Exhibit 10.66
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of October 23, 1996
Between
IMC-AGRICO COMPANY
as Borrower
and
NATIONSBANK, N.A.
as Lender
U.S.$50,000,000
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is for convenience of reference only.
ARTICLE I
DEFINITIONS
SECTION 1.01. Basic Definitions 1
SECTION 1.02. Additional Definitions 1
SECTION 1.03. Amendment and Restatement of Earlier Credit Agreement 6
ARTICLE II
LOANS
SECTION 2.01. Committed Loans 7
SECTION 2.02. Money Market Loans 7
SECTION 2.03. Note 7
SECTION 2.04. Repayment of Loans 7
SECTION 2.05. Interest 7
SECTION 2.06. Borrowing Procedure 8
SECTION 2.07. Prepayments, Conversions, and Continuations of Loans 8
SECTION 2.08. Minimum Amounts 8
SECTION 2.09. Certain Notices 8
SECTION 2.10. Use of Proceeds 9
SECTION 2.11. Fees 9
SECTION 2.12. Computations 9
SECTION 2.13. Reduction or Termination of Commitment 10
SECTION 2.14. Payments 10
SECTION 2.15. Mandatory Prepayment 10
SECTION 2.16. Letter of Credit Subfacility 10
ARTICLE III
CHANGE IN CIRCUMSTANCES
SECTION 3.01. Increased Cost and Reduced Return 13
SECTION 3.02. Limitation on Types of Loans 14
SECTION 3.03. Illegality 14
SECTION 3.04. Compensation 14
SECTION 3.05 Taxes 14
ARTICLE IV
CONDITIONS
SECTION 4.01. Effectiveness of this Agreement 15
SECTION 4.02. Each Loan and Letter of Credit 15
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Existence 16
SECTION 5.02. Financial Statements 16
SECTION 5.03. Authorization; No Breach 16
SECTION 5.04. Litigation 16
SECTION 5.05. Enforceability 17
SECTION 5.06. Approvals 17
SECTION 5.07. Disclosure 17
ARTICLE VI
COVENANTS
SECTION 6.01. Information 17
SECTION 6.02. Obligations 18
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default 18
SECTION 7.02. Remedies 20
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Expenses 20
SECTION 8.02. Indemnification 21
SECTION 8.03. Right of Set-off. 21
SECTION 8.04. No Waiver; Cumulative Remedies 21
SECTION 8.05. Successors and Assigns 21
SECTION 8.06. Amendments 21
SECTION 8.07. Notices 22
SECTION 8.08. Counterparts 22
SECTION 8.09. Severability 22
SECTION 8.10. Controlling Agreement 22
SECTION 8.11. Survival 22
SECTION 8.12. Governing Law 22
SECTION 8.13. WAIVER OF JURY TRIAL 23
SECTION 8.14. ENTIRE AGREEMENT 23
Schedule 1.02 - Existing Letters of Credit
Exhibit A - Note
AMENDED AND RESTATED
CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT (the "Agreement") dated as
of October 23, 1996, between IMC-AGRICO COMPANY, a Delaware general
partnership (the "Borrower"), and NATIONSBANK, N.A., a national banking
association (the "Bank").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Basic Definitions. As used in this Agreement, the
following terms
have the following meanings:
"Applicable Margin" means:
(i) with respect to Base Rate Loans, zero percent (0%); and
(ii) with respect to Eurodollar Loans, one-half of one
percent (0.5%).
"Commitment" means the obligation of the Bank to make
Committed Loans and to issue Letters of Credit in an aggregate
principal amount at any time outstanding up to but not exceeding
$50,000,000, as the same may be reduced or terminated pursuant to
this Agreement.
"Commitment Fee" means a commitment fee on the daily average
unused amount of the Commitment from and including the date of
this Agreement to but excluding the Termination Date, at the rate
of one-eighth of one percent (0.125%) per annum, payable on each
Quarterly Date. For purposes of this definition, outstanding
Money Market Loans and Letters of Credit shall constitute a
utilization of the Commitment.
"Fees" means the Commitment Fee and the Letter of Credit Fee.
"Letter of Credit Fee" means a fee on the average daily
maximum amount available to be drawn under each Letter of Credit
from the date of issuance to the date of expiration, at the rate
of one-half of one percent (0.5%) per annum, payable on each
Quarterly Date.
"Principal Office" means the office of the Bank located at
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
"Termination Date" means February 28, 1997.
SECTION 1.02. Additional Definitions. As used in this Agreement,
the following terms have the following meanings:
"Adjusted Eurodollar Rate" means, for any Eurodollar Loan for
any Interest Period therefor, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) determined by the Bank
to be equal to the quotient obtained by dividing (a) the
Eurodollar Rate for such Eurodollar Loan for such Interest Period
by (b) 1 minus the Reserve Requirement for such Eurodollar Loan
for such Interest Period.
"Base Rate" means, for any day, the rate per annum equal to
the higher of (a) the Federal Funds Rate for such day plus one-
half of one percent (0.5%) and (b) the Prime Rate for such day.
Any change in the Base Rate due to a change in the Prime Rate or
the Federal Funds Rate shall be effective on the effective date of
such change in the Prime Rate or Federal Funds Rate.
"Base Rate Loans" means Loans that bear interest at rates
based upon the Base Rate.
"Business Day" means any day other than a Saturday, a Sunday,
a legal holiday or a day on which banking institutions are
authorized by law or other governmental action to close in
Charlotte, North Carolina or New York, New York; except that in
the case of Eurodollar Loans, such day is also a day on which
dealings between banks are carried on in U.S. dollar deposits in
the London interbank market.
"Committed Loans" has the meaning specified in Section 2.01.
"Continue", "Continuation", and "Continued" shall refer to a
continuation pursuant to Section 2.07 of a Fixed Rate Loan as a
Loan of the same Type from one Interest Period to the next
Interest Period.
"Convert", "Conversion", and "Converted" shall refer to the
conversion pursuant to Section 2.07 or Article III of one Type of
Loan into another Type of Loan.
"Debtor Relief Laws" means the Bankruptcy Code of the United
States of America and all other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, suspension of payments,
or similar debtor relief laws from time to time in effect
affecting the rights of creditors generally.
"Default" means an Event of Default or the occurrence of an
event or condition that with notice or lapse of time or both would
become an Event of Default.
"Default Rate" means, with respect to any principal of any
Loan, any reimbursement obligation in respect of any Letter of
Credit, or any other amount payable by the Borrower under this
Agreement or any other Loan Document that is not paid when due
(whether at stated maturity, by acceleration, or otherwise), a
rate per annum during the period from and including the due date
to but excluding the date on which such amount is paid in full
equal to two percent (2%) plus the Base Rate as in effect from
time to time plus the Applicable Margin for Base Rate Loans
(provided that, if the amount in default is principal of a Fixed
Rate Loan and the due date thereof is a day other than the last
day of the Interest Period therefor, the "Default Rate" for such
principal shall be, for the period from and including the due date
and to but excluding the last day of the Interest Period therefor,
two percent (2%) plus the interest rate for such Loan as provided
in Section 2.05(b) or (c), as the case may be, and, thereafter,
the rate provided for above in this definition).
"Dollars" and "$" mean lawful money of the United States of
America.
"Earlier Credit Agreement" has the meaning assigned to that
term in Section 1.03.
"Effective Date" means October 23, 1996.
"Eurodollar Loans" means Loans that bear interest at rates
based upon the Adjusted Eurodollar Rate.
"Eurodollar Rate" means, for any Eurodollar Loan for any
Interest Period therefor, the rate per annum appearing on Telerate
Page 3750 (or any successor page) as the London interbank offered
rate for deposits in Dollars at approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any
reason such rate is not available, the term "Eurodollar Rate"
shall mean, for any Eurodollar Loan for any Interest Period
therefor, the rate per annum appearing on Reuters Screen LIBO Page
as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to
such Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall
be the arithmetic mean of all such rates.
"Event of Default" has the meaning specified in Section 7.01.
"Existing Letters of Credit" means those standby letters of
credit issued by the Bank (formerly known as NationsBank, N.A.
(Carolinas)) for the account of the Borrower and outstanding on
the date hereof, as more particularly identified on Schedule 1.02
hereof, as such letters of credit have been or may hereafter be
amended, modified, extended, renewed or replaced from time to
time.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 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 Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds
Rate for such day shall be the average rate charged to the Bank on
such day on such transactions as determined by the Bank.
"Financial Statements" means the financial statements of the
Borrower and the Subsidiaries dated as of June 30, 1995, and for
the fiscal year then ended, furnished to the Bank prior to the
date of this Agreement.
"Fixed Rate Loans" means Eurodollar Loans and Money Market
Loans.
"Governmental Authority" means any nation or government, any
state or political subdivision thereof, any central bank (or
similar monetary or regulatory authority), and any entity
exercising executive, legislative, judicial, regulatory, or
administrative functions of or pertaining to government.
"Interest Period" means:
(i) with respect to any Eurodollar Loan, each period
commencing on the date such Loan is made or Converted from a Loan
of another Type or the last day of the next preceding Interest
Period with respect to such Loan, and ending on the numerically
corresponding day in the first, second, third, or sixth calendar
month thereafter, as the Borrower may select as provided in
Section 2.09, except that each such Interest Period which
commences on the last Business Day of a calendar month (or on any
day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last
Business Day of the appropriate subsequent calendar month; and
(ii) with respect to any Money Market Loan, each period
commencing on the date such Loan is made or Converted from a Loan
of another Type or the last day of the preceding Interest Period
with respect to such Loan, and ending on the number of days
thereafter (but not less than 1 or more than 180 days) as may be
agreed to by the Borrower and the Bank pursuant to Section 2.02.
Notwithstanding the foregoing: (a) each Interest Period which
would otherwise end on a day which is not a Business Day shall end
on the next succeeding Business Day (or, in the case of an
Interest Period for Eurodollar Loans, if such succeeding Business
Day falls in the next succeeding calendar month, on the next
preceding Business Day); (b) any Interest Period which would
otherwise extend beyond the Termination Date shall end on the
Termination Date; (c) no more than 10 Interest Periods for each
Type of Fixed Rate Loan shall be in effect at the same time; and
(d) no Interest Period for any Fixed Rate Loan shall have a
duration of less than 1 month (in the case of Eurodollar Loans) or
1 day (in the case of Money Market Loans) and, if the Interest
Period for any Fixed Rate Loan would otherwise be a shorter
period, such Loan shall not be available hereunder.
"Letter of Credit" means an Existing Letter of Credit or a
standby letter of credit issued pursuant to the provisions of
Section 2.16, as the same may be amended, modified, extended,
renewed or replaced from time to time.
"Loan Documents" means this Agreement, the Note, the LOC
Documents, and all other documents, instruments, and agreements
executed or delivered pursuant to or in connection with this
Agreement, as the same may be amended, modified, renewed,
extended, or supplemented.
"Loan Party" means the Borrower or any Person that guaranties
or secures any or all of the Borrower's obligations under the Loan
Documents.
"Loans" means Committed Loans and Money Market Loans.
"LOC Documents" means, with respect to any Letter of Credit,
such Letter of Credit, any amendments thereto, any documents
delivered in connection therewith, any application therefor, and
any agreements, instruments, guarantees or other documents
(whether general in application or applicable only to such Letter
of Credit) governing or providing for (i) the rights and
obligations of the parties concerned or at risk or (ii) any
collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (i) the
maximum face amount which is, or at any time thereafter may
become, available to be drawn under Letters of Credit then
outstanding, assuming compliance with all requirements for
drawings referred to in such Letters of Credit plus (ii) the
aggregate face amount of all drawings under Letters of Credit
honored by the Bank but not theretofore reimbursed (whether by
payment in cash or through a Loan), minus (iii) all cash
collateral provided with respect to any Letter of Credit.
"Material Adverse Effect" means a material adverse effect on
(a) the operations or financial condition of the Borrower, (b) the
ability of the Borrower to perform its obligations under this
Agreement, or (c) the validity or enforceability of any Loan
Document or the rights and remedies of the Bank thereunder.
"Money Market Loan" has the meaning specified in Section
2.02.
"Money Market Rate" has the meaning specified in Section
2.02.
"Note" has the meaning specified in Section 2.03.
"Person" means any individual, corporation, company, joint
venture, association, partnership, trust, unincorporated
organization, Governmental Authority, or other entity.
"Prime Rate" means the per annum rate of interest established
from time to time by the Bank as its prime rate, which rate may
not be the lowest rate of interest charged by the Bank to its
customers.
"Quarterly Date" means the last day of each March, June,
September, and December of each year, the first of which shall be
the first such day after the date of this Agreement.
"Regulation D" means Regulation D of the Board of Governors
of the Federal Reserve System, as in effect from time to time.
"Reserve Requirement" means, at any time, the maximum rate at
which reserves (including any marginal, special, supplemental, or
emergency reserves) are required to be maintained under
regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) by member banks of
the Federal Reserve System in New York City with deposits
exceeding one billion Dollars against "Eurocurrency liabilities"
(as such term is used in Regulation D). Without limiting the
effect of the foregoing, the Reserve Requirement shall reflect any
other reserves required to be maintained by such member banks with
respect to (i) any category of liabilities which includes deposits
by reference to which the Adjusted Eurodollar Rate is to be
determined, or (ii) any category of extensions of credit or other
assets which include Eurodollar Loans. The Adjusted Eurodollar
Rate shall be adjusted automatically on and as of the effective
date of any change in the Reserve Requirement.
"Subsidiary" means, 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 the Borrower.
"Type" means any type of Loan (i.e., Base Rate Loan,
Eurodollar Loan, or Money Market Loan).
SECTION 1.03. Amendment and Restatement of Earlier Credit
Agreement.
(a) This Agreement amends and restates in its entirety that
certain Credit Agreement dated as of May 14, 1996 between the Borrower
and the Bank (the "Earlier Credit Agreement"). The Borrower and the
Bank agree that, upon (i) the execution and delivery by each of the
parties hereto of this Agreement and (ii) satisfaction of the
conditions precedent set forth in Section 4.01, the terms and
provisions of the Earlier Credit Agreement shall, effective as of the
Effective Date, be amended, restated and superseded in their entirety
by the terms and provisions of this Agreement. This Agreement is not
intended to and shall not constitute a novation. All Loans and other
obligations under the Earlier Credit Agreement which are outstanding on
the Effective Date shall continue as Loans and obligations under (and
shall be governed by the terms of) this Agreement. The Note executed
and delivered by the Borrower to the Bank in connection with the
Earlier Credit Agreement shall remain in full force and effect and
shall continue to evidence the Borrower's obligation to pay principal
of and interest on the Loans; provided that, notwithstanding anything
to the contrary contained therein, such Note shall be governed by and
construed in accordance with the laws of the State of New York,
including without limitation Section 5-1401 of the General Obligations
Law, but otherwise without regard to conflicts of law principles, and
the applicable laws of the United States of America.
(b) Upon the effectiveness of this Agreement, each reference to
the Earlier Credit Agreement in any other instrument, document or
agreement executed and/or delivered in connection therewith shall mean
and be a reference to this Agreement.
ARTICLE II
LOANS
SECTION 2.01. Committed Loans. Subject to the terms and
conditions of this Agreement, the Bank agrees to make one or more loans
("Committed Loans") to the Borrower from time to time from and
including the date hereof to but excluding the Termination Date,
provided that the sum of (i) the aggregate principal amount of the
Loans outstanding plus (ii) the aggregate amount of all LOC
Obligations, shall not at any time exceed the amount of the Commitment.
Subject to the foregoing limitations, and the other terms and
provisions of this Agreement, the Borrower may borrow, repay, and
reborrow hereunder within the limits of the Commitment by means of Base
Rate Loans and Eurodollar Loans.
SECTION 2.02. Money Market Loans. In addition to Committed Loans
pursuant to Section 2.01, the Borrower in accordance with the terms
hereof may from time to time to but excluding the Termination Date
request offers from the Bank for loans (each a "Money Market Loan") on
a specific date, at a fixed rate of interest (the "Money Market Rate"),
and for an Interest Period quoted by the Bank. Upon receipt of each
such request for a Money Market Loan offer, the Bank may, but shall
have no obligation to, offer to make such Money Market Loan on such
terms and conditions as the Bank may determine at such time. The
Borrower may accept each such offer for a Money Market Loan by
submitting to the Bank a notice of borrowing pursuant to Section 2.09.
SECTION 2.03. Note. The Loans made by the Bank shall be
evidenced by that certain promissory note of the Borrower in
substantially the form of Exhibit A, dated May 14, 1996 and executed
and delivered pursuant to the Earlier Credit Agreement, payable to the
order of the Bank in a principal amount equal to the Commitment as
originally in effect and otherwise duly completed (as from time to time
amended, modified, renewed, or extended, the "Note").
SECTION 2.04. Repayment of Loans. The Borrower shall pay to the
Bank the outstanding principal amount of the Loans on the Termination
Date.
SECTION 2.05. Interest. The Borrower shall pay to the Bank
interest on the unpaid principal amount of each Loan for the period
commencing on the date of such Loan to but excluding the date such Loan
shall be paid in full, at the following rates per annum:
(a) during the periods such Loan is a Base Rate Loan, the
Base Rate plus the Applicable Margin;
(b) during the periods such Loan is a Eurodollar Loan, the
Adjusted Eurodollar Rate plus the Applicable Margin; and
(c) during the periods such Loan is a Money Market Loan, the
Money Market Rate for such Loan.
Notwithstanding the foregoing, the Borrower shall pay to the Bank
interest at the Default Rate on any principal of any Loan and (to the
fullest extent permitted by law) on any other amount payable by the
Borrower under this Agreement or any other Loan Document which is not
paid in full when due (whether at stated maturity, by acceleration, or
otherwise), for the period from and including the due date thereof to
but excluding the date the same is paid in full. Accrued interest on
the Loans shall be due and payable as follows: (i) in the case of Base
Rate Loans, on each Quarterly Date; (ii) in the case of each Eurodollar
Loan, on the last day of the Interest Period with respect thereto and,
in the case of an Interest Period greater than three months, at
three-month intervals after the first day of such Interest Period;
(iii) in the case of each Money Market Loan, on the last day of the
Interest Period with respect thereto and, in the case of an Interest
Period greater than 90 days, at 90-day intervals after the first day of
such Interest Period; (iv) upon the payment or prepayment of any Loan
or the Conversion of any Loan to a Loan of another Type (but only on
the principal amount so paid, prepaid, or Converted); and (v) on the
Termination Date; provided that interest payable at the Default Rate
shall be payable from time to time on demand.
SECTION 2.06. Borrowing Procedure. The Borrower shall give the
Bank notice of each borrowing hereunder in accordance with Section
2.09. Not later than 2:00 p.m. (at the Principal Office) on the date
specified for each borrowing hereunder, the Bank will make available
the amount of the Loan to be made by it on such date to the Borrower by
depositing the same, in immediately available funds, in an account of
the Borrower (designated by the Borrower) maintained with the Bank at
the Principal Office, or as otherwise directed by the Borrower.
SECTION 2.07. Prepayments, Conversions, and Continuations of
Loans. Subject to Section 2.08, the Borrower shall have the right from
time to time to prepay the Loans, or to Convert all or part of a Loan
of one Type into a Loan of another Type or to Continue Fixed Rate Loans
of one Type as Fixed Rate Loans of the same Type, provided that: (a)
the Borrower shall give the Bank notice of each such prepayment,
Conversion, or Continuation as provided in Section 2.09, (b) Fixed Rate
Loans may only be Converted on the last day of the Interest Period, (c)
the Borrower may not Continue a Money Market Loan or Convert a Loan
into a Money Market Loan unless the Borrower and the Bank shall have
agreed upon the rate of interest and the Interest Period for such Loan
in accordance with Section 2.02, and (d) except for Conversions into
Base Rate Loans, no Conversions or Continuations shall be made while a
Default has occurred and is continuing.
SECTION 2.08. Minimum Amounts. Except for Conversions and
prepayments pursuant to Section 2.15 and Article III and Committed
Loans made pursuant to Section 2.16 to satisfy the Borrower's
reimbursement obligations in respect of a Letter of Credit, each
borrowing, each Conversion, and each prepayment of principal of the
Loans shall be in an amount at least equal to $1,000,000. Anything in
this Agreement to the contrary notwithstanding, the aggregate principal
amount of Fixed Rate Loans of the same Type having the same Interest
Period shall be at least equal to $1,000,000.
SECTION 2.09. Certain Notices. Notices by the Borrower to the
Bank of a termination or reduction of the Commitment, of borrowings,
Conversions, Continuations and optional prepayments of Loans and of the
duration of Interest Periods shall be irrevocable and shall be
effective only if received by the Bank not later than 11:00 a.m. (local
time at the Principal Office) on the number of Business Days prior to
the date of the relevant termination, reduction, borrowing, Conversion,
Continuation, or prepayment or the first day of such Interest Period
specified below:
Number of Business
Notice Days Prior
Termination or reduction of
Commitment 1
Borrowing or prepayment of,
or Conversions into, Base
Rate Loans same day
Borrowing or prepayment of,
Conversions into,
Continuations as, or
duration of Interest Periods
for, Eurodollar Loans 3
Borrowing or prepayment of, or
Conversions into,
Continuations as, or
duration of Interest Periods same day
for,
Money Market Loans
Each such notice of termination or reduction shall specify the amount
of the Commitment to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation, or optional prepayment shall
specify (a) the amount and Type of the Loan to be borrowed, Converted,
Continued, or prepaid (and, in the case of a Conversion, the Type of
Loan to result from such Conversion), (b) the date of borrowing,
Conversion, Continuation, or prepayment (which shall be a Business
Day), and (c) in the case of a borrowing of a Fixed Rate Loan,
Conversion, or Continuation, the duration of the Interest Period. In
the event the Borrower fails to select the Type of Loan, or the
duration of any Interest Period for any Fixed Rate Loan, within the
time period and otherwise as provided in this Section 2.09, such Loan
(if outstanding as a Fixed Rate Loan) will be automatically Converted
into a Base Rate Loan on the last day of the preceding Interest Period
for such Loan or (if outstanding as a Base Rate Loan) will remain as,
or (if not then outstanding) will be made as, a Base Rate Loan.
SECTION 2.10. Use of Proceeds. The proceeds of the Loans shall
be used by the Borrower for general corporate purposes. The Borrower
will not, directly or indirectly, use any part of such proceeds for the
purpose of purchasing or carrying any margin stock within the meaning
of Regulations G, U, T, or X of the Board of Governors of the Federal
Reserve System.
SECTION 2.11. Fees. The Borrower agrees to pay to the Bank the
Fees as specified herein. In addition, the Borrower shall pay to the
Bank the customary charges from time to time of the Bank with respect
to the issuance, amendment, transfer, administration, cancellation and
conversion of, and drawings under, the Letters of Credit to the extent
set forth in the LOC documents.
SECTION 2.12. Computations. Interest and Fees payable by the
Borrower hereunder and under the other Loan Documents shall be computed
on the basis of a year of 365/366 days and the actual number of days
elapsed (including the first day but excluding the last day) occurring
in the period for which payable, except with respect to Eurodollar
Loans which shall be computed based on a year of 360 days.
SECTION 2.13. Reduction or Termination of Commitment. The
Borrower shall have the right to irrevocably terminate or reduce in
part the unused portion of the Commitment at any time and from time to
time, provided that: (a) the Borrower shall give notice of each such
termination or reduction as provided in Section 2.09; and (b) each
partial reduction shall be in an aggregate amount at least equal to
$1,000,000.
SECTION 2.14. Payments. All payments of principal, interest, and
other amounts to be made by the Borrower under this Agreement and other
Loan Documents shall be made to the Bank at the Principal Office in
Dollars and in immediately available funds, without setoff, deduction,
or counterclaim. Whenever any payment under this Agreement or any
other Loan Document shall be stated to be due on a day that is not a
Business Day, such payment may be made on the next succeeding Business
Day, and such extension of time in such case shall be included in the
computation of interest and Fees, as applicable and as the case may be.
SECTION 2.15. Mandatory. If at any time the sum of (i) the
outstanding principal amount of the Loans plus (ii) the aggregate
amount of LOC Obligations exceeds the Commitment, the Borrower shall
immediately make a prepayment of the Loans and/or provide cash
collateral in respect of the LOC Obligations in an aggregate amount
equal to the excess.
SECTION 2.16. Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof and of
the LOC Documents, if any, and any other terms and conditions which the
Bank may reasonably require, the Bank shall issue from time to time
such Letters of Credit from the date hereof until the Termination Date
as the Borrower may request in a form acceptable to the Bank; provided,
however, that no Letter of Credit will be issued if on the date of
issuance, before and after taking such Letter of Credit into account,
(i) the LOC Obligations at such time would exceed $15,000,000 or (ii)
the principal amount of the Loans outstanding plus the LOC Obligations
would exceed the Commitment. Except for the Existing Letters of Credit
and except as otherwise expressly agreed by the Bank, no Letter of
Credit shall have an original expiry date more than one year from the
date of issuance; provided, however, so long as no Default or Event of
Default has occurred and is continuing and subject to the other terms
and conditions to the issuance of Letters of Credit hereunder and at
the request of the Borrower, the expiry dates of Letters of Credit
may, in the Bank's sole discretion, be extended annually on each
anniversary date of their date of issuance for an additional one year
period. If the Bank elects not to extend any Letter of Credit, it
shall take such action, if any, as is required to be taken by it under
the applicable LOC Documents. Each Letter of Credit shall comply with
the related LOC Documents. The issuance and expiry date of each Letter
of Credit shall be a Business Day.
(b) Request for Issuance. Any request for the issuance of a
Letter of Credit shall be submitted to the Bank at least three (3)
Business Days prior to the requested date of issuance.
(c) Reimbursement. The Borrower shall reimburse the Bank in same
day funds for each drawing made under a Letter of Credit on the day of
such drawing. In the event of any drawing under any Letter of Credit,
the Bank will promptly notify the Borrower. Unless the Borrower shall
immediately notify the Bank of its intent to otherwise reimburse the
Bank, the Borrower shall be deemed to have requested a Committed Loan
in the amount of the drawing, the proceeds of which will be used to
satisfy the reimbursement obligations in respect of such drawing. Each
such Committed Loan will be a Base Rate Loan or, if the Borrower shall
have provided a notice of borrowing requesting that such Committed Loan
be a Eurodollar Loan in accordance with Section 2.09, a Eurodollar
Loan. If the Borrower shall not have arranged for the reimbursement of
the Bank as provided hereinabove and Committed Loans are not available
on such date for the reimbursement of the drawing under the Letter of
Credit, the unreimbursed amount of such drawing shall bear interest
from and after such date until paid in full at the Default Rate. The
Borrower's reimbursement obligations hereunder shall be absolute and
unconditional under all circumstances irrespective of any rights of set-
off, counterclaim or defense to payment the Borrower may claim or have
against the Bank, the beneficiary of the Letter of Credit drawn upon or
any other Person, including without limitation any defense based on any
failure of the Borrower to receive consideration or the legality,
validity, regularity or unenforceability of the Letter of Credit.
(d) Uniform Customs and Practices. The Bank may have the Letters
of Credit be subject to the Uniform Customs and Practice for
Documentary Credits, as published as of the date of issue by the
International Chamber of Commerce (the "UCP"), in which case the UCP
may be incorporated therein and deemed in all respects to be a part
thereof.
(e) Indemnification; Nature of Bank's Duties.
(i) In addition to its other obligations under this
Agreement, the Borrower hereby agrees to protect, indemnify, pay
and save the Bank harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) that the Bank may incur or
be subject to as a direct consequence of (A) the issuance of any
Letter of Credit or (B) the failure of the Bank to honor a drawing
under a Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or
de facto government or governmental authority (all such acts or
omissions, herein called "Government Acts").
(ii) As between the Borrower and the Bank, the Borrower shall
assume all risks of the acts, omissions or misuse of any Letter of
Credit by the beneficiary thereof. The Bank shall not be
responsible: (A) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party
in connection with the application for and issuance of any Letter
of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged;
(B) for the validity or sufficiency of any instrument transferring
or assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, that may prove to be invalid or ineffective
for any reason; (C) for failure of the beneficiary of a Letter of
Credit to comply fully with conditions required in order to draw
upon a Letter of Credit; (D) for errors, omissions, interruptions
or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex or otherwise, whether or not they be in
cipher; (E) for any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under a Letter
of Credit or of the proceeds thereof; and (F) for any consequences
arising from causes beyond the control of the Bank, including,
without limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of the Bank's rights or
powers hereunder.
(iii) In furtherance and extension and not in limitation
of the specific provisions hereinabove set forth, any action taken
or omitted by the Bank, under or in connection with any Letter of
Credit or the related certificates, if taken or omitted in good
faith, shall not put such Bank under any resulting liability to
the Borrower. It is the intention of the parties that this
Agreement shall be construed and applied to protect and indemnify
the Bank against any and all risks involved in the issuance of the
Letters of Credit, all of which risks are hereby assumed by the
Borrower, including, without limitation, any and all risks of the
acts or omissions, whether rightful or wrongful, of any present or
future Government Acts. The Bank shall not, in any way, be liable
for any failure by the Bank or anyone else to pay any drawing
under any Letter of Credit as a result of any Government Acts or
any other cause beyond the control of the Bank.
(iv) The obligations of the Borrower under this Section 2.16
shall survive the termination of this Agreement. No act or
omissions of any current or prior beneficiary of a Letter of
Credit shall in any way affect or impair the rights of the Bank to
enforce any right, power or benefit under this Agreement.
(v) Notwithstanding anything to the contrary contained in
this Section 2.16, the Borrower shall have no obligation to
indemnify the Bank pursuant to this or any other section of this
Agreement in respect of any liability incurred by the Bank arising
directly out of the gross negligence or willful misconduct of the
Bank.
(f) Termination Date. If any Letter of Credit remains
outstanding upon the occurrence of the Termination Date, the Borrower
shall, upon demand by the Bank provide one or more of the following to
the Bank (such election being at the Borrower's option):
(i) to the extent not already provided to the Bank, provide
cash collateral to the Bank on such Termination Date in an amount
equal to the maximum amount available to be drawn under such
Letter of Credit,
(ii) cause the original of such Letter of Credit to be
returned to the Bank, or
(iii) deliver to the Bank a letter of credit,
indemnification or other comparable form of credit enhancement
acceptable to the Bank, in support of the Borrower's reimbursement
obligations in respect of such Letter of Credit, which letter of
credit, indemnification or other credit enhancement shall (i) have
a stated amount equal to the maximum amount available to be drawn
under such Letter of Credit, (ii) not expire prior to the tenth
Business Day following the expiry date of such Letter of Credit,
(iii) be issued by an issuer reasonably acceptable to the Bank and
(iv) otherwise be in form and substance reasonably satisfactory to
the Bank.
ARTICLE III
CHANGE IN CIRCUMSTANCES
SECTION 3.01. Increased Cost and Reduced Return.
(a) If the Bank shall have determined that 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 charged with the
interpretation or administration thereof, or compliance by the Bank
with any request or directive (whether or not having the force of law)
of any such Governmental Authority:
(i) shall change the basis of taxation of any amounts
payable to the Bank under this Agreement or the Note in respect of
any Fixed Rate Loans or LOC Obligations (other than taxes imposed
on the overall net income of the Bank by the jurisdiction in which
the Bank has its Principal Office);
(ii) shall impose or modify any reserve, special
deposit, or similar requirement (other than the Reserve
Requirement utilized in the determination of the Adjusted
Eurodollar Rate) relating to any extensions of credit or other
assets of, or any deposits with or other liabilities or
commitments of, the Bank (including the Commitment); or
(iii) shall impose on the Bank or on the London interbank
market any other condition affecting this Agreement or the Note or
any of such extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to the
Bank of making or maintaining any Fixed Rate Loans or of issuing and
maintaining Letters of Credit or to reduce any sum received or
receivable by the Bank under this Agreement, the Note or any LOC
Document, then the Borrower shall pay to the Bank on demand such amount
or amounts as will compensate the Bank for such increased cost or
reduction.
(b) If the Bank shall have determined that the adoption of any
applicable law, rule, or regulation regarding capital adequacy or any
change therein or in the interpretation or administration thereof by
any Governmental Authority 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
Governmental Authority, has or would have the effect of reducing the
rate of return on the capital of the Bank as a consequence of the
Bank's obligations hereunder to a level below that which the Bank 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 the Bank to be material, then from
time to time upon demand the Borrower shall pay to the Bank such
additional amount or amounts as will compensate the Bank for such
reduction.
(c) A certificate of the Bank claiming compensation under this
Section and setting forth the additional amount or amounts to be paid
to it hereunder shall be conclusive in the absence of clearly
demonstrable error. In determining such amount, the Bank may use any
reasonable averaging and attribution methods.
SECTION 3.02. Limitation on Types of Loans. If on or prior to
the first day of any Interest Period for any Eurodollar Loan:
(a) the Bank determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period; or
(b) the Bank determines (which determination shall be
conclusive) that the Adjusted Eurodollar Rate will not adequately
and fairly reflect the cost to the Bank of funding Eurodollar
Loans for such Interest Period;
then the Bank shall give the Borrower prompt notice thereof specifying
the relevant Type of Loans and the relevant amounts or periods, and so
long as such condition remains in effect, the Bank shall be under no
obligation to make additional Eurodollar Loans, Continue Eurodollar
Loans, or to Convert Loans of any other Type into Eurodollar Loans and
the Borrower shall, on the last day(s) of the then current Interest
Period(s) for the outstanding Eurodollar Loans, either prepay such
Loans or Convert such Loans into another Type of Loan in accordance
with the terms of this Agreement.
SECTION 3.03. Illegality. Notwithstanding any other provision of
this Agreement, in the event that it becomes unlawful for the Bank to
make, maintain, or fund Eurodollar Loans hereunder, then the Bank shall
promptly notify the Borrower thereof and the Bank's obligation to make
or Continue Eurodollar Loans and to Convert other Types of Loans into
Eurodollar Loans shall be suspended until such time as the Bank may
again make, maintain, and fund Eurodollar Loans and the Borrower shall,
on the last day of the Interest Period for each outstanding Eurodollar
Loan (or earlier, if required by law), either prepay such Loans or
Convert such Loans into Base Rate Loans in accordance with the terms of
this Agreement.
SECTION 3.04. Compensation. Upon the request of the Bank, the
Borrower shall pay to the Bank such amount or amounts as shall be
sufficient (in the reasonable opinion of the Bank) to compensate it for
any loss, cost, or expense incurred by it as a result of:
(a) any payment, prepayment or Conversion of a Fixed Rate
Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 7.02) on a date
other than the last day of an Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any conditions precedent
specified in Article IV to be satisfied) to borrow, Convert,
Continue, or prepay a Fixed Rate Loan on the date for such
borrowing, Conversion, Continuation, or prepayment specified in
the relevant notice of borrowing, prepayment, Continuation, or
Conversion under this Agreement.
Without limiting the effect of the preceding sentence, such
compensation shall include any loss incurred in obtaining, liquidating,
or employing deposits from third parties.
SECTION 3.05 Taxes. (a) Any and all payments by the Borrower
to or for the account of the Bank hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of the Bank, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the laws of
which the Bank is organized or any political subdivision thereof (all
such non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder or under any Loan
Document to the Bank, (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
3.05) the Bank receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make
such deductions, (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance
with applicable law, and (iv) the Borrower shall furnish to the Bank,
at its address referred to in Section 8.07, the original or a certified
copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present
or future stamp or documentary taxes and any other excise or property
taxes or charges or similar levies which arise from any payment made
hereunder or under any other Loan Document or from the execution or
delivery of, or otherwise with respect to, this Agreement or any other
Loan Document (hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify the Bank for the full amount
of Taxes and Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section 3.05) paid by the Bank and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto.
ARTICLE IV
CONDITIONS
SECTION 4.01. Effectiveness of this. This Agreement shall become
effective as of the Effective Date subject to the condition precedent
that the Bank shall have received duly executed counterpart signature
pages to this Agreement on or prior to such date.
SECTION 4.02. Each Loan and Letter of Credit. The obligation of
the Bank to make any Loan or to issue any Letter of Credit is subject
to the satisfaction of the following conditions precedent:
(a) receipt by the Bank of (i) in the case of a Loan, a
notice of borrowing in accordance with Section 2.06 and (ii) in
the case of a Letter of Credit, a request for the issuance thereof
in accordance with Section 2.16(b);
(b) the fact that immediately after the making of such Loan
or the issuance of such Letter of Credit, as applicable, the sum
of (i) the aggregate outstanding principal amount of the Loans
plus (ii) the aggregate amount of the LOC Obligations, will not
exceed the amount of the Commitment;
(c) the fact that, immediately before and after such Loan or
the issuance of such Letter of Credit, as applicable, no Default
shall have occurred and be continuing; and
(d) the fact that the representations and warranties of the
Borrower contained in this Agreement and the other Loan Documents
shall be true and correct on and as of the date such Loan is made
or such Letter of Credit is issued, as applicable.
Each borrowing hereunder and each issuance of a Letter of Credit shall
be deemed to be a representation and warranty by the Borrower on the
date of such borrowing or such issuance, as applicable, that the
conditions precedent specified in clauses (b), (c), and (d) of this
Section have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into this Agreement, the Borrower
represents and warrants to the Bank that:
SECTION 5.01. Existence. The Borrower and each Subsidiary (a) is
duly organized, validly existing, and in good standing under the laws
of the jurisdiction of its organization; and (b) has the requisite
power and authority and legal right to own its assets and carry on its
business as now being or as proposed to be conducted. The Borrower has
the power, authority, and legal right to execute, deliver, and perform
its obligations under the Loan Documents.
SECTION 5.02. Financial Statements. The Financial Statements are
complete and correct, have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis, and
fairly and accurately present the financial condition of the Borrower
and the Subsidiaries as of the respective dates indicated therein and
the results of operations for the respective periods indicated therein.
Since the date of the Financial Statements, no event or condition has
occurred that could have a Material Adverse Effect.
SECTION 5.03. Authorization; No Breach. The execution, delivery,
and performance by the Borrower of the Loan Documents to which it is a
party and compliance with the terms and provisions thereof have been
duly authorized by all requisite action on the part of the Borrower and
do not and will not (a) violate or conflict with, or result in a breach
of, or require any consent under (i) the articles of incorporation,
bylaws, or other organizational documents of the Borrower or any of the
Subsidiaries, (ii) any applicable law, rule, or regulation or any
order, writ, injunction, or decree of any Governmental Authority or
arbitrator, or (iii) any agreement or instrument to which the Borrower
or any of the Subsidiaries is a party or by which any of them or any of
their property is bound or subject, or (b) constitute a default under
any such agreement or instrument.
SECTION 5.04. Litigation. Except as previously disclosed to the
Bank in a Disclosure Letter dated March 1, 1996, provided by IMC Global
Inc., et al., there is no action, suit, investigation, or proceeding
before or by any Governmental Authority or arbitrator pending, or to
the knowledge of the Borrower, threatened against or affecting the
Borrower or any Subsidiary, that could, if adversely determined, have a
Material Adverse Effect.
SECTION 5.05. Enforceability. This Agreement, the Note and all
other Loan Documents executed and delivered by the Borrower on or prior
to the date hereof constitute, and the other Loan Documents when
executed and delivered by the Borrower shall constitute, the legal,
valid, and binding obligations of the Borrower, enforceable against the
Borrower in accordance with their respective terms, except as limited
by applicable Debtor Relief Laws and general principles of equity.
SECTION 5.06. Approvals. No authorization, approval, or consent
of, and no filing or registration with, any Governmental Authority or
third party is or will be necessary for the execution, delivery, or
performance by the Borrower of any of the Loan Documents to which it is
a party or for the validity or enforceability thereof.
SECTION 5.07. Disclosure. No statement, information, report,
representation, or warranty made by the Borrower in any Loan Document
or furnished to the Bank in connection with any Loan Document contains
any untrue statement of a material fact or omits to state any material
fact necessary to make the statements herein or therein not misleading.
ARTICLE VI
COVENANTS
The Borrower agrees that, so long as the Bank has any Commitment
hereunder or any amount payable under the Note or any LOC Obligation
remains unpaid:
SECTION 6.01. Information. The Borrower shall deliver to the
Bank:
(a) as soon as available and in any event within 90 days
after the end of each fiscal year of the Borrower a consolidated
balance sheet of the Borrower and the Subsidiaries as of the end
of such fiscal year and the related consolidated statements of
income and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year,
all prepared in accordance with generally accepted accounting
principles applied on a consistent basis and certified by
independent public accountants of nationally recognized standing;
(b) as soon as available and in any event within 45 days
after the end of each of the first three quarters of each fiscal
year of the Borrower a consolidated balance sheet of the Borrower
and the Subsidiaries as of the end of such quarter and the related
consolidated statements of income and cash flows for such quarter
and for the portion of the Borrower'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 Borrower's previous fiscal year, all in reasonable
detail and duly certified (subject to normal year-end adjustments)
by the chief financial officer or treasurer of the Borrower as
having been prepared in accordance with generally accepted
accounting principles applied on a consistent basis;
(c) within three (3) days after any officer of the Borrower
obtains knowledge of any Default, a certificate of the chief
financial officer or treasurer of the Borrower setting forth the
details thereof and any action which the Borrower is taking or
proposes to take with respect thereto; and
(d) from time to time such additional information regarding
the financial condition or business of the Borrower and the
Subsidiaries as the Bank may reasonably request.
SECTION 6.02. Obligations. The Borrower shall, and shall cause
each of the Subsidiaries to:
(a) preserve and maintain all of its rights, privileges, and
franchises necessary or desirable in the normal conduct of its
business;
(b) comply with all applicable laws, rules, regulations and
orders of, and all applicable restrictions imposed by all
applicable Governmental Authorities applicable to it and its
property (including applicable statutes, regulations, orders and
restrictions relating to environmental standards and controls) if
noncompliance with any such law, rule, regulation or restriction
would have a Material Adverse Effect;
(c) pay and discharge when due all taxes, assessments, and
governmental charges or levies imposed on it or on its income or
profits or any of its property, except for any such tax,
assessment, charge, or levy the payment of which is being
contested in good faith and by proper proceedings and against
which adequate reserves are being maintained;
(d) subject to prudent business management, maintain and
preserve its properties and equipment used or useful in its
business (in whomsoever's possession as they may be) in good
repair, working order and condition, normal wear and tear
excepted, and make, or cause to be made, in such properties and
equipment from time to time all repairs, renewals, replacements,
extensions, additions, betterments and improvements thereto as may
be needed or proper, to the extent and in the manner customary for
companies in similar businesses.
(e) permit representatives of the Bank, during normal
business hours, to examine, copy, and make extracts from its books
and records, to inspect its properties, and to discuss its
business and affairs with its officers, directors, and
accountants; and
(f) maintain insurance in such amounts, with such
deductibles, and against such risks as is customary for similarly
situated businesses.
ARTICLE VII
DEFAULT
SECTION 7.01. Events of. Each of the following shall constitute
an "Event of Default":
(a) (i) The Borrower shall fail to pay when due any
principal of any Loan or any reimbursement obligation arising from
a drawing under a Letter of Credit, or (ii) the Borrower shall
fail to pay when due any interest on any Loan, or any Loan Party
shall fail to pay when due any other amount payable under any Loan
Document and any such default specified in this clause (ii) shall
continue for five or more days.
(b) Any representation, warranty, certification, or
statement made or deemed made by any Loan Party (or any of its
officers) in any Loan Document or in any certificate, financial
statement, or other document delivered pursuant thereto shall be
false, misleading, or incorrect in any material respect when made
or deemed made.
(c) The Borrower shall fail to perform, observe, or comply
with any covenant, agreement, or term contained in Section 6.01 of
this Agreement; or any Loan Party shall fail to perform, observe,
or comply with any other covenant, agreement, or term contained in
any Loan Document (other than a failure covered elsewhere in this
Section 7.01) and such failure shall continue for a period of
thirty (30) days after notice thereof to such Loan Party by the
Bank.
(d) Any Loan Party or any Subsidiary shall admit in writing
its inability to, or be generally unable to, pay its debts as such
debts become due.
(e) Any voluntary or involuntary proceeding under any Debtor
Relief Law shall be commenced by or against any Loan Party or any
Subsidiary or any of their respective assets, and if an
involuntary proceeding is commenced, such proceeding shall not be
dismissed within thirty (30) days after the commencement thereof.
(f) Any Loan Party or any Subsidiary shall fail to pay when
due any principal of or interest on any indebtedness for borrowed
money (other than the Note) having an outstanding principal amount
greater than $5,000,000, whether as principal obligor, guarantor,
or otherwise, or the maturity of any such indebtedness shall have
been accelerated, or any event shall have occurred that permits
(or, with the giving of notice or lapse of time or both, would
permit) any holder or holders of such indebtedness or any Person
acting on behalf of such holder or holders to accelerate the
maturity thereof.
(g) Any judgment or order for the payment of money in excess
of $500,000 shall be rendered against any Loan Party or any
Subsidiary and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii)
there shall be any period of 10 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect.
(h) Any Loan Party shall dissolve, liquidate, or terminate
its legal existence or shall convey, transfer, lease, or dispose
of (whether in one transaction or a series of transactions) all or
substantially all of its assets to any Person.
(i) IMC Global Inc. shall at any time fail to (A) own,
directly or indirectly, at least 50% of the capital interests in
the Borrower, (B) own, directly or indirectly, at least 50% of the
capital stock or capital interests in the corporate managing
partner of the Borrower, or (C) appoint and control, directly or
indirectly, at least 50% of the members of the Policy Committee
(or other governing body) of the Borrower.
(j) Any event or condition shall occur that could reasonably
be expected to have a Material Adverse Effect.
SECTION 7.02. Remedies. If any Event of Default shall occur and
be continuing, the Bank may do any one or more of the following:
(a) Acceleration. Declare all outstanding principal of and
accrued and unpaid interest on the Note and all other amounts
payable by the Borrower under the Loan Documents immediately due
and payable, and the same shall thereupon become immediately due
and payable, without presentment, demand, protest, notice of
acceleration, notice of intent to accelerate, or other notices or
formalities of any kind, all of which are hereby expressly waived
by the Borrower.
(b) Termination of Commitment. Terminate the Commitment
without notice to the Borrower.
(c) Rights. Exercise any and all rights and remedies
afforded by applicable law or otherwise.
(d) Cash Collateral. Direct the Borrower to pay (and the
Borrower agrees that upon receipt of such notice or the occurrence
of an Event of Default under Section 7.01(e), it will immediately
pay) to the Bank additional cash, to be held by the Bank in a cash
collateral account as additional security for the LOC Obligations
for subsequent drawings under all then outstanding Letters of
Credit in an amount equal to the maximum aggregate amount which
may be drawn under all Letters of Credit then outstanding.
Notwithstanding the foregoing, upon the occurrence of an Event of
Default under Section 7.01(e), the Commitment shall automatically
terminate, and the outstanding principal of and accrued and unpaid
interest on the Note and all other amounts payable by the Borrower
under the Loan Documents shall thereupon become immediately due and
payable without presentment, demand, protest, notice of acceleration,
notice of intent to accelerate, or other notices or formalities of any
kind, all of which are hereby expressly waived by the Borrower.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Expenses. The Borrower shall on demand pay or
reimburse the Bank for paying (a) all reasonable costs and expenses of
the Bank, including the fees and disbursements of counsel for the Bank
(including the allocated cost of internal counsel), in connection with
the administration of the Loan Documents, the preparation of any waiver
or consent thereunder or any amendment thereof or any Default or
alleged Default and (b) if an Event of Default occurs, all costs and
expenses incurred by the Bank, including the fees and disbursements of
counsel (including the allocated cost of internal counsel), in
connection with such Event of Default and any collection, bankruptcy,
insolvency, and other enforcement proceedings resulting therefrom.
SECTION 8.02. Indemnification. The Borrower agrees to indemnify
the Bank and each affiliate thereof and their respective officers,
directors, employees, attorneys, and agents (each an "Indemnified
Person") from, and hold each of them harmless against, any and all
losses, liabilities, claims, damages, penalties, judgments,
disbursements, costs, and expenses, including all fees and
disbursements of counsel (including the allocated cost of internal
counsel) (collectively the "Indemnified Liabilities"), which directly
or indirectly arise from or relate to any Loan Document or any of the
transactions contemplated thereby, but excluding any of the foregoing
to the extent caused by the gross negligence or willful misconduct of
the Indemnified Person. Without limiting any provision of any Loan
Document, it is the express intention of the parties hereto that each
Indemnified Person shall be indemnified from and held harmless against
any and all Indemnified Liabilities arising out of or resulting from
the sole or contributory negligence of the Indemnified Person.
SECTION 8.03. Right of Set-off. Upon the occurrence and during
the continuance of any Event of Default, the Bank is hereby authorized
at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other
indebtedness at any time owing by the Bank (or any of its affiliates)
to or for the credit or the account of the Borrower against any and all
of the obligations of the Borrower now or hereafter existing under the
Loan Documents, irrespective of whether the Bank shall have made any
demand under the Loan Documents and although such obligations may be
unmatured. The Bank agrees promptly to notify the Borrower after any
such set-off and application made by the Bank; provided, however, that
the failure to give such notice shall not affect the validity of such
set-off and application. The rights of the Bank under this Section are
in addition to other rights and remedies (including, without
limitation, other rights of set-off) that the Bank may have.
SECTION 8.04. No Waiver; Cumulative Remedies. No failure on the
part of the Bank to exercise and no delay in exercising, and no course
of dealing with respect to, any right, power, or privilege under any
Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, power, or privilege under any Loan
Document preclude any other or further exercise thereof or the exercise
of any other right, power, or privilege. The rights and remedies
provided for in the Loan Documents are cumulative and not exclusive of
any rights and remedies provided by law.
SECTION 8.05. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Borrower may not
assign or transfer any of its rights or obligations hereunder without
the prior written consent of the Bank. The Bank may at any time and
from time to time (a) grant participating interests in the Commitment
and the Loans to any Person(s), and (b) assign all or any portion of
its rights and/or obligations under the Loan Documents to any
Person(s); provided, that the Bank may not assign its Commitment to any
Person (other than an affiliate of the Bank) without the prior written
consent of the Borrower. All information provided by the Borrower to
the Bank may be furnished by the Bank to its affiliates and to any
actual or proposed assignee or participant.
SECTION 8.06. Amendments. No amendment or waiver of any
provision of any Loan Document to which the Borrower is a party, nor
any consent to any departure by the Borrower therefrom, shall be
effective unless the same shall be agreed or consented to in writing by
the Bank and the Borrower, and each such waiver or consent shall be
effective only in the specific instance and for the specific purpose
for which given.
SECTION 8.07. Notices. All notices, requests, and other
communications to either party hereunder shall be in writing (including
bank wire, facsimile transmission, or similar writing) and shall be
given to such party at its address or facsimile number set forth on the
signature pages hereof. Each such notice, request, or other
communication shall be effective (i) if given by facsimile
transmission, when transmitted to the facsimile number referred to in
this Section and confirmation of receipt is received, (ii) if given by
mail, three (3) Business Days after such communication is deposited in
the mails with first class postage prepaid, addressed as aforesaid, or
(iii) if given by any other means, when delivered at the address
referred to in this Section; provided that notices to the Bank shall
not be effective until received.
SECTION 8.08. Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
SECTION 8.09.. Any provision of this Agreement held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Agreement and the effect thereof
shall be confined to the provision held to be invalid or illegal.
SECTION 8.10. Controlling Agreemen. Notwithstanding anything to
the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum
rate of non-usurious interest permitted by applicable law (the "Maximum
Rate"). If the Bank shall receive interest in an amount that exceeds
the Maximum Rate, the excessive interest shall be applied to the
principal of the Loans or, if it exceeds the unpaid principal, refunded
to the Borrower. In determining whether the interest contracted for,
charged, or received by the Bank exceeds the Maximum Rate, the Bank
may, to the extent permitted by applicable law, (a) characterize any
payment that is not principal as an expense, fee, or premium rather
than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or
unequal parts the total amount of interest throughout the contemplated
term of the Loans.
SECTION 8.11. Survival. All representations and warranties made
or deemed made by the Borrower in the Loan Documents shall survive the
execution and delivery thereof and the making of the Loans and the
issuance of the Letters of Credit, and no investigation by the Bank or
any closing shall affect the representations and warranties by the
Borrower or the right of the Bank to rely upon them. Without prejudice
to the survival of any other obligation of the Borrower hereunder, the
obligations of the Borrower under Article III and Sections 8.01 and
8.02 shall survive repayment of the Note and termination of the
Commitment.
SECTION 8.12. Governing Law. This Agreement and the other Loan
Documents shall be governed by and construed in accordance with the
laws of the State of New York, including without limitation Section 5-
1401 of the General Obligations Law, but otherwise without regard to
conflicts of law principles, and the applicable laws of the United
States of America. The Borrower hereby submits to the nonexclusive
jurisdiction of the United States District Court and each state court
in the city where the Principal Office is located for the purposes of
all legal proceedings arising out of or relating to any of the Loan
Documents or the transactions contemplated thereby. The Borrower
irrevocably consents to the service of any and all process in any such
action or proceeding by the mailing of copies of such process to the
Borrower at its address set forth underneath its signature hereto. The
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.
SECTION 8.13. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AND EXPRESSLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT,
OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT OR ANY OF
THE TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF THE BANK IN THE
NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT THEREOF.
SECTION 8.14. ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT AND THE
OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
BORROWER:
IMC-AGRICO COMPANY
By: IMC-Agrico MP, Inc., a
Delaware corporation
By:
Title
Address for Notices:
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
Assistant Treasurer
BANK:
NATIONSBANK, N.A.
By:
Title:
Address for Notices:
Sears Tower
000 X. Xxxxxx Xxxxx, Xxx. 0000
Xxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
SCHEDULE 1.02
EXISTING LETTERS OF CREDIT
Letter of Credit No. Expiry Date Amount
39829 May 31, 1997 $2,832,500
40790 May 31, 1997 $570,000
41265-A December 31, 1996 $6,000,000
(evergreen with final expiry
date of December 30, 2002)
EXHIBIT A
PROMISSORY NOTE
$50,000,000 May 14, 1996
FOR VALUE RECEIVED, the undersigned, IMC-AGRICO COMPANY, a
Delaware general partnership (the "Borrower"), hereby promises to pay
to the order of NATIONSBANK, N.A., (the "Bank"), at the Principal
Office, in lawful money of the United States of America and in
immediately available funds, the principal amount of Fifty Million
Dollars ($50,000,000) or such lesser amount as shall equal the
aggregate unpaid principal amount of the Loans made by the Bank to the
Borrower under the Credit Agreement referred to below, on the dates and
in the principal amounts provided in the Credit Agreement, and to pay
interest on the unpaid principal amount of each such Loan, at such
office, in like money and funds, for the period commencing on the date
of such Loan until such Loan shall be paid in full, at the rates per
annum and on the dates provided in the Credit Agreement.
The books and records of the Bank shall be prima facie evidence of
all amounts outstanding hereunder.
This Note is the Note referred to in the Credit Agreement of even
date herewith, between the Borrower and the Bank (such Credit
Agreement, as the same may be amended, modified, or supplemented from
time to time, being referred to herein as the "Credit Agreement"), and
evidences Loans made by the Bank thereunder. The Credit Agreement,
among other things, contains provisions for acceleration of the
maturity of this Note upon the happening of certain stated events and
for prepayments of Loans prior to the maturity of this Note upon the
terms and conditions specified in the Credit Agreement. Capitalized
terms used in this Note have the respective meanings assigned to them
in the Credit Agreement.
This Note shall be governed by and construed in accordance with
the laws of the State where the Principal Office is located and the
applicable laws of the United States of America.
IMC-AGRICO COMPANY
By: IMC-Agrico MP, Inc., a
Delaware corporation
By:
Title:
