EXHIBIT 4
$550,000,000
SECOND AMENDED AND RESTATED FIVE-YEAR
CREDIT AGREEMENT
dated as of
September 29, 2000
among
IMC GLOBAL INC.,
Various Financial Institutions,
ROYAL BANK OF CANADA,
as Documentation Agent,
THE CHASE MANHATTAN BANK,
as Syndication Agent,
BANK ONE, NA,
as Co-Syndication Agent,
SUNTRUST BANK, ATLANTA,
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 1DEFINITIONS
SECTION 1.01. Definitions 1
SECTION 1.02. Accounting Terms and Determinations 13
SECTION 1.03. Types of Borrowings 13
ARTICLE 2THE CREDITS
SECTION 2.01. Commitments to Lend 14
SECTION 2.02. Notice of Committed Borrowings 15
SECTION 2.03. Bid Rate Borrowings 15
SECTION 2.04. Notice to Banks; Funding of Loans 19
SECTION 2.05. Registry; Notes 20
SECTION 2.06. Maturity of Loans 20
SECTION 2.07 . Interest Rates 20
SECTION 2.08. Fees 22
SECTION 2.09. Optional Termination or Reduction of
Commitments 23
SECTION 2.10. Method of Electing Interest Rates 23
SECTION 2.11. Scheduled Termination of Commitments 24
SECTION 2.12. Optional Prepayments 24
SECTION 2.13. General Provisions as to Payments 25
SECTION 2.14. Funding Losses 26
SECTION 2.15. Computation of Interest and Fees 26
SECTION 2.16. Letters of Credit 26
SECTION 2.17. Regulation D Compensation 29
SECTION 2.18. Takeout of Swingline Loans 30
SECTION 2.19. Foreign Costs 31
ARTICLE 3CONDITIONS
SECTION 3.01. Effectiveness 31
SECTION 3.02. Borrowings and Issuance of Letters of
Credits 32
SECTION 3.03. First Borrowing by or Issuance of Letter of
Credit for Each Eligible Subsidiary 33
ARTICLE 4REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power 34
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention 34
SECTION 4.03. Binding Effect 34
SECTION 4.04. Financial Information 34
SECTION 4.05. Litigation 35
SECTION 4.06. Compliance with Laws 35
SECTION 4.07. Environmental Matters 36
SECTION 4.08. Taxes 36
SECTION 4.09. Subsidiaries 36
SECTION 4.10. Regulatory Restrictions on Borrowing 36
SECTION 4.11. Full Disclosure 36
ARTICLE 5COVENANTS
SECTION 5.01. Information 37
SECTION 5.02. Payment of Obligations 39
SECTION 5.03. Maintenance of Property; Insurance 39
SECTION 5.04. Conduct of Business and Maintenance of
Existence 39
SECTION 5.05. Compliance with Laws 40
SECTION 5.06. Inspection of Property, Books and Records 40
SECTION 5.07. Mergers and Sales of Assets 40
SECTION 5.08. Use of Proceeds 41
SECTION 5.09. Negative Pledge 41
SECTION 5.10. Debt of Subsidiaries 42
SECTION 5.11. Transactions with Affiliates 42
SECTION 5.12. Leverage Ratio 43
ARTICLE 6DEFAULTS
SECTION 6.01. Events of Default 44
SECTION 6.02. Notice of Default 46
SECTION 6.03. Cash Cover 46
ARTICLE 7THE ADMINISTRATIVE AGENT
SECTION 7.01. Appointment and Authorization 47
SECTION 7.02. Administrative Agent and Affiliates 47
SECTION 7.03. Action by Administrative Agent 47
SECTION 7.04. Consultation with Experts 47
SECTION 7.05. Liability of Administrative Agent 47
SECTION 7.06. Indemnification 48
SECTION 7.07. Credit Decision 48
SECTION 7.08. Successor Administrative Agent 48
SECTION 7.09. Agents' Fees 48
SECTION 7.10. Other Agents 49
ARTICLE 8CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate
or Unfair 49
SECTION 8.02. Illegality 49
SECTION 8.03. Increased Cost and Reduced Return 50
SECTION 8.04. Taxes 51
SECTION 8.05. Base Rate Loans Substituted for Affected Fixed
Rate Loans 53
SECTION 8.06. Substitution of Bank 54
ARTICLE 9REPRESENTATIONS AND WARRANTIES OF ELIGIBLE SUBSIDIARIES
SECTION 9.01. Corporate Existence and Power 55
SECTION 9.02. Corporate and Governmental Authorization;
Contravention 55
SECTION 9.03. Binding Effect 55
SECTION 9.04. Taxes 55
ARTICLE 10GUARANTY
SECTION 10.01. The Guaranty 55
SECTION 10.02. Guaranty Unconditional 56
SECTION 10.03. Discharge Only Upon Payment In Full;
Reinstatement In Certain Circumstances 56
SECTION 10.04. Waiver by the Company 57
SECTION 10.05. Subrogation 57
SECTION 10.06. Stay of Acceleration 57
ARTICLE 11MISCELLANEOUS
SECTION 11.01. Notices 57
SECTION 11.02. No Waivers 58
SECTION 11.03. Expenses; Indemnification 58
SECTION 11.04. Sharing of Set-offs 58
SECTION 11.05. Amendments and Waivers 59
SECTION 11.06. Successors and Assigns 59
SECTION 11.07. Collateral 61
SECTION 11.08. Confidentiality 61
SECTION 11.09. Governing Law; Submission to Jurisdiction 61
SECTION 11.10. Counterparts; Integration 62
SECTION 11.11. Waiver of Jury Trial 62
SECTION 11.12. Effect of Amendment and Restatement 62
PRICING SCHEDULE
SCHEDULE I Banks and Commitments
SCHEDULE II 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 Mayer, Brown & Platt, 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
SECOND AMENDED AND RESTATED FIVE-YEAR
CREDIT AGREEMENT
SECOND AMENDED AND RESTATED FIVE-YEAR CREDIT AGREEMENT dated as of
September 29, 2000 among IMC GLOBAL INC., a Delaware corporation
(together with its successors, the "Company"), various financial
institutions, ROYAL BANK OF CANADA, as Documentation Agent, THE CHASE
MANHATTAN BANK, as Syndication Agent, BANK ONE, NA, as Co-Syndication
Agent, SUNTRUST BANK, ATLANTA, 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 Bank of America, N.A., as administrative
agent, are parties to an Amended and Restated Five-Year Credit
Agreement dated as of December 8, 1999 (as amended prior to the date
hereof, the "Existing Credit Agreement"); and
WHEREAS, the signatories hereto have agreed to amend and restate
the Existing Credit Agreement in its entirety pursuant hereto and, at
the Company's request, to reduce the commitments thereunder;
NOW, THEREFORE, the parties hereto agree as follows:
DEFINITIONS
Definitions. The following terms, as used herein, have the following
meanings:
"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.
"Administrative Agent" means Bank of America, N.A. in its capacity
as administrative agent for the Banks hereunder, and its successors in
such capacity.
"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.
"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.
"Agent" means any one of the Administrative Agent, the
Documentation Agent, the the Syndication Agent or the Co-Syndication
Agents, and "Agents" means any two or more of the foregoing.
"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.
"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.
"Assignee" has the meaning set forth in Section 11.06(c).
"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.
"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.
"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.
"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.
"Bid Rate (General)" has the meaning set forth in Section 2.03(d).
"Bid Rate (General) Auction" means a solicitation of Bid Rate
Quotes setting forth Bid Rates (General) pursuant to Section 2.03.
"Bid Rate (General) Loan" means a loan made or to be made by a
Bank pursuant to a Bid Rate (General) Auction.
"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.
"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)).
"Bid Rate (Indexed) Margin" has the meaning set forth in Section
2.03(d).
"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.
"Bid Rate Loan" means a Bid Rate (Indexed) Loan or a Bid Rate
(General) Loan.
"Bid Rate Quote" means an offer by a Bank to make a Bid Rate Loan
in accordance with Section 2.03.
"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.
"Borrowing" has the meaning set forth in Section 1.03.
"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 Schedule I, 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).
"Committed Loan" means a Syndicated Loan or a Swingline Loan.
"Company" has the meaning set forth in the introductory paragraph.
"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).
"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.
"Co-Syndication Agent" means each of Bank One, NA and SunTrust
Bank, Atlanta in their capacity as co-syndication agents for the Banks
hereunder, and their respective successors in such capacity.
"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.
"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.
"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.
"Documentation Agent" means Royal Bank of Canada in its capacity
as documentation agent in respect of this Agreement.
"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.
"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.
"Effective Date" means the date this Agreement becomes effective
in accordance with Section 3.01.
"Election to Participate" means an Election to Participate
substantially in the form of Exhibit H hereto.
"Election to Terminate" means an Election to Terminate
substantially in the form of Exhibit I hereto.
"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.
"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.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or any successor statute.
"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.
"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.
"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.
"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.
"Euro-Dollar Margin" means a rate per annum determined in
accordance with the Pricing Schedule.
"Euro-Dollar Rate" means a rate of interest determined pursuant to
Section 2.07(b) on the basis of a London Interbank Offered Rate.
"Euro-Dollar Reference Banks" means the principal London offices
of Royal Bank of Canada, The Chase Manhattan Bank and Bank of America,
N.A.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.17.
"Events of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreement" has the meaning set forth in the
recitals.
"Existing Harris Debt" means Debt of Harris 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.
"Existing Letters of Credit" means the letters of credit
identified in Schedule II.
"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.
"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.
"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.
"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.
"Harris Chemical Acquisition" means, collectively, the merger of
Harris Chemical Group with and into IMC Merger Sub Inc., a wholly-owned
Subsidiary of the Company, with Harris 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
Harris Chemical Group, and the acquisition, directly or indirectly, by
the Company of all of the outstanding shares of Harris 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, Harris
Chemical Australia Pty Limited, Marsupial L.L.C., Marsupial-II L.L.C.,
Soda Ash (L) BHD, Manager Shareholders named therein and the Company.
"Harris Chemical Group" means Harris Chemical Group, Inc., a
Delaware corporation.
"IMC Inorganic Chemicals Inc." means IMC Inorganic Chemicals Inc.,
a Delaware corporation, formerly known as Harris Chemical Group, Inc.
"Indemnitee" has the meaning set forth in Section 11.03(b).
"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:
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
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 Morgan 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, Harris 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 Moody's 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.
"Phosphates" means IMC Phosphates Company, a Delaware general
partnership, and its successors.
"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.
"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
McGraw-Hill 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
Phosphates 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.
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.
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).
THE CREDITS
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)).
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:
(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.
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.
(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:
(i) the proposed date of Borrowing, which shall be a
Euro-Dollar Business Day,
(ii) the aggregate amount of such Borrowing, which shall be
$10,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest
Period, and
(iv) whether the Bid Rate Quotes requested are to set forth a
Bid Rate (Indexed) Margin or a Bid Rate (General).
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.
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.
(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.
(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.
(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.
SECTION 0.1. 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.
(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.
(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.
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.
(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.
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.
(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.
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.
(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.
(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.
(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.
(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.
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 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.
(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.
(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.
(d) Upfront Fee. The Company shall pay to the Administrative
Agent on the Effective Date for the account of each Bank which, on or
before 5:00 p.m. (Chicago time) on September 29, 2000, executes and
delivers to the Administrative Agent (by facsimile or otherwise) a
counterpart hereof, such fee to be in an amount equal to 0.10% of such
Bank's Commitment. Such fee shall be fully earned when paid and shall
be nonrefundable for any reason whatsoever.
(e) 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).
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.
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:
(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
(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.
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.
(b) Each Notice of Interest Rate Election shall specify:
(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.
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.
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.
(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.
(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.
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.
(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.
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.
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).
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.
(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.
(c) No Letter of Credit shall have a term extending or extendible
beyond the fifth Domestic Business Day preceding the Termination Date.
(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.
(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.
(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:
(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);
(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;
(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;
(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
(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.
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.
"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).
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.
(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.
(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.
(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.
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.
(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.
CONDITIONS
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):
receipt by the Administrative Agent of evidence that counterparts
hereof have been signed by each Borrower 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);
receipt by the Administrative Agent of an opinion of (i) Kirkland &
Ellis, special counsel for the Company, substantially in the form of
Exhibit E-1 hereto and (ii) Mary Ann Hynes, 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;
receipt by the Administrative Agent of an opinion of Mayer, Brown &
Platt, 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;
receipt by the Administrative Agent of the fees described in Section
2.08(d); and
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 October 6, 2000; 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.
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:
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;
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;
the fact that, immediately after such Borrowing or issuance of such
Letter of Credit, no Default shall have occurred and be continuing; and
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).
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:
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
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.
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that:
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.
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.
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.
Financial Information. (a) The consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of December 31, 1999 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, 1999 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.
(b) The financial statements presented in the Company's Form 10-Q
for the period ended June 30, 2000, 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).
(c) Since June 30, 2000, 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.
Litigation. Except as disclosed in the Company's annual report on Form
10-K for the year ended December 31, 1999, 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.
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.
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.
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.
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.
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.
Full Disclosure. Neither the Company's Form 10-K for the year ended
December 31, 1999, 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.
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:
Information. The Company will deliver to each of the Banks:
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;
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;
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;
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;
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;
promptly upon the mailing thereof to the shareholders of the Company
generally, copies of all financial statements, reports and proxy
statements so mailed;
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;
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
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.
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.
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.
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.
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.
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.
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.
(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
Harris Chemical Acquisition.
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.
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:
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;
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;
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;
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;
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;
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;
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;
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
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).
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 Harris 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
Harris Chemical Group Inc., and its Subsidiaries in an aggregate
principal amount not exceeding UKLira 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.
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 Phosphates, (iii) employee leasing services
agreements between IMC Global Operations Inc. and Phosphates, (iv)
transactions between Phosphates and the IMC Potash 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.
Leverage Ratio. The Leverage Ratio will not exceed 4.25 to 1.0 as of
the last day of any fiscal quarter ending on or prior to June 30, 2001;
4.00 to 1.0 as of the last day of the fiscal quarters ending September
30, 2001 and December 31, 2001; or 3.75 to 1.0 as of the last day of
any fiscal quarter ending thereafter. For this purpose:
"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.
"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 $184,000,000 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.
"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.
Interest Coverage Ratio. The Interest Coverage Ratio will not exceed
3.00 to 1.0 as of the last day of any fiscal quarter. For this
purpose:
"Consolidated EBITDA" shall have the meaning set forth in Section
5.12.
"Consolidated Interest Expense" means at any date the sum, without
duplication, of cash interest expense of the Company and its
Consolidated Subsidiaries, whether paid or accrued (including all
imputed interest on leases which are capitalized in accordance with
generally accepted accounting principles), determined on a consolidated
basis as of such date.
"Interest Coverage Ratio" means, as of the last day of any fiscal
quarter, the ratio of Consolidated EBITDA to Consolidated Interest
Expense, each calculated for the period of four consecutive fiscal
quarters ending on such day.
DEFAULTS
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) 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.
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.
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.
THE ADMINISTRATIVE AGENT
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.
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.
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.
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.
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.
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.
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.
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.
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.
Other Agents. Nothing in this Agreement shall impose upon the
Documentation Agent, the Syndication Agent or the Co-Syndication
Agents, in such capacity, any duties or obligations whatsoever.
CHANGE IN CIRCUMSTANCES
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:
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
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.
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.
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).
(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).
(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.
Taxes. (a) For purposes of this Section 8.04, the following terms have
the following meanings:
"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.
"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.
"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.
(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.
(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.
(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.
(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).
(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.
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:
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
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.
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.
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:
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.
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.
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.
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.
GUARANTY
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.
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:
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;
any modification or amendment of or supplement to this Agreement or any
Note;
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;
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;
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;
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
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.
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.
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.
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.
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.
MISCELLANEOUS
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.
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.
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.
(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.
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.
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.
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.
(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).
(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.
(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.
(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.
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.
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.
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.
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.
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.
Effect of Amendment and Restatement. This agreement amends and
restates the Existing Credit Agreement in its entirety. Upon the
effectiveness hereof, 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).
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:
100 South Saunders Rd.
Suite 300
Lake Forest, Illinois 60045
Attention: E. Paul Dunn, Jr.
Assistant Vice President and Treasurer
Telecopy number: (847) 739-1605
BANK OF AMERICA, N.A.,
Individually and as Administrative
Agent
By:
Title: Principal
231 South LaSalle Street
Chicago, Illinois 60697
Attention: William Sweeney
Telecopy number: (312) 987-1276
THE CHASE MANHATTAN BANK,
Individually and as Syndication
Agent
By:
Title:
ROYAL BANK OF CANADA,
Individually and as Documentation
Agent
By:
Title:
BANK ONE, NA (Main Office
Chicago), Individually and as
Co-Syndication Agent
By:
Title:
SUNTRUST BANK, ATLANTA,
Individually and as Co-Syndication Agent
By:
Title:
By:
Title:
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By:
Title:
CREDIT AGRICOLE INDOSUEZ
By:
Title:
THE NORTHERN TRUST COMPANY
By:
Title:
ABN AMRO BANK N.V.
By:
Title:
By:
Title:
BNP PARIBAS
By:
Title:
THE BANK OF NEW YORK
By:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH
By:
Title:
FIRST UNION NATIONAL BANK
By:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK
B.A., "RABOBANK INTERNATIONAL",
NEW YORK BRANCH
By:
Title:
By:
Title:
STANDARD CHARTERED BANK
By:
Title:
By:
Title:
BANK HAPOALIM B.M.
By:
Title:
By:
Title:
THE DAI-ICHI KANGYO BANK,
LTD., CHICAGO BRANCH
By:
Title:
HSBC BANK USA
By:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
CHICAGO BRANCH
By:
Title:
HARRIS TRUST AND SAVINGS
BANK
By:
Title:
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:
LEVEL LEVEL LEVEL LEVEL LEVEL LEVEL
I II III IV V VI
Facility Fee Rate .07% .085% .11% .15% .25% .50%
Euro-Dollar Margin .155% .19% .215% .275% .425% .675%
Utilization Fee Rate .125% .25% .25% .25% .325% .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% .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 Moody's.
"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 Moody's 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 Moody's 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- or higher by S&P or Baa3 by Moody's or higher 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, (i) the
Company is rated BB+ by S&P or Ba1 by Moody's and (ii) neither Level I
Status, Level II Status, Level III Status nor Level IV Status exists.
"Level VI 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, Level V Status or
Level VI 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 Moody's,
then Level VI shall apply.
If as of the last day of any fiscal quarter the Leverage Ratio (as
defined in Section 5.12) exceeds 3.75, then beginning on the date on
which financial statements are required to be delivered for such fiscal
quarter (or for the fiscal year ending on the last day of such fiscal
quarter) pursuant to clause (a) or (b) of Section 5.01, the Euro-Dollar
Margin shown in the table above shall be increased at each level by (i)
0.125% if such Leverage Ratio exceeds 3.75 to 1.00 and (ii) 0.375% if
such Leverage Ratio exceeds 4.00 to 1.00. Such increase in the Euro-
Dollar Margin shall remain in effect until the date on which financial
statements are required to be delivered for the following fiscal
quarter (or for the fiscal year ending on the last day of the following
fiscal quarter) pursuant to clause (a) or (b) of Section 5.01, at which
time the Euro-Dollar Margin shall be adjusted to the extent applicable.
If the Company fails to deliver financial statements for any fiscal
quarter or fiscal year as required by clause (a) or (b) of Section 5.01
(and thus any applicable adjustment to the Euro-Dollar Margin may not
be determined), the Euro-Dollar Margin shall be increased by 0.375% at
each level until such financial statements are delivered.
SCHEDULE I
BANKS AND COMMITMENTS
Bank Commitment
Bank of America, N.A. $63,250,000
The Chase Manhattan Bank $38,500,000
Royal Bank of Canada $38,500,000
Bank One, NA $28,875,000
SunTrust Bank, Atlanta $19,250,000
Morgan Guaranty Trust Company of New York $38,500,000
Credit Agricole Indosuez $33,000,000
The Northern Trust Company $28,875,000
ABN AMRO Bank N.V. $24,750,000
BNP Paribas $24,750,000
The Bank of New York $24,750,000
The Bank of Tokyo-Mitsubishi, Ltd. Chicago $19,250,000
Branch
First Union National Bank $19,250,000
Cooperatieve Centrale Raiffeisen- $19,250,000
Boerenleenbank B.A., "Rabobank
International", New York Branch
Standard Chartered Bank $19,250,000
Bank Hapoalim B.M. $19,250,000
The Dai-Ichi Kangyo Bank, Ltd., Chicago $19,250,000
Branch
HSBC Bank USA $19,250,000
The Industrial Bank of Japan, Limited, $19,250,000
Chicago Branch
Harris Trust and Savings Bank $33,000,000
TOTAL $550,000,000
SCHEDULE II
EXISTING LETTERS OF CREDIT
ACCOUNT PARTIES:
ISSUER AMOUNT BENEFICIARY RENEWAL DATE
IMC Phosphates
Bank of America, N.A. $2,832,500 National 05/30/00
Union
Bank of America, N.A. $ 570,000 National 05/30/00
Union
Bank of America, N.A. $2,750,000 Brewster 12/31/99
Phosphate
IMC Global Operations
Inc.
Bank of America, N.A. $2,683,980 National 12/02/99
Union
Bank of America, N.A. $ 625,000 National 12/02/99
Union
Bank of America, N.A. $ 250,000 State of 12/02/99
Vermont
Bank of America, N.A. $ 500,000 National 12/02/99
Union
Bank of America, N.A. $1,800,000 Reliance 05/31/00
Nat'l 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 Branch
Cooperatieve Centrale $2,751,485 Bank of New 02/16/01
Raiffeisen- York
boerenleenbank B.A.,
"Rabobank Nederland",
New York Branch
Vigoro Industries,
Inc.
Harris Trust and $ 800,000 National 10/31/00
Savings Bank Union First
Ins. Co.
Harris Trust and $ 546,000 St. Paul Fire 02/25/00
Savings Bank & Marine Ins.
Co.
Kalium Chemicals Ltd.
Royal Bank of Canada $ 25,000 MI Dept. of 10/1/00
Natural
Resources
Royal Bank of Canada $ 5,000 MI Dept. of 10/1/00
Natural
Resources
Western-AG Minerals
Co.
Carlsbad National Bank $ 500,000 New Mexico 9/3/00
Self Insurers
IMC Kalium Ogden Corp.
NationsBank $ 298,900 Utah Div. of 4/8/00
Oil, Gas &
Mining
IMC Salt Inc.
Bank of America, N.A. $ 150,000 Louisiana 3/24/00
Dept. of
Employ.
Bank of America, N.A. $ 800,000 ACSTAR 3/26/00
Insurance Co.
Bank of America, N.A. $2,352,274 Reliance 4/30/00
Nat'l
Indemnity Co.
Royal Bank of Canada $ 40,000 O&L Real 7/31/00
Estate Ltd.
Liab. Co.
IMC Chemicals Inc.
Bank of America, N.A. $2,118,000 AIG/Nat'l 3/23/00
Union, Amer.
Home
Bank of America, N.A. $ 110,000 Kredietbank 4/30/00
NV
Bank of America, N.A. $ 150,750 State of 3/30/00
Colorado Rec.
Brd.
Bank of America, N.A. $696,620.31 Colorado 8/31/00
Nat'l Bank
Bank of America, N.A. $492,579.15 White River 3/30/00
Elec. Assoc.
Bank of America, N.A. $ 119,600 ACSTAR 3/26/00
Insurance Co.
Bank of America, N.A. $ 941,338 County of San 3/24/00
Bern.
Bank of America, N.A. $ 300,000 San Diego 4/30/00
Unified
Bank of America, N.A. $5,860,441 General 7/14/00
Electric Cap.
Corp.
Bank of America, N.A. $7,511,927 General Foods 7/14/00
Cred.
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., 231 South LaSalle Street, Chicago, Illinois.
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 Second Amended
and Restated Five-Year Credit Agreement dated as of September 29, 2000
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 Maturit Notation
of Loan of Loan of y Date Made By
Principal
Repaid
EXHIBIT B
FORM OF BID RATE QUOTE REQUEST
[Date]
To: Bank of America, N.A.
(the "Administrative Agent")
From:[Name of Borrower]
Re: Second Amended and Restated Five-Year Credit Agreement (the
"Credit Agreement") dated as of September 29, 2000 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 Amount1 Interest Period2
$
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 Second Amended and Restated Five-
Year Credit Agreement dated as of September 29, 2000 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
231 South LaSalle Street
Chicago, Illinois 60697
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: ____________________1
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 Amount2 Period3 [(Indexed)4 Margin]
[(General)5]
$
$
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
Second Amended and Restated Five-Year Credit Agreement dated as of
September 29, 2000 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
September 29, 2000
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 Second
Amended and Restated Five Year Credit Agreement, dated as of
September 29, 2000 (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 Kirkland & Ellis
lawyers who have had significant involvement with negotiation or
preparation of the Credit Agreement (herein called "our Designated
Transaction Lawyers"): Michael G. Timmers and Gavin J. Domm.
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,
Kirkland & Ellis
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;
b. affording equitable defenses (e.g., waiver, laches and
estoppel) against a party seeking enforcement;
c. requiring good faith and fair dealing in the performance and
enforcement of a contract by the party seeking its
enforcement;
d. requiring reasonableness in the performance and enforcement
of an agreement by the party seeking enforcement of the
contract;
e. requiring consideration of the materiality of (i) a breach
and (ii) the consequences of the breach to the party seeking
enforcement;
f. requiring consideration of the impracticability or
impossibility of performance at the time of attempted
enforcement; and
g. 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;
b. provide that forum selection clauses in contracts are not
necessarily binding on the court(s) in the forum selected;
c. limit the availability of a remedy under certain
circumstances where another remedy has been elected;
d. provide a time limitation after which a remedy may not be
enforced;
e. limit the right of a creditor to use force or cause a breach
of the peace in enforcing rights;
f. relate to the sale or disposition of collateral or the
requirements of a commercially reasonable sale;
g. 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;
h. 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;
i. govern and afford judicial discretion regarding the
determination of damages and entitlement to attorneys' fees
and other costs;
j. 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").
2. Each of you is existing and in good standing in your jurisdiction
of organization.
3. 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).
4. 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.
5. 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.
6. There has not been any mutual mistake of fact or misunderstanding,
fraud, duress or undue influence.
7. The conduct of the parties to the Transaction Agreements has
complied with any requirement of good faith, fair dealing and
conscionability.
8. 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.
9. 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.
10. The constitutionality or validity of a relevant statute, rule,
regulation or agency action is not in issue.
11. 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.
12. 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.
13. 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.
14. 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;
2. pension and employee benefit laws and regulations (e.g., ERISA);
3. federal and state antitrust and unfair competition laws and
regulations;
4. compliance with fiduciary duty requirements;
5. 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;
6. fraudulent transfer and fraudulent conveyance laws;
7. federal and state environmental laws and regulations;
8. federal and state land use and subdivision laws and regulations;
9. federal and state tax laws and regulations;
10. federal patent, trademark and copyright, state trademark, and
other federal and state intellectual property laws and
regulations;
11. federal and state racketeering laws and regulations (e.g., RICO);
12. federal and state health and safety laws and regulations (e.g.,
OSHA);
13. federal and state labor laws and regulations;
14. 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;
15. other federal and state statutes of general application to the
extent they provide for criminal prosecution (e.g., mail fraud and
wire fraud statutes);
16. 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
17. 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.
2. Indemnification for negligence, willful misconduct or other
wrongdoing or strict product liability or any indemnification for
liabilities arising under securities laws.
3. Provisions mandating contribution towards judgments or settlements
among various parties.
4. 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.
5. 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.
6. Time-is-of-the-essence clauses.
7. Provisions which provide a time limitation after which a remedy
may not be enforced.
8. Confession of judgment clauses.
9. 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.
10. 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.
11. 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.
12. Provisions purporting to limit rights of third parties who have
not consented thereto or purporting to grant rights to third
parties.
13. Provisions which purport to award attorneys' fees solely to one
party.
14. Arbitration agreements.
15. Provisions purporting to create a trust or constructive trust
without compliance with applicable trust law.
16. Provisions relating to (i) insurance coverage requirements and
(ii) the application of insurance proceeds and condemnation
awards.
17. Provisions that provide for the appointment of a receiver.
18. Provisions or agreements regarding proxies, shareholders
agreements, shareholder voting rights, voting trusts, and the
like.
19. Confidentiality agreements.
20. 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
September 29, 2000
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 Second Amended and Restated Five Year Credit Agreement,
dated as of September 29, 2000 (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, or attorneys acting under my supervision
(collectively, the "IMC Attorneys"), 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, or other IMC Attorneys, have also examined the originals, or
copies certified to our satisfaction, of all of the [material]
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 or any other
IMC Attorney is 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 grant Liens, 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 or other IMC Attorneys have examined the originals,
or copies certified to our 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 we have deemed necessary as a basis for the opinions
expressed below.
In the examination of the documents referred to above, I and the
other IMC Attorneys 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 us as originals and
(iii) the conformity to originals of all such documents submitted to us
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 (the "Applicable Laws and
Orders") 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 under any of the
Applicable Laws and Orders and the Relevant Contracts.
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, 1999, 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. The Company is not 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,
Mary Ann Hynes
EXHIBIT F
OPINION OF
MAYER, BROWN & PLATT, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
September 29, 2000
To the Banks and the
Administrative Agent
Referred to Below
c/o Bank of America, N.A.,
as Administrative Agent
231 South LaSalle Street
Chicago, Illinois 60697
Dear Sirs:
We have participated in the preparation of the Second Amended and
Restated Five Year Credit Agreement (the "Credit Agreement") dated as
of September 29, 2000 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,
MAYER, BROWN & PLATT
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 Second Amended and Restated Five-Year
Credit Agreement dated as of September 29, 2000, 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.1 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 Second Amended and
Restated Five-Year Credit Agreement dated
as of September 29, 2000 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 Second Amended and
Restated Five-Year Credit Agreement dated
as of September 29, 2000 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 Second Amended and
Restated Five-Year Credit Agreement dated as of September 29, 2000 (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 Second Amended and
Restated Five-Year Credit Agreement dated as of September 29, 2000 (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:
