<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________ to __________
Commission file number: 1-8520
TERRA INDUSTRIES INC.
(Exact name of registrant as specified in its charter)
Maryland 52-1145429
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Terra Centre
P.O. Box 6000
600 Fourth Street 51102-6000
Sioux City, Iowa (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code: (712) 277-1340
------------------------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [_]
As of April 30, 1998, the following shares of the registrant's stock were
outstanding:
Common Shares, without par value 74,931,811 shares
================================================================================
<PAGE>
PART I. FINANCIAL INFORMATION
TERRA INDUSTRIES INC.
CONSOLIDATED STATEMENTS OF FINANCIAL POSITION
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
March 31, December 31, March 31,
1998 1997 1997
---------- ------------ ----------
<S> <C> <C> <C>
ASSETS
Cash and short-term investments $ 42,451 $ 180,062 $ 44,585
Accounts receivable, less allowance for
doubtful accounts of $14,018, $13,154 and $11,845 225,804 111,690 207,364
Inventories 597,234 395,940 576,779
Other current assets 29,090 51,287 61,652
- -------------------------------------------------------------------------------------------
Total current assets 894,579 738,979 890,380
- -------------------------------------------------------------------------------------------
Equity and other investments 23,583 24,485 17,119
Property, plant and equipment, net 1,187,155 1,181,384 848,404
Excess of cost over net assets of acquired businesses 299,765 304,567 287,583
Deferred tax asset 10,874 10,794 15,189
Other assets 89,188 99,745 81,777
- -------------------------------------------------------------------------------------------
Total assets $2,505,144 $2,359,954 $2,140,452
===========================================================================================
LIABILITIES
Debt due within one year $ 17,554 $ 9,538 $ 115,440
Accounts payable 290,434 203,554 314,200
Accrued and other liabilities 299,603 223,163 290,415
- -------------------------------------------------------------------------------------------
Total current liabilities 607,591 436,255 720,055
- -------------------------------------------------------------------------------------------
Long-term debt 496,681 497,030 403,501
Deferred tax liability -- non-current 193,456 193,456 135,018
Other liabilities 80,885 82,315 120,714
Minority interest 352,586 360,569 170,413
- -------------------------------------------------------------------------------------------
Total liabilities 1,731,199 1,569,625 1,549,701
- -------------------------------------------------------------------------------------------
STOCKHOLDERS' EQUITY
Capital stock
Common Shares, authorized 133,500 shares;
outstanding 74,945, 74,977 and 81,433 shares 127,587 127,581 126,545
Paid-in capital 548,799 548,772 537,045
Accumulated other comprehensive income (2,878) (8,488) (2,812)
Retained earnings (deficit) 100,437 122,464 (70,027)
- -------------------------------------------------------------------------------------------
Total stockholders' equity 773,945 790,329 590,751
- -------------------------------------------------------------------------------------------
Total liabilities and stockholders' equity $2,505,144 $2,359,954 $2,140,452
===========================================================================================
</TABLE>
See accompanying Notes to the Consolidated Financial Statements. 2
<PAGE>
TERRA INDUSTRIES INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per-share amounts)
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
--------------------------
1998 1997
--------------------------
<S> <C> <C>
REVENUES
Net sales $ 455,621 $ 423,683
Other income, net 10,051 10,027
- -----------------------------------------------------------------------------
465,672 433,710
- -----------------------------------------------------------------------------
COSTS AND EXPENSES
Cost of sales 394,682 338,052
Selling, general and administrative expense 81,828 68,309
Equity in loss of unconsolidated affiliates 695 1,023
- -----------------------------------------------------------------------------
477,205 407,384
- -----------------------------------------------------------------------------
(Loss) income from operations (11,533) 26,326
Interest income 1,568 710
Interest expense (14,982) (13,484)
Minority interest (6,301) (6,910)
- -----------------------------------------------------------------------------
(Loss) income before income taxes (31,248) 6,642
Income tax (benefit) provision (12,968) 2,740
- -----------------------------------------------------------------------------
Net (loss) income $ (18,280) $ 3,902
=============================================================================
Basic (loss) earnings per share $ (0.25) $ 0.05
Diluted (loss) earnings per share $ (0.24) $ 0.05
=============================================================================
Basic weighted average shares outstanding 73,860 74,131
Diluted weighted average shares outstanding 75,144 75,037
=============================================================================
Cash dividends declared per share $ 0.05 $ 0.04
=============================================================================
</TABLE>
See accompanying Notes to the Consolidated Financial Statements 3
<PAGE>
TERRA INDUSTRIES INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
---------------------
1998 1997
--------- ---------
<S> <C> <C>
OPERATING ACTIVITIES
Net (loss) income $ (18,280) $ 3,902
Adjustments to reconcile net income to net cash
provided by (used in) operating activities:
Depreciation and amortization 29,055 22,621
Deferred income taxes --- 2,939
Minority interest in earnings 6,301 6,910
Other non-cash items 1,321 1,375
Changes in current assets and liabilities,
excluding working capital purchased:
Accounts receivable (114,114) (125,295)
Inventories (201,294) (152,964)
Other current assets 7,901 45,912
Accounts payable 86,880 115,927
Accrued and other liabilities 76,440 77,757
Unreimbursed Port Neal casualty 14,314 ---
Other 54 (7,367)
- -------------------------------------------------------------------------------------
Net cash used in operating activities (111,422) (8,283)
- -------------------------------------------------------------------------------------
INVESTING ACTIVITIES
Acquisitions, net of cash acquired (6,353) (5,708)
Port Neal plant construction --- (381)
Purchase of property, plant and equipment (15,702) (15,058)
Other 587 848
- -------------------------------------------------------------------------------------
Net cash used in investing activities (21,468) (20,299)
- -------------------------------------------------------------------------------------
FINANCING ACTIVITIES
Net short-term borrowings 8,000 (3,367)
Principal payments on long-term debt (333) (1,336)
Stock (repurchase) issuance, net 33 (14,871)
Distributions to minority interests (11,708) (3,632)
Repurchases of TNCLP common units (2,576) ---
Dividends (3,747) (2,987)
- -------------------------------------------------------------------------------------
Net cash used in financing activities (10,331) (26,193)
- -------------------------------------------------------------------------------------
Foreign exchange effect on cash and short-term investments 5,610 (1,382)
- -------------------------------------------------------------------------------------
Decrease in cash and short-term investments (137,611) (56,157)
Cash and short-term investments at beginning of period 180,062 100,742
- -------------------------------------------------------------------------------------
Cash and short-term investments at end of period $ 42,451 $ 44,585
=====================================================================================
</TABLE>
See accompanying Notes to the Consolidated Financial Statements. 4
<PAGE>
TERRA INDUSTRIES INC.
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
THREE MONTHS ENDED MARCH 31, 1998 AND 1997
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
Accumulated
Other
Comprehensive Common Paid-In Comprehensive Accumulated
Income Shares Capital Income Deficit Total
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1996 $127,614 $550,850 $ (1,430) $(70,942) $606,092
Comprehensive income
Net income $ 3,902 --- --- --- 3,902 3,902
Foreign currency
translation adjustment (1,382) --- --- (1,382) --- (1,382)
--------
$ 2,520
========
Exercise of stock options 2 11 --- --- 13
Repurchase of common shares (1,071) (13,816) --- --- (14,887)
Dividends --- --- --- (2,987) (2,987)
- -----------------------------------------------------------------------------------------------------------------
Balance at March 31, 1997 $126,545 $537,045 $ (2,812) $(70,027) $590,751
=================================================================================================================
Accumulated
Other
Comprehensive Common Paid-In Comprehensive Retained
Income Shares Capital Income Earnings Total
- -----------------------------------------------------------------------------------------------------------------
Balance at December 31, 1997 $127,581 $548,772 $ (8,488) $122,464 $790,329
Comprehensive income
Net loss $(18,280) --- --- --- (18,280) (18,280)
Foreign currency
translation adjustment 5,610 --- --- 5,610 --- 5,610
--------
$(12,670)
========
Exercise of stock options 6 27 --- --- 33
Dividends --- --- --- (3,747) (3,747)
- -----------------------------------------------------------------------------------------------------------------
Balance at March 31, 1998 $127,587 $548,799 $ (2,878) $100,437 $773,945
=================================================================================================================
</TABLE>
See accompanying Notes to the Consolidated Financial Statements. 5
<PAGE>
TERRA INDUSTRIES INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
1. The accompanying unaudited consolidated financial statements and notes
thereto contain all adjustments necessary to summarize fairly the financial
position of Terra Industries Inc. and all majority-owned subsidiaries (the
"Corporation") and the results of the Corporation's operations for the
periods presented. Because of the seasonal nature of the Corporation's
operations and effects of weather-related conditions in several of its
marketing areas, results of operations of any single reporting period should
not be considered as indicative of results for a full year. Certain
reclassifications have been made to prior years' financial statements to
conform with current year presentation. These statements should be read in
conjunction with the Corporation's 1997 Annual Report to Stockholders.
2. Earnings per share are calculated in accordance with SFAS 128, "Earnings Per
Share". Basic earnings per share data are based on the weighted-average
number of Common Shares outstanding during the period. Diluted earnings per
share data are based on the weighted-average number of Common Shares
outstanding and the effect of all dilutive potential common shares including
stock options, restricted shares and contingent shares. All prior periods
have been restated in accordance with SFAS 128.
3. Inventories consisted of the following:
<TABLE>
<CAPTION>
March 31, December 31, March 31,
(in thousands) 1998 1997 1997
-----------------------------------------------------------------
<S> <C> <C> <C>
Raw materials $ 43,556 $ 41,724 $ 40,177
Finished goods 553,678 354,216 536,602
-----------------------------------------------------------------
Total $597,234 $395,940 $576,779
=================================================================
</TABLE>
4. The Corporation and certain of its subsidiaries are involved in various legal
actions and claims, including environmental matters, arising during the
normal course of business. Although it is not possible to predict with any
certainty the outcome of such matters, it is the opinion of management that
these matters will not have a material adverse effect on the results of
operations, financial position or cash flows of the Corporation.
5. The Corporation's natural gas procurement policy is to effectively fix or cap
the price of between 40% and 80% of its natural gas requirements for a one-
year period and up to 50% of its natural gas requirements for the subsequent
two-year period through supply contracts, financial derivatives and other
forward pricing techniques. These contracts reference physical natural gas
prices or appropriate NYMEX futures contract prices. Contract physical
prices are frequently based on the Henry Hub Louisiana price, but natural gas
supplies for the Corporation's six North American production facilities are
physically purchased for each plant location which often creates a location
basis differential between the contract price and the physical price of
natural gas. Accordingly, the use of financial derivatives may not exactly
offset the change in the price of physical gas. The contracts are traded in
months forward and settlement dates are scheduled to coincide with gas
purchases during that future period.
6
<PAGE>
The Corporation has entered into firm contracts to minimize the risk of
interruption or curtailment of natural gas supplies. Additionally, the
Corporation has entered into forward pricing positions for a substantial
portion of its natural gas requirements for the remainder of 1998, 1999 and
2000, consistent with its policy. As a result of its policies, the
Corporation has reduced the potential adverse financial impact of natural gas
price increases during the forward pricing period, but conversely, if natural
gas prices were to fall, the Corporation will incur higher costs. Unrealized
gains from forward pricing positions totaled $60.1 million and $23.0 million
as of March 31, 1998 and 1997, respectively. The amount recognized by the
Corporation will be dependent on prices in effect at the time of settlement.
For the first three months of 1998 and 1997, natural gas hedging activities
produced cost savings of approximately $4.8 million and $21.6 million,
respectively, compared with spot prices.
6. The Corporation has a revolving credit facility of up to $350 million for
working capital needs and other corporate purposes. Under the credit
facility, there was $8.0 million outstanding classified as short-term
borrowings and $7.0 million outstanding classified as long-term debt at March
31, 1998. Interest on borrowings under this line is charged at current
market rates.
7. In August 1996, the Corporation, through Terra Funding Corporation ("TFC"), a
beneficially owned subsidiary of the Corporation and a limited purpose
corporation, entered into an agreement with a large financial institution to
sell an undivided interest in its accounts receivable. Under the agreement,
which expires August 1999, the Corporation may sell without recourse an
undivided interest in a designated pool of its accounts receivable and
receive up to $150 million in proceeds. Undivided interests in new
receivables may be sold as amounts are collected on previously sold
interests. As of March 31, 1998, the proceeds of the uncollected balance of
accounts receivable sold totaled $84 million. TFC is a separate legal entity
whose creditors have received security interests in its assets.
8. On December 17, 1997, the Corporation announced that it is resuming purchases
of common units of Terra Nitrogen Company, L.P. (TNCLP) on the open market
and through privately negotiated transactions. Under an existing
authorization of the Board of Directors dating back to May 1995, the
Corporation may acquire up to 4 million common units of the 6.4 million
common units currently held by the public. The Corporation acquired 86,100
common units in the first quarter of 1998 for $2.6 million.
7
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF
OPERATIONS AND FINANCIAL CONDITION
RESULTS OF OPERATIONS
---------------------
QUARTER ENDED MARCH 31, 1998 COMPARED WITH
QUARTER ENDED MARCH 31, 1997
Consolidated Results
The Corporation reported a net loss of $18.3 million on revenues of $465.7
million for the first quarter of 1998 compared with net income of $3.9 million
on revenues of $433.7 million in 1997. Basic earnings (loss) per share amounted
to $(0.25) and $0.05 for 1998 and 1997, respectively, while diluted earnings
(loss) per share was $(0.24) and $0.05 respectively.
The Corporation classifies its operations into three business segments:
Distribution, Nitrogen Products and Methanol. The Distribution segment includes
sales of products purchased from manufacturers, including the Corporation, and
resold by the Corporation. Distribution revenues are derived primarily from
grower and dealer customers through sales of crop protection products,
fertilizers, seed and services. The Nitrogen Products segment represents only
those operations directly related to the wholesale sales of nitrogen products
from the Corporation's ammonia manufacturing and upgrading facilities. The
Methanol segment represents wholesale sales of methanol from the Corporation's
two methanol manufacturing facilities.
Total revenues and operating income (loss) by segment for the three-month
periods ended March 31, 1998 and 1997 were as follows:
<TABLE>
<CAPTION>
(in thousands) 1998 1997
- -----------------------------------------------------
<S> <C> <C>
REVENUES:
Distribution $264,816 $ 260,543
Nitrogen Products 169,138 135,918
Methanol 33,971 42,998
Other - net of
intercompany eliminations (2,253) (5,749)
- -----------------------------------------------------
$465,672 $433,710
=====================================================
OPERATING INCOME (LOSS):
Distribution $(30,387) $(25,035)
Nitrogen Products 11,778 38,541
Methanol 7,239 13,158
Other expense - net (163) (338)
- -----------------------------------------------------
$(11,533) $ 26,326
=====================================================
</TABLE>
8
<PAGE>
Distribution
Revenues from the Distribution segment for the three-month periods ended March
31, 1998 and 1997 were as follows:
<TABLE>
<CAPTION>
Distribution Revenues
- ----------------------------------------------
(in thousands) 1998 1997
- ----------------------------------------------
<S> <C> <C>
Resale fertilizer $ 65,659 $ 64,463
Crop protection products 141,877 158,690
Seed 21,931 17,575
Other 35,349 19,815
- ----------------------------------------------
$264,816 $260,543
==============================================
</TABLE>
Distribution revenues for the 1998 first quarter increased $4.3 million to
$264.8 million compared with 1997 results. Expansion of the distribution network
from 403 locations to 409 locations in 1998 contributed $23.3 million to the
revenue increase while revenue at existing locations declined by $19.0 million
due primarily to a later start to spring planting in parts of the southern U.S.
The operating loss for the Distribution segment was $30.4 million in 1998
compared with $25.0 million in 1997. This segment traditionally generates an
operating loss during the first quarter. New locations generated a first quarter
1998 operating loss of $3.2 million. Selling expense increases due to an
expanded sales force and additional equipment in anticipation of the 1998 spring
planting season exceeded gross profit changes, by $2.2 million.
Nitrogen Products
Volumes and prices for the three-month periods ended March 31, 1998 and 1997
were as follows:
<TABLE>
<CAPTION>
VOLUMES AND PRICES
(excludes the Distribution segment) 1998 1997
- ------------------------------------------------------------------------------------
Sales Average Sales Average
(quantities in thousands of tons) Volumes Unit Price Volumes Unit Price
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Ammonia 243 $152 225 $ 203
Nitrogen solutions 642 65 621 92
Urea 184 113 157 178
Ammonium nitrate 210 139 11 146
- ------------------------------------------------------------------------------------
</TABLE>
Nitrogen Products revenues increased $33.2 million, or 24%, in the quarter ended
March 31, 1998 compared with the 1997 period primarily due to the acquisition of
two nitrogen plants in the United Kingdom from Imperial Chemical Industries PLC
effective December 31, 1997. The UK plants contributed $77.4 million in revenues
in the 1998 quarter. Excluding the impact of the UK plants, Nitrogen Products
revenues decreased $44.2 million, or 32%, from the prior year quarter, primarily
due to lower prices for all products and lower ammonia sales volumes. Ammonia,
urea and nitrogen solutions prices declined from the 1997 quarter reflecting the
downward pressure on
9
<PAGE>
pricing which occurred in mid-1997 and has carried over into 1998. Lower
worldwide demand for urea and increased nitrogen production capacity created
excess nitrogen supplies and caused prices to fall. North American ammonia sales
volumes decreased 25% in the 1998 quarter compared with the prior year quarter
due to wet weather during the 1998 period which reduced ammonia applications.
Operating income for the Nitrogen Products segment was $11.8 million for the
first quarter of 1998 compared with $38.5 million for the 1997 quarter. The
decline in operating income was due to significantly lower nitrogen prices
discussed above partially offset by an 8% decline in natural gas costs during
the 1998 period. The UK plants contributed $7.4 million to operating income for
the first quarter of 1998.
Methanol
Methanol revenues decreased $9.0 million, or 21%, during the quarter ended March
31, 1998 compared with the same period in 1997 due to lower methanol prices.
Higher prices in 1997 were the result of tight market conditions caused by
planned and unplanned production outages, delayed startup of new foreign plants
and increased worldwide demand. Methanol sales prices decreased 22% to $0.45 per
gallon during the 1998 quarter with fewer production outages creating additional
supply in the marketplace. Sales volumes increased 3% to 76.0 million gallons.
Methanol operating income for the three months ended March 31, 1998 and 1997 was
$7.2 million and $13.2 million, respectively. The decrease in methanol sales
prices offset the 12% decrease in the average cost of natural gas and accounted
for the decrease in operating income. Natural gas costs represented about 65% of
the total 1997 annual cost and expense of methanol operations.
Interest Expense - Net
Interest expense, net of interest income, was $13.4 million for the first
quarter of 1998 compared with $12.8 million for the prior year period. Net
interest expense increased due to increased borrowings to fund the UK
acquisition.
Income Taxes
Income taxes for the first quarter of 1998 were recorded at an effective tax
rate of 41%, comparable to the effective tax rate for the 1997 first quarter.
Minority Interest
Minority interest, represents interest in the earnings of the publicly held
common units of Terra Nitrogen Company, L.P. (TNCLP) and a third-party's limited
partnership interest in Beaumont Methanol, Limited Partnership (BMLP). Minority
interest was $6.3 million for the first quarter 1998 compared with $6.9 million
in 1997. Minority interest declined $5.0 million due to lower earnings from
TNCLP operations. Minority interest increased $4.4 million due to the BMLP
minority interest issued by the Company on December 31, 1997 and not outstanding
in the 1997 quarter.
10
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
--------------------------------
The Corporation's primary uses of funds will be to fund its working capital
requirements, make payments on its indebtedness and other obligations, make
quarterly distributions to minority interests, disburse quarterly dividends on
common stock and make capital expenditures and acquisitions. The principal
sources of funds will be cash flow from operations and borrowings under
available bank facilities. The Corporation believes that cash from operations
and available financing sources will be sufficient to meet anticipated cash
requirements.
Cash used for operations in the first three months of 1998 was $111.4 million.
Working capital balances increased $144.2 million for the first three months of
1998 due to the seasonal nature of the Corporation's operations. The Corporation
has available a $350 million revolving credit facility for working capital
needs. As of March 31, 1998, $15.0 million was outstanding under this facility.
Cash used for investing activities was $21.5 million in the first three months
of 1998, $15.7 million funded investments in plant and equipment. Cash used for
acquisitions ($6.4 million) represents amounts paid to acquire new locations for
the Corporation's distribution network.
The Corporation began construction in the fourth quarter of 1997 on a $57
million ammonia production loop at the Beaumont, Texas plant with the facility
expected to be fully operational by the end of 1999. The Corporation expects
1998 capital expenditures, exclusive of expenditures related to the Beaumont
ammonia production loop and the acquisition of retail distribution locations, to
approximate $70 million consisting of the expansion of existing service centers,
routine replacement of equipment, and efficiency improvements at manufacturing
facilities.
During the first three months of 1998, the Corporation distributed $1.17 per
unit, or $7.3 million, to minority TNCLP Common Unitholders, distributed a
preferred return rate of 7.78%, or $4.4 million, to BMLP's minority partner, and
paid a dividend of $0.05 per Common Share which totaled $3.7 million.
On December 17, 1997, the Corporation announced that it is resuming purchases of
common units of Terra Nitrogen Company, L.P. (TNCLP) on the open market and
through privately negotiated transactions. Under an existing authorization of
the Board of Directors dating back to May 1995, the Corporation may acquire up
to 4 million common units of the 6.4 million common units currently held by the
public. The Corporation acquired 86,100 common units in the first quarter of
1998 for $2.6 million.
Cash balances at March 31, 1998 were $42.5 million of which $5.4 million is used
to collateralize letters of credit supporting recorded liabilities.
11
<PAGE>
YEAR 2000 ISSUES
----------------
The Year 2000 issue concerns computer programs that use only the last two digits
to identify the year in date fields. If not corrected, many of these computer
programs could fail or produce erroneous results on or before January 1, 2000.
This issue affects virtually every company.
The Corporation has assigned dedicated resources to address its Year 2000
issues. A significant part, but not all, of the Corporation's management
information systems environment has been assessed for Year 2000 issues and some
remedial actions have been identified in these assessed areas. The impact of
these remedial actions for areas where an assessment has already been completed
is not expected to be material to the Corporation. Some of these actions have
already been completed at minimal cost.
The Corporation has initiated an additional organization-wide review of all
possible computing functions, including the process control systems and
instrumentation in the manufacturing facilities. The Corporation is also
assessing Year 2000 issues in relation to its customers, suppliers and other
constituents because the actions or inactions of such third parties may
materially affect the Corporation.
The Corporation anticipates that it will complete all assessment, remediation
and testing efforts for Year 2000 issues in advance of January 1, 2000 with no
material adverse consequences. However, the costs or consequences of incomplete
or untimely resolution of Year 2000 issues by the Corporation or third parties
could have a material adverse affect on the Corporation.
FORWARD LOOKING PRECAUTIONS
---------------------------
Information contained in this report, other than historical information, may be
considered forward looking. Forward looking information reflects Management's
current views of future events and financial performance that involve a number
of risks and uncertainties. The factors that could cause actual results to
differ materially include, but are not limited to, the following: general
economic conditions within the agricultural industry, competitive factors and
price changes (principally, sales prices of nitrogen and methanol products and
natural gas costs), changes in product mix, changes in the seasonality of demand
patterns, changes in weather conditions, changes in agricultural regulations,
and other risks detailed in the Corporation's Securities and Exchange Commission
filings, in particular the "Factors that Affect Operating Results" section of
its most recent Form 10-K.
12
<PAGE>
PART II. OTHER INFORMATION
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
The 1998 Annual Meeting of stockholders was held on May 5, 1998, in Sioux
City, Iowa. At the meeting, a total of 72,266,876 votes were cast by
stockholders.
The following directors were elected to hold office until the next Annual
Meeting or until their successors are duly elected and qualified, and received
the votes set forth opposite their respective name:
<TABLE>
<CAPTION>
NAME FOR WITHHELD
---- --- --------
<S> <C> <C>
Edward G. Beimfohr 70,024,676 2,242,200
Carole L. Brookins 70,019,048 2,247,828
Edward M. Carson 70,022,642 2,244,234
David E. Fisher 70,008,114 2,258,762
Burton M. Joyce 70,024,428 2,242,448
Anthony W. Lea 70,006,901 2,259,975
William R. Loomis, Jr. 70,025,645 2,241,231
John R. Norton III 70,017,244 2,249,632
Henry R. Slack 68,465,347 3,801,529
Robert L. Thompson 70,010,978 2,255,898
</TABLE>
The stockholders ratified the selection by the Corporation's Board of
Directors of Deloitte & Touche LLP as independent accountants for the
Corporation for 1998. The number of votes cast for such proposal was 71,956,732,
the number against was153,009 and the number of abstentions was 157,135.
13
<PAGE>
Item 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits
4.4 Amended and Restated Credit Agreement dated as of March
31, 1998 among Terra Capital, Inc., Terra Nitrogen,
Limited Partnership, certain Guarantors, certain
Lenders, certain Issuing Banks, Nations Bank, N.A., as
Syndication Agent, The Chase Manhattan Bank, as
Documentation Agent, and Citibank, N.A., as
Administrative Agent.
10.1.16 1998 Incentive Award Program for Officers and key
employees.
*10.11 Second Amended and Restated Agreement of Limited
Partnership of Beaumont Methanol, Limited Partnership
dated as of March 31, 1998 by and among Terra Methanol
Corporation, BMC Holdings, Inc. And Nova Products LLC.
27 Financial Data Schedule [EDGAR filing only]
(b) Reports on Form 8-K
Current Report on Form 8-K/A, Amendment No. 2, dated December 31,
1997 reporting the financial statements of the United Kingdom
nitrogen business acquired and the pro forma financial
statements.
* Confidential treatment has been requested in connection with this
document.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TERRA INDUSTRIES INC.
Date: May 14, 1998 /s/ Francis G. Meyer
--------------------
Francis G. Meyer
Senior Vice President and Chief Financial
Officer and a duly authorized signatory
14
<PAGE>
CONFORMED COPY
================================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of March 31, 1998
among
TERRA CAPITAL, INC.
and
TERRA NITROGEN, LIMITED PARTNERSHIP,
as Borrowers
CERTAIN GUARANTORS
CERTAIN LENDERS
CERTAIN ISSUING BANKS
NATIONSBANK, N.A.,
as Syndication Agent
THE CHASE MANHATTAN BANK,
as Documentation Agent
and
CITIBANK, N.A.,
as Administrative Agent
================================================================================
<PAGE>
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
<TABLE>
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Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
<S> <C>
Section 1.01. Certain Defined Terms......................................... 2
Section 1.02. Computation of Time Periods...................................39
Section 1.03. Accounting Terms..............................................39
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
Section 2.01. The Advances..................................................40
Section 2.02. Making the Advances...........................................43
Section 2.03. Repayment.....................................................45
Section 2.04. Termination or Reduction of the Commitments...................45
Section 2.05. Prepayments, Etc..............................................46
Section 2.06. Interest......................................................48
Section 2.07. Fees..........................................................49
Section 2.08. Conversion and Continuation of Advances.......................50
Section 2.09. Increased Costs, Illegality, Etc..............................51
Section 2.10. Payments and Computations.....................................53
Section 2.11. Taxes.........................................................55
Section 2.12. Sharing of Payments, Etc......................................57
Section 2.13. Letters of Credit.............................................57
Section 2.14. Replacement of Lenders........................................62
ARTICLE III
CONDITIONS OF
RESTATEMENT AND LENDING
Section 3.01. Conditions Precedent to Amendment and Restatement.............64
Section 3.02. Conditions Precedent to Each Borrowing and Issuance...........66
Section 3.03. Determinations Under Section 3.01.............................66
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Company.................67
Section 4.02. Representations and Warranties of each Lender.................72
</TABLE>
(i)
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<TABLE>
<CAPTION>
ARTICLE V
COVENANTS OF TERRA
<S> <C>
Section 5.01. Affirmative Covenants........................................ 73
Section 5.02. Negative Covenants........................................... 80
Section 5.03. Reporting Requirements....................................... 94
Section 5.04. Financial Covenants.......................................... 97
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default............................................ 99
Section 6.02. Actions in Respect of the Letters of Credit Upon Default.....102
ARTICLE VII
THE ADMINISTRATIVE AGENT
Section 7.01. Authorization and Action.....................................102
Section 7.02. Administrative Agent's Reliance, Etc.........................103
Section 7.03. Citibank and Affiliates......................................104
Section 7.04. Lender Credit Decision.......................................104
Section 7.05. Indemnification..............................................104
Section 7.06. Collateral Duties............................................105
Section 7.07. Successor Administrative Agent...............................105
ARTICLE VIII
THE GUARANTEE
Section 8.01. The Guarantee................................................106
Section 8.02. Obligations Unconditional....................................107
Section 8.03. Reinstatement................................................108
Section 8.04. Subrogation..................................................108
Section 8.05. Remedies.....................................................108
Section 8.06. Instrument for the Payment of Money..........................109
Section 8.07. Continuing Guarantee.........................................109
Section 8.08. Rights of Contribution.......................................109
Section 8.09. General Limitation on Guarantee Obligations..................110
ARTICLE IX
MISCELLANEOUS
Section 9.01. Amendments, Consents, Etc....................................110
Section 9.02. Notices, Etc.................................................112
Section 9.03. No Waiver; Remedies..........................................113
Section 9.04. Costs, Expenses and Indemnification..........................113
</TABLE>
(ii)
<PAGE>
<TABLE>
<S> <C>
Section 9.05. Right of Setoff..............................................115
Section 9.06. Governing Law; Submission to Jurisdiction....................115
Section 9.07. Assignments and Participations...............................116
Section 9.08. Execution in Counterparts....................................119
Section 9.09. No Liability of the Issuing Banks............................119
Section 9.10. Confidentiality..............................................120
Section 9.11. WAIVER OF JURY TRIAL.........................................120
Section 9.12. Survival.....................................................120
Section 9.13. Captions.....................................................121
Section 9.14. Successors and Assigns.......................................121
</TABLE>
SCHEDULES
SCHEDULE 2.01 List of Commitments and Lending Offices
SCHEDULE 4.01(b) Subsidiaries
SCHEDULE 4.01(c) List of Conflicts with Credit Instruments
SCHEDULE 4.01(d) List of Required Authorizations, Consents
SCHEDULE 4.01(j) Plans and Multiemployer Plans
SCHEDULE 4.01(q) Environmental Compliance Schedule
SCHEDULE 4.01(u) Open Tax Years
SCHEDULE 4.01(y) Existing Debt
SCHEDULE 5.02(a)(iii) Existing Liens
SCHEDULE 5.02(c) Existing Hedge Agreements
SCHEDULE 5.02(f) Investments
EXHIBITS
EXHIBIT A-1 Form of Terra Note
EXHIBIT A-2 Form of TNLP Note
EXHIBIT B Form of Amendment to Security Documents and
Intercreditor Agreement
EXHIBIT B-1 Amended and Restated Holdings Pledge
Agreement
EXHIBIT B-2 Amended and Restated Terra Capital Pledge
Agreement
EXHIBIT B-3 Amended and Restated Subsidiary Pledge and Security
Agreement
EXHIBIT B-4 Amended and Restated TNLP Pledge and Security
Agreement
EXHIBIT C Form of Notice of Borrowing
EXHIBIT D-1 Form of Opinion of Special Counsel to the Obligors
EXHIBIT D-2 Form of Opinion of Special New York Counsel to Citibank
EXHIBIT E Form of Confirmation of Loan Purchase Agreement
EXHIBIT E-1 Loan Purchase Agreement
(iii)
<PAGE>
EXHIBIT F Form of Assignment and Acceptance
EXHIBIT G Provisions Relating to Certain Investments
EXHIBIT H Intercreditor Agreement
EXHIBIT I Permitted Terms
(iv)
<PAGE>
CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 31, 1998
among:
(1) TERRA CAPITAL, INC., a Delaware corporation (the "Company");
(2) TERRA NITROGEN, LIMITED PARTNERSHIP, a Delaware limited partnership
and a Subsidiary of the Company ("TNLP");
(3) each of the corporations and limited partnerships listed on the
signature pages hereof under the caption "GUARANTORS";
(4) each of the lenders (the "Initial Lenders") listed on the signature
pages hereof; and
(5) CITIBANK, N.A., as agent (together with its successor in such capacity
appointed pursuant to Article VII, the "Administrative Agent") for the
Lenders and the Issuing Banks hereunder.
PRELIMINARY STATEMENTS:
Capitalized terms used in these Preliminary Statements and not
otherwise defined have the meanings assigned to them in Section 1.01.
(a) The Company, TNLP, certain Guarantors, certain of the Initial
Lenders (or certain of their Affiliates), the Retiring Lenders, the Issuing
Banks and the Administrative Agent are parties to an Amended and Restated Credit
Agreement dated as of December 31, 1997 (as amended to and in effect on the
Restatement Date, the "Existing Credit Agreement") providing, subject to the
terms and conditions thereof, for the making of working capital advances to, and
the issuance of letters of credit for the account of, the Company and for the
making of working capital advances to, and the issuance of letters of credit for
the account of, TNLP.
(b) The Company, TNLP, the Guarantors, the Initial Lenders, the
Issuing Banks and the Administrative Agent wish to amend the Existing Credit
Agreement, among other things to extend the scheduled maturity of the Terra
Facility and the TNLP Facility to December 31, 2002, to reflect that the
Retiring Lenders shall cease to be parties hereto and to make certain other
changes to the Existing Credit Agreement and the other Loan Documents, all on
the terms and conditions set forth herein, it being the intention of the parties
hereto that the advances and letters of credit outstanding under the Existing
Credit Agreement on the Restatement Date shall continue and remain outstanding
and not be repaid on the Restatement Date.
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NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree that
the Existing Credit Agreement shall (subject to the satisfaction of the
conditions precedent specified in Section 3) be amended and restated to read as
set forth herein.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acquired Debt" means, without duplication:
(a) Debt of Subsidiaries of Terra acquired by Terra or any of
its Subsidiaries after the Restatement Date;
(b) Debt assumed by Terra (whether by operation of law or
contract or otherwise) in connection with mergers by Terra after the
Restatement Date consummated in accordance with Section
5.02(d)(ii)(y); and
(c) assumptions or Guarantees of other Acquired Debt by Terra or
one of its Subsidiaries.
"Adjusted Debt to Cash Flow Ratio" means, for any period, the ratio of
(i) Funded Debt of the Adjusted Terra Group on a Consolidated basis as at
the last day of such period to (ii) EBITDA of the Adjusted Terra Group on a
Consolidated basis for such period. In determining the Adjusted Debt to
Cash Flow Ratio, Funded Debt and EBITDA of the Adjusted Terra Group shall
be determined as follows:
(x) the components of Funded Debt and EBITDA shall be determined
for Terra and its Subsidiaries on a Consolidated basis in accordance
with GAAP; and
(y) those components of Funded Debt and EBITDA of the Terra
Canada Group and the BMLP Group that are included in the Consolidated
components of Terra (after giving effect to intercompany eliminations)
shall be subtracted from the components determined under clause (x)
above.
"Adjusted Interest Coverage Ratio" means, for any period, the ratio of
(i) EBITDA of the Adjusted Terra Group on a Consolidated basis for such
period to (ii) Cash Interest Expense of the Adjusted Terra Group on a
Consolidated basis for such
<PAGE>
-3-
period. In determining the Adjusted Interest Coverage Ratio, EBITDA and
Cash Interest Expense of the Adjusted Terra Group shall be determined as
follows:
(x) the components of EBITDA and Cash Interest Expense shall be
determined for Terra and its Subsidiaries on a Consolidated basis in
accordance with GAAP; and
(y) those components of EBITDA and Cash Interest Expense of the
Terra Canada Group and the BMLP Group that are included in the
Consolidated components of Terra (after giving effect to intercompany
eliminations) shall be subtracted from the components determined under
clause (x) above.
"Adjusted Net Worth" means, at any time, the sum of the following for
Terra and its Subsidiaries on a Consolidated basis:
(a) the Net Worth of Terra and its Subsidiaries on a
Consolidated basis; minus
(b) the Net Worth of Terra Canada and its Subsidiaries
(including, without limitation, Terra U.K. and its Subsidiaries) on a
Consolidated basis; minus
(c) the Net Worth of BMLP and its Subsidiaries (including,
without limitation, Terra U.K. Holdings, BAI and their respective
Subsidiaries) on a Consolidated basis minus the BMLP Class A Capital
Contribution Amount as at such time (to the extent such amount was
included in determining Net Worth of BMLP and its Subsidiaries).
Adjusted Net Worth shall be determined as follows:
(x) the components of Net Worth shall be determined for Terra
and its Subsidiaries on a Consolidated basis in accordance with GAAP;
and
(y) those components of Net Worth of the Terra Canada Group and
the BMLP Group that are included in the Consolidated components of
Terra (after giving effect to intercompany eliminations) shall be
subtracted from the components determined under clause (x) above.
"Adjusted Terra Group" means, collectively, Terra and its Subsidiaries
(other than members of the Terra Canada Group and members of the BMLP
Group).
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
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"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at its office
at 2 Penns Way, Suite 200, New Castle, Delaware, 19720, Account No. 368-
52248, Attention: Carlos Lopez (or his successor), or such other account
maintained by the Administrative Agent as may be designated by the
Administrative Agent in a written notice to the Lenders, each Issuing Bank
and the Borrowers.
"Advance" means a Terra Advance or a TNLP Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 10% or more of the
voting stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
voting stock, by contract or otherwise.
"AMCI Senior Note Indenture" means the Indenture dated as of October
15, 1993 between Terra and Society National Bank, as Trustee, providing for
the issuance of the AMCI Senior Notes, as from time to time amended.
"AMCI Senior Notes" means the 10-3/4% senior notes of Terra due 2003
issued pursuant to the AMCI Senior Note Indenture.
"Ammonia Loop" means the ammonia loop facility to be constructed as an
extension of BMLP's methanol plant pursuant to the Engineering, Procurement
and Construction Agreement dated as of October 20, 1997 between TNC and
Foster Wheeler USA Corporation, as from time to time amended.
"Ammonium Nitrate Hedging Agreement" means an agreement between Terra
Canada and ICI pursuant to which Terra Canada agrees to pay certain amounts
to ICI in the event that the annual average price of ammonium nitrate
exceeds (Pounds)100 per tonne, as from time to time amended (without
prejudice to Section 5.02(l)).
"Applicable Commitment Fee Rate" means 0.50% per annum; provided that:
(1) The Applicable Commitment Fee Rate shall, from the date hereof
until the Quarterly Date falling in March, 1998, be 0.375% per annum.
(2) Subject to clause (1) above and clause (3) below, if for any
Rolling Period ending on or after December 31, 1997 the Debt to Cash Flow
Ratio for such Rolling Period shall be within any of the ranges specified
in the schedule below, then, subject to the delivery to the Administrative
Agent of a certificate of the Senior Financial Officer demonstrating the
same prior to the first Quarterly Date (the "relevant Quarterly Date")
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occurring after the end of such Rolling Period, the "Applicable Commitment
Fee Rate" shall be changed to the percentage per annum set forth opposite
the reference to such range in such schedule during the period commencing
on the relevant Quarterly Date until the next succeeding Quarterly Date
thereafter:
Range of Debt Applicable Commitment
to Cash Flow Ratio Fee Rate
---------------- ----------------
Greater than 3.00 to 1 0.500%
Less than or equal to
3.00 to 1 and greater
than 2.00 to 1 0.375%
Less than or equal to
2.00 to 1 and greater
than 1.25 to 1 0.250%
Less than or equal to
1.25 to 1 and greater
than 0.75 to 1 0.225%
Less than or equal to
0.75 to 1 0.200%
(3) Notwithstanding any reduction in the Applicable Commitment Fee
Rate below 0.375% per annum that would otherwise be made pursuant to clause
(2) above, the "Applicable Commitment Fee Rate" during the period from the
Restatement Date until the Quarterly Date in December, 1998 shall be not
less than 0.375% per annum.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance.
"Applicable Letter of Credit Fee Rate" means, at any time, a rate per
annum equal to the Applicable Margin for Eurodollar Rate Advances in effect
at such time.
"Applicable Margin" means, (a) with respect to all Base Rate Advances,
0.50% per annum and (b) with respect to all Eurodollar Rate Advances, 2.00%
per annum; provided that:
(1) Subject to clause (2) below, if for any Rolling Period
ending on or after December 31, 1997 the Debt to Cash Flow Ratio for
such Rolling Period shall be within any of the ranges specified in the
schedule below, then, subject to
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the delivery to the Administrative Agent of a certificate of the Senior
Financial Officer demonstrating the same prior to the first Quarterly Date
(the "relevant Quarterly Date") occurring after the end of such Rolling
Period, the "Applicable Margin" shall be changed to the percentage per
annum for the respective Type of Advance set forth opposite the reference
to such range in such schedule during the period commencing on the relevant
Quarterly Date until the next succeeding Quarterly Date thereafter:
<TABLE>
<CAPTION>
Applicable Margin (% p.a.)
-------------------------------------
Range of Debt Base Rate Eurodollar Rate
to Cash Flow Ratio Advances Advances
------------------ --------- ---------------
<S> <C> <C>
Greater than 3.00 to 1 0.500% 2.000%
Less than or equal to
3.00 to 1 and greater
than 2.00 to 1 0.375% 1.250%
Less than or equal to
2.00 to 1 and greater
than 1.25 to 1 0.250% 0.750%
Less than or equal to
1.25 to 1 and greater
than 0.75 to 1 0.000% 0.625%
Less than or equal to
0.75 to 1 0.000% 0.500%
</TABLE>
(2) Notwithstanding any reduction in the Applicable Margin below
0.375% per annum (in the case of Base Rate Advances) or 1.250% per annum
(in the case of Eurodollar Rate Advances) that would otherwise be made
pursuant to clause (1) above, the "Applicable Margin" during the period
from the Restatement Date until the Quarterly Date in December, 1998 shall
be not less than 0.375% per annum (in the case of Base Rate Advances) and
not less than 1.250% (in the case of Eurodollar Rate Advances).
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an Eligible Assignee, and accepted by the Administrative Agent,
in accordance with Section 9.07 and in substantially the form of Exhibit F.
<PAGE>
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"Available Amount" of any Letter of Credit means the maximum amount
available to be drawn under such Letter of Credit (assuming compliance with all
conditions to drawing specified therein).
"BAI" means Beaumont Ammonia, Inc., a Delaware corporation and Subsidiary
of Terra U.K. Holdings, the principal business of which shall be the
construction and operation of the Ammonia Loop.
"Base Rate" means a fluctuating interest rate per annum in effect from time
to time, which rate per annum shall at all times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank in New York,
New York, from time to time, as Citibank's base rate;
(b) 0.50% per annum above the Federal Funds Rate; and
(c) the sum (adjusted to the nearest 0.25% or, if there is no nearest
0.25%, to the next higher 0.25%) of (i) 0.50% per annum plus (ii) the rate
obtained by dividing (x) the latest three-week moving average of secondary
market morning offering rates in the United States for three-month
certificates of deposit of major United States money center banks, such
three-week moving average (adjusted to the bases of a year of 360 days)
being determined weekly on each Monday (or, if such date is not a Business
Day, on the next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve Bank
of New York or, if such publication shall be suspended or terminated, on
the basis of quotations for such rates received by Citibank from three New
York certificate of deposit dealers of recognized standing selected by
Citibank by (y) a percentage equal to 100% minus the average of the daily
percentages specified during such three-week period by the Board of
Governors of the Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement) for Citibank
with respect to liabilities consisting of or including (among other
liabilities) three-month U.S. Dollar non-personal time deposits in the
United States plus (iii) the average during such three-week period of the
annual assessment rates estimated by Citibank for determining the then
current annual assessment rate payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S. Dollar deposits
of Citibank in the United States.
Each change in any interest rate provided for herein based upon the Base Rate
resulting from a change in the Base Rate shall take effect at the time of such
change in the Base Rate.
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"Base Rate Advance" means an Advance that bears interest as provided in
Section 2.06(a)(i).
"Basic Documents" means the Loan Documents and the Intercreditor Agreement.
"BFI" means Britz Fertilizer, Inc., a California corporation.
"Blytheville Assets" means TI's Blytheville, Arkansas facility and related
assets having (in the reasonable judgment of TI's Board of Directors) an
aggregate fair market value not exceeding $5,000,000.
"BMCH" means BMC Holdings, Inc., a Delaware corporation.
"BMLP" means Beaumont Methanol, Limited Partnership, a Delaware limited
partnership.
"BMLP Class A Capital Contribution Amount" means, at any time, the
aggregate amount of the BMLP Class A Limited Partner's capital contributions to
BMLP (net of redemptions thereof).
"BMLP Class A Limited Partner" means the holder from time to time of the
BMLP Class A Limited Partnership Interest.
"BMLP Class A Limited Partner Equityholders" means the beneficial owners of
equity interests in the BMLP Class A Limited Partner.
"BMLP Class A Limited Partnership Interest" means a Class A limited
partnership interest in BMLP.
"BMLP Demand Loans" has the meaning assigned to such term in Section
5.02(b)(2)(ii).
"BMLP First Priority Distributions" means, for any period, the aggregate
amount of distributions (exclusive of redemptions) made by BMLP in cash during
such period in respect of the BMLP Class A Limited Partnership Interest pursuant
to the terms of the BMLP Partnership Agreement.
"BMLP Group" means, collectively, BMLP and its Subsidiaries, and a "member"
of the BMLP Group means, individually, BMLP and each such Subsidiary. "BMLP
Partners" means, collectively, TMC, BMCH and the BMLP Class A Limited Partner.
<PAGE>
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"BMLP Partnership Agreement" means the Second Amended and Restated
Agreement of Limited Partnership of BMLP dated as of March 31, 1998 among TMC,
as general partner, BMCH, as Class B Limited Partner, and Nova Products LLC, as
BMLP Class A Limited Partner, as amended from time to time (without prejudice to
Section 5.02(j)).
"BMLP Support and Option Agreement" means the Amended and Restated Support
and Option Agreement dated as of March 31, 1998 among the Company, the BMLP
Class A Limited Partner and the BMLP Class A Limited Partner Equityholders, as
from time to time amended.
"BMLP Transactions" means, collectively, the transactions contemplated by
the BMLP Partnership Agreement and the BMLP Support and Option Agreement
(including, without limitation, the "BMLP Restructuring" referred to in the
Existing Credit Agreement).
"Borrower" means each of the Company and TNLP; provided that when reference
is made in this Agreement or in any other Loan Document to the "relevant"
Borrower in connection with either Facility, such reference shall be deemed to
refer (a) in the case of the Terra Facility, to the Company, and (b) in the case
of the TNLP Facility, to TNLP.
"Borrower's Account" means (a) in the case of the Company, the account of
the Company maintained with Citibank at its office at 399 Park Avenue, New York,
New York 10043, Account No. 4065-6098, and (b) in the case of TNLP, the account
of TNLP maintained with Citibank at its office at 399 Park Avenue, New York, New
York 10043, Account No. 4065-6071; or, in either case, such other account
maintained by the relevant Borrower with Citibank and designated by such
Borrower in a written notice to the Administrative Agent.
"Borrowing" means a Terra Borrowing or a TNLP Borrowing.
"Britz Documents" means the Britz LLC Agreement and the Britz JV Agreement.
"Britz JV Agreement" means the Joint Venture Agreement among TI, BFI, Britz
LLC and certain other Persons pursuant to which TI will acquire ownership
interests in Britz LLC, as amended from time to time.
"Britz LLC" means Britz Fertilizer, L.L.C., a Delaware limited liability
company, as the same may be renamed from time to time.
"Britz LLC Agreement" means the limited liability company management
agreement for Britz LLC, as the same may be in effect from time to time.
<PAGE>
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"Business Day" means a day on which banks are not required or authorized to
close in New York City and, if such Business Day relates to a Eurodollar Rate
Advance, on which dealings are carried on in the London interbank market.
"Capital Expenditures" means, for any period with respect to any Person,
the sum of all expenditures during such period (whether paid in cash or accrued
as liabilities during such period) that, in conformity with GAAP, are required
to be included in or reflected on the balance sheet of such Person in respect of
equipment, fixed assets, real property or improvements, or for replacements or
substitutions therefor or additions thereto, plus (without duplication) the
amount of expenditures deemed to be made in connection with equipment that is
purchased simultaneously with the trade-in of existing equipment owned by such
Person to the extent the gross amount of the purchase price of such purchased
equipment exceeds the fair market value (as determined in good faith by such
Person) of the equipment then being traded in, but excluding expenditures made
in connection with the replacement or restoration of assets to the extent such
replacement or restoration is financed from insurance proceeds paid on account
of loss or damage to the assets so replaced or restored.
"Capital Lease Obligations" means, for any Person, all obligations of such
Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) property to the extent such obligations are required
to be classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP, and, for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP.
"Cash Interest Expense" means, for any Person for any period (without
duplication), interest expense net of interest income, whether paid or accrued
(including the interest component of Capital Lease Obligations), on all Debt of
such Person for such period, including, without limitation, (a) interest expense
in respect of the Advances, (b) commissions, discounts and other fees and
charges payable in connection with letters of credit (including, without
limitation, any Letter of Credit) and (c) the net payment, if any, payable in
connection with any Hedge Agreement; excluding, in each case, interest not
payable in cash (including, without limitation, amortization of original issue
discount and the interest portion of any deferred payment obligation); all as
determined in accordance with GAAP for such period.
"Casualty Event" means, with respect to any property of any Person, any
loss of or damage to, or any condemnation or other taking of, such property for
which such Person or any of its Subsidiaries receives insurance proceeds, or
proceeds of a condemnation award or other compensation.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
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"Citibank" means Citibank, N.A., a national banking association.
"Collateral" means all "Collateral" referred to in the Security Documents
and all other property that is subject to any Lien created by any Security
Document in favor of the Collateral Agent.
"Collateral Agent" means Citibank, in its capacity as Collateral Agent for
the Secured Parties under and as defined in the Security Documents and the
Intercreditor Agreement, together with its successors in such capacity.
"Commitment" means a Terra Commitment or a TNLP Commitment.
"Commitment Termination Date" means the Terra Commitment Termination Date
or the TNLP Commitment Termination Date.
"Confidential Information" means information identified as such that Terra
or any of its Subsidiaries furnishes to the Administrative Agent, any Issuing
Bank or any Lender, but does not include any such information once such
information has become generally available to the public or once such
information has become available to the Administrative Agent, any Issuing Bank
or any Lender from a source other than Terra and its Subsidiaries (unless, in
either case, such information becomes so available as a result of the breach by
the Administrative Agent, an Issuing Bank or a Lender of its duty of
confidentiality set forth in Section 9.10).
"Consolidated" refers to the consolidation of accounts in accordance with
GAAP.
"Consolidated Group" means, collectively, Terra and its Consolidated
Subsidiaries, and a "member" of the Consolidated Group means Terra or any such
Subsidiary.
"Continuation", "Continue" and "Continued" each refers to a continuation of
Eurodollar Rate Advances from one Interest Period to the next Interest Period
pursuant to Section 2.08.
"Conversion", "Convert" and "Converted" each refers to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section 2.08 or
2.09.
"Covered Transaction" means, collectively:
(1) the Transactions (as defined in the Original Credit Agreement) or any
part thereof, including, without limitation, the Initial Merger and the Second
Merger referred to therein and any of the other transactions contemplated
thereby;
(2) the SPU Redemption;
<PAGE>
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(3) the U.K. Nitrogen Acquisition;
(4) the BMLP Transactions; and
(5) the construction of the Ammonia Loop.
"Cumulative Adjusted Net Income" means, for any period, the sum, for each
complete fiscal year of Terra (beginning with the fiscal year ending December
31, 1995) during such period, of the Adjusted Net Income Amounts for all such
fiscal years. For purposes of this definition, "Adjusted Net Income Amount"
means, for any fiscal year of Terra, the greater of (x) 33-1/3% of the net
income of Terra and its Subsidiaries on a Consolidated basis during such fiscal
year and (y) $20,000,000.
"Debt" of any Person means (without duplication): (a) all indebtedness of
such Person for borrowed money, (b) all Obligations of such Person for the
deferred purchase price of property or services (other than any trade payable
having a tenor of not more than 365 days, or any like item arising from the
purchase of equipment or services having a tenor of not more than 90 days, in
each case incurred in the ordinary course of business and on normal business
terms and in each case not overdue by more than 30 days, and other than any
Obligations in respect of letters of credit supporting any such trade payable or
like item), (c) all Obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or arising
under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (e) all Capital Lease Obligations and
Major Operating Lease Obligations of such Person, (f) all Obligations,
contingent or otherwise, of such Person under acceptance, letter of credit or
similar facilities (other than Obligations in respect of letters of credit
referred to in clause (b) of this definition), (g) all Obligations of such
Person to purchase, redeem, retire, defease or otherwise make any payment in
respect of any Redeemable capital stock, which Obligations shall be valued at
the greater of its voluntary or involuntary liquidation preference plus accrued
and unpaid dividends, (h) all Obligations of such Person in respect of Hedge
Agreements, (i) all Debt of others referred to in clauses (a) through (h) above
guaranteed directly or indirectly in any manner by such Person, or in effect
guaranteed directly or indirectly by such Person through an agreement (i) to pay
or purchase such Debt or to advance or supply funds for the payment or purchase
of such Debt, (ii) to purchase, sell or lease (as lessee or lessor) property, or
to purchase or sell services, primarily for the purpose of enabling the debtor
to make payment of such Debt or to assure the holder of such Debt against loss,
(iii) to supply funds to or in any other manner invest in the debtor (including
any agreement to pay for property or services irrespective of whether such
property is received or such services are rendered) or (iv) otherwise to assure
a creditor against loss, and (j) all Debt referred to in clauses (a) through (i)
above secured by (or for which the holder of such Debt has an existing right,
<PAGE>
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contingent or otherwise, to be secured by) any Lien on property (including,
without limitation, accounts and contract rights) owned by such Person,
even though such Person has not assumed or become liable for the payment of
such Debt.
"Debt to Cash Flow Ratio" means, for any period, the ratio of:
(1) the sum of (x) Funded Debt of Terra and its Subsidiaries on a
Consolidated basis as of the last day of such period plus (y) the BMLP
Class A Capital Contribution Amount as at the last day of such period to
(2) the sum of (x) EBITDA of Terra and its Subsidiaries on a
Consolidated basis for such period plus (y) the aggregate amount of BMLP
First Priority Distributions made during such period (to the extent such
distributions were deducted in determining such EBITDA for such period).
"Default" means any event that would constitute an Event of Default but for
the requirement that notice be given or time elapse or both.
"Disposition" means any sale, assignment, transfer or other disposition of
any property (whether now owned or hereafter acquired) by Terra or any of its
Subsidiaries, but excluding any sale, assignment, transfer or other disposition
of any property (i) sold or disposed of in the ordinary course of business and
on ordinary business terms, or (ii) by any Obligor or a wholly owned Subsidiary
of an Obligor to another Obligor or to a wholly owned Subsidiary of an Obligor,
or (iii) that consists of outmoded or obsolete items, provided that the
aggregate value of all such excluded outmoded or obsolete items with a value of
$1,000,000 or more each shall not exceed $10,000,000.
"Dividend Payments" means dividends (in cash, property or obligations) on,
or other payments or distributions on account of, or the setting apart of money
for a sinking or other analogous fund for, or the purchase, redemption,
retirement or other acquisition of, any shares of any class of stock of the
Company or of any warrants, options or other rights to acquire the same (or to
make any payment to any Person, such as "phantom stock" payments, where the
amount thereof is calculated with reference to the fair market or equity value
of Terra, the Company or any of their Subsidiaries, other than any such payment
made in the ordinary course of business of such Person in connection with an
executive compensation plan approved by the Board of Directors of such Person),
but excluding dividends payable solely in shares of common stock of the Company.
"Domestic Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule 2.01 or in the Assignment and Acceptance pursuant to which it became a
Lender, or such other office of such Lender as such Lender may from time to time
specify to the Administrative Agent.
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"EBITDA" of any Person for any period means the following, determined in
accordance with GAAP: net income (or net loss) plus the sum of (a) interest
expense, (b) income tax expense and (c) depreciation expense, amortization
expense and other non-cash charges deducted in arriving at such net income (or
loss).
"Eligible Assignee" means (a) any other Lender or any affiliate of any
Lender; (b) a commercial bank organized under the laws of the United States, or
any State thereof, and having total assets in excess of $1,000,000,000; (c) a
savings and loan association or savings bank organized under the laws of the
United States, or any State thereof, and having a net worth in excess of
$100,000,000; (d) a commercial bank organized under the laws of any other
country that is a member of the OECD or has concluded special lending
arrangements with the International Monetary Fund associated with its General
Arrangements to Borrow, or a political subdivision of any such country, and
having total assets in excess of $1,000,000,000, so long as such bank is acting
through a branch or agency located in the country in which it is organized or
another country that is described in this clause (d); (e) the central bank of
any country that is a member of the OECD; (f) a finance company, insurance
company or other financial institution or fund (whether a corporation,
partnership, trust or other entity) that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business
and having total assets in excess of $100,000,000; and (g) any other Person
(other than an Affiliate of the Company) approved by the Administrative Agent
and the Company, such approval of the Company not to be unreasonably withheld or
delayed.
"Environmental Action" means any administrative, regulatory or judicial
suit, demand, demand letter, claim, notice of non-compliance or violation,
consent order or consent agreement relating in any way to any violation of or
liability under any Environmental Law or any Environmental Permit, including
without limitation (a) any claim by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any Environmental Law, (b) any claim by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from alleged
injury or threat of injury to the environment and (c) any notice by any
governmental or regulatory authority alleging that Terra or any of its
Subsidiaries is or may be responsible for, or is a potentially responsible party
with respect to, any cleanup, removal, response, remedial or other actions or
damages pursuant to any Environmental Law.
"Environmental Law" means any federal, state or local governmental law,
rule, regulation, order, writ, judgment, injunction or decree relating to
pollution or protection of the environment or the treatment, storage, disposal,
release, threatened release or handling of Hazardous Materials, including,
without limitation, CERCLA, the Resource Conservation and Recovery Act, the
Hazardous Materials Transportation Act, the Clean Water Act, the Toxic
Substances Control Act, the Clean Air Act, the Safe Drinking
<PAGE>
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Water Act, the Atomic Energy Act and the Federal Insecticide, Fungicide and
Rodenticide Act, in each case, as amended from time to time.
"Environmental Permit" means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" of any Person means any other Person that for purposes of
Title IV of ERISA is a member of such Person's controlled group, or under common
control with such Person, within the meaning of Sections 414(b), (c), (m) and
(o) of the Internal Revenue Code.
"ERISA Event" with respect to any Person means (a) the occurrence of a
reportable event, within the meaning of Section 4043 of ERISA, with respect to
any Plan of such Person or any of its ERISA Affiliates unless the 30-day notice
requirement with respect to such event has been waived pursuant to regulations
under Section 4043 of ERISA and excluding a reportable event under Section
4043(c)(7) of ERISA; (b) the provision by the administrator of any Plan of such
Person or any of its ERISA Affiliates of a notice of intent to terminate such
Plan, pursuant to Section 4041(c) of ERISA as a distress termination; (c) the
cessation of operations at a facility of such Person or any of its ERISA
Affiliates in the circumstances described in Section 4062(e) of ERISA; (d) the
withdrawal by such Person or any of its ERISA Affiliates from a Multiple
Employer Plan during a plan year for which it was a substantial employer, as
defined in Section 4001(a)(2) of ERISA; (e) the satisfaction of the conditions
set forth in Sections 302(f)(1)(A) and (B) of ERISA to the creation of a lien
upon property or rights to property of such Person or any ERISA Affiliate for
failure to make a required payment to a Plan; (f) the adoption of an amendment
to a Plan of such Person or any of its ERISA Affiliates requiring the provision
of security to such Plan, pursuant to Section 307 of ERISA; or (g) the
institution by the PBGC of proceedings to terminate a Plan of such Person or any
of its ERISA Affiliates, pursuant to Section 4042 of ERISA, or the occurrence of
any event or condition described in Section 4042 of ERISA that constitutes
grounds for the termination of, or the appointment of a trustee to administer,
such Plan.
"Eurocurrency Liabilities" has the meaning specified in Regulation D of the
Board of Governors of the Federal Reserve System, as in effect from time to
time.
"Eurodollar Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Eurodollar Lending Office" opposite its name on
Schedule 2.01 or in the Assignment and Acceptance pursuant to which it became a
Lender (or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may from time to time specify to
the Administrative Agent.
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"Eurodollar Rate" means, for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Borrowing, an interest rate per annum equal
to the rate per annum obtained by dividing (a) the average (rounded upward to
the nearest whole multiple of 1/16 of 1% per annum, if such average is not such
a multiple) of the rates per annum at which deposits in U.S. dollars are offered
by the principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at approximately 5:00 P.M. (London
time) two Business Days before the first day of such Interest Period in an
amount substantially equal to such Reference Bank's Eurodollar Rate Advance
comprising part of such Borrowing (determined without giving effect to any
assignments or participations by such Reference Bank) and for a period equal to
such Interest Period by (b) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such Interest Period. The Eurodollar Rate for each
Interest Period for each Eurodollar Rate Advance comprising part of the same
Borrowing shall be determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the Administrative Agent from the
Reference Banks two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.09.
"Eurodollar Rate Advance" means an Advance that bears interest as provided
in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing means the reserve
percentage (if any) applicable two Business Days before the first day of such
Interest Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the
Federal Reserve System in New York City with deposits exceeding $1,000,000,000
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate Advances is
determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excluded Period" means, with respect to any additional amount payable
under Section 2.09 or 2.13, the period ending 120 days prior to the applicable
Lender's delivery of a certificate referenced in Section 2.09(a), 2.09(b) or
2.13(d), as applicable, with respect to such additional amount.
"Excluded Transactions" means, collectively:
(1) Investments contemplated by the Port Neal Transaction;
<PAGE>
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(2) Terra Stock Repurchases;
(3) the purchase, redemption or other acquisition of Senior Preference
Units pursuant to the SPU Redemption;
(4) capital contributions by TMC and BMCH to BMLP required to be made
pursuant to the terms of the BMLP Partnership Agreement or which, if not made,
would result in the occurrence of a "Notice Event" (as defined in the BMLP
Partnership Agreement);
(5) capital contributions by BMLP to its Subsidiaries and by Subsidiaries
of BMLP to their respective Subsidiaries;
(6) capital contributions to Subsidiaries of Terra (other than capital
contributions to members of the BMLP Group not referred to in clauses (4) and
(5) above);
(7) the U.K. Nitrogen Acquisition;
(8) the redemption of the BMLP Class A Limited Partnership Interest
pursuant to the BMLP Partnership Agreement and the BMLP Support and Option
Agreement, and the making of other payments under Article 2 of the BMLP Support
and Option Agreement; and
(9) Investments permitted under Sections 5.02(f)(vi), (viii), (ix), (xv),
(xvi) and (xviii).
"Existing Credit Agreement" has the meaning specified in the Preliminary
Statements to this Agreement.
"Extraordinary Expenses" means, collectively, all expenses of BMLP in
excess of $500,000 for any single occurrence arising from any events,
developments or circumstances occurring after December 31, 1997 relating to or
in connection with or arising out of (a) any "Environmental Law" or
"Environmental Action", (b)(i) the occurrence of any "ERISA Event" with
respect to any "Plan" or any "Withdrawal Liability" to any "Multiemployer Plan",
(ii) the insolvency, reorganization or termination of any "Multiemployer Plan",
within the meaning of Title IV of ERISA, any "accumulated funding deficiency"
(as defined in Section 302 of ERISA and Section 412 of the Internal Revenue
Code), whether or not waived, with respect to one or more of the "Plans", or any
Lien on the property and assets of BMLP or any of the "ERISA Affiliates" of BMLP
in favor of PBGC or any "Plan", (c) local, state or federal income tax in excess
of 6% of taxable income as computed for United States federal income tax
purposes, (d) liability in tort and (e) casualty and condemnation losses. Quoted
terms
<PAGE>
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used in this definition have the meanings given to them in the BMLP Partnership
Agreement.
"Facility" means the Terra Facility or the TNLP Facility.
"Farmland JV" means a joint venture (which may be structured as a
partnership, limited liability company, corporation or other business form)
between TI and Farmland Industries, Inc. (or one of its Affiliates), in which
joint venture TI has at least a 50% ownership interest.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Funded Debt" of any Person means, on any date, the sum (determined without
duplication) of: (a) all Debt of such Person that would be listed as long-term
debt (including Capital Lease Obligations and Major Operating Lease Obligations)
of such Person on a balance sheet of such Person prepared in accordance with
GAAP (including, without limitation, the current portion of such Debt), plus (b)
the aggregate principal amount of all outstanding Advances, plus (c) the
aggregate amount of all Letters of Credit to the extent of unreimbursed drawings
thereunder; provided that:
(1) the term "Funded Debt" shall include letters of credit issued in
connection with the insurance program of Terra and its Subsidiaries only to
the extent of unreimbursed drawings thereunder; and
(2) the term "Funded Debt" shall not include Obligations under Hedge
Agreements.
For all purposes of this Agreement, "Funded Debt" shall not include Guarantees
by Terra U.K. of Terra U.K. Customer Debt.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect as of the date of, and used in, the preparation of the
audited financial statements referred to in Section 4.01(f).
"Guarantee" by any Person means any arrangement by which such Person incurs
Debt of the types referred to in clauses (i) and (j) of the definition of "Debt"
in respect of such Person.
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"Guaranteed Obligations" means the Terra Guaranteed Obligations and the
TNLP Guaranteed Obligations.
"Guarantors" means the Terra Guarantors and the TNLP Guarantors.
"Hazardous Materials" means (a) petroleum or petroleum products, natural or
synthetic gas, asbestos in any form that is or could become friable, and radon
gas, (b) any substances defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials", "extremely hazardous
wastes", "restricted hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants" or "pollutants", or words of similar meaning and regulatory
effect, under any Environmental Law and (c) any other substance exposure to
which is regulated under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts, commodity future or option agreements and other
similar agreements designed to hedge against fluctuations in interest rates,
foreign exchange rates or commodity prices, including, without limitation, (a)
the Terra U.K. Offtake Agreement and (b) the Ammonium Nitrate Hedging Agreement.
"Holdings Pledge Agreement" means the Amended and Restated Pledge Agreement
attached as Exhibit B-1 between Terra Capital Holdings and the Collateral Agent,
as modified by an Amendment to Security Documents and Intercreditor Agreement in
substantially the form of Exhibit B and as further amended from time to time.
"ICI" means, collectively, ICI Chemicals & Polymers Limited and Imperial
Chemical Industries Plc.
"Immaterial Subsidiary" means, as of any date of determination, any
Subsidiary of Terra with not more than $500,000 of assets on such date nor more
than $100,000 of gross income for the fiscal year of Terra ended on or most
recently ended prior to such date.
"Indemnified Party" has the meaning specified in Section 9.04(b).
"Initial Lenders" has the meaning specified in the recital of the parties
to this Agreement.
"Insufficiency" means, with respect to any Plan at any time, the amount, if
any, by which the "accumulated benefit obligation" (as defined in Statement of
Financial Accounting Standards 87) exceeds the fair market value of the assets
of such Plan as of
<PAGE>
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the date of the most recent actuarial valuation for such Plan, calculated using
the actuarial methods, factors and assumptions used in such valuation.
"Intercompany Debt" means Debt owed by Terra or one of its Subsidiaries to
Terra or one of its Subsidiaries.
"Intercompany Receivables Facility" means a facility entered into by the
Company and/or any of its Subsidiaries, as sellers, and one or more Receivables
Subsidiaries, as purchasers, providing for the sale of Receivables by said
sellers to said purchasers.
"Intercreditor Agreement" means the Collateral Agency and Intercreditor
Agreement attached as Exhibit H among the Company, certain of the other
Obligors, the Collateral Agent, the Administrative Agent and the other Secured
Parties referred to therein (or representatives on their behalf), as modified by
an Amendment to Security Documents and Intercreditor Agreement in substantially
the form of Exhibit B and as further amended from time to time.
"Interest Coverage Ratio" means, for any period, the ratio of:
(1) the sum of (x) EBITDA of Terra and its Subsidiaries on a
Consolidated basis for such period plus (y) the aggregate amount of BMLP
First Priority Distributions made during such period (to the extent such
distributions were deducted in determining such EBITDA for such period) to
(2) the sum of (x) Cash Interest Expense of Terra and its Subsidiaries
on a Consolidated basis for such period plus (y) the aggregate amount of
BMLP First Priority Distributions made during such period.
"Interest Period" means, for each Eurodollar Rate Advance comprising part
of the same Borrowing, the period commencing on the date of such Eurodollar Rate
Advance or the date of the Conversion of any Base Rate Advance into such
Eurodollar Rate Advance, and ending on the last day of the period selected by
the relevant Borrower pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the
relevant Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, as the relevant Borrower
may, upon notice received by the Administrative Agent not later than 10:00 A.M.
(New York City time) on the second Business Day prior to the first day of such
Interest Period, select; provided that:
(a) the Company may not select any Interest Period that ends after any
Terra Commitment Reduction Date unless, after giving effect thereto, the
aggregate principal amount of Terra Advances having Interest Periods that
end
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after such Terra Commitment Reduction Date shall be equal to or less than
the aggregate principal amount of Terra Advances scheduled to be
outstanding after giving effect to the payments of principal required to be
made on such Terra Commitment Reduction Date;
(b) no Interest Period for any Advance may end after the relevant
Commitment Termination Date;
(c) whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding Business Day, provided
that, if such extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such Interest
Period shall occur on the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on the last
day of a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month), such
Interest Period shall end on the last Business Day of the appropriate
subsequent calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder.
"Investment" in any Person means any loan or advance to such Person, any
purchase or other acquisition of any capital stock, warrants, rights, options,
obligations or other securities of such Person, any capital contribution to such
Person or any other investment in such Person, including, without limitation,
(a) any arrangement pursuant to which the investor Guarantees Debt of another
Person, (b) the acquisition of all or substantially all of the assets of such
Person or of any division of such Person, and (c) any merger of or consolidation
with such Person; provided that the purchase of equipment, fixed assets, real
property or improvements from such Person do not constitute Investments in such
Person to the extent the same constitute Capital Expenditures.
"Issuing Bank" means each Lender specified on the signature pages hereof as
an "Issuing Bank", together with its successors in such capacity.
"L/C Cash Collateral Account" means the Terra L/C Cash Collateral Account
and the TNLP L/C Cash Collateral Account.
"L/C Related Documents" has the meaning specified in Section 2.13(e).
"Lenders" means the Initial Lenders listed on the signature pages hereof
and each Eligible Assignee that shall become a party hereto pursuant to Section
9.07. When
<PAGE>
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reference is made in this Agreement or any other Loan Document to any "relevant"
Lender in connection with any Facility, such reference shall be deemed to refer
to a Lender that has a Commitment or outstanding Advances under such Facility.
"Letter of Credit Commitment" means the Terra Letter of Credit Commitment
or the TNLP Letter of Credit Commitment.
"Letter of Credit Liability" means a Terra Letter of Credit Liability or a
TNLP Letter of Credit Liability.
"Letter of Credit Sublimit" means the Terra Letter of Credit Sublimit or
the TNLP Letter of Credit Sublimit.
"Letters of Credit" has the meaning specified in Section 2.13(a).
"Lien" means any lien, security interest or other charge or encumbrance of
any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real property.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Security Documents and the Loan Purchase Agreement.
"Loan Purchase Agreement" means an Amended and Restated Loan Purchase
Agreement attached as Exhibit E-1 between the Administrative Agent and Terra, as
modified by the Confirmation of Loan Purchase Agreement in substantially the
form of Exhibit E and as further amended from time to time.
"Major Operating Lease Obligations" means, for any Person, all obligations
of such Person under an operating lease to pay required termination payments or
like payments in an amount exceeding $7,000,000 and in an amount at least equal
to 75% of the original acquisition cost of the leased property under such
operating lease.
"Management Agreements" means one or more management agreements between
Terra and/or certain of its Subsidiaries and other Persons providing for the
performance by Terra or any of such Subsidiaries of certain treasury,
purchasing, legal and/or other services for its Subsidiaries and such other
Persons, as such agreements are in effect from time to time.
"Margin Stock" has the meaning specified in Regulations G, U and X.
"Material Adverse Change" means, with respect to any Person, any material
adverse change in the business, assets, operations, properties or financial
condition of such Person and its Subsidiaries taken as a whole, or any material
adverse change in the
<PAGE>
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contingent liabilities of such Person which could reasonably be expected to
result in any of the foregoing, other than any of the foregoing resulting solely
from a general economic change in the industry of such Person and its
Subsidiaries.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, properties or financial condition of Terra and its
Subsidiaries taken as a whole, or a material adverse effect on the contingent
liabilities of such Person which could reasonably be expected to result in any
of the foregoing, (b) the rights and remedies of the Administrative Agent, any
Issuing Bank or any Lender under any Loan Document or (c) the ability of any
Obligor to perform its Obligations under any Loan Document to which it is or is
to be a party.
"Material Contract" means:
(A) each Hedge Agreement;
(B) each contract to which Terra or any of its Subsidiaries is a party
(a "Specified Party") that (a) provides for the provision of goods or
services by the Specified Party or the receipt of goods or services by the
Specified Party, (b) has a term of more than one year (unless such contract
may be cancelled at the sole option of another Person party to such
contract), (c) involves the payment or receipt by the Specified Party of
consideration having a fair market value in excess of $1,000,000 in any
fiscal year of Terra and (d) provides for either: (i) the provision of
goods or services to another Person that is obligated to purchase from the
Specified Party a specified quantity of such goods or services (but only to
the extent that, if such other Person did not purchase such quantity of
such goods or services, the Specified Party would not be readily able to
sell such goods or services at a price equal to or higher than the price
set in such contract) or (ii) the receipt of goods or services from another
Person that is obligated to supply to the Specified Party a specified
quantity of such goods or services (but only to the extent that, if such
other Person did not supply such quantity of such goods or services, the
Specified Party would not be readily able to purchase such goods or
services at a price less than or equal to the price set in such contract);
and
(C) each contract to which Terra or any of its Subsidiaries is a party
that, if such contract were to be terminated or the obligations of any
other Person party to such contract were to fail to be in full force and
effect, could reasonably be expected, either individually or in the
aggregate with any other such event, to have a Material Adverse Effect.
"Material Subsidiary" means any Subsidiary of Terra other than an
Immaterial Subsidiary.
<PAGE>
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"Minorco" means Minorco, S.A., a Luxembourg societe anonyme, and its
successors.
"Minorco USA" means Minorco (U.S.A.) Inc., a Colorado corporation, and its
successors.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Multiemployer Plan" of any Person means a multiemployer plan, as defined
in Section 4001(a)(3) of ERISA, to which such Person or any of its ERISA
Affiliates is making or accruing an obligation to make contributions, or has
within any of the preceding five plan years made or accrued an obligation to
make contributions.
"Multiple Employer Plan" of any Person means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
such Person or any of its ERISA Affiliates and at least one Person other than
such Person and its ERISA Affiliates or (b) was so maintained and in respect of
which such Person or any of its ERISA Affiliates has or would have liability
under Section 4064 or 4069 of ERISA in the event such plan has been or were to
be terminated.
"Net Available Proceeds" means:
(a) in the case of any Disposition, the aggregate amount of all cash
payments, and the fair market value of any non-cash consideration, received
by Terra and its Subsidiaries directly or indirectly in connection with
such Disposition; provided that (i) such Net Available Proceeds shall be
net of (x) the amount of any legal, title and recording tax expenses,
commissions and other reasonable fees and expenses (including reasonable
expenses of preparing the relevant property for sale) paid by Terra and its
Subsidiaries in connection with such Disposition and (y) any Federal, state
and local income or other taxes estimated in good faith to be payable by
Terra and its Subsidiaries as a result of such Disposition and (ii) such
Net Available Proceeds shall be net of any repayments by Terra or any of
its Subsidiaries of Debt to the extent that (x) such Debt is secured by a
Lien on the property that is the subject of such Disposition and (y) the
transferee of (or holder of a Lien on) such property requires that such
Debt be repaid as a condition to the purchase of such property; and
(b) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation received
by Terra and its Subsidiaries (and, in the case of business interruption
insurance, not contractually required to be paid over to Morgan Stanley
Leveraged Equity Fund II, as agent, or its successors or assigns) in
respect of such Casualty Event net of (A) reasonable expenses incurred by
Terra and its Subsidiaries in connection therewith, (B) contractually
required repayments of Debt to the extent secured by
<PAGE>
-25-
a Lien on the property suffering such Casualty Event and any income and
transfer taxes payable by Terra or any of its Subsidiaries in respect of
such Casualty Event and (C) amounts promptly applied to or set aside for
the repair or replacement of the property suffering such Casualty Event;
provided that the proceeds of insurance received by Terra and its
Subsidiaries in connection with the December 13, 1994 Casualty Event at the
Port Neal Facility shall be deemed to be applied to the repair or
replacement of the Port Neal Facility.
"Net Worth" means, for any Person at any time, the sum of the following for
such Person and its Subsidiaries on a Consolidated basis:
(a) the amount of capital stock; plus
(b) the amount of surplus and retained earnings (or, in the case of a
surplus or retained earnings deficit, minus the amount of such deficit).
"1995 Terra Debt" means Debt incurred by Terra under the 1995 Terra Debt
Indenture.
"1995 Terra Debt Indenture" means the Indenture dated as of June 22, 1995
between Terra and First Trust National Association, as Trustee, providing for
the issuance of Terra's 10.50% Senior Notes, as from time to time amended.
"1996 Receivables Agreement" means the August 1996 Receivables Purchase
Agreement among Terra Funding Corporation, as Seller, the Company, as initial
servicer, the financial institutions party thereto, as Purchasers, and Bank of
America National Trust and Savings Association, as Agent.
"Note" means a Terra Note or a TNLP Note.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Issuance" has the meaning specified in Section 2.13(b)(i).
"Obligation" means, with respect to any Person, any obligation of such
Person of any kind, including, without limitation, any liability of such Person
on any claim, whether or not the right of any creditor to payment in respect of
such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured, and
whether or not such claim is discharged, stayed or otherwise affected by any
proceeding referred to in Section 6.01(g). Without limiting the generality of
the foregoing, the Obligations of the Obligors under the Loan Documents include
(a) their respective obligations to pay principal, interest, Letter of Credit
commissions, charges, expenses, fees, attorneys' fees and disbursements,
indemnities and other amounts payable under any Loan Document and (b) their
<PAGE>
-26-
respective obligations to reimburse any amount in respect of any of the
foregoing that any Lender, in its sole discretion, may elect to pay or advance
on behalf of such Obligor.
"Obligors" means the Terra Obligors and the TNLP Obligors.
"OECD" means the Organization for Economic Cooperation and Development.
"Original Credit Agreement" means the Credit Agreement dated as of October
24, 1994 among the Company, Terra and TNLP, as Borrowers, certain Guarantors,
the "Lenders" and "Issuing Banks" referred to therein and Citibank, as Agent.
"Other Distribution" means a Dividend Payment made with respect to the
capital stock of the Company except to the extent that the Company determines,
reasonably and in good faith, that such Dividend Payment (1) is made to fund one
or more of the items described in the definition of "Specified Payments" in this
Section 1.01 or (2) is made out of the then-available amount of Cumulative
Adjusted Net Income.
"Other Taxes" has the meaning specified in Section 2.11(b).
"Outside Subsidiary" means any Subsidiary of Terra (other than Terra
Capital Holdings or any of its Subsidiaries).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Investments" means:
(a) direct obligations of the United States of America, or of any agency
thereof, or obligations guaranteed as to principal and interest by the United
States of America, or by any agency thereof, in either case maturing not more
than one year from the date of acquisition thereof;
(b) readily marketable direct obligations of the United States of America,
or of any agency thereof, or readily marketable obligations guaranteed as to
principal and interest by the United States of America, or by any agency
thereof, in either case maturing not more than three years from the date of
acquisition thereof (provided that the aggregate amount of Permitted Investments
outstanding at any time under this paragraph (b) having maturities in excess of
one year from the date of determination shall not exceed $25,000,000 at any
time);
(c) readily marketable direct obligations issued by any State of the United
States of America or any political subdivision thereof or of the government of
Canada or any agency thereof, in each case maturing not more than one year from
the date of acquisition thereof and having the highest credit rating obtainable
from either of Moody's or Standard & Poor's;
<PAGE>
-27-
(d) money market mutual funds (including, without limitation, tax-free
money market mutual funds) with assets consisting solely of U.S. Dollars and
securities principally of the types described in paragraphs (a), (b) and (c) in
this definition;
(e) certificates of deposit issued by, repurchase and reverse repurchase
agreements with, banker's acceptances of, and eurodollar time deposits with, any
Initial Lender or any bank or trust company organized under the laws of the
United States of America or any state thereof, having capital, surplus and
undivided profits of at least $500,000,000 (or any national or regional
brokerage firm) and whose unsecured, unguaranteed long-term senior debt
obligations are rated at least A by Standard & Poor's and at least A2 by
Moody's, maturing not more than 270 days from the date of acquisition thereof;
(f) obligations of not more than $100,000 in the aggregate at any one time
of any bank or bank holding company with a capital and surplus of less than
$500,000,000 or whose unsecured, unguaranteed long-term senior debt obligations
are rated less than A by Standard & Poor's or less than A2 by Moody's;
(g) commercial paper and variable rate demand notes, in each case rated at
least A-1 by Standard & Poor's or at least P-1 by Moody's and maturing not more
than 270 days from the date of acquisition thereof;
(h) tax-exempt auction rate preferred stock and taxable and tax-exempt
auction rate securities, in each case rated at least AAA by Standard & Poor's
and Aaa by Moody's and maturing not more than 60 days from the date of
acquisition thereof;
(i) "Liquidity Optimized Guaranteed Investment Contracts" with insurance
companies having short-term debt ratings of at least A-1 by Standard & Poor's
and P-1 by Moody's and maturing not more than 30 days from the date of
acquisition thereof;
(j) Canadian dollar-denominated banker's acceptances of Canadian banks
rated at least R1-mid by Dominion Bond Rating Service ("Dominion") and maturing
not more than one year from the date of acquisition thereof; and
(k) Canadian dollar-denominated commercial paper rated at least R1-mid by
Dominion and maturing not more than one year from the date of acquisition
thereof; and
(l) solely with respect to Terra U.K., (i) British government bonds
maturing not more than one year from the date of acquisition thereof; (ii)
money-market funds or composite funds with assets consisting solely of Pounds
Sterling, high-quality short-term corporate securities and securities
principally of the type described in clause (i) in this paragraph (l); and (iii)
funds held in corporate accounts at banks organized under the laws of the United
Kingdom having capital, surplus and undivided profits not less than
<PAGE>
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$350,000,000 or at branches of U.S. banks located in the United Kingdom of the
quality described in paragraph (e) above.
"Permitted JV" means Britz LLC and Farmland JV.
"Permitted Liens" means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced
(or, if such a proceeding has been commenced, such proceeding is being contested
in good faith by appropriate proceedings and enforcement of any Lien has been
and is stayed):
(a) Liens for taxes, assessments and governmental charges or levies to
the extent not required to be paid under Section 5.01(b),
(b) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens, statutory landlord's Liens and
other similar Liens arising in the ordinary course of business securing
obligations that are not overdue for a period of more than 30 days or which
are being contested in good faith and by appropriate proceedings,
(c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or statutory
obligations,
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases (other than capital leases), surety and
appeal bonds, and performance bonds and other obligations of a like nature
incurred, in each case arising in the ordinary course of business,
(e) as to any particular property at any time, such easements,
encroachments, covenants, rights of way, minor defects, irregularities or
encumbrances on title which do not materially impair the use of such
property for the purpose for which it is held by the owner thereof,
(f) municipal and zoning ordinances that are not violated in any
material respect by the existing improvements and the present use made by
the owner thereof, and
(g) real estate taxes and assessments not yet delinquent.
"Permitted Receivables Facilities" means, collectively:
(a) the Receivables Purchase Agreement dated as of March 31, 1994
among TI, as Seller, the financial institutions party thereto, as
Purchasers, and Bank of America National Trust and Savings Association,
successor to
<PAGE>
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Continental Bank N.A., as agent, as from time to time amended, or any
replacement or refinancing thereof; and
(b) the 1996 Receivables Agreement and one or more additional
facilities entered into by the Company and/or any of its Subsidiaries
(which may be effected by an amendment to the facility referred to in
clause (a) of this definition or otherwise) providing for the sale of
Receivables,
provided that the aggregate amount outstanding under all of the Permitted
Receivables Facilities (other than Intercompany Receivables Facilities), taken
together, may not at any time exceed $150,000,000 plus reasonable reserves.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, limited liability company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Port Neal Facility" means TI's facility in Port Neal, Iowa.
"Port Neal Transaction" means the "Proposed Transaction" under and as
defined in the Consent, Waiver and Amendment dated as of July 31, 1995 relating
to the Existing Credit Agreement.
"Post-Default Rate" means a rate per annum equal to 2% plus the Applicable
Margin plus the Base Rate as in effect from time to time.
"Pounds Sterling" and "(Pounds)" means lawful money of the United Kingdom.
"Preferred Stock" means, with respect to any corporation, capital stock
issued by such corporation that is entitled to a preference or priority over any
other capital stock issued by such corporation upon any distribution of such
corporation's assets, whether by dividend or upon liquidation.
"Pro Rata Share" of any amount means, with respect to any Lender under any
Facility at any time, the product of (a) a fraction the numerator of which is
the amount of such Lender's Advances under such Facility (or, in the case of a
Facility prior to the Commitment Termination Date for such Facility, the amount
of such Lender's Commitment under such Facility), and the denominator of which
is the aggregate Advances or Commitments, as the case may be, under such
Facility at such time, multiplied by (b) such amount.
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"Purchase Event" means:
(1) that during any period commencing January 1, 1995, the aggregate
amount of Dividend Payments with respect to the capital stock of the
Company during such period exceeds the sum of:
(a) the aggregate amount of Specified Payments for such period
plus
(b) Cumulative Adjusted Net Income for such period plus
(c) the amounts available during such period for Restricted
Transactions under Section 5.02(h)(A) (provided that this clause (c)
shall be determined, with respect to all periods prior to the
Restatement Date, as provided in the Existing Credit Agreement) to the
extent not utilized for Restricted Transactions during such period; or
(2) that:
(A) Liens on or with respect to any property of the Company or any of
its Subsidiaries have been created in favor of Terra or any of its
Subsidiaries, other than Liens permitted under any of clauses (i) through
(xix) of Section 5.02(a); or
(B) the Company or any of its Subsidiaries has any outstanding Debt
owing to Terra or any of its Subsidiaries, other than Debt permitted to be
outstanding under any of clauses (i) through (ix) of Section 5.02(b)(2); or
(C) the Company or any of its Subsidiaries has sold, transferred or
otherwise disposed of any of its property to Terra or any of its
Subsidiaries, other than sales, transfers or other dispositions permitted
under any of clauses (i) through (xi) of Section 5.02(e); or
(D) the Company or any of its Subsidiaries has made any Investments in
Terra or any of its Subsidiaries, other than Investments permitted under
any of clauses (i) through (xxiv) of Section 5.02(f).
"Quarterly Dates" means March 31, June 30, September 30 and December 31 in
each year, the first of which shall be the first such day after the Restatement
Date, provided that, if any such day is not a Business Day, the relevant
Quarterly Date shall be the immediately preceding Business Day.
"Receivables" means accounts and notes receivable and, in each case,
related reserves.
<PAGE>
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"Receivables Subsidiary" means a Subsidiary of the Company that meets both
of the following criteria:
(1) such Subsidiary is formed solely for the purpose of, and is
engaged solely in the business of, (x) purchasing Receivables of the
Company and one or more of its Subsidiaries under an Intercompany
Receivables Facility and, at its option, selling all or a portion of such
Receivables under a Permitted Receivables Facility and/or (y) owning the
capital stock of, or other ownership interests in, one or more Receivables
Subsidiaries; and
(2) all of the capital stock of and/or other ownership interests in,
such Subsidiary (other than, in the case of a Subsidiary of the Company
that is an obligor or a seller under a Permitted Receivables Facility,
shares of preferred stock of such Subsidiary having a de minimis
liquidation value, which preferred shares may be held by one or more
financial institutions party to such Permitted Receivables Facility or
their designees, including one or more individuals, and their successors)
is owned beneficially and of record, directly or indirectly, by Terra
Capital Holdings, the Company and/or one or more other Receivables
Subsidiaries.
"Redeemable" means any capital stock, Debt or other right or Obligation
that (a) the issuer thereof has undertaken to redeem at a fixed or determinable
date or dates prior to the Terra Commitment Termination Date hereunder, whether
by operation of a sinking fund or otherwise, or upon the occurrence of a
condition not solely within the control of the issuer or (b) is redeemable on
any date prior to the Terra Commitment Termination Date at the option of the
holder thereof. For purposes of this Agreement, the BMLP Class A Limited
Partnership Interest shall not be deemed to be "Redeemable".
"Reference Banks" means Citibank, Bank of America National Trust and
Savings Association, NationsBank, N.A. and The Bank of Nova Scotia (or their
respective Applicable Lending Offices, as the case may be).
"Register" has the meaning specified in Section 9.07(c).
"Regulation G", "Regulation U" and "Regulation X" mean Regulations G, U and
X of the Board of Governors of the Federal Reserve System, respectively, as in
effect from time to time.
"Required Lenders" means at any time Lenders owed or holding in the
aggregate at least 51% of the sum of the then aggregate unpaid principal amount
of the Advances, the then aggregate Unused Commitments and the aggregate
Available Amount of all Letters of Credit. For purposes of this definition, the
Available Amount of each Letter of Credit shall be considered to be owed to the
relevant Lenders according to their
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respective Pro Rata Shares of the Facility under which such Letter of Credit has
been issued.
"Restatement Date" has the meaning assigned to such term in Section 3.01.
"Restricted Transactions" means, collectively, Capital Expenditures and
Specified Acquisitions.
"Retiring Lender" means each "Lender" under the Existing Credit Agreement
identified under the caption "RETIRING LENDERS" on the signature pages hereof.
"Rolling Period" means any period of four consecutive fiscal quarters of
Terra.
"Sale of Business Agreement" means the Sale of Business Agreement relating
to the ICI Fertilizer Business dated November 20, 1997 between ICI, Terra U.K.
and Terra providing for the U.K. Nitrogen Acquisition, as from time to time
amended (without prejudice to Section 5.02(l)).
"Security Documents" means the Holdings Pledge Agreement, the Terra Capital
Pledge Agreement, the Subsidiary Pledge and Security Agreement, the TNLP Pledge
and Security Agreement, each security agreement or other grant of security now
or hereafter made by any Obligor to secure any of the Obligations hereunder and
under the other Loan Documents, and all Uniform Commercial Code financing
statements required by this Agreement or any of the foregoing to be filed with
respect to the security interests in personal property created pursuant thereto.
"Senior Financial Officer" means the Chief Financial Officer of Terra.
"Senior Preference Units" means, collectively, (a) the "Senior Preference
Units" issued and outstanding under, and as defined in, the Agreement of Limited
Partnership dated as of December 4, 1991 of TNCLP, as such Agreement of Limited
Partnership is in effect on the Restatement Date, and (b) the "Common Units"
into which such Senior Preference Units have been converted in accordance with
Section 5.5 of such Agreement of Limited Partnership.
"Single Employer Plan" of any Person means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that is subject to Title IV of ERISA
and that (a) is maintained for employees or former employees of such Person or
any of its ERISA Affiliates and no Person other than such Person and its ERISA
Affiliates or (b) was so maintained and in respect of which such Person or any
of its ERISA Affiliates has or would have liability under Section 4069 of ERISA
in the event such plan has been or were to be terminated.
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"Solvent" and "Solvency" mean, with respect to any Person on a particular
date, that on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (b) the present fair salable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured, (c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person's property would constitute an unreasonably small capital.
"Specified Acquisitions" means Investments (including, without limitation,
Investments arising by reason of any merger or consolidation permitted under
Sections 5.02(d)(i)(y) and 5.02(d)(ii)(y), but excluding the Excluded
Transactions) consisting of acquisitions of ownership interests in one or more
entities engaged in the same or allied line or lines of business as Terra and
its Subsidiaries, taken as a whole. For purposes hereof, the amount of Specified
Acquisitions made during any period shall include, without duplication, the
aggregate amount of Investments in Permitted JVs (other than Investments
referred to in clauses (xvi) and (xviii)(y) of Section 5.02(f)) made during such
period and the aggregate amount of payments made during such period by Terra and
its Subsidiaries in respect of the Obligations referred to in clauses (xiv),
(xv), (xvi) and (xvii) of Section 5.02(b)(1).
"Specified Call Option" means a cash-settled call option with respect to a
U.S. Stock Index, which call option (a) has an expiration date not later than
March 31, 1998, (b) is entered into with a counterparty (or designated
guarantor) having (at the time of acquisition thereof) senior, unsecured long-
term debt rated at least BBB by Standard & Poor's and Baa2 by Moody's and (c) is
documented under an agreement that permits close-out and netting of all call
options thereunder.
"Specified Payments" means, for any period, (a) all interest due and
payable on the AMCI Senior Notes and on the 1995 Terra Debt during such period,
(b) all scheduled dividends payable during such period on convertible Preferred
Stock or other equity securities issued and applied to prepay the Advances (to
the extent the Commitments hereunder are reduced simultaneously with such
issuance), (c) ordinary and necessary expenses incurred by Terra as a result of
its operations as a publicly-held holding company and (d) other payments in an
aggregate amount up to $5,000,000 per year to the extent required under pre-
existing obligations.
"SPU Redemption" means the purchase, redemption or other acquisition from
time to time of all or a portion of the outstanding Senior Preference Units by
Terra and its Subsidiaries (or any of them):
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(a) on such terms and conditions as could not reasonably be expected
to have a Material Adverse Effect; and
(b) in accordance in all material respects with the terms and
conditions hereof.
"SPU Redemption Time" means the time as of which all of the Senior
Preference Units shall have been purchased or otherwise redeemed pursuant to the
SPU Redemption.
"Standard & Poor's" means Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc., and its successors.
"Subordinated Indebtedness" means Debt of Terra or any of its Subsidiaries
the payment of which is subordinated in right of payment to the prior payment in
full of the Advances.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such partnership,
joint venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or controlled
by such Person, by such Person and one or more of its other Subsidiaries or by
one or more of such Person's other Subsidiaries. For all purposes of this
Agreement and the other Loan Documents, BMLP and each of BMLP's Subsidiaries
shall be deemed to be Subsidiaries of the Company so long as TMC or one of TMC's
Subsidiaries is the sole general partner of BMLP.
"Subsidiary Guarantor" means, collectively, (x) TNC, BMCH, TMC and TI and
(y) from and after the SPU Redemption Time, TNLP and its successors.
"Subsidiary Pledge and Security Agreement" means the Amended and Restated
Pledge and Security Agreement attached as Exhibit B-3 between certain of the
Guarantors and the Collateral Agent, as modified by an Amendment to Security
Documents and Intercreditor Agreement in substantially the form of Exhibit B and
as further amended from time to time.
"Terra" means Terra Industries Inc., a Maryland corporation and an indirect
parent of the Company.
"Terra Advance" means an Advance made or outstanding pursuant to Section
2.01(a).
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"Terra Borrowing" means a borrowing consisting of simultaneous Terra
Advances of the same Type.
"Terra Canada" means Terra International (Canada) Inc., a corporation
governed by the laws of Ontario and an indirect wholly owned Subsidiary of the
Company.
"Terra Canada Credit Facility" means the Credit Agreement dated as of
December 31, 1997 and amended and restated as of March 31,1998 among Terra
Canada, the lenders party thereto and Citibank, as administrative agent for said
lenders, as from time to time amended.
"Terra Canada Group" means, collectively, Terra Canada and its
Subsidiaries, and a "member" of the Terra Canada Group means, individually,
Terra Canada and each such Subsidiary.
"Terra Capital Holdings" means Terra Capital Holdings, Inc., a Delaware
corporation and the direct parent of the Company.
"Terra Capital Note" has the meaning assigned to such term in Section
5.02(b)(2)(iii).
"Terra Capital Pledge Agreement" means the Amended and Restated Pledge
Agreement attached as Exhibit B-2 between the Company and the Collateral Agent,
as modified by an Amendment to Security Documents and Intercreditor Agreement in
substantially the form of Exhibit B and as further amended from time to time.
"Terra Commitment" has the meaning specified in Section 2.01(a).
"Terra Commitment Reduction Dates" shall mean the Quarterly Dates falling
on or nearest to December 31 of each year, commencing with December 31, 1998,
through and including December 31, 2000.
"Terra Commitment Termination Date" means the earlier of (a) December 31,
2002 (provided that if such day is not a Business Day, the Terra Commitment
Termination Date shall be the immediately preceding Business Day), and (b) the
termination or cancellation of the Terra Commitments pursuant to the terms of
this Agreement.
"Terra Facility" means the revolving credit facility provided hereunder in
respect of the Terra Commitments.
"Terra Guaranteed Obligations" has the meaning specified in Section 8.01.
<PAGE>
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"Terra Guarantors" means, collectively, (x) Terra, Terra Capital Holdings,
TNC, TI, BMCH and TMC and (y) from and after the SPU Redemption Time, TNLP and
its successors.
"Terra L/C Cash Collateral Account" means one or more cash collateral
accounts maintained by the Administrative Agent with Citibank for the benefit of
the Lenders and Issuing Banks.
"Terra Letter of Credit" means a letter of credit issued by an Issuing Bank
for account of the Company or any of its Subsidiaries (other than, prior to the
SPU Redemption Time, TNLP or any of its Subsidiaries) pursuant to Section
2.13(a).
"Terra Letter of Credit Commitment" means, with respect to any Issuing Bank
at any time, the amount set forth opposite such Issuing Bank's name on Schedule
2.01 under the caption "Terra Letter of Credit Commitment", as such amount may
be reduced pursuant to Section 2.04.
"Terra Letter of Credit Liability" means, as of any date of determination,
all of the liabilities of the Company to the Issuing Banks in respect of Terra
Letters of Credit, whether such liability is contingent or fixed, and shall
consist of the sum of (a) the aggregate Available Amount of all Terra Letters of
Credit then outstanding, plus (b) the aggregate amount that has then been paid
by, and has not been reimbursed to, any Issuing Bank under Terra Letters of
Credit.
"Terra Letter of Credit Sublimit" means (a) prior to the SPU Redemption
Time, $30,000,000 and (b) from and after the SPU Redemption Time, $45,000,000.
"Terra Note" means a promissory note of the Company payable to the order of
a Lender, in substantially the form of Exhibit A-1, as from time to time
amended.
"Terra Obligors" means the Terra Guarantors and the Company.
"Terra Stock Repurchase" means the purchase, redemption, retirement or
other acquisition of shares of common stock of Terra.
"Terra U.K." means Terra Nitrogen (U.K.) Limited, a corporation formed
under the laws of England and a wholly owned Subsidiary of Terra Canada.
"Terra U.K. Customer Debt" means Debt of a customer of Terra U.K. owing to
Capital Bank Plc or another financial institution in the United Kingdom,
provided that:
(1) such customer uses the entire principal proceeds of such Debt to
pay for goods and services purchased from Terra U.K.;
<PAGE>
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(2) such customer is required to repay such Debt in full within
12 months of the date on which such Debt is incurred;
(3) in the reasonable opinion of Terra U.K., such customer is
creditworthy; and
(4) it is a condition of the extension of credit by Capital Bank
Plc (or such other financial institution) to such customer that Terra
U.K. Guarantee a portion of such Debt.
"Terra U.K. Holdings" means Terra (U.K.) Holdings, Inc., a Delaware
corporation and a direct Subsidiary of BMLP.
"Terra U.K. Loan" has the meaning specified in Section 5.02(b)(2)(iv).
"Terra U.K. Loan Agreement" means the credit agreement, loan
agreement, promissory note or other agreement providing for the Terra U.K.
Loan, as from time to time amended.
"Terra U.K. Offtake Agreement" means, collectively, one or more
nitrogen products offtake agreements between the Company and Terra U.K.
entered into in connection with the BMLP Transactions, as from time to time
amended.
"TI" means Terra International, Inc., a Delaware corporation and a
wholly owned Subsidiary of the Company.
"TMC" means Terra Methanol Corporation, a Delaware corporation.
"TNC" means Terra Nitrogen Corporation, a Delaware corporation and a
wholly owned Subsidiary of the Company.
"TNCLP" means Terra Nitrogen Company, L.P., a Delaware limited
partnership and a Subsidiary of the Company.
"TNLP Advance" means an Advance made or outstanding pursuant to
Section 2.01(b).
"TNLP Borrowing" means a borrowing consisting of simultaneous TNLP
Advances of the same Type.
"TNLP L/C Cash Collateral Account" means one or more cash collateral
accounts maintained by the Administrative Agent with Citibank for the
benefit of the Lenders and Issuing Banks.
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"TNLP Commitment" has the meaning specified in Section 2.01(b).
"TNLP Commitment Termination Date" means the earliest of (a) December
31, 2002 (provided that if such day is not a Business Day, the TNLP
Commitment Termination Date shall be the immediately preceding Business
Day), (b) the termination or cancellation of the TNLP Commitments pursuant
to the terms of this Agreement, and (c) the date on which the SPU
Redemption Time occurs.
"TNLP Facility" means the revolving credit facility provided hereunder
in respect of the TNLP Commitments.
"TNLP Guaranteed Obligations" has the meaning specified in Section
8.01.
"TNLP Guarantors" means, collectively, Terra, Terra Capital Holdings,
the Company, TNC, TI, TMC and BMCH.
"TNLP Letter of Credit" means a letter of credit issued by an Issuing
Bank for account of TNLP or any of its Subsidiaries pursuant to Section
2.13(a).
"TNLP Letter of Credit Commitment" means, with respect to any Issuing
Bank at any time, the amount set forth opposite such Issuing Bank's name on
Schedule 2.01 under the caption "TNLP Letter of Credit Commitment", as such
amount may be reduced pursuant to Section 2.04.
"TNLP Letter of Credit Liability" means, as of any date of
determination, all of the liabilities of TNLP to the Issuing Banks in
respect of TNLP Letters of Credit, whether such liability is contingent or
fixed, and shall consist of the sum of (a) the aggregate Available Amount
of all TNLP Letters of Credit then outstanding, plus (b) the aggregate
amount that has then been paid by, and has not been reimbursed to, any
Issuing Bank under TNLP Letters of Credit.
"TNLP Letter of Credit Sublimit" means $15,000,000.
"TNLP Note" means a promissory note of TNLP payable to the order of a
Lender, in substantially the form of Exhibit A-2, as from time to time
amended.
"TNLP Obligors" means the TNLP Guarantors and TNLP.
"TNLP Pledge and Security Agreement" means the Amended and Restated
Pledge and Security Agreement in the form of Exhibit B-4 between TNLP and
the Collateral Agent, as modified by an Amendment to Security Documents and
Intercreditor Agreement in substantially the form of Exhibit B and as
further amended from time to time.
<PAGE>
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"Type" refers to the distinction between Advances bearing interest at
the Base Rate and Advances bearing interest at the Eurodollar Rate.
"U.K. Nitrogen Acquisition" means the acquisition by the Company,
indirectly through Terra U.K., of the U.K. Nitrogen Assets from ICI
pursuant to the Sale of Business Agreement.
"U.K. Nitrogen Assets" means the "Assets", as defined in the Sale of
Business Agreement.
"Unused Commitment" means, at any time, the aggregate amount of all
Lenders' Unused Terra Commitments at such time and all Lenders' Unused TNLP
Commitments at such time.
"Unused Terra Commitment" means, with respect to any Lender at any
time, (a) such Lender's Terra Commitment at such time minus (without
duplication) (b) the sum of (i) the aggregate outstanding principal amount
of all Terra Advances made by such Lender and (ii) such Lender's Pro Rata
Share of the aggregate Available Amount of all Terra Letters of Credit
outstanding at such time and of all unreimbursed drawings thereunder.
"Unused TNLP Commitment" means, with respect to any Lender at any
time, (a) such Lender's TNLP Commitment at such time minus (without
duplication) (b) the sum of (i) the aggregate outstanding principal amount
of all TNLP Advances made by such Lender and (ii) such Lender's Pro Rata
Share of the aggregate Available Amount of all TNLP Letters of Credit
outstanding at such time and of all unreimbursed drawings thereunder.
"U.S. Dollars" and "$" means lawful money of the United States of
America.
"U.S. Stock Index" means a nationally-recognized diversified index of
equity securities (which may relate to a single industry) of companies that
are predominantly domiciled or doing business in the United States.
Section 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" mean
"to but excluding".
Section 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP.
<PAGE>
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
Section 2.01. The Advances.
(a) Terra Facility.
(i) Each Lender severally agrees, on the terms and conditions hereinafter
set forth, to make advances ("Terra Advances") to the Company from time to time
on any Business Day during the period from the Restatement Date until the Terra
Commitment Termination Date in an aggregate amount at any one time outstanding
not to exceed the amount set forth opposite such Lender's name on Schedule 2.01
under the caption "Terra Commitment" or, if such Lender has entered into one or
more Assignments and Acceptances, set forth for such Lender in the Register as
such Lender's "Terra Commitment" (such amount being such Lender's "Terra
Commitment"), and, as to all Lenders, in an aggregate amount at any one time
outstanding not to exceed $350,000,000 (provided that at all times prior to the
SPU Redemption Time the aggregate amount of the Terra Commitments shall be
deemed to be reduced for all purposes hereof by the aggregate amount of the TNLP
Commitments as in effect from time to time).
On the Restatement Date, all outstanding "Terra Advances" of each Lender
under the Existing Credit Agreement shall automatically, without any action on
the part of any Person, be deemed to be Terra Advances hereunder; and each
Initial Lender (if any) whose relative proportion of the Terra Commitments
hereunder is increasing over the proportion of the "Terra Commitments" held by
it under the Existing Credit Agreement shall, by assignments from the other
Initial Lenders (which shall be deemed to occur automatically on the Restatement
Date), acquire a portion of the Terra Advances of the Initial Lenders so
designated in such amounts (and the Initial Lenders shall, through the
Administrative Agent, make such additional adjustments among themselves as shall
be necessary) so that on the Restatement Date, after giving effect to such
assignments and adjustments, the Initial Lenders shall hold the Terra Advances
hereunder ratably in accordance with their respective Terra Commitments. On the
Restatement Date, the Company will repay the "Terra Advances" held by each
Retiring Lender under (and as defined in) the Existing Credit Agreement and all
accrued fees and other amounts payable with respect thereto and, upon such
repayment, each Retiring Lender shall cease to be a Lender for all purposes of
this Agreement and the other Basic Documents.
On the Restatement Date all Interest Periods under the Existing Credit
Agreement in respect of the "Terra Advances" under and as defined in the
Existing Credit Agreement shall automatically be terminated, and, subject to the
provisions of Section 2.01(c), the Company shall be permitted to Continue such
"Terra Advances" as Eurodollar Rate
<PAGE>
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Advances hereunder, or to Convert such "Terra Advances" into Base Rate
Advances hereunder.
(ii) The Terra Advances shall be made by the Lenders ratably
according to their respective Terra Commitments.
(iii) Within the limits of each Lender's Terra Commitment in effect
from time to time, the Company may borrow under this Section 2.01(a) and/or
obtain the issuance of Letters of Credit under Section 2.13, prepay
pursuant to Section 2.05(a) and reborrow under this Section 2.01(a);
provided that the aggregate outstanding principal amount of Terra Advances
when added to the aggregate Terra Letter of Credit Liability may not at any
time exceed the aggregate amount of the Terra Commitments at such time.
(iv) The proceeds of the Terra Advances shall be used solely (A) for
general corporate purposes of the Company and its Subsidiaries (other than,
prior to the SPU Redemption Time, TNLP and its successors), including,
without limitation, to finance the ongoing working capital needs of, and to
refinance outstanding Debt of, such Persons, (B) to finance all or a
portion of the SPU Redemption (provided that proceeds of Terra Advances
used for such purpose shall not exceed $125,000,000 in the aggregate) and
(C) to finance the purchase, redemption, retirement or other acquisition of
shares of common stock of Terra.
(v) Notwithstanding the foregoing provisions of Section 2.01(a), the
Company agrees that, for a period of 30 consecutive days during each fiscal
year it will prepay the Terra Advances in such amounts as shall be
necessary so the aggregate outstanding principal amount of the Terra
Advances shall not exceed the Terra Cleanup Amount as in effect at such
time; provided that this Section 2.01(a)(v) shall not prevent the Company
from requesting the issuance of Terra Letters of Credit during any such
period pursuant to Section 2.13, or the Lenders from making Terra Advances
in respect thereof pursuant to Section 2.13(c), which Terra Advances
(subject to the other terms and conditions of this Agreement) may remain
outstanding during such period. For purposes hereof, "Terra Cleanup Amount"
means, at any time during the periods set forth in column (A) below, the
respective amount set forth for such period in column (B) below:
<TABLE>
<CAPTION>
(A) (B)
Period Terra Cleanup Amount
-------- --------------------
<S> <C>
From January 1, 1998 to $90,000,000
December 31, 1998
From January 1, 1999 to $60,000,000
December 31, 1999
From and after January 1, 2000 $30,000,000
</TABLE>
<PAGE>
-42-
(b) TNLP Facility.
(i) Each Lender severally agrees, on the terms and conditions hereinafter
set forth, to make advances ("TNLP Advances") to TNLP from time to time on any
Business Day during the period from the Restatement Date until the TNLP
Commitment Termination Date in an aggregate amount at any one time outstanding
not to exceed the amount set forth opposite such Lender's name on Schedule 2.01
under the caption "TNLP Commitment" or, if such Lender has entered into one or
more Assignments and Acceptances, set forth for such Lender in the Register as
such Lender's "TNLP Commitment" (such amount being such Lender's "TNLP
Commitment"), and, as to all Lenders, in an aggregate amount at any one time
outstanding not to exceed $25,000,000.
On the Restatement Date, all outstanding "TNLP Advances" of each Lender
under the Existing Credit Agreement shall automatically, without any action on
the part of any Person, be deemed to be TNLP Advances hereunder; and each
Initial Lender (if any) whose relative proportion of the TNLP Commitments
hereunder is increasing over the proportion of the "TNLP Commitments" held by it
under the Existing Credit Agreement shall, by assignments from the other Initial
Lenders (which shall be deemed to occur automatically on the Restatement Date),
acquire a portion of the TNLP Advances of the Initial Lenders so designated in
such amounts (and the Initial Lenders shall, through the Administrative Agent,
make such additional adjustments among themselves as shall be necessary) so that
on the Restatement Date, after giving effect to such assignments and
adjustments, the Initial Lenders shall hold the TNLP Advances hereunder ratably
in accordance with their respective TNLP Commitments. On the Restatement Date,
TNLP will repay the "TNLP Advances" held by each Retiring Lender under (and as
defined in) the Existing Credit Agreement and all accrued fees and other amounts
payable with respect thereto and, upon such repayment, each Retiring Lender
shall cease to be a Lender for all purposes of this Agreement and the other
Basic Documents.
On the Restatement Date all Interest Periods under the Existing Credit
Agreement in respect of the "TNLP Advances" under and as defined in the Existing
Credit Agreement shall automatically be terminated, and, subject to the
provisions of Section 2.01(c), TNLP shall be permitted to Continue such "TNLP
Advances" as Eurodollar Rate Advances hereunder, or to Convert such "TNLP
Advances" into Base Rate Advances hereunder.
(ii) The TNLP Advances shall be made by the Lenders ratably according to
their respective TNLP Commitments.
(iii) Within the limits of each Lender's TNLP Commitment in effect from
time to time, TNLP may borrow under this Section 2.01(b) and/or obtain the
issuance of Letters of Credit under Section 2.13, prepay pursuant to Section
2.05(a) and reborrow under this Section 2.01(b); provided that the aggregate
outstanding principal amount of TNLP
<PAGE>
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Advances when added to the aggregate TNLP Letter of Credit Liability may
not at any time exceed the aggregate amount of the TNLP Commitments at such
time.
(iv) The proceeds of the TNLP Advances shall be used solely (A) for
general corporate purposes of TNLP, including, without limitation, to
finance its ongoing working capital needs and to refinance outstanding Debt
and (B) to finance all or a portion of the SPU Redemption.
(c) Minimum Amounts. Each Borrowing shall be in an aggregate amount
at least equal to $3,000,000 or an integral multiple of $1,000,000 in excess
thereof.
(d) No Responsibility to Third Parties. Neither the Administrative
Agent nor any Lender nor any Issuing Bank shall have any responsibility as to
the application or use of any of the proceeds of any Advance.
Section 2.02. Making the Advances.
(a) (i) Except as otherwise provided in Section 2.13, each Borrowing
shall be made on notice, given not later than 11:00 A.M. (New York City
time) on the Business Day of (or, with respect to a Borrowing of Eurodollar
Rate Advances, 10:00 A.M. (New York City time) on the second Business Day
prior to the date of) the proposed Borrowing, by the relevant Borrower to
the Administrative Agent, which shall give to each Lender prompt notice
thereof by telex, telecopier or cable. Each such notice of a Borrowing (a
"Notice of Borrowing") shall be by telex, telecopier or cable, confirmed
immediately in writing, in substantially the form of Exhibit C, specifying
therein (1) the requested date of such Borrowing, (2) the Facility under
which such Borrowing is to be made, (3) the requested Type of Advances
comprising such Borrowing, (4) the requested aggregate amount of such
Borrowing and (5) in the case of a Borrowing consisting of Eurodollar Rate
Advances, the requested initial Interest Period for each such Advance.
(ii) In the case of a proposed Borrowing comprised of Eurodollar Rate
Advances, the Administrative Agent shall promptly notify each relevant
Lender of the applicable interest rate under Section 2.06(a)(ii).
(iii) Each Lender shall, before 1:00 P.M. (New York City time) on the
date of each Borrowing after the Restatement Date, make available for the
account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's ratable
portion of such Borrowing. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will transfer same day funds to the
relevant Borrower's Account; provided that (i) in the case of any Terra
Borrowing, the Administrative Agent shall first make a portion of such
funds equal to any unreimbursed drawing under any Terra Letter of Credit
available to each Issuing Bank having issued any such Letter of Credit for
reimbursement of such drawing, and (ii) in the
<PAGE>
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case of any TNLP Borrowing, the Administrative Agent shall first make a
portion of such funds equal to any unreimbursed drawing under any TNLP
Letter of Credit available to each Issuing Bank having issued any such
Letter of Credit for reimbursement of such drawing.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) neither Borrower may select Eurodollar Rate Advances (y) for any Borrowing
if the aggregate amount of such Borrowing is less than $3,000,000 or (z) if the
obligation of the relevant Lenders to make Eurodollar Rate Advances shall then
be suspended pursuant to Section 2.08 or 2.09, and (ii) Eurodollar Rate Advances
may not be outstanding under more than 15 separate Interest Periods under either
Facility at any one time.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
relevant Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the relevant
Borrower shall indemnify each relevant Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or before the
date specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part of such Borrowing
when such Advance, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice from a
relevant Lender prior to 12:00 Noon (New York City time) on the date of any
Borrowing that such Lender will not make available to the Administrative Agent
such Lender's ratable portion of such Borrowing, the Administrative Agent may
assume that such Lender has made such portion available to the Administrative
Agent on the date of such Borrowing in accordance with Section 2.02(a) and the
Administrative Agent may, in reliance upon such assumption, make available to
the relevant Borrower on such date a corresponding amount. If and to the extent
that such Lender shall not have so made such ratable portion available to the
Administrative Agent and the Administrative Agent shall have made available such
corresponding amount to the relevant Borrower, such Lender and the relevant
Borrower severally agree to repay 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 relevant Borrower until the
date such amount is repaid to the Administrative Agent, at (i) in the case of
the relevant Borrower, the interest rate applicable at such time under Section
2.06 to Advances comprising such Borrowing and (ii) in the case of such Lender,
the Federal Funds Rate. If such Lender shall repay to the Administrative Agent
such corresponding amount, such amount so repaid shall constitute such Lender's
Advance as part of such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any
<PAGE>
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other Lender to make the Advance to be made by such other Lender on the date of
any Borrowing.
Section 2.03. Repayment.
(a) Terra Advances. The Company hereby promises to pay to the
Administrative Agent for the account of each Lender the full outstanding
principal amount of the Terra Advances of such Lender on the Terra Commitment
Termination Date. In addition, if following any Terra Commitment Reduction Date
the aggregate principal amount of the Terra Advances, together with the
aggregate amount of all Terra Letter of Credit Liabilities, shall exceed the
Terra Commitments, the Company shall, first, pay Advances and, second, provide
cover for Terra Letter of Credit Liabilities in the manner specified in Section
2.05(d)) in an aggregate amount equal to such excess.
(b) TNLP Advances. TNLP hereby promises to pay to the Administrative
Agent for the account of each Lender the full outstanding principal amount of
the TNLP Advances of such Lender on the TNLP Commitment Termination Date.
(c) All Advances. All repayments of principal under this Section
2.03 shall be made together with interest accrued to the date of such repayment
on the principal amount repaid.
Section 2.04. Termination or Reduction of the Commitments.
(a) Optional. The Borrowers may at any time or from time to time,
upon not less than two Business Days' notice to the Administrative Agent,
terminate in whole or reduce in part the Commitments under the relevant
Facility, provided that (i) each partial reduction of the Commitments under such
Facility shall be in an aggregate amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof, and (ii) the aggregate amount of the
Commitments under either Facility shall not be reduced below the Letter of
Credit Commitment for such Facility.
(b) Mandatory -- Terra Commitments. The Terra Commitments shall be
automatically and permanently reduced to zero on the Terra Commitment
Termination Date. In addition, the aggregate amount of the Terra Commitments
shall be automatically reduced on each Terra Commitment Reduction Date set forth
in column (A) below to the amount set forth in column (B) below opposite such
Terra Commitment Reduction Date:
<PAGE>
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(A) (B)
Terra Terra
Commitment Reduction Commitments Reduced
Date Falling on or to the Following
Nearest to: Amounts ($)
------------------- -------------------
December 31, 1998 $330,000,000
December 31, 1999 $310,000,000
(c) Mandatory -- TNLP Commitments. The TNLP Commitments shall be
automatically and permanently reduced to zero on the TNLP Commitment Termination
Date.
(d) Reductions Pro Rata. Each reduction of the Commitments under a
Facility shall be applied to the respective Commitments of the Lenders according
to their respective Pro Rata Shares of such Facility.
(e) General. Commitments once terminated or reduced may not be
reinstated.
Section 2.05. Prepayments, Etc.
(a) Optional Prepayments. (i) Either Borrower may, upon at least two
Business Days' notice (in the case of prepayment of Eurodollar Rate
Advances) or upon notice given on the date of prepayment (in the case of
prepayments of Base Rate Advances) to the Administrative Agent (which
notice shall state the Facilities to be prepaid and the proposed date and
aggregate principal amount of the prepayment), and if such notice is given
such Borrower shall, prepay the outstanding principal amount of the
Advances under the specified Facilities in the aggregate amount and on the
date specified in such notice, together with accrued interest to the date
of such prepayment on the principal amount prepaid; provided that (x) each
partial prepayment shall be in an aggregate principal amount of $3,000,000
or an integral multiple of $1,000,000 in excess thereof, (y) any such
prepayment of a Eurodollar Rate Advance other than on the last day of the
Interest Period therefor shall be accompanied by, and subject to, the
payment of any amount payable under Section 9.04(c) in respect of such
prepayment and (z) each such notice shall be made on the relevant day not
later than, in the case of prepayments of Eurodollar Rate Advances, 10:00
A.M. (New York City time) and, in the case of prepayments of Base Rate
Advances, 12:00 Noon (New York City time).
(ii) Each prepayment of Advances under this Section 2.05(a) shall be
made for account of the relevant Lenders according to their respective Pro
Rata Shares of the principal amount of the Advances then outstanding under
the relevant Facility.
<PAGE>
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(b) Mandatory Prepayments; Commitment Reductions.
--------------------------------------------------
(i) Sale of Assets. Without limiting the obligation of the Company to
obtain the consent of the Required Lenders pursuant to Section 5.02(e) to
any Disposition not otherwise permitted hereunder, on the first anniversary
of each Disposition the Company shall prepay the Terra Advances (and/or
provide cover for Terra Letter of Credit Liabilities as specified in
Section 2.05(d)), and the Terra Commitments shall be subject to automatic
reduction, in an aggregate amount equal to (A) 75% of the Net Available
Proceeds of such Disposition minus (B) the amount of such Net Available
Proceeds theretofore invested or committed to be invested in the business
of the Company and its Subsidiaries; provided that (x) for purposes of this
clause (i) the aggregate Net Available Proceeds of all such Dispositions in
a fiscal year shall be deemed to be reduced by $25,000,000 (but shall not
be deemed to be less than zero) and (y) the following shall not be deemed
to be Dispositions for purposes of this clause (i):
(1) the sale by the Company or any of its Subsidiaries of
Receivables under an Intercompany Receivables Facility or under a
Permitted Receivables Facility;
(2) the transfer of the Blytheville Assets in accordance with
Section 5.02(e)(viii);
(3) the sale of any property by any member of the Terra Canada
Group;
(4) the sale of any property by any member of the BMLP Group;
(5) the transactions under the Terra U.K. Offtake Agreement;
(6) the transactions relating to the construction of the Ammonia
Loop; and
(7) the transactions under the Ammonium Nitrate Hedging
Agreement.
(ii) Casualty Events. Upon the date 360 days following the receipt by
Terra or any of its Subsidiaries (other than members of the Terra Canada
Group and members of the BMLP Group) of the proceeds of insurance,
condemnation award or other compensation in respect of any Casualty Event
affecting any property of Terra or any of its Subsidiaries, the Company
shall prepay the Terra Advances (and/or provide cover for Terra Letter of
Credit Liabilities as specified in Section 2.05(d)), and the Terra
Commitments shall be subject to automatic reduction, in an aggregate
amount, if any, equal to (A) 75% of the Net Available Proceeds of such
Casualty Event not theretofore applied to the repair or replacement of such
property or set aside for such purpose minus (B) the amount of such Net
Available Proceeds theretofore invested or committed to be invested in the
business of the Company and its Subsidiaries. Nothing in this clause (ii)
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shall be deemed to limit any obligation of Terra or any of its Subsidiaries
pursuant to any of the Security Documents to remit to a collateral or
similar account (including, without limitation, a Collateral Account under
and as defined in the Security Documents) maintained by the Collateral
Agent pursuant to any of the Security Documents the proceeds of insurance,
condemnation award or other compensation received in respect of any
Casualty Event.
(c) Application. On the dates specified in clauses (i) and (ii) of
Section 2.05(b), the Terra Commitments shall be reduced automatically in an
aggregate amount equal to the amount specified in such paragraphs (and to the
extent that, after giving effect to such reduction, the aggregate principal
amount of Terra Advances and Terra Letter of Credit Liabilities would exceed the
Terra Commitments, the Company shall, first, prepay Terra Advances and, second,
provide cover for Terra Letter of Credit Liabilities as specified in paragraph
(d) below, in an aggregate amount equal to such excess).
(d) Cover for Terra Letter of Credit Liabilities. In the event that
the Company shall be required pursuant to Section 2.03(a) or Section 2.05(b) to
provide cover for Terra Letter of Credit Liabilities, the Company shall effect
the same by paying to the Administrative Agent same day funds in an amount equal
to the required amount, which funds shall be deposited in the Terra L/C Cash
Collateral Account until such time as the Terra Letters of Credit shall have
been terminated and all of the Terra Letter of Credit Liabilities paid in full.
(e) Payments with Interest. All prepayments under this Section 2.05
shall be made together with accrued interest to the date of such prepayment on
the principal amount prepaid.
Section 2.06. Interest.
---------
(a) Ordinary Interest. The Company shall pay interest on the unpaid
principal amount of each Terra Advance owing to each Lender from the date of
such Advance until such principal amount shall be paid in full, and TNLP shall
pay interest on the unpaid principal amount of each TNLP Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, in each case at the following rates per annum:
(i) Base Rate Advances. While such Advance is a Base Rate Advance, a
rate per annum equal at all times to the sum of (1) the Base Rate in effect
from time to time plus (2) the Applicable Margin in effect from time to
time, payable in arrears quarterly on each Quarterly Date and on the date
such Base Rate Advance shall be Converted (but only on the amount
Converted) or paid in full.
(ii) Eurodollar Rate Advances. While such Advance is a Eurodollar Rate
Advance, a rate per annum equal at all times during each Interest Period
for such Advance to the sum of (1) the Eurodollar Rate for such Interest
Period for such Advance plus (2) the Applicable Margin in effect from time
to time, payable in arrears on the last
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day of such Interest Period and, if such Interest Period has a duration of
more than three months, on each three-month anniversary of the first day of
such Interest Period occurring during such Interest Period.
(b) Post-Default Interest. If (a) any Obligor shall fail to pay when
due (by acceleration or otherwise) any amount payable under any Loan Document
after any applicable grace period provided in Section 6.01(a), or (b) (i) an
Event of Default shall have occurred and be continuing during any period and
(ii) the Administrative Agent or the Required Lenders, through the
Administrative Agent, shall have notified the Company thereof, each Borrower
shall, notwithstanding anything else in this Agreement to the contrary, pay to
the Administrative Agent for account of each Lender interest, during such
period, at the applicable Post-Default Rate on any principal of any Advance made
by such Lender to such Borrower, and on any other amount whatsoever then due and
payable by such Borrower hereunder or under the Notes held by such Lender to or
for account of such Lender, such interest to be payable from time to time on
demand.
Section 2.07. Fees.
(a) Commitment Fee. Each Borrower hereby promises to pay to the
Administrative Agent for the account of each Lender a commitment fee (i) in the
case of the Company, on the average daily Unused Terra Commitment of such Lender
and (ii) in the case of TNLP, on the average daily Unused TNLP Commitment of
such Lender, in each case for the period from the date hereof (or from the
effective date specified in the Assignment and Acceptance pursuant to which it
became a Lender in the case of each other Lender other than the Initial Lenders)
until the Commitment Termination Date for the relevant Facility at the
Applicable Commitment Fee Rate, payable in arrears (x) quarterly after the
Restatement Date on each Quarterly Date and (y) on the Commitment Termination
Date for the relevant Facility.
(b) Letter of Credit Commission, Etc.
(i) The Company hereby promises to pay to the Administrative Agent (A)
for the account of each Issuing Bank a non-refundable fronting fee of 1/4%
per annum of the face amount of each Terra Letter of Credit issued by it
for the period from the date of issuance thereof until such Letter of
Credit has been drawn in full, expires or is terminated and (B) for the
account of each Lender a non-refundable commission on such Lender's Pro
Rata Share of the average daily aggregate Available Amount of all Terra
Letters of Credit then outstanding at the Applicable Letter of Credit Fee
Rate, such fees to be payable in arrears on each Quarterly Date and on the
Terra Commitment Termination Date and calculated, for any day, after giving
effect to any payments made under such Letter of Credit on such day.
(ii) TNLP hereby promises to pay to the Administrative Agent (A) for
the account of each Issuing Bank a non-refundable fronting fee of 1/4% per
annum of the face amount of each TNLP Letter of Credit issued by it for the
period from the date of
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issuance thereof until such Letter of Credit has been drawn in full,
expires or is terminated and (B) for the account of each Lender a non-
refundable commission on such Lender's Pro Rata Share of the average daily
aggregate Available Amount of all TNLP Letters of Credit then outstanding
at the Applicable Letter of Credit Fee Rate, such fees to be payable
quarterly in arrears on each Quarterly Date and on the TNLP Commitment
Termination Date and calculated, for any day, after giving effect to any
payments made under such Letter of Credit on such day.
(c) Letter of Credit Expenses. Each Borrower shall pay to each Issuing
Bank, for its own account, such commission, issuance fees, transfer fees and
other fees and charges in connection with the issuance or administration of the
Letters of Credit issued by it as such Borrower and such Issuing Bank shall
agree; provided that all fees and other charges payable pursuant to this Section
2.07(c) shall be the customary amounts charged by such Issuing Bank in
connection with the issuance or administration of similar letters of credit and
the amounts so determined shall be adjusted as necessary to avoid a duplicative
payment hereunder.
Section 2.08. Conversion and Continuation of Advances.
(a) Optional Conversion. Each Borrower may on any Business Day, upon
notice given to the Administrative Agent not later than 10:00 A.M. (New York
City time) on the second Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.09 and 2.10, Convert all
or any portion of the Advances of one Type outstanding under any Facility (and,
in the case of Eurodollar Rate Advances, having the same Interest Period);
provided that any Conversion of Eurodollar Rate Advances into Base Rate Advances
shall be made only on the last day of an Interest Period for such Eurodollar
Rate Advances, any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be in an amount not less than the minimum amount specified in
Section 2.02(b)(i) and no Conversion of any Advances shall result in a greater
number of separate Interest Periods in respect of Eurodollar Rate Advances under
any Facility than permitted under Section 2.02(b)(ii). Each such notice of
Conversion shall, within the restrictions specified above, specify (i) the date
of such Conversion, (ii) the aggregate amount, Type and Facility of the Advances
(and, in the case of Eurodollar Rate Advances, the Interest Period therefor) to
be Converted and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for such Advances. Each notice of
Conversion shall be irrevocable and binding on the relevant Borrower.
(b) Certain Mandatory Conversions.
(i) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $3,000,000 such Advances
shall automatically Convert into Base Rate Advances.
(ii) If a Borrower shall fail to select the duration of any Interest
Period for any outstanding Eurodollar Rate Advances in accordance with the
provisions contained in the
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definition of "Interest Period" in Section 1.01 and in clause (a) or (c) of
this Section 2.08, the Administrative Agent will forthwith so notify such
Borrower and the relevant Lenders, whereupon each such Eurodollar Rate
Advance will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance.
(iii) Upon the occurrence and during the continuance of any Event of
Default and upon notice from the Administrative Agent to the Borrowers at
the request of the Required Lenders, (x) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance and (y) the obligation of the
Lenders to make, or to Convert Advances into, or to Continue, Eurodollar
Rate Advances shall be suspended.
(c) Continuations. Each Borrower may, on any Business Day, upon notice
given to the Administrative Agent not later than 10:00 A.M. (New York City time)
on the second Business Day prior to the date of the proposed Continuation and
subject to the provisions of Sections 2.09, Continue all or any portion of the
Eurodollar Rate Advances outstanding under a relevant Facility having the same
Interest Period as such Eurodollar Rate Advances; provided that any such
Continuation shall be made only on the last day of an Interest Period for such
Eurodollar Rate Advances, any Continuation of Eurodollar Rate Advances shall be
in an amount not less than the minimum Borrowing amount specified in Section
2.02(b)(i) and no Continuation of any Eurodollar Rate Advances shall result in a
greater number of separate Interest Periods in respect of Eurodollar Rate
Advances under any Facility than permitted under Section 2.02(b)(ii). Each such
notice of Continuation shall, within the restrictions specified above, specify
(i) the date of such Continuation, (ii) the aggregate amount and Facility of,
and the Interest Period for, the Advances being Continued and (iii) the duration
of the initial Interest Period for the Eurodollar Rate Advances subject to such
Continuation. Each notice of Continuation shall be irrevocable and binding on
the relevant Borrower.
Section 2.09. Increased Costs, Illegality, Etc.
(a) If, due to either (i) the introduction of or any change in or in
the interpretation of (to the extent any such introduction or change occurs
after the date hereof) any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
adopted or made after the date hereof (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances under any Facility, then
the relevant Borrower shall from time to time, upon demand by such Lender (with
a copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such increased cost; provided that, before making any such
demand, each Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would avoid the
need for, or reduce the amount of, such increased cost and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
A certificate as to the amount of such increased cost,
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submitted to the relevant Borrower by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.
(b) If any Lender determines in good faith that compliance with any
law or regulation enacted or introduced after the date hereof or any guideline
or request from any central bank or other governmental authority adopted or made
after the date hereof (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type or the issuance of the
Letters of Credit (or similar contingent obligations), then, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), each Borrower
shall pay to the Administrative Agent for the account of such Lender, from time
to time as specified by such Lender, additional amounts sufficient to compensate
such Lender in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder or to the issuance or maintenance
of any Letters of Credit. A certificate as to such amounts submitted to the
relevant Borrower by such Lender, shall be conclusive and binding for all
purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances, (i) the Required
Lenders reasonably determine and notify the Administrative Agent that the
Eurodollar Rate for any Interest Period for such Advances will not adequately
reflect the cost to such Required Lenders of making, funding or maintaining
their respective Eurodollar Rate Advances for such Interest Period, or (ii) if
fewer than two Reference Banks furnish timely information to the Administrative
Agent for determining the Eurodollar Rate for any Eurodollar Rate Advances, the
Administrative Agent shall forthwith so notify the Borrowers and the Lenders,
whereupon (x) each Eurodollar Rate Advance will automatically, on the last day
of any then existing Interest Period therefor, Convert to a Base Rate Advance,
and (y) the obligation of the Lenders to make, or to Convert Advances into, or
to Continue, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrowers and such Lenders that the
circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of (to the extent any
such introduction or change occurs after the date hereof) any law or regulation
shall make it unlawful, or any central bank or other governmental authority
having appropriate jurisdiction shall assert in writing that it is unlawful, for
any Lender or its Eurodollar Lending Office to perform its obligations hereunder
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances hereunder, then, on notice thereof and demand therefor by such
Lender to the Borrowers through the Administrative Agent, (i) each Eurodollar
Rate Advance of such Lender will automatically, upon such demand, Convert to a
Base Rate Advance and (ii) the obligation of such Lender to make, or to Convert
Advances into, or to Continue, Eurodollar Rate Advances shall be suspended until
the Administrative Agent shall notify the Borrowers that such Lender has
determined that the circumstances causing such suspension no longer exist;
provided that, before
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making any such demand, such Lender agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a
different Eurodollar Lending Office if the making of such a designation would
allow such Lender or its Eurodollar Lending Office to continue to perform its
obligations to make Eurodollar Rate Advances or to continue to fund or maintain
Eurodollar Rate Advances and would not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender.
(e) Neither Borrower shall be obligated to pay any additional amounts
arising pursuant to clauses (a) and (b) of this Section 2.09 that are
attributable to the Excluded Period with respect to such additional amount;
provided that if an applicable law, rule, regulation, guideline or request shall
be adopted or made on any date and shall be applicable to the period (a
"Retroactive Period") prior to the date on which such law, rule, regulation,
guideline or request is adopted or made, the limitation on the Borrowers'
obligations to pay such additional amounts hereunder shall not apply to the
additional amounts payable in respect of such Retroactive Period.
Section 2.10. Payments and Computations.
(a) Each Borrower shall make each payment hereunder and under the
Notes not later than 12:00 Noon (New York City time) on the day when due in U.S.
Dollars to the Administrative Agent at the Administrative Agent's Account in
same day funds and, except as expressly set forth herein, without deduction,
set-off or counterclaim. The Administrative Agent will promptly thereafter cause
to be distributed like funds relating to the payment of principal or interest or
commitment fees under or in respect of a particular Facility ratably (other than
amounts payable pursuant to Section 2.09(a), 2.09(b), 2.11, 2.13(d) or 9.04(c),
or amounts payable to an Issuing Bank in respect of Letters of Credit) to the
relevant Lenders for the account of their Applicable Lending Offices, and like
funds relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 9.07(d), from and after the effective date
of such Assignment and Acceptance, the Administrative Agent shall make all
payments hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such Assignment
and Acceptance shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves.
(b) If the Administrative Agent receives funds for application to the
Obligations under the Basic Documents under circumstances for which the Basic
Documents do not specify the Advances or the Facility to which, or the manner in
which, such funds are to be applied, and neither Borrower has otherwise directed
how such funds are to be applied (which direction is consistent with the terms
of the Basic Documents), the Administrative Agent may, but shall not be
obligated to, elect to distribute such funds to each Lender ratably in
accordance with such Lender's proportionate share of the principal amount of all
outstanding Advances and the Available Amount of all Letters of Credit then
outstanding, in repayment or prepayment of such
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of the outstanding Advances or other Obligations owed to such Lender, and for
application to such principal installments, as the Administrative Agent shall
direct.
(c) Each Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder or under any Note
held by such Lender, to charge from time to time against any or all of such
Borrower's accounts with such Lender any amount so due (with notice to the
Administrative Agent and the relevant Borrower promptly following such charge).
(d) Each Reference Bank agrees to furnish to the Administrative Agent
timely information for the purpose of determining each Eurodollar Rate. If any
one or more of the Reference Banks shall not furnish such timely information to
the Administrative Agent for the purpose of determining any such interest rate,
the Administrative Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks.
(e) All computations of interest, fees and Letter of Credit
commissions shall be made by the Administrative Agent on the basis of a year of
360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest,
fees or commissions are payable. Each determination by the Administrative Agent
of an interest rate, fee or commission hereunder made in accordance with the
provisions of this Agreement shall be conclusive and binding for all purposes,
absent manifest error.
(f) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided that, if such extension would cause payment of interest on
or principal of Eurodollar Rate Advances to be made in the next following
calendar month, such payment shall be made on the immediately preceding Business
Day.
(g) Unless the Administrative Agent shall have received notice from a
Borrower prior to the date on which any payment is due to any Lender hereunder
that such Borrower will not make such payment in full, the Administrative Agent
may assume that such Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each such Lender on such due
date an amount equal to the amount then due such Lender. If and to the extent
such Borrower shall not have so made such payment in full to the Administrative
Agent, each such Lender shall repay to the Administrative Agent forthwith on
demand such amount distributed to such Lender together with interest thereon,
for each day from the date such amount is distributed to such Lender until the
date such Lender repays such amount to the Administrative Agent, at the Federal
Funds Rate.
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Section 2.11. Taxes.
(a) Any and all payments by each Obligor hereunder or under the
relevant Notes shall be made, in accordance with Section 2.10, free and clear of
and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Issuing Bank, each Lender and the Administrative
Agent, net income taxes that are imposed by the United States and franchise
taxes and net income taxes that are imposed on such Issuing Bank, such Lender or
the Administrative Agent by the state or foreign jurisdiction under the laws of
which such Issuing Bank, such Lender or the Administrative Agent (as the case
may be) is organized or any political subdivision thereof and, in the case of
such Issuing Bank and each Lender, franchise taxes and net income taxes that are
imposed on it by the state or foreign jurisdiction of such Issuing Bank's or
such Lender's Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes"). If an Obligor shall
be required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Issuing Bank, any Lender or the
Administrative Agent, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.11) such Issuing Bank, such Lender
or the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such Obligor
shall make such deductions and (iii) such Obligor shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, each Obligor agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made by it hereunder or under the
Notes or from the execution, delivery or registration of this Agreement or the
Notes (hereinafter referred to as "Other Taxes").
(c) Each Obligor will indemnify each Issuing Bank, each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.11) paid by such Issuing Bank, such Lender
or the Administrative Agent (as the case may be) and any liability (including
penalties, additions to tax, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from such
date such Issuing Bank, such Lender or the Administrative Agent (as the case may
be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, each
Obligor will furnish to the Administrative Agent, at its address referred to in
Section 9.02, appropriate evidence of payment thereof. If such Obligor shall
make a payment hereunder or under the Notes through an account or branch outside
the United States, or a payment is made on behalf of such Obligor by a payor
that is not a United States Person, such Obligor will, if no taxes are
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payable in respect of such payment, furnish, or will cause such payor to
furnish, to the Administrative Agent, at such address, a certificate from the
appropriate taxing authority or authorities, or an opinion of counsel acceptable
to the Administrative Agent, in either case stating that such payment is exempt
from or not subject to Taxes. For purposes of this subsection (d) and subsection
(e), the terms "United States" and "United States Person" shall have the
meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States shall, on or prior to the date of its execution and delivery of
this Agreement (in the case of each Initial Lender) and on the date of the
Assignment and Acceptance pursuant to which it became a Lender (in the case of
each other Lender), and from time to time thereafter if requested in writing by
either Borrower or the Administrative Agent (but only so long as such Lender
remains lawfully able to do so after the date such Lender becomes a Lender
hereunder), provide the Administrative Agent and the Borrowers with either (i)
Internal Revenue Service form 1001 or 4224, as appropriate, or any successor
form prescribed by the Internal Revenue Service, certifying that such Lender is
entitled to benefits under an income tax treaty to which the United States is a
party that reduces the rate of withholding tax on payments under this Agreement
and the Notes or certifying that the income receivable pursuant to this
Agreement and the Notes is effectively connected with the conduct of a trade or
business in the United States or (ii) Internal Revenue Service form W-8, upon
which each Borrower is entitled to rely, from a Lender that has not at the time
such Lender becomes a Lender hereunder been named in any notice issued by the
Secretary of the Treasury (or such Secretary's authorized delegate) pursuant to
Sections 881(c)(2)(B) or 871(h)(5) of the Internal Revenue Code, or any
successor form or statement prescribed by the Internal Revenue Service in order
to establish that such Lender is entitled to treat the interest payments under
this Agreement and the Notes as portfolio interest that is exempt from
withholding tax under the Internal Revenue Code, together with a certificate
stating that such Lender is not described in Section 881(c)(3) of the Internal
Revenue Code. If the form provided by a Lender at the time such Lender first
becomes a party to this Agreement indicates a United States interest withholding
tax rate in excess of zero (or if the Lender cannot provide at such time such
form because it is not entitled to reduced withholding under a treaty, the
payments are not effectively connected income and the payments do not qualify as
portfolio interest), withholding tax at such rate (or at the then existing U.S.
statutory rate if the Lender cannot provide the form) shall be excluded from
Taxes unless and until such Lender provides the appropriate form certifying that
a lesser rate applies, whereupon withholding tax at such lesser rate only shall
be excluded from Taxes for periods governed by such form; provided that, if at
the date of the Assignment and Acceptance pursuant to which a Lender assignee
becomes a party to this Agreement, the Lender assignor was entitled to payments
under subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to the extent such tax results in liability
for such payments, the term Taxes shall include (in addition to withholding
taxes that may be imposed in the future or other amounts otherwise includable in
Taxes) United States interest withholding tax, if any, applicable with respect
to the Lender assignee on such date.
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(f) For any period with respect to which a Lender has failed to
provide the Borrowers and the Administrative Agent with the appropriate form
described in Section 2.11(e) (other than if such failure is due to a change in
law occurring after the date on which a form originally was required to be
provided or if such form otherwise is not required under subsection (e)), such
Lender shall not be entitled to indemnification under subsection (a) or (c) with
respect to Taxes imposed by the United States.
(g) Any Lender or any Issuing Bank claiming any additional amounts
payable pursuant to this Section 2.11 shall use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Applicable Lending Office(s) if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender or Issuing Bank, be otherwise disadvantageous to such Lender or Issuing
Bank.
(h) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in this Section 2.11 shall survive the payment in full of principal and interest
hereunder and under the Notes.
Section 2.12. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Advances owing to it under any
Facility (other than pursuant to Section 2.09(a), 2.09(b), 2.11, 2.13(d) or
9.04(c), or payments to an Issuing Bank in respect of Letters of Credit) in
excess of its ratable share of payments on account of the Advances under such
Facility obtained by all the relevant Lenders, such Lender shall forthwith
purchase from the other relevant Lenders such participations in the Advances
under such Facility owing to them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; provided that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each relevant Lender shall be rescinded
and such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such Lender's ratable
share (according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. Each Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.12
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of such Borrower in the amount of such
participation.
Section 2.13. Letters of Credit.
(a) Issuance of Letters of Credit, Etc. Each Borrower may request one
or more Issuing Banks to issue, on the terms and conditions hereinafter set
forth, letters of credit for the account of such Borrower under its respective
Facility (letters of credit so issued under the Terra Facility being herein
called "Terra Letters of Credit" and letters of credit so issued under the
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TNLP Facility being herein called "TNLP Letters of Credit"; the Terra Letters of
Credit and the TNLP Letters of Credit being collectively called the "Letters of
Credit") from time to time on any Business Day during the period from the
Restatement Date until the date 90 days prior to the Commitment Termination Date
under the relevant Facility; provided that:
(i) the Terra Commitments shall be utilized under this Section 2.13
solely for the issuance of Terra Letters of Credit for the account of the
Company and, to the extent specified by the Company, any of its
Subsidiaries (other than, prior to the SPU Redemption Time, TNLP or any of
its Subsidiaries);
(ii) the TNLP Commitments shall be utilized under this Section 2.13
solely for the issuance of TNLP Letters of Credit for the account of TNLP
and, to the extent specified by TNLP, any of its Subsidiaries;
(iii) the aggregate Available Amount of all Letters of Credit issued
by all Issuing Banks under either Facility shall not exceed at any time the
Letter of Credit Sublimit for such Facility, and the aggregate outstanding
principal amount of all Advances under such Facility when added to the
aggregate amount of Letter of Credit Liabilities under such Facility shall
not exceed the aggregate Commitments of the relevant Lenders under such
Facility on such Business Day;
(iv) the aggregate amount of all Letter of Credit Liabilities under
Letters of Credit issued by any Issuing Bank under either Facility shall
not exceed at any time the Letter of Credit Commitment of such Issuing Bank
for such Facility; and
(v) no Letter of Credit shall have an expiration date later than, or
shall permit the account party or the beneficiary to require the renewal
thereof to a date beyond, the date 30 days prior to the Commitment
Termination Date for the relevant Facility.
On the Restatement Date, all outstanding "Terra Letters of Credit" outstanding
under the Existing Credit Agreement (the "Existing Terra Letters of Credit")
shall automatically, without any action on the part of any Person, be deemed to
be Terra Letters of Credit hereunder for all purposes of this Agreement. On the
Restatement Date, all outstanding "TNLP Letters of Credit" outstanding under the
Existing Credit Agreement (the "Existing TNLP Letters of Credit") shall
automatically, without any action on the part of any Person, be deemed to be
TNLP Letters of Credit hereunder for all purposes of this Agreement. At the SPU
Redemption Time, all outstanding TNLP Letters of Credit shall automatically,
without any action on the part of any Person, be deemed to be Terra Letters of
Credit hereunder for all purposes of this Agreement. On each day during the
period commencing with the issuance by an Issuing Bank of any Terra Letter of
Credit (or, in the case of any Existing Terra Letter of Credit, during the
period commencing with the Restatement Date) and until such Letter of Credit
shall have been drawn in full or expired or been terminated, the Terra
Commitment of each Lender shall be deemed to be utilized for all purposes of
this Agreement in an amount equal to such Lender's Pro Rata Share of the then
undrawn amount of such Letter of Credit. On each day during the period
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commencing with the issuance by an Issuing Bank of any TNLP Letter of Credit
(or, in the case of any Existing TNLP Letter of Credit, during the period
commencing with the Restatement Date) and until such Letter of Credit shall have
been drawn in full or expired or been terminated, the TNLP Commitment of each
Lender shall be deemed to be utilized for all purposes of this Agreement in an
amount equal to such Lender's Pro Rata Share of the then undrawn amount of such
Letter of Credit.
(b) Request for Issuance.
(i) Each Letter of Credit shall be issued upon notice, given not later
than 1:00 P.M. (New York City time) two Business Days prior to the date of
the proposed issuance of such Letter of Credit, by the relevant Borrower to
the relevant Issuing Bank, which shall give to the Administrative Agent and
each Lender prompt notice thereof by telex or telecopier. Each such notice
of issuance of a Letter of Credit (a "Notice of Issuance") shall be by
telex or telecopier, confirmed promptly in writing, specifying therein (A)
the requested date of such issuance (which shall be a Business Day), (B)
the Available Amount requested for such Letter of Credit, (C) the
expiration date of such Letter of Credit, (D) the account party or parties
for such Letter of Credit, (E) the name and address of the issuer and the
beneficiary of such Letter of Credit, and (F) the form of such Letter of
Credit, together with a description of the nature of the transactions or
obligations proposed to be supported thereby. If the requested form of such
Letter of Credit is acceptable to such Issuing Bank in its discretion, such
Issuing Bank will, upon fulfillment of the applicable conditions set forth
in Article III, make such Letter of Credit available to the relevant
Borrower at its office referred to in Section 9.02 or as otherwise agreed
with such Borrower in connection with such issuance.
(ii) Each Issuing Bank shall furnish (A) to the Administrative Agent
on the first Business Day of each week a written report summarizing the
issuance and expiration dates of Letters of Credit issued by such Issuing
Bank during the previous week and drawings during such week under all
Letters of Credit issued by such Issuing Bank, (B) to each Lender and to
the relevant Borrower on the first Business Day of each month, a written
report summarizing the issuance and expiration dates of the Letters of
Credit issued by such Issuing Bank under the relevant Facility during the
preceding month and drawings during such month under all Letters of Credit
under such Facility issued by the Issuing Bank and (C) to the
Administrative Agent and each Lender on the first Business Day of each
calendar quarter, a written report setting forth the average daily
aggregate Available Amount during the preceding calendar quarter of all
Letters of Credit issued by such Issuing Bank under the relevant Facility.
(c) Drawing and Reimbursement.
(i) The payment by an Issuing Bank of a draft drawn under any Letter
of Credit shall constitute for all purposes of this Agreement the making by
such Issuing Bank of an advance to the relevant Borrower in the amount of
such payment, which the relevant
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Borrower agrees to repay on demand and, if not paid on demand, shall bear
interest, from the date demanded to the date paid in full (and which
interest shall be payable on demand), (x) from and including the date of
demand to but not including the second Business Day thereafter at the Base
Rate in effect for each such day plus the Applicable Margin in effect for
each such day, and (y) from and including said second Business Day
thereafter at the Post-Default Rate. Without limiting the obligations of
such Borrower hereunder, upon demand by such Issuing Bank through the
Administrative Agent, each Lender having a Commitment under the relevant
Facility shall make Advances under such Facility in an aggregate amount
equal to the amount of such Lender's Pro Rata Share of such advance by
making available for the account of its Applicable Lending Office to the
Administrative Agent for the account of such Issuing Bank, by deposit to
the Administrative Agent's Account, in same day funds, an amount equal to
the sum of (A) its Pro Rata Share of the outstanding principal amount of
such advance plus (B) interest accrued and unpaid to and as of such date on
the outstanding principal amount of such advance.
(ii) Each Lender agrees to make such Advances on the Business Day on
which demand therefor is made by the relevant Issuing Bank through the
Administrative Agent (provided that notice of such demand is given not
later than 12:00 Noon (New York City time) on such Business Day) or (if
notice of such demand is given after such time) the first Business Day next
succeeding such demand.
(iii) If and to the extent that any relevant Lender shall not have so
made the amount of such Advance available to the Administrative Agent for
account of such Issuing Bank, such Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by the relevant Issuing Bank
until the date such amount is paid to the Administrative Agent, at the
Federal Funds Rate.
(iv) The Advances provided for in this Section 2.13 shall be made by
the Lenders irrespective of whether there has occurred and is continuing
any Default or Event of Default or of whether any other condition precedent
specified in Article III has not been satisfied, and the obligation of each
Lender under each relevant Facility to make such Advances is absolute and
unconditional.
(d) Increased Costs.
(i) If any change in any law or regulation or in the interpretation
thereof (to the extent any such change occurs after the date hereof) by any
court or administrative or governmental authority charged with the
administration thereof shall either (x) impose, modify or deem applicable
any reserve, special deposit or similar requirement against letters of
credit or guarantees issued by, or assets held by, or deposits in or for
the account of, any Issuing Bank or any Lender or (y) impose on any Issuing
Bank or any Lender any other condition regarding this Agreement or such
Issuing Bank or such
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Lender or any Letter of Credit, and the result of any event referred to in
the preceding clause (x) or (y) shall be to increase the cost to such
Issuing Bank or Lender of issuing or maintaining any Letter of Credit or
any commitment hereunder in respect of Letters of Credit, then, upon demand
by such Issuing Bank or such Lender, the Borrowers shall immediately pay to
such Issuing Bank or such Lender, from time to time as specified by such
Issuing Bank or such Lender, additional amounts that shall be sufficient to
compensate such Issuing Bank or such Lender for such increased cost. A
certificate as to the amount of such increased cost, submitted to the
Borrowers by such Issuing Bank or such Lender shall be conclusive and
binding for all purposes, absent manifest error.
(ii) Neither Borrower shall be obligated to pay any additional
amounts arising pursuant to this Section 2.13(d) that are attributable to
the Excluded Period with respect to such additional amounts; provided that
if an applicable law, rule, regulation, guideline or request shall be
adopted or made on any date and shall be applicable to the period (a
"Retroactive Period") prior to the date on which such law, rule,
regulation, guideline or request is adopted or made, the limitation on
either Borrower's obligation to pay such additional amounts hereunder shall
not apply to the additional amounts payable in respect of such Retroactive
Period.
(e) Obligations Absolute. The Obligations of each Borrower under this
Agreement and any other agreement or instrument relating to any Letter of Credit
(as hereafter amended, supplemented or otherwise modified from time to time,
collectively, the "L/C Related Documents") shall, to the extent permitted by
law, be unconditional and irrevocable, and shall be paid strictly in accordance
with the terms of such L/C Related Document under all circumstances, including,
without limitation, the following circumstances:
(i) any lack of validity or enforceability of any one or more of such
other documents and agreements, including, but not limited to, the L/C
Related Documents;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of such Borrower in respect of
any L/C Related Document or any other amendment or waiver of or any consent
to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other right
that such Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), any Issuing Bank or any
other Person, whether in connection with the transactions contemplated by
the L/C Related Documents or any unrelated transaction;
(iv) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
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(v) payment by an Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not comply with the terms
of such Letter of Credit, except to the extent that such payment resulted
from such Issuing Bank's willful misconduct or gross negligence in
determining whether such draft or certificate complies on its face with the
terms of such Letter of Credit;
(vi) any exchange, release or nonperfection of any Collateral or other
collateral, or any release or amendment or waiver of or consent to
departure from any guarantee, for all or any of the Obligations of such
Borrower in respect of the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, such Borrower or a guarantor.
Section 2.14. Replacement of Lenders.
(a) Subject to clause (c) below, in the event that any Lender requests
compensation pursuant to Section 2.09(a), 2.09(b) or 2.13(d), or the obligation
of any Lender to make, or to Convert Base Rate Advances into, or to Continue,
Eurodollar Rate Advances shall be suspended pursuant to Section 2.09(c) or
2.09(d) (such Lender being herein called an "Affected Lender"), then, so long as
such condition exists, the Borrowers may, after the date 30 days after the date
of such request or suspension, either:
(i) (x) designate an Eligible Assignee acceptable to the
Administrative Agent and each Issuing Bank (which acceptance will not be
unreasonably withheld) that is not an Affiliate of the Borrowers (such
Eligible Assignee being herein called a "Replacement Lender") to assume the
Affected Lender's Commitments and other obligations hereunder and to
purchase the Affected Lender's Advances and other rights under the Loan
Documents (all without recourse to or representation or warranty by, or
expense to, the Affected Lender) for a purchase price equal to the
aggregate principal amount of the outstanding Advances held by the Affected
Lender plus all accrued but unpaid interest on such Advances and accrued
but unpaid fees owing to the Affected Lender (and upon such assumption,
purchase and substitution, and subject to the execution and delivery to the
Administrative Agent by the Replacement Lender of documentation
satisfactory to the Administrative Agent and compliance with the
requirements of Section 9.07(c), the Replacement Lender shall succeed to
the rights and obligations of the Affected Lender hereunder and the other
Loan Documents), and (y) pay to the Affected Lender all amounts payable to
such Affected Lender under Section 9.04(c), calculated as if the purchase
by the Replacement Lender constituted a mandatory prepayment of Advances by
the Borrowers, and (z) pay to the Administrative Agent the processing and
recordation fee specified in Section 9.07(a)(vi) with respect to such
assignment; or
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(ii) (x) terminate the Commitments of the Affected Lender and (y) pay
to the Affected Lender the aggregate principal amount of the outstanding
Advances held by the Affected Lender plus all accrued but unpaid interest
on such Advances and accrued but unpaid fees owing to the Affected Lender
plus all amounts payable to the Affected Lender under Section 9.04(c) as a
result of such prepayment.
In the event that the Borrowers exercise their rights under the preceding
sentence, the Affected Lender shall no longer be a party hereto or have any
rights or obligations hereunder or under the other Loan Documents; provided that
the obligations of the Borrowers to the Affected Lender under Sections 2.09,
2.11 and 9.04 with respect to events occurring or obligations arising before or
as a result of such replacement shall survive such exercise.
(b) If the Borrowers exercise their rights under clause (a)(ii) above,
the Borrowers may, not later than the date 60 days after such exercise,
designate an Eligible Assignee acceptable to the Administrative Agent and each
Issuing Bank (which acceptance will not be unreasonably withheld) that is not an
Affiliate of the Borrowers (such Eligible Assignee being herein called a
"Substitute Lender") to assume Commitments hereunder and to make Advances
hereunder in an amount equal to the respective Commitments and Advances of the
Affected Lender under each of the Facilities and, subject to (x) the execution
and delivery to the Administrative Agent by the Substitute Lender of
documentation satisfactory to the Administrative Agent, (y) the payment by the
Borrowers to the Administrative Agent of the processing and recordation fee
specified in Section 9.07(a)(vi) with respect to such assignment, and (z)
compliance with Section 9.07(c), the Substitute Lender shall succeed to the
rights and obligations of the Affected Lender hereunder and under the other Loan
Documents. Upon the Substitute Lender so becoming a party hereto, the Borrowers
shall borrow Advances from the Substitute Lender and/or prepay the principal of
the Advances of the other Lenders in such manner as will result in the
outstanding principal amount of the Advances under each Facility being held by
the Lenders according to their respective Pro Rata Shares of the relevant
Facilities.
(c) The Borrowers may not exercise their rights under this Section
2.14:
(i) with respect to any Affected Lender unless the Borrowers
simultaneously exercise such rights with respect to all Affected Lenders,
(ii) if a Default or an Event of Default has occurred and is then
continuing, or
(iii) with respect to any exercise of rights under clause (b) above,
if, at the time of such exercise, the aggregate amount of the Commitments
that shall have been terminated pursuant to said clause (b) (including the
Commitments then proposed to be terminated) shall exceed 30% of the
aggregate amount of the Commitments in effect on the Restatement Date.
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ARTICLE III
CONDITIONS OF
RESTATEMENT AND LENDING
Section 3.01. Conditions Precedent to Amendment and Restatement. The
Existing Credit Agreement shall be amended and restated to read in full as set
forth herein on the date (the "Restatement Date") on which the Administrative
Agent shall notify the Company that the Administrative Agent shall have received
the following in form and substance satisfactory to it:
(a) The Notes, duly executed by each Borrower.
(b) The following documents, each dated the Restatement Date (unless
otherwise specified), in form and substance satisfactory to the
Administrative Agent (unless otherwise specified) and in sufficient copies
for the Administrative Agent, each Lender and each Issuing Bank:
(i) for each Obligor, a copy of the charter, as amended and in
effect, of such Obligor certified (as of a date reasonably close to
the Restatement Date) by the Secretary of State of the jurisdiction of
its organization and a certificate from such Secretary of State dated
as of a date reasonably close to the Restatement Date as to the good
standing of and charter documents filed by such Obligor;
(ii) for each Obligor, a certificate of the Secretary or an
Assistant Secretary of such Obligor, dated the Restatement Date and
certifying (A) that attached thereto is a true and complete copy of
the by-laws of such Obligor as amended and in effect at all times from
the date on which the resolutions referred to in clause (B) were
adopted to and including the date of such certificate, (B) that
attached thereto is a true and complete copy of resolutions duly
adopted by the board of directors of such Obligor authorizing the
execution, delivery and performance of such of the Loan Documents to
which such Obligor is or is intended to be a party and the extensions
of credit hereunder, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, (C) that the
charter of such Obligor has not been amended since the date of the
certification thereto furnished pursuant to clause (i) above, and (D)
as to the incumbency and specimen signature of each officer of such
Obligor executing such of the Loan Documents to which such Obligor is
intended to be a party and each other document to be delivered by such
Obligor from time to time in connection therewith (and the
Administrative Agent and each Lender may conclusively rely on such
certificate until it receives notice in writing from such Obligor);
and
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(iii) for each Obligor, a certificate of another officer of such
Obligor, dated the Restatement Date, as to the incumbency and specimen
signature of the Secretary or Assistant Secretary, as the case may be,
of such Obligor.
(c) An Amendment to the Security Documents and Intercreditor Agreement
in substantially the form of Exhibit B, duly executed by each of the
intended parties thereto, together with:
(i) such appropriately completed and duly executed copies of
Uniform Commercial Code financing statements and financing statement
amendments as the Collateral Agent or any Secured Party (as defined in
the Intercreditor Agreement) shall have requested in order to continue
the perfection and protection of the Liens created by the Security
Documents and covering the Collateral described therein, and
(ii) executed and delivered documents for recordation and filing
of or with respect to such Security Documents that the Collateral
Agent or any such Secured Party may deem necessary or desirable in
order to continue the perfection and protection of the Liens created
thereby.
(d) A Confirmation of Loan Purchase Agreement in substantially the
form of Exhibit E, duly executed and delivered by Terra and the
Administrative Agent.
(e) A favorable opinion of Kirkland & Ellis, special counsel for the
Obligors, substantially in the form of Exhibit D-1 and as to such other
matters as the Agent, any Issuing Bank or any Lender through the Agent may
reasonably request.
(f) A favorable opinion of Milbank, Tweed, Hadley & McCloy, special
New York counsel for Citibank, substantially in the form of Exhibit D-2.
(g) A certificate of the Senior Financial Officer to the effect that:
(x) the representations and warranties contained in each Loan
Document are correct on and as of the Restatement Date, before and
after giving effect to the amendment and restatement provided for
hereby, as though made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date); and
(y) no event has occurred and is continuing that constitutes a
Default or an Event of Default.
(h) Evidence of payment of (1) all accrued fees and expenses of the
Administrative Agent (including the reasonable and documented fees and
expenses of counsel to Citibank in connection with this Agreement to the
extent that statements for
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such fees and expenses have been delivered to the Borrowers at least one
Business Day prior to the Restatement Date); (2) all interest accrued
through the Restatement Date on the "Advances" outstanding under and as
defined in the Existing Credit Agreement, all accrued commitment fees, all
accrued letter of credit fees and all other expenses payable thereunder;
and (3) all "Advances" under and as defined in the Existing Credit
Agreement owing to the Retiring Lenders and all other amounts owing to the
Retiring Lenders under the Existing Credit Agreement.
(i) Evidence of the existence of all insurance required to be
maintained by Terra hereunder.
(j) Evidence that, since December 31, 1996, there has been no Material
Adverse Change.
(k) Such other approvals, opinions and documents relating to this
Agreement and the transactions contemplated hereby as any Lender or any
Issuing Bank may, through the Administrative Agent, reasonably request.
Section 3.02. Conditions Precedent to Each Borrowing and Issuance.
The obligation of each Lender to make an Advance on the occasion of each
Borrowing (excluding, however, the making of any Advance pursuant to Section
2.13), and the right of each Borrower to request the issuance of Letters of
Credit under either Facility, shall be subject to the further conditions
precedent that on the date of such Borrowing or issuance the following
statements shall be true (and each of the giving of the applicable Notice of
Borrowing or Notice of Issuance and the acceptance by the relevant Borrower of
the proceeds of such Borrowing or of such Letter of Credit shall constitute a
representation and warranty by such Borrower that on the date of such Borrowing
or issuance such statements are true):
(i) the representations and warranties contained in each Loan Document
are correct on and as of the date of such Borrowing or issuance, before and
after giving effect to such Borrowing or issuance and to the application of
the proceeds therefrom, as though made on and as of such date (or, if any
such representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date); and
(ii) no event has occurred and is continuing, or would result from
such Borrowing or issuance or from the application of the proceeds
therefrom, that constitutes a Default or an Event of Default.
Section 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions
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contemplated by the Loan Documents shall have received notice from such Lender
prior to the Restatement Date specifying its objection thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Company. The
Company represents and warrants as follows:
(a) Each Obligor (i) is a corporation (or, in the case of TNLP, a
limited partnership) duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (ii) is duly
qualified and in good standing as a foreign corporation (or limited
partnership, as the case may be) in each other jurisdiction in which it
owns or leases property or in which the conduct of its business requires it
to so qualify or be licensed and where, in each case, failure so to qualify
and be in good standing could reasonably be expected to have a Material
Adverse Effect and (iii) has all requisite power (corporate or other) and
authority to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted.
(b) Set forth on Schedule 4.01(b) is a complete and accurate list of
all Material Subsidiaries of each Obligor as of the Restatement Date,
showing as of such date (as to each such Subsidiary) the jurisdiction of
its organization, the number of shares of each class of capital stock or
partnership interests authorized, and the number outstanding and the
percentage of the outstanding shares or interests of each such class owned
(directly or indirectly) by such Obligor and the number of shares covered
by all outstanding options, warrants, rights of conversion or purchase and
similar rights. All of the outstanding capital stock or partnership
interests of all of such Subsidiaries has been validly issued, is fully
paid and non-assessable and is owned by such Obligor or one or more of its
Subsidiaries free and clear of all Liens, except those created by the
Security Documents. Each Material Subsidiary (i) is a corporation (or, in
the case of TNLP or BMLP, a limited partnership) duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (ii) is duly qualified and in good standing as a foreign
corporation or limited partnership, as the case may be, in each other
jurisdiction in which it owns or leases property or in which the conduct of
its business requires it to so qualify or be licensed and where, in each
case, failure to so qualify and be in good standing could reasonably be
expected to have a Material Adverse Effect and (iii) has all requisite
power (corporate or other) and authority to own or lease and operate its
properties and to carry on its business as now conducted and as proposed to
be conducted.
(c) The execution, delivery and performance by each Obligor of this
Agreement, the Notes and each other Loan Document to which it is or is
intended to be a party, and
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the consummation of the credit transactions between Borrowers and Lenders
contemplated hereby, are within such Obligor's powers (corporate or other),
have been (or will, prior to the Restatement Date, be) duly authorized by
all necessary corporate or other action, and do not (i) contravene such
Obligor's charter, by-laws or, in the case of TNLP, its agreement of
limited partnership, (ii) violate any applicable law (including, without
limitation, the Securities Exchange Act of 1934 and the Racketeer
Influenced and Corrupt Organizations Chapter of the Organized Crime Control
Act of 1970), rule, regulation (including, without limitation, Regulation U
and Regulation X), order, writ, judgment, injunction, decree, determination
or award (except for any such violation, by action or inaction of any
Obligor, that could not reasonably be expected to have a Material Adverse
Effect and that could not result in any liability of any Lender), (iii)
except as set forth on Schedule 4.01(c), conflict with or result in the
breach of, or constitute a default under, any contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument binding on or
affecting any Obligor, any of its Subsidiaries or any of their properties
(except for any such conflict, breach or default, caused by action or
inaction of any Obligor, that could not reasonably be expected to have a
Material Adverse Effect and that could not result in any liability of any
Lender) or (iv) except for the Liens created by the Security Documents,
result in or require the creation or imposition of any Lien upon or with
respect to any of the properties of any Obligor or any of its Subsidiaries.
No Obligor or any of its Subsidiaries is in violation of any such law,
rule, regulation, order, writ, judgment, injunction, decree, determination
or award or in breach of any such contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument, the violation or breach
of which could be reasonably expected to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for (i) the due execution, delivery, recordation,
filing or performance by any Obligor of this Agreement, the Notes or any
other Loan Document to which it is or is to be a party, or for the
consummation of the credit transactions between Borrowers and Lenders
contemplated hereby, (ii) the grant by any Obligor of the Liens granted by
it pursuant to the Security Documents, (iii) the perfection or maintenance
of the Liens created by the Security Documents (except for the filings
required to be made pursuant to Section 3.01(c)) or (iv) the exercise by
the Collateral Agent, the Administrative Agent, any Lender or Issuing Bank
or any other Secured Party (as defined in the Security Documents) of its
rights under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Security Documents, except for the
authorizations, approvals, actions, notices and filings listed on Schedule
4.01(d), all of which have been duly obtained, taken, given or made and are
in full force and effect.
(e) This Agreement has been, and each of the Notes and each other Loan
Document when delivered will have been, duly executed and delivered by each
Obligor that is intended to be a party thereto. This Agreement is, and each
of the Notes and each other Loan Document when delivered will be, the
legal, valid and binding obligation of
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each Obligor that is intended to be a party thereto, enforceable against
such Obligor in accordance with its terms.
(f) The balance sheet of Terra as at December 31, 1996 and the related
statements of income and cash flows of Terra for the twelve months then
ended, accompanied by an opinion of Deloitte & Touche, independent public
accountants, and the balance sheet of Terra as at September 30, 1997 and
the related statements of income and cash flows of Terra for the nine
months then ended, duly certified by the chief financial officer of Terra,
copies of which have been furnished to each Lender, present fairly, in all
material respects, subject, in the case of said balance sheet as at
September 30, 1997, and said statements of income and cash flows for the
nine months then ended, to year-end audit adjustments, the financial
condition of Terra as at such dates and the results of the operations of
Terra for the periods ended on such dates, all in accordance with generally
accepted accounting principles applied on a consistent basis. Since
December 31, 1996, there has been no Material Adverse Change with respect
to Terra.
(g) (A) No written information, exhibit or report (as at the
Restatement Date) furnished by any officer of Terra to the Administrative
Agent, any Issuing Bank or any Lender in connection with the negotiation of
the Loan Documents (when taken together) contained any untrue statement of
a material fact or omitted to state a material fact necessary to make the
statements made therein not misleading and (B) none of the information,
exhibits or reports furnished by any Obligor to the Administrative Agent,
any Issuing Bank or any Lender pursuant to Section 5.03 contained (on the
date of delivery thereof) any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements made
therein not misleading; provided that the representations made in this
Section 4.01(g) with respect to the U.K. Nitrogen Assets with respect to
any time prior to December 31, 1997 are made to the best of Terra's
knowledge after due inquiry.
(h) There is no action, suit, litigation or proceeding against any
Obligor or any of its Subsidiaries or any of their respective property,
including any Environmental Action, pending before any court, governmental
agency or arbitrator, or (to the knowledge of any Obligor) threatened, nor
(to the knowledge of any Obligor) is there any investigation pending in
respect of any Obligor, that:
(1) could reasonably be expected to have a Material Adverse
Effect; or
(2) on the Restatement Date could reasonably be expected to
affect the legality, validity or enforceability of this Agreement, any
Note, any other Loan Document or the consummation of the transactions
contemplated hereby.
(i) No Obligor is engaged in the business of extending credit for the
purpose of purchasing or carrying Margin Stock, and no proceeds of any
Advance will be used for any purpose which violates the provisions of the
regulations of the Board of Governors of
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the Federal Reserve System. After applying the proceeds of each Advance,
not more than 25% of the value of the assets of either Borrower and such
Borrower's Subsidiaries (as determined in good faith by such Borrower) that
are subject to Section 5.02(a) or Section 5.02(e) will consist of or be
represented by Margin Stock. If requested by any Lender or the
Administrative Agent, each Borrower will furnish to the Administrative
Agent and each Lender a statement in conformity with the requirements of
Federal Reserve Form U-1 referred to in Regulation U, the statements made
in which shall be such, in the opinion of each Lender, as to permit the
transactions contemplated hereby in accordance with Regulation U.
(j) Set forth on Schedule 4.01(j) is a complete and accurate list, as
of the Restatement Date, of each Plan that is subject to Title IV of ERISA
and each Multiemployer Plan with respect to any employees or former
employees of any Obligor or any of its ERISA Affiliates.
(k) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan of any Obligor or any of its ERISA Affiliates that
could reasonably be expected to have a Material Adverse Effect.
(l) Since the date of the Schedule B (Actuarial Information) to the
most recent annual report (Form 5500 Series) for each Plan of any Obligor
or any of its ERISA Affiliates, there has been no change in the funding
status of any such Plan except to the extent that such change is not
reasonably expected to have a Material Adverse Effect.
(m) Neither any Obligor nor any of its ERISA Affiliates has incurred
or is reasonably expected to incur any withdrawal liability to any
Multiemployer Plan except to the extent such withdrawal liability is not
reasonably expected to have a Material Adverse Effect.
(n) Neither any Obligor nor any of its ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan of any Obligor or any of
its ERISA Affiliates that such Multiemployer Plan is in reorganization or
has been terminated, within the meaning of Title IV of ERISA.
(o) As of the Restatement Date, the aggregate annualized cost on a
pay-as-you-go basis (including, without limitation, the cost of insurance
premiums) with respect to post-retirement benefits under welfare plans
(other than post-retirement benefits required to be provided by Section
4980B of the Code or applicable state law) for which Terra and its
Subsidiaries is liable does not exceed $1,000,000.
(p) Neither the business nor the properties of any Obligor or any of
its Subsidiaries are affected by any fire, explosion, accident, strike,
lockout or other labor dispute, drought, storm, hail, earthquake, embargo,
act of God or of the public enemy or
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other casualty (whether or not covered by insurance) that could reasonably
be expected to have a Material Adverse Effect.
(q) Except as set forth on Part I of Schedule 4.01(q) and except to
the extent any of the following could not reasonably be expected to have a
Material Adverse Effect, the operations and properties of each Obligor and
each of its Subsidiaries comply in all material respects with all
Environmental Laws, all necessary Environmental Permits have been obtained
and are in effect for the operations and properties of each Obligor and its
Subsidiaries, each Obligor and its Subsidiaries are in compliance in all
material respects with all such Environmental Permits, and no circumstances
exist that could (i) form the basis of an Environmental Action against any
Obligor or any of its Subsidiaries or (ii) cause any such property to be
subject to any material restrictions on ownership, occupancy, use or
transferability under any Environmental Law.
(r) Except as set forth on Part II of Schedule 4.01(q) and except to
the extent any of the following could not reasonably be expected to have a
Material Adverse Effect, as of the Restatement Date none of the properties
of any Obligor or any of its Subsidiaries is listed or proposed for listing
on the National Priorities List under CERCLA or on the Comprehensive
Environmental Response, Compensation and Liability Information System
maintained by the Environmental Protection Agency or any analogous state
list of sites requiring investigation or cleanup, and no underground
storage tanks, as such term is defined in 42 U.S.C. 6901, are located on
any property of any Obligor or any of its Subsidiaries.
(s) Except as set forth on Part III of Schedule 4.01(q) and except to
the extent any of the following could not reasonably be expected to have a
Material Adverse Effect, as of the Restatement Date neither any Obligor nor
any of its Subsidiaries has been notified in writing by any federal, state
or local governmental agency or any other Person that any Obligor or any of
its Subsidiaries is potentially liable for the remedial or other costs with
respect to treatment, storage, disposal, release, arrangement for disposal
or transportation of any Hazardous Substance generated by any Obligor or
any of its Subsidiaries, and Hazardous Materials have not been generated,
used, treated, handled, stored or disposed of on, or released or
transported to or from, any property of such Obligor (or, to its knowledge,
any adjoining property) except in compliance in all material respects with
all Environmental Laws and Environmental Permits, and all other wastes
generated at any such properties by any Obligor or any of its Subsidiaries
(and their respective agents, employees and contractors) have been disposed
of in compliance with all Environmental Laws and Environmental Permits.
(t) Each Obligor and each of its Subsidiaries has filed, has caused
to be filed or has been included in, all federal and state income tax
returns and all other material tax returns (federal, state, local and
foreign) required to be filed and has paid (or is contesting in good faith
by appropriate proceedings) all taxes shown thereon to be owing, together
with applicable interest and penalties.
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(u) Set forth on Schedule 4.01(u) is a complete and accurate list, as
of the date hereof, of each taxable year of Terra for which federal income
tax returns have been filed and for which the expiration of the applicable
statute of limitations for assessment or collection has not occurred by
reason of extension or otherwise (an "Open Year").
(v) As of the Restatement Date, there are no adjustments to the
federal income tax liability of Terra proposed by the Internal Revenue
Service with respect to Open Years. No issues have been raised by the
Internal Revenue Service in respect of Open Years that, in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
(w) Neither any Obligor nor any of its Subsidiaries is an "investment
company," or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended. Neither any Obligor nor any of
its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
Neither the making of any Advances, nor the issuance of any Letters of
Credit, nor the application of the proceeds or repayment thereof by the
Borrowers, nor the consummation of the other transactions contemplated
hereby, will violate any provision of such Act or any rule, regulation or
order of the Securities and Exchange Commission thereunder.
(x) Each of Terra and the Company (both individually and collectively
with their respective Subsidiaries) is Solvent.
(y) Set forth on Part I of Schedule 4.01(y) is a complete and
accurate list, as of the Restatement Date, of all existing Debt of each
Obligor, showing as of the Restatement Date (i) the principal amount
outstanding thereunder, (ii) whether such Debt is secured by any Lien and
(iii) the aggregate principal amount of such Debt scheduled to be paid
during each fiscal year of Terra to and including the fiscal year of Terra
in which the Terra Commitment Termination Date is scheduled to occur.
Section 4.02. Representations and Warranties of each Lender. Each
Lender hereby represents and warrants that such Lender, in good faith, has not
relied upon Margin Stock as collateral for the Obligations of the Obligors
hereunder and under the other Loan Documents.
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ARTICLE V
COVENANTS OF TERRA
Section 5.01. Affirmative Covenants. So long as any principal of or
interest on any Advance or any other amount payable under this Agreement shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender shall
have any Commitment hereunder, Terra will, and will cause each of the Obligors
to:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
ERISA and the Racketeer Influenced and Corrupt Organizations Chapter of the
Organized Crime Control Act of 1970 (except to the extent that non-
compliance with any thereof could not reasonably be expected to have a
Material Adverse Effect).
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might
by law become a Lien upon its property; provided that neither such Obligor
nor any of its Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained to the extent required by GAAP, unless and until any Lien
resulting therefrom attaches to its property and becomes enforceable
against its other creditors.
(c) Compliance with Environmental Laws. Comply, and cause each of its
Subsidiaries and all lessees and other Persons occupying its properties to
comply, with all Environmental Laws and Environmental Permits applicable to
its operations and properties; obtain and renew, and cause each of its
Subsidiaries to obtain and renew, all Environmental Permits necessary for
its operations and properties; and conduct, and cause each of its
Subsidiaries to conduct, any investigation, study, sampling and testing,
and undertake any cleanup, removal, remedial or other action necessary to
remove and clean up all Hazardous Materials from any of its properties, in
accordance with the requirements of all Environmental Laws; provided that
(i) neither such Obligor nor any of its Subsidiaries shall be required to
undertake any such cleanup, removal, remedial or other action to the extent
that its obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves to the extent required by GAAP are
being maintained with respect to such circumstances and (ii) no such
compliance with laws and permits, obligation to obtain or renew permits or
obligation to undertake any such investigation, study, sampling, testing,
removal, remedial or other action shall be required hereunder to the extent
no Material Adverse Effect could reasonably be expected to result
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from any failure to so comply, obtain, renew or undertake, either
individually or in the aggregate.
(d) Maintenance of Insurance. Maintain, and cause each of its
Material Subsidiaries to maintain, with responsible and reputable insurance
companies or associations, insurance, including business interruption
insurance with respect to each manufacturing plant, in such amounts and
covering such risks as is usually carried by companies engaged in similar
businesses.
(e) Preservation of Corporate Existence, Etc. Subject to Section
5.02(d) and (e), preserve and maintain, and cause each of its Material
Subsidiaries to preserve and maintain, its corporate or partnership
existence, rights (charter and statutory) and franchises; provided that:
(1) BMLP may be dissolved on the terms and conditions set forth
in the BMLP Partnership Agreement as in effect at the Restatement
Date; and
(2) neither any Obligor nor any of its Subsidiaries shall be
required to preserve any right or franchise if the Board of Directors
of such Obligor or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of such Obligor or such Subsidiary, as the case may be, and
that the loss thereof will not have a Material Adverse Effect.
(f) Visitation Rights. At any reasonable time and as may be
reasonably requested from time to time, permit the Administrative Agent,
any Issuing Bank or any of the Lenders or any agents or representatives
thereof to examine and make copies of and abstracts from the records and
books of account of, and visit the properties of, such Obligor and any of
its Subsidiaries (in the presence of an appropriate officer or
representative of the relevant Obligor), and to discuss the affairs
(including, but not limited to, the compliance by such Obligor and its
Subsidiaries with all Environmental Laws), finances and accounts of such
Obligor and any of its Subsidiaries with any of their officers or directors
and with their independent certified public accountants.
(g) Preparation of Environmental Reports. Upon either (i) the
acquisition of any real property by such Obligor or any of its Subsidiaries
the purchase price of which exceeds $1,000,000 or (ii) the occurrence and
during the continuance of a Default or Event of Default arising under
Section 5.01(c), and in each case at the written request of the
Administrative Agent, such Obligor shall provide to the Administrative
Agent within a reasonable time after such acquisition or request, as the
case may be, at the expense of such Obligor, an environmental site
assessment report for the acquired property (in the case of an acquisition
as described in clause (i)) or for any properties of such Obligor which are
the subject of any such Default or Event of Default (in the case of an
event as described in clause (ii)) prepared by an environmental consulting
firm reasonably acceptable to the Administrative Agent, indicating the
presence or absence of Hazardous Materials and the estimated cost of any
compliance, removal or remedial action in connection with any Hazardous
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Materials on such properties (provided that if such Obligor, in the
exercise of its reasonable judgment, determines not to have such an
environmental site assessment report prepared, such Obligor shall instead
deliver to the Administrative Agent a copy of such Obligor's internal site
assessment report relating to relevant property). Without limiting the
generality of the foregoing, if the Administrative Agent determines at any
time that a material risk exists that any such report will not be provided
within a reasonable time following such request, the Administrative Agent
may retain an environmental consulting firm to prepare such report at the
expense of such Obligor, such Obligor and each of its Subsidiaries hereby
granting to the Administrative Agent, such firm and any agents or
representatives thereof an irrevocable non-exclusive license, subject to
the rights of tenants, to enter onto its properties to undertake such an
assessment.
(h) Keeping of Books. Keep, and cause each of its Material
Subsidiaries to keep, proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets
and business of such Obligor and each such Subsidiary in accordance with
GAAP.
(i) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Material Subsidiaries to maintain and preserve, except to the
extent the failure to do so could not reasonably be expected to have a
Material Adverse Effect, all of its properties that are used or useful in
the conduct of its business in good working order and condition, ordinary
wear and tear excepted.
(j) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real
property, keep such leases in full force and effect and not allow such
leases to lapse or be terminated or any rights to renew such leases to be
forfeited or canceled, except to the extent any such lease is no longer
used or useful in the conduct of its business or which, in the exercise of
the reasonable judgment of the relevant Obligor, is to be refinanced and
except to the extent failure to comply with the foregoing would not have a
Material Adverse Effect, and cause each of its Material Subsidiaries to do
so.
(k) Performance of Sale of Business Agreement, Etc. Perform and
observe in all material respects all of the terms and provisions of the
Sale of Business Agreement (and each document relating thereto) to be
performed or observed by it, maintain the Sale of Business Agreement (and
each such other document) in full force and effect and enforce in all
material respects the Sale of Business Agreement (and each such other
document) in accordance with its terms.
(l) Performance and Compliance with Material Contracts. Perform and
observe, and cause each of its Subsidiaries to perform and observe, all the
terms and provisions of each Material Contract to be performed or observed
by it, maintain each such Material
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Contract in full force and effect and enforce each such Material Contract
in accordance with its terms, except to the extent the failure to do any of
the foregoing could not reasonably be expected to have a Material Adverse
Effect.
(m) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of its Affiliates on terms that are fair and
reasonable and no less favorable to such Obligor or such Subsidiary than
would obtain in a comparable arm's-length transaction with a Person that is
not an Affiliate; provided that this Section 5.01(m) shall not be
applicable to:
(i) transactions between such Obligor and wholly owned
Subsidiaries of Terra or between wholly owned Subsidiaries of Terra
unless otherwise prohibited by this Agreement;
(ii) compensation paid for services rendered by any director or
officer of such Obligor or any director or officer of a Subsidiary of
such Obligor serving at the direction or request of such Obligor to
the extent such compensation is determined in the good faith exercise
of business judgment by the Board of Directors of such Obligor to be
reasonable and appropriate to the functions of such office;
(iii) transactions under Intercompany Receivables Facilities;
(iv) Investments in Permitted JVs to the extent permitted
hereunder and general and administrative and purchasing services for
Permitted JVs (including inventory purchasing arrangements, whether
for inventory manufactured and/or produced by Terra or any of its
Subsidiaries or purchased from third parties, vendors or suppliers and
including leasing and subleasing of furnishings, fixtures and
equipment);
(v) transactions among members of the BMLP Group;
(vi) transactions under the Management Agreements; and
(vii) transactions under the Terra U.K. Offtake Agreement.
(n) Further Assurances. (i) Promptly upon reasonable request by the
Administrative Agent or any Lender or Issuing Bank through the
Administrative Agent, correct, and cause each Subsidiary promptly to
correct, any material defect or error that may be discovered in any Loan
Document, which material defect or error is the result of any untrue
statement of material fact under any Loan Document or the omission to state
a material fact necessary to make the statements made therein not
misleading, or in the execution, acknowledgment or recordation of any Loan
Document, and (ii) promptly
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upon reasonable request by the Collateral Agent, the Administrative Agent
or any Lender or Issuing Bank through the Administrative Agent do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and re-
register, and cause any such Subsidiary promptly to do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and re-
register, any and all such further acts, deeds, conveyances, pledge
agreements, assignments, financing statements and continuations thereof,
termination statements, notices of assignment, transfers, certificates,
assurances and other instruments as the Collateral Agent, the
Administrative Agent or any Lender or Issuing Bank through the
Administrative Agent may reasonably require from time to time in order to
(A) subject to the Liens created by any of the Security Documents any of
such Obligor's and its Subsidiaries' properties, rights or interests
covered or now or hereafter intended to be covered by any of the Security
Documents, (B) perfect and maintain the validity, effectiveness and
priority of any of the Security Documents and the Liens intended to be
created thereby and (C) assure, convey, grant, assign, transfer, preserve,
protect and confirm more effectively unto the Collateral Agent the rights
granted or now or hereafter intended to be granted to it under any Security
Document or under any other instrument executed in connection with any
Security Document to which such Obligor, any other Obligor or any of their
respective Subsidiaries is or may become a party.
(o) Ownership of the Obligors. Take, and will cause each of its
Subsidiaries to take, such action from time to time as shall be necessary
to ensure that:
(i) Terra will at all times own, beneficially and of record,
all of the issued and outstanding capital stock (other than directors'
qualifying shares) of Terra Capital Holdings;
(ii) Terra Capital Holdings will at all times own, beneficially
and of record, all of the issued and outstanding capital stock (other
than directors' qualifying shares) of the Company, and will own no
other property (other than (x) cash, (y) other property incidental to
its business as a holding company and (z) capital stock of, or other
ownership interests in, Receivables Subsidiaries);
(iii) the Company will at all times own:
(1) beneficially and of record, all of the issued and
outstanding capital stock (other than directors' qualifying
shares) of TI, BMCH, TMC and TNC and
(2) no other property, other than:
(A) cash and Permitted Investments,
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(B) Receivables of one or more of its Subsidiaries
transferred to it, and capital stock of, or other ownership
interests in, Receivables Subsidiaries,
(C) Senior Preference Units purchased pursuant to the
SPU Redemption, and capital stock of a wholly owned
Subsidiary of the Company organized for the purpose of
holding such Senior Preference Units,
(D) other property incidental to its business as a
holding company,
(E) other property used solely in connection with its
performance of services pursuant to the terms of the
Management Agreements and
(F) other Investments permitted to be held by the
Company pursuant to Section 5.02(f) (to the extent such
Investments, in the case of those made under clauses (iv),
(v) and (vi) of said Section 5.02(f), are subject to the
Lien of the Security Documents);
(iv) except to the extent necessary to give effect to the BMLP
Transactions, BMCH will at all times own, beneficially and of record,
a 99% limited partnership interest in BMLP; and at all times BMCH will
own no other property (other than cash and other property incidental
to its business as a holding company);
(v) except to the extent necessary to give effect to the BMLP
Transactions, TMC will at all times own, beneficially and of record, a
1% general partnership interest in BMLP; and at all times TMC will own
no other property (other than cash and other property incidental to
its business as a holding company);
(vi) without limiting clauses (iv) and (v) above, TMC and BMCH
will at all times own, beneficially and of record, all of the
partnership interests in BMLP other than the BMLP Class A Limited
Partnership Interest;
(vii) Terra Canada will at all times own, beneficially and of
record, all of the capital stock of Terra U.K.;
(viii) TNC will own no property other than cash and:
(v) ownership interests of TNCLP and its successors and a
general partnership interest in TNLP and its successors;
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(w) capital stock of a wholly owned Subsidiary of TNC
organized for the purpose of holding Senior Preference Units;
(x) equipment and other property principally used in
connection with TNC's performance of general and administrative
services (including, without limitation, property related to
incentive compensation plans, deferred compensation plans and
other funded benefit plans) for Terra and its Subsidiaries;
(y) raw materials and other property used in the
manufacture, storage, sale and distribution of nitrogen and
methanol products by Terra and its Subsidiaries in the ordinary
course of business, provided that the aggregate book value of all
tangible property of TNC referred to in this paragraph (y) shall
not at any time exceed $10,000,000; and
(z) other property incidental to its business as a
holding company and a general partner; and
(ix) TNCLP will at all times own no property other than
ownership interests of TNLP and its successors (other than cash,
Senior Preference Units purchased pursuant to the SPU Redemption and
other property incidental to its business as a holding company).
In the event that any such additional shares of stock or other ownership
interests shall be issued to an Obligor by any Subsidiary thereof, the
respective Obligor agrees forthwith to deliver to the Collateral Agent
pursuant to the Security Documents the certificates (if any) evidencing
such ownership interests accompanied by undated powers executed in blank
and to take such other action as the Collateral Agent or the Administrative
Agent shall request to perfect the security interest created therein
pursuant to the Security Documents. Without limiting the foregoing,
neither TNCLP nor TNLP shall convert to a corporate form except pursuant to
the SPU Redemption.
(p) Delivery of Management Agreements. On or prior to the date of
execution of each Management Agreement, notify the Administrative Agent
thereof (and the Administrative Agent shall notify the Lenders thereof
promptly) and shall deliver to the Administrative Agent a certified copy
thereof (each such Management Agreement to be in form and substance
reasonably satisfactory to the Administrative Agent). Promptly following
each amendment, waiver and consent relating to a Management Agreement (but
subject to Section 5.02(p)), Terra shall give the Administrative Agent
notice thereof (and the Administrative Agent shall notify the Lenders
thereof promptly), and shall deliver to the Administrative Agent a
certified or conformed copy of each such amendment, waiver and consent.
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Section 5.02. Negative Covenants. So long as any principal of or
interest on any Advance or any other amount payable under this Agreement shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender shall
have any Commitment hereunder, Terra will not, and will not permit any of its
Material Subsidiaries to:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
any of its Material Subsidiaries to create, incur, assume or suffer to
exist, any Lien on or with respect to any of its properties of any
character (including, without limitation, accounts) whether now owned or
hereafter acquired, or sign or file, or permit any of its Subsidiaries to
sign or file, under the Uniform Commercial Code of any jurisdiction, a
financing statement that names such Obligor or any of its Subsidiaries as
debtor, or sign, or permit any of its Subsidiaries to sign, any security
agreement authorizing any secured party thereunder to file such financing
statement, or assign, or permit any of its Subsidiaries to assign, any
accounts or other right to receive income, excluding from the operation of
the foregoing restrictions the following:
(i) Liens created by the Loan Documents;
(ii) Permitted Liens; Liens in favor of banks which arise under
Article 4 of the Uniform Commercial Code on items in collection and
documents relating thereto and proceeds thereof; and Liens in favor of
customs and revenue authorities arising as a matter of law to secure
customs duties in connection with the importation of goods;
(iii) Liens existing on the Restatement Date and described on
Schedule 5.02(a)(iii);
(iv) Liens on cash (in an aggregate amount, for Terra and its
Subsidiaries taken as a whole, not exceeding $15,000,000 at any time)
to secure the Obligations in respect of letters of credit permitted
under Section 5.02(b)(1)(iv);
(v) Liens on Receivables and incidental property of the Company
or any of its Subsidiaries to secure such Person's Obligations under
the Intercompany Receivables Facilities and/or under the Permitted
Receivables Facilities;
(vi) Purchase money Liens upon or in property acquired or held
by Terra or such Subsidiary in the ordinary course of business to
secure the purchase price of such property or to secure Debt
(including, without limitation, commercial letters of credit) incurred
solely for the purpose of financing the acquisition, construction or
improvement of any such property to be subject to such Liens, or Liens
existing on any such property at the time of acquisition (and not
created in anticipation thereof), or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount;
provided that (x) no such Lien shall extend to or cover any property
other than the property being acquired,
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constructed or improved, and no such extension, renewal or replacement
shall extend to or cover any property not theretofore subject to the
Lien being extended, renewed or replaced; and (y) the Debt secured by
any such Lien shall at no time exceed 100% of the fair market value
(as determined in good faith by the Senior Financial Officer) of such
property at the time it was acquired;
(vii) Any Lien arising after the Restatement Date in favor of
any state of the United States of America or any agency, political
subdivision or instrumentality thereof, upon any pollution abatement
or control facilities being financed in compliance with Section
103(c)(4)(F) of the Internal Revenue Code of 1986, as in effect on the
date of this Agreement (or any successor statute which is similar in
all substantive respects), the interest payable in respect of which
financing is excluded from gross income under said Section 103,
provided that (x) the Debt secured by such Lien is not prohibited by
clause (b)(1) of this Section 5.02, and (y) such Lien does not cover
any other property at any time owned by Terra or any Material
Subsidiary;
(viii) Liens on property that is the subject of a capital lease
to secure the performance of the Capital Lease Obligations relating
thereto;
(ix) Liens upon property of a Person that becomes a Subsidiary
of Terra after the Restatement Date, each of which Liens existed on
such property before the time such Person became a Subsidiary of Terra
and was not created in anticipation thereof; provided that no such
Lien shall extend to or cover any property of Terra or any of its
Subsidiaries other than the property subject to such Liens at the time
such Person became a Subsidiary of Terra and improvements thereon;
(x) Leases or subleases, and licenses or sublicenses, granted
to third Persons not interfering in any material respect with the
business of Terra or such Subsidiary;
(xi) Easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the
business of Terra or such Subsidiary;
(xii) Liens arising from Uniform Commercial Code financing
statements regarding operating leases permitted by this Agreement;
(xiii) Any interest or title of a lessor or sublessor or licensor
under any lease or license permitted or not prohibited by this
Agreement;
(xiv) Additional Liens upon property created after the
Restatement Date, provided that the aggregate Debt secured thereby and
incurred on and after the
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Restatement Date shall not exceed $10,000,000 in the aggregate at any
one time outstanding;
(xv) Liens on property constituting all or part of the Ammonia
Loop incurred in connection with the construction thereof;
(xvi) The replacement, extension or renewal of any Lien
permitted by clauses (iii), (iv), (v), (ix), (xiv) and (xv) above upon
or in the same property theretofore subject thereto or the
replacement, extension or renewal (without increase in the principal
amount or change in any direct or contingent obligor) of the Debt
secured thereby;
(xvii) Liens on property of Terra Canada to secure the Terra
Canada Credit Facility;
(xviii) Liens on property of Terra U.K. to secure the Terra U.K.
Loan;
(xix) Liens securing obligations of the Company and its
Subsidiaries under Hedge Agreements permitted by Section 5.02(c); and
(xx) Liens on property of Terra and its Subsidiaries (other than
(1) property subject to the Liens under the Security Documents and (2)
property subject to any Liens securing Debt of Terra or such
Subsidiaries) in favor of Terra or any of its Subsidiaries to secure
Debt owing to Terra or any of its Subsidiaries.
(b) Debt.
(1) Generally. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Debt other than:
(i) Debt under the Loan Documents;
(ii) Debt in respect of Hedge Agreements permitted by Section
5.02(c);
(iii) Debt in respect of unsecured trade payables (and
Obligations in respect of letters of credit supporting such trade
payables);
(iv) Debt (including, without limitation, Obligations in respect
of letters of credit) not secured by any Lien (other than Liens
permitted by Section 5.02(a)(iv)), so long as, on the date of the
incurrence thereof, the aggregate principal amount (or the U.S. Dollar
equivalent of the aggregate principal amount) of all Debt of Terra and
its Subsidiaries on a Consolidated basis (as reasonably determined by
the Senior Financial Officer on and as of the date of such incurrence)
then outstanding under this clause (iv) (including, without
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limitation, the Debt proposed to be incurred on such date) does not
exceed $50,000,000;
(v) Obligations of the Company and its Subsidiaries under the
Intercompany Receivables Facilities and under the Permitted
Receivables Facilities;
(vi) Debt securities of Terra issued in a public offering
pursuant to an effective registration statement the terms of which
(including, without limitation, as to interest rates, amortization
(provided that in any event no payments of principal, redemptions,
sinking fund payments or the like shall be scheduled to be made before
the Terra Commitment Termination Date), redemption, average life to
maturity, covenants, events of default and other terms) are reasonably
satisfactory to the Required Lenders;
(vii) Debt outstanding (or committed to be made available) as at
the Restatement Date and set forth on Schedule 4.01(y);
(viii) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(ix) Intercompany Debt permitted under Section 5.02(b)(2);
(x) Debt secured by Liens permitted under Section 5.02(a)(vi);
purchase money Debt secured by Liens permitted under 5.02(a)(ix); and
Debt in an aggregate principal amount not exceeding $10,000,000 at any
one time outstanding secured by Liens permitted under Section
5.02(a)(xiv);
(xi) Acquired Debt in an aggregate principal amount not
exceeding $50,000,000 at any one time outstanding;
(xii) 1995 Terra Debt (and Debt of Terra evidenced by
instruments issued in exchange for such Debt), and renewals,
refinancings and replacements thereof (without increase in the
principal amount or change in any direct or contingent obligor, and on
such other terms and conditions as shall be no less favorable to Terra
and its Subsidiaries than the Debt being so renewed, refinanced or
replaced);
(xiii) renewals, refinancings and replacements of the Debt
permitted under clauses (vi), (vii), (x) and (xi) above and clause
(xviii) below (without increase in the principal amount or change in
any direct or contingent obligor and not including any Debt to be paid
or prepaid with the proceeds of Advances);
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(xiv) if at any time Britz LLC is a Subsidiary of Terra, Capital
Lease Obligations owing by Britz LLC to BFI with respect to fixtures,
furniture, equipment and other Property in an aggregate principal
amount presently contemplated to be approximately $25,400,000 but in
no event exceeding $30,000,000, and (regardless of whether Britz LLC
is a Subsidiary of Terra) the Guarantee of such Obligations by Terra
or one or more of its Subsidiaries;
(xv) Debt of Terra (or one or more of its Subsidiaries) in a
principal amount (contemplated to be approximately $20,000,000,
subject to adjustment in increases or decreases in BFI's capital
account in Britz LLC) as required under the put/call provisions of the
Britz JV Agreement, but in any event not exceeding $30,000,000, owing
under one or more promissory notes payable by Terra or one or more of
its Subsidiaries to BFI and/or one or more of BFI's Affiliates as
consideration for the transfer by BFI to TI or one or more of its
Subsidiaries of the membership interests in Britz LLC not theretofore
held by TI and its Subsidiaries, and the Guarantee of such Debt by
Terra or one or more of its Subsidiaries;
(xvi) Obligations of TI in a maximum amount not exceeding
$5,000,000 owing to BFI and/or one or more of BFI's Affiliates under
one or more consulting or service agreements, and the Guarantee of
such Obligations by Terra or one or more of its Subsidiaries;
(xvii) Debt of Terra to former shareholders of Huntting Elevator
Company in an aggregate principal amount not exceeding $7,000,000;
(xviii) Debt of Terra Canada under the Terra Canada Credit
Facility in an aggregate principal amount not at any time exceeding
$125,000,000, and Guarantees thereof by Terra and one or more of its
Subsidiaries;
(xix) Guarantees by Terra U.K. of Terra U.K. Customer Debt;
provided that:
(A) the aggregate principal amount of such Debt so
Guaranteed by Terra U.K. with respect to any customer at any time
shall not exceed 50% of the aggregate principal amount of the
Terra U.K. Customer Debt of such customer outstanding at such
time; and
(B) the aggregate principal amount of Terra U.K. Customer
Debt Guaranteed by Terra U.K. at any time during any fiscal year
of Terra U.K. shall not exceed (x) (Pounds)15,000,000 minus (y)
the aggregate amount of payments made by Terra U.K. under all
such Guarantees during such fiscal year;
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(xx) unsecured Debt of Terra U.K. in an aggregate principal
amount not at any time exceeding (Pounds)7,000,000; and
(xxi) unsecured Debt of Terra Canada in an aggregate principal
amount not at any time exceeding $10,000,000 (or its equivalent in
Canadian Dollars at the time of borrowing thereof).
(2) Intercompany Debt. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to exist, any
Intercompany Debt other than:
(i) Intercompany Debt outstanding on December 31, 1997;
(ii) Debt of the Company to BMLP, and Debt of one or more of the
Company's Subsidiaries to BMLP that is Guaranteed by the Company
(collectively, "BMLP Demand Loans"), provided that, if the aggregate
principal amount of BMLP Demand Loans outstanding as at the end of any
month ending on or after December 31, 1997 exceeds $145,000,000, the
Company shall repay (or cause to be repaid) BMLP Demand Loans in an
aggregate amount equal to such excess as soon as reasonably possible and in
any event within 30 days after the end of such month;
(iii) Debt of the Company to BMLP in an aggregate principal
amount not at any time exceeding $5,000,000 evidenced by a single
promissory note payable to BMLP (such note, as from time to time amended,
the "Terra Capital Note");
(iv) Debt of Terra U.K. to Terra U.K. Holdings in an aggregate
principal amount not at any time exceeding $175,000,000 (the "Terra U.K.
Loan");
(v) Obligations under the U.K. Offtake Agreement;
(vi) additional Intercompany Debt (other than Debt of members of
the Terra Canada Group and Debt of members of the BMLP Group);
(vii) Intercompany Debt owing by members of the BMLP Group to
other members of the BMLP Group;
(viii) Intercompany Debt owing by members of the Terra Canada
Group to other members of the Terra Canada Group;
(ix) additional Intercompany Debt of Terra Canada and Terra U.K.
in an aggregate principal amount not at any time exceeding (1) during the
period ending on December 31, 1998, $60,000,000, and (2) thereafter,
$50,000,000; and
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(x) additional Intercompany Debt.
(c) Hedge Agreements. Enter into or permit to be outstanding, or permit
any of its Subsidiaries to enter into or permit to be outstanding, any Hedge
Agreement other than:
(1) Hedge Agreements entered into prior to the Restatement Date
and identified on Schedule 5.02(c);
(2) the Terra U.K. Offtake Agreement;
(3) the Ammonium Nitrate Hedging Agreement; and
(4) other Hedge Agreements entered into in the ordinary course
of business and in a reasonably prudent manner and not for speculative
purposes, in each case in order to protect against the fluctuation in
interest rates, foreign exchange rates or commodity prices.
(d) Mergers, Etc. Merge with or into or consolidate with or into any
Person, or permit any of its Material Subsidiaries to do so, except that:
(i) if no Default or Event of Default shall have occurred and be
continuing or would result therefrom, (x) any Subsidiary of the Company may
be merged or consolidated with or into the Company (provided that the
Company shall be the continuing or surviving corporation) or any other
wholly owned Subsidiary of the Company and (y) the Company or any of its
Subsidiaries may merge or consolidate with any other Person; provided that
(1) in the case of a merger or consolidation of the Company, the Company is
the continuing or surviving corporation, and (2) in any other case, the
continuing or surviving corporation is a wholly owned Subsidiary of the
Company; and
(ii) if no Default or Event of Default shall have occurred and
be continuing or would result therefrom, (x) any Outside Subsidiary may be
merged or consolidated with or into Terra (provided that Terra shall be the
continuing or surviving corporation) or any other wholly owned Outside
Subsidiary of Terra and (y) Terra or any of its Outside Subsidiaries may
merge or consolidate with any other Person (other than Terra Capital
Holdings or any of its Subsidiaries); provided that (1) in the case of a
merger or consolidation of Terra, Terra is the continuing or surviving
corporation, and (2) in any other case, the continuing or surviving
corporation is a wholly owned Outside Subsidiary of Terra.
(e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise dispose of
(including, without limitation, in a sale-leaseback transaction), or permit any
of its Subsidiaries to sell, lease, transfer or otherwise dispose of (including,
without limitation, in a sale-
<PAGE>
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leaseback transaction), any of its assets, including (without limitation) any
manufacturing plant or substantially all assets constituting the business of a
division, branch or other unit operation, except:
(i) sales of inventory in the ordinary course of its business;
(ii) sales or other dispositions of obsolete or worn-out equipment no
longer used or useful in its business;
(iii) dispositions of assets by one member of the Specified Group to
another member of the Specified Group (where "Specified Group" means,
collectively, the Company and each of its wholly owned Subsidiaries);
(iv) (X) to the extent not permitted pursuant to clause (iii) above,
dispositions of assets by one Obligor to another and by an Obligor to one
of its or any other Obligor's wholly owned Subsidiaries, (Y) other
Dispositions to the extent the Net Available Proceeds thereof are invested
or committed to be invested in the business of the Company and its
Subsidiaries within one year from the date of the relevant Disposition, and
(Z) other Dispositions in an aggregate amount not to exceed $50,000,000 in
any period of 12 consecutive months; provided that, in the case of all
Dispositions under this clause (iv) (A) each such asset is sold for an
amount not less than its fair market value, (B) no such asset may be sold
to the extent that it is, individually or when considered with any other
asset or assets sold or expected to be sold in such period (but taking into
account property acquired in exchange for, or to be acquired substantially
contemporaneously with the disposition of, the assets so sold or expected
to be sold), material to the business, assets, operations, properties or
financial condition of Terra and its Subsidiaries taken as a whole, and (C)
the Net Available Proceeds of such Disposition are applied in accordance
with and to the extent required by Section 2.05(b), and to the extent the
assets subject to the Disposition constituted part of the Collateral, all
other cash and non-cash proceeds of such Disposition become subject to the
Lien created by the Security Documents in accordance with the terms
thereof;
(v) nothing in this Section 5.02(e) shall prohibit the Company or any
of its Subsidiaries from selling Receivables (x) under any Permitted
Receivables Facility (subject to the restrictions specified in the
definition of said term) or (y) under any Intercompany Receivables
Facility;
(vi) sales, transfers and other dispositions of assets to Britz LLC
so long as such transactions are (if at the time Britz LLC is not a wholly
owned Subsidiary of the Company) in the ordinary course of business and on
ordinary business terms;
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(vii) transfers of assets by Terra or one of the Outside
Subsidiaries, directly or indirectly, to a wholly owned Subsidiary of Terra
(a "Recipient") so long as the consideration paid by such Recipient (if
any) for all such assets does not exceed the fair market value of such
property;
(viii) transfers by TI of the Blytheville Assets to Farmland JV in
accordance with Section 5.02(f)(xviii)(x);
(ix) transfers of assets by BMLP or any of its wholly owned
Subsidiaries to BMLP or any of its wholly owned Subsidiaries;
(x) (A) transfers of assets by Terra or one of its wholly owned
Subsidiaries to BMLP or a Subsidiary thereof so long as the consideration
paid to Terra and its wholly owned Subsidiaries for all such assets is not
less than the fair market value of such property; and (B) transfers of
assets by BMLP or a Subsidiary thereof to Terra or one of its wholly owned
Subsidiaries so long as the consideration paid by Terra and its wholly
owned Subsidiaries for all such assets does not exceed the fair market
value of such property;
(xi) dividends with respect to the capital stock of Terra U.K. paid
to Terra Canada for any fiscal year of Terra Canada in an aggregate amount
not exceeding the aggregate amount required to be paid by Terra Canada to
ICI pursuant to the terms of the Ammonium Nitrate Hedging Agreement for
such fiscal year; and
(xii) additional sales, leases, transfers and other dispositions of
property by Terra and its Subsidiaries (other than (1) property subject to
the Liens under the Security Documents and (2) property subject to any
Liens securing Debt of Terra or such Subsidiary) to Terra or any of its
Subsidiaries.
(f) Investments. Make or hold, or permit any of its Subsidiaries to make
or hold, any Investment, other than:
(i) Investments by Terra and its Subsidiaries in cash and Permitted
Investments;
(ii) Investments constituting (A) operating deposit accounts with
banks and (B) Receivables arising in the ordinary course of business on
ordinary business terms, in each case in accordance with, and subject to
the terms of, the Security Documents;
(iii) Investments described in Schedule 5.02(f);
(iv) Investments arising solely by reason of any merger or
consolidation expressly permitted by Section 5.02(d)(i)(x) or
5.02(d)(ii)(x);
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(v) Subject to the terms set forth on Exhibit G, Specified
Acquisitions to the extent permitted to be made under Section 5.02(h);
(vi) Investments consisting of acquisitions of property (including,
without limitation, ownership interests in any Person) by Terra or any of
its Subsidiaries so long as (x) the aggregate fair market value of all such
property acquired in any fiscal year of Terra shall not exceed $50,000,000,
and (y) the consideration paid by Terra and its Subsidiaries for each such
acquisition consists solely of equity securities issued by Terra;
(vii) Investments in respect of Hedge Agreements permitted by Section
5.02(c);
(viii) Investments in Lynn Seeds, Inc. in an aggregate amount not
exceeding $4,000,000;
(ix) Investments in Agro-Terra Internacional, S.A. de C.V., a joint
venture between TI and Grupo Acerero del Norte, S.A. de C.V., in an
aggregate amount not exceeding $5,000,000;
(x) Investments made pursuant to Terra's Supplemental Deferred
Compensation Plan and its Excess Benefit Plan, each as in effect from time
to time;
(xi) Investments by Terra consisting of Terra Stock Repurchases;
(xii) Investments by Terra and its Subsidiaries consisting of the
purchase, redemption or other acquisition of Senior Preference Units
pursuant to the SPU Redemption;
(xiii) Debt (including Guarantees of Debt) constituting Investments,
to the extent such Debt is permitted under Section 5.02(b);
(xiv) Investments by the Company and its Subsidiaries in members of
the Terra Canada Group, and Investments by the Company and its Subsidiaries
in members of the BMLP Group, in each case outstanding on December 31,
1997;
(xv) capital contributions to Receivables Subsidiaries;
(xvi) (x) working capital advances or loans made by Terra or one or
more of its Subsidiaries to Britz LLC from time to time to the extent
required or permitted pursuant to the terms of the Britz Documents; and (y)
loans, advances and capital contributions made by Terra or one or more of
its Subsidiaries to Britz
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LLC from time to time to finance the purchase by Britz LLC of
furnishings, fixtures and equipment, real estate and/or equity
interests in entities engaged in the same or allied lines of business
in an aggregate principal amount not to exceed $10,000,000 at any one
time outstanding;
(xvii) the purchase and sale by Terra of one or more Specified
Call Options (each relating to the same U.S. Stock Index and entered
into with the same counterparty) having an aggregate net cost to Terra
and its Subsidiaries of not more than $20,000,000, which purchases and
sales when taken together are (in the reasonable determination of
Terra) reasonably prudent investments to be made for an appropriate
business purpose; and
(xviii) Investments by TI in Farmland JV constituting (x) the
acquisition of not less than 50% of the ownership interests of
Farmland JV in exchange for the contribution of the Blytheville Assets
to Farmland JV; and (y) loans and net capital contributions made by
Terra or one or more of its Subsidiaries to Farmland JV from time to
time, in an aggregate principal amount not to exceed $10,000,000 at
any one time outstanding, to finance working capital needs of Farmland
JV and the purchase by Farmland JV of furnishings, fixtures and
equipment, real estate and/or equity interests in entities engaged in
the same or allied lines of business;
(xix) Investments by Terra Canada and its Subsidiaries in
Subsidiaries of Terra Canada;
(xx) Investments by BMLP and its Subsidiaries in Subsidiaries of
BMLP;
(xxi) Investments by Terra and its Subsidiaries in members of
the BMLP Group (including, without limitation, capital contributions
by the Company, TMC and BMCH to BMLP in respect of Extraordinary
Expenses pursuant to the terms of the BMLP Partnership Agreement) in
an aggregate amount not exceeding $30,000,000; provided that:
(1) not more than $25,000,000 of such amount may be capital
contributions made by the Company, TMC and BMCH to BMLP in
respect of such Extraordinary Expenses; and
(2) the aggregate amount of insurance, indemnification,
guarantee and other similar third-party arrangements resulting
from or relating to Extraordinary Expenses received by BMLP and
returned to the Company or any of its Subsidiaries (other than
members of the BMLP Group) shall be deemed to reduce, pro tanto,
the amount of capital contributions made by the Company and such
Subsidiaries in respect of Extraordinary Expenses;
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(xxii) additional Investments by Terra and its Subsidiaries in
members of the Terra Canada Group in an aggregate amount not exceeding
$10,000,000;
(xxiii) additional Investments by Terra and its Subsidiaries in
Subsidiaries of Terra (other than in members of the Terra Canada Group
and members of the BMLP Group);
(xxiv) the redemption or other acquisition by Terra or its
Subsidiaries of all (but not less than all) of the BMLP Class A
Limited Partnership Interest and/or the "Nova Interests" (as defined
in the BMLP Support and Option Agreement); and
(xxv) additional Investments by Terra and its Subsidiaries in
Terra or any of its Subsidiaries.
(g) Payments to Minority Interests. Pay or cause to be paid, or permit
any of its Subsidiaries to pay or cause to be paid, to any holder of a
minority interest any amount with respect to such minority interest in
excess of the amount to which such holder is legally entitled, unless Terra
or such Subsidiary simultaneously receives payment in an amount equal to or
greater than its ratable share of the amount of the related distribution
(determined in accordance with the respective interests then held by Terra
and such Subsidiary, on the one hand, and such holder, on the other),
provided that the following will not constitute a breach of this Section
5.02(g):
(1) the SPU Redemption;
(2) the redemption in whole, but not in part, of the BMLP Class A
Limited Partnership Interest in accordance with the terms of the BMLP
Partnership Agreement and the BMLP Support and Option Agreement; and
(3) payments permitted to be made pursuant to the terms of the
BMLP Partnership Agreement and the BMLP Support and Option Agreement.
(h) Restricted Transactions. Make any Capital Expenditures or
Specified Acquisitions, except for:
(A) Restricted Transactions for Terra and its Subsidiaries on a
Consolidated basis, in any fiscal year (the "Subject Fiscal Year") in
an aggregate amount not exceeding the sum of (i) $150,000,000 plus
(ii) for fiscal years beginning January 1, 1996 and thereafter, the
lesser of:
(x) an amount equal to the unused portion (if any) of the
amount available for Restricted Transactions pursuant to
paragraph (i) of this Section 5.02(h)(A) for the prior fiscal
year (provided that this clause (x)
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shall be determined, with respect to all periods prior to the
Restatement Date, as provided in the Existing Credit Agreement);
and
(y) $100,000,000;
provided that, at the time of each Other Distribution, the amount of
such Other Distribution shall reduce (but not below zero) the amount
remaining available for Restricted Transactions pursuant to this
clause (A) for the then-current fiscal year by the amount of such
Other Distribution; and
(B) Capital Expenditures in connection with the construction of
the Ammonia Loop in an aggregate amount not exceeding $60,000,000.
(i) Change in Nature of Business. Make, or permit any of its Material
Subsidiaries to make, any material change in the nature of the business of
Terra and its Subsidiaries taken as a whole as carried on at the
Restatement Date.
(j) Charter Amendments. Amend, or permit any of its Material
Subsidiaries to amend, its articles of incorporation or bylaws, or amend
any partnership agreement to which it or any of its Subsidiaries is a party
(except for amendments to authorize the issuance of preferred or common
stock), in each case to the extent any such amendment could reasonably be
expected to have a Material Adverse Effect.
(k) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally accepted
accounting principles in effect in the United States; provided that in the
event of any change in generally accepted accounting principles from the
date of the financial statements referred to in Section 4.01(f) and upon
delivery of any financial statement and accompanying certificate of
compliance required to be furnished under subsections (b) and (c) of
Section 5.03, Terra shall deliver to the Lenders a statement of
reconciliation conforming any information contained in such financial
statement and a certificate of compliance required to be furnished pursuant
to subsections (b) and (c) of Section 5.03 with GAAP (it being understood
that compliance with financial covenants herein shall be measured and
determined on the basis of GAAP).
(l) Amendment of Sale of Business Agreement, Etc. Consent to or accept
any cancellation or termination of the Sale of Business Agreement or the
Ammonium Nitrate Hedging Agreement, amend, modify or change in any manner
any material term or condition thereof, waive any default under or any
breach of any material term or condition thereof, agree in any manner to
any other amendment, modification or change of any material term or
condition thereof, or cancel or terminate the Sale of Business Agreement,
in each case without the prior consent of the Lenders.
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(m) Certain Obligations Respecting Subsidiaries. Enter into, or permit
any of its Subsidiaries (other than a Receivables Subsidiary) to enter
into, after the Restatement Date, any indenture, agreement, instrument or
other arrangement that, directly or indirectly, prohibits or restrains, or
has the effect of prohibiting or restraining, or imposes materially adverse
conditions upon, the declaration or payment of dividends or the making of
loans or advances to or Investments in or the sale, assignment, transfer or
other disposition of property to Terra or any Subsidiary thereof (other
than a Receivable Subsidiary); provided that:
(1) Terra and its Subsidiaries (whether or not Receivables
Subsidiaries) may include in Permitted Receivables Facilities
provisions substantially to the effect of those attached as Exhibit I;
(2) the BMLP Partnership Agreement (and the certificates of
incorporation of Subsidiaries of BMLP) may restrict such actions by
BMLP and its Subsidiaries;
(3) the Terra Canada Credit Facility may restrict such actions by
Terra Canada and its Subsidiaries; and
(4) the Terra U.K. Loan Agreement may restrict such actions by
Terra U.K. and its Subsidiaries.
(n) Subordinated Indebtedness. Purchase, redeem, retire or otherwise
acquire for value, or set apart any money for a sinking, defeasance or
other analogous fund for the purchase, redemption, retirement or other
acquisition of, or make any voluntary payment or prepayment of the
principal of or interest on, or any other amount owing in respect of, any
Subordinated Indebtedness (other than Intercompany Debt) (and such Obligor
will not permit any of its Subsidiaries to do any of the foregoing), in
each case except for regularly scheduled payments of principal and interest
in respect thereof required pursuant to the instruments evidencing such
Subordinated Indebtedness, or amend the documentation creating or
evidencing such Subordinated Indebtedness.
(o) Transactions with Affiliates. Except to the extent otherwise
expressly permitted hereunder, enter into any transaction with any
Affiliate on terms less favorable than would pertain in a transaction
entered into with a third party on an arm's-length basis.
(p) Amendments to Management Agreements. Without the consent of the
Administrative Agent, amend, modify or change in any material respect the
terms or conditions of any Management Agreement.
(q) Margin Stock. Permit more than 25%, after applying the proceeds of
each Advance, of the value of the assets of either Borrower and such
Borrower's Subsidiaries
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(as determined in good faith by such Borrower) that are subject to Section
5.02(a) or Section 5.02(e) to consist of or be represented by Margin Stock.
(r) BMLP Purchase Option. Permit the Company to transfer or otherwise
assign (other than to Minorco or one of its Affiliates):
(x) any of its rights under Section 2.1 of the BMLP Support and
Option Agreement to purchase the Class A Limited Partnership Interest;
or
(y) any of its rights under Section 2.2 of the BMLP Support and
Option Agreement to purchase the "Nova Interests" referred to therein;
or
permit any Person other than the Company, Minorco or any of Minorco's
Affiliates to be the "Class A Purchaser" or "Nova Purchaser" pursuant to
Section 2.1 or 2.2, respectively, of the BMLP Support and Option Agreement.
Section 5.03. Reporting Requirements. So long as any principal of
or interest on any Advance or any other amount payable under this Agreement
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
shall have any Commitment hereunder:
(a) Default Notice. Each Obligor will furnish to the Administrative
Agent, as soon as possible and in any event within five Business Days after
such Obligor knows or has reason to believe that a Default or Event of
Default has occurred (which Default or Event of Default is continuing on
the date of the following statement), a statement of the Senior Financial
Officer setting forth details of such Default or Event of Default and the
action that such Obligor has taken and proposes to take with respect
thereto.
(b) Quarterly Financials. As soon as available and in any event within
60 days after the end of each of the first three quarters of each fiscal
year of Terra, Terra will furnish to the Administrative Agent, with
sufficient copies for each Lender and each Issuing Bank, a Consolidated
balance sheet of Terra and its Subsidiaries as of the end of such quarter
and Consolidated statements of income and cash flows of Terra and its
Subsidiaries for the period commencing at the end of the previous fiscal
year and ending with the end of such quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding period of
the preceding fiscal year in reasonable detail and duly certified (subject
to year-end audit adjustments) by the Senior Financial Officer as having
been prepared in accordance with GAAP, together with (i) a certificate of
said officer (A) stating that no Default or Event of Default has occurred
and is continuing or, if a Default or Event of Default has occurred and is
continuing, a statement as to the nature thereof and the action that Terra
has taken and proposes to take with respect thereto, (B) stating that since
December 31, 1996, there has been no Material Adverse Change with respect
to Terra and (C) providing a comparison between the financial position and
results of operations set forth in such financial statements with the
comparable information set forth in the financial projections and budget
most recently
<PAGE>
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delivered pursuant Section 5.03(l) of the Existing Credit Agreement or
Section 5.03(l) and (ii) a schedule in form satisfactory to the
Administrative Agent of the computations used by Terra in determining
compliance with the covenants contained in Section 5.04.
(c) Annual Financials. As soon as available and in any event within
110 days after the end of each fiscal year of Terra, Terra will furnish to
the Administrative Agent, with sufficient copies for each Lender and each
Issuing Bank, a copy of the annual audit report for such year for Terra and
its Subsidiaries, including therein a Consolidated balance sheet of Terra
and its Subsidiaries as of the end of such fiscal year and Consolidated
statements of income and cash flows of Terra and its Subsidiaries for such
fiscal year, setting forth in each case in comparative form the
corresponding figures for the preceding fiscal year accompanied by an
unqualified opinion of Deloitte & Touche or other independent public
accountants of nationally recognized standing stating that, except as
expressly disclosed therein, said Consolidated financial statements present
fairly, in all material respects, the Consolidated financial position and
results of operations of Terra and its Consolidated Subsidiaries as of the
last day of, and for, such fiscal year, together with (i) a certificate of
such accounting firm to the Lenders stating that in the course of the
regular audit of the business of Terra and its Subsidiaries, which audit
was conducted by such accounting firm in accordance with generally accepted
auditing standards, such accounting firm has obtained no knowledge that a
Default or Event of Default has occurred and is continuing, or if, in the
opinion of such accounting firm, a Default or Event of Default has occurred
and is continuing, a statement as to the nature thereof (it being
understood that said accountants shall have no liability to the
Administrative Agent, the Lenders or the Issuing Banks for failure to
obtain knowledge of any Default or Event of Default), (ii) a schedule in
form satisfactory to the Administrative Agent of the computations used by
such accountants in determining, as of the end of such fiscal year,
compliance with the covenants contained in Section 5.04 and (iii) a
certificate of the Senior Financial Officer (A) stating that no Default or
Event of Default has occurred and is continuing or, if a Default or Event
of Default has occurred and is continuing, a statement as to the nature
thereof and the action that Terra has taken and proposes to take with
respect thereto, (B) stating that since December 31, 1996, there has been
no Material Adverse Change with respect to Terra and (C) providing a
comparison between the financial position and results of operations set
forth in such financial statements with the comparable information set
forth in the financial projections and budget most recently delivered
pursuant to Section 5.03(l) of the Existing Credit Agreement or Section
5.03(l).
(d) ERISA Events. Promptly and in any event within 10 Business Days
after any Obligor knows or has reason to know that any ERISA Event
(including, for this purpose, a reportable event listed in Section
4043(c)(7) of ERISA) with respect to any Obligor or any of its ERISA
Affiliates has occurred, Terra will furnish to the Administrative Agent a
statement of the Senior Financial Officer describing such ERISA Event and
the action, if any, that such Obligor or such ERISA Affiliate has taken and
proposes to take with respect thereto.
<PAGE>
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(e) Plan Terminations. Promptly and in any event within 10 Business
Days after receipt thereof by any Obligor or any of its ERISA Affiliates,
such Obligor will furnish to the Administrative Agent copies of each notice
from the PBGC stating its intention to terminate any Plan of any Obligor or
any of its ERISA Affiliates or to have a trustee appointed to administer
any such Plan.
(f) Plan Annual Reports. Promptly and in any event within 30 days
after the filing thereof with the Internal Revenue Service, each Obligor
will furnish to the Administrative Agent copies of such Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Plan of each Obligor or any of its ERISA Affiliates that is
then being maintained for employees or former employees of such Person.
(g) Multiemployer Plan Notices. Promptly and in any event within five
Business Days after receipt thereof by any Obligor or any of its ERISA
Affiliates from the sponsor of a Multiemployer Plan of any Obligor or any
of its ERISA Affiliates, such Obligor will furnish to the Administrative
Agent copies of each notice concerning (i) the imposition of withdrawal
liability by any such Multiemployer Plan, (ii) the reorganization or
termination, within the meaning of Title IV of ERISA, of any such
Multiemployer Plan or (iii) the amount of liability incurred, or that is
reasonably expected to be incurred, by such Obligor or any of its ERISA
Affiliates in connection with any event described in clause (i) or (ii).
(h) Litigation. Promptly after the commencement thereof, Terra will
furnish to the Administrative Agent notice of all actions, suits,
investigations, litigation and proceedings before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic
or foreign, affecting any Obligor or any of its Subsidiaries of the type
described in Section 4.01(h).
(i) Environmental Conditions. Promptly after receiving notice thereof,
Terra will furnish to the Administrative Agent notice of any condition or
occurrence on any property of any Obligor that results in a material
noncompliance by any Obligor or any of its Subsidiaries with any
Environmental Law or Environmental Permit which noncompliance could
reasonably be expected to have a Material Adverse Effect, or could (i) form
the basis of an Environmental Action against any Obligor or any of its
Subsidiaries or such property that could reasonably be expected to have a
Material Adverse Effect or (ii) cause any such property to be subject to
any restrictions on ownership, occupancy, use or transferability under any
Environmental Law that could reasonably be expected to have Material
Adverse Effect.
(j) Public Filings. Terra shall, promptly upon their becoming
available, deliver to the Administrative Agent, each Issuing Bank and each
Lender copies of all registration statements and regular periodic reports,
if any, that Terra, the Company or TNCLP shall
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have filed with the Securities and Exchange Commission (or any governmental
agency substituted therefor) or any national securities exchange.
(k) Shareholder Reports, Etc. Terra shall deliver to the
Administrative Agent, each Issuing Bank and each Lender promptly upon the
mailing thereof to the shareholders of Terra or TNCLP generally or to
holders of Subordinated Indebtedness or 1995 Terra Debt generally, copies
of all financial statements and proxy statements so mailed.
(l) Financial Projections and Budget. As soon as available and in any
event within 110 days after the first day of each fiscal year of Terra,
Terra will furnish to the Administrative Agent, with sufficient copies for
each Lender and each Issuing Bank, financial projections and a budget for
such fiscal year and each subsequent fiscal year of Terra to and including
the fiscal year in which the Terra Commitment Termination Date is scheduled
to occur, in each case in form and detail similar to the financial
projections and budget delivered under Section 5.03(l) of the Existing
Credit Agreement.
(m) Other Information. Each Obligor shall furnish to the Lenders
through the Administrative Agent such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Obligor or any of its Subsidiaries as the
Administrative Agent, any Issuing Bank or any Lender may from time to time
reasonably request.
Section 5.04. Financial Covenants. So long as any principal of or
interest on any Advance or any other amount payable under this Agreement shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender shall
have any Commitment hereunder, Terra will:
(a) Debt to Cash Flow Ratio. Maintain the Debt to Cash Flow Ratio at
not more than the ratio set forth below for each Rolling Period ending in
the respective periods set forth below:
<TABLE>
<CAPTION>
Each
Rolling Period
Ending In Ratio
-------------- -----
<S> <C>
March and December 3.00 to 1.00
of each fiscal year
June and September 3.50 to 1.00
of each fiscal year
</TABLE>
(b) Adjusted Debt to Cash Flow Ratio. Maintain the Adjusted Debt to
Cash Flow Ratio at not more than the ratio set forth below for each Rolling
Period ending in the respective periods set forth below:
<PAGE>
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<TABLE>
<CAPTION>
Each
Rolling Period
Ending In Ratio
-------------- -----
<S> <C>
March and December 3.00 to 1.00
of each fiscal year
June and September 3.50 to 1.00
of each fiscal year
</TABLE>
(c) Interest Coverage Ratio. Maintain the Interest Coverage Ratio for
each Rolling Period at not less than 3.50 to 1.00.
(d) Adjusted Interest Coverage Ratio. Maintain the Adjusted Interest
Coverage Ratio at not less than the ratio set forth below for each Rolling
Period ending in the respective periods set forth below:
<TABLE>
<CAPTION>
Each
Rolling Period
Ending In Ratio
-------------- -----
<S> <C>
1997 3.50 to 1.00
1998 and 1999 3.00 to 1.00
2000 and thereafter 3.50 to 1.00
</TABLE>
(e) Net Worth. Maintain the Net Worth of Terra on each day of not less
than (i) $550,000,000 plus (ii) the aggregate increase in the amount of
capital stock and additional paid-in capital of Terra subsequent to
December 31, 1997 plus (iii) 50% of net income of Terra and its
Subsidiaries on a Consolidated basis (if positive) for each fiscal year of
Terra ending on or after December 31, 1997.
(f) Adjusted Net Worth. Maintain Adjusted Net Worth on each day of not
less than (i) $250,000,000 plus (ii) the aggregate increase in the amount
of capital stock and additional paid-in capital of Terra subsequent to
December 31, 1997 plus (iii) 50% of net income (if positive) of the
Adjusted Terra Group on a Consolidated basis for each fiscal year of Terra
ending on or after December 31, 1997.
<PAGE>
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ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) either Borrower (i) shall fail to pay when due any principal of
any Advance made to it or (ii) shall fail for three Business Days to pay
when due any interest on any Advance made to it or any other amount payable
by it under any Loan Document; or
(b) any representation or warranty made by any Obligor (or any of its
officers) under or in connection with any Loan Document shall prove to have
been incorrect in any material respect when made; or
(c) any Obligor shall fail to perform or observe any term, covenant or
agreement contained in clause (o) of Section 5.01, or clause (a), (b), (c),
(d), (e), (g), (i), (q) or (r) of Section 5.02, or clause (a), (e) or (i)
of Section 5.03, or Section 5.04; or
(d) Terra shall fail to pay and perform its obligations under the Loan
Purchase Agreement; or
(e) any Obligor shall fail to perform any other term, covenant or
agreement contained in any Loan Document on its part to be performed or
observed if such failure shall remain unremedied for a period of 30 days;
or
(f) any Obligor or any of its Material Subsidiaries shall fail to pay
any principal of, premium or interest on or any other amount payable in
respect of any Debt that is outstanding in a principal or notional amount
of at least $10,000,000 in the aggregate (but excluding Debt outstanding
hereunder) of such Obligor or such Subsidiary (as the case may be), when
the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist under any agreement or instrument relating
to any such Debt and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt or otherwise to cause, or to permit the holder or
holders (or an agent or trustee on its or their behalf) thereof to cause,
such Debt to mature; or any such Debt shall be declared to be due and
payable or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or an
offer to prepay, redeem, purchase or defease such Debt shall be required to
be made, in each case prior to the stated maturity thereof; or
<PAGE>
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(g) any Obligor or any of its Material Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against any Obligor or any of its Material Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, or other similar official
for it or for any substantial part of its property and, in the case of any
such proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of 60 days or any of the
actions sought in such proceeding (including, without limitation, the entry
of an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or any substantial
part of its property) shall occur; or any Obligor or any of its Material
Subsidiaries shall take any corporate or partnership action to authorize
any of the actions set forth above in this subsection (g); or
(h) any judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against any Obligor or any of its Material
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall
be any period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect, unless such judgment or order shall have been vacated,
satisfied or dismissed or bonded pending appeal; or
(i) any non-monetary judgment or order shall be rendered against any
Obligor or any of its Subsidiaries that could be reasonably likely to have
a Material Adverse Effect, and there shall be any period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect unless such
judgment or order shall have been vacated, satisfied, discharged or bonded
pending appeal; or
(j) any Security Document shall for any reason (other than pursuant to
the terms hereof and thereof) cease to create a valid and perfected first
priority Lien (subject only to Permitted Liens) on the Collateral purported
to be covered thereby; or
(k) Minorco ceases to own, directly or indirectly, at least 20% of the
issued and outstanding shares of voting capital stock of Terra; or Minorco
ceases to hold, directly or indirectly, a plurality of the issued and
outstanding shares of capital stock of Terra; or
(l) any ERISA Event shall have occurred with respect to a Plan of any
Obligor or any of its ERISA Affiliates and the amount (determined as of the
date of occurrence of
<PAGE>
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such ERISA Event) of the Insufficiency of such Plan and the Insufficiency
of any and all other Plans of the Obligors and their ERISA Affiliates with
respect to which an ERISA Event shall have occurred and then exist (or the
liability of the Obligors and their ERISA Affiliates related to such ERISA
Event) could reasonably be expected to have a Material Adverse Effect;
provided that with respect to any Multiple Employer Plan, such
Insufficiency shall include only the portion thereof attributable to such
Obligor or its ERISA Affiliates; or
(m) any Obligor or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan of any Obligor or any of
its ERISA Affiliates that it has incurred withdrawal liability to such
Multiemployer Plan in an amount that, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Obligors and
their ERISA Affiliates as withdrawal liability (determined as of the date
of such notification), could reasonably be expected to have a Material
Adverse Effect; or
(n) any Obligor or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan of any Obligor or any of
its ERISA Affiliates that such Multiemployer Plan is in reorganization or
is being terminated, within the meaning of Title IV of ERISA, and as a
result of such reorganization or termination the aggregate annual
contributions of the Obligors and their ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount that could reasonably be expected to have a
Material Adverse Effect; or
(o) there shall have been asserted against Terra or any of its
Subsidiaries an Environmental Claim that, in the judgment of the Required
Lenders, is reasonably likely to be determined adversely to Terra or any of
its Subsidiaries, and the amount thereof (either individually or in the
aggregate) is reasonably likely to have a Material Adverse Effect (insofar
as such amount is payable by Terra or any of its Subsidiaries but after
deducting any portion thereof that is reasonably expected to be paid by
other creditworthy Persons); or
(p) any "Terminating Event" shall occur (other than solely as a result
of the "Bankruptcy" of the BMLP Class A Limited Partner) (with quoted terms
used in this clause (p) having the meanings assigned to them in the BMLP
Partnership Agreement);
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrowers,
declare the obligation of each Lender to make Advances and of each Issuing Bank
to issue Letters of Credit to be terminated, whereupon the same shall forthwith
terminate (and this clause (i) shall also be applicable if there shall occur a
Purchase Event), and (ii) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrowers, declare the Advances and the
Notes, all interest
<PAGE>
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thereon and all other amounts payable under this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Advances and the Notes,
all such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrowers; provided that in the
event of an actual or deemed entry of an order for relief with respect to any
Obligor or any of its Subsidiaries under the Federal Bankruptcy Code, (x) the
obligation of each Lender to make Advances and of any Issuing Bank to issue
Letters of Credit shall automatically be terminated and (y) the Advances and the
Notes, all such interest and all such amounts shall automatically become and be
due and payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Borrowers.
Section 6.02. Actions in Respect of the Letters of Credit Upon
Default. If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, irrespective of whether it is taking any of the
actions described in Section 6.01 or otherwise, make demand upon the Borrowers
to, and forthwith upon such demand the Borrowers will, pay to the Administrative
Agent on behalf of the Lenders in same day funds at the Administrative Agent's
Office, for deposit in the relevant L/C Cash Collateral Account, an amount equal
to the aggregate Available Amount of all Letters of Credit then outstanding,
which funds shall be retained by the Administrative Agent in the relevant L/C
Collateral Account as collateral security for the Letter of Credit Liabilities
until such time as the Letters of Credit shall have been terminated and all of
such Letter of Credit Liabilities paid in full.
If at any time the Administrative Agent determines that any funds held
in the relevant L/C Cash Collateral Account are subject to any right or claim of
any Person other than the Administrative Agent and the Lenders or that the total
amount of such funds is less than the aggregate Available Amount of all Letters
of Credit, the Borrowers will, forthwith upon demand by the Administrative
Agent, pay to the Administrative Agent, as additional funds to be deposited and
held in the relevant L/C Cash Collateral Account, an amount equal to the excess
of (a) such aggregate Available Amount over (b) the total amount of funds, if
any, then held in such L/C Cash Collateral Account that the Administrative Agent
determines to be free and clear of any such right and claim.
ARTICLE VII
THE ADMINISTRATIVE AGENT
Section 7.01. Authorization and Action. Each Lender and each
Issuing Bank hereby appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under this Agreement and the other Basic Documents as are delegated to the
Administrative Agent by the terms hereof and thereof, together with such powers
and discretion as are reasonably incidental thereto. As to any matters not
expressly provided for by the Basic Documents, including, without limitation,
enforcement or collection of the Notes, the Administrative Agent shall not be
required to exercise any
<PAGE>
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discretion or take any action, and shall not be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from
acting) except upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of the Notes;
provided that the Administrative Agent shall not be required to take any action
that exposes it to personal liability or that is contrary to this Agreement or
applicable law. The Administrative Agent agrees to give to each Issuing Bank and
each Lender prompt notice of each notice given to it by the Borrowers or Terra
pursuant to the terms of this Agreement.
Each Lender and Issuing Bank:
(1) hereby authorizes the Administrative Agent to execute and deliver
an Amendment to Security Documents and Intercreditor Agreement in
substantially the form of Exhibit B, and each Lender and Issuing Bank
agrees that it is bound by the Security Documents and the Intercreditor
Agreement as if such Lender or Issuing Bank, as the case may be, were a
signatory thereto;
(2) hereby authorizes the Administrative Agent to execute and deliver
a Confirmation of Loan Purchase Agreement in substantially the form of
Exhibit E, and each Lender and Issuing Bank agrees that it is bound by the
Loan Purchase Agreement as if such Lender or Issuing Bank, as the case may
be, were a signatory thereto; and
(3) hereby authorizes the Collateral Agent to execute and deliver an
Amendment to Security Documents and Intercreditor Agreement in
substantially the form of Exhibit B.
Section 7.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its respective directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken by it or
them under or in connection with the Basic Documents, except for its or their
own gross negligence or willful misconduct. Without limitation of the generality
of the foregoing, the Administrative Agent (i) may treat the payee of any Note
as the holder thereof until the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, as provided in Section
9.07; (ii) may consult with legal counsel (including counsel for any Obligor),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by them in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Issuing Bank or any Lender and shall not be
responsible to any of them for any statements, warranties or representations
made in or in connection with the Loan Documents; (iv) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of any Loan Document on the part of any Obligor
or to inspect the property (including the books and records) of any Obligor; (v)
shall not be responsible to any Issuing Bank or any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Basic Document or any other instrument or document furnished pursuant
hereto; and (vi) shall incur no liability under or in respect of any
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Basic Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, telecopy, cable or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
Section 7.03. Citibank and Affiliates. With respect to its
Commitments, the Advances made by it and the Notes issued to it, Citibank shall
have the same rights and powers under the Basic Documents as any other Lender
and may exercise the same as though it were not the Administrative Agent or the
Collateral Agent; and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated, include Citibank in its individual capacity. Citibank and
its Affiliates may accept deposits from, lend money to, act as trustee under
indentures for, accept investment banking engagements from and generally engage
in any kind of business with, any Obligor, any of its Subsidiaries, any of its
Affiliates and any Person who may do business with or own securities of any
Obligor or any such Subsidiary or Affiliate, all as if Citibank were not the
Administrative Agent and without any duty to account therefor to the Lenders or
any Issuing Bank.
Section 7.04. Lender Credit Decision. Each Lender and each Issuing
Bank acknowledges that it has, independently and without reliance upon the
Administrative Agent, any Issuing Bank or any other Lender and based on the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender and each Issuing Bank also
acknowledges that it will, independently and without reliance upon the
Administrative Agent, any Issuing Bank or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
Section 7.05. Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not promptly reimbursed by the Borrowers),
ratably according to the principal amounts of the Notes then held by each of
them (or if no Advances are at the time outstanding, ratably according to the
amounts of their Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against any of them in any way relating to or
arising out of the Basic Documents or any action taken or omitted by any of them
under the Basic Documents; provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Administrative Agent. Without limitation
of the foregoing, each Lender agrees to reimburse (x) the Administrative Agent
promptly upon demand for its ratable share of any costs and expenses payable by
the Borrowers under Section 9.04 of this Agreement and (y) the Collateral Agent
under the Security Documents, in each case to the extent that the Administrative
Agent or the Collateral Agent, as the case may be, is not promptly reimbursed
for such costs and expenses by the Borrowers.
<PAGE>
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Section 7.06. Collateral Duties.
(a) Except for action expressly required of the Administrative Agent
hereunder and under the other Basic Documents, the Administrative Agent shall in
all cases be fully justified in refusing to act hereunder and thereunder unless
it shall be further indemnified to its satisfaction by the Lenders and the
Issuing Banks proportionately in accordance with the Obligations then due and
payable to each of them against any and all liability and expense that may be
incurred by it by reason of taking or continuing to take any such action.
(b) Except as expressly provided herein, the Administrative Agent
shall have no duty to take any affirmative steps with respect to the collection
of amounts payable in respect of the Collateral. The Administrative Agent shall
incur no liability as a result of any private sale of the Collateral.
(c) The Lenders and the Issuing Banks hereby consent, and agree upon
written request by the Collateral Agent or the Administrative Agent to execute
and deliver such instruments and other documents as the Collateral Agent or
Administrative Agent may deem desirable to confirm such consent, to the release
of the Liens on any of the Collateral, including any release in connection with
any sale, transfer or other disposition of the Collateral or any part thereof in
accordance with the Basic Documents.
(d) The parties hereto acknowledge that each of the Collateral Agent
and the Administrative Agent shall be deemed to have exercised reasonable care
in the custody and preservation of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that which the
Collateral Agent or the Administrative Agent, as the case may be, accords its
own property, it being understood that none of the Collateral Agent, the
Administrative Agent, any Lender or any Issuing Bank shall have responsibility
for (a) ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative to any Collateral,
whether or not the Collateral Agent, Administrative Agent, any Lender or any
Issuing Bank has or is deemed to have knowledge of such matters, or (b) taking
any necessary steps to preserve rights against any parties with respect to any
Collateral.
Section 7.07. Successor Administrative Agent. The Administrative
Agent may resign at any time by giving written notice thereof to the Issuing
Banks, the Lenders and the Borrowers and may be removed at any time with or
without cause by the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint (subject, so long as no Default
or Event of Default has occurred and is continuing, to the consent of the
Borrowers, which consent shall not be unreasonably withheld) a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation or the Required Lenders' removal of the Administrative Agent, as the
case may be, then the retiring Administrative Agent may, on behalf of the
Issuing Banks and the Lenders, appoint (subject, so long as no Default or Event
of Default
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has occurred and is continuing, to the consent of the Borrowers, which consent
shall not be unreasonably withheld) a successor Administrative Agent, which
shall be an Initial Lender or a commercial bank organized under the laws of the
United States or of any State thereof and having a combined capital and surplus
of at least $500,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent such
successor Administrative Agent shall succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Administrative
Agent, as the case may be, and such retiring Administrative Agent shall be
discharged from its duties and obligations under the Basic Documents. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall inure to the
benefit of the Administrative Agent as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement and under the
Security Documents.
ARTICLE VIII
THE GUARANTEE
Section 8.01. The Guarantee.
(a) The Terra Guarantors hereby jointly and severally guarantee to
each Lender, each Issuing Bank and the Administrative Agent and their respective
successors and assigns the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) of the principal of and interest on the
Terra Advances made by the Lenders to, and the Notes held by each Lender of, the
Company and all other amounts from time to time owing to the Lenders, each
Issuing Bank or the Administrative Agent by the Company under this Agreement and
under the Notes and by any Terra Obligor under any of the other Loan Documents,
in each case strictly in accordance with the terms thereof (such obligations
being herein collectively called the "Terra Guaranteed Obligations"). The Terra
Guarantors hereby further jointly and severally agree that if the Company shall
fail to pay in full when due (whether at stated maturity, by acceleration or
otherwise) any of the Terra Guaranteed Obligations, the Terra Guarantors will
promptly pay the same, without any demand or notice whatsoever, and that in the
case of any extension of time of payment or renewal of any of the Terra
Guaranteed Obligations, the same will be promptly paid in full when due (whether
at extended maturity, by acceleration or otherwise) in accordance with the terms
of such extension or renewal.
(b) The TNLP Guarantors hereby jointly and severally guarantee to each
Lender, each Issuing Bank and the Administrative Agent and their respective
successors and assigns the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) of the principal of and interest on the
TNLP Advances made by the Lenders to, and the Notes held by each Lender of, TNLP
and all other amounts from time to time owing to the Lenders, each Issuing Bank
or the Administrative Agent by TNLP under this Agreement and under the Notes and
by any TNLP Obligor under any of the other Loan Documents, in each case strictly
in accordance with the terms thereof (such obligations being herein collectively
called the "TNLP
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Guaranteed Obligations"). The TNLP Guarantors hereby further jointly and
severally agree that if TNLP shall fail to pay in full when due (whether at
stated maturity, by acceleration or otherwise) any of the TNLP Guaranteed
Obligations, the TNLP Guarantors will promptly pay the same, without any demand
or notice whatsoever, and that in the case of any extension of time of payment
or renewal of any of the TNLP Guaranteed Obligations, the same will be promptly
paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
Section 8.02. Obligations Unconditional.
(a) The obligations of the Terra Guarantors under Section 8.01 are
absolute and unconditional, joint and several, irrespective of the value,
genuineness, validity, regularity or enforceability of the obligations of the
Company under this Agreement, the Notes or any other agreement or instrument
referred to herein or therein, or any substitution, release or exchange of any
other guarantee of or security for any of the Terra Guaranteed Obligations, and,
to the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 8.02 that the obligations of the Terra Guarantors hereunder shall be
absolute and unconditional, joint and several, under any and all circumstances.
(b) The obligations of the TNLP Guarantors under Section 8.01 are
absolute and unconditional, joint and several, irrespective of the value,
genuineness, validity, regularity or enforceability of the obligations of TNLP
under this Agreement, the Notes or any other agreement or instrument referred to
herein or therein, or any substitution, release or exchange of any other
guarantee of or security for any of the TNLP Guaranteed Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 8.02 that the obligations of the TNLP Guarantors hereunder shall be
absolute and unconditional, joint and several, under any and all circumstances.
(c) Without limiting the generality of the foregoing clauses (a) and
(b), it is agreed that the occurrence of any one or more of the following shall
not alter or impair the liability of the Guarantors hereunder which shall remain
absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or compliance
shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be done or omitted;
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(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this Agreement
or the Notes or any other agreement or instrument referred to herein or
therein shall be waived or any other guarantee of any of the Guaranteed
Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, the
Administrative Agent, any Issuing Bank or any Lender as security for any of
the Guaranteed Obligations shall fail to be perfected.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent, any Issuing Bank or any Lender exhaust any right, power or remedy or
proceed against either Borrower under this Agreement or the Notes or any other
agreement or instrument referred to herein or therein, or against any other
Person under any other guarantee of, or security for, any of the Guaranteed
Obligations.
Section 8.03. Reinstatement. The obligations of the Guarantors under
this Article VIII shall be automatically reinstated if and to the extent that
for any reason any payment by or on behalf of the relevant Borrower in respect
of the relevant Guaranteed Obligations is rescinded or must be otherwise
restored by any holder of any of the relevant Guaranteed Obligations, whether as
a result of any proceedings in bankruptcy or reorganization or otherwise, and
the relevant Guarantors jointly and severally agree that they will indemnify the
Administrative Agent, each Issuing Bank and each Lender on demand for all
reasonable costs and expenses (including, without limitation, fees of counsel)
incurred by the Administrative Agent, such Issuing Bank or such Lender in
connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
Section 8.04. Subrogation. To the extent that, as a result of this
Article VIII, any Lender or Issuing Bank would be subject to an extended
preference period under Section 547 of the Bankruptcy Code, each Guarantor
hereby waives all rights of subrogation, whether arising by contract or
operation of law (including, without limitation, any such right arising under
the Bankruptcy Code) or otherwise, by reason of any payment by it pursuant to
the provisions of this Article VIII and agrees with the relevant Borrower for
the benefit of each of its creditors (including, without limitation, each
Lender, each Issuing Bank and the Administrative Agent) that any such payment by
it shall constitute a contribution of capital by such Guarantor to the relevant
Borrower (or an investment in the equity capital of the relevant Borrower by
such Guarantor).
Section 8.05. Remedies. The Guarantors jointly and severally agree
that, as between the Guarantors and the Lenders and the Issuing Banks, the
obligations of the Borrowers
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under this Agreement and the Notes may be declared to be forthwith due and
payable as provided in Article VI (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Article VI)
for purposes of Section 8.01 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the relevant Borrower and that, in the
event of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and payable
by the relevant Borrower) shall forthwith become due and payable by the
Guarantors for purposes of said Section 8.01.
Section 8.06. Instrument for the Payment of Money. Each Guarantor
hereby acknowledges that the guarantee in this Article VIII constitutes an
instrument for the payment of money, and consents and agrees that any Lender,
any Issuing Bank or the Administrative Agent, at its sole option, in the event
of a dispute by such Guarantor in the payment of any moneys due hereunder, shall
have the right to bring motion-action under New York CPLR Section 3213.
Section 8.07. Continuing Guarantee. The guarantee in this Article
VIII is a continuing guarantee, and shall apply to all Guaranteed Obligations
whenever arising.
Section 8.08. Rights of Contribution. The Subsidiary Guarantors
hereby agree, as between themselves, that if any Subsidiary Guarantor shall
become an Excess Funding Guarantor (as defined below) by reason of the payment
by such Subsidiary Guarantor of any Guaranteed Obligations, each other
Subsidiary Guarantor shall, on demand of such Excess Funding Guarantor (but
subject to the next sentence), pay to such Excess Funding Guarantor an amount
equal to such Subsidiary Guarantor's Pro Rata Portion (as defined below and
determined, for this purpose, without reference to the properties, debts and
liabilities of such Excess Funding Guarantor) of the Excess Payment (as defined
below) in respect of such Guaranteed Obligations. The payment obligation of a
Subsidiary Guarantor to any Excess Funding Guarantor under this Section 8.08
shall be subordinate and subject in right of payment to the prior payment in
full of the obligations of such Subsidiary Guarantor under the other provisions
of this Article VIII and such Excess Funding Guarantor shall not exercise any
right or remedy with respect to such excess until payment and satisfaction in
full of all of such obligations.
For purposes of this Section 8.08, (i) "Excess Funding Guarantor"
shall mean, in respect of any Guaranteed Obligations, a Subsidiary Guarantor
that has paid an amount in excess of its Pro Rata Portion of such Guaranteed
Obligations, (ii) "Excess Payment" shall mean, in respect of any Guaranteed
Obligations, the amount paid by an Excess Funding Guarantor in excess of its Pro
Rata Portion of such Guaranteed Obligations and (iii) "Pro Rata Portion" shall
mean, for any Subsidiary Guarantor, the ratio (expressed as a percentage) of (x)
the amount by which the aggregate present fair saleable value of all properties
of such Subsidiary Guarantor (excluding any shares of stock of any other
Subsidiary Guarantor) exceeds the amount of all the debts and liabilities of
such Subsidiary Guarantor (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of such Subsidiary
Guarantor hereunder and any obligations of any other Subsidiary Guarantor that
have been
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Guaranteed by such Subsidiary Guarantor) to (y) the amount by which the
aggregate fair saleable value of all properties of the Company and all of the
Subsidiary Guarantors exceeds the amount of all the debts and liabilities
(including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of the Company and the Subsidiary Guarantors
hereunder) of the Company and all of the Subsidiary Guarantors, all as of the
Restatement Date. If any Subsidiary becomes a Subsidiary Guarantor hereunder
subsequent to the Restatement Date, then for purposes of this Section 8.08 such
subsequent Subsidiary Guarantor shall be deemed to have been a Subsidiary
Guarantor as of the Restatement Date and the aggregate present fair saleable
value of the properties, and the amount of the debts and liabilities, of such
Subsidiary Guarantor as of the Restatement Date shall be deemed to be equal to
such value and amount on the date such Subsidiary Guarantor becomes a Subsidiary
Guarantor hereunder.
Section 8.09. General Limitation on Guarantee Obligations. In any
action or proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Guarantor under Section 8.01
would otherwise, taking into account the provisions of Section 8.08, be held or
determined to be void, invalid or unenforceable, or subordinated to the claims
of any other creditors, on account of the amount of its liability under said
Section 8.01, then, notwithstanding any other provision hereof to the contrary,
the amount of such liability shall, without any further action by such
Guarantor, any Lender, any Issuing Bank, the Administrative Agent or any other
Person, be automatically limited and reduced to the highest amount that is valid
and enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Amendments, Consents, Etc.
(a) No amendment or waiver of any provision of this Agreement, the
Notes or the other Basic Documents, nor any consent to any departure by any
Obligor from any provision of this Agreement, the Notes or the other Basic
Documents, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided that:
(i) no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders, do any of the following:
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(1) waive any of the conditions specified in Section 3.01;
(2) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Advances, or the number or percentage
of Lenders, that shall be required for the Lenders or any of them to
take any action hereunder;
(3) amend this Section 9.01;
(4) reduce the principal of, or interest on, the Notes or any
fees or other amounts payable hereunder;
(5) postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder
or amend Section 2.03 or 2.05;
(6) release any Guarantor from its obligations under Article
VIII; or
(7) amend, modify or supplement the Intercreditor Agreement;
(ii) no amendment, waiver or consent shall, unless in writing and
signed by the Required Lenders and each Lender that would be adversely
affected by such amendment, waiver or consent:
(1) increase the Commitment of such Lender or subject such Lender
to any additional obligations;
(2) reduce the principal of, or interest on, the Notes held by
such Lender or any fees or other amounts payable hereunder to such
Lender;
(3) postpone any date fixed for any payment of principal of, or
interest on, the Notes held by such Lender or any fees or other
amounts payable hereunder to such Lender or
(4) change the order of application of any prepayment set forth
in Section 2.05 in any manner that materially affects such Lender; and
(iii) no amendment, waiver or consent shall, unless in writing and (x)
signed by the Administrative Agent in addition to the Lenders required
above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement, any Note or any other Basic
Document, and (y) signed by each Issuing Bank in addition to the Lenders
required to take such action, amend Section 2.07, 2.13 or 3.02, increase
the Letter of Credit Sublimit or otherwise affect the rights or obligations
of any Issuing Bank under this Agreement.
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(b) Except as otherwise provided in the Security Documents or the
Intercreditor Agreement, the Administrative Agent shall not consent to release
any Collateral or terminate any Lien under any Security Document unless such
release or termination shall be consented to in writing by Lenders owed or
holding in the aggregate at least 75% of the sum of the then aggregate unpaid
principal amount of the Advances, the then aggregate Unused Commitments and the
aggregate Available Amount of all Letters of Credit (for which purposes the
Available Amount of each Letter of Credit shall be considered to be owed to the
relevant Lenders according to their respective Pro Rata Shares of the Facility
under which such Letter of Credit has been issued); provided that:
(1) the consent of all Lenders shall be required to release all or
substantially all of the Collateral, except upon the termination of the
Liens created by each of the Security Documents in accordance with the
terms thereof; and
(2) no such consent shall be required to release any Lien covering
property that is the subject of a disposition of property permitted
hereunder (including, without limitation, dispositions of Receivables
pursuant to the Permitted Receivables Facilities) and, upon such a
permitted disposition, such property shall be deemed to be transferred free
and clear of the Lien of the Security Documents without any action on the
part of any party (and the Administrative Agent is hereby authorized to
execute such releases and other documents, and to take such other action,
as the Company may reasonably request to give effect thereto).
Section 9.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopy communication)
and mailed, telecopied or delivered:
(a) if to the Borrowers, care of Terra Industries Inc., 600 Fourth
Street, Sioux City, Iowa 51102, Attention: Francis G. Meyer, Senior Vice
President and Chief Financial Officer, telephone number (712) 279-8790;
telecopier number (712) 279-8703;
(b) if to any Initial Lender, at its Domestic Lending Office specified
opposite its name on Schedule 2.01;
(c) if to any other Lender, at its Domestic Lending Office specified
in the Assignment and Acceptance pursuant to which it became a Lender;
(d) if to any Issuing Bank, at its address beneath its signature
hereto;
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(e) if to the Administrative Agent, at its address at 2 Penns Way,
Suite 200, New Castle, Delaware, 19720, Attention: Carlos Lopez (or his
successor), telephone number (302) 894-6007, telecopier number (302) 894-
6120;
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and communications
shall, when mailed or telecopied, be effective when deposited in the mails or
transmitted by telecopier, respectively, except that notices and communications
to the Administrative Agent pursuant to Article II, III or VII shall not be
effective until received by the Administrative Agent.
Section 9.03. No Waiver; Remedies. No failure on the part of any
Lender, any Issuing Bank or the Administrative Agent to exercise, and no delay
in exercising, any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
Each Obligor irrevocably waives, to the fullest extent permitted by
applicable law, any claim that any action or proceeding commenced by the
Administrative Agent, any Issuing Bank or any Lender relating in any way to this
Agreement should be dismissed or stayed by reason, or pending the resolution, of
any action or proceeding commenced by any Obligor relating in any way to this
Agreement whether or not commenced earlier. To the fullest extent permitted by
applicable law, the Obligors shall take all measures necessary for any such
action or proceeding commenced by the Administrative Agent, any Issuing Bank or
any Lender to proceed to judgment prior to the entry of judgment in any such
action or proceeding commenced by any Obligor.
Section 9.04. Costs, Expenses and Indemnification.
------------------------------------
(a) Each Borrower agrees to pay on demand (i) all costs and expenses
of the Administrative Agent, the Issuing Banks and the Lenders in connection
with the preparation, execution, delivery, administration, modification and
amendment of the Basic Documents including, without limitation, (A) all due
diligence, syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, insurance, consultant, search,
filing and recording fees and expenses, ongoing audit expenses and all other
reasonable out-of-pocket expenses incurred by the Administrative Agent
(including the reasonable and documented fees and expenses of Milbank, Tweed,
Hadley & McCloy, special counsel to Citibank, but not, under this clause (A) or
clause (B) below, of any other counsel) whether or not any of the transactions
contemplated by this Agreement are consummated, (B) the reasonable and
documented fees and expenses of counsel for the Administrative Agent with
respect thereto,
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with respect to advising the Administrative Agent as to its rights and
responsibilities, or the perfection, protection or preservation of rights or
interests, under the Basic Documents, and (C) with respect to negotiations with
any Obligor or with other creditors of any Obligor or any of its Subsidiaries
arising out of any Default or Event of Default or any events or circumstances
that may reasonably be expected to give rise to a Default or Event of Default
and with respect to presenting claims in or otherwise participating in or
monitoring any bankruptcy, insolvency or other similar proceeding involving
creditors' rights generally and any proceeding ancillary thereto) and (ii) all
costs and expenses of the Administrative Agent, the Issuing Banks and the
Lenders in connection with the enforcement of the Basic Documents, whether in
any action, suit or litigation, any bankruptcy, insolvency or other similar
proceeding affecting creditors' rights generally or otherwise (including,
without limitation, the reasonable and documented fees and expenses of counsel
for the Administrative Agent, each Issuing Bank and each Lender with respect
thereto).
(b) Each Borrower agrees to indemnify and hold harmless the
Administrative Agent, each Issuing Bank and each Lender and each of their
Affiliates and their officers, directors, employees, agents and advisors (each,
an "Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related to or in
connection with the Covered Transactions or the actual or alleged presence of
Hazardous Materials on any property owned by an Obligor or any Environmental
Action relating in any way to any Obligor or any of its Subsidiaries, in each
case whether or not such investigation, litigation or proceeding is brought by
any Obligor, its directors, shareholders or creditors or an Indemnified Party or
any Indemnified Party is otherwise a party thereto and whether or not the
Covered Transactions or the other transactions contemplated hereby are
consummated, except to the extent such claim, damage, loss, liability or expense
is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. Each Borrower also agrees not to assert any claim against
the Administrative Agent, any Issuing Bank, any Lender, any of their Affiliates,
or any of their respective directors, officers, employees, attorneys and agents,
on any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Covered Transactions or any
part thereof or the other transactions contemplated herein or in any other Basic
Document or the actual or proposed use of the proceeds of the Advances. For
purposes of this Section 9.04(b), the term "non-appealable" includes any
judgment as to which all appeals have been taken or as to which the time for
taking an appeal shall have expired.
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(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by a Borrower to or for the account of a relevant Lender
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.03, 2.05, 2.08(b)(i) or 2.09(d)
or as the result of acceleration of the maturity of the Notes pursuant to
Section 6.01 or for any other reason, such Borrower shall, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment, including, without limitation, any
loss (including loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(d) If any Obligor fails to pay when due any costs, expenses or other
amounts payable by it under any Loan Document, including, without limitation,
reasonable and documented fees and expenses of counsel and indemnities, such
amount may be paid on behalf of such Obligor by the Administrative Agent or any
Lender, in its sole discretion.
Section 9.05. Right of Setoff. Upon (a) the occurrence and during
the continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and
otherwise apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Lender to or for the credit or the account of each Borrower against any
and all of the Obligations of such Borrower now or hereafter existing under this
Agreement and the Note held by such Lender, irrespective of whether such Lender
shall have made any demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify the relevant
Borrower after any such setoff and application; provided that the failure to
give such notice shall not affect the validity of such setoff and application.
The rights of each Lender under this Section are in addition to other rights and
remedies (including, without limitation, other rights of setoff) that such
Lender may have.
Section 9.06. Governing Law; Submission to Jurisdiction. This
Agreement and the Notes shall be governed by, and construed in accordance with,
the law of the State of New York. Each Obligor hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York state court sitting in New York City
for the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each Obligor irrevocably
waives, to the fullest extent
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permitted by applicable law, any objection that it may now or hereafter have to
the laying of the venue of any such proceeding brought in such a court and any
claim that any such proceeding brought in such a court has been brought in an
inconvenient forum.
Section 9.07. Assignments and Participations.
(a) Each Lender may assign to one or more banks or other entities all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitments, the Advances owing to
it and the Note or Notes held by it); provided that:
(i) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an affiliate of
a Lender or an assignment of all of a Lender's rights and obligations
under this Agreement, the amount of the Commitments of the assigning
Lender being assigned pursuant to each such assignment (determined as
of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than the lesser of (x) such
Lender's Commitments hereunder and (y) $5,000,000 or an integral
multiple of $1,000,000 in excess thereof (except as otherwise agreed
by the relevant Borrower and the Administrative Agent),
(ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an affiliate of
a Lender, each such assignment shall be made only upon the prior
written approval of the relevant Borrower, the Administrative Agent
and each Issuing Bank, such approval not to be unreasonably withheld,
(iii) each such assignment shall be to an Eligible Assignee,
(iv) each such assignment by a Lender of its Advances,
Commitment or Note under any Facility shall be made in such manner so
that the same portion of its Advances, Commitment and Note under such
Facility is assigned to the respective assignee,
(v) each such assignment by a Lender of its Advances,
Commitments and Notes shall be made in such a manner so that the same
portion of its Terra Advances, TNLP Advances, Terra Commitment, TNLP
Commitment, Terra Note and TNLP Note is assigned to the respective
assignee, and
(vi) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording
in the Register, an Assignment and Acceptance, together with any Note
or Notes subject to such assignment and a processing and recordation
fee of $3,000.
<PAGE>
-117-
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in such Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any Obligor
or the performance or observance by the Obligors of any of their respective
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Administrative Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrowers, shall maintain at its address referred to in Section 9.02 a copy
of each Assignment and Acceptance delivered to and accepted by it and a register
for the recordation of the names and addresses of the Lenders and the
Commitments of, and principal amount of the Advances owing under each Facility
to, each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Administrative Agent and the Lenders shall treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. No assignment shall be effective until it is recorded in the
Register pursuant to this Section 9.07(c).
<PAGE>
-118-
The Register shall be available for inspection by the Borrowers or any Lender at
any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, together with any Note or Notes subject to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit F
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrowers. Within five Business Days after its receipt of such notice, the
relevant Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Note or Notes a new Note or
Notes to the order of such assignee in an amount equal to the portion of the
Facilities assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a portion of such Facilities, a new Note or Notes
to the order of the assigning Lender in an amount equal to the portion so
retained by it hereunder. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit A-1 and
A-2, as the case may be.
(e) Each Lender may sell participations in or to all or a portion of
its rights and/or obligations under this Agreement (including, without
limitation, all or a portion of its Commitments or the Advances owing to it and
the Note or Notes held by it); provided that (i) such Lender's obligations under
this Agreement (including, without limitation, its Commitments) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Lender shall remain
the holder of any such Note for all purposes of this Agreement, (iv) the
Obligors, the Administrative Agent, the Issuing Banks and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of any Basic Document, or any consent to any departure
by any Obligor therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation, postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or release all or
substantially all of the Collateral.
(f) Any Issuing Bank may (subject to the prior written consent of
Terra, such consent not to be unreasonably withheld) assign all or any portion
of its rights and obligations under this Agreement to one or more successor
Issuing Banks that is a commercial bank organized under the laws of the United
States, or any state thereof, and having total assets in excess of
$1,000,000,000 and, upon the acceptance of such assignment, the respective
successor Issuing Banks shall succeed to such portion of such rights and
obligations and such assigning Issuing Bank shall be discharged from its duties
and obligations under this Agreement to such extent, including, without
limitation, such portion of its Letter of Credit Commitment.
<PAGE>
-119-
(g) Any Issuing Bank and any Lender may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 9.07, disclose to the assignee or participant or proposed assignee
or participant, any information relating to the Borrower furnished to such
Lender by or on behalf of the Borrower; provided that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall agree in writing to preserve the confidentiality of any Confidential
Information received by it from such Issuing Bank or Lender.
(h) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
(i) Anything in this Section 9.07 to the contrary notwithstanding,
each Lender shall be permitted to pledge all or any part of its right, title and
interest in, to and under the Advances and Notes held by it to any trustee for
the benefit of the holders of such Lender's securities.
(j) Anything in this Section 9.07 to the contrary notwithstanding,
neither Terra nor any of its Subsidiaries or Affiliates may acquire (whether by
assignment, participation or otherwise), and no Lender or Issuing Bank shall
assign or participate to Terra or any of its Subsidiaries or Affiliates, any
interest in any Commitment, Advance or other amount owing hereunder without the
prior consent of each Lender; provided that the Lenders and the Issuing Banks
may assign all of their interests in the Commitments, Advances and such other
amounts pursuant to the Loan Purchase Agreement.
Section 9.08. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 9.09. No Liability of the Issuing Banks. Each Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
the relevant Issuing Bank nor any of its officers or directors shall be liable
or responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the
<PAGE>
-120-
Letter of Credit; or (d) any other circumstances whatsoever in making or failing
to make payment under any Letter of Credit, except that the relevant Borrower
shall have a claim against such Issuing Bank, and such Issuing Bank shall be
liable to such Borrower, to the extent of any direct, but not consequential,
damages suffered by such Borrower that such Borrower proves were caused by (i)
such Issuing Bank's willful misconduct or gross negligence in determining
whether documents presented under any Letter of Credit comply with the terms of
the Letter of Credit or (ii) such Issuing Bank's willful failure to make lawful
payment under a Letter of Credit after the presentation to it of a draft and
certificates strictly complying with the terms and conditions of the Letter of
Credit. In furtherance and not in limitation of the foregoing, such Issuing Bank
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
Section 9.10. Confidentiality. Neither the Administrative Agent, any
Issuing Bank nor any Lender shall disclose any Confidential Information to any
Person without the prior consent of the Company, other than (a) to the
Administrative Agent's, such Issuing Bank's or such Lender's Affiliates and
their officers, directors, employees, agents and advisors (including independent
auditors and counsel) and to actual or prospective assignees and participants,
and then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process, (c) as requested or required by any state,
federal or foreign authority or examiner regulating or having authority over
Lenders or the Lenders' respective activities and (d) in connection with credit
inquiries from suppliers of the Borrowers and/or their Subsidiaries and other
Persons who, from time to time, inquire as to the creditworthiness of the
Borrowers.
Section 9.11. WAIVER OF JURY TRIAL. EACH OF THE OBLIGORS, THE
ADMINISTRATIVE AGENT, THE LENDERS AND THE ISSUING BANKS HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY
OF THE BASIC DOCUMENTS, THE ADVANCES, THE LETTERS OF CREDIT OR THE ACTIONS OF
THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY ISSUING BANK IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Section 9.12. Survival. The obligations of the Borrowers under
Sections 2.09, 2.11 and 9.04, the obligations of each Guarantor under Section
8.03, and the obligations of the Lenders under Section 7.05, shall survive the
repayment of the Advances and the termination of the Commitments. In addition,
each representation and warranty made, or deemed to be made by a notice of any
extension of credit (whether by means of an Advance or a Letter of Credit),
herein or pursuant hereto shall survive the making of such representation and
warranty, and no Lender or Issuing Bank shall be deemed to have waived, by
reason of making any extension of credit hereunder (whether by means of an
Advance or a Letter of Credit), any Default or Event of Default that may arise
by reason of such representation or warranty proving to have been false or
misleading, notwithstanding that such Lender, such Issuing Bank or the
Administrative Agent may have had notice or knowledge or reason to believe that
such representation or warranty was false or misleading at the time such
extension of credit was made.
<PAGE>
-121-
Section 9.13. Captions. The table of contents and captions and
section headings appearing herein are included solely for convenience of
reference and are not intended to affect the interpretation of any provision of
this Agreement.
Section 9.14. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, provided that no Obligor may assign any of its
rights or obligations hereunder or under the other Basic Documents without the
prior consent of all of the Lenders, the Issuing Banks and the Administrative
Agent.
<PAGE>
-122-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE BORROWERS
-------------
TERRA CAPITAL, INC.
By /s/ Francis G. Meyer
-----------------------
Title: Vice President
TERRA NITROGEN, LIMITED PARTNERSHIP
By: Terra Nitrogen Corporation, its General
Partner
By /s/ George H. Valentine
-------------------------
Title: Vice President
GUARANTORS
----------
TERRA INDUSTRIES INC.
By /s/ Francis G. Meyer
----------------------
Title: S.V.P. and C.F.O.
TERRA CAPITAL HOLDINGS, INC.
By /s/ George H. Valentine
-------------------------
Title: Vice President
<PAGE>
-123-
TERRA NITROGEN CORPORATION
By /s/ George H. Valentine
-------------------------
Title: Vice President
TERRA METHANOL CORPORATION
By /s/ George H. Valentine
-------------------------
Title: Vice President
BMC HOLDINGS, INC.
By /s/ Francis G. Meyer
----------------------
Title: Vice President
TERRA INTERNATIONAL INC.
By /s/ Francis G. Meyer
----------------------
Title: S.V.P. and C.F.O.
THE ADMINISTRATIVE AGENT
------------------------
CITIBANK, N.A.
By /s/ James N. Simpson
----------------------
Title: Attorney-In-Fact
<PAGE>
-124-
THE ISSUING BANKS
-----------------
CITIBANK, N.A.
By /s/ James N. Simpson
----------------------
Title: Attorney-In-Fact
THE LENDERS
-----------
CITIBANK, N.A.
By /s/ James N. Simpson
----------------------
Title: Attorney-in-Fact
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ M. H. Claggett
--------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ F.C.H. Ashby
------------------
Title: Senior Manager Loan Operations
FIRST BANK NATIONAL ASSOCIATION
By /s/ David A. Draxler
----------------------
Title: Vice President
<PAGE>
-125-
THE CHASE MANHATTAN BANK
By /s/ Michael D. Peist
----------------------------------------
Title: Vice President
NATIONSBANK, N.A.
By /s/ Barry Sullivan
----------------------------------------
Title: Vice President
THE FUJI BANK, LIMITED
By /s/ Peter L. Chinnici
----------------------------------------
Title: Joint General Manager
CREDIT AGRICOLE INDOSUEZ
By /s/ David Bouhl
----------------------------------------
Title: F.V.P. Head of Corporate Banking Chicago
By /s/ Katherine L. Abbott
----------------------------------------
Title: First Vice President
CREDIT LYONNAIS CHICAGO BRANCH
By /s/ Julie T. Kanak
----------------------------------------
Title: Vice President
<PAGE>
-126-
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By /s/ Thomas A. Lowe
--------------------------------------
Title: Assistant Vice President
By /s/ Jonathan J. Wallin
--------------------------------------
Title: Vice President
HARRIS TRUST & SAVINGS BANK
By /s/ Robert H. Wolohan
--------------------------------------
Title: Assistant Vice President
SUNTRUST BANK, ATLANTA
By /s/ Gregory L. Cannon By /s/ Brian M. Davis
--------------------------- --------------------------------------
Title: Vice President Title: Assistant Vice President
BANQUE NATIONALE DE PARIS
By /s/ Jo Ellen Bender
--------------------------------------
Title: Senior Vice President
By (Intentionally Unsigned)
--------------------------------------
Title:
<PAGE>
-127-
THE BANK OF NEW YORK
By /s/ William A. O'Daly
--------------------------------------
Title:Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A.,
"RABOBANK NEDERLAND", NEW YORK
BRANCH
By /s/ W. Pieter C. Kodde
--------------------------------------
Title: Vice President
By /s/ Hans F. Breukhoven
--------------------------------------
Title: Vice President
NORWEST BANK IOWA, NATIONAL
ASSOCIATION
By /s/ John Wagner
--------------------------------------
Title: Vice President
THE SUMITOMO BANK, LIMITED
By /s/ Ken-Ichiro Kobayashi
--------------------------------------
Title: Joint General Manager
<PAGE>
-128-
RETIRING LENDERS
----------------
ARAB BANKING CORPORATION
By /s/ Grant E. McDonald
--------------------------------------
Title: Vice President
<PAGE>
TERRA INDUSTRIES INC.
INCENTIVE AWARD PROGRAM FOR
OFFICERS & KEY EMPLOYEES
1998
----
I. Purpose of the Plan
The purpose of this Incentive Award Program is to motivate and reward
officers and key employees of the company toward achievement of planned
annual goals and improved results.
II. Eligibility in the Plan
Participation in this Incentive Award Program is limited to officers and
key employees of Terra Industries Inc., Terra Distribution and Terra
Nitrogen whose efforts are expected to contribute directly to the success
and accomplishment of the company's planned goals.
III. Special Provisions and Considerations
Terra's incentive plan year coincides with the company's fiscal year. The
Chief Executive Officer will establish corporate financial goals, which
are approved by the Board of Directors, which will be used to establish
the 1998 incentive pool. Each officer and key employee participating in
this plan will be assigned an index directly linked to the salary grade of
the position which they hold which establishes their target incentive as a
percentage of year-end base salary. Some Division participants will
participate in this Plan and a Division plan and their individual index
will be split or allocated between this plan and their Division plan in
establishing the year-end pool for this and their Division Plan.
The Chief Executive Officer, Chief Operating Officer or Division
President, as appropriate, is responsible for approving each plan
participant's individual goals or objectives as soon as practicable in
1998. The importance of each goal is reflected in the weight assigned to
each goal which sums to one hundred percent (100%). Each plan participant
must periodically report on their goal achievement to the Chief Executive
Officer. These individual goals or objectives will be used in determining
the participant's final incentive payment.
<PAGE>
IV. Funding the Officers and Key Employees Incentive Award Program
The funding for the incentive award pool is based on the accomplishment of
Terra Industries Inc. approved after tax budgeted net income and return-
on-beginning-equity objectives, which will fund the incentive pool. The
income goal will receive fifty percent (50%) weight and the return-on-
beginning-equity goal will receive fifty percent (50%) weight.
The pool starts to fund at sixty-four and two-tenths percent (64.2%) when
the company's composite performance reaches eighty-two and one-tenth
percent (82.1%) and increases on a straight-line basis where one hundred
percent (100%) of composite performance equals a one hundred percent
(100%) funding of the pool. Any funding for performance over 100% of plan
or under 82.1% of plan is at the discretion of the Compensation Committee
of the Board of Directors.
V. Basis of the Incentive Award
The starting point in determining each participant's individual incentive
award is the evaluation of the individual objectives. The participant's
individual raw award is calculated by taking each participant's year-end
salary, times their individual index (or that portion of their index used
to calculate this pool) and then adjusted by their individual performance.
The sum of all participants' adjusted raw awards creates an adjusted raw
pool. This adjusted raw pool is compared with the sum of the plan
participant's year-end salary, times their index (or a portion of their
index used to calculate this pool) which is then adjusted by the company's
composite performance to form the incentive pool. This adjusted raw pool
is adjusted up or down to match the incentive pool. All participant
incentives are paid from the incentive pool.
The Chief Executive Officer has the discretion to adjust any individual's
participation up or down to reflect unusual or unplanned events or to
reflect the degree of difficulty of the goals. He may adjust amounts
between plan participants and may add amounts from the discretionary part
of the pool. The Chief Executive Officer may also choose to award less
than the full amount of the pool or add as much as 20% to the pool.
-2-
<PAGE>
VI. Review, Revision and Modification of the Goals
Under normal business conditions, the corporate goals or individual
objectives will not be altered or revised once established for the year.
Unexpected and unforeseen developments during the course of the year may
prompt re-examination of an officer or key employee's established goals.
It is the responsibility of each officer and key employee to note the
conditions of change which would prompt such a review and take timely
action. Such action would include review with the Chief Executive Officer
for need for revision of an established goal as soon as possible after the
detected change. The change(s) is subject to final approval of the Chief
Executive Officer.
VII. Payment of Award
The incentive award will be paid each officer and key employee by check as
soon as possible after the close of the fiscal year and after approval of
the Chief Executive Officer's recommendations by the Personnel Committee
of the Board of Directors.
To be eligible for full payment, the officer or key employee must have
been in the employ of Terra Industries Inc. or one of its subsidiaries as
of January 1 of the incentive plan year and must be actively employed by
the company on the date the incentive award is paid.
VIII. Special Provision
A newly elected officer or key employee will participate in the officer
and key employees' incentive program in proportion to the number of full
months worked as an officer or key employee during the incentive program
year.
An officer or key employee who retires, becomes permanently disabled or
dies shall cease to participate in the officers and key employees'
incentive program as of the end of the month coincident with retirement,
disability or death. The proportionate incentive award will be paid as
soon as possible after the close of the fiscal year. While it is the
intent of the company to make awards under this plan and to continue the
plan from year to year, it reserves the right to amend or terminate the
plan entirely at its discretion.
sc
REV:032798
WPDOCS\AWRDPRGM\98KEYMGR.PRG
-3-
<PAGE>
EXECUTION COPY
================================================================================
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BEAUMONT METHANOL, LIMITED PARTNERSHIP
Dated as of March 31, 1998
Among
TERRA METHANOL CORPORATION,
as General Partner,
-- ------- -------
and
BMC HOLDINGS, INC.,
as Class B Limited Partner,
-- ----- - ------- -------
and
NOVA PRODUCTS LLC,
as Class A Limited Partner
-- ----- - ------- -------
===============================================================================
Confidential material has been omitted pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission under Rule 24b-2(b)
and has been filed separately with the Commission.
<PAGE>
T A B L E O F C O N T E N T S
Section Page
ARTICLE I
THE PARTNERSHIP
<TABLE>
<CAPTION>
<S> <C>
SECTION 1.01. Formation.............................................. 1
SECTION 1.02. Name and Principal Office.............................. 1
SECTION 1.03. Registered Agent....................................... 1
SECTION 1.04. Filings; Certificate of Limited Partnership............ 2
SECTION 1.05. Term................................................... 2
SECTION 1.06. Independent Activities................................. 2
SECTION 1.07. Computation of Time Periods............................ 3
</TABLE>
ARTICLE II
PURPOSE
<TABLE>
<CAPTION>
<S> <C>
SECTION 2.01. Purpose................................................ 3
SECTION 2.02. Powers................................................. 3
SECTION 2.03. Separate Business...................................... 4
</TABLE>
ARTICLE III
PARTNERS' CAPITAL CONTRIBUTIONS
<TABLE>
<CAPTION>
<S> <C>
SECTION 3.01. General Partner........................................ 4
SECTION 3.02. Limited Partners....................................... 4
SECTION 3.03. Additional Capital Contributions....................... 4
SECTION 3.04. Other Matters.......................................... 5
</TABLE>
ARTICLE IV
ALLOCATIONS
<TABLE>
<CAPTION>
<S> <C>
SECTION 4.01. Profits................................................ 5
SECTION 4.02. Losses................................................. 5
SECTION 4.03. Special Allocations.................................... 6
SECTION 4.04. Curative Allocations................................... 7
SECTION 4.05. Limitation on Losses................................... 8
SECTION 4.06. Priority of Allocations................................ 8
SECTION 4.07. Other Allocation Rules................................. 8
SECTION 4.08. Tax Allocations: Section 704(c) of the Code........... 9
SECTION 4.09. Asset Values........................................... 10
</TABLE>
<PAGE>
ARTICLE V
DISTRIBUTIONS
<TABLE>
<CAPTION>
<S> <C>
SECTION 5.01. Class A Limited Partner's First Priority Distribution.. 12
SECTION 5.02. Terra Partners' Second Priority Distribution........... 12
SECTION 5.03. Class A Limited Partner Guaranteed Payment............. 12
SECTION 5.04. Amounts Withheld....................................... 12
SECTION 5.05. Tax Distributions...................................... 13
</TABLE>
ARTICLE VI
MANAGEMENT
<TABLE>
<CAPTION>
<S> <C>
SECTION 6.01. Authority of the General Partner....................... 13
SECTION 6.02. Right to Rely on the General Partner................... 13
SECTION 6.03. Restrictions on Authority of the General Partner....... 14
SECTION 6.04. Duties and Obligations of the General Partner.......... 15
SECTION 6.05. Indemnification of Class A Limited Partner............. 17
SECTION 6.06. Compensation and Expenses.............................. 18
</TABLE>
ARTICLE VII
ROLE OF LIMITED PARTNERS
<TABLE>
<CAPTION>
<S> <C>
SECTION 7.01. Rights or Powers....................................... 19
SECTION 7.02. Voting Rights.......................................... 19
SECTION 7.03. Procedure for Consent.................................. 19
</TABLE>
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
<TABLE>
<CAPTION>
<S> <C>
SECTION 8.01. General................................................ 19
SECTION 8.02. Representations and Warranties of Each
Terra Partner.......................................... 19
SECTION 8.03. Representations and Warranties of the
Class A Limited Partner................................ 22
</TABLE>
ARTICLE IX
BOOKS AND RECORDS; REPORTS
<TABLE>
<CAPTION>
<S> <C>
SECTION 9.01. Accounting; Books and Records.......................... 23
SECTION 9.02. Reports................................................ 24
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
SECTION 9.03. Tax Matters............................................ 27
SECTION 9.04. Confidential Information............................... 28
</TABLE>
ARTICLE X
AMENDMENTS; MEETINGS
<TABLE>
<CAPTION>
<S> <C>
SECTION 10.01. Amendments............................................ 28
SECTION 10.02. Meetings of the Partners.............................. 28
SECTION 10.03. Unanimous Consent..................................... 29
</TABLE>
ARTICLE XI
TRANSFERS OF INTERESTS
<TABLE>
<CAPTION>
<S> <C>
SECTION 11.01. Restriction on Transfers.............................. 29
SECTION 11.02. Permitted Transfers................................... 29
SECTION 11.03. Conditions to Permitted Transfers..................... 30
SECTION 11.04. Prohibited Transfers.................................. 31
SECTION 11.05. Admission as Substitute Partners...................... 31
SECTION 11.06. Rights of Unadmitted Assignees........................ 32
SECTION 11.07. Distributions with Respect to Transferred Interests... 32
SECTION 11.08. Retirement of Partners' Interest in the Partnership... 33
</TABLE>
ARTICLE XII
GENERAL PARTNER
<TABLE>
<CAPTION>
<S> <C>
SECTION 12.01. Covenant Not to Withdraw, Transfer or Dissolve........ 33
SECTION 12.02. Termination of Status as General Partner.............. 33
</TABLE>
ARTICLE XIII
DISSOLUTION AND WINDING UP
<TABLE>
<CAPTION>
<S> <C>
SECTION 13.01. Liquidation........................................... 34
SECTION 13.02. Winding Up............................................ 34
SECTION 13.03. Restoration of Deficit Capital Accounts;
Compliance with Timing Requirements of Regulations.... 35
SECTION 13.04. Deemed Contribution and Liquidation................... 36
SECTION 13.05. Rights of Partners.................................... 37
SECTION 13.06. Notice of Dissolution................................. 37
SECTION 13.07. The Liquidator........................................ 37
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
SECTION 13.08. Form of Liquidating Distributions..................... 37
</TABLE>
ARTICLE XIV
POWER OF ATTORNEY
<TABLE>
<CAPTION>
<S> <C>
SECTION 14.01. General Partner as Attorney-In-Fact................... 38
SECTION 14.02. Nature of Special Power............................... 38
</TABLE>
ARTICLE XV
MISCELLANEOUS
<TABLE>
<CAPTION>
<S> <C>
SECTION 15.01. Notices............................................... 39
SECTION 15.02. Binding Effect........................................ 40
SECTION 15.03. Construction.......................................... 40
SECTION 15.04. Headings.............................................. 40
SECTION 15.05. Severability.......................................... 40
SECTION 15.06. Governing Law......................................... 41
SECTION 15.07. Waiver of Action for Partition........................ 41
SECTION 15.08. Consent to Jurisdiction............................... 41
SECTION 15.09. Execution in Counterparts............................. 41
SECTION 15.10. Treatment as Security................................. 41
SECTION 15.11. Waiver of Jury Trial.................................. 41
</TABLE>
SCHEDULES
<TABLE>
<CAPTION>
<S> <C> <C>
Schedule I - Original Capital Contributions
Schedule II - Appraisal Guidelines
Schedule III - Collateral for Demand Loans
Schedule IV - Existing Investments of Terra U.K.
Schedule V - Collateral for Terra Capital Note
Schedule 8.02(g) - Environmental Matters
Schedule 11.02(b) - Restricted Transferees of the Class A Limited Partner
</TABLE>
EXHIBITS
<TABLE>
<CAPTION>
<S> <C> <C>
Exhibit A - Form of Partnership Balance Sheet
Exhibit B - Form of Confidentiality Agreement
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Exhibit C - Form of Transferor Certificate
Exhibit D - Form of Transferee Certificate
Exhibit E-1 - Form of Demand Loan
Exhibit E-2 - Form of Terra Capital Guarantee
Exhibit F - Form of Terra Capital Note
</TABLE>
<PAGE>
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BEAUMONT METHANOL, LIMITED PARTNERSHIP
This SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP is
entered into and shall be effective as of the 31st day of March, 1998, by and
among TERRA METHANOL CORPORATION, a Delaware corporation ("TMC"), as the General
Partner, BMC HOLDINGS, INC., a Delaware corporation ("Holdings"), as the Class B
Limited Partner, and NOVA PRODUCTS LLC, a Delaware limited liability company
("Nova"), as the Class A Limited Partner. Capitalized terms used in this
Agreement shall have the meanings specified therefor in the Appendix attached
hereto (such meanings to be equally applicable to both the singular and plural
forms of the terms defined).
ARTICLE I
THE PARTNERSHIP
SECTION 1.01. Formation. The Partnership was formed on December 23,
1994. The Partners hereby agree to continue the Partnership as a limited
partnership pursuant to the provisions of the Act and upon the terms and
conditions set forth in this Agreement. This Agreement completely amends,
restates and supersedes that certain Agreement of Limited Partnership of
Beaumont Methanol, Limited Partnership entered into on December 31, 1997 (the
"First Amended Partnership Agreement"), by and between TMC, as the General
Partner, and Holdings, as the Limited Partner. On the Closing Date, (a)
Holdings became the Class B Limited Partner and (b) Nova acquired an Interest in
the Partnership in exchange for the contribution described in Section 3.02 and
Nova was admitted to the Partnership as the Class A Limited Partner.
SECTION 1.02. Name and Principal Office. The name of the Partnership
shall continue to be "BEAUMONT METHANOL, LIMITED PARTNERSHIP", or such other
name as the General Partner shall hereafter determine. All Partnership Property
shall be held in such name (and not in the name of any Partner), and all
business and affairs of the Partnership shall be conducted under such name, or
under any name licensed for use by the Partnership. The principal office of the
Partnership shall continue to be at the address of the General Partner set forth
in Section 15.01, or such other place as the General Partner may from time to
time designate. In addition, the General Partner may establish and maintain
such other offices and places of business within and without the State of
Delaware as it may from time to time determine.
SECTION 1.03. Registered Agent. The name of the Partnership's
registered agent for service of process in the State of Delaware is The
Prentice-Hall Corporation, or any successor as appointed by the General Partner.
The address of the registered agent and the address of the registered office in
the State of Delaware is 32 Loockerman Square, Suite L100, Dover, Delaware
19904.
<PAGE>
2
SECTION 1.04. Filings; Certificate of Limited Partnership. (a) The
General Partner has executed and caused the Certificate of Limited Partnership
described in the Act (the "Certificate") to be filed with the Secretary of State
of Delaware as required under Section 1.05 and the provisions of the Act and has
executed and caused to be filed, recorded and/or published, and shall execute
and cause to be filed, recorded and/or published, such other certificates or
documents with the appropriate authorities of the State of Texas as may be
determined by the General Partner to be reasonable and necessary or appropriate
for the formation, continuation, qualification, registration and/or operation of
a limited partnership in the State of Texas or any other state in which the
Partnership has elected or may elect to do business. The General Partner has
executed and filed such fictitious name registrations as are required under
applicable law with regard to the use of the name of the Partnership. The
General Partner shall take any and all other actions necessary or reasonable and
appropriate to perfect and maintain the status of the Partnership as a "limited
partnership", each of the Limited Partners as a "limited partner" in the
Partnership, and the General Partner as a "general partner" in the Partnership,
under the Act and the other laws of the State of Delaware or any other state in
which the Partnership has elected or may elect to do business. The General
Partner may omit from the Certificate filed with the Secretary of State of
Delaware and from any other certificates or documents filed in any other state
in order to register and/or qualify the Partnership to do business therein, and
from all amendments thereto, any information not required under applicable law
(including, without limitation, the name and address of each Limited Partner and
information relating to the Capital Contributions and shares of Profits and
Losses and compensation of the General Partner).
(b) To the extent the General Partner determines such action to be
necessary or reasonable and appropriate, the General Partner shall cause a
certified copy of the Certificate and any amendments thereto to be recorded in
the office of the county recorder in each county in which the Partnership owns
real property.
(c) Upon the dissolution of the Partnership, the General Partner (or,
if there is no remaining General Partner, the Liquidator selected pursuant to
clause (b) of the definition thereof set forth in the Appendix attached hereto)
shall promptly execute and cause to be filed certificates of dissolution and/or
certificates of cancellation in accordance with the Act and the law of any other
jurisdictions in which the Partnership has filed a Certificate or has registered
and/or qualified to do business therein.
SECTION 1.05. Term. The existence of the Partnership as a limited
partnership commenced on the date on which the Certificate was filed in the
office of the Secretary of State of Delaware in accordance with the Act, and
shall continue until the winding up and liquidation of the partnership and its
business and affairs following a Terminating Event, as provided in Article XIII.
SECTION 1.06. Independent Activities. (a) The General Partner and
each Limited Partner may, except as otherwise expressly provided in this Section
1.06, engage in whatever activities they choose, without having or incurring any
obligation to offer any interest in such activities to the Partnership or any
Partner. Neither this Agreement nor any action undertaken pursuant hereto shall
prevent any Partner or any of its Affiliates from engaging in such activities
(including, without limitation, making and managing Investments and otherwise
engaging in the methanol and/or agricultural minerals industry), or require any
Partner to permit the Partnership or any Partner to participate in any such
activities, and as a material part of the consideration for the execution of
this Agreement by each Partner, each Partner hereby waives, relinquishes and
renounces any such right or claim of participation.
<PAGE>
3
(b) To the extent permitted under applicable law and except as
otherwise provided in this Agreement, the General Partner, when acting on behalf
of the Partnership, is hereby authorized to purchase property and assets from,
sell property and assets to or otherwise deal with any Partner, acting on its
own behalf, or any Affiliate of any Partner; provided that any such purchase,
sale or other transaction shall be made on terms and conditions which are no
less favorable to the Partnership than if such sale, purchase or other
transaction had been made with an independent third party. The Partners agree
that the Transaction Documents shall satisfy this independent third-party
standard and, under the First Amended Partnership Agreement, the Partners
authorized, and the Partners hereby authorize, the General Partner to cause the
Partnership to enter into the Transaction Documents to which it is or is to be a
party.
(c) Each Limited Partner and any Affiliate thereof may also lend
money to, borrow money from, act as a surety, guarantor or endorser for,
guarantee or assume one or more specific obligations of, provide collateral for,
and transact other business with the Partnership and, subject to other
applicable law, has the same rights and obligations with respect thereto as a
Person who is not a Partner. The existence of these relationships and acting in
such capacities will not result in the Limited Partners being deemed to be
participating in the control of the business of the Partnership or otherwise
affect the limited liability of the Limited Partners.
SECTION 1.07. Computation of Time Periods. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding."
ARTICLE II
PURPOSE
SECTION 2.01. Purpose. The purpose of the Partnership is to provide
a business structure wherein the Partners can join together their knowledge,
expertise and resources and engage in the business of owning and managing the
Methanol Business and the Permitted Assets and manage, protect and conserve the
Partnership Property and make such additional investments and engage in such
additional business and activities as are permitted under this Agreement, and
engage in activities related or incidental thereto. The Partnership shall have
the power to do any and all acts necessary, appropriate, proper, advisable,
incidental or convenient to or in furtherance of the purpose of the Partnership
and shall have, without limitation, any and all powers that may be exercised on
behalf of the Partnership by the General Partner pursuant to Section 1.06(b) and
Article VI.
SECTION 2.02. Powers. The Partnership shall have such powers as are
necessary or appropriate to carry out the purposes of the Partnership,
including, without limitation:
(a) to have and maintain one or more offices and places of business
described in Section 1.02 and, in connection therewith, to do such acts and
things and incur such expenses as may be necessary or advisable in
connection with the maintenance of each such office or place of business
and the conduct of the business and affairs of the Partnership;
<PAGE>
4
(b) to open, maintain and close accounts with one or more banks or
other financial institutions, and to draw checks and other orders for the
payment of money;
(c) to guarantee on a nonrecourse basis borrowings of the Partners
used to acquire Partnership Property, and, in connection therewith, to
pledge and grant liens on and security interests in all or any portion of
the Partnership Property;
(d) to borrow money in furtherance of the purposes set forth in
Section 2.01, and to secure the payment of such borrowing or other
obligations of the Partnership by the pledge of, or the grant of liens on
and security interests in, all or any portion of the Partnership Property;
(e) to enter into, make and perform all such contracts, agreements
and other undertakings as may be necessary, advisable or incident to the
carrying out of the purposes set forth in Section 2.01; and
(f) to engage in any other lawful act or activity which may be
necessary or appropriate in the pursuance of the foregoing, including,
without limitation, the retention of employees, agents, independent
contractors, attorneys, accountants and investment counselors and the
preparation and filing of all Partnership tax returns.
SECTION 2.03. Separate Business. The Partnership shall keep its
business and affairs and all of the Partnership Property and operations separate
and distinct from the business, affairs, property and assets and operations of
the Partners and of any other Person in which any of them may be or become
interested.
ARTICLE III
PARTNERS' CAPITAL CONTRIBUTIONS
SECTION 3.01. General Partner. The General Partner contributed or was
deemed to have contributed on the Closing Date, as an Original Capital
Contribution, the property and assets described on of Schedule I attached
hereto.
SECTION 3.02. Limited Partners. Each Limited Partner contributed or
was deemed to have contributed on the Closing Date, as an Original Capital
Contribution, the property and assets described opposite the name of such
Limited Partner on of Schedule I attached hereto.
SECTION 3.03. Additional Capital Contributions. (a) General. Each
Partner may (with the consent of the General Partner) contribute from time to
time as Additional Capital Contributions such additional cash or other property
or assets as it may determine; provided that any such Additional Capital
Contributions shall consist solely of Permitted Assets. None of the Partners
shall be required to contribute additional cash or other Permitted Assets to the
Partnership, except as required under Section 3.03(b).
<PAGE>
5
(b) Required Capital Contributions. [Confidential material has been
omitted pursuant to a request for confidential treatment filed with the
Commission under Rule 24b-2(b) and has been filed separately with the
Commission.]
SECTION 3.04. Other Matters. (a) Except as otherwise expressly
provided in this Agreement, no Partner shall demand or receive a return of its
Capital Contributions or withdraw from the Partnership without the consent of
all of the other Partners. Under any circumstances requiring a return of any
Capital Contribution, no Partner shall have the right to receive property or
assets other than cash, except as may be otherwise expressly provided in this
Agreement.
(b) No Partner shall receive any interest, salary, or drawing with
respect to its Capital Contributions or its Capital Account or for services
rendered by it or any of its Affiliates on behalf of the Partnership or
otherwise in its capacity as a Partner, except as may be otherwise expressly
provided in this Agreement.
(c) The Limited Partners shall not be liable for the debts,
liabilities, contracts or any other obligations of the Partnership. Except as
otherwise provided under any other agreements among the Partners or any
mandatory provisions of applicable law, a Limited Partner shall be liable only
to make its Capital Contributions as expressly set forth in this Agreement, and
shall not be required to lend any funds to the Partnership or, after such
Capital Contributions have been made, to make any Additional Capital
Contributions to the Partnership.
ARTICLE IV
ALLOCATIONS
SECTION 4.01. Profits. Profits for any Allocation Year shall be
allocated in the following manner and order of priority:
[Confidential material has been] pursuant to a request for confidential
treatment filed with the Commission under Rule 24b-2(b) and has been filed
separately with the Commission.]
SECTION 4.02. Losses. Losses for any Allocation Year shall be
allocated in the following manner and order of priority:
[Confidential material has been omitted pursuant to a request for confidential
treatment filed with the Commission under Rule 24b-2(b) and has been filed
separately with the Commission.]
<PAGE>
6
SECTION 4.03. Special Allocations. (a) Minimum Gain Chargeback.
Except as otherwise provided in Section 1.704-2(f) of the Regulations,
notwithstanding any other provision of this Article IV, if there is a net
decrease in Partnership Minimum Gain during any Allocation Year, each Partner
shall be specially allocated items of Partnership income and gain for such
Allocation Year (and, if necessary, subsequent Allocation Years) in an amount
equal to such Partner's share of the net decrease in Partnership Minimum Gain,
determined in accordance with Section 1.704-2(g) of the Regulations. Allocations
pursuant to the immediately preceding sentence shall be made in proportion to
the respective amounts required to be allocated to each Partner pursuant
thereto. The items to be so allocated shall be determined in accordance with
Sections 1.704-2(f)(6) and 1.704-2(j)(2) of the Regulations. This Section
4.03(a) is intended to comply with the minimum gain chargeback requirement in
Section 1.704-2(f) of the Regulations and shall be interpreted consistently
therewith.
(b) Partner Minimum Gain Chargeback. Except as otherwise provided in
Section 1.704-2(i)(4) of the Regulations, notwithstanding any other provision of
this Article IV, if there is a net decrease in Partner Nonrecourse Debt Minimum
Gain attributable to any Partner Nonrecourse Debt during any Allocation Year,
each Partner who has a share of the Partner Nonrecourse Debt Minimum Gain
attributable to such Partner Nonrecourse Debt, determined in accordance with
Section 1.704-2(i)(5) of the Regulations, shall be specially allocated items of
Partnership income and gain for such Allocation Year (and, if necessary,
subsequent Allocation Years) in an amount equal to such Partner's share of the
net decrease in Partner Nonrecourse Debt Minimum Gain attributable to such
Partner Nonrecourse Debt, determined in accordance with Section 1.704-2(i)(4) of
the Regulations. Allocations pursuant to the immediately preceding sentence
shall be made in proportion to the respective amounts required to be allocated
to each Partner pursuant thereto. The items to be so allocated shall be
determined in accordance with Sections 1.704-2(i)(4) and 1.704-2(j)(2) of the
Regulations. This Section 4.03(b) is intended to comply with the minimum gain
chargeback requirement in Section 1.704-2(i)(4) of the Regulations and shall be
interpreted consistently therewith.
(c) Qualified Income Offset. If any Limited Partner unexpectedly
receives any adjustment, allocation or distribution described in Section 1.704-
1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6) of the
Regulations, items of Partnership income and gain shall be specially allocated,
as promptly as practicable, to each such Limited Partner in an amount and a
manner sufficient to eliminate, to the extent required under the Regulations,
the Adjusted Capital Account Deficit of such Limited Partner; provided that an
allocation pursuant to this Section 4.03(c) shall be made only if and to the
extent that such Limited Partner would have an Adjusted Capital Account Deficit
after all other allocations provided for in this Article IV have been
tentatively made as if this Section 4.03(c) were not included in this Agreement.
(d) Gross Income Allocation. If any Limited Partner has a deficit in
its Capital Account at the end of any Allocation Year which is in excess of the
sum of (i) the amount such Limited Partner is obligated to restore pursuant to
any provision of this Agreement and (ii) the amount such Limited Partner is
deemed to be obligated to restore pursuant to the penultimate sentences of
Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations, each such Limited
Partner shall be specially allocated, as promptly as practicable, items of
Partnership income and gain in the amount of such excess; provided that an
allocation pursuant to this Section 4.03(d) shall be made only if and to the
extent that such Limited Partner would have a deficit in its Capital Account in
excess of such sum after all other allocations
<PAGE>
7
provided for in this Article IV have been made as if Section 4.03(c) and this
Section 4.03(d) were not included in this Agreement.
(e) Nonrecourse Deductions. Nonrecourse Deductions for any Allocation
Year shall be specially allocated Ratably among the Partners.
(f) Partner Nonrecourse Deductions. Any Partner Nonrecourse
Deductions for any Allocation Year shall be specially allocated to the Partner
who bears the economic risk of loss with respect to the Partner Nonrecourse Debt
to which such Partner Nonrecourse Deductions are attributable in accordance with
Section 1.704-2(i)(1) of the Regulations.
(g) Section 754 Adjustments. To the extent an adjustment to the
adjusted tax basis of any Partnership Property pursuant to Section 734(b) or
743(b) of the Code is required pursuant to Section 1.704-1(b)(2)(iv)(m)(2) or
1.704-1(b)(2)(iv)(m)(4) of the Regulations to be taken into account in
determining Capital Accounts as the result of a distribution to a Partner in
complete liquidation of its Interest, the amount of such adjustment to Capital
Accounts shall be treated as an item of gain (if the adjustment increases the
basis of the such Partnership Property) or loss (if the adjustment decreases the
basis of the such Partnership Property), and such gain or loss shall be
specially allocated (i) if Section 1.704-1(b)(2)(iv)(m)(2) of the Regulations
applies, to the Partners in accordance with their Interests, or (ii) if Section
1.704-1(b)(2)(iv)(m)(4) of the Regulations applies, to the Partner to whom such
distribution was made.
(h) Allocations Relating to Taxable Issuance of Interests. Any item
of income, gain, loss, or deduction realized as a direct or indirect result of
the issuance of an Interest by the Partnership to a Partner (the "Issuance
Items") shall be allocated among the Partners so that, to the extent possible,
the net amount of such Issuance Items, together with all other allocations made
to each Partner pursuant to this Agreement, shall be equal to the net amount
that would have been allocated to each such Partner if the Issuance Items had
not been realized.
(i) Class A Limited Partner Guaranteed Payment. [Confidential material
has been omitted pursuant to a request for confidential treatment filed with the
Commission under Rule 24b-2(b) and has been filed separately with the
Commission.]
(j) Depreciation. [Confidential material has been omitted pursuant to
a request for confidential treatment filed with the Commission under Rule 24b-
2(b) and has been filed separately with the Commission.]
SECTION 4.04. Curative Allocations. (a) The allocations set forth in
Sections 4.03(a) through 4.03(g) and Section 4.05 (the "Regulatory Allocations")
are intended to comply with certain requirements of the Regulations. It is the
intent of the Partners that, to the extent possible, all Regulatory Allocations
shall be offset either with other Regulatory Allocations or with special
allocations of other items of Partnership income, gain, loss, or deduction
pursuant to this Section 4.04. Therefore, notwithstanding any other provision of
this Article IV (other than the Regulatory Allocations), the General Partner
shall make such offsetting special allocations of Partnership income, gain, loss
or deduction as are necessary so that, after such offsetting allocations are
made, the balance in each Partner's Capital Account is, to the
<PAGE>
8
extent possible, equal to the balance such Partner's Capital Account would have
had if the Regulatory Allocations were not included in this Agreement. In making
offsetting allocations under this Section 4.04 at any time, the General Partner
shall take into account future Regulatory Allocations under Sections 4.03(a) and
4.03(b) that, although not made at such time, are likely to offset other
Regulatory Allocations made under Sections 4.03(e) and 4.03(f) prior to such
time.
(b) The General Partner shall have reasonable discretion, with respect
to each Allocation Year, (i) to apply the provisions of Section 4.04(a) in
whatever order is likely to minimize the economic distortions that might
otherwise result from the Regulatory Allocations and (ii) to divide all
allocations pursuant to Section 4.04(a) among the Partners in a manner that is
likely to minimize such economic distortions.
SECTION 4.05. Limitation on Losses. The Losses allocated pursuant to
Section 4.02 and the items of Partnership loss or deduction allocated pursuant
to Sections 4.03 and 4.04 shall not exceed the maximum amount of Losses that can
be so allocated without causing any Limited Partner to have an Adjusted Capital
Account Deficit at the last day of any Allocation Year. All Losses in excess of
the limitations set forth in the immediately preceding sentence shall be
allocated to the General Partner.
SECTION 4.06. Priority of Allocations. (a) The allocations set
forth in this Article IV shall be made in the following manner and order of
priority:
[Confidential material has been omitted pursuant to a request for confidential
treatment filed with the Commission under Rule 24b-2(b) and has been filed
separately with the Commission.]
(b) The Partners and the Partnership agree to treat the Partnership as
a partnership for federal, state and local income tax purposes and to report all
Partnership items and all transactions involving the Partnership or any of the
Interests or other ownership or profit interests therein, whether direct or
indirect (collectively, the "Partnership Matters"), in a manner consistent with
such treatment. Furthermore, the Partners and the Partnership agree to report
all Partnership Matters for federal, state and local income tax purposes
consistently with the treatment provided in this Agreement or, if no such
treatment is so provided, consistently with the manner in which the Class A
Limited Partner reasonably determines to treat such Partnership Matters. If the
Class A Limited Partner does not notify the Partnership of its treatment of any
Partnership Matter, the Partners and the Partnership shall report such
Partnership Matter consistently with the manner in which the General Partner
reasonably determines to treat such Partnership Matter.
SECTION 4.07. Other Allocation Rules. (a) Profits, Losses and any
other items of Partnership income, gain, loss or deduction shall be allocated to
the Partners pursuant to this Article IV as of the last day of each Allocation
Year; provided that Profits, Losses and such other items shall also be allocated
at such times as are required under Section 11.08(b) and at such other times as
the Asset Values of the Partnership Property are adjusted in accordance with
Section 4.09 and the definition of "Asset Value" set forth in the Appendix
attached hereto.
(b) In the case of a Partner whose entire Interest is retired or sold,
the Partnership taxable year shall close with respect to such Partner, and such
Partner's distributive share of all items of
<PAGE>
9
Profits, Losses and other items of Partnership income, gain, loss or deduction
shall be determined by using the interim closing of the books method under
Section 706 of the Code and Section 1.706-1(c)(2)(i) of the Regulations. In all
other cases in which it is necessary to determine the Profits, Losses or any
other such items allocable to any period, Profits, Losses or any such other item
shall be determined on a daily, monthly or other basis, as determined by the
General Partner using any permissible method under Section 706 of the Code and
the Regulations promulgated thereunder.
(c) The Partners are aware of the income tax consequences of the
allocations made under this Article IV, and each Partner hereby agrees to be
bound by the provisions of this Article IV in reporting their shares of
Partnership income and loss for income tax purposes.
SECTION 4.08. Tax Allocations: Section 704(c) of the Code. (a) In
accordance with Section 704(c) of the Code and the Regulations promulgated
thereunder, income, gain, loss and deduction with respect to any Permitted Asset
contributed to the capital of the Partnership shall, solely for income tax
purposes, be allocated among the Partners so as to take account of any variation
between the adjusted basis of such Permitted Asset to the Partnership for United
States federal income tax purposes and its Initial Asset Value.
(b) If the Asset Value of any Partnership Property is adjusted
pursuant to clause (ii) of the definition of "Asset Value" set forth in the
Appendix attached hereto, subsequent allocations of income, gain, loss and
deduction with respect to such Partnership Property shall take account of any
variation between the adjusted basis of such Partnership Property for United
States federal income tax purposes and its Asset Value in the same manner as is
provided under Section 704(c) of the Code and the Regulations promulgated
thereunder.
(c) Depreciation recapture arising under Sections 1245 and 1250 of the
Code shall be allocated in accordance with such Sections and the Regulations
promulgated thereunder.
(d) Any elections or other decisions relating to such allocations
shall be made by the General Partner in any manner that reasonably reflects the
purpose and intention of this Agreement. Allocations pursuant to this Section
4.08 are solely for purposes of federal, state and local taxes and shall not
affect, or in any way be taken into account in computing, any Partner's Capital
Account or share of Profits, Losses, other items of Partnership income, gain,
loss or deduction, or distributions pursuant to any other provision of this
Agreement.
(e) Except as otherwise provided in this Agreement, all items of
Partnership income, gain, loss and deduction, and any other allocations not
otherwise provided for herein, shall be divided among the Partners in the same
proportions as they share Profits or Losses and items thereof, as the case may
be, for the Allocation Year.
(f) Subject to any limitations set forth in the Code and the
Regulations promulgated thereunder (including Section 263 of the Code with
respect to the capitalization of certain expenses), the Partners and the
Partnership hereby agree to treat, for federal, state and local income tax
purposes, all Extraordinary Expenses, all payments made to the Class A Limited
Partner for Qualified Investor Costs and all indemnification payments made to
the Class A Limited Partner pursuant to Section 6.05(b), as Code
<PAGE>
10
Section 162 ordinary and necessary expenses incurred in connection with the
carrying on of a trade or business.
SECTION 4.09. Asset Values. For the purpose of determining the
balance in the Capital Account of each Partner on the Closing Date and for
purposes of determining the amount of gain or loss deemed to be realized on a
Mark-to-Market Valuation of any Permitted Asset, the Asset Values of the
Permitted Assets of the Partnership shall be as follows:
(a) Initial Asset Values. (i) The initial Asset Value of the Terra
U.K. Holdings Stock shall be equal to the sum of (A) the aggregate
outstanding principal amount of the Terra U.K. Loan plus all accrued and
unpaid interest thereon, if any, (B) the book value of all Investments made
by the Partnership, directly or indirectly, in the Ammonia Loop and (C) the
face value of all Liquid Investments of Terra U.K. Holdings, plus accrued
and unpaid interest thereon, if any, adjusted for any unamortized premium
or discount thereon; provided that each of the amounts or values referred
to in subclause (i)(A), (i)(B) or (i)(C) of this Section 4.09(a) shall be
adjusted, if necessary, on a pro forma basis for all reasonably anticipated
income taxes that will be required to be paid by Terra U.K. Holdings or any
Subsidiary of Terra U.K. Holdings on such amount or value at a rate of 35%.
(ii) The initial Asset Value of the Terra Capital Note, any of the
Demand Loans or any of the Permitted Securitization Assets shall be equal
to the aggregate outstanding principal amount thereof plus all accrued and
unpaid interest thereon, if any.
(iii) The initial Asset Value of the Methanol Plant and all Methanol
Related Assets shall be determined pursuant to an appraisal conducted by an
independent valuation firm acceptable to each of the Partners (the "Initial
Appraiser") pursuant to the Appraisal Guidelines.
(iv) The initial Asset Value of any of the Liquid Investments shall be
equal to the face value thereof, plus accrued and unpaid interest thereon,
if any, adjusted for any unamortized premium or discount.
(b) Mark-to-Market Valuation. A Mark-to-Market Valuation shall be
made upon the occurrence of each Mark-to-Market Event, and the Mark-to-
Market Value of each Permitted Asset comprising part of the Partnership
Property shall be determined in accordance with the following provisions,
except that, unless otherwise expressly provided in this Section 4.09(b),
the Mark-to-Market Value of any such Permitted Asset shall be made as of
the applicable Measurement Date:
(i) The Terra U.K. Holdings Stock shall be valued at the sum of:
[Confidential material has been omitted pursuant to a request for confidential
treatment filed with the Commission under Rule 24b-2(b) and has been filed
separately with the Commission.]
provided that each of the amounts or values referred to in subclause
(i)(A), (i)(B) or (i)(C) of this Section 4.09(b) shall be adjusted, if
necessary, on a pro forma basis for all reasonably anticipated income
taxes that will be required to be paid by Terra U.K.
<PAGE>
11
Holdings or any Subsidiary of Terra U.K. Holdings on such amount or
value at a rate of 35%; and provided further, however, that, if any
payment or other material default has occurred and is continuing with
respect to the certificate of incorporation or bylaws of Terra U.K.
Holdings or the Terra U.K. Loan Documents, and such default shall
continue after the applicable grace period, if any, specified therein,
the value of the Partnership Property described above in this Section
4.09(b)(i) with respect to which such payment or other material
default shall have occurred and be continuing shall be determined by
an appraisal firm, investment bank or commercial bank of national
reputation selected by the General Partner with the consent of the
Class A Limited Partner (which consent shall not be unreasonably
withheld).
(ii) The Terra Capital Note, each of the Permitted Securitization
Assets and each of the Demand Loans shall be valued at the aggregate
outstanding principal amount thereof plus all accrued and unpaid
interest thereon to the date of any such Mark-to-Market Valuation;
provided that if any payment or other material default has occurred
and is continuing with respect to the Terra Capital Note, any of the
Permitted Securitization Assets or any of the Demand Loans, and such
default shall continue after the applicable grace period, if any,
specified in the Terra Capital Note or the agreements or instruments
evidencing or setting forth the terms of any such Permitted
Securitization Asset or Demand Loan, as the case may be, the value of
the Partnership Property described above in this Section 4.09(b)(ii)
with respect to which such payment or other material default shall
have occurred and be continuing shall be determined by an investment
bank or commercial bank of national reputation selected by the General
Partner with the consent of the Class A Limited Partner (which consent
shall not be unreasonably withheld).
(iii) The Methanol Plant and all of the Methanol Related Assets
will be valued pursuant to an appraisal conducted by the Initial
Appraiser on or about the date of such Mark-to-Market Valuation, or,
if the Initial Appraiser is unavailable or unwilling to do such
appraisal on or about such date, by an Appraiser pursuant to the
Appraisal Guidelines; provided, however, that any of the Partners may,
at such Partner's sole expense, independently elect to determine the
fair market value of the Methanol Plant and all of the Methanol
Related Assets, in which case such fair market value shall be
determined by an Alternate Appraiser pursuant to the Appraisal
Guidelines (and if the fair market value of the Methanol Plant and all
of the Methanol Related Assets determined by the Alternate Appraiser
differs by at least 10% (whether higher or lower) from the fair market
value thereof determined by the Initial Appraiser or the Appraiser, as
applicable, then the Methanol Plant and all of the Methanol Related
Assets will be valued at the average of the respective fair market
values of the Methanol Plant and all of the Methanol Related Assets
determined by Initial Appraiser or the Appraiser, as applicable, and
the Alternate Appraiser).
(iv) Each of the Liquid Investments of the Partnership shall be
valued at their face value plus all accrued and unpaid interest
thereon, if any, to the date of any such Mark-to-Market Valuation,
adjusted for any unamortized premium or discount thereon at such date;
provided that if any payment or other material default has occurred
and is
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12
continuing with respect to any of the Liquid Investments, the value of
the Liquid Investment with respect to which such payment or other
material default shall have occurred and be continuing shall be
determined by an investment bank or commercial bank of national
reputation selected by the General Partner with the consent of the
Class A Limited Partner (which consent shall not be unreasonably
withheld).
Each of the Partners hereby agrees that any election by such Partner to have the
Ammonia Loop appraised by an Alternate Appraiser pursuant to Section
4.09(b)(i)(B)(2) or the Methanol Plant and the Methanol Related Assets appraised
by an Alternate Appraiser pursuant to Section 4.09(b)(iii) shall be made as
promptly as practicable and that it shall use its reasonable efforts to cause
each such Alternate Appraiser to diligently conduct its appraisal of the Ammonia
Loop or the Methanol Plant and the Methanol Related Assets, as the case may be,
and to complete such appraisal within a reasonable period of time.
ARTICLE V
DISTRIBUTIONS
SECTION 5.01. Class A Limited Partner's First Priority Distribution.
The General Partner shall cause the Partnership to make cash distributions to
the Class A Limited Partner on each Distribution Date until the Class A Limited
Partner has been distributed an amount equal to the remainder, if any, of (a)
the Cumulative First Priority Return from the Closing Date to such Distribution
Date, minus (b) all cash distributions in respect of the First Priority Return
previously made to the Class A Limited Partner pursuant to this Section 5.01.
SECTION 5.02. Terra Partners' Second Priority Distribution. The
General Partner shall cause the Partnership to make cash distributions to the
Terra Partners, on each Distribution Date, Ratably until the Terra Partners have
been distributed an amount equal to the remainder, if any, of (a) the Cumulative
Second Priority Return from the Closing Date to such Distribution Date, minus
(b) all cash distributions in respect of the Second Priority Return previously
made to the Terra Partners pursuant to this Section 5.02; provided, however,
that no distribution shall be made under this Section 5.02 on any Distribution
Date unless, after giving pro forma effect to such distribution, the aggregate
principal amount of all Liquid Investments of the Partnership and all Demand
Loans shall be at least equal to the sum of (i) $145,000,000 and (ii) the
aggregate book value of all fixed and capital assets comprising part of the
Partnership Property which have been sold, transferred or otherwise disposed of
at or prior to such Distribution Date (in each case which book value shall be
determined as of the later of (A) the Closing Date and (B) the date of
acquisition of the applicable fixed or capital asset).
SECTION 5.03. Class A Limited Partner Guaranteed Payment.
[Confidential material has been omitted pursuant to a request for confidential
treatment filed with the Commission under Rule 24b-2(b) and has been filed
separately with the Commission.]
SECTION 5.04. Amounts Withheld. All amounts withheld pursuant to the
Code or any provision of any other federal, state or local law with respect to
any payment, distribution or allocation to the Partnership or the Partners shall
be treated as amounts distributed to the Partners pursuant to this
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13
Article V for all purposes under this Agreement. The General Partner is hereby
authorized to withhold from distributions, or with respect to allocations, to
the Partners and to pay over to any federal, state or local taxation authority
or other governmental authority any amounts required to be so withheld pursuant
to the Code or any provision of any other federal, state or local law, and shall
allocate any such amounts to the Partners with respect to which such amount was
withheld.
SECTION 5.05. Tax Distributions. Within ten Business Days after the
end of each Fiscal Quarter, the General Partner shall make a good faith estimate
of the First Priority Return and the taxable income for United States federal
income tax purposes of the Partnership for such Fiscal Quarter. If and to the
extent that the General Partner estimates that the amount of taxable income
allocable to the Class A Limited Partner for such Fiscal Quarter exceeds the
First Priority Return allocated to the Class A Limited Partner for such Fiscal
Quarter, the General Partner shall, within two Business Days after making such
estimate, cause the Partnership to make cash distributions to the Class A
Limited Partner in an amount equal to 45% of such excess.
ARTICLE VI
MANAGEMENT
SECTION 6.01. Authority of the General Partner. Subject to the
limitations and restrictions set forth in this Agreement (including, without
limitation, those limitations and restrictions set forth in this Article VI),
the General Partner shall direct the business and affairs of the Partnership
and, in so doing, shall manage, control and have all of the rights and powers
which may be possessed by a general partner under the Act.
SECTION 6.02. Right to Rely on the General Partner. (a) Any Person
dealing with the Partnership may rely (without duty of further inquiry) upon a
certificate signed by any General Partner as to:
(i) The identity of the General Partner or any Limited Partner;
(ii) The existence or nonexistence of any fact or facts which
constitute a condition precedent to acts by the General Partner or which
are in any other manner germane to the affairs of the Partnership;
(iii) The Persons who are authorized to execute and deliver any
agreement, instrument or other document of or on behalf of the Partnership;
or
(iv) Any act or failure to act by the Partnership or any other
matter whatsoever involving the Partnership or any Partner.
(b) The signature of the General Partner shall be sufficient to
convey title to any of the Partnership Property, and all of the Partners agree
that (i) a copy of this Agreement may be shown to the appropriate Persons in
order to confirm the authority or such signature and (ii) the signature of the
<PAGE>
14
General Partner shall be sufficient to execute any "statement of partnership" or
other documents necessary or appropriate to effectuate any provision of this
Agreement.
SECTION 6.03. Restrictions on Authority of the General Partner.
Except as otherwise provided in this Agreement, the General Partner shall not
have the authority to, and the General Partner covenants and agrees that it
shall not, without the consent of all the other Partners (which consent shall
not be unreasonably withheld (it being understood and agreed that the failure of
the Class A Limited Partner to obtain the consent of the requisite lenders and,
if applicable, the agent under the Credit Facility to any of the actions set
forth below in this Section 6.03 shall be deemed to be a reasonable basis for
the Class A Limited Partner to withhold any such consent)):
(a) Take any action that (i) is in contravention of this Agreement or
(ii) would subject any Limited Partner to liability as a general partner in
any jurisdiction;
(b) Engage in any business or activity on behalf of the Partnership
that is inconsistent with the purposes of the Partnership described in
Section 2.01;
(c) Cause or permit the Partnership to voluntarily take any action
with respect to the Partnership described in clause (a)(iii), (b) or (c) of
the definition of "Voluntary Bankruptcy" set forth in the Appendix attached
hereto;
(d) Cause or permit the Partnership to acquire, by purchase or
contribution, any property or assets that, at the time of the acquisition
thereof, (i) does not constitute a Permitted Asset or (ii) is a Permitted
Asset comprised of a financial asset that is in default;
(e) Cause or consent to any amendment, modification or waiver of any
rights or obligations of the Partnership, or cause or give any consent to
or approval or make any election on behalf of the Partnership, under any of
the Transaction Documents if any such amendment, waiver, consent approval
or election, either individually or in the aggregate, could reasonably be
expected to have a material adverse effect on the Partnership's rights or
materially increase its obligations thereunder, including, without
limitation, unless such action is immaterial and insubstantial in nature
and does not adversely affect the Class A Limited Partner:
(i) Cause or consent to any amendment, modification or waiver
of any provision of the Terra Capital Note or any of the agreements,
instruments or other documents evidencing or otherwise setting forth
the terms of any Demand Loan;
(ii) Cause or permit Terra U.K. Holdings to consent to any
amendment, modification or waiver of any provision of any of the Terra
U.K. Loan Documents; or
(iii) Cause or consent to any amendment, modification or waiver
of any provision of the certificate of incorporation or bylaws of Terra
U.K. Holdings or BAI;
(f) Cause or permit the Partnership to change its Fiscal Year, except
as required under Section 706 of the Code;
<PAGE>
15
(g) Cause or permit the admission of any Limited Partner to the
Partnership other than pursuant to Article XI;
(h) Cause or permit the Partnership to merge or consolidate with or
into, or sell all or substantially all of the Partnership Property (whether
in one transaction or a series of transactions) to, any Person;
(i) Cause or permit the Partnership to issue any additional Interests
or any other ownership or profit interests therein to any Person other than
the Interests issued or held by the Partners referred to in the first
paragraph of this Agreement on the date hereof (it being understood and
agreed that the making of any Additional Capital Contribution pursuant to
Section 3.03 shall not, in and of itself, constitute the issuance of any
additional Interests or other ownership or profit interests in the
Partnership); or
(j) Cause or permit the Partnership to enter into, or to purchase or
otherwise acquire, any supply or sales contracts in which the Partnership
has basis for federal income tax purposes.
Notwithstanding the foregoing provisions of this Section 6.03, the General
Partner shall not have the authority to, and the General Partner covenants and
agrees that it shall not, with or without the consent of any or all of the other
Partners, possess Partnership Property, or assign rights in specific Partnership
Property, other than for a purpose of the Partnership described in Section 2.01.
SECTION 6.04. Duties and Obligations of the General Partner. (a) The
General Partner shall cause the Partnership to conduct its business, operations
and activities in all material respects separate and apart from the business,
operations and activities of any Terra Partner or any of its Affiliates,
including, without limitation, in all material respects (i) segregating all
Partnership Property and not allowing funds or other Partnership Property to be
commingled with the funds or other property or assets of, held by, or registered
in the name of, any Terra Partner or any of its Affiliates, except as and to the
extent contemplated in the Services Agreement, (ii) maintaining books and
financial records of the Partnership separate from the books and financial
records of any Terra Partner and its Affiliates, (iii) observing all procedures
and formalities of the Partnership (including, without limitation, maintaining
minutes of Partnership meetings and acting on behalf of the Partnership only
pursuant to the due authorization of the Partners or as otherwise required under
applicable law), (iv) causing the Partnership to pay its liabilities solely from
the Partnership Property and (v) causing the Partnership to conduct its dealings
with third parties in its own name and as a separate and independent entity,
including dealings conducted pursuant to the Services Agreement.
(b) The General Partner shall take in its sole discretion all actions
which are necessary or reasonable and appropriate (i) for the continuation of
the Partnership's valid existence as a limited partnership and its qualification
to do business under the laws of the State of Delaware, the State of Texas and
each other jurisdiction in which such existence or qualification is necessary or
appropriate in order to protect the limited liability of the Limited Partners or
to enable the Partnership to conduct the business in which it is engaged or to
perform its obligations under any agreement, instrument or other document to
which it is a party, except where the failure to so exist or qualify, either
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect, and (ii) for the
<PAGE>
16
accomplishment of the purposes of the Partnership described in Section 2.01,
including the acquisition, management, maintenance, preservation and operation
of Permitted Assets in accordance with the provisions of this Agreement and
applicable laws. Without limiting any of the foregoing provisions of this
Section 6.04(b), the General Partner shall cause the Partnership and its
Subsidiaries:
(A) to maintain all licenses and permits necessary to own or lease
and operate their respective property and assets and to conduct their
respective businesses and activities in accordance in all material respects
with all applicable laws, rules, regulations and orders;
(B) to pay and discharge (1) all taxes, assessments, reassessments,
levies and other governmental charges imposed upon it or upon its property
and assets and (2) all lawful claims, that, if unpaid, might by applicable
law become a Lien upon its property and assets or any part thereof;
provided, however, that neither the Partnership nor any of its Subsidiaries
shall be required to pay or discharge any such tax, assessment,
reassessment, levy, charge or claim the amount, applicability or validity
of which is being contested in good faith and by proper proceedings and as
to which appropriate and adequate reserves are being maintained in
accordance with GAAP, unless and until any Lien resulting therefrom
attaches to its property or assets and becomes enforceable against its
other creditors; and
(C) to maintain insurance (including, without limitation,
environmental insurance) for the benefit of the Partnership or its
Subsidiaries for their respective properties, assets and businesses with
sound and responsible insurance companies and of such types, in such
amounts and covering such casualties and contingencies as are at least as
favorable as those usually carried by companies of established reputations
engaged in similar businesses and owning similar property and assets in the
same general areas in which the Partnership or the applicable Subsidiary
thereof operates and, in any case, as may otherwise be required by
applicable law.
(c) The General Partner shall devote to the Partnership such time as
in its sole discretion it determines is necessary for the proper performance of
all duties under this Agreement. Certain officers, directors and employees of
the General Partner may from time to time also be officers, directors or
employees of one or more of its Affiliates. The General Partner shall cause its
employees to devote as much time to the management of the Partnership as is
necessary in its sole discretion for the proper conduct of its business and
affairs. The General Partner and its Affiliates shall not be liable to any
Limited Partner or any of its Affiliates for any action taken or omitted to be
taken by it in the good faith exercise of its reasonable business judgment in
the management and operation of the Partnership.
(d) The General Partner shall cause all distributions or payments to
the Partners (in their capacities as such) pursuant to any provision of this
Agreement to be made no later than 12:00 Noon (New York City time) on the date
of distribution or payment, and, at the time of any such distribution or
payment, the General Partner shall provide to the other Partners a notice
setting forth the nature of the distribution or payment, each of the Sections of
this Agreement pursuant to which such distribution or payment is being made and
the amount being distributed or paid pursuant to each such Section.
[Confidential material has been omitted pursuant to a request for confidential
treatment filed with the Commission under Rule 24b-2(b) and has been filed
separately with the Commission.]
<PAGE>
17
(h) The General Partner shall cause the Partnership to comply with all
of the terms of, and perform all of its obligations under, this Agreement.
SECTION 6.05. Indemnification of Class A Limited Partner. (a) The
Partnership or, solely to the extent of the Partnership Property, its receiver
or its trustee shall indemnify and hold harmless the Class A Limited Partner for
any and all claims, damages, losses, liabilities and expenses of the Partnership
arising out of or relating to events, developments or circumstances occurring
prior to the Closing Date, other than the liabilities and expenses of the
Partnership comprising part of the Original Capital Contributions of the Terra
Partners and set forth on Schedule I hereto. In the case of any investigation,
litigation or proceeding for which the indemnity under this Section 6.05(a)
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Class A Limited Partner, any of its
respective directors, stockholders, partners, members or creditors, the
Partnership or any other Partner and whether or not the Partnership or any other
Partner is otherwise a party thereto. The indemnification provided pursuant to
this Section 6.05(a) shall not guarantee the payment of the First Priority
Return, any Class A Limited Partner Guaranteed Payment in lieu thereof, the
return of any of the Capital Contributions of the Class A Limited Partner or the
retirement or purchase of the Interest of the Class A Limited Partner (whether
through the exercise of the Purchase Option or otherwise).
(b) The Partnership or, solely to the extent of the Partnership
Property, its receiver or its trustee shall, to the extent any state or local
taxes based on or measured by the income of the Partnership or the Partnership
Property are imposed on the Class A Limited Partner or any Class A Beneficial
Owner by any External Taxing Jurisdiction, indemnify and hold harmless the Class
A Limited Partner or such Class A Beneficial Owner for an amount equal to, on an
After-Tax Basis, the excess of such state and local taxes (determined after
taking into account associated deductions) over the amount of any state or local
tax refund, deduction or credit which the Class A Limited Partner or such Class
A Beneficial Owner (or any of its Affiliates) realizes as a result of the
imposition of such state or local taxes by such External Taxing Jurisdiction,
conclusively presuming for purposes of this Section 6.05(b) that any such
beneficial owner is subject to the tax laws of the State of New York. The Class
A Limited Partner or the Class A Beneficial Owner seeking indemnification under
this Section 6.05(b) shall provide the Partnership with notice of such claim,
which notice shall set forth in reasonable detail the Class A Limited Partner's
or such Class A Beneficial Owner's calculation of the amount of such claim. In
connection with the foregoing provisions of this Section 6.05(b), the Class A
Limited Partner agrees to use its reasonable efforts, and to cause its
affiliates to use their reasonable efforts, to claim and pursue any state or
local tax refund, deduction or credit that would reduce the indemnification
obligations of the Partnership (or its receiver or trustee) hereunder.
(c) All indemnities provided for in this Section 6.05 shall survive
any transfer of the Interest of the Class A Limited Partner, in whole or in
part, and the indemnities provided for in Section 6.05(b) shall also survive the
liquidation or winding up of the Partnership.
(d) (i) If any claim is made by a third party against the Class A
Limited Partner, any Class A Beneficial Owner, the Liquidator or any Affiliate
of any of the foregoing, or any officer, director, agent, employee,
representative, advisor, successor or assign thereof (each, an "Indemnitee"),
with respect to an actual or potential claim, damage, loss, liability or expense
for which any such Person is otherwise
<PAGE>
18
entitled to be indemnified under any provisions of Section 6.05(a), 6.05(b) or
13.07(b), and any such Person wishes to be indemnified with respect thereto,
such Indemnitee shall promptly notify the appropriate indemnitor as provided in
the applicable Section (the "Indemnitor"), which notice shall set forth in
reasonable detail the nature of the related claim, damage, loss, liability or
expense; provided that the failure of any such Indemnitee to notify the
applicable Indemnitor shall not relieve such Indemnitor from any liability or
other obligation which it otherwise may have to such Person under Section
6.05(a), 6.05(b) or 13.07(c), as applicable, or otherwise, unless, and then only
to the extent that, such failure results in the forfeiture of rights or defenses
and the Indemnitor incurs an increased indemnification obligation to such
Indemnitee under the terms of such applicable Section on account of such
failure.
(ii) Any Indemnitor may, by notice to the Indemnitee, take control of
all aspects of the investigation and assume the defense of all claims asserted
against such Indemnitee, and may employ counsel of its choice and at its
expense; provided that (A) no Indemnitor may, without the consent of any
Indemnitee, agree to any settlement that requires such Indemnitee to make any
payment that is not indemnified hereunder, or does not grant a full and
unconditional release to such Indemnitee, and, in any event, such Indemnitor may
not in connection with any such investigation, defense or settlement, without
the consent of any Indemnitee, take or refrain from taking any action which
would reasonably be expected to materially impair the indemnification of such
Indemnitee hereunder or would require such Indemnitee to take or refrain from
taking any action or to make any public statement which such Indemnitee
reasonably considers to materially and adversely affect its rights or interests,
and (B) no Indemnitor may take control of any investigation, defense or
settlement which could reasonably be expected to entail a risk of criminal
liability to any Indemnitee. Upon the request of any Indemnitee, the Indemnitor
shall use its best efforts to keep such Indemnitee reasonably apprised of the
status of those aspects of such investigation and defense controlled by such
Indemnitor and shall provide such information with respect thereto as such
Indemnitee may reasonably request. The Indemnitee shall cooperate with the
Indemnitor in all reasonable respects with respect thereto.
(e) No Indemnitor shall be liable to any Indemnitee for the settlement
by such Indemnitee of any pending or threatened investigation, litigation or
proceeding for which such Indemnitee may seek indemnity under Section 6.05(a)
without the prior written consent of such Indemnitor (which consent shall not be
unreasonably withheld or delayed). In turn, none of the Indemnitors or any of
their respective Affiliates or their respective officers, directors,
stockholders, partners, members, employees, agents, representatives or advisors
shall effect the settlement of any such pending or threatened investigation,
litigation or proceeding unless either (i) such settlement includes a full and
unconditional release and discharge of each Indemnitee subject to such
investigation, litigation or proceeding from all liability and potential
liability on claims that are the subject matter thereof or (ii) each Indemnitee
subject to such investigation, litigation or proceeding shall give its prior
written consent to the settlement thereof (which consent shall not be
unreasonably withheld or delayed).
SECTION 6.06. Compensation and Expenses. (a) Compensation and
Reimbursement. Except as otherwise provided in this Section 6.06, neither any
Partner nor any Affiliate of any Partner shall receive any salary, fee or draw
from the Partnership for services rendered to or on behalf of the Partnership or
otherwise in its capacity as a Partner, and neither any Partner nor any
Affiliate of any Partner shall be reimbursed by the Partnership for any expenses
incurred by such Partner or Affiliate on behalf of the Partnership or otherwise
in its capacity as a Partner.
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19
(b) Management Fee; Expenses. [Confidential material has been omitted
pursuant to a request for confidential treatment filed with the Commission under
Rule 24b-2(b) and has been filed separately with the Commission.]
ARTICLE VII
ROLE OF LIMITED PARTNERS
SECTION 7.01. Rights or Powers. The Limited Partners shall not have
any right or power to take part in the management or control of the Partnership
or its business and affairs or to act for or bind the Partnership in any way.
Notwithstanding the foregoing, the Limited Partners shall have all the rights
and powers specifically set forth in this Agreement. A Limited Partner, any
Affiliate thereof, or an employee, stockholder, agent, director or officer of a
Limited Partner or any Affiliate thereof, may also be an employee or agent of
the Partnership or a stockholder, director or officer of a General Partner or
any of its Affiliates. The existence of these relationships and acting in such
capacities will not result in a Limited Partner being deemed to be participating
in the control of the business of the Partnership or otherwise affect the
limited liability of any Limited Partner.
SECTION 7.02. Voting Rights. The Limited Partners shall have the
right to vote only on those matters expressly reserved for their vote under this
Agreement and otherwise as required under the Act.
SECTION 7.03. Procedure for Consent. In any circumstances requiring
the approval or consent of the Limited Partners specified in this Agreement or
otherwise required under the Act, such approval or consent may, except as
expressly provided to the contrary in this Agreement, be given or withheld in
the sole and absolute discretion of the Limited Partners. If the General Partner
receives the necessary approval or consent of the Limited Partners to such
circumstances, the General Partner shall be authorized and empowered to
implement such action without further authorization by the Limited Partners.
Each class of Limited Partners shall exercise the rights to vote or consent
granted such class of Limited Partners under this Agreement by a vote or consent
of the majority in Percentage Interest of such class of Limited Partners, such
result of the majority vote or consent to be the decision of the class of
Limited Partners.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
SECTION 8.01. General. Each of the Partners hereby makes each of the
representations and warranties applicable to such Partner as set forth in this
Article VIII, and such representations and warranties shall survive the
execution of this Agreement.
SECTION 8.02. Representations and Warranties of Each Terra Partner.
Each Terra Partner hereby represents and warrants as follows:
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(a) Such Terra Partner (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases property
or in which the conduct of its business requires it to so qualify or be
licensed, except where the failure to so qualify or be licensed, either
individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect, and (iii) has all requisite corporate power and
authority (including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its property and
assets (including, without limitation, its Interest) and to carry on its
business as now conducted and as proposed to be conducted. All of the
outstanding shares of capital stock of such Terra Partner have been validly
issued, are fully paid and nonassessable and are owned by Terra Capital,
free and clear of all Liens, except for the liens and security interests
created therein under the Terra Capital Loan Documents.
(b) The execution, delivery and performance by such Terra Partner of
this Agreement and each other Transaction Document to which it is or is to
be a party, and the consummation of the transactions contemplated hereby
and thereby, are within such Terra Partner's corporate powers, have been
duly authorized by all necessary corporate action and do not (i) contravene
such Terra Partner's certificate of incorporation or bylaws (or similar
organizational documents), (ii) violate any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award, except to the
extent that any such violation, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect, (iii)
result in the breach of, or constitute a default under, any contract, loan
agreement, indenture, mortgage, deed of trust, lease, instrument or other
agreement binding on or affecting such Terra Partner, any of its
Subsidiaries or any of their respective properties or assets, except to the
extent that any such breach or default, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect, or (iv) result in or require the creation or imposition of any Lien
upon or with respect to any of the properties or assets of the Partnership
or any of its Subsidiaries.
(c) No authorization, approval or other action by, and no notice to or
filing with, any governmental or regulatory authority, or any other third
party that is a party to any contract, loan agreement, indenture, mortgage,
deed of trust, lease, instrument or other agreement referred to in Section
8.02(b)(iii), is required for the due execution, delivery, recordation,
filing or performance by such Terra Partner of this Agreement or any other
Transaction Document to which it is or is to be a party, or for the
consummation of any material transaction contemplated hereby or thereby.
(d) This Agreement has been, and each other Transaction Document to
which such Terra Partner is or is to be a party when delivered hereunder
will have been, duly executed and delivered by such Terra Partner. This
Agreement is, and each other Transaction Document to which such Terra
Partner is or is to be a party when delivered hereunder will be, the legal,
valid and binding obligation of such Terra Partner, enforceable against
such Terra Partner in accordance with its terms, except to the extent such
enforceability may be limited by the effect of applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity.
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21
(e) There is no action, suit, investigation, litigation, arbitration
or proceeding pending or, to the best knowledge of such Terra Partner,
threatened against or affecting such Terra Partner, any of its Subsidiaries
or any of their respective properties or assets in any court, before any
arbitrator or by or before any governmental or regulatory authority that
(i) either individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any other Transaction
Document or the consummation of the transactions contemplated hereby or
thereby.
(f) The Partnership's Methanol Business complies in all material
respects with all applicable Environmental Laws and Environmental Permits;
all past noncompliance with such Environmental Laws and Environmental
Permits has been resolved without ongoing material obligations or costs;
and no circumstances exist that would be reasonably likely to (i) form the
basis of an Environmental Action against the Partnership or such Terra
Partner, any of their Subsidiaries or any of their respective properties or
assets or (ii) cause the Partnership Property to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law, except in the case of clauses (i) and (ii) of this
Section 8.02, as, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(g) Except as described on Schedule 8.02(g) attached hereto: (i) none
of the Partnership Property related to the Methanol Business is listed or
proposed for listing on the NPL or on the CERCLIS or any analogous state or
local list or, to the best knowledge of such Terra Partner, is adjacent to
any properties so listed or proposed for listing; (ii) there are no and, to
the best knowledge of such Terra Partner, there never have been any
underground or aboveground storage tanks or any surface impoundments,
septic tanks, pits, sumps or lagoons in which Hazardous Materials are being
or have been treated, stored or disposed on any such Partnership Property;
(iii) there is no asbestos or asbestos-containing material on any such
Partnership Property; and (iv) Hazardous Materials have not been released,
discharged or disposed of on any such Partnership Property in a manner
that, either individually or in the aggregate, could reasonably be expected
to result in material liability to the Partnership.
(h) Except as, either individually or in the aggregate, could not
reasonably be expected to result in material liability to the Partnership:
(i) such Terra Partner is not undertaking, and has not completed, either
individually or together with other potentially responsible parties, any
investigation or assessment or remedial or response action relating to any
location or operation related to the Methanol Business, either voluntarily
or pursuant to the order of any governmental or regulatory authority or the
requirements of any Environmental Law; and (ii) no Hazardous Materials
generated, used, treated, handled or stored at, or transported to or from,
any Partnership Property related to the Methanol Business have been
disposed of in any manner.
(i) Each of such Terra Partner and the Partnership has filed, has
caused to be filed or has been included in all material tax returns
(federal, state, local and foreign) required to be filed and has paid all
taxes shown thereon to be due, together with applicable interest and
penalties, except for any such taxes, assessments, levies, fees and other
charges the amount, applicability or validity of which is being contested
in good faith and by appropriate proceedings
<PAGE>
22
and with respect to which such Terra Partner or the Partnership, as the
case may be, has established appropriate and adequate reserves in
accordance with GAAP.
(j) Such Terra Partner is not (i) an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company", nor, as a result of such Terra Partner's ownership of
its Interests, is the Partnership an "investment company", or an
"affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company", in each case as such term is defined in the
Investment Company Act of 1940, as amended, or (ii) a "holding company", an
"affiliate of a holding company" or a "subsidiary of a holding company", in
each case as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935, as amended.
SECTION 8.03. Representations and Warranties of the Class A Limited
Partner. The Class A Limited Partner represents and warrants as follows:
(a) The Class A Limited Partner (i) has been duly formed as a limited
liability company and is validly existing and in good standing under the
laws of the State of Delaware, and (ii) has all requisite limited liability
company power and authority (including, without limitation, all
governmental licenses, permits and other approvals) to enter into this
Agreement and the other Transaction Documents to which it is a party and to
own or lease and operate its property and assets (including, without
limitation, its Interest) and to carry on its business as described in its
limited liability company agreement.
(b) The execution, delivery and performance by the Class A Limited
Partner of this Agreement and each other Transaction Document to which it
is or is to be a party are within the Class A Limited Partner's limited
liability company powers, have been duly authorized by all necessary
limited liability company action and do not (i) contravene the Class A
Limited Partner's limited liability company agreement, (ii) violate any
law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award binding upon or applicable to it, (iii) result in
the breach of, or constitute a default under, any contract, loan agreement,
indenture, mortgage, deed of trust, lease, instrument or other agreement
binding on or affecting the Class A Limited Partner or any of its
properties or assets or (iv) result in or require the creation or
imposition of any Lien upon or with respect to any of the properties or
assets of the Partnership or any of its Subsidiaries.
(c) No authorization, approval or other action by, and no notice to or
filing with, any governmental or regulatory authority or any other third
party is required for the due execution, delivery, recordation, filing or
performance by the Class A Limited Partner of this Agreement or any other
Transaction Document to which it is or is to be a party.
(d) This Agreement has been, and each other Transaction Document to
which the Class A Limited Partner is or is to be a party when delivered
hereunder will have been, duly executed and delivered by the Class A
Limited Partner. This Agreement is and each other Transaction Document to
which the Class A Limited Partner is or is to be a party when delivered
hereunder will be the legal, valid and binding obligation of the Class A
Limited Partner, enforceable against the Class A Limited Partner in
accordance with its terms, except to the extent
<PAGE>
23
such enforceability may be limited by the effect of applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity.
(e) There is no action, suit, investigation, litigation, arbitration
or proceeding pending or, to the best knowledge of the Class A Limited
Partner, threatened against or affecting the Class A Limited Partner or any
of its properties or assets in any court, before any arbitrator or by or
before governmental or regulatory authority that (i) either individually or
in the aggregate, could reasonable be expected to have a Material Adverse
Effect or (ii) purports to affect the legality, validity or enforceability
of this Agreement or any other Transaction Document.
(f) The Class A Limited Partner is not an "investment company", or an
"affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company", in each case as such term is defined in the
Investment Company Act of 1940, as amended.
ARTICLE IX
BOOKS AND RECORDS; REPORTS
SECTION 9.01. Accounting; Books and Records. (a) Maintenance of
Books and Records. The Partnership shall maintain at its address set forth in
Section 15.01 or, upon notice to the Limited Partners, at such other place as
the General Partner shall determine, books of record and account for the
Partnership in which full and correct entries shall be made of all financial
transactions and the Partnership Property in sufficient detail to reflect the
business and operations of the Partnership and to make all of the calculations
required under this Agreement.
(b) Accounting Methods. (i) The Partnership shall use the accrual
method of accounting in the preparation of its annual reports and for tax
purposes, and shall keep its books and records accordingly.
(ii) Except with respect to distributions and other payments provided
for in Article V and Sections 3.03(b), 11.08 and 13.02, all amounts payable
under any agreement between the Partnership, on the one hand, and any Partner or
any of its Affiliates, on the other hand, shall be treated as occurring between
the Partnership and a Person who is not a Partner within the meaning of Section
707(a)(1) of the Code, and such amounts payable by the Partnership to any
Partner or any of its Affiliates shall be considered an expense of the
Partnership for both income tax and financial reporting purposes and shall not
be considered a distribution to such Partner (including, without limitation, any
such amounts payable in maintaining such Partner's Capital Account), and any
such amounts payable by any Partner or any of its Affiliates to the Partnership
shall not be considered a contribution to the Partnership, including, without
limitation, any such amounts payable in maintaining such Partner's Capital
Account.
(c) Access to Books, Records, Etc. Any Partner or any agent or
representative thereof on its behalf may, subject to Section 9.04 and at the
Partnership's sole and reasonable expense, upon reasonable notice, for proper
purposes and during normal business hours, visit and inspect any of the
<PAGE>
24
properties of the Partnership and its Subsidiaries (subject to reasonable safety
requirements) and examine any information it may reasonably request and make
copies of and abstracts from the financial and operating records and books of
account of the Partnership and its Subsidiaries, and discuss the affairs,
finances and accounts of the Partnership and/or any of its Subsidiaries with the
General Partner and its officers and directors, and with the independent
accountants of the Partnership and its Subsidiaries, as often as such Partner or
any such agent or representative may reasonably request.
SECTION 9.02. Reports. The General Partner shall cause to be
prepared and furnished to the Class A Limited Partner the following:
(a) Terminating Events, Notice Events and Incipient Events. Within
five Business Days of knowledge thereof by any Responsible Officer of the
General Partner or Terra Capital, notice of each Terminating Event, Notice
Event (other than the Notice Event referred to in clause (a) of the
definition thereof set forth in the Appendix attached hereto) or Incipient
Event, and each incurrence of an Extraordinary Expense and each occurrence
of any events, developments or circumstances which, either individually or
in the aggregate, could reasonably be expected to give rise to an
Extraordinary Expense or to have a Material Adverse Effect, and the actions
that the Partnership or any other appropriate Person has taken or proposes
to take with respect thereto.
(b) Quarterly. Within 60 days after the end of each Fiscal Quarter,
commencing with the Fiscal Quarter ending March 31, 1998:
(i) Compliance Statements. A certificate of a Senior Financial
Officer of Terra Capital, certifying (A) as to whether the Partnership
holds any Permitted Asset which is a financial asset that is in
default, (B) the aggregate principal amount of all Demand Loans
outstanding on the last day of such Fiscal Quarter, after giving pro
forma effect to the Demand Loans and the repayments of Demand Loans
made within the 30-day period following the end of such Fiscal
Quarter, and (C) that no Terminating Event, Notice Event (other than
the Notice Event referred to in clause (a) of the definition thereof
set forth in the Appendix attached hereto) or Incipient Event has
occurred and is continuing or, if any such Terminating Event, Notice
Event or Incipient Event has occurred and is continuing, the actions
that the Partnership or any other appropriate Person has taken or
proposes to take with respect thereto;
(ii) Financial Reports. An unaudited balance sheet of the
Partnership and its Subsidiaries as of the end of such Fiscal Quarter
and statements of income and cash flow of the Partnership for the
period commencing at the end of the previous Fiscal Year and ending
with the end of such Fiscal Quarter, in each case certified by a
Senior Financial Officer of Terra Capital as (A) having been prepared
in accordance with GAAP (without the requirement for complete
footnotes and subject to normal year-end audit adjustments) and (B)
fairly presenting (subject to the absence of complete footnotes and
normal year-end audit adjustments) the financial condition of the
Partnership and its Subsidiaries as at the last day of such Fiscal
Quarter and the results of operations and cash flows of the
Partnership and its Subsidiaries for the period ended on the last day
of such Fiscal Quarter; and
<PAGE>
25
(iii) Insurance Compliance. A certificate, signed by a
Responsible Officer of the General Partner or Terra Capital,
confirming compliance with the provisions of Section 6.04(b).
(c) Annually. Within 110 days after the end of each Fiscal Year, a
report for such Fiscal Year which sets forth (i) a copy of the annual audit
report of the Partnership for such Fiscal Year, including therein the
audited balance sheet of the Partnership and its Subsidiaries as of the end
of such Fiscal Year and statements of income and cash flow of the
Partnership for such Fiscal Year, in each case prepared in accordance with
GAAP, and accompanied by an unqualified opinion or an opinion otherwise
acceptable to the Partners of Deloitte & Touche LLP or other independent
public accountants of nationally recognized standing and (ii) a schedule,
certified by a Senior Financial Officer of Terra Capital, setting forth, in
reasonable detail, each of the following: (A) the Asset Values of the
Permitted Assets and the balance in the Capital Account of each Partner,
all as reflected in, and in substantially the form of, Exhibit A attached
hereto (a "Partnership Balance Sheet"), as of the last day of such Fiscal
Year and (B) the Partnership's income, including items of profit, expense
or deduction and any realized and recognized (or deemed to be realized and
recognized on a Mark-to-Market Valuation) gains or losses, and the
allocations to the Capital Accounts (a "Partnership Income Statement"), for
such Fiscal Year.
(d) Financial Asset Default. Within five Business Days following
knowledge by any Responsible Officer of the General Partner or Terra
Capital of a default on any Permitted Asset which is a financial asset, a
certificate setting forth, in reasonable detail, a description of the
Permitted Asset so affected and the nature of such default.
(e) Contribution Date, Retirement Date and Termination Date Reports.
(i) (A) As promptly as practicable and in any event within 30 days after
the date on which any Capital Contribution (other than an Original Capital
Contribution) is made by any of the Partners, whether pursuant to Section
3.03 or otherwise, (B) on any date on which any distribution is made to any
of the Partners in retirement of all or any part of its Interest pursuant
to Section 11.08 and (C) on the date on which final distributions are made
to the Partners upon the liquidation or winding up of the Partnership
pursuant to Article XIII, each of the following reports:
(1) A report which sets forth an unaudited pro forma Partnership
Balance Sheet and Partnership Income Statement for the applicable
Measurement Date (based upon a Mark-to-Market Valuation as of such
Mark-to-Market Event, if applicable) and includes a certificate of a
Senior Financial Officer of Terra Capital that such pro forma
Partnership Balance Sheet and Partnership Income Statement fairly
present in all material respects the information contained therein;
and
(2) In the case of reports required under subclause (i)(B) of
this Section 9.02(e), a certificate of a Responsible Officer of the
General Partner or Terra Capital that, immediately before and after
giving pro forma effect to the retirement of all or any portion of the
Interest of any of the Partners, no Terminating Event, Notice Event or
Incipient Event has occurred and is continuing.
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26
(ii) Not later than 60 days after the date on which any Capital
Contribution, retirement or liquidating distribution referred to in
subclause (i)(A), (i)(B) or (i)(C) of this Section 9.02(e) is made, the
General Partner shall cause the statements referred to in this Section
9.02(e) to be reviewed and reported on by the Partnership's independent
public accountants.
(f) Purchase Option Reports. (i) On the Purchase Date, a report which
sets forth an unaudited pro forma Partnership Balance Sheet and Partnership
Income Statement for the applicable Measurement Date and includes a
certificate of a Senior Financial Officer of Terra Capital that such pro
forma Partnership Balance Sheet and Partnership Income Statement fairly
present in all material respects the information contained therein and (ii)
not later than 60 days after the Purchase Date, the General Partner shall
cause the statements referred to in this Section 9.02(f) to be reviewed and
reported on by the Partnership's independent public accountants.
(g) Environmental Conditions. Promptly and in any event within five
Business Days after a Responsible Officer of the General Partner or Terra
Capital becomes aware of the assertion or occurrence thereof, notice of:
(i) any condition or occurrence on or arising from any property
owned or operated by the Partnership or any of the Terra Partners or
any of their respective Subsidiaries that resulted or is alleged to
have resulted in noncompliance by the Partnership or any such Terra
Partner or Subsidiary with any applicable Environmental Law or
Environmental Permit in such a manner as, either individually or in
the aggregate, could reasonably be expected to have a Material Adverse
Effect;
(ii) any condition or occurrence on any Partnership Property
related to the Methanol Business that could reasonably be expected to
cause such Partnership Property to be subject to any material
restrictions on the ownership, occupancy, use or transferability
thereof by the Partnership under any Environmental Law; and
(iii) the taking of any removal or remedial action outside of
the ordinary course of business of the Partnership in response to the
actual or alleged presence of any Hazardous Materials on any
Partnership Property related to the Methanol Business required by any
Environmental Law or any Environmental Permit or any governmental or
regulatory authority.
All such notices shall set forth in reasonable detail the nature of the
condition, occurrence, removal or remedial action described therein and, in
the case of each such condition or occurrence, the action that the
applicable Partner or Subsidiary of the Partnership or any of the Partners
has taken or proposes to take with respect thereto.
(h) Terra Capital Information. As promptly as practicable and in any
event within two Business Days after receipt thereof, all financial and
other information received by, and all notices delivered to, the
Partnership from Terra Capital pursuant to the Terra Capital Note or the
Loan Purchase Agreement.
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27
(i) Terra U.K.. As promptly as practicable and in any event within
two Business Days after receipt thereof, all financial and other
information received by the Partnership regarding Terra U.K. and its
property, assets and businesses pursuant to Section 6.04(g)(ii).
(j) Additional Information. Promptly following any such request, such
other information relating to the Partnership or any of its Subsidiaries,
or the properties, assets, business, operations or activities thereof, as
any of the Partners may from time to time reasonably request.
SECTION 9.03. Tax Matters. (a) The General Partner is authorized to
make any and all elections for federal, state and local tax purposes (including,
without limitation, any election, if permitted by applicable law):
(i) to adjust the basis of Partnership Property pursuant to Sections
754, 734(b) and 743(b) of the Code, or comparable provisions of state or
local law, in connection with Transfers of Interests and Partnership
distributions;
(ii) with the consent of the Class A Limited Partner, to extend the
statute of limitations for assessment of tax deficiencies against the
Partners with respect to adjustments to the Partnership's federal, state or
local tax returns; and
(iii) to the extent provided in Sections 6221 through 6231 of the
Code, to represent the Partnership and the Partners before taxation
authorities and other governmental authorities or courts of competent
jurisdiction in tax matters affecting the Partnership or the Partners in
their capacities as Partners, and to file any tax returns and execute any
agreements or other documents relating to or affecting such tax matters,
including, without limitation, agreements or other documents that bind the
Partners with respect to such tax matters or otherwise affect the rights of
the Partnership and the Partners.
The General Partner is specifically authorized to act as the "Tax Matters
Partner" under the Code and in any similar capacity under state or local law (in
such capacity, the "Tax Matters Partner"). Notwithstanding the generality of the
foregoing, the Tax Matters Partner shall make regular and current reports to the
Class A Limited Partner on the status of all representations of the Partnership
and the Partners before taxation authorities and other governmental authorities
and courts of competent jurisdiction. Furthermore, without the prior consent of
the Class A Limited Partner (which consent shall not be unreasonably withheld),
the Tax Matters Partner may not enter into any agreement or document which would
affect the amount, timing or character of any item of Profits or Losses
allocated to, or otherwise realized by, the Class A Limited Partner.
(b) The General Partner shall cause all necessary tax information to
be delivered to each Partner as soon as practicable and in any event not later
than 90 days after the end of each Fiscal Year. The General Partner shall file
tax returns for the Partnership prepared in accordance with the Code and the
Regulations. Promptly and in any event no later than 30 days after the filing
or receipt thereof, the General Partner shall furnish to each other Partner all
federal, state and local tax returns filed on behalf
<PAGE>
28
of the Partnership and all written notices received by the Partnership from any
taxation authority or other governmental authority.
SECTION 9.04. Confidential Information. The Class A Limited Partner
shall keep all information furnished to it pursuant to this Article IX
confidential pursuant to a Confidentiality Agreement, and shall take reasonable
steps to ensure that any other Person to whom the Class A Limited Partner
provides any such information shall keep such information confidential on a
similar basis as is provided in the Confidentiality Agreement executed and
delivered by the Class A Limited Partner.
ARTICLE X
AMENDMENTS; MEETINGS
SECTION 10.01. Amendments. Amendments to this Agreement may be
proposed by the General Partner or any Limited Partner. The General Partner
shall seek the written vote of the Partners on the proposed amendment or shall
call a meeting to vote thereon and to transact any other business that it may
deem appropriate. A proposed amendment shall be adopted and be effective as an
amendment to this Agreement only if it receives the affirmative vote of all of
the Partners.
SECTION 10.02. Meetings of the Partners. (a) Meetings of the
Partners may be called by the General Partner and shall be called upon the
written request of any other Partner. Each call for a meeting of the Partners
shall state the nature of the business to be transacted at such meeting and the
proposed date of such meeting. Unless waived in writing, notice of any such
meeting shall be given to all Partners not less than seven Business Days nor
more than 30 days prior to the date of such meeting. Partners may vote in
person, by proxy or by telephone at such meeting. Whenever the vote or consent
of Partners is permitted or required under this Agreement, such vote or consent
may be given at a meeting of Partners or may be given in accordance with the
procedure prescribed in Section 10.03. Except as otherwise expressly provided
in this Agreement, the unanimous vote of all of the Partners shall be required
to constitute the act of the Partners.
(b) For the purpose of determining the Partners entitled to vote on,
or to vote at, any meeting of the Partners or any adjournment thereof, the
General Partner or the Limited Partner requesting such meeting may fix, in
advance, a date as the record date for any such determination. Such date shall
not be less than ten days nor more than 30 days before any such meeting.
(c) Each Limited Partner may authorize any Person or Persons to act
for it by proxy on all matters in which a Limited Partner is entitled to
participate, including waiving notice of any meeting, or voting or participating
at a meeting. Every proxy must be signed by the Limited Partner granting such
proxy or its attorney-in-fact. No proxy shall be valid for more than 11 months
from the date thereof unless otherwise provided in the proxy. Every proxy shall
be revocable at the pleasure of the Limited Partner executing it.
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29
(d) Each meeting of the Partners shall be conducted by the General
Partner or such other Person as the General Partner may appoint pursuant to such
rules for the conduct of the meeting as the General Partner or such other Person
deems appropriate.
SECTION 10.03. Unanimous Consent. If the consent of the Partners is
required for any action to be taken by the Partnership, such consent may be
given at a meeting, which may be conducted by conference telephone call, or
provided in a writing executed by all of the Partners.
ARTICLE XI
TRANSFERS OF INTERESTS
SECTION 11.01. Restriction on Transfers. Except as otherwise
permitted under this Agreement, no Partner shall pledge or otherwise Transfer
all or any portion of its Interest.
SECTION 11.02. Permitted Transfers. (a) Terra Partners. Subject to
the conditions set forth in Section 11.03, a Terra Partner may at any time (i)
pledge all or any portion of its Interest to the agent, the lenders and the
other secured parties under the Terra Capital Loan Documents in accordance with
the terms thereof and (ii) otherwise Transfer all or any portion of its Interest
to (A) Terra or a Wholly Owned Subsidiary of Terra or (B) any other Person
approved by all of the other Partners (such consent not to be unreasonably
withheld).
(b) Class A Limited Partner. Subject to the conditions set forth in
Section 11.03, the Class A Limited Partner may pledge or otherwise Transfer all
or any portion of its Interest to any Person other than any of the Persons
specified on Schedule 11.02(b) attached hereto with the consent of the General
Partner, which consent shall not be unreasonably withheld or delayed; provided
that the General Partner shall be deemed to be reasonably withholding such
consent to any pledge or other Transfer (other than pursuant to the Credit
Facility) which imposes additional costs on the Partnership or on any of the
Terra Partners or any of their Affiliates. The General Partner shall have the
right from time to time to supplement Schedule 11.02(b) attached hereto to
include any other Person that it determines in good faith is a competitor of
Terra.
(c) Consent to Pledge of Interest of Class A Limited Partner. Each of
the Partners (other than the Class A Limited Partner) hereby acknowledges
notice, and consents to the terms and conditions, of the pledge and security
agreement related to the Credit Facility and the pledge of the Interest of the
Class A Limited Partner and the rights of the Class A Limited Partner under this
Agreement to the security agent and the lenders under the Credit Facility
pursuant to such pledge and security agreement, and hereby further consents and
agrees to any Transfer of such Interest or such rights made as a result of the
exercise by security agent for the Credit Facility of the rights and remedies
afforded to the security agent, the agent and the lenders under, and in
accordance with the terms of, such pledge and security agreement and the other
loan documentation for the Credit Facility (whether as a result of foreclosure
thereon or any other disposition thereof).
<PAGE>
30
(d) General. Any Transfer permitted under this Section 11.02 shall be
a "Permitted Transfer" for all purposes of this Agreement.
SECTION 11.03. Conditions to Permitted Transfers. A Transfer shall
only be treated as a Permitted Transfer under Section 11.02 upon the
satisfaction of the following conditions:
(a) (i) The transferor and transferee shall execute and deliver to the
Partnership such documents and instruments of conveyance as may be
necessary or appropriate in the opinion of counsel to the Partnership to
effect such Transfer and to confirm the agreement of the transferee to be
bound by the provisions of this Agreement and (ii) unless the requirement
of this clause (ii) has been waived by the General Partner, the transferee
shall execute and deliver to the Partnership a confidentiality agreement,
in substantially the form of Exhibit B attached hereto (a "Confidentiality
Agreement"). In addition, unless the requirements of this sentence have
been waived by the General Partner, the Partnership shall be reimbursed by
the transferor and/or transferee for all costs and expenses (including,
without limitation, reasonable fees and expenses of counsel) that it
reasonably incurs in connection with such Transfer.
(b) The Transfer shall not cause the Partnership to terminate, within
the meaning of Section 708(b)(1)(B) of the Code, for United States federal
income tax purposes, and, unless the General Partner has waived the
requirements of this Section 11.03(b) with respect to a Transfer by any
Limited Partner, the transferor shall provide the Partnership a favorable
opinion of counsel or a qualified tax advisor to such effect. Such counsel
or qualified tax advisor, as the case may be, and opinion shall be
reasonably satisfactory to the General Partner, and the General Partner and
the other Partners shall provide to such counsel or qualified tax advisor
any information available to the General Partner or such other Partners, as
the case may be, as is relevant to such opinion.
(c) The transferor and transferee shall furnish the Partnership with
the transferee's federal taxpayer identification number, sufficient
information to determine the transferee's initial tax basis in the
Interests Transferred and any other information reasonably necessary to
permit the Partnership to file all required federal and state tax returns
and other required information statements or returns. Without limiting the
generality of the foregoing, the Partnership shall not be required to make
any distribution otherwise provided for in this Agreement with respect to
any Transferred Interests until it has received such information.
(d) Such Transfer shall be exempt from all applicable registration
requirements and shall not violate any applicable laws regulating the
Transfer of securities, and, except in the case of a Transfer of Interests
to another Partner or to a Wholly Owned Subsidiary of the transferor or of
any other Partner, unless waived by the General Partner, the transferor
shall provide an opinion of counsel to such effect. Such counsel and
opinion shall be reasonably satisfactory to the General Partner.
(e) Such Transfer shall not cause the Partnership to be deemed to be
an "investment company" under the Investment Company Act of 1940, as
amended, and, unless waived by the General Partner, the transferor shall
provide an opinion of counsel to such effect. Such counsel
<PAGE>
31
and opinion shall be reasonably satisfactory to the General Partner, and
the General Partner and the other Partners shall provide to such counsel
any information available to the General Partner or to such other Partners,
as the case may be, as is relevant to such opinion.
(f) If the transferor is the General Partner, the transferor and
transferee shall provide the Partnership with an opinion of counsel to the
effect that such Transfer will not cause the Partnership to become taxable
as a corporation for federal income tax purposes. Such counsel and opinion
shall be reasonably satisfactory to the other Partners.
(g) If the transferor is the Class A Limited Partner, unless waived by
the General Partner, the Class A Limited Partner and the transferee of the
Class A Limited Partner shall execute certificates, in substantially the
forms of Exhibits C and D attached hereto, respectively (the "Transferor
Certificate" and the "Transferee Certificate", respectively).
SECTION 11.04. Prohibited Transfers. (a) Any purported Transfer of
Interests that is not a Permitted Transfer shall be null and void and of no
effect whatever; provided that, if the Partnership is required to recognize a
Transfer that is not a Permitted Transfer (or if the General Partner, in its
sole discretion, elects to recognize a Transfer that is not a Permitted
Transfer), the Interest Transferred shall be strictly limited to the
transferor's rights to allocations and distributions as provided under this
Agreement with respect to such Transferred Interests, which allocations and
distributions may be applied (without limiting any other legal or equitable
rights of the Partnership) to satisfy any debts, obligations or liabilities for
damages that the transferor or transferee of such Interests may have to the
Partnership.
(b) In the case of a Transfer or attempted Transfer that is not a
Permitted Transfer, the parties engaging or attempting to engage in such
Transfer shall indemnify and hold harmless the Partnership and each of the other
Partners from any and all claims, damages, losses, liabilities and expenses that
the Partnership or any such other Partner may incur (including, without
limitation, incremental tax liability and fees and expenses of counsel) as a
result of such Transfer or attempted Transfer and any efforts to enforce the
indemnity granted under this Section 11.04(b).
SECTION 11.05. Admission as Substitute Partners. Subject to the
other provisions of this Article XI, a transferee of Interests may be admitted
to the Partnership as a substitute Partner only upon satisfaction of the
following conditions:
(a) If such transferee acquired its interest from a Class A Limited
Partner, the General Partner shall consent to such admission, which consent
shall not be unreasonably withheld or delayed;
(b) The Interests with respect to which the transferee is being
admitted shall be acquired by means of a Permitted Transfer;
(c) The transferee shall become a party to this Agreement as a Partner
and shall execute such documents and instruments as the General Partner may
reasonably request (including, without limitation, amendments to the
Certificate) as may be necessary or appropriate to confirm
<PAGE>
32
such transferee as a Partner in the Partnership and the agreement of such
transferee to be bound by the terms and conditions of this Agreement;
(d) Unless waived by the General Partner, the transferee shall pay or
reimburse the Partnership for all reasonable legal, filing and publication
costs that the Partnership incurs in connection with the admission of the
transferee as a Partner with respect to the Transferred Interests;
(e) Unless waived by the General Partner, if the transferee is a
Person other than an individual, the transferee shall provide the
Partnership with evidence satisfactory to counsel for the Partnership that
such transferee has made each of the representations and warranties
contained in Section 8.02 or 8.03, as applicable, as of the date of the
Transfer; and
(f) If the transferee of an Interest is admitted under this Agreement,
such transferee shall be deemed admitted to the Partnership as a substitute
Partner immediately prior to the Transfer, and with respect to the
transferee of a General Partner, such transferee shall continue the
business of the Partnership without dissolution.
SECTION 11.06. Rights of Unadmitted Assignees. (a) General. A
Person who acquires one or more Interests but who is not admitted as a
substitute Partner pursuant to Section 11.05 shall be entitled only to
allocations and distributions with respect to such Interests in accordance with
this Agreement, but shall have no right to any information or accounting of the
affairs of the Partnership, shall not be entitled to inspect the books or
records of the Partnership and shall not have any of the rights of a Partner
under the Act or this Agreement.
(b) General Partners. A transferee who acquires an Interest from a
General Partner under this Agreement by means of a Transfer that is permitted
under this Article XI, but who is not admitted as a General Partner, shall have
no authority to act for or bind the Partnership or otherwise to be treated as a
General Partner. Following such a Transfer, the transferor shall not cease to
be a General Partner of the Partnership and shall continue to be a General
Partner until such time as the transferee is admitted as a General Partner.
(c) Limited Partners. Following a transfer to a transferee who
acquires an Interest from a Limited Partner under this Agreement by means of a
Transfer that is permitted under this Article XI, but who is not admitted as a
Limited Partner, the transferor shall not cease to be a Limited Partner of the
Partnership and shall continue to be a Limited Partner until such time as the
transferee is admitted as a Limited Partner under this Agreement.
SECTION 11.07. Distributions with Respect to Transferred Interests.
If any Interest is sold, assigned or otherwise Transferred in compliance with
the provisions of this Article XI, all distributions made on or before the date
of such Transfer shall be made to the transferor, and all distributions made
after such date shall be made to the transferee. Solely for purposes of making
such distributions, the Partnership shall recognize such Transfer not later than
the end of the calendar month during which it is given notice of such Transfer;
provided, however, that if the Partnership is given notice of a Transfer at
least 14 days prior to the Transfer, the Partnership shall recognize such
Transfer as of the
<PAGE>
33
date of such Transfer; and provided further, however, that if the Partnership
does not receive a notice stating the date such Interest was Transferred and
such other information as the General Partner may reasonably require within 30
days after the end of the accounting period during which the Transfer occurs,
all distributions shall be made to the Person who, according to the books and
records of the Partnership, was the owner of the Interest on the last day of the
accounting period during which the Transfer occurs. Neither the Partnership nor
the General Partner shall incur any liability for making distributions in
accordance with the provisions of this Section 11.07, whether or not the General
Partner or the Partnership has knowledge of any Transfer of any Interest.
SECTION 11.08. Retirement of Partners' Interest in the Partnership.
[Confidential material has been omitted pursuant to a request for confidential
treatment filed with the Commission under Rule 24b-2(b) and has been filed
separately with the Commission.]
ARTICLE XII
GENERAL PARTNER
SECTION 12.01. Covenant Not to Withdraw, Transfer or Dissolve.
Except as otherwise permitted by this Agreement, the General Partner hereby
covenants and agrees not to (a) take any action to file a certificate of
dissolution or its equivalent with respect to itself, (b) withdraw or attempt to
withdraw from the Partnership other than as a result of distributions made under
Section 11.08 in retirement of its entire Interest, (c) exercise any power under
the Act to dissolve the Partnership, (d) Transfer all or any portion of its
Interest in the Partnership as a General Partner, except pursuant to the
applicable provisions of Article XI (and only so long as a substitute General
Partner is admitted pursuant to Section 11.05 at or prior to such time) or (e)
petition for judicial dissolution of the Partnership. Furthermore, the General
Partner hereby covenants and agrees to continue to carry out its duties as
General Partner under this Agreement until a substitute General Partner is
admitted pursuant to Section 11.05 or the Partnership is dissolved and
liquidated pursuant to Article XIII.
SECTION 12.02. Termination of Status as General Partner. (a) A
General Partner shall cease to be a General Partner upon the earliest to occur
of: (i) the retirement of its entire Interest in accordance with Section 11.08;
(ii) the Bankruptcy of the General Partner; (iii) the Transfer of the General
Partner's entire Interest as a General Partner pursuant to Section 11.02 (so
long as a substitute General Partner is admitted pursuant to Section 11.06 at or
prior to such time); (iv) the involuntary Transfer by operation of law of such
General Partner's Interest; (v) the vote of all of the other Partners to approve
a request by such General Partner to withdraw; or (vi) the vote of the Class A
Limited Partner to remove such General Partner after such General Partner has
attempted to make a Transfer of its Interest that is not permitted under Section
11.02. If, at any time, a Person ceases to be a General Partner without having
Transferred its entire Interest as a General Partner, such Person shall be
treated as an unadmitted transferee of an Interest as a result of a Transfer
(other than a Permitted Transfer) pursuant to Section 11.04. If a Person who is
General Partner ceases to be a General Partner for any reason under this
Agreement, such Person shall continue to be liable as a Partner for all debts,
obligations and liabilities of the Partnership existing at the time such Person
ceases to be a General Partner, regardless of whether, at such time, such debts,
obligations or liabilities were known or unknown, actual or contingent, unless
the substitute General Partner therefor has unconditionally agreed to be liable
for all such debts, obligations and liabilities to the
<PAGE>
34
same extent as if such substitute General Partner had itself incurred such
debts, obligations and liabilities. A Person shall not be liable as a General
Partner for debts, obligations or liabilities of the Partnership arising after
such Person ceases to be a General Partner. Any debts, obligations or
liabilities to the Partnership of any Person who ceases to be a General Partner
shall be collectible by any legal means, and the Partnership is authorized, in
addition to any other remedies it may have at law or in equity, to apply any
amounts otherwise distributable or payable by the Partnership to such Person to
satisfy such debts, obligations or liabilities.
(b) It is the intention of the Partners that the Partnership not
dissolve as a result of the cessation of any General Partner's status as a
General Partner; provided, however, that if it is determined by a court of
competent jurisdiction that the Partnership has dissolved, the provisions of
Section 13.01 shall govern.
(c) If at the time a Person ceases to be a General Partner, such
Person is also a Limited Partner with respect to Interests other than its
Interest as a General Partner, such cessation shall not affect such Person's
rights and obligations with respect to its Interests as a Limited Partner.
ARTICLE XIII
DISSOLUTION AND WINDING UP
SECTION 13.01. Liquidation. (a) Terminating Events. The
Partnership shall dissolve and commence winding up and liquidating upon, and
only upon, the occurrence of a Terminating Event.
(b) Notice Events. [Confidential material has been omitted pursuant to
a request for confidential treatment filed with the Commission under Rule 24b-
2(b) and has been filed separately with the Commission.]
SECTION 13.02. Winding Up. (a) Upon the occurrence of a Terminating
Event, the Partnership shall continue solely for the purposes of winding up its
affairs in an orderly manner, liquidating its assets and satisfying the claims
of its creditors and Partners, and no Partner shall take any action with respect
to the Partnership that is inconsistent with the winding up of the Partnership's
business and affairs; provided that all covenants of the Partners contained in
this Agreement and all obligations of the Partners provided for in this
Agreement shall continue to be fully binding upon the Partners until such time
as the Partnership Property has been distributed pursuant to this Section 13.02
and the Certificate has been canceled pursuant to the Act. The Liquidator shall
be responsible for overseeing the winding up and dissolution of the Partnership.
The Liquidator shall take full account of the Partnership's liabilities and all
of the Partnership Property and, except as otherwise provided in Section 13.03,
shall, within 90 days of the occurrence of a Terminating Event, cause the
Partnership Property or the proceeds from the sale, lease, transfer or other
disposition thereof (as determined pursuant to Section 13.08), to the extent
sufficient therefor, to be applied and distributed, to the maximum extent
permitted by applicable law and notwithstanding anything in this Agreement to
the contrary, in the following order of priority:
<PAGE>
35
(i) First, to creditors other than the Terra Partners (including, to
the extent otherwise permitted by applicable law, the Class A Limited
Partner to the extent such Partner is a creditor), in satisfaction of all
of the Partnership's debts and liabilities other than debts and liabilities
for which reasonable provision for payment has been made and liabilities
for distributions to Partners under Section 17-601 or 17-604 of the Act;
(ii) Second,[Confidential material has been omitted pursuant to a
request for confidential treatment filed with the Commission under Rule
24b-2(b) and has been filed separately with the Commission.]
(iii) Third, to the payment and discharge of all of the Partnership's
debts and liabilities to the Terra Partners, Ratably, to the extent
adequate provision therefor has not been made; and
(iv) Fourth, to the Partners in accordance with their positive Capital
Accounts on the applicable Measurement Date, after giving effect to all
contributions, distributions and allocations for all periods.
If any payment or distribution made under this Section 13.02 is made in-kind,
the amount of the payment or distribution shall be equal to the Mark-to-Market
Value of the Partnership Property paid or distributed at the time of such
payment or distribution.
(b) No General Partner shall receive any additional compensation for
any services performed pursuant to this Article XIII.
(c) Each of the Terra Partners understands and hereby agrees that, by
accepting the provisions of this Section 13.02 setting forth the priority of the
distribution of the Partnership Property to be made upon its liquidation, it
expressly waives any right or claim which it might otherwise have as a creditor
of the Partnership under the Act to receive distributions of the Partnership
Property pari passu with the other creditors of the Partnership in connection
with a distribution of the Partnership Property in satisfaction of any liability
of the Partnership, and each of the Terra Partners hereby subordinates any such
right or claim to all such creditors of the Partnership.
(d) If (i) the Termination Event giving rise to the dissolution and
liquidation of the Partnership is the occurrence of the Notice Event described
in clause (s) of the definition of "Notice Event" and (ii) the amount received
in such liquidation on account of the Ammonia Loop is less than the Mark-to-
Market Value of the Ammonia Loop, the Terra Partners shall promptly pay to the
Class A Limited Partner the amount, if any, by which (A) the amount received by
the Class A Limited Partner pursuant to Section 13.02(a)(iv) above, is less than
(B) the amount the Class A Limited Partner would have received pursuant to
Section 13.02(a)(iv) above if such amount was calculated using the Mark-to-
Market Value of the Ammonia Loop rather than the amount actually received in
such liquidation on account of the Ammonia Loop.
SECTION 13.03. Restoration of Deficit Capital Accounts; Compliance
with Timing Requirements of Regulations. (a) If the Partnership is
"liquidated" within the meaning of Section 1.704-1(b)(2)(ii)(g) of the
Regulations, (i) distributions shall be made pursuant to this Article XIII
<PAGE>
36
to the Partners who have positive balances in their Capital Accounts in
compliance with Section 1.704-1(b)(2)(ii)(b)(2) of the Regulations and (ii) if
the General Partner Capital Account has a deficit balance in its Capital Account
(after giving effect to all contributions, distributions and allocations for all
taxable years, including the taxable year during which such liquidation occurs),
such General Partner shall contribute to the capital of the Partnership the
amount necessary to restore such deficit balance to zero in compliance with
Section 1.704-1(b)(2)(ii)(b)(3) of the Regulations. If any Limited Partner has a
deficit balance in its Capital Account (after giving effect to all
contributions, distributions and allocations for all taxable years, including
the taxable year during which such liquidation occurs), such Limited Partner
shall have no obligation to make any contribution to the capital of the
Partnership with respect to such deficit, and such deficit shall not be
considered a debt owed to the Partnership or to any other Person for any purpose
whatsoever.
(b) In the discretion of the Liquidator, with the consent of the Class
A Limited Partner, a portion (determined in the manner provided below) of the
distributions that would otherwise be made to the Partners pursuant to this
Article XIII may be:
(i) Distributed to a trust established for the benefit of the Partners
solely for the purposes of liquidating Partnership Property, collecting
amounts owed to the Partnership and paying any contingent or unforeseen
liabilities or obligations of the Partnership or of the General Partner
arising out of or in connection with the Partnership. The property and
assets of any such trust shall be distributed to the Partners from time to
time, in the reasonable discretion of the Liquidator, in the same
proportions (as determined in the manner provided below) as the amount
distributed to such trust by the Partnership would otherwise have been
distributed to the Partners pursuant to Section 13.02; or
(ii) Withheld to provide a reasonable reserve for Partnership debts
and liabilities (contingent or otherwise) and to allow for the collection
of the unrealized portion of any installment obligations owed to the
Partnership; provided that such withheld amounts shall be distributed to
the Partners as soon as practicable.
The portion of the distributions that would otherwise have been made to each of
the Partners that is instead distributed to a trust pursuant to Section 13.03(i)
or withheld to provide a reserve pursuant to Section 13.03(ii) shall be
determined in the same manner as the expense or deduction would have been
allocated if the Partnership had realized an expense equal to the amount of such
distributions immediately prior to any distributions being made pursuant to
Section 13.02.
SECTION 13.04. Deemed Contribution and Liquidation. If the
Partnership is liquidated within the meaning of Section 1.704-1(b)(2)(ii)(g) of
the Regulations and no Terminating Event has occurred and is continuing, the
Partnership Property shall not be liquidated, the Partnership's debts and
liabilities shall not be paid or discharged (except to the extent due and
payable in the ordinary course) and the Partnership's affairs shall not be wound
up. Instead, solely for federal income tax purposes, the Partnership shall be
deemed to have contributed the Partnership Property in-kind to a "new
partnership", which shall be deemed to have taken the Partnership Property
subject to all debts and liabilities of the Partnership. Immediately
thereafter, the Partnership shall be deemed to have been liquidated,
distributing
<PAGE>
37
new partnership interests to the Partners, all in accordance with
their respective Capital Accounts. The new partnership shall operate in
accordance with this Agreement.
SECTION 13.05. Rights of Partners. Each Partner shall look solely to
the Partnership Property for the return of its Capital Contribution and, except
as otherwise provided in this Article XIII, shall have no right or power to
demand or receive Partnership Property other than cash from the Partnership.
SECTION 13.06. Notice of Dissolution. If a Terminating Event has
occurred and is continuing, the General Partner shall, within 30 days
thereafter, provide notice thereof to each of the other Partners and to all
other parties with whom the Partnership regularly conducts business (as
determined in the discretion of the General Partner) and shall publish notice
thereof in a newspaper of general circulation in each place in which the
Partnership regularly conducts business (as determined in the discretion of the
General Partner).
SECTION 13.07. The Liquidator. (a) Fees. If the Liquidator is a
Person other than a General Partner, the Partnership is authorized to pay a
reasonable fee to the Liquidator for services performed thereby pursuant to this
Article XIII and to reimburse the Liquidator for its reasonable out-of-pocket
costs and expenses incurred in performing those services.
(b) Indemnification. Subject to Section 6.05(d), if the Liquidator is
a Person other than a General Partner, the Partnership, or in the event that the
Partnership has terminated, the General Partner, shall indemnify and hold
harmless the Liquidator and each of its officers, directors, agents, employees
representatives and advisors from any and all claims, damages, losses,
liabilities and expenses arising out of or relating to any action taken or
omitted to be taken by the Liquidator or any such officer, director, agent,
employee, representative or advisor in connection with the liquidation of the
Partnership (including reasonable fees and expenses of counsel incurred by the
Liquidator or any such officer, director, agent, employee, representative or
advisor in connection with the defense of any action or proceeding based on any
such action or omission, which fees and expenses of counsel may be paid as
incurred), except to the extent that any such claim, damage, loss, liability or
expense has resulted from the fraud, willful misconduct or gross negligence of
the Liquidator or any such officer, director, agent, employee, representative or
advisor.
SECTION 13.08. Form of Liquidating Distributions. (a) General.
Except as provided in this Section 13.08, for purposes of making distributions
required by Section 13.02, the Liquidator may determine whether to distribute
all or any portion of the Partnership Property in-kind or to sell, assign,
transfer or otherwise dispose of all or any portion of the Partnership Property
and distribute the proceeds therefrom; provided, however, that the Liquidator
(i) shall not distribute Partnership Property other than cash to the Class A
Limited Partner without the consent of the Class A Limited Partner and (ii)
shall be required to reduce the Partnership Property to cash to the extent
necessary to make distributions in cash to the Class A Limited Partner pursuant
to Section 13.02 unless the Class A Limited Partner otherwise agrees.
[Confidential material has been omitted pursuant to a request for confidential
treatment filed with the Commission under Rule 24b-2(b) and has been filed
separately with the Commission.]
<PAGE>
38
ARTICLE XIV
POWER OF ATTORNEY
SECTION 14.01. General Partner as Attorney-In-Fact. Each Partner
hereby makes, constitutes and appoints the General Partner and the Liquidator,
severally, with full power of substitution and resubstitution, its true and
lawful attorney-in-fact for it and in its name, place and stead and for its use
and benefit, to sign, execute, certify, acknowledge, swear to, file, publish and
record:
(a) All certificates of limited partnership, amended name or similar
certificates and other certificates and instruments (including counterparts
of this Agreement) which the General Partner or Liquidator may deem
necessary to be filed by the Partnership under the laws of the State of
Delaware or any other jurisdiction in which the Partnership is doing or
intends to do business;
(b) Any and all amendments, restatements, supplements or other
modifications to this Agreement and the instruments described in clause (a)
of this Section 14.01, as now or hereafter amended, which the General
Partner may deem necessary to effect a change in or modification to the
Partnership approved by the Partners in accordance with the terms of this
Agreement, including, without limitation, amendments, restatements or
changes to reflect (i) the exercise by the General Partner of any power
granted to it under this Agreement, (ii) any amendments adopted by the
Partners in accordance with the terms of this Agreement, (iii) the
admission of any substitute Partner and (iv) the disposition by any Partner
of its Interest;
(c) All certificates of cancellation and other instruments which the
General Partner or the Liquidator deem necessary or appropriate to effect
the liquidation, winding up, dissolution or termination of the Partnership
pursuant to the terms of this Agreement; and
(d) Any other instrument which is now or may hereafter be required
under applicable law to be filed on behalf of the Partnership or is deemed
necessary by the General Partner or the Liquidator to carry out fully the
provisions of this Agreement in accordance with its terms (including,
without limitation, in the case of the General Partner, executing the
documents described in Section 6.02(b)).
Each Partner (A) hereby authorizes each such attorney-in-fact to take any
further action which such attorney-in-fact shall consider necessary or
appropriate in connection with any of the foregoing provisions of this Section
14.01, (B) hereby gives each such attorney-in-fact full power and authority to
do and perform each and every act required to be done in connection with any of
the foregoing provisions of this Section 14.01 as fully as such Partner might or
could do personally, and (C) hereby ratifies and confirms all that any such
attorney-in-fact shall lawfully do or cause to be done by virtue thereof or
hereof.
SECTION 14.02. Nature of Special Power. The power of attorney
granted pursuant to Section 14.01:
<PAGE>
39
(a) Is a special power of attorney coupled with an interest and is
irrevocable;
(b) May be exercised by any such attorney-in-fact by listing the
Partners executing any agreement, certificate, instrument or other document
with the single signature of any such attorney-in-fact acting as attorney-
in-fact for such Partners; and
(c) Shall survive and not be affected by the subsequent Bankruptcy,
insolvency, liquidation, winding up, dissolution or cessation of the
existence of a Partner, and shall survive the delivery of an assignment by
a Partner of all or a portion of its Interest (except that where the
assignment is of such Partner's entire Interest and the assignee, with the
consent of the General Partner, is admitted as a substitute Partner, the
power of attorney shall survive the delivery of such assignment for the
sole purpose of enabling any such attorney-in-fact to effect such
substitution) and shall extend to such Partner's or assignee's successors
and assigns.
ARTICLE XV
MISCELLANEOUS
SECTION 15.01. Notices. Any notice, payment, demand or communication
required or permitted to be given by any provision of this Agreement shall be in
writing and shall be deemed to have been delivered, given and received for all
purposes (a) upon delivery, if delivered personally to the Person or to an
officer of the Person to whom the same is directed, or (b) when the same is
actually received, if sent either by registered or certified mail, postage and
charges prepaid, or by facsimile, if such facsimile is followed by a hard copy
of the facsimilied communication sent by registered or certified mail, postage
and charges prepaid, addressed as follows:
(i) If to the Partnership, to
Beaumont Methanol, Limited Partnership
Highway 347
Beaumont, Texas 77775
Telecopier No.: (409) 723-1990
Attention: Plant Manager,
with a copy sent to:
Terra Capital, Inc.
600 Fourth Street
Sioux City, Iowa 51102
Telecopier No.: (712) 279-8703
Attention: Chief Financial Officer,
and to the General Partner at its address set forth in subclause (ii)
of this Section 15.01;
(ii) If to the General Partner, to
Terra Methanol Corporation
600 Fourth Street
<PAGE>
40
Sioux City, Iowa 51102
Telecopier No.: (712) 279-8719
Attention: General Counsel;
(iii) If to the Class B Limited Partner, to
BMC Holdings, Inc.
600 Fourth Street
Sioux City, Iowa 51102
Telecopier No.: (712) 279-8719
Attention: General Counsel; and
(iv) If to the Class A Limited Partner, to
Nova Products LLC
890 Clinton Square
Rochester, New York 14604
Telecopier No.: (716) 325-8086
Attention: Mr. Douglas D. Stark,
with a copy sent to:
Nixon, Hargrave, Devans & Doyle LLP
Clinton Square, P.O. Box 1051
Rochester, New York 14603
Telecopier No.: (716) 263-1600
Attention: Scott F. Cristman, Esq.
Any Person may from time to time specify a different address by notice to the
Partnership and the other Partners.
SECTION 15.02. Binding Effect. Except as otherwise provided in this
Agreement, every covenant, term and provision of this Agreement shall be binding
upon and inure to the benefit of the Partners and their respective successors,
transferees and assigns.
SECTION 15.03. Construction. Every covenant, term and provision of
this Agreement shall be construed simply according to its fair meaning and not
strictly for or against any Partner.
SECTION 15.04. Headings. Section and other headings contained in
this Agreement are for reference purposes only and are not intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement or any
provision of this Agreement.
SECTION 15.05. Severability. Every term and provision of this
Agreement is intended to be severable, and, if any term or provision of this
Agreement is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the legality or validity of the remainder of this
Agreement. The immediately preceding sentence of this Section 15.05 shall be of
no force or effect if the consequence of enforcing the remainder of this
Agreement without such illegal or invalid term or provision would be to cause
any Partner to lose the benefit of its economic bargain.
<PAGE>
41
SECTION 15.06. Governing Law. The laws of the State of Delaware
shall govern the validity of this Agreement, the construction of its terms and
the interpretation of the rights and duties of the Partners.
SECTION 15.07. Waiver of Action for Partition. Each Partner
irrevocably waives any right that it may have to maintain any action for
partition with respect to any of the Partnership Property.
SECTION 15.08. Consent to Jurisdiction. Each Partner hereby (a)
irrevocably submits to the jurisdiction of any New York state or Delaware state
court or federal court sitting in New York County, New York, or Wilmington,
Delaware in any action or proceeding arising out of this Agreement, (b) agrees
that all claims in such action may be decided in such court, (c) waives, to the
fullest extent it may effectively do so, the defense of an inconvenient forum
and (d) consents to the service of process by mail. A final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions. Nothing herein shall affect the right of any Partner to serve
legal process in any manner permitted by applicable law or affect its right to
bring any action or proceeding in the courts of any jurisdiction.
SECTION 15.09. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different Partners in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 15.10. Treatment as Security. The Partnership and the
Partners intend that the Class A Limited Partnership Interest and each of the
other Interests is a "security" governed by Article 8 of the Delaware Uniform
Commercial Code, 6 Del. C. (S)1-101 et seq., within the meaning of (S)8-
102(a)(15) thereof, the transfer of which may be registered upon the books
maintained for such purpose by the Partnership.
SECTION 15.11. Waiver of Jury Trial. Each of the Partners hereby
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Agreement, any other Transaction Document, any documents
delivered pursuant to the terms of this Agreement or any of the other
Transaction Documents, or any of the transactions contemplated hereby or
thereby.
<PAGE>
42
IN WITNESS WHEREOF, the parties have entered into this Second Amended
and Restated Agreement of Limited Partnership as of the day first above written.
THE GENERAL PARTNER
TERRA METHANOL CORPORATION
By________________________
Name:
Title:
THE CLASS B LIMITED PARTNER
BMC HOLDINGS, INC.
By________________________
Name:
Title:
THE CLASS A LIMITED PARTNER
NOVA PRODUCTS LLC
By: STONEHURST CAPITAL L.L.C.,
as Managing Member
By: STONEHURST CAPITAL, INC.,
as Manager
By________________________________
Name:
Title:
THIS IS A SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF BEAUMONT METHANOL, LIMITED PARTNERSHIP, AND IS EXECUTED BY THE
PARTIES NAMED ABOVE.
<PAGE>
APPENDIX TO SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF BEAUMONT METHANOL, LIMITED PARTNERSHIP
DEFINITIONS
-----------
"Act" means the Delaware Revised Uniform Limited Partnership Act, as
set forth in Del. Code Ann. Tit. 6, (S)(S) 17-101 to 17-1109, as amended from
time to time.
"Additional Capital Contributions" means, with respect to each
Partner, the Capital Contributions made by such Partner pursuant to Section
3.03.
"Adjusted Capital Account" means, with respect to each Partner for any
Allocation Year, the Capital Account of such Partner as of the last day of such
Allocation Year, after giving effect to the following adjustments:
(a) Such Capital Account shall be credited for any amounts which such
Partner is obligated to restore pursuant to any provision of this Agreement
or is deemed to be obligated to restore pursuant to the penultimate
sentences of Sections 1.704-1(g)(1) and 1.704-2(i)(5) of the Regulations;
and
(b) Such Capital Account shall be debited for all of the items
described in Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and
1.704-1(b)(2)(ii)(d)(6) of the Regulations.
"Adjusted Capital Account Deficit" means, with respect to each Limited
Partner, the deficit balance, if any, in such Limited Partner's Capital Account
as of the end of the relevant Allocation Year, after giving effect to the
following adjustments:
(a) Such Capital Account shall be credited for any amounts which such
Limited Partner is obligated to restore pursuant to any provision of this
Agreement or is deemed to be obligated to restore pursuant to the
penultimate sentences of Sections 1.704-1(g)(1) and 1.704-2(i)(5) of the
Regulations; and
(b) Such Capital Account shall be debited for all of the items
described in Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and
1.704-1(b)(2)(ii)(d)(6) of the Regulations.
This definition is intended to comply with the provisions of Section 1.704-
1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently
therewith.
"Adjusted Eurodollar Rate" means, for any Current Period, a rate per
annum equal to the rate obtained by dividing (a) the Eurodollar Rate for such
Current Period by (b) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such Current Period.
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person or is a director, officer, partner or member of such Person.
For purposes of this definition, the term "control" (including the terms
"controlling", "controlled by" and "under common control with") of a Person
means the possession, direct
<PAGE>
2
or indirect, of the power to vote 20% or more of the Voting Interests of such
Person or to direct or cause the direction of the management and policies of
such Person, whether through the ownership of Voting Interests, by contract or
otherwise.
"After-Tax Basis" means, with respect to any payment to any Person,
the amount of such payment (the "base payment") supplemented by a further
payment (the "gross-up amount") to such Person so that the sum of the base
payment and the gross-up amount, after deduction of the amount of all taxes
actually required to be paid by such Person in respect of the receipt or accrual
of the base payment and gross-up amount (and after taking into account all
credits or deductions (collectively, the "tax benefits") realized from (i) the
payment by the indemnified Person of any amount giving rise to the obligation to
make the base payment and (ii) the payment by the indemnified Person of taxes
that the gross-up amount is intended to pay), shall be equal to the amount
required to be received on an "After-Tax Basis". Such calculations shall be made
on the basis of the assumptions that for such Person or any Affiliate thereof,
(A) federal taxes are payable at the highest marginal rate applicable to such
Person or any such Affiliate for the relevant period or periods and (B) state
and local taxes are payable at a rate equal to 5% (after taking into account the
federal tax benefits attributable to such state and local taxes).
"Agreement" means this Second Amended and Restated Agreement of
Limited Partnership, as further amended, supplemented or otherwise modified
hereafter from time to time. All references in this Agreement to any "Article",
"Section", "Schedule" or "Exhibit" are, unless otherwise specified, to an
Article, a Section, a Schedule or an Exhibit of or to this Agreement.
"Allocation Year" means (a) the period commencing on the Closing Date
and ending on December 31, 1997, (b) except as otherwise required under Section
706 of the Code, any subsequent 12-month period commencing on January 1 and
ending on the next succeeding December 31 and (c) any portion of the period
described in clause (a) or (b) of this definition for which the Partnership is
required to allocate Profits, Losses and other items of Partnership income,
gain, loss or deduction pursuant to Article IV.
"Alternate Appraiser" has the meaning specified in Section
4.09(b)(i)(B).
"Alternate Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be equal to
the highest of:
(a) the rate of interest announced publicly by the Rate Determination
Bank in New York, New York from time to time, as the Rate Determination
Bank's base rate or prime rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no
nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1% per annum
plus (ii) the rate obtained by dividing (A) the latest three-week moving
average of secondary market morning offering rates in the United States of
America for three-month certificates of deposit of major United States
money center banks, such three-week moving average (adjusted to the basis
of a year of 360 days) being determined weekly on each Monday (or, if such
day is not a Business Day, on the next succeeding Business Day) for the
three-week period ending on the previous Friday by the Rate Determination
Bank on the basis of such rates reported by certificate of deposit dealers
to and published by the
<PAGE>
3
Federal Reserve Bank of New York or, if such publication shall be suspended
or terminated, on the basis of quotations for such rates received by the
Rate Determination Bank from three New York certificate of deposit dealers
of recognized standing selected by the Rate Determination Bank, by (B) a
percentage equal to 100% minus the average of the daily percentages
specified during such three-week period by the Board of Governors of the
Federal Reserve System (or any successor thereto) for determining the
maximum reserve requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for the Rate
Determination Bank with respect to liabilities consisting of or including
(among other liabilities) three-month U.S. dollar nonpersonal time deposits
in the United States of America plus (iii) the average during such three-
week period of the annual assessment rates estimated by the Rate
Determination Bank for determining the then current annual assessment rate
payable by the Rate Determination Bank to the Federal Deposit Insurance
Corporation (or any successor thereto) for insuring U.S. dollar deposits of
the Rate Determination Bank in the United States of America; and
(c) 1/2 of 1% per annum above the Federal Funds Rate.
"Ammonia Loop" means the ammonia loop facility that will be
constructed as an extension of the Methanol Plant pursuant to the Engineering,
Procurement and Construction Agreement dated as of October 20, 1997 between
Terra Nitrogen Corporation, a Delaware corporation and a Wholly Owned Subsidiary
of Terra Capital, and Foster Wheeler USA Corporation, a Delaware corporation, as
amended, supplemented or otherwise modified from time to time hereafter in
accordance with the terms thereof.
"Applicable Amounts" has the meaning specified in the definition of
"Early Termination Premium" set forth below in this Appendix.
"Appraisal Guidelines" means the guidelines set forth on Schedule II
attached hereto which have been established for appraising the fair market value
of the Methanol Plant and the Methanol Related Assets and/or the Ammonia Loop.
"Appraiser" has the meaning specified in Section 4.09(b)(i)(B).
"Asset Value" means, with respect to any Partnership Property, the
adjusted basis of such Partnership Property for United States federal income tax
purposes, except as follows:
(a) The initial Asset Value of any Partnership Property contributed to
the Partnership pursuant to Sections 3.01 and 3.02 shall be as set forth in
Section 4.09(a);
(b) The Asset Values of all Partnership Property shall be adjusted to
equal their respective values, as determined in accordance with Section
4.09(b) (or, in the case of cash, shall be its face amount) on the date
specified in Section 4.09(b), upon the following events: (i) the
distribution by the Partnership to a Partner of more than a de minimis
amount of Partnership Property as consideration for an Interest and (b) the
liquidation of the Partnership within the meaning of Section 1.704-
1(b)(2)(ii)(g) of the Regulations;
<PAGE>
4
(c) The Asset Value of any Partnership Property distributed to any
Partner shall be adjusted to equal the value of such Partnership Property,
as determined in accordance with Section 4.09(b) (or, in the case of cash,
shall be its face amount) on the date specified in Section 4.09(b), or, if
the distribution is made pursuant to Section 13.02, on the date of such
distribution; and
(d) The Asset Values of all Partnership Property shall be increased
(or decreased) to reflect any adjustments to the adjusted basis of such
Partnership Property pursuant to Section 734(b) or 743(b) of the Code, but
only to the extent that such adjustments are taken into account in
determining Capital Accounts pursuant to Section 1.704-1(b)(2)(iv)(m) of
the Regulations and clause (d) of the definition of "Profits" and "Losses"
set forth below in this Appendix or Section 4.03(g); provided, however,
that Asset Values shall not be adjusted pursuant to this clause (d) to the
extent that an adjustment pursuant to clause (b) is required in connection
with a transaction that would otherwise result in an adjustment pursuant to
this clause (d).
If the Asset Value of any Partnership Property has been determined or adjusted
pursuant to clause (a), (b) or (d) of this definition, such Asset Value shall
thereafter be adjusted by the Depreciation taken into account with respect to
such Partnership Property for purposes of the allocations made pursuant to
Article IV.
"BAI" means Beaumont Ammonia, Inc., a Delaware corporation and Wholly
Owned Subsidiary of Terra U.K. Holdings, the principal business of which shall
be the construction and operation of the Ammonia Loop.
"Bankruptcy" means, collectively, a Voluntary Bankruptcy or an
Involuntary Bankruptcy.
"Business Day" means a day on which banks are not required or
authorized to close in New York, New York, and, if the applicable Business Day
relates to the computation of the Eurodollar Rate, a day on which dealings are
carried on in the London interbank market.
"Capital Account" means, with respect to any Partner, the Capital
Account maintained for such Partner in accordance with the following provisions:
(a) To each Partner's Capital Account there shall be credited (i) such
Partner's Capital Contributions, (ii) such Partner's distributive share of
Profits and any items of Partnership income or gain which are specially
allocated pursuant to Section 4.03 or 4.04 and (iii) the amount of any
Partnership debts or liabilities assumed by such Partner or secured by any
Partnership Property distributed to such Partner.
(b) From each Partner's Capital Account there shall be debited (i) the
amount of cash and the Asset Value of any Partnership Property distributed
to such Partner pursuant to any provision of this Agreement, (ii) such
Partner's distributive share of Losses and any items of Partnership losses
or deductions which are specially allocated pursuant to Section 4.03 or
4.04 and (iii) the amount of any debts or liabilities of such Partner
assumed by the Partnership or secured by any property or assets contributed
by such Partner to the Partnership.
<PAGE>
5
(c) If all or a portion of an Interest is Transferred in accordance
with the terms of Article XI, the transferee shall succeed to the Capital
Account of the transferor to the extent it relates to the Interest
Transferred.
(d) In determining the amount of any debt or liability for purposes
of clause (a) or (b) of this definition, Section 752(c) of the Code and any
other applicable provisions of the Code and the Regulations shall be taken
into account.
The foregoing provisions of this definition and the other provisions of this
Agreement relating to the maintenance of Capital Accounts are intended to comply
with Section 1.704-1(b) of the Regulations and shall be interpreted and applied
in a manner consistent with such Regulations. If the General Partner shall
determine that it is prudent to modify the manner in which the Capital Accounts,
or any debits or credits thereto (including, without limitation, debits or
credits relating to debts or liabilities which are secured by contributed or
distributed property or assets or which are assumed by the Partnership or any
Partner), are computed in order to comply with such Regulations, the General
Partner may make such modification; provided that any such modification, either
individually or in the aggregate, could not reasonably be expected to have a
material effect on the amounts distributable to any Partner pursuant to Article
XIII upon the dissolution of the Partnership. The General Partner also shall
make any such adjustments that are necessary or appropriate to maintain equality
between the Capital Accounts of the Partners and the amount of Partnership
capital reflected on the Partnership's balance sheet, as computed for book
purposes in accordance with Section 1.704-1(b)(2)(iv)(q) of the Regulations;
provided that, to the extent any such adjustment is inconsistent with the other
provisions of this Agreement and would have a material effect on the amounts
distributable to any Limited Partner, such adjustment shall require the consent
of such Limited Partner.
"Capital Contribution" means, with respect to any Partner, the amount
of cash and the Initial Asset Value of all Permitted Assets (other than cash)
contributed to the Partnership with respect to the Interest held by such
Partner. The principal amount of a promissory note which is not readily traded
on an established securities market and which is contributed to the Partnership
by the maker of the note (or a Partner related to the maker of the note (within
the meaning of Section 1.704-1(b)(2)(ii)(c) of the Regulations)) shall not be
included in the Capital Account of any Partner until the Partnership makes a
taxable disposition of such promissory note or until (and to the extent)
principal payments are made on such promissory note, all in accordance with
Section 1.704-1(b)(2)(iv)(d)(2) of the Regulations.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the United States Environmental
Protection Agency.
"Certificate" has the meaning specified in Section 1.04.
"Class A Beneficial Owners" means the beneficial owners of the Class A
Limited Partner.
<PAGE>
6
"Class A Limited Partner" means any Person who (a) is referred to as
such in the first paragraph of this Agreement or who has become a substitute
Class A Limited Partner pursuant to the applicable provisions of Article XI and
(b) has not ceased to be a Class A Limited Partner.
"Class A Limited Partner Guaranteed Payment" has the meaning specified
in Section 5.03.
"Class B Limited Partner" means any Person who (a) is referred to as
such in the first paragraph of this Agreement or who has become a substitute
Class B Limited Partner pursuant to the applicable provisions of Article XI and
(b) has not ceased to be a Class B Limited Partner.
"Closing Date" means December 31, 1997.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Confidentiality Agreement" has the meaning specified in Section
11.03(a).
"Credit Facility" means the Amended and Restated Credit Agreement
dated as of March 31, 1998 among the Class A Limited Partner, the banks,
financial institutions and other institutional lenders from time to time party
thereto, Citibank, N.A., as agent for such banks, financial institutions and
other institutional lenders, and The Bank of Nova Scotia and Bank of America
National Trust and Savings Association, as syndication agents therefor, as
further amended, supplemented or otherwise modified from time to time hereafter
in accordance with the terms thereof.
"Cumulative First Priority Return" means, at any date of
determination, the sum of the amounts determined pursuant to the definition of
the "First Priority Return" set forth below in this Appendix for each
Distribution Period since the Closing Date, and, without duplication, any
Current Period ending on such date.
"Cumulative Second Priority Return" means, at any date of
determination, the sum of the amounts determined pursuant to the definition of
the "Second Priority Return" set forth below in this Appendix for each
Distribution Period since the Closing Date, and, without duplication, any
Current Period ending on such date.
"Current Period" means any Distribution Period or any portion thereof.
"Demand Loan" means any senior demand loan (a) made by the Partnership
to Terra Capital or any of its Affiliates (including, without limitation, Terra
U.K.), (b) the repayment obligations of which bear an arm's-length floating
interest rate, and are evidenced by a promissory note, in substantially the form
of Exhibit E-1 attached hereto, (c) which is secured by a valid and perfected
lien on and security interest in all of the property and assets of Terra and its
Subsidiaries described on Schedule III attached hereto and (d) solely in the
case of any such demand loan to an Affiliate of Terra Capital, the repayment
obligations of which are unconditionally and irrevocably guaranteed by Terra
Capital on the terms set forth in Exhibit E-2 attached hereto.
<PAGE>
7
"Depreciation" means, for each Allocation Year, an amount equal to the
depreciation, amortization or other cost recovery deduction allowable for United
States federal income tax purposes with respect to any Partnership Property for
such Allocation Year, except that if the Asset Value of any such Partnership
Property asset differs from its adjusted basis for United States federal income
tax purposes at the beginning of such Allocation Year, Depreciation shall be an
amount which bears the same ratio to such beginning Asset Value as the United
States federal income tax depreciation, amortization or other cost recovery
deduction for such Allocation Year bears to such beginning adjusted
basis;[Confidential material has been omitted pursuant to a request for
confidential treatment filed with the Commission under Rule 24b-2(b) and has
been filed separately with the Commission.]
"Distribution Date" means the last Business Day of each Distribution
Period.
"Distribution Period" means (a) the period commencing on the Closing
Date and ending on March 31, 1998 and (b) thereafter, each subsequent period
commencing on the last day of the immediately preceding Distribution Period and
ending on the earliest to occur of the next succeeding March 31, June 30,
September 30 or December 31; provided, however, that whenever the last day of
any Distribution Period would otherwise occur on a day other than a Business
Day, the last day of such Distribution Period shall occur on the immediately
preceding Business Day and the next Distribution Period shall commence on such
day.
"Early Termination Premium" means an amount equal to (a) the aggregate
Capital Contribution of the Class A Limited Partner multiplied by (b) the
difference, if any, between (i) the present value of the sum of (A) 0.00189
received quarterly on the last Business Day of each Distribution Period
occurring during the period commencing on the applicable Retirement Date,
Purchase Date or Termination Date, as the case may be, and ending on the then
current Reset Date and (B) 0.04444 received on such Reset Date (the "Applicable
Amounts"), discounted at a rate equal to the sum of (1) the bid-side yield on
U.S. Treasury notes whose maturity matches or approximates the then current
Reset Date and (2) 2.50% minus (ii) the present value of the Applicable Amounts,
discounted at the rate of 17%.
"Environmental Action" means any legal action, suit, demand, demand
letter, claim, notice of noncompliance or violation, notice of liability or
potential liability, governmental or regulatory investigation, proceeding,
consent order or consent agreement, abatement order or other order or directive
(conditional or otherwise) relating in any way to any Environmental Law, any
Environmental Permit or any Hazardous Materials or arising from alleged injury
or threat to health, safety, natural resources or the environment, including,
without limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or damages
and (b) by any governmental or regulatory authority or other third party for
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, order, writ, judgment,
injunction or decree, or any judicial or agency interpretation, policy,
guideline or other requirement of any governmental or regulatory authority,
relating to (a) the generation, use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials, (b) pollution or
the protection of the environment, health, safety or natural resources or (c)
occupational safety and health, industrial hygiene, land use or the protection
of human, plant or
<PAGE>
8
animal health or welfare, including CERCLA, the Hazardous Materials
Transportation Act (49 U.S.C. (S) 1801 et seq.), the Resource Conservation and
Recovery Act (42 U.S.C. (S) 6901 et seq.), the Federal Water Pollution Control
Act (33 U.S.C. (S) 1251 et seq.), the Clean Air Act (42 U.S.C. (S) 7401 et
seq.), the Toxic Substances Control Act (15 U.S.C. (S) 2601 et seq.), the
Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. (S) 136 et seq.),
the Occupational Safety and Health Act (29 U.S.C. (S) 651 et seq.), the Oil
Pollution Act (33 U.S.C. (S) 2701 et seq.) and the Emergency Planning and
Community Right-to-Know Act (42 U.S.C. (S) 11001 et seq.), in each case as
amended from time to time, and including the regulations promulgated and the
rulings issued from time to time thereunder.
"Environmental Permit" means any permit, approval, license,
identification number or other authorization required under any Environmental
Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of the Partnership, or under common
control with the Partnership, within the meaning of Section 414 of the Internal
Revenue Code.
"ERISA Event" means:
(a) (i) the occurrence of a reportable event, within the meaning of
Section 4043(c) of ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by the Pension
Benefit Guaranty Corporation or (ii) the requirements of paragraph (1) of
Section 4043(b) of ERISA are met with respect to a contributing sponsor, as
defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described
in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA
could reasonably be expected to occur with respect to such Plan within the
following 30 days;
(b) the application for a minimum funding waiver with respect to a
Plan;
(c) the provision by the administrator of any Plan of a notice of
intent to terminate such Plan pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA);
(d) the cessation of operations at a facility of the Partnership or
any of the ERISA Affiliates under the circumstances described in Section
4062(e) of ERISA;
(e) the withdrawal or partial withdrawal by the Partnership or any of
the ERISA Affiliates from a Plan or a Multiemployer Plan;
(f) the conditions for the imposition of a Lien under Section 302(f)
of ERISA shall have been met with respect to any Plan;
<PAGE>
9
(g) the adoption of an amendment to a Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the Pension Benefit Guaranty Corporation of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA,
that constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from time
to time.
"Eurodollar Rate" means, for any Distribution Period or portion
thereof, an interest rate per annum equal to the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rates per annum at which deposits in U.S. dollars are offered
by the principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at approximately 5:00 P.M. (London
time) two Business Days before the immediately preceding Distribution Date in an
amount substantially equal to $10,000,000 and for a period equal to three
months.
"Eurodollar Rate Reserve Percentage" means, for any Distribution
Period, the reserve percentage applicable two Business Days before the
immediately preceding Distribution Date under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any successor
thereto) for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement)
for a member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities (or
with respect to any other category of liabilities that includes deposits by
reference to which the Eurodollar Rate is determined) having a term equal to
three months.
"External Taxing Jurisdiction" means any state or local taxing
jurisdiction in the United States of America or any foreign taxing jurisdiction
with respect to which the Class A Limited Partner or any Class A Beneficial
Owner (or any of their respective Affiliates) has no connection other than as a
result of being a Partner or enforcing its rights under this Agreement.
"Extraordinary Expenses" means, collectively, all expenses in excess
of $500,000 for any single occurrence arising from any events, developments or
circumstances occurring after the Closing Date relating to or in connection with
or arising out of (a) any Environmental Law or Environmental Action, (b) (i) the
occurrence of any ERISA Event with respect to a Plan or any Withdrawal Liability
to any Multiemployer Plan, (ii) the insolvency, reorganization or termination of
any Multiemployer Plan, within the meaning of Title IV of ERISA, (iii) any
"accumulated funding deficiency" (as defined in Section 302 of ERISA and Section
412 of the Internal Revenue Code), whether or not waived, with respect to one or
more of the Plans, or any Lien on the property and assets of the Partnership or
any of the ERISA Affiliates in favor of the Pension Benefit Guaranty Corporation
or any Plan, (c) local, state or federal income taxes in excess of 6% of taxable
income as computed for United States federal income tax purposes, (d) liability
in tort and (e) casualty and condemnation losses.
<PAGE>
10
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the immediately preceding Business Day)
by the Federal Reserve Bank of New York or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for such day for
such transactions received by the Rate Determination Bank from three federal
funds brokers of recognized standing selected by it.
"First Amended Partnership Agreement" has the meaning specified in
Section 1.01.
"First Priority Return"[Confidential material has been omitted
pursuant to a request for confidential treatment filed with the Commission under
Rule 24b-2(b) and has been filed separately with the Commission.]
"First Priority Return Rate" means (a) for each Current Period
occurring during the period commencing on the Closing Date and ending on the
first Reset Date, a rate per annum equal to (i) the sum of (A) 2.1043% per annum
and (B) (1) 0.95556 multiplied by (2) the Adjusted Eurodollar Rate in effect on
the first day of such Current Period or (ii) if at any time the Eurodollar Rate
is unavailable, the sum of (A) 1.1487% per annum and (B) (1) 0.95556 multiplied
by (2) the Alternate Base Rate in effect from time to time during such Current
Period and (b) for each Current Period commencing on or after the first Reset
Date, a rate per annum equal to either (i) (A) the sum of (1) 2.2969% per annum
and (2) the Adjusted Eurodollar Rate in effect on the first day of such Current
Period or (B) if at any time the Eurodollar Rate is unavailable, the sum of (1)
1.2969% per annum and (2) the Alternate Base Rate in effect from time to time
during such Current Period or (ii) such rate per annum as shall be agreed among
all of the Partners.
"Fiscal Quarter" means (a) the period commencing on the Closing Date
and ending on March 31, 1998, (b) with respect to any fiscal quarter in any
Fiscal Year not described in clause (a) or (c) of this definition, any
subsequent consecutive three-month period commencing on April 1 and ending on
the next succeeding June 30, the period commencing on July 1 and ending on the
next succeeding September 30, the period commencing on October 1 and ending on
the next succeeding December 31 or the period commencing on January 1 and ending
on the next succeeding March 31, as the case may be, and (c) the period
commencing on the first day of the fiscal quarter in which the Termination Date
occurs and ending on the Termination Date.
"Fiscal Year" means (a) the period commencing on the Closing Date and
ending on December 31, 1998, (b) with respect to any fiscal year not described
in clause (a) or (c) of this definition, any subsequent consecutive 12-month
period commencing on January 1 and ending on the next succeeding December 31 and
(c) the period commencing on the immediately preceding January 1 and ending on
the Termination Date.
"GAAP" means generally accepted accounting principles as in effect in
the United States from time to time and applied on a consistent basis.
<PAGE>
11
"General Partner" means any Person who (a) is referred to as such in
the first paragraph of this Agreement or has become a substitute General Partner
pursuant to the applicable provisions of Article XI and (b) has not ceased to be
a General Partner.
"Hazardous Materials" means: (a) any chemical, material or substance
at any time defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous waste", "acutely
hazardous waste", "radioactive waste", "biohazardous waste", "pollutant", "toxic
pollutant", "contaminant", "restricted hazardous waste", "infectious waste",
"toxic substances", or any other term or expression intended to define, list or
classify substances by reason of properties harmful to health, safety or the
indoor or outdoor environment (including, without limitation, harmful properties
such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity,
reproductive toxicity, "TCLP toxicity" or "EP toxicity" or words of similar
import) under any applicable Environmental Laws; (b) any oil, petroleum,
petroleum fraction or petroleum-derived substance; (c) any drilling fluids,
produced waters and other wastes associated with the exploration, development or
production of crude oil, natural gas or geothermal resources; (d) any flammable
substances or explosives; (e) any radioactive materials; (f) any asbestos-
containing materials; (g) any urea formaldehyde foam insulation; (h) any
electrical equipment which contains any oil or dielectric fluid containing
polychlorinated biphenyls; (i) any pesticides; (j) any radon gas; and (k) any
other chemical, material or substance designated, classified or regulated as
hazardous or toxic or as a pollutant or contaminant under any Environmental Law
or which could pose a hazard to health, safety or the environment.
"Holdings" has the meaning specified in the first paragraph of this
Agreement.
"Incipient Event" means an event which with notice or lapse of time or
both would constitute a Terminating Event or Notice Event.
"Indebtedness" means, with respect to any Person (without
duplication):
(a) all indebtedness of such Person for borrowed money;
(b) all obligations of such Person for the deferred purchase price of
property and assets or services (other than (i) trade payables or other
accounts payable incurred in the ordinary course of such Person's business
and not past due for more than 30 days and (ii) deferred employee
compensation and other employee benefits);
(c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments;
(d) all obligations of such Person as lessee under leases which have
been or should be, in accordance with GAAP, recorded as capital leases; and
(e) all Indebtedness referred to in clauses (a) through (d) above
guaranteed directly or indirectly by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (i) to pay or
purchase such Indebtedness or to advance or supply funds for the payment or
purchase of such Indebtedness, (ii) to purchase, sell or lease (as lessee
or lessor)
<PAGE>
12
property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Indebtedness or to assure the
holder of such Indebtedness against loss, (iii) to supply funds to or in
any other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received or
such services are rendered) or (iv) otherwise to assure a creditor against
loss.
"Indemnitee" has the meaning specified in Section 6.05(d)(i).
"Indemnitor" has the meaning specified in Section 6.05(d)(i).
"Initial Appraiser" has the meaning specified in Section 4.09(a)(iii).
"Initial Asset Value" means the initial value of a Permitted Asset
determined pursuant to Section 4.09(a).
"Interest" means any interest in the Partnership representing all or
any portion of the Capital Contributions made or deemed made by a Partner
pursuant to Article III, including any and all benefits to which the holder of
such an Interest may be entitled as provided in this Agreement, together with
all obligations of such Person to comply with the terms and provisions of this
Agreement.
"Investment" means, with respect to any Person, any loan or advance to
such Person, any purchase or other acquisition of shares of capital stock of (or
other ownership or profit interests in), or other obligations or other
securities (including, without limitation, warrants, rights and options) of,
such Person, any capital contribution to such Person or any other investment in
such Person, including, without limitation, any arrangement pursuant to which
the investor incurs Indebtedness of the types referred to in clause (e) of the
definition of "Indebtedness" set forth above in this Appendix in respect of such
Person.
"Involuntary Bankruptcy" means, with respect to any Person, without
the consent or acquiescence of such Person, the entering of an order for relief
or approving of a petition for relief or reorganization of such Person, or any
other petition seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or other similar relief of such Person
under any present or future bankruptcy, insolvency or similar statute, law or
regulation, or the filing of any such petition against such Person, in any such
case which petition shall not be dismissed within 60 days, or, without the
consent or acquiescence of such Person, the entering of an order appointing a
trustee, custodian, receiver or liquidator of such Person or of all or any
substantial portion of its property and assets, in any such case which order
shall not be dismissed within 60 days.
"Issuance Items" has the meaning specified in Section 4.03(h).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement having
the effect of a lien, security interest or other charge or encumbrance,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on title
to real property.
<PAGE>
13
"Limited Partners" means, collectively, the Class A Limited Partner
and the Class B Limited Partner.
"Liquid Investments" means any of the following types of Investments,
to the extent owned by any Person free and clear of all Liens (other than Liens
created under the Transaction Documents):
(a) readily marketable obligations issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof having maturities of not more than 90 days from the
date of acquisition thereof; provided that the full faith and credit of the
United States of America is pledged in support thereof;
(b) time deposits or demand deposits with, or insured certificates of
deposit of, any commercial bank that (i) is organized under the laws of the
United States of America, any state thereof or the District of Columbia or
is the principal banking subsidiary of a bank holding company organized
under the laws of the United States of America, any state thereof or the
District of Columbia and is a member of the Federal Reserve System and (ii)
issues (or the parent of which issues) commercial paper rated as described
in clause (c) of this definition, in each case with maturities of not more
than 90 days from the date of acquisition thereof;
(c) commercial paper issued by any Person organized under the laws of
any state of the United States of America and rated at least "Prime-1" (or
the then equivalent grade) by Moody's or at least "A-1" (or the then
equivalent grade) by S&P, in each case with maturities of not more than 90
days from the date of acquisition thereof;
(d) Investments, classified in accordance with GAAP as current assets
of such Person, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are structured to trade
at a price equal to the face value thereof, and the portfolios of which are
substantially comprised of Investments of the character and quality
described in clauses (a), (b) and (c) of this definition; and
(e) cash.
"Liquidator" means (a) any Person appointed as such by the Class A
Limited Partner (which Person may be the General Partner) or (b) if a
Terminating Event which results from the Bankruptcy of the Class A Limited
Partner or the Notice Event referred to in clause (a) of the definition thereof
set forth below in this Appendix has occurred and is continuing, the General
Partner; provided that if the final liquidation distributions have not been made
by the General Partner within 30 days of the date of any such Terminating Event,
the Class A Limited Partner shall thereafter have the right to appoint a
replacement Liquidator.
"Loan Purchase Agreement" has the meaning specified in Section 6.01 of
the Terra Capital Note.
"Losses" has the meaning specified in the definition of "Profits and
Losses" set forth below in this Appendix.
<PAGE>
14
[Confidential material has been omitted pursuant to a request for confidential
treatment filed with the Commission under Rule 24b-2(b) and has been filed
separately with the Commission.]
"Mark-to-Market Event" means either (a) the retirement of any Interest
pursuant to Section 11.08 or (b) the liquidation of the Partnership pursuant to
Article XIII; provided, however, that, unless the Class A Limited Partner
otherwise consents, no Mark-to-Market Event shall occur if the Notice Event
giving rise to any event referred to in clause (a) or (b) above results from a
Terra Event.
"Mark-to-Market Valuation" means an adjustment of the Asset Value of
the Permitted Assets of the Partnership to reflect their respective Mark-to-
Market Values.
"Mark-to-Market Value" means, with respect to any Permitted Asset of
the Partnership, (a) upon a Mark-to-Market Event, the value of such Permitted
Asset as determined pursuant to Section 4.09(b) and (b) upon the exercise of the
Purchase Option, the value of such Permitted Asset as determined pursuant to
Section 4.09(b) and Section 2 of the Support and Option Agreement.
"Material Adverse Effect" means a material adverse effect on (a) (i)
the business, assets, operations, properties or financial condition of the
Partnership or any of its Subsidiaries or (ii) the contingent liabilities of the
Partnership or any of its Subsidiaries which could reasonably be expected to
result in any of the effects described in subclause (a)(i) of this definition
other than, in the case of subclause (a)(i) or (a)(ii) of this definition, any
such effect resulting solely from a general economic change in the industry of
the Partnership or any of its Subsidiaries, (b) the rights and remedies of the
Class A Limited Partner under this Agreement or any other Transaction Document
or (c) the ability of the Partnership or any of its Subsidiaries or the any of
the Terra Partners to perform or observe its obligations under this Agreement or
any other Transaction Document to which it is a party.
"Measurement Date" means (a) with respect to the retirement of the
Class A Partner's Interest pursuant to Section 11.08(a), the Distribution Date
immediately preceding the date on which the related Retirement Notice was
delivered, (b) with respect to the liquidation of the Partnership pursuant to
Article XIII, the Distribution Date immediately preceding the Distribution
Period in which the earlier of (i) the date on which the Terminating Event
giving rise to such liquidation occurred and (ii) if applicable, the date on
which the Notice Event (without giving effect to any grace period therefor)
giving rise to such Terminating Event occurred and (c) with respect to the
exercise of the Purchase Option, the Distribution Date immediately preceding the
Distribution Period in which the earlier of (i) if applicable, the Purchase
Election Date and (ii) the date on which the Notice Event (without giving effect
to any grace period therefor) giving rise to the Purchase Option occurred.
"Methanol Business" means the manufacture, storage, distribution and
marketing of methanol, including the maintenance and operation of the Methanol
Plant and the Methanol Related Assets.
"Methanol Plant" means the methanol production facility of the
Partnership located in Beaumont, Texas and having, on the date of this
Agreement, a rated capacity of approximately 280,000,000 gallons per year.
<PAGE>
15
"Methanol Related Assets" means the feedstock and other raw materials,
the product pipeline and the other property and assets related to the
maintenance and operation of the Methanol Plant and the operation of the
Methanol Business.
"Moody's" means Moody's Investors Service, Inc., or any successor
thereto.
"Multiemployer Plan" means a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) to which the Partnership or any of the ERISA Affiliates (a)
is making or accruing an obligation to make contributions or (b) has within any
of the preceding five plan years made or accrued an obligation to make
contributions and with respect to which the Partnership or any of the ERISA
Affiliates could reasonably be expected to have liability.
"Multiple Employer Plan" means a single employer plan (as defined in
Section 4001(a)(15) of ERISA) that (a) is maintained for employees of the
Partnership or any of the ERISA Affiliates and at least one Person other than
the Partnership and the ERISA Affiliates or (b) was so maintained and in respect
of which the Partnership or any of the ERISA Affiliates could reasonably be
expected to have liability under Section 4064 or 4069 of ERISA in the event such
plan has been or were to be terminated.
"Nonrecourse Deductions" has the meaning specified in Section 1.704-
2(b)(1) of the Regulations.
"Nonrecourse Liability" has the meaning specified in Section 1.704-
2(b)(3) of the Regulations.
"Notice Event" means any of the following events:
[Confidential material has been omitted pursuant to a request for confidential
treatment filed with the Commission under Rule 24b-2(b) and has been filed
separately with the Commission.]
"Nova" has the meaning specified in the first paragraph of this
Agreement.
"NPL" means the National Priorities List under CERCLA.
"Original Capital Contribution" means, with respect to each Partner,
the Capital Contribution made, or deemed made, by such Partner pursuant to
Section 3.01 or 3.02, as applicable.
"Partner Nonrecourse Debt" has the meaning specified in Section 1.704-
2(b)(4) of the Regulations.
"Partner Nonrecourse Debt Minimum Gain" means, with respect to any
Partner Nonrecourse Debt, an amount equal to the Partnership Minimum Gain that
would result if such Partner Nonrecourse Debt were treated as a Nonrecourse
Liability, determined in accordance with Section 1.704-2(i)(3) of the
Regulations.
<PAGE>
16
"Partner Nonrecourse Deductions" has the meaning specified in Sections
1.704-2(i)(1) and 1.704-2(i)(2) of the Regulations.
"Partners" means, collectively, the General Partner and the Limited
Partners.
"Partnership" means the partnership continued pursuant to this
Agreement.
"Partnership Balance Sheet" has the meaning specified in Section
9.02(c)(ii)(A).
"Partnership Income Statement" has the meaning specified in Section
9.02(c)(ii)(B).
"Partnership Matters" has the meaning specified in Section 4.06(b).
"Partnership Minimum Gain" has the meaning specified in Sections
1.704-2(b)(2) and 1.704-2(d) of the Regulations.
"Partnership Property" means all real and personal property and assets
owned by the Partnership and any improvements thereto, and shall include both
tangible and intangible property.
"Percentage Interest" means, with respect to each Partner at any date
of determination, the ratio (expressed as a percentage) of (a) such Partner's
Capital Account on such date to (b) the aggregate Capital Accounts of all of the
Partners on such date, such Capital Accounts to be determined after giving
effect to all contributions, distributions and allocations for all periods
ending on or prior to such date.
"Permitted Assets" means,[Confidential material has been omitted
pursuant to a request for confidential treatment filed with the Commission under
Rule 24b-2(b) and has been filed separately with the Commission.]
"Permitted Securitization Assets" means the rights of the Partnership
under or in connection with (a) the Receivables Purchase Agreement dated as of
August 20, 1996 among Terra Funding, Inc., Terra Capital, the financial
institutions from time to time party thereto and Bank of America National Trust
and Savings Association, as administrative agent thereunder, and the "Agreement
Documents" referred to therein, in each case as amended, supplemented or
otherwise modified hereafter from time to time in accordance with their terms,
and (b) any successor transaction thereto effected on substantially the same
terms (other than with respect to the size of the receivables securitization
program) as the transaction contemplated by the documentation referred to in
clause (a) of this definition.
"Permitted Transfer" has the meaning specified in Section 11.02.
"Person" means any individual, partnership (whether general or
limited), corporation (including a business trust), limited or unlimited
liability company, joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.
<PAGE>
17
"Plan" means a Single Employer Plan and/or a Multiple Employer Plan,
as the context may require.
"Profits" and "Losses" means, for each Allocation Year, an amount
equal to the Partnership's taxable income or loss for such Allocation Year,
determined in accordance with Section 703(a) of the Code (for this purpose, all
items of income, gain, loss or deduction required to be stated separately
pursuant to Section 703(a)(1) of the Code shall be included in taxable income or
loss), with the following adjustments:
(a) Any income of the Partnership that is exempt from federal income
tax and not otherwise taken into account in computing Profits or Losses
pursuant to this definition shall be added to such taxable income or loss;
(b) Any expenditures of the Partnership described in Section
705(a)(2)(B) of the Code or treated as Code Section 705(a)(2)(B)
expenditures pursuant to Section 1.704-1(b)(2)(iv)(i) of the Regulations
and not otherwise taken into account in computing Profits or Losses
pursuant to this definition shall be subtracted from such taxable income or
loss;
(c) If the Asset Value of any Partnership Property is adjusted
pursuant to clause (a) or (b) of the definition of "Asset Value" set forth
above in this Appendix, the amount of such adjustment shall be treated as
an item of gain (if the adjustment increases the Asset Value of such
Partnership Property) or an item of loss (if the adjustment decreases the
Asset Value of such Partnership Property) from the disposition of such
Partnership Property and shall be taken into account for purposes of
computing Profits or Losses;
(d) Gain or loss resulting from any disposition of Partnership
Property with respect to which gain or loss is recognized for United States
federal income tax purposes shall be computed by reference to the Asset
Value of the Partnership Property disposed of, notwithstanding that the
adjusted basis for United States federal income tax purposes of such
Partnership Property differs from its Asset Value;
(e) In lieu of the depreciation, amortization and other cost recovery
deductions taken into account in computing such taxable income or loss,
there shall be taken into account Depreciation for such Fiscal Year,
computed in accordance with the definition of "Depreciation" set forth
above in this Appendix;
(f) To the extent that an adjustment to the adjusted basis of any
Partnership Property pursuant to Section 734(b) or 743(b) of the Code is
required pursuant to Section 1.704-1(b)(2)(iv)(m)(4) of the Regulations to
be taken into account in determining Capital Accounts as a result of a
distribution other than in liquidation of a Partner's Interest, the amount
of such adjustment shall be treated as an item of gain (if the adjustment
increases the basis of such Partnership Property) or loss (if the
adjustment decreases the basis of such Partnership Property) from the
disposition of such Partnership Property and shall be taken into account
for purposes of computing Profits or Losses; and
<PAGE>
18
(g) Notwithstanding any other provision of this definition, any items
which are specially allocated pursuant to Section 4.03 or 4.04 shall not be
taken into account in computing Profits or Losses.
"Purchase Date" means the date on which Terra Capital or its designee
purchases or otherwise acquires all (but not a portion) of the Interest of the
Class A Limited Partner or the equity interests in Nova, as the case may be,
pursuant to, and in accordance with the terms of, Section 2.1 or 2.2 of the
Support and Option Agreement.
"Purchase Election Date" means the date on which Terra Capital or its
designee elects to exercise the Purchase Option pursuant to, and in accordance
with the terms of, Section 2.1 or 2.2 of the Support and Option Agreement.
[Confidential material has been omitted pursuant to a request for confidential
treatment filed with the Commission under Rule 24b-2(b) and has been filed
separately with the Commission.]
"Ratably" means (a) with respect to the Terra Partners, in proportion
to each Terra Partner's Percentage Interest in the Partnership and (b) with
respect to all of the Partners, in proportion to each Partner's Percentage
Interest in the Partnership.
"Rate Determination Bank" means any of the Reference Banks selected by
the General Partner from time to time to act as such for all purposes of this
Agreement, which Reference Bank shall initially be Citibank, N.A.; provided that
the General Partner shall provide notice of any change in its selection of the
Rate Determination Bank to each of the other Partners at least five Business
days prior to the date on which any such change is proposed to become effective.
"Reference Banks" means Citibank, N.A., The Bank of Nova Scotia, Bank
of America National Trust and Savings Association and NationsBank of Texas, N.A.
"Regulations" means the Income Tax Regulations, including Temporary
Regulations, promulgated under the Code, as amended from time to time (including
the corresponding provisions of successor regulations).
"Regulatory Allocations" has the meaning specified in Section 4.04(a).
"Reset Date" means (a) December 29, 2000 or (b) the Business Day
occurring on or immediately prior to the next succeeding third anniversary of
December 29, 2000, as the context may require.
"Responsible Officer" means (a) in the case of TMC, Holdings, Terra
Capital or Terra U.K. Holdings, any person that is an officer thereof holding
the position of vice president or higher (or the equivalent thereto) and (b) in
the case of any Person admitted as a substitute Partner in accordance with the
applicable provisions of Article XI, such executive officers of such Person as
are approved by the other Partners (such approval not to be unreasonably
withheld or delayed).
<PAGE>
19
"Retirement Date" has the meaning specified in Section 11.08(d)(ii).
"Retirement Notice" has the meaning specified in Section 11.08(c).
"Retirement Payment" has the meaning specified in Section 11.08(d)(i).
"S&P" means Standard & Poor's Ratings Service, a division of The
McGraw-Hill Companies, Inc., or any successor thereto.
"Second Priority Return" means, for each Current Period, an amount
equal to (a) the Second Priority Return Rate for such Current Period multiplied
by (b) the sum of (i) (A) the Original Capital Contributions of the Terra
Partner described in Sections 3.01 and 3.02 plus (B) all Additional Capital
Contributions made by the Terra Partners pursuant to Section 3.03, adjusted for
the timing of any Additional Capital Contributions made during such Current
Period and (ii) (A) the Cumulative Second Priority Return as of the immediately
preceding Distribution Date minus (B) the cumulative distributions made to the
Terra Partners pursuant to Section 5.02 during the period commencing on the
Closing Date and ending on the immediately preceding Distribution Date. All
computations referred to in this definition shall be determined on the basis of
the actual number of days elapsed in a 360-day year (including the first day but
excluding the last day) occurring in the period for which the Second Priority
Return is being calculated.
"Second Priority Return Rate"[Confidential material has been omitted
pursuant to a request for confidential treatment filed with the Commission under
Rule 24b-2(b) and has been filed separately with the Commission.].
"Senior Financial Officer" means, with respect to any Person, the
Treasurer, the Assistant Treasurer, the Controller or the Chief Financial
Officer of such Person.
"Services Agreement" means the General and Administrative Services
Agreement dated as of December 31, 1997 among Terra, the General Partner and the
Partnership, as amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof and thereof.
"Single Employer Plan" means a single employer plan (as defined in
Section 4001(a)(15) of ERISA) that (a) is maintained for employees of the
Partnership or any of the ERISA Affiliates and no Person other than the
Partnership and the ERISA Affiliates or (b) was so maintained and in respect of
which the Partnership or any of the ERISA Affiliates could reasonably be
expected to have liability under Section 4069 of ERISA in the event such plan
has been or were to be terminated.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, joint venture, limited liability company, trust or estate of which
(or in which) more than 50% of (a) the issued and outstanding Voting Interests
in such corporation, (b) the interest in the capital or profits of such
partnership, joint venture or limited liability company or (c) the beneficial
interest in such trust or estate, is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
<PAGE>
20
"Support and Option Agreement" means the Amended and Restated Support
and Option Agreement dated as of March 31, 1998 among Terra Capital, the Class A
Limited Partner and the Class A Beneficial Owners, as further amended
supplemented or otherwise modified from time to time hereafter in accordance
with the terms hereof and thereof.
"Tax Matters Partner" has the meaning specified in Section 9.03(a).
"Terminating Event" means any of the following events: [Confidential
material has been omitted pursuant to a request for confidential treatment filed
with the Commission under Rule 24b-2(b) and has been filed separately with the
Commission.]
"Termination Date" has the meaning specified in Section 5.03(a).
"Terra" means Terra Industries, Inc., a Maryland corporation and, on
the date of this Agreement, the indirect parent of Terra Capital.
"Terra Canada" means Terra International (Canada) Inc., a corporation
governed by the laws of Ontario and, on the date of this Agreement, an indirect
Subsidiary of Terra Capital.
"Terra Capital" means Terra Capital, Inc., a Delaware corporation and,
on the date of this Agreement, the direct parent of the Terra Partners.
"Terra Capital Loan Documents" means the Amended and Restated Credit
Agreement dated as of March 31, 1998 among Terra Capital, Terra Nitrogen,
Limited Partnership, the guarantors named therein, the banks, financial
institutions and other institutional lenders party thereto and Citibank, N.A.,
as administrative agent for such banks, financial institutions and other
institutional lenders, the notes issued from time to time thereunder and all of
the other "Loan Documents" as defined and referred to therein, in each case as
such agreement, instrument or other document may be amended, supplemented or
otherwise modified from time to time hereafter in accordance with the terms
thereof.
"Terra Capital Note" means the senior promissory note, of Terra
Capital payable to the order of the Partnership, which was issued in the form of
Exhibit F attached hereto, the repayment obligations under which bear an arm's-
length floating interest rate and all of the principal of which is due and
payable on December 29, 2000, and the obligations under which are secured by a
valid and perfected lien on and security interest in all of the property and
assets of Terra and its Subsidiaries described on Schedule V attached hereto, as
such promissory note has been or may be amended, supplemented or otherwise
modified from time to time hereafter in accordance with the terms hereof and
thereof.
"Terra Event" means an act or omission by Terra Capital or any of its
Affiliates [Confidential material has been omitted pursuant to a request for
confidential treatment filed with the Commission under Rule 24b-2(b) and has
been filed separately with the Commission.]
"Terra U.K. Holdings Stock" means the issued and outstanding shares of
capital stock of Terra U.K. Holdings.
<PAGE>
21
"Terra Partners" means, collectively, TMC and Holdings, in each case
so long as such Person remains a Partner, and any other Affiliate of Terra that
may from time to time own an Interest hereunder.
"Terra U.K." means Terra Nitrogen (U.K.) Limited, a company formed
under the laws of England.
"Terra U.K. Holdings" means Terra (U.K.) Holdings Inc., a Delaware
corporation and a direct subsidiary of the Partnership.
"Terra U.K. Loan" means, at any date of determination, the aggregate
principal amount of all loans and advances outstanding under the Terra U.K. Loan
Documents on such date.
"Terra U.K. Loan Documents" means the Credit Agreement dated as of
December 31, 1997 among Terra U.K. and Terra U.K. Holdings, the note issued to
Terra U.K. Holdings thereunder and all of the other "Loan Documents" as defined
and referred to therein, in each case as amended by Amendment No. 1 dated as of
February 6, 1998 and Amendment No. 2 dated as of March 31, 1998 and as such
agreement, instrument or other document may be amended, supplemented or
otherwise modified from time to time hereafter in accordance with the terms
hereof and thereof.
"TMC" has the meaning specified in the first paragraph of this
Agreement.
"Transaction Documents" means this Agreement, the Support and Option
Agreement, the Terra Capital Note, the notes evidencing the Demand Loans and the
Services Agreement.
"Transfer" means, with respect to all or any portion of an Interest,
as a noun, any voluntary or involuntary sale, pledge, assignment, transfer or
other disposition of such Interest or any such portion thereof and, as a verb,
to voluntarily or involuntarily sell, pledge, assign, transfer or otherwise
dispose of such Interest or any such portion thereof.
"Transferee Certificate" has the meaning specified in Section
11.03(g).
"Transferor Certificate" has the meaning specified in Section
11.03(g).
"United States" and "U.S." each means the United States of America.
"Voluntary Bankruptcy" means, with respect to any Person, (a) (i) the
inability of such Person generally to pay its debts as such debts become due,
(ii) the failure of such Person generally to pay its debts as such debts become
due or (iii) an admission in writing by such Person of its inability to pay its
debts generally or a general assignment by such Person for the benefit of
creditors, (b) the filing of any petition or answer by such Person seeking to
adjudicate it a bankrupt or insolvent, or seeking for itself or its property and
assets any liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of such Person or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking, consenting to, or acquiescing in the entry of an order for relief or
the appointment of a receiver, trustee, custodian or other similar official for
such Person or for
<PAGE>
22
any substantial portion of its property or assets, or (c) the taking of any
corporate action by such Person to authorize any of the actions set forth in
clause (a) or (b) of this definition.
"Voting Interests" means shares of capital stock issued by a
corporation, or equivalent equity (or other ownership or profit) interests in
any other Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or Persons
performing similar functions) of such Person, even if the right so to vote has
been suspended by the happening of such a contingency.
"Wholly Owned Subsidiary" means, with respect to any Person, a
Subsidiary of such Person 100% of the Voting Interests in which are owned
beneficially by such Person, directly or indirectly through one or more Wholly
Owned Subsidiaries (without taking into account in determining such percentage
de minimis amounts of Voting Interests held by directors, nominees and similar
persons pursuant to statutory or regulatory requirements).
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
<PAGE>
BLANK COPY
Omitted Version Second Amended and
Restated Partnership Agreement
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND> This schedule contains summary financial information extracted from
the consolidated statement of financial position of Terra Industries Inc. as of
March 31, 1998 and the related consolidated statement of income for the three
months then ended and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> MAR-31-1998
<CASH> 35,739
<SECURITIES> 6,712
<RECEIVABLES> 239,822
<ALLOWANCES> (14,018)
<INVENTORY> 597,234
<CURRENT-ASSETS> 894,579
<PP&E> 1,479,054
<DEPRECIATION> (291,899)
<TOTAL-ASSETS> 2,505,144
<CURRENT-LIABILITIES> 607,591
<BONDS> 496,681
0
0
<COMMON> 127,587
<OTHER-SE> 646,358
<TOTAL-LIABILITY-AND-EQUITY> 2,505,144
<SALES> 455,621
<TOTAL-REVENUES> 465,672
<CGS> 394,682
<TOTAL-COSTS> 394,682
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 788
<INTEREST-EXPENSE> 14,982
<INCOME-PRETAX> (31,248)
<INCOME-TAX> (12,968)
<INCOME-CONTINUING> (18,280)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (18,280)
<EPS-PRIMARY> (0.25)
<EPS-DILUTED> (0.24)
</TABLE>
