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Title: |
3-Year Revolving Credit Agreement |
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Entities: |
Bank One, NA; Chase Manhattan Bank; Comerica Bank; Corn Products International Inc.; First National Bank of Chicago; JPMorgan Chase Bank; McGraw-Hill Companies Inc.; Suntrust Capital Markets, Inc.; International Swaps & Derivatives Association, Inc.; Bank of New York |
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Date: |
2003 |
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Size: |
Preview shows 33KB of 200KB total |
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Price: |
$64 |
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ID: |
#876205 |
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3-YEAR REVOLVING CREDIT AGREEMENT
Dated as of October 15, 2002
CORN PRODUCTS INTERNATIONAL, INC., a Delaware corporation (the
"Borrower"), the banks (the "Banks") and issuers of letters of credit (the
"Initial Issuing Banks") listed on the signature pages hereof, SUNTRUST BANK
("SunTrust"), as administrative agent (the "Administrative Agent") for the
Lenders (as hereinafter defined), agree as follows:
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms.
As used in this Agreement, the following terms shall have
the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Advance" means an advance by a Lender to the Borrower as part
of a Borrowing and refers to a Base Rate Advance or a Eurodollar Rate
Advance, each of which shall be a "Type" of Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling," "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Anniversary Date" means October 15, 2003 and October 15 in
each succeeding calendar year occurring during the term of this
Agreement.
"Applicable Facility Fee" means, for each day, the rate of
interest per annum (expressed in basis points, i.e., 1/100 of 1%) set
forth below opposite the Applicable Performance Level in effect on the
immediately preceding last day of March, June, September and December,
as the case may be.
<Table>
<Caption>
Applicable Performance Applicable Facility Fee
Level
---------------------- -----------------------
<S> <C>
1 15.0
2 20.0
3 25.0
4 30.0
</Table>
1
<PAGE>
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance.
"Applicable Margin" means, at any time, the rate of interest
per annum (expressed in basis points, i.e., 1/100 of 1%) set forth
below opposite the Applicable Performance Level in effect on the first
day of the Interest Period therefor, in the case of a Eurodollar Rate
Advance or in effect, from time to time, in the case of a Base Rate
Advance.
<Table>
<Caption>
Applicable Performance Applicable Margin
Level
Base Rate Eurodollar Rate
<S> <C> <C>
1 0.00 60.0
2 0.00 90.0
3 0.00 125.0
4 0.00 145.0
</Table>
"Applicable Performance Level" shall mean the applicable level
for adjusting the Applicable Facility Fee and Applicable Margin as
follows:
<Table>
<Caption>
Applicable Performance
Level
<S> <C>
1 Interest Coverage Ratio > or = to 7.5 and Debt to EBITDA
Ratio < or = to 2.0
2 Interest Coverage Ratio > or = to 6.0 but < or = to 7.5 and Debt to
EBITDA Ratio > or = to 2.0 but < or = to 2.25
3 Interest Coverage Ratio > or = to 4.5 but < or = to 6.0 and Debt to
EBITDA Ratio > or = to 2.25 but < or = to 2.5
4 (x) Interest Coverage Ratio < or = to 4.5 or Debt to EBITDA
Ratio > or = to 2.5 or (y) Public Debt Rating is BB+ or
lower by S&P and Ba1 or lower by Moody's
</Table>
provided that (A) the Applicable Facility Fee and Applicable Margin
shall be set in accordance with Applicable Performance Level 3 until
December 31, 2002, (B) no change in the Applicable Facility Fee or the
Applicable Margin shall be effective until three Business Days after
the date on which the Administrative Agent receives financial
statements pursuant to Section 5.01(d)(i)(A) or (ii)(A) and a
certificate of an Authorized Financial Officer of the Borrower
demonstrating the Borrower's Debt to EBITDA Ratio and Interest Coverage
Ratio and (C) if the Borrower has not submitted to the Administrative
Agent the information described in clause (B) of this proviso as and
when required under Section 5.01(d)(i)(A) or (ii)(A), as the case may
be, the Applicable Facility Fee and Applicable Margin shall be at
Applicable Performance Level 4 for so long as such information has not
been received by the Administrative Agent.
2
<PAGE>
"Arranger" means SunTrust Capital Markets, Inc.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, acknowledged and
consented to by the Borrower and accepted by the Administrative Agent,
in accordance with Section 8.07 and in substantially the form of
Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section
2.17(c).
"Assumption Agreement" has the meaning specified in Section
2.17(c).
"Authorized Financial Officer" means any one of the Vice
President and Treasurer of the Borrower or any other duly authorized
corporate officer of the Borrower who is responsible for and familiar
with the financial affairs of the Borrower.
"Available Amount" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
"Bank" has the meaning specified in the recital of parties to
this Agreement.
"Base Rate" shall mean the higher of (i) the per annum rate
which the Administrative Agent publicly announces from time to time to
be its prime lending rate, as in effect from time to time, or (ii) the
Federal Funds Rate, as in effect from time to time, plus one-half of
one percent (0.50%). The Administrative Agent's prime lending rate is a
reference rate and does not necessarily represent the lowest or best
rate charged to customers. The Administrative Agent may make commercial
loans or other loans at rates of interest at, above or below the
Administrative Agent's prime lending rate. Each change in the
Administrative Agent's prime lending rate shall be effective from and
including the date such change is publicly announced as being
effective.
"Base Rate Advance" means an Advance which bears interest at a
rate per annum determined on the basis of the Base Rate, as provided in
Section 2.07(a)(i).
"Borrowing" means a borrowing consisting of simultaneous
Advances of the same Type made by each of the Lenders pursuant to
Section 2.01.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings
are carried on in the London interbank market.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder.
"Commitment" means a Revolving Credit Commitment or a Letter
of Credit Commitment.
3
<PAGE>
"Commitment Date" has the meaning specified in Section
2.18(b).
"Commitment Increase" has the meaning specified in Section
2.18(a).
"Consenting Lender" has the meaning specified in Section
2.17(b).
"Consolidated" refers to the consolidation of the accounts of
the Borrower and its Subsidiaries in accordance with generally accepted
accounting principles, including principles of consolidation,
consistent with those applied in the preparation of the Consolidated
financial statements referred to in Section 4.01(e).
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.08 or 2.09.
"Debt" means (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, debentures, notes or other similar
instruments, (iii) obligations to pay the deferred purchase price of
property or services, (iv) obligations as lessee under leases which
shall have been or should be, in accordance with generally accepted
accounting principles, recorded as capital leases, (v) all obligations
of such Person in respect of acceptances, letters of credit or similar
extensions of credit, in each case upon the issuance thereof, (vi) all
Invested Amounts, (vii) all Synthetic Lease Obligations of such Person,
(viii) obligations under direct or indirect guaranties in respect of,
and obligations (contingent or otherwise) to purchase or otherwise
acquire, or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in
clauses (i) through (vii) above, (ix) liabilities of the Borrower or
any ERISA Affiliate in respect of any Insufficiency, (x) withdrawal
liability within the meaning of Section 4201 of ERISA incurred by the
Borrower or any ERISA Affiliate to any Multiemployer Plan, (xi)
liabilities incurred by the Borrower or any ERISA Affiliate to the PBGC
upon the termination under Section 4041 or Section 4042 of ERISA of any
Plan and (xii) any increase in the amount of contributions required to
be made by the Borrower and its ERISA Affiliates in each fiscal year of
the Borrower to Multiemployer Plans over the amount of such
contributions required to be made on the date hereof due to the
reorganization or termination of any such Multiemployer Plan within the
meaning of Title IV of ERISA.
"Debt to EBITDA Ratio" means, for any Measurement Period, the
ratio of Consolidated Net Borrowed Debt of the Borrower to Consolidated
EBITDA of the Borrower and its Subsidiaries during such Measurement
Period, as determined in accordance with GAAP by reference to the
Consolidated financial statements of the Borrower required to be
delivered pursuant to Section 5.01(d)(i)(A) or (ii)(A).
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
4
<PAGE>
"EBITDA" means, for any period, an amount equal to
Consolidated net income (or net loss) of the Borrower plus the sum of
(a) interest expense (b) income tax expense, (c) depreciation expense,
(d) amortization expense and (e) minority interest earnings and minus
minority interest losses, in each case determined in accordance with
GAAP by reference to the Consolidated financial statements of the
Borrower required to be delivered pursuant to Section 5.01(d)(i)(A) or
(ii)(A).
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a commercial bank organized
under the laws of the United States, or any State thereof, having total
assets of not less than $5,000,000,000; (ii) a commercial bank having
total assets of not less than $5,000,000,000 (or its equivalent in
another currency), and organized under the laws of any other country
which is a member of the Organization for Economic Cooperation and
Development ("OECD") or has concluded special lending arrangements with
the International Monetary Fund associated with its General
Arrangements to Borrow, or a political subdivision of any such country,
provided that such bank is acting through a branch or agency located in
the United States; (iii) the central bank of any country which is a
member of the OECD; (iv) such other financial institutions as the
Administrative Agent and the Borrower may agree on from time to time;
and (v) an Affiliate of a Lender.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance
relating to the environment, health, safety or Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Borrower's controlled group or under
common control with such Person, as the case may be, within the meaning
of Section 414 of the Internal Revenue Code.
"ERISA Default" means
(a) that either
(i) any Termination Event with respect to a
Plan shall have occurred and be continuing, or
(ii) either the Borrower or any of its ERISA
Affiliates shall have been notified by the sponsor of
a Multiemployer Plan that such Person or such ERISA
Affiliate, as the case may be, has incurred
Withdrawal Liability to such Multiemployer Plan or
that such Multiemployer Plan is in reorganization or
is being terminated, within the meaning of Title IV
of ERISA, and
5
<PAGE>
(b) that at the time of such occurrence or notice the
sum of
(i) the Insufficiency of such Plan for which
a Termination Event has occurred together with the
Insufficiency of any and all other Plans with respect
to which a Termination Event shall have occurred and
then exist (or, in the case of a Plan with respect to
which a Termination Event described in clause (ii) of
the definition of Termination Event shall have
occurred and then exist, the liability related
thereto), plus
(ii) the Withdrawal Liability to such
Multiemployer Plan, determined as of the notification
date referred to in clause (a)(ii) above, together
with the aggregate amount then outstanding and
required to be paid to all other Multiemployer Plans
for which there is then a Withdrawal Liability, plus
(iii) the excess of (A) aggregate annual
contributions of the Borrower and its ERISA
Affiliates to all Multiemployer Plans for the plan
years in which such notice of reorganization has been
received over (B) the aggregate annual contributions
of such Person and its ERISA Affiliates to such
Multiemployer Plans for the plan year which includes
the date hereof,
shall equal or exceed $5,000,000.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the British Bankers' Association Interest Settlement Rate
per annum for deposits in US Dollars for a period equal to such
Interest Period appearing on the display designated as Page 3750 on the
Dow Jones Markets Service (or such other page on that service or such
other service designated by the British Bankers' Association for the
display of such Association's Interest Settlement Rates for US Dollar
deposits) as of 11:00 a.m. (London, England time) on the day that is
two Business Days prior to the first day of the Interest Period or if
such Page 3750 is unavailable for any reason at such time, the rate
which appears on the Reuters Screen ISDA Page as of such date and such
time; provided, that if the Administrative Agent determines that the
relevant foregoing sources are unavailable for the relevant Interest
Period, the Eurodollar Rate shall mean the rate of interest determined
by the Administrative Agent to
6
<PAGE>
be the average (rounded upward, if necessary, to the nearest 1/100th of
1%) of the rates per annum at which deposits in US Dollars are offered
to the Administrative Agent two (2) Business Days preceding the first
day of such Interest Period by leading banks in the London interbank
market as of 10:00 a.m. (London, England time) for delivery on the
first day of such Interest Period, for the number of days comprised
therein and in an amount comparable to the amount of the Eurodollar
Rate Advance of the Administrative Agent by (b) a percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such Interest
Period.
"Eurodollar Rate Advance" means an Advance which bears
interest at a rate per annum determined on the basis of the Eurodollar
Rate, as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" of any Lender for any
Interest Period for all Eurodollar Rate Advances comprising part of the
same Borrowing means the reserve percentage applicable two Business
Days before the first day of such Interest Period under regulations
issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal
Reserve System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference
to which the interest rate on Eurodollar Rate Advances is determined)
having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Extension Date" has the meaning specified in Section 2.17(b).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Hazardous Materials" means petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, radon gas and any other chemicals,
materials or substances designated, classified or regulated as being
"hazardous" or "toxic," or words of similar import, under any federal,
state, local or foreign statute, law, ordinance, rule, regulation,
code, order, judgment, decree or judicial or agency interpretation,
policy or guidance.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
7
<PAGE>
"Increase Date" has the meaning specified in Section 2.18(a).
"Increasing Lender" has the meaning specified in Section
2.18(b).
"Insufficiency" means, with respect to any Plan, the amount, if any, of
its unfunded benefit liabilities within the meaning of Section
4001(a)(18) of ERISA.
"Interest Coverage Ratio" means for any Measurement Period,
the ratio of Consolidated EBITDA of the Borrower and its Subsidiaries
during such Measurement Period to interest payable on, and amortization
of debt discount in respect of, all Debt during such Measurement Period
by the Borrower and its Subsidiaries.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of Conversion of any
Base Rate Advance into such Eurodollar Rate Advance and ending on the
last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each Interest Period shall be one,
two, three or six months, and if available to all Lenders, nine or
twelve months, in each case as the Borrower may, upon notice received
by the Administrative Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the first day of such Interest
Period, select; provided, however, that:
(w) the duration of any Interest Period which
commences before the Termination Date and would otherwise end
after the Termination Date shall end on the Termination Date
(subject to Section 8.04(b));
(x) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(y) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(z) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Invested Amounts" means the amounts invested by investors,
other than Affiliates of the Borrower, in connection with receivables
securitization programs to which accounts receivable originated by the
Borrower or its Subsidiaries are subject, where such invested amounts
are in part reduced by the aggregate amounts received by
8
<PAGE>
such investors from the payment of amounts owing in connection with
such accounts receivable originated by the Borrower or its
Subsidiaries.
"Issuing Bank" means each Initial Issuing Bank or any Eligible
Assignee to which a portion of the Letter of Credit Commitment
hereunder has been assigned pursuant to Section 8.07 so long as such
Eligible Assignee expressly agrees to perform in accordance with their
terms all of the obligations that by the terms of this Agreement are
required to be performed by it as an Issuing Bank and notifies the
Administrative Agent of its Applicable Lending Office (which
information shall be recorded by the Administrative Agent in the
Register), for so long as such Initial Issuing Bank or Eligible
Assignee, as the case may be, shall have a Letter of Credit Commitment.
"L/C Cash Collateral Account" means an interest bearing cash
collateral account to be established and maintained by the
Administrative Agent, over which the Administrative Agent shall have
sole dominion and control, upon terms as may be satisfactory to the
Administrative Agent.
"L/C Related Documents" has the meaning specified in Section
2.07(b)(i).
"Lenders" means the Banks, the Issuing Banks, each Assuming
Lender that shall become a party hereto pursuant to Section 2.17 or
2.18 and each Eligible Assignee that shall become a party hereto
pursuant to Section 8.07.
"Letter of Credit" has the meaning specified in Section
2.01(b).
"Letter of Credit Agreement" has the meaning specified in
Section 2.03(a).
"Letter of Credit Commitment" means, with respect to each
Initial Issuing Bank, the amount set forth opposite such Initial
Issuing Bank's name on the signature pages hereto under the caption
"Letter of Credit Commitment" or, if such Initial Issuing Bank has
entered into one or more Assignment and Acceptances, the amount set
forth for such Issuing Bank in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d) as such Issuing Bank's
"Letter of Credit Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
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