Exhibit 10.1
CREDIT AGREEMENT
among
DELTA AND PINE LAND COMPANY,
as Borrower,
CERTAIN OF ITS SUBSIDIARIES,
as Guarantors,
AND
BANK OF AMERICA, N.A.,
as Lender
Dated as of April 15, 2005
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TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS AND ACCOUNTING
TERMS..................................................................1
--------------------------------
1.1
Definitions...................................................................................1
-----------
1.2
Computation of Time Periods and Other Definitional
Provisions................................17
-------------------------------------------------------------
1.3
Accounting
Terms.............................................................................18
----------------
1.4
Times of
Day.................................................................................18
------------
1.5
Letter of Credit
Amounts.....................................................................18
------------------------
SECTION 2 THE COMMITMENT AND CREDIT
EXTENSIONS.............................................................18
------------------------------------
2.1
Revolving
Loans..............................................................................18
---------------
2.2
Letters of
Credit............................................................................20
-----------------
2.3
Prepayments..................................................................................24
------------
2.4
Termination or Reduction of
Commitment.......................................................25
--------------------------------------
2.5
Repayment of
Loans...........................................................................25
------------------
2.6
Interest.....................................................................................25
--------
2.7
Unused
Fee...................................................................................26
----------
2.8
Computation of Interest and
Fees.............................................................26
--------------------------------
2.9
Evidence of
Debt.............................................................................26
----------------
2.10
Payments
Generally...........................................................................26
------------------
SECTION 3 TAXES, YIELD PROTECTION AND
ILLEGALITY...........................................................27
--------------------------------------
3.1
Taxes........................................................................................27
-----
3.2
Increased Cost and Reduced Return; Capital
Adequacy..........................................28
---------------------------------------------------
3.3
Inability To Determine Interest
Rate.........................................................28
------------------------------------
3.4
Illegality...................................................................................29
----------
3.5
Funding
Losses...............................................................................29
--------------
3.6
Matters
Applicable to all Requests for
Compensation..........................................30
---------------------------------------------------
3.7
Survival.....................................................................................30
--------
SECTION 4 GUARANTY
.......................................................................................30
--------
4.1
Guaranty of
Payment..........................................................................30
-------------------
4.2
Obligations
Unconditional....................................................................30
-------------------------
4.3
Modifications................................................................................31
-------------
4.4
Waiver of
Rights.............................................................................31
----------------
4.5
Reinstatement................................................................................32
-------------
4.6
Remedies.....................................................................................32
--------
4.7
Limitation of
Guaranty.......................................................................32
----------------------
4.8
Rights of
Contribution.......................................................................32
----------------------
SECTION 5 CONDITIONS
PRECEDENT.............................................................................33
--------------------
5.1
Closing
Conditions...........................................................................33
------------------
5.2
Conditions to All Revolving
Loans............................................................35
---------------------------------
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SECTION 6 REPRESENTATIONS AND
WARRANTIES...................................................................35
------------------------------
6.1
Financial
Condition..........................................................................35
-------------------
6.2
No Material Adverse
Change...................................................................36
--------------------------
6.3
Organization and Good
Standing...............................................................36
------------------------------
6.4
Due
Authorization............................................................................36
-----------------
6.5
No
Conflicts.................................................................................36
------------
6.6
Consents.....................................................................................37
--------
6.7
Enforceable
Obligations......................................................................37
-----------------------
6.8
No
Default...................................................................................37
----------
6.9
Ownership....................................................................................37
---------
6.10
Indebtedness.................................................................................37
------------
6.11
Litigation...................................................................................37
----------
6.12
Taxes........................................................................................38
-----
6.13
Compliance with
Law..........................................................................38
-------------------
6.14
ERISA........................................................................................38
-----
6.15
Subsidiaries.................................................................................39
------------
6.16 Use
of Proceeds; Margin
Stock................................................................39
-----------------------------
6.17
Government
Regulation........................................................................39
---------------------
6.18
Environmental
Matters........................................................................40
---------------------
6.19
Intellectual
Property........................................................................41
---------------------
6.20
Solvency.....................................................................................41
--------
6.21
Investments..................................................................................42
-----------
6.22
Disclosure...................................................................................42
----------
6.23
Licenses,
etc................................................................................42
--------------
SECTION 7 AFFIRMATIVE
COVENANTS............................................................................42
---------------------
7.1
Information
Covenants........................................................................42
---------------------
7.2
Asset Coverage
Ratio.........................................................................44
--------------------
7.3
Preservation of Existence and
Franchises.....................................................44
----------------------------------------
7.4
Books and
Records............................................................................44
-----------------
7.5
Compliance with
Law..........................................................................45
-------------------
7.6
Payment of Taxes and Other
Indebtedness......................................................45
---------------------------------------
7.7
Insurance....................................................................................45
---------
7.8
Maintenance of
Property......................................................................45
-----------------------
7.9
Performance of
Obligations...................................................................45
--------------------------
7.10 Use
of
Proceeds..............................................................................46
---------------
7.11
Audits/Inspections...........................................................................46
------------------
7.12
Additional Credit
Parties....................................................................46
-------------------------
SECTION 8 NEGATIVE
COVENANTS...............................................................................46
------------------
8.1
Indebtedness.................................................................................46
------------
8.2
Liens........................................................................................47
-----
8.3
Nature of
Business...........................................................................47
------------------
8.4
Consolidation and
Merger.....................................................................47
------------------------
8.5
Sale or Lease of
Assets......................................................................47
-----------------------
8.6
Sale
Leasebacks..............................................................................47
---------------
8.7
Advances, Investments and
Loans..............................................................48
-------------------------------
8.8
Restricted
Payments..........................................................................48
-------------------
8.9
Transactions with
Affiliates.................................................................48
----------------------------
8.10
Fiscal Year; Organizational
Documents........................................................48
-------------------------------------
8.11
Negative
Pledges.............................................................................48
----------------
8.12
Capital
Expenditures.........................................................................48
--------------------
8.13
Prepayment of Other
Indebtedness.............................................................49
--------------------------------
SECTION 9 EVENTS OF DEFAULT
...............................................................................49
-----------------
9.1
Events of
Default............................................................................49
-----------------
9.2
Acceleration;
Remedies.......................................................................52
----------------------
9.3
Allocation of Payments After Event of
Default................................................52
---------------------------------------------
SECTION 10
MISCELLANEOUS...................................................................................53
-------------
10.1
Notices......................................................................................53
-------
10.2
Right of
Set-Off.............................................................................53
----------------
10.3
Successors and
Assigns.......................................................................53
----------------------
10.4 No
Waiver; Remedies
Cumulative...............................................................54
------------------------------
10.5
Payment of Expenses;
Indemnification.........................................................54
------------------------------------
10.6
Amendments, Waivers and
Consents.............................................................55
--------------------------------
10.7
Counterparts.................................................................................55
------------
10.8
Headings.....................................................................................56
--------
10.9
Survival of Indemnification and Representations and
Warranties...............................56
--------------------------------------------------------------
10.10 Governing
Law;
Jurisdiction..................................................................56
---------------------------
10.11 Waiver of
Right to Trial by
Jury.............................................................57
--------------------------------
10.12
Time.........................................................................................57
----
10.13
Severability.................................................................................57
------------
10.14
Entirety.....................................................................................57
--------
10.15 Binding
Effect...............................................................................57
--------------
10.16
Confidentiality..............................................................................58
---------------
10.17 U.S.
Patriot Act
Notice......................................................................58
-----------------------
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SCHEDULES
Schedule 6.11 Litigation
Schedule 6.14 ERISA
Schedule 6.15 Subsidiaries
Schedule 8.2(l) Other Existing Liens
Schedule 10.1 Notices
EXHIBITS
Exhibit 2.1(b) Form of Loan
Notice
Exhibit 2.1(c) Form of Notice of
Continuation/Conversion
Exhibit 2.9
Form of Revolving
Note
Exhibit 5.1(d) Form of Legal
Opinion
Exhibit 7.1(c) Form of Officer's
Certificate
Exhibit 7.12 Form of
Joinder Agreement
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Credit Agreement"), is entered into as
of
April 15, 2005 among DELTA AND PINE LAND
COMPANY, a Delaware corporation (the
"Borrower"), certain Subsidiaries of the
Borrower listed (individually a
"Guarantor" and collectively the
"Guarantors"), and BANK OF AMERICA, N.A., as
Lender (the "Lender").
RECITALS
WHEREAS, the Borrower and the Guarantors have requested, and the
Lender
has agreed, to provide a $75,000,000
revolving credit facility on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good
and
valuable consideration, the receipt and
sufficiency of which is hereby
acknowledged, the parties hereto agree as
follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.1
Definitions.
As used herein, the following terms shall have the meanings
herein
specified unless the context otherwise
requires. Defined terms herein shall
include in the singular number the plural
and in the plural the singular:
"Accounts Receivable" means all of the Borrower and its
Domestic Subsidiaries' now owned or hereafter acquired or
arising
accounts receivable for the rendering of services and the sale of
goods
in the ordinary course of business, including any "account" as
defined
in the UCC, but subtracting the Monsanto Payable.
"Acquisition" means the acquisition by any Person of all or
substantially all of the Capital Stock or all or substantially all
of
the assets of another Person, whether or not involving a merger
or
consolidation with such Person.
"Additional Credit Party" means each Person that becomes a
Guarantor after the Closing Date, as provided in Section 7.12.
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus
0.55%.
"Adjusted Net Income" means Net Income plus, for fiscal year
2004 only, special non-cash charges taken in such fiscal year
related
to write-off of in-process research and development, facility
closings,
workforce reductions, unusual or non-recurring write-downs of
property
and similar items. The parties stipulate that Adjusted Net Income
for
the 2004 fiscal year was $27.5 million.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling (including but not
limited to
all directors and officers of such Person), controlled by or
under
direct or indirect common control with such Person. A Person shall
be
deemed to control a corporation if such Person possesses, directly
or
indirectly, the power (i) to vote 20% or more of the securities
having
ordinary voting power for the election of directors of such
corporation
or (ii) to direct or cause direction of the management and policies
of
such corporation, whether through the ownership of voting
securities,
by contract or otherwise.
"Asset Coverage Ratio" means, as of any date of determination,
the ratio of (i) the sum of (a) Accounts Receivable plus (b)
unrestricted cash plus (c) Cash Equivalents plus (d) Inventory plus
(e)
Net PP&E to (ii) Funded Debt outstanding under this Credit
Agreement as
of such date.
"Bank of America" means Bank of America, N.A. (or any
successor thereto).
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced
from
time to time.
"Base Commitment" means $25,000,000, as such amount may be
reduced in accordance with Section 2.4.
"Base Rate" means for any day a fluctuating rate per annum
equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1%
and
(b) the rate of
interest in effect for such day as publicly announced
from time to time by Bank of America as its "prime rate." The
"prime
rate" is a rate set by Bank of America based upon various
factors
including Bank of America's costs and desired return, general
economic
conditions and other factors, and is used as a reference point
for
pricing some loans, which may be priced at, above, or below
such
announced rate. Any change in such rate announced by Bank of
America
shall take effect at the opening of business on the day specified
in
the public announcement of such change.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" means Delta and Pine Land Company, a Delaware
corporation, together with any successors and permitted
assigns.
"Business Day" means any day other than a Saturday, a Sunday,
a legal holiday or a day on which banking institutions are
authorized
or required by law or other governmental action to close in
Memphis,
Tennessee or the State of Mississippi; provided that in the case
of
Eurodollar Loans, such day is also a day on which dealings
between
banks are carried on in U.S. dollar deposits in the London
interbank
market.
"Capital Expenditures" means all expenditures of the Borrower
and its Subsidiaries which, in accordance with GAAP, would be
classified as capital expenditures net of identifiable
contributions
made by joint venture partners or participants and/or parties
other
than the Borrower and its Wholly-Owned Subsidiaries, including,
without
limitation, Capital Leases.
"Capital Lease" means, as applied to any Person, any lease of
any property (whether real, personal or mixed) by that Person as
lessee
which, in accordance with GAAP, is or should be accounted for as
a
capital lease on the balance sheet of that Person.
"Capital Stock" means (a) in the case of a corporation,
capital stock, (b) in the case of an association or business
entity,
any and all shares, interests, participations, rights or other
equivalents (however designated) of capital stock, (c) in the case
of a
partnership, partnership interests (whether general or limited),
(d) in
the case of a limited liability company, membership interests and
(e)
any other interest or participation that confers on a Person the
right
to receive a share of the profits and losses of, or distributions
of
assets of, the issuing Person.
"Cash Collateral" has the meaning set forth in Section 2.2(f).
"Cash Collateralize" has the meaning set forth in Section
2.2(f).
"Cash Equivalents" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or
any
agency or instrumentality thereof (provided that the full faith
and
credit of the United States of America is pledged in support
thereof)
having maturities of not more than twelve months from the date
of
acquisition, (b) U.S. dollar denominated time and demand deposits
and
certificates of deposit of (i) the Lender, (ii) any domestic
commercial
bank having capital and surplus in excess of $100,000,000 or (iii)
any
bank whose short-term commercial paper rating from S&P is at
least A-1
or the equivalent thereof or from Moody's is at least P-1 or
the
equivalent thereof (any such bank being an "Approved Bank"), in
each
case with maturities of not more than 270 days from the date of
acquisition, (c) commercial paper and variable or fixed rate
notes
issued by any Approved Bank (or by the parent company thereof) or
any
variable rate notes issued by, or guaranteed by, any domestic
corporation rated A-1 (or the equivalent thereof) or better by
S&P or
P-1 (or the equivalent thereof) or better by Moody's and
maturing
within six months of the date of acquisition, (d) repurchase
agreements
with a bank or trust company (including the Lender) or
securities
dealer having capital and surplus in excess of $500,000,000 for
direct
obligations issued by or fully guaranteed by the United States
of
America in which the Borrower shall have a perfected first
priority
security interest (subject to no other Liens) and having, on the
date
of purchase thereof, a fair market value of at least 100% of the
amount
of the repurchase obligations, (e) Investments, classified in
accordance with GAAP as current assets, in money market
investment
programs registered under the Investment Company Act of 1940,
as
amended, which are administered by financial institutions
having
capital of at least $500,000,000 and the portfolios of which
are
limited to Investments of the character described in the
foregoing
subdivisions (a) through (d), and (f) Dividends Received
Eligible
Auction
Market Stock issued by the lender or similar instruments issued
by other banks.
"Change of Control" means (i) any Person or two or more
Persons acting in concert shall have acquired, after the date
hereof,
beneficial ownership, directly or indirectly, of Capital Stock of
the
Borrower (or other securities convertible into such Capital
Stock)
representing 50% or more of the combined voting power of all
Capital
Stock of the Borrower or (ii) during any period of up to 24
consecutive
months, commencing after the Closing Date, individuals who at
the
beginning of such 24 month period were directors of the Borrower
cease
to constitute a majority of the board of directors of the Borrower
and
such event is a result (directly or indirectly) of the acquisition
of
10% or more of the combined voting power of the Capital Stock by
a
Person or Persons who did not own at least 10% or more of the
combined
voting power of the Capital Stock as of the Closing Date. As
used
herein, "beneficial ownership" shall have the meaning provided in
Rule
13d-3 of the Securities and Exchange Commission under the
Securities
and Exchange Act
of 1934.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986 and the rules
and regulations promulgated thereunder, as amended, modified,
succeeded
or replaced from time to time.
"Commitment" means the obligation of the Lender to make
Revolving Loans to, and issue Letters of Credit for the account of,
the
Borrower pursuant to Section 2.1 and Section 2.2.
"Consolidated Net Worth" means, as of any date, shareholders'
equity or net worth of the Borrower and its Subsidiaries on a
consolidated basis, as determined in accordance with GAAP.
"Consolidated Tangible Assets" means the amount by which the
consolidated total assets of the Borrower and its Subsidiaries on
a
consolidated basis exceeds the net book value of all items which
would
be classified as intangible assets under GAAP.
"Credit Agreement" has the meaning set forth in the
introductory paragraph.
"Credit Documents" means this Credit Agreement, the Revolving
Note, any Joinder Agreement, each Loan Notice, each Letter of
Credit
Application and all other related agreements and documents issued
or
delivered hereunder or thereunder or pursuant hereto or
thereto.
"Credit Extensions" means each of the following: (a) a
Revolving Loan (whether made pursuant to a Loan Notice or an
"auto
borrow" or "zero balance" or similar arrangement) and (b) an LOC
Credit
Extension.
"Credit Parties" means the Borrower and the Guarantors and
"Credit Party" means any one of them.
"Credit Party Obligations" means without duplication, all of
the obligations of the Credit Parties to the Lender, whenever
arising,
under this Credit Agreement, the Revolving Note or any of the
other
Credit
Documents to which the Borrower or any of its Subsidiaries is a
party.
"D&M Partners" means D&M Partners, a Delaware general
partnership, created pursuant to that certain Partnership
Agreement
between Monsanto and the Borrower dated February 2, 1996, as
amended as
of August 31, 2004, as the same may be amended from time to time
in
accordance with its terms.
"Daily Eurodollar Rate" means the rate per annum equal to the
British Bankers Association LIBOR Rate, as published by Reuters
(or
other commercially available source providing quotations of BBA
LIBOR
as designated by the Lender from time to time) at approximately
11:00
a.m., London time, two Business Days prior to the issuance of
such
Loan, for Dollar deposits of one month. If such rate is not
available
at such time for any reason, then the "Daily Eurodollar Rate" shall
be
the rate per annum determined by the Lender to be the rate at
which
deposits in Dollars for delivery on the date of issuance of such
Loan
in same day funds in the approximate amount of the Loan being
made
would be offered by Bank of America's London Branch to major banks
for
one month deposits in the London interbank eurodollar market at
their
request at approximately 11:00 a.m. (London time) two Business
Days
prior to the issuance of such Loan. The Daily Eurodollar Rate shall
be
adjusted every date of change in such rate.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of
Default.
"Default Rate" has the meaning set forth in Section 2.6(b).
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Domestic Subsidiary" means, with respect to any Person, any
Subsidiary of such Person which is incorporated or organized under
the
laws of any State of the United States or the District of
Columbia.
"Dividends Received Eligible Auction Market Stock" means any
of the Series A-1 through A-11 preferred stock issued by Banc
of
America Preferred Funding Corporation, a Delaware corporation.
"Effective Date" means the date on which the conditions set
forth in Section 5.1 shall have been fulfilled (or waived in the
sole
discretion of
the Lender) and on which the initial Loans shall have
been made.
"Environmental Laws" means any current or future legal
requirement of any Governmental Authority pertaining to (a) the
protection of health, safety, and the indoor or outdoor
environment,
(b) the conservation, management, or use of natural resources
and
wildlife, (c) the protection or use of surface water and
groundwater,
(d) the management, manufacture, possession, presence, use,
generation,
transportation, treatment, storage, disposal, release,
threatened
release, abatement, removal, remediation or handling of, or
exposure
to, any hazardous or toxic substance or material or (e)
pollution
(including any release to land surface water and groundwater)
and
includes, without limitation, the Comprehensive Environmental
Response,
Compensation, and Liability Act of 1980, as amended by the
Superfund
Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq.,
Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and Hazardous and Solid Waste Amendment of
1984,
42 USC 6901 et seq., Federal Water Pollution Control Act, as
amended by
the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act
of
1966, as amended, 42 USC 7401 et seq., Toxic Substances Control Act
of
1976, 15 USC 2601 et seq., Hazardous Materials Transportation Act,
49
USC App. 1801 et seq., Occupational Safety and Health Act of 1970,
as
amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701
et
seq., Emergency Planning and Community Right-to-Know Act of 1986,
42
USC 11001 et seq., National Environmental Policy Act of 1969, 42
USC
4321 et seq., Safe Drinking Water Act of 1974, as amended, 42
USC
300(f) et seq., any analogous implementing or successor law, and
any
amendment, rule, regulation, order, or binding directive issued
thereunder.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted
by
the rules and regulations thereunder, all as the same may be in
effect
from time to time. References to sections of ERISA shall be
construed
also to refer to any successor sections.
"ERISA Affiliate" means an entity, whether or not
incorporated, which is under common control with any Credit Party
or
any of its Subsidiaries within the meaning of Section 4001(a)(14)
of
ERISA, or, solely for the purposes of potential liability under
Section
302(c)(11) of ERISA and Section 412(c)(11) of the Code and the
lien
created under Section 302(f) of ERISA and Section 412(o) of the
Code,
Section 414(m) of the Code.
"Eurodollar Base Rate" has the meaning specified in the
definition of
Eurodollar Rate.
"Eurodollar Loan" means a Loan bearing interest based at a
rate determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means for any Interest Period with respect
to a
Eurodollar Loan, a rate per annum determined by the Lender
pursuant to the following formula:
Eurodollar Rate =
Eurodollar Base Rate
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for such Interest
Period, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters
(or other commercially available source providing quotations
of BBA LIBOR as designated by the Lender from time to time) at
approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period, for Dollar
deposits (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period. If
such rate is not available at such time for any reason, then
the "Eurodollar Base Rate" for such Interest Period shall be
the rate per annum determined by the Lender to be the rate at
which deposits in Dollars for delivery on the first day of
such Interest Period in same day funds in the approximate
amount of the Eurodollar Loan being made, continued or
converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's
London Branch to major banks in the London interbank
eurodollar market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of
such Interest Period.
"Eurodollar Reserve Percentage" means, for any day
during any Interest Period, the reserve percentage (expressed
as a decimal, carried out to five decimal places) in effect on
such day, whether or not applicable to the Lender, under
regulations issued from time to time by the FRB for
determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities"). The Eurodollar Rate for each
outstanding Eurodollar Loan shall be adjusted automatically as
of the effective date of any change in the Eurodollar Reserve
Percentage.
"Event of Default" means any of the events or circumstances
described in Section 9.1.
"Federal Funds Rate" means, for any day, the rate per annum
equal to the weighted average of the rates on overnight Federal
funds
transactions with members of the Federal Reserve System arranged
by
Federal funds brokers on such day, as published by the Federal
Reserve
Bank of New York on the Business Day next succeeding such day;
provided
that (a) if such day is not a Business Day, the Federal Funds Rate
for
such day shall be such rate on such transactions on the next
preceding
Business Day as so published on the next succeeding Business Day,
and
(b) if no such rate is so published on such next succeeding
Business
Day, the Federal Funds Rate for such day shall be the average
rate
(rounded upward, if necessary, to a whole multiple of 1/100 of
1%)
charged to Bank of America on such day on such transactions as
determined by the Lender.
"Foreign Subsidiary" means, with respect to any Person, any
Subsidiary of such Person which is not a Domestic Subsidiary of
such
Person.
"FRB" means the Board of Governors of the Federal Reserve
System of the United States.
"Funded Debt" means, without duplication, the sum of (a) all
Indebtedness of the Borrower and its Subsidiaries for borrowed
money,
unless such Indebtedness is owed by a Credit Party to another
Credit
Party, (b) all purchase money Indebtedness of the Borrower and
its
Subsidiaries, (c) the principal portion of all obligations of
the
Borrower and its Subsidiaries under Capital Leases, (d) all
obligations, contingent or otherwise, relative to the face amount
of
all letters of credit (other than letters of credit supporting
trade
payables in the ordinary course of business), whether or not drawn,
and
banker's acceptances issued for the account of such Person (it
being
understood that, to the extent an undrawn letter of credit
supports
another obligation consisting of Indebtedness, in calculating
aggregated Indebtedness only such other obligation shall be
included),
(e) all Guaranty Obligations of the Borrower and its Subsidiaries
with
respect to Funded Debt of another Person, (f) all Funded Debt
of
another entity secured by a Lien on any property of the Borrower
and
its Subsidiaries whether or not such Funded Debt has been assumed
by
the Borrower or any of its Subsidiaries, (g) all Funded Debt of
any
partnership or unincorporated joint venture to the extent the
Borrower
or one of its Subsidiaries is legally obligated, net of any assets
of
such partnership or joint venture, (h) the principal balance
outstanding under any synthetic lease, tax retention operating
lease,
off-balance sheet loan or similar off-balance sheet financing
product
where such transaction is considered borrowed money indebtedness
for
tax purposes but is classified as an operating lease in accordance
with
GAAP and (i) the outstanding principal amount of all
Securitization
Transactions, after taking into account reserve accounts and
making
appropriate adjustments, determined by the Lender in its
reasonable
judgment.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to Section
1.3.
"Governmental Authority" means any Federal, state, local,
provincial or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"Guarantor" means each Subsidiary of the Borrower listed on
the signature pages hereto and each Additional Credit Party which
has
executed a Joinder Agreement, together with their successors
and
assigns.
"Guaranty" means, with respect to each Guarantor, the
obligations of such Guarantor under Section 4.
"Guaranty Obligations" means, with respect to any Person,
without duplication, any obligations (other than endorsements in
the
ordinary course of business of negotiable instruments for deposit
or
collection) guaranteeing or intended to guarantee any Indebtedness
of
any other Person in any manner, whether direct or indirect, and
including without limitation any obligation, whether or not
contingent,
(a) to purchase any such Indebtedness or other obligation or
any
property constituting security therefor, (b) to advance or
provide
funds or other support for the payment or purchase of such
indebtedness
or obligation or to maintain working capital, solvency or other
balance
sheet condition of such other Person (including, without
limitation,
maintenance agreements, comfort letters, take or pay arrangements,
put
agreements or similar agreements or arrangements but excluding
obligations to provide funding for partnerships and joint ventures)
for
the benefit of the holder of Indebtedness of such other Person, (c)
to
lease or purchase property, securities or services primarily for
the
purpose of assuring the owner of such Indebtedness or (d) to
otherwise
assure or hold harmless the owner of such Indebtedness or
obligation
against loss in respect thereof. The amount of any Guaranty
Obligation
hereunder shall (subject to any limitations set forth therein)
be
deemed to
be an amount equal to the outstanding principal amount of the
Indebtedness in respect of which such Guaranty Obligation is
made.
"Hazardous Materials" means any substance, material or waste
defined or regulated in or under any Environmental Laws.
"Honor Date" has the meaning set forth in Section 2.2(c).
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all
obligations
of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made,
(c)
all obligations of such Person under conditional sale or other
title
retention agreements relating to property purchased by such Person
to
the extent of the value of such property (other than customary
reservations or retentions of title under agreements with
suppliers
entered into in the ordinary course of business), (d) all
obligations,
other than intercompany items, of such Person issued or assumed as
the
deferred purchase price of property or services purchased by
such
Person which would appear as liabilities on a balance sheet of
such
Person, (e) all Indebtedness of others secured by (or for which
the
holder of such Indebtedness has an existing right, contingent
or
otherwise, to be secured by) any Lien on, or payable out of the
proceeds of
production from, property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed,
(f)
all Guaranty Obligations of such Person, (g) the principal portion
of
all obligations of such Person under (i) Capital Leases and (ii)
any
synthetic lease, tax retention operating lease, off-balance sheet
loan
or similar off-balance sheet financing product of such Person
where
such transaction is considered borrowed money indebtedness for
tax
purposes but is classified as an operating lease in accordance
with
GAAP, (h) all obligations of such Person in respect of interest
rate
protection agreements, foreign currency exchange agreements, or
other
interest or exchange rate or commodity price hedging agreements,
(i)
the maximum amount of all performance and standby letters of
credit
issued or bankers' acceptances facilities created for the account
of
such Person and, without duplication, all drafts drawn thereunder
(to
the extent unreimbursed), (j) all preferred stock issued by such
Person
and required by the terms thereof to be redeemed, or for which
mandatory sinking fund payments are due, by a fixed date and (k)
the
outstanding principal amount of all Securitization Transactions,
after
taking into account reserve accounts and making appropriate
adjustments, determined by the Lender in its reasonable judgment.
The
Indebtedness of any Person shall include the Indebtedness of
any
partnership or unincorporated joint venture in which such Person
is
legally obligated.
"Indemnitees" has the meaning set forth in Section 10.5(b).
"Information" has the meaning set forth in Section 10.16.
"Interest Payment Date" means (a) as to Base Rate Loans, the
last day of each March, June, September and December and the
Maturity
Date and
(b) as to Eurodollar Loans, the last day of each applicable
Interest Period and the Maturity Date and in addition where the
applicable Interest Period for a Eurodollar Loan is greater than
three
months, then also on the date three months from the beginning of
the
Interest Period and each three months thereafter.
"Interest Period" means, as to Eurodollar Loans, a period of
one, two, or three months' duration, as the Borrower may elect,
commencing, in each case, on the date of the borrowing
(including
continuations and conversions thereof); provided, however, (a) if
any
Interest Period would end on a day which is not a Business Day,
such
Interest Period shall be extended to the next succeeding Business
Day
(except that where the next succeeding Business Day falls in the
next
succeeding calendar month, then on the next preceding Business
Day),
(b) no Interest Period shall extend beyond the Maturity Date and
(c)
where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which
the
Interest Period is to end, such Interest Period shall end on the
last
Business Day of such calendar month.
"Inventory" means all of the Borrower and its Domestic
Subsidiaries' now owned and hereafter acquired inventory, goods
and
merchandise, located in the United States, to be furnished under
any
contract of service or held for sale or lease, all returned goods,
raw
materials, work-in-process, finished goods (including embedded
software), other materials and supplies of any kind, nature or
description
which are used or consumed in the Borrower's or its
Subsidiaries' business or used in connection with the packing,
shipping, advertising, selling or finishing of such goods,
merchandise,
and all documents of title or other Documents (as defined in the
UCC)
representing them.
"Investment" in any Person means (a) the acquisition (whether
for cash, property, services, assumption of Indebtedness,
securities or
otherwise) of assets, shares of Capital Stock, bonds, notes,
debentures, partnership, joint ventures or other ownership
interests or
other securities of such other Person or (b) any deposit with,
or
advance, loan or other extension of credit to, such Person (other
than
deposits made in connection with the purchase of equipment or
other
assets in the ordinary course of business) or (c) any other
capital
contribution to or investment in such Person, including,
without
limitation, any Guaranty Obligation (including any support for a
letter
of credit issued on behalf of such Person) incurred for the benefit
of
such Person.
"Issuer Documents" means with respect to any Letter of Credit,
the Letter of Credit Application, and any other document, agreement
and
instrument entered into by the Lender and the Borrower (or any
Subsidiary) or in favor the Lender and relating to any such Letter
of
Credit.
"Joinder Agreement" means a Joinder Agreement substantially in
the form of Exhibit 7.12.
"Lender" means Bank of America.
"Letter of Credit" means any letter of credit issued by the
Lender for the
account of any Credit Party in accordance with the terms
of Section 2.2.
"Letter of Credit Application" means an application and
agreement for the issuance or amendment of a letter of credit in
the
form from
time to time in use by the Lender.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien
(statutory or
otherwise), preference, priority or charge of any kind,
including,
without limitation, any agreement to give any of the foregoing,
any
conditional sale or other title retention agreement, and any lease
in
the nature thereof.
"Loan" or "Loans" means the Revolving Loans (or a portion of
any such Loan), individually or collectively, as appropriate.
"Loan Notice" means a request by the Borrower for a Revolving
Loan, in the form of Exhibit 2.1(b).
"LOC Commitment
Amount" means $20,000,000.
"LOC Credit Extension" means, with respect to any Letter of
Credit, the issuance thereof or extension of the expiry date
thereof,
or the renewal or increase of the amount thereof.
"LOC Obligations" means, at any time, the sum of (a) the
maximum amount which is, or at any time thereafter may become,
available to be drawn under Letters of Credit then outstanding,
assuming compliance with all requirements for drawings referred to
in
such Letters of Credit plus (b) the aggregate amount of all
drawings
under Letters of Credit honored by the Lender but not
theretofore
reimbursed by the Borrower.
"Material
Adverse Effect" means an occurrence which would have
a material adverse effect at any time prior to payment in full of
the
Credit Party Obligations and the termination of the Commitment on
(a)
the business, assets, liabilities (actual or contingent),
operations,
condition (financial or otherwise) or prospects of the Borrower and
its
Subsidiaries taken as a whole, (b) the ability of (i) the Borrower
or
(ii) the Guarantors, taken as a whole, to perform its or their
respective material obligations under this Credit Agreement or any
of
the other Credit Documents, or (c) the validity or enforceability
of
this Credit Agreement, any of the other Credit Documents, or the
rights
and remedies of the Lender hereunder or thereunder taken as a
whole.
"Maturity Date" means the earliest to occur of (a) July 31,
2006 (or such other date as the parties may agree pursuant to the
terms
of Section 2.1(e)) or (b) the date the Commitment is terminated
pursuant to Section 9.2.
"Monsanto" means Monsanto Company, a Delaware corporation
having its principle place of business at 800 North Lindbergh
Boulevard, St. Louis, Missouri.
"Monsanto Bollgard License" means the Bollgard(R) Gene License
and Seed Services Agreement between Monsanto, D&M Partners and
the
Borrower dated as of February 2, 1996, as amended December 8,
1999,
January 2, 2000, and March 26, 2003, as the same may be amended
from
time to time in accordance with its terms.
"Monsanto Bollgard II License" means the Bollgard(R) II Gene
License and Seed Services Agreement between Monsanto and the
Borrower
dated as of December 2000, as the same may be amended from time to
time
in accordance with its terms.
"Monsanto Marketing Services Agreement" means the Marketing
Services Agreement among Monsanto, D&M Partners and the
Borrower dated
as of February 2, 1996, as the same may be amended from time to
time in
accordance with its terms.
"Monsanto Payable" means any amounts recorded as due on the
books of the Borrower to Monsanto as royalty and/or marketing
services
fees pursuant to the Monsanto Bollgard License, the Monsanto
Bollgard
II License, the Monsanto Roundup Ready License, the Monsanto
Roundup
Ready Flex License, and/or the Monsanto Marketing Services
Agreement.
"Monsanto Roundup Ready Flex License" means the Roundup Ready
Flex(R) Gene License and Seed Services Agreement between Monsanto
and
the Borrower dated as of January 7, 2005, as the same may be
amended
from time to time in accordance with its terms.
"Monsanto Roundup Ready License" means the Roundup Ready(R)
Gene License and Seed Services Agreement among Monsanto, D&M
Partners
and the Borrower dated as of February 2, 1996, as amended July
26,
1996, December 8, 1999, January 2, 2000, and March 26, 2003, as
the
same may be amended from time to time in accordance with its
terms.
"Moody's" means Moody's Investors Service, Inc., or any
successor or assignee of the business of such company in the
business
of rating securities.
"Multiemployer Plan" means a Plan covered by Title IV of ERISA
which is a multiemployer plan as defined in Section 3(37) or
4001(a)(3)
of ERISA.
"Multiple Employer Plan" means a Plan covered by Title IV of
ERISA, other than a Multiemployer Plan, with respect to which
any
Credit Party or any of its Subsidiaries or any ERISA Affiliate and
at
least one employer other than a Credit Party or any of its
Subsidiaries
or any ERISA Affiliate are contributing sponsors.
"Net Income" means net income of the Borrower and its
Subsidiaries, as determined in accordance with GAAP.
"Net PP&E" means the net book value of all property, plant
and
equipment of the Borrower and its Domestic Subsidiaries located in
the
United
States, as determined in accordance with GAAP.
"Notice of Continuation/Conversion" means a request by the
Borrower in the form of Exhibit 2.1(c) to (a) continue an
existing
Eurodollar Loan to a new Interest Period or (b) convert a
Eurodollar
Loan to a Base Rate Loan or a Base Rate Loan to a Eurodollar
Loan.
"Other Taxes" has the meaning set forth in Section 3.1(b).
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereto.
"Permitted Acquisition" means an Acquisition by the Borrower
or any Subsidiary of the Borrower for at or below fair market value
of
the Capital Stock or property acquired, provided that (a) the
Capital
Stock or property of another Person in such Acquisition relates to
a
line of business similar to the business of the Borrower or one of
its
Subsidiaries engaged in on the Closing Date; (b) in the case of
an
Acquisition of the Capital Stock of another Person, (i) the board
of
directors (or other comparable governing body) of such other
Person
shall have duly approved such Acquisition and (ii) such Person
shall
become a direct or indirect Subsidiary of the Borrower; (c) the
Borrower shall have delivered to the Lender not less than 10 days
prior
to such Acquisition, a pro forma certificate of a Responsible
Officer
demonstrating that, upon giving effect to such Acquisition on a
pro
forma basis, the Borrower shall be in compliance with the covenant
set
forth in Section 7.2; (d) the representations and warranties made
by
the Borrower herein shall be true and correct in all material
respects
at and as if made as of the date of such Acquisition (after
giving
effect thereto) except to the extent such representations and
warranties expressly relate to an earlier date and no Default or
Event
of Default exists as of the date of such Acquisition (after
giving
effect thereto) and (e) the aggregate consideration (including cash
and
non-cash consideration, any assumption of Indebtedness,
deferred
purchase price and any earn-out obligations) for all
Acquisitions
occurring after the Closing Date shall not exceed $60,000,000.
"Permitted Indebtedness" has the meaning set forth in Section
8.1.
"Permitted Investments" means Investments which are (a) cash
or Cash Equivalents, (b) accounts receivable created, acquired or
made
in the ordinary course of business and payable or dischargeable
in
accordance with customary trade terms, (c) inventory, raw materials
and
general intangibles acquired in the ordinary course of business,
(d)
purchases or licenses of germplasm, intellectual property or
technology
related to a line of business similar to the business that the
Borrower
or one of its Subsidiaries is engaged in on the Closing Date,
(e)
Investments by one Credit Party in another Credit Party; (f)
Investments in notes receivables and loans to directors, officers
or
employees of a Credit Party in the ordinary course of business
for
reasonable business expenses, not to exceed $2,000,000 in the
aggregate, at any one time outstanding, (g) Investments in
Subsidiaries
which are not
Credit Parties, as reflected on the Borrower's most
recent consolidated balance sheet, in an aggregate amount not to
exceed
25% of Consolidated Tangible Assets as of the end of the most
recently
ended fiscal year of the Borrower, (h) Investments in Capital
Expenditures in accordance with the terms of Section 8.12, (i)
Investments in companies, partnerships and joint ventures which are
not
Subsidiaries, as reflected on the Borrower's most recent
consolidated
balance sheet, in an aggregate amount not to exceed 10% of
Consolidated
Tangible Assets as of the end of the most recently ended fiscal
quarter
of the Borrower, (j) Permitted Acquisitions, (k) other Investments
not
to exceed $10,000,000, in the aggregate, at any one time
outstanding or
(l) advances in respect of repurchases of Capital Stock in
accordance
with the terms of Section 8.8 hereof.
"Permitted Liens" means (a) Liens securing Credit Party
Obligations, (b) Liens for taxes not yet due or Liens for taxes
being
contested in good faith by appropriate proceedings for which
adequate
reserves determined in accordance with GAAP have been established
(and
as to which the property subject to any such Lien is not yet
subject to
foreclosure, sale or loss on account thereof), (c) Liens in respect
of
property imposed by law arising in the ordinary course of business
such
as materialmen's, mechanics', warehousemen's, carrier's, landlords'
and
other nonconsensual statutory Liens which are not yet due and
payable
or which are being contested in good faith by appropriate
proceedings
for which adequate reserves determined in accordance with GAAP
have
been established (and as to which the property subject to any such
Lien
is not yet subject to foreclosure, sale or loss on account
thereof),
(d) pledges or deposits made in the ordinary course of business
to
secure payment of worker's compensation insurance, unemployment
insurance, pensions or social security programs, (e) Liens arising
from
good faith deposits in connection with or to secure performance
of
tenders, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations incurred in
the
ordinary course of business (other than obligations in respect of
the
payment of borrowed money), (f) Liens arising from good faith
deposits
in connection with or to secure performance of statutory
obligations
and surety and appeal bonds, (g) easements, rights-of-way,
restrictions
(including zoning restrictions), matters of plat, minor defects
or
irregularities in title and other similar charges or encumbrances
not,
in any material respect, impairing the use of the encumbered
property
for its intended purposes, (h) judgment Liens that would not
constitute
an Event of Default, (i) Liens in connection with Indebtedness
allowed
under Section 8.1(e) and (i), (j) Liens arising by virtue of
any
statutory or common law provision relating to banker's liens,
rights of
setoff or similar rights as to deposit accounts or other funds
maintained with a creditor depository institution, (k)
precautionary
filings of financing statements in connection with operating
leases
entered into in the ordinary course of business and (l) Liens
existing
on the date hereof and identified on Schedule 8.2(l); provided that
no
such Lien shall extend to any property other than the property
subject
thereto on the Closing Date.
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust
or
other enterprise (whether or not incorporated), or any
Governmental
Authority.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is subject to Title I (other than Subtitle A
or
Part 1 of Subtitle B thereof) or Title IV of ERISA and with respect
to
which any Credit Party or any of its Subsidiaries or any ERISA
Affiliate is (or, if such plan were terminated at such time,
would
under Section 4069 of ERISA be deemed to be) an "employer" within
the
meaning of Section 3(5) of ERISA.
"Real Properties" has the meaning set forth in Section
6.18(a).
"Regulation G, T, U, or X" means Regulation G, T, U or X,
respectively, of the Board of Governors of the Federal Reserve
System
as from time to time in effect and any successor to all or a
portion
thereof.
"Reportable Event" means a "reportable event" as defined in
Section 4043 of ERISA with respect to which the notice requirements
to
the PBGC have not been waived.
"Request for Credit Extension" means (a) with respect to a
borrowing of Loans, a Loan Notice, and (b) with respect to the
issuance, extension of the expiry date, or the renewal or increase
of
the
amount of any Letter of Credit, a Letter of Credit Application.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational
or
governing documents of such Person, and any law, treaty, rule
or
regulation or final, non-appealable determination of an arbitrator
or a
court or other Governmental Authority, in each case applicable to
or
binding upon such Person or to which any of its material property
is
subject.
"Responsible Officer" means the Chairman, Chief Executive
Officer and President, Vice President - Finance and Treasurer
(or
principal accounting and finance officer) or other duly
authorized
officer.
"Revolving Loans" has the meaning set forth in Section 2.1(a).
"Revolving Note" means the promissory note of the Borrower in
favor of the Lender evidencing the Revolving Loans provided
pursuant to
Section 2.1, as such promissory note may be amended, modified,
supplemented, extended, renewed or replaced from time to time and
as
evidenced in the form of Exhibit 2.9.
"S&P" means Standard & Poor's Ratings Group, a division
of
McGraw Hill, Inc., or any successor or assignee of the business of
such
division in the business of rating securities.
"Seasonal Commitment" means (i) $50,000,000 during the period
from October 1 through July 31, as such amount may be reduced
in
accordance with Section 2.4 and (ii) $0 during the period from
August 1
through September 30.
"Securitization Transaction" means any financing transaction
or series of financing transactions (including factoring
arrangements)
pursuant to which the Borrower or any Subsidiary may sell, convey
or
otherwise transfer, or grant a security interest in, accounts,
payments, receivables,
rights to future lease payments or residuals or
similar rights to payment to a special purpose Subsidiary or
Affiliate
or any other Person.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan or a
Multiple
Employer Plan.
"Solvent" means, with respect to any Person as of a particular
date, that on such date (a) such Person is able to pay its debts
and
other liabilities, contingent obligations and other commitments as
they
mature in the normal course of business, (b) such Person does
not
intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts
and
liabilities mature in their ordinary course, (c) such Person is
not
engaged in a business or a transaction, and is not about to engage
in a
business or a transaction, for which such Person's assets would
constitute unreasonably small capital after giving due
consideration to
the prevailing practice in the industry in which such Person is
engaged
or is to engage, (d) the fair value of the assets of such Person
is
greater than the total amount of liabilities, including,
without
limitation, contingent liabilities, of such Person and (e) the
present
fair saleable value of the assets of such Person if sold as a
going
concern is not less than the amount that will be required to pay
the
probable liability of such Person on its debts as they become
absolute
and matured. In computing the amount of contingent liabilities at
any
time, it is intended that such liabilities will be computed at
the
amount which, in light of all the facts and circumstances existing
at
such time, represents the amount that can reasonably be expected
to
become an actual or matured liability.
"Subsidiary" means, as to any Person, (a) any corporation 50%
or more of whose stock of any class or classes having by the
terms
thereof ordinary voting power to elect a majority of the directors
of
such corporation (irrespective of whether or not at the time, any
class
or classes of such corporation shall have or might have voting
power by
reason of the happening of any contingency) is at the time owned
by
such Person directly or indirectly through Subsidiaries, (b)
any
partnership, association, joint venture or other entity in which
such
person directly or indirectly through Subsidiaries has 50% or more
of
the equity interest at any time or (c) any other entity whose
financial
information is consolidated with such Person's financial statements
in
accordance with GAAP.
"Taxes" has the meaning set forth in Section 3.1(a).
"Termination Event" means (a) with respect to any Single
Employer Plan, the occurrence of a Reportable Event or the
substantial
cessation of operations (within the meaning of Section 4062(e)
of
ERISA); (b) the withdrawal of the Borrower or any of its
Subsidiaries
or any ERISA
Affiliate from a Multiple Employer Plan during a plan year
in which it was a substantial employer (as such term is defined
in
Section 4001(a)(2) of ERISA), or the termination of a Multiple
Employer
Plan; (c) the distribution of a notice of intent to terminate or
the
actual termination of a Plan pursuant to Section 4041(a)(2) or
4041A of
ERISA; (d) the institution of proceedings to terminate or the
actual
termination of a Plan by the PBGC under Section 4042 of ERISA; (e)
any
event or condition which might reasonably constitute grounds
under
Section 4042 of ERISA for the termination of, or the appointment of
a
trustee to administer, any Plan; or (f) the complete or partial
withdrawal of the Borrower or any of its Subsidiaries or any
ERISA
Affiliate from a Multiemployer Plan.
"Total Commitment Amount" means the sum of the Base Commitment
plus the Seasonal Commitment in effect from time to time.
"UCC" means the Uniform Commercial Code, as in effect from
time to time, of the State of Tennessee; provided, that to the
extent
that the UCC is used to define any term herein or in any other
documents and such term is defined differently in different
Articles or
Divisions of the UCC, the definition of such term contained in
Article
or Division 9 shall govern.
"Unreimbursed Amount" has the meaning set forth in Section
2.2(c).
"Wholly-Owned Domestic Subsidiary" means any Domestic
Subsidiary that is a Wholly-Owned Subsidiary.
"Wholly-Owned Subsidiary" means, as to any Person, any
Subsidiary 100% of whose Capital Stock is at the time owned by
such
Person, directly or indirectly, through other Persons 100% of
whose
Capital Stock is at the time owned, directly or indirectly, by
such
Person.
1.2
Computation of Time Periods and Other Definitional Provisions.
For purposes of computation of periods of time hereunder, the
word
"from" means "from and including" and the
words "to" and "until" each mean "to
but excluding." References in this Credit
Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to
Articles, Sections, Schedules or Exhibits
of or to this Credit Agreement unless
otherwise specifically provided.
1.3 Accounting
Terms.
Except as otherwise expressly provided herein, all accounting
terms
used herein shall be interpreted, and all
financial statements and certificates
and reports as to financial matters
required to be delivered to the Lender
hereunder shall be prepared, in accordance
with GAAP applied on a consistent
basis. All calculations made for the
purposes of determining compliance with
this Credit Agreement shall (except as
otherwise expressly provided herein) be
made by application of GAAP applied on a
basis consistent with the most recent
annual or quarterly financial statements
delivered pursuant to Section 7.1 (or,
prior to the delivery of the first
financial statements pursuant to Section 7.1,
consistent with the financial statements
described in Section 5.1(c)); provided,
however, if (a) the Borrower shall object
to determining such compliance on such
basis at the time of delivery of such
financial statements due to any change in
GAAP or the rules promulgated with respect
thereto or (b) the Lender shall so
object in writing within 60 days after
delivery of such financial statements (or
after the Lender has been informed of the
change in GAAP affecting such
financial statements, if later), then such
calculations shall be made on a basis
consistent with the most recent financial
statements delivered by the Borrower
to the Lender as to which no such objection
shall have been made.
1.4 Times of
Day.
Unless otherwise specified, all references herein to times of day
shall
be references to Central time (daylight or
standard, as applicable).
1.5 Letter of
Credit Amounts.
Unless otherwise specified herein, the amount of a Letter of Credit
at
any time shall be deemed to be the stated
amount of such Letter of Credit in
effect at such time; provided, however,
that with respect to any Letter of
Credit that, by its terms or the terms of
any Issuer Document related thereto,
provides for one or more automatic
increases in the stated amount thereof, the
amount of such Letter of Credit shall be
deemed to be the maximum stated amount
of such Letter of Credit after giving
effect to all such increases, whether or
not such maximum stated amount is in effect
at such time.
SECTION 2
THE COMMITMENT AND CREDIT EXTENSIONS
2.1 Revolving
Loans.
(a) Commitment. Subject to the terms and conditions set forth
herein,
the Lender agrees to make loans (each such
loan, a "Revolving Loan") to the
Borrower in Dollars from time to time on
any Business Day during the period from
the Closing Date to but not including the
Maturity Date; provided, however, that
after giving effect to any advance of
Revolving Loans, the sum of the
outstanding principal amount of Revolving
Loans plus the outstanding amount of
LOC Obligations shall not exceed the Total
Commitment Amount then in effect.
Subject to the other terms and conditions
hereof, the Borrower may borrow under
this Section 2.1, prepay under Section 2.3,
and reborrow under this Section 2.1.
In addition, subject to the terms and
conditions set forth herein, the Lender
has agreed to advance Revolving Loans to
the Borrower pursuant to an "auto
borrow" arrangement in an aggregate
principal amount not exceeding at any time
FIFTEEN MILLION DOLLARS ($15,000,000).
Notwithstanding anything herein to the
contrary, in connection with such "auto
borrow" arrangement the Borrower and the
Lender agree that (i) the Total Commitment
Amount shall be subject to a reserve
of $15,000,000 for Revolving Loans advanced
pursuant to the "auto borrow"
arrangement (i.e., the amount of the
Commitment available for Revolving Loans
and Letters of Credit (other than Revolving
Loans advanced pursuant to the "auto
borrow" arrangement) shall be $60,000,000)
and (ii) with respect to all
Revolving Loans advanced pursuant to the
"auto borrow" arrangement, such
Revolving Loans shall be treated in all
respects as Revolving Loans advanced
under this Agreement (notwithstanding that
such Revolving Loans are part of an
"auto borrow" arrangement). The Borrower's
account No. 000653234203 maintained
with the Lender shall be utilized in
connection with the "auto borrow"
arrangement.
(b) Borrowing Procedures. Each borrowing of Revolving Loans shall
be
made upon the Borrower's Loan Notice to the
Lender. Each such Loan Notice must
be received by the Lender not later than
11:00 a.m. (i) on the date of the
requested borrowing of Revolving Loans that
will be Base Rate Loans or (ii)
three Business Days prior to the date of
the requested borrowing of Revolving
Loans that will be Eurodollar Loans, and
shall set forth (A) the amount
requested, (B) whether such Revolving Loans
shall accrue interest at the Base
Rate, or the Adjusted Eurodollar Rate, (C)
with respect to Eurodollar Loans, the
Interest Period applicable thereto and (D)
certification that the Borrower has
complied in all respects with Section 5.2.
Notwithstanding the foregoing, in the
event that an "auto borrow" or "zero
balance" or similar arrangement shall then
be in place with the Lender, the Borrower
shall request Loans pursuant to such
alternative notice arrangements, if any,
provided thereunder or in connection
therewith.
(c) Continuations and Conversions. The Borrower shall have the
option,
on any Business Day, to continue existing
Eurodollar Loans for a subsequent
Interest Period, to convert Base Rate Loans
into Eurodollar Loans or to convert
Eurodollar Loans into Base Rate Loans;
provided, however, that (a) each such
continuation or conversion must be
requested by the Borrower pursuant to a
written Notice of Continuation/Conversion,
in the form of Exhibit 2.1(c), in
compliance with the terms set forth below,
(b) Eurodollar Loans may only be
continued or converted into Base Rate Loans
on the last day of the Interest
Period applicable hereto, (c) after notice
from the Lender, Eurodollar Loans may
not be continued nor may Base Rate Loans be
converted into Eurodollar Loans
during the existence and continuation of a
Default or Event of Default and (d)
any request to extend a Eurodollar Loan
that fails to comply with the terms
hereof or any failure to request an
extension of a Eurodollar Loan at the end of
an Interest Period shall constitute a
conversion to a Base Rate Loan on the last
day of the applicable Interest Period. Each
continuation or conversion must be
requested by the Borrower no later than
1:00 p.m. (i) the date for a requested
conversion of a Eurodollar Loan to a Base
Rate Loan or (ii) three Business Days
prior to the date for a requested
continuation of a Eurodollar Loan or
conversion of a Base Rate Loan to a
Eurodollar Loan, in each case pursuant to a
written Notice of Continuation/Conversion
submitted to the Lender which shall
set forth (A) whether the Borrower wishes
to continue or convert such Loans and
(B) if the request is to continue a
Eurodollar Loan or convert a Base Rate Loan
to a Eurodollar Loan, the Interest Period
applicable thereto.
(d) Minimum Amounts. Each request for a borrowing, conversion
or
continuation shall be subject to the
requirements that (a) each Eurodollar Loan
shall be in a minimum amount of $1,000,000
and in integral multiples of $100,000
in excess thereof, (b) each Base Rate Loan
shall be in a minimum amount of the
lesser of $100,000 (and integral multiples
of $100,000 in excess thereof) or the
remaining amount available under the Total
Commitment Amount and (c) no more
than twelve (12) Eurodollar Loans shall be
outstanding hereunder at any one
time; provided that in the event that an
"auto borrow" or "zero balance" or
similar arrangement shall then be in place
with the Lender, each Loan advance
shall be in such minimum amounts, if any,
provided by such agreement. For the
purposes of this Section, all Eurodollar
Loans with the same Interest Periods
shall be considered as one Eurodollar Loan,
but Eurodollar Loans with different
Interest Periods, even if they begin on the
same date, shall be considered as
separate Eurodollar Loans.
(e) Extension of Maturity Date. The Borrower may, between September
15,
2005 and November 15, 2005, make written
request of the Lender to extend the
Maturity Date for an additional period of
one year. The Lender shall make a
determination in its sole discretion not
later than 60 days after the receipt of
any such request (such request to be sent
by certified mail or via overnight
courier) as to whether or not it will agree
to extend the Maturity Date as
requested. If, in response to a request for
an extension of the Maturity Date,
the Lender shall refuse (or is deemed to
have refused) to agree to the requested
extension, then the Maturity Date shall not
be extended and the then applicable
Maturity Date shall continue in effect.
2.2 Letters of
Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, the
Lender agrees from time to time on any Business Day during the
period
from the Closing Date to but not including thirty (30) days prior
to
the Maturity Date to issue Letters of Credit in Dollars for the
account
of the Borrower or any Subsidiary, and to amend or renew Letters
of
Credit previously issued by it, in accordance with subsection
(b)
below. Within the foregoing limits, and subject to the terms
and
conditions hereof, the Borrower's ability to obtain Letters of
Credit
shall be fully revolving, and accordingly the Borrower may, during
the
foregoing period, obtain Letters of Credit to replace Letters of
Credit
that have expired or that have been drawn upon and reimbursed.
(ii) The Lender shall be under no obligation to issue any
Letter of Credit if:
(A) after giving effect to such Letter of Credit, (1)
the sum of the outstanding principal amount of Revolving Loans
plus the outstanding amount of LOC Obligations would exceed
the Total Commitment Amount then in effect or (2) the
outstanding amount of LOC Obligations would exceed the LOC
Commitment Amount;
(B) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or restrain the Lender from issuing such Letter of Credit, or
any Requirement of Law applicable to the Lender or any request
or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the Lender shall
prohibit, or request that the Lender refrain from, the
issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the Lender with
respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the Lender is not otherwise
compensated hereunder) not in effect on the Closing Date, or
shall impose upon the Lender any unreimbursed loss, cost or
expense which was not applicable on the Closing Date and which
the Lender in good faith deems material to it;
(C) the expiry date of such Letter of Credit would
occur (x) after the date five (5) days prior to the Maturity
Date or (y) more than twelve months after the date of issuance
or last renewal; or
(D) the issuance of such Letter of Credit would
violate one or more policies of the Lender applicable to
borrowers generally.
(iii) The Lender shall be under no obligation to amend any
Letter of Credit if (A) the Lender would have no obligation at
such
time to issue such Letter of Credit in its amended form under the
terms
hereof, or (B) the beneficiary of such Letter of Credit does not
accept
the proposed amendment to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit.
Each
Letter of Credit shall be issued or
amended, as the case may be, upon the
request of the Borrower delivered to the
Lender in the form of a Letter of
Credit Application, appropriately completed
and signed by a Responsible Officer
of the Borrower. Such Letter of Credit
Application must be received by the
Lender not later than 11:00 a.m. at least
ten Business Days (or such later date
and time as the Lender may agree in a
particular instance in its sole
discretion) prior to the proposed issuance
date or date of amendment, as the
case may be. In the case of a request for
an initial issuance of a Letter of
Credit, such Letter of Credit Application
shall specify in form and detail
satisfactory to the Lender: (A) the
proposed issuance date of the requested
Letter of Credit (which shall be a Business
Day); (B) the amount thereof; (C)
the expiry date thereof; (D) the name and
address of the beneficiary thereof;
(E) the documents to be presented by such
beneficiary in case of any drawing
thereunder; (F) the full text of any
certificate to be presented by such
beneficiary in case of any drawing
thereunder; and (G) such other matters as the
Lender may reasonably require. In the case
of a request for an amendment of any
outstanding Letter of Credit, such Letter
of Credit Application shall specify in
form and detail satisfactory to the Lender
(A) the Letter of Credit to be
amended; (B) the proposed date of amendment
thereof (which shall be a Business
Day); (C) the nature of the proposed
amendment; and (D) such other matters as
the Lender may reasonably require.
(c) Drawings and Reimbursements; Funding of Participations.
Upon
receipt from the beneficiary of any Letter
of Credit of any notice of drawing
under such Letter of Credit, the Lender
shall notify the Borrower thereof. Not
later than 11:00 a.m. on the date of any
payment by the Lender under a Letter of
Credit (each such date, an "Honor Date"),
the Borrower shall reimburse the
Lender in an amount equal to the amount of
such drawing. In the event the
Borrower fails to so reimburse the Lender,
the Borrower shall be deemed to have
requested a borrowing of Revolving Loans to
be disbursed on the Honor Date in an
amount equal to the amount of the
unreimbursed drawing (the "Unreimbursed
Amount"), without regard to the minimum and
multiples specified in Section 2.1
for the principal amount of Revolving
Loans, but subject to the amount of the
unutilized portion of the Total Commitment
Amount then in effect and the
conditions set forth in Section 5.2 (other
than the delivery of a Loan Notice).
If any Unreimbursed Amount is not fully
refinanced by a borrowing of Revolving
Loans because the conditions set forth in
Section 5.2 cannot be satisfied or for
any other reason, the amount of the
Unreimbursed Amount that is not so
refinanced shall bear interest at the
Default Rate until reimbursed by the
Borrower.
(d) Obligations Absolute. The obligation of the Borrower to
reimburse
the Lender for each drawing under each
Letter of Credit shall be absolute,
unconditional and irrevocable, and shall be
paid strictly in accordance with the
terms of this Credit Agreement under all
circumstances, including the following:
(i) any
lack of validity or enforceability of such Letter of
Credit, this Credit Agreement, any other Credit Document or any
other
agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off,
defense or other right that the Borrower may have at any time
against
any beneficiary or any transferee of such Letter of Credit (or
any
Person for whom any such beneficiary or any such transferee may
be
acting), the Lender or any other Person, whether in connection
with
this Credit Agreement, the transactions contemplated hereby or by
such
Letter of Credit or any agreement or instrument relating thereto,
or
any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged,
fraudulent,
invalid or insufficient in any respect, unless it is apparent from
the
face of any draft, demand, certificate or other document that it
is
forged, fraudulent, invalid or insufficient, or any statement
therein
being untrue or inaccurate in any respect; or any loss or delay in
the
transmission or otherwise of any document required in order to make
a
drawing under such Letter of Credit, unless such delay or loss is
due
to the gross negligence of the Lender;
(iv) any payment by the Lender under such Letter of Credit
against presentation
of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made
by
the Lender under such Letter of Credit to any Person purporting to
be a
trustee in bankruptcy, debtor-in-possession, assignee for the
benefit
of creditors, liquidator, receiver or other representative of
or
successor to any beneficiary or any transferee of such Letter
of
Credit, including any arising in connection with any proceeding
under
any bankruptcy law, unless such payment was made as a result of
the
gross negligence of the Lender; or
(v) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other
circumstance
that might otherwise constitute a defense available to, or a
discharge
of, the Borrower.
The Borrower
shall promptly examine a copy of each Letter of Credit and
each amendment
thereto that is delivered to them and, in the event of any
claim of
noncompliance with the Borrower's instructions or other
irregularity,
the Borrower will immediately notify the Lender. The Borrower
shall be
conclusively deemed to have waived any such claim against the
Lender and its
correspondents unless such notice is given as aforesaid.
(e) Role of Lender. The Borrower agrees that, in paying any
drawing
under a Letter of Credit, the Lender shall
not have any responsibility to obtain
any document (other than any sight draft,
certificates and documents expressly
required by the Letter of Credit) or to
ascertain or inquire as to the validity
or accuracy of any such document or the
authority of the Person executing or
delivering any such document. The Borrower
hereby assumes all risks of the acts
or omissions of any beneficiary or
transferee with respect to its use of any
Letter of Credit; provided, however, that
this assumption is not intended to,
and shall not, preclude the Borrower's
pursuing such rights and remedies as they
may have against the beneficiary or
transferee at law or under any other
agreement. The Lender shall not be liable
or responsible for (i) any action
taken or omitted in the absence of gross
negligence or willful misconduct; or
(ii) the due execution, effectiveness,
validity or enforceability of any
document or instrument related to any
Letter of Credit or Letter of Credit
Application; provided, however, that
anything in such clauses to the contrary
notwithstanding, the Borrower may have a
claim against the Lender, and the
Lender may be liable to the Borrower, to
the extent, but only to the extent, of
any dire
