrative Agent. Each
such Election to Participate and Election to Terminate shall be duly
executed on behalf of such Consolidated Subsidiary and the Company in such
number of copies as the Administrative Agent may request. The delivery of
an Election to Terminate shall not affect any obligation of an Eligible
Subsidiary theretofore incurred. The Administrative Agent shall promptly
give notice to the Banks of the receipt of any Election to Participate or
Election to Terminate.
1.81.
1.82. "Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
other governmental restrictions relating to the environment or to
emissions, discharges or releases of pollutants, contaminants, chemicals,
or industrial, toxic or hazardous substances or wastes into the environment
including, without limitation, ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport, or handling of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or
wastes.
1.83.
1.84. "ERISA" means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
1.85.
1.86. "ERISA Group" means the Company, any Subsidiary and all members
of a controlled group of corporations and all trades or businesses (whether
or not incorporated) under common control which, together with the Company
or any Subsidiary, are treated as a single employer under Section 414 of
the Internal Revenue Code.
1.87.
1.88. "Euro-Dollar Business Day" means any Domestic Business Day on
which commercial banks are open for international business (including
dealings in dollar deposits) in London.
1.89.
1.90. "Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of
such Bank as it may hereafter designate as its Euro-Dollar Lending Office
by notice to the Company and the Administrative Agent.
1.91.
1.92. "Euro-Dollar Loan" means a Syndicated Loan which bears interest
at a Euro-Dollar Rate pursuant to the applicable Notice of Committed
Borrowing or Notice of Interest Rate Election.
1.93.
1.94. "Euro-Dollar Margin" means a rate per annum determined in
accordance with the Pricing Schedule.
1.95.
1.96. "Euro-Dollar Rate" means a rate of interest determined pursuant
to Section 2.07(b) on the basis of a London Interbank Offered Rate.
1.97.
1.98. "Euro-Dollar Reference Banks" means the principal London offices
of Royal Bank of Canada, The Chase Manhattan Bank and Bank of America, N.A.
1.99.
1.100. "Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.17.
1.101.
1.102. "Events of Default" has the meaning set forth in Section 6.01.
1.103.
1.104. "Existing Credit Agreement" has the meaning set forth in the
recitals.
1.105.
1.106. "Existing Xxxxxx Debt" means Debt of Xxxxxx Chemical North
America, Inc., a Delaware corporation, under its outstanding $250,000,000
10.25% Senior Secured Discount Notes and its outstanding $335,000,000
10.75% Senior Subordinated Notes.
1.107.
1.108. "Existing Letters of Credit" means the letters of credit
identified in Schedule I.
1.109.
1.110. "Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the
Domestic Business Day next succeeding such day, provided that (i) if such
day is not a Domestic Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day,
and (ii) if no such rate is so published on such next succeeding Domestic
Business Day, the Federal Funds Rate for such day shall be the average rate
quoted to Bank of America, N.A. (or its successor as Administrative Agent)
on such day on such transactions as determined by the Administrative Agent.
1.111.
1.112. "Fixed Rate Loans" means Euro-Dollar Loans, Swingline Loans or
Bid Rate Loans (excluding Swingline Loans or Bid Rate (Indexed) Loans
bearing interest at the Base Rate) or any combination of the foregoing.
1.113.
1.114. "Group of Loans" means at any time a group of Loans consisting
of (i) all Loans to a single Borrower which are Base Rate Loans at such
time or (ii) all Euro-Dollar Loans to a single Borrower having the same
Interest Period at such time, provided that, if a Committed Loan of any
particular Bank is converted to or made as a Base Rate Loan pursuant to
Article 8, such Loan shall be included in the same Group or Groups of Loans
from time to time as it would have been if it had not been so converted or
made.
1.115.
1.116. "Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of
any other Person, provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
The term "Guarantee" used as a verb has a corresponding meaning.
1.117.
1.118. "Xxxxxx Chemical Acquisition" means, collectively, the merger of
Xxxxxx Chemical Group with and into IMC Merger Sub Inc., a wholly-owned
Subsidiary of the Company, with Xxxxxx Chemical Group as the survivor
thereof, pursuant to the certain Agreement and Plan of Merger, dated
December 11, 1997, by and among the Company, IMC Merger Sub, Inc. and
Xxxxxx Chemical Group, and the acquisition, directly or indirectly, by the
Company of all of the outstanding shares of Xxxxxx Chemical Australia Pty
Limited pursuant to the Sale and Purchase Agreement made as of December 11,
1997 among Prudential Asset Management Asia Limited, DGHA Persons and
Trusts named therein, Search Investment NV, Xxxxxx Chemical Australia Pty
Limited, Marsupial L.L.C., Marsupial-II L.L.C., Soda Ash (L) BHD, Manager
Shareholders named therein and the Company.
1.119.
1.120. "Xxxxxx Chemical Group" means Xxxxxx Chemical Group, Inc., a
Delaware corporation.
1.121.
1.122. "IMC Inorganic Chemicals Inc." means IMC Inorganic Chemicals
Inc., a Delaware corporation, formerly known as Xxxxxx Chemical Group, Inc.
1.123.
1.124. "Indemnitee" has the meaning set forth in Section 11.03(b).
1.125.
1.126. "Interest Period" means: (1) with respect to each Euro-Dollar
Loan, the period commencing on the date of borrowing specified in the
applicable Notice of Borrowing or on the date specified in an applicable
Notice of Interest Rate Election and ending one, two, three or six, or, if
deposits of a corresponding maturity are available to each Bank in the
London interbank market, nine or twelve, months thereafter, as the Borrower
may elect in such notice; provided that:
1.127.
(a) any Interest Period which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day; and
(a) any Interest Period which begins on the last Euro-Dollar Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Euro-Dollar Business Day of a calendar month;
(2) with respect to each Swingline Loan, the period commencing on the
date of borrowing specified in the applicable Notice of Borrowing and
ending such number of days thereafter (but not more than 10 Euro-Dollar
Business Days) as the Borrower may elect in such notice; provided that any
Interest Period which would otherwise end on a day which is not a Euro-
Dollar Business Day shall be extended to the next succeeding Euro-Dollar
Business Day;
(3) with respect to each Bid Rate (Indexed) Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such number of months thereafter (but not less than
one month) as the Borrower may elect in accordance with Section 2.03;
provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day; and
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Euro-Dollar Business Day of a
calendar month; and
(4) with respect to each Bid Rate (General) Loan, the period commencing
on the date of borrowing specified in the applicable Notice of Borrowing
and ending such number of days thereafter (but not less than 7 days) as the
Borrower may elect in accordance with Section 2.03; provided that any
Interest Period which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and provided further that any Interest Period
which would otherwise end after the Termination Date shall end on the
Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Issuing Bank" means Xxxxxx Guaranty Trust Company of New York,
Suntrust Bank, Atlanta, Bank of America, N.A., Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank International", New York Branch,
Royal Bank of Canada, Xxxxxx Trust and Savings Bank and any other Bank that
may agree to issue letters of credit hereunder, in each case as issuer of a
Letter of Credit hereunder.
"Letter of Credit" means a letter of credit to be issued or issued
hereunder by the Issuing Bank in accordance with Section 2.16.
"Letter of Credit Liabilities" means, for any Bank and at any time,
such Bank's ratable participation in the sum of (x) the amounts then owing
by the Borrower in respect of amounts drawn under Letters of Credit and (y)
the aggregate amount then available for drawing under all Letters of
Credit.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge or security interest, or any other type of preferential arrangement
that has the practical effect of creating a security interest, in respect
of such asset. For the purposes of this Agreement, the Company or any
Subsidiary shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"Loan" means a Committed Loan or a Bid Rate Loan and "Loans" means
Committed Loans or Bid Rate Loans or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in Section
2.07(b).
"Material Adverse Effect" means a material adverse effect upon (i) the
financial condition, operations or properties of the Company and its
Consolidated Subsidiaries, taken as a whole, or (ii) the ability of the
Company to perform under, or the ability of the Banks to enforce repayment
of the Loans and the other obligations of the Company under, this
Agreement.
"Material Financial Obligations" means a principal or face amount of
Debt and/or payment or collateralization obligations in respect of
Derivatives Obligations of the Company and/or one or more of its
Subsidiaries, arising in one or more related or unrelated transactions,
exceeding in the aggregate $100,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $100,000,000.
"Material Subsidiary" means, at any date, (i) any Subsidiary having (x)
at least 5% of the total consolidated assets of the Company and its
Consolidated Subsidiaries (determined as of the last day of the fiscal
quarter of such Person most recently ended on or prior to such date) or (y)
at least 5% of Consolidated EBITDA (as defined in Section 5.12) for the
four consecutive fiscal quarters most recently ended on or prior to such
date or (ii) collectively, any one or more Subsidiaries having (x) at least
10% of the total consolidated assets of the Company and its Consolidated
Subsidiaries (determined as of the last day of the fiscal quarter of such
Persons most recently ended on or prior to such date) or (y) at least 10%
of Consolidated EBITDA for the four consecutive fiscal quarters most
recently ended on or prior to such date.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group either (i) is then making or accruing an obligation to make
contributions or (ii) has within the preceding five plan years made
contributions, including for these purposes any Person which was at the
time such contribution was made a member of the ERISA Group.
"Notes" means promissory notes of the Borrower, in the form required by
Section 2.05, evidencing the obligation of the Borrower to repay the Loans,
and "Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as defined
in Section 2.02) or a Notice of Bid Rate Borrowing (as defined in Section
2.03(f)), in either case in substantially the form of Exhibit K.
"Notice of Interest Rate Election" has the meaning set forth in Section
2.10(a).
"Notice of Issuance" has the meaning set forth in Section 2.16(b).
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning set forth in Section 11.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency
or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code
and either (i) is maintained, or contributed to, by any member of the ERISA
Group for employees of any member of the ERISA Group or (ii) has at any
time within the preceding five years been maintained, or contributed to, by
any Person which was at such time a member of the ERISA Group for employees
of any Person which was at such time a member of the ERISA Group.
"PLP" means Phosphate Resource Partners Limited Partnership, a Delaware
limited partnership, and its successors.
"Pricing Schedule" means the schedule annexed hereto denominated as
such.
"Prime Rate" means the rate of interest publicly announced by Bank of
America, N.A. in Charlotte, North Carolina from time to time as its Prime
Rate. Each change in the Prime Rate shall be effective from and including
the day such change is publicly announced.
"Quarterly Payment Date" means the last Domestic Business Day of each
March, June, September and December.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having more than 50% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding more than 50% of the sum of the aggregate unpaid
principal amount of the Loans and the aggregate Letter of Credit
Liabilities.
"Resigning Agent" has the meaning set forth in the recitals.
"Revolving Credit Period" means the period from and including the
Effective Date to but not including the Termination Date.
"S&P" means Standard & Poor's Rating Services, a division of The XxXxxx-
Xxxx Companies, Inc.
"Series E Preferred Stock" means the shares of preferred stock of The
Vigoro Corporation, a Delaware corporation and wholly-owned Subsidiary of
the Company, par value $100 per share, designated Series E.
"Subsidiary" means, as to any Person, any corporation or other entity
of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons
performing similar functions are at the time directly or indirectly owned
by such Person; unless otherwise specified, "Subsidiary" means a Subsidiary
of the Company.
"Substantial Assets" means assets sold or otherwise disposed of in a
single transaction or a series of related transactions representing 25% or
more of the consolidated assets of the Company and its Consolidated
Subsidiaries, taken as a whole.
"Substantially-Owned Consolidated Subsidiary" means any Consolidated
Subsidiary at least 80% of the Voting Stock of which is at the time
directly or indirectly owned by the Company; provided that Agrico shall be
deemed a Substantially-Owned Consolidated Subsidiary for so long as it is a
Consolidated Subsidiary.
"Swingline Bank" means Bank of America, N.A., Suntrust Bank, Atlanta
and any other Bank that may agree to make Swingline Loans hereunder.
"Swingline Lending Office" means, as to any Swingline Bank, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Swingline Lending
Office) or such other office as such Swingline Bank may hereafter designate
as its Swingline Lending Office by notice to the Borrower and the
Administrative Agent.
"Swingline Loan" means a loan made by the Swingline Bank pursuant to
Section 2.01(b).
"Swingline Takeout Loan" means a Base Rate Loan made pursuant to
Section 2.18.
"Syndicated Loan" means a Loan made by a Bank pursuant to Section
2.01(a); provided that, if any loan or loans (or portions thereof) are
combined or subdivided pursuant to a Notice of Interest Rate Election, the
term "Syndicated Loan" shall refer to the combined principal amount
resulting from such combination or to each of the separate principal
amounts resulting from such subdivision, as the case may be.
"Syndication Agent" means The Chase Manhattan Bank in its capacity as
syndication agent in respect of this Agreement.
"Termination Date" means December 15, 2002, or, if such day is not a
Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under
such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA (or other
applicable standard), exceeds (ii) the fair market value of all Plan assets
allocable to such liabilities under Title IV of ERISA (excluding any
accrued but unpaid contributions), all determined as of the then most
recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to
the PBGC or any other Person under Title IV of ERISA.
"Unrefunded Swingline Loan" has the meaning set forth in Section
2.18(b).
"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.
1.1. SECTION Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted,
all accounting determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from
time to time, applied on a basis consistent in all material respects
(except for changes concurred in by the Company's independent public
accountants) with the most recent audited consolidated financial statements
of the Company and its Consolidated Subsidiaries delivered to the Banks;
provided that, if the Company notifies the Administrative Agent that the
Company wishes to amend any covenant in Article 5 to eliminate the effect
of any change in generally accepted accounting principles on the operation
of such covenant (or if the Administrative Agent notifies the Company that
the Required Banks wish to amend Article 5 for such purpose), then the
Company's compliance with such covenant shall be determined on the basis of
generally accepted accounting principles in effect immediately before the
relevant change in generally accepted accounting principles became
effective, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Company and the Required Banks, and
the parties hereto agree to enter into negotiations in good faith in order
to amend such provisions in a credit-neutral manner so as to reflect
equitably such changes with the desired result that the criteria for
evaluating the financial condition and performance of the Company and its
Consolidated Subsidiaries shall be the same after such changes as if such
changes had not been made.
1.2.
1.3. SECTION Types of Borrowings . The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to a single Borrower
pursuant to Article 2 on a single date and for a single Interest Period.
Borrowings are classified for purposes of this Agreement either by
reference to the pricing of Loans comprising such Borrowing (e.g., a "Fixed
Rate Borrowing" is a Euro-Dollar Borrowing, a Swingline Borrowing or a Bid
Rate Borrowing (excluding any such Borrowing consisting of Swingline Loans
or Bid Rate (Indexed) Loans bearing interest at the Base Rate), and a "Euro-
Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans) or by
reference to the provisions of Article 2 under which participation therein
is determined (i.e., a "Syndicated Borrowing" is a Borrowing under Section
2.01 in which all Banks participate in proportion to their Commitments,
while a "Bid Rate Borrowing" is a Borrowing under Section 2.03 in which the
Bank participants are determined on the basis of their bids in accordance
therewith).
1.4.
ARTICLE THE CREDITS
1.1. SECTION Commitments to Lend. (a) Syndicated Loans. During the
Revolving Credit Period, each Bank severally agrees, on the terms and
conditions set forth in this Agreement, to make loans to any Borrower
pursuant to this subsection (a) from time to time in amounts such that the
aggregate principal amount of Committed Loans by such Bank, together with
its Letter of Credit Liabilities and its participating interests in any
Unrefunded Swingline Loans, at any one time outstanding to all Borrowers
shall not exceed the amount of its Commitment. Each Borrowing under this
subsection (a) (other than a Swingline Takeout Borrowing) shall be in an
aggregate principal amount of $10,000,000 or any larger multiple of
$1,000,000 (except that any such Borrowing may be in the aggregate amount
available in accordance with Section 3.02(b) and except that any such
Borrowing to refund a Swingline Loan or to fund the reimbursement
obligation in respect of a Letter of Credit may be in the exact amount
required for such purpose) and shall be made from the several Banks ratably
in proportion to their respective Commitments. Within the foregoing
limits, any Borrower may borrow under this subsection (a), repay or, to the
extent permitted by Section 2.12, prepay Loans and reborrow at any time
during the Revolving Credit Period under this subsection (a).
(b) Swingline Loans. From time to time prior to the Termination Date,
each Swingline Bank agrees, on the terms and conditions set forth in this
Agreement, to make loans to any Borrower pursuant to this subsection (b)
from time to time in amounts such that (i) the aggregate principal amount
of its Committed Loans together with its Letter of Credit Liabilities at
any one time outstanding to all Borrowers shall not exceed the amount of
its Commitment and (ii) the aggregate principal amount of Swingline Loans
at any time outstanding shall not exceed $25,000,000. Within the foregoing
limits, any Borrower may borrow under this subsection (b), repay or, to the
extent permitted by Section 2.12, prepay Loans and reborrow at any time
during the Revolving Credit Period under this subsection (b); provided that
the proceeds of a Swingline Borrowing may not be used, in whole or in part,
to refund any prior Swingline Borrowing. Each Borrowing under this
subsection (b) shall be in an aggregate principal amount of $500,000 or any
larger multiple of $250,000 (except that any such Borrowing may be in the
aggregate amount available in accordance with Section 2.01(a)).
1.1. SECTION Notice of Committed Borrowings. The Borrower shall give
the Administrative Agent notice (a "Notice of Committed Borrowing") not
later than 11:00 A.M. (New York City time) on (x) the date of each Base
Rate Borrowing or Swingline Borrowing and (y) the third Euro-Dollar
Business Day before each Euro-Dollar Borrowing, specifying:
1.2.
(a) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Swingline
Borrowing or a Euro-Dollar Business Day in the case of a Euro-Dollar
Borrowing;
(b) the aggregate amount of such Borrowing;
(c) whether the Loans comprising such Borrowing are to be
Swingline Loans or Syndicated Loans, and, in the case of Swingline
Loans, the applicable Swingline Banks;
(d) in the case of a Syndicated Borrowing, whether the Loans
comprising such Borrowing are to bear interest initially at the Base
Rate or a Euro-Dollar Rate; and
(e) in the case of a Euro-Dollar Borrowing or a Swingline
Borrowing, the duration of the initial Interest Period applicable
thereto, subject to the provisions of the definition of Interest
Period.
1.1. SECTION Bid Rate Borrowings . The Bid Rate Option. In addition
to Committed Borrowings pursuant to Section 2.01, any Borrower may, as set
forth in this Section, request the Banks to make offers to make Bid Rate
Loans to the Borrower. The Banks may, but shall have no obligation to,
make such offers and the Borrower may, but shall have no obligation to,
accept any such offers in the manner set forth in this Section.
1.2.
1.3. (b) Bid Rate Quote Request. When a Borrower wishes to request
offers to make Bid Rate Loans under this Section, it shall transmit to the
Administrative Agent by telex or facsimile transmission a Bid Rate Quote
Request substantially in the form of Exhibit B hereto so as to be received
no later than 11:00 A.M. (New York City time) on (x) the fifth Euro-Dollar
Business Day prior to the date of Borrowing proposed therein, in the case
of a Bid Rate (Indexed) Auction or (y) the Domestic Business Day next
preceding the date of Borrowing proposed therein, in the case of a Bid Rate
(General) Auction (or, in either case, such other time or date as the
Borrower and the Administrative Agent shall have mutually agreed and shall
have notified to the Banks not later than the date of the Bid Rate Quote
Request for the first Bid Rate (Indexed) Auction or Bid Rate (General)
Auction for which such change is to be effective) specifying:
1.4.
1.5. (i) the proposed date of Borrowing, which shall be a
Euro-Dollar Business Day,
1.6.
1.7. (ii) the aggregate amount of such Borrowing, which shall be
$10,000,000 or a larger multiple of $1,000,000,
1.8.
1.9. (iii) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest Period,
and
1.10.
1.11. (iv) whether the Bid Rate Quotes requested are to set
forth a Bid Rate (Indexed) Margin or a Bid Rate (General).
1.12. The Borrower may request offers to make Bid Rate Loans for more
than one Interest Period in a single Bid Rate Quote Request.
(c) Invitation for Bid Rate Quotes. Promptly upon receipt of a Bid
Rate Quote Request, the Administrative Agent shall send to the Banks by
telex or facsimile transmission an Invitation for Bid Rate Quotes
substantially in the form of Exhibit C hereto, which shall constitute an
invitation by the Borrower to each Bank to submit Bid Rate Quotes offering
to make the Bid Rate Loans to which such Bid Rate Quote Request relates in
accordance with this Section.
(d) Submission and Contents of Bid Rate Quotes. (i) Each Bank may
submit a Bid Rate Quote containing an offer or offers to make Bid Rate
Loans in response to any Invitation for Bid Rate Quotes. Each Bid Rate
Quote must comply with the requirements of this subsection (d) and must be
submitted to the Administrative Agent by telex or facsimile transmission at
its offices specified in or pursuant to Section 11.01 not later than (x)
2:00 P.M. (New York City time) on the fourth Euro-Dollar Business Day prior
to the proposed date of Borrowing, in the case of a Bid Rate (Indexed)
Auction or (y) 10:00 A.M. (New York City time) on the proposed date of
Borrowing, in the case of a Bid Rate (General) Auction (or, in either case,
such other time or date as the Borrower and the Administrative Agent shall
have mutually agreed and shall have notified to the Banks not later than
the date of the Bid Rate Quote Request for the first Bid Rate (Indexed)
Auction or Bid Rate (General) Auction for which such change is to be
effective); provided that Bid Rate Quotes submitted by the Administrative
Agent (or any affiliate of the Administrative Agent) in the capacity of a
Bank may be submitted, and may only be submitted, if the Administrative
Agent or such affiliate notifies the Borrower of the terms of the offer or
offers contained therein not later than (x) 1:00 P.M. (New York City time)
on the fourth Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a Bid Rate (Indexed) Auction or (y) 9:45 A.M.
(New York City time) on the proposed date of Borrowing, in the case of a
Bid Rate (General) Auctions. Subject to Articles 3 and 6, any Bid Rate
Quote so made shall be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the Borrower.
(ii) Each Bid Rate Quote shall be in substantially the form of Exhibit
D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Bid Rate Loan for which
each such offer is being made, which principal amount (w) may be
greater than or less than the Commitment of the quoting Bank, (x)
must be $5,000,000 or a larger multiple of $1,000,000, (y) may
not exceed the principal amount of Bid Rate Loans for each
Interest Period for which offers were requested and (z) may be
subject to an aggregate limitation as to the principal amount of
Bid Rate Loans for which offers being made by such quoting Bank
may be accepted,
(C) in the case of a Bid Rate (Indexed) Auction, the margin
above or below the applicable London Interbank Offered Rate (the
"Bid Rate (Indexed) Margin") offered for each such Bid Rate Loan,
expressed as a percentage (specified to the nearest 1/10,000th of
1%) to be added to or subtracted from such base rate,
(D) in the case of a Bid Rate (General) Auction, the rate
of interest per annum (specified to the nearest 1/10,000th of 1%)
(the "Bid Rate (General)") offered for each such Bid Rate Loan,
and
(E) the identity of the quoting Bank.
A Bid Rate Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related
Invitation for Bid Rate Quotes.
(iii) Any Bid Rate Quote shall be disregarded if:
(A) it is not substantially in conformity with Exhibit D
hereto or does not specify all of the information required by
subsection 2.03(d)(ii);
(B) it contains qualifying, conditional or similar language
beyond that contemplated by Exhibit D (other than a qualification
or condition as to minimum amount);
(C) it proposes terms other than or in addition to those
set forth in the applicable Invitation for Bid Rate Quotes; or
(D) it arrives after the time set forth in subsection
2.03(d)(i).
(e) Notice to Borrower. The Administrative Agent shall promptly but
in no event later than (i) 5:00 P.M. (New York City time) on the fourth
Euro-Dollar Business Day prior to the proposed date of Borrowing, in the
case of a Bid Rate (Indexed) Auction or (ii) 10:30 A.M. (New York City
time) on the proposed date of Borrowing, in the case of a Bid Rate
(General) Auction (or, in either case such other time or date as the
Borrower and the Administrative Agent shall have mutually agreed and shall
have notified to the Banks not later than the date of the Bid Rate Quote
Request for the first Bid Rate (Indexed) Auction or Bid Rate (General)
Auction for which such change is to be effective) notify the Borrower of
the terms (x) of any Bid Rate Quote submitted by a Bank that is in
accordance with subsection (d) and (y) of any Bid Rate Quote that amends,
modifies or is otherwise inconsistent with a previous Bid Rate Quote
submitted by such Bank with respect to the same Bid Rate Quote Request.
Any such subsequent Quote shall be disregarded by the Administrative Agent
unless such subsequent Quote is submitted solely to correct a manifest
error in such former Quote. The Administrative Agent's notice to the
Borrower shall specify (A) the aggregate principal amount of Loans for
which offers have been received for each Interest Period specified in the
related Bid Rate Quote Request, (B) the respective principal amounts and
Bid Rate (Indexed) Margins or Bid Rates (General), as the case may be, so
offered and (C) if applicable, limitations on the aggregate principal
amount of Bid Rate Loans for which offers in any single Bid Rate Quote may
be accepted.
(f) Acceptance and Notice by Borrower. Not later than 11:00 A.M.
(New York City time) on (x) the third Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a Bid Rate (Indexed) Auction or
(y) the proposed date of Borrowing, in the case of a Bid Rate (General)
Auction (or, in either case, such other time or date as the Borrower and
the Administrative Agent shall have mutually agreed and shall have notified
to the Banks not later than the date of the Bid Rate Quote Request for the
first Bid Rate (Indexed) Auction or Bid Rate (General) Auction for which
such change is to be effective), the Borrower shall notify the
Administrative Agent of its acceptance or non-acceptance of the offers so
notified to it pursuant to subsection (e). In the case of acceptance, such
notice (a "Notice of Bid Rate Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Bid Rate Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Bid Rate Borrowing
may not exceed the applicable amount set forth in the related Bid Rate
Quote Request,
(ii) the principal amount of each Bid Rate Borrowing must be
$10,000,000 or a larger multiple of $1,000,000, and
(iii) acceptance of offers may only be made on the basis of
ascending Bid Rate (Indexed) Margins or Bid Rates (General), as the
case may be.
(g) Allocation by Administrative Agent. If offers are made by two or
more Banks with the same Bid Rate (Indexed) Margins or Bid Rates (General),
as the case may be, for a greater aggregate principal amount than the
amount in respect of which such offers are accepted for the related
Interest Period, the principal amount of Bid Rate Loans in respect of which
such offers are accepted shall be allocated by the Administrative Agent
among such Banks as nearly as possible (in multiples of $1,000,000, as the
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the Administrative
Agent of the amounts of Bid Rate Loans shall be conclusive in the absence
of manifest error.
1.1. SECTION Notice to Banks; Funding of Loans . (a) Upon receipt
of a Notice of Borrowing, the Administrative Agent shall promptly notify
each Bank of the contents thereof and of such Bank's share (if any) of such
Borrowing and such Notice of Borrowing shall not thereafter be revocable by
the Borrower.
1.2.
1.3. (b) Not later than 1:00 P.M. (New York City time) on the date of
each Borrowing, each Bank participating therein shall (except as provided
in subsection (c) of this Section) make available its share of such
Borrowing, in Federal or other funds immediately available in New York
City, to the Administrative Agent at its address specified in or pursuant
to Section 11.01. Unless the Administrative Agent determines that any
applicable condition specified in Article 3 has not been satisfied, the
Administrative Agent will make the funds so received from the Banks
available to the Borrower at the Administrative Agent's aforesaid address
not later than 2:30 P.M. (New York City time) on the date of such
Borrowing.
1.4. (c) Unless the Administrative Agent shall have received notice
from a Bank prior to the time of any Borrowing that such Bank will not make
available to the Administrative Agent such Bank's share of such Borrowing,
the Administrative Agent may assume that such Bank has made such share
available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (b) of this Section 2.04 and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower
on such date a corresponding amount. If and to the extent that such Bank
shall not have so made such share available to the Administrative Agent,
such Bank and, if such Bank shall not have made such payment within two
Domestic Business Days of demand therefor, the Borrower severally agree to
repay to the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such
amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of the Borrower, a
rate per annum equal to the higher of the Federal Funds Rate and the
interest rate applicable thereto pursuant to Section 2.07 and (ii) in the
case of such Bank, the Federal Funds Rate. If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Loan included in such Borrowing for purposes of this
Agreement.
1.5.
1.6. (d) The failure of any Bank to make the Loan to be made by it as
part of any Borrowing shall not relieve any other Bank of its obligation,
if any, hereunder to make a Loan on the date of such Borrowing, but no Bank
shall be responsible for the failure of any other Bank to make a Loan to be
made by such other Bank.
1.7.
1.8. SECTION Registry; Notes . (a) The Administrative Agent shall
maintain a register (the "Register") on which it will record the Commitment
of each Bank, each Loan made by such Bank and each repayment of any Loan
made by such Bank. Any such recordation by the Administrative Agent on the
Register shall be presumptively correct, absent manifest error. Failure to
make any such recordation, or any error in such recordation, shall not
affect the Borrowers' obligations hereunder.
1.9.
1.10. (b) Each Borrower hereby agrees that, promptly upon the
request of any Bank at any time, such Borrower shall deliver to such Bank a
duly executed Note, in substantially the form of Exhibit A hereto, payable
to the order of such Bank and representing the obligation of such Borrower
to pay the unpaid principal amount of the Loans made to such Borrower by
such Bank, with interest as provided herein on the unpaid principal amount
from time to time outstanding.
1.11.
1.12. (c) Each Bank shall record the date, amount and maturity of
each Loan made by it and the date and amount of each payment of principal
made by the Borrower with respect thereto, and each Bank receiving a Note
pursuant to this Section, if such Bank so elects in connection with any
transfer or enforcement of any Note, may endorse on the schedule forming a
part thereof appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding; provided that the failure
of such Bank to make any such recordation or endorsement shall not affect
the obligations of the Borrowers hereunder or under the Notes. Such Bank
is hereby irrevocably authorized by the Borrowers so to endorse any Note
and to attach to and make a part of any Note a continuation of any such
schedule as and when required.
1.13.
1.14. SECTION Maturity of Loans . (a) Each Syndicated Loan
shall mature, and the principal amount thereof shall be due and payable
(together with accrued and unpaid interest thereon), on the Termination
Date.
1.15.
1.16. (b) Each Swingline Loan included in any Swingline Borrowing
and each Bid Rate Loan included in any Bid Rate Borrowing shall mature, and
the principal amount thereof shall be due and payable (together with
accrued and unpaid interest thereon), on the last day of the Interest
Period applicable to such Borrowing.
1.17.
1.18. SECTION Interest Rates . (a) Each Base Rate Loan shall
bear interest on the outstanding principal amount thereof, for each day
from the date such Loan is made until it becomes due, at a rate per annum
equal to the Base Rate for such day. Such interest shall be payable
quarterly in arrears on each Quarterly Payment Date, at maturity and, with
respect to the principal amount of any Base Rate Loan converted to a Euro-
Dollar Loan, on the date such Base Rate Loan is so converted. Any overdue
principal of or overdue interest on any Base Rate Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
sum of 2% plus the Base Rate for such day.
1.19.
1.20. (b) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for each day during each Interest
Period applicable thereto, at a rate per annum equal to the sum of the
Euro-Dollar Margin for such day plus the London Interbank Offered Rate
applicable to such Interest Period. Such interest shall be payable for
each Interest Period on the last day thereof and, if such Interest Period
is longer than three months, at intervals of three months after the first
day thereof.
1.21.
1.22. The "London Interbank Offered Rate" applicable to any
Interest Period means the average (rounded upward, if necessary, to the
next higher 1/16 of 1%) of the respective rates per annum at which deposits
in dollars are offered to each of the Euro-Dollar Reference Banks in the
London interbank market at approximately 11:00 A.M. (London time) two Euro-
Dollar Business Days before the first day of such Interest Period in an
amount approximately equal to the principal amount of the Loan of such Euro-
Dollar Reference Bank to which such Interest Period is to apply and for a
period of time comparable to such Interest Period. If any Euro-Dollar
Reference Bank does not furnish a timely quotation, the Administrative
Agent shall determine the relevant interest rate on the basis of the
quotation furnished by the remaining Euro-Dollar Reference Banks or, if
none of such quotations is available on a timely basis, the provisions of
Section 8.01 shall apply.
1.23.
1.24. (c) Any overdue principal of or overdue interest on any
Euro-Dollar Loan shall bear interest, payable on demand, for each day from
and including the date payment thereof was due to but excluding the date of
actual payment, at a rate per annum equal to the sum of 2% plus the higher
of (i) the sum of the Euro-Dollar Margin for such day plus the London
Interbank Offered Rate applicable to such Loan at the date such payment was
due and (ii) the Base Rate for such day.
1.25.
1.26. (d) Each Swingline Loan shall bear interest on the
outstanding principal amount thereof, for each day during the Interest
Period applicable thereto, at a rate per annum equal to the Base Rate for
such day or such other rate as may be from time to time determined by
mutual agreement between the Swingline Bank making such Loan and the
Borrower. Interest on each Swingline Loan shall be payable at the maturity
of such Loan. Any overdue principal of or overdue interest on any
Swingline Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 2% plus the Base Rate for such
day; provided that if and to the extent the failure to pay such principal
or interest when due was attributable to default by a Bank in making a Loan
which such Bank was obligated to make hereunder, such interest shall accrue
at a rate per annum equal to the Base Rate from and including the date such
payment was due to but not including the first Domestic Business Day
thereafter and shall accrue at a rate per annum equal to the sum of 2% plus
the Base Rate from and including such first succeeding Domestic Business
Day until paid.
1.27.
1.28. (e) Subject to Section 8.01(a), each Bid Rate (Indexed)
Loan shall bear interest on the outstanding principal amount thereof, for
the Interest Period applicable thereto, at a rate per annum equal to the
sum of the London Interbank Offered Rate for such Interest Period
(determined in accordance with Section 2.07(b) as if each Euro-Dollar
Reference Bank were to participate in the related Bid Rate (Indexed)
Borrowing ratably in proportion to its Commitment) plus (or minus) the Bid
Rate (Indexed) Margin quoted by the Bank making such Loan in accordance
with Section 2.03. Each Bid Rate (General) Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the Bid Rate (General) quoted by the
Bank making such Loan in accordance with Section 2.03. Such interest shall
be payable for each Interest Period on the last day thereof and, if such
Interest Period is longer than three months, at intervals of three months
after the first day thereof. Any overdue principal of or overdue interest
on any Bid Rate Loan shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the sum of 2% plus the Base Rate
for such day.
1.29.
1.30. (f) The Administrative Agent shall determine each interest
rate applicable to the Loans hereunder. The Administrative Agent shall
give prompt notice to the Borrower and the participating Banks of each rate
of interest so determined, and its determination thereof shall be
conclusive in the absence of manifest error.
1.31.
1.32. SECTION Fees . (a) Facility Fee. The Company shall pay
to the Administrative Agent for the account of each Bank a facility fee at
the Facility Fee Rate (determined daily in accordance with the Pricing
Schedule). Such facility fee shall accrue (i) from and including the
earlier of the date hereof and the Effective Date to but excluding the date
of termination of the Commitments in their entirety, on the daily aggregate
amount of the Commitments (whether used or unused) and (ii) from and
including such date of termination to but excluding the date the Loans and
Letter of Credit Liabilities shall be repaid in their entirety, on the
daily average aggregate outstanding principal amount of the Loans and
Letter of Credit Liabilities.
1.33.
1.34. (b) Letter of Credit Fees. Each Borrower shall pay (i) to
the Administrative Agent for the account of the Banks ratably a letter of
credit fee accruing daily on the aggregate amount then available for
drawing under all outstanding Letters of Credit issued at its request at a
rate per annum equal to the Euro-Dollar Margin and (ii) to each Issuing
Bank a letter of credit fronting fee accruing daily on the aggregate amount
then available for drawing under all Letters of Credit issued by such
Issuing Bank issued at its request at a rate per annum mutually agreed from
time to time by the Borrowers and such Issuing Bank.
1.35.
1.36. (c) Utilization Fees. For any day on which the aggregate
outstanding principal amount of the Loans is equal to or greater than 25%
of the aggregate amount of the Commitments, the Company shall pay to the
Administrative Agent for the account of each Bank a utilization fee for
such day computed at a rate per annum equal to the Utilization Fee Rate
(determined daily in accordance with the Pricing Schedule) on the principal
amount of such Bank's Loans. Such utilization fee shall accrue (for any
day on which applicable) from and including the Effective Date to the date
on which the Commitments are terminated, and thereafter until all Loans are
paid in full.
1.37.
1.38. (d) Payments. Accrued fees under this Section shall be
payable quarterly in arrears on each Quarterly Payment Date and upon the
date of termination of the Commitments in their entirety (and, thereafter,
on demand until the Loans and Letter of Credit Liabilities shall be repaid
in their entirety).
1.39.
1.40. SECTION Optional Termination or Reduction of Commitments .
The Company may, upon notice to the Administrative Agent not later than
11:00 A.M. (New York City time) on any Domestic Business Day, (i) terminate
the Commitments at any time, if no Loans or Letter of Credit Liabilities
are outstanding at such time (after giving effect to any contemporaneous
prepayment of the Loans in accordance with Section 2.12) or (ii) ratably
reduce from time to time by an aggregate amount of $25,000,000 or any
larger multiple of $1,000,000 the aggregate amount of the Commitments in
excess of the aggregate outstanding principal amount of the Loans and
Letter of Credit Liabilities.
1.41.
1.42. SECTION Method of Electing Interest Rates . (a) The Loans
included in each Syndicated Borrowing shall bear interest initially at the
type of rate specified by the Borrower in the applicable Notice of
Committed Borrowing. Thereafter, the Borrower may from time to time elect
to change or continue the type of interest rate borne by each Group of
Loans (subject in each case to the provisions of Article 8 and the last
sentence of this subsection (a)), as follows:
1.43.
1.44. (i) if such Loans are Base Rate Loans, the Borrower
may elect to convert such Loans to Euro-Dollar Loans as of any Euro-Dollar
Business Day; and
1.45.
1.46. (ii) if such Loans are Euro-Dollar Loans, the Borrower
may elect to convert such Loans to Base Rate Loans or elect to continue
such Loans as Euro-Dollar Loans for an additional Interest Period, subject
to Section 2.14 in the case of any such conversion or continuation
effective on any day other than the last day of the then current Interest
Period applicable to such Loans.
1.47.
1.48. Each such election shall be made by delivering a notice in
substantially the form of Exhibit L (a "Notice of Interest Rate Election")
to the Administrative Agent not later than 11:00 A.M. (New York City time)
on the third Euro-Dollar Business Day before the conversion or continuation
selected in such notice is to be effective. A Notice of Interest Rate
Election may, if it so specifies, apply to only a portion of the aggregate
principal amount of the relevant Group of Loans, provided that (i) such
portion is allocated ratably among the Loans comprising such Group and (ii)
the portion to which such notice applies, and the remaining portion to
which it does not apply, are each $10,000,000 or any larger multiple of
$1,000,000.
1.49.
1.50. (b) Each Notice of Interest Rate Election shall specify:
1.51.
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable
clause of subsection 2.10(a) above;
(iii) if the Loans comprising such Group are to be converted,
the new type of Loans and, if the Loans being converted are to be
Fixed Rate Loans, the duration of the next succeeding Interest Period
applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for
an additional Interest Period, the duration of such additional
Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election
shall comply with the provisions of the definition of the term "Interest
Period".
(c) Promptly after receiving a Notice of Interest Rate Election from
the Borrower pursuant to subsection 2.10(a) above, the Administrative Agent
shall notify each Bank of the contents thereof and such notice shall not
thereafter be revocable by the Borrower. If no Notice of Interest Rate
Election is timely received prior to the end of an Interest Period for any
Group of Loans, the Borrower shall be deemed to have elected that such
Group of Loans be converted to Base Rate Loans as of the last day of such
Interest Period.
(d) An election by the Borrower to change or continue the rate of
interest applicable to any Group of Loans pursuant to this Section shall
not constitute a "Borrowing" subject to the provisions of Section 3.02.
1.1. SECTION Scheduled Termination of Commitments . The
Commitments shall terminate on the Termination Date, and any Loans then
outstanding (together with accrued and unpaid interest thereon) shall be
due and payable on such date.
1.2.
1.3. SECTION Optional Prepayments . (a) Subject in the case of any
Fixed Rate Borrowing to Section 2.14, the Borrower may upon notice to the
Administrative Agent not later than 11:00 A.M. (New York City time) on any
Domestic Business Day prepay on such Domestic Business Day any Group of
Base Rate Loans, any Swingline Borrowing or any Bid Rate Borrowing bearing
interest at the Base Rate pursuant to Section 8.01(a) and upon at least
three Euro-Dollar Business Days' notice to the Administrative Agent not
later than 11:00 A.M. (New York City time) prepay any Group of Euro-Dollar
Loans, in each case in whole at any time, or from time to time in part in
amounts aggregating $10,000,000 or any larger multiple of $1,000,000, by
paying the principal amount to be prepaid together with accrued interest
thereon to the date of prepayment. Each such optional prepayment shall be
applied to prepay ratably the Loans of the several Banks included in such
Group or Borrowing.
1.4.
1.5. (b) Except as provided in subsection 2.12(a), the Borrower may
not prepay all or any portion of the principal amount of any Bid Rate Loan
prior to the maturity thereof.
1.6.
1.7. (c) Upon receipt of a notice of prepayment pursuant to this
Section, the Administrative Agent shall promptly notify each Bank of the
contents thereof and of such Bank's share (if any) of such prepayment and
such notice shall not thereafter be revocable by the Borrower.
1.8.
1.9. SECTION General Provisions as to Payments . (a) Each payment
of principal of, and interest on, the Loans and of fees hereunder shall be
made not later than 2:30 P.M. (New York City time) on the date when due, in
Federal or other funds immediately available in New York City, to the
Administrative Agent at its address referred to in Section 11.01. The
Administrative Agent will promptly distribute to each Bank its ratable
share of each such payment received by the Administrative Agent for the
account of the Banks. Whenever any payment of principal of, or interest
on, the Base Rate Loans, Swingline Loans or Letter of Credit Liabilities or
of fees shall be due on a day which is not a Domestic Business Day, the
date for payment thereof shall be extended to the next succeeding Domestic
Business Day. Whenever any payment of principal of, or interest on, the
Euro-Dollar Loans shall be due on a day which is not a Euro-Dollar Business
Day, the date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case the date for payment thereof shall be
the next preceding Euro-Dollar Business Day. Whenever any payment of
principal of, or interest on, the Bid Rate Loans shall be due on a day
which is not a Euro-Dollar Business Day, the date for payment thereof shall
be extended to the next succeeding Euro-Dollar Business Day. If the date
for any payment of principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time.
1.10.
1.11. (b) Unless the Administrative Agent shall have received
notice from a Borrower prior to the date on which any payment is due from
such Borrower to the Banks hereunder that such Borrower will not make such
payment in full, the Administrative Agent may assume that such Borrower has
made such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount
then due such Bank. If and to the extent that such Borrower shall not have
so made such payment, each Bank shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed to
such Bank until the date such Bank repays such amount to the Administrative
Agent, at the Federal Funds Rate.
1.12.
1.13. SECTION Funding Losses . If a Borrower makes any payment
of principal with respect to any Fixed Rate Loan or any Euro-Dollar Loan is
converted to a Base Rate Loan or continued as a Euro-Dollar Loan for a new
Interest Period (pursuant to Article 2, 6 or 8 or otherwise) on any day
other than the last day of an Interest Period applicable thereto, or if a
Borrower fails to borrow, prepay, convert or continue any Fixed Rate Loans
after notice has been given to any Bank in accordance with Section 2.04(a),
2.10(c) or 2.12(c) (other than by reason of a default by the Bank demanding
payment hereunder), such Borrower shall reimburse each Bank within 15 days
after written demand from such Bank for any resulting loss or reasonable
expense incurred by it (or by an existing or prospective Participant in the
related Loan, but not to exceed the loss and expense which would have been
incurred by such Bank had no participations been granted by it), including
(without limitation) any loss incurred in obtaining, liquidating or
employing deposits from third parties, but excluding loss of profit or
margin for the period after any such payment or conversion or failure to
borrow, prepay, convert or continue, provided that such Bank shall have
delivered to such Borrower a certificate setting forth in reasonable detail
the calculation of the amount of such loss or expense, which certificate
shall be presumptively correct in the absence of manifest error.
1.14.
1.15. SECTION Computation of Interest and Fees . Interest based
on the Prime Rate hereunder shall be computed on the basis of a year of 365
days (or 366 days in a leap year) and paid for the actual number of days
elapsed (including the first day but excluding the last day). All other
interest and all fees shall be computed on the basis of a year of 360 days
and paid for the actual number of days elapsed (including the first day but
excluding the last day).
1.16.
1.17. SECTION Letters of Credit . (a) Subject to the terms and
conditions hereof, each Issuing Bank agrees to issue Letters of Credit
hereunder from time to time before the sixth Domestic Business Day
preceding the Termination Date upon the request of any Borrower; provided
that, immediately after each Letter of Credit is issued (i) the aggregate
amount of the Letter of Credit Liabilities plus the aggregate outstanding
amount of all Loans shall not exceed the aggregate amount of the
Commitments and (ii) the aggregate Letter of Credit Liabilities shall not
exceed $100,000,000. On the Effective Date, each of the Existing Letters
of Credit shall be deemed to be a Letter of Credit issued at the request of
the Company hereunder, and shall from and after such date be governed by
the provisions of this Agreement as fully as if the same had been issued
pursuant hereto on the Effective Date. Upon the date of issuance by an
Issuing Bank of a Letter of Credit (or on the Effective Date, in the case
of the Existing Letters of Credit), the Issuing Bank shall be deemed,
without further action by any party hereto, to have sold to each Bank, and
each Bank shall be deemed, without further action by any party hereto, to
have purchased from the Issuing Bank, a participation in such Letter of
Credit and the related Letter of Credit Liabilities in the proportion its
Commitment bears to the aggregate Commitments.
1.18.
1.19. (b) The Borrower shall give an Issuing Bank notice at least
three Domestic Business Days prior to the requested issuance of a Letter of
Credit specifying the date such Letter of Credit is to be issued, and
describing the terms of such Letter of Credit and the nature of the
transactions to be supported thereby (such notice, including any such
notice given in connection with the extension of a Letter of Credit, a
"Notice of Issuance"). Upon receipt of a Notice of Issuance, the Issuing
Bank shall promptly notify the Administrative Agent, and the Administrative
Agent shall promptly notify each Bank of the contents thereof and of the
amount of such Bank's participation in such Letter of Credit. The issuance
by the Issuing Bank of each Letter of Credit shall, in addition to the
conditions precedent set forth in Article 3, be subject to the conditions
precedent that such Letter of Credit shall be in such form and contain such
terms as shall be reasonably satisfactory to the Issuing Bank and that the
Borrower shall have executed and delivered such other instruments and
agreements relating to such Letter of Credit as the Issuing Bank shall have
reasonably requested. The Borrower shall also pay to the Issuing Bank for
its own account issuance, drawing, amendment and extension charges in the
amounts and at the times as agreed between the Borrower and the Issuing
Bank. The extension or renewal of any Letter of Credit shall be deemed to
be an issuance of such Letter of Credit, and if any Letter of Credit
contains a provision pursuant to which it is deemed to be extended unless
notice of termination is given by the Issuing Bank, the Issuing Bank shall
timely give such notice of termination unless it has theretofore timely
received a Notice of Issuance and the other conditions to issuance of a
Letter of Credit have also theretofore been met with respect to such
extension.
1.20.
1.21. (c) No Letter of Credit shall have a term extending or
extendible beyond the fifth Domestic Business Day preceding the Termination
Date.
1.22.
1.23. (d) Upon receipt from the beneficiary of any Letter of
Credit of any notice of a drawing under such Letter of Credit, the Issuing
Bank shall notify the Administrative Agent and the Administrative Agent
shall promptly notify the Borrower and each other Bank as to the amount to
be paid as a result of such demand or drawing and the payment date. The
Borrower shall be irrevocably and unconditionally obligated forthwith to
reimburse the Issuing Bank for any amounts paid by the Issuing Bank upon
any drawing under any Letter of Credit, without presentment, demand,
protest or other formalities of any kind. In the event of a drawing under
a Letter of Credit, the Borrower shall, unless it gives not less than one
Domestic Business Day's notice to the Administrative Agent to the contrary,
be deemed to have timely given a Notice of Borrowing for a Base Rate
Borrowing on the date of such drawing in the exact amount due the Issuing
Bank hereunder on such date, and the Administrative Agent shall apply the
proceeds of such Borrowing to make payment thereof.
1.24.
1.25. (e) All such amounts paid by the Issuing Bank and remaining
unpaid by the Borrower shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the Base Rate for such day plus, if
such amount remains unpaid for more than one Domestic Business Day, 2%;
provided that if and to the extent the failure to pay such principal or
interest when due is attributable to default by a Bank in making a Loan
which such Bank was obligated to make hereunder, such interest shall accrue
at a rate per annum equal to the Base Rate from and including the date such
payment was due to but not including the first Domestic Business Day
thereafter and shall accrue at a rate per annum equal to the sum of 2% plus
the Base Rate from and including such first succeeding Domestic Business
Day until paid. In addition, each Bank will pay to the Administrative
Agent, for the account of the Issuing Bank, immediately upon the Issuing
Bank's demand at any time during the period commencing after such drawing
until reimbursement therefor in full by the Borrower, an amount equal to
such Bank's ratable share of such drawing (in proportion to its
participation therein), together with interest on such amount for each day
from the date of the Issuing Bank's demand for such payment (or, if such
demand is made after 12:00 Noon (New York City time) on such date, from the
next succeeding Domestic Business Day) to the date of payment by such Bank
of such amount at a rate of interest per annum equal to the Federal Funds
Rate. The Issuing Bank will pay to each Bank ratably all amounts received
from the Borrower for application in payment of its reimbursement
obligations in respect of any Letter of Credit, but only to the extent such
Bank has made payment to the Issuing Bank in respect of such Letter of
Credit pursuant hereto.
1.26.
1.27. (f) The obligations of each Borrower and Bank under
subsections 2.16(d) and 2.16(e) above shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms
of this Agreement, under all circumstances whatsoever, including without
limitation the following circumstances:
1.28.
1.29. (i) the use which may be made of the Letter of Credit
by, or any acts or omission of, a beneficiary of a Letter of Credit (or any
Person for whom the beneficiary may be acting);
1.30.
1.31. (ii) the existence of any claim, set-off, defense or
other rights that such Borrower may have at any time against a beneficiary
of a Letter of Credit (or any Person for whom the beneficiary may be
acting), the Banks (including the Issuing Bank), any other Borrower or any
other Person, whether in connection with this Agreement or the Letter of
Credit or any document related hereto or thereto or any unrelated
transaction;
1.32.
1.33. (iii) any statement or any other document presented
under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect
whatsoever;
1.34.
1.35. (iv) payment under a Letter of Credit to the
beneficiary of such Letter of Credit against presentation to the Issuing
Bank of a draft or certificate that does not comply with the terms of the
Letter of Credit; and
1.36.
1.37. (v) any other act or omission to act or delay of any
kind by any Bank (including the Issuing Bank), the Administrative Agent or
any other Person or any other event or circumstance whatsoever that might,
but for the provisions of this subsection (v), constitute a legal or
equitable discharge of such Borrower's or Bank's obligations hereunder;
provided however that nothing in this subsection 2.16(f) shall relieve the
Issuing Bank, the Administrative Agent or any other Bank of legal
responsibility it would otherwise have for the consequences of its own
gross negligence or willful misconduct.
(g) Each Borrower hereby indemnifies and holds harmless each Bank
(including each Issuing Bank) and the Administrative Agent from and against
any and all liabilities, losses, damages, costs or out-of-pocket expenses
which such Bank or the Administrative Agent may incur (including, without
limitation, any liabilities, losses, damages, costs or out-of-pocket
expenses which an Issuing Bank may incur by reason of or in connection with
the failure of any other Bank to fulfill or comply with its obligations to
such Issuing Bank hereunder (but nothing herein contained shall affect any
rights the Borrower may have against such defaulting Bank)), and none of
the Banks (including the Issuing Banks) nor the Administrative Agent nor
any of their officers or directors or employees or agents shall be liable
or responsible, by reason of or in connection with the execution and
delivery or transfer of or payment or failure to pay under any Letter of
Credit issued at the request of such Borrower, including without limitation
any of the circumstances enumerated in subsection 2.16(f) above, as well as
(i) any error, omission, interruption or delay in transmission or delivery
of any messages, by mail, cable, telegraph, telex or otherwise, (ii) any
loss or delay in the transmission of any document required in order to make
a drawing under a Letter of Credit, and (iii) any consequences arising from
causes beyond the control of the Issuing Bank, including without limitation
any government acts, or any other circumstances whatsoever in making or
failing to make payment under such Letter of Credit; provided that such
Borrower shall not be required to indemnify the Issuing Bank for any
claims, damages, losses, liabilities, costs or expenses, and the Borrower
shall have a claim for direct damage suffered by it, to the extent found by
a court of competent jurisdiction to have been caused by (x) the willful
misconduct or gross negligence of the Issuing Bank in determining whether a
request presented under any such Letter of Credit complied with the terms
of such Letter of Credit or (y) the Issuing Bank's failure to pay under any
such Letter of Credit after the presentation to it of a request strictly
complying with the terms and conditions of such Letter of Credit. Nothing
in this subsection 2.16(g) is intended to limit the obligations of any
Borrower under any other provision of this Agreement. To the extent any
Borrower does not indemnify an Issuing Bank as required by this subsection,
the Banks agree to do so ratably in accordance with their Commitments.
1.1. SECTION Regulation D Compensation . In the event that a Bank
is required to maintain reserves of the type contemplated by the definition
of "Euro-Dollar Reserve Percentage", such Bank may require the Borrower to
pay, contemporaneously with each payment of interest on the Euro-Dollar
Loans, additional interest on the related Euro-Dollar Loan of such Bank at
a rate per annum determined by such Bank up to but not exceeding the excess
of (i) (A) the applicable London Interbank Offered Rate divided by (B) one
minus the Euro-Dollar Reserve Percentage over (ii) the applicable London
Interbank Offered Rate. Any Bank wishing to require payment of such
additional interest (x) shall so notify the Borrower and the Administrative
Agent, in which case such additional interest on the Euro-Dollar Loans of
such Bank shall be payable to such Bank at the place indicated in such
notice with respect to each Interest Period commencing at least three
Euro-Dollar Business Days after the giving of such notice and (y) shall
furnish to the Borrower at least three Euro-Dollar Business Days prior to
each date on which interest is payable on the Euro-Dollar Loans of such
Borrower an officer's certificate setting forth the amount to which such
Bank is then entitled under this Section 2.17 (which shall be consistent
with such Bank's good faith estimate of the level at which the related
reserves are maintained by it). Each such notification shall be
accompanied by such information as the Borrower may reasonably request.
1.2.
1.3. "Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member
bank of the Federal Reserve System in New York City with deposits exceeding
five billion dollars in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is determined or
any category of extensions of credit or other assets which includes loans
by a non-United States office of any Bank to United States residents).
1.4.
1.5. SECTION Takeout of Swingline Loans . (a) In the event that any
Swingline Loan shall not be repaid in full at or prior to the maturity
thereof the Administrative Agent shall, on behalf of the Borrower (each
Borrower hereby irrevocably directing and authorizing the Administrative
Agent so to act on its behalf), give a Notice of Borrowing requesting the
Banks, including the Swingline Bank, to make a Base Rate Borrowing on the
maturity date of such Swingline Loan in an amount equal to the unpaid
principal amount of such Swingline Loan. Each Bank will make the proceeds
of its Base Rate Loan included in such Borrowing available to the
Administrative Agent for the account of the Swingline Bank which made such
Swingline Loan on such date in accordance with Section 2.04. The proceeds
of such Base Rate Borrowing shall be immediately applied to repay such
Swingline Loan.
1.6.
1.7. (b) If, for any reason, a Base Rate Borrowing may not be (as
determined by the Administrative Agent in its sole discretion), or is not,
made pursuant to subsection (a) above to refund a Swingline Loan as
required by said subsection, then, effective on the date such Borrowing
would otherwise have been made, each Bank severally, unconditionally and
irrevocably agrees that it shall purchase an undivided participating
interest in such Swingline Loan (an "Unrefunded Swingline Loan") in an
amount equal to the amount of the Loan which otherwise would have been made
by such Bank pursuant to subsection (a), which purchase shall be funded by
the time such Loan would have been required to be funded pursuant to
Section 2.04 by transfer to the Administrative Agent, for the account of
the Swingline Bank, in immediately available funds, of the amount of its
participation.
1.8.
1.9. (c) Whenever, at any time after the Swingline Bank has received
from any Bank payment in full for such Bank's participating interest in a
Swingline Loan, the Swingline Bank (or the Administrative Agent on its
behalf) receives any payment on account thereof, the Swingline Bank (or the
Administrative Agent, as the case may be) will promptly distribute to such
Bank its participating interest in such payment (appropriately adjusted, in
the case of interest payments, to reflect the period of time during which
such Bank's participating interest was outstanding and funded); provided,
however, that in the event that such payment is subsequently required to be
returned, such Bank will return to the Swingline Bank (or the
Administrative Agent, as the case may be) any portion thereof previously
distributed by the Swingline Bank (or the Administrative Agent, as the case
may be) to it.
1.10.
1.11. (d) Each Bank's obligation to purchase and fund
participating interests pursuant to this Section shall be absolute and
unconditional and shall not be affected by any circumstance, including,
without limitation: any setoff, counterclaim, recoupment, defense or other
right which such Bank or the Borrower may have against any Swingline Bank,
or any other Person for any reason whatsoever; the occurrence or
continuance of a Default or the failure to satisfy any of the conditions
specified in Article 3; any adverse change in the condition (financial or
otherwise) of any Borrower; any breach of this Agreement by any Borrower or
any Bank; or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
1.12.
1.13. SECTION Foreign Costs . (a) If the cost to any Bank of
making or maintaining any Loan or of issuing or participating in any Letter
of Credit is increased, or the amount of any sum received or receivable by
any Bank (or its Applicable Lending Office) is reduced by an amount deemed
by such Bank to be material, by reason of the fact that the Borrower of
such Loan or Letter of Credit is incorporated in, or conducts business in,
a jurisdiction outside the United States of America, such Borrower shall
indemnify such Bank for such increased cost or reduction within 15 days
after demand by such Bank (with a copy to the Administrative Agent). A
certificate of such Bank claiming compensation under this subsection (a)
and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error.
1.14.
1.15. (b) Each Bank will promptly notify the Company and the
Administrative Agent of any event of which it has knowledge that will
entitle such Bank to additional compensation pursuant to subsection (a) and
will designate a different Applicable Lending Office if, in the judgment of
such Bank, such designation will avoid the need for, or reduce the amount
of, such compensation and will not be otherwise disadvantageous to such
Bank.
1.16.
ARTICLE CONDITIONS
1.1. SECTION Effectiveness . This Agreement shall become effective,
and all loans outstanding under the Existing Credit Agreement shall be
deemed to be Loans hereunder, on the date that each of the following
conditions shall have been satisfied (or waived in accordance with Section
11.05):
(a) receipt by the Administrative Agent of evidence that counterparts
hereof have been signed by each Borrower, the Resigning Agent and the
Required Banks (it being understood that the Administrative Agent may rely
on telegraphic, telecopy, telex or other written confirmation from any
party of execution of a counterpart hereof by such party);
(a) receipt by the Administrative Agent of an opinion of (i) Xxxxxxxx
& Xxxxx, special counsel for the Company, substantially in the form of
Exhibit E-1 hereto and (ii) Xxxx Xxx Xxxxx, General Counsel of the Company,
substantially in the form of Exhibit E-2 hereto, and in each case covering
such additional matters relating to the transactions contemplated hereby as
the Required Banks may reasonably request;
(a) receipt by the Administrative Agent of an opinion of Xxxxx, Xxxxx
& Xxxxx, special counsel for the Administrative Agent, substantially in the
form of Exhibit F hereto and covering such additional matters relating to
the transactions contemplated hereby as the Required Banks may reasonably
request; and
(a) receipt by the Administrative Agent of all documents it may have
reasonably requested prior to the date hereof relating to the existence of
the Company, the corporate authority for and the validity of this Agreement
and the Notes, and any other matters relevant hereto, all in form and
substance satisfactory to the Administrative Agent;
provided that this Agreement shall not become effective or be binding on
any party hereto unless all of the foregoing conditions are satisfied not
later than December 24, 1999; and provided further that the provisions of
Sections 2.08, 2.09, 2.14 and 11.03 shall become effective upon
satisfaction of the condition specified in clause 3.01(a). The
Administrative Agent shall promptly notify the Company and the Banks of the
Effective Date, and such notice shall be conclusive and binding on all
parties hereto.
1.1. SECTION Borrowings and Issuance of Letters of Credits . The
obligation of any Bank to make a Loan on the occasion of any Borrowing and
the obligation of the Issuing Bank to issue (or renew or extend the term
of) any Letter of Credit is subject to the satisfaction of the following
conditions; provided that if such Borrowing is a Swingline Takeout
Borrowing, only the conditions set forth in clauses 3.02(a) and 3.02(b)
must be satisfied:
1.2.
(a) receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.02 or 2.03 or receipt by the Issuing Bank of a Notice
of Issuance as required by Section 2.16, as the case may be;
(a) the fact that, immediately after such Borrowing or issuance of
such Letter of Credit, the sum of the aggregate outstanding principal
amount of the Loans and the aggregate amount of Letter of Credit
Liabilities will not exceed the aggregate amount of the Commitments, the
aggregate outstanding principal amount of Swingline Loans will not exceed
$25,000,000 and the aggregate amount of Letter of Credit Liabilities will
not exceed $100,000,000;
(a) the fact that, immediately after such Borrowing or issuance of
such Letter of Credit, no Default shall have occurred and be continuing;
and
(a) the fact that the representations and warranties (other than (i)
the representation and warranty set forth in Section 4.04(b) in the case of
a Borrowing which does not result in an increase in the sum of the
aggregate outstanding principal amount of the Loans and the aggregate
Letter of Credit Liabilities, (ii) the representation and warranty set
forth in Section 4.04(a) and (iii) the representations and warranties set
forth in Section 4.12 in the case of a Borrowing after December 31, 2000)
of the Borrower and, if the Borrower is not the Company, of the Company
contained in this Agreement shall be true on and as of the date of such
Borrowing or issuance of such Letter of Credit.
Each Borrowing and each issuance of a Letter of Credit hereunder shall
be deemed to be a representation and warranty by the Borrower (and, if the
Company is not the Borrower, by the Company) on the date of such Borrowing
or issuance as to the facts specified in clauses (b), (c) and (d) of this
Section (unless such Borrowing is a Swingline Takeout Borrowing, in which
case the Borrower (and the Company) shall be deemed to represent and
warrant as to the facts specified in clause (b) of this Section).
1.1. SECTION First Borrowing by or Issuance of Letter of Credit for
Each Eligible Subsidiary . The obligation of each Bank to make a Loan and
the obligation of each Issuing Bank to issue (or renew or extend the term
of) any Letter of Credit on the occasion of the first Borrowing by or
issuance for each Eligible Subsidiary is subject to the satisfaction of the
following further conditions:
1.2.
(a) receipt by the Administrative Agent of an opinion or opinions of
counsel for such Eligible Subsidiary reasonably acceptable to the
Administrative Agent (which, in the case of an Eligible Subsidiary
organized under the laws of the United States or a State thereof may be an
employee of the Company) and addressed to the Administrative Agent and the
Banks, substantially to the effect of Exhibit J hereto and covering such
additional matters relating to the transactions contemplated hereby as the
Required Banks may reasonably request; and
(a) receipt by the Administrative Agent of all documents which it may
reasonably request relating to the existence of such Eligible Subsidiary,
the authority for and the validity of the Election to Participate of such
Eligible Subsidiary, this Agreement and the Notes of such Eligible
Subsidiary, and any other matters relevant thereto, all in form and
substance reasonably satisfactory to the Administrative Agent.
ARTICLE REPRESENTATIONS AND WARRANTIES
2 The Company represents and warrants that:
3
3.1. SECTION Corporate Existence and Power . The Company is a
corporation duly incorporated, validly existing and in good standing under
the laws of Delaware, has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to
carry on its business as now conducted and is duly qualified to do business
as a foreign corporation in each jurisdiction where such qualification is
required, except where the failure so to qualify could not reasonably be
expected to have a Material Adverse Effect.
1.1. SECTION Corporate and Governmental Authorization; No
Contravention . The execution, delivery and performance by the Company of
this Agreement and its Notes are within the Company's corporate powers,
have been duly authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any governmental body, agency
or official and do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the certificate of
incorporation or by-laws of the Company or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Company or
any of its Subsidiaries or result in the creation or imposition of any Lien
on any asset of the Company or any of its Subsidiaries.
1.2.
1.3. SECTION Binding Effect . This Agreement constitutes a valid
and binding agreement of the Company and each of its Notes, if and when
executed and delivered in accordance with this Agreement, will constitute a
valid and binding obligation of the Company, in each case enforceable in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and by
general principles of equity.
1.4.
1.5. SECTION Financial Information . (a) The consolidated balance
sheet of the Company and its Consolidated Subsidiaries as of December 31,
1998 and the related consolidated statements of earnings, cash flows and
changes in stockholders' equity for the fiscal year then ended, reported on
by Ernst & Young LLP, copies of which are included in the Company's Form 10-
K for the period ended December 31, 1998 and have been delivered to each of
the Banks, fairly present in all material respects, in conformity with
generally accepted accounting principles, the consolidated financial
position of the Company and its Consolidated Subsidiaries as of such date
and their consolidated results of operations and cash flows for such fiscal
year.
1.6.
1.7. (b) The financial statements presented in the Company's Form 10-
Q for the period ended September 30, 1999, which the Company has filed with
the Securities and Exchange Commission, copies of which have been delivered
to each of the Banks, fairly present in all material respects, on a basis
consistent with the financial statements referred to in Section 4.04(a),
the consolidated financial position of the Company and its Consolidated
Subsidiaries as of such date and their consolidated results of operations
and cash flows for such nine-month period (subject to normal year-end audit
adjustments and the absence of full footnotes).
1.8.
1.9. (c) Since September 30, 1999, there has been no material adverse
change in the business, financial position or operations of the Company and
its Consolidated Subsidiaries, considered as a whole.
1.10.
1.11. SECTION Litigation . Except as disclosed in the Company's
annual report on Form 10-K for the year ended December 31, 1998, each
registration statement (other than a registration statement on Form S-8 (or
its equivalent)) and each report on Form 10-K, 10-Q and 8-K (or their
equivalents) which the Company shall have filed with the Securities and
Exchange Commission at any time thereafter, there is no action, suit or
proceeding pending against, or to the knowledge of the Company, threatened
against or affecting, the Company or any of its Subsidiaries before any
court or arbitrator or any governmental body, agency or official which
could reasonably be expected to have a Material Adverse Effect or which in
any manner draws into question the validity of this Agreement or any Note.
1.1. SECTION Compliance with Laws . (a) The Company and each
Subsidiary is in compliance in all material respects with all applicable
laws, ordinances, rules, regulations and requirements of governmental
authorities except where (i) non-compliance could not reasonably be
expected to have a Material Adverse Effect or (ii) the necessity of
compliance therewith is contested in good faith by appropriate proceedings.
(b) Each member of the ERISA Group has fulfilled its obligations
under the minimum funding standards of ERISA and the Internal Revenue Code
with respect to each Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the Internal Revenue
Code with respect to each Plan. No member of the ERISA Group has (i)
sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of
any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the imposition of a Lien
or the posting of a bond or other security under ERISA or the Internal
Revenue Code or (iii) incurred any liability under Title IV of ERISA other
than a liability to the PBGC for premiums under Section 4007 of ERISA.
1.1. SECTION Environmental Matters . In the ordinary course of its
business, the Company conducts a systematic review of the effects and
reasonably ascertainable associated liabilities and costs of Environmental
Laws on the business, operations and properties of the Company and its
Subsidiaries. The associated liabilities and costs include, without
limitation: any capital or operating expenditures required for clean-up or
closure of properties presently or previously owned; any capital or
operating expenditures required to achieve or maintain compliance with
Environmental Laws; any constraints on operating activities related to
achieving or maintaining compliance with Environmental Laws, including any
periodic or permanent shutdown of any facility or reduction in the level or
change in the nature of operations conducted thereat; any costs or
liabilities in connection with off-site disposal of wastes or hazardous
substances; and any actual or potential liabilities to third parties,
including employees, arising under Environmental Laws, and any related
costs and expenses. On the basis of this review, the Company has
reasonably concluded that such associated liabilities and costs, including
the costs of compliance with Environmental Laws, could not reasonably be
expected to have a Material Adverse Effect.
1.2.
1.3. SECTION Taxes . The Company and its Subsidiaries have filed
all United States Federal income tax returns and all other material tax
returns which are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the
Company or any Subsidiary except (i) where nonpayment could not reasonably
be expected to have a Material Adverse Effect or (ii) where the same are
contested in good faith by appropriate proceedings. The charges, accruals
and reserves on the books of the Company and its Subsidiaries in respect of
taxes or other governmental charges are, in the opinion of the Company,
adequate.
1.4.
1.5. SECTION Subsidiaries . Each of the Company's corporate
Subsidiaries is a corporation validly existing and in good standing under
the laws of its jurisdiction of incorporation, and has all corporate powers
and all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted and is duly
qualified to do business as a foreign corporation in each jurisdiction
where such qualification is required, except where the failure so to
qualify could not reasonably be expected to have Material Adverse Effect.
1.6.
1.7. SECTION Regulatory Restrictions on Borrowing . The Company is
not an "investment company" within the meaning of the Investment Company
Act of 1940, as amended, a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended, or otherwise
subject to any regulatory scheme which restricts its ability to incur debt.
1.8.
1.9. SECTION Full Disclosure . Neither the Company's Form 10-K for
the year ended December 31, 1998, as of the date of filing of such Form 10-
K, nor any registration statement (other than a registration statement on
Form S-8 (or its equivalent)) or report on Form 10-K, 10-Q and 8-K (or
their equivalents) which the Company shall have filed with the Securities
and Exchange Commission as at the time of filing of such registration
statement or report, as applicable, contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to
make any statements contained therein, in the light of the circumstances
under which they were made, not misleading; provided that to the extent any
such document contains forecasts and/or projections, it is understood and
agreed that uncertainty is inherent in any forecasts or projections and
that no assurances can be given by the Company of the future achievement of
such performance.
1.10.
1.11. SECTION Year 2000 . Any reprogramming required to permit
the proper functioning, in and following year 2000, of the Company's
computer systems and equipment containing embedded microchips (including
systems and equipment supplied by others or with which the Company's
systems interface) and the testing of all such systems and equipment, as so
reprogrammed, will be completed in a timely fashion. The cost to the
Company of such reprogramming and testing and of the reasonably foreseeable
consequences of year 2000 to the Company (including, without limitation,
reprogramming errors and the failure of others' systems or equipment) will
not result in a Default or a Material Adverse Effect. Except for such of
the reprogramming referred to in the preceding sentence as may be
necessary, the computer and management information systems of the Company
and its Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue for the term of this Agreement, to be sufficient
to permit the Company to conduct its business without Material Adverse
Effect.
1.12.
ARTICLE COVENANTS
The Company and, where stated, each other Borrower agree that, so long
as any Bank has any Commitment hereunder or any amount payable hereunder
remains unpaid or any Letter of Credit Liabilities remain outstanding:
1.1. SECTION Information . The Company will deliver to each of the
Banks:
1.2.
(a) as soon as available and in any event within 95 days after the
end of each fiscal year of the Company, a consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end of such fiscal year
and the related consolidated statements of earnings, cash flows, and
changes in stockholders' equity for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all
reported on in a manner consistent with the requirements of the Securities
and Exchange Commission and audited by Ernst & Young LLP or other
independent public accountants of nationally recognized standing;
(a) as soon as available and in any event within 50 days after the
end of each of the first three quarters of each fiscal year of the Company,
an unaudited consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of the end of such quarter and the related unaudited
consolidated statements of earnings and cash flows for such quarter and for
the portion of the Company's fiscal year ended at the end of such quarter,
setting forth in each case in comparative form the figures for the
corresponding quarter and the corresponding portion of the Company's
previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation and preparation based on
financial accounting principles consistent with generally accepted
accounting principles by an Approved Officer of the Company;
(a) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of an
Approved Officer of the Company (i) setting forth in reasonable detail the
calculations required to establish whether the Company was in compliance
with the requirements of Sections 5.10 and 5.12 on the date of such
financial statements and (ii) stating whether any Default exists on the
date of such certificate and, if any Default then exists, setting forth the
details thereof and the action which the Company is taking or proposes to
take with respect thereto;
(a) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i) that
nothing has come to their attention to cause them to believe that any
Default arising from the Company's failure to comply with its obligations
under Sections 5.10 and 5.12 existed on the date of such statements (it
being understood that such accountants shall not thereby be required to
perform any procedures not otherwise required under generally accepted
auditing standards) and (ii) confirming the calculations set forth in the
officer's certificate delivered simultaneously therewith pursuant to clause
(c) above;
(a) within five days after any officer of the Company obtains
knowledge of any Default, if such Default is then continuing, a certificate
of an Approved Officer of the Company setting forth the details thereof and
the action which the Company is taking or proposes to take with respect
thereto;
(a) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(a) promptly after the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and reports (other than the exhibits
thereto) on Forms 10-K, 10-Q and 8-K (or their equivalents) which the
Company shall have filed with the Securities and Exchange Commission;
(a) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA
or notice that any Multiemployer Plan is in reorganization, is insolvent or
has been terminated, a copy of such notice; (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate, impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer any Plan, a copy of such notice; (iv)
applies for a waiver of the minimum funding standard under Section 412 of
the Internal Revenue Code, a copy of such application; (v) gives notice of
intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such
notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could
result in the imposition of a Lien or the posting of a bond or other
security, a certificate of the chief financial officer or the chief
accounting officer of the Company setting forth details as to such
occurrence and action, if any, which the Company or applicable member of
the ERISA Group is required or proposes to take; and
(a) from time to time such additional information regarding the
financial position or business of the Company and its Subsidiaries as the
Administrative Agent, at the request of any Bank, may reasonably request.
1.1. SECTION Payment of Obligations . Each Borrower will pay and
discharge, and will cause each of its Subsidiaries to pay and discharge, at
or before maturity, all their respective material obligations and
liabilities (including, without limitation, tax liabilities and claims of
materialmen, warehousemen and the like which if unpaid might by law give
rise to a Lien), except where the same may be contested in good faith by
appropriate proceedings, and will maintain, and will cause each of its
Subsidiaries to maintain, in accordance with generally accepted accounting
principles, appropriate reserves for the accrual of any of the same.
1.1. SECTION Maintenance of Property; Insurance . (a) Each Borrower
will keep, and will cause each of its Subsidiaries to keep, all material
property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted.
(b) Each Borrower will, and will cause each of its Subsidiaries to,
maintain (either in the name of the Company or in such Borrower's or
Subsidiary's own name) with financially sound and responsible insurance
companies, insurance on all its respective properties in at least such
amounts, against at least such risks and with such risk retention as are
usually maintained, insured against or retained, as the case may be, in the
same general area by companies of established repute engaged in the same or
a similar business; provided that the Borrowers and their Subsidiaries may
self-insure to the same extent as other companies of established repute
engaged in the same or a similar business in the same general area in which
such Borrower or such Subsidiary operates and to the extent consistent with
prudent business practice. Each Borrower will furnish to the Banks, upon
request from the Administrative Agent, information presented in reasonable
detail as to the insurance so carried.
1.1. SECTION Conduct of Business and Maintenance of Existence .
Each Borrower and its Subsidiaries taken as a whole will continue to engage
in business of the same general type as now conducted by such Borrower and
its Subsidiaries and any ancillary or related lines of business, and each
Borrower will preserve, renew and keep in full force and effect, and will
cause each of its Subsidiaries to preserve, renew and keep in full force
and effect, its respective legal existence and its respective rights,
privileges and franchises necessary or desirable in the normal conduct of
business; provided that nothing in this Section shall prohibit (i) the
consolidation or merger of a Subsidiary (other than an Eligible Subsidiary
with obligations with respect to Loans or Letters of Credit outstanding
hereunder) with or into another Person, (ii) the consolidation or merger of
an Eligible Subsidiary with or into the Company or another Eligible
Subsidiary or (iii) the termination of the corporate existence of any
Subsidiary (other than an Eligible Subsidiary with obligations with respect
to Loans or Letters of Credit outstanding hereunder) if, in the case of
clauses (i), (ii) and (iii), such consolidation, merger or termination is
not materially disadvantageous to the Banks; and provided further that
nothing in this Section shall prohibit any sale or other disposition of
assets permitted under Section 5.07.
1.2.
1.3. SECTION Compliance with Laws . Each Borrower will comply, and
cause each of its Subsidiaries to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, Environmental Laws
and ERISA and the rules and regulations thereunder) except where (i) the
necessity of compliance therewith is contested in good faith by appropriate
proceedings or (ii) the failure to comply could not reasonably be expected
to have a Material Adverse Effect.
1.4.
1.5. SECTION Inspection of Property, Books and Records . Each
Borrower will keep, and will cause each of its Subsidiaries to keep, proper
books of record and account in which full, true and correct entries shall
be made of all dealings and transactions in relation to its business and
activities; and will permit, and will cause each of its Subsidiaries to
permit, representatives of any Bank at such Bank's expense to visit and
inspect any of its respective properties, to examine and make abstracts
from any of its respective books and records and to discuss its respective
affairs, finances and accounts with its respective officers, employees and
independent public accountants, all at such reasonable times as may be
desired.
1.6.
1.7. SECTION Mergers and Sales of Assets . (a) The Company will not
consolidate or merge with or into any other Person; provided that the
Company may merge with another Person if (x) the Company is the corporation
surviving such merger and (y) after giving effect to such merger, no
Default shall have occurred and be continuing.
1.8.
1.9. (b) The Company will not sell, lease or otherwise transfer,
directly or indirectly, assets (exclusive of assets transferred in the
ordinary course of business) if after giving effect to such transfer the
aggregate book value of assets so transferred subsequent to the date of
this Agreement would constitute Substantial Assets as of the day preceding
the date of such transfer other than (i) sales of accounts receivable to
IMC-Agrico Receivables Company L.L.C. or any other similar bankruptcy-
remote Subsidiary of the Company or any of its Subsidiaries established for
the purpose of engaging in transactions related to accounts receivable,
(ii) the sale of assets acquired pursuant to an Acquisition that are
unrelated to the business of the same general type as now conducted by the
Company and its Subsidiaries, and (iii) the sale of assets acquired in or
as a direct result of the Xxxxxx Chemical Acquisition.
1.10.
1.11. SECTION Use of Proceeds . The proceeds of the Loans made
under this Agreement and of the Letters of Credit under this Agreement will
be used by the Borrowers for general corporate purposes, including without
limitation Acquisitions. None of such proceeds will be used in violation
of Regulation T, U or X of the Board of Governors of the Federal Reserve
System.
1.12.
1.13. SECTION Negative Pledge . Neither any Borrower nor any
Subsidiary of any Borrower will create, assume or suffer to exist any Lien
on any asset now owned or hereafter acquired by it, except:
1.14.
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal or face
amount not exceeding $135,000,000;
(a) any Lien existing on any asset of any Person at the time such
Person becomes a Subsidiary of a Borrower and not created in contemplation
of such event;
(a) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring or
constructing such asset, provided that such Lien attaches to such asset
concurrently with or within 90 days after the acquisition or completion of
construction thereof;
(a) any Lien on any asset of any Person existing at the time such
Person is merged or consolidated with or into a Borrower or a Subsidiary of
a Borrower and not created in contemplation of such event;
(a) any Lien existing on any asset prior to the acquisition thereof
by a Borrower or a Subsidiary of a Borrower and not created in
contemplation of such acquisition;
(a) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that the proceeds of such Debt are used
solely for the foregoing purpose and to pay financing costs and such Debt
is not secured by any additional assets;
(a) Liens arising in the ordinary course of its business which (i) do
not secure Debt or Derivatives Obligations, (ii) do not secure any
obligation in an amount exceeding $100,000,000 and (iii) do not in the
aggregate materially detract from the value of its assets or materially
impair the use thereof in the operation of its business;
(a) Liens on cash and cash equivalents securing Derivatives
Obligations, provided that the aggregate amount of cash and cash
equivalents subject to such Liens may at no time exceed $10,000,000; and
(a) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt in an aggregate principal or face amount, together
with all other Debt secured by Liens permitted under this Section 5.09(i),
not to exceed an amount equal to 10% of Consolidated Net Worth (calculated
as of the last day of the fiscal quarter most recently ended on or prior to
the date of the most recent incurrence of such Debt).
1.1. SECTION Debt of Subsidiaries . Total Debt of all Subsidiaries
(excluding Debt (i) of a Subsidiary owing to the Company, (ii) of a
Subsidiary owing to a Substantially-Owned Consolidated Subsidiary, (iii) of
an Eligible Subsidiary under this Agreement, (iv) of PLP in an aggregate
principal amount not exceeding $300,000,000 outstanding on December 15,
1997 (but not any refinancing thereof), (v) of Xxxxxx Chemical North
America, Inc. and its Subsidiaries arising out of the Argus Utilities sale-
leaseback transaction in an aggregate principal amount not exceeding
$71,000,000, or (vi) of IMC Inorganic Chemicals Inc., formerly known as
Xxxxxx Chemical Group Inc., and its Subsidiaries in an aggregate principal
amount not exceeding UKf 50,000,000) will not at any date exceed 25% of
Consolidated Net Worth (calculated as of the last day of the fiscal quarter
most recently ended on or prior to such date). For purposes of this
Section any preferred stock of a Consolidated Subsidiary (other than the
Series E Preferred Stock) held by a Person other than the Company or a
Substantially-Owned Consolidated Subsidiary shall be included, at the
higher of its voluntary or involuntary liquidation value, in the "Debt" of
such Consolidated Subsidiary.
1.2.
1.3. SECTION Transactions with Affiliates . No Borrower will, nor
will it permit any of its Subsidiaries to, directly or indirectly, pay any
funds to or for the account of, make any investment (whether by acquisition
of stock or indebtedness, by loan, advance, transfer of property, guarantee
or other agreement to pay, purchase or service, directly or indirectly, any
Debt, or otherwise) in, lease, sell, transfer or otherwise dispose of any
assets, tangible or intangible, to, or participate in, or effect, any
transaction with, any Affiliate except: (i) transactions on an arm's-length
basis on terms at least as favorable to such Borrower or such Subsidiary as
could have been obtained from a third party who was not an Affiliate, (ii)
marketing services provided by IMC Global Operations Inc. to Agrico, (iii)
employee leasing services agreements between IMC Global Operations Inc. and
Agrico, (iv) transactions between Agrico and the IMC Kalium business unit
of the Company, (v) loans from the Company or a Subsidiary to the Company
or a Subsidiary, (vi) the declaration and payment of any lawful dividend
and (vii) transactions between Vigoro Partnership, a Delaware general
partnership, and the IMC AgriBusiness business unit of the Company.
1.4.
1.5. SECTION Leverage Ratio . The Leverage Ratio will not exceed
4.00 to 1.00 as of the last day of any fiscal quarter ending on or prior to
December 31, 2000 or 3.75 to 1.00 as of the last day of any fiscal quarter
ending thereafter. For this purpose:
1.6.
1.7. "Consolidated Adjusted Debt" means at any date the sum of (i) the
Debt of the Company and its Consolidated Subsidiaries plus (ii) the excess
(if any) of (A) the aggregate unrecovered principal investment of
transferees of accounts receivable from the Company or a Consolidated
Subsidiary in transactions accounted for as sales under generally accepted
accounting principles over (B) $100,000,000, in each case determined on a
consolidated basis as of such date.
1.8.
1.9. "Consolidated EBITDA" means, for any period, the consolidated
operating earnings from (i) continuing operations of the Company, (ii)
continuing operations of the Company's Consolidated Subsidiaries and (iii)
discontinued operations of the Company and its Consolidated Subsidiaries,
in each case for such period before interest, taxes, depreciation,
depletion, amortization, other income and expense, minority interests, the
cumulative non-cash effect of changes in accounting standards and other non-
cash adjustments to operating earnings (other than any such non-cash charge
to the extent that it represents an accrual of or reserve for cash
expenditures in any future period), minus any non-recurring or other
charges not included in consolidated operating earnings which are cash or
represent an accrual of or reserve for cash expenditures in future periods
(with the exception of $100,000,000 of cash charges in the fourth quarter
of 1999). Consolidated EBITDA for each four-quarter period will be
adjusted on a pro-forma basis to reflect any Acquisition closed during such
period as if such Acquisition had been closed on the first day of such
period.
1.10.
1.11. "Leverage Ratio" means, as of the last day of any fiscal
quarter, the ratio of Consolidated Adjusted Debt calculated as of such day
to Consolidated EBITDA calculated for the period of four consecutive fiscal
quarters ending on such day.
1.12.
ARTICLEDEFAULTS
1.1. SECTION Events of Default . If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) any Borrower shall fail to pay when due any principal of any
Loan or of any Letter of Credit Liabilities or shall fail to pay,
within five Domestic Business Days of the due date thereof, any
interest, fees or any other amount payable hereunder;
(b) any Borrower shall fail to observe or perform any covenant
contained in Sections 5.07 to 5.12, inclusive;
(c) any Borrower shall fail to observe or perform any covenant
or agreement contained in this Agreement (other than those covered by
clause (a) or (b) above) for 30 days after notice thereof has been
given to the Company by the Administrative Agent at the request of any
Bank;
(d) any representation, warranty, certification or statement
made by any Borrower in this Agreement or in any certificate,
financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect in any material respect
when made (or deemed made);
(e) the Company or any Subsidiary shall fail to make any payment
in respect of Material Financial Obligations (other than the Loans and
Letter of Credit Liabilities) when due or within any applicable grace
period;
(f) any event or condition shall occur and shall continue beyond the
applicable grace or cure period, if any, provided with respect thereto and
the maturity of Material Financial Obligations shall be accelerated as a
result thereof;
(g)
(g) the Company or any Material Subsidiary or any other Borrower
shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or
its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief
or to the appointment of or taking possession by any such official in
an involuntary case or other proceeding commenced against it, or shall
make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Company or any Material Subsidiary or any other Borrower
seeking liquidation, reorganization or other relief with respect to it
or its debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the Company or
any Material Subsidiary or any other Borrower under the federal
bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $25,000,000 which it shall
have become liable to pay under Title IV of ERISA; or notice of intent
to terminate a Material Plan shall be filed under Title IV of ERISA by
any member of the ERISA Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate, to impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or to cause a
trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal
from, or a default, within the meaning of Section 4219(c)(5) of ERISA,
with respect to, one or more Multiemployer Plans which causes one or
more members of the ERISA Group to incur a current payment obligation
in excess of $100,000,000 in the aggregate;
(j) judgments or orders for the payment of money in excess of
$100,000,000 in the aggregate shall be rendered against the Company or
any Subsidiary and such judgments or orders shall continue unsatisfied
and unstayed for a period of 30 days;
(k) any Person or two or more Persons acting in concert shall
have 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 the
Company (or other securities convertible into such Voting Stock)
representing 35% or more of the combined voting power of all Voting
Stock of the Company; or (ii) during any period of up to 24
consecutive months, commencing after the date of this Agreement,
individuals who at the beginning of such 24-month period were
directors of the Company shall cease for any reason (other than due to
death or disability) to constitute a majority of the board of
directors of the Company, except to the extent that individuals who at
the beginning of such 24-month period were replaced by individuals (x)
elected by 66-2/3% of the remaining members of the board of directors
of the Company or (y) nominated for election by a majority of the
remaining members of the board of directors of the Company and
thereafter elected as directors by the shareholders of the Company; or
(iii) any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a
contract or arrangement that has resulted in its or their acquisition
of, control over Voting Stock of the Company (or other securities
convertible into such securities) representing 35% or more of the
combined voting power of all Voting Stock of the Company; or
(l) any of the obligations of the Company under Article 10 of
this Agreement shall for any reason not be enforceable against the
Company in accordance with their terms, or the Company shall so assert
in writing; then, and in every such event, the Administrative Agent
shall (i) if requested by Banks having more than 50% in aggregate
amount of the Commitments, by notice to the Company terminate the
Commitments and they shall thereupon terminate and (ii) if requested
by Banks holding more than 50% in aggregate principal amount of the
Loans, by notice to the Company declare the Loans (together with
accrued interest thereon) to be, and the Loans shall thereupon become,
immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the
Borrowers; provided that in the case of any of the Events of Default
specified in clause (g) or (h) above with respect to any Borrower,
without any notice to any Borrower or any other act by the
Administrative Agent or the Banks, the Commitments shall thereupon
terminate and the Loans (together with accrued interest thereon) shall
become immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
the Borrowers.
1.1. SECTION Notice of Default . The Administrative Agent shall
give notice to the Company under Section 6.01(c) promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks
thereof.
1.2.
1.3. SECTION Cash Cover . The Company agrees, in addition to the
provisions of Section 6.01 hereof, that upon the occurrence and during the
continuance of any Event of Default, it shall, if requested by the
Administrative Agent upon the instruction of the Banks having more than 50%
in the aggregate amount of the Commitments (or, if the Commitments shall
have been terminated, holding more than 50% of the Letter of Credit
Liabilities), pay to the Administrative Agent an amount in immediately
available funds (which funds shall be held as collateral pursuant to
arrangements satisfactory to the Administrative Agent) equal to the
aggregate amount available for drawing under all Letters of Credit then
outstanding at such time, provided that, upon the occurrence of any Event
of Default specified in Section 6.01(g) or 6.01(h) with respect to any
Borrower, the Company shall pay such amount forthwith without any notice or
demand or any other act by the Administrative Agent or the Banks.
1.4.
1.5.
ARTICLE THE ADMINISTRATIVE AGENT
1.1. SECTION Appointment and Authorization . Each Bank irrevocably
appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement and
the Notes as are delegated to the Administrative Agent by the terms hereof
or thereof, together with all such powers as are reasonably incidental
thereto.
1.2.
1.3. SECTION Administrative Agent and Affiliates . Bank of America,
N.A. shall have the same rights and powers under this Agreement as any
other Bank and may exercise or refrain from exercising the same as though
it were not the Administrative Agent, and Bank of America, N.A. and its
affiliates may accept deposits from, lend money to, and generally engage in
any kind of business with the Company or any Subsidiary or affiliate of the
Company as if it were not the Administrative Agent hereunder.
1.4.
1.5. SECTION Action by Administrative Agent . The obligations of
the Administrative Agent hereunder are only those expressly set forth
herein. Without limiting the generality of the foregoing, the
Administrative Agent shall not be required to take any action with respect
to any Default, except as expressly provided in Article 6.
1.6.
1.7. SECTION Consultation with Experts . The Administrative Agent
may consult with legal counsel (who may be counsel for any Borrower),
independent public accountants and other experts selected by it and shall
not be liable for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or
experts.
1.8.
1.9. SECTION Liability of Administrative Agent . Neither the
Administrative Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be liable to any Bank for
any action taken or not taken by it in connection herewith (i) with the
consent or at the request of the Required Banks (or, when expressly
required hereby, all the Banks) or (ii) in the absence of its own gross
negligence or willful misconduct. Neither the Administrative Agent nor any
of its affiliates nor any of their respective directors, officers, agents
or employees shall be responsible for or have any duty to ascertain,
inquire into or verify (i) any statement, warranty or representation made
in connection with this Agreement or any extension of credit hereunder;
(ii) the performance or observance of any of the covenants or agreements of
any Borrower; (iii) the satisfaction of any condition specified in Article
3, except receipt of items required to be delivered to the Administrative
Agent; or (iv) the validity, effectiveness or genuineness of this
Agreement, the Notes or any other instrument or writing furnished in
connection herewith. The Administrative Agent shall not incur any
liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex or similar
writing) believed by it in good faith to be genuine or to be signed by the
proper party or parties. Without limiting the generality of the foregoing,
the use of the term "agent" in this Agreement with reference to the
Administrative Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market
custom and is intended to create or reflect only an administrative
relationship between independent contracting parties.
1.10.
1.11. SECTION Indemnification . Each Bank shall, ratably in
accordance with its Commitment, indemnify the Administrative Agent, its
affiliates and their respective directors, officers, agents and employees
(to the extent not reimbursed by the Borrowers) against any cost, expense
(including reasonable counsel fees and disbursements), claim, demand,
action, loss or liability (except such as result from such indemnitees'
gross negligence or willful misconduct) that such indemnitees may suffer or
incur in connection with this Agreement or any action taken or omitted by
such indemnitees thereunder.
1.12.
1.13. SECTION Credit Decision . Each Bank acknowledges that it
has, independently and without reliance upon any Agent or any other Bank,
and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement.
Each Bank also acknowledges that it will, independently and without
reliance upon any Agent or any other Bank, 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 any action under this
Agreement.
1.14.
1.15. SECTION Successor Administrative Agent . The
Administrative Agent may resign at any time by giving notice thereof to the
Banks and the Company. Upon any such resignation, the Company, with the
consent of the Required Banks (such consent not to be unreasonably withheld
or delayed), shall have the right to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed,
and shall have accepted such appointment, within 30 days after the retiring
Administrative Agent gives notice of resignation, then the retiring
Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent, which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $500,000,000.
Upon the acceptance of its appointment as Administrative Agent hereunder by
a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights and duties of
the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's resignation hereunder as Administrative
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative
Agent.
1.16.
1.17. SECTION Agents' Fees . The Company shall pay to each of
the Agents for its own account fees in the amounts and at the times
previously agreed upon between the Company and such Agent.
1.18.
1.19. SECTION Other Agents . Nothing in this Agreement shall
impose upon the Documentation Agent, the Co-Documentation Agent, the
Syndication Agent or the Co-Syndication Agent, in such capacity, any duties
or obligations whatsoever.
1.20.
ARTICLE CHANGE IN CIRCUMSTANCES
1.1. SECTION Basis for Determining Interest Rate Inadequate or
Unfair . If on or prior to the first day of any Interest Period for any
Euro-Dollar Borrowing or Bid Rate (Indexed) Borrowing:
(a) the Administrative Agent is advised by the Euro-Dollar Reference
Banks that deposits in dollars (in the applicable amounts) are not being
offered to the Euro-Dollar Reference Banks in the relevant market for such
Interest Period, or
(a) in the case of a Euro-Dollar Borrowing, Banks having more than
50% of the aggregate amount of the affected Loans advise the Administrative
Agent that the London Interbank Offered Rate as determined by the
Administrative Agent will not adequately and fairly reflect the cost to
such Banks of funding their Euro-Dollar Loans for such Interest Period, the
Administrative Agent shall forthwith give notice thereof to the Borrower
and the Banks, whereupon until the Administrative Agent notifies the
Borrower that the circumstances giving rise to such suspension no longer
exist, (i) the obligations of the Banks to make Euro-Dollar Loans or to
continue or convert outstanding Loans as or into Euro-Dollar Loans shall be
suspended and (ii) each outstanding Euro-Dollar Loan shall be converted
into a Base Rate Loan on the last day of the then current Interest Period
applicable thereto. Unless the Borrower notifies the Administrative Agent
at least one Domestic Business Day before the date of any Fixed Rate
Borrowing for which a Notice of Borrowing has previously been given that it
elects not to borrow on such date, (i) if such Fixed Rate Borrowing is a
Syndicated Borrowing, such Borrowing shall instead be made as a Base Rate
Borrowing and (ii) if such Borrowing is a Bid Rate (Indexed) Borrowing, the
Loans comprising such Borrowing shall bear interest for each day from and
including the first day to but excluding the last day of the Interest
Period applicable thereto at the Base Rate for such day.
1.1. SECTION Illegality . If, on or after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any
change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Euro-Dollar
Lending Office) with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable agency
shall make it unlawful or impossible for any Bank (or its Euro-Dollar
Lending Office) to make, maintain or fund any of its Euro-Dollar Loans to
any Borrower and such Bank shall so notify the Administrative Agent, the
Administrative Agent shall forthwith give notice thereof to the other Banks
and such Borrower, whereupon until such Bank notifies such Borrower and the
Administrative Agent that the circumstances giving rise to such suspension
no longer exist, the obligation of such Bank to make Euro-Dollar Loans, or
to continue or convert outstanding Loans as or into Euro-Dollar Loans, to
such Borrower shall be suspended. Before giving any notice to the
Administrative Agent pursuant to this Section, such Bank shall designate a
different Euro-Dollar Lending Office if such designation will avoid the
need for giving such notice and will not be otherwise disadvantageous to
such Bank in the good faith exercise of its discretion. If such notice is
given, each Euro-Dollar Loan of such Bank to such Borrower then outstanding
shall be converted to a Base Rate Loan either (a) on the last day of the
then current Interest Period applicable to such Euro-Dollar Loan if such
Bank may lawfully continue to maintain and fund such Loan to such day or
(b) immediately if such Bank shall determine that it may not lawfully
continue to maintain and fund such Loan to such day.
1.2.
1.3. SECTION Increased Cost and Reduced Return . (a) If on or after
(x) the date of this Agreement, in the case of any Committed Loan or Letter
of Credit or any obligation to make Committed Loans or issue or participate
in any Letter of Credit or (y) the date of any related Bid Rate Quote, in
the case of any Bid Rate Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Applicable Lending Office) with any request or directive (whether or not
having the force of law) issued on or after such date of any such
authority, central bank or comparable agency shall impose, modify or deem
applicable any reserve, special deposit or similar requirement (including,
without limitation, any such requirement imposed by the Board of Governors
of the Federal Reserve System, but excluding with respect to any
Euro-Dollar Loan any such requirement for which such Bank is entitled to
compensation for the relevant Interest Period under Section 2.17) against
assets of, deposits with or for the account of, or credit extended by, any
Bank (or its Applicable Lending Office) or shall impose on any Bank (or its
Applicable Lending Office) or on the London interbank market any other
condition (other than in respect of Taxes or Other Taxes) affecting its
Fixed Rate Loans, its Notes or its obligation to make Fixed Rate Loans or
its obligations hereunder in respect of Letters of Credit and the result of
any of the foregoing is to increase the cost to such Bank (or its
Applicable Lending Office) of making or maintaining any Fixed Rate Loan or
of issuing or participating in any Letter of Credit, or to reduce the
amount of any sum received or receivable by such Bank (or its Applicable
Lending Office) under this Agreement or under its Notes with respect
thereto, by an amount deemed by such Bank to be material, then, within 15
days after receipt by the Company of written demand by such Bank (with a
copy to the Administrative Agent), the Company shall pay to such Bank an
amount which on an after-tax basis is necessary to maintain the same rate
of return on capital that existed immediately prior thereto which such Bank
reasonably determines is attributable to this Agreement, its Loans and
Letter of Credit Liabilities or its obligations to make Loans or to issue
or participate in Letters of Credit hereunder (after taking into account
such Bank's policies as to capital adequacy).
1.4.
1.5. (b) If any Bank shall have determined that, on or after the date
of this Agreement, the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change in any such law, rule or
regulation, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or not having the force of
law) of any such authority, central bank or comparable agency given or made
after the date of this Agreement, has or would have the effect of reducing
the rate of return on capital of such Bank (or its Parent) as a consequence
of such Bank's obligations hereunder to a level below that which such Bank
(or its Parent) could have achieved but for such adoption, change, request
or directive (taking into consideration its policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then
from time to time, within 15 days after receipt by the Company of written
demand by such Bank (with a copy to the Administrative Agent), the Company
shall pay to such Bank an amount which on an after-tax basis is necessary
to maintain the same rate of return on capital that existed immediately
prior thereto which such Bank reasonably determines is attributable to this
Agreement, its Loans and Letter of Credit Liabilities or its obligations to
make Loans or to issue or participate in Letters of Credit hereunder (after
taking into account such Bank's policies as to capital adequacy).
1.6.
1.7. (c) Each Bank will promptly notify the Company and the
Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Bank to compensation
pursuant to this Section and will designate a different Applicable Lending
Office if such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. A certificate of any Bank claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be presumptively correct in the
absence of manifest error. In determining such amount, such Bank may use
any reasonable averaging and attribution methods. Notwithstanding the
foregoing subsections (a) and (b) of this Section 8.03, the Company shall
only be obligated to compensate any Bank for any amount arising or accruing
during any time or period commencing not more than 45 days prior to the
date on which such Bank notifies the Administrative Agent and the Company
that it proposes to demand such compensation and identifies to the
Administrative Agent and the Company the statute, regulation or other basis
upon which the claimed compensation is or will be based and any time or
period during which because of the retroactive application of such statute,
regulation or other such basis, such Bank did not know in good faith that
such amount would arise or accrue.
1.8.
1.9. SECTION Taxes . (a) For purposes of this Section 8.04, the
following terms have the following meanings:
1.10.
1.11. "Taxes" means any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings with respect to any
payment by any Borrower pursuant to this Agreement or any Note, and all
liabilities with respect thereto, excluding (i) in the case of each Bank
and the Administrative Agent, taxes imposed on its net income and franchise
or similar taxes imposed on it by a jurisdiction under the laws of which
such Bank or the Administrative Agent (as the case may be) is organized or
in which its principal executive office is located or, in the case of each
Bank, in which its Applicable Lending Office is located (all such excluded
taxes of the Administrative Agent or any Bank being herein referred to as
its "Domestic Taxes") and (ii) in the case of each Bank, any United States
withholding tax imposed on such payments except to the extent that such
Bank is subject to United States withholding tax by reason of a U.S. Tax
Law Change.
1.12.
1.13. "Other Taxes" means any present or future stamp or
documentary taxes and any other excise or property taxes, or similar
charges or levies, which arise from any payment made pursuant to this
Agreement or under any Note or from the execution or delivery of, or
otherwise with respect to, this Agreement or any Note.
1.14.
1.15. "U.S. Tax Law Change" means with respect to any Bank or
Participant the occurrence (x) in the case of each Bank listed on the
signature pages hereof, after the date of its execution and delivery of
this Agreement and (y) in the case of any other Bank, after the date such
Bank shall have become a Bank hereunder, and (z) in the case of each
Participant, after the date such Participant became a Participant
hereunder, of the adoption of any applicable U.S. federal law, U.S. federal
rule or U.S. federal regulation relating to taxation, or any change
therein, or the entry into force, modification or revocation of any income
tax convention or treaty to which the United States is a party.
1.16.
1.17. (b) Any and all payments by any Borrower to or for the
account of any Bank or the Administrative Agent hereunder or under any Note
shall be made without deduction for any Taxes or Other Taxes; provided
that, if any Borrower shall be required by law to deduct any Taxes or Other
Taxes from any such payments, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 8.04)
such Bank or the Administrative 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, (iii) such Borrower
shall pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law and (iv) such Borrower
shall furnish to the Administrative Agent, at its address referred to in
Section 11.01, the original or a certified copy of a receipt evidencing
payment thereof.
1.18.
1.19. (c) Each Borrower agrees to indemnify each Bank and the
Administrative Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this Section 8.04)
paid by such Bank or the Administrative Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or
with respect thereto. In addition, each Borrower organized under the laws
of a jurisdiction outside the United States agrees to indemnify the
Administrative Agent and each Bank for all Domestic Taxes incurred by it
and any liability (including any penalties, interest and expenses arising
therefrom or with respect thereto), in each case to the extent that such
Domestic Taxes or liabilities result from any payment or indemnification
pursuant to this Section by or for the account of such Borrower. This
indemnification shall be paid within 15 days after such Bank or the
Administrative Agent (as the case may be) makes demand therefor.
1.20.
1.21. (d) Each Bank 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 Bank listed on the signature
pages hereof and on or prior to the date on which it becomes a Bank in the
case of each other Bank, and from time to time thereafter as required by
law (but only so long as such Bank remains lawfully able to do so), shall
provide the Company two completed and duly executed copies of Internal
Revenue Service form 1001 or 4224, as appropriate, or any successor form
prescribed by the Internal Revenue Service, or other documentation
reasonably requested by the Company, certifying that such Bank is entitled
to benefits under an income tax treaty to which the United States is a
party which exempts the Bank from United States withholding tax or reduces
the rate of withholding tax on payments of interest for the account of such
Bank or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States.
1.22.
1.23. (e) For any period with respect to which a Bank has failed
to provide the Company with the appropriate form pursuant to Section
8.04(d) (unless such failure is due to a U.S. Tax Law Change), such Bank
shall not be entitled to indemnification under Section 8.04(b) or 8.04(c)
or with respect to any Taxes or Other Taxes which would not have been
payable had such form been so provided, provided that if a Bank, which is
otherwise exempt from or subject to a reduced rate of withholding tax,
becomes subject to Taxes because of its failure to deliver a form required
hereunder, the Company shall take such steps as such Bank shall reasonably
request to assist such Bank to recover such Taxes (it being understood,
however, that the Company shall have no liability to such Bank in respect
of such Taxes).
1.24.
1.25. (f) If any Borrower is required to pay additional amounts
to or for the account of any Bank pursuant to this Section 8.04, then such
Bank will take such action (including changing the jurisdiction of its
Applicable Lending Office) as in the good faith judgment of such Bank (i)
will eliminate or reduce any such additional payment which may thereafter
accrue and (ii) is not otherwise disadvantageous to such Bank.
1.26.
1.27. SECTION Base Rate Loans Substituted for Affected Fixed
Rate Loans . If (i) the obligation of any Bank to make or to continue or
convert outstanding Loans as or into Euro-Dollar Loans to any Borrower has
been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03(a) or 8.04 with respect to its Euro-Dollar
Loans and the Borrower shall, by at least five Euro-Dollar Business Days'
prior notice to such Bank through the Administrative Agent, have elected
that the provisions of this Section shall apply to such Bank, then, unless
and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
1.28.
(a) all Loans to such Borrower which would otherwise be made by such
Bank as (or continued as or converted to) Euro-Dollar Loans, as the case
may be, shall instead be Base Rate Loans (on which interest and principal
shall be payable contemporaneously with the related Euro-Dollar Loans of
the other Banks), and
(a) after each of its Euro-Dollar Loans to such Borrower has been
repaid, all payments of principal which would otherwise be applied to repay
such Loans shall be applied to repay its Base Rate Loans instead.
If such Bank notifies such Borrower that the circumstances giving rise
to such suspension or demand for compensation no longer exist, the
principal amount of each such Base Rate Loan shall be converted into a Euro-
Dollar Loan on the first day of the next succeeding Interest Period
applicable to the related Euro-Dollar Loans of the other Banks.
1.1. SECTION Substitution of Bank . If (i) the obligation of any
Bank to make or to convert or continue outstanding Loans as or into Euro-
Dollar Loans has been suspended pursuant to Section 8.02 or (ii) any Bank
has demanded compensation under Section 8.03 or 8.04, the Company shall
have the right, with the assistance of the Administrative Agent, to
designate a substitute bank or banks (which may be one or more of the
Banks) mutually satisfactory to the Company, the Administrative Agent, the
Issuing Banks and the Swingline Bank (whose consent shall not be
unreasonably withheld or delayed) to purchase for cash, pursuant to an
Assignment and Assumption Agreement in substantially the form of Exhibit G
hereto, the outstanding Loans of such Bank and assume the Commitment and
Letter of Credit Liabilities of such Bank, without recourse to or warranty
by, or expense to, such Bank, for a purchase price equal to the principal
amount of all of such Bank's outstanding Loans and funded Letter of Credit
Liabilities plus any accrued but unpaid interest thereon and the accrued
but unpaid fees in respect of such Bank's Commitment hereunder plus such
amount, if any, as would be payable pursuant to Section 2.14 if the
outstanding Loans of such Bank were prepaid in their entirety on the date
of consummation of such assignment.
1.2.
ARTICLE REPRESENTATIONS AND WARRANTIES OF ELIGIBLE SUBSIDIARIES
By the execution and delivery of its Election to Participate, each
Eligible Subsidiary shall be deemed to have represented and warranted as of
the date thereof that:
1.1. SECTION Corporate Existence and Power . It is a legal entity
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization and is a Substantially-Owned Consolidated
Subsidiary of the Company.
1.2.
1.3. SECTION Corporate and Governmental Authorization; Contravention
. The execution and delivery by it of its Election to Participate and its
Notes, and the performance by it of this Agreement and its Notes, are
within its legal powers, have been duly authorized by all necessary legal
action, require no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene, or constitute
a default under, any provision of applicable law or regulation or of its
organizational documents or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Company or such Eligible
Subsidiary or result in the creation or imposition of any Lien on any asset
of the Company or any of its Subsidiaries.
1.4.
1.5. SECTION Binding Effect . Its Election to Participate has been
duly executed by such Eligible Subsidiary and this Agreement constitutes a
valid and binding agreement of such Eligible Subsidiary and each of its
Notes, when executed and delivered in accordance with this Agreement, will
constitute a valid and binding obligation of such Eligible Subsidiary, in
each case enforceable in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and by general principles of equity.
1.6.
1.7. SECTION Taxes . Except as disclosed in the opinion of counsel
delivered pursuant to Section 3.03 of this Agreement or in its Election to
Participate, there are no Taxes or Other Taxes of any country, or any
taxing authority thereof or therein, which are imposed on any payment to be
made by such Eligible Subsidiary pursuant hereto or on its Notes, or
imposed on or by virtue of the execution, delivery or enforcement of this
Agreement, its Election to Participate or of its Notes.
1.8.
ARTICLE GUARANTY
1.1. SECTION The Guaranty . The Company hereby unconditionally
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest (including,
without limitation, interest accruing after the commencement of a
bankruptcy, insolvency or similar proceeding with respect to any Eligible
Subsidiary, regardless of whether such interest is an allowed claim in such
proceeding) on each Loan made to and all Letter of Credit Liabilities
incurred at the request of any Eligible Subsidiary pursuant to this
Agreement, and the full and punctual payment of all other amounts payable
by any Eligible Subsidiary under this Agreement or any Note. Upon failure
by any Eligible Subsidiary to pay punctually any such amount, the Company
shall forthwith on demand pay the amount not so paid at the place and in
the manner specified in this Agreement.
1.1. SECTION Guaranty Unconditional . The obligations of the
Company hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or
otherwise affected by:
1.2.
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of any Eligible Subsidiary under this
Agreement or any Note, by operation of law or otherwise;
(a) any modification or amendment of or supplement to this Agreement
or any Note;
(a) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of any Eligible Subsidiary
under this Agreement or any Note;
(a) any change in the existence, structure or ownership of any
Eligible Subsidiary, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting any Eligible Subsidiary or its assets or any
resulting release or discharge of any obligation of any Eligible Subsidiary
contained in this Agreement or any Note;
(a) the existence of any claim, set-off or other rights which the
Company may have at any time against any Eligible Subsidiary, any Agent,
any Bank or any other Person, whether in connection herewith or any
unrelated transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim;
(a) any invalidity or unenforceability relating to or against any
Eligible Subsidiary for any reason of this Agreement or any Note, or any
provision of applicable law or regulation purporting to prohibit the
payment by any Eligible Subsidiary of the principal of or interest on any
Loan, any Letter of Credit Liability or any other amount payable by it
under this Agreement or any Note; or
(a) any other act or omission to act or delay of any kind by any
Eligible Subsidiary, any Agent or Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of or defense to the
Company's obligations hereunder.
1.1. SECTION Discharge Only Upon Payment In Full; Reinstatement In
Certain Circumstances . The Company's obligations hereunder shall remain
in full force and effect until the Commitments and any Letters of Credit
shall have terminated and the principal of and interest on the Loans, the
Letter of Credit Liabilities and all other amounts payable by the Company
and each Eligible Subsidiary under this Agreement or any Note shall have
been paid in full. If at any time any payment of principal of or interest
on any Loan, any Letter of Credit Liability or any other amount payable by
any Eligible Subsidiary under this Agreement or any Note is rescinded or
must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of any Eligible Subsidiary or otherwise, the Company's
obligations hereunder with respect to such payment shall be reinstated at
such time as though such payment had been due but not made at such time.
1.2.
1.3. SECTION Waiver by the Company . The Company irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided
for herein, as well as any requirement that at any time any action be taken
by any Person against any Eligible Subsidiary or any other Person.
1.4.
1.5. SECTION Subrogation . The Company irrevocably waives any and
all rights to which it may be entitled, by operation of law or otherwise,
upon making any payment hereunder in respect of any Eligible Subsidiary to
be subrogated to the rights of the payee against such Eligible Subsidiary
with respect to such payment or against any direct or indirect security
therefor, or otherwise to be reimbursed, indemnified or exonerated by or
for the account of such Eligible Subsidiary in respect thereof, in any
bankruptcy, insolvency or similar proceeding involving such Eligible
Subsidiary as debtor commenced within one year after the making of any
payment by such Eligible Subsidiary under this Agreement or its Notes.
1.6.
1.7. SECTION Stay of Acceleration . In the event that acceleration
of the time for payment of any amount payable by any Eligible Subsidiary
under this Agreement or any Note is stayed upon insolvency, bankruptcy or
reorganization of such Eligible Subsidiary, all such amounts otherwise
subject to acceleration under the terms of this Agreement shall nonetheless
be payable by the Company hereunder forthwith on demand by the
Administrative Agent made at the request of the Required Banks.
ARTICLE MISCELLANEOUS
1
.1 SECTION Notices . All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telex,
facsimile transmission or similar writing) and shall be given to such
party: in the case of the Company or the Administrative Agent, at its
address, facsimile number or telex number set forth on the signature pages
hereof, in the case of any Bank, at its address, facsimile number or telex
number set forth in its Administrative Questionnaire or in the case of any
party, such other address, facsimile number or telex number as such party
may hereafter specify for the purpose by notice to the Administrative Agent
and the Company. Each such notice, request or other communication shall be
effective if given by telex, when such telex is transmitted to the telex
number specified in this Section and the appropriate answerback is
received, if given by facsimile transmission, when transmitted to the
facsimile number specified in this Section and confirmation of receipt is
received, if given by mail, 72 hours after such communication is deposited
in the mail with first class postage prepaid, addressed as aforesaid or if
given by any other means, when delivered at the address specified in this
Section; provided that notices to the Administrative Agent under Article 2
or Article 8 shall not be effective until received. Any notice required to
be given to or by any Eligible Subsidiary shall be duly given if given to
or by the Company, which is hereby appointed the agent of each Eligible
Subsidiary for such purpose.
1.1. SECTION No Waivers . No failure or delay by the Administrative
Agent or any Bank in exercising any right, power or privilege hereunder or
under any Note shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
1.2.
1.3. SECTION Expenses; Indemnification . (a) The Company shall pay
(i) all reasonable out-of-pocket expenses of the Administrative Agent,
including reasonable fees and disbursements of special counsel for the
Administrative Agent, in connection with the preparation of this Agreement,
any waiver or consent hereunder or any amendment hereof or any Default or
alleged Default hereunder and (ii) if an Event of Default occurs, all
reasonable out-of-pocket expenses incurred by the Administrative Agent or
any Bank, including (without duplication) the reasonable fees and
disbursements of outside counsel and allocated cost of inside counsel, in
connection with such Event of Default and collection, bankruptcy,
insolvency and other enforcement proceedings resulting therefrom.
1.4.
1.5. (b) The Company agrees to indemnify the Administrative Agent and
each Bank, their respective affiliates and the respective directors,
officers, agents and employees of the foregoing (each an "Indemnitee") and
hold each Indemnitee harmless from and against any and all liabilities,
losses, damages, costs and out-of-pocket expenses of any kind, including,
without limitation, the reasonable fees and disbursements of counsel, which
may be incurred by such Indemnitee in connection with any litigation or
governmental or regulatory investigation or other similar proceeding
(whether or not such Indemnitee shall be designated a party thereto)
relating to or arising out of this Agreement or any actual or proposed use
of proceeds of Loans or Letters of Credit hereunder; provided that no
Indemnitee shall have the right to be indemnified hereunder for such
Indemnitee's own gross negligence or willful misconduct or for its breach
of its express obligations under this Agreement, in each case as determined
by a court of competent jurisdiction; provided further that in no event
shall the Company have any such indemnification obligation in respect of
any liabilities, losses, damages, costs or expenses resulting from disputes
between any Bank and any Agent or among the Banks.
1.6.
1.7. SECTION Sharing of Set-offs . Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise,
receive payment of a proportion of the aggregate amount then due with
respect to the Loans and Letter of Credit Liabilities held by it which is
greater than the proportion received by any other Bank in respect of the
aggregate amount then due with respect to the Loans and Letter of Credit
Liabilities held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the
Loans and Letter of Credit Liabilities held by the other Banks, and such
other adjustments shall be made, as may be required so that all such
payments with respect to the Loans and Letter of Credit Liabilities held by
the Banks shall be shared by the Banks pro rata; provided that nothing in
this Section shall impair the right of any Bank to exercise any right of
set-off or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrowers other than their
indebtedness under this Agreement. Each Borrower agrees, to the fullest
extent it may effectively do so under applicable law, that any holder of a
participation in a Loan or Letter of Credit, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of set-off or
counterclaim and other rights with respect to such participation as fully
as if such holder of a participation were a direct creditor of such
Borrower in the amount of such participation.
1.8.
1.9. SECTION Amendments and Waivers . Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Borrower and the
Required Banks (and, if the rights or duties of the Administrative Agent,
any Swingline Bank or any Issuing Bank are affected thereby, by such
Person); provided that no such amendment or waiver shall, unless signed by
all the Banks, (i) increase or decrease the Commitment of any Bank (except
for a ratable decrease in the Commitments of all Banks) or subject any Bank
to any additional obligation, (ii) reduce the principal of or rate of
interest on any Loan or the amount to be reimbursed in respect of any
Letter of Credit or any interest thereon or any fees hereunder, (iii)
postpone the date fixed for any payment of principal of or interest on any
Loan or for reimbursement in respect of any Letter of Credit or interest
thereon or any fees hereunder or for termination of any Commitment, (iv)
make any changes to Article 10 or (v) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Loans and
Letter of Credit Liabilities, or the number of Banks, which shall be
required for the Banks or any of them to take any action under this Section
or any other provision of this Agreement; provided further that no such
amendment, waiver or modification shall, unless signed by each Eligible
Subsidiary, (w) subject such Eligible Subsidiary to any additional
obligation, (x) increase the principal of or rate of interest on any
outstanding Loan or Letter of Credit Liability of such Eligible Subsidiary,
(y) accelerate the stated maturity of any outstanding Loan or Letter or
Credit Liability of such Eligible Subsidiary or (z) change this proviso.
1.10.
1.11. SECTION Successors and Assigns . (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that no
Borrower may assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all Banks.
1.12.
1.13. (b) Any Bank may at any time grant to one or more banks or
other institutions (each a "Participant") participating interests in its
Commitment or any or all of its Loans and Letter of Credit Liabilities. In
the event of any such grant by a Bank of a participating interest to a
Participant, whether or not upon notice to the Administrative Agent, such
Bank shall remain responsible for the performance of its obligations
hereunder, and the Borrowers, the Issuing Banks, the Swingline Banks and
the Administrative Agent shall continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under this
Agreement. Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall retain the sole
right and responsibility to enforce the obligations of the Borrowers
hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement;
provided that such participation agreement may provide that such Bank will
not agree to any modification, amendment or waiver of this Agreement
described in clause (i), (ii), (iii) or (iv) of Section 11.05 without the
consent of the Participant. The Borrowers agree that each Participant
shall, to the extent provided in its participation agreement, be entitled
to the benefits of Article 8 with respect to its participating interest,
subject to subsection (e) below. An assignment or other transfer which is
not permitted by subsection (c) or (d) below shall be given effect for
purposes of this Agreement only to the extent of a participating interest
granted in accordance with this subsection (b).
1.14.
1.15. (c) Any Bank may at any time assign to one or more banks or
other financial institutions (each an "Assignee") all, or a proportionate
part (equivalent to an initial Commitment of not less than $15,000,000) of
all, of its rights and obligations under this Agreement and its Notes (if
any), and such Assignee shall assume such rights and obligations, pursuant
to an Assignment and Assumption Agreement in substantially the form of
Exhibit G hereto executed by such Assignee and such transferor Bank, with
(and only with and subject to) the prior written consent of the Borrower,
the Issuing Banks, the Swingline Banks and the Administrative Agent (which
consents shall not be unreasonably withheld or delayed); provided that if
an Assignee is an affiliate of such transferor Bank or was a Bank
immediately prior to such assignment, no such consent shall be required;
provided further such assignment may, but need not, include rights of the
transferor Bank in respect of outstanding Bid Rate Loans. Upon execution
and delivery of such instrument of assumption and payment by such Assignee
to such transferor Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Assignee, such Assignee shall be a
Bank party to this Agreement and shall have all the rights and obligations
of a Bank with a Commitment as set forth in such instrument of assumption,
and the transferor Bank shall be released from its obligations hereunder to
a corresponding extent, and no further consent or action by any party shall
be required. Upon the consummation of any assignment pursuant to this
subsection (c), the transferor Bank, the Administrative Agent and the
Borrowers shall make appropriate arrangements so that, if required by the
Assignee, Note(s) are issued to the Assignee. In connection with any such
assignment, the transferor Bank or the Assignee shall pay or cause to be
paid to the Administrative Agent an administrative fee for processing such
assignment in the amount of $3,000. If the Assignee is not organized under
the laws of the United States of America or a state thereof, it shall,
prior to the first date on which interest or fees are payable hereunder for
its account, deliver to the Company and the Administrative Agent
certification as to exemption from deduction or withholding of any United
States federal income taxes in accordance with Section 8.04.
1.16.
1.17. (d) Any Bank may at any time assign all or any portion of
its rights under this Agreement and its Notes (if any) to a Federal Reserve
Bank. No such assignment shall release the transferor Bank from its
obligations hereunder or modify any such obligations.
1.18.
1.19. (e) No Assignee, Participant or other transferee of any
Bank's rights shall be entitled to receive any greater payment under
Section 8.03 or 8.04 than such Bank would have been entitled to receive
with respect to the rights transferred, unless such transfer is made by
reason of the provisions of Section 8.02, 8.03 or 8.04 requiring such Bank
to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
1.20.
1.21. SECTION Collateral . Each of the Banks represents to the
Administrative Agent and each of the other Banks that it in good faith is
not relying upon any "margin stock" (as defined in Regulation U) as
collateral in the extension or maintenance of the credit provided for in
this Agreement.
1.22.
1.23. SECTION Confidentiality . The Administrative Agent and
each Bank agrees to keep any information delivered or made available by the
Borrower pursuant to this Agreement confidential from anyone other than
persons employed or retained by such Bank and its affiliates who are
engaged in evaluating, approving, structuring or administering the credit
facility contemplated hereby; provided that nothing herein shall prevent
any Bank from disclosing such information (a) to any other Bank or to the
Administrative Agent, (b) to any other Person if reasonably incidental to
the administration of the credit facility contemplated hereby, (c) upon the
order of any court or administrative agency, (d) upon the request or demand
of any regulatory agency or authority, (e) which had been publicly
disclosed other than as a result of a disclosure by the Administrative
Agent or any Bank prohibited by this Agreement, (f) in connection with any
litigation to which the Administrative Agent, any Bank or its subsidiaries
or Parent may be a party, (g) to the extent necessary in connection with
the exercise of any remedy hereunder, (h) to such Bank's or Administrative
Agent's legal counsel and independent auditors and (i) subject to
provisions substantially similar to those contained in this Section 11.08,
to any actual or proposed Participant or Assignee.
1.24.
1.25. SECTION Governing Law; Submission to Jurisdiction . This
Agreement and each Note shall be construed in accordance with and governed
by the law of the State of Illinois. Each Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the
Northern District of Illinois and of any Illinois State court sitting in
Chicago for purposes of all legal proceedings arising out of or relating to
this Agreement or the transactions contemplated hereby. Each Borrower
irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
1.26.
1.27. SECTION Counterparts; Integration . This Agreement may be
signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject
matter hereof.
1.28.
1.29. SECTION Waiver of Jury Trial . EACH OF THE BORROWERS, THE
AGENTS, THE ISSUING BANKS, THE SWINGLINE BANKS AND THE BANKS, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
1.30.
1.31. SECTION Effect of Amendment and Restatement; Resignation
of Resigning Agent . This agreement amends and restates the Existing
Credit Agreement in its entirety. Upon the effectiveness hereof, (a) the
Existing Credit Agreement shall be superseded and shall be of no further
force or effect (except for those provisions thereof which by their terms
survive any termination thereof) and (b) Xxxxxx Guaranty Trust Company of
New York resigns as "Administrative Agent" under the Existing Credit
Agreement (it being understood that the provisions of Article 7 and Section
11.03 of the Existing Credit Agreement shall inure to its benefit as to any
actions taken or omitted to be taken while it was "Administrative Agent"
thereunder).
1.32.
1.33.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and
year first above written.
IMC GLOBAL INC.
By:
Title:
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: E. Xxxx Xxxx, Jr.
Assistant Vice President and Treasurer
Telecopy number: 000-000-0000
$74,750,000 BANK OF AMERICA, N.A.,
Individually and as Administrative
Agent
By:
Title: Managing Director
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: X. Xxxxxx Queen
Telecopy number: (000) 000-0000
$45,500,000 THE CHASE MANHATTAN BANK,
Individually and as Syndication
Agent
By:
Title:
$45,500,000 ROYAL BANK OF CANADA,
Individually and as Documentation
Agent
By:
Title:
$45,500,000 XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By:
Title:
$39,000,000 CREDIT AGRICOLE INDOSUEZ
By:
Title:
$32,500,000 XXXXXX TRUST AND SAVINGS
BANK
By:
Title:
$6,500,000 THE BANK OF MONTREAL
By:
Title:
$34,125,000 BANK ONE, NA (Main Office
Chicago), Individually and as
Co-Syndication Agent
By:
Title:
$34,125,000 THE NORTHERN TRUST COMPANY
By:
Title:
$29,250,000 ABN-AMRO BANK N.V.
By:
Title:
By:
Title:
$29,250,000 BANQUE NATIONALE DE PARIS
By:
Title:
$29,250,000 THE BANK OF NEW YORK
By:
Title:
$22,750,000 THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH
By:
Title:
$22,750,000 FIRST UNION NATIONAL BANK
By:
Title:
$22,750,000 COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK
B.A., "RABOBANK INTERNATIONAL",
NEW YORK BRANCH
By:
Title:
By:
Title:
$22,750,000 STANDARD CHARTERED BANK
By:
Title:
By:
Title:
$22,750,000 BANK HAPOALIM B.M.
By:
Title:
By:
Title:
$22,750,000 SUNTRUST BANK, ATLANTA,
Individually and as Co-Documentation Agent
By:
Title:
By:
Title:
$22,750,000 THE DAI-ICHI KANGYO BANK,
LTD., CHICAGO BRANCH
By:
Title:
$22,750,000 HSBC BANK USA
By:
Title:
$22,750,000 THE INDUSTRIAL BANK OF JAPAN, LIMITED,
CHICAGO BRANCH
By:
Title:
Total Commitments
$650,000,000
Pricing Schedule
The "Euro-Dollar Margin," the "Utilization Fee Rate" and the "Facility
Fee Rate" for any day are the respective percentages set forth below in the
applicable row under the column corresponding to the Status that exists on
such day:
XXXXX XXXXX XXXXX XXXXX XXXXX
X II III IV V
Facility Fee Rate .07% .085% .11% .15% .25%
Euro-Dollar Margin .155% .19% .215% .275% .425%
Utilization Fee Rate .125% .25% .25% .25% .325%
(outstanding principal amount of Loans
equal to or greater than 25% but less than
50% of the aggregate Commitments)
Utilization Fee Rate .125% .25% .55% .575% .825%
(outstanding principal amount of Loans
equal to or greater than 50% of the
aggregate Commitments)
For purposes of this Schedule, the following terms have the following
meanings, subject to the last paragraph of this Schedule:
"Level I Status" exists at any date if, at such date, the Company is
rated A- or higher by S&P or A3 or higher by Xxxxx'x.
"Level II Status" exists at any date if, at such date, (i) the Company
is rated BBB+ or higher by S&P or Baa1 or higher by Xxxxx'x and (ii) Level
I Status does not exist.
"Level III Status" exists at any date if, at such date, (i) the
Company is rated BBB or higher by S&P or Baa2 or higher by Xxxxx'x and (ii)
neither Level I Status nor Level II Status exists.
"Level IV Status" exists at any date if, at such date, (i) the Company
is rated BBB- by S&P or Baa3 by Xxxxx'x and (ii) neither Level I Status,
Level II Status nor Level III Status exists.
"Level V Status" exists at any date if, at such date, no other Status
exists.
"Status" refers to the determination of which of Level I Status, Level
II Status, Level III Status, Level IV Status or Level V Status exists at
any date.
The credit ratings to be utilized for purposes of this Schedule are
those assigned to the senior unsecured long-term debt securities of the
Company without third-party credit enhancement, whether or not any such
debt securities are actually outstanding, and any rating assigned to any
other debt security of the Company shall be disregarded. The rating in
effect at any date is that in effect at the close of business on such date.
If the Company is split-rated and the ratings differential is one notch,
the higher of the two ratings will apply (e.g., A-/Baa1 results in Level I
Status and BBB+/Baa2 results in Level II Status). If the Company is split-
rated and the ratings differential is more than one notch, the average of
the two ratings (or the higher of two intermediate ratings) shall be used
(e.g., A-/Baa3 results in Level II Status and BBB+/Baa3 results in Level
III Status). If at any date, the Company's long-term debt is rated by
neither S&P nor Xxxxx'x, then Level V shall apply.
SCHEDULE I
EXISTING LETTERS OF CREDIT
ACCOUNT PARTIES:
ISSUER AMOUNT BENEFICIARY RENEWAL DATE
IMC-Agrico
Bank of America, N.A. $2,832,500 National Union 05/30/00
Bank of America, N.A. $570,000 National Union 05/30/00
Bank of America, N.A. $2,750,000 Xxxxxxxx Phosphate 12/31/99
IMC Global Operations Inc.
Bank of America, N.A. $2,683,980 National Union 12/02/99
Bank of America, N.A. $625,000 National Union 12/02/99
Bank of America, N.A. $250,000 State of Vermont 12/02/99
Bank of America, N.A. $500,000 National Union 12/02/99
Bank of America, N.A. $1,800,000 Reliance Nat'l 05/31/00
Indemnity
Cooperatieve Centrale $3,182,809 Dai-Ichi-Bank 03/17/01
Raiffeisen-boerenleenbank
B.A., "Rabobank
International", New York
Branch
Cooperatieve Centrale $9,445,754 Dai-Ichi-Bank 03/17/00
Raiffeisen-boerenleenbank
B.A., "Rabobank
International", New York
Branck
Cooperatieve Centrale $2,751,485 Bank of New York 02/16/01
Raiffeisen-boerenleenbank
B.A., "Rabobank Nederland",
New York Branch Vigoro
Industries, Inc.
Xxxxxx Trust and Savings $800,000 National Union 10/31/00
Bank First Ins. Co.
Xxxxxx Trust and Savings $546,000 St. Xxxx Fire & 02/25/00
Bank Marine Ins. Co.
Kalium Chemicals Ltd.
Royal Bank of Canada $25,000 MI Dept. of Natural 10/01/00
Resources
Royal Bank of Canada $5,000 MI Dept. of Natural 10/01/00
Resources
Western-AG Minerals Co.
Carlsbad National Bank $500,000 New Mexico Self 09/03/00
Insurers
IMC Kalium Ogden Corp.
NationsBank $298,900 Utah Div. of Oil, 04/08/00
Gas & Mining
IMC Salt Inc.
Bank of America, N.A. $150,000 Louisiana Dept. of 03/24/00
Employ.
Bank of America, N.A. $800,000 ACSTAR Insurance 03/26/00
Co.
Bank of America, N.A. $2,352,274 Reliance Nat'l 04/30/00
Indemnity Co.
Royal Bank of Canada $40,000 O&L Real Estate 07/31/00
Ltd. Liab. Co.
IMC Chemicals Inc.
Bank of America, N.A. $2,118,000 AIG/Nat'l Union, 03/23/00
Amer. Home
Bank of America, N.A. $110,000 Kredietbank NV 04/30/00
Bank of America, N.A. $150,750 State of Colorado 03/30/00
Rec. Brd.
Bank of America, N.A. $696,620.31 Colorado Nat'l Bank 08/31/00
Bank of America, N.A. $492,579.15 White River Elec. 03/30/00
Assoc.
Bank of America, N.A. $119,600 ACSTAR Insurance Co. 03/26/00
Bank of America, N.A. $941,338 County of San Bern. 03/24/00
Bank of America, N.A. $300,000 San Diego Unified 04/30/00
Bank of America, N.A. $5,860,441 General Electric 07/14/00
Cap. Corp.
Bank of America, N.A. $7,511,927 General Foods Cred. 07/14/00
EXHIBIT A
NOTE
Chicago, Illinois
[Date]
For value received, [Name of Borrower], a [jurisdiction of
incorporation] corporation (the "Borrower"), promises to pay to the order
of (the "Bank"), for the account of its Applicable Lending Office, the
unpaid principal amount of each Loan made by the Bank to the Borrower
pursuant to the Credit Agreement referred to below on the date specified in
the Credit Agreement. The Borrower promises to pay interest on the unpaid
principal amount of each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or
other immediately available funds at the office of Bank of America, N.A.,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx.
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by
the Bank and, the Bank, if the Bank so elects in connection with any
transfer or enforcement of its Note, may endorse on the schedule attached
hereto appropriate notations to evidence the foregoing information with
respect to the Loans then outstanding; provided that the failure of the
Bank to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Amended and Restated
Five-Year Credit Agreement dated as of December 8, 1999 among the Borrower,
various financial institutions and Bank of America, N.A., as Administrative
Agent (as the same may be amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with
the same meanings. Reference is made to the Credit Agreement for
provisions for the prepayment hereof and the acceleration of the maturity
hereof.
[The payment in full of the principal and interest on this note has,
pursuant to the provisions of the Credit Agreement, been unconditionally
guaranteed by IMC Global Inc.]1
[NAME OF BORROWER]
By:
Title:
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Date Amount Type Amount of Maturity Notation
of Loan of Loan Principal Repaid Date Made By
EXHIBIT B
FORM OF BID RATE QUOTE REQUEST
[Date]
To: Bank of America, N.A.
(the "Administrative Agent")
From: [Name of Borrower]
Re: Amended and Restated Five-Year Credit Agreement (the "Credit
Agreement") dated as of December 8, 1999 among IMC Global Inc.,
various financial institutions and Bank of America, N.A., as
Administrative Agent.
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Bid Rate Quotes for the following proposed Bid Rate
Borrowing(s):
Date of Borrowing: __________________
Principal Amount2 Interest Period3
$
Such Bid Rate Quotes should offer a Bid Rate [(General), (Indexed)
Margin or both]. [The applicable base rate is the London Interbank Offered
Rate.]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
[NAME OF BORROWER]
By
Title:
EXHIBIT C
FORM OF INVITATION FOR BID RATE QUOTES
To: [Name of Bank]
Re: Invitation for Bid Rate Quotes to [Name of Borrower] (the
"Borrower")
Pursuant to Section 2.03 of the Amended and Restated Five-Year Credit
Agreement dated as of December 8, 1999 among IMC Global Inc., various
financial institutions and the undersigned, as Administrative Agent, we are
pleased on behalf of the Borrower to invite you to submit Bid Rate Quotes
to the Borrower for the following proposed Bid Rate Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
$
Such Bid Rate Quotes should offer a Bid Rate [(Indexed) Margin,
(General) or both]. [The applicable base rate is the London Interbank
Offered Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [10:00
A.M.] (New York City time) on [date].
BANK OF AMERICA, N.A.,
as Administrative Agent
By
Authorized Officer
EXHIBIT D
FORM OF BID RATE QUOTE
To: Bank of America, N.A.,
as Administrative Agent
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention:
Re: Bid Rate Quote to [Name of Borrower] (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, _____, we hereby make the following Bid Rate Quote on the
following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
_____________________________
3. Date of Borrowing: ____________________4
4. We hereby offer to make Bid Rate Loan(s) in the following principal
amounts, for the following Interest Periods and at the following
rates:
Principal Interest
Bid Rate
Amount5 Period6 [(Indexed)7 Margin] [(General)8]
$
$
provided, that the aggregate principal amount of Bid Rate Loans for
which the above offers may be accepted shall not exceed $____________.]2
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Amended and
Restated Five-Year Credit Agreement dated as of December 8, 1999 among IMC
Global Inc., various financial institutions and yourselves, as
Administrative Agent, irrevocably obligates us to make the Bid Rate Loan(s)
for which any offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated: By:
Authorized Officer
EXHIBIT E-1
December ___, 1999
To the Banks parties to the
"Credit Agreement" (as defined
below) and to Bank of America, N.A.,
as Administrative Agent:
We are issuing this opinion letter in our capacity as special legal
counsel to IMC Global Inc., a Delaware corporation (the "Company") in
response to the requirement in Section 3.01 of the Amended and Restated
Five Year Credit Agreement, dated as of December 8, 1999 (the "Credit
Agreement"), between the Company, as borrower, various financial
institutions (excluding the Company, the "Banks"), and Bank of America,
N.A., as administrative agent (together with the Banks, collectively called
"you"). The term "Transaction Agreements" whenever it is used in this
letter means the Credit Agreement and the Notes (as defined in the Credit
Agreement) dated the date hereof. Unless otherwise indicated, capitalized
terms used herein but not otherwise defined herein have the respective
meanings set forth in the Credit Agreement.
Subject to the assumptions, qualifications, exclusions and other
limitations which are identified in this letter and in the schedules
attached to this letter, we advise you that:
1. The Company is a corporation existing and in good standing under the
General Corporation Law of the State of Delaware.
2. The Company has the corporate power to own and lease its properties
and to enter into and perform its obligations under the Transaction
Agreements.
3. The Company's Board of Directors has adopted by requisite vote the
resolutions necessary to authorize the Company's execution, delivery
and performance of the Transaction Agreements. No approval by the
Company's stockholders is required.
4. The Company has duly authorized, executed and delivered the
Transaction Agreements.
5. Each of the Transaction Agreements is a valid and binding obligation
of the Company and is enforceable against the Company in accordance
with its terms.
6. The Company is not currently required to obtain any consent, approval,
authorization or order of any court or governmental agency in order to
obtain the right to enter into the Transaction Agreements or to take
any action in connection with the consummation of the transactions
contemplated by the Transaction Agreements, except for actions or
filings required in connection with ordinary course conduct by the
Company of its respective businesses and ownership or operation by the
Company of its respective assets.
7. The Company is not an "investment company" registered or required to
be registered under the Investment Company Act of 1940, as amended.
8. The execution and delivery of the Transaction Agreements by the
Company and performance of its obligations under the Transaction
Agreements will not (a) violate any existing provisions of the
Company's Certificate of Incorporation or Bylaws, (b) constitute a
violation by the Company of any applicable provision of existing
statutory law or governmental regulation covered by this letter, (c)
result in the creation or imposition of any lien, charge or
encumbrance upon any of the property of the Company, (d) violate any
existing order, writ, injunction or decree applicable to the Company
of which we are aware of any court or governmental instrumentality or
(e) whether with or without the giving of notice or lapse of time or
both, breach, or result in a default under, any existing obligation of
the Company or any of its Subsidiaries under any of the agreements
listed on Schedule E to this opinion (provided that we express no
opinion as to compliance with any financial test or cross-default
provision except insofar as any such cross-default provision relates
to a default under an agreement listed on Schedule E to this opinion)
except in each case as would not reasonably be expected to have a
Material Adverse Effect. Without limiting the foregoing, the
Borrowings and the application of the proceeds thereof as provided in
the Credit Agreement do not violate Regulation T, U or X of the Board
of Governors of the Federal Reserve System.
In preparing this letter, we have relied without any independent
verification upon the assumptions recited in Schedule B to this letter and
upon: (i) information contained in certificates obtained from governmental
authorities; (ii) factual information represented to be true in the Credit
Agreement and the other Transaction Agreements; (iii) factual information
provided to us by the Company; and (iv) factual information we have
obtained from such other sources as we have deemed reasonable. We have
assumed without investigation that there has been no relevant change or
development between the dates as of which the information cited in the
preceding sentence was given and the date of this letter and that the
information upon which we have relied is accurate and does not omit
disclosures necessary to prevent such information from being misleading.
For purposes of each opinion in paragraph 1, we have relied exclusively
upon a certificate issued by a governmental authority in Delaware, and such
opinion is not intended to provide any conclusion or assurance beyond that
conveyed by that certificate.
While we have not conducted any independent investigation to determine
facts upon which our opinions are based or to obtain information about
which this letter advises you, we confirm that we do not have any actual
knowledge which has caused us to conclude that our reliance and assumptions
cited in the preceding paragraph are unwarranted or that any information
supplied in this letter is wrong. The term "actual knowledge" whenever it
is used in this letter with respect to our firm means conscious awareness
at the time this letter is delivered on the date it bears by the following
Xxxxxxxx & Xxxxx lawyers who have had significant involvement with
negotiation or preparation of the Credit Agreement (herein called "our
Designated Transaction Lawyers"): Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxx.
Our advice on every legal issue addressed in this letter is based
exclusively on the internal law of the State of Illinois, the federal law
of the United States and the General Corporation Law of the State of
Delaware. Issues addressed by this letter may be governed in whole or in
part by other laws, but we express no opinion as to whether any relevant
difference exists between the laws upon which our opinions are based and
any other laws which may actually govern. Our opinions are subject to all
qualifications in Schedule A and do not cover or otherwise address any law
or legal issue which is identified in the attached Schedule C or any
provision in the Credit Agreement or any of the other Transaction
Agreements of any type identified in Schedule D. Provisions in the
Transaction Agreements which are not excluded by Schedule D or any other
part of this letter or its attachments are called the "Relevant Agreement
Terms."
Our advice on each legal issue addressed in this letter represents our
opinion as to how that issue would be resolved were it to be considered by
the highest court of the jurisdiction upon whose law our opinion on that
issue is based. The manner in which any particular issue would be treated
in any actual court case would depend in part on facts and circumstances
particular to the case, and this letter is not intended to guarantee the
outcome of any legal dispute which may arise in the future. It is possible
that some Relevant Agreement Terms may not prove enforceable for reasons
other than those cited in this letter should an actual enforcement action
be brought, but (subject to all the exceptions, qualifications, exclusions
and other limitations contained in this letter) such unenforceability would
not in our opinion prevent you from realizing the principal benefits
purported to be provided by the Relevant Agreement Terms.
This letter speaks as of the time of its delivery on the date it
bears. We do not assume any obligation to provide you with any subsequent
opinion or advice by reason of any fact about which our Designated
Transaction Lawyers did not have actual knowledge at that time, by reason
of any change subsequent to that time in any law covered by any of our
opinions, or for any other reason. The attached schedules are an integral
part of this letter, and any term defined in this letter or any schedule
has that defined meaning wherever it is used in this letter or in any
schedule to this letter.
You may rely upon this letter only for the purpose served by the
provision in the Credit Agreement cited in the initial paragraph of this
letter in response to which it has been delivered. Without our written
consent: (i) no Person other than you may rely on this letter for any
purpose; (ii) this letter may not be cited or quoted in any financial
statement, prospectus, private placement memorandum or other similar
document; (iii) this letter may not be cited or quoted in any other
document or communication which might encourage reliance upon this letter
by any Person or for any purpose excluded by the restrictions in this
paragraph; and (iv) copies of this letter may not be furnished to anyone
for purposes of encouraging such reliance. Notwithstanding the foregoing,
Persons who subsequently become Banks (or participants in accordance with
the terms of the Credit Agreement) may rely on this letter as of the time
of its delivery on the date hereof as if this letter were addressed to
them.
Sincerely,
Xxxxxxxx & Xxxxx
Schedule A
General Qualifications
All of our opinions ("our opinions") in the letter to which this
Schedule is attached ("our letter") are subject to each of the
qualifications set forth in this Schedule.
1. Bankruptcy and Insolvency Exception. Each of our opinions is subject
to the effect of bankruptcy, insolvency, reorganization, receivership,
moratorium and other similar laws. This exception includes:
a. the federal Bankruptcy Code and thus comprehends, among
others, matters of turn-over, automatic stay, avoiding powers,
fraudulent transfer, preference, discharge, conversion of a non-
recourse obligation into a recourse claim, limitations on ipso
facto and anti-assignment clauses and the coverage of pre-
petition security agreements applicable to property acquired
after a petition is filed;
b. all other federal and state bankruptcy, insolvency,
reorganization, receivership, moratorium, arrangement and
assignment for the benefit of creditors laws that affect the
rights of creditors generally or that have reference to or affect
only creditors of specific types of debtors;
c. state fraudulent transfer and conveyance laws; and
d. judicially developed doctrines in this area, such as
substantive consolidation of entities and equitable
subordination.
2. Equitable Principles Limitation. Each of our opinions is subject to
the effect of general principles of equity, whether applied by a court
of law or equity. This limitation includes principles:
a. governing the availability of specific performance,
injunctive relief or other equitable remedies, which generally place the
award of such remedies, subject to certain guidelines, in the discretion of
the court to which application for such relief is made;
a. affording equitable defenses (e.g., waiver, laches and
estoppel) against a party seeking enforcement;
a. requiring good faith and fair dealing in the
performance and enforcement of a contract by the party seeking its
enforcement;
a. requiring reasonableness in the performance and
enforcement of an agreement by the party seeking enforcement of the
contract;
b. requiring consideration of the materiality of (i) a breach and
(ii) the consequences of the breach to the party seeking enforcement;
a. requiring consideration of the impracticability or
impossibility of performance at the time of attempted enforcement; and
a. affording defenses based upon the unconscionability of
the enforcing party's conduct after the parties have entered into the
contract.
3. Other Common Qualifications. Each of our opinions is subject to the
effect of rules of law that:
a. limit or affect the enforcement of provisions of a contract that
purport to waive, or to require waiver of, the obligations of good faith,
fair dealing, diligence and reasonableness;
a. provide that forum selection clauses in contracts are
not necessarily binding on the court(s) in the forum selected;
a. limit the availability of a remedy under certain
circumstances where another remedy has been elected;
a. provide a time limitation after which a remedy may not
be enforced;
a. limit the right of a creditor to use force or cause a breach of
the peace in enforcing rights;
a. relate to the sale or disposition of collateral or the
requirements of a commercially reasonable sale;
a. limit the enforceability of provisions releasing, exculpating or
exempting a party from, or requiring indemnification of a party for,
liability for its own action or inaction, to the extent the action or
inaction involves negligence, recklessness, willful misconduct, unlawful
conduct, violation of public policy or litigation against another party
determined adversely to such party;
a. may, where less than all of a contract may be unenforceable,
limit the enforceability of the balance of the contract to circumstances in
which the unenforceable portion is not an essential part of the agreed
exchange;
a. govern and afford judicial discretion regarding the determination
of damages and entitlement to attorneys' fees and other costs;
a. may permit a party that has materially failed to render or offer
performance required by the contract to cure that failure unless (i)
permitting a cure would unreasonably hinder the aggrieved party from making
substitute arrangements for performance, or (ii) it was important in the
circumstances to the aggrieved party that performance occur by the date
stated in the contract.
4. Referenced Provision Qualification. In addition, our opinions,
insofar as they relate to the validity, binding effect or enforceability of
a provision in any of the Transaction Agreements requiring the Company to
perform its obligations under, or to cause any other Person to perform its
obligations under, any provision (a "Referenced Provision") of such
Transaction Agreement or of any of the other Transaction Agreements or
stating that any action will be taken as provided in or in accordance with
any provision (also a "Referenced Provision") of any other Transaction
Agreement, are subject to the same qualifications as the corresponding
opinion in this letter relating to the validity, binding effect and
enforceability of such Referenced Provision. Requirements in the
Transaction Agreements that provisions therein may only be waived or
amended in writing may not be enforceable to the extent that an oral
agreement or an implied agreement by trade practice or course of conduct
has been created modifying any such provision.
Schedule B
Assumptions
For purposes of our letter, we have relied, without investigation,
upon each of the following assumptions:
1. The Company has the requisite title and rights to any property
involved in the transactions effected under the Transaction Agreements
(herein called the "Transactions").
1. Each of you is existing and in good standing in your jurisdiction of
organization.
1. The Credit Agreement constitutes valid and binding obligations of
yours and is enforceable against you in accordance with its terms (subject
to qualifications, exclusions and other limitations similar to those
applicable to our letter).
1. You have satisfied those legal requirements that are applicable to you
to the extent necessary to entitle you to enforce the Transaction
Agreements against the Company.
1. Each document submitted to us for review is accurate and complete,
each such document that is an original is authentic, each such document
that is a copy conforms to an authentic original, and all signatures (other
than those of or on behalf of the Company) on each such document are
genuine.
1. There has not been any mutual mistake of fact or misunderstanding,
fraud, duress or undue influence.
1. The conduct of the parties to the Transaction Agreements has complied
with any requirement of good faith, fair dealing and conscionability.
1. You have acted in good faith and without notice of any defense against
the enforcement of any rights created by, or adverse claim to any property
or security interest transferred or created as part of, the Transactions.
1. There are no agreements or understandings among the parties, written
or oral, and there is no usage of trade or course of prior dealing among
the parties that would, in either case, define, supplement or qualify the
terms of the Credit Agreement or any of the other Transaction Agreements.
1. The constitutionality or validity of a relevant statute, rule,
regulation or agency action is not in issue.
1. All parties to the Transactions will act in accordance with, and will
refrain from taking any action that is forbidden by, the terms and
conditions of the Transaction Agreements.
2. All agreements other than the Transaction Agreements (if any) with
respect to which we have provided advice in our letter or reviewed in
connection with our letter would be enforced as written.
1. The Company will not in the future take any discretionary action
(including a decision not to act) permitted under the Transaction
Agreements that would result in a violation of law or constitute a breach
or default under any other agreements or court orders to which the Company
may be subject.
1. The Company will in the future obtain all permits and governmental
approvals required, and will in the future obtain all actions required,
relevant to the consummation of the Transactions or performance of the
Transaction Agreements.
15. All information required to be disclosed in connection with any
consent or approval by the Company's Board of Directors or
stockholders (or equivalent governing group) and all other information
required to be disclosed in connection with any issue relevant to our
opinions has in fact been fully and fairly disclosed to all persons to
whom it is required to be disclosed.
16. The Company's certificate of incorporation (or equivalent governing
instrument), all amendments to that certificate, all resolutions
adopted establishing classes or series of stock under that
certificate, the Company's bylaws and all amendments to its bylaws
have been adopted in accordance with all applicable legal
requirements.
17. Each person who has taken any action relevant to any of our opinions
in the capacity of director or officer was duly elected to that
director or officer position and held that position when such action
was taken.
Schedule C
Excluded Law and Legal Issues
None of the opinions or advice contained in our letter covers or
otherwise addresses any of the following laws, regulations or other
governmental requirements or legal issues:
1. federal securities laws and regulations (excluding the Investment
Company Act of 1940 to the extent of our opinion contained in paragraph 7)
and all other laws and regulations administered by the United States
Securities and Exchange Commission), state "Blue Sky" laws and regulations,
and laws and regulations relating to commodity (and other) futures and
indices and other similar instruments;
1. pension and employee benefit laws and regulations (e.g., ERISA);
1. federal and state antitrust and unfair competition laws and
regulations;
1. compliance with fiduciary duty requirements;
1. the statues and ordinances, the administrative decisions and the rules
and regulations of counties, towns, municipalities and special political
subdivisions (whether created or enabled through legislative action at the
federal, state or regional level -- e.g., water agencies, joint power
districts, turnpike and tollroad authorities, rapid transit districts or
authorities, and port authorities) and judicial decisions to the extent
that they deal with any of the foregoing;
1. fraudulent transfer and fraudulent conveyance laws;
1. federal and state environmental laws and regulations;
1. federal and state land use and subdivision laws and regulations;
1. federal and state tax laws and regulations;
1. federal patent, trademark and copyright, state trademark, and other
federal and state intellectual property laws and regulations;
1. federal and state racketeering laws and regulations (e.g., RICO);
1. federal and state health and safety laws and regulations (e.g., OSHA);
1. federal and state labor laws and regulations;
1. federal and state laws, regulations and policies concerning (i)
national and local emergency, (ii) possible judicial deference to acts of
sovereign states, and (iii) criminal and civil forfeiture laws;
1. other federal and state statutes of general application to the extent
they provide for criminal prosecution (e.g., mail fraud and wire fraud
statutes);
1. any laws, regulations, directives and executive orders that prohibit
or limit the enforceability of obligations based on attributes of the party
seeking enforcement (e.g., the Trading with the Enemy Act and the
International Emergency Economic Powers Act); and
1. the effect of any law, regulation or order which hereafter becomes
effective.
We have not undertaken any research for purposes of determining
whether the Company or any of the Transactions which may occur in
connection with the Credit Agreement or any of the other Transaction
Agreements is subject to any law or other governmental requirement other
than to those laws and requirements which in our experience would generally
be recognized as applicable in the absence of research by lawyers in
Illinois, and none of our opinions covers any such law or other requirement
unless (i) one of our Designated Transaction Lawyers had actual knowledge
of its applicability at the time our letter was delivered on the date it
bears and (ii) it is not excluded from coverage by other provisions in our
letter or in any Schedule to our letter.
Schedule D
Excluded Provisions
None of the opinions in the letter to which this Schedule is attached
covers or otherwise addresses any of the following types of provisions
which may be contained in the Transaction Agreements:
1. Covenants not to compete, including without limitation covenants not
to interfere with business or employee relations, covenants not to solicit
customers, and covenants not to solicit or hire employees.
1. Indemnification for negligence, willful misconduct or other wrongdoing
or strict product liability or any indemnification for liabilities arising
under securities laws.
1. Provisions mandating contribution towards judgments or settlements
among various parties.
1. Waivers of (i) legal or equitable defenses, (ii) rights to damages,
(iii) rights to counter claim or set off, (iv) statutes of limitations, (v)
rights to notice, (vi) the benefits of statutory, regulatory, or
constitutional rights, unless and to the extent the statute, regulation, or
constitution explicitly allows waiver, (vii) broadly or vaguely stated
rights, and (viii) other benefits to the extent they cannot be waived under
applicable law.
1. Provisions providing for forfeitures or the recovery of amounts deemed
to constitute penalties, or for liquidated damages, acceleration of future
amounts due (other than principal) without appropriate discount to present
value, late charges, prepayment charges, and increased interest rates upon
default.
1. Time-is-of-the-essence clauses.
1. Provisions which provide a time limitation after which a remedy may
not be enforced.
1. Confession of judgment clauses.
1. Agreements to submit to the jurisdiction of any particular court or
other governmental authority (either as to personal jurisdiction and
subject matter jurisdiction); provisions restricting access to courts;
waiver of service of process requirements which would otherwise be
applicable; and provisions otherwise purporting to affect the jurisdiction
and venue of courts.
1. Provisions that attempt to change or waive rules of evidence or fix
the method or quantum of proof to be applied in litigation or similar
proceedings.
1. Provisions appointing one party as an attorney-in-fact for an adverse
party or providing that the decision of any particular person will be
conclusive or binding on others.
1. Provisions purporting to limit rights of third parties who have not
consented thereto or purporting to grant rights to third parties.
1. Provisions which purport to award attorneys' fees solely to one party.
1. Arbitration agreements.
1. Provisions purporting to create a trust or constructive trust without
compliance with applicable trust law.
1. Provisions relating to (i) insurance coverage requirements and (ii)
the application of insurance proceeds and condemnation awards.
1. Provisions that provide for the appointment of a receiver.
1. Provisions or agreements regarding proxies, shareholders agreements,
shareholder voting rights, voting trusts, and the like.
1. Confidentiality agreements.
1. Provisions in any of the Transaction Agreements requiring the Company
to perform its obligations under, or to cause any other Person to perform
its obligations under, or stating that any action will be taken as provided
in or in accordance with, any agreement or other document that is not a
Transaction Agreement.
Schedule E
Agreements
[TO COME]
EXHIBIT E-2
OPINION OF GENERAL COUNSEL OF THE COMPANY
December __, 1999
To each of the Banks parties to the "Credit
Agreement" (as defined below) and to Bank
of America, N.A., as Administrative Agent
IMC Global Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(b) of that
certain Amended and Restated Five Year Credit Agreement, dated as of
December 8, 1999 (the "Credit Agreement"), among the Company, as borrower,
various financial institutions and Bank of America, N.A., as Administrative
Agent, and the transactions contemplated thereby. Capitalized terms used
herein and not otherwise defined are used as defined in the Credit
Agreements.
I am the General Counsel of the Company and have acted in such
capacity in connection with the preparation, execution and delivery of the
Credit Agreement and each of the Notes dated the date hereof.
In that connection, I have examined:
(a) counterparts of the Credit Agreement and each of the Notes
dated the date hereof, in each case executed by each of the
parties thereto; and
(b) the certificate of incorporation and bylaws of the Company
as amended through the date hereof.
I have also examined the originals, or copies certified to my
satisfaction, of all of the indentures, loan or credit agreements,
guarantees, mortgages, security agreements, bonds, notes and other material
agreements or instruments (the "Relevant Contracts"), and all of the
orders, writs, judgments, injunctions, decrees, determinations and awards
of which I am aware, after diligent inquiry, that affect or purport to
affect the obligations of the Company under the Credit Agreement or any of
the Notes dated the date hereof, or the right of the Company to borrow
money, to guaranty the obligations of other Borrowers from time to time
parties to the Credit Agreement or to consummate the transactions
contemplated by the Credit Agreement.
In addition, I have examined the originals, or copies certified to my
satisfaction, of such other corporate records of the Company, certificates
of public officials and of officers of the Company, and agreements,
instruments and other documents, as I have deemed necessary as a basis for
the opinions expressed below.
In my examination of the documents referred to above, I have assumed
(i) the due execution and delivery, pursuant to due authorization, of each
of the documents referred to above by all parties thereto other than the
Company, (ii) the authenticity of all such documents submitted to me as
originals and (iii) the conformity to originals of all such documents
submitted to me as copies.
I am qualified to practice law in the State of Illinois. This opinion
is limited to the laws of the State of Illinois, the General Corporation
Law of the State of Delaware and the Federal laws of the United States.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion as of the date hereof:
1. The Company (a) is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, (b)
has all requisite corporate power and authority to own or lease and operate
its properties and to carry on its business as now conducted, and (c) is
duly qualified to do business and is in good standing in every state where
it owns or leases real property, or in which the conduct of its business
requires it to so qualify or be licensed, except where the failure to so
qualify or be licensed could not be reasonably expected to have a Material
Adverse Effect.
2. The execution, delivery and performance by the Company of the
Credit Agreement and each of the Notes dated the date hereof, and the
consummation of the transactions contemplated by the Credit Agreement, are
within the Company's corporate powers, have been duly authorized by all
necessary corporate action, and do not (a) contravene the Company's charter
or by-laws or (b) violate any law, rule, or regulation of the State of
Illinois or Federal law of the United States, or any order, writ, judgment,
injunction, decree, determination or award binding on or affecting or any
of its properties or (c) conflict with or result in the breach of, or
constitute a default under, any Relevant Contracts binding on or affecting
the Company or any of its properties or (d) result in or require the
creation or imposition of any Lien upon or with respect to any of the
properties of the Company or any of its Subsidiaries.
3. No authorization, approval, or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any third
party is required for the due execution, delivery and performance by the
Company of the Credit Agreement and each of the Notes dated the date
hereof, or for the consummation of the transactions contemplated thereby.
4. The Credit Agreement and each of the Notes dated the date hereof
have been duly executed and delivered by the Company.
5. To the best of my knowledge, except as disclosed in the Company's
annual report on for the year ended December 31, 1998, each registration
statement (other than a registration statement on Form S-8 (or its
equivalent)) and each report on Form 10-K, 10-Q and 8-K (or their
equivalents) which the Company has filed with the Securities and Exchange
Commission since such date, there is no action, suit or proceeding pending
against or affecting, the Company or any of its Subsidiaries before any
court, governmental agency or arbitrator that (a) purports to affect the
legality, validity binding effect or enforceability of the Credit
Agreement or the Notes dated the date hereof or the consummation of the
transactions contemplated by the Credit Agreement or (b) could reasonably
be expected to have a Material Adverse Effect any Note.
6. The provisions of the Credit Agreement (without regard for any
provision thereof limiting the payment of interest or any other sums
thereunder to the highest rate permitted by applicable law) and the Notes
dated the date hereof do not violate any applicable law of the State of
Illinois relating to usury.
7. Neither the Company nor any Subsidiary of the Company is an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended.
The opinions expressed herein are being delivered to you as of the
date hereof and are solely for your benefit in connection with the
transactions contemplated in the Credit Agreement and may not be relied on
in any manner or for any purpose by any other Person, nor any copies
published, communicated or otherwise made available in whole or in part to
any other Person or entity without my express prior written consent, except
that you may furnish copies thereof to any party that becomes a Bank after
the date hereof pursuant to the Credit Agreement. I do not express any
opinion, either implicitly or otherwise, on any issue not expressly
addressed in this opinion. The opinions expressed above are based solely
on facts, laws and regulations in effect on the date hereof, and I assume
no obligation to revise or supplement this opinion should such facts change
or should such laws or regulations be changed by legislative or regulatory
action, judicial decision or otherwise, notwithstanding that such changes
may affect the legal analysis or conclusions contained herein.
Very truly yours,
Xxxx Xxx Xxxxx
EXHIBIT F
OPINION OF
XXXXX, XXXXX & XXXXX, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
December __, 1999
To the Banks and the
Administrative Agent
Referred to Below
c/o Bank of America, N.A.,
as Administrative Agent
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Dear Sirs:
We have participated in the preparation of the Amended and Restated
Five Year Credit Agreement (the "Credit Agreement") dated as of December 8,
1999 among IMC Global Inc., a Delaware corporation (the "Company"), various
financial institutions and Bank of America, N.A., as Administrative Agent
(the "Administrative Agent"), and have acted as special counsel for the
Administrative Agent for the purpose of rendering this opinion pursuant to
Section 3.01(c) of the Credit Agreement. Terms defined in the Credit
Agreement are used herein as therein defined.
In connection herewith, we have examined (i) the Credit Agreement,
including original or facsimile copies of signature pages thereto executed
by the Company, each of the Banks and the Administrative Agent; and (ii)
the Notes issued by the Company on the date hereof pursuant to the Credit
Agreement (the "Notes" and, together with the Credit Agreement, the
"Documents"). In connection with such examination, we have assumed,
without any independent investigation, that:
(a) all signatures of the parties on all items submitted to us are
genuine;
(b) all natural persons, including persons acting on behalf of a
business entity, are legally competent;
(c) all items submitted to us as originals are authentic, and all
documents submitted to us as copies conform to authentic original
documents;
(d) each of the parties has full power and authority to execute, deliver
and perform its obligations under the Documents to which it is a party, and
all such Documents have been duly authorized by all necessary corporate or
other action on the part of such parties and others and have been duly
executed and delivered by such parties;
(e) as to all parties (other than the Company), the Credit Agreement
constitutes the legal, valid and binding obligation of such parties,
enforceable against each such party in accordance with its terms;
(f) the Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware;
(g) the execution, delivery and performance of each of the Documents (i)
are within the Company's corporate powers, (ii) have been duly authorized
by all necessary corporate action on the party of the Company (including
all necessary stockholder approval), (iii) do not contravene or conflict
with (A) the charter or by-laws or any other organizational document of the
Company, (B) any law, rule or regulation of the State of Illinois or of the
Federal law of the United States, or (C) any writ, order, judgment, award,
determination or decree to which the Company is subject or to which any of
its property is bound and (iv) do not require any action, consent,
approval, authorization, declaration or filing by or with any governmental
or regulatory authority or any other third party; and
(h) there are no agreements between any of the parties that would alter
the agreements set forth in the Documents.
Based upon the foregoing, and subject to the qualifications and
exceptions set forth below, we are of the opinion that, under the laws of
the State of Illinois:
1. The Credit Agreement is the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms.
2. Each Note is the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
Our opinions are subject to the following qualifications:
(a) Our opinions are subject to the effect of any applicable
bankruptcy, insolvency, reorganization, receivership, fraudulent
conveyance, equitable subordination, moratorium or similar law affecting
creditors' rights generally and to the effect of general principles of
equity (regardless of whether considered in a proceeding in equity or at
law), including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and limitations on the
availability of specific performance, injunctive relief or other equitable
remedies.
(b) We express no opinion as to obligations relating to
indemnification, contribution or exculpation of costs, expenses or
liabilities which contravene public policy.
(c) We express no opinion as to the enforceability, under
certain circumstances, of provisions imposing penalties or forfeitures,
late payment charges or an increase in interest rate upon delinquency in
payment or the occurrence of a default.
(d) We express no opinion as to any provision of any Document
that purports to establish an evidentiary standard for determinations by
the Banks or the Administrative Agent.
(e) We express no opinion as to Section 11.04 of the Credit
Agreement insofar as it authorizes any Person to exercise any right of
offset.
(f) We express no opinion as to any provision of the Credit Agreement
purporting to convey rights to Persons other than parties to the Credit
Agreement.
(g) We express no opinion as to any waiver of (i) the right to a jury
trial or (ii) any objection to venue.
(h) We express no opinion as to the effect of the law of any
jurisdiction other than the State of Illinois wherein enforcement of any
Document may be sought (including, without limitation, whether any court
outside the State of Illinois would honor the choice of Illinois law as the
governing law of the Credit Agreement and the Notes).
The opinions expressed herein shall be effective only as of the date
of this opinion letter. We do not assume responsibility for updating this
opinion letter as of any date subsequent to the date of this opinion
letter, and we assume no responsibility for advising you of any changes
with respect to any matters described in this opinion letter that may occur
subsequent to the date of this opinion letter or from the discovery
subsequent to the date of this opinion letter of information not previously
known to us pertaining to events occurring prior to the date of this
opinion letter.
This opinion letter is solely for the benefit of the addressees
hereof (and their respective successors and assigns) in connection with the
transactions contemplated by the Credit Agreement, and this opinion letter
may not be relied upon by any other Person or for any other purpose.
Very truly yours,
XXXXX, XXXXX & XXXXX
RCB:AGS
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, ____ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), IMC GLOBAL INC. (the "Company"),
various financial institutions and BANK OF AMERICA, N.A., as Administrative
Agent (the "Administrative Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the Amended and Restated Five-Year Credit Agreement dated as of
December 8, 1999, among the Company, various financial institutions and
Bank of America, N.A., as Administrative Agent (as amended from time to
time, the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrowers and participate in Swingline
Loans and Letters of Credit in an aggregate principal amount at any time
outstanding not to exceed $__________;
WHEREAS, Syndicated Loans made to the Borrowers by the Assignor under
the Credit Agreement in the aggregate principal amount of $__________ are
outstanding at the date hereof;
WHEREAS, Swingline Loans in the aggregate principal amount of
$__________ are outstanding at the date hereof;
WHEREAS, Letters of Credit with a total amount available for drawing
thereunder of $___________ are outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion
of its Commitment thereunder in an amount equal to $__________ (the
"Assigned Amount"), together with a corresponding portion of its
outstanding Syndicated Loans and Letter of Credit Liabilities, and the
Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
1agreements contained herein, the parties hereto agree as follows:
Section 1. Definitions. All capitalized terms not otherwise
defined herein shall have the respective meanings set forth in the Credit
Agreement.
Section 2. Assignment. The Assignor hereby assigns and sells to
the Assignee all of the rights of the Assignor under the Credit Agreement
to the extent of the Assigned Amount, and the Assignee hereby accepts such
assignment from the Assignor and assumes all of the obligations of the
Assignor under the Credit Agreement to the extent of the Assigned Amount,
including the purchase from the Assignor of the corresponding portion of
the principal amount of the Syndicated Loans made by, and participations in
Swingline Loans and Letter of Credit Liabilities of, the Assignor
outstanding at the date hereof. Upon the execution and delivery hereof by
the Assignor, the Assignee, the Company, the Issuing Bank(s), the Swingline
Bank(s) and the Administrative Agent, and the payment of the amounts
specified in Section 3 required to be paid on the date hereof (i) the
Assignee shall, as of the date hereof, succeed to the rights and be
obligated to perform the obligations of a Bank under the Credit Agreement
with a Commitment in an amount equal to the Assigned Amount (in addition to
any Commitment theretofore held by the Assignee), and (ii) the Commitment
of the Assignor shall, as of the date hereof, be reduced by a like amount
and the Assignor released from its obligations under the Credit Agreement
to the extent such obligations have been assumed by the Assignee. The
assignment provided for herein shall be without recourse to the Assignor.
Section 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on
the date hereof in Federal funds the amount heretofore agreed between them.9
It is understood that facility, utilization and Letter of Credit fees
accrued to the date hereof in respect of the Assigned Amount are for the
account of the Assignor and such fees accruing from and including the date
hereof are for the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees that if it receives any amount under the Credit
Agreement which is for the account of the other party hereto, it shall
receive the same for the account of such other party to the extent of such
other party's interest therein and shall promptly pay the same to such
other party.
Section 4. Consent to Assignment. This Agreement is conditioned
upon the consent of the Company, the Issuing Bank(s), the Swingline Bank(s)
and the Administrative Agent pursuant to Section 11.06(c) of the Credit
Agreement. The execution of this Agreement by the Company, the Issuing
Bank(s), Swingline Bank(s) and the Administrative Agent is evidence of this
consent. Pursuant to Section 11.06(c), each Borrower shall execute and
deliver a Note, if required by the Assignee, payable to the order of the
Assignee to evidence the assignment and assumption provided for herein.
Section 5. Non-reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no
responsibility with respect to, the solvency, financial condition, or
statements of any Borrower, or the validity and enforceability of the
obligations of any Borrower in respect of the Credit Agreement or any Note.
The Assignee acknowledges that it has, independently and without reliance
on the Assignor, and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement and will continue to be responsible for making its own
independent appraisal of the business, affairs and financial condition of
the Borrowers.
Section 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois.
Section 7. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
Section 8. Administrative Questionnaire. Attached is an
Administrative Questionnaire duly completed by the Assignee.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date
first above written.
[ASSIGNOR]
By
Title:
[ASSIGNEE]
By
Title:
IMC GLOBAL INC.
By
Title:
BANK OF AMERICA, N.A., as Issuing Bank, Swingline
Bank and Administrative Agent
By
Title:
[ISSUING BANK]
By
Title:
EXHIBIT H
FORM OF ELECTION TO PARTICIPATE
[Date]
Bank of America, N.A.,
as Administrative Agent for the Banks
which are parties to the Amended and
Restated Five-Year Credit Agreement dated
as of December 8, 1999 among IMC Global Inc.,
various financial institutions and Bank of America, N.A.,
as Administrative Agent (the "Credit Agreement").
Dear Sirs:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meaning provided therein.
The undersigned, [name of Eligible Subsidiary], a [jurisdiction of
incorporation] corporation, hereby elects to be an Eligible Subsidiary for
purposes of the Credit Agreement, effective from the date hereof until an
Election to Terminate shall have been delivered on behalf of the
undersigned in accordance with the Credit Agreement. The undersigned
confirms that the representations and warranties set forth in Article 9 of
the Credit Agreement are true and correct as to the undersigned as of the
date hereof, and the undersigned hereby agrees to perform all the
obligations of a Borrower under, and to be bound in all respects by the
terms of, the Credit Agreement, including without limitation Sections 8.03
and 11.03 thereof, as if the undersigned were a signatory party thereto.
[Tax disclosure pursuant to Section 9.04]
This instrument shall be construed in accordance with and governed by
the laws of the State of Illinois.
Very truly yours,
[NAME OF ELIGIBLE SUBSIDIARY]
By
Title:
The undersigned hereby confirms that [name of Eligible Subsidiary] is
an Eligible Subsidiary for purposes of the Credit Agreement described
above.
IMC GLOBAL INC.
By
Title:
Receipt of the above Election to Participate is hereby acknowledged on
and as of the date set forth above.
BANK OF AMERICA, N.A.,
as Administrative Agent
By
Title:
EXHIBIT I
FORM OF ELECTION TO TERMINATE
[Date]
Bank of America, N.A.,
as Administrative Agent for the Banks
which are parties to the Amended and
Restated Five-Year Credit Agreement dated
as of December 8, 1999 among IMC Global Inc.,
various financial institutions, and Bank of America, N.A.,
as Administrative Agent (the "Credit Agreement").
Dear Sirs:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meaning provided therein.
The undersigned, [name of Eligible Subsidiary], a [jurisdiction of
incorporation] corporation, hereby elects to terminate its status as an
Eligible Subsidiary for purposes of the Credit Agreement, effective as of
the date hereof. The undersigned hereby represents and warrants that all
principal and interest on all Loans to the undersigned and all other
amounts payable by the undersigned pursuant to the Credit Agreement have
been paid in full on or prior to the date hereof. Notwithstanding the
foregoing, this Election to Terminate shall not affect any obligation of
the undersigned under the Credit Agreement or under any Note heretofore
incurred.
This instrument shall be construed in accordance with and governed by
the laws of the State of Illinois.
Very truly yours,
[NAME OF ELIGIBLE SUBSIDIARY]
By
Title:
The undersigned hereby confirms that the status of [name of Eligible
Subsidiary] as an Eligible Subsidiary for purposes of the Credit Agreement
described above is terminated as of the date hereof.
IMC GLOBAL INC.
By
Title:
Receipt of the above Election to Terminate is hereby acknowledged on
and as of the date set forth above.
BANK OF AMERICA, N.A.,
as Administrative Agent
By
Title:
EXHIBIT J
Matters to be covered in the Opinions of Counsel for the Eligible
Subsidiaries
1. The Borrower is a [legal entity] duly organized, validly existing
and in good standing under the laws of [jurisdiction of organization].
2. The execution and delivery by the Borrower of its Election to
Participate and its Notes and the performance by the Borrower of the Credit
Agreement and its Notes are within the Borrower's legal powers, have been
duly authorized by all necessary legal action, require no action by or in
respect of, or filing with, any governmental body, agency or official and
do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the [organizational documents] of the
Borrower or of any agreement, judgment, injunction, order, decree or other
instrument known to such counsel to be binding upon the Borrower or the
Company or any of its Subsidiaries or result in the creation or imposition
of any Lien on any asset of the Company or any of its Subsidiaries pursuant
to any of the foregoing.
3. The Borrower's Election to Participate has been duly executed and
delivered and the Credit Agreement constitutes a valid and binding
agreement of the Borrower and each of its Notes has been duly executed and
delivered and constitutes a valid and binding obligation of the Borrower,
in each case enforceable in accordance with its terms except as the same
may be limited by bankruptcy, insolvency and other similar laws affecting
creditors' rights generally and by general principles of equity.
[4. Except as disclosed in the Borrower's Election to Participate,
there are no Taxes or Other Taxes of [jurisdiction of organization and, if
different, principal place of business], or any taxing authority thereof or
therein, which is imposed on any payment to be made by the Borrower
pursuant to the Credit Agreement or its Notes, or imposed on or by virtue
of the execution, delivery or enforcement of its Election to Participate,
the Credit Agreement or its Notes.]
EXHIBIT K
FORM OF NOTICE OF BORROWING
Date ___________
Bank of America, N.A.,
as Administrative Agent under the
Credit Agreement referred to below
Ladies and Gentlemen:
The undersigned (the "Borrower") refers to the Amended and Restated
Five-Year Credit Agreement dated as of December 8, 1999 (as the same may be
amended from time to time, the "Credit Agreement"), among IMC Global Inc.,
various financial institutions and Bank of America, N.A., as Administrative
Agent. Capitalized terms used but not defined herein have the meaning
assigned to such terms in the Credit Agreement. The Borrower hereby
notifies you, pursuant to Section [2.02] [2.03(f)] of the Credit Agreement,
of its election to make the following Borrowing:
1. Amount: _________________________________
2. Type of Borrowing: _________________________________
3. Date of Borrowing: _________________________________
4. Interest Period for
Fixed Rate Borrowing: _________________________________
5. Lender [for Swingline
Borrowing only]: _________________________________
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Borrowing,
before and immediately after giving effect thereto and to the application
of the proceeds therefrom:
(a) immediately after such Borrowing, (i) the sum of the aggregate
outstanding principal amount of the Loans and the aggregate amount of
Letters of Credit Liabilities will not exceed the aggregate amount of the
Commitments, (ii) the aggregate outstanding principal amount of Swingline
Loans will not exceed $25,000,000 and (iii) the aggregate amount of Letter
of Credit Liabilities will not exceed $100,000,000;
(b) no Default shall have occurred and be continuing; and
(c) the representations and warranties (other than the representation
and warranty set forth in Section 4.04(b) in the case of a Borrowing which
does not result in an increase in the sum of the aggregate outstanding
principal amount of the Loans and the aggregate Letter of Credit
Liabilities) of the Borrower contained in the Credit Agreement shall be
true on and as of the date of such Borrowing.
[NAME OF BORROWER]
By
Name:
Title:
EXHIBIT L
FORM OF NOTICE OF INTEREST RATE ELECTION
Date
Bank of America, N.A.,
as Administrative Agent under the
Credit Agreement referred to below
Ladies and Gentlemen:
The undersigned (the "Borrower") refers to the Amended and Restated
Five-Year Credit Agreement dated as of December 8, 1999 (as the same may be
amended from time to time, the "Credit Agreement"), among IMC Global Inc.,
various financial institutions and Bank of America, N.A., as Administrative
Agent. Capitalized terms used but not defined herein have the meaning
assigned to such terms in the Credit Agreement. The Borrower hereby
notifies you, pursuant to Section 2.10(a) of the Credit Agreement, of the
following interest rate election:
1. Group of Loans (or portion
thereof) to which election
applies
2. Effective date of election
3. New type of Loans [if
Loans are to be converted]
4. Duration of next succeeding
Interest Period [if Loans are
converted to Euro-Dollar Loans]
5. Additional Interest Period [if
Loans are continued as Euro-Dollar
Loans]
[NAME OF BORROWER]
By___________________________
Name:
Title:
