EXHIBIT 10.60
AMENDMENT NUMBER 1 TO
TRANSFER AND ADMINISTRATION AGREEMENT AND
RECEIVABLES PURCHASE AGREEMENT
AMENDMENT NUMBER 1 TO TRANSFER AND ADMINISTRATION AGREEMENT
AND RECEIVABLES PURCHASE AGREEMENT (this "Amendment"), dated as of
December 30, 1997 among IMC-AGRICO RECEIVABLES COMPANY L.L.C., a
Delaware limited liability company as transferor (the "Transferor"),
IMC-AGRICO COMPANY, a general partnership formed under the laws of the
State of Delaware, individually and as Seller (in such capacity the
"Seller") and as collection agent (in such capacity, the "Collection
Agent"), and ENTERPRISE FUNDING CORPORATION, a Delaware corporation
(the "Company"), amending (i) that certain Transfer and Administration
Agreement dated as of June 27, 1997 among the parties hereto (the
"Transfer and Administration Agreement") and (ii) that certain
Receivables Purchase Agreement dated as of June 27, 1997 between IMC-
Agrico Receivables Company L.L.C., as purchaser, and IMC-Agrico
Company, as Seller (the "Receivables Purchase Agreement").
WHEREAS, the Transferor and the Company have agreed to make
certain amendments to the Transfer and Administration Agreement and the
Transferor and the seller have agreed to make certain amendments to the
Receivables Purchase Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. Defined Terms. As used in this Amendment, and
except as otherwise provided in this Section 1, capitalized terms shall
have the same meanings assigned thereto in the Transfer and
Administration Agreement.
SECTION 2. Amendments to Receivables Purchase Agreement.
(a) Sections 5.1(i) and 5.2(g). Sections 5.1(i) and 5.2(g)
of the Receivables Purchase Agreement are hereby deleted and each
replaced with "[Reserved]".
(b) Section 8.1. Clause (ii) of Section 8.1 of the
Receivables Purchase Agreement is hereby deleted and replaced with
"[Reserved]".
SECTION 3. Amendments to Transfer and Administration
Agreement.
(a) Section 5.1. Section 5.1 of the Transfer and
Administration Agreement is hereby amended as follows:
(i) Section 5.1(a)(i)(B) is hereby deleted and replaced
with "[Reserved]".
(ii) Section 5.1(a)(ii) is hereby amended to delete any
reference therein to
the Transferor and the Operating Manager.
(iii) Sections 5.1(j), (k), (1) and (m) are hereby
deleted and each replaced with "[Reserved]".
(b) Section 9.11. Section 9.11 of the Transfer and
Administration Agreement is hereby deleted and replaced with the
following:
"SECTION 9.11. Characterization of the Transactions
Contemplated by the Agreement. The Transferor hereby
grants to the Company a first priority perfected
security interest in all of the Transferor's right,
title and interest in, to and under the Receivables,
together with Related Security, Collections and Proceeds
with respect thereto and agrees that this Agreement
shall constitute a security agreement under applicable
law."
SECTION 4. Condition Precedent. It shall be a condition
precedent to the effectiveness of this Amendment that an amendment fee
in the amount of $15,000 shall be paid by or on behalf of the
Transferor to NationsBank, N.A., as Administrative Agent.
SECTION 5. Representations and Warranties. The Transferor
hereby makes to the Company, on and as of the date hereof, all of the
representations and warranties set forth in Section 3.1 of the Transfer
and Administration Agreement, except to the extent that any such
representation or warranty specifically refers to an earlier date. In
addition, the Collection Agent hereby makes to the Company, on the date
hereof, all the representations and warranties set forth in Section 3.2
of the Transfer and Administration Agreement, except to the extent that
any such representation or warranty specifically refers to an earlier
date.
SECTION 6. Limited Scope. This amendment is specific to the
circumstances described above and does not imply any future amendment
or waiver of rights allocated to the Company, the Transferor, the
Collection Agent, IMC Agrico Company, the Seller, the Administrative
Agent or the Collateral Agent under the Transfer and Administration
Agreement.
SECTION 7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Severability; Counterparts. This Amendment 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 when taken together shall
constitute one and the same instrument. Any provisions of this
Amendment which are prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 9. Ratification. Except as expressly affected by
the provisions hereof, the Transfer and Administration Agreement and
the Receivables Purchase Agreement as amended shall remain in full
force and effect in accordance with their terms and ratified and
confirmed by the parties hereto. On and after the date hereof, each
reference in the Transfer and Administration Agreement and the
Receivables Purchase Agreement to "this Agreement", "hereunder",
"herein" or words of like import shall mean and be a reference to the
Transfer and Administration Agreement or the Receivables Purchase
Agreement, as applicable, as amended by this Amendment.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment Number 1 as of the date first written above.
ENTERPRISE FUNDING CORPORATION,
as Company
By:
Name:
Title:
IMC-AGRICO RECEIVABLES COMPANY
L.L.C.
as Transferor
By: IMC AGRICO COMPANY,
its operating manager
By: IMC AGRICO MP, INC.,
its managing partner
By:
Name:
Title:
IMC-AGRICO COMPANY,
as Collection Agent
By: IMC-AGRICO MP, INC.,
its managing partner
By:
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment Number 1 as of the date first written above.
ENTERPRISE FUNDING CORPORATION,
as Company
By:
Name:
Title:
IMC-AGRICO RECEIVABLES COMPANY
L.L.C.
as Transferor
By: IMC AGRICO COMPANY,
its operating manager
By: IMC AGRICO MP, INC.,
its managing partner
By:
Name:
Title:
IMC-AGRICO COMPANY,
as Collection Agent
By: IMC-AGRICO MP, INC.,
its managing partner
By:
Name:
Title: