Exhibit
EXECUTION COPY
FREEPORT-McMoRan RESOURCE PARTNERS, LIMITED PARTNERSHIP
FREEPORT-McMoRan INC.
_______________________
$400,000,000
CREDIT AGREEMENT
Dated as of June 30, 1995
with
CERTAIN BANKS,
CHEMICAL BANK,
as Administrative Agent,
FRP Collateral Agent and
FTX Collateral Agent,
and
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
as Documentary Agent
TABLE OF CONTENTS
Page
Parties and Recitals ................................ 1
ARTICLE I
Definitions
Section 1.1. Definitions .......................... 2
Section 1.2. Accounting Terms ..................... 23
Section 1.3. Section, Article, Exhibit and
Schedule References, etc. .......... 23
ARTICLE II
The Loans
Section 2.1. Revolving Credit Facility ............ 24
Section 2.2. Loans ................................ 24
Section 2.3. Notice of Loans ...................... 25
Section 2.4. Promissory Notes ..................... 26
Section 2.5. Interest on Loans .................... 27
Section 2.6. Fees ................................. 28
Section 2.7. Maturity and Reduction of
Commitments ........................ 29
Section 2.8. Interest on Overdue Amounts;
Alternative Rate of Interest ....... 30
Section 2.9. Prepayment of Loans .................. 31
Section 2.10. Continuation and Conversion
of Loans ........................... 32
Section 2.11. Reserve Requirements; Change in
Circumstances ...................... 34
Section 2.12. Change in Legality ................... 38
Section 2.13. Indemnity ............................ 39
Section 2.14. Pro Rata Treatment ................... 39
Section 2.15. Sharing of Setoffs ................... 40
Section 2.16. Payments ............................. 41
Section 2.17. U.S. Taxes ........................... 42
Section 2.18. FTX or Restricted Subsidiary as
General Partner .................... 45
ARTICLE III
Representations and Warranties
Section 3.1. Representations and Warranties........ 46
(a) Organization, Powers ............ 46
(b) Authorization ................... 46
(c) Governmental Approvals ........... 47
(d) Enforceability .................. 47
(e) Financial Statements ............ 47
(f) Litigation; Compliance with
Laws; etc. .................... 48
(g) Title, etc. ..................... 49
(h) Federal Reserve Regulations;
Use of Proceeds ............... 49
(i) Taxes ........................... 50
(j) Employee Benefit Plans .......... 51
(k) Investment Company Act .......... 51
(l) Public Utility Holding Company
Act ........................... 51
(m) Subsidiaries .................... 51
(n) Environmental Matters............ 52
(o) Security Documents .............. 53
(p) No Material Misstatements ....... 54
ARTICLE IVC
Conditions to Initial Credit Event . . . . . . . 54
ARTICLE V
Covenants
Section 5.1. Affirmative Covenants of the
Borrowers ......................... 58
(a) Financial Statements, etc. ...... 58
(b) Taxes and Claims ................ 60
(c) Maintenance of Existence;
Conduct of Business ........... 60
(d) Compliance with Applicable Laws . 60
(e) Litigation ...................... 60
(f) ERISA ........................... 61
(g) Compliance with Environmental
Laws .......................... 61
(h) Preparation of Environmental
Reports ....................... 61
(i) Insurance ....................... 62
(j) Access to Premises and Records .. 62
(k) Further Assurances .............. 62
(l) Covenants regarding FRP ......... 63
Section 5.2. Negative Covenants of the Borrower ... 63
(a) Conflicting Agreements .......... 63
(b) Hedge Transactions .............. 63
(c) Consolidation or Merger;
Disposition of Assets and
Capital Stock ................. 64
(d) Liens ........................... 65
(e) Current Ratio ................... 68
(f) EBITDA Ratio .................... 68
(g) Debt ............................ 68
(h) Debt to Capital Ratio ........... 70
(i) Subordinated Debt Payments ...... 70
(j) Ownership of Subsidiaries ....... 70
(k) Fiscal Year ..................... 70
(l) Investments in Nonrestricted
Subsidiaries and Persons Not
Subsidiaries................... 70
(m) Federal Reserve Regulations ..... 71
(n) Certain Debt Agreements ......... 72
(o) FRP Transfers ................... 72
(p) Transactions with Affiliates .... 72
(q) Equity Payments ................. 73
(r) Covenants Regarding IMC-Agrico .. 73
(s) Scope of FRP's Business ......... 73
(t) Covenants Relating to RTZ
Transaction ................... 74
ARTICLE VI
Conditions to Credit Events
Section 6.1. Conditions Precedent to Each Credit
Event ............................... 75
Section 6.2. Representations and Warranties with
Respect to Credit Events ............ 76
ARTICLE VII
Events of Default
Section 7.1. Events of Default .................... 76
ARTICLE VIII
The Agents
Section 8.1. The Agents ............................ 80
ARTICLE IX
Miscellaneous
Section 9.1. Notices ............................. 85
Section 9.2. Survival of Agreement ............... 85
Section 9.3. Successors and Assigns;
Participations; Purchasing
Banks ............................. 85
Section 9.4. Expenses of the Banks; Indemnity .... 90
Section 9.5. Right of Setoff ..................... 92
Section 9.6. Applicable Law ...................... 93
Section 9.7. Waivers; Amendments ................. 93
Section 9.8. Severability ........................ 94
Section 9.9. Counterparts ........................ 95
Section 9.10. Headings ............................ 95
Section 9.11. Entire Agreement .................... 95
Section 9.12. Waiver of Jury Trial, etc. .......... 95
Section 9.13. Interest Rate Limitation ............ 96
Section 9.14. Jurisdiction; Consent to Service of
Process ........................... 96
Section 9.15. Confidentiality ...................... 97
Schedule I Applicable Margin for Loans and
Commitment Fees
Schedule II Commitments of the Banks
Schedule III Subsidiaries
Schedule IV Governmental Approvals
Schedule V Main Pass Properties
Schedule VI UCC Filing Offices
Schedule VII FM Properties Debt
Schedule VIII Deemed Leases
Schedule IX Ownership Schedule for IMC-Agrico
Schedule X Form of Subordination Terms
Schedule XI Summary Description of Restructuring
and RTZ Transaction
Exhibit A Form of Promissory Note
Exhibit B Form of Borrowing Notice
Exhibit C Form of Administrative
Questionnaire
Exhibit D Form of Commitment Transfer
Supplement
Exhibit E Form of FRP Security Agreement and
Mortgage
Exhibit F Form of FTX Security Agreement
Exhibit G Form of Second Amendment and
Restatement of FTX Intercreditor
Agreement
Exhibit H Form of Opinion of the General
Counsel of FTX
Exhibit I Form of Opinion of Davis
Polk & Wardwell
Exhibit J Form of Opinion of
Liskow & Lewis
Exhibit K Form of Opinion of Richards, Layton &
Finger
CREDIT AGREEMENT dated as of June 30,
1995, among FREEPORT-McMoRan RESOURCE
PARTNERS, LIMITED PARTNERSHIP, a Delaware
limited partnership ("FRP"), FREEPORT-McMoRan
INC., a Delaware corporation ("FTX"; FTX and
FRP being the "Borrowers"), the undersigned
financial institutions (collectively, the
"Banks"), CHEMICAL BANK, a New York banking
corporation ("Chemical"), as administrative
agent for the Banks (in such capacity, the
"Administrative Agent"), as collateral agent
for the Banks (in such capacity, the "FRP
Collateral Agent") under the FRP Security
Agreement (as defined below) and as
collateral agent for the Banks and certain
other lenders (in such capacity, the "FTX
Collateral Agent") under the FTX Security
Agreement (as defined below), and THE CHASE
MANHATTAN BANK (NATIONAL ASSOCIATION), a
national banking association ("Chase"), as
documentary agent for the Banks (in such
capacity, the "Documentary Agent"; the
Administrative Agent, the FRP Collateral
Agent, the FTX Collateral Agent and the
Documentary Agent being, collectively, the
"Agents").
FRP and FTX have requested the Banks to extend
credit on a secured basis to FRP and FTX in order to enable
them to borrow on a revolving credit basis at any time and
from time to time prior to the Maturity Date (as herein
defined). The aggregate principal amount of all revolving
credit loans at any time outstanding hereunder shall not
exceed $400,000,000; provided that the aggregate principal
amount of all revolving credit loans to FTX at any time
outstanding shall not exceed $75,000,000. The proceeds of
such borrowings are to be used to refinance outstanding
borrowings under the existing $800,000,000 Amended and
Restated Credit Agreement dated as of June 1, 1993, among
FTX, FRP, certain banks and Chemical, as agent for such
banks (the "Existing Credit Agreement"), and for corporate
purposes of the Borrowers but may not be used to prepay
subordinated debt of the Borrowers.
The Banks are willing to make secured loans to FRP
and to FTX upon the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises
and of the mutual covenants herein contained, the parties
hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. As used in this
Agreement, the following terms have the meanings indicated
(any term defined in this Article I or elsewhere in this
Agreement in the singular and used in this Agreement in the
plural shall include the plural, and vice versa):
"Administrative Questionnaire" means an
Administrative Questionnaire in the form of Exhibit C.
"Affiliate" means, when used with respect to a
specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or
is Controlled by or is under common Control with the Person
specified.
"Agrico LP" means Agrico, Limited Partnership, a
Delaware limited partnership between FTX (as successor by
liquidation to Freeport Chemical Company), as general
partner, and FRP, as limited partner.
"Alternate Base Rate" means for any day, a rate
per annum (rounded upwards, if not already a whole multiple
of 1/100 of 1%, to the next higher 1/100 of 1%) equal to the
greatest of (a) the Prime Rate in effect on such day,
(b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect for such day
plus 1/2 of 1%. For purposes hereof, the term "Prime Rate"
means the rate of interest per annum publicly announced from
time to time by Chemical as its prime rate in effect at its
principal office in the City of New York; each change in the
Prime Rate shall be effective on the date such change is
publicly announced as being effective. "Base CD Rate" means
the sum of (x) the product of (i) the Three-Month Secondary
CD Rate and (ii) Statutory Reserves and (y) the Assessment
Rate. "Three-Month Secondary CD Rate" means, for any day,
the secondary market rate for three-month certificates of
deposit reported as being in effect on such day (or, if such
day shall not be a Business Day, the next preceding Business
Day) by the Board through the public information telephone
line of the Federal Reserve Bank of New York (which rate
will, under the current practices of the Board, be published
in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day,
the average of the secondary market quotations for three-
month certificates of deposit of major money center banks in
New York City received at approximately 10:00 a.m., New York
City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by the
Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing
selected by it. "Federal Funds Effective Rate" means, for
any day, 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 on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average
of the quotations for the day of such transactions received
by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it. If for any reason
the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error)
that it is unable to ascertain the Base CD Rate or the
Federal Funds Effective Rate or both for any reason,
including the inability or failure of the Administrative
Agent to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined
without regard to clause (b) or (c), or both, of the first
sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist.
Any change in the Alternate Base Rate due to a change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal
Funds Effective Rate shall be effective on the effective
date of such change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
"Applicable LIBO Rate" means on a per annum basis,
in respect of any LIBO Rate Loan, for each day during the
Interest Period for such Loan, the sum of (i) the LIBO Rate
as determined by the Administrative Agent plus (ii) the
Applicable Margin.
"Applicable Margin" means, with respect to any
LIBO Rate Loan or Reference Rate Loan, or with respect to
the Commitment Fees, as the case may be, the applicable
percentage for the relevant Borrower set forth on Schedule I
hereto under the caption "LIBOR Spread", "ABR Spread" or
"Fee Percentage", as the case may be, based upon the ratings
by S&P and Moody's, respectively, applicable on such date to
the Index Debt. For purposes of the foregoing, (i) if
either Moody's or S&P shall not have in effect a rating for
the Index Debt (other than by reason of the circumstances
referred to in the last sentence of this definition), then
such rating agency shall be deemed to have established a
rating of BB-/Ba3, unless such rating agency shall have in
effect a rating for senior subordinated unsecured, non-
credit enhanced, long-term indebtedness for borrowed money
of FRP, in which case such rating, increased by two
categories, shall be used as the Index Debt rating of such
rating agency so long as such rating agency has in effect
such a rating and does not have in effect a rating for Index
Debt; (ii) if the ratings established or deemed to have been
established by Moody's and S&P for the Index Debt shall fall
within different categories, the Applicable Margin shall be
based on the lower of the two ratings unless either of the
two ratings qualifies as "investment grade", in which case
the higher of the two ratings will apply; and (iii) if the
ratings established or deemed to have been established by
Moody's and S&P for the Index Debt shall be changed (other
than as a result of a change in the rating system of Moody's
or S&P), such change shall be effective as of the date on
which it is first announced by the applicable rating agency.
Each change in the Applicable Margin shall apply during the
period commencing on the effective date of such change and
ending on the date immediately preceding the effective date
of the next such change. If the rating system of Moody's or
S&P shall change, or if either such rating agency shall
cease to be in the business of rating corporate debt
obligations, the Borrowers and the Banks shall negotiate in
good faith to amend this definition to reflect such changed
rating system or the non-availability of ratings from such
rating agency and, pending the effectiveness of any such
amendment, the Applicable Margin shall be determined by
reference to the rating most recently in effect prior to
such change or cessation.
"Applicable Percentage" of any Bank means the
percentage set opposite such Bank's name on Schedule II
hereto, as modified from time to time as provided hereby.
"Applicable Reference Rate" means on a per annum
basis in respect of any Reference Rate Loan, for any day,
the sum of the Alternate Base Rate plus the Applicable
Margin.
"Assessment Rate" means, with respect to each day
during an Interest Period, the annual rate (rounded upwards,
if not already a whole multiple of 1/100 of l%, to the next
highest whole multiple of 1/100 of 1%) most recently
estimated by the Administrative Agent as the then current
net annual assessment rate that will be employed in
determining amounts payable by Chemical to the Federal
Deposit Insurance Corporation or any successor ("FDIC") for
the FDIC's insuring time deposits made in Dollars at offices
of Chemical in the United States.
"Bank" means each bank signatory hereto and its
successors and permitted assigns under Section 9.3.
"Board" means the Board of Governors of the
Federal Reserve System of the United States.
"Borrowers" means FRP and FTX.
"Borrowing Date" means, with respect to any Loan,
the date on which such Loan is disbursed.
"Business Day" means any day other than a
Saturday, Sunday or a day on which banks in New York City
are authorized or required by law to close; provided,
however, that when used in connection with a LIBO Rate Loan,
the term "Business Day" shall also exclude any day on which
banks are not open for dealings in Dollar deposits in the
London interbank market.
"Capitalized Lease Obligation" means the
obligation of any Person to pay rent or other amounts under
a lease of (or other agreement conveying the right to use)
real and/or personal property which obligation is, or in
accordance with GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting
Standards Board) is 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 obligation shall be the capitalized amount thereof
determined in accordance with GAAP.
A "Change in Control" shall be deemed to have
occurred if (a) any Person or group (within the meaning of
Rule 13d-5 of the SEC as in effect on the date hereof) shall
own directly or indirectly, beneficially or of record,
shares representing 30% or more of the aggregate ordinary
voting power represented by the issued and outstanding
capital stock of FTX; or (b) a majority of the seats (other
than vacant seats) on the board of directors of FTX shall at
any time be occupied by Persons who were not (i) members of
the board of directors of FTX on the Closing Date,
(ii) appointed as, or nominated for election as, directors
by a majority of the directors who are (x) referred to in
clause (i) and (y) other directors who are appointed or
nominated in accordance with this clause (ii) or
(iii) nominated or appointed by RTZ, RTZ Indonesia or any
Affiliate of either thereof pursuant to its participation in
the Restructuring as contemplated by the Letter Agreement
dated as of March 7, 1995, between RTZ America and FTX and
FCX and the Stock Purchase Agreement.
"Circle C Agreement" means the Credit Agreement
dated as of February 6, 1992, as amended, by and between
Circle C Land Corp. and TCB.
"Closing Date" means the date of execution and
delivery of this Agreement and the Promissory Notes.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral Agents" mean the FRP Collateral Agent
and the FTX Collateral Agent.
"Commitment" means, with respect to each Bank, the
Commitment of such Bank hereunder to make revolving loans as
set forth on Schedule II hereto, or in the Commitment
Transfer Supplement pursuant to which such Bank assumed its
Commitment, as the same may be permanently terminated or
reduced from time to time pursuant to Section 2.7 and
pursuant to assignments by such Bank pursuant to
Section 9.3. The Commitment of each Bank shall
automatically and permanently terminate on the Maturity
Date.
"Commitment Fee" has the meaning assigned to such
term in Section 2.6(a).
"Commitment Termination Date" has the meaning
assigned to such term in Section 2.6(a).
"Commitment Transfer Supplement" means a
Commitment Transfer Supplement entered into by a Bank and an
assignee, and accepted by the Administrative Agent, in the
form of Exhibit D or such other form as shall be approved by
the Administrative Agent.
"Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of
the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise,
and "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Credit Event" means the making of a Loan.
"Debt" of any Person means, without duplication,
(a) all obligations of such Person for borrowed money,
(b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all
obligations of such Person for the unearned balance of any
payment received under any contract outstanding for 180
days, (d) all obligations of such Person under conditional
sale or other title retention agreements relating to
property or assets purchased by such Person, (e) all
obligations of such Person issued or assumed as the deferred
purchase price of property or services (excluding (x) the
Pennzoil Obligations, (y) the up to $10,000,000 conditional
payment of FRP to Fertiberia due in 1998 to the extent not
reflected as a liability on FRP's balance sheet under GAAP
and (z) trade accounts payable and accrued obligations
incurred in the ordinary course of business so long as the
same are not 180 days overdue or, if overdue, are being
contested in good faith and by appropriate proceedings), (f)
all Debt of others 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 owned or acquired by
such Person, whether or not the obligations secured thereby
have been assumed, (g) all Guarantees by such Person of Debt
of others, (h) all Capitalized Lease Obligations of such
Person, (i) all recourse obligations of such Person with
respect to sales of accounts receivable which would be shown
under GAAP on the balance sheet of such Person as a
liability, (j) all obligations of such Person as an account
party (including reimbursement obligations to the issuer of
a letter of credit) in respect of bankers' acceptances and
letters of credit Guaranteeing Debt and (k) all non-
contingent obligations of such Person as an account party
(including reimbursement obligations to the issuer of a
letter of credit) in respect of letters of credit other than
those referred to in clause (j) above. The Debt of any
Person shall include the Debt of any partnership in which
such Person is a general partner but shall exclude
obligations under leases which are characterized as
Operating Leases.
"Debt to Capital Ratio" means at the end of any
fiscal quarter, the ratio, expressed as a percentage, of the
aggregate principal amount of total consolidated Debt
outstanding of FRP (excluding working capital Debt of
IMC-Agrico in a principal amount not to exceed $75,000,000
multiplied by FRP's percentage capital interest in
IMC-Agrico) to FRP Capitalization.
"Deemed Lease" means an agreement characterized by
the parties thereto as a lease solely for income tax
purposes and as to which such parties have elected to have
the provisions of the former Section 168(f)(8) of the
Internal Revenue Code of 1954 apply.
"Default" means any event or condition which upon
the giving of notice or lapse of time or both would become
an Event of Default.
"Dollars" or "$" means United States Dollars.
"Domestic Office" means, for any Bank, the
Domestic Office set forth for such Bank on the signature
pages hereof, unless such Bank shall designate a different
Domestic Office by notice in writing to the Administrative
Agent and the Borrowers.
"EBITDA" means, for any fiscal quarter, the sum of
(a) FRP's consolidated net income (loss) (before deducting
minority interests in net income (loss) of consolidated
subsidiaries, but disregarding all extraordinary or unusual
noncash items in calculating such net income);
(b) consolidated interest paid or accrued on the Loans to
FRP and on other consolidated Debt of FRP during such
quarter and deducted in determining FRP's consolidated net
income; (c) FRP's consolidated depreciation, depletion and
amortization charges deducted in computing FRP's
consolidated net income; and (d) excess cash distributions
as reflected in FRP's statement of cash flows received by
FRP from IMC-Agrico; provided that such calculations of
items (a) through (c) will exclude items relating to
Nonrestricted Subsidiaries.
"EBITDA Ratio" means at the end of any fiscal
quarter, the cumulative sum, for the four consecutive fiscal
quarters ending with such quarter, of (a) FRP's EBITDA to
(b) interest expense and capitalized interest paid or
accrued on consolidated Debt of FRP including the Loans and
the proportional consolidation of the outstanding Debt of
IMC-Agrico, during such period.
"environment" shall mean ambient air, surface
water and groundwater (including potable water, navigable
water and wetlands), the land surface or subsurface strata
or as otherwise defined in any Environmental Law.
"Environmental Claim" means any written notice of
violation, claim, demand, order, directive, cost recovery
action or other cause of action by, or on behalf of, any
Governmental Authority or any Person for damages, injunctive
or equitable relief, personal injury (including sickness,
disease or death), Remedial Action costs, tangible or
intangible property damage, natural resource damages,
nuisance, pollution, any adverse effect on the environment
caused by any Hazardous Material, or for fines, penalties or
restrictions, resulting from or based upon: (a) the
existence, or the continuation of the existence, of a
Release (including sudden or non-sudden, accidental or non-
accidental Releases); (b) exposure to any Hazardous
Material; (c) the presence, use, handling, transportation,
storage, treatment or disposal of any Hazardous Material; or
(d) the violation of any Environmental Law or Environmental
Permit.
"Environmental Law" means any and all applicable
treaties, laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural
resources, the management, Release or threatened Release of
any Hazardous Material or to health and safety matters,
including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986,
42 U.S.C. Section 9601 et seq. (collectively "CERCLA"), the
Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 and Hazardous and
Solid Amendments of 1984, 42 U.S.C. Section 6901 et seq.,
the Federal Water Pollution Control Act, as amended by the
Clean Water Act of 1977, 33 U.S.C. Section 1251 et seq., the
Clean Air Act of 1970, as amended 42 U.S.C. Section 7401 et
seq., the Toxic Substances Control Act of 1976, 15 U.S.C.
Section 2601 et seq., the Occupational Safety and Health Act
of 1970, as amended, 29 U.S.C. Section 651 et seq., the
Emergency Planning and Community Right-to-Know Act of 1986,
42 U.S.C. Section 11001 et seq., the Safe Drinking Water Act
of 1974, as amended, 42 U.S.C. Section 300(f) et seq., the
Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801 et seq., and any similar or implementing state
or local law, and all amendments or regulations promulgated
thereunder.
"Environmental Permit" means any permit, approval,
authorization, certificate, license, variance, filing or
permission required by or from any Governmental Authority
pursuant to any Environmental Law.
"Equity Payment" means (i) any dividend or
distribution on, or purchase, redemption or other payment in
respect of, the capital stock of FTX or the partnership
units of FRP, whether in cash or in kind, and (ii) open
market purchases by FTX or any Restricted Subsidiaries of
Depositary Units of FRP (as defined in FRP Partnership
Agreement).
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time.
"ERISA Affiliate" means any trade or business
(whether or not incorporated), that together with a
Borrower, is treated as a single employer under
Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated
as a single employer under Section 414 of the Code.
"ERISA Event" means (i) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued
thereunder, with respect to a Plan; (ii) the adoption of any
amendment to a Plan that would require the provision of
security pursuant to Section 401(a)(29) of the Code; (iii)
the existence with respect to any Plan of an "accumulated
funding deficiency" (as defined in Section 412 of the Code),
whether or not waived; (iv) the incurrence of any liability
under Title IV of ERISA with respect to any Plan or
Multiemployer Plan, other than any liability for
contributions not yet due or payment of premiums not yet
due; (v) the receipt by a Borrower or any ERISA Affiliate
from the PBGC of any notice relating to the intention of the
PBGC to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (vi) the receipt by a Borrower or
any ERISA Affiliate of any notice concerning the imposition
of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA; and
(vii) any other similar event or condition with respect to a
Plan or Multiemployer Plan that could reasonably result in
liability of a Borrower.
"Event of Default" means any Event of Default
defined in Article VII.
"FCX" means Freeport-McMoRan Copper & Gold Inc., a
Delaware corporation.
"FI" means P.T. Freeport Indonesia Company, a
limited liability company organized under the laws of
Indonesia and domesticated in Delaware.
"Financial Officer" of any corporation means the
principal financial officer, principal accounting officer,
treasurer, assistant treasurer or controller of such
corporation.
"FM Credit Agreement" means the Credit Agreement
dated as of June 30, 1995, among FM Properties, FTX, FCX,
the banks party thereto, Chemical, as Administrative Agent
and as FM Collateral Agent, and Chase, as Documentary Agent,
as the same may be amended or replaced from time to time.
"FM Properties" means FM Properties Operating Co.,
a Delaware general partnership whose partners are FTX and FM
Properties Inc.
"FM Properties Indebtedness" means the obligations
of FM Properties under the FM Credit Agreement and the
obligations of FM Properties listed on Schedule VII hereto.
"FRP Capitalization" means the sum, as of the end
of any fiscal quarter, of the aggregate principal amount of
the total consolidated Debt outstanding of FRP (excluding
working capital Debt of IMC-Agrico in a principal amount not
to exceed $75,000,000 multiplied by FRP's percentage capital
interest in IMC-Agrico) plus consolidated partners' capital
(excluding the effect of non-cash unusual or extraordinary
charges after December 31, 1994, on such partners' capital)
of FRP.
"FRP Collateral Agent" means Chemical in its
capacity as Collateral Agent for the Banks under the FRP
Security Agreement.
"FRP Partner" means Agrico LP or another
Restricted Subsidiary of FRP which has the rights and
obligations of FRP Partner as defined in and contemplated by
the IMC-Agrico Partnership Agreement.
"FRP Partnership Agreement" means the Amended and
Restated Agreement of Limited Partnership of Freeport-
McMoRan Resource Partners, Limited Partnership, dated as of
May 29, 1987 among FRP, FTX and FMRP Inc., as amended.
"FRP Security Agreement" means the security
agreement and mortgage in the form of Exhibit E, executed by
FRP and delivered to the FRP Collateral Agent pursuant to
Section 4.1(h), as such agreement may be amended and in
effect from time to time.
"FTX Collateral Agent" means Chemical in its
capacity as Collateral Agent for the Lenders (as defined in
the FTX Intercreditor Agreement) under the FTX Intercreditor
Agreement and the FTX Security Agreement.
"FTX Guaranty Agreement" means the Guaranty
Agreement dated as of July 17, 1995, pursuant to which FTX
guarantees a portion of the FM Properties Indebtedness.
"FTX Intercreditor Agreement" means the
Intercreditor Agreement entered into as of June 11, 1992, as
amended and restated in its entirety as of June 1, 1993, and
as of the Funding Date in the form attached hereto as
Exhibit G, among the Administrative Agent on behalf of the
Banks, the FM Agent on behalf of the FM Lenders, Hibernia
National Bank as agent for the Pel-Tex Lenders (each as
defined therein), TCB and Chemical, as FTX Collateral Agent,
as such agreement may be further amended and in effect from
time to time.
"FTX Security Agreement" means the security
agreement in the form of Exhibit F, executed by FTX and
delivered to the FTX Collateral Agent pursuant to
Section 4.1(g), as such agreement may be amended and in
effect from time to time.
"Funding Date" means the first date on which the
conditions to borrowing set forth in Articles IV and VI have
been satisfied.
"GAAP" has the meaning assigned to such term in
Section 1.2.
"Governmental Authority" means any Federal, state,
local or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"Governmental Rule" means any statute, law,
treaty, rule, code, ordinance, regulation, permit,
certificate or order of any Governmental Authority or any
judgment, decree, injunction, writ, order or like action of
any court, arbitrator or other judicial or quasijudicial
tribunal.
"Guarantee" means, with respect to any Person, any
obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing
any Debt or obligation of any other Person in any manner,
whether directly or indirectly, and including, without
limitation, any agreement or obligation (i) to pay dividends
or other distributions upon the stock of such other Person,
or any obligation of such other Person, direct or indirect,
(ii) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or obligation or to
purchase (or advance or supply funds for the purchase of)
any security for the payment of such Debt, obligation,
dividend or distribution, (iii) to purchase or lease
property, securities or services for the purpose of assuring
the owner of such Debt or obligation or the holder of such
stock of the payment of such Debt, obligation, dividend or
distribution including, without limitation, any take-or-pay
contract or agreement to buy a minimum amount or quantity of
production or to provide an operating subsidy which, in each
case, is utilized for a third party financing, or (iv) to
maintain working capital, equity capital or any other
financial statement condition of the primary obligor, so as
to enable the primary obligor to pay such Debt, obligation,
dividend or distribution; provided, however, that the term
Guarantee shall not include any endorsement for collection
or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or
radioactive substances or wastes, hazardous or toxic
substances or wastes, pollutants, solid, liquid or gaseous
wastes, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated
biphenyls ("PCBs") or PCB-containing materials or equipment,
radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedge Agreement" means any interest rate,
currency or commodity swap, cap, floor or collar agreement
or similar hedging arrangement providing for the transfer or
mitigation of interest rate, commodity price or currency
value or exchange rate risks, either generally or under
specific contingencies.
"IMC" means IMC Global Operations Inc., a Delaware
corporation.
"IMC-Agrico" means the general partnership formed
pursuant to the IMC-Agrico Partnership Agreement.
"IMC Partner" means the Subsidiary of IMC that has
the rights and obligations of IMC GPCo as defined in and
contemplated by the IMC-Agrico Partnership Agreement.
"IMC-Agrico Partnership Agreement" means the
Amended and Restated Partnership Agreement dated as of
July 1, 1993, as further amended and restated as of May 26,
1995, by and among Agrico LP, a Delaware limited
partnership, IMC-Agrico GP Company, a Delaware corporation,
and IMC-Agrico MP Inc., a Delaware corporation, as amended
and in effect from time to time as permitted by
Section 5.2(r).
"Index Debt" means the senior, unsecured, non-
credit enhanced, long-term indebtedness for borrowed money
of FRP.
"Interest Payment Date" means (i) as to any
Reference Rate Loan, the next succeeding March 31, June 30,
September 30 or December 31 (subject to Section 2.16), or if
earlier, the Maturity Date, and (ii) as to any LIBO Rate
Loan, the last day of the Interest Period applicable to such
Loan (and, in the case of any Interest Period of more than
three months' duration, the date that would be the last day
of such Interest Period if such Interest Period were of
three months' duration) and the date of any continuation or
conversion of such Loan as or into a Loan of the same or a
different type.
"Interest Period" means (i) as to any LIBO Rate
Loan, the period commencing on the date of such LIBO Rate
Loan or on the last day of the immediately preceding
Interest Period applicable to such Loan, as the case may be,
and ending on the numerically corresponding day (or, if
there is no numerically corresponding day, on the last day)
in the calendar month that is 1, 2, 3 or 6 months
thereafter, as the applicable Borrower may elect, and
(ii) as to any Reference Rate Loan, the period commencing on
the date of such Reference Rate Loan or on the last day of
the immediately preceding Interest Period applicable to such
Loan, as the case may be, and ending on the earliest of
(x) the next succeeding March 31, June 30, September 30 or
December 31, (y) the Maturity Date and (z) the date such
Loan is prepaid or converted as permitted hereby; provided,
however, that (1) if any Interest Period would end on a day
that shall not be a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless, with
respect to LIBO Rate Loans only, such next succeeding
Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding
Business Day, (2) no Interest Period with respect to any
Loan shall end later than the Maturity Date and (3) interest
shall accrue from and including the first day of an Interest
Period to but excluding the last day of such Interest
Period.
"LIBO Rate" means, with respect to any LIBO Rate
Loan for any Interest Period, an interest rate per annum
(rounded upwards, if not already a whole multiple of 1/100
of 1%, to the next higher 1/100 of 1%) equal to the
arithmetic average of the respective rates per annum at
which Dollar deposits approximately equal in principal
amount to the Reference Banks' portions of such LIBO Rate
Loan and for a maturity equal to the applicable Interest
Period are offered in immediately available funds to the
principal London offices of the Reference Banks in the
London Interbank Market at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such
Interest Period.
"LIBO Rate Loan" means any Loan for which interest
is determined, in accordance with the provisions hereof, at
the Applicable LIBO Rate.
"LIBOR Office" means, for any Bank, the LIBOR
Office set forth for such Bank on the signature pages hereof
or as otherwise notified in writing to the Administrative
Agent and the Borrowers, unless such Bank shall designate a
different LIBOR Office by notice in writing to the
Administrative Agent and the Borrowers.
"Lien" means with respect to any asset, (a) a
mortgage, deed of trust, lien, pledge, encumbrance, charge
or security interest in or on such asset, (b) the interest
of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement
relating to such asset, (c) in the case of securities, any
purchase option, call or similar right of a third party with
respect to such securities (except for any purchase option,
call or similar right under the FRP Partnership Agreement as
in effect on the Closing Date or as modified from time to
time with the consent of the Required Banks) and (d) other
encumbrances of any kind, including, without limitation,
production payment obligations.
"Loan" means any loan made pursuant to
Section 2.1.
"Loan Documents" means this Agreement, the
Promissory Notes, the FTX Intercreditor Agreement, the
Security Agreements and all other agreements, certificates
and instruments now or hereafter entered into in connection
with any of the foregoing, in each case as amended and
modified from time to time.
"Loan Exposure" means the aggregate amount of
unpaid principal of all Loans made by the Banks.
"Main Pass" means FRP's interest in the Joint
Operating Agreement dated May 1, 1988, among FRP, Homestake
Sulphur Company and IMC Global Operations Inc., and the
Joint Operating Agreement dated June 5, 1990, among FRP,
Homestake Sulphur Company and IMC Global Operations Inc.,
and all rights and interests arising therefrom or in
connection therewith and all FRP's right, title and interest
to the leases, properties and assets subject to such Joint
Operating Agreements, including those listed on Schedule V
hereto.
"Margin Stock" has the meaning assigned to such
term in Regulation U.
"Material Adverse Effect" means (a) a materially
adverse effect on the business, assets, operations,
prospects or condition, financial or otherwise, of a
Borrower and its Subsidiaries taken as a whole, (b) material
impairment of the ability of a Borrower or any of its
Subsidiaries to perform any of its obligations under any
Loan Document to which it is or will be a party or
(c) material impairment of the rights of or benefits
available to the Banks under any Loan Document.
"Maturity Date" means the fifth anniversary of the
Closing Date, or, if earlier, the date of termination of the
Commitments pursuant to the terms hereof.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which a Borrower
or any ERISA Affiliate 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.
"Net Proceeds" means (i) the gross fair market
value of the consideration or other amounts payable to or
receivable by FRP, any of its Restricted Subsidiaries or
IMC-Agrico in respect of any sales, transfers, distributions
or other dispositions (including by merger or consolidation)
of assets or properties (including any capital or other
equity interests owned), less (ii) the amount, if any, of
all taxes (but only to the extent such Person reasonably
estimates that such taxes will be paid on the date of the
next tax filing by such Person or such affiliate of such
Person), and reasonable and customary fees, commissions,
costs and other expenses (other than those payable to FRP,
any of its Restricted Subsidiaries or IMC-Agrico) which are
incurred in connection with such sales, transfers,
distributions or other dispositions and are payable by the
seller or the transferor of the assets or property to which
such sales, transfers, distributions or other dispositions
relate, but only to the extent not already deducted in
arriving at the amount referred to in clause (i), and less
(iii) amounts used within 120 days from the date of closing
or effectiveness of the original transaction in question by
the seller or transferor to purchase other assets used in
the business of it and its Wholly-Owned Restricted
Subsidiaries and not pledged or encumbered to any other
Person.
"1994 Form l0-K" has the meaning assigned to such
term in Section 3.1(e).
"Nonrestricted Subsidiary" means (i) any of the
Subsidiaries listed on Schedule III hereto as a
Nonrestricted Subsidiary, (ii) any Subsidiary of any
Nonrestricted Subsidiary and (iii) any surviving corporation
(other than a Borrower or a Restricted Subsidiary) into
which any of such corporations referred to in clause (i) or
(ii) is merged or consolidated, subject to Section 5.2(c),
and (iv) any Subsidiary organized after the date of this
Agreement for the purpose of acquiring the stock or assets
of another Person or for start-up ventures or exploration
programs or activities and designated as a Nonrestricted
Subsidiary by FTX as of the time of its organization. By
written notice to the Administrative Agent, FTX may
(x) declare any Nonrestricted Subsidiary to be a Restricted
Subsidiary and such former Nonrestricted Subsidiary shall
thereafter be deemed to be a Restricted Subsidiary for all
purposes of this Agreement or (y) at any time other than
when a Default or Event of Default has occurred and is
continuing or would exist after giving effect to such
declaration, in any fiscal year, declare one or more
Restricted Subsidiaries, the interest of FTX in all of which
has an equity value or loan investment of less than
$5,000,000 in the aggregate, to be a Nonrestricted
Subsidiary and any such former Restricted Subsidiary shall
thereafter be deemed to be a Nonrestricted Subsidiary for
all purposes of this Agreement.
"Operating Lease" means any lease other than a
lease giving rise to a Capitalized Lease Obligation.
"PBGC" means the Pension Benefit Guaranty
Corporation referred to and defined in ERISA.
"Pennzoil Obligations" means the deferred purchase
price obligations incurred by FRP in connection with the
purchase from Pennzoil Company of the Culberson mining
operations and associated physical assets.
"Permitted Investments" means customary portfolio
cash management investments made pursuant to prudent cash
management practices.
"Permitted Secured Swap" means any Hedge Agreement
between FTX or FRP and any Bank or its affiliates that shall
be ratably secured pursuant to the FTX Security Agreement or
the FRP Security Agreement, as applicable.
"Person" means any natural person, corporation,
partnership, joint venture, trust, incorporated or
unincorporated association, joint stock company, government
(or an agency or political subdivision thereof) or other
entity of any kind.
"Plan" means any employee pension benefit plan
(other than a Multiemployer Plan) which is subject to the
provisions of Title IV of ERISA or Section 412 of the Code
and in respect of which a Borrower or any ERISA Affiliate is
(or, if such plan were terminated, would under Section 4069
of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Promissory Notes" means the promissory notes of
each Borrower referred to in Section 2.4.
"Properties" has the meaning assigned such term in
Section 3.1(n)(1).
"Reference Banks" means Chemical and Chase.
"Reference Rate Loan" means any Loan for which
interest is determined, in accordance with the provisions
hereof, at the Applicable Reference Rate.
"Register" has the meaning assigned such term in
Section 9.3(d).
"Regulation D" means Regulation D of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Regulation G" means Regulation G of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Regulation U" means Regulation U of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Regulation X" means Regulation X of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Release" means any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, disposing, depositing,
dispersing, emanating or migrating of any Hazardous Material
in, into, onto or through the environment.
"Remedial Action" means (a) "remedial action" as
such term is defined in CERCLA, 42 U.S.C. Section 9601(24),
and (b) all other actions required by any Governmental
Authority or voluntarily undertaken to: (i) cleanup,
remove, treat, abate or in any other way address any
Hazardous Material in the environment; (ii) prevent the
Release or threat of Release, or minimize the further
Release of any Hazardous Material so it does not migrate or
endanger or threaten to endanger public health, welfare or
the environment; or (iii) perform studies and investigations
in connection with, or as a precondition to, (i) or (ii)
above.
"Required Banks" means, subject to Section 9.7(b),
at any time Banks having Commitments representing at least
66-2/3% of the aggregate Commitments hereunder or, if the
Commitments have been terminated, Banks holding Loans
representing at least 66-2/3% of the aggregate principal
amount of the Loans.
"Responsible Officer" of any corporation means any
executive officer or Financial Officer of such corporation
and any other officer or similar official thereof
responsible for the administration of the obligations of
such corporation in respect of this Agreement.
"Restricted Subsidiary" means any Subsidiary that
is not a Nonrestricted Subsidiary; provided, however, that
any Person through which FRP owns any interest in IMC-Agrico
shall at all times be a Restricted Subsidiary.
"Restructuring" means the transactions between FTX
and FCX (on the one hand) and RTZ, RTZ Indonesia and RTZ
America (on the other hand) pursuant to the Stock Purchase
Agreement, and the distribution on a generally tax free
basis (subject to exceptions approved by the Administrative
Agent and the Documentary Agent) by FTX to its shareholders
of the shares of FCX, thereby leaving FTX as a holding
company for FRP and leaving FCX as the publicly held holding
company for FI, together with arrangements required by or
effectuated in connection with such distribution with
respect to existing contractual agreements and indebtedness
of FTX, FRP, FCX and FI, all on terms substantially the same
as those disclosed in writing to the Banks prior to the
Closing Date or otherwise satisfactory to the Required Banks
(including all tax, accounting, corporate and partnership
matters).
"RTZ" means the RTZ Corporation PLC, a company
organized under the laws of England.
"RTZ America" means RTZ America, Inc., a Delaware
corporation and a wholly owned subsidiary of RTZ.
"RTZ Indonesia" means RTZ Indonesia Limited, a
company organized under the laws of England and a wholly
owned subsidiary of RTZ.
"S&P" means Standard & Poor's Ratings Group, a
division of McGraw-Hill, Inc.
"SEC" means the Securities and Exchange
Commission.
"Security Agreements" means, collectively, the FRP
Security Agreement and the FTX Security Agreement.
"Shared Collateral" has the meaning assigned to
such term in the FTX Intercreditor Agreement.
"Statutory Reserves" means a fraction (expressed
as a decimal), the numerator of which is the number one and
the denominator of which is the number one minus the
aggregate of the maximum reserve percentages (including,
without limitation, any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by
the Board and any other banking authority, domestic or
foreign, to which the Administrative Agent or any Bank
(including any branch, Affiliate, or other funding office
making or holding a Loan) is subject (a) with respect to the
Base CD Rate (as such term is used in the definition of
"Alternate Base Rate"), for new negotiable nonpersonal time
deposits in Dollars of over $100,000 with maturities
approximately equal to the applicable Interest Period, and
(b) with respect to the LIBO Rate, for Eurocurrency
Liabilities (as defined in Regulation D). Such reserve
percentages shall include, without limitation, those imposed
under Regulation D. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change
in any reserve percentage.
"Stock Purchase Agreement" means the Agreement
dated as of May 2, 1995, by and between FTX, FCX, RTZ, RTZ
Indonesia and RTZ America as approved by the Banks and in
effect on the Closing Date and as amended from time to time
as permitted by Section 5.2(t).
"Subsidiary" means as to any Person, any
corporation at least a majority of whose securities having
ordinary voting power for the election of directors (other
than securities having such power only by reason of the
happening of a contingency) are at the time owned by such
Person and/or one or more other Subsidiaries of such Person
and any partnership (other than joint ventures for which the
intention under the applicable agreements, including
operating agreements, if any, is that such joint ventures be
partnerships solely for purposes of the Code) in which such
Person or a Subsidiary of such Person is a general partner;
provided that unless otherwise specified, "Subsidiary" means
a Subsidiary of FTX and provided, further, that FM
Properties, FM Corporation and IMC-Agrico shall not at any
time be Subsidiaries for any purposes of this Agreement.
"TCB" means Texas Commerce Bank National
Association, a national banking association.
"Third Party" has the meaning assigned to such
term in Section 5.2(l).
"Total Commitment" means the sum of all the then
effective Commitments.
"Transfer Effective Date" has the meaning assigned
to such term in each Commitment Transfer Supplement.
"Transferee" means any Participant or Purchasing
Bank, as such terms are defined in Section 9.3.
"Wholly-Owned Restricted Subsidiary" means any
Subsidiary, all of the stock of which is at the time owned
by FTX, FRP and/or one or more other Wholly-Owned Restricted
Subsidiaries of either of them.
"Withdrawal Liability" means liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2. Accounting Terms. Except as
otherwise herein specifically provided, each accounting term
used herein shall have the meaning given it under United
States generally accepted accounting principles in effect
from time to time (with such changes thereto as are approved
or concurred in from time to time by the Borrowers'
independent public accountants, as applicable) applied on a
basis consistent with those used in preparing the financial
statements referred to in Section 5.1(a) ("GAAP"); provided,
however, that each reference in Section 5.2 hereof, or in
the definition of any term used in Section 5.2 hereof, to
GAAP shall mean generally accepted accounting principles as
in effect on the Closing Date and as applied by Borrowers in
preparing the financial statements referred to in
Section 3.1(e). In the event any change in GAAP materially
affects any provision of this Agreement, the Banks and the
Borrowers agree that they shall negotiate in good faith in
order to amend the affected provisions in such a way as will
restore the parties to their respective positions prior to
such change, and until such amendment becomes effective the
Borrowers' compliance with such provisions shall be
determined on the basis of GAAP as in effect immediately
before such change in GAAP became effective.
SECTION 1.3. Section, Article, Exhibit and
Schedule References, etc. Unless otherwise stated, Section,
Article, Exhibit and Schedule references made herein are to
Sections, Articles, Exhibits or Schedules, as the case may
be, of this Agreement. Whenever the context may require,
any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes"
and "including" shall be deemed to be followed by the phrase
"without limitation". Except as otherwise expressly
provided herein, any reference in this Agreement to any Loan
Document shall mean such document as amended, restated,
supplemented or otherwise modified from time to time.
ARTICLE II
The Loans
SECTION 2.1. Revolving Credit Facility. Upon the
terms and subject to the conditions and relying upon the
representations and warranties herein set forth, each Bank,
severally and not jointly, agrees to make Loans to the
Borrowers, at any time and from time to time on or after the
Funding Date, and until the earlier of the Maturity Date and
the termination of the Commitment of such Bank in accordance
with the terms hereof, in an aggregate principal amount at
any one time outstanding not to exceed such Bank's
Applicable Percentage of the then effective unused Total
Commitment on the Borrowing Date for such Loan. Within the
foregoing limits, the Borrowers may borrow, repay and
reborrow, prior to the Maturity Date, Loans subject to the
terms, provisions and limitations set forth herein;
provided, however, that the aggregate principal amount of
all Loans to FTX at any time outstanding shall not exceed
$75,000,000 or such lesser amount determined pursuant to
Section 2.7.
SECTION 2.2. Loans. (a) The Loans made by the
Banks to any Borrower on any one date shall be in an
aggregate principal amount which is (i) an integral multiple
of $1,000,000 and not less than $5,000,000 or (ii) equal to
the remaining available balance of the applicable
Commitments. The Loans by each Bank to each Borrower made
after the Funding Date shall be made against an appropriate
Promissory Note, payable to the order of such Bank in the
amount of its Commitment, executed by such Borrower and
delivered to such Bank on the Closing Date, as referred to
in Section 2.4.
(b) Each Loan shall be either a Reference Rate
Loan or a LIBO Rate Loan as the relevant Borrower may
request pursuant to Section 2.3. Subject to the provisions
of Sections 2.3 and 2.10, Loans of more than one type may be
outstanding at the same time.
(c) Each Bank shall make its portion, as
determined under Section 2.14, of each Loan hereunder on the
proposed date thereof by paying the amount required to the
Administrative Agent in New York, New York in immediately
available funds not later than 2:00 p.m., New York City
time, and the Administrative Agent shall by 3:00 p.m.,
New York City time, credit the amounts so received to the
general deposit account of the appropriate Borrower with the
Administrative Agent or, if Loans shall not be made on such
date because any condition precedent to a borrowing herein
specified is not met, return the amounts so received to the
respective Banks. Unless the Administrative Agent shall
have received notice from a Bank prior to the date of any
Loan that such Bank will not make available to the
Administrative Agent such Bank's portion of such Loan, the
Administrative Agent may assume that such Bank has made such
portion available to the Administrative Agent on the date of
such Loan in accordance with this paragraph (c) and the
Administrative Agent may, in reliance upon such assumption,
make available to the applicable Borrower on such date a
corresponding amount. If the Administrative Agent shall
have so made funds available, then to the extent that such
Bank shall not have made such portion available to the
Administrative Agent, such Bank and the applicable Borrower
severally agree to repay without duplication to the
Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the
date such amount is made available to the applicable
Borrower until the date such amount is repaid to the
Administrative Agent at an interest rate equal to (i) in the
case of the Borrower, the interest rate applicable at the
time to the Loans comprising such borrowing and (ii) in the
case of such Bank, a rate determined by the Administrative
Agent to represent its cost of overnight or short-term funds
(which determination shall be conclusive absent manifest
error). If such Bank shall repay to the Administrative
Agent such corresponding amount, such amount shall
constitute such Bank's Loan for purposes of this Agreement.
SECTION 2.3. Notice of Loans. (a) A Borrower
requesting a Loan shall give the Administrative Agent
irrevocable telephonic (promptly confirmed in writing),
written, telecopy or telex notice in the form of Exhibit B
with respect to each Loan (i) in the case of a LIBO Rate
Loan, not later than 10:30 a.m., New York City time, three
Business Days before a proposed borrowing, and (ii) in the
case of a Reference Rate Loan, not later than 10:30 a.m.,
New York City time, on the date of a proposed borrowing.
Such notice shall be irrevocable (except that in the case of
a LIBO Rate Loan, such Borrower may, subject to
Section 2.13, revoke such notice by giving written or telex
notice thereof to the Administrative Agent not later than
10:30 a.m., New York City time, two Business Days before
such proposed borrowing) and shall in each case refer to
this Agreement and specify (1) the Borrower to which the
Loan then being requested is to be made, (2) whether the
Loan then being requested is to be a Reference Rate Loan or
LIBO Rate Loan, (3) the date of such Loan (which shall be a
Business Day) and amount thereof, and (4) if such Loan is to
be a LIBO Rate Loan, the Interest Period or Interest Periods
(which shall not end after the Maturity Date) with respect
thereto. If no election as to the type of Loan is specified
in any such notice by such Borrower, such Loan shall be a
Reference Rate Loan. If no Interest Period with respect to
any LIBO Rate Loan is specified in any such notice by a
Borrower, then the applicable Borrower shall be deemed to
have selected an Interest Period of one month's duration.
The Administrative Agent shall promptly advise the other
Banks of any notice given by a Borrower pursuant to this
Section 2.3(a) and of each Bank's portion of the requested
Loan.
(b) Each Borrower may continue or convert all or
any part of any Loan as or into a Loan of the same or a
different type in accordance with Section 2.10 and subject
to the limitations set forth herein. If a Borrower shall
not have delivered a borrowing notice in accordance with
this Section 2.3 prior to the end of the Interest Period
then in effect for any Loan of such Borrower requesting that
such Loan be converted or continued as permitted hereby,
then such Borrower shall (unless the Borrower has notified
the Administrative Agent, not less than three Business Days
prior to the end of such Interest Period, that such Loan is
to be repaid at the end of such Interest Period) be deemed
to have delivered a borrowing notice pursuant to Section 2.3
requesting that such Loan be converted into or continued as
a Reference Rate Loan of equivalent amount.
(c) Notwithstanding any provision to the contrary
in this Agreement, no Borrower shall in any borrowing notice
under this Section 2.3 request any LIBO Rate Loan which, if
made, would result in more than 20 separate LIBO Rate Loans
of any Bank. For purposes of the foregoing, Loans having
different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate
Loans.
SECTION 2.4. Promissory Notes. (a) The Loans
made by each Bank to each Borrower shall be evidenced by a
Promissory Note duly executed on behalf of such Borrower,
dated the Closing Date, in substantially the form attached
hereto as Exhibit A, payable to the order of such Bank in a
principal amount equal to its Commitment. The outstanding
principal balance of each Loan, as evidenced by such
Promissory Note, shall be payable on the Maturity Date. Each
Promissory Note shall bear interest from the date of the
first borrowing hereunder on the outstanding principal
balance thereof, as provided in Section 2.5.
(b) Each Bank shall maintain in accordance with
its usual practice an account or accounts evidencing the
indebtedness to such Bank resulting from each Loan made by
such Bank from time to time, including the amounts of
principal and interest payable and paid to such Bank from
time to time under this Agreement. Each Bank shall, and is
hereby authorized by each Borrower to, endorse on the
schedule attached to the Promissory Note delivered by such
Borrower to such Bank (or on a continuation of such schedule
attached to such Promissory Note and made a part thereof),
or otherwise record in such Bank's internal records, an
appropriate notation evidencing the date and amount of each
Loan from such Bank to such Borrower, as well as the date
and amount of each payment and prepayment with respect
thereto; provided, however, that the failure of any Bank to
make such a notation or any error in such a notation shall
not affect the obligation of such Borrower to repay the
Loans made by such Bank in accordance with the terms of this
Agreement and such Promissory Note.
(c) The Administrative Agent shall maintain
accounts for (i) the type of each Loan made and the Interest
Period applicable thereto, (ii) the amount of any principal
or interest due and payable or to become due and payable
from the applicable Borrower to each Bank hereunder and
(iii) the amount of any sum received by the Administrative
Agent hereunder from such Borrower and each Bank's share
thereof.
(d) The entries made in the accounts maintained
pursuant to paragraphs (b) and (c) of this Section 2.4 shall
be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the
failure of any Bank or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner
affect the obligations of the Borrowers to repay the Loans
in accordance with their terms.
SECTION 2.5. Interest on Loans. (a) Subject to
the provisions of Section 2.8, each Reference Rate Loan
shall bear interest at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of
365 or 366 days, as the case may be, when determined by
reference to the Prime Rate, and over a year of 360 days at
all other times), equal to the Applicable Reference Rate.
(b) Subject to the provisions of Section 2.8,
each Loan which is a LIBO Rate Loan shall bear interest at a
rate per annum (computed on the basis of the actual number
of days elapsed over a year of 360 days) equal to the
Applicable LIBO Rate for the Interest Period in effect for
such Loan.
(c) Interest on each Loan shall be payable on
each applicable Interest Payment Date. The Applicable
Reference Rate and the Applicable LIBO Rate shall be
determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
The Administrative Agent shall promptly advise the Borrowers
and each Bank of such determination.
SECTION 2.6. Fees. (a) The Borrowers shall pay
each Bank, through the Administrative Agent, on the last
Business Day of each March, June, September and December,
and on the date on which the Commitment of such Lender shall
be terminated as provided herein (the "Commitment
Termination Date"), in immediately available funds, a
commitment fee (a "Commitment Fee") from and including the
earlier of June 30, 1995, and the Funding Date through and
including the Commitment Termination Date on the average
daily amount of such Bank's Applicable Percentage of the
unused Total Commitment during the quarter (or shorter
period commencing with the earlier of June 30, 1995, and the
Funding Date or ending with the Commitment Termination Date)
ending on such date equal to the applicable Commitment Fee
Percentage set forth in Schedule I hereto for such Borrower.
(b) All Commitment Fees under this Section 2.6
shall be computed on the basis of the actual number of days
elapsed in a year of 365 or 366 days, as the case may be.
The Commitment Fees due to each Bank shall cease to accrue
on the earlier of the Maturity Date and the termination of
the Commitment of such Bank pursuant to Section 2.7.
(c) The Borrowers agree to pay to the
Administrative Agent, for its own account, on the Closing
Date and on each anniversary thereof, an administration fee
(the "Administrative Fee") as agreed between the Borrowers
and the Administrative Agent.
(d) All such fees shall be paid on the dates due,
in immediately available funds, to the Administrative Agent
for distribution, if and as appropriate, among the Banks.
Once paid, all such fees shall be fully earned under any and
all circumstances.
SECTION 2.7. Maturity and Reduction of
Commitments. (a) Upon at least five days' prior written,
telecopied or telex notice to the Administrative Agent, the
Borrowers may without penalty at any time in whole
permanently terminate, or from time to time permanently
reduce, the Total Commitment, ratably among the Banks in
accordance with the amounts of their respective Commitments;
provided, however, that each partial reduction of the
Commitment Amount shall be in a minimum principal amount of
$5,000,000 and an integral multiple of $1,000,000; provided
further, that the Total Commitment may not be reduced to an
amount which is less than the aggregate principal amount of
all Loans outstanding after such reduction.
(b) The Total Commitment shall be automatically
and permanently reduced by an amount equal to (I) the Net
Proceeds of any non-ordinary course asset disposition by FRP
and its Restricted Subsidiaries and IMC-Agrico (other than
in each case, (i) dispositions of obsolete and worn-out
property or real estate not used or useful in its business,
(ii) sales of accounts receivable and (iii) sales of any
IMC-Agrico asset sales to the extent not resulting in
distributable cash to FRP or its Restricted Subsidiaries),
in excess of a cumulative aggregate amount of $25,000,000
for all such transactions during the term of this Agreement,
and (II) the net proceeds of any issuance of Debt to any
Third Party by FRP or its Restricted Subsidiaries after the
Closing Date (other than (A) Guarantees where no proceeds of
the related Debt are received by FRP or its Restricted
Subsidiaries, (B) Debt described in clauses (i), (ii),
(iii), (iv), (v), (vi), (vii), (viii) and (xi) of
Section 5.2(g) and (C) Capitalized Lease Obligations where a
related asset sale has already been counted for purposes of
this Section 2.7(b)), in excess of a cumulative aggregate
amount of $50,000,000 for all such transactions during the
term of this Agreement. The Total Commitment shall also be
automatically and permanently reduced by an amount equal to
such portion of the proceeds of any equity issuance (other
than pursuant to employee stock option plans and similar
arrangements and other than equity issued to fund a
permitted acquisition) by FRP and the Restricted
Subsidiaries to any Person other than the Borrowers and the
Restricted Subsidiaries as the Required Banks and the
Borrowers shall agree prior to the time of receipt of Net
Proceeds in respect of such equity issuance; provided that,
if such agreement shall not be reached prior to the time of
such receipt, the applicable portion shall be 50%. The
Commitment reductions required by this Section 2.7(b) shall
be effective as of the date of closing or effectiveness of
any transaction subject hereto; provided that with respect
to any non-cash Net Proceeds, such Commitment reductions
shall be effective as of the earlier of (x) the date of
receipt of cash proceeds thereof and (y) the first
anniversary of the date of closing or effectiveness of such
transaction, subject to any such non-cash proceeds in excess
of $5,000,000 being pledged to the relevant Collateral Agent
pursuant to the FRP Security Agreement as additional
collateral for the Loans and other obligations under the
Loan Documents and the Permitted Secured Swaps; and provided
further that to the extent prepayment of any LIBO Rate Loan
is required pursuant to this Section 2.7(b), such prepayment
may be made at the end of the current Interest Period for
such LIBO Rate Loan if the required prepayment would
otherwise give rise to breakage costs under Section
2.13(a)(i).
(c) On the Maturity Date, the Commitments shall
automatically terminate and any outstanding Loans shall be
due and payable in full.
SECTION 2.8. Interest on Overdue Amounts;
Alternative Rate of Interest. (a) If any Borrower shall
default in the payment of the principal of or interest on
any Loan or any other amount becoming due hereunder or under
any other Loan Document, by acceleration or otherwise, such
Borrower shall on demand from time to time pay interest, to
the extent permitted by law, on such defaulted amount up to
the date of actual payment (after as well as before
judgment):
(i) in the case of the payment of principal of or
interest on a LIBO Rate Loan, at a rate 2% above the
rate which would otherwise be payable under
Section 2.5(b) until the last date of the Interest
Period then in effect with respect to such Loan and
thereafter as provided in clause (ii) below; and
(ii) in the case of the payment of principal of or
interest on a Reference Rate Loan or any other amount
payable hereunder (other than principal of or interest
on any LIBO Rate Loan to the extent referred to in
clause (i) above), at a rate 2% above the Applicable
Reference Rate.
(b) In the event, and on each occasion, that on
the day two Business Days prior to the commencement of any
Interest Period for a LIBO Rate Loan the Administrative
Agent shall have determined (which determination shall be
conclusive and binding upon the Borrowers absent manifest
error) that (i) Dollar deposits in the requested principal
amount of such LIBO Rate Loan are not generally available in
the London Interbank Market, (ii) the rates at which Dollar
deposits are being offered will not adequately and fairly
reflect the cost to any Bank of making or maintaining such
LIBO Rate Loan during such Interest Period or
(iii) reasonable means do not exist for ascertaining the
Applicable LIBO Rate, the Administrative Agent shall as soon
as practicable thereafter give written, telecopied or telex
notice of such determination to the Borrowers and the other
Banks, and any request by a Borrower for the making of a
LIBO Rate Loan pursuant to Section 2.3 or 2.10 shall, until
the Administrative Agent shall have advised the Borrowers
and the Banks that the circumstances giving rise to such
notice no longer exist, be deemed to be a request for a
Reference Rate Loan; provided, however, that if the
Administrative Agent makes the determination specified in
(ii) above, at the option of such Borrower such request
shall be deemed to be a request for a Reference Rate Loan
only from such Bank referred to in (ii) above; provided
further, however, that such option shall not be available to
such Borrower if the Administrative Agent makes the
determination specified in (ii) above with respect to three
or more Banks. Each determination of the Administrative
Agent hereunder shall be conclusive absent manifest error.
SECTION 2.9. Prepayment of Loans. (a) Each
Borrower shall have the right at any time and from time to
time to prepay any of its Loans, in whole or in part,
subject to the requirements of Section 2.13 but otherwise
without premium or penalty, upon prior written or telex
notice to the Administrative Agent by 10:30 a.m., New York
City time, on the date of such prepayment; provided,
however, that each such partial prepayment shall be in a
minimum amount of $5,000,000 and an integral multiple of
$1,000,000.
(b) In the event of any termination of the
Commitments, each Borrower shall repay or prepay all its
outstanding Loans on the date of such termination. On the
date of any partial reduction of the Commitments pursuant to
Section 2.7, the Borrowers shall pay or prepay so much of
their respective Loans as shall be necessary in order that
the aggregate principal amount of the Loans (after giving
effect to any other prepayment of Loans on such date)
outstanding will not exceed the Total Commitment immediately
following such reduction.
(c) All prepayments under this Section 2.9 shall
be subject to Section 2.13. Each notice of prepayment
delivered pursuant to paragraph (a) above shall specify the
prepayment date and the principal amount of each Loan (or
portion thereof) to be prepaid, shall be irrevocable and
shall commit the Borrower giving such notice to prepay such
Loan by the amount stated therein on the date stated
therein. All prepayments shall be applied first to
Reference Rate Loans and then to LIBO Rate Loans and shall
be accompanied by accrued interest on the principal amount
being prepaid to the date of prepayment. Any amounts prepaid
may be reborrowed to the extent permitted by the terms of
this Agreement.
SECTION 2.10. Continuation and Conversion of
Loans. Each Borrower shall have the right, subject to the
provisions of Section 2.8, (i) on three Business Days' prior
irrevocable notice by such Borrower to the Administrative
Agent, to continue or convert any type of Loans as or into
LIBO Rate Loans, or (ii) with irrevocable notice by such
Borrower to the Administrative Agent by 10:30 a.m. on the
date of such proposed continuation or conversion, to
continue or convert any type of Loans as or into Reference
Rate Loans, in each case subject to the following further
conditions:
(a) each continuation or conversion shall be made
pro rata as to each type of Loan of a Borrower to be
continued or converted among the Banks in accordance
with the respective amounts of their commitments and
the notice given to the Administrative Agent by such
Borrower shall specify the aggregate principal amount
of Loans to be continued or converted;
(b) in the case of a continuation or conversion of
less than all Loans of any Borrower, the Loans
continued or converted shall be in a minimum aggregate
principal amount of $5,000,000 and an integral multiple
of $1,000,000;
(c) accrued interest on each Loan (or portion
thereof) being continued or converted shall be paid by
such Borrower at the time of continuation or
conversion;
(d) the Interest Period with respect to any Loan
made in respect of a continuation or conversion thereof
shall commence on the date of the continuation or
conversion;
(e) any portion of a Loan maturing or required to
be prepaid in less than one month may not be continued
as or converted into a LIBO Rate Loan;
(f) a LIBO Rate Loan may be continued or converted
on the last day of the applicable Interest Period and,
subject to Section 2.13, on any other day;
(g) no Loan (or portion thereof) may be continued
as or converted into a LIBO Rate Loan if, after such
continuation or conversion, an aggregate of more than
20 separate LIBO Rate Loans of any Bank would result,
determined as set forth in Section 2.3(c);
(h) no Loan shall be continued or converted if
such Loan by any Bank would be greater than the amount
by which its Commitment exceeds the amount of its other
Loans at the time outstanding or if such Loan would not
comply with the other provisions of this Agreement; and
(i) any portion of a LIBO Rate Loan which cannot
be converted into or continued as a LIBO Rate Loan by
reason of clause (e) or (g) above shall be
automatically converted at the end of the Interest
Period in effect for such Loan into a Reference Rate
Loan.
The Administrative Agent shall communicate the information
contained in each irrevocable notice delivered by the
applicable Borrower pursuant to this Section 2.10 to the
other Banks promptly after its receipt of the same.
The Interest Period applicable to any LIBO Rate
Loan resulting from a continuation or conversion shall be
specified by the applicable Borrower in the irrevocable
notice of continuation or conversion delivered pursuant to
this Section 2.10; provided, however, that if no such
Interest Period for a LIBO Rate Loan shall be specified, the
applicable Borrower shall be deemed to have selected an
Interest Period of one month's duration.
For purposes of this Section 2.10, notice received
by the Administrative Agent from a Borrower after
10:30 a.m., New York time, on a Business Day shall be deemed
to be received on the immediately succeeding Business Day.
SECTION 2.11. Reserve Requirements; Change in
Circumstances. (a) The Borrowers shall pay to each Bank on
the last day of each Interest Period for any LIBO Rate Loan
so long as such Bank may be required to maintain reserves
against Eurocurrency Liabilities as defined in Regulation D
of the Board (or so long as such Bank may be required to
maintain reserves against any other category of liabilities
which includes deposits by reference to which the interest
rate on any LIBO Rate Loan is determined as provided in this
Agreement or against any category of extensions of credit or
other assets of such Bank which includes any LIBO Rate Loan)
an additional amount (determined by such Bank and notified
to the Borrowers), equal to the product of the following for
each affected LIBO Rate Loan for each day during such
Interest Period:
(i) the principal amount of such affected LIBO
Rate Loan outstanding on such day; and
(ii) the remainder of (x) the product of Statutory
Reserves on such date times the Applicable LIBO Rate on
such day minus (y) the Applicable LIBO Rate on such
day; and
(iii) 1/360.
Each Bank shall separately bill the Borrowers directly for
all amounts claimed pursuant to this Section 2.11(a).
(b) Notwithstanding any other provision herein,
if after the Closing Date any change in condition or
applicable law or regulation or in the interpretation or
administration thereof (whether or not having the force of
law and including, without limitation, Regulation D of the
Board) by any Governmental Authority charged with the
administration or interpretation thereof shall occur which
shall:
(i) subject any Bank (which shall for the purpose
of this Section include any assignee or lending office
of any Bank) to any tax of any kind whatsoever with
respect to its LIBO Rate Loans or other fees or amounts
payable hereunder or change the basis of taxation of
any of the foregoing (other than taxes (including Non-
Excluded Taxes) described in Section 2.17 and other
than any franchise tax or tax or other similar
governmental charges, fees or assessments based on the
overall net income of such Bank by the U.S. Federal
government or by any jurisdiction in which such Bank
maintains an office, unless the presence of such office
is solely attributable to the enforcement of any rights
hereunder or under any Security Document with respect
to an Event of Default);
(ii) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets
of, deposits with or for the account of or credit
extended by any Bank;
(iii) impose on any such Bank or the London
Interbank Market any other condition affecting this
Agreement or LIBO Rate Loans made by such Bank; or
(iv) impose upon any Bank any other condition with
respect to any amount paid or to be paid by any Bank
with respect to its LIBO Rate Loans or this Agreement;
and the result of any of the foregoing shall be to increase
the cost to any Bank of making or maintaining its LIBO Rate
Loans or Commitment hereunder, or to reduce the amount of
any sum (whether of principal, interest or otherwise)
received or receivable by such Bank or to require such Bank
to make any payment, in respect of any such Loan, in each
case by or in an amount which such Bank in its sole judgment
shall deem material, then the Borrower to which such Loan
was made shall pay to such Bank on demand such an amount or
amounts as will compensate the Bank for such additional
cost, reduction or payment.
(c) If any Bank shall have determined that the
applicability of any law, rule, regulation, agreement or
guideline adopted after the Closing Date regarding capital
adequacy, or any change after the Closing Date in any such
law, rule, regulation, agreement or guideline (whether such
law, rule, regulation, agreement or guideline has been
adopted) or in the interpretation or administration of any
of the foregoing by any Governmental Authority charged with
the interpretation or administration thereof, or compliance
by any Bank (or any lending office of such Bank) or any
Bank's holding company with any request or directive
regarding capital adequacy (whether or not having the force
of law) of any such Governmental Authority made or issued
after the Closing Date, has or would have the effect of
reducing the rate of return on such Bank's capital or on the
capital of such Bank's holding company, if any, as a
consequence of this Agreement or the Loans made pursuant
hereto to a level below that which such Bank or such Bank's
holding company could have achieved but for such
applicability, adoption, change or compliance (taking into
consideration such Bank's policies and the policies of such
Bank's holding company with respect to capital adequacy) by
an amount deemed by such Bank to be material, then from time
to time the Borrowers shall pay to such Bank such additional
amount or amounts as will compensate such Bank or such
Bank's holding company for any such reduction suffered.
(d) If and on each occasion that a Bank makes a
demand for compensation pursuant to paragraph (a), (b) or
(c) above, or under Section 2.17 (it being understood that a
Bank may be reimbursed for any specific amount under only
one such paragraph or Section) the Borrowers may, upon at
least three Business Days' prior irrevocable written or
telex notice to each of such Bank and the Administrative
Agent, in whole permanently replace the Commitment of such
Bank; provided that such notice must be given not later than
the 90th day following the date of a demand for compensation
made by such Bank; and provided that the Borrowers shall
replace such Commitment with the Commitment of a commercial
bank satisfactory to the Administrative Agent. Such notice
from the Borrowers shall specify an effective date for the
termination of such Bank's Commitment which date shall not
be later than the 180th day after the date such notice is
given. On the effective date of any termination of such
Bank's Commitment pursuant to this clause (d), the Borrowers
shall pay to the Administrative Agent for the account of
such Bank (A) any Commitment Fees on the amount of such
Bank's Commitment so terminated accrued to the date of such
termination, (B) the principal amount of any outstanding
Loans held by such Bank plus accrued interest on such
principal amount to the date of such termination and (C) the
amount or amounts requested by such Bank pursuant to
clause (a), (b) or (c) above or Section 2.17, as applicable.
The Borrowers will remain liable to such terminated Bank for
any loss or expense that such Bank may sustain or incur as a
consequence of such Bank's making any LIBO Rate Loan or any
part thereof or the accrual of any interest on any such Loan
in accordance with the provisions of this Section 2.11(d) as
set forth in Section 2.13. Upon the effective date of
termination of any Bank's Commitment pursuant to this
Section 2.11(d) such Bank shall cease to be a "Bank"
hereunder; provided that no such termination of any such
Bank's Commitment shall affect (i) any liability or
obligation of the Borrowers or any other Bank to such
terminated Bank which accrued on or prior to the date of
such termination or (ii) such terminated Bank's rights
hereunder in respect of any such liability or obligation.
(e) A certificate of a Bank (or Transferee)
setting forth such amount or amounts as shall be necessary
to compensate such Bank (or Transferee) as specified in
paragraph (a), (b) or (c) (and in the case of paragraph (c),
such Bank's holding company) above or Section 2.17, as the
case may be, shall be delivered as soon as practicable to
the Borrowers, and in any event within 90 days of the change
giving rise to such amount or amounts, and shall be
conclusive absent manifest error. The appropriate Borrower
shall pay each Bank the amount shown as due on any such
certificate within 15 days after its receipt of the same.
In preparing such a certificate, each Bank may employ such
assumptions and allocations of costs and expenses as it
shall in good faith deem reasonable. The failure of any
Bank (or Transferee) to give the required 90 day notice
shall excuse the Borrowers from their obligations to pay
additional amounts pursuant to such Sections incurred for
the period that is 90 days or more prior to the date such
notice was required to be given.
(f) Failure on the part of any Bank to demand
compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital
within the 90 days required pursuant to Section 2.11(e)
shall not constitute a waiver of such Bank's rights to
demand compensation for any increased costs or reduction in
amounts received or receivable or reduction in return on
capital for any period after the date that is 90 days prior
to the date of the delivery of demand for compensation. The
protection of this Section 2.11 shall be available to each
Bank regardless of any possible contention of invalidity or
inapplicability of the law, regulation or condition which
shall have occurred or been imposed. No Borrower shall be
required to make any additional payment to any Bank pursuant
to Section 2.11(a) or (b) in respect of any such cost,
reduction or payment that could be avoided by such Bank in
the exercise of reasonable diligence, including a change in
the lending office of such Bank if possible without material
cost to such Bank. Each Bank agrees that it will promptly
notify the Borrowers and the Administrative Agent of any
event of which the responsible account officer shall have
knowledge which would entitle such Bank to any additional
payment pursuant to this Section 2.11. The Borrowers agree
to furnish promptly to the Administrative Agent official
receipts evidencing any payment of any tax.
SECTION 2.12. Change in Legality. (a) Notwith-
standing anything to the contrary herein contained, if after
the Closing Date any change in any law or regulation or in
the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof
shall make it unlawful for any Bank to make or maintain any
LIBO Rate Loan or to give effect to its obligations as
contemplated hereby with respect to any LIBO Rate Loan,
then, by written notice to the Borrowers and to the
Administrative Agent, such Bank may:
(i) declare that LIBO Rate Loans will not
thereafter (for the duration of such unlawfulness or
impracticality) be made by such Bank hereunder,
whereupon the Borrowers shall be prohibited from
requesting LIBO Rate Loans from such Bank hereunder
unless such declaration is subsequently withdrawn; and
(ii) require that all outstanding LIBO Rate Loans
made by it be converted to Reference Rate Loans, in
which event (A) all such LIBO Rate Loans shall be
automatically converted to Reference Rate Loans as of
the end of the applicable Interest Period, unless an
earlier conversion date is legally required, (B) all
payments and prepayments of principal which would
otherwise have been applied to repay the converted LIBO
Rate Loans shall instead be applied to repay the
Reference Rate Loans resulting from the conversion of
such LIBO Rate Loans and (C) the Reference Rate Loans
resulting from the conversion of such LIBO Rate Loans
shall be prepayable only at the times the converted
LIBO Rate Loans would have been prepayable,
notwithstanding the provisions of Section 2.9.
(b) Before giving any notice to the Borrowers and
the Administrative Agent pursuant to this Section 2.12, such
Bank shall designate a different LIBOR Office if such
designation will avoid the need for giving such notice and
will not in the judgment of such Bank, be otherwise
disadvantageous to such Bank. For purposes of
Section 2.12(a), a notice to the Borrowers by any Bank shall
be effective on the date of receipt by the Borrowers.
SECTION 2.13. Indemnity. Each Borrower shall
indemnify each Bank against any funding, redeployment or
similar loss or expense which such Bank may sustain or incur
as a consequence of (a) any event, other than a default by
such Bank in the performance of its obligations hereunder,
which results in (i) such Bank receiving or being deemed to
receive any amount on account of the principal of any LIBO
Rate Loan prior to the end of the Interest Period in effect
therefor (any of the events referred to in this clause (i)
being called a "Breakage Event") or (ii) any Loan to be made
by such Bank not being made after notice of such Loan shall
have been given by such Borrower hereunder or (b) any
default in the making of any payment or prepayment of any
amount required to be made hereunder. In the case of any
Breakage Event, such loss shall include an amount equal to
the excess, as reasonably determined by such Bank, of (i)
its cost of obtaining funds for the Loan which is the
subject of such Breakage Event for the period from the date
of such Breakage Event to the last day of the Interest
Period in effect (or which would have been in effect) for
such Loan over (ii) the amount of interest (as reasonably
determined by such Bank) that would be realized by such Bank
in reemploying the funds so paid, prepaid or converted or
not borrowed, continued or converted by making a LIBO Rate
Loan in such principal amount and with a maturity comparable
to such period. A certificate of any Bank setting forth any
amount or amounts which such Bank is entitled to receive
pursuant to this Section shall be delivered to the Borrowers
and shall be conclusive absent manifest error.
SECTION 2.14. Pro Rata Treatment. Except as
permitted under any of Sections 2.8(b), 2.11, 2.12, 2.13 or
2.17, each borrowing under each type of Loan, each payment
or prepayment of principal of the Loans, each payment of
interest on the Loans, each other reduction of the principal
or interest outstanding under the Loans, however achieved,
including by setoff by any Person, each payment of the
Commitment Fees, each reduction of the Commitments and each
conversion or continuation of Loans shall be allocated pro
rata among the Banks in the proportions that their
respective Commitments bear to the Total Commitment (or, if
such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their
outstanding Loans). Each Bank agrees that in computing such
Bank's portion of any borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each
Bank's percentage of such borrowing to the next higher or
lower whole Dollar amount.
SECTION 2.15. Sharing of Setoffs. Each Bank
agrees that if it shall, through the exercise of a right of
banker's lien, setoff or counterclaim against any Borrower
or pursuant to a secured claim under Section 506 of Title 11
of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by
such Bank under any applicable bankruptcy, insolvency or
other similar law or otherwise, or by any other means obtain
payment (voluntary or involuntary) in respect of any Loan of
any Borrower held by it as a result of which the unpaid
principal portion of the Loans of such Borrower held by it
shall be proportionately less than the unpaid principal
portion of the Loans of such Borrower held by any other Bank
(other than as permitted under any of Sections 2.8(b), 2.11,
2.12, 2.13 or 2.17), it shall be deemed to have
simultaneously purchased from such other Bank at face value,
and shall promptly pay to such other Bank the purchase price
for, a participation in the Loans of such Borrower held by
such other Bank, so that the aggregate unpaid principal
amount of the Loans of such Borrower and participation in
Loans of such Borrower held by each Bank shall be in the
same proportion to the aggregate unpaid principal amount of
all Loans of such Borrower then outstanding as the principal
amount of the Loans of such Borrower held by it prior to
such exercise of banker's lien, setoff or counterclaim was
to the principal amount of all Loans of such Borrower
outstanding prior to such exercise of banker's lien, setoff
or counterclaim or other event; provided, however, that if
any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.15 and the payment giving rise
thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of
such recovery and the purchase price or prices or adjustment
restored without interest. To the fullest extent permitted
by applicable law, each Borrower expressly consents to the
foregoing arrangements and agrees that any Bank holding a
participation in a Loan of either Borrower deemed to have
been so purchased may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any
and all moneys owing by such Borrower hereunder to such Bank
as fully as if such Bank had made a Loan directly to such
Borrower in the amount of such participation.
SECTION 2.16. Payments. (a) Except as otherwise
provided in this Agreement, all payments and prepayments to
be made by either Borrower to the Banks hereunder, whether
on account of Commitment Fees, payment of principal or
interest on the Promissory Notes or other amounts at any
time owing hereunder or under any other Loan Document, shall
be made to the Administrative Agent at its office at 270
Park Avenue, New York, New York, for the account of the
several Banks in immediately available funds. All such
payments shall be made to the Administrative Agent as
aforesaid not later than 10:30 a.m., New York City time, on
the date due; and funds received after that hour shall be
deemed to have been received by the Administrative Agent on
the following Business Day.
(b) As promptly as possible, but no later than
2:00 p.m., New York City time, on the date of each
borrowing, each Bank participating in the Loans made on such
date shall pay to the Administrative Agent such Bank's
Applicable Percentage of such Loan plus, if such payment is
received by the Administrative Agent after 2:00 p.m., New
York City time, on the date of such borrowing, interest at a
rate per annum equal to the rate in effect on such day,
quoted by the Administrative Agent at its office at 270 Park
Avenue, New York, New York, for the overnight "sale" to such
Bank of Federal funds. At the time of, and by virtue of,
such payment, such Bank shall be deemed to have made its
Loan in the amount of such payment. The Administrative
Agent agrees to pay any moneys, including such interest, so
paid to it by the lending Banks promptly, but no later than
3:00 p.m., New York City time, on the date of such
borrowing, to the appropriate Borrower in immediately
available funds.
(c) If any payment of principal, interest,
Commitment Fee or any other amount payable to the Banks
hereunder or under any Promissory Note shall fall due on a
day that is not a Business Day, then (except in the case of
payments of principal of or interest on LIBO Rate Loans, in
which case such payment shall be made on the next preceding
Business Day if the next succeeding Business Day would fall
in the next calendar month) such due date shall be extended
to the next succeeding Business Day, and interest shall be
payable on principal in respect of such extension.
(d) Unless the Administrative Agent shall have
been notified by the Borrowers prior to the date on which
any payment or prepayment is due hereunder (which notice
shall be effective upon receipt) that the Borrowers do not
intend to make such payment or prepayment, the
Administrative Agent may assume that the Borrowers have made
such payment or prepayment when due and the Administrative
Agent may in reliance upon such assumption (but shall not be
required to) make available to each Bank on such date an
amount equal to the portion of such assumed payment or
prepayment such Bank is entitled to hereunder, and, if the
Borrowers have not in fact made such payment or prepayment
to the Administrative Agent, such Bank shall, on demand,
repay to the Administrative Agent the amount made available
to such Bank, together with interest thereon in respect of
each day during the period commencing on the date such
amount was made available to such Bank and ending on (but
excluding) the date such Bank repays such amount to the
Administrative Agent, at a rate per annum equal to the rate,
determined by the Administrative Agent to represent its cost
of overnight or short-term funds (which determination shall
be conclusive absent manifest error).
(e) All payments of the principal of or interest
on the Loans or any other amounts to be paid to any Bank or
the Administrative Agent under this Agreement or any of the
other Loan Documents shall be made in Dollars, without
reduction by reason of any currency exchange expense.
SECTION 2.17. U.S. Taxes. (a) Any and all
payments by any Borrower hereunder shall be made, in
accordance with Section 2.16, 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 imposed by the United
States or any political subdivision thereof, excluding
taxes imposed on the net income of an Agent or any Bank (or
Transferee) and franchise taxes of an Agent or any Bank (or
Transferee), as applicable, as a result of a connection
between the jurisdiction imposing such taxes and such Agent
or such Bank (or Transferee), as applicable, other than a
connection arising solely from such Agent or such Bank (or
Transferee), as applicable, having executed, delivered,
performed its obligations or received a payment under, or
enforced, this Agreement (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Non-Excluded
Taxes"). If any Borrower shall be required by law to deduct
any Non-Excluded Taxes from or in respect of any sum payable
hereunder to the Banks (or any Transferee) or an Agent,
(i) the sum payable shall be increased by the amount
necessary so that after making all required deductions
(including deductions applicable to additional sums payable
under this Section 2.17) such Bank (or Transferee) or an
Agent (as the case may be) shall receive an amount equal to
the sum it would have received had no such deductions been
made, (ii) such Borrower shall make such deductions and
(iii) such Borrower shall pay the full amount deducted to
the relevant taxing authority or other Governmental
Authority in accordance with applicable law; provided,
however, that no Transferee of any Bank shall be entitled to
receive any greater payment under this Section 2.17 than
such Bank would have been entitled to receive with respect
to the rights assigned, participated or otherwise
transferred unless such assignment, participation or
transfer shall have been made at a time when the
circumstances giving rise to such greater payment did not
exist.
(b) In addition, the Borrowers agree to bear and
to pay to the relevant Governmental Authority in accordance
with applicable law any current or future stamp or
documentary taxes or any other similar excise taxes, charges
or similar levies that arise from any payment made hereunder
or from the execution, delivery, registration or enforcement
of, or otherwise with respect to, this Agreement or any
other Loan Document and any property taxes that arise from
the enforcement of this Agreement or any other Loan Document
("Other Taxes").
(c) The Borrowers will indemnify each Bank (or
Transferee) and each Agent for the full amount of Non-
Excluded Taxes and Other Taxes (including Non-Excluded Taxes
or Other Taxes imposed on amounts payable under this
Section 2.17) paid by such Bank (or Transferee) or such
Agent, as the case may be, and any liability (including
penalties, interest and expenses (including reasonable
attorney's fees and expenses)) arising therefrom or with
respect thereto. A certificate as to the amount of such
payment or liability prepared by a Bank or Agent, or the
Administrative Agent on behalf of such Bank or Agent, absent
manifest error, shall be final, conclusive and binding for
all purposes. Such indemnification shall be made within
30 days after the date such Bank (or Transferee) or such
Agent, as the case may be, makes written demand therefor.
(d) Within 30 days after the date of any payment
of Non-Excluded Taxes or Other Taxes by any Borrower to the
relevant Governmental Authority, such Borrower will furnish
to the Administrative Agent, at its address referred to on
the signature page, the original or a certified copy of a
receipt issued by such Governmental Authority evidencing
payment thereof.
(e) At the time it becomes a party to this
Agreement or a Transferee, each Bank (or Transferee) that is
organized under the laws of a jurisdiction outside the
United States shall (in the case of a Transferee, subject to
the immediately succeeding sentence) deliver to the
Borrowers either a valid and currently effective Internal
Revenue Service Form 1001 or Form 4224 or, in the case of a
Bank (or Transferee) claiming exemption from U.S. Federal
withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest", a
Form W-8, or any subsequent version thereof or successors
thereto, (and if such Bank (or Transferee) delivers a
Form W-8, a certificate representing that such Bank (or
Transferee) is not a bank for purposes of Section 881(c) of
the Code, is not a 10-percent shareholder (within the
meaning of Section 871(h)(3)(B) of the Code) of the
Borrowers and is not a controlled foreign corporation
related to the Borrowers (within the meaning of
Section 864(d)(4) of the Code)), properly completed and duly
executed by such Bank (or Transferee) establishing that such
payment is (i) not subject to United States Federal
withholding tax under the Code because such payment is
effectively connected with the conduct by such Bank (or
Transferee) of a trade or business in the United States or
(ii) totally exempt from (or in case of a Transferee,
entitled to a reduced rate of) United States Federal
withholding tax. Notwithstanding any other provision of
this Section 2.17(e), no Transferee shall be required to
deliver any form pursuant to this Section 2.17(e) that such
Transferee is not legally able to deliver. In addition,
each Bank (or Transferee) shall deliver such forms promptly
upon the obsolescence or invalidity of any form previously
delivered, but only, in such case, to the extent such Bank
(or Transferee) is legally able to do so.
(f) Notwithstanding anything to the contrary
contained in this Section 2.17, no Borrower shall be
required to pay any additional amounts to any Bank (or
Transferee) in respect of United States Federal withholding
tax pursuant to paragraph (a) above if the obligation to pay
such additional amounts would not have arisen but for a
failure by such Bank (or Transferee) to comply with the
provisions of paragraph (e) above.
(g) Any Bank (or Transferee) claiming any
additional amounts payable pursuant to this Section 2.17
shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document
requested by the Borrowers or to change the jurisdiction of
its applicable lending office if the making of such a filing
or change would avoid the need for or reduce the amount of
any such additional amounts which may thereafter accrue and
would not, in the sole determination of such Bank, be
otherwise disadvantageous to such Bank (or Transferee).
(h) Without prejudice to the survival of any
other agreement contained herein, the agreements and
obligations contained in this Section 2.17 shall survive the
payment in full of the principal of and interest on all
Loans made hereunder.
(i) Nothing contained in this Section 2.17 shall
require any Bank (or Transferee) or the Administrative Agent
to make available any of its income tax returns (or any
other information that it deems to be confidential or
proprietary).
SECTION 2.18. FTX or Restricted Subsidiary as
Limited Partner. Notwithstanding anything to the contrary
contained in this Agreement or any Promissory Note, with
respect to any direct liabilities of FRP to the Banks under
this Agreement, its Promissory Notes or the other Loan
Documents, FTX and any Restricted Subsidiary solely in its
capacity as a partner of FRP shall be deemed to be limited,
rather than general, partners of FRP. Nothing in this
Section 2.18 shall be deemed in any way to derogate from or
affect FTX's own direct obligations under this Agreement,
its Promissory Note or the other Loan Documents.
ARTICLE III
Representations and Warranties
SECTION 3.1. Representations and Warranties. As
of the Funding Date and each other date upon which such
representations and warranties are required to be made or
deemed made pursuant to Section 6.1(i), (i) FTX represents
and warrants with respect to itself and (ii) FTX and FRP
jointly and severally represent and warrant with respect to
FRP, in each case to each of the Banks, as follows:
(a) Organization, Powers. Each Borrower (i) is
duly organized, validly existing and in good standing
under the laws of the State of Delaware, (ii) has the
requisite power and authority to own its property and
assets and to carry on its business as now conducted
and as proposed to be conducted, and (iii) is qualified
to do business in every jurisdiction where such
qualification is required, except where the failure so
to qualify would not have a material adverse effect on
its condition, financial or otherwise. Each Borrower
has the power to execute, deliver and perform its
obligations under this Agreement and the other Loan
Documents to which it is or is to be a party, to borrow
hereunder and to execute and deliver any Promissory
Notes to be delivered by it. Each Borrower has all
requisite corporate or partnership power, and has all
material governmental licenses, authorizations,
consents and approvals necessary to own its own assets
and carry on its business as now being or as proposed
to be conducted.
(b) Authorization. The execution, delivery and
performance of this Agreement (including, without
limitation, performance of the obligations set forth in
Section 5.1(k)) and the other Loan Documents to which
each Borrower is or is to be, a party and the
borrowings hereunder (i) have been duly authorized by
all requisite corporate or partnership and, if
required, stockholder or partner, action on the part of
each Borrower, as the case may be, and (ii) will not
(A) violate (x) any Governmental Rule or the
certificate or articles of incorporation or limited
partnership or other constitutive documents or the By-
laws, partnership agreement or regulations of such
Person or (y) any provisions of any indenture,
agreement or other instrument to which such Person is a
party, or by which such Person or any of their
respective properties or assets are or may be bound,
(B) be in conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or
both) a default under any indenture, agreement or other
instrument referred to in (ii)(A)(y) above or
(C) result in the creation or imposition of any Lien,
charge or encumbrance of any nature whatsoever upon any
property or assets of such Person, except as
contemplated by the Security Agreements.
(c) Governmental Approvals. Except for those
consents, approvals and registrations listed on
Schedule IV hereto, each of which has been obtained and
is in full force and effect, no registration with or
consent or approval of, or other action by, any
Governmental Authority is or will be required in
connection with the execution, delivery and performance
by either Borrower of this Agreement or any other Loan
Document to which it is, or is to be, a party or the
borrowings hereunder by either Borrower. Other than
routine authorizations, permissions or consents which
are of a minor nature and which are customarily granted
in due course after application or the denial of which
would not materially adversely affect the business,
financial condition or operations of either Borrower,
such Person has all franchises, licenses, certificates,
authorizations, approvals or consents from all
national, state and local governmental and regulatory
authorities required to carry on its business as now
conducted and as proposed to be conducted.
(d) Enforceability. This Agreement and each of
the other Loan Documents to which it is a party
constitutes a legal, valid and binding obligation of
each Borrower, in each case enforceable in accordance
with its respective terms (subject, as to the
enforcement of remedies against such Person, to
applicable bankruptcy, reorganization, insolvency,
moratorium and similar laws affecting creditors' rights
against such Person generally in connection with the
bankruptcy, reorganization or insolvency of such Person
or a moratorium or similar event relating to such
Person).
(e) Financial Statements. FTX has heretofore
furnished to each of the Banks consolidated balance
sheets and statements of operations and changes in
retained earnings and cash flow as of and for the
fiscal years ended December 31, 1993 and 1994, all
audited and certified by Arthur Andersen LLP,
independent public accountants, included in FTX's
Annual Report on Form 10-K for the year ended
December 31, 1994 (the "1994 Form 10-K"), and unaudited
consolidated balance sheets and statements of
operations and cash flow as of and for the fiscal
quarter ended March 31, 1995 included in FTX's
Quarterly Report on Form 10-Q for the quarter ended
March 31, 1995. In addition, FRP has heretofore
furnished to each of the Banks consolidated balance
sheets and statements of operations and cash flow for
FRP as of and for the fiscal years ended December 31,
1993 and 1994, all audited and certified by Arthur
Andersen LLP and unaudited consolidated balance sheets
and statements of operations and cash flow for FRP as
of and for the fiscal quarter ended March 31, 1995.
All such balance sheets and statements of operations
and cash flow present fairly the financial condition
and results of operations of FTX and its Subsidiaries
or of FRP and its Subsidiaries, as applicable, as of
the dates and for the periods indicated. Such
financial statements and the notes thereto disclose all
material liabilities, direct or contingent, of FTX and
its Subsidiaries or of FRP and its Subsidiaries, as
applicable, as of the dates thereof which are required
to be disclosed in the footnotes to financial
statements prepared in accordance with GAAP. The
financial statements referred to in this Section 3.1(e)
have been prepared in accordance with GAAP. There has
been no material adverse change since December 31,
1994, in the businesses, assets, operations, prospects
or condition, financial or otherwise, of (i) FTX,
(ii) FRP, (iii) FTX and its Subsidiaries taken as a
whole or (iv) FRP and its Subsidiaries taken as a
whole.
(f) Litigation; Compliance with Laws; etc.
(i) Except as disclosed in the 1994 Form 10-K and any
subsequent reports filed as of 20 days prior to the
Closing Date with the SEC on Form 10-Q or Form 8-K
which have been delivered to the Banks, there are no
actions, suits or proceedings at law or in equity or by
or before any governmental instrumentality or other
agency or regulatory authority now pending or, to the
knowledge of the Borrowers, threatened against or
affecting the Borrowers or any Subsidiary or the
businesses, assets or rights of the Borrowers or any
Subsidiary (i) which involve this Agreement or any of
the other Loan Documents or any of the transactions
contemplated hereby or thereby or the collateral for
the Loans or (ii) as to which there is a reasonable
possibility of an adverse determination and which, if
adversely determined, could, individually or in the
aggregate, materially impair the ability of FTX or FRP
to conduct its business substantially as now conducted,
or materially and adversely affect the businesses,
assets, operations, prospects or condition, financial
or otherwise, of FTX or FRP, or impair the validity or
enforceability of, or the ability of FTX or FRP to
perform its obligations under, this Agreement or any of
the other Loan Documents to which it is a party.
(ii) Neither the Borrowers nor any Subsidiary is
in violation of any Governmental Rule, or in default
with respect to any judgment, writ, injunction, decree,
rule or regulation of Governmental Authority, where
such violation or default could result in a Material
Adverse Effect.
(g) Title, etc. The Borrowers and the
Subsidiaries have good and valid title to their
respective material properties, assets and revenues
(exclusive of oil, gas and other mineral properties on
which no development or production activities are being
conducted following discovery of commercially
exploitable reserves), free and clear of all Liens
except such Liens as are permitted by Section 5.2(d)
and except for covenants, restrictions, rights,
easements and minor irregularities in title which do
not individually or in the aggregate interfere with the
occupation, use and enjoyment by the respective
Borrower or the respective Subsidiary of such
properties and assets in the normal course of business
as presently conducted or materially impair the value
thereof for use in such business.
(h) Federal Reserve Regulations; Use of Proceeds.
(i) Neither of the Borrowers nor any Subsidiary is
engaged principally, or as one of its important
activities, in the business of extending credit for the
purpose of purchasing or carrying Margin Stock.
(ii) No part of the proceeds of the Loans will be
used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, for any
purpose which entails a violation of, or which is
inconsistent with, the provisions of the Regulations of
the Board, including, without limitation,
Regulations G, U or X thereof.
(iii) Each Borrower will use the proceeds of all
Loans made to it to refinance borrowings by it under
the Existing Credit Agreement and for its ongoing
general corporate purposes and for acquisition
transactions permitted hereunder (including
acquisitions of FRP units).
(iv) As of the Funding Date (A) the collateral
subject to the FTX Security Agreement (1) constitutes
Margin Stock with a current market value (within the
meaning of Regulation U) at least equal to twice the
aggregate amount of credit secured, directly or
indirectly (within the meaning of Regulation U), by
such Margin Stock on such date or (2) constitutes
collateral which is not Margin Stock ("Other
Collateral") with a current market value (within the
meaning of Regulation U) at least equal to twice the
aggregate amount of credit secured, directly or
indirectly (within the meaning of Regulation U), by
such Other Collateral (including, in each case, as
credit secured for such purpose the entire amount of
the Commitments to make Loans to FTX), and (B) there
are no Liens on such Margin Stock or such Other
Collateral, as the case may be (other than those
created by the FTX Security Agreement). As of the date
of each borrowing made by FRP, not more than 25% of the
value of the assets directly or indirectly securing the
Loans and Permitted Secured Swaps of FRP constitutes
Margin Stock.
(i) Taxes. The Borrowers and the Subsidiaries
have filed or caused to be filed all material Federal,
state, local and foreign tax returns which are required
to be filed by them, and have paid or caused to be paid
all taxes shown to be due and payable on such returns
or on any assessments received by any of them, other
than any taxes or assessments the validity of which the
relevant Borrower or Subsidiary is contesting in good
faith by appropriate proceedings, and with respect to
which the relevant Borrower or Subsidiary shall, to the
extent required by GAAP, have set aside on its books
adequate reserves.
(j) Employee Benefit Plans. Each of the
Borrowers and its ERISA Affiliates is in compliance in
all material respects with the applicable provisions of
ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has
occurred or is reasonably expected to occur that, when
taken together with all other such ERISA Events, could
materially and adversely affect the financial condition
and operations of the Borrowers and the ERISA
Affiliates, taken as a whole. The present value of all
benefit liabilities under each Plan, determined on a
plan termination basis (based on those assumptions used
for financial disclosure purposes in accordance with
Statement of Financial Accounting Standards No. 87 of
the Financial Accounting Standards Board ("SFAS 87")
did not, as of the last annual valuation date
applicable thereto, exceed by more than $5,000,000 the
value of the assets of such Plan, and the present value
of all benefit liabilities of all underfunded Plans,
determined on a plan termination basis (based on those
assumptions used for financial disclosure purposes in
accordance with SFAS 87) did not, as of the last annual
valuation dates applicable thereto, exceed by more than
$5,000,000 the value of the assets of all such
underfunded Plans.
(k) Investment Company Act. Neither Borrower nor
any Subsidiary is an "investment company" as defined
in, or subject to regulation under, the Investment
Company Act of 1940, as amended from time to time.
(l) Public Utility Holding Company Act. Neither
Borrower nor any Subsidiary is a "holding company", or
a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as
amended from time to time.
(m) Subsidiaries. Schedule III constitutes a
complete and correct list, as of the Closing Date or
the date of any update thereof required by
Section 5.1(a)(6), of all Restricted Subsidiaries with
at least $1,000,000 in total assets, indicating the
jurisdiction of incorporation or organization of each
corporation or partnership and the percentage of shares
or units owned on such date directly or indirectly by
FTX in each. Each entity shown as a parent company
owns on such date, free and clear of all Liens (other
than the Liens required or permitted by Section
3.1(o)), the percentage of voting shares or partnership
interests outstanding of its Subsidiaries shown on
Schedule III, and all such shares or partnership
interests are validly issued and fully paid.
(n) Environmental Matters. (1) The properties
owned or operated by the Borrowers and their
Subsidiaries and by IMC-Agrico (the "Properties") and
all operations of the Borrowers and their Subsidiaries
and IMC-Agrico are in compliance, and in the last three
years have been in compliance, with all Environmental
Laws and all necessary Environmental Permits have been
obtained and are in effect, except to the extent that
such non-compliance or failure to obtain any necessary
permits, in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect;
(2) there have been no Releases or threatened
Releases at, from, under or proximate to the
Properties or otherwise in connection with the
operations of the Borrowers or their Subsidiaries
or IMC-Agrico, which Releases or threatened
Releases, in the aggregate, could reasonably be
expected to result in a Material Adverse Effect;
(3) neither the Borrowers nor any of their
Subsidiaries nor IMC-Agrico has received any
notice of an Environmental Claim in connection
with the Properties or the operations of the
Borrowers or their Subsidiaries or IMC-Agrico or
with regard to any Person whose liabilities for
environmental matters the Borrowers or their
Subsidiaries or IMC-Agrico has retained or
assumed, in whole or in part, contractually, by
operation of law or otherwise, which, in the
aggregate, could reasonably be expected to result
in a Material Adverse Effect, nor do the Borrowers
or their Subsidiaries have reason to believe that
any such notice will be received or is being
threatened; and
(4) Hazardous Materials have not been
transported from the Properties, nor have
Hazardous Materials been generated, treated,
stored or disposed of at, on or under any of the
Properties in a manner that could give rise to
liability under any Environmental Law, nor have
the Borrowers or their Subsidiaries or IMC-Agrico
retained or assumed any liability, contractually,
by operation of law or otherwise, with respect to
the generation, treatment, storage or disposal of
Hazardous Materials, which transportation,
generation, treatment, storage or disposal, or
retained or assumed liabilities, in the aggregate,
could reasonably be expected to result in a
Material Adverse Effect.
The representations set forth in this Section 3.1(n) with
respect to IMC-Agrico are given to the best knowledge after
due inquiry of the Borrowers and their Subsidiaries (which
shall be deemed to include the actual knowledge of Crescent
Technology, Inc.).
(o) Security Documents. (i) The FTX Security
Agreement is effective to create in favor of the FTX
Collateral Agent, for the ratable benefit of the
parties to the FTX Intercreditor Agreement, a legal,
valid and enforceable security interest in the Shared
Collateral (as defined in the FTX Security Agreement);
the Shared Collateral has been delivered to the FTX
Collateral Agent on or before the Funding Date and the
FTX Security Agreement constitutes a fully perfected
first priority Lien on, and security interests in, all
right, title and interest of the pledgors thereunder in
such Shared Collateral and the proceeds thereof, in
each case prior and superior in right to any other
Person subject to the restriction on conversion of Unit
Equivalents referred to in Section 5.2(d)(viii) and
Section 27 of the FTX Security Agreement.
(ii) The FRP Security Agreement is effective to
create in favor of the FRP Collateral Agent, for the
ratable benefit of the Banks, a legal, valid and
enforceable security interest in the Collateral (as
defined in the FRP Security Agreement) and, when
financing statements in appropriate form are filed in
the offices specified on Schedule VI hereto, the FRP
Security Agreement shall constitute a fully perfected
Lien on, and security interest in, all right, title and
interest of the grantor thereunder in such Collateral
and the proceeds thereof, in each case prior and
superior in right to any other Person, except as
provided in Articles 34, 35 and 36 of the FRP Security
Agreement.
(p) No Material Misstatements. No information,
report (including any exhibit, schedule or other
attachment thereto or other document delivered in
connection therewith), financial statement, exhibit or
schedule prepared or furnished by either Borrower to
the Administrative Agent or any Bank in connection with
this Agreement or any of the other Loan Documents or
included therein or any information provided to
Cravath, Swaine & Moore in connection with the
preparation of the environmental due diligence summary
memorandum referred to in paragraph (m) of Article IV
contained or contains any material misstatement of fact
or omitted or omits to state any material fact
necessary to make the statements therein, taken as a
whole in the light of the circumstances under which
they were made, not misleading.
ARTICLE IV
Conditions to Initial Credit Event
Subject to satisfaction of the conditions to each
Credit Event required by Section 6.1, the Borrowers may not
borrow Loans hereunder until the first date (the "Funding
Date") upon which the following conditions have been
satisfied:
(a) Each Bank shall have received its duly
executed Promissory Notes complying with the provisions
of Section 2.4.
(b) The Administrative Agent and the Documentary
Agent shall have received, on behalf of themselves and
the Banks, a favorable written opinion of (i) the
General Counsel of FTX, substantially to the effect set
forth in Exhibit H, (ii) Davis Polk & Wardwell, counsel
for the Borrowers, substantially to the effect set
forth in Exhibit I and (iii) Liskow & Lewis, special
Louisiana counsel for the Borrowers, substantially to
the effect set forth in Exhibit J, in each case
(A) dated the Funding Date, (B) addressed to the Agents
and the Banks, and (C) covering such other matters
relating to the Restructuring, the Loan Documents and
the transactions contemplated thereby as the
Administrative Agent and the Documentary Agent shall
reasonably request, and the Borrowers hereby instruct
such counsel to deliver such opinions.
(c) All legal matters incident to this Agreement,
the borrowings and extensions of credit hereunder and
the other Loan Documents shall be satisfactory to the
Banks and to Cravath, Swaine & Moore, special counsel
for the Agents.
(d) The Administrative Agent and the Documentary
Agent shall have received (i) a copy of the certificate
of incorporation or partnership certificate (as
applicable), including all amendments thereto, of each
Borrower, certified as of a recent date by the
Secretary of State of the state of its organization,
and a certificate as to the good standing of each
Borrower as of a recent date, from such Secretary of
State; (ii) a certificate of the Secretary or Assistant
Secretary of each Borrower dated the Funding Date and
certifying (A) that attached thereto is a true and
complete copy of the by-laws or partnership agreement
(as applicable) of such Borrower as in effect on the
Funding Date and at all times since a date prior to the
date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy
of resolutions duly adopted by the Board of Directors
of such Borrower (in the case of FRP, the Board of
Directors of its managing general partner) authorizing
the execution, delivery and performance of the Loan
Documents to which such Person is a party and the
borrowings hereunder, and that such resolutions have
not been modified, rescinded or amended and are in full
force and effect, (C) that the certificate of
incorporation and by-laws or partnership certificate
and partnership agreement (as applicable) of such
Borrower have not been amended since the date of the
last amendment thereto shown on the certificate of good
standing furnished pursuant to clause (i) above or the
date of the certificate furnished pursuant to clause
(ii) above, as applicable, and (D) as to the incumbency
and specimen signature of each officer executing any
Loan Document or any other document delivered in
connection herewith on behalf of such Borrower; (iii) a
certificate of another officer as to the incumbency and
specimen signature of the Secretary or Assistant
Secretary executing the certificate pursuant to (ii)
above; and (iv) such other documents as the Banks or
Cravath, Swaine & Moore, special counsel for the
Agents, may reasonably request.
(e) The Administrative Agent and the Documentary
Agent shall have received a certificate, dated the
Funding Date and signed by a Financial Officer of each
Borrower, confirming compliance with the conditions
precedent set forth in paragraphs (i) and (iii) of
Section 6.1.
(f) The Administrative Agent shall have received
all fees and other amounts due and payable on or prior
to the Funding Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrowers
hereunder or under any other Loan Document.
(g) The FTX Security Agreement shall have been
duly executed by the parties thereto and delivered to
the FTX Collateral Agent and shall be in full force and
effect, and the Unit Equivalents (as defined in the FRP
Partnership Agreement) in FRP owned by FTX and required
to be pledged under the FTX Security Agreement shall
have been duly and validly pledged thereunder to the
FTX Collateral Agent for the ratable benefit of the
parties to the FTX Intercreditor Agreement.
(h) The FRP Security Agreement shall have been
duly executed by the parties thereto and shall have
been delivered to the FRP Collateral Agent and shall be
in full force and effect on such date and each document
(including each Uniform Commercial Code financing
statement) required by law or reasonably requested by
the Administrative Agent to be filed, registered or
recorded in order to create in favor of the FRP
Collateral Agent for the benefit of the Banks a valid,
legal and perfected first-priority security interest in
and lien on the Collateral described in such agreement
(subject only to the Liens described in
Section 5.2(d)(viii) of the FRP Security Agreement and
Articles 34, 35 and 36 of the FRP Security Agreement
and Schedule A to the FRP Security Agreement) shall
have been delivered to the Collateral Agent.
(i) The Restructuring shall have been completed
on a generally tax-free basis (subject to exceptions
approved by the Administrative Agent and the
Documentary Agent), including arrangements in
connection with the Restructuring with respect to
existing indebtedness of FTX, FRP, FCX and FI, all on
terms substantially the same as those described in
Schedule XI or otherwise satisfactory to the Required
Banks (including all tax, accounting, corporate and
partnership matters), and the Administrative Agent and
the Documentary Agent shall have received satisfactory
opinions of counsel with respect to the Restructuring,
its tax status and related matters as they shall
reasonably request.
(j) In connection with the Restructuring, all
Debt of FTX shall have been repaid and cancelled (or,
in the case of the Existing Credit Agreement, refunded
by borrowings hereunder) and all Guarantees of Debt by
FTX (other than the Guarantees referred to in
Section 5.2(g)(xi)) shall have been released.
(k) Closing and satisfaction of the conditions to
initial borrowing under a new $200,000,000
Chemical/Chase Bank credit facility for FI and FCX and
the amendment and restatement of the existing
$550,000,000 Chemical/Chase Bank credit facility for FI
shall have occurred substantially simultaneously with
the Funding Date.
(l) All outstanding loans under the Existing
Credit Agreement shall have been repaid in full and the
Existing Credit Agreement and the commitments of the
banks party thereto shall have been terminated.
(m) The Administrative Agent shall have received
an environmental due diligence summary memorandum in
form, scope and substance reasonably satisfactory to
the Banks, from Cravath, Swaine & Moore as to certain
environmental hazards, liabilities or Remedial Action
to which IMC-Agrico, the Borrowers or their
Subsidiaries may be subject.
(n) The Borrowers shall have delivered to the
Administrative Agent statements in conformity with the
requirements of Federal Reserve Form U-1 referred to in
Regulation U.
(o) The Stock Purchase Agreement shall be in full
force and effect in the form as in effect on the
Closing Date or as amended as permitted by
Section 5.2(t).
ARTICLE V
Covenants
SECTION 5.1. Affirmative Covenants of the
Borrowers. Each of the Borrowers covenants and agrees with
each Bank and Agent that from and after the Funding Date and
so long as this Agreement shall remain in effect and until
the Commitments have been terminated and the principal of
and interest on each Loan, all fees and all other expenses
or amounts payable under any Loan Document shall have been
paid in full, that, unless the Required Banks otherwise
provide prior written consent:
(a) Financial Statements, etc. The Borrowers
shall furnish each Bank:
(1) within 95 days after the end of each
fiscal year, a consolidated balance sheet of such
Borrower and its Subsidiaries and of IMC-Agrico as
at the close of such fiscal year and consolidated
statements of operation and changes in retained
earnings or partners' capital and cash flow of it
and its Subsidiaries and of IMC-Agrico for such
year, with the opinion thereon of Arthur Andersen
LLP (Ernst & Young LLP, in the case of IMC-Agrico)
or other independent public accountants of
national standing selected by it or IMC-Agrico, as
applicable, to the effect that such consolidated
financial statements fairly present the financial
condition and results of operations of such
Borrower and IMC-Agrico, as applicable, on a
consolidated basis in accordance with GAAP
consistently applied, except as disclosed in such
auditor's report;
(2) within 50 days after the end of each of
the first three quarters of each of its fiscal
years, a consolidated balance sheet of such
Borrower and its Subsidiaries and of IMC-Agrico as
at the end of such quarter and consolidated
statements of income of it and its Subsidiaries
and of IMC-Agrico, for such quarter and for the
period from the beginning of the fiscal year to
the end of such quarter, certified in the case of
each Borrower by a Financial Officer of FTX as
fairly presenting the financial condition and
results of operations of the Borrowers on a
consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end
audit adjustments;
(3) promptly after their becoming available,
(a) copies of all financial statements, reports
and proxy statements which such Borrower shall
have sent to its stockholders or unitholders
generally, (b) copies of all registration
statements (excluding registration statements
relating to employee benefit plans) and regular
and periodic reports, if any, which it shall have
filed with the SEC, or any governmental agency
substituted therefor, and (c) if requested by any
Bank, copies of each annual report filed with any
Governmental Authority pursuant to ERISA with
respect to each Plan of such Borrower or any of
the Subsidiaries;
(4) promptly upon the occurrence of any
Default or Event of Default, the occurrence of any
default under any other Loan Document, the
commencement of any proceeding regarding the
Borrowers or any of their Subsidiaries or IMC-
Agrico under any Federal or state bankruptcy law,
any other development that has resulted in, or
could reasonably be expected to result in, a
Material Adverse Effect, notice thereof,
describing the same in reasonable detail;
(5) at the time of provision of the financial
statements referred to in clauses (1) and (2)
above, an update of Schedule III to correct, add
or delete any required information; and
(6) from time to time, such further
information regarding the business, affairs and
financial condition of the Borrowers or any
Subsidiary or IMC-Agrico as any Bank may
reasonably request.
At the time the Borrowers furnish financial statements
pursuant to the foregoing clauses (1) and (2), FRP will
also furnish each Bank a certificate signed by its
Treasurer or other authorized Financial Officer setting
forth the calculation of: (a) its current ratio as
determined in accordance with Section 5.2(e), (b) its
EBITDA Ratio as determined in accordance with
Section 5.2(f) and (c) its Debt to Capital Ratio
determined in accordance with Section 5.2(h) and the
Borrowers will furnish a certificate by their
Treasurers or other authorized Financial Officer
certifying that no Default or Event of Default has
occurred, or if such a Default or Event of Default has
occurred, specifying the nature and extent thereof and
any corrective action taken or proposed to be taken
with respect thereto.
(b) Taxes and Claims. The Borrowers shall, and
shall cause each of its Subsidiaries to, pay and
discharge all taxes, assessments and governmental
charges or levies, imposed upon it or upon its income
or profits, or upon any property belonging to it, prior
to the date on which material penalties attach thereto;
provided that neither Borrower nor any Subsidiary shall
be required to pay any such tax, assessment, charge or
levy, the payment of which is being contested in good
faith by proper proceedings and with respect to which
such Borrower or such Subsidiary shall have, to the
extent required by GAAP, set aside on its books
adequate reserves and such contest operates to suspend
collection of the contested obligation, tax, assessment
or charge and enforcement of a Lien.
(c) Maintenance of Existence; Conduct of
Business. Each Borrower shall preserve and maintain
its corporate or partnership existence and all its
rights, privileges and franchises necessary or
desirable in the normal conduct of its business;
provided that nothing herein shall prevent any
transaction permitted by Section 5.2(c).
(d) Compliance with Applicable Laws. Each
Borrower shall, and shall cause each of its
Subsidiaries to, comply with the requirements of all
applicable laws, rules, regulations and orders of any
Governmental Authority, a breach of which would
materially and adversely affect its consolidated
financial condition or business, except where contested
in good faith and by proper proceedings and with
respect to which such Borrower or Subsidiary shall
have, to the extent required by GAAP, set aside on its
books adequate reserves.
(e) Litigation. The Borrowers shall promptly
give to each Bank notice in writing of all litigation
and all proceedings before any Governmental Authority
or arbitration authorities affecting the Borrowers or
any Subsidiary or IMC-Agrico, except those which, if
adversely determined, do not relate to the Loan
Documents and which would not have a material adverse
effect on the business, assets, operations or financial
condition of the Borrowers or IMC-Agrico or the
Borrowers' ability to comply with their obligations
under the Loan Documents.
(f) ERISA. Each Borrower shall, and shall cause
each of its Subsidiaries to, comply in all material
respects with the applicable provisions of ERISA and
the Code and furnish to the Administrative Agent as
soon as possible, and in any event within 30 days after
any Responsible Officer of the Borrowers or any ERISA
Affiliate knows or has reason to know that, any ERISA
Event has occurred that alone or together with any
other ERISA Event could reasonably be expected to
result in liability of the Borrowers in an aggregate
amount exceeding $25,000,000 or requires payment
exceeding $10,000,000 in any year, a statement of a
Financial Officer of such Borrower setting forth
details as to such ERISA Event and the action that such
Borrower proposes to take with respect thereto.
(g) Compliance with Environmental Laws. Each
Borrower shall comply, and cause its Subsidiaries and
all lessees and other Persons occupying the Properties
to comply, in all material respects with all
Environmental Laws and Environmental Permits applicable
to its operations and Properties; obtain and renew all
material Environmental Permits necessary for its
operations and Properties; and conduct any Remedial
Action in accordance with Environmental Laws; provided,
however, that none of the Borrowers or any of their
Subsidiaries shall be required to undertake any
Remedial Action to the extent that its obligation to do
so is being contested in good faith and by proper
proceedings and appropriate reserves are being
maintained with respect to such circumstances.
(h) Preparation of Environmental Reports. If a
default caused by reason of a breach of Section 3.1(n)
or 5.1(g) shall have occurred and be continuing, at the
request of the Required Banks through the
Administrative Agent, the Borrowers shall provide to
Banks within 45 days after such request, at the expense
of the Borrowers, an environmental site assessment
report for the Properties (which are the subject of
such default) prepared by an environmental consulting
firm acceptable to the Administrative Agent, indicating
the presence or absence of Hazardous Materials and the
estimated cost of any compliance or Remedial Action in
connection with such Properties.
(i) Insurance. The Borrowers and each Restricted
Subsidiary shall (i) keep its insurable properties
adequately insured at all times; (ii) maintain such
other insurance, to such extent and against such risks,
including fire, flood and other risks insured against
by extended coverage, as is customary with companies in
the same or similar businesses; (iii) maintain in full
force and effect public liability insurance against
claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use
of any properties owned, occupied or controlled by it
in such amount as it shall reasonably deem necessary;
and (iv) maintain such other insurance as may be
required by law.
(j) Access to Premises and Records. The
Borrowers and each Subsidiary shall maintain financial
records in accordance with GAAP, and, at all reasonable
times and as often as any Bank may reasonably request,
permit representatives of any Bank to have access to
its financial records and its premises and to the
records and premises of any of its Subsidiaries and to
make such excerpts from and copies of such records as
such representatives deem necessary and to discuss its
affairs, finances and accounts with its officers and
its independent certified public accountants or other
parties preparing consolidated or consolidating
statements for it or on its behalf.
(k) Further Assurances. Each Borrower shall, and
shall cause its Subsidiaries to, execute any and all
further documents, financing statements, agreements and
instruments, and take all further actions (including
filing Uniform Commercial Code financing statements),
which may be required under applicable law, or which
the Required Banks, the Administrative Agent or the
Documentary Agent may reasonably request, in order to
effectuate the transactions contemplated by this
Agreement and the other Loan Documents and in order to
grant, preserve, protect and perfect the validity and
first priority of the security interests created by the
Security Agreements. The Borrowers agree to provide
such evidence as the Collateral Agent shall reasonably
request as to the perfection and priority status of
each such security interest and Lien.
(l) Covenants Regarding FRP. FTX shall cause FRP
to perform the covenants relating to FRP set forth in
Sections 5.1 and 5.2.
SECTION 5.2. Negative Covenants of the Borrowers.
Each of the Borrowers covenants and agrees with each Bank
and Agent that, from and after the Funding Date and so long
as this Agreement shall remain in effect and until the
Commitments have been terminated and the principal of and
interest on each Loan, all fees and all other expenses or
amounts payable under any Loan Document have been paid in
full, that, without the prior written consent of the
Required Banks:
(a) Conflicting Agreements. Each Borrower shall
not and shall cause its Restricted Subsidiaries not to
enter into any agreement containing any provision which
would be violated or breached by the performance of
their obligations under any Loan Document or under any
instrument or document delivered or to be delivered by
them hereunder or thereunder or in connection herewith
or therewith, including any agreement with any Person
which would prohibit or restrict (i) in the case of FRP
and the other Restricted Subsidiaries and IMC-Agrico,
the payments of dividends or other distributions or
(ii) the ability of such entities to create Liens on
any of their assets (other than assets which are
subject to Liens permitted pursuant to paragraphs (ii),
(iii), (iv), (vi), (vii) and (viii) of Section 5.2(d)
and extensions and renewals and replacements thereof to
the extent permitted pursuant to Section 5.2(d)(x) and
the Liens permitted by paragraphs (ii) and (v) of
Section 5.2(r)); provided that IMC-Agrico may be
subject to negative pledge, dividend payment and
financial covenant provisions no more restrictive than
those in effect on the Closing Date.
(b) Hedge Transactions. The Borrowers and the
Restricted Subsidiaries will enter into or become
obligated with respect to Hedge Agreements only in the
ordinary course of business to hedge or protect against
actual or reasonably anticipated exposures and not for
speculation.
(c) Consolidation or Merger; Disposition of
Assets and Capital Stock. Each Borrower shall not, and
shall not permit any Restricted Subsidiary or IMC-
Agrico to, merge into or consolidate with any other
Person or permit any other Person to merge into or
consolidate with it, or sell, lease, transfer or
otherwise dispose of (in one transaction or a series of
transactions) all or any substantial part of its assets
(whether now owned or hereafter acquired) or any
capital stock of any Restricted Subsidiary, except for
(i) the investments permitted by Section 5.2(r),
(ii) dispositions of accounts receivable and
dispositions of inventory in the ordinary course of
business, (iii) dispositions of obsolete or worn-out
property, or real estate not used or useful in its
business, (iv) subject to Section 5.2(o) and (p),
dispositions of assets by the Borrowers or a Restricted
Subsidiary to another Restricted Subsidiary or a
Borrower, (v) subject to Section 5.2(l), dispositions
of assets by a Borrower or a Restricted Subsidiary to a
Third Party, (vi) to the extent permitted by
Section 5.2(q), the payment of dividends in cash or
kind by a Borrower or any Restricted Subsidiary, (vii)
subject to Section 2.7(b), sale and leaseback
transactions, (viii) the transactions comprising the
Restructuring and (ix) investments in Permitted
Investments and dispositions thereof; and except that:
(x) the Borrowers or any Restricted
Subsidiary may merge or liquidate any corporation
(other than, in the case of a Restricted
Subsidiary, FTX or FRP) into itself;
(y) any Restricted Subsidiary (other than
FRP) may be merged into any other corporation;
provided that such corporation, immediately
following such merger, shall be deemed a
Restricted Subsidiary; and
(z) subject to Sections 2.7(b) and 5.2(j),
the Borrowers or any Restricted Subsidiary may
sell or otherwise dispose of (including by merger
or consolidation) any assets or securities of any
Subsidiary (other than (A) a 50.1% ownership
interest in FRP on a fully diluted basis pledged
pursuant to the FTX Security Agreement, (B) a
50.1% ownership interest in Main Pass pledged
pursuant to the FRP Security Agreement, (C) the
applicable percentage ownership interest in IMC-
Agrico set forth on Schedule IX hereto pledged
pursuant to the FRP Security Agreement and (D)
non-cash proceeds pledged under the Security
Agreements as required by Section 2.7(b));
provided, however, that in the case of a merger
permitted by clause (x) above, immediately thereafter
and giving effect thereto, such Borrower or, as the
case may be, a Restricted Subsidiary would be the
surviving corporation and, in the case of a merger
permitted by clause (x) or clause (y) above or of any
disposition of assets or securities permitted by
clause (z) above, no Default or Event of Default would,
immediately thereafter and giving effect thereto, have
occurred and be continuing. Each sale or other
disposition permitted by clause (z) above shall be
permitted only if the Borrower or the respective
Restricted Subsidiary shall receive fair consideration
therefor, as determined by the Board of Directors of
the Borrower or of such Restricted Subsidiary, as the
case may be, and certified by its Treasurer or another
of its Financial Officers to the Administrative Agent.
It is understood and agreed that no transaction
pursuant to a Deemed Lease (as in effect on the Closing
Date or as amended from time to time with the approval
of the Administrative Agent) shall be considered a
disposition of assets within the meaning of this
Section 5.2(c).
(d) Liens. Each Borrower shall not, nor shall it
permit any of its Restricted Subsidiaries to, create,
incur, assume, or suffer to exist any Lien upon any of
its respective properties, revenues or assets
(including stock or other securities of any Person,
including any Subsidiary), now owned or hereafter
acquired, except:
(i) required margin deposits on permitted
Hedge Agreements and foreign currency exchange
agreements, surety and appeal bonds and
materialmen's, suppliers', tax and other like
Liens arising in the ordinary course of its or
such Restricted Subsidiary's business securing
obligations which are not overdue or are being
contested in good faith by appropriate proceedings
and as to which adequate reserves have been set
aside on its books to the extent required by GAAP,
Liens arising in connection with workers'
compensation, unemployment insurance and progress
payments under government contracts, and other
Liens incident to the ordinary conduct of its or
such Restricted Subsidiary's business or the
ordinary operation of property or assets and not
incurred in connection with the obtaining of any
Debt or Guarantee;
(ii) Liens on assets or properties not owned
as of the Closing Date by a Borrower or any
Restricted Subsidiary securing only purchase money
Debt of such Borrower or such Restricted
Subsidiary permitted by Section 5.2(g)(vii), which
Liens are limited to the specific property the
purchase of which is financed by such Debt;
(iii) Liens, existing at the time of the
acquisition by a Borrower or any Restricted
Subsidiary of the majority of the capital stock or
all the assets of any other corporation or
existing at the time of the merger of any such
corporation into a Borrower or a Restricted
Subsidiary, on such capital stock or assets so
acquired or on the assets of the corporation so
merged into such Borrower or such Restricted
Subsidiary; provided, however, that such
acquisition or merger (and the discharge of such
Liens referred to in the immediately succeeding
proviso) shall not otherwise result in an Event of
Default or Default; and provided further that all
such Liens shall be discharged within 180 days
after the date of the respective acquisition or
merger;
(iv) Liens in favor of the Administrative
Agent or the Banks or in favor of the FTX
Collateral Agent as provided in the FTX
Intercreditor Agreement and the FTX Security
Agreement, Liens in favor of TCB and the Pel-Tex
Lenders as permitted by the FTX Intercreditor
Agreement, and Liens in favor of the FRP
Collateral Agent as provided in the FRP Security
Agreement, all as contemplated by Section 3.1(o);
(v) Liens listed on Schedule VIII hereto
securing obligations of a Borrower or a Restricted
Subsidiary under Deemed Leases (as in effect on
the Closing Date or as amended from time to time
with the approval of the Administrative Agent);
(vi) Liens (as in effect on the Closing Date)
securing the Pennzoil Obligations on only the
related assets purchased from Pennzoil Company;
(vii) Liens of lessors of property (in such
capacity) leased by a Borrower or a Restricted
Subsidiary pursuant to an Operating Lease or a
permitted Capitalized Lease Obligation, which Lien
in any such case is limited to the property leased
thereunder;
(viii) the reciprocal collateral mortgages and
rights of first refusal granted by FRP on Main
Pass to its joint venture partners, the right of
first offer granted by FRP on IMC-Agrico to IMC,
and the restrictions on conversion of Unit
Equivalents into Depositary Units (as such terms
are defined in the FRP Partnership Agreement) as
in effect on the Closing Date or as modified with
the consent of the Required Banks;
(ix) zoning restrictions, easements, rights-
of-way, restrictions on use of real property and
other similar encumbrances incurred in the
ordinary course of business which, in the
aggregate, are not substantial in amount and do
not materially detract from the value of the
property subject thereto or interfere with the
ordinary conduct of the business of a Borrower or
any of its Subsidiaries; and
(x) extensions, renewals and replacements of
Liens referred to in paragraphs (i), (ii), (iv),
(vii), (viii) and (ix) of this Section 5.2(d);
provided that any such extension, renewal or
replacement Lien shall be limited to the property
or assets covered by the Lien extended, renewed or
replaced and that the obligations secured by any
such extension, renewal or replacement Lien shall
be in an amount not greater than the amount of the
obligations secured by the Lien extended, renewed
or replaced.
(e) Current Ratio. FRP shall not fail to
maintain, as of the last day of each fiscal quarter,
consolidated current assets of FRP (excluding
Nonrestricted Subsidiaries) in an amount at least equal
to the amount of consolidated current liabilities of
FRP (excluding Nonrestricted Subsidiaries). For
purposes hereof, consolidated current assets and
consolidated current liabilities shall be determined in
accordance with GAAP, except that (i) investments in
shares of corporations (other than shares which are,
and which are held as, marketable securities) and
advances to Nonrestricted Subsidiaries and other firms
or companies in which FRP has a material investment,
direct or indirect, or which have a direct or indirect
material investment in FRP, shall not be included in
current assets; (ii) current assets shall be increased
by the available portion of the Commitments which,
under the terms of this Agreement, will, if not sooner
terminated or drawn down by either Borrower, remain
outstanding for at least twelve months following the
time of determination; and (iii) the current portion of
long-term Debt shall not be included in current
liabilities.
(f) EBITDA Ratio. FRP shall not permit its
EBITDA Ratio to be less than 1.25 to 1.00 at the end of
any fiscal quarter.
(g) Debt. Neither Borrower nor any Restricted
Subsidiary shall incur, create, assume or permit to
exist any Debt of any of them except:
(i) the Loans;
(ii) $150,000,000 aggregate principal amount
of FRP's 8-3/4% Senior Subordinated Notes due
2004, but not any extensions, renewals,
replacements or refunding of such Debt;
(iii) Debt secured by the Liens permitted by
Section 5.2(d)(iii); provided that such Debt is
discharged within 180 days of the relevant
acquisition or merger;
(iv) unsecured recourse liabilities (not in
excess of the uncollectible amounts of the
accounts receivable sold) of FRP arising from the
sale of accounts receivable;
(v) unsecured loans and advances between the
Restricted Subsidiaries and to the Restricted
Subsidiaries from FRP;
(vi) unsecured subordinated loans by FTX to
FRP on the terms of Schedule X hereto so long as
no Loans are outstanding to FTX;
(vii) purchase money Debt of FRP secured by
Liens referred to in Section 5.2(d)(ii) not in
excess of the purchase price of the related asset
in each individual case and not in excess of
$25,000,000 principal amount for all such
outstanding purchase money Debt in the aggregate;
(viii) unsecured Debt of FRP with a maturity
less than 90 days pursuant to uncommitted lines of
credit with an outstanding aggregate principal
amount not at any time in excess of $10,000,000;
(ix) subject to Section 2.7(b), additional
Debt (including Guarantees of any Debt of a Third
Person and Capitalized Lease Obligations) of FRP
with an outstanding aggregate principal amount not
at any time in excess of $50,000,000 which shall,
except for Liens of Capitalized Lease Obligations
permitted by Section 5.2(d)(ii) or (vii), be
unsecured;
(x) additional Debt of FRP fully subordinated
to the Loans on terms approved by the
Administrative Agent, the net proceeds of which
shall, to the extent required by Section 2.7(b),
permanently reduce the Commitments and be applied
to repay any outstanding Loans; and
(xi) the Guarantee of the FM Properties
Indebtedness (not in excess of $68,811,000
aggregate principal amount) by FTX pursuant to the
FTX Guaranty Agreement and FTX's own direct non-
principal and interest obligations (including
joint and several liability with FM Properties)
under the FM Credit Agreement and the
documentation evidencing the other FM
Indebtedness.
(h) Debt to Capital Ratio. FRP shall not permit
its Debt to Capital Ratio to exceed 65% at the end of
any fiscal quarter.
(i) Subordinated Debt Payments. The Borrowers
and the Restricted Subsidiaries shall not, directly or
indirectly, make any principal payment on, or
repurchase of, any subordinated debt referred to in
clauses (ii) and (x) of Section 5.2(g) with proceeds of
the Loans.
(j) Ownership of Subsidiaries. FTX shall not at
any time directly or indirectly own shares or units of
voting stock or interests having on a fully diluted
basis less than (x) 50.1% ownership interest in FRP and
(y) such voting power as provides effective control of
the policy and direction of FRP. FRP shall not at any
time directly or indirectly have less than a 50.1%
interest on a fully diluted basis in Main Pass or less
than the applicable ownership percentage on a fully
diluted basis of IMC-Agrico set forth on Schedule IX
hereto. FTX shall own its interests in FRP and Agrico
LP, and FRP shall own its interests in Main Pass and
IMC-Agrico (including its interest in Agrico LP), free
and clear of all Liens, except as contemplated by
Section 3.1(o) and Section 5.2(d)(viii). The Borrowers
shall promptly notify the Administrative Agent in the
event there occurs any significant decrease in such
ownership of FRP by FTX and of Main Pass and IMC-Agrico
by FRP below that indicated in the most recent version
of Schedule III and of any decrease in such voting
control or ownership percentage interest below 50.1% or
the required percentage set forth on Schedule IX
hereto, as applicable, in each case on a fully diluted
basis. The ownership by FTX of equity interests in FRP
shall be direct and not through any intervening entity.
The ownership by (i) FRP of its interests in Main Pass
and the FRP Partner and (ii) by the FRP Partner of its
interests in IMC-Agrico shall each be direct and not
through any intervening entity.
(k) Fiscal Year. Each Borrower shall not change
its fiscal year to end on any date other than
December 31.
(l) Investments in Nonrestricted Subsidiaries and
Persons Not Subsidiaries. The Borrowers and their
Restricted Subsidiaries shall not make or permit to
exist (x) any Guarantee by it or a Restricted
Subsidiary or IMC-Agrico of the Debt of any Person
which is not IMC-Agrico (but in the case of IMC-Agrico,
only to the extent permitted by Section 5.2(r)) or a
Restricted Subsidiary, including Nonrestricted
Subsidiaries, FCX and FI (each such Person being a
"Third Party") in excess of available amounts of Debt
of FRP permitted under Section 5.2(g)(ix), or (y) any
loans or advances to, or purchase any stock, other
securities or evidences of indebtedness of, or permit
to exist any investment (whether by transfer of assets
or otherwise) or acquire any investment whatsoever in
or any other payment for the benefit of, any Third
Parties the aggregate outstanding amount of which under
this clause (y) at any time exceeds by more than
$50,000,000 the largest aggregate amount thereof
outstanding at any time in FTX's preceding fiscal year;
provided that, notwithstanding the provisions of
clauses (x) and (y) above, (i) FTX (but not any
Restricted Subsidiary, including FRP, nor IMC-Agrico)
may Guarantee (or be jointly and severally liable with
FM Properties for) the FM Properties Indebtedness as
permitted by Section 5.2(g)(x) on the terms of the
agreements set forth on Schedule VII hereto and provide
an environmental indemnity pursuant to the FM Credit
Agreement, (ii) the Borrowers and the Restricted
Subsidiaries may make investments as permitted under
Section 5.2(r), (iii) FTX may make term loans of up to
$10,000,000 to FM Properties and (iv) the Borrowers and
the Restricted Subsidiaries may invest in Permitted
Investments all of which shall not be included in the
calculation of such $50,000,000 annual limit.
(m) Federal Reserve Regulations. The Borrowers
will not, and will cause their Subsidiaries not to, use
the proceeds of any Loan in any manner that would
result in a violation of, or be inconsistent with, the
provisions of Regulations G, U or X. The Borrowers
will not, and will cause their Subsidiaries not to,
take any action at any time that would (A) result in a
violation of the substitution and withdrawal
requirements of said Regulations, in the event the same
should become applicable to this Agreement or any Loan
or (B) cause the representation and warranty contained
in Section 3.1(h) at any time to be other than true and
correct. In the event that the Borrowers at any time
believe that there exists a reasonable possibility that
they will become unable to make the representation set
forth in Section 3.1(h)(iv), and alternative methods
for complying the Margin Regulations in connection with
this Agreement are available, the banks and the
Borrowers shall promptly enter into negotiations with a
view to amending this Agreement to provide for such
alternative methods of compliance.
(n) Certain Debt Agreements. FRP shall not,
without the prior written consent thereto of the
Required Banks, amend, supplement or change in any
material manner, any of the terms or provisions of any
agreement, note or other instrument governing or
evidencing its 8-3/4% Senior Subordinated Notes Due
2004 which would shorten the maturity, change the
amortization schedule or increase the cost of such
Debt to FRP.
(o) FRP Transfers. FRP shall not make any
contribution or transfer of any substantial portion of
its assets to any Restricted Subsidiary other than a
Wholly-Owned Restricted Subsidiary all equity in which
shall be pledged pursuant to the FRP Security Agreement
to the FRP Collateral Agent as additional security for
the Loans to FRP.
(p) Transactions with Affiliates. Other than the
transactions constituting the Restructuring, the
Borrowers and their Restricted Subsidiaries shall not
sell or transfer any property or assets to, or purchase
or acquire any property or assets from, or otherwise
engage in any other transactions with, any of its
Affiliates (other than among Wholly-Owned Restricted
Subsidiaries), except that as long as no Default or
Event of Default shall have occurred and be continuing,
the Borrowers or any Restricted Subsidiary may engage
in any of the foregoing transactions (i) in the case of
a transaction between a Borrower or a Restricted
Subsidiary of a Borrower and a non-Wholly-Owned
Restricted Subsidiary, the relevant Borrower has
determined that such transaction is in the best
interests of such Borrower and (ii) in the case of any
other transaction between a Borrower or a Restricted
Subsidiary and an Affiliate which is not a Restricted
Subsidiary, at prices and on terms and conditions not
less favorable to the Borrower or such Restricted
Subsidiary than could be obtained on an arm's-length
basis from unrelated third parties.
(q) Equity Payments. The Borrowers shall not
make an Equity Payment if there is then continuing any
Default or Event of Default (or a Default or Event of
Default would result therefrom or exist after giving
effect thereto).
(r) Covenants Regarding IMC-Agrico. (i) The
Borrowers and their Restricted Subsidiaries shall not
make or permit to exist any loans or advances to, or
purchase any stock, other securities or evidences of
indebtedness of, or permit to exist any investment
whatsoever in or make any Guarantee with respect to any
such loans, advances, purchases, investments or
acquisitions of interest made by any Person with
respect to, or any other payment for the benefit of,
IMC-Agrico the aggregate outstanding amount of which
exceeds by more than $50,000,000 the largest aggregate
amount thereof outstanding at any time in FTX's
preceding fiscal year.
(ii) FRP shall not permit IMC-Agrico to incur Debt
in excess of $225,000,000 at any time outstanding, of
which Debt owing to any Persons other than FRP, any
Restricted Subsidiary of FRP, IMC and any Subsidiary of
IMC ("Third Party Debt")(x) shall not at any time
exceed $110,000,000 and (y) may be secured only by
accounts receivable and inventory of IMC-Agrico;
provided that (A) the $25,000,000 principal amount of
Parish of St. James, Louisiana, 7.7% Solid Waste
Disposal Revenue Bonds, Series 1992 (and any refunding
thereof) may be secured by the assets securing such
Bonds as of the Closing Date and (B) other Third Party
Debt of IMC-Agrico not in excess of $50,000,000
aggregate principal amount may be secured by any other
assets of IMC-Agrico.
(iii) FRP (A) shall not permit the FRP Partner to
agree, without the prior written consent of the
Required Banks, (x) to amend Section 6.04(a), (b) or
(d) or Section 6.07 of the IMC-Agrico Partnership
Agreement or any defined term included in either such
Section or (y) to enter into any agreement which
conflicts with either Section which would in the case
of either (x) or (y) dilute the control of FRP Partner
or narrow the scope of the decisions subject to vote or
approval by FRP Partner, (B) shall not consent to any
material change in the nature of business conducted by
IMC-Agrico, (C) shall notify the Administrative Agent
of any proposed amendment to any of the IMC-Agrico
Partnership Agreement or any other material agreement
relating to IMC-Agrico and shall provide a copy of any
such proposed amendment to the Administrative Agent and
(D) shall not, and shall not permit its Subsidiaries
to, in each case without the prior written consent of
the Required Banks, agree to amend any such agreement
if, in the opinion of the Administrative Agent, such
amendment could reasonably be expected to result in a
Material Adverse Effect.
(iv) Neither FTX nor FRP shall permit its
accounting for IMC-Agrico to be other than as a
proportional consolidating interest unless the
Borrowers and the Required Banks have agreed upon
mutually acceptable amendments to the financial
covenants herein.
(v) FTX and FRP shall, to the full extent of
their direct or indirect rights and approvals under the
IMC-Agrico Partnership Agreement, their direct or
indirect membership on the Policy Committee for IMC-
Agrico and otherwise pursuant to their ownership
interests in IMC-Agrico and IMC-Agrico MP, use their
best efforts to cause IMC-Agrico to comply (and shall
not approve or consent to any non-compliance by IMC-
Agrico) with the provisions of Sections 5.1(b), 5.1(c),
5.1(d), 5.1(g), 5.1(i), 5.1(j), 5.2(a), 5.2(d) (with
the liens securing third-party Debt of IMC-Agrico
pursuant to Section 5.2(r)(ii)(y) permitted and
excluding clauses (ii), (iv), (v), (vi) and (viii) from
Section 5.2(d) as applied to IMC-Agrico pursuant to
this Section 5.2(r)(v)) and 5.2(p) as if IMC-Agrico
were a Restricted Subsidiary; provided that, subject to
Section 7.1(g), (h), (i), (j) and (k), FRP shall not be
in Default under this Section 5.2(r)(v) if IMC causes
IMC-Agrico to fail to comply with such Sections and FRP
has not approved or consented to such non-compliance.
(s) Scope of FRP's Business. FRP shall not
materially alter the nature of the business and
activities in which it is engaged as of the Closing
Date.
(t) Covenants Relating to RTZ Transaction.
Without the prior written consent of the Required
Banks, FTX shall not, directly or indirectly, (i) enter
into any amendment or modification of any of the Stock
Purchase Agreement which would impair the ability of
the Borrowers or the Restricted Subsidiaries to perform
all of their respective obligations under the Loan
Documents, (ii) consent to any assignment by RTZ, RTZ
Indonesia or RTZ America of the Stock Purchase
Agreement or their respective obligations thereunder or
(iii) waive any material default by RTZ, RTZ Indonesia
or RTZ America. Subject to the foregoing and the other
terms of the Loan Documents, FTX may enter into and
perform its obligations under the Stock Purchase
Agreement.
ARTICLE VI
Conditions to Credit Events
SECTION 6.1. Conditions Precedent to Each Credit
Event. Each Credit Event shall be subject to the following
conditions precedent:
(i) the representations and warranties on the part
of FTX and FRP contained in the Loan Documents shall be
true and correct in all material respects at and as of
the date of such Credit Event as though made on and as
of such date;
(ii) the Administrative Agent shall have received a
notice of such borrowing as required by Section 2.3;
(iii) no Event of Default shall have occurred and be
continuing on the date of such Credit Event or would
result from such Credit Event;
(iv) the Loans to be made by the Banks on such
date, and the use of the proceeds thereof and the
security arrangements contemplated hereby shall not
result in a violation of Regulation U, Regulation G or
Regulation X, as in effect on the date of such
borrowing. If required by Regulation U as a result of
such use of proceeds, FTX shall have delivered to the
Bank a statement in conformity with the requirements of
Federal Reserve Form U-1 referred to in Regulation U.
(v) there shall have been no amendments to the
Certificate of Incorporation or the Certificate of
Limited Partnership, as applicable, or to the By-laws
or Partnership Agreement, as applicable, of FTX or FRP
since the date of the Certificates furnished by the
Borrowers on the Funding Date, other than amendments,
if any, copies of which have been furnished to the
Administrative Agent; and
(vi) there shall be no proceeding for the
dissolution or liquidation of FTX or FRP or any
proceeding to revoke the Certificate of Incorporation
of FTX or to rescind the partnership agreement of FRP
or its respective corporate or partnership existence,
which is pending or, to the knowledge of the Borrowers,
threatened against or affecting FTX or FRP.
SECTION 6.2. Representations and Warranties with
Respect to Credit Events. Each Credit Event shall be deemed
a representation and warranty by the Borrowers that the
conditions precedent to such Credit Event, unless otherwise
waived in accordance herewith, shall have been satisfied.
ARTICLE VII
Events of Default
SECTION 7.1. Events of Default. If any of the
following acts or occurrences (an "Event of Default") shall
occur and be continuing:
(a) default for three or more days in the payment
when due of any principal of any Loan; or
(b) default for five or more days in the payment
when due of any interest on any Loan, or of any other
amount payable under the Loan Documents; or
(c) any representation or warranty made or deemed
made in or in connection with any Loan Document or in
any certificate, letter or other writing or instrument
furnished or delivered to the Banks or the Agents
pursuant to any Loan Document shall prove to have been
incorrect in any material respect when made or
effective or reaffirmed and repeated, as the case may
be; or
(d) default by FTX or FRP in the due observance or
performance of any covenant, condition or agreement in
Section 5.1(a)(4) with respect to notices of Defaults
or Events of Default, 5.1(c) or 5.1(k) of this
Agreement, other than the covenant to preserve and
maintain all of such Person's rights, privileges and
franchises desirable in the normal conduct of its
business; or
(e) default by the Borrowers or any Restricted
Subsidiary in the due observance or performance of any
covenant, condition or agreement in Section 5.2 of this
Agreement other than Section 5.2(k); or
(f) default by the Borrowers or any Restricted
Subsidiary in the due observance or performance of any
other covenant, condition or agreement in the Loan
Documents which shall remain unremedied for 30 days
after written notice thereof shall have been given to
such Borrower by the Administrative Agent or any Bank;
or
(g) either Borrower or any Restricted Subsidiary
or IMC-Agrico shall (i) voluntarily commence any
proceeding or file any petition seeking relief under
Title 11 of the United States Code, as now constituted
or hereafter amended, or any other Federal or state
bankruptcy, insolvency, liquidation or similar law,
(ii) consent to the institution of, or fail to
contravene in a timely and appropriate manner, any
proceeding or the filing of any petition described in
clause (h) below, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian,
sequestrator or similar official for such Borrower or
such Restricted Subsidiary or IMC-Agrico or for a
substantial part of its property or assets, (iv) file
an answer admitting the material allegations of a
petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of
creditors, (vi) become unable, admit in writing its
inability or fail generally to pay its debt as they
become due or (vii) take any action for the purpose of
effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced
or an involuntary petition shall be filed in a court of
competent jurisdiction seeking (i) relief in respect of
either Borrower or any Restricted Subsidiary or IMC-
Agrico, or of a substantial part of the property or
assets of either Borrower or any Restricted Subsidiary
or IMC-Agrico, under Title 11 of the United States
Code, as now constituted or hereafter amended, or any
other Federal or state bankruptcy, insolvency,
receivership or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator or similar
official for either Borrower or any Restricted
Subsidiary or IMC-Agrico or for a substantial part of
the property of either Borrower or any Restricted
Subsidiary or IMC-Agrico or (iii) the winding-up or
liquidation of a Borrower or any Restricted Subsidiary
or IMC-Agrico; and such proceeding or petition shall
continue undismissed for 60 days, or an order or decree
approving or ordering any of the foregoing shall
continue unstayed and in effect for 30 days; or
(i) default shall be made with respect to (x) the
Pennzoil Obligations or (y) Hedge Agreements or (z) any
Debt of either Borrower or any Restricted Subsidiary or
IMC-Agrico if the effect of any such default shall be
to accelerate, or to permit the holder or obligee of
any such obligations or Debt (or any trustee on behalf
of such holder or obligee) to accelerate (with or
without notice or lapse of time or both), the maturity
of such Debt, the payment of any net termination value
in respect of Hedge Agreements and/or the payment of
the Pennzoil Obligations, as applicable, in an
aggregate amount in excess of $10,000,000; or any
payment, regardless of amount, of (A) net termination
value on any such obligation in respect of Hedge
Agreements, (B) any deferred purchase amount on the
Pennzoil Obligations and/or (C) any Debt of either
Borrower or a Restricted Subsidiary or of IMC-Agrico,
as applicable, in an aggregate principal amount (or in
the case of a Hedge Agreement, net termination value)
in excess of $10,000,000, shall not be paid when due,
whether at maturity, by acceleration or otherwise
(after giving effect to any period of grace specified
in the instrument evidencing or governing such Debt or
other obligation); or
(j) an ERISA Event shall have occurred with
respect to any Plan or Multi-Employer Plan that, when
taken together with all other ERISA Events, reasonably
could be expected to result in liability of either
Borrower and/or any Restricted Subsidiary and the
Borrowers' ERISA Affiliates in an aggregate amount
exceeding $25,000,000 or requires payments exceeding
$10,000,000 in any year; or
(k) one or more judgments for the payment of money
in an aggregate amount in excess of $10,000,000 shall
be rendered by a court or other tribunal against either
Borrower or any Restricted Subsidiary or IMC-Agrico and
shall remain undischarged for a period of
45 consecutive days during which execution of such
judgment shall not have been effectively stayed; or any
action shall be legally taken by a judgment creditor to
levy upon assets or properties of either Borrower or
any Restricted Subsidiary to enforce any such judgment;
or
(l) any security interest purported to be created
by either Security Agreement shall cease to be, or
shall be asserted by the Borrowers or any of their
Affiliates not to be, a valid, perfected, first
priority security interest in the securities, assets or
properties covered thereby, except to the extent that
any such loss of perfection or priority results from
the failure of the FTX Collateral Agent or the FRP
Collateral Agent to maintain possession of certificates
representing securities pledged under the Security
Agreements to the extent that such pledged securities
are certificated securities; or
(m) there shall have occurred a Change in Control;
then, and in any such event (other than an event with
respect to either Borrower described in paragraph (g)
or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent
may, and at the request of the Required Banks shall, by
written, telecopied, telex or telegraphic notice to the
Borrowers, take one or more of the following actions at
the same or different times: (i) declare the Total
Commitment to be terminated, whereupon the Total
Commitment shall forthwith terminate; (ii) declare the
Loans and all other sums then owing by the Borrowers
under the Loan Documents to be forthwith due and
payable, whereupon all the principal of the Loans so
declared to be due and payable, together with accrued
interest thereon and any unpaid accrued fees and all
other liabilities of the Borrowers accrued hereunder
and under any other Loan Document, shall become and be
immediately due and payable without presentment,
demand, protest or other notice of any kind, all of
which are hereby expressly waived by each Borrower,
anything contained herein or in any Promissory Note to
the contrary notwithstanding or (iii) exercise any or
all the remedies then available under the Security
Agreements; provided, however, that upon the occurrence
of any event described in paragraph (g) or (h) of this
Section 7.1 as to which a Borrower is the entity
involved, the Commitments will forthwith terminate and
all sums then owing by the Borrowers to the Banks upon
the Promissory Notes or otherwise hereunder shall,
without any declaration or other action by any Bank or
Agent hereunder, be immediately due and payable and the
Total Commitment hereunder shall be immediately
terminated without presentment, demand, protest or
other notice of any kind, all of which are expressly
waived by each Borrower, anything contained herein or
in any Promissory Note or other Loan Document to the
contrary notwithstanding. Promptly following the
making of any such declaration, the Administrative
Agent shall give notice thereof to the Borrowers but
failure to do so shall not impair the effect of such
declaration.
ARTICLE VIII
The Agents
SECTION 8.1. The Agents. (a) For convenience of
administration and to expedite the transactions contemplated
by this Agreement, Chemical is hereby appointed as
Administrative Agent, FTX Collateral Agent and FRP
Collateral Agent for the Banks under this Agreement and the
Security Agreements and Chase is hereby appointed as the
Documentary Agent for the Banks under this Agreement. None
of the Agents shall have any duties or responsibilities with
respect hereto except those expressly set forth herein or in
the other Loan Documents. Each Bank, and each subsequent
holder of any Promissory Note by its acceptance thereof,
hereby irrevocably appoints and expressly authorizes the
Agents, without hereby limiting any implied authority, to
take such action as the Agents may deem appropriate on its
behalf and to exercise such powers under this Agreement as
are specifically delegated to such Person by the terms
hereof, together with such powers as are reasonably
incidental thereto. The Administrative Agent is hereby
expressly authorized by the Banks, without hereby limiting
any implied authority, (a) to receive on behalf of the Banks
all payments of principal of and interest on the Loans and
all other amounts due to the Banks hereunder, and promptly
to distribute to each Bank its proper share of each payment
so received; (b) to give notice on behalf of the Banks to
the Borrowers of any Event of Default specified in this
Agreement of which the Administrative Agent has actual
knowledge acquired in connection with its agency hereunder
or as directed by the Required Banks; and (c) to distribute
to each Bank copies of all notices, financial statements and
other materials delivered by the Borrowers pursuant to this
Agreement as received by the Administrative Agent. Without
limiting the generality of the foregoing, the Collateral
Agents are hereby expressly authorized to execute any and
all documents (including releases) with respect to the
collateral under the Security Agreements and the rights of
the secured parties with respect thereto, as contemplated by
and in accordance with the provisions of this Agreement and
the Security Agreements. Each of the Agent and the
Collateral Agents may exercise any of its duties hereunder
by or through their respective agents, officers or
employees. In addition, each Bank hereby irrevocably
authorizes and directs the Collateral Agents to enter, on
behalf of each of them, into the FTX Intercreditor Agreement
(in the case of the FTX Collateral Agent) and the Security
Agreements as contemplated pursuant to this Agreement.
(b) None of the Agents or any of their respective
directors, officers, agents or employees shall be liable as
such for any action taken or omitted to be taken by any of
them except for its or his own gross negligence or wilful
misconduct, or be responsible for any statement, warranty or
representation herein or the contents of any document
delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance
or observance by the Borrowers or any other party of any of
the terms, conditions, covenants or agreements contained in
any Loan Document. The Agents shall not be responsible to
the Banks or the holders of the Notes for the due execution,
genuineness, validity, enforceability or effectiveness of
this Agreement, the Notes or any other Loan Documents or
other instruments or agreements. The Administrative Agent
may deem and treat the payee of any Promissory Note as the
owner thereof for all purposes hereof until it shall have
received from the payee of such Promissory Note notice,
given as provided herein, of the transfer thereof in
compliance with Section 9.3. The Agents shall in all cases
be fully protected in acting, or refraining from acting, in
accordance with written instructions signed by the Required
Banks and, except as otherwise specifically provided herein,
such instructions and any action or inaction pursuant
thereto shall be binding on all the Banks and each
subsequent holder of any Promissory Note. Each Agent shall,
in the absence of knowledge to the contrary, be entitled to
rely on any instrument or document believed by it in good
faith to be genuine and correct and to have been signed or
sent by the proper Person or Persons. None of the Agents
nor any of their respective directors, officers, employees
or agents shall have any responsibility to the Borrowers or
any other party on account of the failure of or delay in
performance or breach by any Bank of any of its obligations
hereunder or to any Bank on account of the failure of or
delay in performance or breach by any other Bank or the
Borrowers or any other party of any of their respective
obligations hereunder or under any other Loan Document or in
connection herewith or therewith. Each of the Agents may
execute any and all duties hereunder by or through agents or
employees and shall be entitled to rely upon the advice of
legal counsel selected by it with respect to all matters
arising hereunder and shall not be liable for any action
taken or suffered in good faith by it in accordance with the
advice of such counsel. The Banks hereby acknowledge that
none of the Agents shall be under any duty to take any
discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be
requested in writing to do so by the Required Banks.
(c) To the extent that any Agent shall not be
reimbursed by the Borrowers for any costs, liabilities or
expenses incurred in such capacity, each Bank agrees (i) to
reimburse the Agents, on demand (in the amount of its
Applicable Percentage hereunder) of any expenses incurred
for the benefit of the Banks by the Agents, including
counsel fees and compensation of agents and employees paid
for services rendered on behalf of the Banks and (ii) to
indemnify and hold harmless each Agent and any of its
directors, officers, employees or agents, on demand, in the
amount of such Applicable Percentage, from and against any
and all liabilities, taxes, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against it in its
capacity as Agent or any of them in any way relating to or
arising out of this Agreement or any other Loan Document or
any action taken or omitted by it or any of them under this
Agreement or any other Loan Document; provided, however,
that no Bank shall be liable to an Agent for any portion of
such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or wilful misconduct of
such Agent or of its directors, officers, employees or
agents.
(d) With respect to the Loans made by it
hereunder and the Promissory Notes issued to it, each Agent
in its individual capacity and not as Agent shall have the
same rights and powers as any other Bank and may exercise
the same as though it were not an Agent, and the Agents and
their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrowers
or any Subsidiary or other Affiliate thereof as if it were
not an Agent.
(e) Subject to the appointment and acceptance of
a successor Agent as provided below, any Agent may resign at
any time by giving written notice thereof to the Banks and
the Borrowers. Upon any such resignation, the Required
Banks shall have the right to appoint, and the Borrowers
shall have the right to approve (such approval not to be
unreasonably withheld or delayed) a successor Administrative
Agent, Collateral Agent or Documentary Agent, as the case
may be. If no successor Agent, Collateral Agent or
Documentary Agent, as the case may be, shall have been so
appointed and approved and shall have accepted such
appointment, within 30 days after the retiring Agent's
giving of notice of resignation, then the retiring Person
may, on behalf of the Banks, appoint a successor
Administrative Agent, Collateral Agent or Documentary Agent,
as the case may be, which shall be a Bank with an office in
New York, New York, having a combined capital and surplus of
at least $500,000,000 or an Affiliate of any such Bank.
Upon the acceptance of any appointment as Administrative
Agent, Collateral Agent or Documentary Agent hereunder by a
successor Administrative Agent, Collateral Agent or
Documentary Agent, as the case may be, such successor
Administrative Agent, Collateral Agent or Documentary Agent
shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall from and after such date be
discharged from its duties and obligations hereunder. After
any such retiring Agent's resignation hereunder as
Administrative Agent, Collateral Agent or Documentary Agent,
as applicable, the provisions of this Article VIII and
Section 9.4 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was acting as
the Administrative Agent, Collateral Agent or Documentary
Agent, as applicable.
(f) The Administrative Agent and the Documentary
Agent shall be responsible for supervising the preparation,
execution and delivery of this Agreement and the other
agreements and instruments contemplated hereby, any
amendment or modification thereto and the closing of the
transactions contemplated hereby and thereby. In addition,
the Administrative Agent shall assist each Collateral Agent
in the performance of its duties as may be reasonably
requested by such Collateral Agent from time to time.
(g) The obligations of the Administrative Agent,
each Collateral Agent and the Documentary Agent shall be
separate and several and neither of them shall be
responsible or liable for the acts or omissions of the
other, except, to the extent that any such Agent serves in
more than one agent capacity, such Agent shall be
responsible for the acts and omissions relating to each such
agency function.
(h) Without the prior written consent of the
Required Banks, the Administrative Agent and the FTX
Collateral Agent will not consent to any modification,
supplement or waiver of the FTX Intercreditor Agreement or,
except to the extent required by the FTX Intercreditor
Agreement, the FTX Security Agreement and the FRP Collateral
Agent will not consent to any modification, supplement or
waiver of the FRP Security Agreement.
(i) Each Bank acknowledges that it has,
independently and without reliance upon the Agents or any
other Bank and based on such documents and information as it
has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without
reliance upon the Agents or any other Bank and based on such
documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement or any
other Loan Document, any related agreement or any document
furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.1. Notices. Notices and other
communications provided for herein shall be in writing and
shall be delivered by hand or overnight or same day courier
service or mailed or sent by telex, telecopy, graphic
scanning or other telegraphic communications equipment of
the sending party to the appropriate party's address set
forth on the signature pages hereof; provided that notices
by or to FRP may be given by or to FTX as its general
partner, and notices stated to be given by or to the
"Borrowers" may be given by or to FTX on behalf of both
Borrowers. All notices and other communications given to
any party hereto in accordance with the provisions of this
Agreement shall be deemed to have been given on the date of
receipt if hand delivered or delivered by any telecopy,
telegraphic or telex communications equipment or three days
after being sent by registered or certified mail, postage
prepaid, return receipt requested, in each case addressed to
such party as provided in this Section 9.1 or in accordance
with the latest unrevoked direction from such party.
SECTION 9.2. Survival of Agreement. All
covenants, agreements, representations and warranties made
by the Borrowers herein and in the certificates or other
instruments prepared or delivered in connection with this
Agreement or any other Loan Document shall be considered to
have been relied upon by the Banks and the Agents and shall
survive the making by the Banks of the Loans and the
execution and delivery to the Banks of the Promissory Notes
evidencing such Loans regardless of any investigation made
by the Banks or on their behalf, and shall continue in full
force and effect as long as the principal of or any accrued
interest on any Note, any Commitment Fee or any other fee or
amount payable under the Loan Documents is outstanding and
unpaid and so long as the Commitments have not been
terminated.
SECTION 9.3. Successors and Assigns;
Participation; Purchasing Banks. (a) This Agreement shall
be binding upon and inure to the benefit of FTX, FRP, the
Banks, the Agents, all future holders of the Promissory
Notes, and their respective successors and assigns, except
that neither FTX nor FRP may assign, delegate or transfer
any of its rights or obligations under this Agreement
without the prior written consent of each Bank. Any Bank
may at any time pledge or assign all or any portion of its
rights under this Agreement and the Promissory Notes issued
to it to a Federal Reserve Bank to secure extensions of
credit by such Federal Reserve Bank to such Bank; provided
that no such pledge or assignment shall release a Bank from
any of its obligations hereunder or substitute any such
Federal Reserve Bank for such Bank as a party hereto.
(b) Any Bank may, in accordance with applicable
law, at any time sell to one or more banks or other entities
("Participants") participating interests in all or a portion
of any Loan owing to such Bank, any Promissory Note held by
such Bank, any Commitment of such Bank or any other interest
of such Bank hereunder. In the event of any such sale by a
Bank of participating interests to a Participant, such
Bank's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Bank shall
remain solely responsible for the performance thereof, such
Bank shall remain the holder of any such Promissory Note for
all purposes under this Agreement and the Borrowers and the
Agents shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations
under this Agreement. The Borrowers agree that if amounts
outstanding under this Agreement and the Promissory Notes
are due and unpaid, or shall have been declared due or shall
have become due and payable upon the occurrence of an Event
of Default, each Participant shall be deemed to have the
right of setoff in respect of its participating interest in
amounts owing under this Agreement and any Promissory Note
to the same extent as if the amount of its participating
interest were owing directly to it as a Bank under this
Agreement or any Promissory Note; provided that such right
of setoff shall be subject to the obligation of such
Participant to share with the Banks, and the Banks agree to
share with such Participant, as provided in Section 2.15.
The Borrowers also agree that each Participant shall be
entitled to the benefits of Sections 2.11, 2.12, 2.13, 2.15,
2.17 and 9.5 with respect to its participation in the
Commitments and the Loans outstanding from time to time as
if it were a Bank; provided that no Participant shall be
entitled to receive any greater payment pursuant to such
Sections than the transferor Bank would have been entitled
to receive in respect of the amount of the participation
transferred by such transferor Bank to such Participant
unless such participation shall have been made at a time
when the circumstances giving rise to such greater payment
did not exist; and provided that the voting rights of any
Participant would be limited to amendments, modifications or
waivers decreasing any fees payable hereunder or the amount
of principal of or the rate at which interest is payable on
the Loans, extending any scheduled principal payment date or
date fixed for the payment of interest on the Loans,
changing or extending the Commitments or release of all or
substantially all the collateral for the Loans.
(c) Any Bank may, in accordance with applicable
law and subject to Section 9.3(h), at any time assign by
novation all or any part of its rights and obligations under
this Agreement (including all or a portion of its Commitment
and the Loans at the time owing to it and the Promissory
Notes held by it) (I) to any Bank or any Affiliate thereof,
without the Borrowers' consent, or (II) to one or more
additional banks or financial institutions (any such entity
referred to in clause (I) or (II) being a "Purchasing Bank")
with the consent of the Administrative Agent and the
Borrowers, such consent not to be unreasonably withheld (it
being understood that the Borrowers may withhold their
consent to a Purchasing Bank (i) which is not a commercial
bank or savings and loan institution or (ii) which would, as
of the effective date of such assignment, be entitled to
claim compensation under Section 2.11 which the transferor
Bank would not be entitled to claim as of such date),
pursuant to a Commitment Transfer Supplement in the form of
Exhibit D, executed by such Purchasing Bank and such
transferor Bank (and, in the case of a Purchasing Bank that
is not then a Bank or an Affiliate thereof, by the Borrowers
and the Administrative Agent), and delivered for its
recording in the Register to the Administrative Agent,
together with the Promissory Notes subject to such
assignment, the registration and processing fee required by
Section 9.3(e) and an Administrative Questionnaire for the
Purchasing Bank if it is not already a Bank. Assignments
shall be by novation only and a proportionate interest in
the Loans and Commitments to both FRP and FTX (and the
related Promissory Notes) must be assigned. Upon such
execution, delivery and recording (and, if required, consent
of the Borrowers and the Administrative Agent), from and
after the Transfer Effective Date determined pursuant to
such Commitment Transfer Supplement (which shall be at least
five days after the execution and delivery thereof), (x) the
Purchasing Bank thereunder shall (if not already a party
hereto) be a party hereto and have the rights and
obligations of a Bank hereunder with a Commitment as set
forth in such Commitment Transfer Supplement, and (y) the
transferor Bank thereunder shall, to the extent assigned by
such Commitment Transfer Supplement, be released from its
obligations under this Agreement (and, in the case of a
Commitment Transfer Supplement covering all or the remaining
portion of a transferor Bank's rights and obligations under
this Agreement, such transferor Bank shall cease to be a
party hereto). Such Commitment Transfer Supplement shall be
deemed to amend this Agreement (including Schedule II
hereto) to the extent, and only to the extent, necessary to
reflect the addition of such Purchasing Bank (if not already
a party hereto) and the resulting adjustment of Applicable
Percentages arising from the purchase by such Purchasing
Bank of all or a portion of the rights and obligations of
such transferor Bank under this Agreement and the Promissory
Notes. On or prior to the Transfer Effective Date
determined pursuant to such Commitment Transfer Supplement,
each Borrower, at its own expense, shall execute and deliver
to the Administrative Agent in exchange for the surrendered
Promissory Note a new Promissory Note to the order of such
Purchasing Bank in an amount equal to the Commitment assumed
by it pursuant to such Commitment Transfer Supplement (in
the case of FTX, such Purchasing Bank's Applicable
Percentage of the lesser of (A) $75,000,000 and (B) the
portion of the then effective Total Commitment which may be
used for borrowings by FTX) and, if the transferor Bank has
retained a Commitment hereunder, a new Promissory Note to
the order of the transferor Bank in an amount equal to the
Commitment retained by it hereunder (in the case of FTX,
such transferor Bank's Applicable Percentage of the lesser
of (X) $75,000,000 and (Y) the portion of the then effective
Total Commitment which may be used for borrowings by FTX).
Such new Promissory Notes shall be dated the Closing Date
and shall otherwise be in the form of the Promissory Notes
replaced thereby. The Promissory Notes surrendered by the
transferor Bank shall be returned by the Administrative
Agent to the Borrowers marked "canceled".
(d) The Administrative Agent, acting solely for
this purpose as an agent of the Borrowers, shall maintain at
one of its offices in The City of New York a copy of each
Commitment Transfer Supplement delivered to it and a
register (the "Register") for the recordation of the names
and addresses of the Banks and the Commitment of, and
principal amount of the Loans owing to, each Bank from time
to time. The entries in the Register shall be conclusive,
in the absence of manifest error, and the parties hereto may
treat each Person whose name is recorded in the Register as
the owner of the Loan recorded therein for all purposes of
this Agreement. The Register shall be available for
inspection by the parties hereto at any reasonable time and
from time to time upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer
Supplement executed by a transferor Bank and a Purchasing
Bank (and, in the case of a Purchasing Bank that is not then
a Bank or an affiliate thereof, by the Borrowers and the
Administrative Agent) together with payment to the
Administrative Agent of a registration and processing fee of
$3,500, the Administrative Agent shall (i) promptly accept
such Commitment Transfer Supplement and (ii) on the Transfer
Effective Date determined pursuant thereto record the
information contained therein in the Register and give
notice of such acceptance and recordation to the Banks and
the Borrowers.
(f) Subject to Section 9.15, the Borrowers
authorize each Bank to disclose to any Participant or
Purchasing Bank (each, a "Transferee") and any prospective
Transferee any and all financial and other information in
such Bank's possession concerning the Borrowers and its
Affiliates which has been delivered to such Bank by or on
behalf of the Borrowers pursuant to this Agreement or which
has been delivered to such Bank by or on behalf of the
Borrowers in connection with such Bank's credit evaluation
of the Borrowers and their Affiliates prior to becoming a
party to this Agreement.
(g) If, pursuant to this Section 9.3, any
interest in this Agreement or any Promissory Note is
transferred to any Transferee which is organized under the
laws of any jurisdiction other than the United States or any
State thereof, the transferor Bank (x) shall immediately
notify the Administrative Agent of such transfer, describing
the terms thereof and indicating the identity and country of
residence of each Transferee. Such transferor Bank or
Transferee shall indemnify and hold harmless the Borrowers
and the Administrative Agent from and against any tax,
interest, penalty or other expense that the Borrowers and
the Administrative Agent may incur as a consequence of any
failure to withhold United States taxes applicable because
of any transfer or participation arrangement that is not
fully disclosed to them as required hereunder.
(h) By executing and delivering a Commitment
Transfer Supplement, the transferor Bank thereunder and the
Purchasing Bank thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as
follows: (i) such transferor Bank warrants that it is the
legal and beneficial owner of the interest being assigned
thereby free and clear of any adverse claim and that its
Commitment, and the outstanding balance of its Loans, in
each case without giving effect to assignments thereof which
have not become effective, are as set forth in such
Commitment Transfer Supplement, (ii) except as set forth in
(i) above, such transferor Bank 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, any other Loan Document or any other
instrument or document furnished pursuant hereto, or the
financial condition of the Borrowers or any Subsidiary or
the performance or observance by the Borrowers or any
Subsidiary of any of its obligations under this Agreement,
any other Loan Document or any other instrument or document
furnished pursuant hereto; (iii) such Purchasing Bank
represents and warrants that it is legally authorized to
enter into such Commitment Transfer Supplement; (iv) such
Purchasing Bank confirms that it has received a copy of this
Agreement, together with copies of the most recent financial
statements, if any, delivered pursuant to Section 5.1 and
such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to
enter into such Commitment Transfer Supplement; (v) such
Purchasing Bank will independently and without reliance upon
the Agents, such transferor Bank or any other Bank 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; (vi) such Purchasing Bank appoints and authorizes
the Agents to take such action as agent on its behalf and to
exercise such respective powers under this Agreement and the
other Loan Documents as are delegated to the Agents by the
terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such Purchasing Bank agrees
that it will perform in accordance with their terms all the
obligations which by the terms of this Agreement are
required to be performed by it as a Bank.
SECTION 9.4. Expenses of the Banks; Indemnity.
(a) The Borrowers agree, jointly and severally, to pay all
out-of-pocket expenses reasonably incurred by the Agents in
connection with the preparation and administration of this
Agreement, the Promissory Notes and the other Loan Documents
or with any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the
transactions hereby contemplated shall be consummated) or
reasonably incurred by the Agents or any Bank in connection
with the enforcement or protection of their rights in
connection with this Agreement and the other Loan Documents
or with the Loans made or the Promissory Notes issued
hereunder (whether through negotiations, legal proceedings
or otherwise), including, but not limited to, the reasonable
fees and disbursements of Cravath, Swaine & Moore, special
counsel for the Agents, and, in connection with such
enforcement or protection, the reasonable fees and
disbursements of other counsel for any Bank. The Borrowers
further jointly and severally agree that they shall
indemnify the Banks and the Agents from and hold them
harmless against any documentary taxes, assessments or
charges made by any Governmental Authority by reason of the
execution and delivery of or in connection with the
performance of this Agreement, any of the Promissory Notes
or any of the other Loan Documents. Further, the Borrowers
jointly and severally agree to pay, and to protect,
indemnify and save harmless each Bank, each Agent and each
of their respective officers, directors, shareholders,
employees, agents and servants from and against, any and all
losses, liabilities (including liabilities for penalties),
actions, suits, judgments, demands, damages, costs or
expenses (including, without limitation, attorneys' fees and
expenses) in connection with any investigative,
administrative or judicial proceeding, whether or not such
Bank or Agent shall be designated a party thereto of any
nature arising from or relating to (i) the execution or
delivery of this Agreement or any other Loan Document or any
agreement or instrument contemplated thereby, the
performance by the parties thereto of their respective
obligations thereunder or the consummation of the
transactions contemplated hereby and thereby (including the
Restructuring) or (ii) the use of the proceeds of the Loans;
and the Borrowers also jointly and severally agree to pay,
and to protect, indemnify and save harmless each Bank, each
Agent and each of their respective officers, directors,
shareholders, employees, agents and servants from and
against, any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments,
demands, damages, costs or expenses (including, without
limitation, attorneys' fees and expenses in connection with
any investigative, administrative or judicial proceeding,
whether or not such Bank or Agent shall be designated a
party thereto) of any nature arising from or relating to any
actual or alleged presence or Release of Hazardous Materials
on any property owned or operated by IMC-Agrico, the
Borrowers or any of the Subsidiaries, or any Environmental
Claim related in any way to IMC-Agrico, the Borrowers or the
Subsidiaries or arising from or in connection with the
environmental due diligence summary memorandum referred to
in paragraph (m) of Article IV; provided that any such
indemnity referred to in this sentence shall not, as to any
indemnified Person, be available to the extent that such
losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and
non appealable judgment to have resulted from the gross
negligence or wilful misconduct of such indemnified Person.
If any action, suit or proceeding arising from any of the
foregoing is brought against any Bank, Agent or other Person
indemnified or intended to be indemnified pursuant to this
Section 9.4, the Borrowers, to the extent and in the manner
directed by such indemnified party, will resist and defend
such action, suit or proceeding or cause the same to be
resisted and defended by counsel designated by the Borrowers
(which counsel shall be satisfactory to such Bank, Agent or
other Person indemnified or intended to be indemnified). If
the Borrowers shall fail to do any act or thing which it has
covenanted to do hereunder or any representation or warranty
on the part of the Borrowers contained in this Agreement
shall be breached, any Bank or Agent may (but shall not be
obligated to) do the same or cause it to be done or remedy
any such breach, and may expend its funds for such purpose.
Any and all amounts so expended by any Bank or Agent shall
be repayable to it by the Borrowers immediately upon such
Bank's or such Agent's demand therefor.
(b) The provisions of this Section 9.4 shall
remain operative and in full force and effect regardless of
the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby or
thereby, the repayment of any of the Loans or any Promissory
Notes, the invalidity or unenforceability of any term or
provision of this Agreement, any other Loan Document or any
Promissory Note, or any investigation made by or on behalf
of any Bank or any Agent. All amounts due under this
Section 9.4 shall be payable on written demand therefor.
SECTION 9.5. Right of Setoff. If an Event of
Default shall have occurred and be continuing and the Loans
shall have been accelerated or any Bank shall have requested
the Administrative Agent to declare the Loans immediately
due and payable pursuant to Article VII, then each Bank is
hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and 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 Bank to or for the
credit or the account of either Borrower against any of and
all the obligations of such Borrower now or hereafter
existing under this Agreement and the Promissory Notes held
by such Bank, irrespective of whether or not such Bank shall
have made any demand under this Agreement or such Promissory
Notes and although such obligations may be unmatured. Each
Bank agrees promptly to notify the Borrowers after any such
setoff and application made by such Bank, but the failure to
give such notice shall not affect the validity of such
setoff and application. The rights of each Bank under this
Section 9.5 are in addition to other rights and remedies
(including, without limitation, other rights of setoff)
which such Bank may have.
SECTION 9.6. APPLICABLE LAW. THIS AGREEMENT AND
THE PROMISSORY NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.7. Waivers; Amendments. (a) No
failure or delay of any Bank or Agent in exercising any
power or right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further
exercise thereof or the exercise of any other right or
power. The rights and remedies of the Banks and the Agents
hereunder and under the other documents and agreements
entered into in connection herewith are cumulative and not
exclusive of any rights or remedies which they would
otherwise have. No waiver of any provision of this
Agreement, any other Loan Document or any Promissory Note or
any other such document or agreement or consent to any
departure by any Borrower therefrom shall in any event be
effective unless the same shall be authorized as provided in
paragraph (b) below, and then such waiver or consent shall
be effective only in the specific instance and for the
purpose for which given. No notice or demand on any
Borrower in any case shall entitle such Borrower to any
other or further notice or demand in similar or other
circumstances. Each holder of any of the Promissory Notes
shall be bound by any amendment, modification, waiver or
consent authorized as provided herein, whether or not such
Promissory Note shall have been marked to indicate such
amendment, modification, waiver or consent.
(b) This Agreement and the Security Agreements
(including any provision hereof or thereof) may not be
waived, amended or modified except pursuant to an agreement
or agreements in writing entered into by the Borrowers and
the Required Banks; provided, however, that no such
agreement shall (i) change the principal amount of, or
extend or advance the maturity of or any date for the
payment (other than pursuant to Section 2.7(b), which may be
amended by the Required Banks) of any principal of or
interest on, any Promissory Note (including, without
limitation, any such payment pursuant to Section 2.7(c) or
paragraph (a) or (b) of Section 2.9), or waive or excuse any
such payment or any part thereof, or change the rate of
interest on any Promissory Note, without the written consent
of each holder affected thereby, (ii) change or extend the
Commitment of any Bank without the written consent of such
Bank, or change any fees to be paid to any Bank or Agent
hereunder without the written consent of such Bank or the
Agent, as applicable, (iii) amend or modify the provisions
of this Section 9.7, Sections 2.8 through 2.15 or
Section 9.4 or the definition of "Required Banks", without
the written consent of each Bank or (iv) release the
collateral granted as security under the Security Agreements
(except as expressly required hereby or thereby), without
the written consent of each Bank; and provided further that
no such agreement shall amend, modify or otherwise affect
the rights or duties of an Agent hereunder without the
written consent of such Agent. Each Bank and holder of any
Promissory Note shall be bound by any modification or
amendment authorized by this Section 9.7 regardless of
whether its Promissory Notes shall be marked to make
reference thereto, and any consent by any Bank or holder of
a Promissory Note pursuant to this Section shall bind any
Person subsequently acquiring a Promissory Note from it,
whether or not such Promissory Note shall be so marked.
SECTION 9.8. Severability. In the event any one
or more of the provisions contained in this Agreement or in
the Promissory Notes should be held invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein
or therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the
invalid, illegal or unenforceable provisions.
SECTION 9.9. Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together
shall constitute but one contract, and shall become
effective when copies hereof which, when taken together,
bear the signatures of each of the parties hereto shall be
delivered or mailed to the Administrative Agent and the
Borrowers.
SECTION 9.10. Headings. Article and Section
headings and the Table of Contents used herein are for
convenience of reference only and are not to affect the
construction of, or to be taken into consideration in
interpreting, this Agreement.
SECTION 9.11. Entire Agreement. This Agreement,
the other Loan Documents, the fee letters between the Agents
and the Borrowers and the exhibits and schedules hereto
contain the entire agreement among the parties hereto with
respect to the Loans and the related transactions. Any
previous agreement among the parties with respect to the
subject matter hereof is superseded by this Agreement, such
fee letters and the other Loan Documents. Nothing in this
Agreement or in the other Loan Documents, expressed or
implied, is intended to confer upon any party other than the
parties hereto any rights, remedies, obligations or
liabilities under or by reason of this Agreement or the
other Loan Documents.
SECTION 9.12. WAIVER OF JURY TRIAL, ETC.
(A) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.12.
(b) Except as prohibited by law, each party
hereto hereby waives any right it may have to claim or
recover in any litigation referred to in paragraph (a) of
this Section 9.12 any special, indirect, exemplary, punitive
or consequential damages or any damages other than, or in
addition to, actual damages.
(c) Each party hereto (i) certifies that no
representative, agent or attorney of any Bank has
represented, expressly or otherwise, that such Bank would
not, in the event of litigation, seek to enforce the
foregoing waivers and (ii) acknowledges that it has been
induced to enter into this Agreement or any other document,
as applicable, by, among other things, the mutual waivers
and certifications herein.
SECTION 9.13. Interest Rate Limitation.
Notwithstanding anything herein or in the Promissory Notes
to the contrary, if at any time the interest rate applicable
to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under
applicable law (collectively the "Charges"), as provided for
herein or in any other document executed in connection
herewith, or otherwise contracted for, charged, received,
taken or reserved by any Bank, shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted
for, charged, taken, received or reserved by such Bank in
accordance with applicable law, the rate of interest in
respect of such Loan hereunder or payable under the
Promissory Note held by such Bank, together with all Charges
payable to such Bank, shall be limited to the Maximum Rate
and, to the extent lawful, the interest and Charges that
would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section 9.13
shall be cumulated and the interest and Charges payable to
such Bank in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until
such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall
have been received by such Bank.
SECTION 9.14. JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (A) EACH BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR
FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW
YORK CITY, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO
THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF
THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED
IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY
OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT
SHALL AFFECT ANY RIGHT THAT ANY BANK OR AGENT MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AGAINST
ANY BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
(B) EACH BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY
AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY NEW YORK STATE
OR FEDERAL COURT. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(C) EACH PARTY TO THIS AGREEMENT IRREVOCABLY
CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 9.1. NOTHING IN THIS AGREEMENT WILL
AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 9.15. Confidentiality. Each Bank agrees
(which agreement shall survive the termination of this
Agreement) that financial information, information from the
Borrowers' and their Subsidiaries' books and records,
information concerning the Borrowers' and their
Subsidiaries' trade secrets and patents and any other
information received from the Borrowers and their
Subsidiaries hereunder shall be treated as confidential by
such Bank, and each Bank agrees to use its best efforts to
ensure that such information is not published, disclosed or
otherwise divulged to anyone other than employees or
officers of such Bank and its counsel and agents; provided
that it is understood that the foregoing shall not apply to:
(i) disclosure made with the prior written
authorization of a Borrower;
(ii) disclosure of information (other than that
received from the Borrowers and their Subsidiaries
prior to or under this Agreement) already known by, or
in the possession of, such Bank without restrictions on
the disclosure thereof at the time such information is
supplied to such Bank by a Borrower or its Subsidiaries
hereunder;
(iii) disclosure of information which is required by
applicable law or to a governmental agency having
supervisory or regulatory authority over any party
hereto;
(iv) disclosure of information in connection with
any suit, action or proceeding in connection with the
enforcement of rights hereunder or in connection with
the transaction contemplated hereby or thereby;
(v) disclosure to any bank (or other financial
institution) which may acquire a participation or other
interest in the Loans or rights of any Bank hereunder;
provided that such bank (or other financial
institution) agrees to maintain any such information to
be received in accordance with the provisions of this
Section 9.15;
(vi) disclosure by any party hereto to any other
party hereto or their counsel or agents;
(vii) disclosure by any party hereto to any entity,
or to any subsidiary of such an entity, which owns,
directly or indirectly, more than 50% of the voting
stock of such party, or to any subsidiary of such an
entity; or
(viii) disclosure of information that prior to such
disclosure has become public knowledge through no
violation of this Agreement.
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.
FREEPORT-McMoRan INC.,
by /s/ R. Foster Duncan
______________________________
Name: R. Foster Duncan
Title: Treasurer
1615 Poydras Street
New Orleans, Louisiana 70112
Attention: R. Foster Duncan
Treasurer
Telex: 8109515386
Telephone: 504-582-4628
Telecopy: 504-582-4511
FREEPORT-McMoRan RESOURCE PARTNERS,
LIMITED PARTNERSHIP,
by FREEPORT McMoRan Inc.,
its Administrative Managing
General Partner,
by R. Foster Duncan
______________________________
Name: R. Foster Duncan
Title: Treasurer
1615 Poydras Street
New Orleans, Louisiana 70112
Attention: R. Foster Duncan
Treasurer
Telex: 8109515386
Telephone: 504-582-4628
Telecopy: 504-582-4511
CHEMICAL BANK, individually and as
Administrative Agent, FTX Collateral
Agent and FRP Collateral Agent,
by /s/ R. Potter
______________________________
Name: Ronald Potter
Title: Managing Director
Domestic Office and LIBOR Office
270 Park Avenue
New York, New York 10017
Attention: Ralph Iskander
Telephone: 212-270-3977
Telecopy: 212-270-4711
with copies to: Stuart Miller
Attention:
Telephone: 212-270-3523
Telecopy: 212-270-2325
with copies to:
Agent Bank Services
140 East 45th Street
New York, New York 10017
Attention: Hilma Gabbidon
Telephone: 212-622-0693
Telex: 353006 ABSCNYK
Telecopy: 212-622-0002
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), individually and as
Documentary Agent,
by /s/ Alexander S. Rapetski
________________________________
Name: Alexander S. Rapetski
Title: Vice President
DOMESTIC OFFICE AND LIBOR OFFICE:
One Chase Manhattan Plaza (4th Floor)
New York, NY 10081
Attention: Nicholas J. Chirekos
Vice President
Telephone: 212-552-2395
Telecopy: 212-552-7773
ADDRESS FOR NOTICES:
One Chase Manhattan Plaza (4th Floor)
New York, NY 10081
Attention: Vilma Francis
Assistant Treasurer
Telephone: 212-552-7883
Telecopy: 212-552-7175