EXHIBIT 4.2
EXHIBIT A
================================================================================
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of
May 17, 2001,
as amended and restated as of
February 21, 2003
among
IMC GLOBAL INC.
The Borrowing Subsidiaries Party Hereto
The Lenders Party Hereto
JPMORGAN CHASE BANK,
as Administrative Agent
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
as Syndication Agent
---------------------------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
as Joint Arrangers and Bookrunners
================================================================================
2
[CSM Ref. No. 6701-187]
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.................................................................1
SECTION 1.02. Classification of Loans and Borrowings.......................................46
SECTION 1.03. Terms Generally..............................................................46
SECTION 1.04. Accounting Terms; GAAP.......................................................46
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments..................................................................47
SECTION 2.02. Loans and Borrowings.........................................................47
SECTION 2.03. Requests for Borrowings......................................................48
SECTION 2.04. Swingline Loans..............................................................49
SECTION 2.05. Letters of Credit............................................................51
SECTION 2.06. Funding of Borrowings........................................................57
SECTION 2.07. Interest Elections...........................................................58
SECTION 2.08. Termination and Reduction of Commitments.....................................59
SECTION 2.09. Repayment of Loans; Evidence of Debt.........................................60
SECTION 2.10. Amortization of B Term Loans.................................................61
SECTION 2.11. Prepayment of Loans..........................................................62
SECTION 2.12. Fees.........................................................................66
SECTION 2.13. Interest.....................................................................67
SECTION 2.14. Alternate Rate of Interest...................................................68
SECTION 2.15. Increased Costs..............................................................69
SECTION 2.16. Break Funding Payments.......................................................70
SECTION 2.17. Taxes........................................................................71
SECTION 2.18. Payments Generally; Pro Rata Treatment; of Setoffs...........................73
SECTION 2.19. Mitigation Obligations; Replacement of Lenders...............................75
SECTION 2.20. Incremental Facilities.......................................................77
SECTION 2.21. Borrowing Subsidiaries.......................................................78
SECTION 2.22. Limitation of Revolving Exposure.............................................79
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers.........................................................79
SECTION 3.02. Authorization; Enforceability................................................80
2
SECTION 3.03. Governmental Approvals; No Conflicts.........................................80
SECTION 3.04. Financial Condition; No Material Adverse Change..............................80
SECTION 3.05. Properties...................................................................81
SECTION 3.06. Litigation and Environmental Matters.........................................82
SECTION 3.07. Compliance with Laws and Agreements..........................................82
SECTION 3.08. Investment and Holding Company Status........................................82
SECTION 3.09. Taxes........................................................................83
SECTION 3.10. ERISA........................................................................83
SECTION 3.11. Disclosure...................................................................83
SECTION 3.12. Subsidiaries.................................................................84
SECTION 3.13. Insurance....................................................................84
SECTION 3.14. Labor Matters................................................................84
SECTION 3.15. Solvency.....................................................................85
SECTION 3.16. Security Documents...........................................................85
SECTION 3.17. Lien Basket Amount...........................................................86
SECTION 3.18. Excluded Subsidiaries........................................................86
SECTION 3.19. Certain Payments.............................................................90
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date...............................................................90
SECTION 4.02. EACH Credit EVENT............................................................90
SECTION 4.03. Borrowing Subsidiaries.......................................................91
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Statements and Other Information...................................92
SECTION 5.02. Notices of Material Events...................................................94
SECTION 5.03. Information Regarding Collateral.............................................95
SECTION 5.04. Existence; Conduct of Business...............................................96
SECTION 5.05. Payment of Obligations.......................................................96
SECTION 5.06. Maintenance of Properties....................................................96
SECTION 5.07. Insurance....................................................................97
SECTION 5.08. Casualty and Condemnation....................................................97
SECTION 5.09. Books and Records; Inspection and Audit Rights...............................97
SECTION 5.10. Compliance with Laws.........................................................98
SECTION 5.11. Use of Proceeds and Letters of Credit........................................98
SECTION 5.12. Additional Subsidiaries......................................................98
SECTION 5.13. Further Assurances...........................................................99
SECTION 5.14. 6.625% Notes Tender Offer....................................................99
3
SECTION 5.15. Refinancing of Polk County IRBS; Polk Escrow.................................99
SECTION 5.16. Excluded Subsidiaries.......................................................100
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Indebtedness; Certain Equity Securities.....................................101
SECTION 6.02. Liens.......................................................................104
SECTION 6.03. Fundamental Changes.........................................................106
SECTION 6.04. Investments, Loans, Advances, and Acquisitions..............................107
SECTION 6.05. Asset Sales.................................................................110
SECTION 6.06. Sale and Leaseback Transactions.............................................112
SECTION 6.07. Hedging Agreements..........................................................113
SECTION 6.08. Restricted Payments; Certain Payments Indebtedness;
Synthetic Purchase Agreements............................................113
SECTION 6.09. Transactions with Affiliates................................................116
SECTION 6.10. Restrictive Agreements......................................................116
SECTION 6.11. Amendment of Material Documents.............................................118
SECTION 6.12. Limited Expenditures........................................................118
SECTION 6.13. Interest Expense Coverage Ratio.............................................119
SECTION 6.14. Total Leverage Ratio........................................................119
SECTION 6.15. Secured Leverage Ratio......................................................120
SECTION 6.16. Collateral Coverage Ratio...................................................120
SECTION 6.17. Fiscal Periods..............................................................120
ARTICLE VII
EVENTS OF DEFAULT..........................................120
ARTICLE VIII
THE AGENTS..............................................124
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices.....................................................................127
SECTION 9.02. Waivers; Amendments.........................................................128
SECTION 9.03. Expenses; Indemnity; Damage Waiver..........................................130
SECTION 9.04. Successors and Assigns......................................................132
SECTION 9.05. Survival....................................................................135
4
SECTION 9.06. Counterparts; Integration; Effectiveness....................................136
SECTION 9.07. Severability................................................................136
SECTION 9.08. Right of Setoff.............................................................136
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process..................137
SECTION 9.10. Waiver of Jury Trial........................................................138
SECTION 9.11. Headings....................................................................138
SECTION 9.12. Confidentiality.............................................................138
SECTION 9.13. Interest Rate Limitation....................................................139
SECTION 9.14. Current Credit Agreement; Effectiveness Amendment and Restatement...........139
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Collateral Coverage Certificate
Exhibit C -- Form of Collateral Sharing Agreement
Exhibit D -- Form of Guarantee Agreement
Exhibit E -- Form of Indemnity, Subrogation and Contribution Agreement
Exhibit F -- Form of Perfection Certificate
Exhibit G -- Form of Pledge Agreement
Exhibit H -- Form of Security Agreement
Exhibit I -- Forms of Opinions of Counsel
SCHEDULES:
Schedule 1.01 -- Mortgaged Properties
Schedule 2.01 -- Commitments
Schedule 3.05 -- Existing Properties
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 3.16(c) -- Mortgage Filing Offices
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Permitted Investments
Schedule 6.10 -- Restrictive Agreements
ANNEXES:
Annex A -- Potash Facility Term Sheet
AMENDED AND RESTATED
CREDIT AGREEMENT dated as of
May 17, 2001, as amended and restated as of
February 21, 2003, among
IMC GLOBAL INC., the
BORROWING SUBSIDIARIES party hereto, the LENDERS
party hereto, JPMORGAN CHASE BANK (successor to
THE CHASE MANHATTAN BANK), as Administrative
Agent, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P., as
Syndication Agent.
WHEREAS,
IMC Global Inc. (the "COMPANY"), the Borrowing Subsidiaries
(as defined herein), the lenders party thereto, and JPMorgan Chase Bank
(successor to The Chase Manhattan Bank), as Administrative Agent, are parties to
the
Credit Agreement dated as of May 17, 2001 (the "ORIGINAL
CREDIT AGREEMENT"),
as amended (the "CURRENT
CREDIT AGREEMENT"), as in effect immediately prior to
the Restatement Effective Date (as defined herein);
WHEREAS, the Company, the Borrowing Subsidiaries, the Lenders (as
defined herein) and JPMorgan Chase Bank, as Administrative Agent, are parties to
an Amendment and Restatement Agreement dated as of February 21, 2003 (the
"AMENDMENT AND RESTATEMENT AGREEMENT");
WHEREAS, subject to the satisfaction of the conditions set forth in
the Amendment and Restatement Agreement, the Current
Credit Agreement shall be
amended and restated as provided herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
2
"ACCOUNTS RECEIVABLE" means "accounts", within the meaning of the
Uniform Commercial Code, constituting rights of the Company or one of its
Subsidiaries, as applicable, to payment for goods sold in the ordinary course of
business evidenced by invoices and shipping documents. The amount of any Account
Receivable as of any date of determination shall equal the unpaid amount
thereof, excluding or net of any claims, offsets, deductions and allowances,
whether or not recorded as contra assets or liabilities.
"ACQUISITION" means an acquisition by the Company or any of its
Subsidiaries of a Person, a division, a facility or a line of business or of all
or substantially all of the assets of any of the foregoing.
"ADDITIONAL LENDER" has the meaning assigned to such term in Section
2.20.
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" means JPMorgan Chase Bank (successor to The
Chase Manhattan Bank), in its capacity as administrative agent for the Lenders
hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. With respect
to any Lender, the term "Affiliate" shall be deemed to include (a) any entity
(whether a corporation, partnership, trust or otherwise) that is engaged in
making, purchasing, holding or otherwise investing in bank loans and similar
extensions of credit in the ordinary course of its business and is administered
or managed by such Lender or an Affiliate of such Lender and (b) in the case of
any Lender that is a fund that invests in bank loans and similar extensions of
credit, any other fund that invests in bank loans and similar extensions of
credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
3
"AGENTS" means the Administrative Agent, the Collateral Agent and the
Syndication Agent.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"AMENDMENT AND RESTATEMENT AGREEMENT" has the meaning assigned to such
term in the recitals hereto.
"APPLICABLE PERCENTAGE" means, with respect to any Revolving Lender,
the percentage of the total Revolving Commitments represented by such Revolving
Lender's Revolving Commitment. If the Revolving Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"APPLICABLE RATE" means, for any day (a) with respect to any B Term
Loan (i) if the Leverage Ratio as of the most recent determination date is
greater than or equal to 4.50 to 1.00, (A) 3.00% per annum, in the case of an
ABR Loan, or (B) 4.00% per annum, in the case of a Eurodollar Loan, and (ii) if
the Leverage Ratio as of the most recent determination date is less than 4.50 to
1.00, (A) 2.75% per annum, in the case of an ABR Loan, or (B) 3.75% per annum,
in the case of a Eurodollar Loan, and (b) with respect to any ABR Loan or
Eurodollar Loan that is a Revolving Loan, or with respect to the commitment fees
payable hereunder, as the case may be, the applicable rate per annum set forth
below under the caption "ABR Spread", "Eurodollar Spread" or "Commitment Fee
Rate", as the case may be, based upon the Leverage Ratio as of the most recent
determination date; PROVIDED that until six months after the Effective Date the
4
"Applicable Rate" for purposes of clause (b) shall be the applicable rate per
annum set forth below in Category 1:
=======================================================================================
ABR EURODOLLAR COMMITMENT FEE
LEVERAGE RATIO: SPREAD SPREAD RATE
---------------------------------------------------------------------------------------
CATEGORY 1
GREATER THAN
or EQUAL to 4.50 to 1.0 2.25% 3.25% 0.500%
---------------------------------------------------------------------------------------
CATEGORY 2
GREATER THAN
or EQUAL to $4.0 to 1.0
and LESS THAN 4.5 to 1.0 2.00% 3.00% 0.500%
---------------------------------------------------------------------------------------
CATEGORY 3
GREATER THAN
or EQUAL to $3.50 to 1.0
and LESS THAN 4.0 to 1.0 1.75% 2.75% 0.500%
---------------------------------------------------------------------------------------
CATEGORY 4
LESS THAN 3.5 to 1.0 1.50% 2.50% 0.375%
=======================================================================================
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Company's fiscal year
based upon the Company's consolidated financial statements delivered pursuant to
Section 5.01(a) or (b) and (ii) each change in the Applicable Rate resulting
from a change in the Leverage Ratio shall be effective during the period
commencing on and including the date of delivery to the Administrative Agent of
such consolidated financial statements indicating such change and ending on the
date immediately preceding the effective date of the next such change; PROVIDED
that the Leverage Ratio shall be deemed to be in Category 1 (A) at any time that
an Event of Default has occurred and is continuing or (B) at the option of the
Administrative Agent or at the request of a majority in interest of the
Revolving Lenders if the Company fails to deliver the consolidated financial
statements required to be delivered by it pursuant to Section 5.01(a) or (b),
during the period from the expiration of the time for delivery thereof until
such consolidated financial statements are delivered.
"ARGUS LEASE" means, collectively, each of the Facility
Leases--Undivided Interest dated as of July 15, 1996, between U.S. Trust Company
of California, N.A. and North American Chemical Company.
"ARGUS LEASE ESCROW" means an escrow account established by the
Collateral Agent for the purpose of escrowing $62,000,000 of the proceeds from
the Salt Disposition in respect of the termination of the Argus Lease or the
direct or indirect acquisition of an undivided interest in the Argus Lease or in
the facilities that are the subject of the Argus Lease, as the case may be. In
the event that (a) following the completion of all or, if applicable, any
portion of the negotiations among the Company and the lessors under the
5
Argus Lease, it is determined that the Argus Lease is to be terminated or that
the Company shall directly or indirectly acquire an undivided interest in the
Argus Lease or in the facilities that are the subject of the Argus Lease, then
such escrowed funds shall immediately be applied to make any necessary payments
in respect of such termination or any such acquisition, as the case may be (and
if, following the completion of all such negotiations, it is determined that
such escrowed funds exceed the amount of all such payments made or to be made
with respect to such termination or any such acquisition, then the excess shall
be applied as described in clause (b) below), or (b) following the completion of
all negotiations among the Company and the lessors under the Argus Lease, it is
determined that the Argus Lease is not to be terminated and that the Company
shall not directly or indirectly acquire an undivided interest in the Argus
Lease or in the facilities that are the subject of the Argus Lease, then such
escrowed funds shall thereafter be deemed to be Net Proceeds from the Salt
Disposition and shall immediately be applied in accordance with Section 2.11(f);
PROVIDED that any escrowed funds applied in accordance with Section 2.11(f) (as
required by the preceding clause (b)) shall be so applied in the manner and to
the extent that such escrowed funds would have been applied previously had such
escrowed funds been deemed to be Net Proceeds from the Salt Disposition
immediately following the Salt Disposition and not been deposited in the Argus
Lease Escrow. Notwithstanding anything herein to the contrary, to the extent
that any funds are remaining in the Argus Lease Escrow as of 5:00 p.m.,
New York
City time, on the date that is 365 days after the consummation of the Salt
Disposition, such escrowed funds shall immediately be applied as set forth in
clause (b) of the preceding sentence.
"ASSESSMENT RATE" means, for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States of America; PROVIDED that if, as a
result of any change in any law, rule or regulation, it is no longer possible to
determine the Assessment Rate as aforesaid, then the Assessment Rate shall be
such annual rate as shall be determined by the Administrative Agent to be
6
representative of the cost of such insurance to the Lenders.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"AUSTRALIAN OPERATING SUBSIDIARIES" means IMC Chemicals Australia Pty.
Ltd., Penrice Soda Products Pty. Ltd. and Wingsoar Pty. Ltd.
"B TERM LOAN" means a Loan made pursuant to clause (a) of Section 2.01
of the Original
Credit Agreement.
"B TERM LOAN ESCROW" means an escrow account established by the
Collateral Agent for the purpose of escrowing, subject to the terms of Section
2.11(f), the portion of the Net Proceeds from the Salt Disposition available to
be applied in accordance with clause (iv) of Section 2.11(f).
"BASE CD RATE" means the sum of (a) the Three-Month Secondary CD Rate
multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"BOARD" means the Board of Governors of the Federal Reserve System of
the United States of America.
"BORROWERS" means the Company and the Borrowing Subsidiaries.
"BORROWING" means (a) Loans to the same Borrower of the same Class and
Type, made, converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect, or (b) a
Swingline Loan.
"BORROWING REQUEST" means a request by a Borrower for a Borrowing in
accordance with Section 2.03.
"BORROWING SUBSIDIARIES" means PLP, Phosphates and any other
Subsidiary with respect to which a Subsidiary Borrower Election shall have been
executed and delivered as provided in Section 2.21 and with respect to which a
Subsidiary Borrower Termination has not been executed and delivered as provided
in Section 2.21.
7
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other
day on which commercial banks in
New York City are authorized or required by law
to remain closed; PROVIDED that, when used in connection with a Eurodollar Loan,
the term "BUSINESS DAY" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"CAPITAL EXPENDITURES" means, for any period, (a) the additions to
property, plant and equipment and other capital expenditures of the Company and
its consolidated Subsidiaries that are (or would be) set forth in a consolidated
statement of cash flows of the Company for such period prepared in accordance
with GAAP and (b) Capital Lease Obligations incurred by the Company and its
consolidated Subsidiaries during such period. Notwithstanding the foregoing, the
term "Capital Expenditures" shall not include(i) any acquisition of the
facilities that are the subject of the Argus Lease in connection with any
termination of the Argus Lease or any other direct or indirect acquisition of an
undivided interest in the Argus Lease or in such facilities, in each case as
contemplated by clause (b)(iii) or clause (b)(iv) of the definition of the term
"Net Proceeds", or (ii) capital expenditures in respect of the reinvestment of
sales proceeds, insurance proceeds and condemnation proceeds received by the
Company or any Subsidiary in connection with the sale, transfer or other
disposition of the Company's or such Subsidiary's business units, assets or
properties (other than the Salt Disposition or any Chemicals Disposition), if
(as contemplated in clause (b) of the definition of the term "Prepayment Event"
or the proviso to Section 2.11(c)) such reinvestment (including, in the case of
insurance proceeds, reinvestment in the form of restoration or replacement of
damaged property) shall have resulted in (a) the event giving rise to the
receipt of such amounts not being considered a "Prepayment Event" as
contemplated in the definition of such term or (b) such amounts not being
required to be applied as contemplated by Section 2.11(c).
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount
8
of such obligations shall be the capitalized amount thereof determined in
accordance with GAAP.
"CARLSBAD IRBS" means the existing $2,700,000 aggregate principal
amount of industrial revenue bonds issued by Eddy County, New Mexico under the
Trust Indenture dated as of February 1, 1993, between Eddy County, New Mexico
and The Bank of
New York, as Trustee.
"CHANGE IN CONTROL" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof) of Equity
Interests representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests in the Company; (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Company by Persons who were neither (i) nominated by the board
of directors of the Company nor (ii) appointed by directors so nominated; (c)
the acquisition of direct or indirect Control of the Company by any Person or
group; or (d) the occurrence of a "Change of Control", as defined in the New
Senior Notes Indentures.
"CHANGE IN LAW" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or any Issuing
Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender
or by such Lender's or such Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"CHEMICALS DISPOSITION" means the sale of stock or assets comprising
all or part of the Chemicals discontinued operations as reflected in the
Company's consolidated financial statements for the year ended December 31,
2000.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Incremental Revolving Loans, B Term Loans, Incremental Term Loans or Swingline
Loans and, when used in reference
9
to any Commitment, refers to whether such Commitment is a Revolving Commitment
or Term Loan B Commitment.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
"COLLATERAL" means any and all "Collateral", as defined in any
applicable Security Document.
"COLLATERAL AGENT" means JPMorgan Chase Bank (successor to The Chase
Manhattan Bank), in its capacity as collateral agent under the Loan Documents.
"COLLATERAL COVERAGE AMOUNT" means, as of any date, the Collateral
Value Amount determined as of such date or, if such date is not the last day of
a fiscal quarter of the Company, as of (a) the last day of the fiscal quarter of
the Company most recently ended prior to such date or (b) any more recent date
as of which the Company shall have elected (at its option), or shall have been
required (pursuant to clause (f) of Section 5.01), to calculate the Collateral
Value Amount, provided that the Company shall have delivered to the
Administrative Agent a Collateral Coverage Certificate certifying the Collateral
Value Amount as of such more recent date.
"COLLATERAL COVERAGE CERTIFICATE" means a certificate setting forth
the calculation of the Collateral Coverage Amount, substantially in the form of
Exhibit B, signed on behalf of the Company by a Financial Officer.
"COLLATERAL COVERAGE RATIO" means, as of any date, the ratio of (a)
the Collateral Coverage Amount as of such date to (b) the sum of (i) the
outstanding principal amount of Loans as of such date, (ii) the LC Exposure as
of such date, (iii) the Polk County Sharing Amount as of such date and (iv) the
sum of (A) the outstanding principal amount of loans under the Potash Facility
as of such date plus (B) the aggregate amount of unutilized commitments under
the Potash Facility as of such date (regardless of whether the conditions to
utilizing such commitments are capable of being satisfied as of such date).
"COLLATERAL AND GUARANTEE REQUIREMENT" means the requirement that:
(a) the Collateral Agent shall have received from each Loan Party
either (i) a counterpart of each of the Guarantee Agreement, the Indemnity,
10
Subrogation and Contribution Agreement, the Pledge Agreement and the
Security Agreement duly executed and delivered on behalf of such Loan Party
or (ii) in the case of any Person that becomes a Loan Party after the
Effective Date, a supplement to each of the Guarantee Agreement, the
Indemnity, Subrogation and Contribution Agreement, the Pledge Agreement and
the Security Agreement, in each case in the form specified therein, duly
executed and delivered on behalf of such Loan Party;
(b) all outstanding Equity Interests of each Subsidiary (other than
an Excluded Subsidiary) owned by or on behalf of any Loan Party shall have
been pledged pursuant to the Pledge Agreement (except that the Loan Parties
shall not be required to pledge more than 65% of the outstanding voting
Equity Interests of any Foreign Subsidiary that is not a Loan Party) and
the Collateral Agent shall have received certificates or other instruments
representing all such Equity Interests, together with stock powers or other
instruments of transfer with respect thereto endorsed in blank;
(c) all Indebtedness of the Company and each Subsidiary that is owing
to any Loan Party shall be evidenced by a promissory note and shall have
been pledged pursuant to the Pledge Agreement and the Collateral Agent
shall have received all such promissory notes, together with instruments of
transfer with respect thereto endorsed in blank;
(d) all Polk County IRBs owned by or on behalf of any Loan Party
shall have been pledged pursuant to the Pledge Agreement (if certificated)
or the Security Agreement (if uncertificated) and either (i) if the Polk
County IRBs are represented by certificates, the Collateral Agent shall
have received certificates representing all such Polk County IRBs, together
with instruments of transfer with respect thereto endorsed in blank or (ii)
if the Polk County IRBs are not represented by certificates, the security
interest therein granted under the Security Agreement shall have been
perfected in a manner satisfactory to the Collateral Agent;
(e) all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the
Collateral Agent to be filed, registered or recorded
11
to create the Liens intended to be created by the Security Agreement and
the Pledge Agreement and perfect such Liens to the extent required by, and
with the priority required by, the Security Agreement and the Pledge
Agreement, shall have been filed, registered or recorded or delivered to
the Collateral Agent for filing, registration or recording;
(f) the Collateral Agent shall have received (i) counterparts of a
Mortgage with respect to each Mortgaged Property duly executed and
delivered by the record owner of such Mortgaged Property, (ii) a policy or
policies of title insurance issued by a nationally recognized title
insurance company insuring the Lien of each such Mortgage as a valid first
Lien on the Mortgaged Property described therein, free of any other Liens
except as expressly permitted by Section 6.02, together with such
endorsements, coinsurance and reinsurance as the Collateral Agent or the
Required Lenders may reasonably request, and (iii) such surveys, abstracts,
legal opinions and other documents as the Collateral Agent or the Required
Lenders may reasonably request with respect to any such Mortgage or
Mortgaged Property; PROVIDED that any surveys requested pursuant to clause
(iii) above shall not be required to be received prior to (but shall be
required upon) the date 120 days after the Effective Date; and
(g) each Loan Party shall have obtained all consents and approvals
required to be obtained by it in connection with the execution and delivery
of all Security Documents to which it is a party, the performance of its
obligations thereunder and the granting by it of the Liens thereunder.
"COLLATERAL SHARING AGREEMENT" means the Collateral Sharing Agreement
entered into in connection with the Original
Credit Agreement (as amended),
attached hereto as Exhibit C, among the Loan Parties and the Collateral Agent.
"COLLATERAL VALUE AMOUNT" means, as of any date of determination, the
sum of (a) the IMC Current Asset Base as of such date, plus (b) the Phosphate
Subsidiary Current Asset Base as of such date, plus (c) the Fixed Asset Base as
of such date.
12
"COMMITMENT" means a Revolving Commitment or Term Loan B Commitment,
or any combination thereof (as the context requires).
"COMPANY" has the meaning assigned to such term in the recitals
hereto.
"CONSOLIDATED EBITDA" means, for any period, the consolidated
operating earnings from (i) continuing operations of the Company, (ii)
continuing operations of the Company's consolidated Subsidiaries and (iii)
discontinued operations of the Company and its consolidated Subsidiaries, in
each case for such period before interest, taxes, depreciation, depletion,
amortization, other income and expense, minority interests, the cumulative
non-cash effect of changes in accounting standards and other non-cash
adjustments to operating earnings (other than any such non-cash charge to the
extent that it represents an accrual of or reserve for cash expenditures in any
future period), PLUS (except for purposes of determining the Applicable Rate)
any costs (up to an aggregate amount not to exceed $58,000,000) identified by
Ernst & Young arising from the temporary shutdown of phosphates operating assets
of the Company and its Subsidiaries during the Company's 2001 fiscal year that
were deducted from such consolidated operating earnings during such period and
MINUS any non-recurring or other charges not included in consolidated operating
earnings which are cash or represent an accrual of or reserve for cash
expenditures in future periods; PROVIDED that there shall be excluded the
consolidated operating earnings (if positive) of any Subsidiary to the extent
that the declaration of dividends or similar distributions by that Subsidiary of
such consolidated operating earnings is restricted, other than due to
restrictions imposed by the Argus Lease. Except for purposes of Section 6.13,
Consolidated EBITDA for each four-quarter period will be adjusted on a pro-forma
basis to reflect any Acquisition or Disposition closed during such period as if
such Acquisition or Disposition had been closed on the first day of such period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, (a) the
interest expense (including imputed interest expense in respect of Capital Lease
Obligations) of the Company and its Subsidiaries for such period, determined on
a consolidated basis in accordance with GAAP, minus (b) the interest income (if
any) of the Company for such period to the extent attributable to interest on
amounts held in the Polk Escrow, the Tender Escrow and the Salt Disposition
Escrow; PROVIDED that any
13
interest expense allocable to outstanding Polk County IRBs owned by Loan Parties
shall be excluded in determining "Consolidated Interest Expense" even if such
interest expense would be included in the determination of interest expense of
the Company and its Subsidiaries determined on a consolidated basis in
accordance with GAAP.
"CONSOLIDATED NET INCOME" means, for any period, the net income or
loss of the Company and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP (adjusted to exclude (i) any non-cash
write-down or write-off of an asset (other than any such write-down or write-off
that requires accrual of a reserve for cash charges for any future period),
provided that upon the sale of such asset such write-down or write-off shall not
be taken into account in calculating Consolidated Net Income, to the extent the
gain from any such sale would otherwise increase Consolidated Net Income, and
(ii) any non-cash write-ups or gains); PROVIDED that there shall be excluded (a)
the income of any Person (other than the Company) in which any other Person
(other than the Company or any Subsidiary or any director holding qualifying
shares in compliance with applicable law) owns an Equity Interest, except to the
extent of the amount of dividends or other distributions actually paid to the
Company or any of the Subsidiaries during such period, (b) the income or loss of
any Person accrued prior to the date it becomes a Subsidiary or is merged into
or consolidated with the Company or any Subsidiary or the date that such
Person's assets are acquired by the Company or any Subsidiary and (c) the net
income (but not loss) of any Subsidiary to the extent that the declaration of
dividends or similar distributions by that Subsidiary of such net income is
restricted, other than due to restrictions imposed by the Argus Lease.
"CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"CURRENT
CREDIT AGREEMENT" has the meaning assigned to such term in
the recitals hereto.
"DEFAULT" means any event or condition which constitutes an Event of
Default or which upon notice,
14
lapse of time or both would, unless cured or waived, become an Event of Default.
"DEFAULTING LENDER" means, at any time, a Revolving Lender that has
defaulted on its obligation to make a Revolving Loan that such Revolving Lender
is required to make hereunder and as to which the conditions to borrowing are
satisfied, provided that such default is continuing at such time.
"DISCLOSED MATTERS" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"DISPOSITION" means any sale, transfer or disposition by the Company
or any of its Subsidiaries of a Subsidiary, a division, a facility or a line of
business or of all or substantially all of the assets of any of the foregoing.
"DISQUALIFIED EQUITY INTERESTS" means any class or series of Equity
Interests of any Person that by its terms or otherwise is:
(a) required to be redeemed or repurchased or is redeemable or subject
to repurchase at the option of the holder of such class or series of Equity
Interests at any time on or prior to May 31, 2007; or
(b) convertible into or exchangeable at the option of the holder
thereof for Equity Interests referred to in clause (a) above or Indebtedness
having a scheduled maturity on or prior to May 31, 2007.
Notwithstanding the preceding sentence, any Equity Interests that would
constitute Disqualified Equity Interests solely because the holders of the
Equity Interests have the right to require the issuer thereof to repurchase such
Equity Interests upon the occurrence of a Change of Control will not constitute
Disqualified Equity Interests if the terms of such Equity Interests provide that
the issuer may not repurchase or redeem any such Equity Interests pursuant to
such provisions prior to termination of the Commitments and payment of all Loans
and other amounts accrued or owing under the Loan Documents.
"DOLLARS" or "$" refers to lawful money of the United States of
America.
15
"DOMESTIC EXCLUDED SUBSIDIARY" means, initially, each Domestic
Subsidiary identified as a Domestic Excluded Subsidiary on Schedule 3.12 and
also includes any Domestic Subsidiary (other than a Domestic Phosphate
Subsidiary) designated by the Company as a Domestic Excluded Subsidiary after
the Effective Date in accordance with Section 5.16 and any Domestic Subsidiary
that is a subsidiary of a Domestic Excluded Subsidiary or a Foreign Excluded
Subsidiary, but excludes any such Subsidiary that ceases to be a Domestic
Excluded Subsidiary as provided in Section 5.16.
"DOMESTIC PHOSPHATE EXCLUDED SUBSIDIARY" means, initially, each
Domestic Phosphate Subsidiary identified as a Domestic Phosphate Excluded
Subsidiary on Schedule 3.12 and also includes any Domestic Phosphate Subsidiary
designated by the Company as a Domestic Phosphate Excluded Subsidiary after the
Effective Date in accordance with Section 5.16 and any Domestic Phosphate
Subsidiary that is a subsidiary of a Domestic Phosphate Excluded Subsidiary or a
Foreign Phosphate Excluded Subsidiary, but excludes any such Subsidiary that
ceases to be a Domestic Phosphate Excluded Subsidiary as provided in Section
5.16.
"DOMESTIC PHOSPHATE SUBSIDIARY" means any Domestic Subsidiary that is
a Phosphate Subsidiary.
"DOMESTIC SUBSIDIARY" means any Subsidiary that is not a Foreign
Subsidiary.
"EFFECTIVE DATE" means May 17, 2001, the date on which the conditions
specified in Section 4.01 of the Original Credit Agreement were satisfied.
"ELIGIBLE ACCOUNT RECEIVABLE" means, as of any date of determination,
an Account Receivable that meets each of the following criteria at the time of
creation and continues to meet such criteria at the relevant date of
determination:
(a) the Account Receivable has been recorded in a manner consistent
with current and historical accounting practices of the Company;
(b) the obligor in respect of the Account Receivable is not the
Company or one of its Subsidiaries;
(c) the obligor in respect of the Account Receivable has not
commenced a voluntary case under
16
any applicable bankruptcy laws, as now constituted or hereafter amended,
has not made an assignment for the benefit of creditors, a decree or order
for relief has not been entered by a court having jurisdiction in the
premises in respect of such obligor in an involuntary case under any
applicable bankruptcy laws, as now constituted or hereafter amended, no
other petition or other application for relief under any applicable
bankruptcy laws has been filed against such obligor, and such obligor has
not failed, suspended business, ceased to be solvent, or consented to or
suffered a receiver, trustee, liquidator or custodian to be appointed for
it or for all or a significant portion of its assets or affairs;
(d) the Account Receivable is denominated in and provides for payment
in United States dollars or Canadian dollars;
(e) the Account Receivable has not been and is not required to be
charged off or written off as uncollectible in accordance with GAAP or the
customary business practices of the Company and its Subsidiaries; and
(f) the Collateral Agent has a valid and perfected first priority
(or, in the case of Second Priority Collateral, second priority) perfected
security interest in the Account Receivable pursuant to the Security
Agreement.
"ELIGIBLE INVENTORY" means, as of any date of determination, the
amount equal to the value of all Inventory, recorded in a manner consistent with
the current and historical accounting practices of the Company, valued at the
lower of cost or market, net of any and all reserves, including reserves taken
for or other adjustments, if any, characterized in the Company's internal
financial statements as "allowance inventory adjustment-production" or
"inventory shrink reserve-production", and before any adjustment for LIFO
accounting; PROVIDED that an item of Inventory shall be "Eligible Inventory"
only if:
(a) such item of Inventory is characterized in the Company's internal
financial statements as "raw materials", "work-in-process", "finished
goods", "offsite in transit freight" or "inventory received and unpaid";
17
(b) such item of Inventory does not include any profits or transfer
price additions charged or accrued in connection with transfers of such
Inventory between or among any of the Company and its Subsidiaries,
provided that such Inventory shall only be excluded as Eligible Inventory
up to an amount equal to such profits and transfer price additions;
(c) a Loan Party has good and marketable title as sole owner of such
item of Inventory;
(d) such item of Inventory is located in the United States of America
or Canada; and
(e) such item of Inventory is subject to a valid and perfected first
priority (or, in the case of Second Priority Collateral, second priority)
security interest in favor of the Collateral Agent pursuant to the Security
Agreement.
"ELIGIBLE OPERATING MATERIAL & SUPPLIES" means, as of any date of
determination, the amount equal to the value of all Operating Material &
Supplies recorded in a manner consistent with the current and historical
accounting practices of the Company net of any and all reserves, including
reserves taken for or other adjustments, if any, characterized in the Company's
internal financial statements as "allowance for inventory-nonproduction";
PROVIDED that an item of Operating Material & Supplies shall be "Eligible
Operating Material & Supplies" only if:
(a) such item of Operating Material & Supplies is characterized in
the Company's internal financial statements as "production materials
inventory", "packaging and shipping supplies", "repair parts", or
"operating supplies";
(b) a Loan Party has good and marketable title as sole owner of such
item of Operating Material & Supplies;
(c) such item of Operating Material & Supplies is located in the
United States of America or Canada; and
(d) such item of Operating Materials & Supplies is subject to a valid
and perfected first priority (or, in the case of Second Priority
Collateral,
18
second priority) security interest in favor of the Collateral Agent
pursuant to the Security Agreement.
"ENVIRONMENTAL LAWS" means all applicable laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions or legally binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the use, management, release or threatened release of, or exposure
to, any Hazardous Material or to occupational health and safety matters.
"EQUITY INTERESTS" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Company or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Company or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Company or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan
19
from the Company or any ERISA Affiliate of any notice, concerning the imposition
of Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"EURODOLLAR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"EVENT OF DEFAULT" has the meaning assigned to such term in Article
VII.
"EXCESS SALT DISPOSITION ESCROW" means an escrow account established
by the Collateral Agent for the purpose of escrowing all or any portion of the
Net Proceeds from the Salt Disposition available to the Company in accordance
with Section 2.11(f). The Company shall, at its sole discretion, have the right
to request the withdrawal of such escrowed funds, at any time and from time to
time, to prepay, repurchase or redeem the Company's 6.50% Notes due 2003, 10.75%
Notes due 2003, 6.55% Notes due 2005 or 7.625% Notes due 2005 (or any
combination thereof) or to use for general corporate purposes; PROVIDED that
once any such escrowed funds are withdrawn, the Company shall not be permitted
to re-deposit such funds in the Excess Salt Disposition Escrow.
"EXCLUDED SUBSIDIARY" means any Domestic Excluded Subsidiary, Foreign
Excluded Subsidiary, Domestic Phosphate Excluded Subsidiary or Foreign Phosphate
Excluded Subsidiary.
"EXCLUDED TAXES" means, with respect to any Agent, any Lender, any
Issuing Bank or any other recipient of any payment to be made by or on account
of any obligation of the any Borrower hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income by the United States of America, or
by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable lending office is located, (b) any branch profits taxes imposed
by the United States of America or any similar tax imposed by any other
jurisdiction described in clause (a) above and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Company under
Section 2.19(b)), any withholding tax imposed by the United States of America
that (i) is in effect and would apply to amounts payable to such Foreign Lender
at
20
the time such Foreign Lender becomes a party to this Agreement (or designates a
new lending office), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Company with
respect to any withholding tax pursuant to Section 2.17(a), or (ii) is
attributable to such Foreign Lender's failure to comply with Section 2.17(e).
"EXISTING CREDIT AGREEMENTS" means the Company's existing 364-Day
Credit Agreement dated as of September 29, 2000, as amended, and Second Amended
and Restated Five-Year Credit Agreement dated as of September 29, 2000, as
amended.
"EXISTING DEFAULTED DEBT" means the Polk County IRBs, the Carlsbad
IRBs, the Hillsborough IRBs and the $3,400,000 aggregate principal amount of the
Company's 10.75% Senior Notes due 2003 outstanding under the 1993 Indenture.
"EXISTING DEFAULTS" means any defaults (whether currently existing or
arising in the future) in respect of the Existing Defaulted Debt.
"EXISTING SYNTHETIC PURCHASE AGREEMENT" means the Issuer Share
Repurchase Agreement dated as of March 16, 2000, by and between the Company and
▇▇▇▇▇▇ Guaranty Trust Company of
New York.
"EXPOSURE LIMIT" has the meaning assigned to such term in Section
2.22(a).
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of
New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FINANCIAL OFFICER" means the chief financial officer, principal
accounting officer, treasurer or controller of the Company.
21
"FIXED ASSET BASE" means, as of any date of determination, an amount
equal to the lesser of (a) 35% of the sum of the value amounts set forth on
Schedule 1.01 with respect to each Mortgaged Property, excluding any such
Mortgaged Property that has been sold or otherwise disposed of prior to such
date,(b) the Lien Basket Amount as of such date or (c) 100% (or, after the Salt
Disposition, 150%) of the sum of the IMC Current Asset Base plus the Phosphate
Subsidiary Current Asset Base as of such date.
"FOREIGN LENDER" means any Lender that is organized under the laws of
a jurisdiction other than (a) the United States of America, any State thereof or
the District of Columbia or (b) the jurisdiction in which the applicable
Borrower is located. For purposes of this definition, the United States of
America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
"FOREIGN EXCLUDED SUBSIDIARY" means, initially, each Foreign
Subsidiary identified as a Foreign Excluded Subsidiary on Schedule 3.12 and also
includes any Foreign Subsidiary (other than a Foreign Phosphate Subsidiary)
designated by the Company as a Foreign Excluded Subsidiary after the Effective
Date in accordance with Section 5.16 and any Foreign Subsidiary that is a
subsidiary of a Domestic Excluded Subsidiary or a Foreign Excluded Subsidiary,
but excludes any such Subsidiary that ceases to be a Foreign Excluded Subsidiary
as provided in Section 5.16.
"FOREIGN PHOSPHATE EXCLUDED SUBSIDIARY" means, initially, each Foreign
Phosphate Subsidiary identified as a Foreign Phosphate Excluded Subsidiary on
Schedule 3.12 and also includes any Foreign Phosphate Subsidiary designated by
the Company as a Foreign Phosphate Excluded Subsidiary after the Effective Date
in accordance with Section 5.16 and any Foreign Phosphate Subsidiary that is a
subsidiary of a Domestic Phosphate Excluded Subsidiary or a Foreign Phosphate
Excluded Subsidiary, but excludes any such Subsidiary that ceases to be a
Foreign Phosphate Excluded Subsidiary as provided in Section 5.16.
"FOREIGN LOAN PARTY" means IMC Canada and any other Foreign Subsidiary
the Equity Interests in which are owned by a Loan Party and that the Company
elects by notice to the Agents to designate as a Foreign Loan Party and that has
satisfied the Collateral and Guarantee Requirement.
22
"FOREIGN PHOSPHATE SUBSIDIARY" means any Foreign Subsidiary that is a
Phosphate Subsidiary.
"FOREIGN SUBSIDIARY" means any Subsidiary that is organized under the
laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the United
States of America.
"GOVERNMENTAL AUTHORITY" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof
(including pursuant to any "synthetic lease" arrangement), (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; PROVIDED, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The amount of any
Guarantee made by any guarantor shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary obligation in respect
of which such Guarantee is made and (b) the maximum amount for which such
guarantor may be liable pursuant to the terms of the instrument embodying such
Guarantee, unless (in the case of a primary obligation
23
that is not Indebtedness) such primary obligation and the maximum amount for
which such guarantor may be liable are not stated or determinable, in which case
the amount of such Guarantee shall be such guarantor's maximum reasonably
anticipated liability in respect thereof as determined by the Company in good
faith.
"GUARANTEE AGREEMENT" means the Guarantee Agreement entered into in
connection with the Original Credit Agreement, attached hereto as Exhibit D,
among the Loan Parties and the Collateral Agent.
"▇▇▇▇▇▇ COUNTY OBLIGATIONS" means the financial assurance obligations
of Phosphates, as such obligations are identified in Phosphates' Annual Report
to ▇▇▇▇▇▇ County, Florida, dated August 15, 2002 (covering the period from July
1, 2001 through June 30, 2002) delivered to the Administrative Agent.
"▇▇▇▇▇▇ COUNTY PROPERTY" means land, in an aggregate amount not to
exceed 23,000 acres, reclaimed or being reclaimed that is located in ▇▇▇▇▇▇
County, Florida, or Polk County, Florida, and owned by Phosphates as of August
15, 2002.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HEDGING AGREEMENT" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"HILLSBOROUGH IRBs" means the existing $2,100,000 aggregate principal
amount of industrial revenue bonds issued by Tampa Port Authority under the
Indenture of Trust dated as of February 1, 1992, by and between Tampa Port
Authority and Dai-Ichi Kangyo Trust Company of
New York, as Trustee.
"IMC CANADA" means IMC Canada Ltd., a Canadian federal corporation.
24
"IMC CURRENT ASSET BASE" means, as of any date of determination, an
amount equal to the sum of (a) 85% of the aggregate amount of Eligible Accounts
Receivable of the Loan Parties (other than the Phosphates Subsidiaries) as of
such date, plus (b) 65% of Eligible Inventory owned by the Loan Parties (other
than the Phosphates Subsidiaries) as of such date, plus (c) 50% of Eligible
Operating Material & Supplies owned by the Loan Parties (other than the
Phosphates Subsidiaries) as of such date.
"INCREMENTAL FACILITIES" has the meaning assigned to such term in
Section 2.20.
"INCREMENTAL FACILITY AMENDMENT" has the meaning assigned to such term
in Section 2.20.
"INCREMENTAL REVOLVING EXPOSURE" means, with respect to any
Incremental Revolving Lender at any time, the aggregate principal amount at such
time of all outstanding Incremental Revolving Loans of such Incremental
Revolving Lender.
"INCREMENTAL REVOLVING LENDER" means a Lender with an outstanding
Incremental Revolving Loan.
"INCREMENTAL REVOLVING LOANS" has the meaning assigned to such term in
Section 2.20.
"INCREMENTAL TERM LENDER" means a Lender with an outstanding
Incremental Term Loan.
"INCREMENTAL TERM LOANS" has the meaning assigned to such term in
Section 2.20.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind (other than deposits or advances made by customers of such
Person in the ordinary course of business), (b) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding accrued salaries, vacation and other employee benefits and current
accounts payable, in each case incurred in the ordinary course of business), (e)
all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing
25
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (f) all Guarantees by such Person of Indebtedness of others, (g)
all Capital Lease Obligations of such Person, (h) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit
and letters of guaranty and (i) all obligations, contingent or otherwise, of
such Person in respect of bankers' acceptances; PROVIDED that the term
"Indebtedness" shall not be construed to include (i) deferred taxes, (ii)
contingent obligations under customary indemnification provisions contained in
contracts or agreements or (iii) obligations in respect of customary purchase
price adjustment provisions contained in contracts or agreements relating to the
purchase or sale of assets. The amount of any Indebtedness of a Person that
constitutes Indebtedness of such Person solely by reason of clause (e) above and
has not been assumed by such Person shall be deemed to be the lesser of (i) the
fair market value of the property owned or acquired by such Person that is or
may be the subject of a Lien securing such Indebtedness and (ii) the amount of
Indebtedness that is or may be secured by such property. The Indebtedness of any
Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT" means the
Indemnity, Subrogation and Contribution Agreement entered into in connection
with the Original Credit Agreement, attached hereto as Exhibit E, among the Loan
Parties and the Collateral Agent.
"INFORMATION MEMORANDUM" means the Confidential Information Memorandum
dated April 2001, relating to the Company and the Transactions in the form sent
to the initial Lenders.
"INTEREST ELECTION REQUEST" means a request by a Borrower to convert
or continue a Borrowing in accordance with Section 2.07.
26
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan (other
than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period,
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"INTEREST PERIOD" means, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter (or nine or twelve months thereafter if, at the time of the relevant
Borrowing, all Lenders participating therein agree to make an interest period of
such duration available), as the applicable Borrower may elect; PROVIDED, that
(a) if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day and
(b) any Interest Period that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made
and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"INVENTORY" means "inventory", within the meaning of the Uniform
Commercial Code, of the Company or one of its Subsidiaries, as applicable, that
constitutes (a) finished goods processed or manufactured for sale in the
ordinary course, (b) work-in-process and (c) raw materials used in the
production of such finished goods; PROVIDED that "Inventory" shall not include
any Operating Material & Supplies.
"ISSUING BANK" means JPMorgan Chase Bank (successor to The Chase
Manhattan Bank) and each other Revolving Lender that agrees in writing with the
Company to issue Letters of Credit (provided that notice of such
27
agreement is given to the Administrative Agent), in each case in its capacity as
the issuer of Letters of Credit hereunder, and its successors in such capacity
as provided in Section 2.05(i). An Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of such Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"LC DISBURSEMENT" means a payment made by an Issuing Bank pursuant to
a Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrowers at such time. The LC Exposure of any Revolving Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"LENDERS" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance or an Incremental Facility Agreement, other than any such Person that
ceases to be a party hereto pursuant to an Assignment and Acceptance. Unless the
context otherwise requires, the term "Lenders" includes the Swingline Lender.
"LETTER OF CREDIT" means any letter of credit issued pursuant to this
Agreement.
"LEVERAGE RATIO" means, as of the last day of any fiscal quarter, the
ratio of (a) Total Indebtedness as of such date to (b) Consolidated EBITDA for
the period of four consecutive fiscal quarters of the Company ended on such
date.
"LIBO RATE" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days
28
prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO RATE"
with respect to such Eurodollar Borrowing for such Interest Period shall be the
rate at which dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"LIEN BASKET AMOUNT" means, as of any date, the aggregate principal
amount of the Obligations constituting Indebtedness (as defined in the 1997
Indenture and the 1998 Indenture or in the New Senior Notes Indentures, as
applicable) that may be secured as of such date by Liens on Principal Properties
or shares of stock or debt of Restricted Subsidiaries (as defined in and within
the meaning of the 1997 Indenture and the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or in and within the
meaning of the New Senior Notes Indentures, as applicable) without securing any
of the debt securities outstanding under the 1997 Indenture, the 1998 Indenture
or the New Senior Notes Indentures, in each case pursuant to the provisions of
Section 4.9 of the 1997 Indenture, Section 4.9 of the 1998 Indenture and Section
4.15(c) of the New Senior Notes Indentures, respectively.
"LIMITATION PERIOD" has the meaning assigned to such term in Section
2.22(a).
"LIMITED EXPENDITURES" means Capital Expenditures, investments in
joint ventures and Monetary Acquisition Consideration (other than Monetary
Acquisition Consideration in respect of the exercise of any right of rescission
under the White River Agreement); PROVIDED that, in the case of any Permitted
Acquisition consummated after February 21, 2003, the Monetary
29
Acquisition Consideration in respect thereof shall not constitute "Limited
Expenditures" if (a) the Leverage Ratio after giving effect to such Permitted
Acquisition and the payment or incurrence of all Monetary Acquisition
Consideration relating thereto (determined as of the end of the most recent
fiscal quarter of the Company for which financial statements are available, on a
pro forma basis as if such Permitted Acquisition had been consummated at the
beginning of the period of four consecutive fiscal quarters then ended for
purposes of Consolidated EBITDA and as if such Permitted Acquisition had been
consummated at the end of such period for purposes of determining Total
Indebtedness) shall not exceed 4.0 to 1.0, (b) after giving effect to such
Permitted Acquisition and the payment or incurrence of all Monetary Acquisition
Consideration relating thereto, the available amount of the unused Revolving
Commitments (taking into account the total Revolving Exposures and any
limitations on borrowing attributable to the Collateral Coverage Ratio at the
time) shall not be less than $100,000,000 and (c) the Agents shall have received
a certificate signed on behalf of the Company by a Financial Officer setting
forth reasonably detailed calculations demonstrating satisfaction of the
conditions set forth in clauses (a) and (b) above.
"LOAN" means any loan made by a Lender to a Borrower pursuant to this
Agreement.
"LOAN DOCUMENTS" means this Agreement, the promissory notes, if any,
executed and delivered pursuant to Section 2.09(e), the Amendment and
Restatement Agreement, the Guarantee Agreement, the Indemnity, Subrogation and
Contribution Agreement and the Security Documents.
"LOAN PARTIES" means the Company and the Subsidiary Loan Parties.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, assets, operations or financial condition of the Company and the
Subsidiaries taken as a whole, (b) the ability of the Loan Parties to perform
their obligations under the Loan Documents or (c) the rights of or benefits
available to the Lenders under the Loan Documents.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements
or the Existing Synthetic Purchase Agreement, of any one
30
or more of the Company and its Subsidiaries in an aggregate principal amount
exceeding $20,000,000. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of the Company or any Subsidiary in
respect of any Hedging Agreement or the Existing Synthetic Purchase Agreement at
any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that the Company or such Subsidiary would be required to pay if such
Hedging Agreement or the Existing Synthetic Purchase Agreement, as applicable,
were terminated at such time.
"MONETARY ACQUISITION CONSIDERATION" means, in respect of any
Permitted Acquisition, consideration in the form of cash or the assumption or
incurrence of Indebtedness, including any Indebtedness resulting from such
Permitted Acquisition described in clause (vi) or (vii) of Section 6.01(a).
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MORTGAGE" means a mortgage, deed of trust or other security document
granting a Lien on any Mortgaged Property to secure any of the Obligations. Each
Mortgage shall be reasonably satisfactory in form and substance to the
Collateral Agent.
"MORTGAGED PROPERTY" means each parcel of real property and the
improvements thereto identified on Schedule 1.01.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"NET PROCEEDS" means, with respect to any event (a) the cash proceeds
received in respect of such event including (i) any cash received in respect of
any non-cash proceeds constituting deferred payment obligations, notes
receivable, purchase price adjustment payments, earnouts or similar payment
obligations, but in each case only as and when received, (ii) in the case of a
casualty, insurance proceeds, and (iii) in the case of a condemnation or similar
event, condemnation awards and similar payments, net of (b) the sum of (i) all
reasonable fees and out-of-pocket expenses paid by the Company and its
Subsidiaries to third parties (other than Affiliates) in connection with such
event, (ii) in the case of a sale, transfer or other disposition of an asset
(including pursuant to a sale and leaseback transaction or a casualty or a
condemnation or similar proceeding), the amount of all payments required to be
made by the
31
Company and its Subsidiaries as a result of such event to repay Indebtedness
(other than Loans) secured by such asset, (iii) in the case of the Salt
Disposition, any proceeds from the Salt Disposition deposited in the Argus Lease
Escrow following the consummation of the Salt Disposition in respect of the
termination of the Argus Lease or the direct or indirect acquisition of an
undivided interest in the Argus Lease or in the facilities that are the subject
of the Argus Lease, as the case may be, (iv) in the case of any Chemicals
Disposition, any payments made promptly following such Chemicals Disposition in
respect of the termination of the Argus Lease or the direct or indirect
acquisition of an undivided interest in the Argus Lease or in the facilities
that are the subject of the Argus Lease, as the case may be, and (v) the amount
of all taxes paid (or reasonably estimated to be payable) by the Company and its
Subsidiaries, and the amount of any reserves established by the Company and its
Subsidiaries to fund contingent liabilities or contingent obligations reasonably
estimated to be payable and that are directly attributable to such event (as
reasonably determined by the Company).
"NEW SENIOR NOTES" means the senior unsecured notes to be issued by
the Company on or prior to the Effective Date in an aggregate principal amount
not less than $550,000,000 and the Indebtedness represented thereby.
"NEW SENIOR NOTES INDENTURES" means the indentures under which the New
Senior Notes are issued and all other instruments, agreements and other
documents evidencing or governing the New Senior Notes or providing for any
Guarantee or other right in respect thereof.
"1998 INDENTURE" means the Indenture dated as of August 1, 1998,
between the Company and The Bank of
New York, as Trustee.
"1991 INDENTURE" means the Indenture dated as of December 1, 1991,
between the Company (as successor to IMC Fertilizer Group, Inc.) and The Bank of
New York, as Trustee.
"1997 INDENTURE" means the Indenture dated as of July 17, 1997,
between the Company and The Bank of
New York, as Trustee.
"1993 INDENTURE" means the Indenture dated as of June 15, 1993,
between the Company (as successor to IMC
32
Fertilizer Group, Inc.) and NationsBank of Georgia, National Association, as
Trustee.
"OBLIGATIONS" has the meaning assigned to such term in the Collateral
Sharing Agreement.
"OPERATING MATERIAL & SUPPLIES" means "inventory", within the meaning
of the Uniform Commercial Code, of the Company or one of its Subsidiaries, as
applicable, that constitutes consumables or repair parts used in the production
of finished goods of the Company or one of its Subsidiaries.
"ORIGINAL CREDIT AGREEMENT" has the meaning assigned to such term in
the recitals hereto.
"OTHER TAXES" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"PERFECTION CERTIFICATE" means a certificate in the form of Exhibit F
or any other form approved by the Collateral Agent. "PERMITTED ACQUISITION"
means any Acquisition by the Company or any of its Subsidiaries if, immediately
after giving effect thereto, (a) no Default has occurred and is continuing or
would result therefrom, (b) all transactions related thereto are consummated in
accordance with applicable laws, (c) all the Equity Interests of each Subsidiary
formed for the purpose of or resulting from such Acquisition shall be owned
directly by the Company or one of its Subsidiaries and all actions required to
be taken with respect to such acquired or newly formed Subsidiary under Sections
5.12 and 5.13 have been taken, (d) the Company and its Subsidiaries are in
compliance, on a pro forma basis after giving effect to such acquisition, with
the covenants contained in Sections 6.13, 6.14, 6.15 and 6.16 recomputed as of
the last day of the most recently ended fiscal quarter of the Company for which
financial statements are available, as if such Acquisition (and any related
incurrence or repayment of Indebtedness with any new Indebtedness being deemed
to be amortized over the applicable testing period
33
in accordance with its terms, and assuming that any Revolving Loans borrowed in
connection with such Acquisition are repaid with excess cash balances when
available) had occurred on the first day of each relevant period for testing
such compliance and (e) the Company has delivered a certificate to the Agents to
the effect set forth in clauses (a), (b), (c) and (d) above, together with all
relevant financial information for the Person or assets to be acquired.
"PERMITTED DEBT SECURITIES" means unsecured debt securities issued by
the Company that (a) mature later than, and do not require any amortization or
similar scheduled principal payments prior to, May 31, 2007, and (b) have terms
and conditions (other than with respect to interest rates and redemption
premiums) no less favorable to the Company and the Lenders than those of the New
Senior Notes.
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for Taxes or other governmental charges that
are not yet due or are being contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, landlord's and other like Liens imposed by law, and landlord's
Liens imposed by contracts, in each case arising in the ordinary course of
business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) pledges and deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case in
the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way, covenants,
conditions, restrictions and similar
34
encumbrances (in each case, that are reflected in, or would be reflected
in, title reports) on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary obligations and
do not materially detract from the value of the affected property or
interfere with the continued use of the affected property in the ordinary
conduct of business of the Company or any Subsidiary;
(g) Liens in favor of banks on items in collection (and the documents
related thereto) arising in the ordinary course of business of the Company
and the Subsidiaries under Article IV of the Uniform Commercial Code;
(h) Liens arising from Permitted Investments under clause (d) of the
definition of the term "Permitted Investments";
(i) other Liens securing monetary obligations in an aggregate amount
not exceeding $25,000,000 at any time; and
(j) mortgages or other liens to secure the ▇▇▇▇▇▇ County Obligations;
PROVIDED that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any
35
domestic office of any commercial bank organized under the laws of the
United States of America or any State thereof which has a combined capital
and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in
clause (c) above; and
(e) in the case of any Foreign Subsidiary, (i) marketable direct
obligations issued by, or unconditionally guaranteed by, the sovereign
nation in which such Foreign Subsidiary is organized and is conducting
business or issued by any agency of such sovereign nation and backed by the
full faith and credit of such sovereign nation, in each case maturing
within one year from the date of acquisition, so long as the indebtedness
of such sovereign nation is rated at least A by S&P or A2 by Moody's or
carries an equivalent rating from a comparable foreign rating agency or
(ii) investments of the type and maturity described in clauses (b) through
(d) above of foreign obligors, which investments or obligors have ratings
described in such clauses or equivalent ratings from comparable foreign
rating agencies.
"PERMITTED PLP PURCHASE" means any acquisition or purchase of any
Equity Interest in PLP from a Person other than the Company or a Subsidiary for
which the only consideration consists of capital stock of the Company.
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"PHOSPHATE CAP AMOUNT" has the meaning assigned to such term in the
definition of "Phosphate Subsidiary Current Asset Base".
"PHOSPHATE SUBSIDIARIES" means PLP, Phosphates and their respective
subsidiaries.
"PHOSPHATE SUBSIDIARY CURRENT ASSET BASE" means, as of any date of
determination, an amount equal to the sum of (a) the lesser of (i) the total
unpaid amount of Indebtedness and other obligations owed by any of PLP and
36
its Subsidiaries (other than Phosphates and its Subsidiaries) to any of the
Company and its Subsidiaries (other than Phosphate Subsidiaries) as of such date
(the "PLP CAP AMOUNT") and (ii) an amount equal to (A) the sum of (1) 85% of the
aggregate amount of Eligible Accounts Receivable of PLP and its Subsidiaries
(other than Phosphates and its Subsidiaries) that are Loan Parties as of such
date, plus (2) 65% of Eligible Inventory owned by PLP and its Subsidiaries
(other than Phosphates and its Subsidiaries) that are Loan Parties as of such
date, plus (3) 50% of Eligible Operating Material & Supplies owned by PLP and
its Subsidiaries (other than Phosphates and its Subsidiaries) that are Loan
Parties as of such date, multiplied by (B) a fraction, the numerator of which is
equal to the PLP Cap Amount and the denominator of which is equal to the sum of
the PLP Cap Amount plus the aggregate principal amount of outstanding PLP Notes
as of such date, and (b) the lesser of (i) the total unpaid amount of
Indebtedness and other obligations owed by any of the Phosphate Subsidiaries to
any of the Company and its Subsidiaries (other than the Phosphate Subsidiaries)
as of such date (the "PHOSPHATES CAP AMOUNT") and (ii) an amount equal to (A)
the sum of (1) 85% of the aggregate amount of Eligible Accounts Receivable of
Phosphates and its Subsidiaries that are Loan Parties as of such date, plus (2)
65% of Eligible Inventory owned by Phosphates and its Subsidiaries that are Loan
Parties as of such date, plus (3) 50% of Eligible Operating Material & Supplies
owned by Phosphates and its Subsidiaries that are Loan Parties as of such date,
multiplied by (B) a fraction, the numerator of which is equal to the Phosphates
Cap Amount and the denominator of which is equal to the sum of the Phosphates
Cap Amount plus the aggregate principal amount of outstanding PLP Notes as of
such date; PROVIDED that the "Phosphate Subsidiary Current Asset Base" as of any
date of determination shall not in any event exceed the Phosphates Cap Amount as
of such date; PROVIDED FURTHER that, if PLP becomes a wholly-owned Subsidiary of
the Company and the amount of the Guarantees by the Phosphate Subsidiaries under
the Guarantee Agreement cease to be limited, then the "Phosphate Subsidiary
Current Asset Base" will cease to be limited by the PLP Cap Amount and the
Phosphates Cap Amount, with the result that the "Phosphate Subsidiary Current
Asset Base" as of any date of determination will be an amount equal to the sum
of the amounts determined pursuant to clauses (a)(ii)(A) and (b)(ii)(A) above.
"PHOSPHATES" means IMC Phosphates Company, a Delaware general
partnership.
37
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Company or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"PLEDGE AGREEMENT" means the Pledge Agreement entered into in
connection with the Original Credit Agreement, attached hereto as Exhibit G,
among the Loan Parties and the Collateral Agent.
"PLP" means Phosphate Resource Partners Limited Partnership.
"PLP CAP AMOUNT" has the meaning assigned to such term in the
definition of "Phosphate Subsidiary Current Asset Base".
"PLP NOTES" means PLP's 7.0% Senior Notes due 2008.
"PLP PARTNERSHIP AGREEMENT" means the Amended and Restated Agreement
of Limited Partnership of Freeport-McMoRan Resource Partners, Limited
Partnership (predecessor to Phosphate Resource Partners Limited Partnership)
dated as of May 29, 1987, as amended.
"POLK COUNTY IRBS" means the existing $75,000,000 aggregate principal
amount of industrial revenue bonds issued by Polk County Industrial Development
Authority under the Indenture of Trust dated as of December 1, 1991, between the
Polk County Industrial Development Authority and The Bank of
New York, as
Trustee.
"POLK COUNTY SHARING AMOUNT" means, as of any date, (a) the
outstanding principal amount of the Polk County IRBs as of such date (excluding
the portion thereof that is pledged as Collateral as of such date) or (b) if the
Polk County IRBs have been refinanced on or prior to such date, the outstanding
principal amount of any refinancing Indebtedness that is or may be entitled to
be secured by any of the Collateral.
"POLK ESCROW" means an escrow account established by the Collateral
Agent under the Security Agreement for the purpose of escrowing a portion of the
Net Proceeds from the issuance of the New Senior Notes equal to the aggregate
principal amount of the Polk
38
County IRBs that are outstanding as of the Effective Date and are not owned by a
Loan Party (plus, if the Polk County IRBs are refinanced, the proceeds of such
refinancing received by or on behalf of the Loan Parties in payment of the Polk
County IRBs then owned by the Loan Parties), with such escrowed funds to be
applied to pay (or purchase, to the extent permitted by Section 5.15) the Polk
County IRBs that are not owned by the Loan Parties or, if the Polk County IRBs
are refinanced, then (a) first, to repay Revolving Borrowings then outstanding
and (b) second, to pay, prepay or repurchase (i) the 7.4% Notes or (ii) to the
extent that the sum of the Salt Disposition Escrow and the Polk Escrow exceeds
the principal amount of the 7.4% Notes outstanding from time to time, the
Company's 6.50% Notes due 2003, the 2005 Senior Notes or obligations under the
Existing Synthetic Purchase Agreement, or to prepay B Term Loans (or any
combination thereof).
"POTASH FACILITY" means a revolving credit facility, providing for
loans in an aggregate principal amount not to exceed $55,000,000 at any time
outstanding, to be entered into among the Second Priority Grantor, as the
borrower, IMC USA Holdings Inc., as the guarantor, and the lenders party
thereto, the definitive documentation with respect to which shall (a)
incorporate terms not in any manner more adverse to the Second Priority Grantor
or the Lenders than the terms set forth in Annex A hereto, unless such terms are
otherwise reasonably satisfactory to the Administrative Agent and (b) otherwise
be reasonably satisfactory in all material respects to the Administrative Agent.
"PREPAYMENT EVENT" means:
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset of the Company or
any Subsidiary, other than (i) dispositions described in clauses (a), (b),
(e), (f) and (g) of Section 6.05, (ii) the Salt Disposition and (iii) other
dispositions resulting in aggregate Net Proceeds not exceeding $10,000,000
during any fiscal year of the Company; or
(b) any casualty or other insured damage to, or any taking under
power of eminent domain or by condemnation or similar proceeding of, any
property or asset of the Company or any Subsidiary, but only to the extent
that (i) the Net Proceeds therefrom have not been applied or committed by
contract to be
39
applied to repair, restore or replace such property or asset or to acquire
real property, equipment or other tangible assets to be used in the
business of the Company and its Subsidiaries, in each case within 270 days
after such event or (ii) in the case of any such Net Proceeds committed to
be so applied (but not yet so applied) as of the date that is 270 days
after such event, such Net Proceeds have not been so applied within 360
days after such event; or
(c) the incurrence by the Company or any Subsidiary of any
Indebtedness, including any Permitted Debt Securities permitted under
clause (viii) of Section 6.01(a) but excluding any other Indebtedness
permitted under Section 6.01(a).
"PRIME RATE" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective on the date such change is publicly announced as being effective.
"RECALCULATION EVENT" means (a) any reduction in the maximum amount
that any of the Phosphate Subsidiaries could be required to pay under the
Guarantee Agreement by reason of a reduction in the amount of Indebtedness and
other obligations owed by any of the Phosphate Subsidiaries to the Company or
any of its other Subsidiaries, other than reductions that would not reduce the
total maximum amount that all the Phosphate Subsidiaries could be required to
pay under the Guarantee Agreement (the "PHOSPHATES GUARANTEE LIMIT") to an
amount that is $25,000,000 less than the Phosphates Guarantee Limit as of the
most recent date as of which the Collateral Value Amount shall have been
determined and with respect to which a Collateral Coverage Certificate shall
have been delivered to the Administrative Agent, (b) any sale, transfer or
disposition of any assets constituting Eligible Accounts Receivable, Eligible
Inventory or Eligible Operating Material & Supplies, other than sales, transfers
and dispositions (i) of Eligible Inventory or Eligible Operating Material &
Supplies in the ordinary course of business or (ii) to another Loan Party that
do not result in such assets ceasing to constitute Eligible Accounts Receivable,
Eligible Inventory or Eligible Operating Material & Supplies, (c) any sale,
transfer or disposition of a Mortgaged Property (it being understood that the
sale, transfer or disposition of any equipment located at a
40
Mortgaged Property or the demolition, removal or modification of improvements at
such Mortgaged Property shall not be construed to constitute a sale, transfer or
disposition for this purpose) or (d) the incurrence of Indebtedness permitted by
clause (xiv) of Section 6.01(a) that would reduce the Fixed Asset Base by more
than $5,000,000 in the aggregate.
"REGISTER" has the meaning set forth in Section 9.04.
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents,
advisors and trustees of such Person and such Person's Affiliates.
"REQUIRED LENDERS" means, at any time, Lenders having Revolving
Exposures, Incremental Revolving Exposures, B Term Loans, Incremental Term Loans
and unused Commitments representing more than 50% (or 66 2/3% if (a) there are
no B Term Loans or Incremental Term Loans outstanding or any Commitments in
effect to make any such Loans at such time and (b) JPMorgan Chase Bank and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P. and their respective Affiliates that are
Lenders have Revolving Exposures, Incremental Revolving Exposures and unused
Revolving Commitments representing an amount equal to or more than 50% of the
sum of the total Revolving Exposures and unused Revolving Commitments at such
time) of the sum of the total Revolving Exposures, Incremental Revolving
Exposures, outstanding B Term Loans, outstanding Incremental Term Loans and
unused Commitments at such time.
"RESTATEMENT EFFECTIVE DATE" has the meaning assigned to such term in
the Amendment and Restatement Agreement.
"RESTRICTED PAYMENT" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any Equity Interests of
the Company or any Subsidiary, or any payment (whether in cash, securities or
other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancelation or termination of
any Equity Interests of the Company or any Subsidiary or any option, warrant or
other right to acquire any such Equity Interests of the Company or any
Subsidiary; PROVIDED that any such payments under
41
the Existing Synthetic Purchase Agreement shall be deemed not to be Restricted
Payments.
"REVOLVING AVAILABILITY PERIOD" means the period from and including
the Effective Date to but excluding the earlier of the Revolving Maturity Date
and the date of termination of the Revolving Commitments.
"REVOLVING COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum aggregate amount of such Lender's Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Revolving Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Revolving Commitment, as applicable. The initial aggregate amount of the
Lenders' Revolving Commitments is $210,000,000.
"REVOLVING EXPOSURE" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans and
its LC Exposure and Swingline Exposure at such time.
"REVOLVING LENDER" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"REVOLVING LOAN" means a Loan made pursuant to clause (b) of Section
2.01.
"REVOLVING MATURITY DATE" means (a) May 17, 2006, or (b) if the 2005
Senior Notes Refinancing has not occurred prior to October 15, 2004, then
October 15, 2004. For purposes of Section 2.05(c) or any other provision of this
Agreement that requires a determination of the Revolving Maturity Date, the
Revolving Maturity Date shall be deemed to be October 15, 2004, unless and until
the 2005 Senior Notes Refinancing occurs.
"SALT DISPOSITION" means the sale of stock or assets of IMC Inorganic
Chemicals Inc. and its Subsidiaries that comprise all or substantially all of
the Salt and ▇▇▇▇▇ discontinued operations as reflected
42
in the Company's consolidated financial statements for the year ended December
31, 2000. The term "Salt Disposition" shall also include any transaction
pursuant to which such stock or assets of IMC Inorganic Chemicals Inc. and its
Subsidiaries that comprise all or substantially all of such discontinued
operations are transferred to a wholly owned Subsidiary and, subsequently, (i)
the shares of such Subsidiary are sold or (ii) such Subsidiary is merged into or
consolidated with any other Person, or such Person is merged into or
consolidated with such Subsidiary, PROVIDED that such merger (A) results in such
Subsidiary ceasing to be a Subsidiary and (B) is treated as a sale of such
Subsidiary for the purposes of Section 6.05.
"SALT DISPOSITION ESCROW" means an escrow account established by the
Collateral Agent under the Security Agreement for the purpose of escrowing up to
$312,000,000 of Net Proceeds from the Salt Disposition in accordance with
Section 2.11(f) to be applied to redeem or repay the 7.4% Notes (to the extent
outstanding) and (to the extent of any Net Proceeds deposited in such escrow
account in excess of the outstanding principal amount of the 7.4% Notes on the
date of deposit) to repay the Company's 6.50% Notes due 2003, 6.55% Notes due
2005 or 7.625% Notes due 2005 (or any combination thereof) then outstanding;
PROVIDED that the amount of the deposit, if any, remaining in such escrow
account after the redemption or repurchase of the outstanding notes as described
in this definition shall be distributed in accordance with clauses (iv) and (v)
of Section 2.11(f).
"S&P" means Standard & Poor's.
"▇▇▇▇▇▇▇ FACILITY" means the stock or assets comprising all or part of
the domestic Chemicals discontinued operations as reflected in the Company's
consolidated financial statements for the year ended December 31, 2000, but
excluding Chemicals' bicarbonate business and the Subsidiaries that conduct such
business.
"SECOND PRIORITY COLLATERAL" has the meaning assigned to such term in
the Security Agreement.
"SECOND PRIORITY GRANTOR" has the meaning assigned to such term in the
Security Agreement.
"SECURED LEVERAGE RATIO" means, as of the last day of any fiscal
quarter, the ratio of (a) the sum of the outstanding principal amount of the
Loans as of such date and the Polk County Sharing Amount as of such date,
43
to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters of
the Company ended on such date.
"SECURITY AGREEMENT" means the Security Agreement entered into in
connection with the Original Credit Agreement (as amended and restated on the
Restatement Effective Date), attached hereto as Exhibit H, among the Loan
Parties and the Collateral Agent.
"SECURITY DOCUMENTS" means the Collateral Sharing Agreement, the
Security Agreement, the Pledge Agreement, the Mortgages and each other security
agreement or other instrument or document executed and delivered pursuant to
Section 5.12 or 5.13 to secure any of the Obligations.
"7.4% NOTES" means the Company's 7.4% Notes due 2002.
"6.625% NOTES" means the Company's 6.625% Senior Notes due October 15,
2001.
"6.625% NOTES TENDER OFFER" means the tender offer by the Company for
the 6.625% Notes.
"STATUTORY RESERVE RATE" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject (a) with
respect to the Base CD Rate, for new negotiable nonpersonal time deposits in
dollars of over $100,000 with maturities approximately equal to three months and
(b) with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
44
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"SUBSIDIARY" means any subsidiary of the Company.
"SUBSIDIARY BORROWER ELECTION" means an agreement executed by the
Company and a Subsidiary, and delivered to and acknowledged by the
Administrative Agent, pursuant to which the Company designates such Subsidiary
to be, and such Subsidiary agrees to be, a Borrowing Subsidiary hereunder, in
accordance with Section 2.21. Each Subsidiary Borrower Election shall be in a
form reasonably satisfactory to the Administrative Agent.
"SUBSIDIARY BORROWER TERMINATION" means a notice executed by the
Company and delivered to the Administrative Agent terminating a Subsidiary's
status as a Borrowing Subsidiary hereunder in accordance with Section 2.21.
"SUBSIDIARY LOAN PARTY" means any Borrowing Subsidiary, any Foreign
Loan Party and any other Domestic Subsidiary that is not an Excluded Subsidiary.
"SWINGLINE EXPOSURE" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"SWINGLINE LENDER" means JPMorgan Chase Bank, in its capacity as
lender of Swingline Loans hereunder.
45
"SWINGLINE LOAN" means a Loan made pursuant to Section 2.04.
"SYNDICATION AGENT" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P., in its
capacity as syndication agent hereunder.
"SYNTHETIC PURCHASE AGREEMENT" means any agreement pursuant to which
the Company or a Subsidiary is or may become obligated to make (a) any payment
in connection with the purchase by any third party from a Person other than the
Company or a Subsidiary of any Equity Interest in or Indebtedness of the Company
or any Subsidiary or (b) any payment (other than on account of a permitted
purchase by it of any Equity Interest in or Indebtedness of the Company or any
Subsidiary) the amount of which is determined by reference to the price or value
at any time of any Equity Interest in or Indebtedness of the Company or any
Subsidiary; PROVIDED that no phantom stock or similar plan providing for
payments only to current or former directors, officers or employees of the
Company or the Subsidiaries (or to their heirs or estates) shall be deemed to be
a Synthetic Purchase Agreement.
"TAXES" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TENDER ESCROW" means an escrow account established by the Collateral
Agent under the Security Agreement for the purpose of escrowing funds to finance
the 6.625% Notes Tender Offer or to repay the 6.625% Notes at maturity.
"TERM LOAN B COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to make a B Term Loan pursuant to clause (a)
of Section 2.01 of the Original Credit Agreement.
"TERM LOAN LENDER" means a Lender with a Term Loan B Commitment or an
outstanding B Term Loan.
"TERM LOAN MATURITY DATE" means (a) November 17, 2006, or (b) if the
2005 Senior Notes Refinancing has not occurred prior to October 15, 2004, then
October 15, 2004.
"TERM LOAN PREPAYMENT DATE" has the meaning assigned to such term in
Section 2.11(f).
46
"TERMINATION EVENT" shall mean the earlier to occur of (a) the
entering into by the Required Lenders of a written agreement to terminate the
limitations set forth in Section 2.22(a) and (b) the issuance by the Company, in
one or more offerings, of common stock, preferred stock or other preferred
Equity Interests issued in accordance with Section 6.01(b) such that the
aggregate Net Proceeds of such offering or offerings after the Restatement
Effective Date equals or exceeds $115,000,000.
"THREE-MONTH SECONDARY CD RATE" means, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such
next preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m., New York City time, on such day (or, if
such day is not a Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of deposit dealers of
recognized standing selected by it.
"TOTAL INDEBTEDNESS" means, as of any date, the excess of (a) the
aggregate principal amount of Indebtedness of the Company and the
Subsidiaries outstanding as of such date, in the amount that would be
reflected on a balance sheet prepared as of such date on a consolidated basis
in accordance with GAAP, minus (b) the sum of (i) the amount of funds on
deposit in the Polk Escrow, the Tender Escrow, the Salt Disposition Escrow,
the Argus Lease Escrow, the B Term Loan Escrow and the Excess Salt
Disposition Escrow as of such date plus (ii) the amount of other cash and
cash equivalents (not exceeding $60,000,000) of the Company and its
Subsidiaries that is not subject to any Lien (other than Liens securing
Indebtedness included in clause (a) above) and that would be reflected on a
balance sheet prepared as of such date on a consolidated basis in accordance
with GAAP; PROVIDED that outstanding Polk County IRBs owned by any Loan Party
shall be excluded in determining "Total Indebtedness" even if such Polk
County IRBs would be reflected as Indebtedness on a balance sheet prepared on
a consolidated basis in accordance with GAAP;
47
PROVIDED FURTHER that the amount of funds on deposit in the Excess Salt
Disposition Escrow, the Argus Lease Escrow and the B Term Loan Escrow shall
not be deducted in determining "Total Indebtedness" for purposes of
determining the Applicable Rate.
"TRANSACTIONS" means (a) the execution, delivery and performance by
each Loan Party of the Loan Documents to which it is to be a party, the
borrowing of Loans, the use of the proceeds thereof and the issuance of Letters
of Credit hereunder and (b) the execution, delivery and performance by the
Company of the New Senior Notes Indentures, the issuance of the New Senior Notes
and the use of the proceeds thereof.
"TRANSPORTATION JOINT VENTURE" means the joint venture to be entered
into by the Company for the acquisition and operation of certain transportation
assets and services related to raw materials used in the Company's business.
"2005 SENIOR NOTES" means the Company's 7.625% Senior Notes due 2005
and 6.55% Senior Notes due 2005.
"2005 SENIOR NOTES REFINANCING" means the refinancing and repayment in
full of all the 2005 Senior Notes by the Company with the proceeds from the
issuance by the Company of Permitted Debt Securities.
"TYPE", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"WASTE LANDFILL" means the ▇▇▇▇▇▇ landfill and/or the ▇▇▇▇▇▇
brinefield that are part of the Chemicals discontinued operations as reflected
in the Company's consolidated financial statements for the year ended December
31, 2000.
"WHITE RIVER AGREEMENT" means the Asset Purchase Agreement dated as of
January 9, 2003, among Natural Soda AALA, Inc., Ameralia, Inc., White River
Nahcolite Minerals Ltd Liability Co. and the Company.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
48
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes
of this Agreement, Loans may be classified and referred to by Class (E.G., a
"Revolving Loan") or by Type (E.G., a "Eurodollar Loan") or by Class and Type
(E.G., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (E.G., a "Revolving Borrowing") or by Type (E.G., a
"Eurodollar Borrowing") or by Class and Type (E.G., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; PROVIDED
that, if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
that the Required Lenders request an amendment to any
49
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions set
forth herein, each Lender agrees (a) to make a B Term Loan to the Company on the
Effective Date in a principal amount not exceeding its Term Loan B Commitment
and (b) to make Revolving Loans to any Borrower from time to time during the
Revolving Availability Period in an aggregate principal amount that will not
result in such Lender's Revolving Exposure exceeding such Lender's Revolving
Commitment. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrowers may borrow, prepay and reborrow Revolving Loans.
Amounts repaid in respect of B Term Loans may not be reborrowed. All B Term
Loans and Revolving Loans outstanding under the Current Credit Agreement on the
Restatement Effective Date shall remain outstanding hereunder on the terms set
forth herein.
SECTION 2.02. LOANS AND BORROWINGS. (a) Each Loan (other than a
Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the
same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; PROVIDED that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing and B Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
applicable Borrower may request in accordance herewith; PROVIDED that all
Borrowings made on the Effective Date must be made as ABR Borrowings. Each
Swingline Loan shall be an ABR Loan. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign
50
branch or Affiliate of such Lender to make such Loan; PROVIDED that any exercise
of such option shall not affect the obligation of the relevant Borrower to repay
such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $1,000,000 and not less than $5,000,000; PROVIDED
that an ABR Revolving Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Revolving Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e). Each Swingline Loan shall be in an amount that is an integral multiple
of $100,000 and not less than $500,000. Borrowings of more than one Type and
Class may be outstanding at the same time; PROVIDED that there shall not at any
time be more than a total of 15 Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Revolving Maturity Date or Term Loan Maturity Date, as applicable.
SECTION2.03. REQUESTS FOR BORROWINGS. To request a Revolving
Borrowing or B Term Borrowing, a Borrower shall notify the Administrative Agent
of such request by telephone (a) in the case of a Eurodollar Borrowing, not
later than 12:00 noon, New York City time, three Business Days before the date
of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
10:00 a.m., New York City time, on the date of the proposed Borrowing; PROVIDED
that any such notice of an ABR Revolving Borrowing to finance the reimbursement
of an LC Disbursement as contemplated by Section 2.05(e) may be given not later
than 11:00 a.m., New York City time, on the date of the proposed Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the relevant Borrower. Each such telephonic and written Borrowing Request shall
specify
51
the following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Borrowing or
a B Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(vi) the location and number of the relevant Borrower's account to
which funds are to be disbursed, which shall comply with the requirements
of Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the relevant
Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. SWINGLINE LOANS. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to any Borrower from time to time during the Revolving Availability Period, in
an aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline Loans exceeding
$10,000,000 or (ii) the sum of the total Revolving Exposures exceeding the total
Revolving Commitments; PROVIDED that the Swingline Lender shall not be required
to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrowers may borrow, prepay and reborrow Swingline Loans.
52
(b) To request a Swingline Loan, a Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from a Borrower. The Swingline Lender shall make each Swingline
Loan available to the relevant Borrower by means of a credit to the general
deposit account of such Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.06(e), by remittance to the relevant Issuing Bank) by 3:00
p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such notice
shall specify the aggregate amount of Swingline Loans in which Revolving Lenders
will participate. Promptly upon receipt of such notice, the Administrative Agent
will give notice thereof to each Revolving Lender, specifying in such notice
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each
Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Administrative Agent, for the account of
the Swingline Lender, such Lender's Applicable Percentage of such Swingline Loan
or Loans. Each Revolving Lender acknowledges and agrees that its obligation to
acquire participations in Swingline Loans pursuant to this paragraph is absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Revolving
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, MUTATIS
MUTANDIS, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Revolving
53
Lenders. The Administrative Agent shall notify the relevant Borrower or
Borrowers of any participations in any Swingline Loans acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline Loans shall be
made to the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from a Borrower (or other party on behalf of a
Borrower) in respect of a Swingline Loan of such Borrower after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Revolving Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear. The
purchase of participations in a Swingline Loan pursuant to this paragraph shall
not relieve a Borrower of any default in the payment thereof.
SECTION 2.05. LETTERS OF CREDIT. (a) GENERAL. Subject to the terms
and conditions set forth herein, any Borrower may request the issuance of
Letters of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the relevant Issuing Bank, at any time and from time to
time during the Revolving Availability Period and prior to the date that is five
Business Days prior to the Revolving Maturity Date. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by a Borrower to, or entered into by a Borrower with, an Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement
shall control.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), a Borrower shall hand
deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the relevant Issuing Bank) to the relevant
Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting
the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance, amendment,
renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with
54
paragraph (c) of this Section), the amount of such Letter of Credit, the name
and address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. If requested
by such Issuing Bank, such Borrower also shall submit a letter of credit
application on such Issuing Bank's standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit such Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension (i) the LC
Exposure shall not exceed $100,000,000 and (ii) the total Revolving Exposures
shall not exceed the total Revolving Commitments.
(c) EXPIRATION DATE. Each Letter of Credit shall expire at or prior
to the close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Maturity Date.
(d) PARTICIPATIONS. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the relevant Issuing Bank or the Lenders, the
Issuing Bank in respect of such Letter of Credit hereby grants to each Revolving
Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a
participation in such Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Revolving
Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of such Issuing Bank, such Lender's Applicable Percentage
of each LC Disbursement made by such Issuing Bank and not reimbursed by the
relevant Borrower on the date due as provided in paragraph (e) of this Section,
or of any reimbursement payment required to be refunded to such Borrower for any
reason. Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that
55
each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
(e) REIMBURSEMENT. If an Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the relevant Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the date that
such LC Disbursement is made, if such Borrower shall have received notice of
such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or,
if such notice has not been received by such Borrower prior to such time on such
date, then not later than 12:00 noon, New York City time, on (i) the Business
Day that such Borrower receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that such Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; PROVIDED that,
if such LC Disbursement is not less than $500,000, such Borrower may, subject to
the conditions to borrowing set forth herein, request in accordance with Section
2.03 or 2.04 that such payment be financed with an ABR Revolving Borrowing or
Swingline Loan in an equivalent amount and, to the extent so financed, such
Borrower's obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing or Swingline Loan. If such Borrower fails
to make such payment when due, the Administrative Agent shall notify each
Revolving Lender of the applicable LC Disbursement, the payment then due from
such Borrower in respect thereof and such Lender's Applicable Percentage
thereof. Promptly following receipt of such notice, each Revolving Lender shall
pay to the Administrative Agent its Applicable Percentage of the payment then
due from such Borrower, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, MUTATIS
MUTANDIS, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the relevant Issuing Bank the amounts
so received by it from the Revolving Lenders. Promptly following receipt by the
Administrative Agent of any payment from such Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to such
Issuing Bank or, to the extent that Revolving Lenders have made payments
pursuant to this paragraph to reimburse such Issuing Bank, then to such Lenders
and such Issuing Bank as their interests may appear. Any payment made by a
Revolving Lender pursuant to this
56
paragraph to reimburse such Issuing Bank for any LC Disbursement (other than the
funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall
not constitute a Loan and shall not relieve such Borrower of its obligation to
reimburse such LC Disbursement.
(f) OBLIGATIONS ABSOLUTE. A Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by an Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, such Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor any Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
relevant Issuing Bank; PROVIDED that the foregoing shall not be construed to
excuse the relevant Issuing Bank from liability to the relevant Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by such Borrower to the extent permitted by
applicable law) suffered by such Borrower that are caused by such Issuing Bank's
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence
57
or wilful misconduct on the part of the relevant Issuing Bank, such Issuing Bank
shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
relevant Issuing Bank may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further investigation,
regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance
with the terms of such Letter of Credit.
(g) DISBURSEMENT PROCEDURES. The relevant Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. Such Issuing Bank shall
promptly notify the Administrative Agent and the relevant Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether such Issuing Bank
has made or will make an LC Disbursement thereunder; PROVIDED that any failure
to give or delay in giving such notice shall not relieve such Borrower of its
obligation to reimburse such Issuing Bank and the Revolving Lenders with respect
to any such LC Disbursement.
(h) INTERIM INTEREST. If an Issuing Bank shall make any LC
Disbursement, then, unless the relevant Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid amount
thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that such Borrower reimburses
such LC Disbursement, at the rate per annum then applicable to ABR Revolving
Loans; PROVIDED that, if the relevant Borrower fails to reimburse such LC
Disbursement when due pursuant to paragraph (e) of this Section, then Section
2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be for
the account of the relevant Issuing Bank, except that interest accrued on and
after the date of payment by any Revolving Lender pursuant to paragraph (e) of
this Section to reimburse such Issuing Bank shall be for the account of such
Lender to the extent of such payment.
(i) REPLACEMENT OF AN ISSUING BANK. An Issuing Bank may be replaced
at any time by written agreement among the Company, the Administrative Agent,
the replaced
58
Issuing Bank and the successor Issuing Bank (if any, it being understood that a
successor Issuing Bank shall not be required if there is more than one Issuing
Bank at the time). The Administrative Agent shall notify the Lenders of any such
replacement of an Issuing Bank. At the time any such replacement shall become
effective, the Company shall pay all unpaid fees accrued for the account of the
replaced Issuing Bank pursuant to Section 2.12(b). From and after the effective
date of any such replacement, (i) if there is a successor Issuing Bank, the
successor Issuing Bank shall have all the rights and obligations of an Issuing
Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain
a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional Letters
of Credit.
(j) CASH COLLATERALIZATION. If any Event of Default shall occur and
be continuing, on the Business Day that the Company receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrowers shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to the LC Exposure as of such
date plus any accrued and unpaid interest thereon; PROVIDED that the obligation
to deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice
of any kind, upon the occurrence of any Event of Default with respect to any
Borrower described in clause (h) or (i) of Article VII. Each such deposit
pursuant to this paragraph or Section 2.11(b) shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrowers under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which
59
investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrowers' risk and expense, such deposits shall
not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Banks for LC Disbursements for
which they have not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrowers for
the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to satisfy
other obligations of the Borrowers under this Agreement. If the Borrowers are
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the relevant Borrowers within three Business
Days after all Events of Default have been cured or waived. If the Borrowers are
required to provide an amount of cash collateral hereunder pursuant to Section
2.11(b), such amount (to the extent not applied as aforesaid) shall be returned
to the relevant Borrowers as and to the extent that, after giving effect to such
return, the Borrowers would remain in compliance with Section 2.11(b) and no
Default shall have occurred and be continuing.
SECTION 2.06. FUNDING OF BORROWINGS. (a) Each Lender shall make
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; PROVIDED that Swingline Loans shall be made as
provided in Section 2.04. The Administrative Agent will make such Loans
available to the applicable Borrower by promptly crediting the amounts so
received, in like funds, to an account of such Borrower maintained with the
Administrative Agent in New York City and designated by such Borrower in the
applicable Borrowing Request; PROVIDED that ABR Revolving Loans made to finance
the reimbursement of an LC Disbursement as provided in Section 2.05(e) shall be
remitted by the Administrative Agent to the applicable Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
60
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and the applicable Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is made
available to such Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation or (ii) in
the case of such Borrower, the interest rate applicable to ABR Loans. If such
Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.07. INTEREST ELECTIONS. (a) Each Revolving Borrowing and
B Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
applicable Borrower, in the case of a Revolving Borrowing, or the Company, in
the case of a B Term Borrowing, may elect to convert such Borrowing to a
different Type or to continue such Borrowing and, in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided in this Section.
Such Borrower may elect different options with respect to different portions of
the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding the Loans comprising such Borrowing, and the
Loans comprising each such portion shall be considered a separate Borrowing.
This Section shall not apply to Swingline Borrowings, which may not be converted
or continued.
(b) To make an election pursuant to this Section, the relevant
Borrower shall notify the Administrative Agent of such election by telephone by
the time that a Borrowing Request would be required under Section 2.03 if such
Borrower were requesting a Revolving Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery or
61
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by such Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the relevant Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the relevant Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Company, then, so long
as an Event of Default is continuing (i) no
62
outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing
and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.08. TERMINATION AND REDUCTION OF COMMITMENTS. (a) Unless
previously terminated, the Revolving Commitments shall terminate on the
Revolving Maturity Date.
(b) The Company may at any time terminate, or from time to time
reduce, the Revolving Commitments; PROVIDED that (i) each reduction of the
Revolving Commitments shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 and (ii) the Company shall not terminate
or reduce the Revolving Commitments if, after giving effect to any concurrent
prepayment of the Revolving Loans in accordance with Section 2.11, the sum of
the Revolving Exposures would exceed the total Revolving Commitments.
(c) The Company shall notify the Administrative Agent of any election
to terminate or reduce the Revolving Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any such notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Company pursuant to this Section shall be irrevocable; PROVIDED that a notice of
termination of the Revolving Commitments delivered by the Company may state that
such notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Company (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments of
any Class shall be permanent. Each reduction of the Revolving Commitments shall
be made ratably among the Revolving Lenders in accordance with their respective
Revolving Commitments.
(d) The parties hereto acknowledge that the Term Loan B Commitments
have terminated.
SECTION 2.09. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) Each
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
63
Revolving Loan owed by such Borrower to such Lender on the Revolving Maturity
Date, (ii) in the case of the Company, to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each B Term Loan of
such Lender as provided in Section 2.10 and (iii) to the Swingline Lender the
then unpaid principal amount of each Swingline Loan owed by such Borrower on the
earlier of the Revolving Maturity Date and the first date after such Swingline
Loan is made that is the 15th or last day of a calendar month and is at least
two Business Days after such Swingline Loan is made; PROVIDED that on each date
that a Revolving Borrowing is made by a Borrower, such Borrower shall repay all
Swingline Loans of such Borrower that were outstanding on the date such
Borrowing was requested.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof, the Borrower in respect thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from each Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder for the account
of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be PRIMA FACIE evidence of the existence and
amounts of the obligations recorded therein; PROVIDED that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of each Borrower to repay
its Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it to any
Borrower be evidenced by a promissory note. In such event, the applicable
Borrower shall prepare, execute and deliver to such Lender a promissory note
payable to the order of such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) and in a form approved by the Administrative
Agent. Thereafter, the Loans evidenced by
64
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.10. AMORTIZATION OF B TERM LOANS. (a) Subject to
adjustment pursuant to paragraph (c) of this Section, the Company shall repay B
Term Borrowings (i) on March 31, June 30, September 30 and December 31 of each
year prior to the Term Loan Maturity Date, commencing on September 30, 2001, in
an aggregate principal amount equal to $725,000, and (ii) on the Term Loan
Maturity Date, in an aggregate principal amount equal to $274,775,000.
(b) To the extent not previously paid, all B Term Loans shall be due
and payable on the Term Loan Maturity Date.
(c) Any prepayment of a B Term Borrowing shall be applied to reduce
the subsequent scheduled repayments of the B Term Borrowings to be made pursuant
to this Section ratably.
(d) Prior to any repayment of any B Term Borrowings hereunder, the
Company shall select the B Term Borrowing or B Term Borrowings to be repaid and
shall notify the Administrative Agent by telephone (confirmed by telecopy) of
such selection not later than 11:00 a.m., New York City time, three Business
Days before the scheduled date of such repayment. Each repayment of a Borrowing
shall be applied ratably to the Loans included in the repaid Borrowing.
Repayments of B Term Borrowings shall be accompanied by accrued interest on the
amount repaid.
SECTION 2.11. PREPAYMENT OF LOANS. (a) Each Borrower shall have the
right at any time and from time to time to prepay any of its Borrowings in whole
or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the sum of the Revolving
Exposures exceeds the total Revolving Commitments, the Borrowers shall prepay
Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are
outstanding, deposit cash collateral in an account with the Administrative Agent
pursuant to Section 2.05(j)) in an aggregate amount equal to such excess.
65
(c) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Company or any Subsidiary in respect of any
Prepayment Event or the Salt Disposition, the Company shall, within three
Business Days after such Net Proceeds are received, prepay Borrowings (or, in
the case of Revolving Borrowings, cause such Borrowings to be prepaid) in an
aggregate amount equal to such Net Proceeds (or, in the case of the Salt
Disposition, as provided in paragraph (f) of this Section) in the manner
specified in paragraphs (d), (e) and (f) of this Section; PROVIDED that, in the
case of any event described in clause (a) of the definition of the term
Prepayment Event, if the Company shall deliver to the Administrative Agent a
certificate signed on behalf of the Company by a Financial Officer to the effect
that the Company and its Subsidiaries intend to apply (or enter into contractual
commitments to apply) the Net Proceeds from such event (or a portion thereof
specified in such certificate), within 270 days after receipt of such Net
Proceeds (and, in the case of any such contractual commitments, to apply such
Net Proceeds within 360 days after receipt of such Net Proceeds), to acquire
real property, equipment or other tangible assets to be used in the business of
the Company and its Subsidiaries, and certifying that no Default has occurred
and is continuing, then no prepayment shall be required pursuant to this
paragraph in respect of the Net Proceeds in respect of such event (or the
portion of such Net Proceeds specified in such certificate, if applicable)
except (i) to the extent of any such Net Proceeds therefrom that have not been
so applied (or so committed to be applied) by the end of such 270-day period, at
which time a prepayment shall be required in an amount equal to such Net
Proceeds that have not been so applied (or so committed to be applied) and (ii)
in the case of any such Net Proceeds therefrom that, as of the end of such
270-day period, have been so committed to be so applied but have not yet been so
applied, to the extent such Net Proceeds have not been so applied within 360
days after receipt of such Net Proceeds, at which time a prepayment shall be
required in an amount equal to such Net Proceeds that have not been so applied.
Notwithstanding the foregoing, if (A) any event occurs that constitutes a
"Prepayment Event" (or would constitute a "Prepayment Event" except by reason of
any of the exclusions set forth in the definition of the term "Prepayment
Event"), (B) the Company or any Loan Party would be required to prepay, redeem
or repurchase (or offer to prepay, redeem or repurchase) any New Senior Notes or
other Material Indebtedness as a result of such event (a "PREPAYMENT
REQUIREMENT") and (C) the Prepayment
66
Requirement would be avoided or reduced if Borrowings were prepaid, then, as and
to the extent necessary to avoid or reduce the Prepayment Requirement, the
Company shall cause Borrowings to be prepaid immediately prior to the expiry of
any period that, if Borrowings are prepaid during such period, the Prepayment
Requirement would be so avoided or reduced.
(d) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the relevant Borrower shall select the Borrowing or Borrowings to be
prepaid and shall specify such selection in the notice of such prepayment
pursuant to paragraph (e) of this Section; PROVIDED that (i) in the event of any
mandatory prepayment in respect of a Prepayment Event made at a time when any B
Term Borrowing is outstanding, such selection shall be made so that such
prepayments are applied to prepay B Term Borrowings before any Revolving
Borrowings are prepaid, (ii) in the event of any mandatory prepayment in respect
of the Salt Disposition, such selection shall be made in compliance with
paragraph (f) of this Section and (iii) any mandatory prepayment of Revolving
Borrowings required by this Section shall not be construed to require a
reduction of Revolving Commitments.
(e) The applicable Borrower shall notify the Administrative Agent
(and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 12:00 noon, New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 10:00 a.m., New York City time,
on the date of prepayment or (iii) in the case of prepayment of a Swingline
Loan, not later than 12:00 noon, New York City time, on the date of prepayment.
Each such notice shall be irrevocable and shall specify the prepayment date, the
principal amount of each Borrowing or portion thereof to be prepaid and, in the
case of a mandatory prepayment, a reasonably detailed calculation of the amount
of such prepayment; PROVIDED that, if a notice of optional prepayment is given
in connection with a conditional notice of termination of the Revolving
Commitments as contemplated by Section 2.08, then such notice of prepayment may
be revoked if such notice of termination is revoked in accordance with Section
2.08. Promptly following receipt of any such notice (other than a notice
relating solely to Swingline Loans), the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial
67
prepayment of any Borrowing shall be in an amount that would be permitted in the
case of an advance of a Borrowing of the same Type as provided in Section 2.02,
except as necessary to apply fully the required amount of a mandatory
prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.13.
(f) If the Salt Disposition occurs, the Net Proceeds therefrom will
be applied as follows:
(i) first, to prepay Revolving Borrowings then outstanding;
(ii) second, to prepay B Term Borrowings then outstanding to the
extent of the excess, if any, of (A) the sum of the aggregate principal
amount of B Term Borrowings then outstanding plus the aggregate principal
amount of Polk County IRBs then outstanding plus the total Revolving
Commitments then in effect minus (B) the Collateral Coverage Amount at the
time (calculated after excluding from the Collateral Coverage Amount any
assets included therein that have been sold or otherwise disposed of);
(iii) third, remaining Net Proceeds up to the amount of $312,000,000
shall be deposited in the Salt Disposition Escrow;
(iv) fourth, to prepay outstanding B Term Borrowings, subject to
paragraph (g) below; and
(v) fifth, any remaining Net Proceeds shall be available to the
Company.
Notwithstanding anything contained herein to the contrary, all Net
Proceeds from the Salt Disposition that are available to be applied to prepay
outstanding B Term Borrowings in accordance with clause (iv) of this paragraph
(f) shall (a) within three Business Days following the consummation of the Salt
Disposition, be deposited in the B Term Loan Escrow for a period not to exceed
30 days and (b) on or prior to the end of such 30-day period, be applied to
prepay outstanding B Term Borrowings, subject to paragraph (g) below (the date
on which such prepayment is made shall be referred to as the "TERM LOAN
PREPAYMENT DATE"). Following such application, any proceeds remaining in the B
Term Loan Escrow shall be released from the B Term Loan Escrow and
68
shall be available to the Company in accordance with clause (v) of this
paragraph (f).
In addition, following the Salt Disposition, the Company may, at its
option, deposit in the Excess Salt Disposition Escrow all or any portion of the
Net Proceeds made available to the Company in accordance with clause (v) of this
paragraph (f); PROVIDED that all such funds to be deposited in the Excess Salt
Disposition Escrow shall be deposited in such escrow account no later than the
Term Loan Prepayment Date.
(g) Any Term Loan Lender may elect to decline all or any portion of
prepayment of such Lender's B Term Loans required to be made pursuant to clause
(iv) of paragraph (f) above. Such election shall be made by notice to the
Administrative Agent by telephone (confirmed by telecopy) at least one Business
Day prior to the prepayment date. The aggregate amount of the prepayment that
would have been applied to prepay any such B Term Loan that is so declined shall
be available to the Company.
(h) In the event of any optional or mandatory prepayment of any B
Term Borrowing hereunder within two years after the Effective Date, the Company
shall on the date of such prepayment pay to the Administrative Agent for the
account of each B Term Loan Lender a prepayment premium equal to (i) if such
prepayment occurs within one year after the Effective Date, 2.0% of the
principal amount of the B Term Loans of such Term Loan Lender so prepaid or (ii)
if such prepayment occurs thereafter but within two years after the Effective
Date, 1.0% of the principal amount of the B Term Loans of such Term Loan Lender
so prepaid; PROVIDED that no such prepayment premium shall be required in
respect of any prepayment of B Term Borrowings pursuant to paragraph (f) of this
Section.
SECTION 2.12. FEES. (a) The Company agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee,
which shall accrue at the Applicable Rate on the average daily unused amount of
the Revolving Commitment of such Lender during the period from and including the
Effective Date to but excluding the date on which such Revolving Commitment
terminates; provided that a Defaulting Lender will not be entitled to receive
such fee for any period that it is a Defaulting Lender. Accrued commitment fees
shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the
69
Revolving Commitments terminate, commencing on the first such date to occur
after the date hereof. All commitment fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). For purposes of computing
commitment fees, a Revolving Commitment of a Lender shall be deemed to be used
to the extent of the outstanding Revolving Loans and LC Exposure of such Lender
(and the Swingline Exposure of such Lender shall be disregarded for such
purpose).
(b) The Company agrees to pay (i) to the Administrative Agent for the
account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate as interest on Eurodollar Revolving Loans on the average daily amount of
such Lender's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Lender's
Revolving Commitment terminates and the date on which such Lender ceases to have
any LC Exposure; PROVIDED that a Defaulting Lender shall not be entitled to
receive such fee for any period that it is a Defaulting Lender, and (ii) to each
Issuing Bank a fronting fee, which shall accrue at the rate or rates per annum
separately agreed upon between the Company and such Issuing Bank on the average
daily amount of the LC Exposure attributable to Letters of Credit issued by such
Issuing Bank (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date of termination of the Revolving Commitments and
the date on which there ceases to be any LC Exposure, as well as such Issuing
Bank's standard fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit issued by it or processing of drawings
thereunder. Participation fees and fronting fees accrued through and including
the last day of March, June, September and December of each year shall be
payable in arrears on the third Business Day following such last day, commencing
on the first such date to occur after the Effective Date; PROVIDED that all such
fees shall be payable on the date on which the Revolving Commitments terminate
and any such fees accruing after the date on which the Revolving Commitments
terminate shall be payable on demand. Any other fees payable to an Issuing Bank
pursuant to this paragraph shall be payable within 10 days after demand. All
participation fees and fronting fees shall be computed on the basis of a year of
70
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(c) The Company agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between the Company and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the applicable
Issuing Bank, in the case of fees payable to it) for distribution, in the case
of commitment fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
SECTION 2.13. Interest . (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate
plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by any Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving Commitments; PROVIDED that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving Loan prior to the end of the Revolving Availability Period),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in
71
the event of any conversion of any Eurodollar Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be payable
on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14. ALTERNATE RATE OF INTEREST. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their
Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
Each Lender shall give notice to the Administrative Agent by telephone
or telecopy as promptly as practicable after determining that the circumstances
referred to in paragraph (b) above applicable to such Lender no longer exist,
and the Administrative Agent
72
shall give notice to the Company and the Lenders by telephone or telecopy as
promptly as practicable after the Administrative Agent determines (which
determination shall be conclusive absent manifest error) that the circumstances
giving rise to any notice given by the Administrative Agent pursuant to the
preceding sentence no longer exist.
SECTION 2.15. INCREASED COSTS. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or any Issuing Bank; or
(ii) impose on any Lender or any Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans
made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or such
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or such
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
relevant Borrower will pay to such Lender or such Issuing Bank, as the case may
be, such additional amount or amounts as will compensate such Lender or such
Issuing Bank (without duplication of any amounts paid to such Lender pursuant to
Section 2.17), as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or any Issuing Bank determines that any Change in
Law regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or such Issuing Bank's capital or on the capital
of such Lender's or such Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by such Issuing
Bank, to a level below that which such Lender or such Issuing Bank or such
Lender's or such Issuing Bank's holding company could
73
have achieved but for such Change in Law (taking into consideration such
Lender's or such Issuing Bank's policies and the policies of such Lender's or
such Issuing Bank's holding company with respect to capital adequacy), then from
time to time the Company will pay to such Lender or such Issuing Bank, as the
case may be, such additional amount or amounts as will compensate such Lender or
such Issuing Bank or such Lender's or such Issuing Bank's holding company for
any such reduction suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth in
reasonable detail the amount or amounts necessary to compensate such Lender or
such Issuing Bank or its holding company, as the case may be, as specified in
paragraph (a) or (b) of this Section shall be delivered to the Company and shall
be conclusive absent manifest error. The relevant Borrower shall pay such Lender
or such Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or any Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or such Issuing Bank's right to demand such compensation; PROVIDED
that the relevant Borrower shall not be required to compensate a Lender or an
Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 180 days prior to the date that such Lender or such Issuing
Bank, as the case may be, notifies the Company of the Change in Law giving rise
to such increased costs or reductions and of such Lender's or such Issuing
Bank's intention to claim compensation therefor; PROVIDED FURTHER that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the 180-day period referred to above shall be extended to include the
period of retroactive effect thereof.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or B Term Loan on the date specified in
any notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(e) and is revoked in accordance
74
therewith), or (d) the assignment of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto as a result of a request by the
Company pursuant to Section 2.19, then, in any such event, the relevant Borrower
shall compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth in
reasonable detail any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Company and shall be
conclusive absent manifest error. The relevant Borrower shall pay such Lender
the amount shown as due on any such certificate within 10 days after receipt
thereof.
Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; PROVIDED that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any loss, cost or expense
incurred more than 180 days prior to the date that such Lender notifies the
Company of the loss, cost or expense and of such Lender's intention to claim`
compensation therefor.
SECTION2.17. TAXES. (a) Any and all payments by or on account of
any obligation of any Borrower hereunder or under any other Loan Document shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; PROVIDED that if any Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Agent, Lender or Issuing Bank (as the case may be)
75
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and (iii)
such Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The relevant Borrower shall indemnify each Agent, each Lender and
each Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by such Agent, such Lender
or such Issuing Bank, as the case may be, on or with respect to any payment by
or on account of any obligation of any Borrower hereunder or under any other
Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section but excluding Indemnified
Taxes or Other Taxes to the extent resulted from the gross negligence, bad faith
or wilful misconduct of the Agents, such Lender or the Issuing Banks, as
applicable) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate in reasonable detail as to the amount of
such payment or liability delivered to the Company by a Lender or an Issuing
Bank, or by the Administrative Agent on its own behalf or on behalf of a Lender
or an Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by any Borrower to a Governmental Authority, such Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
applicable Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Company (with a copy to the Administrative Agent), at the time or times
prescribed by
76
applicable law, such properly completed and executed documentation prescribed by
applicable law or reasonably requested by the Company as will permit such
payments to be made without withholding or at a reduced rate, provided that such
Foreign Lender has received written notice from the Company advising it of the
availability of such exemption or reduction and supplying all applicable
documentation.
(f) If the Administrative Agent or any Lender, as the case may be,
determines, in its sole discretion, that it has received a refund of any
Indemnified Taxes or Other Taxes (a "TAX REFUND"), which in the reasonable good
faith judgment of the Administrative Agent or such Lender, as the case may be,
is allocable to Taxes paid by the Borrower, it shall promptly pay such Tax
Refund to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.17 with respect to
the Indemnified Taxes or Other Taxes giving rise to such refund) plus any
interest payable thereon by the relevant Governmental Authority with respect to
such refund, net of all out-of-pocket expenses of the Administrative Agent or
such Lender incurred in obtaining such Tax Refund; PROVIDED, HOWEVER, that the
Borrower, upon the request of the Administrative Agent or such Lender, agrees to
repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) if the
Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. Nothing contained in this Section 2.17(f) shall require
the Administrative Agent or any Lender to make available its tax returns (or any
other information) to the Borrower or any other Person.
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SETOFFS. (a) Each Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 12:00 noon, New York City time), on the date when
due, in immediately available funds, without setoff or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the
77
Administrative Agent at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
except payments to be made directly to an Issuing Bank or Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.15,
2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto and
payments pursuant to other Loan Documents shall be made to the Persons specified
therein. The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment under any Loan Document shall be due
on a day that is not a Business Day, the date for payment shall be extended to
the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, unreimbursed
LC Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, B Term Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Revolving Loans, B Term Loans
and participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans, B Term Loans and participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans, B Term Loans and participations in LC
Disbursements and Swingline Loans;
78
PROVIDED that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall not
be construed to apply to any payment made by any Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or participations in LC Disbursements to any assignee or
participant, other than to any Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). Each Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from a
Borrower prior to the date on which any payment is due to the Administrative
Agent from such Borrower for the account of the Lenders or an Issuing Bank
hereunder that such Borrower will not make such payment, the Administrative
Agent may assume that such Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders or such Issuing Bank, as the case may be, the amount due. In such event,
if the relevant Borrower has not in fact made such payment, then each of the
Lenders or such Issuing Bank, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or 9.03(c),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative
79
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. (a) If
any Lender requests compensation under Section 2.15, or if any Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to file any certificate or document
reasonably requested by the Company or to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such filing, designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as the
case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Company hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such filing, designation or
assignment.
(b) If any Lender requests compensation under Section 2.15, or if any
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligations to fund Loans hereunder, then the
Company may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); PROVIDED that (i) the Company
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Commitment is being assigned, the Issuing Banks and Swingline
Lender), which consent shall not unreasonably be withheld, (ii) such Lender
shall have received payment of an amount equal to the outstanding principal of
its Loans and participations in LC Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Company (in the case of all other amounts) and (iii)
in the case of any such
80
assignment resulting from a claim for compensation under Section 2.15 or
payments required to be made pursuant to Section 2.17, such assignment will
result in a material reduction in such compensation or payments. A Lender shall
not be required to make any such assignment and delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling
the Company to require such assignment and delegation cease to apply.
SECTION 2.20. INCREMENTAL FACILITIES. The Company may at any time, by
notice to the Agents (whereupon the Administrative Agent shall promptly deliver
a copy to each of the Lenders), request the addition of new credit facilities
(the "INCREMENTAL FACILITIES") consisting of a new tranche of term loans (the
"INCREMENTAL TERM LOANS") or a new tranche of revolving loans (the "INCREMENTAL
REVOLVING LOANS") or a combination thereof; PROVIDED that both at the time of
any such request and upon the effectiveness of the Incremental Facility
Amendment referred to below, no Default shall exist and at the time that any
such Incremental Term Loans or Incremental Revolving Loans, as the case may be,
are made (and after giving effect thereto) no Default shall exist and the
Company shall be in compliance with Sections 6.14 and 6.15, determined on a pro
forma basis as if such Incremental Term Loans or Incremental Revolving Loans, as
the case may be, had been outstanding on the last day of the most recent fiscal
quarter for testing compliance therewith. The Incremental Facilities (i) shall
be in an aggregate principal amount not exceeding (in the aggregate)
$100,000,000 and shall be effected as Incremental Term Loans or Incremental
Revolving Loans (except that not more than $50,000,000 of the Incremental
Facilities will be Incremental Revolving Loans), (ii) shall rank PARI PASSU in
right of payment and of security with the Revolving Loans and the B Term Loans,
(iii) that are effected as Incremental Term Loans shall not mature earlier than
the Term Loan Maturity Date (but may, subject to clause (iv) below, have
amortization and commitment reductions prior to such date), (iv) that are
effected as Incremental Term Loans shall not have a weighted average life that
is shorter than that of the B Term Loans, (v) that are effected as Incremental
Revolving Loans shall mature on the Revolving Loan Maturity Date, (vi) shall not
accrue interest at a rate or rates in excess of the interest rates applicable to
the B Term Loans, in the case of Incremental Term Loans, or the Revolving Loans,
in the case of the Incremental Revolving Loans, and (vii) except as set forth
above,
81
shall be treated substantially the same as (and in any event no more favorably
than) the B Term Loans (in each case, including with respect to mandatory and
voluntary prepayments), in the case of Incremental Term Loans, or the Revolving
Loans, in the case of the Incremental Revolving Loans; PROVIDED that (a) the
terms and conditions applicable to Incremental Term Loans maturing after the
Term Loan Maturity Date may provide for material additional or different
financial or other covenants applicable only during periods after the Term Loan
Maturity Date and (b) subject to clause (vi) above, the Incremental Facilities
may be priced differently than the B Term Loans and the Revolving Loans. Such
notice shall set forth the requested amount of Incremental Term Loans or
Incremental Revolving Loans, as the case may be. In the event that existing
Lenders provide commitments in an aggregate amount less than the total amount of
the Incremental Term Loans or Incremental Revolving Loans, as the case may be,
requested by the Company (but the Company shall not have any obligation to
request any Lender to provide any amount of the Incremental Term Loans or
Incremental Revolving Loans, as the case may be), the Company may arrange for
one or more banks or other financial institutions (any such bank or other
financial institution being called an "ADDITIONAL LENDER") to extend commitments
to provide Incremental Term Loans or Incremental Revolving Loans, as the case
may be, in an aggregate amount equal to the unsubscribed amount. Commitments in
respect of Incremental Term Loans or Incremental Revolving Loans, as the case
may be, shall become Commitments under this Agreement pursuant to an amendment
(an "INCREMENTAL FACILITY AMENDMENT") to this Agreement and, as appropriate, the
other Loan Documents, executed by the Company, each Lender agreeing to provide
such Commitment, if any, each Additional Lender, if any, and the Agents. The
Incremental Facility Amendment may, without the consent of any other Lenders,
effect such amendments to this Agreement and the other Loan Documents as may be
necessary or appropriate, in the opinion of the Agents, to effect the provisions
of this Section. The effectiveness of any Incremental Facility Amendment shall
be subject to the satisfaction on the date thereof of each of the conditions set
forth in Section 4.01 (it being understood that all references to "the date of
such Borrowing" in such Section 4.01 shall be deemed to refer to the effective
date of such Incremental Facility Amendment). No Lender shall be obligated to
provide any Incremental Term Loans or Incremental Revolving Loans, as the case
may be, unless it so agrees.
82
SECTION 2.21. BORROWING SUBSIDIARIES. The Company may from time to
time designate any Subsidiary (other than (i) a Foreign Subsidiary that is not a
Foreign Loan Party or (ii) an Excluded Subsidiary) to be a Borrowing Subsidiary
hereunder by delivering to the Administrative Agent a Subsidiary Borrower
Election with respect to such Subsidiary. The eligibility of any Borrowing
Subsidiary to borrow or to have Letters of Credit issued for its account
hereunder shall terminate when the Administrative Agent receives a Subsidiary
Borrower Termination with respect to such Subsidiary. Each Subsidiary Borrower
Election delivered to the Administrative Agent shall be duly executed on behalf
of the relevant Subsidiary and the Company, and each Subsidiary Borrower
Termination delivered to the Administrative Agent shall be duly executed on
behalf of the Company. The delivery of a Subsidiary Borrower Termination shall
not affect any obligation of the relevant Subsidiary theretofore incurred in its
capacity as a Borrower, and such Subsidiary shall continue to constitute a
Borrowing Subsidiary for all purposes hereof (other than the right to borrow
Loans or to have Letters of Credit issued for its account) until all its
obligations hereunder as a Borrower have been discharged and paid in full. The
Administrative Agent shall promptly give notice to the Lenders and the Issuing
Banks of its receipt of any Subsidiary Borrower Election or Subsidiary Borrower
Termination.
SECTION 2.22. LIMITATION OF REVOLVING EXPOSURE. (a) During the
period immediately following the effective date of the Potash Facility and prior
to the occurrence of a Termination Event (such period, the "LIMITATION PERIOD"),
the Lenders and the Issuing Bank shall not be required to make any Revolving
Loan or Swingline Loan to, or issue any Letter of Credit for the account of, any
Borrower if, upon making such Revolving Loan or Swingline Loan, or issuing such
Letter of Credit, the aggregate Revolving Exposure of the Lenders would exceed
$185,000,000 (the "EXPOSURE LIMIT"). Notwithstanding the restriction set forth
in the immediately preceding sentence, commitment fees payable by the Company
pursuant to Section 2.12 shall continue to accrue and be payable on the
Revolving Commitments.
(b) In the event that, at any time during the Limitation Period, the
Company reduces the Revolving Commitments in accordance with Section 2.08, the
Exposure Limit shall be reduced simultaneously by an amount equal to the amount
by which the Revolving Commitments have been so reduced.
83
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of the Company and its
Subsidiaries (other than any Excluded Subsidiaries) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Transactions to be
entered into by each Loan Party are within such Loan Party's corporate powers
and have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed and delivered by each
of the Borrowers and constitutes, and each other Loan Document to which any Loan
Party is to be a party, when executed and delivered by such Loan Party, will
constitute, a legal, valid and binding obligation of such Borrower or such Loan
Party (as the case may be), enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except (i) such as have been
obtained or made and are in full force and effect, (ii) filings necessary to
perfect Liens created under the Loan Documents and (iii) other consents,
approvals, registrations and filings the failure to obtain which could not
reasonably be expected (individually or in the aggregate) to have a Material
Adverse Effect, (b) will not violate in any material respect any applicable law
or regulation or the charter, by-laws or other organizational documents of the
Borrowers or any of their Subsidiaries or any order of
84
any Governmental Authority, (c) will not violate or result in a default under
any material indenture, agreement or other instrument binding upon the Company
or any of the Subsidiaries or their assets (except for the Existing Defaults),
or give rise to a right thereunder (other than in respect of the Existing
Defaults) to require any payment to be made by the Company or any of the
Subsidiaries, and (d) will not result in the creation or imposition of (or any
requirement to create or impose) any Lien on any asset of the Company or any of
the Subsidiaries, except Liens created under the Loan Documents.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE. (a)
The Company has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, stockholders equity and cash flows (i) as of and
for the fiscal year ended December 31, 2000, reported on by Ernst & Young LLP,
independent public accountants, and (ii) as of and for the fiscal quarter and
the portion of the fiscal year ended March 31, 2001, certified on behalf of the
Company by a Financial Officer. Such financial statements present fairly, in all
material respects, the financial position and results of operations and cash
flows of the Company and its consolidated Subsidiaries as of such dates and for
such periods in accordance with GAAP, subject to year-end audit adjustments and
the absence of footnotes in the case of the statements referred to in clause
(ii) above.
(b) Except as disclosed in the financial statements referred to above
or the notes thereto or the Information Memorandum and except for the Disclosed
Matters, none of the Company or its Subsidiaries has, as of the Effective Date,
any material contingent liabilities or material unrealized losses.
(c) Since December 31, 2000, there has been no material adverse
change in the business, assets, operations or financial condition of the Company
and the Subsidiaries, taken as a whole.
SECTION 3.05. PROPERTIES. (a) Each of the Company and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business (including its Mortgaged
Properties), except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
85
(b) Each of the Company and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Company and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
(c) Schedule 3.05 sets forth the address of each real property that
is owned or leased by any Loan Party as of the Effective Date at which
Collateral with an aggregate book value exceeding $5,000,000 is located.
(d) As of the Effective Date, neither the Company nor any of its
Subsidiaries has received notice of, or has knowledge of, any pending or
contemplated condemnation proceeding affecting any Mortgaged Property or any
sale or disposition thereof in lieu of condemnation. Neither any Mortgaged
Property nor any interest therein is subject to any right of first refusal,
option or other contractual right to purchase such Mortgaged Property or
interest therein.
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS. (a) There are
no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, (i) neither the Company nor any
of its Subsidiaries has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) there are no pending, or to the knowledge of
the Company, threatened claims, actions, suits, proceedings or investigations
arising under Environmental Laws ("ENVIRONMENTAL CLAIMS") against or affecting
the Company or any Subsidiary, and (iii) to the knowledge of the Company, there
are no facts, circumstances or conditions which could reasonably
86
be expected to form the basis for an Environmental Claim against the Company or
any Subsidiary.
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of the
Company and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except for the Existing Defaults and Disclosed Matters and except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect or where the necessity of
compliance therewith is being contested in good faith by appropriate proceedings
and the failure to comply therewith pending such contest could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION 3.08. INVESTMENT AND HOLDING COMPANY STATUS. Neither the
Company nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. TAXES. Each of the Company and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) any Taxes that are being contested in good faith by
appropriate proceedings and for which the Company or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of calculating the Company's financial statements) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed by more
than $80,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on
87
the assumptions used for purposes of calculating the Company's financial
statements) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $125,000,000 the fair market value
of the assets of all such underfunded Plans. The Company has no contingent
liability with respect to post-retirement benefits provided by the Company or
any of its Subsidiaries, other than (i) a liability for the continuation of
coverage described in Part 6 of Subtitle B of Title I of ERISA and (ii)
liabilities which will not, individually or in the aggregate, exceed
$350,000,000. Neither the Company nor any of its Subsidiaries could reasonably
be expected to incur a Withdrawal Liability in excess of $20,000,000.
SECTION 3.11. DISCLOSURE. Neither the Information Memorandum nor the
offering circular dated May 8, 2001, with respect to the offering of the New
Senior Notes nor any of the other reports, financial statements, certificates
and other written information furnished by or on behalf of any Loan Party to any
Agent or to the initial Lenders in connection with the negotiation of this
Agreement or any other Loan Document or delivered hereunder or thereunder (as
modified or supplemented by other information so furnished) on or prior to the
Effective Date, when taken as a whole, nor any of the reports, financial
statements, certificates and other information required to be furnished pursuant
to Article V hereof after the Effective Date, contains any material misstatement
of fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; PROVIDED that, with respect to projected financial information, the
Company represents only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time (it being understood that
the projected financial information is subject to significant uncertainties and
contingencies, many of which are beyond the Company's control, that the Company
gives no assurance such projections will be realized and that actual results may
differ from those in the projected financial information and such differences
may be material).
SECTION 3.12. SUBSIDIARIES. Schedule 3.12 sets forth the name of,
the jurisdiction of organization of, and the ownership interest of the Company
in, each Subsidiary of the Company and identifies each Subsidiary that is a
Subsidiary Loan Party, a Foreign Subsidiary, a Phosphate Subsidiary, a Domestic
Excluded Subsidiary, a Foreign Excluded Subsidiary, a Domestic Phosphate
88
Excluded Subsidiary or a Foreign Phosphate Excluded Subsidiary, in each case as
of the Effective Date.
SECTION 3.13. INSURANCE. Schedule 3.13 sets forth a description of
all insurance maintained by or on behalf of the Company and its Subsidiaries as
of the Effective Date. As of the Effective Date, all premiums in respect of such
insurance have been paid. The Company believes that the insurance maintained by
or on behalf of itself and its Subsidiaries is adequate.
SECTION 3.14. LABOR MATTERS. As of the Effective Date, there are no
strikes, lockouts or slowdowns against the Company or any Subsidiary pending or,
to the knowledge of the Company, threatened, except as could not reasonably be
expected to have a Material Adverse Effect. The hours worked by and payments
made to employees of the Company and the Subsidiaries have not been in violation
of the Fair Labor Standards Act or any other applicable Federal, state, local or
foreign law dealing with such matters, except as could not reasonably be
expected to have a Material Adverse Effect. All payments due from the Company or
any Subsidiary, or for which any claim may be made against the Company or any
Subsidiary, on account of wages and employee health and welfare insurance and
other benefits, have been paid or accrued as a liability on the books of the
Company or such Subsidiary, except as could not reasonably be expected to have a
Material Adverse Effect.
SECTION 3.15. SOLVENCY. Immediately following the making of each
Loan made on the Effective Date and after giving effect to the application of
the proceeds of such Loans (taking into account each Loan Party's rights and
obligations under the Indemnity, Subrogation and Contribution Agreement), (a)
the fair value of the assets of each Loan Party, at a fair valuation, will
exceed its debts and liabilities, subordinated, contingent or otherwise; (b) the
present fair saleable value of the property of each Loan Party will be greater
than the amount that will be required to pay the probable liability of its debts
and other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) each Loan Party will be able
to pay its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) each Loan Party will
not have unreasonably small capital with which to conduct the business in which
it is engaged as such business is now conducted and is proposed to be conducted
following the Effective Date.
89
SECTION 3.16. SECURITY DOCUMENTS. (a) The Pledge Agreement is
effective to create in favor of the Collateral Agent a legal, valid and
enforceable security interest in the Collateral (as defined in the Pledge
Agreement) and, when such Collateral is delivered to the Collateral Agent, the
Pledge Agreement shall constitute a fully perfected first priority Lien on, and
security interest in, all right, title and interest of each pledgor thereunder
in such Collateral, in each case prior and superior in right to any other
Person.
(b) The Security Agreement is effective to create in favor of the
Collateral Agent a legal, valid and enforceable security interest in the
Collateral (as defined in the Security Agreement) and, when financing statements
in appropriate form are filed in the offices specified on Schedule 6 to the
Perfection Certificate, the Security Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the grantors thereunder in such Collateral, to the extent that a security
interest can be perfected in such Collateral by filing, recording or registering
a financing statement or analogous document in the United States (or any
political subdivision thereof) and its territories and possessions pursuant to
the Uniform Commercial Code or other applicable law in such jurisdiction, in
each case prior and superior in right to any other Person, other than with
respect to Liens expressly permitted by Section 6.02.
(c) Each Mortgage, when duly executed and delivered by the relevant
Loan Party, will be effective to create, subject to the exceptions listed in
each title insurance policy covering such Mortgage, in favor of the Collateral
Agent, a legal, valid and enforceable Lien on all of the Loan Parties' right,
title and interest in and to the Mortgaged Properties thereunder and the
proceeds thereof, and when the Mortgages are filed in the offices specified on
Schedule 3.16(c), the Mortgages shall constitute a Lien on, and security
interest in, all right, title and interest of the Loan Parties in such Mortgaged
Properties and the proceeds thereof, in each case prior and superior in right to
any other Person, other than with respect to the rights of Persons pursuant to
Liens expressly permitted by Section 6.02.
SECTION 3.17. LIEN BASKET AMOUNT. As of the Effective Date, the Lien
Basket Amount (after giving effect to the repayment of all Indebtedness
outstanding under the Existing Credit Agreements and the release of
90
all Liens securing obligations thereunder) is not less than $426,000,000.
SECTION 3.18. EXCLUDED SUBSIDIARIES. (a) DOMESTIC EXCLUDED
SUBSIDIARIES. (i) The consolidated assets of the Domestic Excluded
Subsidiaries (determined on a consolidated basis in accordance with GAAP as
though all the Domestic Excluded Subsidiaries were a consolidated group but
excluding all Foreign Subsidiaries that are subsidiaries of Domestic Excluded
Subsidiaries) represent less than 15% of the consolidated assets of the Company
and its Domestic Subsidiaries (determined on a consolidated basis in accordance
with GAAP but excluding all Foreign Subsidiaries and Phosphate Subsidiaries).
(ii) The consolidated assets of each Domestic Excluded Subsidiary
(determined on a consolidated basis in accordance with GAAP with its Domestic
Subsidiaries but excluding all of its Subsidiaries that are Foreign
Subsidiaries) represent less than 5% of the consolidated assets of the Company
and its Domestic Subsidiaries (determined on a consolidated basis in accordance
with GAAP but excluding all Foreign Subsidiaries and Phosphate Subsidiaries).
(iii) The consolidated operating income of the Domestic Excluded
Subsidiaries for the period of four consecutive fiscal quarters most recently
ended (determined on a consolidated basis in accordance with GAAP as though all
the Domestic Excluded Subsidiaries were a consolidated group but excluding all
Foreign Subsidiaries that are subsidiaries of Domestic Excluded Subsidiaries)
represent less than 15% of the consolidated operating income of the Company and
its Domestic Subsidiaries for such period (determined on a consolidated basis in
accordance with GAAP but excluding all Foreign Subsidiaries and Phosphate
Subsidiaries).
(iv) The consolidated operating income of each Domestic Excluded
Subsidiary for the period of four consecutive fiscal quarters most recently
ended (determined on a consolidated basis in accordance with GAAP with its
Domestic Subsidiaries but excluding all of its Subsidiaries that are Foreign
Subsidiaries) represent less than 5% of the consolidated operating income of the
Company and its Domestic Subsidiaries for such period (determined on a
consolidated basis in accordance with GAAP but excluding all Foreign
Subsidiaries and Phosphate Subsidiaries).
91
(b) FOREIGN EXCLUDED SUBSIDIARIES. (i) The consolidated assets of
the Foreign Excluded Subsidiaries (determined on a consolidated basis in
accordance with GAAP as though all the Foreign Excluded Subsidiaries were a
consolidated group) represent less than 15% of the consolidated assets of all
the Foreign Subsidiaries (determined on a consolidated basis in accordance with
GAAP as though all the Foreign Subsidiaries were a consolidated group, but
excluding all Foreign Phosphate Subsidiaries).
(ii) The consolidated assets of each Foreign Excluded Subsidiary
(determined on a consolidated basis in accordance with GAAP with its
subsidiaries) represent less than 5% of the consolidated assets of all the
Foreign Subsidiaries (determined on a consolidated basis in accordance with GAAP
as though all Foreign Subsidiaries were a consolidated group, but excluding all
Foreign Phosphate Subsidiaries); PROVIDED that for purposes of this clause (ii)
"Foreign Excluded Subsidiary" shall not include the Australian Operating
Subsidiaries and all Foreign Subsidiaries that directly or indirectly own any
Equity Interests in any of the Australian Operating Subsidiaries, so long as
substantially all of the consolidated assets of the consolidated group
comprising such Foreign Subsidiaries is comprised of the consolidated assets of
the Australian Operating Subsidiaries.
(iii) The consolidated operating income of the Foreign Excluded
Subsidiaries for the period of four consecutive fiscal quarters most recently
ended (determined on a consolidated basis in accordance with GAAP as though all
the Foreign Excluded Subsidiaries were a consolidated group) represent less than
15% of the consolidated operating income of all the Foreign Subsidiaries for
such period (determined on a consolidated basis in accordance with GAAP as
though all Foreign Subsidiaries were a consolidated group, but excluding all
Foreign Phosphate Subsidiaries).
(iv) The consolidated operating income of each Foreign Excluded
Subsidiary (other than the Australian Operating Subsidiaries and all Foreign
Subsidiaries that directly or indirectly own any Equity Interests in any of the
Australian Operating Subsidiaries, so long as substantially all of the
consolidated operating income of the consolidated group comprising such Foreign
Subsidiaries is comprised of the consolidated operating income of the Australian
Operating Subsidiaries) for the period of four consecutive fiscal quarters most
recently
92
ended (determined on a consolidated basis in accordance with GAAP with its
subsidiaries) represent less than 5% of the consolidated operating income of all
the Foreign Subsidiaries for such period (determined on a consolidated basis in
accordance with GAAP as though all Foreign Subsidiaries were a consolidated
group, but excluding all Foreign Phosphate Subsidiaries).
(c) DOMESTIC PHOSPHATE EXCLUDED SUBSIDIARIES. (i) The consolidated
assets of the Domestic Phosphate Excluded Subsidiaries (determined on a
consolidated basis in accordance with GAAP as though all the Domestic Phosphate
Excluded Subsidiaries were a consolidated group but excluding all Foreign
Phosphate Subsidiaries that are subsidiaries of Domestic Phosphate Excluded
Subsidiaries) represent less than 15% of the consolidated assets of the Domestic
Phosphate Subsidiaries (determined on a consolidated basis in accordance with
GAAP as though all the Domestic Phosphate Subsidiaries were a consolidated group
but excluding all Foreign Phosphate Subsidiaries).
(ii) The consolidated assets of each Domestic Phosphate Excluded
Subsidiary (determined on a consolidated basis in accordance with GAAP with its
Domestic Phosphate Subsidiaries but excluding all of its Subsidiaries that are
Foreign Phosphate Subsidiaries) represent less than 5% of the consolidated
assets of the Domestic Phosphate Subsidiaries (determined on a consolidated
basis in accordance with GAAP as though all of the Domestic Phosphate
Subsidiaries were a consolidated group but excluding all Foreign Phosphate
Subsidiaries).
(iii) The consolidated operating income of the Domestic Phosphate
Excluded Subsidiaries for the period of four consecutive fiscal quarters most
recently ended (determined on a consolidated basis in accordance with GAAP as
though all the Domestic Phosphate Excluded Subsidiaries were a consolidated
group but excluding all Foreign Phosphate Subsidiaries that are subsidiaries of
Domestic Phosphate Excluded Subsidiaries) represent less than 15% of the
consolidated operating income of the Domestic Phosphate Subsidiaries for such
period (determined on a consolidated basis in accordance with GAAP as though all
the Domestic Phosphate Subsidiaries were a consolidated group but excluding all
Foreign Phosphate Subsidiaries).
(iv) The consolidated operating income of each Domestic Phosphate
Excluded Subsidiary for the period of four consecutive fiscal quarters most
recently ended
93
(determined on a consolidated basis in accordance with GAAP with its Domestic
Phosphate Subsidiaries but excluding all of its Subsidiaries that are Foreign
Phosphate Subsidiaries) represent less than 5% of the consolidated operating
income of the Domestic Phosphate Subsidiaries for such period (determined on a
consolidated basis in accordance with GAAP as though all Domestic Phosphate
Subsidiaries were a consolidated group but excluding all Foreign Phosphate
Subsidiaries).
(d) FOREIGN PHOSPHATE EXCLUDED SUBSIDIARIES. (i) The consolidated
assets of the Foreign Phosphate Excluded Subsidiaries (determined on a
consolidated basis in accordance with GAAP as though all the Foreign Phosphate
Excluded Subsidiaries were a consolidated group) represent less than 15% of the
consolidated assets of all the Foreign Phosphate Subsidiaries (determined on a
consolidated basis in accordance with GAAP as though all the Foreign Phosphate
Subsidiaries were a consolidated group).
(ii) The consolidated assets of each Foreign Phosphate Excluded
Subsidiary (determined on a consolidated basis in accordance with GAAP with its
Subsidiaries) represent less than 5% of the consolidated assets of all the
Foreign Phosphate Subsidiaries (determined on a consolidated basis in accordance
with GAAP as though all the Foreign Phosphate Subsidiaries were a consolidated
group).
(iii) The consolidated operating income of the Foreign Phosphate
Excluded Subsidiaries for the period of four consecutive fiscal quarters most
recently ended (determined on a consolidated basis in accordance with GAAP as
though all the Foreign Phosphate Excluded Subsidiaries were a consolidated
group) represent less than 15% of the consolidated operating income of all the
Foreign Phosphate Subsidiaries for such period (determined on a consolidated
basis in accordance with GAAP as though all the Foreign Phosphate Subsidiaries
were a consolidated group).
(iv) The consolidated operating income of each Foreign Phosphate
Excluded Subsidiary for the period of four consecutive fiscal quarters most
recently ended (determined on a consolidated basis in accordance with GAAP with
its Subsidiaries) represent less than 5% of the consolidated operating income of
all the Foreign Phosphate Subsidiaries for such period (determined on a
consolidated basis in accordance with GAAP as though all
94
the Foreign Phosphate Subsidiaries were a consolidated group).
SECTION3.19. CERTAIN PAYMENTS. Each Loan Party has paid all material
amounts due and owing by it in respect of obligations to carriers, warehousemen,
landlords or other third parties that, in each case, possess any inventory
constituting Collateral or have any inventory constituting Collateral located on
or in any property owned or operated by them, except (a) current accounts
payable that are not delinquent or aged beyond the period customary or required
for payment thereof or (b) obligations that are being contested in compliance
with Section 5.05.
ARTICLE IV
CONDITIONS
SECTION 4.01. EFFECTIVE DATE. [INTENTIONALLY DELETED.]
SECTION 4.02. EACH CREDIT EVENT. The obligation of each Lender to
make a Loan on the occasion of any Borrowing, and of any Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to receipt of the
request therefor in accordance herewith and to the satisfaction of the following
conditions:
(a) The representations and warranties of each Loan Party set forth
in the Loan Documents shall be true and correct in all material respects on
and as of the date of such Borrowing or the date of issuance, amendment,
renewal or extension of such Letter of Credit, as applicable (except any
such representation or warranty that expressly relates to or is made
expressly as of a specific earlier date, in which case such representation
or warranty shall be true and correct in all material respects with respect
to or as of such specific earlier date).
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Company
95
on the date thereof as to the matters specified in paragraphs (a) and (b) of
this Section.
SECTION 4.03. BORROWING SUBSIDIARIES. The obligation of each Lender
to make a Loan on the occasion of the first Borrowing by a Borrowing Subsidiary
(other than a Subsidiary that is a Borrowing Subsidiary as of the Effective
Date) or of any Issuing Bank to issue the first Letter of Credit for the account
of such Borrowing Subsidiary, whichever first occurs, is subject to receipt and
acknowledged by the Administrative Agent of a Subsidiary Borrower Election with
respect to such Borrowing Subsidiary in accordance with Section 2.21 and to the
satisfaction of the following further conditions:
(a) The Agents shall have received one or more favorable written
opinions of counsel for such Borrowing Subsidiary reasonably acceptable to
the Agents, with respect to (i) the organization and existence of such
Borrowing Subsidiary, (ii) the due authorization, execution and delivery of
the relevant Subsidiary Borrower Election, (iii) the legality, validity and
binding effect on such Borrowing Subsidiary of the relevant Subsidiary
Borrower Election and this Agreement and (iv) such other matters relating
to such Borrowing Subsidiary as any Agent shall reasonably request.
(b) The Agents shall have received such documents and certificates as
the Agents or their counsel may reasonably request relating to the
organization, existence and good standing of such Borrowing Subsidiary, its
authorization to be a Borrower and any other legal matters relating to such
Borrowing Subsidiary, all in form and substance reasonably satisfactory to
the Agents and their counsel.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or
96
terminated and all LC Disbursements shall have been reimbursed, the Company
covenants and agrees with the Lenders that:
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Company will furnish to each Agent (and promptly following receipt thereof, the
Administrative Agent will furnish to each Lender that is not an Agent):
(a) within 95 days after the end of each fiscal year of the Company,
its audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and for
such year, setting forth in each case in comparative form the figures for
the previous fiscal year, all reported on by Ernst & Young LLP or other
independent public accountants of recognized national standing (without a
"going concern" or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the Company
and its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP;
(b) within 50 days after the end of each of the first three fiscal
quarters of each fiscal year of the Company, its consolidated balance sheet
and related statements of operations, stockholders' equity and cash flows
as of the end of and for such fiscal quarter and the then elapsed portion
of the fiscal year, setting forth in each case in comparative form the
figures for the corresponding period or periods of (or, in the case of the
balance sheet, as of the end of) the previous fiscal year, all certified on
behalf of the Company by one of its Financial Officers as presenting fairly
in all material respects the financial condition and results of operations
of the Company and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, (i) a Collateral Coverage Certificate calculating
the Collateral Coverage Amount as of the end of the fiscal year or fiscal
quarter covered by such financial statements and (ii) a certificate on
97
behalf of the Company of a Financial Officer of the Company (A) certifying
as to whether a Default has occurred and, if a Default has occurred,
specifying the details thereof and any action taken or proposed to be taken
with respect thereto, (B) setting forth reasonably detailed calculations
(1) of the Leverage Ratio as of the end of the fiscal year or quarter
covered by such financial statements and (2) demonstrating compliance with
Sections 6.12, 6.13, 6.14, 6.15 and 6.16 and, in the case of any such
certificate required to be delivered with the financial statements
delivered under clause (a) above, Section 3.18, (C) attaching statements
that separately state, for each of the Company's business units, their
respective revenues and shares of Consolidated EBITDA for the period
covered by such financial statements in a format reasonably acceptable to
the Agents, (D) attaching a report setting forth (1) the aggregate purchase
commitments under commodity hedging agreements then in effect, stated
separately for each future 12-month period, and (2) the weighted average
contract price for each such 12-month period and (E) stating whether any
change in GAAP or in the application thereof has occurred since the date of
the Company's audited financial statements referred to in Section 3.04 and,
if any such change has occurred, specifying the effect of such change on
the financial statements accompanying such certificate;
(d) within 60 days after the commencement of each fiscal year of the
Company, a consolidated financial forecast for such fiscal year (including
a projected consolidated balance sheet and related statements of projected
operations and cash flow as of the end of and for such fiscal year,
together with information separately stating for each of the Company's
business units their respective forecasted revenues and shares of
Consolidated EBITDA for such fiscal year, and setting forth the key
assumptions used for purposes of preparing such forecasted information), in
a format reasonably acceptable to the Agents;
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Company or any Subsidiary with the Securities and Exchange Commission,
or any Governmental Authority succeeding to any or all of the functions of
said Commission, or with any national securities
98
exchange, or distributed by the Company to its shareholders generally, as
the case may be;
(f) within five Business Days following the occurrence of a
Recalculation Event, a Collateral Coverage Certificate calculating the
Collateral Coverage Amount after giving effect to such Recalculation Event;
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Company or any Subsidiary, or compliance with the terms of any Loan
Document, as any Agent or any Lender may reasonably request; and
(h) concurrently with any delivery of a Collateral Coverage
Certificate under clause (c) above, a certificate of a Financial Officer of
the Company certifying on behalf of the Company that the Second Priority
Grantor is, as of the date of any such delivery, in compliance with the
collateral coverage requirements set forth in the Potash Facility.
Any report, proxy statements or other material required to be delivered pursuant
to clause (e) of this Section shall be deemed to have been furnished to each of
the Agents and Lenders on the date that such report, proxy statement or other
material is posted on the Securities and Exchange Commission's website at
▇▇▇.▇▇▇.▇▇▇; PROVIDED that the Company will furnish paper copies of such
reports, proxy statements and materials to any Lender that requests, by notice
to the Company, that the Company do so, until the Company receives notice from
such Lender to cease delivering such paper copies.
SECTION 5.02. NOTICES OF MATERIAL EVENTS. The Company will furnish
to each Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting the
Company or any Affiliate thereof as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined,
could reasonably be expected to result in a Material Adverse Effect;
99
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Company and its Subsidiaries in an aggregate
amount exceeding $10,000,000; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement on
behalf of the Company of a Financial Officer or other executive officer of the
Company setting forth the details of the event or development requiring such
notice and any action taken or proposed to be taken with respect thereto.
SECTION 5.03. INFORMATION REGARDING COLLATERAL. (a) The Company
will furnish to the Administrative Agent prompt written notice of any change (i)
in any Loan Party's corporate name or in any trade name used to identify it in
the conduct of its business or in the ownership of its properties, (ii) in the
location of any Loan Party's chief executive office, its principal place of
business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by it
is located (including the establishment of any such new office or facility),
(iii) in any Loan Party's jurisdiction of organization, identity or corporate
structure or (iv) in any Loan Party's Federal Taxpayer Identification Number.
The Company agrees not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform
Commercial Code or otherwise that are required in order for the Collateral Agent
to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral. The Company also agrees
promptly to notify the Agents if any material portion of the Collateral is
damaged or destroyed.
(b) Each year, at the time of delivery of annual financial statements
with respect to the preceding fiscal year pursuant to clause (a) of Section
5.01, the Company shall deliver to the Agents a certificate on behalf of the
Company of a Financial Officer and the chief legal officer of the Company (i)
setting forth the information required pursuant to Sections 1 and 2 of the
Perfection Certificate or confirming that there has been no change in such
information since the date of the
100
Perfection Certificate delivered on the Effective Date or the date of the most
recent certificate delivered pursuant to this Section and (ii) certifying that
all Uniform Commercial Code financing statements (including fixture filings, as
applicable) or other appropriate filings, recordings or registrations, including
all refilings, rerecordings and reregistrations, containing a description of the
Collateral have been filed of record in each governmental, municipal or other
appropriate office in each jurisdiction identified pursuant to clause (i) above
to the extent necessary to protect and perfect the security interests under the
Security Agreement for a period of not less than 18 months after the date of
such certificate (except as noted therein with respect to any continuation
statements to be filed within such period and except with respect to Collateral
with respect to which perfection is not required by the terms of the Security
Agreement).
SECTION 5.04. EXISTENCE; CONDUCT OF BUSINESS. The Company will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its business;
PROVIDED that the foregoing shall not prohibit any conversion, merger,
consolidation, liquidation or dissolution permitted under Section 6.03 or any
sale, transfer, lease or other disposition permitted under Section 6.05.
SECTION 5.05. PAYMENT OF OBLIGATIONS. The Company will, and will
cause each of its Subsidiaries to, pay its material Indebtedness and other
material obligations, including Tax liabilities, before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Company or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP, (c) such contest effectively suspends
collection of the contested obligation and the enforcement of any Lien securing
such obligation and (d) the failure to make payment pending such contest could
not reasonably be expected to result in a Material Adverse Effect.
SECTION5.06. MAINTENANCE OF PROPERTIES. The Company will, and will
cause each of its Subsidiaries to, keep and maintain all its property in good
working order and condition, except to the extent that the failure to
101
do so, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
SECTION 5.07. INSURANCE. The Company will, and will cause each of \
its Subsidiaries to, maintain, with financially sound and reputable insurance
companies (a) insurance in such amounts (with no greater risk retention) and
against such risks as are customarily maintained by companies of established
repute engaged in the same or similar businesses operating in the same or
similar locations and (b) all insurance required to be maintained pursuant to
the Security Documents. The Company will furnish to the Lenders, upon request of
any Agent, information in reasonable detail as to the insurance so maintained.
SECTION 5.08. CASUALTY AND CONDEMNATION. The Company (a) will
furnish to the Agents and the Lenders prompt written notice of any casualty or
other insured damage to any material portion of any Collateral or the
commencement of any action or proceeding for the taking of any material portion
of the Collateral or any material interest therein under power of eminent domain
or by condemnation or similar proceeding and (b) will ensure that the Net
Proceeds of any such event (whether in the form of insurance proceeds,
condemnation awards or otherwise) are collected and applied in accordance with
the applicable provisions of the Loan Documents.
SECTION 5.09. BOOKS AND RECORDS; INSPECTION AND AUDIT RIGHTS. (a)
The Company will, and will cause each of its Subsidiaries to, keep proper books
of record and account in which full, true and correct entries in all material
respects are made of all dealings and transactions in relation to its business
and activities. The Company will, and will cause each of its Subsidiaries to,
permit any representatives designated by any Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times during regular business hours and as often as reasonably
requested; PROVIDED that representatives of the Company will have the
opportunity to be present at any meeting with its independent accountants.
(b) The Company will, and will cause each of its Subsidiaries to,
permit any representatives designated by the Agents (including any consultants,
accountants, lawyers and appraisers retained by the
102
Agents) to conduct evaluations and appraisals of the Company's computation of
the Collateral Value Amount and the assets included in the Collateral Value
Amount, all at such reasonable times during regular business hours and as often
as reasonably requested. The Company shall pay the reasonable fees and expenses
of the Agents and any representatives retained by the Agents to conduct any such
evaluation or appraisal; PROVIDED that the Company will not be required to pay
such fees and expenses in respect of more than one such evaluation or appraisal
during any calendar year unless an Event of Default has occurred and is
continuing.
SECTION5.10. COMPLIANCE WITH LAWS. The Company will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.11. USE OF PROCEEDS AND LETTERS OF CREDIT. The proceeds of
the B Term Loans and the initial Revolving Loans, together with the proceeds of
the New Senior Notes, will be used (a) to fund the Tender Escrow in the amount
of $200,000,000 and the Polk Escrow in an amount equal to the aggregate
principal amount of outstanding Polk County IRBs as of the Effective Date that
are not owned by a Loan Party, (b) to repay all amounts owed by the Company
under the Existing Credit Agreements and (c) to pay fees and expenses incurred
in connection with the Transactions. The proceeds of other Revolving Loans and
Swingline Loans will be used for general corporate purposes, including working
capital. No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations U and X. Letters of Credit will be issued
for general corporate purposes.
SECTION 5.12. ADDITIONAL SUBSIDIARIES. If any additional Subsidiary
is formed or acquired after the Effective Date (or if any Subsidiary that was an
Excluded Subsidiary ceases to be an Excluded Subsidiary), the Company will,
within three Business Days after such Subsidiary is formed or acquired (or after
such Subsidiary ceases to be an Excluded Subsidiary), notify the Agents and the
Lenders thereof and cause the Collateral and Guarantee Requirement to be
satisfied with respect to such Subsidiary (if it is a Subsidiary Loan Party) and
with respect to any Equity Interest in or
103
Indebtedness of such Subsidiary owned by or on behalf of any Loan Party.
SECTION 5.13. FURTHER ASSURANCES. The Company will, and will cause
each Subsidiary Loan Party to, execute any and all further documents, financing
statements, agreements and instruments, and take all such further actions
(including the filing and recording of financing statements, fixture filings,
mortgages, deeds of trust and other documents), which may be required under any
applicable law, or which any Agent or the Required Lenders may reasonably
request, to cause the Collateral and Guarantee Requirement to be and remain
satisfied, all at the expense of the Loan Parties. The Company also agrees to
provide to the Agents, from time to time upon request of any Agent, evidence
reasonably satisfactory to the Agents as to the perfection and priority of the
Liens created or intended to be created by the Security Documents.
SECTION 5.14. 6.625% NOTES TENDER OFFER. Within 45 days after the
Effective Date, the Company will commence the 6.625% Notes Tender Offer on terms
and conditions reasonably satisfactory to the Agents and will thereafter conduct
and pursue the 6.625% Notes Tender Offer in good faith and will purchase and
cancel all 6.625% Notes validly tendered and not withdrawn.
SECTION 5.15. REFINANCING OF POLK COUNTY IRBS; POLK ESCROW. The
Company will exercise good faith efforts to refinance or replace the Polk County
IRBs by the issuance of Indebtedness that complies with clause (iii) of Section
6.01(a) in an equivalent principal amount. If such refinancing is consummated,
all proceeds of such refinancing received in respect of any Polk County IRBs
beneficially owned by the Company or any of its Subsidiaries shall be deposited
in the Polk Escrow. If such refinancing is not consummated prior to January 31,
2002, or if the Polk County IRBs are accelerated and become due prior to January
31, 2002, then the Company shall redeem or repay the Polk County IRBs, and any
funds in the Polk Escrow will be available for such purpose. In addition, prior
to the refinancing, redemption or repayment of the Polk County IRBs, the Company
may purchase Polk County IRBs from holders thereof (other than Loan Parties) at
prices not exceeding the outstanding principal amount of the Polk County IRBs so
purchased plus accrued and unpaid interest thereon, and any funds in the Polk
Escrow will be available for such purpose (up to the outstanding principal
amount of the Polk County IRBs so purchased); PROVIDED that any
104
Polk County IRBs so purchased shall be pledged as required by clause (d) of the
Collateral and Guarantee Requirement. If funds in the Polk Escrow are applied to
redeem, repay or purchase all the Polk County IRBs, then the Company will
continue to exercise good faith efforts to replace the Polk County IRBs (by the
issuance of an equivalent amount of Indebtedness as provided in the first
sentence of this Section) for a period of six months thereafter.
SECTION 5.16. EXCLUDED SUBSIDIARIES. (a) The Company may from time
to time designate, by notice to the Agents, (i) any Domestic Subsidiary (or any
Person that is being formed or acquired and, upon formation or acquisition
thereof, would become a Domestic Subsidiary), other than a Phosphate Subsidiary,
to be a Domestic Excluded Subsidiary, (ii) any Foreign Subsidiary (or any Person
that is being formed or acquired and, upon formation or acquisition thereof,
would become a Foreign Subsidiary), other than a Phosphate Subsidiary, to be a
Foreign Excluded Subsidiary, (iii) any Domestic Phosphate Subsidiary (or any
Person that is being formed or acquired and, upon formation or acquisition
thereof, would become a Domestic Phosphate Subsidiary) to be a Domestic
Phosphate Excluded Subsidiary, or (iv) any Foreign Phosphate Subsidiary (or any
Person that is being formed or acquired and, upon formation or acquisition
thereof, would become a Foreign Phosphate Subsidiary) to be a Foreign Phosphate
Excluded Subsidiary; PROVIDED that (A) the Company may not designate as an
Excluded Subsidiary, (1) any Borrowing Subsidiary, (2) any Subsidiary that is a
Subsidiary Loan Party as of the Effective Date, (3) any Domestic Subsidiary
that, prior to such designation, was a Subsidiary Loan Party and shall have
become a party to any of the Guarantee Agreement or the Security Documents, (4)
any Domestic Subsidiary that has any subsidiaries unless all such subsidiaries
are designated as Domestic Excluded Subsidiaries or Foreign Excluded
Subsidiaries, as applicable, (5) any Domestic Phosphate Subsidiary that has any
subsidiaries unless all such subsidiaries are designated as Domestic Phosphate
Excluded Subsidiaries or Foreign Phosphate Excluded Subsidiaries, as applicable,
or (6) any Domestic Subsidiary that owns, directly or indirectly, any Equity
Interest in any Phosphate Subsidiary, (B) at the time of such designation and
after giving effect thereto (and after giving effect to the formation or
acquisition of any applicable Subsidiary that is being formed or acquired), the
representations set forth in Section 3.18 shall be true and correct and (C) the
Company shall certify in any such notice
105
designating an Excluded Subsidiary that the conditions set forth in clauses (A)
and (B) above are satisfied.
(b) The Company may from time to time designate, by notice to the
Agents, that any Excluded Subsidiary shall cease to be an Excluded Subsidiary;
PROVIDED that a Subsidiary of an Excluded Subsidiary may not be designated to
cease to be an Excluded Subsidiary. In the event of any such designation, the
Company will comply with Section 5.12.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, the Company covenants and agrees with the Lenders
that:
SECTION 6.01. INDEBTEDNESS; CERTAIN EQUITY SECURITIES. (a) The
Company will not, and will not permit any Subsidiary to, create, incur, assume
or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents (including
Incremental Term Loans and Incremental Revolving Loans incurred in
compliance with Section 2.20);
(ii) the New Senior Notes and Guarantees thereof by Subsidiary Loan
Parties;
(iii) Indebtedness existing on the date hereof and set forth in Schedule
6.01 and extensions, renewals, replacements and refinancings of any such
Indebtedness (including pursuant to refinancings with the proceeds of
Permitted Debt Securities) that do not increase the outstanding principal
amount (including, in the case of the Polk County IRBs, the principal
amount thereof owned by the Loan Parties) thereof or result in an earlier
maturity date (unless such earlier maturity date is after May 31, 2007) or
decreased weighted average life thereof (unless no principal payments are
required prior to May 31, 2007);
106
(iv) Indebtedness of the Company to any Subsidiary and of any
Subsidiary to the Company or any other Subsidiary; PROVIDED that
Indebtedness of any Subsidiary that is not a Loan Party owing to the
Company or any Subsidiary Loan Party and Indebtedness of or to any
Phosphates Subsidiary shall be subject to Section 6.04;
(v) Guarantees by the Company of Indebtedness of any Subsidiary and by
any Subsidiary of Indebtedness of the Company or any other Subsidiary;
PROVIDED that Guarantees by the Company or any Subsidiary Loan Party of
Indebtedness of any Subsidiary that is not a Subsidiary Loan Party and
Guarantees by any Phosphates Subsidiary shall be subject to Section 6.04;
(vi) Indebtedness of the Company or any Subsidiary incurred to finance
the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on
any such assets prior to the acquisition thereof, and extensions, renewals
and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity date
or decreased weighted average life thereof; PROVIDED that (A) such
Indebtedness is incurred prior to or within 90 days after such acquisition
or the completion of such construction or improvement and (B) the aggregate
principal amount of Indebtedness permitted by this clause (vi) and clause
(vii) below shall not exceed $40,000,000 at any time outstanding;
(vii) Indebtedness of any Person that becomes a Subsidiary after the
date hereof; PROVIDED that (A) such Indebtedness exists at the time such
Person becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary and (B) the aggregate
principal amount of Indebtedness permitted by this clause (vii) and clause
(vi) above shall be subject to the limitation set forth in clause (vi)
above;
(viii) Indebtedness of the Company in respect of Permitted Debt
Securities (other than Permitted Debt Securities that are permitted under
clause (iii) above); PROVIDED that the issuance thereof shall constitute a
Prepayment Event;
107
(ix) Indebtedness of the Company or any of its Subsidiaries arising
from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of
business; PROVIDED that such Indebtedness is repaid within two Business
Days after being incurred;
(x) unsecured Indebtedness of the Company or any of its Subsidiaries
as an account party in respect of letters of credit issued for the account
of the Company or such Subsidiary, as the case may be, that either
constitute trade letters of credit or are obtained in order to provide
security for workers' compensation claims, payment obligations in
connection with self-insurance or similar requirements in the ordinary
course of business; PROVIDED that (A) such Indebtedness is not Guaranteed
by any of the Company or its Subsidiaries and (B) any Indebtedness
resulting from a drawing under any such letter of credit is repaid within
two Business Days after such drawing;
(xi) obligations of the Company or any of its Subsidiaries in respect
of performance bonds and completion, guarantee, surety and similar bonds,
in each case obtained in the ordinary course of business to support
statutory and contractual obligations (other than Indebtedness) arising in
the ordinary course of business;
(xii) industrial revenue bonds or similar tax-exempt Indebtedness of the
Company or any of its Subsidiaries incurred to finance the construction or
improvement of operations of the Company and its Subsidiaries in an
aggregate principal amount not exceeding $50,000,000 at any time
outstanding;
(xiii) Indebtedness of Foreign Subsidiaries (other than Foreign Loan
Parties) in an aggregate principal amount not exceeding $20,000,000 at any
time outstanding;
(xiv) other Indebtedness in an aggregate principal amount not exceeding
$60,000,000 at any time outstanding; and
(xv) Indebtedness of the Second Priority Grantor created under the
Potash Facility.
108
(b) The Company will not, nor will it permit any Subsidiary to, issue
any preferred stock or other preferred Equity Interests, except that the Company
may issue preferred stock that does not constitute a Disqualified Equity
Interest. Notwithstanding the foregoing, any Subsidiary shall be permitted to
issue any preferred stock or other preferred Equity Interest directly to the
Company or any Subsidiary Loan Party, PROVIDED that any such preferred stock or
other preferred Equity Interest may not be sold, transferred or otherwise
disposed of by the Company or such Subsidiary Loan Party to any Person (other
than the Company or a Subsidiary Loan Party) unless (i) after such sale,
transfer or other disposition, such Subsidiary shall no longer be a Subsidiary
or (ii) the Company has received the consent of the Required Lenders prior to
any such transfer.
SECTION 6.02. LIENS. (a) The Company will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(i) Liens created under the Loan Documents (including to secure any
Indebtedness incurred to refinance the Polk County IRBs, to the extent such
Indebtedness is required by its terms to be so secured, but in any event on
terms no more favorable than those upon which the Polk County IRBs are
secured on the Effective Date);
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the Company or any Subsidiary
existing on the date hereof and set forth in Schedule 6.02; PROVIDED that
(A) such Lien shall not apply to any other property or asset of the Company
or any Subsidiary and (B) such Lien shall secure only those obligations
which it secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof;
(iv) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; PROVIDED that
(A) such Lien is not created in contemplation of or in connection with
109
such acquisition or such Person becoming a Subsidiary , as the case may be,
(B) such Lien shall not apply to any other property or assets of the
Company or any Subsidiary and (C) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date
such Person becomes a Subsidiary, as the case may be, and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof;
(v) Liens on fixed or capital assets acquired, constructed or improved
by the Company or any Subsidiary (other than fixed or capital assets that
are part of a Mortgaged Property); PROVIDED that (A) such Liens secure
Indebtedness permitted by clause (vi) of Section 6.01(a), (B) such Liens
and the Indebtedness secured thereby are incurred prior to or within 90
days after such acquisition or the completion of such construction or
improvement, (C) the Indebtedness secured thereby does not exceed the cost
of acquiring, constructing or improving such fixed or capital assets and
(D) such security interests shall not apply to any other property or assets
of the Company or any Subsidiary;
(vi) operating leases or subleases (other than with respect to
Collateral) entered into in the ordinary course of business by the Company
or any Subsidiary, as lessor thereunder, that do not interfere in any
material respect with the business of the Company and the Subsidiaries;
(vii) customary restrictions on transfers of assets contained in
agreements related to the sale by the Company or the Subsidiaries of such
assets pending their sale, PROVIDED that such restrictions apply only to
the assets to be sold and such sale is permitted hereunder;
(viii) Liens (other than with respect to Collateral) in favor of
Governmental Authorities to secure progress or advance payments;
(ix) Liens securing industrial revenue or pollution control bonds
constituting Indebtedness permitted by clause (xii) of Section 6.01(a);
PROVIDED that such Liens shall not apply to any assets other than those
financed with the proceeds of such Indebtedness;
110
(x) Liens on property of Foreign Subsidiaries (other than Foreign Loan
Parties) securing Indebtedness of Foreign Subsidiaries permitted by clause
(xiii) of Section 6.01(a);
(xi) Liens on property (other than Collateral) securing Indebtedness
permitted by clause (xiv) of Section 6.01(a);
(xii) Liens on any promissory notes or Equity Interests received as
consideration for the Salt Disposition and held in escrow pursuant to the
terms of the Salt Disposition; and
(xiii) a first-priority Lien on the Second Priority Collateral
securing Indebtedness in respect of the Potash Facility.
(b) The Company will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien or any Debt (as defined in the
1997 Indenture and the 1998 Indenture or in the New Senior Notes Indentures, as
applicable) secured by a Lien (other than Indebtedness permitted by clause (xiv)
of Section 6.01(a)), or permit any Sale and Lease-Back Transaction (as defined
in the 1997 Indenture and the 1998 Indenture or in the New Senior Notes
Indentures, as applicable) to be consummated, in each case if the effect thereof
would be to reduce the Lien Basket Amount.
SECTION 6.03. FUNDAMENTAL CHANGES. (a) The Company will not, nor
will it permit any Subsidiary to, convert or merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be continuing (i)
any Person may merge into the Company in a transaction in which the Company is
the surviving corporation, (ii) any Person (other than a Phosphate Subsidiary)
may convert or merge into any Subsidiary (other than a Phosphate Subsidiary) in
a transaction in which the surviving entity is a Subsidiary and (if any party to
such conversion or merger is a Subsidiary Loan Party) is a Subsidiary Loan
Party, (iii) PLP may merge with a Domestic Subsidiary in a transaction in which
the surviving entity is a Subsidiary Loan Party that is wholly-owned, directly
or indirectly, by the Company and the only consideration therefor consists of
shares of capital stock of the Company, (iv) any Subsidiary (other than a
Borrowing Subsidiary) may liquidate or dissolve if
111
the Company determines in good faith that such liquidation or dissolution is in
the best interests of the Company and is not materially disadvantageous to the
Lenders and (v) any Subsidiary may convert, consolidate or merge with or into
any other Person or Persons if (A) after the consummation of such transaction,
such Subsidiary is no longer a Subsidiary and (B) such transaction is permitted
by Section 6.05 (it being understood that any such transaction shall be deemed
to be a sale of such Subsidiary for the purposes of Section 6.05); PROVIDED that
any such merger involving a Person that is not a wholly owned Subsidiary
immediately prior to such merger shall not be permitted unless also permitted by
Section 6.04.
(b) The Company will not, and will not permit any of its Subsidiaries
to, engage to any material extent in any business other than businesses of the
type conducted by the Company and its Subsidiaries on the date of execution of
this Agreement and businesses reasonably similar, ancillary or related thereto.
SECTION 6.04. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND
ACQUISITIONS. The Company will not, and will not permit any of its Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly owned Subsidiary prior to such merger) any Equity
Interests in or evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person, or
make any Acquisition, except:
(a) Permitted Investments;
(b) investments existing on the date hereof and set forth on Schedule
6.04;
(c) investments by the Company and its Subsidiaries in Equity
Interests in any Subsidiary and investments by any Subsidiary Loan Party in
preferred stock or other preferred Equity Interests of the Company; PROVIDED
that (i) any such Equity Interests held by a Loan Party (other than Equity
Interests of an Excluded Subsidiary) shall be pledged pursuant to the Pledge
Agreement (subject to the limitations applicable to voting Equity Interests of a
Foreign Subsidiary referred to in clause (b) of the definition of "Collateral
and
112
Guarantee Requirement"), (ii) the aggregate amount of investments by Loan Partes
in, and loans and advances by Loan Parties to, Subsidiaries that are not Loan
Parties (excluding (A) all such investments, loans and advances existing on the
Effective Date, and extensions, refinancings, restatements or modifications
thereof that do not increase the aggregate amount thereof, (B) loans and
advances made in cash that are evidenced by promissory notes pledged pursuant to
the Pledge Agreement and (C) cash investments in Equity Interests in
Subsidiaries that are not Loan Parties made promptly following receipt of, and
in an aggregate amount not exceeding the amount of, a cash distribution received
by a Loan Party in respect of any Equity Interests in a Subsidiary that is not a
Loan Party) shall not exceed $10,000,000 at any time outstanding (it being
understood that compliance with the limitation set forth in this clause shall be
determined based on the amount of cash or fair market value of other assets
invested as of the date of investment, without giving effect to any fluctuations
in the value of such investment not attributable to dividends, distributions,
repayments or redemptions) and (iii) all investments that are made on or after
the Effective Date in any Phosphates Subsidiary by the Company or any Subsidiary
that is not a Phosphates Subsidiary must be made as loans;
(d) loans or advances made by the Company to any Subsidiary and made
by any Subsidiary to the Company or any other Subsidiary; PROVIDED that (i) any
such loans and advances made by a Loan Party shall be evidenced by a promissory
note pledged pursuant to the Pledge Agreement and (ii) the amount of such loans
and advances made in cash by Loan Parties to Subsidiaries that are not Loan
Parties shall be subject to the limitation set forth in clause (c) above;
(e) Guarantees constituting Indebtedness permitted by Section 6.01;
PROVIDED that (i) a Subsidiary that is not a Loan Party shall not Guarantee any
Indebtedness or other obligations of any Loan Party, (ii) a Phosphate Subsidiary
shall not Guarantee any Indebtedness or other obligations other than obligations
of another Phosphate Subsidiary (subject to clause (i) above) and other than
pursuant to the Guarantee Agreement or (subject to clause (i) above) the New
Senior Notes
113
Indentures, (iii) a Subsidiary Loan Party shall not Guarantee any Indebtedness
or other obligations of a Subsidiary that is not a Loan Party (but the Company
may Guarantee any Indebtedness of any Subsidiary) and (iv) neither the Company
nor any Subsidiary (other than IMC USA Holdings Inc.) shall Guarantee any
Indebtedness or other obligations in respect of the Potash Facility;
(f) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers;
(g) Permitted Acquisitions; PROVIDED that (i) the consideration
therefor shall consist solely of shares of capital stock of the Company,
Monetary Acquisition Consideration or a combination thereof, (ii) the aggregate
Monetary Acquisition Consideration in respect of all such Permitted Acquisitions
consummated on or after February 21, 2003 (other than (A) Monetary Acquisition
Consideration in respect of the exercise of any right of rescission under the
White River Agreement and (B) Monetary Acquisition Consideration that does not
constitute Limited Expenditures as determined in accordance with the definition
of the term "Limited Expenditures") shall not exceed $10,000,000, and (iii)
after giving effect thereto, the Monetary Acquisition Consideration (other than
Monetary Acquisition Consideration in respect of the exercise of any right of
rescission under the White River Agreement) shall be permitted by Section 6.12;
(h) investments in joint ventures not exceeding $25,000,000 in the
aggregate for all such investments made on or after the Effective Date; PROVIDED
that (i) such joint ventures shall not have any Indebtedness for borrowed money
(including Guarantees in respect thereof) at any time on or after the date that
an investment is made therein (other than Indebtedness owing to the equity
holders of such joint ventures), (ii) the documentation governing any such joint
venture does not contain a restriction on distributions to the Company or any
Subsidiary and (iii) each such joint venture is engaged only in a business in
which the Company and its Subsidiaries would be permitted to engage as provided
in Section 6.03(b);
114
(i) investments received as non-cash consideration in respect of
sales, transfers or dispositions permitted by Section 6.05;
(j) accounts receivable arising in the ordinary course of business of
the Company and the Subsidiaries;
(k) Hedging Agreements permitted under Section 6.07;
(l) loans and advances to officers and employees of the Company or
its Subsidiaries in accordance with prior practices;
(m) Permitted PLP Purchases;
(n) Guarantees by the Company of Hedging Agreements and other
obligations incurred by any Subsidiary in the ordinary course of business;
(o) Guarantees by any Foreign Subsidiary that is not a Loan Party of
any obligations of any of its Subsidiaries;
(p) an acquisition of the facilities that are the subject of the
Argus Lease in connection with any termination of the Argus Lease or any other
direct or indirect acquisition of an undivided interest in the Argus Lease or in
the facilities that are the subject of the Argus Lease, in each case as
contemplated by clause (b)(iii) and clause (b)(iv) of the definition of the term
"Net Proceeds";
(q) any purchase, repurchase or acquisition of Indebtedness expressly
permitted by Section 6.08(b); PROVIDED that any Indebtedness so purchased,
repurchased or acquired is promptly retired and cancelled (except that Polk
County IRBs that are purchased as provided in clause (vii) of Section 6.08(b)
shall remain outstanding and shall be pledged as required by the Collateral and
Guarantee Requirement);
(r) other investments made after the Effective Date in an aggregate
amount not to exceed $20,000,000; and
115
(s) investments by the Company in the Transportation Joint Venture in
an aggregate amount not to exceed $10,000,000, subject to Section 6.12.
SECTION 6.05. ASSET SALES. The Company will not, and will not permit
any of its Subsidiaries to, sell, transfer, lease or otherwise dispose of any
asset, including any Equity Interest owned by it, nor will the Company permit
any of it Subsidiaries to issue any additional Equity Interest in such
Subsidiary, except:
(a) sales of inventory, raw materials, supplies and used or surplus
equipment, in each case in the ordinary course of business;
(b) sales, transfers and dispositions to the Company or a Subsidiary
(other than (i) to a Phosphates Subsidiary or (ii) with respect to any sale,
transfer or disposition of Inventory or Accounts Receivable (as such terms are
defined in the Security Agreement), to the Second Priority Grantor); PROVIDED
that any such sales, transfers or dispositions involving a Subsidiary that is
not a Loan Party shall be made in compliance with Section 6.09;
(c) sales, transfers and other dispositions of assets (other than (i)
any Polk County IRBs, (ii) any Equity Interests in a Subsidiary or (iii) any
Mortgaged Property, it being understood that the demolition, removal or
modification of improvements at a Mortgaged Property shall not be prohibited by
this clause) that are not permitted by any other clause of this Section;
PROVIDED that the aggregate fair market value of all assets sold, transferred or
otherwise disposed of in reliance upon this clause (c) shall not exceed
$35,000,000 during any fiscal year of the Company;
(d) the Salt Disposition and any Chemicals Disposition;
(e) Permitted Investments for cash consideration;
(f) the leasing, subleasing or licensing of real or personal property
(including intellectual property but excluding Collateral) in the ordinary
course of business;
116
(g) transfers and dispositions in the ordinary course of business of
inventory or raw materials (or a combination thereof) in exchange for
consideration that constitutes inventory or raw materials (or a combination
thereof);
(h) transfers and dispositions of interests in real property (other
than Mortgaged Property) in exchange for consideration that constitutes
interests in real property, permits, easements, utilities, services and other
accommodations from any Governmental Authority or other Person; PROVIDED that
the aggregate fair market value of all interests in real property transferred or
otherwise disposed of in reliance upon this clause (h) shall not exceed
$5,000,000 for any one transaction or series of related transactions;
(i) other transfers and dispositions of interests in real property
(other than Mortgaged Property); PROVIDED that the aggregate fair market value
of all real property transferred or otherwise disposed of in reliance upon this
clause (i) shall not exceed $5,000,000 during any fiscal year of the Company;
(j) sales, transfers and dispositions by the Company or any direct or
indirect wholly owned Subsidiary of the Company of Equity Interests in any
Subsidiary to (i) the Company, (ii) any Subsidiary Loan Party or (iii) the
issuer of such Equity Interests, so long as, after the consummation of such
sale, transfer or disposition, such issuer is a direct or indirect wholly owned
Subsidiary of the Company;
(k) transfers and dispositions of interests in Mortgaged Property;
PROVIDED that the aggregate fair market value of all Mortgaged Property
transferred or otherwise disposed of in reliance on this clause (k) shall not
exceed $1,000,000 during any fiscal year of the Company;
(l) sales and transfers of Inventory or Accounts Receivable (as such
terms are defined in the Security Agreement) to the Second Priority Grantor;
PROVIDED that any sale or transfer pursuant to this clause (l) shall be made at
a transfer price determined in accordance with the past practices of the Company
in respect of such sales and transfers;
117
(m) the sale, transfer and other disposition of the Waste Landfill;
and
(n) the transfer of ▇▇▇▇▇▇ County Property to ▇▇▇▇▇▇ County, Florida,
in satisfaction of ▇▇▇▇▇▇ County Obligations;
PROVIDED that all sales, transfers, leases and other dispositions permitted
hereby (other than those permitted by clause (b), (l) and (m) above) shall be
made for fair value and (other than those permitted by clauses (b), (g), (h),
(i), (j), (k), (l), (m) and (n) above and other than any sale of the ▇▇▇▇▇▇▇
Facility) not less than 85% of the consideration therefor (excluding, for this
purpose, any such consideration in the form of the assumption by the purchaser
of the outstanding principal amount of any Indebtedness of the Company or any
Subsidiary related to the assets that are so sold, transferred or otherwise
disposed of) shall consist of cash consideration to be received in accordance
with normal trade terms.
SECTION 6.06. SALE AND LEASEBACK TRANSACTIONS. The Company will not,
and will not permit any of its Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereinafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred, except for any such sale of any fixed or capital assets
that is made for cash consideration in an amount not less than the cost of such
fixed or capital asset and is consummated within 90 days after the Company or
such Subsidiary acquires or completes the construction of such fixed or capital
asset.
SECTION 6.07. HEDGING AGREEMENTS. The Company will not, and will not
permit any of its Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Company or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities.
SECTION 6.08. RESTRICTED PAYMENTS; CERTAIN PAYMENTS OF INDEBTEDNESS;
SYNTHETIC PURCHASE AGREEMENTS. (a) The Company will not, nor will it permit
any Subsidiary to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, or incur
118
any obligation (contingent or otherwise) to do so, except (i) the Company may
declare and pay dividends with respect to its capital stock payable solely in
additional shares of its common stock, (ii) Subsidiaries may declare and pay
dividends ratably with respect to their capital stock, (iii) the Company may
make Restricted Payments, not exceeding $5,000,000 during any fiscal year,
pursuant to and in accordance with stock option plans or other benefit plans for
management or employees of the Company and its Subsidiaries, (iv) PLP may make
distributions of distributable cash as required under the PLP Partnership
Agreement, (v) repurchases of capital stock of the Company deemed to occur upon
the exercise of stock options if such capital stock represents a portion of the
exercise price thereof and repurchase of capital stock deemed to occur upon the
withholding of a portion of the capital stock issued, granted or awarded to an
employee or director to pay for the taxes payable by such employee or director
upon such issuance, grant or award, (vi) Permitted PLP Purchases, (vii) if (A)
at the time declared no Event of Default has occurred and is continuing and (B)
immediately after giving effect to any payment thereof there shall be an
aggregate of at least $50,000,000 of unutilized Revolving Commitments and
Permitted Investments, the Company may declare and pay dividends with respect to
its common stock in an amount that will not result in the cumulative amount of
all such dividends permitted by this clause (vii) paid after the Effective Date
(after giving effect to dividends declared and not yet paid) exceeding the sum
of $20,000,000 plus 25% of the sum of Consolidated Net Income for each fiscal
year (if any) ended on or after December 31, 2001, and prior to the date of
declaration of such dividend for which financial statements are available,
(viii) if at the time declared no Event of Default has occurred and is
continuing, the Company may declare and pay dividends with respect to its
preferred stock and other preferred Equity Interests issued in accordance with
Section 6.01(b) in an amount that will not result in the cumulative amount of
all such dividends permitted by this clause (viii) paid during any fiscal year
of the Company exceeding $20,000,000, and (ix) any Subsidiary may purchase or
redeem any portion of its Equity Interests, PROVIDED that, following any such
purchase or redemption, such Subsidiary is a direct or indirect wholly owned
Subsidiary of the Company.
(b) The Company will not, nor will it permit any Subsidiary to, make
or agree to pay or make, directly or indirectly, any voluntary or optional
payment or other distribution (whether in cash, securities or other
119
property) of or in respect of principal of or interest on any Indebtedness, or
any voluntary or optional payment or other distribution (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Indebtedness, except:
(i) payment of Indebtedness created under this Agreement;
(ii) refinancings of Indebtedness to the extent permitted by Section
6.01;
(iii) payment of secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness;
(iv) payments made to purchase 6.625% Notes pursuant to the 6.625%
Notes Tender Offer;
(v) after the Salt Disposition is consummated, payments made to
prepay, repurchase or redeem the 7.4% Notes or other Indebtedness of the
Company referred to in the definition of the term "Salt Disposition
Escrow"; PROVIDED that payments shall be permitted under this clause (v)
only to the extent of the funds available therefor on deposit in the Salt
Disposition Escrow;
(vi) if the Polk County IRBs are refinanced prior to being repaid,
payments made to prepay, repurchase or redeem other Indebtedness of the
Company referred to in the definition of the term "Polk Escrow"; PROVIDED
that payments shall be permitted under this clause (vi) only to the extent
of funds available therefor on deposit in the Polk Escrow;
(vii) payments made to purchase Polk County IRBs prior to the
refinancing, redemption or repayment thereof, as contemplated by and in
accordance with Section 5.15;
(viii) payments made to terminate the Argus Lease or to directly or
indirectly acquire an undivided interest in the Argus Lease or in the
facilities that are the subject of the Argus Lease in the manner
contemplated in the definition of the term
120
"Net Proceeds" as well as any other payments made in respect of such
termination or any such acquisition;
(ix) prepayment of Indebtedness outstanding under the Existing Credit
Agreements on the Effective Date;
(x) payments of Indebtedness owing to a Loan Party;
(xi) after the Salt Disposition is consummated, payments made to
prepay, repurchase or redeem the Company's 6.50% Notes due 2003, 10.75%
Notes due 2003, 6.55% Notes due 2005 or 7.625% Notes due 2005 (or any
combination thereof) then outstanding; PROVIDED that payments shall be
permitted under this clause (xi) only to the extent of funds available
therefor on deposit in the Excess Salt Disposition Escrow;
(xii) in addition to payments permitted by clause (xi) of paragraph
(b) of this Section 6.08, any other payments made to purchase or redeem the
6.50% Notes due 2003; and
(xiii) payments made to prepay, repurchase or redeem the 2005 Senior
Notes; PROVIDED that payments shall be permitted under this clause (xiii)
only to the extent (A) of any Net Proceeds from the issuance by the Company
of any common stock or preferred stock or other preferred Equity Interests
issued in accordance with Section 6.01(b) and (B) that, in respect of any
such payment made during fiscal year 2003, the Agents shall have received a
certificate dated the date of such payment, and signed on behalf of the
Company by the President, a Vice President or a Financial Officer of the
Company representing that (1) immediately after giving effect to such
payment, there shall be an aggregate of at least $130,000,000 of unutilized
Revolving Commitments and Permitted Investments, (2) the Company reasonably
expects as of the date of such certificate that there shall be an aggregate
of at least $130,000,000 of unutilized Revolving Commitments and Permitted
Investments throughout the remainder of fiscal year 2003 and (3) the
Company reasonably expects as of the date of such certificate that
Consolidated EBITDA for the fiscal year ending December 31, 2003 shall be
at least $315,000,000 for the fiscal year ending December 31, 2003.
121
(c) The Company will not, nor will it permit any Subsidiary to, enter
into or be party to, or make any payment under, any Synthetic Purchase
Agreement, except (i) the Existing Synthetic Purchase Agreement and payments
thereunder and (ii) any Synthetic Purchase Agreement entered into by the Company
with respect to Indebtedness of the Company (other than Loans) and payments
thereunder provided that the optional prepayment or redemption of such
Indebtedness would be permitted under paragraph (b) of this Section at the time
such Synthetic Purchase Agreement is entered into (other than pursuant to a
refinancing). The Company shall promptly deliver to the Agents a copy of any
Synthetic Purchase Agreement to which it becomes party.
SECTION 6.09. TRANSACTIONS WITH AFFILIATES. The Company will not,
nor will it permit any Subsidiary to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) transactions that are at prices and on terms and
conditions not less favorable to the Company or such Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties, (b) transactions
between or among the Company and the Subsidiary Loan Parties not involving any
other Affiliate, (c) any Restricted Payment permitted by Section 6.08, (d)
payment of customary fees to members of the board of directors of the Company
and its Subsidiaries, (e) transactions between or among any Subsidiary and (i)
the Company or (ii) any other Subsidiary, in each case as permitted by
paragraphs (b), (c), (d), (n), (o) and (s) of Section 6.04, (f) transactions
necessary to terminate the Argus Lease or acquire and hold an undivided interest
in the Argus Lease or in the facilities that are the subject of the Argus Lease,
in each case as contemplated by clause (b)(iii) and clause (b)(iv) of the
definition of "Net Proceeds" and (g) any transactions permitted by clause (j) of
Section 6.05 and clause (viii) of Section 6.08(a).
SECTION 6.10. RESTRICTIVE AGREEMENTS. The Company will not, nor will
it permit any Subsidiary to, directly or indirectly, enter into, incur or permit
to exist any agreement or other arrangement that prohibits, restricts or imposes
any condition upon (a) the ability of the Company or any Subsidiary to create,
incur or permit to exist any Lien upon any of its property or assets, or (b) the
ability of any Subsidiary to pay dividends or other distributions with respect
to any of its Equity Interests or to make or repay loans or
122
advances to the Company or any other Subsidiary or to Guarantee Indebtedness of
the Company or any other Subsidiary; PROVIDED that (i) the foregoing shall not
apply to restrictions and conditions imposed by any laws, rules or regulations
of any Governmental Authority or by any Loan Document, (ii) the foregoing shall
not apply to restrictions and conditions existing on the date hereof identified
on Schedule 6.10 (but shall apply to any amendment or modification expanding the
scope of any such restriction or condition in any material respect), (iii) the
foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness, (v) clause (a)
of the foregoing shall not apply to customary provisions in licenses,
governmental permits, leases and other contracts restricting the assignment
thereof, (vi) clause (a) of the foregoing shall not apply to any restriction
under an agreement governing Indebtedness of a Foreign Subsidiary (other than
Foreign Loan Parties) incurred in compliance with Section 6.01 if such
restriction applies only to assets of such Foreign Subsidiary, (vii) clause (a)
of the foregoing shall not apply to customary provisions in joint venture
agreements relating solely to the respective joint venture or the Equity
Interests therein, (viii) the foregoing shall not apply to any such restrictions
or conditions imposed by the terms of any Indebtedness of the Company for
borrowed money that the Company incurs after the Effective Date in compliance
with this Agreement if such restrictions or conditions are no less favorable to
the Company and the Lenders than those contained in the New Senior Notes
Indentures, (ix) clause (a) of the foregoing shall not apply to any restrictions
imposed by the terms of any Indebtedness incurred to refinance the Polk County
IRBs if such restrictions, taken as a whole, are no less favorable to the
Company and the Lenders than those contained in the agreements in effect on the
Effective Date relating to the Polk County IRBs, (x) the foregoing shall not
apply to any such restrictions and conditions contained in any agreements
existing at the time of (and not created in contemplation of) the acquisition of
any Person or assets (including agreements governing Indebtedness permitted
pursuant to clause (vii) of Section 6.01(a)), provided that such restrictions
and
123
conditions apply only to the Person or assets so acquired and (xi) clause (a) of
the foregoing shall not apply to any such restrictions or conditions contained
in any agreement entered into by the Company or any of its Subsidiaries with
respect to the promissory notes or Equity Interests received as consideration
for the Salt Disposition and held in escrow pursuant to the terms of the Salt
Disposition.
SECTION 6.11. AMENDMENT OF MATERIAL DOCUMENTS. The Company will not,
nor will it permit any Subsidiary to, amend, modify or waive any of its rights
under (a) its certificate of incorporation, by-laws or other organizational
documents (including the PLP Partnership Agreement) in a manner that is
materially adverse to the interests of the Lenders or (b) the New Senior Notes
Indentures, the Potash Facility or any other indenture, agreement or other
instrument evidencing or governing any Indebtedness identified on Schedule 6.01
in a manner that (taking all such amendments, modifications and waivers as a
whole) is adverse to the interests of the Lenders; PROVIDED that,
notwithstanding the foregoing, any amendment or modification to the Argus Lease
or any related agreements shall be permitted in connection with the negotiations
regarding the potential termination of the Argus Lease or direct or indirect
acquisition of an undivided interest in the Argus Lease or in the facilities
that are the subject of the Argus Lease contemplated by the definition of "Argus
Lease Escrow".
SECTION 6.12. LIMITED EXPENDITURES. The Company will not permit the
aggregate amount of Limited Expenditures made, paid or incurred by the Company
and its Subsidiaries in any fiscal year set forth below to exceed the amount set
forth below opposite such fiscal year; PROVIDED that, if the amount of permitted
Limited Expenditures set forth below with respect to any fiscal year (without
giving effect to any increase permitted by this proviso) exceeds the actual
amount of Limited Expenditures made, paid or incurred by the Company and its
Subsidiaries during such fiscal year, then the amount of permitted Limited
Expenditures for the next fiscal year shall be increased by an amount equal to
the lesser of (a) such excess and (b) 25% of the amount of Limited Expenditures
permitted hereby for the prior year (without giving effect to any increase
permitted by this proviso):
FISCAL YEAR ENDING AMOUNT
December 31, 2003 $160,000,000
124
December 31, 2004 and thereafter $250,000,000
SECTION 6.13. INTEREST EXPENSE COVERAGE RATIO. The Company will not
permit the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest
Expense, in each case for any period of four consecutive fiscal quarters ending
on any date during any period set forth below, to be less than the ratio set
forth below opposite such period:
PERIOD RATIO
October 1, 2002 through and including December 31, 2002 1.75 to 1.00
January 1, 2003 through and including March 31, 2003 1.60 to 1.00
April 1, 2003 through and including September 30, 2003 1.50 to 1.00
October 1, 2003 through and including December 31, 2003 1.60 to 1.00
January 1, 2004 through and including March 31, 2004 1.85 to 1.00
April 1, 2004 through and including September 30, 2004 2.00 to 1.00
October 1, 2004 and thereafter 2.50 to 1.00
SECTION 6.14. TOTAL LEVERAGE RATIO. The Company will not permit the
Leverage Ratio as of the last day of any fiscal quarter ending during any period
set forth below to exceed the ratio set forth opposite such period:
PERIOD RATIO
October 1, 2002 through and including December 31, 2002 6.85 to 1.00
January 1, 2003 through and including March 31, 2003 7.50 to 1.00
April 1, 2003 through and including September 30, 2003 7.75 to 1.00
October 1, 2003 through and including December 31, 2003 7.25 to 1.00
125
PERIOD RATIO
January 1, 2004 through and including March 31, 2004 6.25 to 1.00
April 1, 2004 through and including September 30, 2004 5.50 to 1.00
October 1, 2004 and thereafter 4.00 to 1.00
SECTION 6.15. SECURED LEVERAGE RATIO. The Company will not permit
the Secured Leverage Ratio as of the last day of any fiscal quarter to exceed
2.0 to 1.0.
SECTION 6.16. COLLATERAL COVERAGE RATIO. The Company will not permit
the Collateral Coverage Ratio as of any date to be less than 1.0 to 1.0.
SECTION 6.17. FISCAL PERIODS. The Company will cause its fiscal year
to end on December 31 of each year and its fiscal quarters to end on the last
day of each calendar quarter.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan of such
Borrower or any reimbursement obligation of such Borrower in respect of any
LC Disbursement when and as the same shall become due and payable, whether
at the due date thereof or at a date fixed for prepayment thereof or
otherwise;
(b) any Borrower shall fail to pay any interest on any Loan of such
Borrower or any fee or any other amount (other than an amount referred to
in clause (a) of this Article) payable by such Borrower under this
Agreement or any other Loan Document, when and as the same shall become due
and payable, and such failure shall continue unremedied for a period of
five Business Days;
(c) any representation or warranty made or deemed made by or on
behalf of the Company or any Subsidiary in or in connection with any Loan
Document or any amendment or modification thereof or
126
waiver thereunder, or in any report, certificate, financial statement or
other document furnished pursuant to or in connection with any Loan
Document or any amendment or modification thereof or waiver thereunder,
shall prove to have been incorrect in any material respect when made or
deemed made;
(d) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.04 (with respect to the
existence of any Borrower) or 5.11 or in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from
the Administrative Agent to the Company (which notice will be given at the
request of any Lender);
(f) the Company or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of
any Material Indebtedness, when and as the same shall become due and
payable, subject to any applicable grace period;
(g) any event or condition occurs that (i) results in any Material
Indebtedness becoming due prior to its scheduled maturity or (ii) enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; PROVIDED that (A) this clause (g)
shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness, (B) sub-clause (ii) of this clause (g) shall not apply to the
Existing Defaults and (C) subclause (i) of this clause (g) shall not apply
to Indebtedness in respect of the Polk County IRBs prior to January 31,
2002, if such Indebtedness is fully repaid within 30 days after it becomes
due;
(h) subject to the last paragraph of this Article, an involuntary
proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other
127
relief in respect of the Company or any Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any
Subsidiary or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered;
(i) subject to the last paragraph of this Article, the Company or any
Subsidiary shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect, (ii) consent to the institution of, or fail
to contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Company or any Subsidiary or for a substantial
part of its assets, (iv) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) subject to the last paragraph of this Article, the Company or any
Subsidiary shall become unable, admit in writing its inability or fail
generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $20,000,000 (excluding amounts covered by insurance
from a credit worthy insurance carrier that is not an Affiliate of the
Company and has been advised of the claim and has not disclaimed coverage)
shall be rendered against the Company, any Subsidiary or any combination
thereof and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively stayed, or
any action shall be legally taken by a judgment creditor to attach or levy
upon any assets
128
of the Company or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse
Effect;
(m) any Lien purported to be created under any Security Document
shall cease to be, or shall be asserted by any Loan Party not to be, a
valid and perfected Lien on any material portion of the Collateral, with
the priority required by the applicable Security Document, except (i) as a
result of the sale or other disposition of the applicable Collateral in a
transaction permitted under the Loan Documents or (ii) as a result of the
Collateral Agent's failure to maintain possession of any stock
certificates, promissory notes or other instruments delivered to it under
the Pledge Agreement; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to any Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Company, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrowers accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by each Borrower; and in case of any
event with respect to the Company described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrowers accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other
129
notice of any kind, all of which are hereby waived by each Borrower.
Solely for purposes of determining whether an Event of Default has
occurred under clause (h), (i) or (j) of this Article, any reference in any such
clause to any Subsidiary shall be deemed not to include any Subsidiary affected
by any event or circumstance referred to in any such clause that (i) is not a
Subsidiary Loan Party, (ii) does not have consolidated assets (determined on a
consolidated basis in accordance with GAAP) representing more than 2% of the
consolidated assets of the Company (determined on a consolidated basis in
accordance with GAAP) and (iii) did not, for the most recent period of four
consecutive fiscal quarters of the Company, have consolidated revenues
(determined on a consolidated basis in accordance with GAAP) representing more
than 2% of the consolidated revenues of the Company (determined on a
consolidated basis in accordance with GAAP); PROVIDED that if it is necessary to
exclude more than one Subsidiary from clause (h), (i) or (j) of this Article in
order to avoid an Event of Default thereunder, all Subsidiaries affected by any
event or circumstance referred to in any of such clauses shall be treated as a
single consolidated Subsidiary for purposes of determining whether the
conditions specified in clauses (ii) and (iii) of this paragraph are satisfied.
ARTICLE VIII
THE AGENTS
Each of the Lenders and the Issuing Banks hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Company or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
130
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.02), and (c) except as
expressly set forth in the Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Company or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.02) or in the
absence of its own gross negligence or wilful misconduct. The Administrative
Agent shall not be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by the Company or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document, (iv) the
validity, enforceability, effectiveness or genuineness of any Loan Document or
any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other than
to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by
131
the proper Person. The Administrative Agent also may rely upon any statement
made to it orally or by telephone and believed by it to be made by the proper
Person, and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (who may be counsel for the
Company), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of each Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Banks and the Company.
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Company, to appoint a successor. If no successor 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 its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Banks, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Company to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Company and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall
132
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while it was acting as Administrative
Agent.
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 from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
The provisions of this Article applicable to the Administrative Agent
also shall be applicable to the Syndication Agent and the Collateral Agent,
MUTATIS MUTANDIS. Each of the Lenders and Issuing Banks agrees to the terms and
conditions of the Collateral Sharing Agreement applicable to the Collateral
Agent.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to any Borrower, to it in the care of the Company at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of E. ▇▇▇▇
▇▇▇▇, Jr., Assistant Vice President and Treasurer (Telecopy No. (847)
739-1605);
(b) if to the Administrative Agent, to JPMorgan Chase Bank, Loan and
Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇),
with a copy to JPMorgan Chase Bank,
133
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(c) if to JPMorgan Chase Bank in its capacity as an Issuing Bank, to
Chase Manhattan Bank Delaware, Letter of Credit Department, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(d) if to the Swingline Lender, to JPMorgan Chase Bank at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(e) if to any other Lender or Issuing Bank, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. WAIVERS; AMENDMENTS. (a) No failure or delay by the
any Agent, any Issuing Bank or any Lender in exercising any right or power
hereunder or under any other Loan Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agents, the Issuing Banks and the
Lenders hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of any Loan Document or consent to any departure by any Borrower
or any other Loan Party therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this Section, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the making of
a Loan or issuance of a Letter of Credit shall not be construed as a waiver of
any Default, regardless of whether any Agent, any Lender or any Issuing Bank may
have had notice or knowledge of such Default at the time.
134
(b) Except as provided in Section 2.20 with respect to an Incremental
Facility Amendment and except as provided in Section 6.06(c) of the Collateral
Sharing Agreement, neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Borrowers and the Required Lenders or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing entered
into by the applicable Agent that is a party thereto and the Loan Party or Loan
Parties that are parties thereto, in each case with the consent of the Required
Lenders; PROVIDED that no such agreement shall (i) increase the Commitment of
any Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or
reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the maturity of any Loan, or any scheduled date
of payment of the principal amount of any B Term Loan under Section 2.10, or the
required date of reimbursement of any LC Disbursement, or any date for the
payment of any interest or fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration
of any Commitment, without the written consent of each Lender affected thereby,
(iv) change Section 2.18(b) or (c) in a manner that would alter the pro rata
sharing of payments required thereby, without the written consent of each
Lender, (v) change any of the provisions of this Section or the percentage set
forth in the definition of "Required Lenders" or any other provision of any Loan
Document specifying the number or percentage of Lenders (or Lenders of any
Class) required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender (or each Lender of such Class, as the case may be), (vi) release the
Company or any material Subsidiary Loan Party from its Guarantee under the
Guarantee Agreement, or limit its liability in respect of such Guarantee, or
release any Subsidiary Loan Party from its Guarantee under the Guarantee
Agreement if such Subsidiary Loan Party's Guarantee in respect of the New Senior
Notes is not concurrently released, in each case without the written consent of
each Lender, (vii) release all or substantially all of the Collateral from the
Liens of the Security Documents, without the written consent of each Lender,
(viii) change any provisions of any Loan Document in a manner that by its terms
adversely affects the rights in respect of payments due to Lenders holding
135
Loans of any Class differently than those holding Loans of any other Class,
without the written consent of Lenders holding a majority in interest of the
outstanding Loans and unused Commitments of each affected Class, (ix) change the
rights of the Term Loan Lenders to decline mandatory prepayments as provided in
Section 2.11(g) or the application of prepayments of B Term Loans as provided in
Section 2.10(c), without the written consent of Term Loan Lenders holding a
majority of the outstanding B Term Loan Loans or (x) change any of the
provisions of Section 2.11 (or any related definitions) in a manner that would
alter the events or circumstances in respect of which a mandatory prepayment is
required, or the amount or allocation of any such mandatory prepayment, without
the written consent of Lenders holding a majority in interest of the outstanding
Loans and unused Commitments of each Class; PROVIDED FURTHER that (A) no such
agreement shall amend, modify or otherwise affect the rights or duties of any
Agent, any Issuing Bank or the Swingline Lender without the prior written
consent of such Agent, such Issuing Bank or the Swingline Lender, as the case
may be, and (B) any waiver, amendment or modification of this Agreement that by
its terms affects the rights or duties under this Agreement of the Revolving
Lenders (but not the Incremental Revolving Lenders, the Term Loan Lenders and
the Incremental Term Lenders), the Incremental Revolving Lenders (but not the
Revolving Lenders, the Term Loan Lenders and the Incremental Term Lenders), the
Term Loan Lenders (but not the Revolving Lenders, the Incremental Revolving
Lenders and the Incremental Term Lenders) or the Incremental Term Lenders (but
not the Revolving Lenders, the Incremental Revolving Lenders and the Term Loan
Lenders) may be effected by an agreement or agreements in writing entered into
by the Borrowers and requisite percentage in interest of the affected Class of
Lenders that would be required to consent thereto under this Section if such
Class of Lenders were the only Class of Lenders hereunder at the time.
Notwithstanding the foregoing, any provision of this Agreement may be amended by
an agreement in writing entered into by the Borrowers, the Required Lenders and
the Administrative Agent (and, if their rights or obligations are affected
thereby, the Issuing Banks and the Swingline Lender) if (i) by the terms of such
agreement the Commitment of each Lender not consenting to the amendment provided
for therein shall terminate upon the effectiveness of such amendment and (ii) at
the time such amendment becomes effective, each Lender not consenting thereto
receives payment in full of the principal of and interest accrued on each Loan
made
136
by it and all other amounts owing to it or accrued for its account under this
Agreement.
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The Company
shall pay (i) all reasonable out-of-pocket expenses incurred by the Agents and
their respective Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Agents, in connection with their due diligence
investigation of the Company, the evaluation of the Collateral, the syndication
of the credit facilities provided for herein, the preparation execution,
delivery, enforcement and administration of the Loan Documents or any
amendments, modifications or waivers of the provisions thereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by any Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by any Agent, any Issuing Bank or any Lender, including the fees, charges and
disbursements of any counsel for any Agent, any Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights in connection with
the Loan Documents, including its rights under this Section, or in connection
with the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) The Company shall indemnify each Agent, each Issuing Bank and
each Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an "INDEMNITEE") against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including the fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of any Loan Document or
any other agreement or instrument contemplated hereby, the performance by the
parties to the Loan Documents of their respective obligations thereunder or the
consummation of the Transactions or any other transactions contemplated hereby,
(ii) any Loan or Letter of Credit or the use of the proceeds therefrom
(including any refusal by any Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit),
137
(iii) any actual or alleged presence or release of Hazardous Materials on or
from any Mortgaged Property or any other property currently or formerly owned or
operated by the Company or any of its Subsidiaries, or any Environmental
Liability related in any way to the Company or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; PROVIDED
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses resulted from
(i) the gross negligence, bad faith or wilful misconduct of such Indemnitee or
(ii) litigation between or among the Lenders or Agents.
(c) To the extent that the Company fails to pay any amount required
to be paid by it to any Agent, any Issuing Bank or the Swingline Lender under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to
such Agent, such Issuing Bank or the Swingline Lender, as the case may be, such
Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
PROVIDED that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against such Agent, such Issuing Bank or the Swingline Lender in its capacity as
such. For purposes hereof, a Lender's "pro rata share" shall be determined based
upon its share of the sum of the total Revolving Exposures, outstanding B Term
Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, none of the Borrowers
shall assert, and each Borrower hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or Letter of Credit or the use
of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor and, in the case of any expenses referred to in
paragraph (a), upon presentation of invoices or other reasonably detailed
statements specifying expenses.
138
SECTION 9.04. 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 permitted hereby (including any
Affiliate of any Issuing Bank that issues any Letter of Credit), except that no
Borrower may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by any Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of any Issuing
Bank that issues any Letter of Credit) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Agents, the Issuing Banks and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it); PROVIDED that (i)
except in the case of an assignment to a Lender or an Affiliate of a Lender,
each of the Company and the Administrative Agent (and, in the case of an
assignment of all or a portion of a Revolving Commitment or any Lender's
obligations in respect of its LC Exposure or Swingline Exposure, the Issuing
Banks and the Swingline Lender) must give their prior written consent to such
assignment (which consents shall not be unreasonably withheld), (ii) except in
the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender's Commitment
or Loans, the amount of the Commitment or Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 (or $1,000,000 in the case of a Term Commitment or B
Term Loan) unless each of the Company and the Administrative Agent otherwise
consent, (iii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement, except that this clause (iii) shall not be construed to prohibit
the assignment of a proportionate part of all the assigning Lender's rights and
obligations in respect of one Class of Commitments or Loans, (iv) the parties to
each assignment shall execute and deliver to the
139
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $2,000, and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and PROVIDED FURTHER that any consent of the Company otherwise
required under this paragraph shall not be required if an Event of Default has
occurred and is continuing. Subject to acceptance and recording thereof pursuant
to paragraph (d) of this Section, from and after the effective date specified in
each Assignment and Acceptance the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrowers, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "REGISTER"). The entries in
the Register shall be conclusive, and the Borrowers, the Agents, the Issuing
Banks and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Company, any Issuing Bank and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a
140
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of any Borrower, any Agent,
any Issuing Bank or the Swingline Lender, sell participations to one or more
banks or other entities (a "PARTICIPANT") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); PROVIDED that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrowers, the Agents, the Issuing Banks and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce the Loan
Documents and to approve any amendment, modification or waiver of any provision
of the Loan Documents; PROVIDED that such agreement or instrument may provide
that such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
9.02(b) that affects such Participant. Subject to paragraph (f) of this Section,
the Borrowers agree that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.18(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Company's prior written consent. A Participant that would be a Foreign Lender if
141
it were a Lender shall not be entitled to the benefits of Section 2.17 unless
the Company is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrowers, to comply with Section
2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; PROVIDED that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. SURVIVAL. All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that any Agent, any Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other
142
Loan Documents and any separate letter agreements with respect to fees payable
to any of the Agents or Issuing Banks constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective as provided in the Amendment and
Restatement Agreement.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of any
Borrower against any of and all the obligations of such Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to any
Loan Document, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby
143
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to
the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that any Agent, any Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
or any other Loan Document against any Borrower or its properties in the courts
of any jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
144
SECTION 9.11. HEADINGS. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. CONFIDENTIALITY. Each of the Agents, the Issuing Banks
and the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' partners, directors, officers, employees and agents, including
accountants, legal counsel, other advisors and any direct or indirect
contractual counterparty in swap agreements or such contractual counterparty's
professional advisor (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and agree to keep such Information confidential), (b) to the extent
requested by any regulatory authority, (c) to the extent required by applicable
laws or regulations or by any subpoena or similar legal process, (d) to any
other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or any other Loan Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement, (g) with the consent of any Loan Party or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to any Agent, any Issuing Bank or any
Lender on a nonconfidential basis from a source other than the Company. For the
purposes of this Section, "INFORMATION" means all information received from the
Company relating to the Company or its business, other than any such information
that is available to any Agent, any Issuing Bank or any Lender on a
nonconfidential basis prior to disclosure by the Company. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 9.13. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at
145
any time the interest rate applicable to any Loan, together with all fees,
charges and other amounts which are treated as interest on such Loan under
applicable law (collectively the "CHARGES"), shall exceed the maximum lawful
rate (the "MAXIMUM RATE") which may be contracted for, charged, taken, received
or reserved by the Lender holding such Loan in accordance with applicable law,
the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate
and, to the extent lawful, the interest and Charges that would have been payable
in respect of such Loan but were not payable as a result of the operation of
this Section shall be cumulated and the interest and Charges payable to such
Lender in respect of other Loans or periods shall be increased (but not above
the Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Effective Rate to the date of repayment, shall have
been received by such Lender.
SECTION 9.14. CURRENT CREDIT AGREEMENT; EFFECTIVENESS OF AMENDMENT
AND RESTATEMENT. Until this Agreement becomes effective in accordance with the
terms of the Amendment and Restatement Agreement, the Current Credit Agreement
shall remain in full force and effect and shall not be affected hereby. Upon and
after the Restatement Effective Date, the provisions of the Current Credit
Agreement shall be superseded by the provisions hereof; PROVIDED that this
Agreement shall not be construed to terminate and replace the Current Credit
Agreement, but is intended to and shall be construed to constitute the same
agreement as the Current Credit Agreement with terms modified as set forth
herein.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
IMC GLOBAL INC.,
by
------------------------------------
Name:
Title:
PHOSPHATE RESOURCE PARTNERS LIMITED
PARTNERSHIP,
By:
IMC Global Inc., its Administrative
Managing General Partner
by
------------------------------------
Name:
Title:
And by: FMRP Inc., its General Partner
by
------------------------------------
Name:
Title:
IMC PHOSPHATES COMPANY,
By: IMC Phosphates MP Inc., its Managing
Partner
by
------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, individually and as
Administrative Agent,
by
------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
individually and as Syndication Agent,
by
------------------------------------
Name:
Title:
(THE OTHER LENDERS, ISSUING BANKS AND
SWINGLINE LENDERS THAT ARE SIGNATORIES
TO THE AMENDMENT AND RESTATEMENT
AGREEMENT)
by
------------------------------------
Name:
Title: