[CONFORMED COPY]
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AMENDED AND RESTATED CREDIT AGREEMENT
dated as of December 14, 1995
among
TERRA CAPITAL, INC.
and
TERRA NITROGEN, LIMITED PARTNERSHIP,
as Borrowers
CERTAIN GUARANTORS
CERTAIN LENDERS
CERTAIN ISSUING BANKS
and
CITIBANK, N.A.,
as Agent
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms..................................... 2
Section 1.02. Computation of Time Periods............................... 35
Section 1.03. Accounting Terms.......................................... 35
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
Section 2.01. The Advances.............................................. 36
Section 2.02. Making the Advances....................................... 38
Section 2.03. Repayment................................................. 41
Section 2.04. Termination or Reduction of the Commitments............... 41
Section 2.05. Prepayments, Etc.......................................... 42
Section 2.06. Interest.................................................. 44
Section 2.07. Fees...................................................... 45
Section 2.08. Conversion and Continuation of Advances................... 46
Section 2.09. Increased Costs, Illegality, Etc.......................... 48
Section 2.10. Payments and Computations................................. 50
Section 2.11. Taxes..................................................... 52
Section 2.12. Sharing of Payments, Etc.................................. 54
Section 2.13. Letters of Credit......................................... 55
Section 2.14. Replacement of Lender..................................... 60
ARTICLE III
CONDITIONS OF LENDING
Section 3.01. Conditions Precedent to Amendment and Restatement......... 62
Section 3.02. Conditions Precedent to Each Borrowing and Issuance....... 65
Section 3.03. Determinations Under Section 3.01......................... 65
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Company............. 65
Section 4.02. Representations and Warranties of each Lender............. 72
(i)
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ARTICLE V
COVENANTS OF TERRA
Section 5.01. Affirmative Covenants...................................... 72
Section 5.02. Negative Covenants......................................... 80
Section 5.03. Reporting Requirements..................................... 89
Section 5.04. Financial Covenants........................................ 93
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default.......................................... 94
Section 6.02. Actions in Respect of the Letters of Credit Upon Default... 98
ARTICLE VII
THE AGENT
Section 7.01. Authorization and Action................................... 99
Section 7.02. Agent's Reliance, Etc...................................... 99
Section 7.03. Citibank and Affiliates.................................... 100
Section 7.04. Lender Credit Decision..................................... 100
Section 7.05. Indemnification............................................ 100
Section 7.06. Collateral Duties.......................................... 101
Section 7.07. Successor Agent............................................ 102
ARTICLE VIII
THE GUARANTEE
Section 8.01. The Guarantee.............................................. 102
Section 8.02. Obligations Unconditional.................................. 103
Section 8.03. Reinstatement.............................................. 105
Section 8.04. Subrogation................................................ 105
Section 8.05. Remedies................................................... 105
Section 8.06. Instrument for the Payment of Money........................ 106
Section 8.07. Continuing Guarantee....................................... 106
Section 8.08. Rights of Contribution..................................... 106
Section 8.09. General Limitation on Guarantee Obligations................ 107
ARTICLE IX
MISCELLANEOUS
Section 9.01. Amendments, Consents, Etc.................................. 107
Section 9.02. Notices, Etc............................................... 109
Section 9.03. No Waiver; Remedies........................................ 109
Section 9.04. Costs, Expenses and Indemnification........................ 110
Section 9.05. Right of Setoff............................................ 112
Section 9.06. Governing Law; Submission to Jurisdiction.................. 112
Section 9.07. Assignments and Participations............................. 113
(ii)
CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of December 14,
1995 among:
(1) TERRA CAPITAL, INC., a Delaware corporation (the "Company");
(2) TERRA NITROGEN, LIMITED PARTNERSHIP, a Delaware limited partnership
and a Subsidiary of the Company ("TNLP");
(3) each of the corporations and limited partnerships listed on the
signature pages hereof under the caption "GUARANTORS";
(4) each of the lenders (the "Initial Lenders") listed on the signature
pages hereof; and
(5) CITIBANK, N.A., as agent (together with its successor in such capacity
appointed pursuant to Article VII, the "Agent") for the Lenders and
the Issuing Banks hereunder.
PRELIMINARY STATEMENTS:
(1) The Company, TNLP, certain Guarantors, the Initial Lenders, the
Issuing Banks and the Agent are parties to an Amended and Restated Credit
Agreement dated as of May 12, 1995 (as heretofore amended to and in effect on
the Restatement Date, as hereinafter defined, the "Existing Credit Agreement")
providing, subject to the terms and conditions thereof, for the making of
working capital and term advances to, and the issuance of letters of credit for
the account of, the Company and for the making of working capital and term
advances to, and the issuance of letters of credit for the account of, TNLP.
(2) The parties hereto wish to amend the Existing Credit Agreement,
among other things, (a) to reflect the prepayment in full of the "Terra Facility
B Advances" outstanding thereunder, (b) to combine "Terra Facility A" and the
"Terra Working Capital Facility" into one working capital facility hereunder and
to increase the aggregate Commitments thereunder and (c) to make certain other
changes to the Existing Credit Agreement and the other Loan Documents, all on
the terms and conditions set forth herein, it being the intention of the parties
hereto that the advances and letters of credit outstanding under the Existing
Credit Agreement on the Restatement Date shall continue and remain outstanding
and not be repaid on the Restatement Date.
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NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree that
the Existing Credit Agreement shall (subject to the satisfaction of the
conditions precedent specified in Section 3) be amended and restated in its
entirety 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):
"Advance" means a Terra Advance or a TNLP 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 10% 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.
"Agent" has the meaning specified in the recital of parties to this
Agreement.
"Agent's Account" means the account of the Agent maintained by the
Agent at its office at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Account No. 368-52248, Attention: ▇▇▇▇ ▇▇▇▇ (or his successor), or such
other account maintained by the Agent as may be designated by the Agent in
a written notice to the Lenders, each Issuing Bank and the Borrowers.
"AMCI" means Agricultural Minerals and Chemicals Inc., a corporation
merged into Terra prior to the First Restatement Date.
"AMCI Senior Note Indenture" means the Indenture dated as of October
15, 1993 between Terra (as successor to AMCI) and Society National Bank, as
Trustee, providing for the issuance of the AMCI Senior Notes, as from time
to time amended.
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"AMCI Senior Notes" mean the 10-3/4% senior notes of Terra (as
successor to AMCI) due 2003 issued pursuant to the AMCI Senior Note
Indenture.
"Applicable Commitment Fee Rate" means 0.50% per annum; provided, that
the Applicable Commitment Fee Rate shall, from the Restatement Date until
the Quarterly Date falling in March, 1996, be 0.25% per annum; and
provided, further, that (subject to the foregoing proviso) if for any
Rolling Period ending after the first anniversary of the Closing Date the
Debt to Cash Flow Ratio for such Rolling Period shall be within any of the
ranges specified in the schedule below, then, subject to the delivery to
the Agent of a certificate of the Senior Financial Officer demonstrating
the same prior to the end of the next succeeding fiscal quarter, the
"Applicable Commitment Fee Rate" shall be changed to the percentage per
annum set forth opposite the reference to such range in such schedule
during the period commencing on the Quarterly Date on or immediately
following the date of the Agent's receipt of such certificate until the
next succeeding Quarterly Date thereafter:
Range of Debt Applicable Commitment
to Cash Flow Ratio Fee Rate
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Greater than 3.00 to 1 0.500%
Less than or equal to
3.00 to 1 and greater
than 2.00 to 1 0.375%
Less than or equal to
2.00 to 1 and greater
than 1.25 to 1 0.250%
Less than or equal to
1.25 to 1 and greater
than 0.75 to 1 0.225%
Less than or equal to
0.75 to 1 0.200%
"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 Letter of Credit Fee Rate" means, at any time, a rate per
annum equal to the Applicable Margin for Eurodollar Rate Advances in effect
at such time.
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"Applicable Margin" means, (a) with respect to all Base Rate Advances,
0.50% per annum and (b) with respect to all Eurodollar Rate Advances, 2.00%
per annum; provided, that the Applicable Margin with respect to all Base
Rate Advances and Eurodollar Rate Advances shall, from the Restatement Date
until the Quarterly Date falling in March, 1996, be 0.25% per annum (in the
case of such Base Rate Advances) and 0.75% per annum (in the case of such
Eurodollar Rate Advances); and provided, further, that (subject to the
foregoing proviso) if for any Rolling Period ending after the first
anniversary of the Closing Date the Debt to Cash Flow Ratio for such
Rolling Period shall be within any of the ranges specified in the schedule
below, then, subject to the delivery to the Agent of a certificate of the
Senior Financial Officer demonstrating the same prior to the end of the
next succeeding fiscal quarter, the "Applicable Margin" shall be changed to
the percentage per annum for the respective Type of Advance set forth
opposite the reference to such range in such schedule during the period
commencing on the Quarterly Date on or immediately following the date of
the Agent's receipt of such certificate until the next succeeding Quarterly
Date thereafter:
Applicable Margin (% p.a.)
---------------------------
Range of Debt Base Rate Eurodollar Rate
to Cash Flow Ratio Advances Advances
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Greater than 3.00 to 1 0.500% 2.000%
Less than or equal to
3.00 to 1 and greater
than 2.00 to 1 0.375% 1.250%
Less than or equal to
2.00 to 1 and greater
than 1.25 to 1 0.250% 0.750%
Less than or equal to
1.25 to 1 and greater
than 0.75 to 1 0.000% 0.625%
Less than or equal to
0.75 to 1 0.000% 0.500%
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the Agent, in
accordance with Section 9.07 and in substantially the form of Exhibit F.
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"Available Amount" of any Letter of Credit means the maximum amount
available to be drawn under such Letter of Credit (assuming compliance with
all conditions to drawing specified therein).
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) 0.50% per annum above the Federal Funds Rate; and
(c) the sum (adjusted to the nearest 0.25% or, if there is no
nearest 0.25%, to the next higher 0.25%) of (i) 0.50% per annum plus
(ii) the rate obtained by dividing (x) the latest three-week moving
average of secondary market morning offering rates in the United
States for three-month certificates of deposit of major United States
money center banks, such three-week moving average (adjusted to the
bases of a year of 360 days) being determined weekly on each Monday
(or, if such date is not a Business Day, on the next succeeding
Business Day) for the three-week period ending on the previous Friday
by Citibank on the basis of such rates reported by certificate of
deposit dealers to and published by the Federal Reserve Bank of New
York or, if such publication shall be suspended or terminated, on the
basis of quotations for such rates received by Citibank from three New
York certificate of deposit dealers of recognized standing selected by
Citibank by (y) a percentage equal to 100% minus the average of the
daily percentages specified during such three-week period by the Board
of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but not
limited to, any emergency, supplemental or other marginal reserve
requirement) for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. Dollar non-
personal time deposits in the United States plus (iii) the average
during such three-week period of the annual assessment rates estimated
by Citibank for determining the then current annual assessment rate
payable by Citibank to the Federal Deposit Insurance Corporation (or
any successor) for insuring U.S. Dollar deposits of Citibank in the
United States.
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Each change in any interest rate provided for herein based upon the Base
Rate resulting from a change in the Base Rate shall take effect at the time
of such change in the Base Rate.
"Base Rate Advance" means an Advance that bears interest as provided
in Section 2.06(a)(i).
"BMCH" means BMC Holdings, Inc., a Delaware corporation and wholly
owned Subsidiary of the Company.
"BMLP" means Beaumont Methanol, Limited Partnership, a Delaware
limited partnership and wholly owned Subsidiary of the Company.
"Borrower" means each of the Company and TNLP; provided, that when
reference is made in this Agreement or in any other Loan Document to the
"relevant" Borrower in connection with either Facility, such reference
shall be deemed to refer (a) in the case of the Terra Facility, to the
Company, and (b) in the case of the TNLP Facility, to TNLP.
"Borrower's Account" means (a) in the case of the Company, the account
of the Company maintained with Citibank at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. 4065-6098, and (b) in the case of
TNLP, the account of TNLP maintained with Citibank at its office at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. 4065-6071; or, in either
case, such other account maintained by the relevant Borrower with Citibank
and designated by such Borrower in a written notice to the Agent.
"Borrowing" means a Terra Borrowing or a TNLP Borrowing.
"Business Day" means a day on which banks are not required or
authorized to close in New York City and, if such Business Day relates to a
Eurodollar Rate Advance, on which dealings are carried on in the London
interbank market.
"Capital Expenditures" means, for any period with respect to any
Person, the sum of all expenditures during such period (whether paid in
cash or accrued as liabilities during such period) that, in conformity with
GAAP, are required to be included in or reflected on the balance sheet of
such Person in respect of equipment, fixed assets, real property or
improvements, or for replacements or substitutions therefor or additions
thereto, plus (without
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duplication) the amount of expenditures deemed to be made in connection
with equipment that is purchased simultaneously with the trade-in of
existing equipment owned by such Person to the extent the gross amount of
the purchase price of such purchased equipment exceeds the fair market
value (as determined in good faith by such Person) of the equipment then
being traded in, but excluding expenditures made in connection with the
replacement or restoration of assets to the extent such replacement or
restoration is financed from insurance proceeds paid on account of loss or
damage to the assets so replaced or restored.
"Capital Lease Obligations" means, for any Person, all obligations of
such Person to pay rent or other amounts under a lease of (or other
agreement conveying the right to use) property to the extent such
obligations are required to be classified and accounted for as a capital
lease on a balance sheet of such Person under GAAP, and, for purposes of
this Agreement, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP.
"Cash Interest Expense" means, with respect to Terra and its
Subsidiaries on a Consolidated basis, for any period (without duplication),
interest expense net of interest income, whether paid or accrued (including
the interest component of Capital Lease Obligations), on all Debt of Terra
and its Subsidiaries on a Consolidated basis for such period, including,
without limitation, (a) interest expense in respect of the Advances, (b)
commissions, discounts and other fees and charges payable in connection
with letters of credit (including, without limitation, any Letter of
Credit) and (c) the net payment, if any, payable in connection with any
Hedge Agreement; excluding, in each case, interest not payable in cash
(including, without limitation, amortization of original issue discount and
the interest portion of any deferred payment obligation); all as determined
in accordance with GAAP for such period.
"Casualty Event" means, with respect to any property of any Person,
any loss of or damage to, or any condemnation or other taking of, such
property for which such Person or any of its Subsidiaries receives
insurance proceeds, or proceeds of a condemnation award or other
compensation.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"Citibank" means Citibank, N.A., a national banking association.
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"Closing Date" means October 20, 1994.
"Collateral" means all "Collateral" referred to in the Security
Documents and all other property that is subject to any Lien created by any
Security Document in favor of the Agent, the Lenders and the Issuing Banks.
"Commitment" means a Terra Commitment or a TNLP Commitment.
"Commitment Termination Date" means the Terra Commitment Termination
Date or the TNLP Commitment Termination Date.
"Confidential Information" means information identified as such that
Terra or any of its Subsidiaries furnishes to the Agent, any Issuing Bank
or any Lender, but does not include any such information once such
information has become generally available to the public or once such
information has become available to the Agent, any Issuing Bank or any
Lender from a source other than Terra and its Subsidiaries (unless, in
either case, such information becomes so available as a result of the
breach by the Agent, an Issuing Bank or a Lender of its duty of
confidentiality set forth in Section 9.10).
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Consolidated Group" means, collectively, Terra and its Consolidated
Subsidiaries, and a "member" of the Consolidated Group means Terra or any
such Subsidiary.
"Continuation", "Continue" and "Continued" each refers to a
continuation of Eurodollar Rate Advances from one Interest Period to the
next Interest Period pursuant to Section 2.08.
"Conversion", "Convert" 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" of any Person means (without duplication): (a) all indebtedness
of such Person for borrowed money, (b) all Obligations of such Person for
the deferred purchase price of property or services (other than any trade
payable having a tenor of not more than 365 days, or any like item arising
from the purchase of equipment or services having a tenor of not more than
90 days, in each case incurred in the ordinary course of business and on
normal business terms and in each case not overdue by more than 30 days,
and other
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than any Obligations in respect of letters of credit supporting any such
trade payable or like item), (c) all Obligations of such Person evidenced
by notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement
in the event of default are limited to repossession or sale of such
property), (e) all Capital Lease Obligations and Major Operating Lease
Obligations of such Person, (f) all Obligations, contingent or otherwise,
of such Person under acceptance, letter of credit or similar facilities
(other than Obligations in respect of letters of credit referred to in
clause (b) of this definition), (g) all Obligations of such Person to
purchase, redeem, retire, defease or otherwise make any payment in respect
of any Redeemable capital stock, which Obligations shall be valued at the
greater of its voluntary or involuntary liquidation preference plus accrued
and unpaid dividends, (h) all Obligations of such Person in respect of
Hedge Agreements, (i) all Debt of others referred to in clauses (a) through
(h) above guaranteed directly or indirectly in any manner by such Person,
or in effect guaranteed directly or indirectly by such Person through an
agreement (i) to pay or purchase such Debt or to advance or supply funds
for the payment or purchase of such Debt, (ii) to purchase, sell or lease
(as lessee or lessor) property, or to purchase or sell services, primarily
for the purpose of enabling the debtor to make payment of such Debt or to
assure the holder of such Debt against loss, (iii) to supply funds to or in
any other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received or
such services are rendered) or (iv) otherwise to assure a creditor against
loss, and (j) all Debt referred to in clauses (a) through (i) above secured
by (or for which the holder of such Debt has an existing right, contingent
or otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such Debt.
"Debt to Cash Flow Ratio" means, for any period, the ratio of (i)
Funded Debt of Terra and its Subsidiaries on a Consolidated basis as of the
last day of such period to (ii) EBITDA of Terra and its Subsidiaries on a
Consolidated basis for such period. For purposes of computing the Debt to
Cash Flow Ratio for any period ending on or prior to the first anniversary
of the Closing Date, EBITDA for such period shall be calculated giving pro
forma effect to the
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merger of AMCI with and into Terra as if such merger had occurred on the
first day of such period.
"Default" means any event that would constitute an Event of Default
but for the requirement that notice be given or time elapse or both.
"Disposition" means any sale, assignment, transfer or other
disposition of any property (whether now owned or hereafter acquired) by
Terra or any of its Subsidiaries, but excluding any sale, assignment,
transfer or other disposition of any property (i) sold or disposed of in
the ordinary course of business and on ordinary business terms, or (ii) by
any Obligor to another Obligor or by any Obligor to a wholly owned
Subsidiary of an Obligor, or (iii) that consists of outmoded or obsolete
items, provided, that the aggregate value of all such excluded outmoded or
obsolete items with a value of $1,000,000 or more each shall not exceed
$10,000,000.
"Dividend Payments" means dividends (in cash, property or obligations)
on, or other payments or distributions on account of, or the setting apart
of money for a sinking or other analogous fund for, or the purchase,
redemption, retirement or other acquisition of, any shares of any class of
stock of the Company or of any warrants, options or other rights to acquire
the same (or to make any payment to any Person, such as "phantom stock"
payments, where the amount thereof is calculated with reference to the fair
market or equity value of Terra, the Company or any of their Subsidiaries,
other than any such payment made in the ordinary course of business of such
Person in connection with an executive compensation plan approved by the
Board of Directors of such Person), but excluding dividends payable solely
in shares of common stock of the Company.
"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 2.01 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 Agent.
"EBITDA" means the following, determined in accordance with GAAP for
Terra and its Subsidiaries on a Consolidated basis, for any period: net
income (or net loss) plus the sum of (a) interest expense, (b) income tax
expense and (c) depreciation expense, amortization expense and other non-
cash charges deducted in arriving at such net income (or loss).
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"Eligible Assignee" means (a) any other Lender or any affiliate of any
Lender; (b) a commercial bank organized under the laws of the United
States, or any State thereof, and having total assets in excess of
$1,000,000,000; (c) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof, and
having a net worth in excess of $100,000,000; (d) a commercial bank
organized under the laws of any other country that is a member of the 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, and having total assets in
excess of $1,000,000,000, so long as such bank is acting through a branch
or agency located in the country in which it is organized or another
country that is described in this clause (d); (e) the central bank of any
country that is a member of the OECD; (f) a finance company, insurance
company or other financial institution or fund (whether a corporation,
partnership, trust or other entity) that is engaged in making, purchasing
or otherwise investing in commercial loans in the ordinary course of its
business and having total assets in excess of $100,000,000; and (g) any
other Person (other than an Affiliate of the Company) approved by the Agent
and the Company, such approval of the Company not to be unreasonably
withheld or delayed.
"Environmental Action" means any administrative, regulatory or
judicial suit, demand, demand letter, claim, notice of non-compliance or
violation, consent order or consent agreement relating in any way to any
violation of or liability under any Environmental Law or any Environmental
Permit, including without limitation (a) any claim by any governmental or
regulatory authority for enforcement, cleanup, removal, response, remedial
or other actions or damages pursuant to any Environmental Law, (b) any
claim by any third party seeking damages, contribution, indemnification,
cost recovery, compensation or injunctive relief resulting from Hazardous
Materials or arising from alleged injury or threat of injury to the
environment and (c) any notice by any governmental or regulatory authority
alleging that Terra or any of its Subsidiaries is or may be responsible
for, or is a potentially responsible party with respect to, any cleanup,
removal, response, remedial or other actions or damages pursuant to any
Environmental Law.
"Environmental Law" means any federal, state or local governmental
law, rule, regulation, order, writ, judgment, injunction or decree relating
to pollution or protection of the environment or the treatment, storage,
disposal, release, threatened release or handling of Hazardous
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Materials, including, without limitation, CERCLA, the Resource Conservation
and Recovery Act, the Hazardous Materials Transportation Act, the Clean
Water Act, the Toxic Substances Control Act, the Clean Air Act, the Safe
Drinking Water Act, the Atomic Energy Act and the Federal Insecticide,
Fungicide and Rodenticide Act, in each case, as amended from time to time.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"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" of any Person means any other Person that for
purposes of Title IV of ERISA is a member of such Person's controlled
group, or under common control with such Person, within the meaning of
Sections 414(b), (c), (m) and (o) of the Internal Revenue Code.
"ERISA Event" with respect to any Person means (a) the occurrence of a
reportable event, within the meaning of Section 4043 of ERISA, with respect
to any Plan of such Person or any of its ERISA Affiliates unless the 30-day
notice requirement with respect to such event has been waived pursuant to
regulations under Section 4043 of ERISA and excluding a reportable event
under Section 4043(c)(7) of ERISA; (b) the provision by the administrator
of any Plan of such Person or any of its ERISA Affiliates of a notice of
intent to terminate such Plan, pursuant to Section 4041(c) of ERISA as a
distress termination; (c) the cessation of operations at a facility of such
Person or any of its ERISA Affiliates in the circumstances described in
Section 4062(e) of ERISA; (d) the withdrawal by such Person or any of its
ERISA Affiliates from a Multiple Employer Plan during a plan year for which
it was a substantial employer, as defined in Section 4001(a)(2) of ERISA;
(e) the satisfaction of the conditions set forth in Sections 302(f)(1)(A)
and (B) of ERISA to the creation of a lien upon property or rights to
property of such Person or any ERISA Affiliate for failure to make a
required payment to a Plan; (f) the adoption of an amendment to a Plan of
such Person or any of its ERISA Affiliates requiring the provision of
security to such Plan, pursuant to Section 307 of ERISA; or (g) the
institution by the PBGC of proceedings to terminate a Plan of such Person
or any of its ERISA Affiliates, pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the
Credit Agreement
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termination of, or the appointment of a trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified 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 2.01 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 Agent.
"Eurodollar Rate" means, for any 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 average
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if
such average is not such a multiple) of the rates per annum at which
deposits in U.S. dollars are offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London interbank
market at approximately 5:00 P.M. (London time) two Business Days before
the first day of such Interest Period in an amount substantially equal to
such Reference Bank's Eurodollar Rate Advance comprising part of such
Borrowing (determined without giving effect to any assignments or
participations by such Reference Bank) and for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such Interest Period. The Eurodollar Rate for each
Interest Period for each Eurodollar Rate Advance comprising part of the
same Borrowing shall be determined by the Agent on the basis of applicable
rates furnished to and received by the Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.09.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing means the
reserve percentage (if any) 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
Credit Agreement
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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 deposits exceeding $1,000,000,000 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.
"Excluded Period" means, with respect to any additional amount payable
under Section 2.09 or 2.13, the period ending 120 days prior to the
applicable Lender's delivery of a certificate referenced in Section
2.09(a), 2.09(b) or 2.13(d), as applicable, with respect to such additional
amount.
"Existing Credit Agreement" has the meaning specified in the
Preliminary Statements to this Agreement.
"Facility" means the Terra Facility or the TNLP Facility.
"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 that is a Business Day, the
average of the quotations for such day for such transactions received by
the Agent from three Federal funds brokers of recognized standing selected
by it.
"First Restatement Date" means May 12, 1995.
"Funded Debt" of any Person means, on any date, the sum (determined
without duplication) of: (a) all Debt of such Person that would be listed
as long-term debt (including Capital Lease Obligations and Major Operating
Lease Obligations) of such Person on a balance sheet of such Person
prepared in accordance with GAAP (including, without limitation, the
current portion of such Debt), plus (b) the aggregate principal amount of
all outstanding Advances, plus (c) the aggregate amount of all Letters of
Credit to the extent of unreimbursed drawings thereunder; provided, that
Credit Agreement
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the term "Funded Debt" shall include letters of credit issued in connection
with the insurance program of Terra and its Subsidiaries only to the extent
of unreimbursed drawings thereunder; and provided, further, that the term
"Funded Debt" shall not include Obligations under Hedge Agreements.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the date of, and used in, the
preparation of the audited financial statements referred to in Section
4.01(f).
"Guaranteed Obligations" means the Terra Guaranteed Obligations and
the TNLP Guaranteed Obligations.
"Guarantors" means the Terra Guarantors and the TNLP Guarantors.
"Hazardous Materials" means (a) petroleum or petroleum products,
natural or synthetic gas, asbestos in any form that is or could become
friable, and radon gas, (b) any substances defined as or included in the
definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted hazardous wastes",
"toxic substances", "toxic pollutants", "contaminants" or "pollutants", or
words of similar meaning and regulatory effect, under any Environmental Law
and (c) any other substance exposure to which is regulated under any
Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts, commodity future or option agreements
and other similar agreements designed to hedge against fluctuations in
interest rates, foreign exchange rates or commodity prices, including,
without limitation, the Methanol Hedging Agreement.
"Holdings Pledge Agreement" means a Pledge Agreement in the form of
Exhibit B-1 to the Existing Credit Agreement between Terra Capital Holdings
and the Agent, as from time to time amended.
"Immaterial Subsidiary" means, as of any date of determination, any
Subsidiary of Terra with not more than $500,000 of assets on such date nor
more than $100,000 of gross income for the fiscal year of Terra ended on or
most recently ended prior to such date.
"Indemnified Party" has the meaning specified in Section 9.04(b).
Credit Agreement
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"Initial Lenders" has the meaning specified in the recital of the
parties to this Agreement.
"Insufficiency" means, with respect to any Plan at any time, the
amount, if any, by which the "accumulated benefit obligation" (as defined
in Statement of Financial Accounting Standards 87) exceeds the fair market
value of the assets of such Plan as of the date of the most recent
actuarial valuation for such Plan, calculated using the actuarial methods,
factors and assumptions used in such valuation.
"Intercompany Receivables Facility" means a facility entered into by
the Company and/or any of its Subsidiaries, as sellers, and one or more
Receivables Subsidiaries, as purchasers, providing for the sale of
Receivables by said sellers to said purchasers.
"Interest Coverage Ratio" means, for any Rolling Period for which such
ratio is to be determined, the ratio of (i) EBITDA of Terra and its
Subsidiaries for the immediately preceding Rolling Period to (ii) Cash
Interest Expense for the Rolling Period for which such ratio is to be
determined.
"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 the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance, and ending on the last day of
the period selected by the relevant 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 relevant Borrower pursuant to the provisions below.
The duration of each such Interest Period shall be one, three or six
months, as the relevant Borrower may, upon notice received by the Agent not
later than 10:00 A.M. (New York City time) on the second Business Day prior
to the first day of such Interest Period, select; provided, that:
(a) the Company may not select any Interest Period that ends
after any Terra Commitment Reduction Date unless, after giving effect
thereto, the aggregate principal amount of Terra Advances having
Interest Periods that end after such Terra Commitment Reduction Date
shall be equal to or less than the aggregate principal amount of Terra
Advances scheduled to be outstanding after giving effect to the
payments of principal required to be made on such Terra Commitment
Reduction Date;
Credit Agreement
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(b) no Interest Period for any Advance may end after the
relevant Commitment Termination Date;
(c) 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, 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
(d) whenever the first day of any Interest Period occurs on the
last day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar
month), such Interest Period shall end on the last Business Day of the
appropriate subsequent calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any capital stock, warrants, rights,
options, obligations or other securities of such Person, any capital
contribution to such Person or any other investment in such Person,
including, without limitation, (a) any arrangement pursuant to which the
investor incurs Debt of the types referred to in clauses (i) and (j) of the
definition of "Debt" in respect of such Person, (b) the acquisition of all
or substantially all of the assets of such Person or of any division of
such Person, and (c) any merger of or consolidation with such Person;
provided, that the purchase of equipment, fixed assets, real property or
improvements from such Person do not constitute Investments in such Person
to the extent the same constitute Capital Expenditures.
"Issuing Bank" means each Lender specified on the signature pages
hereof as an "Issuing Bank", together with its successors in such capacity.
"L/C Cash Collateral Account" means the Terra L/C Cash Collateral
Account and the TNLP L/C Cash Collateral Account.
"L/C Related Documents" has the meaning specified in Section 2.13(e).
Credit Agreement
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"Lenders" means the Initial Lenders listed on the signature pages
hereof and each Eligible Assignee that shall become a party hereto pursuant
to Section 9.07. When reference is made in this Agreement or any other Loan
Document to any "relevant" Lender in connection with any Facility, such
reference shall be deemed to refer to a Lender that has a Commitment or
outstanding Advances under such Facility.
"Letter of Credit Commitment" means the Terra Letter of Credit
Commitment or the TNLP Letter of Credit Commitment.
"Letter of Credit Liability" means a Terra Letter of Credit Liability
or a TNLP Letter of Credit Liability.
"Letter of Credit Sublimit" means the Terra Letter of Credit Sublimit
or the TNLP Letter of Credit Sublimit.
"Letters of Credit" has the meaning specified in Section 2.13(a).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Security Documents and the Loan Purchase Agreement.
"Loan Purchase Agreement" means a Loan Purchase Agreement between the
Agent and Terra in the form of Exhibit E-1 to the Existing Credit
Agreement, as from time to time amended.
"Major Operating Lease Obligations" means, for any Person, all
obligations of such Person under an operating lease to pay required
termination payments or like payments in an amount exceeding $7,000,000 and
in an amount at least equal to 75% of the original acquisition cost of the
leased property under such operating lease.
"Management Agreements" means one or more management agreements
entered into after December 15, 1994 between the Company and certain of its
Affiliates and other Persons providing for the performance by the Company
of certain treasury, purchasing, legal and/or other services for such
Affiliates and such other Persons, as such agreements are in effect from
time to time.
Credit Agreement
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"Margin Stock" has the meaning specified in Regulations G, U and X.
"Material Adverse Change" means, with respect to any Person, any
material adverse change in the business, assets, operations, properties or
financial condition of such Person and its Subsidiaries taken as a whole,
or any material adverse change in the contingent liabilities of such Person
which could reasonably be expected to result in any of the foregoing, other
than any of the foregoing resulting solely from a general economic change
in the industry of such Person and its Subsidiaries.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, properties or financial condition of Terra
and its Subsidiaries taken as a whole, or a material adverse effect on the
contingent liabilities of such Person which could reasonably be expected to
result in any of the foregoing, (b) the rights and remedies of the Agent,
any Issuing Bank or any Lender under any Loan Document or (c) the ability
of any Obligor to perform its Obligations under any Loan Document to which
it is or is to be a party.
"Material Contract" means:
(A) each Hedge Agreement;
(B) each contract to which Terra or any of its Subsidiaries is a
party (a "Specified Party") that (a) provides for the provision of
goods or services by the Specified Party or the receipt of goods or
services by the Specified Party, (b) has a term of more than one year
(unless such contract may be cancelled at the sole option of another
Person party to such contract), (c) involves the payment or receipt by
the Specified Party of consideration having a fair market value in
excess of $1,000,000 in any fiscal year of Terra and (d) provides for
either: (i) the provision of goods or services to another Person that
is obligated to purchase from the Specified Party a specified quantity
of such goods or services (but only to the extent that, if such other
Person did not purchase such quantity of such goods or services, the
Specified Party would not be readily able to sell such goods or
services at a price equal to or higher than the price set in such
contract) or (ii) the receipt of goods or services from another Person
that is obligated to supply to the Specified Party a specified
quantity of such goods or services (but only to the extent that, if
such other Person did not supply such quantity of such goods or
Credit Agreement
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services, the Specified Party would not be readily able to purchase
such goods or services at a price less than or equal to the price set
in such contract); and
(C) each contract to which Terra or any of its Subsidiaries is a
party that, if such contract were to be terminated or the obligations
of any other Person party to such contract were to fail to be in full
force and effect, could reasonably be expected, either individually or
in the aggregate with any other such event, to have a Material Adverse
Effect.
"Material Subsidiary" means any Subsidiary of Terra other than an
Immaterial Subsidiary.
"Merger Agreement" means the Merger Agreement dated as of August 8,
1994, among Terra, AMCI Acquisition Corporation and AMCI, as from time to
time amended.
"Methanol Hedging Agreement" means the Methanol Hedging Agreement
dated as of the Closing Date between BMLP (as successor to Beaumont
Methanol Corporation) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Leveraged Equity Fund II, as
Agent, as from time to time amended.
"Minorco" means Minorco, a Luxembourg corporation, and its successors.
"Minorco USA" means Minorco (U.S.A.) Inc., a Colorado corporation, and
its successors.
"Multiemployer Plan" of any Person means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, to which such Person or any of its
ERISA Affiliates is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" of any Person means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of such Person or any of its ERISA Affiliates and at least one
Person other than such Person and its ERISA Affiliates or (b) was so
maintained and in respect of which such Person or any of its ERISA
Affiliates has or would have liability under Section 4064 or 4069 of ERISA
in the event such plan has been or were to be terminated.
Credit Agreement
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"Net Available Proceeds" means:
(a) in the case of any Disposition, the aggregate amount of all
cash payments, and the fair market value of any non-cash
consideration, received by Terra and its Subsidiaries directly or
indirectly in connection with such Disposition; provided, that (i)
such Net Available Proceeds shall be net of (x) the amount of any
legal, title and recording tax expenses, commissions and other
reasonable fees and expenses (including reasonable expenses of
preparing the relevant property for sale) paid by Terra and its
Subsidiaries in connection with such Disposition and (y) any Federal,
state and local income or other taxes estimated in good faith to be
payable by Terra and its Subsidiaries as a result of such Disposition
and (ii) such Net Available Proceeds shall be net of any repayments by
Terra or any of its Subsidiaries of Debt to the extent that (x) such
Debt is secured by a Lien on the property that is the subject of such
Disposition and (y) the transferee of (or holder of a Lien on) such
property requires that such Debt be repaid as a condition to the
purchase of such property; and
(b) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation
received by Terra and its Subsidiaries (and, in the case of business
interruption insurance, not contractually required to be paid over to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Leveraged Equity Fund II, as agent, or its successors
or assigns) in respect of such Casualty Event net of (A) reasonable
expenses incurred by Terra and its Subsidiaries in connection
therewith, (B) contractually required repayments of Debt to the extent
secured by a Lien on the property suffering such Casualty Event and
any income and transfer taxes payable by Terra or any of its
Subsidiaries in respect of such Casualty Event and (C) amounts
promptly applied to or set aside for the repair or replacement of the
property suffering such Casualty Event; provided, that the proceeds of
insurance received by Terra and its Subsidiaries in connection with
the December 13, 1994 Casualty Event at the Port ▇▇▇▇ Facility shall
be deemed to be applied to the repair or replacement of the Port ▇▇▇▇
Facility if (I) such proceeds are applied to the purchase of one or
more Subsidiaries of the Company, or any of their respective
properties, as contemplated in the definition of "Reorganization
Transaction" in this Section 1.01 or (II) such proceeds are applied as
provided in the Port ▇▇▇▇ Consent.
Credit Agreement
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"Net Worth" means, at any time, the sum of the following for Terra and
its Subsidiaries on a Consolidated basis:
(a) the amount of capital stock; plus
(b) the amount of surplus and retained earnings (or, in the case of a
surplus or retained earnings deficit, minus the amount of such deficit).
"1995 Terra Debt" means Debt incurred by Terra under the ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
"1995 Terra Debt Indenture" means the Indenture dated as of June 22,
1995 between Terra and First Trust National Association, as Trustee,
providing for the issuance of Terra's 10.50% Senior Notes, as from time to
time amended.
"Note" means a Terra Note or a TNLP Note.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Issuance" has the meaning specified in Section 2.13(b)(i).
"Obligation" means, with respect to any Person, any obligation of such
Person of any kind, including, without limitation, any liability of such
Person on any claim, whether or not the right of any creditor to payment in
respect of such claim is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, disputed, undisputed, legal, equitable, secured
or unsecured, and whether or not such claim is discharged, stayed or
otherwise affected by any proceeding referred to in Section 6.01(g).
Without limiting the generality of the foregoing, the Obligations of the
Obligors under the Loan Documents include (a) their respective obligations
to pay principal, interest, Letter of Credit commissions, charges,
expenses, fees, attorneys' fees and disbursements, indemnities and other
amounts payable under any Loan Document and (b) their respective
obligations to reimburse any amount in respect of any of the foregoing that
any Lender, in its sole discretion, may elect to pay or advance on behalf
of such Obligor.
"Obligors" means the Terra Obligors and the TNLP Obligors.
"OECD" means the Organization for Economic Cooperation and
Development.
Credit Agreement
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"Original Credit Agreement" means the Credit Agreement dated as of
October 20, 1994 among the Company, Terra and TNLP, as Borrowers, certain
Guarantors, the "Lenders" and "Issuing Banks" referred to therein and
Citibank, as Agent, as in effect immediately prior to the First Restatement
Date.
"Other Distributions" means Dividend Payments made with respect to the
capital stock of the Company, the proceeds of which are used by Terra
solely for (i) Terra Stock Repurchases or (ii) the purchase, redemption or
other acquisition of Senior Preference Units pursuant to the SPU
Redemption.
"Other Taxes" has the meaning specified in Section 2.11(b).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Investments" means:
(a) direct obligations of the United States of America, or of any
agency thereof, or obligations guaranteed as to principal and interest by
the United States of America, or by any agency thereof, in either case
maturing not more than one year from the date of acquisition thereof;
(b) readily marketable direct obligations of the United States of
America, or of any agency thereof, or readily marketable obligations
guaranteed as to principal and interest by the United States of America, or
by any agency thereof, in either case maturing not more than three years
from the date of acquisition thereof (provided, that the aggregate amount
of Permitted Investments outstanding at any time under this paragraph (b)
having maturities in excess of one year from the date of determination
shall not exceed $25,000,000 at any time);
(c) readily marketable direct obligations issued by any State of the
United States of America or any political subdivision thereof or of the
government of Canada or any agency thereof, in each case maturing not more
than one year from the date of acquisition thereof and having the highest
credit rating obtainable from either of ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's") or Standard & Poor's Ratings Services ("Standard & Poor's");
(d) money market mutual funds (including, without limitation, tax-free
money market mutual funds) with assets consisting solely of U.S. Dollars
and securities principally
Credit Agreement
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of the types described in paragraphs (a), (b) and (c) in this definition;
(e) certificates of deposit issued by, repurchase and reverse
repurchase agreements with, banker's acceptances of, and eurodollar time
deposits with, any Initial Lender or any bank or trust company organized
under the laws of the United States of America or any state thereof, having
capital, surplus and undivided profits of at least $500,000,000 (or any
national or regional brokerage firm) and whose unsecured, unguaranteed
long-term senior debt obligations are rated at least A by Standard & Poor's
and at least A2 by Moody's, maturing not more than 270 days from the date
of acquisition thereof;
(f) obligations of not more than $100,000 in the aggregate at any one
time of any bank or bank holding company with a capital and surplus of less
than $500,000,000 or whose unsecured, unguaranteed long-term senior debt
obligations are rated less than A by Standard & Poor's or less than A2 by
Moody's;
(g) commercial paper and variable rate demand notes, in each case
rated at least A-1 by Standard & Poor's or at least P-1 by Moody's and
maturing not more than 270 days from the date of acquisition thereof;
(h) tax-exempt auction rate preferred stock and taxable and tax-exempt
auction rate securities, in each case rated at least AAA by Standard &
Poor's and Aaa by Moody's and maturing not more than 60 days from the date
of acquisition thereof;
(i) "Liquidity Optimized Guaranteed Investment Contracts" with
insurance companies having short-term debt ratings of at least A-1 by
Standard & Poor's and P-1 by Moody's and maturing not more than 30 days
from the date of acquisition thereof;
(j) Canadian dollar-denominated banker's acceptances of Canadian banks
rated at least R1-mid by Dominion Bond Rating Service ("Dominion") and
maturing not more than one year from the date of acquisition thereof; and
(k) Canadian dollar-denominated commercial paper rated at least R1-mid
by Dominion and maturing not more than one year from the date of
acquisition thereof.
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced (or, if
Credit Agreement
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such a proceeding has been commenced, such proceeding is being contested in
good faith by appropriate proceedings and enforcement of any Lien has been
and is stayed):
(a) Liens for taxes, assessments and governmental charges or
levies to the extent not required to be paid under Section 5.01(b),
(b) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens, statutory landlord's Liens
and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 30
days or which are being contested in good faith and by appropriate
proceedings,
(c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations,
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases (other than capital leases),
surety and appeal bonds, and performance bonds and other obligations
of a like nature incurred, in each case arising in the ordinary course
of business,
(e) as to any particular property at any time, such easements,
encroachments, covenants, rights of way, minor defects, irregularities
or encumbrances on title which do not materially impair the use of
such property for the purpose for which it is held by the owner
thereof,
(f) municipal and zoning ordinances that are not violated in any
material respect by the existing improvements and the present use made
by the owner thereof, and
(g) real estate taxes and assessments not yet delinquent.
"Permitted Receivables Facilities" means, collectively, (a) the
Receivables Purchase Agreement dated as of March 31, 1994 among TI, as
Seller, the financial institutions party thereto, as Purchasers, and Bank
of America Illinois, successor to Continental Bank N.A., as agent, as from
time to time amended, or any replacement or refinancing thereof, and (b)
one or more additional facilities entered into by the Company and/or any of
its Subsidiaries (which may be effected by an amendment to the facility
referred to in
Credit Agreement
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clause (a) of this definition or otherwise) providing for the sale of
Receivables, provided, that the aggregate amount outstanding under all of
the Permitted Receivables Facilities (other than Intercompany Receivables
Facilities), taken together, may not at any time exceed $150,000,000 plus
reasonable reserves.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any political subdivision
or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"PNC" has the meaning assigned to such term in the Port ▇▇▇▇ Consent.
"Port ▇▇▇▇ Consent" means the Consent, Waiver and Amendment dated as
of July 31, 1995 relating to the Existing Credit Agreement.
"Port ▇▇▇▇ Facility" means TI's facility in Port ▇▇▇▇, Iowa.
"Port ▇▇▇▇ Holdings" means "Holdco", as such term is defined in the
Port ▇▇▇▇ Consent.
"Port ▇▇▇▇ Plant" has the meaning assigned to such term in the Port
▇▇▇▇ Consent.
"Port ▇▇▇▇ Transaction" means the "Proposed Transaction" under and as
defined in the Port ▇▇▇▇ Consent.
"Post-Default Rate" means a rate per annum equal to 2% plus the
Applicable Margin plus the Base Rate as in effect from time to time.
"Preferred Stock" means, with respect to any corporation, capital
stock issued by such corporation that is entitled to a preference or
priority over any other capital stock issued by such corporation upon any
distribution of such corporation's assets, whether by dividend or upon
liquidation.
"Pro Rata Share" of any amount means, with respect to any Lender under
any Facility at any time, the product of (a) a fraction the numerator of
which is the amount of such Lender's Advances under such Facility (or, in
the case of a Facility prior to the Commitment Termination Date for such
Credit Agreement
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Facility, the amount of such Lender's Commitment under such Facility), and
the denominator of which is the aggregate Advances or Commitments, as the
case may be, under such Facility at such time, multiplied by (b) such
amount.
"Purchase Event" means that, during any period commencing January 1,
1995, the aggregate amount of Dividend Payments with respect to the capital
stock of the Company during such period exceeds the sum of (a) the
aggregate amount of Specified Payments for such period plus (b) Cumulative
Adjusted Net Income (as hereinafter defined) for such period plus (c) the
amount available during such period for Restricted Transactions under
Section 5.02(h) to the extent not utilized for Restricted Transactions
during such period. Notwithstanding anything herein to the contrary, a
Purchase Event will not be deemed to occur hereunder unless a "Purchase
Event" also would have occurred pursuant to the terms of the Original
Credit Agreement. For purposes of this definition:
"Adjusted Net Income Amount" means, for any fiscal year of Terra,
the greater of (x) 33-1/3% of the net income of Terra and its
Subsidiaries on a Consolidated basis during such fiscal year and (y)
$20,000,000.
"Cumulative Adjusted Net Income" means, for any period, the sum,
for each complete fiscal year of Terra (beginning with the fiscal year
ending December 31, 1995) during such period, of the Adjusted Net
Income Amounts for all such fiscal years.
"Quarterly Dates" means March 31, June 30, September 30 and December
31 in each year, the first of which shall be the first such day after the
Restatement Date, provided, that, if any such day is not a Business Day,
the relevant Quarterly Date shall be the immediately preceding Business
Day.
"Receivables" means accounts and notes receivable and, in each case,
related reserves.
"Receivables Subsidiary" means a wholly owned Subsidiary of Terra
Capital Holdings that is also a Subsidiary of the Company, which Subsidiary
is formed solely for the purpose of, and is engaged solely in the business
of, (x) purchasing Receivables of the Company and one or more of its
Subsidiaries under an Intercompany Receivables Facility and, at its option,
selling all or a portion of such Receivables under a Permitted Receivables
Facility and/or (y) owning the capital stock of, or other ownership
interests in, one or more Receivables Subsidiaries.
Credit Agreement
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"Redeemable" means any capital stock, Debt or other right or
Obligation that (a) the issuer thereof has undertaken to redeem at a fixed
or determinable date or dates prior to the Terra Commitment Termination
Date hereunder, whether by operation of a sinking fund or otherwise, or
upon the occurrence of a condition not solely within the control of the
issuer or (b) is redeemable on any date prior to the Terra Commitment
Termination Date at the option of the holder thereof.
"Reference Banks" means Citibank, Bank of America Illinois and
NationsBank of Texas, N.A. (or their respective Applicable Lending Offices,
as the case may be).
"Register" has the meaning specified in Section 9.07(c).
"Regulation G", "Regulation U" and "Regulation X" mean Regulations G,
U and X of the Board of Governors of the Federal Reserve System,
respectively, as in effect from time to time.
"Related Document" means the Merger Agreement and the Methanol Hedging
Agreement.
"Required Lenders" means at any time Lenders owed or holding in the
aggregate at least 51% of the sum of the then aggregate unpaid principal
amount of the Advances, the then aggregate Unused Commitments and the
aggregate Available Amount of all Letters of Credit. For purposes of this
definition, the Available Amount of each Letter of Credit shall be
considered to be owed to the relevant Lenders according to their respective
Pro Rata Shares of the Facility under which such Letter of Credit has been
issued.
"Reorganization Transaction" means a corporate reorganization of one
or more Subsidiaries of the Company consummated prior to March 31, 1997,
pursuant to which TI will acquire, directly or through one or more
intermediate transactions, not less than 80% of the equity interests in TNC
or any of its Subsidiaries (or any of their respective successors), which
reorganization shall be subject to each of the following conditions:
(a) after giving effect to and at all times during the
Reorganization Transaction, the Agent, for its benefit and the benefit
of the Lenders and Issuing Banks, will hold security interests in all
Collateral so held by the Agent immediately prior to the
Reorganization Transaction;
Credit Agreement
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(b) none of Terra Capital Holdings, TMC, BMCH or BMLP shall be
party to any part of the Reorganization Transaction (except that Terra
Capital Holdings may receive capital contributions from Terra, and may
make capital contributions to one or more of its Subsidiaries, in
connection with the Reorganization Transaction);
(c) no Obligor shall, after giving effect to the Reorganization
Transaction, be subject to any indenture, agreement, instrument or
other arrangement that, directly or indirectly, prohibits or
restrains, or has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon, the declaration or payment of
dividends or the making of loans or advances to or Investments in or
the sale, assignment, transfer or other disposition of property to
Terra or any Subsidiary thereof, in each case other than any such
arrangement binding upon such Person immediately prior to the
Reorganization Transaction;
(d) no part of the Reorganization Transaction shall consist of
the sale of ownership interests in any Subsidiary of the Company to
any Person other than the Company or a Subsidiary of the Company;
(e) no part of the Reorganization Transaction shall have a
Material Adverse Effect; and
(f) the Obligors shall have delivered to the Agent such
agreements, instruments and other documents (including, without
limitation, charter documents, proof of corporate and other authority,
certificates of officers of the Obligors, amendments and supplements
to Security Documents, Uniform Commercial Code financing statements,
legal opinions and evidence of all necessary government and third-
party consents, authorizations and approvals) as the Agent may
reasonably request in connection with the Reorganization Transaction.
"Restatement Date" has the meaning assigned to such term in
Section 3.01.
"Restricted Transactions" means, collectively, Capital Expenditures
and Specified Acquisitions.
"Rolling Period" means any period of four consecutive fiscal quarters
of Terra.
Credit Agreement
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"Security Documents" means the Holdings Pledge Agreement, the Terra
Capital Pledge Agreement, the Subsidiary Pledge and Security Agreement, the
TNLP Pledge and Security Agreement, each security agreement or other grant
of security now or hereafter made by any Obligor to secure any of the
Obligations hereunder and under the other Loan Documents, and all Uniform
Commercial Code financing statements required by this Agreement or any of
the foregoing to be filed with respect to the security interests in
personal property created pursuant thereto.
"Senior Financial Officer" means the Chief Financial Officer of Terra.
"Senior Preference Units" means the "Senior Preference Units" issued
and outstanding under, and as defined in, the Agreement of Limited
Partnership dated as of December 4, 1991 of TNCLP, as such Agreement of
Limited Partnership is in effect on the Restatement Date.
"Single Employer Plan" of any Person means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that is subject to Title IV of
ERISA and that (a) is maintained for employees or former employees of such
Person or any of its ERISA Affiliates and no Person other than such Person
and its ERISA Affiliates or (b) was so maintained and in respect of which
such Person or any of its ERISA Affiliates has or would have liability
under Section 4069 of ERISA in the event such plan has been or were to be
terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person 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, (c) 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 and (d)
such Person is not engaged in business or a transaction, and is not about
to engage in business or a transaction, for which such Person's property
would constitute an unreasonably small capital.
"Specified Acquisitions" means Investments (including, without
limitation, Investments arising by reason of any merger or consolidation
permitted under Section 5.02(d)(i)(y), but excluding Investments
Credit Agreement
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contemplated by the Port ▇▇▇▇ Transaction) consisting of acquisitions of
ownership interests in one or more entities engaged in the same or allied
line or lines of business as Terra and its Subsidiaries, taken as a whole.
"Specified Payments" means, for any period, (a) all interest due and
payable on the AMCI Senior Notes and on the 1995 Terra Debt during such
period, (b) all scheduled dividends payable during such period on
convertible Preferred Stock or other equity securities issued and applied
to prepay the Advances (to the extent the Commitments hereunder are reduced
simultaneously with such issuance), (c) ordinary and necessary expenses
incurred by Terra as a result of its operations as a publicly-held holding
company and (d) other payments in an aggregate amount up to $5,000,000 per
year to the extent required under pre-existing obligations.
"SPU Redemption" means the purchase, redemption or other acquisition
from time to time of all or a portion of the outstanding Senior Preference
Units by Terra and its Subsidiaries (or any of them):
(a) on such terms and conditions as could not reasonably be
expected to have a Material Adverse Effect; and
(b) in accordance in all material respects with the terms and
conditions hereof.
"SPU Redemption Time" means the time as of which all of the Senior
Preference Units shall have been purchased or otherwise redeemed pursuant
to the SPU Redemption.
"Subordinated Indebtedness" means Debt of Terra or any of its
Subsidiaries the payment of which is subordinated in right of payment to
the prior payment in full of the Advances.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting power to elect
a majority of the board of directors of such corporation (irrespective of
whether at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such
partnership or joint venture or (c) the beneficial interest in such trust
or estate is at the time directly or indirectly owned or controlled by such
Person, by such
Credit Agreement
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Person and one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries.
"Subsidiary Guarantor" means TNC, BMCH, TMC and BMLP and (from and
after the SPU Redemption Time) TNLP and its successors.
"Subsidiary Pledge and Security Agreement" means a Pledge and Security
Agreement in the form of Exhibit B-3 to the Existing Credit Agreement
between certain of the Guarantors and the Agent, as from time to time
amended.
"Terra" means Terra Industries Inc., a Maryland corporation and an
indirect parent of the Company.
"Terra Advance" means an Advance made or outstanding pursuant to
Section 2.01(a).
"Terra Borrowing" means a borrowing consisting of simultaneous Terra
Advances of the same Type.
"Terra Capital Holdings" means Terra Capital Holdings, Inc., a
Delaware corporation and the direct parent of the Company.
"Terra Capital Pledge Agreement" means a Pledge Agreement in the form
of Exhibit B-2 to the Existing Credit Agreement between the Company and the
Agent, as from time to time amended.
"Terra Commitment" has the meaning specified in Section 2.01(a).
"Terra Commitment Reduction Dates" shall mean the Quarterly Dates
falling on or nearest to December 31 of each year, commencing with December
31, 1996, through and including December 31, 2000.
"Terra Commitment Termination Date" means the earlier of (a) December
31, 2000 (provided, that if such day is not a Business Day, the Terra
Commitment Termination Date shall be the immediately preceding Business
Day), and (b) the termination or cancellation of the Terra Commitments
pursuant to the terms of this Agreement.
"Terra Facility" means the revolving credit facility provided
hereunder in respect of the Terra Commitments.
"Terra Guaranteed Obligations" has the meaning specified in
Section 8.01.
Credit Agreement
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"Terra Guarantors" means Terra, Terra Capital Holdings, TNC, TMC,
BMCH, BMLP and (from and after the SPU Redemption Time) TNLP and its
successors.
"Terra L/C Cash Collateral Account" means each of the "Terra L/C Cash
Collateral Account" under the Terra Capital Pledge Agreement and the "Terra
L/C Cash Collateral Account" under the Subsidiary Pledge and Security
Agreement.
"Terra Letter of Credit" means a letter of credit issued by an Issuing
Bank for account of the Company or any of its Subsidiaries (other than,
prior to the SPU Redemption Time, TNLP or any of its Subsidiaries) pursuant
to Section 2.13(a).
"Terra Letter of Credit Commitment" means, with respect to any Issuing
Bank at any time, the amount set forth opposite such Issuing Bank's name on
Schedule 2.01 under the caption "Terra Letter of Credit Commitment", as
such amount may be reduced pursuant to Section 2.04.
"Terra Letter of Credit Liability" means, as of any date of
determination, all of the liabilities of the Company to the Issuing Banks
in respect of Terra Letters of Credit, whether such liability is contingent
or fixed, and shall consist of the sum of (a) the aggregate Available
Amount of all Terra Letters of Credit then outstanding, plus (b) the
aggregate amount that has then been paid by, and has not been reimbursed
to, any Issuing Bank under Terra Letters of Credit.
"Terra Letter of Credit Sublimit" means (a) prior to the SPU
Redemption Time, $30,000,000 and (b) from and after the SPU Redemption
Time, $45,000,000.
"Terra Note" means a promissory note of the Company payable to the
order of a Lender, in substantially the form of Exhibit A-1, as from time
to time amended.
"Terra Obligors" means the Terra Guarantors and the Company.
"Terra Stock Repurchase" means the purchase, redemption, retirement or
other acquisition of shares of common stock of Terra.
"TI" means Terra International, Inc., a Delaware corporation and a
wholly owned Subsidiary of the Company.
"TMC" means Terra Methanol Corporation, a Delaware corporation and a
wholly owned Subsidiary of the Company.
Credit Agreement
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"TNC" means Terra Nitrogen Corporation, a Delaware corporation and a
wholly owned Subsidiary of the Company.
"TNCLP" means Terra Nitrogen Company, L.P., a Delaware limited
partnership and a Subsidiary of the Company.
"TNLP Advance" means an Advance made or outstanding pursuant to
Section 2.01(b).
"TNLP Borrowing" means a borrowing consisting of simultaneous TNLP
Advances of the same Type.
"TNLP Commitment" has the meaning specified in Section 2.01(b).
"TNLP Commitment Termination Date" means the earliest of (a) December
31, 2000 (provided, that if such day is not a Business Day, the TNLP
Commitment Termination Date shall be the immediately preceding Business
Day), (b) the termination or cancellation of the TNLP Commitments pursuant
to the terms of this Agreement, and (c) the date on which the SPU
Redemption Time occurs.
"TNLP Facility" means the revolving credit facility provided hereunder
in respect of the TNLP Commitments.
"TNLP Guaranteed Obligations" has the meaning specified in
Section 8.01.
"TNLP Guarantors" means Terra, Terra Capital Holdings, the Company,
TNC, TMC, BMCH and BMLP.
"TNLP Letter of Credit" means a letter of credit issued by an Issuing
Bank for account of TNLP or any of its Subsidiaries pursuant to Section
2.13(a).
"TNLP Letter of Credit Commitment" means, with respect to any Issuing
Bank at any time, the amount set forth opposite such Issuing Bank's name on
Schedule 2.01 under the caption "TNLP Letter of Credit Commitment", as such
amount may be reduced pursuant to Section 2.04.
"TNLP Letter of Credit Liability" means, as of any date of
determination, all of the liabilities of TNLP to the Issuing Banks in
respect of TNLP Letters of Credit, whether such liability is contingent or
fixed, and shall consist of the sum of (a) the aggregate Available Amount
of all TNLP Letters of Credit then outstanding, plus (b) the aggregate
amount that has then been paid by, and has not been reimbursed to, any
Issuing Bank under TNLP Letters of Credit.
Credit Agreement
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"TNLP Letter of Credit Sublimit" means $15,000,000.
"TNLP Note" means a promissory note of TNLP payable to the order of a
Lender, in substantially the form of Exhibit A-2, as from time to time
amended.
"TNLP Obligors" means the TNLP Guarantors and TNLP.
"TNLP Pledge and Security Agreement" means a Pledge and Security
Agreement in the form of Exhibit B-4 to the Existing Credit Agreement
between TNLP and the Agent, as from time to time amended.
"Type" refers to the distinction between Advances bearing interest at
the Base Rate and Advances bearing interest at the Eurodollar Rate.
"Unused Commitment" means, at any time, the aggregate amount of all
Lenders' Unused Terra Commitments at such time and all Lenders' Unused TNLP
Commitments at such time.
"Unused Terra Commitment" means, with respect to any Lender at any
time, (a) such Lender's Terra Commitment at such time minus (without
duplication) (b) the sum of (i) the aggregate outstanding principal amount
of all Terra Advances made by such Lender and (ii) such Lender's Pro Rata
Share of the aggregate Available Amount of all Terra Letters of Credit
outstanding at such time and of all unreimbursed drawings thereunder.
"Unused TNLP Commitment" means, with respect to any Lender at any
time, (a) such Lender's TNLP Commitment at such time minus (without
duplication) (b) the sum of (i) the aggregate outstanding principal amount
of all TNLP Advances made by such Lender and (ii) such Lender's Pro Rata
Share of the aggregate Available Amount of all TNLP Letters of Credit
outstanding at such time and of all unreimbursed drawings thereunder.
"U.S. Dollars" and "$" means lawful money of the United States of
America.
Section 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" mean
"to but excluding".
Section 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP.
Credit Agreement
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
Section 2.01. The Advances.
(a) Terra Facility.
(i) Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make advances ("Terra Advances") to the Company
from time to time on any Business Day during the period from the
Restatement Date until the Terra Commitment Termination Date in an
aggregate amount at any one time outstanding not to exceed the amount set
forth opposite such Lender's name on Schedule 2.01 under the caption "Terra
Commitment" or, if such Lender has entered into one or more Assignments and
Acceptances, set forth for such Lender in the Register as such Lender's
"Terra Commitment" (such amount being such Lender's "Terra Commitment"),
and, as to all Lenders, in an aggregate amount at any one time outstanding
not to exceed $375,000,000 (provided, that at all times prior to the SPU
Redemption Time the aggregate amount of the Terra Commitments shall be
deemed to be reduced for all purposes hereof by the aggregate amount of the
TNLP Commitments as in effect from time to time). On the Restatement Date,
all outstanding "Terra Facility A Advances" and "Terra Working Capital
Advances" of each Lender under the Existing Credit Agreement shall
automatically, without any action on the part of any Person, be deemed to
be Terra Advances hereunder. The aggregate principal amount of the Terra
Advances of each Lender as of the Restatement Date shall be the amount set
forth opposite such Lender's name on Schedule 2.01 under the caption "Terra
Advances".
(ii) The Terra Advances shall be made by the Lenders ratably according
to their respective Terra Commitments.
(iii) Within the limits of each Lender's Terra Commitment in effect
from time to time, the Company may borrow under this Section 2.01(a) and/or
obtain the issuance of Letters of Credit under Section 2.13, prepay
pursuant to Section 2.05(a) and reborrow under this Section 2.01(a);
provided, that the aggregate outstanding principal amount of Terra Advances
when added to the aggregate Terra Letter of Credit Liability may not at any
time exceed the aggregate amount of the Terra Commitments at such time.
Credit Agreement
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(iv) The proceeds of the Terra Advances shall be used solely (A) for
general corporate purposes of the Company and its Subsidiaries (other than,
prior to the SPU Redemption Time, TNLP and its successors), including,
without limitation, to finance the ongoing working capital needs of, and to
refinance outstanding Debt of, such Persons, (B) to finance all or a
portion of the SPU Redemption (provided, that proceeds of Terra Advances
used for such purpose shall not exceed $125,000,000 in the aggregate) and
(C) to finance the purchase, redemption, retirement or other acquisition of
shares of common stock of Terra.
(v) Notwithstanding the foregoing provisions of Section 2.01(a), the
Company agrees that, for a period of 30 consecutive days during each fiscal
year (beginning with the fiscal year beginning January 1, 1996), it will
prepay the Terra Advances in such amounts as shall be necessary so the
aggregate outstanding principal amount of the Terra Advances shall not
exceed the Terra Cleanup Amount as in effect at such time; provided, that
this Section 2.01(a)(v) shall not prevent the Company from requesting the
issuance of Terra Letters of Credit during any such period pursuant to
Section 2.13, or the Lenders from making Terra Advances in respect thereof
pursuant to Section 2.13(c), which Terra Advances (subject to the other
terms and conditions of this Agreement) may remain outstanding during such
period. For purposes hereof, "Terra Cleanup Amount" means, at any time
during the periods set forth in column (A) below, the respective amount set
forth for such period in column (B) below:
(A) (B)
Period Terra Cleanup Amount
--------------------------- ---------------------
Prior to December 31, 1996 $150,000,000
From January 1, 1997 to $120,000,000
December 31, 1997
From January 1, 1998 to $ 90,000,000
December 31, 1998
From January 1, 1999 to $ 60,000,000
December 31, 1999
From and after January 1, 2000 $ 30,000,000
Credit Agreement
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(b) TNLP Facility.
-------------
(i) Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make advances ("TNLP Advances") to TNLP from time
to time on any Business Day during the period from the Restatement Date
until the TNLP Commitment Termination Date in an aggregate amount at any
one time outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule 2.01 under the caption "TNLP Commitment" or, if
such Lender has entered into one or more Assignments and Acceptances, set
forth for such Lender in the Register as such Lender's "TNLP Commitment"
(such amount being such Lender's "TNLP Commitment"), and, as to all
Lenders, in an aggregate amount at any one time outstanding not to exceed
$25,000,000. On the Restatement Date, all outstanding "TNLP Working Capital
Advances" of each Lender under the Existing Credit Agreement shall
automatically, without any action on the part of any Person, be deemed to
be TNLP Advances hereunder. The aggregate principal amount of the TNLP
Advances of each Lender as of the Restatement Date shall be the amount set
forth opposite such Lender's name on Schedule 2.01 under the caption "TNLP
Advances".
(ii) The TNLP Advances shall be made by the Lenders ratably according
to their respective TNLP Commitments.
(iii) Within the limits of each Lender's TNLP Commitment in effect
from time to time, TNLP may borrow under this Section 2.01(b) and/or obtain
the issuance of Letters of Credit under Section 2.13, prepay pursuant to
Section 2.05(a) and reborrow under this Section 2.01(b); provided, that the
aggregate outstanding principal amount of TNLP Advances when added to the
aggregate TNLP Letter of Credit Liability may not at any time exceed the
aggregate amount of the TNLP Commitments at such time.
(iv) The proceeds of the TNLP Advances shall be used solely for
general corporate purposes of TNLP, including, without limitation, to
finance its ongoing working capital needs and to refinance outstanding
Debt.
(c) Minimum Amounts. Each Borrowing shall be in an aggregate amount
at least equal to $3,000,000 or an integral multiple of $1,000,000 in excess
thereof.
(d) No Responsibility to Third Parties. Neither the Agent nor any
Lender nor any Issuing Bank shall have any responsibility as to the application
or use of any of the proceeds of any Advance.
Credit Agreement
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Section 2.02. Making the Advances.
(a) (i) Except as otherwise provided in Section 2.13, each Borrowing
shall be made on notice, given not later than 11:00 A.M. (New York City
time) on the Business Day of (or, with respect to a Borrowing of Eurodollar
Rate Advances, 10:00 A.M. (New York City time) on the second Business Day
prior to the date of) the proposed Borrowing, by the relevant Borrower to
the Agent, which shall give to each Lender prompt notice thereof by telex,
telecopier or cable. Each such notice of a Borrowing (a "Notice of
Borrowing") shall be by telex, telecopier or cable, confirmed immediately
in writing, in substantially the form of Exhibit C, specifying therein (1)
the requested date of such Borrowing, (2) the Facility under which such
Borrowing is to be made, (3) the requested Type of Advances comprising such
Borrowing, (4) the requested aggregate amount of such Borrowing and (5) in
the case of a Borrowing consisting of Eurodollar Rate Advances, the
requested initial Interest Period for each such Advance.
(ii) In the case of a proposed Borrowing comprised of Eurodollar Rate
Advances, the Agent shall promptly notify each relevant Lender of the
applicable interest rate under Section 2.06(a)(ii).
(iii) Each Lender shall, before 1:00 P.M. (New York City time) on the
date of each Borrowing after the Restatement Date, make available for the
account of its Applicable Lending Office to the Agent at the Agent's
Account, in same day funds, such Lender's ratable portion of such
Borrowing. After the Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the Agent will transfer
same day funds to the relevant Borrower's Account; provided, that (i) in
the case of any Terra Borrowing, the Agent shall first make a portion of
such funds equal to any unreimbursed drawing under any Terra Letter of
Credit available to each Issuing Bank having issued any such Letter of
Credit for reimbursement of such drawing, and (ii) in the case of any TNLP
Borrowing, the Agent shall first make a portion of such funds equal to any
unreimbursed drawing under any TNLP Letter of Credit available to each
Issuing Bank having issued any such Letter of Credit for reimbursement of
such drawing.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) neither Borrower may select Eurodollar Rate Advances (y) for any
Borrowing if the aggregate amount of such Borrowing is less than $3,000,000
or (z) if the obligation of the relevant Lenders to make Eurodollar Rate
Advances shall then be suspended pursuant to Section 2.08 or
Credit Agreement
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2.09, and (ii) Eurodollar Rate Advances may not be outstanding under more
than 15 separate Interest Periods under either Facility at any one time.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
relevant Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the
relevant Borrower shall indemnify each relevant Lender against any loss,
cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of Borrowing for
such Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such
Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a relevant Lender
prior to 12:00 Noon (New York City time) on the date of any Borrowing that
such Lender will not make available to the Agent such Lender's ratable
portion of such Borrowing, the Agent may assume that such Lender has made
such portion available to the Agent on the date of such Borrowing in
accordance with Section 2.02(a) and the Agent may, in reliance upon such
assumption, make available to the relevant Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have
so made such ratable portion available to the Agent and the Agent shall
have made available such corresponding amount to the relevant Borrower,
such Lender and the relevant Borrower severally agree to repay to the Agent
forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the
relevant Borrower until the date such amount is repaid to the Agent, at (i)
in the case of the relevant Borrower, the interest rate applicable at such
time under Section 2.06 to Advances comprising such Borrowing and (ii) in
the case of such Lender, the Federal Funds Rate. If such Lender shall repay
to the Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Advance as part of such Borrowing for purposes of
this Agreement.
(e) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to
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make the Advance to be made by such other Lender on the date of any
Borrowing.
Section 2.03. Repayment.
(a) Terra Advances. The Company hereby promises to pay to the Agent
for the account of each Lender the full outstanding principal amount of the
Terra Advances of such Lender on the Terra Commitment Termination Date. In
addition, if following any Terra Commitment Reduction Date the aggregate
principal amount of the Terra Advances, together with the aggregate amount of
all Terra Letter of Credit Liabilities, shall exceed the Terra Commitments, the
Company shall, first, pay Advances and, second, provide cover for Terra Letter
of Credit Liabilities in the manner specified in Section 2.05(d)) in an
aggregate amount equal to such excess.
(b) TNLP Advances. TNLP hereby promises to pay to the Agent for the
account of each Lender the full outstanding principal amount of the TNLP
Advances of such Lender on the TNLP Commitment Termination Date.
(c) All Advances. All repayments of principal under this Section
2.03 shall be made together with interest accrued to the date of such repayment
on the principal amount repaid.
Section 2.04. Termination or Reduction of the Commitments.
(a) Optional. The Borrowers may at any time or from time to time,
upon not less than two Business Days' notice to the Agent, terminate in whole or
reduce in part the Commitments under the relevant Facility, provided, that (i)
each partial reduction of the Commitments under such Facility shall be in an
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof, and (ii) the aggregate amount of the Commitments under either Facility
shall not be reduced below the Letter of Credit Commitment for such Facility.
(b) Mandatory -- Terra Commitments. The Terra Commitments shall be
automatically and permanently reduced to zero on the Terra Commitment
Termination Date. In addition, the aggregate amount of the Terra Commitments
shall be automatically reduced on each Terra Commitment Reduction Date set forth
in column (A) below to the amount set forth in column (B) below opposite such
Terra Commitment Reduction Date:
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(A) (B)
Terra Terra
Commitment Reduction Commitments Reduced
Date Falling on or to the Following
Nearest to: Amounts ($)
-------------------- -------------------
December 31, 1996 $355,000,000
December 31, 1997 $335,000,000
December 31, 1998 $315,000,000
December 31, 1999 $295,000,000
(c) Mandatory -- TNLP Commitments. The TNLP Commitments shall be
automatically and permanently reduced to zero on the TNLP Commitment Termination
Date.
(d) Reductions Pro Rata. Each reduction of the Commitments under a
Facility shall be applied to the respective Commitments of the Lenders according
to their respective Pro Rata Shares of such Facility.
(e) General. Commitments once terminated or reduced may not be
reinstated.
Section 2.05. Prepayments, Etc.
(a) Optional Prepayments. (i) Either Borrower may, upon at least two
Business Days' notice (in the case of prepayment of Eurodollar Rate
Advances) or upon notice given on the date of prepayment (in the case of
prepayments of Base Rate Advances) to the Agent (which notice shall state
the Facilities to be prepaid and the proposed date and aggregate principal
amount of the prepayment), and if such notice is given such Borrower shall,
prepay the outstanding principal amount of the Advances under the specified
Facilities in the aggregate amount and on the date specified in such
notice, together with accrued interest to the date of such prepayment on
the principal amount prepaid; provided, that (x) each partial prepayment
shall be in an aggregate principal amount of $3,000,000 or an integral
multiple of $1,000,000 in excess thereof, (y) any such prepayment of a
Eurodollar Rate Advance other than on the last day of the Interest Period
therefor shall be accompanied by, and subject to, the payment of any amount
payable under Section 9.04(c) in respect of such prepayment and (z) each
such notice shall be made on the relevant day not later than, in the case
of prepayments of Eurodollar Rate Advances, 10:00 A.M. (New York City time)
and, in the case of prepayments of Base Rate Advances, 12:00 Noon (New York
City time).
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(ii) Each prepayment of Advances under this Section 2.05(a) shall be
made for account of the relevant Lenders according to their respective Pro
Rata Shares of the principal amount of the Advances then outstanding under
the relevant Facility.
(b) Mandatory Prepayments; Commitment Reductions.
(i) Sale of Assets. Without limiting the obligation of the Company to
obtain the consent of the Required Lenders pursuant to Section 5.02(e) to
any Disposition not otherwise permitted hereunder, on the first anniversary
of each Disposition the Company shall prepay the Terra Advances (and/or
provide cover for Terra Letter of Credit Liabilities as specified in
Section 2.05(d)), and the Terra Commitments shall be subject to automatic
reduction, in an aggregate amount equal to (A) 75% of the Net Available
Proceeds of such Disposition minus (B) the amount of such Net Available
Proceeds theretofore invested or committed to be invested in the business
of the Company and its Subsidiaries; provided, that (x) for purposes of
this clause (i) the aggregate Net Available Proceeds of all such
Dispositions in a fiscal year shall be deemed to be reduced by $25,000,000
(but shall not be deemed to be less than zero); and (y) the sale by the
Company or any of its Subsidiaries of Receivables under an Intercompany
Receivables Facility or under a Permitted Receivables Facility shall not be
deemed to be a Disposition for purposes of this clause (i).
(ii) Casualty Events. Upon the date 360 days following the receipt by
Terra or any of its Subsidiaries of the proceeds of insurance, condemnation
award or other compensation in respect of any Casualty Event affecting any
property of Terra or any of its Subsidiaries, the Company shall prepay the
Terra Advances (and/or provide cover for Terra Letter of Credit Liabilities
as specified in Section 2.05(d)), and the Terra Commitments shall be
subject to automatic reduction, in an aggregate amount, if any, equal to
(A) 75% of the Net Available Proceeds of such Casualty Event not
theretofore applied to the repair or replacement of such property or set
aside for such purpose minus (B) the amount of such Net Available Proceeds
theretofore invested or committed to be invested in the business of the
Company and its Subsidiaries. Nothing in this clause (ii) shall be deemed
to limit any obligation of Terra or any of its Subsidiaries pursuant to any
of the Security Documents to remit to a collateral or similar account
(including, without limitation, a Collateral Account under and as defined
in the Security Documents) maintained by the Agent pursuant to any of the
Security Documents the
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proceeds of insurance, condemnation award or other compensation received in
respect of any Casualty Event.
(c) Application. On the dates specified in clauses (i) and (ii) of
Section 2.05(b), the Terra Commitments shall be reduced automatically in an
aggregate amount equal to the amount specified in such paragraphs (and to the
extent that, after giving effect to such reduction, the aggregate principal
amount of Terra Advances and Terra Letter of Credit Liabilities would exceed the
Terra Commitments, the Company shall, first, prepay Terra Advances and, second,
provide cover for Terra Letter of Credit Liabilities as specified in paragraph
(d) below, in an aggregate amount equal to such excess).
(d) Cover for Terra Letter of Credit Liabilities. In the event that
the Company shall be required pursuant to Section 2.03(a) or Section 2.05(b) to
provide cover for Terra Letter of Credit Liabilities, the Company shall effect
the same by paying to the Agent same day funds in an amount equal to the
required amount, which funds shall be deposited in the Terra L/C Cash Collateral
Account until such time as the Terra Letters of Credit shall have been
terminated and all of the Terra Letter of Credit Liabilities paid in full.
(e) Payments with Interest. All prepayments under this Section 2.05
shall be made together with accrued interest to the date of such prepayment on
the principal amount prepaid.
Section 2.06. Interest.
(a) Ordinary Interest. The Company shall pay interest on the unpaid
principal amount of each Terra Advance owing to each Lender from the date of
such Advance until such principal amount shall be paid in full, and TNLP shall
pay interest on the unpaid principal amount of each TNLP Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, in each case at the following rates per annum:
(i) Base Rate Advances. While such Advance is a Base Rate Advance, a
rate per annum equal at all times to the sum of (1) the Base Rate in effect
from time to time plus (2) the Applicable Margin in effect from time to
time, payable in arrears quarterly on each Quarterly Date and on the date
such Base Rate Advance shall be Converted (but only on the amount
Converted) or paid in full.
(ii) Eurodollar Rate Advances. While such Advance is a Eurodollar
Rate Advance, a rate per annum equal at all times during each Interest
Period for such Advance to the sum of (1) the Eurodollar Rate for such
Interest Period for such Advance plus (2) the Applicable Margin in effect
from time
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to time, payable in arrears on the last day of such Interest Period and, if
such Interest Period has a duration of more than three months, on each
three-month anniversary of the first day of such Interest Period occurring
during such Interest Period.
(b) Post-Default Interest. If (a) any Obligor shall fail to pay when
due (by acceleration or otherwise) any amount payable under any Loan Document
after any applicable grace period provided in Section 6.01(a), or (b) (i) an
Event of Default shall have occurred and be continuing during any period and
(ii) the Agent or the Required Lenders, through the Agent, shall have notified
the Company thereof, each Borrower shall, notwithstanding anything else in this
Agreement to the contrary, pay to the Agent for account of each Lender interest,
during such period, at the applicable Post-Default Rate on any principal of any
Advance made by such Lender to such Borrower, and on any other amount whatsoever
then due and payable by such Borrower hereunder or under the Notes held by such
Lender to or for account of such Lender, such interest to be payable from time
to time on demand.
Section 2.07. Fees.
(a) Commitment Fee. Each Borrower hereby promises to pay to the
Agent for the account of each Lender a commitment fee (i) in the case of the
Company, on the average daily Unused Terra Commitment of such Lender and (ii) in
the case of TNLP, on the average daily Unused TNLP Commitment of such Lender, in
each case for the period from the Restatement Date (or from the effective date
specified in the Assignment and Acceptance pursuant to which it became a Lender
in the case of each other Lender other than the Initial Lenders) until the
Commitment Termination Date for the relevant Facility at the Applicable
Commitment Fee Rate, payable in arrears (x) quarterly after the Restatement Date
on each Quarterly Date and (y) on the Commitment Termination Date for the
relevant Facility. Notwithstanding anything to the contrary contained herein or
in the Existing Credit Agreement, commitment fee accrued under Section 2.07(a)
of the Existing Credit Agreement for the period prior to the Restatement Date
shall be payable on the first Quarterly Date hereunder following the Restatement
Date.
(b) Letter of Credit Commission, Etc.
(i) The Company hereby promises to pay to the Agent (A) for the
account of each Issuing Bank a non-refundable fronting fee of 1/4% per
annum of the face amount of each Terra Letter of Credit issued by it for
the period from the date of issuance thereof until such Letter of Credit
has been drawn in full, expires or is terminated and (B) for the
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account of each Lender a non-refundable commission on such Lender's Pro
Rata Share of the average daily aggregate Available Amount of all Terra
Letters of Credit then outstanding at the Applicable Letter of Credit Fee
Rate, such fees to be payable in arrears on each Quarterly Date and on the
Terra Commitment Termination Date and calculated, for any day, after giving
effect to any payments made under such Letter of Credit on such day.
(ii) TNLP hereby promises to pay to the Agent (A) for the account of
each Issuing Bank a non-refundable fronting fee of 1/4% per annum of the
face amount of each TNLP Letter of Credit issued by it for the period from
the date of issuance thereof until such Letter of Credit has been drawn in
full, expires or is terminated and (B) for the account of each Lender a
non-refundable commission on such Lender's Pro Rata Share of the average
daily aggregate Available Amount of all TNLP Letters of Credit then
outstanding at the Applicable Letter of Credit Fee Rate, such fees to be
payable quarterly in arrears on each Quarterly Date and on the TNLP
Commitment Termination Date and calculated, for any day, after giving
effect to any payments made under such Letter of Credit on such day.
(c) Letter of Credit Expenses. Each Borrower shall pay to each
Issuing Bank, for its own account, such commission, issuance fees, transfer fees
and other fees and charges in connection with the issuance or administration of
the Letters of Credit issued by it as such Borrower and such Issuing Bank shall
agree; provided, that all fees and other charges payable pursuant to this
Section 2.07(c) shall be the customary amounts charged by such Issuing Bank in
connection with the issuance or administration of similar letters of credit and
the amounts so determined shall be adjusted as necessary to avoid a duplicative
payment hereunder.
Section 2.08. Conversion and Continuation of Advances.
(a) Optional Conversion. Each Borrower may on any Business Day, upon
notice given to the Agent not later than 10:00 A.M. (New York City time) on the
second Business Day prior to the date of the proposed Conversion and subject to
the provisions of Sections 2.09 and 2.10, Convert all or any portion of the
Advances of one Type outstanding under any Facility (and, in the case of
Eurodollar Rate Advances, having the same Interest Period); provided, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b)(i) and
no Conversion of any Advances shall
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result in a greater number of separate Interest Periods in respect of Eurodollar
Rate Advances under any Facility than permitted under Section 2.02(b)(ii). Each
such notice of Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the aggregate amount, Type and
Facility of the Advances (and, in the case of Eurodollar Rate Advances, the
Interest Period therefor) to be Converted and (iii) if such Conversion is into
Eurodollar Rate Advances, the duration of the initial Interest Period for such
Advances. Each notice of Conversion shall be irrevocable and binding on the
relevant Borrower.
(b) Certain Mandatory Conversions.
(i) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $3,000,000 such Advances
shall automatically Convert into Base Rate Advances.
(ii) If a Borrower shall fail to select the duration of any Interest
Period for any outstanding Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01
and in clause (a) or (c) of this Section 2.08, the Agent will forthwith so
notify such Borrower and the relevant Lenders, whereupon each such
Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance.
(iii) Upon the occurrence and during the continuance of any Event of
Default and upon notice from the Agent to the Borrowers at the request of
the Required Lenders, (x) each Eurodollar Rate Advance will automatically,
on the last day of the then existing Interest Period therefor, Convert into
a Base Rate Advance and (y) the obligation of the Lenders to make, or to
Convert Advances into, or to Continue, Eurodollar Rate Advances shall be
suspended.
(c) Continuations. Each Borrower may, on any Business Day, upon
notice given to the Agent not later than 10:00 A.M. (New York City time) on the
second Business Day prior to the date of the proposed Continuation and subject
to the provisions of Sections 2.09, Continue all or any portion of the
Eurodollar Rate Advances outstanding under a relevant Facility having the same
Interest Period as such Eurodollar Rate Advances; provided, that any such
Continuation shall be made only on the last day of an Interest Period for such
Eurodollar Rate Advances, any Continuation of Eurodollar Rate Advances shall be
in an amount not less than the minimum Borrowing amount specified in Section
2.02(b)(i) and no Continuation of any Eurodollar Rate
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Advances shall result in a greater number of separate Interest Periods in
respect of Eurodollar Rate Advances under any Facility than permitted under
Section 2.02(b)(ii). Each such notice of Continuation shall, within the
restrictions specified above, specify (i) the date of such Continuation, (ii)
the aggregate amount and Facility of, and the Interest Period for, the Advances
being Continued and (iii) the duration of the initial Interest Period for the
Eurodollar Rate Advances subject to such Continuation. Each notice of
Continuation shall be irrevocable and binding on the relevant Borrower.
Section 2.09. Increased Costs, Illegality, Etc.
(a) If, due to either (i) the introduction of or any change in or in
the interpretation of (to the extent any such introduction or change occurs
after the date hereof) any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
adopted or made after the date hereof (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances under any Facility, then
the relevant Borrower shall from time to time, upon demand by such Lender (with
a copy of such demand to the Agent), pay to the Agent for the account of such
Lender additional amounts sufficient to compensate such Lender for such
increased cost; provided, that, before making any such demand, each Lender
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Applicable Lending Office
if the making of such a designation would avoid the need for, or reduce the
amount of, such increased cost and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender. A certificate as to the
amount of such increased cost, submitted to the relevant Borrower by such
Lender, shall be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines in good faith that compliance with any
law or regulation enacted or introduced after the date hereof or any guideline
or request from any central bank or other governmental authority adopted or made
after the date hereof (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type or the issuance of the
Letters of Credit (or similar contingent obligations), then, upon demand by such
Lender (with a copy of such demand to the Agent), each Borrower shall pay to the
Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender in the
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light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder or to the issuance or maintenance of any
Letters of Credit. A certificate as to such amounts submitted to the relevant
Borrower by such Lender, shall be conclusive and binding for all purposes,
absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances, (i) the
Required Lenders reasonably determine and notify the Agent that the Eurodollar
Rate for any Interest Period for such Advances will not adequately reflect the
cost to such Required Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period, or (ii) if fewer than two
Reference Banks furnish timely information to the Agent for determining the
Eurodollar Rate for any Eurodollar Rate Advances, the Agent shall forthwith so
notify the Borrowers and the Lenders, whereupon (x) each Eurodollar Rate Advance
will automatically, on the last day of any then existing Interest Period
therefor, Convert to a Base Rate Advance, and (y) the obligation of the Lenders
to make, or to Convert Advances into, or to Continue, Eurodollar Rate Advances
shall be suspended until the Agent shall notify the Borrowers and such Lenders
that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of (to the extent any
such introduction or change occurs after the date hereof) any law or regulation
shall make it unlawful, or any central bank or other governmental authority
having appropriate jurisdiction shall assert in writing that it is unlawful, for
any Lender or its Eurodollar Lending Office to perform its obligations hereunder
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances hereunder, then, on notice thereof and demand therefor by such
Lender to the Borrowers through the Agent, (i) each Eurodollar Rate Advance of
such Lender will automatically, upon such demand, Convert to a Base Rate Advance
and (ii) the obligation of such Lender to make, or to Convert Advances into, or
to Continue, Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Borrowers that such Lender has determined that the circumstances
causing such suspension no longer exist; provided, that, before making any such
demand, such Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
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(e) Neither Borrower shall be obligated to pay any additional amounts
arising pursuant to clauses (a) and (b) of this Section 2.09 that are
attributable to the Excluded Period with respect to such additional amount;
provided, that if an applicable law, rule, regulation, guideline or request
shall be adopted or made on any date and shall be applicable to the period (a
"Retroactive Period") prior to the date on which such law, rule, regulation,
guideline or request is adopted or made, the limitation on the Borrowers'
obligations to pay such additional amounts hereunder shall not apply to the
additional amounts payable in respect of such Retroactive Period.
Section 2.10. Payments and Computations.
(a) Each Borrower shall make each payment hereunder and under the
Notes not later than 12:00 Noon (New York City time) on the day when due in U.S.
Dollars to the Agent at the Agent's Account in same day funds and, except as
expressly set forth herein, without deduction, set-off or counterclaim. The
Agent will promptly thereafter cause to be distributed like funds relating to
the payment of principal or interest or commitment fees under or in respect of a
particular Facility ratably (other than amounts payable pursuant to Section
2.09(a), 2.09(b), 2.11, 2.13(d) or 9.04(c), or amounts payable to an Issuing
Bank in respect of Letters of Credit) to the relevant Lenders for the account of
their Applicable Lending Offices, and like funds relating to the payment of any
other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 9.07(d), from and after the effective date of such Assignment and
Acceptance, the Agent shall make all payments hereunder and under the Notes in
respect of the interest assigned thereby to the Lender assignee thereunder, and
the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) If the Agent receives funds for application to the Obligations
under the Loan Documents under circumstances for which the Loan Documents do not
specify the Advances or the Facility to which, or the manner in which, such
funds are to be applied, and neither Borrower has otherwise directed how such
funds are to be applied (which direction is consistent with the terms of the
Loan Documents), the Agent may, but shall not be obligated to, elect to
distribute such funds to each Lender ratably in accordance with such Lender's
proportionate share of the principal amount of all outstanding Advances and the
Available Amount of all Letters of Credit then outstanding, in repayment or
prepayment of such of the outstanding Advances or
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other Obligations owed to such Lender, and for application to such principal
installments, as the Agent shall direct.
(c) Each Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder or under any Note
held by such Lender, to charge from time to time against any or all of such
Borrower's accounts with such Lender any amount so due (with notice to the Agent
and the relevant Borrower promptly following such charge).
(d) Each Reference Bank agrees to furnish to the Agent timely
information for the purpose of determining each Eurodollar Rate. If any one or
more of the Reference Banks shall not furnish such timely information to the
Agent for the purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks.
(e) All computations of interest, fees and Letter of Credit
commissions shall be made by the Agent on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest, fees or
commissions are payable. Each determination by the Agent of an interest rate,
fee or commission hereunder made in accordance with the provisions of this
Agreement shall be conclusive and binding for all purposes, absent manifest
error.
(f) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided, that, if such extension would cause payment of interest
on or principal of Eurodollar Rate Advances to be made in the next following
calendar month, such payment shall be made on the immediately preceding Business
Day.
(g) Unless the Agent shall have received notice from a Borrower prior
to the date on which any payment is due to any Lender hereunder that such
Borrower will not make such payment in full, the Agent may assume that such
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each such
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent such Borrower shall not have so made such payment in full to
the Agent, each such Lender shall repay to the Agent forthwith on demand such
amount distributed to such Lender together with interest thereon, for each day
from the date such amount is distributed to such Lender
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until the date such Lender repays such amount to the Agent, at the Federal Funds
Rate.
Section 2.11. Taxes.
(a) Any and all payments by each Obligor hereunder or under the
relevant Notes shall be made, in accordance with Section 2.10, free and clear of
and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Issuing Bank, each Lender and the Agent, net
income taxes that are imposed by the United States and franchise taxes and net
income taxes that are imposed on such Issuing Bank, such Lender or the Agent by
the state or foreign jurisdiction under the laws of which such Issuing Bank,
such Lender or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of such Issuing Bank and each Lender,
franchise taxes and net income taxes that are imposed on it by the state or
foreign jurisdiction of such Issuing Bank's or such Lender's Applicable Lending
Office or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If an Obligor shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Issuing Bank, any Lender or the Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.11) such Issuing Bank, such Lender or the Agent (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) such Obligor shall make such deductions and (iii) such Obligor shall
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, each Obligor agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made by it hereunder or under the
Notes or from the execution, delivery or registration of this Agreement or the
Notes (hereinafter referred to as "Other Taxes").
(c) Each Obligor will indemnify each Issuing Bank, each Lender and
the Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.11) paid by such Issuing Bank, such Lender or the
Agent (as the case may be) and any liability (including penalties, additions to
tax, interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within
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30 days from such date such Issuing Bank, such Lender or the Agent (as the case
may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, each
Obligor will furnish to the Agent, at its address referred to in Section 9.02,
appropriate evidence of payment thereof. If such Obligor shall make a payment
hereunder or under the Notes through an account or branch outside the United
States, or a payment is made on behalf of such Obligor by a payor that is not a
United States Person, such Obligor will, if no taxes are payable in respect of
such payment, furnish, or will cause such payor to furnish, to the Agent, at
such address, a certificate from the appropriate taxing authority or
authorities, or an opinion of counsel acceptable to the Agent, in either case
stating that such payment is exempt from or not subject to Taxes. For purposes
of this subsection (d) and subsection (e), the terms "United States" and "United
States Person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside
the United States shall, on or prior to the date of its execution and delivery
of this Agreement (in the case of each Initial Lender) and on the date of the
Assignment and Acceptance pursuant to which it became a Lender (in the case of
each other Lender), and from time to time thereafter if requested in writing by
either Borrower or the Agent (but only so long as such Lender remains lawfully
able to do so after the date such Lender becomes a Lender hereunder), provide
the Agent and the Borrowers with either (i) Internal Revenue Service form 1001
or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party that reduces the rate of
withholding tax on payments under this Agreement and the Notes or certifying
that the income receivable pursuant to this Agreement and the Notes is
effectively connected with the conduct of a trade or business in the United
States or (ii) Internal Revenue Service form W-8, upon which each Borrower is
entitled to rely, from a Lender that has not at the time such Lender becomes a
Lender hereunder been named in any notice issued by the Secretary of the
Treasury (or such Secretary's authorized delegate) pursuant to Sections
881(c)(2)(B) or 871(h)(5) of the Internal Revenue Code, or any successor form or
statement prescribed by the Internal Revenue Service in order to establish that
such Lender is entitled to treat the interest payments under this Agreement and
the Notes as portfolio interest that is exempt from withholding tax under the
Internal Revenue Code, together with a certificate stating that such Lender is
not described in Section 881(c)(3) of the Internal Revenue Code. If the form
provided by a Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero (or if the
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Lender cannot provide at such time such form because it is not entitled to
reduced withholding under a treaty, the payments are not effectively connected
income and the payments do not qualify as portfolio interest), withholding tax
at such rate (or at the then existing U.S. statutory rate if the Lender cannot
provide the form) shall be excluded from Taxes unless and until such Lender
provides the appropriate form certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be excluded from Taxes for
periods governed by such form; provided, that, if at the date of the Assignment
and Acceptance pursuant to which a Lender assignee becomes a party to this
Agreement, the Lender assignor was entitled to payments under subsection (a) in
respect of United States withholding tax with respect to interest paid at such
date, then, to the extent such tax results in liability for such payments, the
term Taxes shall include (in addition to withholding taxes that may be imposed
in the future or other amounts otherwise includable in Taxes) United States
interest withholding tax, if any, applicable with respect to the Lender assignee
on such date.
(f) For any period with respect to which a Lender has failed to
provide the Borrowers and the Agent with the appropriate form described in
Section 2.11(e) (other than if such failure is due to a change in law occurring
after the date on which a form originally was required to be provided or if such
form otherwise is not required under subsection (e)), such Lender shall not be
entitled to indemnification under subsection (a) or (c) with respect to Taxes
imposed by the United States.
(g) Any Lender or any Issuing Bank claiming any additional amounts
payable pursuant to this Section 2.11 shall use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Applicable Lending Office(s) if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender or Issuing Bank, be otherwise disadvantageous to such Lender or Issuing
Bank.
(h) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in this Section 2.11 shall survive the payment in full of principal and interest
hereunder and under the Notes.
Section 2.12. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Advances owing to it under any
Facility (other than pursuant to Section 2.09(a), 2.09(b), 2.11, 2.13(d) or
9.04(c), or payments to an Issuing Bank in respect of Letters of Credit) in
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excess of its ratable share of payments on account of the Advances under such
Facility obtained by all the relevant Lenders, such Lender shall forthwith
purchase from the other relevant Lenders such participations in the Advances
under such Facility owing to them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; provided, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each relevant Lender shall be rescinded
and such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such Lender's ratable
share (according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. Each Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.12
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of such Borrower in the amount of such
participation.
Section 2.13. Letters of Credit.
(a) Issuance of Letters of Credit, Etc. Each Borrower may request
one or more Issuing Banks to issue, on the terms and conditions hereinafter set
forth, letters of credit for the account of such Borrower under its respective
Facility (letters of credit so issued under the Terra Facility being herein
called "Terra Letters of Credit" and letters of credit so issued under the TNLP
Facility being herein called "TNLP Letters of Credit"; the Terra Letters of
Credit and the TNLP Letters of Credit being collectively called the "Letters of
Credit") from time to time on any Business Day during the period from the
Restatement Date until the date 90 days prior to the Commitment Termination Date
under the relevant Facility; provided, that:
(i) the Terra Commitments shall be utilized under this Section 2.13
solely for the issuance of Terra Letters of Credit for the account of the
Company and, to the extent specified by the Company, any of its
Subsidiaries (other than, prior to the SPU Redemption Time, TNLP or any of
its Subsidiaries);
(ii) the TNLP Commitments shall be utilized under this Section 2.13
solely for the issuance of TNLP Letters of Credit for the account of TNLP
and, to the extent specified by TNLP, any of its Subsidiaries;
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(iii) the aggregate Available Amount of all Letters of Credit issued
by all Issuing Banks under either Facility shall not exceed at any time the
Letter of Credit Sublimit for such Facility, and the aggregate outstanding
principal amount of all Advances under such Facility when added to the
aggregate amount of Letter of Credit Liabilities under such Facility shall
not exceed the aggregate Commitments of the relevant Lenders under such
Facility on such Business Day;
(iv) the aggregate amount of all Letter of Credit Liabilities under
Letters of Credit issued by any Issuing Bank under either Facility shall
not exceed at any time the Letter of Credit Commitment of such Issuing Bank
for such Facility; and
(v) no Letter of Credit shall have an expiration date later than, or
shall permit the account party or the beneficiary to require the renewal
thereof to a date beyond, the date 30 days prior to the Commitment
Termination Date for the relevant Facility.
On the Restatement Date, all outstanding "Terra Letters of Credit" outstanding
under the Existing Credit Agreement (the "Existing Terra Letters of Credit")
shall automatically, without any action on the part of any Person, be deemed to
be Terra Letters of Credit hereunder for all purposes of this Agreement. On the
Restatement Date, all outstanding "TNLP Letters of Credit" outstanding under the
Existing Credit Agreement (the "Existing TNLP Letters of Credit") shall
automatically, without any action on the part of any Person, be deemed to be
TNLP Letters of Credit hereunder for all purposes of this Agreement. At the SPU
Redemption Time, all outstanding TNLP Letters of Credit shall automatically,
without any action on the part of any Person, be deemed to be Terra Letters of
Credit hereunder for all purposes of this Agreement. On each day during the
period commencing with the issuance by an Issuing Bank of any Terra Letter of
Credit (or, in the case of any Existing Terra Letter of Credit, during the
period commencing with the Restatement Date) and until such Letter of Credit
shall have been drawn in full or expired or been terminated, the Terra
Commitment of each Lender shall be deemed to be utilized for all purposes of
this Agreement in an amount equal to such Lender's Pro Rata Share of the then
undrawn amount of such Letter of Credit. On each day during the period
commencing with the issuance by an Issuing Bank of any TNLP Letter of Credit
(or, in the case of any Existing TNLP Letter of Credit, during the period
commencing with the Restatement Date) and until such Letter of Credit shall have
been drawn in full or expired or been terminated, the TNLP Commitment of each
Lender shall be deemed to be utilized for all purposes of this Agreement
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in an amount equal to such Lender's Pro Rata Share of the then undrawn amount of
such Letter of Credit.
(b) Request for Issuance.
--------------------
(i) Each Letter of Credit shall be issued upon notice, given not
later than 1:00 P.M. (New York City time) two Business Days prior to the
date of the proposed issuance of such Letter of Credit, by the relevant
Borrower to the relevant Issuing Bank, which shall give to the Agent and
each Lender prompt notice thereof by telex or telecopier. Each such notice
of issuance of a Letter of Credit (a "Notice of Issuance") shall be by
telex or telecopier, confirmed promptly in writing, specifying therein (A)
the requested date of such issuance (which shall be a Business Day), (B)
the Available Amount requested for such Letter of Credit, (C) the
expiration date of such Letter of Credit, (D) the account party or parties
for such Letter of Credit, (E) the name and address of the issuer and the
beneficiary of such Letter of Credit, and (F) the form of such Letter of
Credit, together with a description of the nature of the transactions or
obligations proposed to be supported thereby. If the requested form of such
Letter of Credit is acceptable to such Issuing Bank in its discretion, such
Issuing Bank will, upon fulfillment of the applicable conditions set forth
in Article III, make such Letter of Credit available to the relevant
Borrower at its office referred to in Section 9.02 or as otherwise agreed
with such Borrower in connection with such issuance.
(ii) Each Issuing Bank shall furnish (A) to the Agent on the first
Business Day of each week a written report summarizing the issuance and
expiration dates of Letters of Credit issued by such Issuing Bank during
the previous week and drawings during such week under all Letters of Credit
issued by such Issuing Bank, (B) to each Lender and to the relevant
Borrower on the first Business Day of each month, a written report
summarizing the issuance and expiration dates of the Letters of Credit
issued by such Issuing Bank under the relevant Facility during the
preceding month and drawings during such month under all Letters of Credit
under such Facility issued by the Issuing Bank and (C) to the Agent and
each Lender on the first Business Day of each calendar quarter, a written
report setting forth the average daily aggregate Available Amount during
the preceding calendar quarter of all Letters of Credit issued by such
Issuing Bank under the relevant Facility.
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(c) Drawing and Reimbursement.
(i) The payment by an Issuing Bank of a draft drawn under any Letter
of Credit shall constitute for all purposes of this Agreement the making by
such Issuing Bank of an advance to the relevant Borrower in the amount of
such payment, which the relevant Borrower agrees to repay on demand and, if
not paid on demand, shall bear interest, from the date demanded to the date
paid in full (and which interest shall be payable on demand), (x) from and
including the date of demand to but not including the second Business Day
thereafter at the Base Rate in effect for each such day plus the Applicable
Margin in effect for each such day, and (y) from and including said second
Business Day thereafter at the Post-Default Rate. Without limiting the
obligations of such Borrower hereunder, upon demand by such Issuing Bank
through the Agent, each Lender having a Commitment under the relevant
Facility shall make Advances under such Facility in an aggregate amount
equal to the amount of such Lender's Pro Rata Share of such advance by
making available for the account of its Applicable Lending Office to the
Agent for the account of such Issuing Bank, by deposit to the Agent's
Account, in same day funds, an amount equal to the sum of (A) its Pro Rata
Share of the outstanding principal amount of such advance plus (B) interest
accrued and unpaid to and as of such date on the outstanding principal
amount of such advance.
(ii) Each Lender agrees to make such Advances on the Business Day on
which demand therefor is made by the relevant Issuing Bank through the
Agent (provided, that notice of such demand is given not later than 12:00
Noon (New York City time) on such Business Day) or (if notice of such
demand is given after such time) the first Business Day next succeeding
such demand.
(iii) If and to the extent that any relevant Lender shall not have so
made the amount of such Advance available to the Agent for account of such
Issuing Bank, such Lender agrees to pay to the Agent forthwith on demand
such amount together with interest thereon, for each day from the date of
demand by the relevant Issuing Bank until the date such amount is paid to
the Agent, at the Federal Funds Rate.
(iv) The Advances provided for in this Section 2.13 shall be made by
the Lenders irrespective of whether there has occurred and is continuing
any Default or Event of Default or of whether any other condition precedent
specified in Article III has not been satisfied, and the obligation of each
Lender under each relevant Facility to make such Advances is absolute and
unconditional.
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(d) Increased Costs.
(i) If any change in any law or regulation or in the interpretation
thereof (to the extent any such change occurs after the date hereof) by any
court or administrative or governmental authority charged with the
administration thereof shall either (x) impose, modify or deem applicable
any reserve, special deposit or similar requirement against letters of
credit or guarantees issued by, or assets held by, or deposits in or for
the account of, any Issuing Bank or any Lender or (y) impose on any Issuing
Bank or any Lender any other condition regarding this Agreement or such
Issuing Bank or such Lender or any Letter of Credit, and the result of any
event referred to in the preceding clause (x) or (y) shall be to increase
the cost to such Issuing Bank or Lender of issuing or maintaining any
Letter of Credit or any commitment hereunder in respect of Letters of
Credit, then, upon demand by such Issuing Bank or such Lender, the
Borrowers shall immediately pay to such Issuing Bank or such Lender, from
time to time as specified by such Issuing Bank or such Lender, additional
amounts that shall be sufficient to compensate such Issuing Bank or such
Lender for such increased cost. A certificate as to the amount of such
increased cost, submitted to the Borrowers by such Issuing Bank or such
Lender shall be conclusive and binding for all purposes, absent manifest
error.
(ii) Neither Borrower shall be obligated to pay any additional
amounts arising pursuant to this Section 2.13(d) that are attributable to
the Excluded Period with respect to such additional amounts; provided, that
if an applicable law, rule, regulation, guideline or request shall be
adopted or made on any date and shall be applicable to the period (a
"Retroactive Period") prior to the date on which such law, rule,
regulation, guideline or request is adopted or made, the limitation on
either Borrower's obligation to pay such additional amounts hereunder shall
not apply to the additional amounts payable in respect of such Retroactive
Period.
(e) Obligations Absolute. The Obligations of each Borrower under
this Agreement and any other agreement or instrument relating to any Letter of
Credit (as hereafter amended, supplemented or otherwise modified from time to
time, collectively, the "L/C Related Documents") shall, to the extent permitted
by law, be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of such L/C Related Document under all circumstances,
including, without limitation, the following circumstances:
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(i) any lack of validity or enforceability of any one or more of such
other documents and agreements, including, but not limited to, the L/C
Related Documents;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of such Borrower in respect of
any L/C Related Document or any other amendment or waiver of or any consent
to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other right
that such Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), any Issuing Bank or any
other Person, whether in connection with the transactions contemplated by
the L/C Related Documents or any unrelated transaction;
(iv) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
(v) payment by an Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not comply with the terms
of such Letter of Credit, except to the extent that such payment resulted
from such Issuing Bank's willful misconduct or gross negligence in
determining whether such draft or certificate complies on its face with the
terms of such Letter of Credit;
(vi) any exchange, release or nonperfection of any Collateral or
other collateral, or any release or amendment or waiver of or consent to
departure from any guarantee, for all or any of the Obligations of such
Borrower in respect of the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, such Borrower or a guarantor.
Section 2.14. Replacement of Lender.
(a) Subject to clause (c) below, in the event that any Lender
requests compensation pursuant to Section 2.09(a), 2.09(b) or 2.13(d), or the
obligation of any Lender to make, or to Convert Base Rate Advances into, or to
Continue, Eurodollar Rate Advances shall be suspended pursuant to Section
2.09(c) or
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2.09(d) (such Lender being herein called an "Affected Lender"), then, so long as
such condition exists, the Borrowers may, after the date 30 days after the date
of such request or suspension, either:
(i) (x) designate an Eligible Assignee acceptable to the Agent and
each Issuing Bank (which acceptance will not be unreasonably withheld) that
is not an Affiliate of the Borrowers (such Eligible Assignee being herein
called a "Replacement Lender") to assume the Affected Lender's Commitments
and other obligations hereunder and to purchase the Affected Lender's
Advances and other rights under the Loan Documents (all without recourse to
or representation or warranty by, or expense to, the Affected Lender) for a
purchase price equal to the aggregate principal amount of the outstanding
Advances held by the Affected Lender plus all accrued but unpaid interest
on such Advances and accrued but unpaid fees owing to the Affected Lender
(and upon such assumption, purchase and substitution, and subject to the
execution and delivery to the Agent by the Replacement Lender of
documentation satisfactory to the Agent and compliance with the
requirements of Section 9.07(c), the Replacement Lender shall succeed to
the rights and obligations of the Affected Lender hereunder and the other
Loan Documents), and (y) pay to the Affected Lender all amounts payable to
such Affected Lender under Section 9.04(c), calculated as if the purchase
by the Replacement Lender constituted a mandatory prepayment of Advances by
the Borrowers, and (z) pay to the Agent the processing and recordation fee
specified in Section 9.07(a)(vi) with respect to such assignment; or
(ii) (x) terminate the Commitments of the Affected Lender and (y) pay
to the Affected Lender the aggregate principal amount of the outstanding
Advances held by the Affected Lender plus all accrued but unpaid interest
on such Advances and accrued but unpaid fees owing to the Affected Lender
plus all amounts payable to the Affected Lender under Section 9.04(c) as a
result of such prepayment.
In the event that the Borrowers exercise their rights under the preceding
sentence, the Affected Lender shall no longer be a party hereto or have any
rights or obligations hereunder or under the other Loan Documents; provided,
that the obligations of the Borrowers to the Affected Lender under Sections
2.09, 2.11 and 9.04 with respect to events occurring or obligations arising
before or as a result of such replacement shall survive such exercise.
(b) If the Borrowers exercise their rights under clause (a)(ii)
above, the Borrowers may, not later than the date
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60 days after such exercise, designate an Eligible Assignee acceptable to the
Agent and each Issuing Bank (which acceptance will not be unreasonably withheld)
that is not an Affiliate of the Borrowers (such Eligible Assignee being herein
called a "Substitute Lender") to assume Commitments hereunder and to make
Advances hereunder in an amount equal to the respective Commitments and Advances
of the Affected Lender under each of the Facilities and, subject to (x) the
execution and delivery to the Agent by the Substitute Lender of documentation
satisfactory to the Agent, (y) the payment by the Borrowers to the Agent of the
processing and recordation fee specified in Section 9.07(a)(vi) with respect to
such assignment, and (z) compliance with Section 9.07(c), the Substitute Lender
shall succeed to the rights and obligations of the Affected Lender hereunder and
under the other Loan Documents. Upon the Substitute Lender so becoming a party
hereto, the Borrowers shall borrow Advances from the Substitute Lender and/or
prepay the principal of the Advances of the other Lenders in such manner as will
result in the outstanding principal amount of the Advances under each Facility
being held by the Lenders according to their respective Pro Rata Shares of the
relevant Facilities.
(c) The Borrowers may not exercise their rights under this
Section 2.14:
(i) with respect to any Affected Lender unless the Borrowers
simultaneously exercise such rights with respect to all Affected Lenders,
(ii) if a Default or an Event of Default has occurred and is then
continuing, or
(iii) with respect to any exercise of rights under clause (b) above,
if, at the time of such exercise, the aggregate amount of the Commitments
that shall have been terminated pursuant to said clause (b) (including the
Commitments then proposed to be terminated) shall exceed 30% of the
aggregate amount of the Commitments in effect on the Restatement Date.
ARTICLE III
CONDITIONS OF LENDING
Section 3.01. Conditions Precedent to Amendment and Restatement. The
Existing Credit Agreement shall be amended and restated to read in full as set
forth herein on the date (the "Restatement Date") on which the Agent shall
notify the Company that the Agent shall have received the following in form and
substance satisfactory to it:
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(a) The Notes, duly executed by each Borrower.
(b) The following documents, each dated the Restatement Date (unless
otherwise specified), in form and substance satisfactory to the Agent
(unless otherwise specified) and in sufficient copies for the Agent, each
Lender and each Issuing Bank:
(i) a copy of each amendment to the charter or articles of
incorporation or articles of limited partnership, as the case may be,
of each Obligor made subsequent to the First Restatement Date,
certified (as of a date reasonably near the Restatement Date) by the
Secretary of State of the state of its incorporation or organization
as being a true and correct copy thereof; and
(ii) a certificate of each Obligor, signed on its behalf by its
President or a Vice President and its Secretary or any Assistant
Secretary, dated the Restatement Date (the statements made in which
certificate shall be true on and as of the Restatement Date),
certifying as to (A) the absence, except to the extent provided in
said certificate, of any amendments to the charter or articles of
incorporation or organization of such Obligor since the First
Restatement Date, (B) the absence, except to the extent provided in
said certificate, of any amendments to the bylaws of such Obligor
subsequent to the First Restatement Date, and (C) the due
incorporation or organization and good standing of such Obligor as a
corporation or limited partnership, as the case may be, organized
under the laws of its state of incorporation or organization, and the
absence of any proceeding for the dissolution or liquidation of such
Obligor.
(c) An amendment to each of the Holdings Pledge Agreement, the Terra
Capital Pledge Agreement, the Subsidiary Pledge and Security Agreement and
the TNLP Pledge and Security Agreement, in substantially the form of
Exhibit B, duly executed by each of the intended parties thereto, together
with:
(i) such appropriately completed and duly executed copies of
Uniform Commercial Code financing statements and financing statement
amendments as the Agent shall have requested in order to continue the
perfection and protection of the Liens created by the Security
Documents and covering the Collateral described therein, and
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(ii) executed and delivered documents for recordation and filing
of or with respect to such Security Documents that the Agent may deem
necessary or desirable in order to continue the perfection and
protection of the Liens created thereby.
(d) An amendment to the Loan Purchase Agreement, in substantially the
form of Exhibit E, duly executed by Terra and the Agent.
(e) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel for the
Obligors, in substantially the form of Exhibit D and as to such other
matters as the Agent, any Issuing Bank or any Lender through the Agent may
reasonably request.
(f) A favorable opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special
New York counsel for the Agent, in form and substance satisfactory to the
Agent.
(g) A certificate of the Senior Financial Officer to the effect that:
(x) the representations and warranties contained in each Loan
Document are correct on and as of the Restatement Date, before and
after giving effect to the amendment and restatement provided for
hereby, as though made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date); and
(y) no event has occurred and is continuing that constitutes a
Default or an Event of Default.
(h) Evidence of payment by Terra of all accrued fees and expenses of
the Agent (including the reasonable and documented fees and expenses of
counsel to the Agent in connection with this Agreement to the extent that
statements for such fees and expenses have been delivered to the Borrowers
at least one Business Day prior to the Restatement Date).
(i) Evidence of receipt of all governmental and third party consents
and approvals necessary in connection with this Agreement (without the
imposition of any conditions except those that are acceptable to the
Lenders) and that the same remain in effect.
(j) Such other approvals, opinions and documents relating to this
Agreement and the transactions contemplated
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hereby as any Lender or any Issuing Bank may, through the Agent, reasonably
request.
Section 3.02. Conditions Precedent to Each Borrowing and Issuance.
The obligation of each Lender to make an Advance on the occasion of each
Borrowing (excluding, however, the making of any Advance pursuant to Section
2.13), and the right of each Borrower to request the issuance of Letters of
Credit under either Facility, shall be subject to the further conditions
precedent that on the date of such Borrowing or issuance the following
statements shall be true (and each of the giving of the applicable Notice of
Borrowing or Notice of Issuance and the acceptance by the relevant Borrower of
the proceeds of such Borrowing or of such Letter of Credit shall constitute a
representation and warranty by such Borrower that on the date of such Borrowing
or issuance such statements are true):
(i) the representations and warranties contained in each Loan
Document are correct on and as of the date of such Borrowing or issuance,
before and after giving effect to such Borrowing or issuance and to the
application of the proceeds therefrom, as though made on and as of such
date (or, if any such representation or warranty is expressly stated to
have been made as of a specific date, as of such specific date); and
(ii) no event has occurred and is continuing, or would result from
such Borrowing or issuance or from the application of the proceeds
therefrom, that constitutes a Default or an Event of Default.
Section 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by the Loan Documents
shall have received notice from such Lender prior to the Restatement Date
specifying its objection thereto.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties
of the Company. The Company represents and warrants as follows:
(a) Each Obligor (i) is a corporation (or, in the case of TNLP or
BMLP, a limited partnership) duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (ii) is
duly qualified and in good standing as a foreign corporation (or limited
partnership, as the case may be) in each other jurisdiction in which it
owns or leases property or in which the conduct of its business requires it
to so qualify or be licensed and where, in each case, failure so to qualify
and be in good standing could reasonably be expected to have a Material
Adverse Effect and (iii) has all requisite power (corporate or other) and
authority to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted.
(b) Set forth on Schedule 4.01(b) is a complete and accurate list of
all Material Subsidiaries of each Obligor as of the Restatement Date,
showing as of such date (as to each such Subsidiary) the jurisdiction of
its organization, the number of shares of each class of capital stock or
partnership interests authorized, and the number outstanding and the
percentage of the outstanding shares or interests of each such class owned
(directly or indirectly) by such Obligor and the number of shares covered
by all outstanding options, warrants, rights of conversion or purchase and
similar rights. All of the outstanding capital stock or partnership
interests of all of such Subsidiaries has been validly issued, is fully
paid and non-assessable and is owned by such Obligor or one or more of its
Subsidiaries free and clear of all Liens, except those created by the
Security Documents. Each Material Subsidiary (i) is a corporation (or, in
the case of TNLP or BMLP, a limited partnership) duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (ii) is duly qualified and in good standing as a foreign
corporation or limited partnership, as the case may be, in each other
jurisdiction in which it owns or leases property or in which the conduct of
its business requires it to so qualify or be licensed and where, in each
case, failure to so qualify and be in good standing could reasonably be
expected to have a Material Adverse Effect and (iii) has all requisite
power (corporate or other) and authority to own or lease and operate its
properties and to
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carry on its business as now conducted and as proposed to be conducted.
(c) The execution, delivery and performance by each Obligor of this
Agreement, the Notes and each other Loan Document to which it is or is
intended to be a party, and the consummation of the credit transactions
between Borrowers and Lenders contemplated hereby, are within such
Obligor's powers (corporate or other), have been (or will, prior to the
Restatement Date, be) duly authorized by all necessary corporate action,
and do not (i) contravene such Obligor's charter, by-laws or in the case of
TNLP or BMLP, its agreement of limited partnership, (ii) violate any
applicable law (including, without limitation, the Securities Exchange Act
of 1934 and the Racketeer Influenced and Corrupt Organizations Chapter of
the Organized Crime Control Act of 1970), rule, regulation (including,
without limitation, Regulation U and Regulation X), order, writ, judgment,
injunction, decree, determination or award (except for any such violation,
by action or inaction of any Obligor, that could not reasonably be expected
to have a Material Adverse Effect and that could not result in any
liability of any Lender), (iii) except as set forth on Schedule 4.01(c),
conflict with or result in the breach of, or constitute a default under,
any contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument binding on or affecting any Obligor, any of its
Subsidiaries or any of their properties (except for any such conflict,
breach or default, caused by action or inaction of any Obligor, that could
not reasonably be expected to have a Material Adverse Effect and that could
not result in any liability of any Lender) or (iv) except for the Liens
created by the Security Documents, result in or require the creation or
imposition of any Lien upon or with respect to any of the properties of any
Obligor or any of its Subsidiaries. No Obligor or any of its Subsidiaries
is in violation of any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument, the violation or breach of which could be reasonably
expected to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for (i) the due execution, delivery, recordation,
filing or performance by any Obligor of this Agreement, the Notes or any
other Loan Document to which it is or is to be a party, or for the
consummation of the credit transactions between Borrowers and Lenders
contemplated hereby, (ii) the grant by
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any Obligor of the Liens granted by it pursuant to the Security Documents,
(iii) the perfection or maintenance of the Liens created by the Security
Documents (except for the filings required to be made pursuant to Section
3.01(c)) or (iv) the exercise by the Agent or any Lender or Issuing Bank of
its rights under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Security Documents, except for the
authorizations, approvals, actions, notices and filings listed on Schedule
4.01(d), all of which have been duly obtained, taken, given or made and are
in full force and effect.
(e) This Agreement has been, and each of the Notes and each other
Loan Document when delivered will have been, duly executed and delivered by
each Obligor that is intended to be a party thereto. This Agreement is, and
each of the Notes and each other Loan Document when delivered will be, the
legal, valid and binding obligation of each Obligor that is intended to be
a party thereto, enforceable against such Obligor in accordance with its
terms.
(f) The balance sheet of Terra as at December 31, 1994 and the
related statements of income and cash flows of Terra for the twelve months
then ended, accompanied by an opinion of Deloitte & Touche, independent
public accountants, and the balance sheet of Terra as at September 30, 1995
and the related statements of income and cash flows of Terra for the three
months then ended, duly certified by the chief financial officer of Terra,
copies of which have been furnished to each Lender, present fairly, in all
material respects, subject, in the case of said balance sheet as at
September 30, 1995, and said statements of income and cash flows for the
three months then ended, to year-end audit adjustments, the financial
condition of Terra as at such dates and the results of the operations of
Terra for the periods ended on such dates, all in accordance with generally
accepted accounting principles applied on a consistent basis. Since
December 31, 1994, there has been no Material Adverse Change with respect
to Terra.
(g) (A) No written information, exhibit or report (as at the
Restatement Date) furnished by any officer of Terra to the Agent, any
Issuing Bank or any Lender in connection with the negotiation of the Loan
Documents (when taken together) contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements made therein not misleading and (B) none of the information,
exhibits or reports furnished by any Obligor to the Agent, any Issuing Bank
or any Lender pursuant to Section 5.03 contained (on the date of delivery
thereof) any untrue statement of a material fact or omitted to state a
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material fact necessary to make the statements made therein not misleading.
(h) There is no action, suit, litigation or proceeding against any
Obligor or any of its Subsidiaries or any of their respective property,
including any Environmental Action, pending before any court, governmental
agency or arbitrator, or (to the knowledge of any Obligor) threatened, nor
(to the knowledge of any Obligor) is there any investigation pending in
respect of any Obligor, that (i) could reasonably be expected to have a
Material Adverse Effect, or (ii) on the Restatement Date could reasonably
be expected to affect the legality, validity or enforceability of this
Agreement, any Note, any other Loan Document or the consummation of the
transactions contemplated hereby.
(i) No Obligor is engaged in the business of extending credit for the
purpose of purchasing or carrying Margin Stock; except as expressly
permitted in Section 2.01(a)(iv), no proceeds of any Advance will be used
to purchase or carry any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock; and no proceeds of any
Advance will be used for any purpose which violates the provisions of the
regulations of the Board of Governors of the Federal Reserve System. After
applying the proceeds of each Advance, not more than 25% of the value of
the assets of either Borrower and such Borrower's Subsidiaries (as
determined in good faith by such Borrower) that are subject to Section
5.02(a) or Section 5.02(e) will consist of or be represented by Margin
Stock. If requested by any Lender or the Agent, each Borrower will furnish
to the Agent and each Lender a statement in conformity with the
requirements of Federal Reserve Form U-1 referred to in Regulation U, the
statements made in which shall be such, in the opinion of each Lender, as
to permit the transactions contemplated hereby in accordance with
Regulation U.
(j) Set forth on Schedule 4.01(j) is a complete and accurate list, as
of the Restatement Date, of each Plan that is subject to Title IV of ERISA
and each Multiemployer Plan with respect to any employees or former
employees of any Obligor or any of its ERISA Affiliates.
(k) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan of any Obligor or any of its ERISA Affiliates that
could reasonably be expected to have a Material Adverse Effect.
(l) Since the date of the Schedule B (Actuarial Information) to the
most recent annual report (Form 5500 Series) for each Plan of any Obligor
or any of its ERISA
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Affiliates, there has been no change in the funding status of any such Plan
except to the extent that such change is not reasonably expected to have a
Material Adverse Effect.
(m) Neither any Obligor nor any of its ERISA Affiliates has incurred
or is reasonably expected to incur any withdrawal liability to any
Multiemployer Plan except to the extent such withdrawal liability is not
reasonably expected to have a Material Adverse Effect.
(n) Neither any Obligor nor any of its ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan of any Obligor or any of
its ERISA Affiliates that such Multiemployer Plan is in reorganization or
has been terminated, within the meaning of Title IV of ERISA.
(o) As of the Restatement Date, the aggregate annualized cost on a
pay-as-you-go basis (including, without limitation, the cost of insurance
premiums) with respect to post-retirement benefits under welfare plans
(other than post-retirement benefits required to be provided by Section
4980B of the Code or applicable state law) for which Terra and its
Subsidiaries is liable does not exceed $1,000,000.
(p) Neither the business nor the properties of any Obligor or any of
its Subsidiaries are affected by any fire, explosion, accident, strike,
lockout or other labor dispute, drought, storm, hail, earthquake, embargo,
act of God or of the public enemy or other casualty (whether or not covered
by insurance) that could reasonably be expected to have a Material Adverse
Effect.
(q) Except as set forth on Part I of Schedule 4.01(q) and except to
the extent any of the following could not reasonably be expected to have a
Material Adverse Effect, the operations and properties of each Obligor and
each of its Subsidiaries comply in all material respects with all
Environmental Laws, all necessary Environmental Permits have been obtained
and are in effect for the operations and properties of each Obligor and its
Subsidiaries, each Obligor and its Subsidiaries are in compliance in all
material respects with all such Environmental Permits, and no circumstances
exist that could (i) form the basis of an Environmental Action against any
Obligor or any of its Subsidiaries or (ii) cause any such property to be
subject to any material restrictions on ownership, occupancy, use or
transferability under any Environmental Law.
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(r) Except as set forth on Part II of Schedule 4.01(q) and except to
the extent any of the following could not reasonably be expected to have a
Material Adverse Effect, as of the Restatement Date none of the properties
of any Obligor or any of its Subsidiaries is listed or proposed for listing
on the National Priorities List under CERCLA or on the Comprehensive
Environmental Response, Compensation and Liability Information System
maintained by the Environmental Protection Agency or any analogous state
list of sites requiring investigation or cleanup, and no underground
storage tanks, as such term is defined in 42 U.S.C. 6901, are located on
any property of any Obligor or any of its Subsidiaries.
(s) Except as set forth on Part III of Schedule 4.01(q) and except to
the extent any of the following could not reasonably be expected to have a
Material Adverse Effect, as of the Restatement Date neither any Obligor nor
any of its Subsidiaries has been notified in writing by any federal, state
or local governmental agency or any other Person that any Obligor or any of
its Subsidiaries is potentially liable for the remedial or other costs with
respect to treatment, storage, disposal, release, arrangement for disposal
or transportation of any Hazardous Substance generated by any Obligor or
any of its Subsidiaries, and Hazardous Materials have not been generated,
used, treated, handled, stored or disposed of on, or released or
transported to or from, any property of such Obligor (or, to its knowledge,
any adjoining property) except in compliance in all material respects with
all Environmental Laws and Environmental Permits, and all other wastes
generated at any such properties by any Obligor or any of its Subsidiaries
(and their respective agents, employees and contractors) have been disposed
of in compliance with all Environmental Laws and Environmental Permits.
(t) Each Obligor and each of its Subsidiaries has filed, has caused
to be filed or has been included in, all federal and state income tax
returns and all other material tax returns (federal, state, local and
foreign) required to be filed and has paid (or is contesting in good faith
by appropriate proceedings) all taxes shown thereon to be owing, together
with applicable interest and penalties.
(u) Set forth on Schedule 4.01(u) is a complete and accurate list, as
of the date hereof, of each taxable year of Terra for which federal income
tax returns have been filed and for which the expiration of the applicable
statute of limitations for assessment or collection has not occurred by
reason of extension or otherwise (an "Open Year").
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(v) As of the Restatement Date, there are no adjustments to the
federal income tax liability of Terra proposed by the Internal Revenue
Service with respect to Open Years. No issues have been raised by the
Internal Revenue Service in respect of Open Years that, in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
(w) Neither any Obligor nor any of its Subsidiaries is an "investment
company," or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended. Neither any Obligor nor any of
its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
Neither the making of any Advances, nor the issuance of any Letters of
Credit, nor the application of the proceeds or repayment thereof by the
Borrowers, nor the consummation of the other transactions contemplated
hereby, will violate any provision of such Act or any rule, regulation or
order of the Securities and Exchange Commission thereunder.
(x) Each of Terra and the Company (both individually and collectively
with their respective Subsidiaries) is Solvent.
(y) Set forth on Part I of Schedule 4.01(y) is a complete and
accurate list, as of the Restatement Date, of all existing Debt of each
Obligor, showing as of the Restatement Date (i) the principal amount
outstanding thereunder, (ii) whether such Debt is secured by any Lien and
(iii) the aggregate principal amount of such Debt scheduled to be paid
during each fiscal year of Terra to and including the fiscal year of Terra
in which the Terra Commitment Termination Date is scheduled to occur.
Section 4.02. Representations and Warranties of each Lender. Each
Lender hereby represents and warrants that such Lender, in good faith, has not
relied upon Margin Stock as collateral for the Obligations of the Obligors
hereunder and under the other Loan Documents.
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ARTICLE V
COVENANTS OF TERRA
Section 5.01. Affirmative Covenants. So long as any principal of or
interest on any Advance or any other amount payable under this Agreement shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender shall
have any Commitment hereunder, Terra will, and will cause each of the Obligors
to:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
ERISA and the Racketeer Influenced and Corrupt Organizations Chapter of the
Organized Crime Control Act of 1970 (except to the extent that non-
compliance with any thereof could not reasonably be expected to have a
Material Adverse Effect).
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might
by law become a Lien upon its property; provided, that neither such Obligor
nor any of its Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained to the extent required by GAAP, unless and until any Lien
resulting therefrom attaches to its property and becomes enforceable
against its other creditors.
(c) Compliance with Environmental Laws. Comply, and cause each of
its Subsidiaries and all lessees and other Persons occupying its properties
to comply, with all Environmental Laws and Environmental Permits applicable
to its operations and properties; obtain and renew, and cause each of its
Subsidiaries to obtain and renew, all Environmental Permits necessary for
its operations and properties; and conduct, and cause each of its
Subsidiaries to conduct, any investigation, study, sampling and testing,
and undertake any cleanup, removal, remedial or other action necessary to
remove and clean up all Hazardous Materials from any of its properties, in
accordance with the requirements of all Environmental Laws; provided, that
(i) neither such Obligor nor any of its Subsidiaries shall be required to
undertake any such cleanup, removal, remedial or other action to the extent
that its obligation to do so is being contested in good faith and by proper
proceedings
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and appropriate reserves to the extent required by GAAP are being
maintained with respect to such circumstances and (ii) no such compliance
with laws and permits, obligation to obtain or renew permits or obligation
to undertake any such investigation, study, sampling, testing, removal,
remedial or other action shall be required hereunder to the extent no
Material Adverse Effect could reasonably be expected to result from any
failure to so comply, obtain, renew or undertake, either individually or in
the aggregate.
(d) Maintenance of Insurance. Maintain, and cause each of its
Material Subsidiaries to maintain, with responsible and reputable insurance
companies or associations, insurance, including business interruption
insurance with respect to each manufacturing plant, in such amounts and
covering such risks as is usually carried by companies engaged in similar
businesses.
(e) Preservation of Corporate Existence, Etc. Subject to Section
5.02(d) and (e), preserve and maintain, and cause each of its Material
Subsidiaries to preserve and maintain, its corporate existence, rights
(charter and statutory) and franchises; provided, that the Obligors may
consummate the Reorganization Transaction and the Port ▇▇▇▇ Transaction,
and that neither any Obligor nor any of its Subsidiaries shall be required
to preserve any right or franchise if the Board of Directors of such
Obligor or such Subsidiary shall determine that the preservation thereof is
no longer desirable in the conduct of the business of such Obligor or such
Subsidiary, as the case may be, and that the loss thereof will not have a
Material Adverse Effect.
(f) Visitation Rights. At any reasonable time and as may be
reasonably requested from time to time, permit the Agent, any Issuing Bank
or any of the Lenders or any agents or representatives thereof to examine
and make copies of and abstracts from the records and books of account of,
and visit the properties of, such Obligor and any of its Subsidiaries (in
the presence of an appropriate officer or representative of the relevant
Obligor), and to discuss the affairs (including, but not limited to, the
compliance by such Obligor and its Subsidiaries with all Environmental
Laws), finances and accounts of such Obligor and any of its Subsidiaries
with any of their officers or directors and with their independent
certified public accountants.
(g) Preparation of Environmental Reports. Upon either (i) the
acquisition of any real property by such Obligor or any of its Subsidiaries
the purchase price of which exceeds $1,000,000 or (ii) the occurrence and
during the continuance of a Default or Event of Default arising under
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Section 5.01(c), and in each case at the written request of the Agent, such
Obligor shall provide to the Agent within a reasonable time after such
acquisition or request, as the case may be, at the expense of such Obligor,
an environmental site assessment report for the acquired property (in the
case of an acquisition as described in clause (i)) or for any properties of
such Obligor which are the subject of any such Default or Event of Default
(in the case of an event as described in clause (ii)) prepared by an
environmental consulting firm reasonably acceptable to the Agent,
indicating the presence or absence of Hazardous Materials and the estimated
cost of any compliance, removal or remedial action in connection with any
Hazardous Materials on such properties (provided, that if such Obligor, in
the exercise of its reasonable judgment, determines not to have such an
environmental site assessment report prepared, such Obligor shall instead
deliver to the Agent a copy of such Obligor's internal site assessment
report relating to relevant property). Without limiting the generality of
the foregoing, if the Agent determines at any time that a material risk
exists that any such report will not be provided within a reasonable time
following such request, the Agent may retain an environmental consulting
firm to prepare such report at the expense of such Obligor, such Obligor
and each of its Subsidiaries hereby granting to the Agent, such firm and
any agents or representatives thereof an irrevocable non-exclusive license,
subject to the rights of tenants, to enter onto its properties to undertake
such an assessment.
(h) Keeping of Books. Keep, and cause each of its Material
Subsidiaries to keep, proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets
and business of such Obligor and each such Subsidiary in accordance with
GAAP.
(i) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Material Subsidiaries to maintain and preserve, except to the
extent the failure to do so could not reasonably be expected to have a
Material Adverse Effect, all of its properties that are used or useful in
the conduct of its business in good working order and condition, ordinary
wear and tear excepted.
(j) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real
property, keep such leases in full force and effect and not allow such
leases to lapse or be terminated or any rights to renew such leases to be
forfeited or canceled, except to the extent any such lease
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is no longer used or useful in the conduct of its business or which, in the
exercise of the reasonable judgment of the relevant Obligor, is to be
refinanced and except to the extent failure to comply with the foregoing
would not have a Material Adverse Effect, and cause each of its Material
Subsidiaries to do so.
(k) Performance of Related Documents. Perform and observe all of the
terms and provisions of each Related Document to be performed or observed
by it, maintain each such Related Document in full force and effect and
enforce such Related Document in accordance with its terms, except to the
extent the failure to do any of the foregoing could not reasonably be
expected to have a Material Adverse Effect.
(l) Performance and Compliance with Material Contracts. Perform and
observe, and cause each of its Subsidiaries to perform and observe, all the
terms and provisions of each Material Contract to be performed or observed
by it, maintain each such Material Contract in full force and effect and
enforce each such Material Contract in accordance with its terms, except to
the extent the failure to do any of the foregoing could not reasonably be
expected to have a Material Adverse Effect.
(m) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of its Affiliates on terms that are fair and
reasonable and no less favorable to such Obligor or such Subsidiary than
would obtain in a comparable arm's-length transaction with a Person that is
not an Affiliate; provided, that this Section 5.01(m) shall not be
applicable to
(i) the transactions expressly contemplated by the Related
Documents;
(ii) transactions between such Obligor and wholly owned
Subsidiaries of Terra or between wholly owned Subsidiaries of Terra
unless otherwise prohibited by this Agreement;
(iii) compensation paid for services rendered by any director or
officer of such Obligor or any director or officer of a Subsidiary of
such Obligor serving at the direction or request of such Obligor to
the extent such compensation is determined in the good faith exercise
of business judgment by the Board of Directors of such Obligor to be
reasonable and appropriate to the functions of such office;
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(iv) the Reorganization Transaction;
(v) the Port ▇▇▇▇ Transaction; and
(vi) transactions under Intercompany Receivables Facilities.
(n) Further Assurances. (i) Promptly upon reasonable request by the
Agent or any Lender or Issuing Bank through the Agent correct, and cause
each Subsidiary promptly to correct, any material defect or error that may
be discovered in any Loan Document, which material defect or error is the
result of any untrue statement of material fact under any Loan Document or
the omission to state a material fact necessary to make the statements made
therein not misleading, or in the execution, acknowledgment or recordation
of any Loan Document, and (ii) promptly upon reasonable request by the
Agent or any Lender or Issuing Bank through the Agent do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and re-
register, and cause any such Subsidiary promptly to do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and re-
register, any and all such further acts, deeds, conveyances, pledge
agreements, assignments, financing statements and continuations thereof,
termination statements, notices of assignment, transfers, certificates,
assurances and other instruments as the Agent or any Lender or Issuing Bank
through the Agent may reasonably require from time to time in order to (A)
subject to the Liens created by any of the Security Documents any of such
Obligor's and its Subsidiaries' properties, rights or interests covered or
now or hereafter intended to be covered by any of the Security Documents,
(B) perfect and maintain the validity, effectiveness and priority of any of
the Security Documents and the Liens intended to be created thereby and (C)
assure, convey, grant, assign, transfer, preserve, protect and confirm more
effectively unto the Agent, the Lenders and any Issuing Bank the rights
granted or now or hereafter intended to be granted to the Agent, the
Lenders and the Issuing Banks under any Security Document or under any
other instrument executed in connection with any Security Document to which
such Obligor, any other Obligor or any of their respective Subsidiaries is
or may become a party.
(o) Ownership of the Obligors. Take, and will cause each of its
Subsidiaries to take, such action from time to time as shall be necessary
to ensure that, except to the extent necessary to give effect to the
Reorganization Transaction:
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(i) Terra will at all times own, beneficially and of record, all
of the issued and outstanding capital stock (other than directors'
qualifying shares) of Terra Capital Holdings;
(ii) Terra Capital Holdings will at all times own, beneficially
and of record, all of the issued and outstanding capital stock (other
than directors' qualifying shares) of the Company, and will own no
other property (other than (x) cash, (y) other property incidental to
its business as a holding company and (z) capital stock of, or other
ownership interests in, Receivables Subsidiaries);
(iii) the Company will at all times own:
(1) beneficially and of record, all of the issued and
outstanding capital stock (other than directors' qualifying
shares) of TI, BMCH, TMC and TNC and
(2) no other property, other than:
(A) cash and Permitted Investments,
(B) Receivables of one or more of its Subsidiaries
transferred to it, and capital stock of, or other ownership
interests in, Receivables Subsidiaries,
(C) Senior Preference Units purchased pursuant to the
SPU Redemption, and capital stock of a wholly owned
Subsidiary of the Company organized for the purpose of
holding such Senior Preference Units,
(D) other property incidental to its business as a
holding company,
(E) other property used solely in connection with its
performance of services pursuant to the terms of the
Management Agreements and
(F) other Investments permitted to be held by the
Company pursuant to Section 5.02(f) (to the extent such
Investments, in the case of those made under clauses (iv),
(v), (vi) and (xiii) of said Section 5.02(f), are subject to
the Lien of the Security Documents);
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(iv) BMCH will at all times own, beneficially and of record, a
99% limited partnership interest in BMLP; and at all times BMCH will
own no other property (other than cash and other property incidental
to its business as a holding company);
(v) TMC will at all times own, beneficially and of record, a 1%
general partnership interest in BMLP; and at all times TMC will own no
other property (other than cash and other property incidental to its
business as a holding company);
(vi) TNC will own no property other than ownership interests of
TNCLP and its successors and a general partnership interest in TNLP
and its successors (other than (x) cash, (y) capital stock of a wholly
owned Subsidiary of TNC organized for the purpose of holding Senior
Preference Units and (z) other property incidental to its business as
a holding company);
(vii) TNCLP will at all times own no property other than
ownership interests of TNLP and its successors (other than cash,
Senior Preference Units purchased pursuant to the SPU Redemption and
other property incidental to its business as a holding company);
(viii) Port ▇▇▇▇ Holdings at all times prior to the transfer of
PNC contemplated in paragraph 2(I) of the Port ▇▇▇▇ Consent will own,
beneficially and of record, all of the issued and outstanding capital
stock (other than directors' qualifying shares) of PNC, and will own
no other property (other than (x) cash and other property incidental
to its business as a holding company, (y) the property described in
the Port ▇▇▇▇ Transaction as being held by Port ▇▇▇▇ Holdings and (z)
any Senior Preference Units acquired by Port ▇▇▇▇ Holdings as part of
the SPU Redemption and any loans made to Terra and its Subsidiaries);
and
(ix) PNC will at all times own no property other than the
property described in the Port ▇▇▇▇ Consent as being held by PNC and
other property used in the repair and operation of the Port ▇▇▇▇
Plant.
In the event that any such additional shares of stock or other ownership
interests shall be issued to an Obligor by any Subsidiary thereof, the
respective Obligor agrees forthwith to deliver to the Agent pursuant to the
Security Documents the certificates (if any) evidencing such ownership
interests accompanied by undated powers executed
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in blank and to take such other action as the Agent shall request to
perfect the security interest created therein pursuant to the Security
Documents. Without limiting the foregoing, neither TNCLP nor TNLP shall
convert to a corporate form except pursuant to the SPU Redemption.
(p) Delivery of Management Agreements. On or prior to the date of
execution of each Management Agreement, notify the Agent thereof (and the
Agent shall notify the Lenders thereof promptly) and shall deliver to the
Agent a certified copy thereof (each such Management Agreement to be in
form and substance reasonably satisfactory to the Agent). Promptly
following each amendment, waiver and consent relating to a Management
Agreement (but subject to Section 5.02(p)), Terra shall give the Agent
notice thereof (and the Agent shall notify the Lenders thereof promptly),
and shall deliver to the Agent a certified or conformed copy of each such
amendment, waiver and consent.
Section 5.02. Negative Covenants. So long as any principal of or
interest on any Advance or any other amount payable under this Agreement shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender shall
have any Commitment hereunder, Terra will not, and will not permit any of its
Material Subsidiaries to:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
any of its Material Subsidiaries to create, incur, assume or suffer to
exist, any Lien on or with respect to any of its properties of any
character (including, without limitation, accounts) whether now owned or
hereafter acquired, or sign or file, or permit any of its Subsidiaries to
sign or file, under the Uniform Commercial Code of any jurisdiction, a
financing statement that names such Obligor or any of its Subsidiaries as
debtor, or sign, or permit any of its Subsidiaries to sign, any security
agreement authorizing any secured party thereunder to file such financing
statement, or assign, or permit any of its Subsidiaries to assign, any
accounts or other right to receive income, excluding from the operation of
the foregoing restrictions the following:
(i) Liens created by the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the Restatement Date and described on
Schedule 5.02(a)(iii);
(iv) Liens on cash (in an aggregate amount, for Terra and its
Subsidiaries taken as a whole, not
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exceeding $15,000,000 at any time) to secure the Obligations in
respect of letters of credit permitted under Section 5.02(b)(iv);
(v) Liens on Receivables and incidental property of the Company
or any of its Subsidiaries to secure such Person's Obligations under
the Intercompany Receivables Facilities and/or under the Permitted
Receivables Facilities;
(vi) Purchase money Liens upon or in property acquired or held
by Terra or such Subsidiary in the ordinary course of business to
secure the purchase price of such property or to secure Debt
(including, without limitation, commercial letters of credit) incurred
solely for the purpose of financing the acquisition, construction or
improvement of any such property to be subject to such Liens, or Liens
existing on any such property at the time of acquisition (and not
created in anticipation thereof), or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount;
provided, that (x) no such Lien shall extend to or cover any property
other than the property being acquired, constructed or improved, and
no such extension, renewal or replacement shall extend to or cover any
property not theretofore subject to the Lien being extended, renewed
or replaced; and (y) the Debt secured by any such Lien shall at no
time exceed 100% of the fair market value (as determined in good faith
by the Senior Financial Officer) of such property at the time it was
acquired;
(vii) Any Lien arising after the Restatement Date in favor of
any state of the United States of America or any agency, political
subdivision or instrumentality thereof, upon any pollution abatement
or control facilities being financed in compliance with Section
103(c)(4)(F) of the Internal Revenue Code of 1986, as in effect on the
date of this Agreement (or any successor statute which is similar in
all substantive respects), the interest payable in respect of which
financing is excluded from gross income under said Section 103,
provided, however, that (x) the Debt secured by such Lien is not
prohibited by clause (b) of this Section 5.02, and (y) such Lien does
not cover any other property at any time owned by Terra or any
Material Subsidiary;
(viii) Liens on property that is the subject of a capital lease
to secure the performance of the Capital Lease Obligations relating
thereto;
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(ix) Liens upon property of a Person that becomes a Subsidiary
of Terra after the Restatement Date, each of which Liens existed on
such property before the time such Person became a Subsidiary of Terra
and was not created in anticipation thereof; provided, that no such
Lien shall extend to or cover any property of Terra or any of its
Subsidiaries other than the property subject to such Liens at the time
such Person became a Subsidiary of Terra and improvements thereon;
(x) Leases or subleases, and licenses or sublicenses, granted to
third Persons not interfering in any material respect with the
business of Terra or such Subsidiary;
(xi) Easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the
business of Terra or such Subsidiary;
(xii) Liens arising from Uniform Commercial Code financing
statements regarding operating leases permitted by this Agreement;
(xiii) Any interest or title of a lessor or sublessor or
licensor under any lease or license permitted or not prohibited by
this Agreement;
(xiv) Additional Liens upon property created after the
Restatement Date, provided, that the aggregate Debt secured thereby
and incurred on and after the Restatement Date shall not exceed
$10,000,000 in the aggregate at any one time outstanding;
(xv) The replacement, extension or renewal of any Lien permitted
by clauses (iii), (iv), (v), (ix) and (xiv) above upon or in the same
property theretofore subject thereto or the replacement, extension or
renewal (without increase in the principal amount or change in any
direct or contingent obligor) of the Debt secured thereby; and
(xvi) Liens created pursuant to, or as part of, the Port ▇▇▇▇
Transaction.
(b) Debt. Create, incur, assume or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any Debt
other than:
(i) Debt under the Loan Documents;
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(ii) Debt in respect of Hedge Agreements permitted by Section
5.02(c);
(iii) Debt in respect of unsecured trade payables (and
Obligations in respect of letters of credit supporting such trade
payables);
(iv) Debt (including, without limitation, Obligations in respect
of letters of credit) not secured by any Lien (other than Liens
permitted by Section 5.02(a)(iv)), so long as, on the date of the
incurrence thereof, the aggregate principal amount (or the U.S. Dollar
equivalent of the aggregate principal amount) of all Debt of Terra and
its Subsidiaries on a Consolidated basis (as reasonably determined by
the Senior Financial Officer on and as of the date of such incurrence)
then outstanding under this clause (iv) (including, without
limitation, the Debt proposed to be incurred on such date) does not
exceed $50,000,000;
(v) Obligations of the Company and its Subsidiaries under the
Intercompany Receivables Facilities and under the Permitted
Receivables Facilities;
(vi) Debt securities of Terra issued in a public offering
pursuant to an effective registration statement the terms of which
(including, without limitation, as to interest rates, amortization
(provided, that in any event no payments of principal, redemptions,
sinking fund payments or the like shall be scheduled to be made before
the Terra Commitment Termination Date), redemption, average life to
maturity, covenants, events of default and other terms) are reasonably
satisfactory to the Required Lenders;
(vii) Debt outstanding (or committed to be made available) as at
September 30, 1995 and set forth on Schedule 4.01(y);
(viii) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(ix) in the case of any of its Subsidiaries, Debt owed to Terra
or to a wholly owned Subsidiary of Terra;
(x) Debt secured by Liens permitted under Section 5.02(a)(vi);
purchase money Debt secured by Liens permitted under 5.02(a)(ix); and
Debt in an aggregate principal amount not exceeding $10,000,000 at
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any one time outstanding secured by Liens permitted under Section
5.02(a)(xiv);
(xi) Debt of Subsidiaries of Terra acquired by Terra or any of
its Subsidiaries after the Restatement Date in an aggregate principal
amount not exceeding $50,000,000 at any one time outstanding;
(xii) 1995 Terra Debt (and Debt of Terra evidenced by
instruments issued in exchange for such Debt), and renewals,
refinancings and replacements thereof (without increase in the
principal amount or change in any direct or contingent obligor, and on
such other terms and conditions as shall be no less favorable to Terra
and its Subsidiaries than the Debt being so renewed, refinanced or
replaced);
(xiii) renewals, refinancings and replacements of the Debt
permitted under clauses (vi), (vii), (ix), (x) and (xi) above (without
increase in the principal amount or change in any direct or contingent
obligor and not including any Debt to be paid or prepaid with the
proceeds of Advances); and
(xiv) Debt incurred pursuant to, or as part of, the Port ▇▇▇▇
Transaction.
(c) Hedge Agreements. Enter into or permit to be outstanding, or
permit any of its Subsidiaries to enter into or permit to be outstanding,
any Hedge Agreement other than (x) Hedge Agreements entered into prior to
the Restatement Date and identified on Schedule 5.02(c), (y) the Methanol
Hedging Agreement, and (z) other Hedge Agreements entered into in the
ordinary course of business and in a reasonably prudent manner and not for
speculative purposes, in each case in order to protect against the
fluctuation in interest rates, foreign exchange rates or commodity prices.
(d) Mergers, Etc. Merge with or into or consolidate with or into any
Person, or permit any of its Material Subsidiaries to do so, except that:
(i) if no Default or Event of Default shall have occurred and be
continuing or would result therefrom, (x) any Subsidiary of the
Company may be merged or consolidated with or into the Company
(provided, that the Company shall be the continuing or surviving
corporation) or any other wholly owned Subsidiary of the Company and
(y) the Company or any of its Subsidiaries may merge or consolidate
with any other Person; provided, that (1) in the case of a merger or
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consolidation of the Company, the Company is the continuing or
surviving corporation, and (2) in any other case, the continuing or
surviving corporation is a wholly owned Subsidiary of the Company;
(ii) nothing in this Section 5.02(d) shall be deemed to prohibit
the Reorganization Transaction; and
(iii) nothing in this Section 5.02(d) shall be deemed to
prohibit the Port ▇▇▇▇ Transaction.
(e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise
dispose of (including, without limitation, in a sale-leaseback
transaction), or permit any of its Subsidiaries to sell, lease, transfer or
otherwise dispose of (including, without limitation, in a sale-leaseback
transaction), any of its assets, including (without limitation) any
manufacturing plant or substantially all assets constituting the business
of a division, branch or other unit operation, except:
(i) sales of inventory in the ordinary course of its business;
(ii) sales or other dispositions of obsolete or worn-out
equipment no longer used or useful in its business;
(iii) dispositions of assets by one member of the Specified
Group to another member of the Specified Group (where "Specified
Group" means, collectively, the Company and each of its wholly owned
Subsidiaries);
(iv) (X) to the extent not permitted pursuant to clause (iii)
above, dispositions of assets by one Obligor to another and by an
Obligor to one of its or any other Obligor's wholly owned
Subsidiaries, (Y) other Dispositions to the extent the Net Available
Proceeds thereof are invested or committed to be invested in the
business of the Company and its Subsidiaries within one year from the
date of the relevant Disposition, and (Z) other Dispositions in an
aggregate amount not to exceed $50,000,000 in any period of 12
consecutive months; provided, that, in the case of all Dispositions
under this clause (iv) (A) each such asset is sold for an amount not
less than its fair market value, (B) no such asset may be sold to the
extent that it is, individually or when considered with any other
asset or assets sold or expected to be sold in such period (but taking
into account property acquired in exchange for, or to be acquired
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substantially contemporaneously with the disposition of, the assets so
sold or expected to be sold), material to the business, assets,
operations, properties or financial condition of Terra and its
Subsidiaries taken as a whole, and (C) the Net Available Proceeds of
such Disposition are applied in accordance with and to the extent
required by Section 2.05(b), and to the extent the assets subject to
the Disposition constituted part of the Collateral, all other cash and
non-cash proceeds of such Disposition become subject to the Lien
created by the Security Documents in accordance with the terms
thereof;
(v) nothing in this Section 5.02(e) shall prohibit the Company
or any of its Subsidiaries from selling Receivables (x) under any
Permitted Receivables Facility (subject to the restrictions specified
in the definition of said term) or (y) under any Intercompany
Receivables Facility;
(vi) nothing in this Section 5.02(e) shall prohibit the
Reorganization Transaction; and
(v) nothing in this Section 5.02(e) shall prohibit the Port ▇▇▇▇
Transaction.
(f) Investments. Make or hold, or permit any of its Subsidiaries to
make or hold, any Investment, other than:
(i) Investments by Terra and its Subsidiaries in cash and
Permitted Investments;
(ii) Investments constituting (A) operating deposit accounts
with banks and (B) Receivables arising in the ordinary course of
business on ordinary business terms, in each case in accordance with,
and subject to the terms of, the Security Documents;
(iii) Investments described in Schedule 5.02(f);
(iv) Investments arising solely by reason of any merger or
consolidation expressly permitted by Section 5.02(d)(i)(x);
(v) Subject to the terms set forth on Exhibit G, Specified
Acquisitions to the extent permitted to be made under Section 5.02(h);
(vi) Investments consisting of acquisitions of property
(including, without limitation, ownership
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interests in any Person) by Terra or any of its Subsidiaries so long
as (x) the aggregate fair market value of all such property acquired
in any fiscal year of Terra shall not exceed $50,000,000, and (y) the
consideration paid by Terra and its Subsidiaries for each such
acquisition consists solely of equity securities issued by Terra;
(vii) Investments in respect of Hedge Agreements permitted by
Section 5.02(c);
(viii) Investments in ▇▇▇▇ Seeds, Inc. in an aggregate amount
not exceeding $4,000,000;
(ix) Investments in Agro-Terra Internacional, S.A. de C.V., a
joint venture between TI and Grupo Acerero del Norte, S.A. de C.V., in
an aggregate amount not exceeding $5,000,000;
(x) Investments made pursuant to Terra's Supplemental Deferred
Compensation Plan, and its Excess Benefit Plan, each as in effect on
the Restatement Date;
(xi) Investments by Terra consisting of Terra Stock Repurchases;
(xii) Investments by Terra and its Subsidiaries consisting of
the purchase, redemption or other acquisition of Senior Preference
Units pursuant to the SPU Redemption;
(xiii) other Investments contemplated by the Reorganization
Transaction;
(xiv) other Investments contemplated by the Port ▇▇▇▇
Transaction; and
(xv) capital contributions to Receivables Subsidiaries.
(g) Payments to Minority Interests. Pay or cause to be paid, or
permit any of its Subsidiaries to pay or cause to be paid, to any holder of
a minority interest any amount with respect to such minority interest in
excess of the amount to which such holder is legally entitled, unless Terra
or such Subsidiary simultaneously receives payment in an amount equal to or
greater than its ratable share of the amount of the related distribution
(determined in accordance with the respective interests then held by Terra
and such Subsidiary, on the one hand, and such holder, on the other),
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it being understood that the SPU Redemption will not constitute a breach of
this Section 5.02(g).
(h) Restricted Transactions. Permit the aggregate amount of
Restricted Transactions in any fiscal year (the "Subject Fiscal Year"), for
Terra and its Subsidiaries on a Consolidated basis, to exceed the sum of
(i) $150,000,000 plus (ii) for fiscal years beginning January 1, 1996 and
thereafter, the lesser of (x) an amount equal to the unused portion (if
any) of the amount available for Restricted Transactions pursuant to
paragraph (i) of this Section 5.02(h) for the prior fiscal year and (y)
$100,000,000 and minus (iii) the amount of Other Distributions made during
the Subject Fiscal Year.
(i) Change in Nature of Business. Make, or permit any of its
Material Subsidiaries to make, any material change in the nature of the
business of Terra and its Subsidiaries taken as a whole as carried on at
the Restatement Date.
(j) Charter Amendments. Amend, or permit any of its Material
Subsidiaries to amend, its articles of incorporation or bylaws, or amend
any partnership agreement to which it or any of its Subsidiaries is a party
(except for amendments to authorize the issuance of preferred or common
stock), in each case to the extent any such amendment could reasonably be
expected to have a Material Adverse Effect.
(k) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally accepted
accounting principles in effect in the United States; provided, that in the
event of any change in generally accepted accounting principles from the
date of the financial statements referred to in Section 4.01(f) and upon
delivery of any financial statement and accompanying certificate of
compliance required to be furnished under subsections (b) and (c) of
Section 5.03, Terra shall deliver to the Lenders a statement of
reconciliation conforming any information contained in such financial
statement and a certificate of compliance required to be furnished pursuant
to subsections (b) and (c) of Section 5.03 with GAAP (it being understood
that compliance with financial covenants herein shall be measured and
determined on the basis of GAAP).
(l) Amendment of Related Documents. Cancel or terminate any Related
Document or consent to or accept any cancellation or termination thereof,
amend, modify or change in any manner any term or condition of any Related
Document
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or give any consent, waiver or approval thereunder, waive any default under
or any breach of any term or condition of any Related Document or agree in
any manner to any other amendment, modification or change of any term or
condition of any Related Document to the extent any of the foregoing could
reasonably be expected to have a Material Adverse Effect, or permit any of
its Subsidiaries to do any of the foregoing.
(m) Certain Obligations Respecting Subsidiaries. Enter into, or
permit any of its Subsidiaries to enter into, after the Restatement Date,
any indenture, agreement, instrument or other arrangement that, directly or
indirectly, prohibits or restrains, or has the effect of prohibiting or
restraining, or imposes materially adverse conditions upon, the declaration
or payment of dividends or the making of loans or advances to or
Investments in or the sale, assignment, transfer or other disposition of
property to Terra or any Subsidiary thereof.
(n) Subordinated Indebtedness. Purchase, redeem, retire or otherwise
acquire for value, or set apart any money for a sinking, defeasance or
other analogous fund for the purchase, redemption, retirement or other
acquisition of, or make any voluntary payment or prepayment of the
principal of or interest on, or any other amount owing in respect of, any
Subordinated Indebtedness (and such Obligor will not permit any of its
Subsidiaries to do any of the foregoing), in each case except for regularly
scheduled payments of principal and interest in respect thereof required
pursuant to the instruments evidencing such Subordinated Indebtedness, or
amend the documentation creating or evidencing Subordinated Indebtedness.
(o) Transactions with Affiliates. Except to the extent otherwise
expressly permitted hereunder, enter into any transaction with any
Affiliate on terms less favorable than would pertain in a transaction
entered into with a third party on an arm's-length basis.
(p) Amendments to Management Agreements. Without the consent of the
Agent, amend, modify or change in any material respect the terms or
conditions of any Management Agreement.
(q) Margin Stock. Permit more than 25%, after applying the proceeds
of each Advance, of the value of the assets of either Borrower and such
Borrower's Subsidiaries (as determined in good faith by such Borrower) that
are subject to Section 5.02(a) or Section 5.02(e) to consist of or be
represented by Margin Stock.
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Section 5.03. Reporting Requirements. So long as any principal of or
interest on any Advance or any other amount payable under this Agreement shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender shall
have any Commitment hereunder:
(a) Default Notice. Each Obligor will furnish to the Agent, as soon
as possible and in any event within five Business Days after such Obligor
knows or has reason to believe that a Default or Event of Default has
occurred (which Default or Event of Default is continuing on the date of
the following statement), a statement of the Senior Financial Officer
setting forth details of such Default or Event of Default and the action
that such Obligor has taken and proposes to take with respect thereto.
(b) Quarterly Financials. As soon as available and in any event
within 60 days after the end of each of the first three quarters of each
fiscal year of Terra, Terra will furnish to the Agent, with sufficient
copies for each Lender and each Issuing Bank, a Consolidated balance sheet
of Terra and its Subsidiaries as of the end of such quarter and
Consolidated statements of income and cash flows, and statements of
earnings by product line, of Terra and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with the end
of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding period of the preceding fiscal
year in reasonable detail and duly certified (subject to year-end audit
adjustments) by the Senior Financial Officer as having been prepared in
accordance with GAAP, together with (i) a certificate of said officer (A)
stating that no Default or Event of Default has occurred and is continuing
or, if a Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof and the action that Terra has taken and
proposes to take with respect thereto, (B) stating that since December 31,
1994, there has been no Material Adverse Change with respect to Terra and
(C) providing a comparison between the financial position and results of
operations set forth in such financial statements with the comparable
information set forth in the financial projections and budget most recently
delivered pursuant to Section 5.03(m) of the Original Credit Agreement,
Section 5.03(l) of the Existing Credit Agreement or Section 5.03(l) and
(ii) a schedule in form satisfactory to the Agent of the computations used
by Terra in determining compliance with the covenants contained in Section
5.04.
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(c) Annual Financials. As soon as available and in any event within
110 days after the end of each fiscal year of Terra, Terra will furnish to
the Agent, with sufficient copies for each Lender and each Issuing Bank, a
copy of the annual audit report for such year for Terra and its
Subsidiaries, including therein a Consolidated balance sheet of Terra and
its Subsidiaries as of the end of such fiscal year and Consolidated
statements of income and cash flows, and statements of earnings by product
line, of Terra and its Subsidiaries for such fiscal year, setting forth in
each case in comparative form the corresponding figures for the preceding
fiscal year accompanied by an unqualified opinion of Deloitte & Touche or
other independent public accountants of nationally recognized standing
stating that, except as expressly disclosed therein, said Consolidated
financial statements present fairly, in all material respects, the
Consolidated financial position and results of operations of Terra and its
Consolidated Subsidiaries as of the last day of, and for, such fiscal year,
together with (i) a certificate of such accounting firm to the Lenders
stating that in the course of the regular audit of the business of Terra
and its Subsidiaries, which audit was conducted by such accounting firm in
accordance with generally accepted auditing standards, such accounting firm
has obtained no knowledge that a Default or Event of Default has occurred
and is continuing, or if, in the opinion of such accounting firm, a Default
or Event of Default has occurred and is continuing, a statement as to the
nature thereof (it being understood that said accountants shall have no
liability to the Agent, the Lenders or the Issuing Banks for failure to
obtain knowledge of any Default or Event of Default), (ii) a schedule in
form satisfactory to the Agent of the computations used by such accountants
in determining, as of the end of such fiscal year, compliance with the
covenants contained in Section 5.04 and (iii) a certificate of the Senior
Financial Officer (A) stating that no Default or Event of Default has
occurred and is continuing or, if a Default or Event of Default has
occurred and is continuing, a statement as to the nature thereof and the
action that Terra has taken and proposes to take with respect thereto, (B)
stating that since December 31, 1994, there has been no Material Adverse
Change with respect to Terra and (C) providing a comparison between the
financial position and results of operations set forth in such financial
statements with the comparable information set forth in the financial
projections and budget most recently delivered pursuant to Section 5.03(m)
of the Original Credit Agreement, Section 5.03(l) of the Existing Credit
Agreement or Section 5.03(l).
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(d) ERISA Events. Promptly and in any event within 10 Business Days
after any Obligor knows or has reason to know that any ERISA Event
(including, for this purpose, a reportable event listed in Section
4043(c)(7) of ERISA) with respect to any Obligor or any of its ERISA
Affiliates has occurred, Terra will furnish to the Agent a statement of the
Senior Financial Officer describing such ERISA Event and the action, if
any, that such Obligor or such ERISA Affiliate has taken and proposes to
take with respect thereto.
(e) Plan Terminations. Promptly and in any event within 10 Business
Days after receipt thereof by any Obligor or any of its ERISA Affiliates,
such Obligor will furnish to the Agent copies of each notice from the PBGC
stating its intention to terminate any Plan of any Obligor or any of its
ERISA Affiliates or to have a trustee appointed to administer any such
Plan.
(f) Plan Annual Reports. Promptly and in any event within 30 days
after the filing thereof with the Internal Revenue Service, each Obligor
will furnish to the Agent copies of such Schedule B (Actuarial Information)
to the annual report (Form 5500 Series) with respect to each Plan of each
Obligor or any of its ERISA Affiliates that is then being maintained for
employees or former employees of such Person.
(g) Multiemployer Plan Notices. Promptly and in any event within
five Business Days after receipt thereof by any Obligor or any of its ERISA
Affiliates from the sponsor of a Multiemployer Plan of any Obligor or any
of its ERISA Affiliates, such Obligor will furnish to the Agent copies of
each notice concerning (i) the imposition of withdrawal liability by any
such Multiemployer Plan, (ii) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such Multiemployer Plan or (iii) the
amount of liability incurred, or that is reasonably expected to be
incurred, by such Obligor or any of its ERISA Affiliates in connection with
any event described in clause (i) or (ii).
(h) Litigation. Promptly after the commencement thereof, Terra will
furnish to the Agent notice of all actions, suits, investigations,
litigation and proceedings before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
affecting any Obligor or any of its Subsidiaries of the type described in
Section 4.01(h).
(i) Environmental Conditions. Promptly after receiving notice
thereof, Terra will furnish to the Agent
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notice of any condition or occurrence on any property of any Obligor that
results in a material noncompliance by any Obligor or any of its
Subsidiaries with any Environmental Law or Environmental Permit which
noncompliance could reasonably be expected to have a Material Adverse
Effect, or could (i) form the basis of an Environmental Action against any
Obligor or any of its Subsidiaries or such property that could reasonably
be expected to have a Material Adverse Effect or (ii) cause any such
property to be subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law that could reasonably be
expected to have Material Adverse Effect.
(j) Public Filings. Terra shall, promptly upon their becoming
available, deliver to the Agent, each Issuing Bank and each Lender copies
of all registration statements and regular periodic reports, if any, that
Terra, the Company or TNCLP shall have filed with the Securities and
Exchange Commission (or any governmental agency substituted therefor) or
any national securities exchange.
(k) Shareholder Reports, Etc. Terra shall deliver to the Agent, each
Issuing Bank and each Lender promptly upon the mailing thereof to the
shareholders of Terra or TNCLP generally or to holders of Subordinated
Indebtedness or 1995 Terra Debt generally, copies of all financial
statements and proxy statements so mailed.
(l) Financial Projections and Budget. As soon as available and in
any event within 110 days after the first day of each fiscal year of Terra,
Terra will furnish to the Agent, with sufficient copies for each Lender and
each Issuing Bank, financial projections and a budget for such fiscal year
and each subsequent fiscal year of Terra to and including the fiscal year
in which the Terra Commitment Termination Date is scheduled to occur, in
each case in form and detail similar to the financial projections and
budget delivered under Section 5.03(m) of the Original Credit Agreement or
Section 5.03(l) of the Existing Credit Agreement.
(m) Other Information. Each Obligor shall furnish to the Lenders
through the Agent such other information respecting the business, condition
(financial or otherwise), operations, performance, properties or prospects
of any Obligor or any of its Subsidiaries as the Agent, any Issuing Bank or
any Lender may from time to time reasonably request.
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Section 5.04. Financial Covenants. So long as any principal of or
interest on any Advance or any other amount payable under this Agreement shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender shall
have any Commitment hereunder, Terra will:
(a) Debt to Cash Flow Ratio. Maintain the Debt to Cash Flow Ratio at
not more than the ratio set forth below for each day during each Rolling
Period ending in the respective fiscal years of Terra set forth below:
Each
Rolling Period
Ending In Ratio
-------------- -----
1995 3.75 to 1.00
1996 and each fiscal 3.00 to 1.00
year thereafter
(b) Interest Coverage Ratio. Maintain the Interest Coverage Ratio at
not less than the ratio set forth below for each Rolling Period ending in
the respective fiscal years of Terra set forth below:
Each
Rolling Period
Ending In Ratio
-------------- ------------
1995 4.00 to 1.00
1996 4.00 to 1.00
1997 4.00 to 1.00
1998 4.50 to 1.00
1999 4.50 to 1.00
2000 4.50 to 1.00
(c) Net Worth. Maintain Net Worth on each day of not less than (i)
$375,000,000 plus (ii) the aggregate increase in the amount of capital
stock and additional paid-in capital of Terra subsequent to the Closing
Date, plus (iii) 50% of net income (if positive) for each fiscal year of
Terra ending on or after December 31, 1994.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
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(a) either Borrower (i) shall fail to pay when due any principal of
any Advance made to it or (ii) shall fail for two Business Days to pay when
due any interest on any Advance made to it or any other amount payable by
it under any Loan Document; or
(b) any representation or warranty made by any Obligor (or any of its
officers) under or in connection with any Loan Document shall prove to have
been incorrect in any material respect when made; or
(c) any Obligor shall fail to perform or observe any term, covenant or
agreement contained in clause (o) of Section 5.01, or clause (a), (b), (c),
(d), (e), (g), (i) or (q) of Section 5.02, or clause (a), (e) or (i) of
Section 5.03, or Section 5.04; or
(d) Terra shall fail to pay and perform its obligations under the Loan
Purchase Agreement; or
(e) any Obligor shall fail to perform any other term, covenant or
agreement contained in any Loan Document on its part to be performed or
observed if such failure shall remain unremedied for a period of 30 days;
or
(f) any Obligor or any of its Material Subsidiaries shall fail to pay
any principal of, premium or interest on or any other amount payable in
respect of any Debt that is outstanding in a principal or notional amount
of at least $10,000,000 in the aggregate (but excluding Debt outstanding
hereunder) of such Obligor or such Subsidiary (as the case may be), when
the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist under any agreement or instrument relating
to any such Debt and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt or otherwise to cause, or to permit the holder or
holders (or an agent or trustee on its or their behalf) thereof to cause,
such Debt to mature; or any such Debt shall be declared to be due and
payable or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or an
offer to prepay, redeem, purchase or defease such Debt shall be required to
be made, in each case prior to the stated maturity thereof; or
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(g) any Obligor or any of its Material Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against any Obligor or any of its Material Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, or other similar official
for it or for any substantial part of its property and, in the case of any
such proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of 60 days or any of the
actions sought in such proceeding (including, without limitation, the entry
of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or any substantial part of its
property) shall occur; or any Obligor or any of its Material Subsidiaries
shall take any corporate action to authorize any of the actions set forth
above in this subsection (g); or
(h) any judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against any Obligor or any of its Material
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall
be any period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect, unless such judgment or order shall have been vacated,
satisfied or dismissed or bonded pending appeal; or
(i) any non-monetary judgment or order shall be rendered against any
Obligor or any of its Subsidiaries that could be reasonably likely to have
a Material Adverse Effect, and there shall be any period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect unless such
judgment or order shall have been vacated, satisfied, discharged or bonded
pending appeal; or
(j) any Security Document after delivery thereof pursuant to Section
3.01 of the Original Credit Agreement shall for any reason (other than
pursuant to the terms hereof and thereof) cease to create a valid and
perfected
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first priority Lien (subject only to Permitted Liens) on the Collateral
purported to be covered thereby; or
(k) Minorco ceases to own, directly or indirectly, at least 20% of the
issued and outstanding shares of voting capital stock of Terra; or Minorco
ceases to hold, directly or indirectly, a plurality of the issued and
outstanding shares of capital stock of Terra; or
(l) any ERISA Event shall have occurred with respect to a Plan of any
Obligor or any of its ERISA Affiliates and the amount (determined as of the
date of occurrence of such ERISA Event) of the Insufficiency of such Plan
and the Insufficiency of any and all other Plans of the Obligors and their
ERISA Affiliates with respect to which an ERISA Event shall have occurred
and then exist (or the liability of the Obligors and their ERISA Affiliates
related to such ERISA Event) could reasonably be expected to have a
Material Adverse Effect; provided, that with respect to any Multiple
Employer Plan, such Insufficiency shall include only the portion thereof
attributable to such Obligor or its ERISA Affiliates; or
(m) any Obligor or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan of any Obligor or any of
its ERISA Affiliates that it has incurred withdrawal liability to such
Multiemployer Plan in an amount that, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Obligors and
their ERISA Affiliates as withdrawal liability (determined as of the date
of such notification), could reasonably be expected to have a Material
Adverse Effect; or
(n) any Obligor or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan of any Obligor or any of
its ERISA Affiliates that such Multiemployer Plan is in reorganization or
is being terminated, within the meaning of Title IV of ERISA, and as a
result of such reorganization or termination the aggregate annual
contributions of the Obligors and their ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount that could reasonably be expected to have a
Material Adverse Effect; or
(o) there shall have been asserted against Terra or any of its
Subsidiaries an Environmental Claim that, in the judgment of the Required
Lenders, is reasonably likely to be
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determined adversely to Terra or any of its Subsidiaries, and the amount
thereof (either individually or in the aggregate) is reasonably likely to
have a Material Adverse Effect (insofar as such amount is payable by Terra
or any of its Subsidiaries but after deducting any portion thereof that is
reasonably expected to be paid by other creditworthy Persons);
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrowers, declare the
obligation of each Lender to make Advances and of each Issuing Bank to issue
Letters of Credit to be terminated, whereupon the same shall forthwith terminate
(and this clause (i) shall also be applicable if there shall occur a Purchase
Event), and (ii) shall at the request, or may with the consent, of the Required
Lenders, by notice to the Borrowers, declare the Advances and the Notes, all
interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon the Advances and
the Notes, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrowers; provided, that
in the event of an actual or deemed entry of an order for relief with respect to
any Obligor or any of its Subsidiaries under the Federal Bankruptcy Code, (x)
the obligation of each Lender to make Advances and of any Issuing Bank to issue
Letters of Credit shall automatically be terminated and (y) the Advances and the
Notes, all such interest and all such amounts shall automatically become and be
due and payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Borrowers.
Section 6.02. Actions in Respect of the Letters of Credit Upon
Default. If any Event of Default shall have occurred and be continuing, the
Agent may, irrespective of whether it is taking any of the actions described in
Section 6.01 or otherwise, make demand upon the Borrowers to, and forthwith upon
such demand the Borrowers will, pay to the Agent on behalf of the Lenders in
same day funds at the Agent's Office, for deposit in the relevant L/C Cash
Collateral Account, an amount equal to the aggregate Available Amount of all
Letters of Credit then outstanding, which funds shall be retained by the Agent
in the relevant L/C Collateral Account (as provided therein as collateral
security for the Letter of Credit Liabilities) until such time as the Letters of
Credit shall have been terminated and all of such Letter of Credit Liabilities
paid in full.
If at any time the Agent determines that any funds held in the
relevant L/C Cash Collateral Account are subject to any right or claim of any
Person other than the Agent and the Lenders
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or that the total amount of such funds is less than the aggregate Available
Amount of all Letters of Credit, the Borrowers will, forthwith upon demand by
the Agent, pay to the Agent, as additional funds to be deposited and held in the
relevant L/C Cash Collateral Account, an amount equal to the excess of (a) such
aggregate Available Amount over (b) the total amount of funds, if any, then held
in such L/C Cash Collateral Account that the Agent determines to be free and
clear of any such right and claim.
ARTICLE VII
THE AGENT
Section 7.01. Authorization and Action. Each Lender and each Issuing
Bank hereby appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement and
the other Loan Documents as are delegated to the Agent by the terms hereof,
together with such powers and discretion as are reasonably incidental thereto.
As to any matters not expressly provided for by the Loan Documents, including,
without limitation, enforcement or collection of the Notes, the Agent shall not
be required to exercise any discretion or take any action, and shall not be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) except upon the instructions of the Required
Lenders, and such instructions shall be binding upon all Lenders and all holders
of the Notes; provided, that the Agent shall not be required to take any action
that exposes it to personal liability or that is contrary to this Agreement or
applicable law. The Agent agrees to give to each Issuing Bank and each Lender
prompt notice of each notice given to it by the Borrowers or Terra pursuant to
the terms of this Agreement. Each Lender and Issuing Bank hereby authorizes the
Agent (i) to execute and deliver each of the Security Documents and (ii) to
execute and deliver the Loan Purchase Agreement (and each Lender and Issuing
Bank agrees that, upon such execution and delivery, it will be bound by the Loan
Purchase Agreement as if such Lender or Issuing Bank, as the case may be, were a
signatory thereto). Chemical Bank as Co-Arranger shall, in such capacity, have
no duties, responsibilities or liabilities whatsoever under this Agreement or
any other Loan Document.
Section 7.02. Agent's Reliance, Etc. Neither the Agent nor any of
its respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the Agent
(i) may treat the payee of any Note as the
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holder thereof until the Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 9.07; (ii) may consult
with legal counsel (including counsel for any Obligor), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by them in accordance with the
advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Issuing Bank or any Lender and shall not be responsible to
any of them for any statements, warranties or representations made in or in
connection with the Loan Documents; (iv) shall not have any duty to ascertain or
to inquire as to the performance or observance of any of the terms, covenants or
conditions of any Loan Document on the part of any Obligor or to inspect the
property (including the books and records) of any Obligor; (v) shall not be
responsible to any Issuing Bank or any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Loan Document
or any other instrument or document furnished pursuant hereto; and (vi) shall
incur no liability under or in respect of any Loan Document by acting upon any
notice, consent, certificate or other instrument or writing (which may be by
telegram, telecopy, cable or telex) believed by it to be genuine and signed or
sent by the proper party or parties.
Section 7.03. Citibank and Affiliates. With respect to its
Commitments, the Advances made by it and the Notes issued to it, Citibank shall
have the same rights and powers under the Loan Documents as any other Lender and
may exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures for, accept investment banking
engagements from and generally engage in any kind of business with, any Obligor,
any of its Subsidiaries, any of its Affiliates and any Person who may do
business with or own securities of any Obligor or any such Subsidiary or
Affiliate, all as if Citibank were not the Agent and without any duty to account
therefor to the Lenders or any Issuing Bank.
Section 7.04. Lender Credit Decision. Each Lender and each Issuing
Bank acknowledges that it has, independently and without reliance upon the
Agent, any Issuing Bank or any other Lender and based on the financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender and each Issuing Bank also acknowledges that
it will, independently and without reliance upon the Agent, any Issuing Bank or
any other Lender and
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based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement.
Section 7.05. Indemnification. The Lenders agree to indemnify the
Agent (to the extent not promptly reimbursed by the Borrowers), ratably
according to the principal amounts of the Notes then held by each of them (or if
no Advances are at the time outstanding, ratably according to the amounts of
their Commitments), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against any of them in any way relating to or arising out of the
Loan Documents or any action taken or omitted by any of them under the Loan
Documents; provided, that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the Agent. Without limitation of the foregoing, each Lender
agrees to reimburse the Agent promptly upon demand for its ratable share of any
costs and expenses payable by the Borrowers under Section 9.04 of this
Agreement, under the Holdings Pledge Agreement, under the Terra Capital Pledge
Agreement, under the Subsidiary Pledge and Security Agreement and under the TNLP
Pledge and Security Agreement, to the extent that the Agent is not promptly
reimbursed for such costs and expenses by the Borrowers.
Section 7.06. Collateral Duties.
(a) Except for action expressly required of the Agent hereunder and
under the Security Documents, the Agent shall in all cases be fully justified in
refusing to act hereunder and thereunder unless it shall be further indemnified
to its satisfaction by the Lenders and the Issuing Banks proportionately in
accordance with the Obligations then due and payable to each of them against any
and all liability and expense that may be incurred by it by reason of taking or
continuing to take any such action.
(b) Except as expressly provided herein, the Agent shall have no duty
to take any affirmative steps with respect to the collection of amounts payable
in respect of the Collateral. The Agent shall incur no liability as a result of
any private sale of the Collateral.
(c) The Lenders and the Issuing Banks hereby consent, and agree upon
written request by the Agent to execute and deliver such instruments and other
documents as the Agent may deem desirable to confirm such consent, to the
release of the
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Liens on any of the Collateral, including any release in connection with any
sale, transfer or other disposition of the Collateral or any part thereof in
accordance with the Loan Documents.
(d) The Agent shall be deemed to have exercised reasonable care in
the custody and preservation of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that which the Agent
accords its own property, it being understood that none of the Agent, any Lender
or any Issuing Bank shall have responsibility for (a) ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relative to any Collateral, whether or not the Agent, any Lender
or any Issuing Bank has or is deemed to have knowledge of such matters, or (b)
taking any necessary steps to preserve rights against any parties with respect
to any Collateral.
Section 7.07. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Issuing Banks, the Lenders and the
Borrowers and may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint (subject, so long as no Default or Event of Default has
occurred and is continuing, to the consent of the Borrowers, which consent shall
not be unreasonably withheld) a successor Agent. If no successor Agent shall
have been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Required Lenders' removal of the Agent, as the case may be,
then the retiring Agent may, on behalf of the Issuing Banks and the Lenders,
appoint (subject, so long as no Default or Event of Default has occurred and is
continuing, to the consent of the Borrowers, which consent shall not be
unreasonably withheld) a successor Agent, which shall be an Initial Lender or a
commercial bank organized under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent
such successor Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Agent, as the case may
be, and such retiring Agent shall be discharged from its duties and obligations
under the Loan Documents. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Article VII shall inure to the
benefit of the Agent as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement and under the Security Documents.
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ARTICLE VIII
THE GUARANTEE
Section 8.01. The Guarantee.
(a) The Terra Guarantors hereby jointly and severally guarantee to
each Lender, each Issuing Bank and the Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the principal of and interest on the Terra
Advances made by the Lenders to, and the Notes held by each Lender of, the
Company and all other amounts from time to time owing to the Lenders, each
Issuing Bank or the Agent by the Company under this Agreement and under the
Notes and by any Terra Obligor under any of the other Loan Documents, in each
case strictly in accordance with the terms thereof (such obligations being
herein collectively called the "Terra Guaranteed Obligations"). The Terra
Guarantors hereby further jointly and severally agree that if the Company shall
fail to pay in full when due (whether at stated maturity, by acceleration or
otherwise) any of the Terra Guaranteed Obligations, the Terra Guarantors will
promptly pay the same, without any demand or notice whatsoever, and that in the
case of any extension of time of payment or renewal of any of the Terra
Guaranteed Obligations, the same will be promptly paid in full when due (whether
at extended maturity, by acceleration or otherwise) in accordance with the terms
of such extension or renewal.
(b) The TNLP Guarantors hereby jointly and severally guarantee to
each Lender, each Issuing Bank and the Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the principal of and interest on the TNLP Advances
made by the Lenders to, and the Notes held by each Lender of, TNLP and all other
amounts from time to time owing to the Lenders, each Issuing Bank or the Agent
by TNLP under this Agreement and under the Notes and by any TNLP Obligor under
any of the other Loan Documents, in each case strictly in accordance with the
terms thereof (such obligations being herein collectively called the "TNLP
Guaranteed Obligations"). The TNLP Guarantors hereby further jointly and
severally agree that if TNLP shall fail to pay in full when due (whether at
stated maturity, by acceleration or otherwise) any of the TNLP Guaranteed
Obligations, the TNLP Guarantors will promptly pay the same, without any demand
or notice whatsoever, and that in the case of any extension of time of payment
or renewal of any of the TNLP Guaranteed Obligations, the same will be promptly
paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
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Section 8.02. Obligations Unconditional.
(a) The obligations of the Terra Guarantors under Section 8.01 are
absolute and unconditional, joint and several, irrespective of the value,
genuineness, validity, regularity or enforceability of the obligations of the
Company under this Agreement, the Notes or any other agreement or instrument
referred to herein or therein, or any substitution, release or exchange of any
other guarantee of or security for any of the Terra Guaranteed Obligations, and,
to the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 8.02 that the obligations of the Terra Guarantors hereunder shall be
absolute and unconditional, joint and several, under any and all circumstances.
(b) The obligations of the TNLP Guarantors under Section 8.01 are
absolute and unconditional, joint and several, irrespective of the value,
genuineness, validity, regularity or enforceability of the obligations of TNLP
under this Agreement, the Notes or any other agreement or instrument referred to
herein or therein, or any substitution, release or exchange of any other
guarantee of or security for any of the TNLP Guaranteed Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 8.02 that the obligations of the TNLP Guarantors hereunder shall be
absolute and unconditional, joint and several, under any and all circumstances.
(c) Without limiting the generality of the foregoing clauses (a) and
(b), it is agreed that the occurrence of any one or more of the following shall
not alter or impair the liability of the Guarantors hereunder which shall remain
absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or compliance
shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect,
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or any right under this Agreement or the Notes or any other agreement or
instrument referred to herein or therein shall be waived or any other
guarantee of any of the Guaranteed Obligations or any security therefor
shall be released or exchanged in whole or in part or otherwise dealt with;
or
(iv) any lien or security interest granted to, or in favor of, the
Agent, any Issuing Bank or any Lender as security for any of the Guaranteed
Obligations shall fail to be perfected.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Agent, any
Issuing Bank or any Lender exhaust any right, power or remedy or proceed against
either Borrower under this Agreement or the Notes or any other agreement or
instrument referred to herein or therein, or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations.
Section 8.03. Reinstatement. The obligations of the Guarantors under
this Section 8 shall be automatically reinstated if and to the extent that for
any reason any payment by or on behalf of the relevant Borrower in respect of
the relevant Guaranteed Obligations is rescinded or must be otherwise restored
by any holder of any of the relevant Guaranteed Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and the
relevant Guarantors jointly and severally agree that they will indemnify the
Agent, each Issuing Bank and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees of counsel) incurred by the Agent,
such Issuing Bank or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
Section 8.04. Subrogation. To the extent that, as a result of this
Article VIII, any Lender or Issuing Bank would be subject to an extended
preference period under Section 547 of the Bankruptcy Code, each Guarantor
hereby waives all rights of subrogation, whether arising by contract or
operation of law (including, without limitation, any such right arising under
the Bankruptcy Code) or otherwise, by reason of any payment by it pursuant to
the provisions of this Section 8 and agrees with the relevant Borrower for the
benefit of each of its creditors (including, without limitation, each Lender,
each Issuing Bank and the Agent) that any such payment by it shall constitute a
contribution of capital by such Guarantor to the relevant
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Borrower (or an investment in the equity capital of the relevant Borrower by
such Guarantor).
Section 8.05. Remedies. The Guarantors jointly and severally agree
that, as between the Guarantors and the Lenders and the Issuing Banks, the
obligations of the Borrowers under this Agreement and the Notes may be declared
to be forthwith due and payable as provided in Section 6 (and shall be deemed to
have become automatically due and payable in the circumstances provided in said
Section 6) for purposes of Section 8.01 notwithstanding any stay, injunction or
other prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the relevant Borrower and that, in the
event of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and payable
by the relevant Borrower) shall forthwith become due and payable by the
Guarantors for purposes of said Section 8.01.
Section 8.06. Instrument for the Payment of Money. Each Guarantor
hereby acknowledges that the guarantee in this Section 8 constitutes an
instrument for the payment of money, and consents and agrees that any Lender,
any Issuing Bank or the Agent, at its sole option, in the event of a dispute by
such Guarantor in the payment of any moneys due hereunder, shall have the right
to bring motion-action under New York CPLR Section 3213.
Section 8.07. Continuing Guarantee. The guarantee in this Section 8
is a continuing guarantee, and shall apply to all Guaranteed Obligations
whenever arising.
Section 8.08. Rights of Contribution. The Subsidiary Guarantors
hereby agree, as between themselves, that if any Subsidiary Guarantor shall
become an Excess Funding Guarantor (as defined below) by reason of the payment
by such Subsidiary Guarantor of any Guaranteed Obligations, each other
Subsidiary Guarantor shall, on demand of such Excess Funding Guarantor (but
subject to the next sentence), pay to such Excess Funding Guarantor an amount
equal to such Subsidiary Guarantor's Pro Rata Portion (as defined below and
determined, for this purpose, without reference to the properties, debts and
liabilities of such Excess Funding Guarantor) of the Excess Payment (as defined
below) in respect of such Guaranteed Obligations. The payment obligation of a
Subsidiary Guarantor to any Excess Funding Guarantor under this Section 8.08
shall be subordinate and subject in right of payment to the prior payment in
full of the obligations of such Subsidiary Guarantor under the other provisions
of this Section 8 and such Excess Funding Guarantor shall not exercise any right
or remedy with respect to such
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excess until payment and satisfaction in full of all of such obligations.
For purposes of this Section 8.08, (i) "Excess Funding Guarantor"
shall mean, in respect of any Guaranteed Obligations, a Subsidiary Guarantor
that has paid an amount in excess of its Pro Rata Portion of such Guaranteed
Obligations, (ii) "Excess Payment" shall mean, in respect of any Guaranteed
Obligations, the amount paid by an Excess Funding Guarantor in excess of its Pro
Rata Portion of such Guaranteed Obligations and (iii) "Pro Rata Portion" shall
mean, for any Subsidiary Guarantor, the ratio (expressed as a percentage) of (x)
the amount by which the aggregate present fair saleable value of all properties
of such Subsidiary Guarantor (excluding any shares of stock of any other
Subsidiary Guarantor) exceeds the amount of all the debts and liabilities of
such Subsidiary Guarantor (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of such Subsidiary
Guarantor hereunder and any obligations of any other Subsidiary Guarantor that
have been Guaranteed by such Subsidiary Guarantor) to (y) the amount by which
the aggregate fair saleable value of all properties of the Company and all of
the Subsidiary Guarantors exceeds the amount of all the debts and liabilities
(including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of the Company and the Subsidiary Guarantors
hereunder) of the Company and all of the Subsidiary Guarantors, all as of the
Closing Date. If any Subsidiary becomes a Subsidiary Guarantor hereunder
subsequent to the Closing Date, then for purposes of this Section 8.08 such
subsequent Subsidiary Guarantor shall be deemed to have been a Subsidiary
Guarantor as of the Closing Date and the aggregate present fair saleable value
of the properties, and the amount of the debts and liabilities, of such
Subsidiary Guarantor as of the Closing Date shall be deemed to be equal to such
value and amount on the date such Subsidiary Guarantor becomes a Subsidiary
Guarantor hereunder.
Section 8.09. General Limitation on Guarantee Obligations. In any
action or proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Guarantor under Section 8.01
would otherwise, taking into account the provisions of Section 8.08, be held or
determined to be void, invalid or unenforceable, or subordinated to the claims
of any other creditors, on account of the amount of its liability under said
Section 8.01, then, notwithstanding any other provision hereof to the contrary,
the amount of such liability shall, without any further action by such
Guarantor, any Lender, any Issuing Bank, the Agent or any other Person, be
automatically limited and reduced to the highest amount that is valid and
enforceable and
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not subordinated to the claims of other creditors as determined in such action
or proceeding.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Amendments, Consents, Etc.
(a) No amendment or waiver of any provision of this Agreement, the
Notes or the other Loan Documents, nor any consent to any departure by any
Obligor from any provision of this Agreement, the Notes or the other Loan
Documents, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, that (i) no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders, do any of the following: (1) waive any
of the conditions specified in Section 3.01, (2) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Advances, or the
number or percentage of Lenders, that shall be required for the Lenders or any
of them to take any action hereunder, (3) amend this Section 9.01, (4) reduce
the principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, (5) postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder or amend
Section 2.03 or 2.05, or (6) release any Guarantor from its obligations under
Article VIII and (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Required Lenders and each Lender that would be adversely
affected by such amendment, waiver or consent, (1) increase the Commitment of
such Lender or subject such Lender to any additional obligations, (2) reduce the
principal of, or interest on, the Notes held by such Lender or any fees or other
amounts payable hereunder to such Lender, (3) postpone any date fixed for any
payment of principal of, or interest on, the Notes held by such Lender or any
fees or other amounts payable hereunder to such Lender or (4) change the order
of application of any prepayment set forth in Section 2.05 in any manner that
materially affects such Lender; and provided, further, that no amendment, waiver
or consent shall, unless in writing and (x) signed by the Agent in addition to
the Lenders required above to take such action, affect the rights or duties of
the Agent under this Agreement, any Note or any other Loan Document, and (y)
signed by each Issuing Bank in addition to the Lenders required to take such
action, amend Section 2.07, 2.13 or 3.02, increase the Letter of Credit Sublimit
or otherwise affect the rights or obligations of any Issuing Bank under this
Agreement.
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(b) Except as otherwise provided in the Security Documents, the Agent
shall not consent to release any Collateral (except as contemplated by the
Security Documents) or terminate any Lien under any Security Document unless
such release or termination shall be consented to in writing by Lenders owed or
holding in the aggregate at least 75% of the sum of the then aggregate unpaid
principal amount of the Advances, the then aggregate Unused Commitments and the
aggregate Available Amount of all Letters of Credit (for which purposes the
Available Amount of each Letter of Credit shall be considered to be owed to the
relevant Lenders according to their respective Pro Rata Shares of the Facility
under which such Letter of Credit has been issued); provided, that (1) the
consent of all Lenders shall be required to release all or substantially all of
the Collateral, except upon the termination of the Liens created by each of the
Security Documents in accordance with the terms thereof; and (2) no such consent
shall be required to release any Lien covering property that is the subject of a
disposition of property permitted hereunder (including, without limitation,
dispositions of Receivables pursuant to the Permitted Receivables Facilities)
and, upon such a permitted disposition, such property shall be deemed to be
transferred free and clear of the Lien of the Security Documents without any
action on the part of any party (and the Agent is hereby authorized to execute
such releases and other documents, and to take such other action, as the Company
may reasonably request to give effect thereto).
Section 9.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopy communication)
and mailed, telecopied or delivered:
(a) if to the Borrowers, care of Terra Industries Inc., ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
and Chief Financial Officer, telephone number (▇▇▇) ▇▇▇-▇▇▇▇; telecopier
number (▇▇▇) ▇▇▇-▇▇▇▇;
(b) if to any Initial Lender, at its Domestic Lending Office specified
opposite its name on Schedule 2.01;
(c) if to any other Lender, at its Domestic Lending Office specified
in the Assignment and Acceptance pursuant to which it became a Lender;
(d) if to any Issuing Bank, at its address beneath its signature
hereto;
(e) if to the Agent, at its address at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇ (or
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his successor), telephone number (▇▇▇) ▇▇▇-▇▇▇▇, telecopier number (718)
248-4844;
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and communications
shall, when mailed or telecopied, be effective when deposited in the mails or
transmitted by telecopier, respectively, except that notices and communications
to the Agent pursuant to Article II, III or VII shall not be effective until
received by the Agent.
Section 9.03. No Waiver; Remedies. No failure on the part of any
Lender, any Issuing Bank or the Agent to exercise, and no delay in exercising,
any right hereunder or under any Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
Each Obligor irrevocably waives, to the fullest extent permitted by
applicable law, any claim that any action or proceeding commenced by the Agent,
any Issuing Bank or any Lender relating in any way to this Agreement should be
dismissed or stayed by reason, or pending the resolution, of any action or
proceeding commenced by any Obligor relating in any way to this Agreement
whether or not commenced earlier. To the fullest extent permitted by applicable
law, the Obligors shall take all measures necessary for any such action or
proceeding commenced by the Agent, any Issuing Bank or any Lender to proceed to
judgment prior to the entry of judgment in any such action or proceeding
commenced by any Obligor.
Section 9.04. Costs, Expenses and Indemnification.
(a) Each Borrower agrees to pay on demand (i) all costs and expenses
of the Agent, the Issuing Banks and the Lenders in connection with the
preparation, execution, delivery, administration, modification and amendment of
the Loan Documents including, without limitation, (A) all due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, insurance, consultant, search,
filing and recording fees and expenses, ongoing audit expenses and all other
reasonable out-of-pocket expenses incurred by the Agent (including the
reasonable and documented fees and expenses of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
special counsel to the Agent, but not, under this clause (A) or clause (B)
below, of any other counsel) whether or not any of the transactions contemplated
by this Agreement are consummated, (B) the reasonable and documented fees and
expenses of counsel for the Agent with respect thereto, with respect to advising
the
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Agent as to its rights and responsibilities, or the perfection, protection or
preservation of rights or interests, under the Loan Documents, and (C) with
respect to negotiations with any Obligor or with other creditors of any Obligor
or any of its Subsidiaries arising out of any Default or Event of Default or any
events or circumstances that may reasonably be expected to give rise to a
Default or Event of Default and with respect to presenting claims in or
otherwise participating in or monitoring any bankruptcy, insolvency or other
similar proceeding involving creditors' rights generally and any proceeding
ancillary thereto) and (ii) all costs and expenses of the Agent, the Issuing
Banks and the Lenders in connection with the enforcement of the Loan Documents,
whether in any action, suit or litigation, any bankruptcy, insolvency or other
similar proceeding affecting creditors' rights generally or otherwise
(including, without limitation, the reasonable and documented fees and expenses
of counsel for the Agent, each Issuing Bank and each Lender with respect
thereto).
(b) Each Borrower agrees to indemnify and hold harmless the Agent,
each Issuing Bank and each Lender and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an "Indemnified
Party") from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of, or in
connection with the preparation for a defense of, any investigation, litigation
or proceeding arising out of, related to or in connection with (i) the
Reorganization Transaction or any part thereof, (ii) the SPU Redemption or any
part thereof, (iii) the Transactions (as defined in the Original Credit
Agreement) or any part thereof, including, without limitation, the Initial
Merger and the Second Merger referred to therein and any of the other
transactions contemplated thereby (collectively, the "Merger Transactions") or
(iv) the actual or alleged presence of Hazardous Materials on any property owned
by an Obligor or any Environmental Action relating in any way to any Obligor or
any of its Subsidiaries, in each case whether or not such investigation,
litigation or proceeding is brought by any Obligor, its directors, shareholders
or creditors or an Indemnified Party or any Indemnified Party is otherwise a
party thereto and whether or not the Reorganization Transaction, the SPU
Redemption or the other transactions contemplated hereby are consummated, except
to the extent such claim, damage, loss, liability or expense is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
Each Borrower also agrees not to assert any claim against the Agent, any Issuing
Bank, any Lender, any of their Affiliates, or any of their respective directors,
officers,
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employees, attorneys and agents, on any theory of liability, for special,
indirect, consequential or punitive damages arising out of or otherwise relating
to the Reorganization Transaction or any part thereof, the SPU Redemption or any
part thereof, the Merger Transactions or any part thereof or the other
transactions contemplated herein or in any other Loan Document or the actual or
proposed use of the proceeds of the Advances. For purposes of this Section
9.04(b), the term "non-appealable" includes any judgment as to which all appeals
have been taken or as to which the time for taking an appeal shall have expired.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by a Borrower to or for the account of a relevant Lender
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.03, 2.05, 2.08(b)(i) or 2.09(d)
or as the result of acceleration of the maturity of the Notes pursuant to
Section 6.01 or for any other reason, such Borrower shall, upon demand by such
Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
(d) If any Obligor fails to pay when due any costs, expenses or other
amounts payable by it under any Loan Document, including, without limitation,
reasonable and documented fees and expenses of counsel and indemnities, such
amount may be paid on behalf of such Obligor by the Agent or any Lender, in its
sole discretion.
Section 9.05. Right of Setoff. Upon (a) the occurrence and during
the continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of each Borrower against any and all of the Obligations of
such Borrower now or hereafter existing under this Agreement and the Note held
by such Lender, irrespective of whether such Lender shall have made any demand
under this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the relevant Borrower after
any such setoff and application; provided, that
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the failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) that such Lender may have.
Section 9.06. Governing Law; Submission to Jurisdiction. This
Agreement and the Notes shall be governed by, and construed in accordance with,
the law of the State of New York. Each Obligor hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York state court sitting in New York City
for the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each Obligor irrevocably
waives, to the fullest extent permitted by applicable law, any objection that it
may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
Section 9.07. Assignments and Participations.
(a) Each Lender may assign to one or more banks or other entities all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitments, the Advances owing to
it and the Note or Notes held by it); provided, that:
(i) except in the case of an assignment to a Person that, immediately
prior to such assignment, was a Lender or an affiliate of a Lender or an
assignment of all of a Lender's rights and obligations under this
Agreement, the amount of the Commitments of the assigning Lender being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no
event be less than the lesser of (x) such Lender's Commitments hereunder
and (y) $5,000,000 or an integral multiple of $1,000,000 in excess thereof
(except as otherwise agreed by the relevant Borrower and the Agent),
(ii) except in the case of an assignment to a Person that, immediately
prior to such assignment, was a Lender or an affiliate of a Lender, each
such assignment shall be made only upon the prior written approval of the
relevant Borrower, the Agent and each Issuing Bank, such approval not to be
unreasonably withheld,
(iii) each such assignment shall be to an Eligible Assignee,
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(iv) each such assignment by a Lender of its Advances, Commitment or
Note under any Facility shall be made in such manner so that the same
portion of its Advances, Commitment and Note under such Facility is
assigned to the respective assignee,
(v) each such assignment by a Lender of its Advances, Commitments and
Notes shall be made in such a manner so that the same portion of its Terra
Advances, TNLP Advances, Terra Commitment, TNLP Commitment, Terra Note and
TNLP Note is assigned to the respective assignee, and
(vi) the parties to each such assignment shall execute and deliver to
the Agent, for its acceptance and recording in the Register, an Assignment
and Acceptance, together with any Note or Notes subject to such assignment
and a processing and recordation fee of $3,000.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in such Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any Obligor
or the performance or observance by the Obligors of any of their respective
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has
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deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Agent, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will 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 a Lender.
(c) The Agent, acting for this purpose as an agent of the Borrowers,
shall maintain at its address referred to in Section 9.02 a copy of each
Assignment and Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the Commitments of,
and principal amount of the Advances owing under each Facility to, each Lender
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Agent and the Lenders shall treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. No assignment shall be effective until it is recorded in the
Register pursuant to this Section 9.07(c). The Register shall be available for
inspection by the Borrowers or any Lender at any reasonable time and from time
to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, together with any Note or Notes subject to
such assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit F hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrowers. Within five
Business Days after its receipt of such notice, the relevant Borrower, at its
own expense, shall execute and deliver to the Agent in exchange for the
surrendered Note or Notes a new Note or Notes to the order of such assignee in
an amount equal to the portion of the Facilities assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a portion of
such Facilities, a new Note or Notes to the order of the assigning Lender in an
amount equal to the portion so retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be
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dated the effective date of such Assignment and Acceptance and shall otherwise
be in substantially the form of Exhibit A-1 and A-2, as the case may be.
(e) Each Lender may sell participations in or to all or a portion of
its rights and obligations under this Agreement (including, without limitation,
all or a portion of its Commitments, the Advances owing to it and the Note or
Notes held by it); provided, that (i) such Lender's obligations under this
Agreement (including, without limitation, its Commitments) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Lender shall remain
the holder of any such Note for all purposes of this Agreement, (iv) the
Obligors, the Agent, the Issuing Banks and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and (v) no participant under any
such participation shall have any right to approve any amendment or waiver of
any provision of any Loan Document, or any consent to any departure by any
Obligor therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or release all or
substantially all of the Collateral.
(f) Any Issuing Bank may (subject to the prior written consent of
Terra, such consent not to be unreasonably withheld) assign all or any portion
of its rights and obligations under this Agreement to one or more successor
Issuing Banks that is a commercial bank organized under the laws of the United
States, or any state thereof, and having total assets in excess of
$1,000,000,000 and, upon the acceptance of such assignment, the respective
successor Issuing Banks shall succeed to such portion of such rights and
obligations and such assigning Issuing Bank shall be discharged from its duties
and obligations under this Agreement to such extent, including, without
limitation, such portion of its Letter of Credit Commitment.
(g) Any Issuing Bank and any Lender may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 9.07, disclose to the assignee or participant or proposed assignee
or participant, any information relating to the Borrower furnished to such
Lender by or on behalf of the Borrower; provided, that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall agree in writing to preserve the
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confidentiality of any Confidential Information received by it from such Issuing
Bank or Lender.
(h) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
(i) Anything in this Section 9.07 to the contrary notwithstanding,
each Lender shall be permitted to pledge all or any part of its right, title and
interest in, to and under the Advances and Notes held by it to any trustee for
the benefit of the holders of such Lender's securities.
(j) Anything in this Section 9.07 to the contrary notwithstanding,
neither Terra nor any of its Subsidiaries or Affiliates may acquire (whether by
assignment, participation or otherwise), and no Lender or Issuing Bank shall
assign or participate to Terra or any of its Subsidiaries or Affiliates, any
interest in any Commitment, Advance or other amount owing hereunder without the
prior consent of each Lender; provided, that the Lenders and the Issuing Banks
may assign all of their interests in the Commitments, Advances and such other
amounts pursuant to the Loan Purchase Agreement.
Section 9.08. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 9.09. No Liability of the Issuing Banks. Each Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
the relevant Issuing Bank nor any of its officers or directors shall be liable
or responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the
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Letter of Credit; or (d) any other circumstances whatsoever in making or failing
to make payment under any Letter of Credit, except that the relevant Borrower
shall have a claim against such Issuing Bank, and such Issuing Bank shall be
liable to such Borrower, to the extent of any direct, but not consequential,
damages suffered by such Borrower that such Borrower proves were caused by (i)
such Issuing Bank's willful misconduct or gross negligence in determining
whether documents presented under any Letter of Credit comply with the terms of
the Letter of Credit or (ii) such Issuing Bank's willful failure to make lawful
payment under a Letter of Credit after the presentation to it of a draft and
certificates strictly complying with the terms and conditions of the Letter of
Credit. In furtherance and not in limitation of the foregoing, such Issuing
Bank may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
Section 9.10. Confidentiality. Neither the Agent, any Issuing Bank
nor any Lender shall disclose any Confidential Information to any Person without
the prior consent of the Company, other than (a) to the Agent's, such Issuing
Bank's or such Lender's Affiliates and their officers, directors, employees,
agents and advisors (including independent auditors and counsel) and to actual
or prospective assignees and participants, and then only on a confidential
basis, (b) as required by any law, rule or regulation or judicial process, (c)
as requested or required by any state, federal or foreign authority or examiner
regulating or having authority over Lenders or the Lenders' respective
activities and (d) in connection with credit inquiries from suppliers of the
Borrowers and/or their Subsidiaries and other Persons who, from time to time,
inquire as to the creditworthiness of the Borrowers.
Section 9.11. WAIVER OF JURY TRIAL. EACH OF THE OBLIGORS, THE AGENT,
THE LENDERS AND THE ISSUING BANKS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE
ADVANCES, THE LETTERS OF CREDIT OR THE ACTIONS OF THE AGENT, ANY LENDER OR ANY
ISSUING BANK IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT
THEREOF.
Section 9.12. Survival. The obligations of the Borrowers under
Sections 2.09, 2.11 and 9.04, the obligations of each Guarantor under Section
8.03, and the obligations of the Lenders under Section 7.05, shall survive the
repayment of the Advances and the termination of the Commitments. In addition,
each representation and warranty made, or deemed to be made by a notice of any
extension of credit (whether by means of an Advance or a Letter of Credit),
herein or pursuant hereto shall survive
Credit Agreement
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the making of such representation and warranty, and no Lender or Issuing Bank
shall be deemed to have waived, by reason of making any extension of credit
hereunder (whether by means of an Advance or a Letter of Credit), any Default or
Event of Default that may arise by reason of such representation or warranty
proving to have been false or misleading, notwithstanding that such Lender, such
Issuing Bank or the Agent may have had notice or knowledge or reason to believe
that such representation or warranty was false or misleading at the time such
extension of credit was made.
Section 9.13. Captions. The table of contents and captions and
section headings appearing herein are included solely for convenience of
reference and are not intended to affect the interpretation of any provision of
this Agreement.
Section 9.14. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, provided, that no Obligor may assign any of
its rights or obligations hereunder or under the other Loan Documents without
the prior consent of all of the Lenders, the Issuing Banks and the Agent.
Section 9.15. Survival of Port ▇▇▇▇ Consent. It is understood and
agreed that the Port ▇▇▇▇ Consent, and the consents and waivers of the Lenders
set forth therein, shall remain in full force and effect notwithstanding the
amendment and restatement of the Existing Credit Agreement contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE BORROWERS
-------------
TERRA CAPITAL, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
TERRA NITROGEN, LIMITED PARTNERSHIP
By Terra Nitrogen Corporation,
its General Partner
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇
-----------------------
Title: Vice President
GUARANTORS
----------
TERRA INDUSTRIES INC.
By /s/ ▇.▇. ▇▇▇▇▇
----------------------------
Title: Senior Vice President
TERRA NITROGEN CORPORATION
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
BEAUMONT METHANOL, LIMITED
PARTNERSHIP
By Terra Methanol Corporation,
its General Partner
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Title: Vice President
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TERRA METHANOL CORPORATION
By /s/ ▇.▇. ▇▇▇▇▇
----------------------------
Title: Vice President
BMC HOLDINGS, INC.
By /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
TERRA CAPITAL HOLDINGS, INC.
By /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
THE AGENT
---------
CITIBANK, N.A.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Attorney-in-Fact
CO-ARRANGER
-----------
CHEMICAL BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Vice President
THE ISSUING BANKS
-----------------
CITIBANK, N.A.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Attorney-in-Fact
THE LENDERS
-----------
CITIBANK, N.A.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Attorney-in-Fact
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CHEMICAL BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Vice President
ARAB BANKING CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
BANK OF AMERICA ILLINOIS
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ F.C.H. ▇▇▇▇▇
----------------------------
Title: Senior Manager Loan
Operations
CAISSE NATIONAL DE CREDIT AGRICOLE
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: Senior Vice President
Branch Manager
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A.,
"RABOBANK NEDERLAND", NEW YORK
BRANCH
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
By /s/ ▇▇▇ ▇▇▇▇▇
----------------------------
Title: Vice President & Manager
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CREDIT LYONNAIS CHICAGO BRANCH
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: First Vice President
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Authorized Signature
DRESDNER BANK AG, CHICAGO AND GRAND
CAYMAN BRANCHES
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: First Vice President
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Title: Assistant Vice President
FIRST BANK NATIONAL ASSOCIATION
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
Title: Commercial Banking
Officer
THE FUJI BANK, LIMITED
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Joint General Manager
MELLON BANK, N.A.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Title: Vice President
NATIONSBANK OF TEXAS, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
Title: Senior Vice President
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UNION BANK OF SWITZERLAND, CHICAGO
BRANCH
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Title: Managing Director
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇
----------------------------
Title: Vice President
Credit Agreement
----------------