Exhibit 10.2a
________________________________________________________________________________
________________________________________________________________________________
CREDIT AGREEMENT
dated as of
January 31, 2002
among
FMC CORPORATION,
THE LENDERS PARTY HERETO
and
CITIBANK, N.A.,
as Administrative Agent
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
and
BANC OF AMERICA SECURITIES LLC,
as Co-Lead Arrangers
________________________________________________________________________________
________________________________________________________________________________
▇▇▇▇, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
TABLE OF CONTENTS
Page
Article I DEFINITIONS.................................................................. 1
SECTION 1.01 Definitions.............................................................. 1
SECTION 1.02. Accounting Terms and Determinations...................................... 10
SECTION 1.03. Types of Borrowings...................................................... 10
SECTION 1.04. Pricing Levels........................................................... 10
Article II THE CREDITS.................................................................. 11
SECTION 2.01. Commitments to Lend...................................................... 11
SECTION 2.02. Notice of Borrowings..................................................... 11
SECTION 2.03. [Intentionally Deleted].................................................. 12
SECTION 2.04. Notice to Lenders; Funding of Loans...................................... 12
SECTION 2.05. Notes.................................................................... 12
SECTION 2.06. Maturity of Loans........................................................ 13
SECTION 2.07. Interest Rates........................................................... 13
SECTION 2.08. Fees..................................................................... 14
SECTION 2.09. Mandatory Termination of Commitments..................................... 14
SECTION 2.10. Mandatory Prepayment..................................................... 14
SECTION 2.11. Optional Prepayments..................................................... 14
SECTION 2.12. Payments................................................................. 15
SECTION 2.13. Funding Losses........................................................... 15
SECTION 2.14. Computation of Interest and Fees......................................... 15
SECTION 2.15. Regulation D Compensation................................................ 16
SECTION 2.16. Withholding Tax Exemption................................................ 16
Article III CONDITIONS TO EFFECTIVENESS AND BORROWINGS .................................. 16
SECTION 3.01. Conditions Precedent to Effectiveness ................................... 16
SECTION 3.02. Conditions Precedent to Each Borrowing and Extension of Commitment ...... 17
Article IV REPRESENTATIONS AND WARRANTIES .............................................. 18
SECTION 4.01. Corporate, Limited Liability Company or Partnership Existence and Power.. 18
SECTION 4.02. Corporate and Governmental Authorization; No Contravention .............. 18
SECTION 4.03. Binding Effect .......................................................... 18
SECTION 4.04. Financial Information ................................................... 18
SECTION 4.05. Litigation .............................................................. 19
SECTION 4.06. Compliance with ERISA ................................................... 19
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TABLE OF CONTENTS
(continued)
SECTION 4.07. Environmental Matters ......................................................... 19
SECTION 4.08. Taxes ......................................................................... 19
SECTION 4.09. Full Disclosure ............................................................... 20
SECTION 4.10. Compliance with Laws .......................................................... 20
SECTION 4.11. Not an Investment Company ..................................................... 20
SECTION 4.12. Margin Regulations ............................................................ 20
SECTION 4.13. Pari Passu Obligations ........................................................ 20
Article V COVENANTS .......................................................................... 20
SECTION 5.01. Information ................................................................... 20
SECTION 5.02. Payment of Obligations ........................................................ 22
SECTION 5.03. Maintenance of Property; Insurance ............................................ 22
SECTION 5.04. Inspection of Property, Books and Records ..................................... 22
SECTION 5.05. Maintenance of Existence, Rights, Etc ......................................... 23
SECTION 5.06. Liens ......................................................................... 23
SECTION 5.07. Consolidations, Mergers and Sales of Assets ................................... 24
SECTION 5.08. Change in Nature of Business .................................................. 24
SECTION 5.09. Use of Proceeds ............................................................... 24
SECTION 5.10. Compliance with Laws .......................................................... 24
SECTION 5.11. Financial Covenants ........................................................... 24
SECTION 5.12. Hedging Contracts ............................................................. 25
Article VI DEFAULTS ........................................................................... 25
SECTION 6.01. Defaults ...................................................................... 25
SECTION 6.02. Notice of Default ............................................................. 27
Article VII THE ADMINISTRATIVE AGENT ........................................................... 27
SECTION 7.01. Appointment and Authorization ................................................. 27
SECTION 7.02. Administrative Agent and Affiliates ........................................... 27
SECTION 7.03. Action by Agent ............................................................... 27
SECTION 7.04. Consultation with Experts ..................................................... 28
SECTION 7.05. Liability of Administrative Agent ............................................. 28
SECTION 7.06. Indemnification ............................................................... 28
SECTION 7.07. Credit Decision ............................................................... 28
SECTION 7.08. Administrative Agent's Fees ................................................... 28
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TABLE OF CONTENTS
(continued)
SECTION 7.09. Successor Administrative Agent ......................................... 28
SECTION 7.10. Other Agents ........................................................... 29
Article VIII CHANGE IN CIRCUMSTANCES ....................................................... 29
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair ............... 29
SECTION 8.02. Illegality ............................................................. 29
SECTION 8.03. Increased Cost and Reduced Return ...................................... 30
SECTION 8.04. Base Rate Loans Substituted for Affected Euro-Dollar Loans ............. 31
Article IX MISCELLANEOUS ................................................................. 31
SECTION 9.01. Notices ................................................................ 31
SECTION 9.02. No Waivers ............................................................. 32
SECTION 9.03. Expenses; Documentary Taxes; Indemnification for Litigation ............ 32
SECTION 9.04. Amendments and Waivers ................................................. 32
SECTION 9.05. Sharing of Set-Offs .................................................... 33
SECTION 9.06. GOVERNING LAW; SUBMISSION TO JURISDICTION .............................. 33
SECTION 9.07. Successors and Assigns ................................................. 33
SECTION 9.08. Collateral ............................................................. 34
SECTION 9.09. Counterparts; Integration .............................................. 35
SECTION 9.10. WAIVER OF JURY TRIAL ................................................... 35
SECTION 9.11. Confidentiality ........................................................ 35
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TABLE OF CONTENTS
(continued)
SCHEDULES
Schedule I Lenders and Commitments
Schedule 1.01(a) Certain Foreign Subsidiaries
Schedule 1.01(b) Material Subsidiaries
EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Opinion of ▇▇▇▇, Gotshal & ▇▇▇▇▇▇ LLP, counsel for
the Administrative Agent
Exhibit C Form of Opinion of In-House Counsel of the Borrower
Exhibit D Form of Assignment and Assumption Agreement
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CREDIT AGREEMENT
CREDIT AGREEMENT dated as of January 31, 2002, among FMC
CORPORATION, a Delaware corporation (the "Borrower"), the lenders from time to
time party hereto (the "Lenders") and CITIBANK, N.A., as administrative agent
(the "Administrative Agent").
The parties hereto agree as follows:
Article I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have the
-----------
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Adjusted Net Income" means, for any period, Consolidated Net
Income for such period, excluding the effect of Non-Recurring Items; provided
that the aggregate amount so excluded on account of Non-Recurring Items shall
not exceed $150,000,000 minus the aggregate amount of any write-downs in or
write-offs of any Investment of the Borrower or any Restricted Subsidiary in any
Unrestricted Subsidiary if such Investments were accounted for under the cost
method of accounting under GAAP.
"Administrative Agent" means Citibank, in its capacity as
agent for the Lenders ▇▇▇▇▇▇▇▇▇, and its successors in such capacity.
"Administrative Questionnaire" means, with respect to each
Lender, an administrative questionnaire in the form prepared by the
Administrative Agent and duly completed and submitted to the Administrative
Agent by such ▇▇▇▇▇▇.
"Agreement" means this Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Applicable Lending Office" means, with respect to any Lender,
(i) in the case of its Base Rate Loans, its Domestic Lending Office and (ii) in
the case of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Asset Sale" has the meaning set forth in the definition of
"Net Cash Proceeds."
"Assignee" has the meaning set forth in Section 9.07(c).
"Assignment and Assumption Agreement" means an assignment and
assumption entered into by a Lender and an Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit D.
"Base Rate" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time, which rate per annum shall be
equal to the higher of the following:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; or
(b) the sum of (i) 0.5% per annum plus (ii) the Federal Funds
Rate.
"Base Rate Loan" means a Loan made or to be made by a Lender
in accordance with a Notice of Borrowing or pursuant to Section 8.04 which bears
interest based on the Base Rate.
"Borrower" means FMC Corporation and its permitted successors
and assigns.
"Borrowing" has the meaning set forth in Section 1.03.
"Business Day" means a Domestic Business Day and, if the
applicable Business Day relates to notices, determinations, fundings and
payments in connection with the Euro-Dollar Rate or any Euro-Dollar Loans, a
Euro-Dollar Business Day.
"Cash Equivalents" means (a) securities issued or fully
guaranteed or insured by the United States government or any agency thereof, (b)
certificates of deposit, eurodollar time deposits, overnight bank deposits and
bankers' acceptances of any Lender or any commercial bank organized under the
laws of the United States, any state thereof, the District of Columbia, any
foreign bank, or its branches or agencies (fully protected against currency
fluctuations) which, at the time of acquisition, are rated at least "A-1" by S&P
or "P-1" by ▇▇▇▇▇'▇, (c) commercial paper of an issuer rated at least "A-1" by
S&P or "P-1" by ▇▇▇▇▇'▇, and (d) shares of any money market fund that (i) has at
least 95% of its assets invested continuously in the types of investments
referred to in clauses (a) through (c) above, (ii) has net assets of not less
than $500,000,000 and (iii) is rated at least "A-1" by S&P or "P-1" by ▇▇▇▇▇'▇;
provided, however, that the maturities of all obligations of the types specified
in clauses (a) through (c) above shall not exceed 180 days.
"Citibank" means Citibank, N.A.
"Commitment" means, with respect to each Lender, the amount
set forth opposite the name of such Lender on Schedule I hereto as such amount
may be reduced from time to time pursuant to Section 2.10 or 2.11, or increased
or reduced by reason of an assignment to or by such Lender in accordance with
Section 9.07(c).
"Commitment Termination Date" means the earlier to occur of
(i) August 30, 2002 or (ii) the date on which the Commitments shall have been
reduced to zero pursuant to Section 2.09 or 6.01.
"Consolidated Adjusted Net Worth" means, at any date, the sum
of (i) the consolidated stockholders' equity of the Borrower and its
Consolidated Subsidiaries as of December 31, 2001, plus (ii) the cumulative
Adjusted Net Income for the period since December 31, 2001 through the end of
the then most recently ended fiscal quarter of the Borrower, treated for this
purpose as a single accounting period, plus or minus (iii) the net amount by
which the consolidated stockholders' equity of the Borrower and its Consolidated
Restricted Subsidiaries has been increased or decreased since December 31, 2001
on account of items not reflected in Adjusted Net Income (other than items
specifically excluded from Adjusted Net Income pursuant to the terms of this
Agreement and cumulative changes in GAAP, and amounts included in other
comprehensive income under GAAP).
"Consolidated Debt" means at any date the total Debt of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis
as of such date.
"Consolidated EBITDA" means, with respect to the Borrower and
its Consolidated Subsidiaries for any period, an amount equal to (a)
Consolidated Net Income for such period plus (b) the sum of, in each case to the
extent deducted in the calculation of such Consolidated Net Income but without
duplication, (i) any income tax expense, (ii) Consolidated Interest Expense,
(iii) depreciation, depletion, and amortization of intangibles or financing or
acquisition costs, (iv) all other non-cash charges
2
and non-cash losses for such period, and (v) Non-Recurring Items minus (c) the
cash portion of Non-Recurring Items recognized in 2002 when paid and (d) the sum
of, in each case to the extent added in the calculation of such Consolidated Net
Income, but without duplication, (i) any income tax benefit, (ii) interest
income, (iii) gains and losses from extraordinary items for such period, (iv)
any aggregate net gain (but not any aggregate net loss) from the sale, exchange
or other disposition of capital assets currently employed in the trade or
business of the Borrower and its Subsidiaries, and (v) any other non-cash gains.
"Consolidated Interest Coverage Ratio" means, with respect to
the Borrower and its Consolidated Subsidiaries for any period, the ratio of
Consolidated EBITDA to Consolidated Interest Expense for such period.
"Consolidated Interest Expense" means, for the Borrower and
its Consolidated Subsidiaries for any period, total interest expense for such
period determined on a consolidated basis in conformity with GAAP and including,
in any event, interest capitalized during construction for such period.
"Consolidated Net Income" means for any period the net income
(or loss) of the Borrower and its Consolidated Restricted Subsidiaries for such
period before extraordinary items, exclusive of any income (or loss) of any
Unrestricted Subsidiary during such period but including the sum of (i)
dividends received during such period by the Borrower or a Consolidated
Restricted Subsidiary and (ii) the sum of (x) the Borrower's pro rata share of
the net income (calculated before income taxes, interest expense, extraordinary
and unusual items and Non-Recurring Items) of Astaris LLC for such period and
(y) the Shortfall Amount for such period, in each case only to the extent that
the Shortfall Amount is paid to Astaris LLC by the Borrower during such period.
"Consolidated Restricted Subsidiary" means at any date any
Restricted Subsidiary the accounts of which would be consolidated with those of
the Borrower in its consolidated financial statements as of such date.
"Consolidated Subsidiary" means at any date any Subsidiary or
other Person the accounts of which would be consolidated with those of the
Borrower in its consolidated financial statements as of such date, other than
FTI.
"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
(other than the non-negotiable notes of the Borrower issued to its insurance
carriers in lieu of maintenance of policy reserves in connection with its
workers' compensation and auto liability insurance program), (iii) all
obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable, expense accruals and deferred employee
compensation items arising in the ordinary course of business, (iv) all
non-contingent obligations (and, for purposes of Section 5.06 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, other than obligations under direct pay letters
of credit which have already been accounted for under the categories of Debt
described in clauses (i) or (ii) above, (v) all obligations of such Person as
lessee under capital leases reported under GAAP as "debt" on such Person's
balance sheet, (vi) all Debt of others secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person, (vii) all debt of
such Person created or arising under any conditional sale or other title
retention agreement with respect to trade accounts receivable acquired by such
Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
trade accounts receivable) and (viii) all Debt of others Guaranteed
3
by such Person, except for guarantees of Debt related to the financing of
product sales of certain foreign Subsidiaries of the Borrower listed on Schedule
1.01(a).
"Debt Issuance" means the incurrence of Debt of the types
specified in clause (i) and (ii) of the definition of "Debt" by the Borrower or
any of its Subsidiaries.
"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 other similar transaction (including any option with respect to any of the
foregoing transactions) or any combination of the foregoing transactions.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in New York City are authorized or
required by law to close.
"Domestic Lending Office" means, as to each Lender, 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 Lender may hereafter designate as its Domestic
Lending Office by notice to the Borrower and the Administrative Agent.
"Effective Date" means the date this Agreement becomes
effective in accordance with Section 3.01.
"Enforceable Judgment" means a judgment or order of a court or
arbitral or regulatory authority as to which the period, if any, during which
the enforcement of such judgment or order is stayed shall have expired. A
judgment or order which is under appeal or as to which the time in which to
perfect an appeal has not expired shall not be deemed an Enforceable Judgment so
long as enforcement thereof is effectively stayed pending the outcome of such
appeal or the expiration of such period, as the case may be.
"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, petroleum or petroleum
products, 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, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"Equity Issuance" means the issue or sale of any Stock of the
Borrower or any of the Subsidiaries of the Borrower by the Borrower or any of
the Subsidiaries of the Borrower to any Person other than the Borrower or any of
such Subsidiaries, other than the issuance of Stock in connection with any
employee compensation or benefit plan of the Borrower or any of its
Subsidiaries.
4
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
"ERISA Group" means the Borrower, any Restricted 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 Borrower or any Restricted 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 Lender, 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 Lender as it may hereafter designate as its Euro-Dollar Lending Office by
notice to the Borrower and the Administrative Agent.
"Euro-Dollar Loan" means a Loan made or to be made by a Lender
in accordance with a Notice of Borrowing which bears interest based on the
Euro-Dollar Rate.
"Euro-Dollar Margin" means, as of any date of determination, a
per annum rate equal to the rate set forth below opposite the then applicable
Status, set forth below:
================================================================================
Status Level I Level II Level III
================================================================================
Euro-Dollar Loan 1.30% 1.50% 1.675%
--------------------------------------------------------------------------------
"Euro-Dollar Rate" means, with respect to any Interest Period,
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 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
Euro-Dollar Loan of such Reference Bank, to which such Interest Period is to
apply and for a period of time comparable to such Interest Period.
"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 Lender to United States residents).
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreement" means that certain 364-Day Credit
Agreement dated as of December 6, 2001, among the Borrower, the lenders party
thereto and Citibank, as agent, as amended, supplemented or otherwise modified
from time to time.
5
"Facility Fee Rate" means, as of any date of determination, a
per annum rate equal to the rate set forth below opposite the then applicable
Status, set forth below:
================================================================================
Status Level I Level II Level III
================================================================================
Facility Fee Rate 0.20% 0.25% 0.325%
--------------------------------------------------------------------------------
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, 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 the Administrative Agent on
such day (or next preceding Domestic Business Day) on such transactions as
determined by the Administrative Agent.
"FTI" means FMC Technologies, Inc.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and the statements and pronouncements
of the Financial Accounting Standards Board, or in such other statements by such
other entity as may be in general use by significant segments of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt (whether arising by virtue of partnership arrangements, by agreement to
keep-well (but excluding any agreement related to the Shortfall Amount), to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Debt of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); 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.
"Hedging Contracts" means all Interest Rate Contracts, foreign
currency exchange contracts, currency swap or option agreements, equity
deriviatives, forward rate contracts, commodity swap, purchase or option
agreements, and all other similar agreements or arrangements designed to alter
the risks of any Person arising from fluctuations in interest rates, currency
values, equity values or commodity prices.
"Interest Period" means, with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Euro-Dollar Borrowing and
ending one, two, three or six months thereafter, as the Borrower may elect in
its Notice of Borrowing given to the Administrative Agent pursuant to Section
2.02; provided that:
6
(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 immediately preceding Euro-Dollar Business Day;
(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, subject to clause (c) below, end on the last
Euro-Dollar Business Day of the calendar month at the end of such
Interest Period; and
(c) the Borrower may not elect any Interest Period that
would end after the Commitment Termination Date.
(iii) with respect to each Base Rate Borrowing, the period
commencing on the date of such Borrowing and ending 30 days thereafter; provided
that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b) below) which would otherwise end on a
day which is not a Domestic Business Day shall be extended to the next
succeeding Domestic Business Day; and
(b) any Interest Period which would otherwise end after the
Commitment Termination Date shall end on the Commitment Termination
Date.
"Interest Rate Contracts" means all interest rate swap
agreements, interest rate cap agreements, interest rate collar agreements and
interest rate insurance.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, or any successor statute.
"Investment" means any investment by any Person (the
"Investor") in any other Person (the "Investee"), whether by means of share
purchase, capital contribution, loan, time deposit or otherwise. It is
understood that neither (i) an item reflected in the financial statements of the
Investor as an expense nor (ii) an adjustment to the carrying value of the
Investee in the financial statements of the Investor (such as by reason of
increased retained earnings of the Investee) constitutes the making or
acquisition of an Investment for purposes hereof.
"Lender" means each of the financial institution listed on
Schedule I hereto, each Assignee which becomes a Lender pursuant to Section
9.07(c) and their respective successors.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset. For the purpose of this Agreement, the Borrower or any Subsidiary shall
be deemed to own subject to a Lien any asset that 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 Base Rate Loan or a Euro-Dollar Loan made by a
Lender pursuant to Section 2.01. "Loans" means Base Rate Loans or Euro-Dollar
Loans or any combination of the foregoing.
7
"Loan Documents" means this Agreement, the Notes, and any
other documents to be delivered thereunder or in connection therewith and all
amendments thereto and substitutions and replacements therefor and modifications
thereof.
"Material Adverse Effect" means a material adverse effect (i)
on the business, condition (financial or otherwise) or operations or prospects
of the Borrower and its Consolidated Subsidiaries, taken as a whole, or (ii) on
the legality, validity or enforceability of this Agreement or the Notes.
"Material Financial Obligations" means a principal or face
amount of Debt (other than Debt under this Agreement) and/or payment in respect
of Derivatives Obligations of the Borrower and/or one or more of its
Subsidiaries, arising in one or more related or unrelated transactions,
exceeding in the aggregate $25,000,000.
"Material Plan" means any Plan or Plans having aggregate
Unfunded Liabilities in excess of $25,000,000.
"Material Subsidiary" means any Restricted Subsidiary in which
the Borrower has an Investment, direct or indirect, of at least $10,000,000, as
listed on Schedule 1.01(b) hereto.
"Moody's" means ▇▇▇▇▇'▇ 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 is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a member of the ERISA
Group during such five year period.
"Net Cash Proceeds" means proceeds received by the Borrower or
any of its Subsidiaries in cash or Cash Equivalents from any (a) asset sale
outside the ordinary course of business (an "Asset Sale"), net of (i) the
reasonable cash costs of sale, assignment or other disposition, (ii) taxes paid
or payable as a result thereof and (iii) any amount required to be paid or
prepaid on Debt (other than the obligations with respect to this Agreement)
secured by the assets subject to such Asset Sale; provided, however, that the
evidence of each of (i), (ii) and (iii) are provided to the Administrative Agent
in form and substance satisfactory to it; or (b) (i) Equity Issuance or (ii)
Debt Issuance permitted under this Agreement, in each case net of brokers' and
advisors' fees and other costs incurred in connection with such transaction;
provided, however, that in the case of this clause (b) evidence of such costs is
provided to the Administrative Agent in form and substance satisfactory to it.
"Non-Recurring Items" means, to the extent reflected in the
determination of Consolidated Net Income for any period, provisions for
restructuring, discontinued operations, special reserves or other similar
charges including write-downs or write-offs of assets (other than write-downs
resulting from foreign currency translations).
"Notes" means promissory notes of the Borrower, substantially
in the form of Exhibit A, evidencing the obligation of the Borrower to repay the
Loans made to it, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" has the meaning set forth in Section
2.02.
"Parent" means with respect to any Lender, any Person
controlling such Lender.
8
"Participant" has the meaning set forth in Section 9.07(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 partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Internal
Revenue Code and either (i) is maintained, or contributed to, by any member of
the ERISA Group for employees of any member of the ERISA Group or (ii) has at
any time within the preceding five years been maintained, or contributed to, by
any Person which was at such time a member of the ERISA Group for employees of
any Person which was at such time a member of the ERISA Group.
"Principal Officer" means any of the following officers of the
Borrower: Chairman of the Board, President, Secretary, Treasurer, or any Vice
President. If any of the titles of the preceding officers are changed after the
date hereof, the term "Principal Officer" shall thereafter mean any officer
performing substantially the same functions as are presently performed by one or
more of the officers listed in the first sentence of this definition.
"Qualification" means, with respect to any certificate
covering financial statements, a qualification to such certificate (such as a
"subject to" or "except for" statement therein) (i) resulting from a limitation
on the scope of examination of such financial statements or the underlying data,
(ii) as to the capability of the Person whose financial statements are certified
to continue operations as a going concern or (iii) which could be eliminated by
changes in financial statements or notes thereto covered by such certificate
(such as by the creation of or increase in a reserve or a decrease in the
carrying value of assets) and which if so eliminated by the making of any such
change and after giving effect thereto would occasion a Default; provided that
neither of the following shall constitute a Qualification: (a) a consistency
exception relating to a change in accounting principles with which the
independent public accountants for the Person whose financial statements are
being certified have concurred or (b) a qualification relating to the outcome or
disposition of threatened litigation, pending litigation being contested in good
faith, pending or threatened claims or other contingencies, the impact of which
litigation, claims or contingencies cannot be determined with sufficient
certainty to permit quantification in such financial statements.
"Reference Banks" means Citibank and Bank of America, N.A.
"Regulations T, X and U" means such Regulations of the Board
of Governors of the Federal Reserve System, as in effect from time to time.
"Required Lenders" means, collectively, (a) during any period
in which Citibank and Bank of America, N.A. are the sole Lenders, all of the
Lenders, and (b) during any period in which Citibank and Bank of America, N.A.
are not the sole Lenders, Lenders having at least 66 2/3% of the aggregate
amount of the Commitments or, if the Commitments have been terminated, holding
Notes evidencing at least 66 2/3% of the aggregate unpaid principal amount of
the Loans.
"Restricted Subsidiary" means any Subsidiary other than an
Unrestricted Subsidiary.
9
"S&P" means Standard & Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Share" means, with respect to each Lender, a fraction the
numerator of which is such ▇▇▇▇▇▇'s Commitment and the denominator of which is
the aggregate amount of the Commitments.
"Shortfall Amount" means, during any period, the Borrower's
pro rata share of the cash amount required to be contributed to Astaris LLC in
accordance with the terms of the guarantee agreement entered into by the
Borrower in connection with the Five-Year Credit Agreement dated September 14,
2000, among Astaris LLC and the lenders named therein, as amended from time to
time.
"Status" refers to the determination of which of Level I
Status, Level II Status or Level III Status exists at any date.
"Stock" means shares of capital stock (whether denominated as
common stock or preferred stock), beneficial, partnership or membership
interests, participations or other equivalents (regardless of how designated) of
or in a corporation, partnership, limited liability company or equivalent
entity, whether voting or non-voting.
"Subsidiary" means any Person of which securities or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions are at the time
directly or indirectly owned by the Borrower. For purposes of this Agreement,
FTI shall not be deemed to be a Subsidiary.
"Unfunded Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all benefits under
such Plan exceeds (ii) the fair market value of all Plan assets allocable to
such benefits (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.
"Unrestricted Subsidiary" means (i) FMC Funding Corporation
and Astaris LLC and (ii) any other Subsidiary of the Borrower which is declared
to be an Unrestricted Subsidiary by the Borrower by notice to the Lenders;
provided that the sum of all (x) Investments of the Borrower and its Restricted
Subsidiaries in any Subsidiary included in clause (i) above after the date
hereof and (y) Investments of the Borrower and its Restricted Subsidiaries in
Unrestricted Subsidiaries so declared under clause (ii) above shall not
aggregate more than $75,000,000.
SECTION 1.02. 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 United States generally accepted accounting principles as in
effect from time to time applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants) with the most
recent audited consolidated financial statements of the Borrower and its
Consolidated Subsidiaries delivered to the Lenders; provided that if the
Borrower notifies the Administrative Agent that the Borrower wishes to amend any
covenant contained in Article V 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 Borrower that the Required Lenders wish
to amend Article V for such purpose), then the Borrower'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, unless or until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Borrower and the Required Lenders. The
10
Administrative Agent shall promptly notify the Lenders of any notice received
from the Borrower pursuant to this Section 1.02.
SECTION 1.03. Types of Borrowings. The term "Borrowing"
-------------------
denotes the aggregation of Loans of one or more Lenders to be made to the
Borrower pursuant to Article II on a single date and for a single Interest
Period. Borrowings are classified for purposes of this Agreement by reference to
the pricing of Loans comprising such Borrowing (e.g., a "Euro-Dollar Borrowing"
is a Borrowing comprised of Euro-Dollar Loans and a "Base Rate Borrowing" is a
Borrowing comprised of Base Rate Loans).
SECTION 1.04. Pricing Levels. For purposes of this Agreement,
--------------
the following terms have the following meanings, subject to the concluding
paragraph of this Section 1.04:
"Level I Status" exists at any date if, at such date, the
Borrower's senior unsecured long-term debt is rated BBB- and Baa3 or higher.
"Level II Status" exists at any date if, at such date, the
Borrower's senior unsecured long-term debt is rated less than Level I Status,
but at least BBB- or Baa3.
"Level III Status" exists at any date if, at such date, the
Borrower's senior unsecured long-term debt is rated less than Level II Status.
The credit ratings to be utilized for purposes of the
Euro-Dollar Margin and the Facility Fee Rate are those assigned by S&P or
▇▇▇▇▇'▇ to the senior unsecured long-term debt securities of the Borrower
without third-party credit enhancement, and any rating assigned to any other
debt security of the Borrower shall be disregarded. The rating in effect at any
date is that in effect at the close of business on such date.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. Subject to the terms and
-------------------
conditions set forth in this Agreement, each Lender severally and not jointly
agrees, during the period from the Effective Date to but not including the
Commitment Termination Date, to lend to the Borrower in United States Dollars
pursuant to this Section 2.01 from time to time amounts such that the aggregate
principal amount of Loans made by such Lender to the Borrower at any one time
outstanding shall not exceed the amount of its Commitment. Each Borrowing under
this Section 2.01 shall be in an aggregate principal amount of $5,000,000 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)(iii)) and shall be
made from the several Lenders ratably in proportion to their respective
Commitments. Within the limits specified in this Agreement, the Borrower may
borrow pursuant to this Section 2.01, repay, or to the extent permitted by
Section 2.11, prepay Loans and reborrow at any time under this Section 2.01.
Notwithstanding anything herein to the contrary, the Borrower shall not request
any Loan and the Lenders shall be under no obligation to make any such Loan to
the Borrower unless, at the time such Loan is requested, the Borrower is not
able to make a drawing under, or be granted any extension of credit in
connection with, the Existing Credit Agreement.
SECTION 2.02. Notice of Borrowings. The Borrower shall give
--------------------
the Administrative Agent notice (a "Notice of Borrowing") not later than 11:00
A.M. (New York City time) on (x) the date
11
of each Base Rate 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 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 Base
Rate Loans or Euro-Dollar Loans, and
(d) in the case of a Euro-Dollar Borrowing, the duration of
the Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
Notwithstanding the foregoing, no more than ten Euro-Dollar Borrowings shall be
outstanding at any one time, and any Borrowing which would exceed such
limitation shall be made as a Base Rate Borrowing.
SECTION 2.03. [Intentionally Omitted].
-----------------------
SECTION 2.04. Notice to Lenders; Funding of Loans.
-----------------------------------
(a) Upon its receipt of a Notice of Borrowing, the
Administrative Agent shall promptly notify each Lender of the contents thereof
and of such ▇▇▇▇▇▇'s Share (if any) of such Borrowing, and such Notice of
Borrowing shall thereafter be irrevocable by the Borrower.
(b) Not later than 12:00 Noon (New York City time) on the date
of each Borrowing, each Lender participating therein shall (except as provided
in subsection (c) of this Section 2.04) 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 pursuant to Section 9.01.
Unless the Administrative Agent determines that any applicable condition
specified in Article III has not been satisfied, the Administrative Agent will
make the funds so received from the Lenders promptly available to the Borrower
at the Administrative Agent's aforesaid address.
(c) If any Lender makes a new Loan hereunder on a day on which
the Borrower is to repay all or any part of an outstanding Loan from such
Lender, such Lender shall apply the proceeds of its new Loan to make such
repayment and only an amount equal to the difference (if any) between the amount
being borrowed and the amount being repaid shall be made available by such
Lender to the Administrative Agent as provided by subsection (b), or remitted by
the Borrower to the Administrative Agent as provided in Section 2.12, as the
case may be.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such ▇▇▇▇▇▇'s Share of such Borrowing, the
Administrative Agent may assume that such ▇▇▇▇▇▇ has made such Share available
to the Administrative Agent on the date of such Borrowing in accordance with
subsections (b) and (c) 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 Lender shall not have so
made such Share available to the Administrative Agent, such Lender and the
Borrower severally and not jointly 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
12
and the interest rate applicable thereto pursuant to Section 2.07 and (ii) in
the case of such Lender, the Federal Funds Rate. If such Lender shall repay to
the Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Loan included in such Borrowing for purposes of this
Agreement.
SECTION 2.05. Notes.
-----
(a) The Loans of each Lender to the Borrower shall, if
requested by such Lender, be evidenced by a single Note of the Borrower payable
to the order of such Lender for the account of its Applicable Lending Office in
an amount equal to such ▇▇▇▇▇▇'s Commitment.
(b) Upon receipt of any ▇▇▇▇▇▇'s Note pursuant to Section
3.01(a), the Administrative Agent shall forward such Note to such Lender. Each
Lender shall record in accordance with its usual business practices the date,
amount, type 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 may, if
such Lender so elects in connection with any transfer or enforcement of its
Note, 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 neither the failure of any Lender to make any such
recordation or endorsement nor any error therein shall affect the obligations of
the Borrower hereunder or under the Notes. Each Lender is hereby irrevocably
authorized by the Borrower to so endorse its Note and to attach to and make a
part of its Note a continuation of any such schedule as and when required.
SECTION 2.06. Maturity of Loans. Each Loan included in any
-----------------
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing;
provided that all Loans shall be due and payable on the Commitment Termination
Date.
SECTION 2.07. 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 for each Interest Period on the last day thereof. Any
overdue principal of or 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 rate otherwise applicable to Base Rate Loans for such day.
(b) Each Euro-Dollar 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 sum of (i) the Euro-Dollar
Rate applicable to such Interest Period and (ii) the Euro-Dollar Margin. Such
interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than one month, at intervals of one month
after the first day thereof. Any overdue principal of or 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 Euro-Dollar Rate applicable
to the Interest Period for such Loan and (ii) the sum of the Euro-Dollar Margin
plus the quotient obtained (rounded upward, if necessary, to the next higher
1/100 of 1%) by dividing (x) the average (rounded upward, if necessary, to the
next higher 1/16 of 1%) of the respective rates per annum at which one day (or,
if such amount due remains unpaid more than three Euro-Dollar Business Days,
then for such period of time not longer than three months as the Administrative
Agent may select) deposits in dollars in an amount approximately equal to such
overdue payment due to each of the Reference Banks are offered to such
Euro-Dollar Reference Bank in the London interbank market for the applicable
period
13
determined as provided above by (y) 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in clause (a) or (b) of Section
8.01 shall exist, at a rate per annum equal to the sum of 2% plus the rate
applicable to Base Rate Loans for such day).
(c) 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 Lenders of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
(d) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated by this Section 2.07. If
any Reference Bank does not furnish a timely quotation, the Administrative Agent
shall determine the relevant interest rate on the basis of the quotation or
quotations furnished by the remaining Reference Bank or Banks or, if none of
such quotations is available on a timely basis, the provisions of Section 8.01
shall apply.
(e) Notwithstanding the rates of interest specified in this
Section 2.07 or elsewhere herein, effective immediately upon the occurrence of
an Event of Default, and for as long thereafter as such Event of Default shall
be continuing, the principal balance of all Loans 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 applicable interest rate then in effect for such day.
SECTION 2.08. Fees.
----
(a) The Borrower shall pay to the Administrative Agent for the
account of the Lenders ratably in proportion to their respective Shares (or, if
the Commitments shall have been terminated, in proportion to the aggregate
principal amount of their Loans outstanding), a facility fee at the Facility Fee
Rate. Such facility fee shall accrue (i) from and including the Effective Date
to but excluding the Commitment Termination Date, on the daily average aggregate
amount of the Commitments (whether used or unused) and (ii) from and including
the Commitment Termination Date to but excluding the date the Loans shall be
repaid in their entirety, on the daily average aggregate outstanding principal
amount of the Loans.
(b) Accrued and unpaid fees under this Section 2.08 shall be
payable monthly in arrears on the last day of each calendar month and any
balance shall be payable upon the Commitment Termination Date.
SECTION 2.09. Mandatory Termination of Commitments. The
------------------------------------
Commitments shall terminate on the Commitment Termination Date, and any Loans
then outstanding (together with accrued and unpaid interest thereon) shall be
due and payable on such date. The aggregate outstanding principal amount of the
Loans shall at no time exceed the aggregate of the Commitments. If on any date
on which the Commitments are reduced the aggregate outstanding principal amount
of the Loans exceeds the aggregate of the Commitments as so reduced, then the
Borrower shall be obligated to repay (together with accrued and unpaid interest
to the date of repayment) on such date a principal amount of the Loans equal to
such excess.
SECTION 2.10. Mandatory Prepayment. Upon receipt by the Borrower
--------------------
or any of its Consolidated Subsidiaries of any Net Cash Proceeds, the Borrower
shall immediately prepay the Loans in an amount equal to 100% of such Net Cash
Proceeds; provided that, in the case of Net Cash Proceeds in respect of Asset
Sales, the Borrower shall only be required to prepay the Loans to the extent
that such Net
14
Cash Proceeds shall exceed $5,000,000 in the aggregate. Effective upon each such
prepayment, each Lender's Commitment shall be permanently reduced by such
Lender's ratable share of such prepayment.
SECTION 2.11. Optional Prepayments.
--------------------
(a) Subject in the case of any Euro-Dollar Loans to Section 2.13,
the Borrower may, (x) upon notice to the Administrative Agent not later than
10:30 A.M. (New York City time) on the date of prepayment, prepay any Base Rate
Borrowing and (y) upon not less than two Euro-Dollar Business Days' notice to
the Administrative Agent, prepay any Euro-Dollar Borrowing, in whole at any
time, or in part from time to time in amounts aggregating $5,000,000 or any
larger multiple of $1,000,000 thereof, by paying the principal amount being
prepaid together with interest accrued and unpaid thereon to the date of
prepayment. Each such optional prepayment shall be applied to prepay ratably the
Loans of the several Lenders included in such Borrowing.
(b) Upon receipt of a notice of prepayment pursuant to this
Section 2.11, the Administrative Agent shall promptly notify each Lender of the
contents thereof and of such ▇▇▇▇▇▇'s ratable share of such prepayment, and such
notice shall thereafter be irrevocable by the Borrower.
SECTION 2.12. Payments.
--------
(a) The Borrower shall make each payment of principal of, and
interest on, the Loans and of fees payable and of additional compensation
hereunder, not later than 12:00 Noon (New York City time) on the date when due,
in Federal or other funds immediately available, without set-off, counterclaim
or deduction of any kind (except as otherwise expressly agreed), to the
Administrative Agent at its address referred to in Section 9.01. The
Administrative Agent will promptly distribute to each Lender in like funds its
ratable share of each such payment received by the Administrative Agent for the
account of the Lenders. The Borrower shall repay each Loan in full on a date
which is no later than the Commitment Termination Date.
(b) Whenever any payment of principal of, or interest on, the
Base Rate Loans or of fees or additional compensation hereunder 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. 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.
(c) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the 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 Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent that the Borrower shall not have so made such payment, each Lender shall
repay to the Administrative Agent forthwith on demand such amount distributed to
such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Administrative Agent, at the Federal Funds Rate.
15
SECTION 2.13. Funding Losses. If the Borrower makes any payment
--------------
of principal with respect to any Euro-Dollar Loan (pursuant to Article VI or
VIII or otherwise) on any day other than the last day of the Interest Period
applicable thereto, or if the Borrower fails to borrow or prepay any Euro-Dollar
Loans after notice has been given to any Lender in accordance with Section
2.04(a) or 2.11(c), the Borrower shall reimburse each Lender on demand for any
resulting loss or expense incurred by it (or by an existing or prospective
Participant in the related Loan), including any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after any such payment or failure to borrow; provided that
such Lender shall have delivered to the Borrower a certificate as to the amount
of such loss or expense, which certificate shall be conclusive in the absence of
manifest error.
SECTION 2.14. Computation of Interest and Fees. Interest based on
--------------------------------
the Base Rate hereunder (if based on clause (a) of the definition of "Base
Rate") 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 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).
SECTION 2.15. Regulation D Compensation. Each Lender may require
-------------------------
the Borrower to pay, contemporaneously with each payment of interest on
Euro-Dollar Loans, additional interest on the related Euro-Dollar Loan of such
Lender at a rate per annum determined by such Lender up to but not exceeding the
excess of (i) (A) the applicable Euro-Dollar Rate divided by (B) one minus the
Euro-Dollar Reserve Percentage over (ii) the applicable Euro-Dollar Rate. Any
Lender 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 Lender shall be payable to such Lender
at the place indicated in such notice with respect to each Interest Period
commencing at least three Euro-Dollar Business Days after such Lender gives such
notice and (y) shall notify the Borrower at least five Euro-Dollar Business Days
before each date on which interest is payable on the Euro-Dollar Loans of the
amount then due under this Section 2.15.
SECTION 2.16. Withholding Tax Exemption. On the Effective Date,
-------------------------
each Lender that is not incorporated or organized under the laws of the United
States of America or a state thereof agrees that it will deliver to each of the
Borrower and the Administrative Agent two duly completed copies of United States
Internal Revenue Service (i) Form W-8ECI (claiming exemption from withholding
because the income is effectively connected with a U.S. trade or business) (or
any successor form) or (ii) Form W-8BEN (claiming exemption from, or a reduction
of, withholding tax under an income tax treaty) (or any successor form),
certifying in either case that such Lender is entitled to receive payments under
this Agreement and the Notes without deduction or withholding of any United
States federal income taxes. Each Lender which so delivers a Form W-8ECI or Form
W-8BEN further undertakes to deliver to each of the Borrower and the
Administrative Agent two additional copies of such form (or a successor form) on
or before the date that such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form so delivered
by it, and such amendments thereto or extensions or renewals thereof as may be
reasonably requested by the Borrower or the Administrative Agent, in each case
certifying that such Lender is entitled to receive payments under this Agreement
and the Notes without deduction or withholding of any United States federal
income taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender advises the Borrower and the
Administrative Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
16
Article III
CONDITIONS TO EFFECTIVENESS AND BORROWINGS
SECTION 3.01. Conditions Precedent to Effectiveness. The
-------------------------------------
effectiveness of this Agreement is subject to (a) the receipt by the
Administrative Agent of executed counterparts of this Agreement by the Borrower
and each Lender and the receipt by the Administrative Agent of a sufficient
number of copies of each of the following on or before the Effective Date, each,
unless otherwise noted, dated the Effective Date, and in form and substance
satisfactory to the Administrative Agent:
(i) a copy of the Certificate of Incorporation of the Borrower,
certified as of a recent date by the Secretary of State of the State of
Delaware, a copy of the By-Laws of the Borrower, certified by the
Secretary or an Assistant Secretary of the Borrower, and a good standing
certificate for the Borrower from the Secretary of State of the State of
Delaware; and
(ii) (A) an opinion of ▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for
the Administrative Agent, substantially in the form of Exhibit B hereto,
dated as of the Effective Date; and
(B) an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇, in-house counsel to the
Borrower, substantially in the form of Exhibit C hereto, dated as
of the Effective Date; and
(iii) the Notes, if requested by the Lenders; and
(iv) all documents (including an incumbency certificate for the
Borrower and certification by the Secretary or Assistant Secretary of
the Borrower of the board resolutions approving this Agreement and the
other documents and transactions contemplated hereby) the Administrative
Agent may reasonably request relating to the existence of the Borrower,
the corporate authority for and the validity of this Agreement, and any
other matter relevant hereto, all in form and substance satisfactory to
the Administrative Agent; and
(b) The condition precedent that, except to the extent provided
below, the representations and warranties of the Borrower contained in Article
IV are true and correct in all material respects on and as of the date hereof,
except to the extent that any such representation or warranty expressly relates
only to an earlier date, in which case it was correct as of such earlier date.
SECTION 3.02. Conditions Precedent to Each Borrowing. The
--------------------------------------
obligation of each Lender to make a Loan on the occasion of a Borrowing
(including the initial Borrowing) shall be subject to the satisfaction of the
following conditions precedent:
(a) in the case of a Borrowing, the Administrative Agent shall
have received a Notice of Borrowing with respect thereto in accordance with
Section 2.02; and
(b) on the date of such Borrowing the following statements
shall be true (and each of the giving of the Notice of Borrowing and the
acceptance by the Borrower of the proceeds of such Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such Borrowing
such statements are true):
(i) except to the extent provided below, the
representations and warranties of the Borrower contained in
Article IV are true and correct in all material respects on and
as of the date of such Borrowing, before and after giving effect
to such
17
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date, except to the extent that any such
representation or warranty expressly relates only to an earlier date,
in which case it was correct as of such earlier date; provided that
the representations contained in Section 4.04(c) and Section 4.05 need
only be true and correct on the Effective Date;
(ii) no event has occurred and is continuing, or would result
from such Borrowing or from the application of the proceeds therefrom,
which constitutes a Default or Event of Default; and
(iii) immediately after such Borrowing the aggregate outstanding
principal amount of the Loans will not exceed the aggregate amount of
the Commitments; and
(iv) as of the date of such Borrowing, the Borrower is not able
to borrow funds or to be granted any extension of credit under the
Existing Credit Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants as to itself and its Subsidiaries
that:
SECTION 4.01. Corporate, Limited Liability Company or Partnership
---------------------------------------------------
Existence and Power. The Borrower and each Material Subsidiary (i) is a
-------------------
corporation, limited liability company or partnership duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, (ii) has all corporate, limited liability company or partnership
powers and all material governmental licenses, authorizations, consents and
approvals required to carry on its business and (iii) is duly qualified as a
foreign corporation, limited liability company or partnership and in good
standing in each jurisdiction where qualification is required by the nature of
its business or the character and location of its property, business or
customers, except, as to clauses (ii) and (iii), where the failure to so qualify
or to have such licenses, authorizations, consents and approvals, in the
aggregate, would not have a Material Adverse Effect.
SECTION 4.02. Corporate and Governmental Authorization; No
--------------------------------------------
Contravention. The execution, delivery and performance by the Borrower of this
-------------
Agreement and the Notes are within the Borrower's corporate power, 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 Borrower or
of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Borrower or result in or require the creation or imposition of
any Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a legal,
--------------
valid and binding agreement of the Borrower and the Notes which, when executed
and delivered in accordance with this Agreement, will constitute the legal,
valid and binding obligations of the Borrower, in each case enforceable in
accordance with their respective terms.
18
SECTION 4.04. Financial Information.
---------------------
(a) The consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of December 31, 2000, and the related consolidated
statements of income, cash flows and changes in stockholders' equity for the
fiscal year then ended, reported on by KPMG Peat Marwick and set forth in the
Borrower's Annual Report on Form 10-K for the fiscal year ended December 31,
2000, filed with the Securities and Exchange Commission, a copy of which has
been delivered to each of the Lenders, fairly present in all material respects,
in conformity with generally accepted accounting principles consistently
applied, the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations, cash flows and changes in stockholders' equity for such fiscal year.
(b) The consolidated unaudited balance sheet of the Borrower and its
Consolidated Subsidiaries as of September 30, 2001, and the related consolidated
statements of income, cash flows and changes in stockholders' equity for that
portion of the fiscal year ending as of the close of such fiscal quarter,
setting forth in comparative form the figures for the corresponding period in
the prior year, set forth in the Borrower's Form 10-Q for the fiscal quarter
ended September 30, 2001, filed with the Securities and Exchange Commission, a
copy of which has been delivered to each of the Lenders, fairly present in all
material respects, in conformity with generally accepted accounting principles
consistently applied, the consolidated financial position of the Borrower and
its Consolidated Subsidiaries as of such date and their consolidated results of
operations, cash flows and changes in stockholders' equity for such fiscal
quarter.
(c) Since December 31, 2000, there has been no change which has a
Material Adverse Effect.
SECTION 4.05. Litigation. There is no action, suit, proceeding or
----------
arbitration pending against, or to the knowledge of the Borrower threatened
against or affecting, the Borrower or any of its Subsidiaries before any court
or arbitrator or any governmental body, agency or official in which there is a
reasonable likelihood of an adverse decision which would have a Material Adverse
Effect or which in any manner questions the validity or enforceability of this
Agreement or the Notes.
SECTION 4.06. Compliance with ERISA. 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 made any amendment
to any Plan which, in either case, 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.
SECTION 4.07. Environmental Matters. In the ordinary course of its
---------------------
business, the Borrower conducts an ongoing review of the effect of Environmental
Laws on the business, operations and properties of the Borrower and its
Subsidiaries, in the course of which it identifies and evaluates associated
liabilities and costs (including, 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 protection standards imposed by law or as
a condition of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or
19
change in the nature of operations conducted thereat and any actual or potential
liabilities to third parties, including employees, and any related costs and
expenses). On the basis of this review, there is no violation by the Borrower
and its Subsidiaries of any Environmental Law that is reasonably likely to
result in a Material Adverse Effect.
SECTION 4.08. Taxes. United States Federal income tax returns of the
-----
Borrower and its Consolidated Subsidiaries have been examined and closed through
the fiscal year ended December 31, 1997. The Borrower and each of its
Consolidated Subsidiaries have filed all United States Federal income tax
returns and all other material tax returns that are required to be filed by them
and have paid all taxes due pursuant to such returns or pursuant to any
assessment received by any of them, except for any such taxes being diligently
contested in good faith and by appropriate proceedings. Adequate reserves have
been provided on the books of the Borrower and its Consolidated Subsidiaries in
respect of all taxes or other governmental charges in accordance with generally
accepted accounting principles, and no tax liabilities in excess of the amount
so provided are anticipated that could reasonably be expected to have a Material
Adverse Effect.
SECTION 4.09. Full Disclosure. All information heretofore furnished
---------------
by the Borrower or any of its Subsidiaries to the Administrative Agent or any
Lender for purposes of or in connection with this Agreement or any transaction
contemplated hereby was, and all such information hereafter furnished by the
Borrower or any of its Subsidiaries to the Administrative Agent or any Lender
will be, true and accurate in every material respect or based on reasonable
estimates on the date as of which such information is stated or certified.
SECTION 4.10. Compliance with Laws. The Borrower and each Material
--------------------
Subsidiary are in compliance with all applicable laws, rules and regulations,
other than such laws, rules or regulations (i) the validity or applicability of
which the Borrower or such Subsidiary is contesting in good faith or (ii) the
failure to comply with which cannot reasonably be expected to have a Material
Adverse Effect.
SECTION 4.11. Not an Investment Company. The Borrower is not an
-------------------------
"investment company" or a company controlled by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or a "holding
company" or a "subsidiary company" of a "holding company" within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
SECTION 4.12. Margin Regulations. The Borrower is not engaged in the
------------------
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U of the Federal Reserve Board), and no
proceeds of any Borrowing will be used to purchase or carry any margin stock or
to extend credit to others for the purpose of purchasing or carrying any margin
stock in contravention of Regulation T, U or X of the Federal Reserve Board.
SECTION 4.13. Pari Passu Obligations. This Agreement and the other
----------------------
Loan Documents and the obligations evidenced hereby and thereby are and will at
all times be direct and unconditional general obligations of the Borrower, and
rank and will at all times rank in right of payment and otherwise at least pari
passu with all unsecured Debt of the Borrower, whether now existing or hereafter
outstanding, subject to statutory priority and the effect of bankruptcy and
insolvency law.
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ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Lender has any Commitment
hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to each of the
-----------
Lenders:
(a) within 90 days after the end of each fiscal year of the Borrower,
a consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such fiscal year and the related consolidated
statements of income, cash flows and changes in stockholders' equity for
such fiscal year, setting forth in each case in comparative form the
figures as of the end of and for the previous fiscal year, all in
reasonable detail and reported on without Qualification by KPMG Peat
Marwick or any other independent public accountants of nationally
recognized standing acceptable to the Administrative Agent;
(b) within 45 days after the end of each of the first three quarters
of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such quarter,
and the related consolidated statements of income for such quarter and for
the portion of the Borrower's fiscal year ended at the end of such quarter
and the related consolidated statement of cash flows for the portion of the
Borrower's fiscal year ended at the end of such quarter, setting forth in
each case in comparative form the consolidated balance sheet as of the end
of the previous fiscal year and the consolidated statements of income for
the corresponding quarter and the corresponding portion of the Borrower's
previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation and consistency by the chief
financial officer, the treasurer or the chief accounting officer of the
Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) of this Section 5.01, a
certificate of the Borrower executed by the chief financial officer, the
treasurer or the chief accounting officer of the Borrower (i) setting forth
in reasonable detail such calculations as are required to establish whether
the Borrower was in compliance with the requirements of Section 5.11 on the
date of such financial statements and (ii) stating whether there exists on
the date of such certificate any Default and, if any Default then exists,
setting forth the details thereof and the action that the Borrower is
taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) of this Section 5.01, a
schedule, certified as to its accuracy and completeness by the chief
financial officer, the treasurer or the chief accounting officer of the
Borrower, listing in reasonable detail the Debt balance of each Restricted
Subsidiary where such Debt balance is in excess of $1,000,000, listing only
Debt instruments of $1,000,000 or more; provided that no such schedule need
be furnished if at the date of the related financial statements (i) the
aggregate amount of Debt of domestic Restricted Subsidiaries did not exceed
$100,000,000 and (ii) the aggregate amount of Debt of all Restricted
Subsidiaries did not exceed $125,000,000;
(e) within five Domestic Business Days after any Principal Officer of
the Borrower obtains knowledge of any Default, if such Default is then
continuing, a certificate of the Borrower executed by the chief financial
officer, the treasurer or the chief accounting officer of the
21
Borrower setting forth the details thereof and the action that the Borrower is
taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and
proxy statements so mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent), annual, quarterly or monthly
reports and any reports on Form 8-K (or any successor form) that the
Borrower or any of its Subsidiaries shall have filed with the
Securities and Exchange Commission;
(h) within 14 days after 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 which liability exceeds $1,000,000 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 makes any amendment to any Plan which in either case 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,
the chief accounting officer or the treasurer of the Borrower setting
forth details as to such occurrence and the action, if any, which the
Borrower or applicable member of the ERISA Group is required or
proposes to take;
(i) as soon as practicable after a Principal Officer obtains
knowledge of the commencement of an action, suit or proceeding against
the Borrower or any Subsidiary before any court or arbitrator or any
governmental body, agency or official in which there is a reasonable
likelihood of an adverse decision which would have a Material Adverse
Effect or which in any manner questions the validity or enforceability
of this Agreement or any of the transactions contemplated hereby,
information as to the nature of such pending or threatened action, suit
or proceeding; and
(j) from time to time such additional information regarding the
business, properties, financial position, results of operations, or
prospects of the Borrower or any of its Subsidiaries as the
Administrative Agent, at the request of any Lender, may reasonably
request.
SECTION 5.02. Payment of Obligations. The Borrower will pay and
----------------------
discharge, and will cause each of its Subsidiaries to pay and discharge, at or
before maturity, all of its material obligations and liabilities and all lawful
taxes, assessments and governmental charges or levies upon it or its property or
assets, except where the same may be diligently contested in good faith by
appropriate proceedings or where the failure to so pay and discharge would not
have a Material Adverse Effect, and will maintain, and will cause each of its
Subsidiaries to maintain, in accordance with United States
22
generally accepted accounting principles as in effect from time to time,
appropriate reserves for the accrual of any of the same.
SECTION 5.03. Maintenance of Property; Insurance.
----------------------------------
(a) The Borrower will keep, and will cause each Restricted
Subsidiary to keep, all material property useful and necessary in its business
in good working order and condition, normal wear and tear excepted.
(b) The Borrower will, and will cause each of its Material
Subsidiaries to, maintain (either in the name of the Borrower or in such
Subsidiary's own name) with financially sound and responsible insurance
companies, insurance on all of its properties in at least such amounts and
against at least such risks (and with such risk retention) as are usually
maintained in the same general area by companies of established repute engaged
in the same or a similar business; and will furnish to the Lenders, upon request
from the Administrative Agent, information presented in reasonable detail as to
the insurance so carried.
SECTION 5.04. Inspection of Property, Books and Records. The
-----------------------------------------
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. Subject to limitations imposed by law or contract on access to and
dissemination of classified or other confidential information, the Borrower will
permit, and will cause each of its Subsidiaries to permit, representatives of
any Lender to visit and inspect any of its properties, to examine its corporate,
financial and operating records and make copies thereof or abstracts therefrom,
and to discuss affairs, finances and accounts with directors, officers,
employees and independent public accountants, all at such reasonable times and
as often as may reasonably be desired, upon reasonable advance notice to the
Borrower.
SECTION 5.05. Maintenance of Existence, Rights, Etc.
-------------------------------------
(a) Subject to Section 5.07, the 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 their respective corporate,
limited liability company or partnership existence and its rights, privileges
and franchises necessary or desirable in the normal conduct of business, except
when failure to do so would not result in a Material Adverse Effect; provided
that nothing in this Section 5.05 shall prohibit (i) the merger of a Restricted
Subsidiary into the Borrower in a transaction permitted under Section 5.07 or
the merger or consolidation of a Restricted Subsidiary with or into another
Person if, in each case, after giving effect thereto, no Default shall have
occurred and be continuing or (ii) the termination of the corporate, limited
liability company or partnership existence of any Restricted Subsidiary if the
Borrower in good faith determines that such termination is in the best interest
of the Borrower and will not result in a Material Adverse Effect.
(b) At no time will any Unrestricted Subsidiary hold, directly or
indirectly, any capital stock of any Restricted Subsidiary.
SECTION 5.06. Liens. The Borrower will not, and will not permit
-----
any Restricted Subsidiary to, create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it, except:
(a) Liens existing on the date hereof securing Debt outstanding
on the date hereof;
23
(b) Liens incidental to the conduct of its business or the
ownership of its assets which (i) arise in the ordinary course of
business, (ii) do not secure Debt 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;
(c) Liens on property or assets of any Person existing at the
time such Person becomes a Restricted Subsidiary;
(d) Liens on any property or assets existing at the time of
acquisition thereof (including acquisition through merger or
consolidation) or to secure the payment of all or any part of the
purchase price or construction cost thereof or to secure any Debt
incurred prior to, at the time of or within 120 days after the later of
the acquisition of such property or assets or shares of stock or Debt
or the completion of any such construction and the commencement of
operation of such property, for the purpose of financing all or any
part of the purchase price or construction cost thereof;
(e) Liens in favor of a governmental unit to secure payments
under any contract or statute, or to secure any Debt incurred in
financing the acquisition, construction or improvement of property
subject thereto, including Liens on, and created or arising in
connection with the financing of the acquisition, construction or
improvement of, any facility used or to be used in the business of the
Borrower or any Subsidiary through the issuance of obligations, the
income from which shall be excludable from gross income by virtue of
Section 103 of the Internal Revenue Code (or any subsequently adopted
provisions thereof providing for a specific exclusion from gross
income);
(f) Liens on assets of Restricted Subsidiaries securing Debt
owing to the Borrower;
(g) any extension, renewal, substitution, or replacement (or
successive extensions, renewals, substitutions or replacements), in
whole or in part, of any Lien referred to in clauses (a) through (f)
above or the Debt secured thereby; provided that (1) such extension,
renewal, substitution or replacement Lien shall be limited to all or
any part of the same property or assets, shares of stock or Debt that
was subject to the Lien extended, renewed, substituted or replaced
(plus improvements on such property) and (2) the Debt secured by such
Lien at such time is not increased; and
(h) other Liens securing Debt in an aggregate principal amount at
any time outstanding not to exceed $50,000,000; provided that,
notwithstanding the foregoing, the Borrower will not, and will not
permit any Restricted Subsidiary to, create, assume or suffer to exist
any Lien on any stock, Debt or other security of any Unrestricted
Subsidiary now owned or hereafter acquired by it.
SECTION 5.07. Consolidations, Mergers and Sales of Assets. The
-------------------------------------------
Borrower will not and will not permit any of its domestic Material Subsidiaries
to (i) consolidate with or merge with or into any other Person or (ii) sell,
assign, lease, transfer or otherwise dispose of all or substantially all of its
assets to any other Person; provided that (x) the Borrower may consolidate or
merge with or into another Person if (A) immediately after giving effect to such
consolidation or merger, no Default shall have occurred and be continuing, (B)
the surviving entity is a domestic corporation and (C) the Person surviving such
consolidation or merger is the Borrower and (y) any domestic Material Subsidiary
may consolidate or merge with or into the Borrower or another domestic Material
Subsidiary if (A) immediately after giving effect to such consolidation or
merger, no Default shall have occurred and be continuing, (B) the surviving
entity is a domestic corporation and (C) the Person surviving such
24
consolidation or merger (other than a consolidation or merger with or into the
Borrower) is a domestic Material Subsidiary.
SECTION 5.08. Change in Nature of Business. The Borrower will not
----------------------------
make or permit to be made any material change to the nature of the business of
the Borrower and its Consolidated Subsidiaries, taken as a whole, as carried on
as of the date hereof.
SECTION 5.09. Use of Proceeds. The proceeds of the Borrowings
---------------
under this Agreement will be used by the Borrower for general corporate
purposes. None of such proceeds will be used, directly or indirectly, in
violation of Regulation T, U or X of the Federal Reserve System.
SECTION 5.10. Compliance with Laws. The Borrower will comply, and
--------------------
cause each of its Subsidiaries to comply, in all material respects with all
requirements of law (including, without limitation, ERISA, Environmental Laws
and the rules and regulations thereunder), except where failure to so comply
would not have a Material Adverse Effect.
SECTION 5.11. Financial Covenants.
-------------------
(a) The Borrower and its Consolidated Subsidiaries will maintain
a ratio of Consolidated Debt to Consolidated EBITDA, as determined on the last
day of each fiscal quarter, for the four fiscal quarters ending on such day, of
not more than 3.50 to 1.0.
(b) The Borrower and its Consolidated Subsidiaries shall maintain
a Consolidated Interest Coverage Ratio, as determined on the last day of each
fiscal quarter, for the four fiscal quarters ending on such day, of not less
than 4.25 to 1.0.
(c) The Borrower and its Consolidated Subsidiaries shall maintain
a Consolidated Adjusted Net Worth, as determined on the last day of each fiscal
quarter beginning on the fiscal quarter ended March 31, 2002 of not less than
90% of Consolidated Adjusted Net Worth as at December 31, 2001; provided that
the amount of Consolidated Adjusted Net Worth required to be maintained under
this Section 5.11(c) shall be increased at the end of each fiscal quarter
beginning on the fiscal quarter ended March 31, 2002 by an amount equal to 50%
of Adjusted Net Income (if a positive number) for such fiscal quarter.
SECTION 5.12. Hedging Contracts. The Borrower will not, and will
-----------------
not permit any of its Subsidiaries to, enter into any Hedging Contract solely
for speculative purposes or other than for the purpose of hedging risks
associated with the businesses of the Borrower and its Subsidiaries, as done in
the ordinary course of such businesses.
Article VI
DEFAULTS
SECTION 6.01. Defaults. If one or more of the following events
--------
("Events of Default") shall have occurred and be continuing:
(a) any principal of any Loan shall not be paid when due, or any
interest, any fees or other amount payable hereunder shall not be paid
within three Domestic Business Days of the due date thereof;
25
(b) the Borrower shall fail to observe or perform any covenant
contained in Section 5.01(e), 5.05, 5.06, 5.07, 5.09 or 5.11;
(c) the Borrower shall fail to observe or perform any of its
covenants or agreements 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 Borrower by the Administrative Agent at the
request of any Lender;
(d) any representation, warranty, certification or statement by
the Borrower made in this Agreement or in any certificate, financial
statement or other document delivered pursuant hereto or deemed to be
made pursuant to Section 3.01 shall have been incorrect in any material
respect when made or deemed to be made;
(e) the Borrower and/or one or more of its Subsidiaries shall
fail to make any payment in respect of Material Financial Obligations
when due after giving effect to any applicable grace period;
(f) any event or condition shall occur that (i) results in the
acceleration of the maturity of any Material Financial Obligation or
(ii) enables the holder or holders of any Material Financial
Obligation, or any Person acting on behalf of such holder or holders,
to accelerate the maturity thereof; provided that no Event of Default
under this clause (ii) shall occur unless and until any required notice
has been given and/or period of time has elapsed with respect to any
such Material Financial Obligation so as to perfect such right to
accelerate; and provided further, that no Event of Default under this
clause (ii) shall occur during the 45 day period following the
Effective Date if (x) the event or condition that shall have occurred
enabling the holder or holders of any Material Financial Obligation, or
any Person acting on behalf of such holder or holders, to accelerate
the maturity thereof shall be a failure of the Borrower to comply with
informational requests or reporting requirements under such Material
Financial Obligation and (y) no notice of default shall have been
delivered to the Borrower by such holder or holders (or Person acting
on their behalf) in connection with such event or condition;
(g) the Borrower or any Material Subsidiary 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 Borrower or any Material Subsidiary 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 Borrower or any Material
Subsidiary under the Federal bankruptcy laws as now or hereafter in
effect;
26
(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
could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $25,000,000;
(j) one or more Enforceable Judgments for the payment of money in an
aggregate amount exceeding $25,000,000 shall be rendered against the
Borrower or any Material Subsidiary and shall continue unsatisfied and
unstayed for a period of 30 days; or
(k) (i) any Person or two or more Persons acting in concert (other
than a Plan or Plans) 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, as amended) of 20% or more of the
outstanding shares of voting stock of the Borrower; or (ii) during any
period of 12 consecutive months, commencing before or after the date of
this Agreement, individuals who at the beginning of such 12 month period
were directors of the Borrower (together with any new directors whose
election by the Borrower's board of directors or whose nomination for
election by the Borrower's stockholders was approved by a vote of a
majority of the directors then still in office who either were directors at
the beginning of such period or whose election or nomination was previously
so approved) cease for any reason to constitute a majority of the board of
directors of the Borrower;
then, and in every such event, the Administrative Agent shall, if requested by
the Required Lenders, by notice to the Borrower, terminate the Commitments, and
the Commitments shall thereupon terminate, and declare the Loans (together with
accrued interest thereon) and all other amounts payable by it hereunder to be,
and such Loans and amounts 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 Borrower; provided that:
(A) in the case of any of the Events of Default specified in
clause (g) or (h) of this Section 6.01 with respect to the Borrower,
immediately and without any notice to the Borrower or any other act by
the Administrative Agent or the Lenders, and
(B) in the case of any of the Events of Default specified in
clause (k) of this Section 6.01, unless the Required Lenders shall
have waived such Event of Default within 30 days of its occurrence, on
the 30th day after such occurrence,
the Commitments shall terminate and the Loans (together with accrued interest
thereon) and all other amounts payable by the Borrower hereunder shall become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower.
27
SECTION 6.02. Notice of Default. The Administrative Agent shall give
-----------------
notice to the Borrower under Section 6.01(c) promptly upon being requested to do
so by any Lender and shall thereupon notify all the Lenders thereof.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Appointment and Authorization. Each Lender 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.
SECTION 7.02. Administrative Agent and Affiliates. Citibank shall
-----------------------------------
have the same rights and powers under this Agreement as any other Lender and may
exercise or refrain from exercising the same as though it were not the
Administrative Agent, and Citibank and its affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with, the Borrower
or any Subsidiary or affiliate of the Borrower as if it were not the
Administrative Agent hereunder.
SECTION 7.03. Action by 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 or Event of Default, except as
expressly provided in Article VI.
SECTION 7.04. Consultation with Experts. The Administrative Agent may
-------------------------
consult with legal counsel (who may be counsel for the 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.
SECTION 7.05. Liability of Administrative Agent. Neither the
---------------------------------
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable to any Lender for any action taken or not taken by it in
connection herewith (i) with the consent or at the request of the Required
Lenders (or, if specifically required by Section 9.04, all of the Lenders) or
(ii) in the absence of its own gross negligence or willful misconduct. Neither
the Administrative Agent nor any of its 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 borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of the Borrower; (iii) the satisfaction of any
condition specified in Article III, 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 to be genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Lender shall, ratably in
---------------
accordance with its Commitment, indemnify the Administrative Agent (to the
extent not reimbursed by the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from the Administrative Agent's gross negligence or
willful misconduct) that the Administrative Agent may suffer or incur in
connection with this Agreement or any action taken or omitted by the
Administrative Agent hereunder.
28
SECTION 7.07. Credit Decision. Each Lender acknowledges that it has,
---------------
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking any action under this
Agreement.
SECTION 7.08. Administrative Agent's Fees. The Borrower shall pay to
---------------------------
the Administrative Agent for its own account fees in the amounts and at the
times previously agreed upon between the Borrower and the Administrative Agent.
SECTION 7.09. Successor Administrative Agent. The Administrative
------------------------------
Agent may resign at any time by giving notice thereof to the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor Administrative Agent. If no successor Administrative
Agent shall have been so appointed by the Required Lenders, 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 Lenders, 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 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 VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent.
SECTION 7.10. Other Agents None of the Lenders identified on the
------------
facing page or signature pages of this Agreement as a "syndication agent" or a
"co-documentation agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of the Lenders so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. 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:
(a) the Administrative Agent is advised by the Reference Banks that
deposits in United States dollars (in the applicable amounts) are not being
offered to the Reference Banks in the relevant market for such Interest
Period, or
(b) in the case of a Borrowing consisting of Euro-Dollar Loans, the
Required Lenders advise the Administrative Agent that the Euro-Dollar Rate,
as determined by the Administrative Agent, will not adequately and fairly
reflect the cost to such Lenders of funding their Euro-Dollar Loans for
such Interest Period,
29
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Lenders, whereupon; until the Administrative Agent notifies the Borrower
that the circumstances giving rise to such suspension no longer exist, the
obligations of the Lenders to make Euro-Dollar Loans shall be suspended. Unless
the Borrower notifies the Administrative Agent at least two Euro-Dollar Business
Days before the date of any Euro-Dollar Borrowing for which a Notice of
Borrowing has previously been given that it elects not to borrow on such date,
such Borrowing shall instead be made as a Base Rate Borrowing.
SECTION 8.02. 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 Lender (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 Lender (or its
Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans to
the Borrower and such Lender shall so notify the Administrative Agent, the
Administrative Agent shall forthwith give notice thereof to the other Lenders
and the Borrower, whereupon until such Lender notifies the Borrower and the
Administrative Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Lender to make Euro-Dollar Loans to the
Borrower shall be suspended. Before giving any notice to the Administrative
Agent pursuant to this Section 8.02, such Lender shall designate a different
Euro-Dollar Lending Office if such designation will avoid the need for giving
such notice and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. If such Lender shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Euro-Dollar Loans
to the Borrower to maturity and shall so specify in such notice, the Borrower
shall immediately prepay in full the then outstanding principal amount of each
such Euro-Dollar Loan together with accrued interest thereon. Concurrently with
prepaying each such Euro-Dollar Loan the Borrower shall borrow a Base Rate Loan
in an equal principal amount from such Lender (on which interest and principal
shall be payable contemporaneously with the related Euro-Dollar Loans of the
other Lenders), and such Lender shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return.
---------------------------------
(a) If on or after the date hereof, 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 Lender (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency:
(i) shall subject any Lender (or its Applicable Lending Office) to
any tax, duty or other charge with respect to its Euro-Dollar Loans, its
Notes or its obligation to make Euro-Dollar Loans, or shall change the
basis of taxation of payments to any Lender (or its Applicable Lending
Office) of the principal of or interest on its Euro-Dollar Loans or any
other amounts due under this Agreement in respect of its Euro-Dollar Loans
or its obligation to make Euro-Dollar Loans or (except for changes in the
rate of tax on the overall net income of such Lender or its Applicable
Lending Office imposed by the jurisdiction in which such ▇▇▇▇▇▇'s principal
executive office or Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve (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 with respect to which such Lender is
entitled to compensation during the relevant Interest Period under Section
30
2.15), special deposit, insurance assessment or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender (or its Applicable Lending Office) or shall
impose on any Lender (or its Applicable Lending Office) or on the
United States market for certificates of deposit or the London
interbank market any other condition affecting its Euro-Dollar Loans,
its Notes or its obligation to make Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making or maintaining any Euro-Dollar
Loan, or to reduce the amount of any sum received or receivable by such Lender
(or its Applicable Lending Office) under this Agreement or under its Notes with
respect thereto, by an amount deemed by such Lender to be material, then, within
15 days after demand by such Lender (with a copy to the Administrative Agent),
the Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction.
(b) If any Lender shall have determined that the adoption
after the date hereof of any applicable law, rule or regulation regarding
capital adequacy, or any change after the date hereof in any such law, rule or
regulation, or any change after the date hereof 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 after the date hereof regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
of such Lender (or its Parent) as a consequence of such Lender's obligations
hereunder to a level below that which such Lender (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 Lender to be material, then from time to time, within 15 days after
demand by such Lender (with a copy to the Administrative Agent), the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender (or its Parent) for such reduction.
(c) Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Lender to compensation pursuant to this
Section 8.03 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 sole judgment of such Lender, be otherwise disadvantageous
to such Lender. The Lender shall deliver a written statement of such Lender as
to the amount due, if any, under this Section 8.03. Such written statement shall
set forth in reasonable detail the calculations upon which such Lender
determined such amount and shall be final, conclusive and binding on the
Borrower in the absence of manifest error. Determination of amounts payable
under this Section 8.03 in connection with a Euro-Dollar Loan shall be
calculated as though such Lender funded such Loan through the purchase of a
deposit of the type and maturity corresponding to the deposit used as a
reference in determining the rate of interest applicable to such Loan whether in
fact that is the case or not. In determining such amount, such Lender may use
any reasonable averaging and attribution methods.
(d) In the event that any Lender makes a claim under this
Section 8.03 (any such Lender, an "Affected Lender"), the Borrower may
substitute another financial institution for such Affected ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
upon reasonable prior written notice (which written notice must be given within
90 days following the occurrence of such claim) by the Borrower to the
Administrative Agent and the Affected Lender that the Borrower intends to make
such substitution; provided, however, that at the time of such substitution or
replacement (i) no Default has occurred or is continuing, (ii) the Borrower
shall have satisfied all of its obligations hereunder and under the Notes
relating to such Lender, (iii) any such replacement or substitute financial
institution is acceptable to the Administrative Agent and (iv) if such
replacement or substitute financial institution is not an existing Lender, the
Borrower shall have paid to the Administrative Agent an administrative fee in
the amount of $3,500.
31
SECTION 8.04. Base Rate Loans Substituted for Affected Euro-Dollar
----------------------------------------------------
Loans. If (i) the obligation of any Lender to make Euro-Dollar Loans has been
-----
suspended pursuant to Section 8.02 or (ii) any Lender has demanded compensation
under Section 8.03(a) and the Borrower shall, by at least five Euro-Dollar
Business Days' prior notice to such Lender through the Administrative Agent,
have elected that the provisions of this Section 8.04 shall apply to such
Lender, then, unless and until such Lender notifies the Borrower that the
circumstances giving rise to such suspension or demand for compensation no
longer apply:
(a) all Loans which would otherwise be made by such Lender as Euro-
Dollar Loans shall be made instead as Base Rate Loans (on which interest
and principal shall be payable contemporaneously with the related Euro-
Dollar Loans of the other Lenders), and
(b) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such Euro-
Dollar Loans shall be applied to repay its Base Rate Loans instead.
Article IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other
-------
communications to any party hereunder shall be in writing, or by any
telecommunication device capable of creating a written record (including bank
wire, telex, facsimile transmission, email or similar writing) and shall be
given to such party: (x) in the case of the Borrower or the Administrative
Agent, at its address, email address or telex number set forth on the signature
pages hereof, (y) in the case of any Lender, at its address, email address or
telex number set forth in its Administrative Questionnaire or (z) in the case of
any party, such other address, email address or telex number as such party may
hereafter specify for the purpose by notice to the Administrative Agent and the
Borrower. Each such notice, request or other communication shall be effective
(i) if given by telex, when such telex is transmitted to the telex number
specified in this Section 9.01 and the appropriate answerback is received, (ii)
if given by mail, 72 hours after such communication is deposited in the U.S.
mail with first class postage prepaid, addressed as aforesaid or (iii) if given
by any other means, when delivered at the address specified in this Section
9.01; provided that notices to the Administrative Agent under Article II or
Article VIII shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Administrative
----------
Agent or any Lender 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
or in any Note shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 9.03. Expenses; Documentary Taxes; Indemnification for
-------------------------------------------------
Litigation.
----------
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
of the Administrative Agent, including fees and disbursements of special counsel
for the Administrative Agent, in connection with the preparation and
administration of this Agreement, any waiver or consent hereunder or any
amendment hereof or any Default or alleged Default and (ii) if an Event of
Default occurs, all reasonable out-of-pocket expenses incurred by the
Administrative Agent and each Lender, including fees and disbursements of
counsel, in connection with such Event of Default and collection, bankruptcy,
insolvency and other enforcement proceedings resulting therefrom. The Borrower
agrees to indemnify each Lender against any transfer taxes, documentary taxes,
assessments or charges made by any
32
governmental authority by reason of the execution and delivery of this Agreement
or any of such ▇▇▇▇▇▇'s Notes.
(b) The Borrower agrees to indemnify each Lender and hold each
Lender harmless from and against any and all liabilities, losses, damages, costs
and expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such ▇▇▇▇▇▇ (or by the
Administrative Agent in connection with its actions as Administrative Agent
hereunder) in connection with any investigative, administrative or judicial
proceeding (whether or not such Lender shall be designated a party thereto)
relating to or arising out of this Agreement, any transactions contemplated
hereby or any actual or proposed use of proceeds of Loans hereunder; provided
that no Lender shall have the right to be indemnified hereunder for (i) its own
gross negligence or willful misconduct as finally determined by a court of
competent jurisdiction, (ii) any default in its Commitment to make Loans
hereunder as finally determined by a court of competent jurisdiction or (iii)
any settlement of any investigation, administrative or judicial proceeding
entered into without the consent of the Borrower, which consent shall not be
unreasonably withheld.
SECTION 9.04. 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 Lenders (and, if
the rights or duties of the Administrative Agent are affected thereby, by the
Administrative Agent); provided that no such amendment or waiver shall, unless
signed by all the Lenders, (i) increase or decrease the Commitment of any Lender
(except for a ratable decrease in the Commitments of all Lenders) or subject any
Lender to any additional obligation, (ii) reduce the principal of or rate of
interest on any Loan or any fees hereunder, (iii) postpone the date fixed for
any payment (including mandatory prepayments) of principal of or interest on any
Loan or any fees hereunder or for termination of any Commitment or (iv) change
the percentage of the Commitments or of the aggregate unpaid principal amount of
the Notes, or the number of Lenders, which shall be required for the Lenders or
any of them to take any action under this Section 9.04 or any other provision of
this Agreement.
SECTION 9.05. Sharing of Set-Offs. Each Lender 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 of principal and interest due
with respect to any Loan made by it which is greater than the proportion
received by any other Lender in respect of the aggregate amount of principal and
interest due with respect to any Loan made by such other Lender, the Lender
receiving such proportionately greater payment shall purchase such
participations in the Loans made by the other Lenders, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Loans made by the Lenders shall be
shared by the Lenders pro rata; provided that nothing in this Section 9.05 shall
impair the right of any Lender 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
Debt of the Borrower other than its Debt hereunder or under the Notes. The
Borrower agrees, to the fullest extent it may effectively do so under applicable
law, that any holder of a participation in a Loan, 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 the Borrower in the
amount of such participation.
SECTION 9.06. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS
-----------------------------------------
AGREEMENT AND EACH NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. THE BORROWER HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY
FOR PURPOSES OF ALL LEGAL PROCEEDINGS
33
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY. THE BORROWER IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM
THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
SECTION 9.07. 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 the Borrower may not assign or otherwise transfer any of
its rights or obligations under this Agreement without the consent of all
Lenders.
(b) Any Lender may at any time grant to one or more banks or other
financial institutions (each a "Participant") participating interests in its
Commitment or any or all of its Loans. In the event of any such grant by a
Lender of a participating interest to a Participant, whether or not upon notice
to the Borrower and the Administrative Agent, such Lender shall remain
responsible for the performance of its obligations hereunder, and the Borrower
and the Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such ▇▇▇▇▇▇'s rights and obligations under this
Agreement. Any agreement pursuant to which any Lender may grant such a
participating interest shall provide that such Lender shall retain the sole
right and responsibility to enforce the obligations of the Borrower 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 Lender will not agree to any modification,
amendment or waiver of this Agreement described in clause (i), (ii) or (iii) of
Section 9.04 without the consent of the Participant. The Borrower agrees that
each Participant shall, to the extent provided in its participation agreement,
be entitled to the benefits of Article VIII with respect to its participating
interest. 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 Lender 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 original Commitment of at least $10,000,000 or in increments
of $1,000,000 in excess thereof) of all, of its rights and obligations under
this Agreement and the Notes, and such Assignee shall assume such rights and
obligations, pursuant to an Assignment and Assumption Agreement in substantially
the form of Exhibit D hereto executed by such Assignee and such transferor
Lender, with (and subject to) the consent of the Borrower (the consent of the
Borrower not to be unreasonably withheld) and the Administrative Agent (the
consent of the Administrative Agent not to be unreasonably withheld); provided
that if an Assignee is an affiliate of such transferor Lender, no such consent
shall be required and such Lender shall be permitted to assign its rights and
obligations under this Agreement and the Notes to such affiliate upon notice
thereof to the Borrower and the Administrative Agent. Upon execution and
delivery of such instrument and payment by such Assignee to such transferor
Lender of an amount equal to the purchase price as agreed between such
transferor Lender and such Assignee, such Assignee shall be a Lender party to
this Agreement and shall have all the rights and obligations of a Lender with a
Commitment as set forth in such instrument of assumption, and the transferor
Lender 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 Lender, the Administrative Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Note or Notes are issued to
the Assignee. In connection with any such assignment, the transferor or
transferee Lender shall pay to the Administrative Agent an administrative fee
for processing such assignment in the amount of $3,500. If
34
the Assignee is not incorporated or 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 Borrower
and the Administrative Agent certification as to exemption from deduction or
withholding of any United States federal income taxes in accordance with Section
2.16.
(d) The Borrower authorizes each Lender to disclose to any Participant or
Assignee (each a "Transferee") and any prospective Transferee any and all
financial information in such ▇▇▇▇▇▇'s possession concerning the Borrower which
has been delivered to such Lender by it pursuant to this Agreement or which has
been delivered to such Lender by it in connection with such Lender's credit
evaluation prior to entering into this Agreement, subject to Section 9.11.
(e) Any Lender may at any time assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank. No such assignment
shall release the transferor Lender from its obligations hereunder.
(f) No Transferee (including for the purpose of this subparagraph (f) a
different Applicable Lending Office of a Lender) shall be entitled to receive
any greater payment under Section 8.03 than the transferor Lender would have
been entitled to receive with respect to the rights transferred, unless such
transfer is made with the Borrower's prior written consent or by reason of the
provisions of Section 8.02 or 8.03 requiring such Lender 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.
SECTION 9.08. Collateral. Each of the Lenders represents to the
----------
Administrative Agent and each of the other Lenders 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.
SECTION 9.09. 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 and the Notes constitute the entire agreement and understanding
among the parties hereto and supersede any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 9.10. WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT
--------------------
AND THE LENDERS HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.11. Confidentiality. Each Lender agrees to hold any information
---------------
which it may receive or has received from the Borrower pursuant to this
Agreement and which has been identified as confidential, in confidence, except
for disclosure (i) to legal counsel, accountants, and other professional
advisors to such Lender, to any actual or prospective Transferee and to any
affiliates of such Lender in each case subject to the receiving party's
undertaking to comply with the restrictions of this Section 9.11, (ii) required
by law, regulation, or legal process, (iii) as requested by regulatory
officials, (iv) in connection with any legal proceeding to enforce this
Agreement and (v) of information which is in the public domain at the time of
such disclosure through no fault of any of the Lenders.
35
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.
FMC CORPORATION
By: _______________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Vice President & Treasurer
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Email address: ▇▇▇_▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
CITIBANK, N.A., as Administrative Agent and
as Lender
By: _______________________________________
Name:
Title:
Two Penns Way, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Telephone number:
Telecopier number:
Email address:
BANK OF AMERICA, N.A., as Lender
By: _______________________________________
Name:
Title:
36
SCHEDULE I
LENDERS AND COMMITMENTS
-------------------------------------------------------------------
LENDER COMMITMENT
-------------------------------------------------------------------
Citibank, N.A. $25,000,000
-------------------------------------------------------------------
Bank of America, N.A. $25,000,000
-------------------------------------------------------------------
Total Commitment (as of the Effective Date): $50,000,000
SCHEDULE 1.01(a)
CERTAIN FOREIGN SUBSIDIARIES
FMC Quimica do Brasil Limitada
FMC Agroquimica de Mexico, S.A. de C.V.
FMC ▇▇▇▇▇, ▇.▇.
SCHEDULE 1.01(b)
MATERIAL SUBSIDIARIES
FMC Wyoming Corporation
Electro Quimica Mexicana, S.A. de C.V.
FMC Agroquimica de Mexico S.A. de C.V.
FMC ▇▇▇▇▇, ▇.▇.
FMC BioPolymer A/S
Minera del Altiplano, S.A.
FMC Chemicals Limited
EXHIBIT A
FORM OF NOTE
U.S. $________________ New York, New York
________ __, 2002
FOR VALUE RECEIVED, the undersigned, FMC CORPORATION, a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
______________ (the "Lender"), for the account of its Applicable Lending Office,
the unpaid principal amount of each Loan made by the Lender to the Borrower
pursuant to the Credit Agreement referred to below on the last day of the
Interest Period relating to such Loan. 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 such 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 Citibank, N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
All Loans made by the Lender, the respective types and
maturities thereof and all repayments of the principal thereof shall be recorded
by the Lender and, if the Lender so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Lender on
the schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof; provided that neither the failure of the Lender to make
any such recordation or endorsement nor any error therein shall affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit
Agreement dated as of January 31, 2002 among the Borrower, the financial
institutions party thereto and Citibank, N.A., as Administrative Agent (as the
same may be amended, supplemented or otherwise modified 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.
FMC CORPORATION
By:______________________________
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------
Amount
of Amount of Principal Notation
Date Loan Repaid Maturity Date Made By
--------------------------------------------------------------------------------
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
EXHIBIT B
FORM OPINION OF COUNSEL
FOR THE ADMINISTRATIVE AGENT
January __, 2002
To Citibank, N.A., as Administrative Agent under
the Credit Agreement referred to below, and each of
the Lenders party to the Credit Agreement referred to below
Re: FMC Corporation
---------------
Ladies and Gentlemen:
We have acted as counsel to Citibank, N.A. ("Citibank"), in
connection with the preparation, execution and delivery of, and the consummation
of the transactions contemplated by, (i) the Credit Agreement dated as of
January 31, 2002 (the "Credit Agreement") among FMC Corporation, a Delaware
corporation (the "Company"), the financial institutions party thereto (the
"Lenders"), and Citibank, as Administrative Agent for the Lenders, and (ii) the
Notes, if any, issued by the Company pursuant to the Credit Agreement (the
"Notes") in favor of the applicable Lenders. The Credit Agreement and the Notes
are collectively referred to herein as the "Finance Documents". Capitalized
terms used herein and not otherwise defined herein shall have the meanings given
them in the Credit Agreement.
In so acting, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of each of the Finance Documents
and such documents and other instruments as we have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. We have also assumed
(i) the valid existence and good standing of each party to the Finance
Documents, (ii) that each party to the Finance Documents has the requisite power
and authority to enter into and perform each of the Finance Documents to which
it is party, (iii) the due authorization, execution and delivery of each of the
Finance Documents by each of the parties thereto, (iv) that the execution,
delivery and performance of the Finance Documents by each party thereto has been
duly authorized by all necessary action, and does not (a) contravene the
constituent documents of any such party thereto, or (b) conflict with or result
in the breach of any document or instrument binding on any such party thereto,
and (iii) the enforceability of the Finance Documents against the parties
thereto (other than the Company).
Based on the foregoing, and subject to the qualifications
stated herein, we are of the opinion that each Finance Document constitutes the
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except that (i) rights to indemnification
thereunder may be limited by federal or state securities laws or public policy
relating thereto and (ii) no opinion is expressed with respect to any provision
of the Credit Agreement insofar as it provides that any Person purchasing a
participation from any Lender pursuant thereto may exercise set-off or similar
rights with respect to such participation or that any Lender thereunder or any
other Person may exercise set-off or similar rights other than in accordance
with law.
The opinions expressed herein are limited to the laws of the
State of New York and the federal laws of the United States, and we express no
opinion as to the effect on the matters covered by this letter of the laws of
any other jurisdiction.
The opinions expressed herein are rendered solely for the
benefit of you and your permitted assigns and participants in connection with
the transactions described herein. Those opinions may not be used or relied upon
by any other Person, nor may this letter or any copies thereof be furnished to a
third party, filed with a governmental agency, quoted, cited or otherwise
referred to without our prior written consent, other than to bank regulatory
authorities or permitted assigns or participants of any Lender.
Very truly yours,
2
EXHIBIT C
FORM OF OPINION OF THE BORROWER'S IN-HOUSE COUNSEL
To Citibank, N.A., as Administrative
Agent, and each of the Lenders party to
the Credit Agreement referred to below
Re: FMC Corporation
---------------
Ladies and Gentlemen:
I am the Chief Legal Officer, Chemicals of FMC Corporation, a
Delaware corporation (the "Borrower"), in connection with the preparation,
execution and delivery of, and the consummation of the transactions contemplated
by, the Credit Agreement dated as of January 31, 2002 (the "Credit Agreement")
among the Borrower, the financial institutions party thereto (the "Lenders") and
Citibank, N.A., as administrative agent for the Lenders (the "Administrative
Agent").
This opinion is rendered to you pursuant to Section
-------
3.01(a)(ii) of the Credit Agreement. Capitalized terms defined in the Credit
-----------
Agreement, used herein, and not otherwise defined herein, shall have the
meanings given them in the Credit Agreement.
In so acting, I have examined originals or copies (certified
or otherwise identified to our satisfaction) of the following documents:
(a) the Credit Agreement; and
(b) the Notes issued by the Borrower on the date hereof, if
any.
The agreements specified in clauses (a) and (b) above are collectively referred
to as the "Agreements".
In addition, I have examined such corporate records,
agreements, documents and other instruments, and such certificates or comparable
documents of public officials and of officers and representatives of the
Borrower, and have made such inquiries of such officers and representatives, as
I have deemed relevant and necessary as a basis for the opinions hereinafter set
forth.
In such examination, I have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to all questions
of fact material to these opinions that have not been independently established,
I have relied upon certificates or comparable documents of officers and
representatives of the Borrower and upon the representations and warranties of
the Borrower contained in the Agreements. As to the good standing of the
Borrower, I have relied solely on the good standing certificate of the Secretary
of State of the State of Delaware.
In rendering the opinions expressed below, I have further
assumed, without any independent investigation or verification of any kind, that
each of the Agreements is the valid and binding obligation of each party thereto
other than the Borrower.
Based on the foregoing, and subject to the qualifications
stated herein, I am of the opinion that:
1. The Borrower is a corporation validly existing and in good
standing under the laws of the State of Delaware and has all requisite
corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted.
2. The Borrower is duly qualified to transact business and is in
good standing as a foreign corporation in each jurisdiction where the
failure to be so qualified would not have a Material Adverse Effect.
3. The Borrower has all requisite corporate power and authority
to execute, deliver and perform the Agreements to which it is a party.
The execution, delivery and performance by the Borrower of the
Agreements to which it is a party have been duly authorized by all
necessary corporate action on the part of the Borrower. The Borrower
has duly executed and delivered the Agreements to which it is a party
and such Agreements constitute the legal, valid and binding obligations
of the Borrower, enforceable against the Borrower in accordance with
their respective terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles
of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
4. The execution, delivery and performance by the Borrower of the
Agreements to which it is a party will not conflict with, constitute a
default under or violate (i) any of the terms, conditions or provisions
of the Certificate of Incorporation or By-laws of the Borrower, (ii)
any of the terms, conditions or provisions of any material contractual
obligation of the Borrower of which I am aware, (iii) any Pennsylvania,
Delaware corporate or federal requirement of law or (iv) any judgment,
writ, injunction, decree, order or ruling of any court or governmental
authority of which I am aware binding on the Borrower.
5. No consent, approval, waiver, license or authorization or
other action by or filing with any Pennsylvania, Delaware corporate or
federal governmental authority is required in connection with the
execution, delivery or performance by the Borrower of the Agreements to
which it is a party.
6. The Borrowings by and other financial accommodations provided
to the Borrower under the Agreements and the application of proceeds
thereof as provided in the Credit Agreement will not violate Regulation
T, U or X of the Federal Reserve Board.
7. The Borrower is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, or a "holding
company" or a "subsidiary company" of a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
2
8. To my knowledge, there is no action, suit, proceeding,
governmental investigation or arbitration, at law or in equity or
before any governmental authority, pending or overtly threatened
against the Borrower (i) with respect to any Agreement or challenging
any of the Lenders' or the Administrative Agent's rights or remedies
thereunder or (ii) which, if adversely determined, could materially
adversely affect the ability of the Borrower to perform its obligations
under the Agreements.
I am admitted to the bar of the Commonwealth of Pennsylvania.
I express no opinion as to the laws of any jurisdiction other than (A) the laws
of the Commonwealth of Pennsylvania, (B) the Delaware General Corporate Law and
(C) the Federal laws of the United States of America.
As used herein, "to my knowledge" means the conscious
awareness of facts or other information by any officer, attorney or other
employee of the Borrower actively involved in the transactions contemplated by
the Credit Agreement.
The opinions expressed herein are rendered solely for your
benefit in connection with the transactions described herein. This opinion may
not be used or relied upon by any other person, nor may this letter or any
copies thereof be furnished to a third party, filed with a governmental agency,
quoted, cited or otherwise referred to without my prior written consent, other
than to bank regulatory authorities or permitted assigns of any Lender, and
except as required by any governmental authority or pursuant to legal process.
Very truly yours,
3
EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 20___ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), FMC CORPORATION (the "Borrower") and
CITIBANK, N.A., as administrative agent under the Credit Agreement referred to
below (the "Administrative Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the
"Agreement") relates to the Credit Agreement dated as of January 31, 2002 among
the Borrower, the Assignor and the other financial institutions party thereto
from time to time, and the Administrative Agent (as amended, supplemented or
otherwise modified, the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor
has a Commitment to make Loans in an aggregate principal amount at any time
outstanding not to exceed $50,000,000;
WHEREAS, Loans made by the Assignor under the Credit Agreement
in the aggregate principal amount of $__________ are outstanding at the date
hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all
of the rights and obligations of the Assignor under the Credit Agreement in
respect of the portion of its Commitment thereunder in an amount equal to
$__________ (the "Assigned Amount") 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 agreements 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 and obligations of the Assignor under the
Credit Agreement to the extent they relate to 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 they relate
to the Assigned Amount. Upon the execution and delivery hereof by the Assignor,
the Assignee, the Borrower and the Administrative Agent and the payment of the
amounts specified in Section 3 hereof required to be paid on the date hereof (a)
the Assignee shall, as of the date hereof, succeed to the rights and be
obligated to perform the obligations of a Lender under the Credit Agreement with
a Commitment in an amount equal to the Assigned Amount, and (b) the Commitment
of the Assignor shall, as of the date hereof, be reduced by a like amount and
the Assignor shall be 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 an amount
equal to $_________ * . It is understood that facility fees accrued to the date
hereof are for the account of the Assignor and such fees accruing from and
including the date hereof with respect to the Assigned Amount 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, 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 of the Borrower and the Administrative
----------------------------------------------
Agent. This Agreement is conditioned upon the consent of the Borrower and the
-----
Administrative Agent required by Section 9.07(c) of the Credit Agreement. The
execution of this Agreement by the Borrower and the Administrative Agent is
evidence of such consent. Pursuant to said Section 9.07(c), the ▇▇▇▇▇▇▇▇ agrees
to execute and deliver a Note, if requested 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 the
Borrower, or the validity and enforceability of the obligations of the 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 Borrower.
SECTION 6. Governing Law. This Agreement shall be governed
-------------
by and construed in accordance with the laws of the State of New York.
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.
______________________
* Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee, net of any portion of any
upfront fee to be paid by the Assignor to the Assignee. It may be preferable in
an appropriate case to specify these amounts generically or by formula rather
than as a fixed sum.
2
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:_________________________
Name:
Title:
[ASSIGNEE]
By:_________________________
Name:
Title:
FMC CORPORATION
By:_________________________
Name:
Title:
CITIBANK, N.A., as Administrative Agent
By:_________________________
Name:
Title:
3