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ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit and Guarantee Agreement, dated as of
October 15, 1993, as amended and restated as of February 27, 1997 (as further
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among North American Chemical Company, North American Salt Company,
Great Salt Lake Minerals Corporation (collectively, the "Borrowers"), Xxxxxx
Chemical North America, Inc. ("HCNA"), as guarantor (together with the other
"Guarantors", as defined under the Credit Agreement, the "Guarantors"), the
banks and other financial institutions parties thereto (the "Lenders") and
General Electric Capital Corporation, as collateral agent (in such capacity, the
"Collateral Agent") and administrative agent (in such capacity, the
"Administrative Agent") for the Lenders.
Unless otherwise defined herein, terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
Each assignor listed on SCHEDULE 1 hereto (each, an "Assignor", and,
collectively, the "Assignors"), the assignee listed on SCHEDULE 1 hereto (the
"Assignee"), each Borrower, each Guarantor, the Administrative Agent and the
Collateral Agent agree as follows:
1. The Assignors hereby severally irrevocably sell and assign to the
Assignee without recourse to any Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignors without recourse to any Assignor, as of
the Effective Date (as defined below), interests (each, an "Assigned Interest")
in and to the Assignors' rights and obligations under the Credit Agreement and
each other Loan Document with respect to those credit facilities contained in
the Credit Agreement as are set forth on SCHEDULE 1 hereto (individually, an
"Assigned Facility"; collectively, the "Assigned Facilities"), in the respective
amounts such that the principal amount of each Assigned Facility sold and
assigned by each Assignor shall be the amount set forth on SCHEDULE 1 hereto
under the caption "ASSIGNORS" opposite such Assignor's name and the principal
amount of each Assigned Facility purchased and assumed by the Assignee shall be
the amount set forth on SCHEDULE 1 hereto under the caption "ASSIGNEE" opposite
the Assignee's name. The successor Administrative Agent (as defined in Section 3
below) agrees to pay to the Administrative Agent for value on the Effective Date
(for distribution to the Assignors) the aggregate amount of the Loans
outstanding under the Credit Agreement, as set forth on SCHEDULE 1 hereto.
2. Each Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the other Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency,
value or perfection of the Credit Agreement, any other Loan Document or any
other instrument or document furnished pursuant thereto, other than that it has
not created any adverse claim upon the Assigned Interest being assigned by it
hereunder and that such Assigned Interest is free and clear of any such adverse
claim; and (b) makes no representation or warranty and assumes no responsibility
with respect to the financial condition
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of any Borrower, any Guarantor, any Subsidiary of any Borrower or Guarantor or
any other obligor or the performance or observance by any Borrower, any
Guarantor, any Subsidiary of any Borrower or Guarantor or any other obligor of
any of their respective obligations under the Credit Agreement or the other Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto.
3. Each Administrative Agent and Collateral Agent resigns as
Administrative Agent and Collateral Agent, respectively, effective on the
Effective Date. Each Borrower, Guarantor and Lender agrees to such resignations
and waives the requirement under Section 13.9 of the Credit Agreement that
notice of such resignation be given 10 days prior to such resignation. The
Assignee under the Credit Agreement has appointed and the Borrowers have
approved the appointment of IMC Global Inc. as successor Administrative Agent
and successor Collateral Agent, which appointments shall be effective on the
Effective Date, whereupon such successor administrative agent and collateral
agent shall succeed to the rights and duties of the Administrative Agent and
Collateral Agent, and the term "Administrative Agent" or "Collateral Agent"
under the Loan Documents shall mean such successor administrative agent or
collateral agent, and the rights, powers and duties of the former Administrative
Agent or Collateral Agent (in its capacity as such), as the case may be, shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or Collateral Agent or any of the parties to this
Assignment and Acceptance or the Credit Agreement.
4. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to Section 7.1 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (c) agrees
that it will, independently and without reliance upon any Assignor, the
Administrative Agent, the Collateral Agent 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 the Credit
Agreement, each other relevant Loan Document or any other instrument or document
furnished pursuant hereto or thereto; (d) appoints and authorizes the successor
Administrative Agent with respect to the Credit Agreement to take such action as
agent on its behalf and to exercise such powers and discretion under the Credit
Agreement, the other relevant Loan Documents or any other instrument or document
furnished pursuant hereto or thereto as are delegated to such successor
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Credit Agreement and each other relevant Loan Document and will perform in
accordance with its terms all the obligations which by the terms of the Credit
Agreement or such other Loan Document are required to be performed by it as a
Lender. The successor Administrative Agent, the successor Collateral Agent and
the Assignee confirm that none of the Assignors, the Administrative Agent or the
Collateral Agent shall have any obligation whatsoever at any time to provide any
of them with any information or document in connection with the Credit
Agreement.
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5. This Assignment and Acceptance shall become effective on April 1,
1998 (the "Effective Date"), provided that (A) the Administrative Agent has
received for value on that day the amounts payable under Sections 1, 6 and
10(c)(ii) and (iii) hereof, and all other amounts that may become payable
hereunder on such day, and (B) the other conditions precedent to this Assignment
and Acceptance becoming effective set forth in Section 8 hereof are satisfied on
or before such date. The conditions precedent to this Assignment and Acceptance
becoming effective contained in clauses (A) and (B) of this Section 5 are
inserted solely for the benefit of the Administrative Agent, the Collateral
Agent and the Lenders. Following the execution of this Assignment and
Acceptance, it will be delivered to the Administrative Agent for acceptance by
it and recording by the Administrative Agent pursuant to Section 14.7 of the
Credit Agreement, effective as of the Effective Date.
6. From and after the Effective Date, the successor Administrative
Agent shall make all payments in respect of the Assigned Interests (including
payments of principal, interest, fees and other amounts) to the Assignee. On the
Effective Date, each Borrower shall pay to the Administrative Agent for
distribution to each Assignor, the Administrative Agent and the Collateral Agent
all accrued interest, fees and other accounts owing by such Borrower to such
Assignor, Administrative Agent and Collateral Agent under the Credit Agreement,
as set forth in SCHEDULE 2 hereto.
7. From and after the Effective Date, (a) the Assignee shall be a party
to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other relevant Loan Documents and shall be bound by the provisions thereof and
(b) each Assignor shall, to the extent provided in this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Credit Agreement and other Loan Documents.
8. With respect to the Credit Agreement, each Borrower and the Assignee
hereby agree, as a condition precedent to the effectiveness of this Assignment
and Acceptance, that, as to each letter of credit identified in SCHEDULE 3
hereto, it shall deliver to the Administrative Agent (A) a letter of credit in
form and substance and amount, and issued by a party or (B) cash collateral in
an amount, in each case, acceptable to the Administrative Agent in its sole
discretion.
9. At any time and from time to time, each of the Administrative Agent,
the Collateral Agent and the Lenders agrees that it will cooperate with the
successor Administrative Agent and the successor Collateral Agent and will
execute and deliver, or cause to be executed and delivered, all such further
instruments and documents, and will take all such further actions, including,
without limitation, the execution and delivery to the successor Collateral Agent
for filing by the successor Collateral Agent of UCC-3 assignments of financing
statements, discharges, lockbox agreement terminations and other release and
termination documents, in each case, as the successor Collateral Agent may
reasonably request following the delivery of such instruments, documents and
other items to the Administrative Agent, the Collateral Agent
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and/or the Lenders, as applicable, in order to carry out the provisions and
purposes of this Agreement. Each of the Administrative Agent, the Collateral
Agent and the Lenders further agrees to promptly deliver to HCNA all promissory
notes, and to the successor Collateral Agent all stock certificates and other
instruments, in its possession with respect to the Obligations. The Borrowers
agree to reimburse each of the Administrative Agent, the Collateral Agent and
the Lenders on demand for its reasonable costs and expenses (including, without
limitation, reasonable legal fees) incurred by it in connection with the
performance of any actions that it is requested to perform hereunder.
10. With respect to the Credit Agreement, each of the Borrowers and the
Guarantors hereby jointly and severally agrees to the terms set forth in Section
8 hereof, and each hereby:
(a) releases the Administrative Agent, the Collateral Agent and
the Lenders with respect to the Credit Agreement and other
Loan Documents from any and all obligations owing under or in
connection with the Credit Agreement and the other Loan
Documents, including, without limitation, any obligation to
make Revolving Credit Loans or to incur L/C Obligations under
the Credit Agreement;
(b) releases the Administrative Agent, the Collateral Agent and
the Lenders from any and all claims, liabilities, damages,
costs and expenses now existing or hereafter arising out of or
in connection with the Credit Agreement and the other Loan
Documents;
(c) agrees that it shall pay (i) on demand, from time to time, to
the Collateral Agent the full amount of customer checks and
other remittances which have been applied to the Obligations
(or credited for the purposes of determining the amounts set
forth on SCHEDULE 2 hereto) and which are returned unpaid or
reversed for any reason and (ii) on the date hereof, all
reasonable costs and expenses, including, without limitation,
reasonable legal fees, in connection with the preparation of
draft payoff and release letters and the preparation,
execution and delivery of this Assignment and Acceptance and
the performance of any other acts required to effect the
release of any security interest, hypothec, assignment, charge
or pledge granted under the Loan Documents, (iii) on the date
hereof, any and all taxes and fees payable in connection with
the execution and delivery, filing or recording of this
Assignment and Acceptance and other instruments and documents
to be delivered hereunder, and further agrees to save
Administrative Agent, the Collateral Agent and the Lenders
harmless from and against any and all liabilities with respect
to or resulting from any reasonable delay in paying or
omitting to pay such taxes or fees and (iv) on demand, from
time to time, to the Collateral Agent, normal and customary
fees, charges and expenses incurred by the Collateral Agent in
respect of the letters of credit identified in SCHEDULE 3
hereto; and
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(d) agrees that it shall be liable with respect to, and shall
indemnify and hold the Administrative Agent, the Collateral
Agent and the Lenders harmless from, the amount of any payment
by it to the relevant Administrative Agent, the relevant
Collateral Agent and the relevant Lenders which any of them is
for any reason compelled to surrender to any person because
such payment is determined to be void or voidable as a
preference, an impermissible setoff, a diversion of trust
funds or for any other reason, until the Administrative Agent,
the Collateral Agent and such Lenders shall have been finally
and irrevocably paid all Obligations in full in cash.
11. All payments by the successor Administrative Agent, each Borrower
and each Guarantor to the Administrative Agent pursuant to this Assignment and
Acceptance shall be made by wire transfer as follows:
Bank: Bankers Trust Company, New York,
New York
ABA No.: 000000000
Account No.: 00-000-000
Account Name: General Electric Capital Corporation
Reference: CFC - Xxxxxx Chemical
12. Each party hereto agrees that the assignments of the Assigned
Interests hereunder shall be effective notwithstanding that such assignments may
not comply in all respects with the provisions of the Credit Agreement.
13. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York (without regard to the
conflict of laws provisions thereof other than ss.5-1401 of the New York General
Obligations Law).
14. This Assignment and Acceptance may be executed by one or more of
the parties to this Assignment and Acceptance in any number of separate
counterparts (including by telecopy), and all of such counterparts taken
together shall be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of April 1, 1998 by their respective duly
authorized officers.
The Assignors:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Lender
By: _/s/ Xxxx Luck________________
Name:
Being Duly Authorized
BANKBOSTON, N.A., as Lender
By: _/s/ Xxxx X. Forti____________
Name: Xxxx X. Xxxxx
Title: Vice President
XXXXXX FINANCIAL INC., as Lender
By: _/s/ Xxxxxx X. Bukowski_______
Name: Xxxxxx X. Xxxxxxxx
Title: Sr. Vice President
BANKAMERICA BUSINESS CREDIT, INC., as
Lender
By: _/s/ Xxxxxxx X. Gray__________
Name: Xxxxxxx X. Xxxx
Title: Sr. Account Executive
THE CIT GROUP/BUSINESS CREDIT INC.,
as Lender
By: _/s/ Xxxxxx Cangelosi_________
Name: Xxxxxx Xxxxxxxxx
Title: Assistant Secretary
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The Assignee:
IMC GLOBAL INC.
By: _/s/ Xxxx X. Martinez_________
Name: Xxxx X. Xxxxxxxx
Title: Assistant Treasurer
By: _/s/ Xxxx Xxxxx Williams______
Name: Rose Xxxxx Xxxxxxxx
Title: Corporate Secretary
Borrowers and Guarantors:
NORTH AMERICAN SALT COMPANY,
as Borrower
By: _/s/ Xxxxxxx X. Nick__________
Name: Xxxxxxx X. Xxxx
Title: Sr. Vice President
NORTH AMERICAN CHEMICAL
COMPANY, as Borrower
By: _/s/ Xxxxxxx X. Nick_________
Name: Xxxxxxx X. Xxxx
Title: Vice President
GREAT SALT LAKE MINERALS
CORPORATION, as Borrower
By: _/s/ Xxxxxxx X. Nick_________
Name: Xxxxxxx X. Xxxx
Title: Vice President
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XXXXXX CHEMICAL NORTH
AMERICA INC., as Guarantor
By: _/s/ Xxxxxxx X. Nick_________
Name: Xxxxxxx X. Nick
Title: Vice President
NAMSCO, INC., as Guarantor
By: _/s/ Xxxxxxx X. Nick_________
Name: Xxxxxxx X. Nick
Title: Vice President
XXXXX SALT COMPANY, as Guarantor
By: _/s/ Xxxxxxx X. Nick__________
Name: Xxxxxxx X. Xxxx
Title: Vice President
GSL CORPORATION, as Guarantor
By: _/s/ Xxxxxxx X. Nick__________
Name: Xxxxxxx X. Xxxx
Title: Vice President
GSL HOLDINGS INC., as Guarantor
By: ___n/a_______________________
Name:
Title:
THE XXXXXXXXXX & NORTHERN
RAILWAY COMPANY, as Guarantor
By: _/s/ Xxxxxxx X. Nick_________
Name: Xxxxxxx X. Nick
Title: Vice President
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NORTH AMERICAN TERMINALS,
INC., as Guarantor
By: _/s/ Xxxxxxx X. Nick_________
Name: Xxxxxxx X. Nick
Title: Vice President
OLDEXAER, INC., as Guarantor
By: _/s/ Xxxxxxx X. Nick_________
Name: Xxxxxxx X. Nick
Title: Vice President
WRNM HOLDINGS, INC., as Guarantor
By: _/s/ Xxxxxxx X. Nick_________
Name: Xxxxxxx X. Nick
Title: Vice President
WHITE RIVER NAHCOLITE MINERALS
LIMITED LIABILITY COMPANY,
as Guarantor
By: _/s/ Xxxxxxx X. Nick_________
Name: Xxxxxxx X. Nick
Title: Manager
Accepted:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Administrative Agent and
Collateral Agent
By: _/s/ Xxxx Luck________________
Name:
Being Duly Authorized
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Accepted:
IMC GLOBAL INC., as successor Administrative
Agent and successor Collateral Agent
By: _/s/ Xxxx X. Martinez_________
Name: Xxxx X. Xxxxxxxx
Title: Assistant Treasurer
By:_/s/ Xxxx Xxxxx Williams_______
Name: Rose Xxxxx Xxxxxxxx
Title: Corporate Secretary
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SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
Relating to
the Credit and Guarantee Agreement, dated as of October 15, 1993, as amended
and restated as of February 27, 1997 (as further amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among North
American Chemical Company, North American Salt Company, Great Salt Lake Minerals
Corporation (collectively, the "Borrowers"), Xxxxxx Chemical North America,
Inc., as guarantor (together with the other "Guarantors", as defined under the
Credit Agreement, the "Guarantors"), the banks and other financial institutions
parties thereto (the "Lenders") and General Electric Capital Corporation, as
collateral agent (in such capacity, the "Collateral Agent") and administrative
agent (in such capacity, the "Administrative Agent") for the Lenders
-------------------------------------------------------------------------------------------------------------------
ASSIGNORS:
Name of Commitment -- Commitment Loans --
Assignor Credit Agreement Percentage Credit Agreement
-------- ---------------- ---------- ----------------
General Electric Capital Corporation $42,666,667 32.82051% $20,546,237.59
Xxxxxx Financial Inc. $35,000,000 26.92308% $16,854,338.90
BankBoston, N.A. $20,000,000 15.38462% $9,631,052.59
BankAmerica Business Credit, Inc. $17,333,333 13.33333% $8,346,907.65
The CIT Group/Business Credit Inc. $15,000,000 11.53846% $7,223,286.31
ASSIGNEE:
Name of Commitment -- Commitment Loans --
Assignee Credit Agreement Percentage Credit Agreement
IMC Global Inc. $130,000,000 100% $62,601,823.04
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SCHEDULE 2
TO ASSIGNMENT AND ACCEPTANCE
Relating to
the Credit and Guarantee Agreement, dated as of October 15, 1993, as amended
and restated as of February 27, 1997 (as further amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among North
American Chemical Company, North American Salt Company, Great Salt Lake Minerals
Corporation (collectively, the "Borrowers"), Xxxxxx Chemical North America,
Inc., as guarantor (together with the other "Guarantors", as defined under the
Credit Agreement, the "Guarantors"), the banks and other financial institutions
parties thereto (the "Lenders") and General Electric Capital Corporation, as
collateral agent (in such capacity, the "Collateral Agent") and administrative
agent (in such capacity, the "Administrative Agent") for the Lenders
INTEREST, FEES AND OTHER AMOUNTS
Accrued and unpaid interest on Eurodollar Loans as of the Effective Date: $0
Accrued and unpaid interest on Base Rate Loans (including all Swing Line $144,137.48
Loans) as of the Effective Date:
Accrued and unpaid Letter of Credit Commissions as of the Effective Date: $161,563.44
Accrued and unpaid Commitment Fees as of the Effective Date: $73,976.55
Unpaid reimbursable expenses of the Administrative Agent and the Collateral
Agent as of the Effective Date: $21,000.00
------------
Total: $400,677.47
============
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SCHEDULE 3
TO ASSIGNMENT AND ACCEPTANCE
Relating to
the Credit and Guarantee Agreement, dated as of October 15, 1993, as amended
and restated as of February 27, 1997 (as further amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among North
American Chemical Company, North American Salt Company, Great Salt Lake Minerals
Corporation (collectively, the "Borrowers"), Xxxxxx Chemical North America,
Inc., as guarantor (together with the other "Guarantors", as defined under the
Credit Agreement, the "Guarantors"), the banks and other financial institutions
parties thereto (the "Lenders") and General Electric Capital Corporation, as
collateral agent (in such capacity, the "Collateral Agent") and administrative
agent (in such capacity, the "Administrative Agent") for the Lenders
LETTERS OF CREDIT
L/C No. Beneficiary Amount Expiry Date Issuing Bank
00000000 COUNTY OF SAN BERNARDINO OR THE $904,405.00 3/24/99 BankBoston
CALIFORNIA DEPARTMENT OF
CONSERVATION
50079505 AMERICAN INTERNATIONAL GROUP $2,118,000.00 3/24/99 BankBoston
00000000 FIREMAN'S FUND INSURANCE $20,000.00 3/25/99 BankBoston
COMPANY
50079488 LOUISIANA DEPT OF EMPLOYMENT $450,000.00 3/24/99 BankBoston
AND TRAINING OFFICE OF WORKERS
COMPENSATION
50079487 ACSTAR INSURANCE COMPANY $119,600.00 3/27/99 BankBoston
00000000 ACSTAR INSURANCE COMPANY $4,155,00.00 3/27/99 BankBoston
00000000 UTAH DIVISION OF OIL, GAS AND $298,900.00 4/8/99 BankBoston
MINING
50079486 RELIANCE NATIONAL INDEMNITY CO. $2,275,215.00 5/1/99 BankBoston
00000000 SAN DIEGO UNIFIED PORT AUTHORITY $300,000.00 4/30/99 BankBoston
00000000 KREDIETBANK NV $110,000.00 4/30/99 BankBoston
S970253 GENERAL ELECTRIC CAPITAL $5,860,441.00 7/14/98 ABN AMRO
CORPORATION
S970254 GENERAL FOODS CREDIT INVESTORS $7,511,927.00 7/14/98 ABN AMRO
SA99548096 STATE OF COLORADO MINED LAND $150,750.00 3/31/99 NationsBank
RECLAMATION BOARD
SA99516096 COLORADO NATIONAL BANK $1,083,332.81 8/31/98 NationsBank
SA99517096 WHITE RIVER ELECTRIC ASSOCIATION, $492,579.15 3/31/99 NationsBank
(also identified as INC.
099517AVA99517)
----------------
TOTAL: $25,850,149.96
================
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