EXHIBIT 10.73
RECEIVABLES PURCHASE AGREEMENT
between
IMC-AGRICO COMPANY
as Seller
and
IMC-AGRICO RECEIVABLES COMPANY L.L.C.
as Purchaser
Dated as of June 27, 1997
RECEIVABLES PURCHASE AGREEMENT
This RECEIVABLES PURCHASE AGREEMENT, dated as of June 27,
1997 (as amended, supplemented or otherwise modified and in effect from
time to time, this "Agreement"), between IMC-AGRICO COMPANY, a Delaware
general partnership, as seller and collection agent (the "Seller" or
the "Collection Agent") and IMC-AGRICO RECEIVABLES COMPANY L.L.C., a
Delaware limited liability company, as purchaser (the "Purchaser").
W I T N E S S E T H :
WHEREAS, the Purchaser desires to purchase from time to time
certain accounts receivable existing on the Closing Date and generated
thereafter in the normal course of the Seller's business;
WHEREAS, the Seller desires to sell and assign from time to
time such certain accounts receivable to the Purchaser upon the terms
and conditions hereinafter set forth;
WHEREAS, the Collection Agent has agreed to service the ac
counts receivable sold to the Purchaser by the Seller hereunder;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is hereby
agreed by and between the Purchaser and the Seller as follows:
ARTICLE Numbering in use:
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. All capitalized terms used herein
shall have the meanings specified herein or, if not so specified, the
meaning specified in, or incorporated by reference into, the Transfer
Agreement, and shall include in the singular number the plural and in
the plural number the singular:
"Advance" shall have the meaning specified in Section 3.2(a).
"Certificate" shall mean the Purchase Certificate executed by
the Seller evidencing the transfer of Receivables hereunder.
"Closing Date" shall mean June 30, 1997.
"Company" shall mean Enterprise Funding Corporation, a
Delaware corporation, as purchaser under the Transfer Agreement.
"Cut-Off Date" shall mean June 27, 1997.
"Eligible Receivable" shall have the meaning specified in the
Transfer Agreement.
"Event of Bankruptcy" shall have the meaning specified in the
Transfer Agreement.
"Outstanding Balance" shall have the meaning specified in the
Transfer Agreement.
"Purchase Date" shall have the meaning assigned in Section
3.2(b) hereof.
"Purchase Discount" shall mean .65% or such other Purchase
Discount as may be agreed upon by the Purchaser and Seller on or prior
to the Purchase Date, which Purchase Discount shall be calculated to
yield a Purchase Price which approximates the expected present value of
the Receivables but allows the Purchaser a reasonable return with re
spect to such Purchase. The amount of the Purchase Discount shall
include an amount equal to the servicing fee to be paid to the
Collection Agent by the Purchaser.
"Purchase Period" shall mean, with respect to Receivables
sold by the Seller to the Purchaser after the Closing Date, the period
reported upon in the most recent Investor Report delivered after the
Closing Date.
"Purchase Price" shall have the meaning set forth in Section
3.1 hereof.
"Purchaser" shall mean IMC-Agrico Receivables Company L.L.C.,
a Delaware limited liability company, and its successors and permitted
assigns.
"Receivable" shall mean, for purposes of this Agreement, the
indebtedness owed to the Seller by any Obligor under a Contract whether
constituting an account, chattel paper, instrument or general intangi
ble, arising in connection with the sale or lease of merchandise or the
rendering of services by the Seller and includes the right to payment
of any Finance Charges and other obligations of such Obligor with re
spect thereto.
"Related Security" shall mean, with respect to any
Receivable, all of the Seller's right, title and interest in, to and
under:
(i) all of the Seller's interest, if any, in the
merchandise (including returned or repossessed merchandise),
if any, the sale of which by the Seller to the relevant
Obligor gave rise to such Receivable;
(ii) all other security interests or liens and
property subject thereto from time to time, if any, pur
porting to secure payment of such Receivable, whether
pursuant to the Contract related to such Receivable or
otherwise, together with all financing statements signed by
an Obligor describing any collateral securing such Receiv
able;
(iii) all guarantees, indemnities, warranties,
insurance (and proceeds and premium refunds thereof) or other
agreements or arrangements of any kind from time to time sup
porting or securing payment of such Receivable whether
pursuant to the Contract related to such Receivable or other
wise;
(iv) all Records related to such Receivables; and
(v) all Proceeds of any of the foregoing.
"Relevant UCC" with respect to any state shall mean the Uni
form Commercial Code as in effect in such state.
"Secured Obligations" shall have the meaning set forth in
Section 2.1(d) hereof.
"Subordinated Note" shall have the meaning specified in
Section 3.2(b).
"Termination Date" shall have the meaning specified in
Section 8.1.
"Transfer Agreement" shall mean the Transfer and
Administration Agreement, dated as of June 27, 1997, by and among IMC-
Agrico Company, individually and as Collection Agent, IMC-Agrico
Receivables Company L.L.C., as Transferor and Enterprise Funding Corpo
ration, as such agreement may be amended, modified or supplemented from
time to time.
SECTION 1.2 Other Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principles. All terms used in Article 9
of the Relevant UCC, and not specifically defined herein, are used
herein as defined in such Article 9.
SECTION 1.3 Computation of Time Periods. Unless otherwise
stated in this Agreement, in the computation of a period of time from a
specified date to a later specified date, the word "from" means "from
and including" and the words "to" and "until" each means "to but
excluding."
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ARTICLE II
PURCHASE, CONVEYANCE AND SERVICING OF RECEIVABLES
SECTION 2.1. Sale. (a) Upon the terms and subject to the
conditions set forth herein, the Seller hereby sells, assigns,
transfers and conveys to the Purchaser, and the Purchaser hereby
purchases from the Seller, on the terms and subject to the conditions
specifically set forth herein, and without recourse except as otherwise
provided in Article VI, all of the Seller's right, title and interest,
whether now owned or hereafter acquired, in, to and under the Receiv
▇▇▇▇▇ outstanding on the Closing Date and thereafter owned by the
Seller, through any Termination Date (but not thereafter), together
with all Related Security and Collections with respect thereto and all
proceeds of the foregoing. The foregoing sale, assignment, transfer
and conveyance does not constitute an assumption by the Purchaser of
any obligations of the Seller or any other Person to Obligors or to any
other Person in connection with the Receivables or the Contracts
related thereto or under any Related Security and instrument relating
to the Receivables.
(b) In connection with the foregoing sale, the Seller agrees
to record and file on or prior to the Closing Date, at its own expense,
a financing statement or statements with respect to the Receivables and
the other property described in Section 2.1(a) sold by the Seller here
under meeting the requirements of applicable state law in such manner
and in such jurisdictions as are necessary to perfect and protect the
interests of the Purchaser created hereby under the Relevant UCC
against all creditors of and purchasers from the Seller, and to deliver
either the originals of such financing statements or a file-stamped
copy of such financing statements or other evidence of such filings to
the Purchaser on the Closing Date.
(c) The Seller agrees that from time to time, at its
expense, it will promptly execute and deliver all instruments and
documents and take all actions as may be necessary or as the Purchaser
may reasonably request in order to perfect or protect the interest of
the Purchaser in the Receivables purchased hereunder or to enable the
Purchaser to exercise or enforce any of its rights hereunder. Without
limiting the foregoing, the Seller will, in order to accurately reflect
this purchase and sale transaction, execute and file such financing or
continuation statements or amendments thereto or assignments thereof
(as permitted pursuant hereto) as may be requested by the Purchaser,
and upon the request of the Purchaser, ▇▇▇▇ its master data processing
records and other documents with a legend describing the purchase by
the Purchaser of the Receivables and the subsequent transfer thereof to
the Company pursuant to the Transfer Agreement and stating "THE
RECEIVABLES IN THESE FILES HAVE BEEN ACQUIRED BY AND CONVEYED TO IMC-
AGRICO RECEIVABLES COMPANY L.L.C. (the "L.L.C.") PURSUANT TO THE
RECEIVABLES PURCHASE AGREEMENT DATED AS OF JUNE 27, 1997 BETWEEN IMC-
AGRICO COMPANY AND THE L.L.C., AND AN INTEREST THEREIN HAS BEEN AS
SIGNED BY THE L.L.C. TO ENTERPRISE FUNDING CORPORATION PURSUANT TO THE
TRANSFER AND ADMINISTRATION AGREEMENT DATED AS OF JUNE 27, 1997, AS
AMENDED FROM TIME TO TIME, AMONG IMC-AGRICO RECEIVABLES COMPANY L.L.C.,
IMC-AGRICO COMPANY AND ENTERPRISE FUNDING CORPORATION." The Seller
shall, upon request of the Purchaser, obtain such additional search
reports as the Purchaser shall request. To the fullest extent
permitted by applicable law, the Purchaser shall be permitted to sign
and file continuation statements and amendments thereto and assignments
thereof without the Seller's signature. Carbon, photographic or other
reproduction of this Agreement or any financing statement shall be
sufficient as a financing statement.
(d) It is the express intent of the Seller and the Purchaser
that the conveyance of the Receivables by the Seller to the Purchaser
pursuant to this Agreement be construed as a "sale of accounts," as
such term is used in Article 9 of the Relevant UCC, by the Seller to
the Purchaser, which sale is absolute and irrevocable and provides the
Purchaser with the full benefits of ownership of such Receivables. Fur
ther, it is not the intention of the Seller and the Purchaser that such
conveyance be deemed a grant of a security interest in the Receivables
by the Seller to the Purchaser to secure a debt or other obligation of
the Seller. However, in the event that, notwithstanding the express
intent of the parties, the Receivables are construed to constitute
property of the Seller, then (i) this Agreement also shall be deemed to
be, and hereby is, a security agreement within the meaning of the Rele
vant UCC; and (ii) the conveyance by the Seller provided for in this
Agreement shall be deemed to be, and the Seller hereby grants to the
Purchaser, a security interest in, to and under all of the Seller's
right, title and interest in, to and under the Receivables outstanding
on the Closing Date and thereafter owned by the Seller, together with
all Related Security and Collections with respect thereto and all pro
ceeds of the foregoing, to secure the rights of the Purchaser set forth
in this Agreement or as may be determined in connection therewith by
applicable law (collectively, the "Secured Obligations"). The Seller
and the Purchaser shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that the security
interest in the Receivables created hereby, whether deemed to be an
ownership interest as intended by the parties hereto or a security
interest to secure the Secured Obligations, would in each such event,
be deemed to be a perfected security interest in favor of the Purchaser
under applicable law and will be maintained as such throughout the term
of this Agreement.
SECTION 2.2. Servicing of Receivables. The servicing,
administering and collection of the Receivables shall be conducted by
the Seller, which hereby agrees to perform, take or cause to be taken
all such action as may be necessary or advisable to collect each
Receivable from time to time, all in accordance with applicable laws,
rules and regulations and with the care and diligence which the Seller
employs in servicing similar receivables for its own account, in accor
dance with the Credit and Collection Policy. The Purchaser hereby ap
points the Seller as its agent to enforce the Purchaser's rights and
interests in, to and under the Receivables, the related Contracts, the
Related Security and the Collections with respect thereto. The Seller
shall hold in trust for the Purchaser, in accordance with its inter
ests, all Records which evidence or relate to the Receivables, the
related Contracts, Related Security, Collections and proceeds with re
spect thereto. Notwithstanding anything to the contrary contained here
in, from and after the occurrence of a Termination Event (as defined in
the Transfer Agreement) or a Collection Agent default under the Trans
fer Agreement, the Company shall have the absolute and unlimited right
to terminate the Seller's servicing activities described in this Sec
tion 2.2. In consideration of the foregoing, the Purchaser agrees to
pay the Seller a servicing fee of 0.75% per annum on the aggregate Out
standing Balance of Receivables sold, payable monthly, for its perfor
▇▇▇▇▇ of the duties and obligations described in this Section 2.2;
provided that any such monthly payment shall be reduced by any amounts
payable in such month by the Company to the Seller, in its capacity as
Collection Agent pursuant to the Transfer Agreement.
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(FOR CONSISTENCY PURPOSES)
ARTICLE III
CONSIDERATION AND PAYMENT; RECEIVABLES
SECTION 3.1. Purchase Price. The Purchase Price for the
Receivables and related property conveyed to the Purchaser by the
Seller under this Agreement shall be a dollar amount equal to (a) for
Receivables transferred by Seller on the date of the Initial Closing
Date, the product of (i) the aggregate Outstanding Balance of all
Receivables as of the Initial Closing Date, and (ii) one minus the then
applicable Purchase Discount, and (b) for Receivables transferred by
the Seller on any date thereafter, the product of (i) the aggregate Out
standing Balance of the Receivables sold on such date and (ii) one
minus the Purchase Discount applicable on the Purchase Date.
SECTION 3.2. Payment of Purchase Price. (a) The Purchase
Price for the Receivables sold on the Closing Date shall be paid (i) by
payment of $49,300,000 in immediately available funds, (ii) through an
advance under the Subordinated Note (such advance and any advance
thereunder as contemplated by Section 3.2(b), each an "Advance") in the
amount of $19,052,535.46 and (iii) the balance of the Purchase Price
shall be deemed paid as a contribution to the capital of the Purchaser
by the Seller of Receivables.
(b) The Purchase Price for the Receivables sold by the
Seller on any date after the date hereof (each, a "Purchase Date")
shall be paid either (i) in cash or (ii) if Purchaser does not have
sufficient cash to pay the Purchase Price, by means of (A) an Advance
under the Subordinated Note or (B) with the consent of the Seller, capi
tal contributed by the Seller to the Purchaser in the form of a con
tribution of the additional Receivables or contribution of cash in the
requisite amount or (iii) with the consent of the Seller, any combina
tion of the foregoing. Any cash contributions pursuant to the
immediately preceding sentence may be paid by a reduction in the Pur
chase Price to be paid to the Seller on such date. In the event the
Purchaser does not have sufficient cash to pay the Purchase Price due
on any Purchase Date and the Seller is not willing to consent to the
payment of such insufficiency by means of a capital contribution, such
insufficiency shall be evidenced by the making of an Advance on such
Purchase Date in an original principal amount equal to such cash short
fall owed to the Seller, provided, however that no Advance shall be
made if immediately thereafter the Net Worth of the Purchaser would be
less than 10% of the Outstanding Balance of all Eligible Receivables as
most recently calculated by the Collection Agent at such time. All Ad
vances made by the Seller to the Purchaser shall be evidenced by a
single subordinated note, duly executed on behalf of the Purchaser, in
substantially the form of Exhibit B annexed hereto, delivered and
payable to the Seller in a principal amount equal to $50,000,000 (the
"Subordinated Note"). The Seller is hereby authorized by the Purchaser
to endorse on the schedule attached to the Subordinated Note (or a
continuation of such schedule attached thereto and made a part thereof)
an appropriate notation evidencing the date and amount of each Advance,
as well as the date and amount of each payment with respect thereto;
provided, however, that the failure of any Person to make such a
notation shall not affect any obligations of the Purchaser thereunder.
Any such notation shall be conclusive and binding as to the date and
amount of such Advance, or payment of principal or interest thereon,
absent manifest error.
(c) The terms and conditions of the Subordinated Note and
all Advances thereunder shall be as follows:
(i) Repayment of Advances. All amounts paid by the
Purchaser with respect to the Advances shall be allocated first to the
repayment of accrued interest until all such interest is paid, and then
to the outstanding principal amount of the Advances. Subject to the
provisions of this Agreement, the Purchaser may borrow, repay and
reborrow Advances on and after the date hereof and prior to the
termination of this Agreement, subject to the terms, provisions and
limitations set forth herein.
(ii) Interest. The Subordinated Note shall bear
interest from its date on the outstanding principal balance thereof at
a rate per annum equal to one month LIBOR plus one and one-quarter
(1.25%) percent as published in the Money Rates Section of The Wall
Street Journal. Interest on each Advance shall be computed based on
the number of days elapsed in a year of 360 days and shall be payable
monthly.
(iii) Sole and Exclusive Remedy/Subordination. The
Purchaser shall be obligated to repay Advances to the Seller only to
the extent of funds available to the Purchaser after making any
required payments to the Company under the Transfer Agreement and, to
the extent that such payments are insufficient to pay all amounts owing
to the Seller under the Subordinated Note, the Seller shall not be
entitled to enforce any claim against the Purchaser for payment of such
amounts unless and until such date following the Termination Date when
the Net Investment has been reduced to zero. The Subordinated Note
shall be fully subordinated to any rights of the Company, and its per
mitted assigns pursuant to the Transfer Agreement, and shall not evi
dence any rights in the Receivables.
(iv) Offsets, etc. The Purchaser may offset any amount
due and owing by the Seller against any amount due and owing by Pur
chaser to the Seller under the terms of the Subordinated Note.
SECTION 3.3. Daily and Monthly Reports. (a) On
each Determination Date, the Seller shall deliver to the Purchaser a
report covering the preceding Collection Period, substantially in the
form of the Investor Report attached as Exhibit E to the Transfer Agree
ment, showing (i) the aggregate Purchase Price of Receivables acquired
or generated by the Seller in the preceding Collection Period and (ii)
the aggregate Outstanding Balance of such Receivables that are Eligible
Receivables as of the last day of such preceding Collection Period.
(b) The Seller will provide to the Purchaser on each Busi
ness Day a report of daily sales and a report of daily cash receipts.
Prior to the fifteenth day of each month, the Seller will provide to
the Purchaser a report which reconciles Receivables purchased by the
Purchaser during the preceding calendar month and cash payments made by
the Purchaser to the Seller during such month. If, as a result of the
foregoing reconciliation, it is discovered that the Seller retained
Collections on any day which it was not otherwise entitled to retain
(whether as Purchase Price for Receivables, repayments of principal or
payments of interest on the Subordinated Note, servicing compensation,
returns of capital or otherwise), the Seller shall pay interest to the
Purchaser on the average daily amount of the excess funds so retained
by the Seller during the prior month. Such interest shall be payable
on the second Business Day following receipt of the reconciliation
report and shall accrue at an interest rate equal to that then payable
by the Purchaser under the Subordinated Note. Prior to the Termination
Date, unless Seller has received notice from the Company that the
Purchaser is in default of its payment obligations under the Transfer
Agreement, the Seller's interest obligation may be paid by a reduction
in the Purchase Price otherwise paid by the Purchaser on such date or
by a reduction in amounts otherwise owed by the Purchaser under the
Subordinated Note.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Seller's Representations and Warranties. The
Seller represents and warrants to the Purchaser as of the Closing Date
and shall be deemed to represent and warrant as of the date of the
creation of any sale of any interest in Receivables to the Purchaser
pursuant to this Agreement that:
(a) Corporate Existence and Power. The Seller is a general
partnership formed and validly existing under the laws of the State of
Delaware and has all power and all material governmental licenses,
authorizations, consents and approvals required to carry on its
business in each jurisdiction in which its business is now conducted
where the failure to have such governmental licenses, authorizations,
consents and approvals would have a material adverse effect on (i) the
Seller's business or properties, (ii) the Seller's ability to perform
its obligations hereunder or (iii) the Purchaser's interest in the
Receivables.
(b) Partnership and Governmental Authorization; Contraven
tion. The execution, delivery and performance by the Seller of this
Agreement are within the Seller's partnership powers, have been duly
authorized by all necessary partnership action, require no action by or
in respect of, or filing with, any Official Body or official thereof
(except for the filing of UCC financing statements as required by this
Agreement), and do not contravene, or constitute a default under, any
provision of applicable law, rule or regulation or of the partnership
agreement of the Seller or of any agreement, judgment, injunction,
order, writ, decree or other instrument binding upon the Seller or
result in the creation or imposition of any Adverse Claim on the assets
of the Seller or any of its Subsidiaries (except those created by this
Agreement).
(c) Binding Effect. This Agreement will constitute the
legal, valid and binding obligation of the Seller, enforceable against
the Seller in accordance with its terms, subject to applicable bank
ruptcy, insolvency, moratorium or other similar laws affecting the
rights of creditors generally.
(d) Perfection. Immediately preceding the sale of the Re
ceivables and related property pursuant to this Agreement, the Seller
was the owner of all of the Receivables, free and clear of all Adverse
Claims. On or prior to the date of each sale of Receivables pursuant
to this Agreement, all financing statements and other documents re
quired to be recorded or filed in order to perfect and protect the
ownership interest of the Purchaser in and to the Receivables against
all creditors of and purchasers from the Seller will have been duly
filed in each filing office necessary for such purpose and all filing
fees and taxes, if any, payable in connection with such filings shall
have been paid in full.
(e) Accuracy of Information. To the best of its knowledge,
all information heretofore furnished by the Seller to the Purchaser,
the Administrative Agent or the Company for purposes of or in connec
tion with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Seller to the Purchas
er, the Administrative Agent and the Company will be, true and accurate
in every material respect, on the date such information is stated or
certified.
(f) Tax Status. The Seller has filed all material tax re
turns (federal, state and local) required to be filed and has paid or
made adequate provision for the payment of all taxes, assessments and
other governmental charges on or before the date such taxes were due,
taking into account any extension of such due date.
(g) Action, Suits. Except as set forth in Exhibit H-2 of
the Transfer Agreement, there are no actions, suits or proceedings
pending or, to the knowledge of the Seller, probable of assertion,
against the Seller or any Affiliate of the Seller or their respective
properties, in or before any court, arbitrator or other body, which
question the validity of the transactions contemplated hereby or which,
individually or in the aggregate, could be reasonably expected to have
a material adverse effect of the Seller's ability to perform its obliga
tions under this Agreement.
(h) Place of Business. The principal place of business and
chief executive office of the Seller is located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇-▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and the offices where the Seller
keeps all its Records, are located at the address(es) described on
Exhibit C hereto or such other locations notified to the Purchaser in
accordance with this Agreement in jurisdictions where all action re
quired by the terms of this Agreement has been taken and completed.
(i) Good Title. Upon the sale of the Receivables and relat
ed property to the Purchaser pursuant to this Agreement, assuming that
the Purchaser takes all action required under this Agreement, the Pur
chaser shall acquire a valid and perfected first priority ownership
interest in such Receivables and Related Security, which interest, to
the extent such interest can be created under Article 9 of the UCC and
perfected by the filing of financing statements, constitutes a valid
and perfected first priority security interest in each Receivable (and
in the Related Security, Collections and Proceeds with respect thereto)
that exists on the date of this Agreement and in each Receivable there
after owned by the Seller and in the Related Security, Collections and
Proceeds with respect thereto until the Termination Date in each case
free and clear of any Adverse Claim.
(j) Tradenames, Etc. As of the date hereof: (i) the
Seller's chief executive office is located at the address for notices
set forth in Section 9.3; (ii) the Seller has only the subsidiaries and
divisions listed on Exhibit D hereto; and (iii) the Seller has, within
the last five (5) years, operated only under the tradenames identified
in Exhibit D hereto, and, within the last five (5) years, has not
changed its name, merged with or into or consolidated with any other
corporation or been the subject of any proceeding under ▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ Code (Bankruptcy), except as disclosed in Exhibit D
hereto.
(k) Nature of Receivables. Each Receivable (x) represented
by the Seller to be an Eligible Receivable or (y) included in the
calculation of the Net Receivables Balance, in fact satisfies at such
time the definition of "Eligible Receivable" set forth in the Transfer
Agreement and is an "eligible asset" as defined in Rule 3a-7 under the
Investment Company Act of 1940, as amended.
(l) Amount of Receivables. As of the Cut-Off Date, the
aggregate Outstanding Balance of the Receivables in existence was at
least $77,556,653.71.
(m) Credit and Collection Policy. Since February 20, 1997,
there have been no material changes in the Credit and Collection
Policy.
(n) Collections and Servicing. Since February 20, 1997,
there has been no material adverse change in the ability of the Seller
to service and collect the Receivables.
(o) Not an Investment Company. The Seller is not, and is
not controlled by, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or is exempt from all provi
sions of such Act.
(p) ERISA. The Seller is in compliance in all material
respects with ERISA and no lien in favor of the Pension Benefit
Guaranty Corporation on any of the Receivables shall exist.
(q) Lock-Box Accounts. The names and addresses of all the
Lock-Box Banks, together with the account numbers of the Lock-Box
Accounts at such Lock-Box Banks, are specified in Exhibit C to the
Transfer Agreement (or at such other Lock-Box Banks and/or with such
other Lock-Box Accounts as have been notified to the Administrative
Agent and for which Lock-Box Agreements have been executed in accor
dance with Section 2.8(b) of the Transfer Agreement and delivered to
the Collateral Agent). All Obligors have been instructed to make pay
ment to a Lock-Box Account and only Collections are deposited into the
Lock-Box Accounts.
(r) Bulk Sales. No transaction contemplated by this
Agreement requires compliance with any bulk sales act or similar law.
(s) Preference; Voidability. The Seller warrants that the
conveyance of the applicable Receivables and Collections and Related
Security to the Purchaser, and each such conveyance, shall not have
been made for or on account of an antecedent debt owed by the Seller to
the Purchaser and no such transfer is or may be voidable under any
Section of the Bankruptcy Reform Act of 1978 (11 U.S.C. 101 et
seq.), as amended.
(t) Use of Proceeds. No proceeds of any purchase hereunder
will be used by the Seller to acquire any security in any transaction
which is subject to Section 13 or 14 of the Securities and Exchange Act
of 1934, as amended;
SECTION 4.2. Reaffirmation of Representations and Warranties
by the Seller; Notice of Breach. On each sale date, the Seller, by ac
cepting the proceeds of such sale, shall be deemed to have certified
that all representations and warranties described in Section 4.1 are
true and correct on and as of such day as though made on and as of such
day. The representations and warranties set forth in Section 4.1 shall
survive the conveyance of the Receivables to the Purchaser, and termina
tion of the rights and obligations of the Purchaser and the Seller
under this Agreement. Upon discovery by the Purchaser or the Seller of
a breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the
other within three Business Days of such discovery.
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ARTICLE V
COVENANTS OF THE SELLER
SECTION 5.1. Covenants of the Seller. The Seller hereby
covenants and agrees with the Purchaser that, for so long as this Agree
ment is in effect, and until all Receivables have been sold to the
Purchaser pursuant hereto, shall have been paid in full or written-off
as uncollectible, and any amounts owed by the Seller pursuant to this
Agreement have been paid in full, unless the Purchaser otherwise
consents in writing, the Seller covenants and agrees as follows:
(a) Conduct of Business. The Seller will, and will cause
each of its Subsidiaries to, carry on and conduct its business in sub
stantially the same manner and in substantially the same fields of
enterprise as it is presently conducted and do all things necessary to
remain duly incorporated, validly existing and in good standing as a
domestic partnership in its jurisdiction of formation and will maintain
all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
(b) Compliance with Laws. The Seller will, and will cause
each of its Subsidiaries to, comply in all material respects with all
laws, rules, regulations, orders, writs, judgments, injunctions,
decrees or awards to which it or its properties may be subject.
(c) Furnishing of Information and Inspection of Records.
The Seller will furnish to the Purchaser from time to time such informa
tion with respect to the Receivables as the Purchaser may reasonably re
quest, including, without limitation, listings identifying the Obligor
and the Outstanding Balance for each Receivable. The Seller will at
any time and from time to time during regular business hours permit the
Purchaser, or its agents or representatives, (i) to examine and make
copies of and abstracts from all Records and (ii) to visit the offices
and properties of the Seller for the purpose of examining such Records,
and to discuss matters relating to Receivables or the Seller's perfor
▇▇▇▇▇ hereunder with any of the officers, directors, employees or inde
pendent public accountants of the Seller having knowledge of such mat
ters.
(d) Keeping of Records and Books of Account. The Seller
will maintain a system of accounting established and administered in
accordance with generally accepted accounting principles, consistently
applied, and will maintain and implement administrative and operating
procedures (including, without limitation, an ability to recreate
records evidencing Receivables in the event of the destruction of the
originals thereof), and keep and maintain, all documents, books,
records and other information reasonably necessary or advisable for the
collection of all Receivables (including, without limitation, records
adequate to permit the daily identification of each new Receivable and
all Collections of and to permit the periodic identification of adjust
ments to each existing Receivable). The Seller will give the Purchaser
and the Administrative Agent notice of any material change in the admin
istrative and operating procedures of the Seller referred to in the
previous sentence.
(e) Performance and Compliance with Receivables and
Contracts. The Seller, at its expense, will timely and fully perform
and comply with all material provisions, covenants and other promises
required to be observed by it under the Contracts related to the Receiv
▇▇▇▇▇.
(f) Credit and Collection Policies. The Seller will comply
in all material respects with the Credit and Collection Policy in
regard to each Receivable and the related Account.
(g) Collections. The Seller shall instruct all Obligors to
cause all Collections to be deposited directly to a Lock-Box Account.
(h) Collections Received. The Seller shall hold in trust,
and deposit, immediately, but in any event not later than the close of
business on the second Business Day following its receipt thereof, to a
Lock-Box Account all Collections received from time to time by the
Seller.
(i) Sale Treatment. The Seller agrees to treat this
conveyance for all purposes (including, without limitation, tax and
financial accounting purposes) as a sale and, to the extent any such
reporting is required, shall report the transactions contemplated by
this Agreement on all relevant books, records, tax returns, financial
statements and other applicable documents as a sale of the Receivables
to the Purchaser.
(j) ERISA. The Seller shall promptly give the Purchaser
written notice upon becoming aware that the Seller or any of its
Subsidiaries is not in compliance in all material respects with ERISA
or that any ERISA lien on any of the Receivables exists.
(k) The Seller shall provide to the Purchaser all financial
statements required by Section 5.l(a)(i) of the Transfer Agreement.
SECTION 5.2. Negative Covenants of the Seller. During the
term of this Agreement, unless the Administrative Agent and the
Purchaser shall otherwise consent in writing:
(a) No Sales, Liens, Etc. Except as otherwise provided
herein, the Seller will not sell, assign (by operation of law or other
wise) or otherwise dispose of, or create or suffer to exist any Adverse
Claim upon (or the filing of any financing statement) or with respect
to, any inventory or goods, the sale of which will give rise to a Re
ceivable, or any Receivable or related Contract, or upon or with
respect to any account which concentrates in a Lock-Box Bank to which
any Collections of any Receivable are sent, or assign any right to re
ceive income in respect thereof.
(b) No Extension or Amendment of Receivables. The Seller
will not extend, amend or otherwise modify the terms of any Receivable,
or amend, modify or waive any term or condition of any Account related
thereto, except as provided in Sections 5.2 and 6.2 of the Transfer
Agreement.
(c) No Change in Business or Credit and
Collection Policy. The Seller will not make any material change in the
character of its business or in the Credit and Collection Policy, which
change would, in either case, impair the collectibility of any Receiv
able.
(d) Change in Payment Instructions to Obligors. The Seller
will not add or terminate any bank as a Lock-Box Bank or any account as
a Lock-Box Account to or from those listed in Exhibit C to the Transfer
Agreement or make any change in its instructions to Obligors regarding
payments to be made to any Lock-Box Account, unless (i) such instruc
tions are to deposit such payments to another existing Lock-Box Account
or (ii) the Administrative Agent shall have received written notice of
such addition, termination or change at least 30 days prior thereto and
the Administrative Agent shall have received a Lock-Box Agreement exe
cuted by each new Lock-Box Bank or an existing Lock-Box Bank with
respect to each new Lock-Box Account, as applicable.
(e) Deposits to Lock-Box Accounts. The Seller will not
deposit or otherwise credit, or cause or permit to be so deposited or
credited, to any Lock-Box Account cash or cash proceeds other than
Collections of Receivables.
(f) Change of Name, Etc. The Seller will not change its
name, identity or structure or its chief executive office, unless at
least 10 days prior to the effective date of any such change the Seller
delivers to the Purchaser and the Collateral Agent (i) such documents,
instruments or agreements, including, without limitation, appropriate
financing statements under the Relevant UCC, executed by the Seller
necessary to reflect such change and to continue the perfection of the
Purchaser's and any assignee's interest in the Receivables and (ii) new
or revised Lock-Box Agreements which reflect such change and enable the
Collateral Agent to exercise its rights under Section 2.8 of the Trans
fer Agreement.
(g) Separate Business. The Seller shall not: (i) fail to
maintain separate books, financial statements, accounting records and
other corporate documents from those of the Purchaser, (ii) commingle
any of its assets or the assets of any of its Affiliates with those of
the Purchaser, (iii) pay from its own assets any obligation or
indebtedness of any kind incurred by the Purchaser, (iv) directly, or
through any of its Affiliates, borrow funds or accept credit or
guaranties from the Purchaser except pursuant to this Agreement in con
nection with the purchase of the Receivables.
(h) No Mergers, Etc. The Seller will not (i) consolidate or
merge with or into any other Person, or (ii) sell, lease or transfer
all or substantially all of its assets to any other person.
SECTION 5.3. Indemnification. The Seller agrees to indem
nify, defend and hold the Purchaser harmless from and against any and
all loss, liability, damage, judgment, claim, deficiency, or expense
(including interest, penalties, reasonable attorneys' fees and amounts
paid in settlement) to which the Purchaser or any assignee thereof may
become subject insofar as such loss, liability, damage, judgment,
claim, deficiency, or expense arises out of or is based upon a breach
by the Seller of its representations, warranties and covenants con
tained herein, or any information certified in any schedule or
certificate delivered by the Seller hereunder, being untrue in any
material respect at any time. The obligations of the Seller under this
Section 5.3 shall be considered to have been relied upon by the
Purchaser and the Company and shall survive the execution, delivery,
performance and termination of this Agreement, regardless of any inves
tigation made by the Purchaser, the Company or the Administrative Agent
or on behalf of any of them.
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ARTICLE VI
REPURCHASE OBLIGATION
SECTION 6.1. Mandatory Repurchase.
(a) Breach of Warranty. If on any day any Receivable which
has been sold by the Seller hereunder and which has been reported by
the Seller as an Eligible Receivable, shall fail to meet the conditions
set forth in the definition of "Eligible Receivable" (except to the
extent such conditions expressly relate to an earlier date or such
failure relates to the Obligor becoming subject to an Event of
Bankruptcy from and after the date of sale) or for which any representa
tion or warranty made herein in respect of such Receivable shall no
longer be true, the Seller shall be deemed to have received on such day
a Collection of such Receivable in full and shall on such day pay to
the Purchaser an amount equal to the aggregate Outstanding Balance of
such Receivable; provided that, prior to the Termination Date, such
amount may be paid by a reduction in the Purchase Price otherwise paid
to the Seller on the next occurring Purchase Date, unless the Seller
has received notice from the Company that the Purchaser is required to
make a payment in respect of such breach pursuant to the Transfer Agree
ment.
(b) Reconveyance Under Certain Circumstances. The Seller
agrees that, with respect to any Receivable sold hereunder, in the
event of a breach of any of the representations and warranties set
forth in Sections 4.1(d), 4.1(k) or 4.1(i), the Seller shall accept the
reconveyance of such Receivable upon receipt by the Seller of notice
given in writing by the Purchaser and the Seller's failure to cure such
breach within three (3) Business Days of such notice. In the event of
a reconveyance under this Section 6.1(b), the Seller shall pay to the
Purchaser in immediately available funds on such third day an amount
equal to the Outstanding Balance of any such Receivable; provided that,
prior to the Termination Date, such amount may be paid by a reduction
in the Purchase Price paid to the Seller on the next occurring Purchase
Date, unless the Seller has received notice from the Company that the
Purchaser is required to make a payment in respect of such breach pursu
ant to the Transfer Agreement.
SECTION 6.2. Dilutions, Etc. The Seller agrees that if on
any day the Outstanding Balance of a Receivable sold by the Seller here
under is either (x) reduced as a result of any defective, rejected or
returned merchandise or services, any discount, credit, rebate,
dispute, warranty claim, repossessed or returned goods, chargeback,
allowance or any billing adjustment, or (y) reduced or canceled as a
result of a setoff or offset in respect of any claim by any Person
(whether such claim arises out of the same or a related transaction or
an unrelated transaction) then the Seller shall be deemed to have re
ceived on such day a collection of such Receivable in the amount of
such reduction, cancellation or payment made by the Obligor and shall
on such day pay to the Purchaser an amount equal to such reduction or
cancellation; provided that, prior to the Termination Date, such amount
may be paid by a reduction in the Purchase Price paid to the Seller on
the next occurring Purchase Date, unless the Seller has received notice
from the Company that the Purchaser is required to make a payment in re
spect of such breach pursuant to the Transfer Agreement.
SECTION 6.3 Repurchases of Phos-Chem Receivables. If, on
any day, any Receivable originated by Phosphate Chemical Export Asso
ciation, Inc. becomes a Delinquent Receivable or Defaulted Receivable,
then the Seller shall, within two (2) Business Days thereafter,
repurchase each such Receivable by paying to the Purchaser in
immediately available funds on such second Business Day an amount equal
to the product of (i) the Outstanding Balance of each such Receivable
times (ii) one minus the Purchase Discount then in effect or, if less,
the amount owed by the Purchaser to the Company under Section 2.9(d) of
the Transfer Agreement.
SECTION 6.4 No Recourse. Except as otherwise provided in
this Article VI, the Purchaser's purchase and the Seller's sale,
assignment, transfer and conveyance of the Receivables under this Agree
ment shall be without recourse to the Seller.
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ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.1. Conditions to the Purchaser's Obligations
Regarding Receivables. The obligations of the Purchaser to purchase
the Receivables on the Closing date and any Purchase Date shall be
subject to the satisfaction of the following conditions:
(a) All representations and warranties of the Seller con
tained in this Agreement shall be true and correct on the Closing Date
and on each Purchase Date thereafter with the same effect as though
such representations and warranties had been made on such date;
(b) All information concerning the Receivables provided to
the Purchaser shall be true and correct in all material respects as of
the Closing Date, in the case of any Receivables existing on the Clos
ing Date, or the Purchase Date, in the case of any Receivables created
after the Closing Date;
(c) The Seller shall have substantially performed all other
obligations required to be performed by the provisions of this Agree
ment;
(d) The Seller shall have filed or caused to be filed the fi
nancing statement(s) required to be filed pursuant to Section 2.1(b);
(e) All partnership and legal proceedings and all instru
ments in connection with the transactions contemplated by this
Agreement shall be satisfactory in form and substance to the Purchaser,
and the Purchaser shall have received from the Seller copies of all
documents (including, without limitation, records of partnership pro
ceedings) relevant to the transactions herein contemplated as the
Purchaser may reasonably have requested; and
(f) On the Closing Date, the Seller shall deliver to the
Purchaser and the Administrative Agent a Purchaser Certificate as of
the Cut-Off Date.
ARTICLE VIII
TERM AND TERMINATION
SECTION 8.1. Term. This Agreement shall commence as of the
date of execution and delivery hereof and shall continue in full force
and effect until the date following the earliest of (i) the date desig
nated by the Purchaser or the Seller as the termination date at any
time following thirty (30) day's written notice to the other (with a
copy thereof to the Administrative Agent), (ii) the occurrence of the
"Termination Date" under the Transfer Agreement, (iii) upon the occur
rence of an Event of Bankruptcy with respect to either the Purchaser or
the Seller, (iv) the close of business on the third Business Day
following a conveyance of Receivables to the Purchaser for which the
Purchaser does not pay the Purchase Price in accordance with the
provisions hereof, or (v) the date on which either the Purchaser or the
Seller becomes unable for any reason to purchase or re-purchase any
Receivable in accordance with the provisions of this Agreement or
defaults on its obligations hereunder, which default continues
unremedied for more than thirty (30) days after written notice (any
such date being a "Termination Date"); provided, however, that the
termination of this Agreement pursuant to this Section 8.1 hereof shall
not discharge any Person from any obligations incurred prior to such
termination, including, without limitation, any obligations to make any
payments with respect to the interest of the Purchaser in any Receiv
able sold prior to such termination.
SECTION 8.2. Effect of Termination. Following the
termination of this Agreement pursuant to Section 8.1, the Seller shall
not sell, and the Purchaser shall not purchase, any Receivables. No
termination or rejection or failure to assume the executory obligations
of this Agreement in any Event of Bankruptcy with respect to the Seller
or the Purchaser shall be deemed to impair or affect the obligations
pertaining to any executed sale or executed obligations, including,
without limitation, pre-termination breaches of representations and
warranties by the Seller or the Purchaser. Without limiting the forego
ing, prior to termination, the failure of the Seller to deliver comput
er records of Receivables or any reports regarding the Receivables
shall not render such transfer or obligation executory, nor shall the
continued duties of the parties pursuant to Article V or Section 9.1 of
this Agreement render an executed sale executory.
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ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.1. Amendment. This Agreement and the rights and
obligations of the parties hereunder may not be changed orally, but
only by an instrument in writing signed by the Purchaser and the Seller
and consented to in writing by the Administrative Agent. Any reconvey
ance executed in accordance with the provisions hereof shall not be con
sidered amendments to this Agreement.
SECTION 9.2. GOVERNING LAW; Submission to Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK EXCEPT THAT THE
PERFECTION AND THE EFFECT OF PERFECTION OR NON-PERFECTION OF ANY
SECURITY INTEREST CREATED HEREUNDER SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF ILLINOIS.
(b) The parties hereto hereby submit to the nonexclu
sive jurisdiction of the United States District Court for the Southern
District of New York and of any New York state court sitting in The
City of New York for purposes of all legal proceedings arising out of
or relating to this Agreement or the transactions contemplated hereby.
Each party hereto hereby irrevocably waives, to the fullest extent it
may effectively do so, any objection which it may now or hereafter have
to the laying of the venue of any such proceeding brought in such a
court and any claim that any such proceeding brought in such a court
has been brought in an inconvenient forum. Nothing in this Section 9.2
shall affect the right of the Purchaser to bring any other action or
proceeding against the Seller or its property in the courts of other
jurisdictions.
SECTION 9.3. Notices. Except as provided below, all
communications and notices provided for hereunder shall be in writing
(including telecopy or electronic facsimile transmission or similar
writing) and shall be given to the other party at its address or
telecopy number set forth below or at such other address or telecopy
number as such party may hereafter specify for the purposes of notice
to such party. Each such notice or other communication shall be effec
tive (i) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified in this Section 9.3 and confirmation is
received, (ii) if given by mail three Business Days following such
posting, postage prepaid, U.S. certified or registered, (iii) if given
by overnight courier, one Business Day after deposit thereof with a
national overnight courier service, or (iv) if given by any other
means, when received at the address specified in this Section 9.3.
(a) in the case of the Purchaser:
IMC-AGRICO RECEIVABLES COMPANY L.L.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone:
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Vice-President Finance
Payment Information:
ABA ▇▇▇▇▇▇▇▇▇
Account 83666
Reference IMC-Agrico Receivables Company
L.L.C.
with a copy to:
NationsBank, N.A.
NationsBank Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Structured Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) in the case of the Seller:
IMC-AGRICO COMPANY
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Vice President-Finance
Payment Information:
Nationsbank of North Carolina, N.A.
ABA ▇▇▇▇▇▇▇▇▇
Account 65595
Reference IMC-Agrico Company
or, as to each party, at such other address as shall be designated by
such party in a written notice to each other party.
SECTION 9.4. Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement or
any other Transaction Document shall for any reason whatsoever be held
invalid, then such covenants, agreements, provisions, or terms shall be
deemed severable from the remaining covenants, agreements, provisions,
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
SECTION 9.5. Assignment. This Agreement may not be assigned
by the parties hereto, except that the Purchaser may assign its rights
hereunder pursuant to the Transfer Agreement to the Company, and that
the Company may assign any or all of its rights to any Liquidity Provid
er. The Purchaser hereby notifies (and the Seller hereby acknowledges
that) the Purchaser, pursuant to the Transfer Agreement, has assigned
its rights hereunder to the Company. All rights of the Purchaser here
under may be exercised by the Company, its designees or assignees, to
the extent of their respective rights pursuant to such assignments.
SECTION 9.6. Further Assurances. The Purchaser and the
Seller agree to do and perform, from time to time, any and all acts and
to execute any and all further instruments required or reasonably
requested by the other party more fully to effect the purposes of this
Agreement, including, without limitation, the execution of any
financing statements or continuation statements or equivalent documents
relating to the Receivables for filing under the provisions of the
Relevant UCC or other laws of any applicable jurisdiction.
SECTION 9.7. No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Purchaser, the
Seller, the Company or the Administrative Agent, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative
and not exhaustive of any rights, remedies, powers and privilege pro
vided by law.
SECTION 9.8. Counterparts. This Agreement may be executed
in two or more counterparts including telecopy transmission thereof
(and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one
and the same instrument.
SECTION 9.9. Binding Effect; Third-Party Beneficiaries.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
The Company and any Liquidity Provider is intended by the parties
hereto to be a third-party beneficiary of this Agreement.
SECTION 9.10. Merger and Integration. Except as
specifically stated otherwise herein, this Agreement sets forth the
entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded
by this Agreement. This Agreement may not be modified, amended, waived
or supplemented except as provided herein.
SECTION 9.11. Headings. The headings herein are for
purposes of reference only and shall not otherwise affect the meaning
or interpretation of any provision hereof.
SECTION 9.12. Exhibits. The schedules and exhibits referred
to herein shall constitute a part of this Agreement and are incor
porated into this Agreement for all purposes.
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IN WITNESS WHEREOF, the Purchaser and the Seller each have
caused this Receivables Purchase Agreement to be duly executed by their
respective officers as of the day and year first above written.
IMC-AGRICO COMPANY
as Seller
By: IMC-AGRICO MP, INC.,
its managing partner
By:
Name:
Title:
IMC-AGRICO RECEIVABLES COMPANY L.L.C.,
as Purchaser
By: IMC-AGRICO COMPANY,
its operating manager
By: IMC-AGRICO MP, INC.
its managing partner
By:
Name:
Title:
Acknowledged and agreed as
of the date first above written:
ENTERPRISE FUNDING CORPORATION
By:_____________________________
Name:
Title:
EXHIBIT A
[FORM OF MONTHLY REPORT]
EXHIBIT B
FORM OF SUBORDINATED NOTE
__________________
_________ __, 199_
FOR VALUE RECEIVED, the undersigned, IMC-Agrico Receivables
Company, L.L.C., a Delaware limited liability company (the "Maker"),
hereby promises to pay to the order of IMC-AGRICO COMPANY (the "Pay
ee"), on _________, ____ or earlier as provided for in the Receivables
Purchase Agreement dated as of the date hereof between the Maker and
the Payee (as such agreement may from time to time be amended, supple
mented or otherwise modified and in effect, the "Receivables Purchase
Agreement"), the lesser of the principal sum of FIFTY MILLION AND
NO/100 DOLLARS ($50,000,000) or the aggregate unpaid principal amount
of all Advances to the Maker from the Payee pursuant to the terms of
the Receivables Purchase Agreement, in lawful money of the United
States of America in immediately available funds, and to pay interest
from the date thereof on the principal amount hereof from time to time
outstanding, in like funds, at said office, at the rate per annum set
forth in the Receivables Purchase Agreement and shall be payable in
arrears on the first day of each calendar month (or if any such day is
not a Business Day, on the succeeding Business Day).
The Maker hereby waives diligence, presentment, demand,
protest and notice of any kind whatsoever. The non-exercise by the
holder hereof of any of its rights hereunder in any particular instance
shall not constitute a waiver thereof in that or any subsequent
instance.
All borrowings evidenced by this Subordinated Note and all
payments and prepayments of the principal hereof and interest hereon
and the respective dates thereof shall be endorsed by the holder hereof
on the schedule attached hereto and made a part hereof, or on a
continuation thereof which shall be attached hereto and made a part
hereof, or otherwise recorded by such holder in its internal records;
provided, however, that the failure of the holder hereof to make such a
notation or any error in such a notation shall not in any manner affect
the obligation of the Maker to make payments of principal and interest
in accordance with the terms of this Subordinated Note and the
Receivables Purchase Agreement.
The Maker shall have the right to prepay and, subject to the
limitations set forth in the Receivables Purchase Agreement, reborrow
Advances made to it without penalty or premium.
This Subordinated Note is the Subordinated Note referred to
in the Receivables Purchase Agreement, which, among other things,
contains provisions for the subordination of this Subordinated Note to
the rights of certain parties under the Transfer Agreement, all upon
the terms and conditions therein specified.
This Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
IMC-AGRICO RECEIVABLES COMPANY L.L.C.
By: IMC-Agrico Company,
its Operating Manager
By: IMC-Agrico MP, Inc.,
its managing general partner
By:
Name:
Title:
Advances and Payments
Amount of Payments Unpaid Principal Name of Person
Date Advance Principal/Interest Balance of Note Making Notation
______ $____________
EXHIBIT C
LOCATION OF RECORDS, PRINCIPAL PLACE OF BUSINESS, ETC.
1.
2.
EXHIBIT D
TRADENAMES, ETC.
None