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EXHIBIT 10.16
[Execution Copy]
RESTATED AMENDMENT NO. 1
to
AMENDED AND RESTATED
CREDIT AGREEMENT
THIS RESTATED AMENDMENT NO. 1 dated as of November 10, 1993 is
made among CEDAR CHEMICAL CORPORATION, NEW MEXICO POTASH CORPORATION, VICKSBURG
CHEMICAL COMPANY, THE FIRST NATIONAL BANK OF BOSTON and NATIONSBANK OF GEORGIA,
N.A.
Preliminary Statements
Cedar Chemical Corporation, a Delaware corporation ("Cedar"),
New Mexico Potash Corporation ("Potash"), Vicksburg Chemical Company ("VCC"),
The First National Bank of Boston ("Bank of Boston"), NationsBank of Georgia,
N.A. (a "Lender") and Bank of Boston as agent for itself and the other Lenders,
are parties to an Amended and Restated Credit Agreement dated as of June 2,
1993 (said Agreement, the "Credit Agreement," terms defined therein or by
reference therein being used herein as therein defined), pursuant to which the
Lenders have extended and may continue to extend loans and other financial
accommodations to the Borrowers.
VCC intends to construct a new potassium carbonate plant on
VCC's property in Vicksburg, adjacent to VCC's existing plant. The Borrowers
have determined that it is advantageous to VCC as the direct borrower and to
Cedar and Potash as guarantors, that the financing for such plant be provided
by the loan to VCC by the Mississippi Business Finance Corporation (the
"Authority") of the proceeds of the issuance by the Authority of certain
taxable industrial development revenue bonds. VCC and the other Borrowers have
requested, and the Lenders and the Agent have agreed, upon and subject to all
of the terms, conditions and provisions of this Restated Amendment and of the
Bond Documents (as defined in Section 1(b) below), to purchase said bonds in an
aggregate principal amount equal to up to 75% (or $11,250,000, if less) of the
cost of said plant. This Restated Amendment corrects, supersedes and replaces,
in its entirety, the document titled "Amendment No. 1 to Amended and Restated
Credit Agreement" heretofore executed by the parties hereto but which did not
become effective in accordance with its terms.
NOW, THEREFORE, in consideration of the premises, the Loans
outstanding under the Credit Agreement, the Credit Agreement, and the mutual
promises contained therein and herein, the parties hereto hereby agree as
follows:
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Section 1. Amendments to Credit Agreement. Subject to
the provisions of Section 2, the Credit Agreement is amended by
(a) amending Section 1.01 Certain Defined Terms by
(i) amending the definition "Business Day" by inserting
immediately prior to the period at the end thereof, the phrase "or, in
connection with any Bond Advance or payment by the Authority or the
Trustee, in Vicksburg, Mississippi";
(ii) amending the definition "Collateral Documents" by
inserting immediately prior to the period at the end thereof, the
phrase ", and the Indenture, the PCP Trust Deed and the PCP Security
Agreement";
(iii) amending the definition "Loan Documents" by inserting
after the phrase "the Collateral Documents," the phrase "at any time
when all Lenders are also Bondholders (as defined in the PCP
Indenture), the Bond Documents,";
(iv) amending the definition "Revolving Credit Commitment"
in its entirety to read as follows:
"Revolving Credit Commitment" means, as to each
Lender, such Lender's Commitment Percentage of (i) $25,000,000
during calendar year 1993, (ii) $28,000,000 during calendar
year 1994 and (iii) $33,000,000 during calendar year 1995, as
the same may be reduced pursuant to SECTION 2.04.
(v) amending the definition "Revolving Credit Note" by
inserting after the reference "Exhibit A-1" appearing therein, the
phrase "or Exhibit A-1b";
(b) further amending Section 1.01 Certain Defined Terms
by adding thereto in correct alphabetical order the following additional
definitions:
"Authority" means the Mississippi Business Finance Corporation.
"Authorized Officer" means the Chairman, President or
Executive Vice President of any Borrower, or any other officer of a
Borrower authorized by the Board of Directors of such Borrower to make
requests for Advances or Bond Advances.
"Bond Advance" means each payment by a Lender to the Authority
to acquire Bonds or which results in an increase in the Authority's
obligations under outstanding Bonds.
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"Bond Documents" means the Bond Purchase Agreement, the Bonds,
the Indenture, the PCP Deed of Trust, the PCP Security Agreement, the
PCP Loan Agreement, the PCP Notes and the other certificates,
instruments, agreements and documents delivered by or on behalf of any
Borrower in connection therewith.
"Bond Financing" means the purchase of the Bonds on the
Issuance Date and Bond Advances made after the Issuance Date, in each
case by the Lenders, in accordance with the terms of the Bond Purchase
Agreement, the Bond Documents and this Agreement.
"Bond Financing Amount" means a principal amount equal to the
least of (i) $11,250,000, (ii) the aggregate principal amount of all
Bond Advances made by the Lenders on or before June 1, 1995, and (iii)
an amount equal to 75% of PCP Construction Cost, as determined on June
1, 1995.
"Bond Financing Commitment" means, as to each Lender, an
amount equal to such Lender's Commitment Percentage of $11,250,000.
"Bond Purchase Agreement" means the Bond Purchase Agreement,
dated as of November 10, 1993, between the Authority, as issuer, VCC,
and the Lenders, as purchasers, as the same may be amended, modified,
supplemented or restated from time to time.
"Bonds" means $11,250,000 Mississippi Business Finance
Corporation Taxable Industrial Development Revenue Bonds, Series 1993
(Vicksburg Chemical Company) bearing interest and payable as to
principal and interest in accordance with the terms set forth on
SCHEDULE 1.1 - CERTAIN BOND TERMS hereto.
"Commitment Percentage" means, as to each Lender, the
percentage set forth opposite such Lender's name on SCHEDULE I under
the caption "Commitment Percentage" or, if such Lender has entered
into one or more Assignments and Acceptances, set forth for such
Lender in the Register maintained by the Agent pursuant to SECTION
9.07(c) as such Lender's "Commitment Percentage."
"Issuance Date" means the first date on which all of the
conditions specified in SECTIONS 4.02 AND 4.03 are satisfied and on
which the Bonds are issued.
"PCP" means the potassium carbonate plant conforming to the
specifications attached hereto as SCHEDULE 1.1 -- PCP SPECIFICATIONS,
to be owned by VCC and constructed by VCC on
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land subject to the Mortgage affecting VCC's real property in
Mississippi.
"PCP Construction Cost" means the total cost to VCC (less any
portion of such cost allocated to land) of designing and building, or
causing to be designed and built, the PCP.
"PCP Deed of Trust" means the Deed of Trust dated as of
December 1, 1993 made by VCC in favor of the Authority as security for
VCC's obligations under the PCP Loan Agreement and the PCP Notes, as
the same may be amended, modified, supplemented or restated from time
to time and any substitute or replacement deed of trust securing said
obligations, in each case in accordance with the provisions of this
Agreement.
"PCP Indenture" means the Trust Indenture dated as of December
1, 1993, between the Authority and First National Bank of Vicksburg,
trustee, as the same may be amended, modified, supplemented or
restated from time to time in accordance with the provisions of this
Agreement.
"PCP Loan Agreement" means the Loan Agreement dated as of
December 1, 1993 between the Authority, as lender, and VCC, as
borrower, with respect to the loan by the Authority to VCC of the
proceeds of issuance of the Bonds, as the same may be amended,
modified, supplemented or restated from time to time in accordance
with the provisions of this Agreement.
"PCP Note" means each promissory note of VCC substantially in
the form thereof attached to the PCP Loan Agreement, properly
completed, payable to the order of the Authority evidencing advances
made under the PCP Loan Agreement.
"PCP Security Agreement" means the Security Agreement dated as
of December 1, 1993 made by VCC in favor of the Authority with respect
to certain collateral for the Bonds, as the same may be amended,
modified, supplemented or restated from time to time in accordance
with the provisions of this Agreement.
"Trustee" means First National Bank of Vicksburg, as trustee
under the PCP Indenture, and any successor Trustee appointed in
accordance with the terms of the PCP Indenture.
(c) amending Section 2.01(b) Reduction of Outstandings in
its entirety to read as follows:
(b) Reduction of Outstandings. Notwithstanding the
provisions of SECTIONS 2.01(a) and 2.07: (i) in 1994 and in
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each calendar year thereafter Cedar shall choose a day (the "Initial
Clean-up Day") occurring on or after July 1 and before October 1 of
such year and shall notify the Agent thereof at least two Business
Days in advance, (ii) on or before each such Initial Clean-up Day the
Borrowers shall repay outstanding Revolving Credit Advances in
accordance with SECTION 2.07(a) and provide cash collateral as
contemplated by SECTION 2.07(c) for outstanding Letters of Credit,
such that the aggregate principal amount of all outstanding Revolving
Credit Advances, PLUS the aggregate face amount of outstanding Letters
of Credit, LESS the amount of such cash collateral, does not exceed
$7,000,000, and (iii) the Borrowers shall not borrow under SECTION
2.01(a) or SECTION 2.12 during the 31 consecutive days including and
following each such Initial Clean-up Day to the extent that any such
Borrowing would result in Revolving Credit Advances and Letters of
Credit being outstanding in excess of $7,000,000.
(d) amending Section 2.02(a) Requests for Borrowing (i)
by inserting in subsection (iv) thereof immediately after the phrase "under
this Agreement" the phrase "or under the PCP Loan Agreement or the PCP Notes"
and (ii) by inserting in subsection (v) thereof immediately after the phrase
"under this Agreement" the phrase ", the PCP Loan Agreement, the PCP Notes";
(e) adding thereto a new Article IIA to read as follows:
ARTICLE IIA
THE BOND ADVANCES
SECTION 2A.01. The Bond Advances. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make
Bond Advances on the Issuance Date and, if requested to do so in
accordance with the terms of the Bond Purchase Agreement, on the first
Business Day of each month thereafter through and including June 1,
1995; PROVIDED, that the aggregate principal amount of all Bond
Advances made by each Lender shall not exceed such Lender's Bond
Financing Commitment.
SECTION 2A.02. Requests for Bond Advances. Each request for
a Bond Advance shall be made not later than three Business Days before
the date of such advance, and otherwise in accordance with the
provisions of the Bond Purchase Agreement and the PCP Loan Agreement.
Without regard to any other provision of this Agreement, the Agent
shall only make proceeds of Bond Advances available to the Authority
(or to the Trustee or to VCC) to the extent the
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Agent has received such funds, of the same type, from the Lenders.
SECTION 2A.03. Repayment of and Interest on the Bond
Advances. The principal of the Bond Advances and interest thereon
shall be paid to the Lenders in accordance with the terms of the Bond
Documents.
SECTION 2A.04. Payments Made Under Notes. VCC expressly
acknowledges, for the benefit of the Agent and the Lenders, the
validity and enforceability against it of the Bond Documents to which
it is or as of the Issuance Date will be a party.
(f) amending Section 3.01 Unconditional Guarantee by
adding as a new sentence at the end of subsection (a) thereof, the following:
Without limiting the effect or generality of the foregoing, each of
Cedar, Potash and VCC expressly acknowledges and agrees that VCC's
Obligations under the PCP Loan Agreement, the PCP Notes and under any
other Bond Documents, to the extent such Obligations are part of the
security for the Bonds included in the "Trust Estate" (as defined in
the PCP Indenture), constitute Obligations of VCC to the Lenders and
the Agent under the Loan Documents and constitute Guaranteed
Obligations.
(g) amending Section 3.06 Survival by inserting after the
phrase "the Advances owing to it and any", the phrase "Bond or";
(h) redesignating Section 4.02 Conditions Precedent to
Each Borrowing thereof as Section 4.03 and adding thereto a new Section 4.02 to
read as follows:
SECTION 4.02. Conditions Precedent to Bond Advances. The
obligation of each Lender to make its initial Bond Advance is subject
to the conditions precedent that:
(a) There shall exist no action, suit, investigation,
litigation or proceeding affecting any Borrower pending or threatened
before any court, Governmental Authority or arbitrator that, if
adversely determined, would have a material adverse effect on the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Borrower (other than Disclosed
Litigation) or that purports to affect the legality, validity or
enforceability of this Agreement, any Note, any other Loan Document,
any Bond Document or the consummation of the transactions contemplated
hereby or thereby.
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(b) All conditions to the issuance of the Bonds, other
than tender of the Bond Advances to be made by the Lenders on the
Issuance Date, and to the Lenders' obligations under the Bond Purchase
Agreement to purchase Bonds, shall have been satisfied or waived in
accordance with the terms of the PCP Indenture or the Bond Purchase
Agreement, as applicable, and the Agent shall have received, dated
such day, a certificate of an Authorized Officer of Cedar and VCC to
such effect, having attached thereto, copies of all Bond Documents, as
executed by the parties thereto, together with copies of all
certificates, legal opinions, resolutions, financing statements and
other documents delivered in connection therewith, certified by such
officer of Cedar and VCC as true and complete copies thereof, together
with reliance letters as to such certificates or opinions, not
otherwise addressed to the Agent and the Lenders, as any of them may
reasonably request.
(c) The Agent shall have received, in form and substance
satisfactory to it, each of the following:
(i) signed copies of proper financing statements,
in appropriate form to be filed on or promptly after the
Issuance Date under the Uniform Commercial Code of all
jurisdictions that the Agent may deem necessary or desirable
in order to continue and protect the perfection of the
Security Interest;
(ii) Revolving Credit Notes in substantially the
form of Exhibit A-1b, properly completed, duly executed and
delivered by the Borrowers;
(iii) evidence of the insurance required by the
terms of the Security Agreements;
(iv) a Mortgage modification with respect to each
Mortgage, effective to include as indebtedness secured by such
Mortgage, the Obligations of the applicable Borrower to the
Agent and the Lenders in connection with the Bonds, duly
executed by the applicable Borrower, together with
(A) evidence that each such Mortgage
modification has been duly recorded on or before the
Issuance Date (or acknowledgement by the
representative of the title insurance issuer of
receipt of such Mortgage modifications in form for
recording) in all filing or recording offices that
the Agent may deem necessary or desirable in order to
preserve the valid and enforceable first and
subsisting Lien on the property described therein in
favor of the Lenders;
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(B) American Land Title Association
Lender's Extended Coverage title insurance policies,
or endorsements thereto or unconditional commitments
for the issuance of the same, in each case in form
and in amounts acceptable to the Agent, issued and
reinsured by title insurers acceptable to the Agent,
insuring the Mortgages (other than the Mortgage made
by Potash) as modified by such Mortgage modifications
to be valid and enforceable first Liens on the
property described therein, free and clear of all
defects (including, but not limited to, mechanics'
and materialmen's liens) and encumbrances, excepting
only Permitted Encumbrances, and providing for such
other affirmative insurance (including endorsements
for future advances under the Loan Documents
(including Bond Advances) and for mechanics' and
materialmen's liens) and coinsurance and reinsurance
with direct access as the Agent may deem necessary or
desirable;
(C) such consents and agreements of
lessors and other third parties, and such estoppel
letters and other confirmations, as the Agent may
deem necessary or desirable;
(D) evidence of the insurance required
(including, without limitation, for any business or
property) by the terms of the Mortgages as modified
by such Mortgage modifications; and
(E) evidence that all other action that
the Agent may deem necessary or desirable in order to
preserve valid first and subsisting Liens in favor of
the Agent, for the benefit of the Lenders, on the
property described in the Mortgages has been taken;
(v) A favorable opinion of Apperson, Crump,
Duzane & Maxwell, counsel for the Borrowers, in substantially
the form of EXHIBIT M hereto and as to such other matters as
any Lender through the Agent may reasonably request; and
(vi) Favorable opinions of Hilburn, Calhoon,
Harper, Pruniski & Calhoun, Ltd.; McCormick, Forbes, Caraway &
Tabor; and Gerald & Brand, local counsel to the Lenders in
Arkansas, New Mexico, and Mississippi, respectively, in
substantially the forms of EXHIBITS N-1, N-2 AND N-3,
respectively, and as to such other matters as any Lender
through the Agent may reasonably request;
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(d) Cedar or another Borrower shall have paid to the
Agent for the ratable account of the Lenders a facility fee in the
amount of $112,500, which fee shall be fully earned when due and
payable and not subject to refund or rebate; and
(e) The Agent shall have received in form and substance
satisfactory to it, such other certificates, instruments, agreements
and documents relating to the transactions contemplated to occur in
connection herewith and with the issuance of the Bonds as the Agent or
any Lender may reasonably request.
(i) amending the redesignated Section 4.03 in its
entirety to read as follows:
SECTION 4.03. Conditions Precedent to Each
Borrowing and Bond Advance. (a) The obligation of each Lender to make
an Advance on the occasion of each Borrowing (including the initial
Borrowing) shall be subject to the further conditions precedent that
on the date of such Borrowing (i) the following statements shall be
true (and each of the giving of the applicable Notice of Borrowing and
the acceptance by any Borrower of the proceeds of such Borrowing shall
constitute a representation and warranty by such Borrower that on the
date of such Borrowing such statements are true):
(A) The representations and warranties contained
in each Loan Document are correct on and as of the date of
such Borrowing, before and after giving effect to such
Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date, except for those
representations and warranties made as of a specified date;
(B) No event has occurred and is continuing, or
would result from such Borrowing or from the application of
the proceeds therefrom, that constitutes a Default; and
(C) The Aggregate Borrowing Base exceeds the
aggregate principal amount of all Revolving Credit Advances
that will be outstanding to all Borrowers after giving effect
to such Borrowing and each Borrower's Borrowing Base exceeds
the aggregate principal amount of all Revolving Credit
Advances that will be outstanding to such Borrower after
giving effect to such Borrowing;
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and (ii) the Agent shall have received such other approvals, opinions
or documents as any Lender through the Agent may reasonably request.
(b) The obligation of each Lender to make a Bond Advance
(including the initial Bond Advance) upon request therefor by VCC and
the Authority made in accordance with the terms of the Bond Purchase
Agreement, the PCP Loan Agreement and the PCP Indenture, shall be
subject to the further conditions precedent that on the date of such
Bond Advance (i) the following statements shall be true (and each of
the giving of the applicable request for such Bond Advance and the
acceptance (directly or indirectly) by any Borrower of the proceeds of
such Bond Advance shall constitute a representation and warranty by
the Borrowers that on the date of such Bond Advance such statements
are true):
(A) The representations and warranties contained
in each Loan Document and the representations and warranties
of the Borrowers contained in each Bond Document are correct
on and as of the date of such Bond Advance, before and after
giving effect to such Bond Advance and to the application of
the proceeds therefrom, as though made on and as of such date,
except for those representations and warranties made as of a
specified date; and
(B) No event has occurred and is continuing, or
would result from such Bond Advance or from the application of
the proceeds therefrom, that constitutes a Default;
(ii) the Agent shall have received at least three Business
Days prior to the date on which such Bond Advance is requested to be
made, in sufficient copies for each Lender, a certificate of an
Authorized Officer of VCC or Cedar setting forth (A) the date of the
requested Bond Advance (which purchase date shall be the first
Business Day of a month on or prior to the first Business Day of June
1995), (B) the amount of the requested Bond Advance (which shall be at
least $100,000), and (C) such Borrower's certification that the amount
of the requested Bond Advance does not exceed 75% of the PCP
Construction Cost incurred by VCC through the date of such
certificate, LESS the aggregate amount of all Bond Advance theretofore
made, and accompanied by a computation in reasonable detail supporting
such certification and by copies of invoices or other evidences of
payment acceptable to the Agent in its reasonable judgment, and
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(iii) the Agent shall have received such other approvals,
opinions or documents as any Lender through the Agent may reasonably
request.
(j) amending Section 5.01 Representations and Warranties
of the Borrowers by adding thereto a new subsection (z) to read as follows:
(z) Bond Documents. The representations and warranties
of VCC set forth in the Bond Documents to which it is a party are (or
will be) true and correct on and as of the Issuance Date and each of
the Bond Documents to which any Borrower is a party is (or, upon
execution and delivery by such Borrower, will be) the legal, valid,
binding and enforceable obligation of such Borrower.
(k) amending Section 6.01 Covenants of the Borrowers by
(i) adding in the first grammatical paragraph thereof immediately after the
phrase "any Advance" the phrase "or any amount outstanding under any PCP Note
or any Bond" and (ii) amending the parenthetical phrase appearing in clause
(iii) of subsection (l) Maintenance of Fixed Charge Coverage in its entirety to
read as follows:
(other than those made from the proceeds of Capital
Expenditure Debt or included in PCP Construction Cost);
(l) amending Section 6.02 Negative Covenants by (i)
adding in the first grammatical paragraph thereof immediately after the phrase
"any Advance" the phrase "or any amount outstanding under any PCP Note or any
Bond", (ii) adding to clause (i) of subsection (a) Liens, Etc. thereof,
immediately prior to the semi-colon at the end thereof, the phrase "or, to the
extent they affect only property of VCC, the Bond Documents", (iii) amending
subsection (l) Prepayments, Etc. of Debt in its entirety to read as follows:
(l) Prepayments, Etc. of Debt. Prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner, or make any payment in violation of any
subordination terms of, any Existing Debt (other than the Advances or
the Debt outstanding under the PCP Notes), or amend, modify or change
in any manner any term or condition of any such Debt, EXCEPT that (A)
if on July 31 of 1993, 1994 or 1995 and on the date such amount (or
any portion thereof) is paid, no Default has occurred and is
continuing or would exist after giving effect to such payment, Cedar
may repay outstanding principal of the Cedar Subordinated Debt in an
amount not greater than $666,667 in respect of each such year, on a
cumulative basis, and (B) not earlier than 12 months after the date
which an Authorized Officer of Cedar and VCC shall
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have certified to the Agent and the Lenders as the date on which the
PCP became operational, Cedar may repay outstanding principal of Cedar
Subordinated Debt in an additional amount not greater than $3,500,000,
PROVIDED that both on and as of the date of the audited financial
statements of the Borrowers then most recently delivered pursuant to
SECTION 6.01(p)(iv) and on the date or dates of payment of such amount
(or any portion thereof) no Default shall have occurred and be
continuing or would result from such payment.
and (iv) adding thereto a new subsection (p) to read as follows:
(p) Amendment of Bond Documents. Permit the Bond
Documents to which it is a party, or any of them, to be amended,
modified or supplemented, other than strictly in accordance with the
terms thereof.
(m) amending Section 7.01 Events of Default by amending
the first parenthetical phrase of subsection (d) thereof in its entirety to
read as follows:
(including any Debt of VCC under the PCP Loan Agreement and the PCP
Notes, but excluding Debt referred to in SECTION 7.01(a) and unsecured
Debt of a Borrower incurred in the ordinary course of such Borrower's
business for the deferred purchase price of property of services up to
an amount, for all Borrowers, of $1,000,000 at any time)
(n) amending Section 9.01 Amendments, Etc. by (i)
inserting after the phrase "the other Loan Documents" the first time it appears
therein, a parenthetical phrase to read "(including, without being limited to,
the Bond Documents)", (ii) deleting the reference in clause (i) thereof to
"Section 4.01 or 4.02" and substituting therefor a reference to "Article IV",
(iii) inserting in clause (v) thereof after the phrase "the Commitments"
appearing therein, the phrase "or the Bond Financing Commitments", (iv)
inserting in each of clauses (vi) and (vii) thereof immediately after the
phrase "the Notes" appearing in each the phrase ", the PCP Notes or the Bonds"
and (v) adding at the end thereof a new sentence to read as follows:
The Lenders hereby authorize and direct the Agent to vote 100% of the
Bonds held by Lenders in connection with any request for consent or
approval or waiver of the Lenders, as bondholders, under the Bond
Documents entirely in accordance with the direction of the Majority
Lenders or all Lenders, as the case may be.
(o) adding thereto a new Section 9.13 to read in its
entirety as follows:
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SECTION 9.13. Conflict with Bond Documents. As between the
Borrowers, the Lenders and the Agent, in the event that any provisions
of the Bond Documents (other than Sections 4.12 and 4.13 of the PCP
Loan Agreement and the corollary provisions of the other Bond
Documents) conflict with or are inconsistent with the provisions of
the Loan Documents, the provisions of the Loan Documents shall govern.
(p) amending Schedule I to the Credit Agreement in its
entirety to be the form of Schedule I attached hereto as ANNEX 1; and
(q) further amending the Credit Agreement by adding
thereto as a new SCHEDULE 1.1 -- PCP SPECIFICATIONS the document attached
hereto as ANNEX 2, as new SCHEDULE 1.1 -- CERTAIN BOND TERMS the document
attached hereto as ANNEX 3, as new EXHIBITS A-1b, M, N-1, N-2 and N-3,
respectively, the documents attached hereto as ANNEXES 4, 5, 6, 7 and 8, and by
deleting Schedule 5.01(t) to the Credit Agreement and substituting therefor the
Schedule bearing the same designation attached hereto as ANNEX 9.
Section 2. Conditions to Effectiveness of this
Amendment. This Amendment will become effective on the date (the "Amendment
Effective Date") on which all of the following conditions are first satisfied
(terms defined in the Credit Agreement, as amended by this Amendment, being
used in this Section 2 as so defined):
(a) Documents. The Agent shall have received each of the
following documents, each in form and substance satisfactory to the Lenders and
the Agent:
(i) Certified copies of the resolutions of the Board of
Directors of each Borrower approving this Amendment and each other
Loan Document to which it is or is to be a party, and of all documents
evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Amendment and each other such
Loan Document.
(ii) A certificate of the Secretary or an Assistant
Secretary of each Borrower certifying the names and true signatures of
the officers of such Borrower authorized to sign this Amendment and
each other Loan Document to which it is or is to be a party and the
other documents to be delivered hereunder and thereunder.
(iii) Such additional Financing Statements naming a
Borrower as debtor and the Agent as secured party duly executed and
delivered by such Borrower as the Agent shall require.
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(iv) A certificate of an authorized officer of each
Borrower stating that, based on an examination sufficient to permit
him or her to express an informed opinion, both before and after
giving effect to this Amendment,
(A) each representation and warranty of such
Borrower contained in the Agreement, as amended by this
Amendment, the other Loan Documents and any Bond Documents
that have been executed and delivered on or prior to the
Amendment Effective Date by such Borrower, is true and correct
on and as of the Amendment Effective Date, as though made on
and as of such date, and
(B) no Default or Event of Default has occurred
and is continuing.
(v) Nine West, as the pledgor under the Pledge Agreement,
and TRI, as the holder of the Subordinated Debt, shall each have
executed and delivered an acknowledgement and consent in substantially
the form attached hereto.
(vi) Such other documents and instruments as the Agent or
any Lender may reasonably request.
(b) Representation; No Material Adverse Change. The
statements set forth in Section 2(a)(iv) above shall be true and since the date
of the most recent financial statements timely delivered by the Borrowers in
accordance with the provisions of Section 6.01(p) of the Credit Agreement, no
material adverse change in the business, condition (financial or other),
performance, properties or prospects of any Borrower shall have occurred.
Section 3. Representations and Warranties of Borrowers.
Each of the Borrower represents and warrants to the Agent and each Lender as
follows (terms defined in the Agreement, as amended by this Amendment, being
used in this Section 3 as so defined):
(a) each of the representations and warranties of the
Borrower, or any of them, set forth in the Credit Agreement or in any other
Loan Document (including, in each case, as amended in connection with the
consummation of the transactions contemplated by this Amendment), is true and
correct on and as of the date of this Amendment as though made on and as of
such date;
(b) each Borrower has the power and has taken the
necessary action to authorize it to execute, deliver and perform this Amendment
and the Agreement, as amended by this Amendment, in accordance with its terms;
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(c) this Amendment has been, and each other document
contemplated to be delivered by a Borrower hereunder when delivered pursuant to
this Amendment (or to the Credit Agreement as amended by this Amendment) will
have been, executed and delivered by duly authorized officers of such Borrower
and constitutes or will when executed and delivered constitute the legal, valid
and binding obligation of the Borrower or Borrowers party thereto, enforceable
against such Borrower(s) in accordance with its respective terms;
(d) no Default or Event of Default has occurred and is
continuing; and
(e) no litigation, governmental investigation or other
similar action involving any Borrower has been commenced or threatened in
writing, to restrain or prohibit the transactions contemplated by the Credit
Agreement, the other Loan Documents or the Bond Documents in each case as in
effect on the date hereof or as the same are to be amended in connection with
the consummation of the transactions contemplated by this Amendment.
Section 4. Effect of Effectiveness. From and after the
Amendment Effective Date, each reference in the Credit Agreement or in any
other Loan Document to "this Agreement," "the Credit Agreement," "hereunder,"
"hereof," or words of like import referring to the Credit Agreement shall mean
and be a reference to the Credit Agreement as amended by this Amendment. Each
Borrower hereby expressly confirms its Security Agreement and the continuing
effectiveness thereof and of the Liens created thereby as security for such
Borrower's Obligations and Guaranteed Obligations as they may exist after the
effectiveness of this Amendment, the issuance of the Bonds and application of
the proceeds of each Bond Advance.
Section 5. General Provisions.
(a) Titles and Captions. Titles and captions of Sections
and subsections in this Amendment are for convenience only, and neither limit
nor amplify the provisions of this Amendment.
(b) Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of Georgia.
(c) Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and shall be binding upon all parties, their successors and assigns, and all of
which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their respective officers thereunto
duly authorized as of the date first above written.
CEDAR CHEMICAL CORPORATION
By: /s/ John C. Bumpers
-----------------------------------
Name: John C. Bumpers
Title: Executive Vice President
NEW MEXICO POTASH CORPORATION
By: /s/ John C. Bumpers
-----------------------------------
Name: John C. Bumpers
Title: Vice President
VICKSBURG CHEMICAL COMPANY
By: /s/ John C. Bumpers
-----------------------------------
Name: John C. Bumpers
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON,
as Agent
By: /s/ William C. Purinton
-----------------------------------
William C. Purinton
Vice President
Lenders
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THE FIRST NATIONAL BANK OF BOSTON
By: /s/ William C. Purinton
------------------------------------
William C. Purinton
Vice President
NATIONSBANK OF GEORGIA, N.A.
By: /s/ Lynn Webster
----------------------------------
Name: Lynn Webster
Title: Vice President