Exhibit 4.3
AMENDED AND RESTATED CREDIT AGREEMENT dated as of December 20, 1996,
among FM PROPERTIES OPERATING CO., a Delaware general partnership
(the "Partnership" or the "Borrower"), FREEPORT-McMoRan INC., a
Delaware corporation ("FTX" or the "Guarantor"), the undersigned banks
(collectively, the "Banks") and THE CHASE MANHATTAN BANK (successor by
merger to Chemical Bank and The Chase Manhattan Bank (National Association)),
a New York banking corporation ("Chase"), as administrative agent for the
Banks (in such capacity, the "Administrative Agent"), as FTX Collateral
Agent (as herein defined) and as Documentation Agent for the Banks (in such
capacity, the "Documentation Agent"; the Administrative Agent, the FTX
Collateral Agent and the Documentation Agent being, collectively, the
"Agents").
A. FTX has a 0.2% general partnership interest in
and serves as managing general partner of the Partnership,
and the Company (as herein defined) directly and indirectly
has the remaining 99.8% general partnership interest in the
Partnership.
B. FTX and the Partnership have requested the
Banks to extend credit, subject to the terms and conditions
of this Agreement, including a guaranty by FTX of such
extensions of credit to the Partnership, in order to enable
the Partnership to borrow on a revolving basis, at any time
and from time to time prior to the Maturity Date (as herein
defined), an aggregate principal amount at any time
outstanding not in excess of $10,000,000. The proceeds of
such borrowings are to be used to refinance certain existing
borrowings and for general partnership purposes, subject to
certain limitations provided herein. The Banks are willing
to extend such credit to the Partnership on the terms and
subject to the conditions herein set forth.
C. FTX is party to the FTX Credit Agreement (as
herein defined). Certain terms and provisions used or set
forth in the FTX Credit Agreement are incorporated by
reference herein, as specified below, and wherever so
incorporated shall be deemed to be a part hereof as though
fully set forth herein. Wherever any provisions of the FTX
Credit Agreement are incorporated by reference herein, such
provisions shall be deemed to be so incorporated with the
same effect as though fully set forth herein, it being
understood that any reference in such provisions to "this
Agreement" shall be deemed to be a reference to this
Agreement, as appropriate.
Accordingly, FTX, the Partnership, the Banks and
the Agents agree as follows:
ARTICLE I.
Definitions
SECTION 1.11834 Definitions. As used in this
Agreement, the following terms have the meanings indicated
(any term defined in this Article I or elsewhere in this
Agreement in the singular and used in this Agreement in the
plural shall include the plural, and vice versa):
"Administrative Questionnaire" means an
Administrative Questionnaire in the form of Exhibit C
hereto.
"Administrative Services Agreement" means the
Administrative Services Agreement dated as of June 11, 1992,
between FTX and the Company, in the form provided prior to
the Closing Date by FTX to the Banks, as amended and in
effect from time to time.
"Affiliate" means, when used with respect to a
specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or
is Controlled by or is under common Control with the Person
specified.
"Alternate Base Rate" means, for any day, a rate
per annum (rounded upwards, if not already a whole multiple
of 1/100 of 1%, to the next higher 1/100 of 1%) equal to the
greatest of (a) the Prime Rate in effect on such day,
(b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect for such day
plus 1/2 of 1%. For purposes hereof, the term "Prime Rate"
means the rate of interest per annum publicly announced from
time to time by Chase as its prime rate in effect at its
principal office in the City of New York; each change in the
Prime Rate shall be effective on the date such change is
publicly announced as being effective. "Base CD Rate" means
the sum of (x) the product of (i) the Three-Month Secondary
CD Rate and (ii) Statutory Reserves and (y) the Assessment
Rate. "Three-Month Secondary CD Rate" means, for any day,
the secondary market rate for three-month certificates of
deposit reported as being in effect on such day (or, if such
day shall not be a Business Day, the next preceding Business
Day) by the Board through the public information telephone
line of the Federal Reserve Bank of New York (which rate
will, under the current practices of the Board, be published
in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day,
the average of the secondary market quotations for three-
month certificates of deposit of major money center banks in
New York City received at approximately 10:00 a.m., New York
City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by the
Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing
selected by it. "Federal Funds Effective Rate" means, for
any day, the weighted average of the rates on overnight
Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average
of the quotations for the day of such transactions received
by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it. If for any reason
the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error)
that it is unable to ascertain the Base CD Rate or the
Federal Funds Effective Rate or both for any reason,
including the inability or failure of the Administrative
Agent to obtain sufficient quotations in accordance with the
terms hereof, the Alternate Base Rate shall be determined
without regard to clause (b) or (c), or both, of the first
sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist.
Any change in the Alternate Base Rate due to a change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal
Funds Effective Rate shall be effective on the effective
date of such change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
"Applicable LIBO Rate" means, on a per annum basis
in respect of any LIBO Rate Loan, for each day during the
Interest Period for such Loan, the sum of (i) the LIBO Rate
as determined by the Administrative Agent plus (ii) the
Applicable Margin.
"Applicable Margin" means, with respect to any
Loan, the applicable percentage set forth on Schedule I
hereto.
"Applicable Percentage" of any Bank means the
percentage set opposite such Bank's name on Schedule II
hereto, as modified from time to time as provided hereby.
"Applicable Reference Rate" means, on a per annum
basis in respect of any Reference Rate Loan, for any day,
the sum of the Alternate Base Rate plus the Applicable
Margin.
"Assessment Rate" means, with respect to each day
during an Interest Period, the annual rate (rounded upwards,
if not already a whole multiple of 1/100 of l%, to the next
highest whole multiple of 1/100 of 1%) most recently
estimated by the Administrative Agent as the then current
net annual assessment rate that will be employed in
determining amounts payable by Chase to the Federal Deposit
Insurance Corporation or any successor ("FDIC") for the
FDIC's insuring time deposits made in Dollars at offices of
Chase in the United States.
"Bank" means each bank signatory hereto and its
successors and permitted assigns under Section 9.3.
"Board" means the Board of Governors of the
Federal Reserve System of the United States.
"Borrowing" means a group of Loans of a single
type made by the Banks on a single date and as to which a
single Interest Period is in effect.
"Borrowing Date" means, with respect to any Loan,
the date on which such Loan is disbursed.
"Xxxxx Parties" means, collectively, Xxxxx Oil Co.
(formerly Pel-Tex Oil Company, Inc.), Xxxxxxx Oil Company,
Inc., Xxxxx and Pel-Tex Oil Company, Inc., doing business as
Burmont Company, Xxxx X. Xxxxx, Xx. and Xxx Xxxxxxx Xxxxx,
as assignors of the Pel-Tex Agreements to the Pel-Tex
Lenders.
"Business Day" means any day other than a
Saturday, Sunday or a day on which banks in New York City
are authorized or required by law to close; provided,
however, that when used in connection with a LIBO Rate Loan,
the term "Business Day" shall also exclude any day on which
banks are not open for dealings in Dollar deposits in the
London interbank market.
"Capitalized Lease Obligation" means the
obligation of any Person to pay rent or other amounts under
a lease of (or other agreement conveying the right to use)
real and/or personal property which obligation is, or in
accordance with GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting
Standards Board) is required to be, classified and accounted
for as a capital lease on a balance sheet of such Person
under GAAP, and for purposes of this Agreement the amount of
such obligation shall be the capitalized amount thereof
determined in accordance with GAAP.
A "Change in Control" shall be deemed to have
occurred if FTX shall for any reason cease to be the sole
managing general partner of the Partnership or the functions
of FTX as the managing general partner of the Partnership
shall generally be carried out for any reason by any person
other than FTX; provided that no Change in Control shall be
deemed to have occurred if any subsidiary of FTX designated
by FTX to discharge the duties of FTX as the managing
general partner of the Partnership shall carry out the func-
tions of FTX as managing general partner of the Partnership.
"Circle C Property" means the assets of the TCB
Borrower referred to as the "Property" in the Option
Agreement dated as of February 6, 1992, between the TCB
Borrower and Xxxxx X. Xxxxxxxx, as Trustee.
"Circle C Entity" means any entity which purchases
the Circle C Property pursuant to the Option Agreement dated
as of February 6, 1992, between the TCB Borrower and Xxxxx
X. Xxxxxxxx, as Trustee.
"City of Austin Receivable" means all obligations
of the City of Austin, Texas to the Partnership, whether now
existing or hereafter created, incurred in connection with
the infrastructure development work being conducted on the
property of the Partnership located on the Lantana property
in Xxxxxx County, Texas.
"Closing Date" means June 30, 1995.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Commitment" means, with respect to each Bank, the
Commitment of such Bank hereunder to make revolving loans as
set forth on Schedule II hereto, or in the Commitment
Transfer Supplement pursuant to which such Bank assumed its
Commitment, as the same may be permanently terminated or
reduced from time to time pursuant to Section 2.7 and
pursuant to assignments by such Bank pursuant to
Section 9.3. The Commitment of each Bank shall
automatically and permanently terminate on the Maturity
Date.
"Commitment Fee" has the meaning assigned to such
term in Section 2.6(a).
"Commitment Termination Date" has the meaning
assigned to such term in Section 2.6(a).
"Commitment Transfer Supplement" means a
Commitment Transfer Supplement entered into by a Bank and an
assignee, and accepted by the Administrative Agent, in the
form of Exhibit D hereto or such other form as shall be
approved by the Administrative Agent.
"Company" means FM Properties Inc., a Delaware
corporation, which holds directly and indirectly a 99.8%
general partnership interest in the Partnership.
"Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of
the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise,
and "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Default" means any event or condition which upon
the giving of notice or lapse of time or both would become
an Event of Default.
"Distribution Agreement" means the Distribution
Agreement dated as of June 10, 1992, among FTX, the Company
and the Partnership, in the form provided prior to the
Closing Date by FTX to the Banks, as amended and in effect
from time to time.
"Dollars" or "$" means United States Dollars.
"Domestic Office" means, for any Bank, the
Domestic Office set forth for such Bank on the signature
pages hereof, unless such Bank shall designate a different
Domestic Office by notice in writing to the Administrative
Agent and the Borrower.
"environment" means ambient air, surface water and
groundwater (including potable water, navigable water and
wetlands), the land surface or subsurface strata or as
otherwise defined in any Environmental Law.
"Environmental Claim" means any written notice of
violation, claim, demand, order, directive, cost recovery
action or other cause of action by, or on behalf of, any
Governmental Authority or any Person for damages, injunctive
or equitable relief, personal injury (including sickness,
disease or death), Remedial Action costs, tangible or
intangible property damage, natural resource damages,
nuisance, pollution, any adverse effect on the environment
caused by any Hazardous Material, or for fines, penalties or
restrictions, resulting from or based upon: (a) the
existence, or the continuation of the existence, of a
Release (including sudden or non-sudden, accidental or non-
accidental Releases); (b) exposure to any Hazardous
Material; (c) the presence, use, handling, transportation,
storage, treatment or disposal of any Hazardous Material; or
(d) the violation of any Environmental Law or Environmental
Permit.
"Environmental Law" means any and all applicable
treaties, laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural
resources, the management, Release or threatened Release of
any Hazardous Material or to health and safety matters,
including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986,
42 U.S.C. Sections 9601 et seq. (collectively "CERCLA"), the Solid
Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and Hazardous and Solid Amendments
of 1984, 42 U.S.C. Sections 6901 et seq., the Federal Water
Pollution Control Act, as amended by the Clean Water Act of
1977, 33 U.S.C. Sections 1251 et seq., the Clean Air Act of 1970,
as amended, 42 U.S.C. Sections 7401 et seq., the Toxic Substances
Control Act of 1976, 15 U.S.C. Sections 2601 et seq., the
Occupational Safety and Health Act of 1970, as amended,
29 U.S.C. Sections 651 et seq., the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. Sections 11001 et
seq., the Safe Drinking Water Act of 1974, as amended,
42 U.S.C. Sections 300(f) et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. Sections 1801 et seq., and any
similar or implementing state or local law, and all
amendments or regulations promulgated thereunder.
"Environmental Permit" means any permit, approval,
authorization, certificate, license, variance, filing or
permission required by or from any Governmental Authority
pursuant to any Environmental Law.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time.
"ERISA Affiliate" means any trade or business
(whether or not incorporated), that together with the
Borrower, is treated as a single employer under
Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated
as a single employer under Section 414 of the Code.
"ERISA Event" means (i) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued
thereunder, with respect to a Plan; (ii) the adoption of any
amendment to a Plan that would require the provision of
security pursuant to Section 401(a)(29) of the Code; (iii)
the existence with respect to any Plan of an "accumulated
funding deficiency" (as defined in Section 412 of the Code),
whether or not waived; (iv) the incurrence of any liability
under Title IV of ERISA with respect to any Plan or
Multiemployer Plan, other than any liability for
contributions not yet due or payment of premiums not yet
due; (v) the receipt by the Borrower or any ERISA Affiliate
from the PBGC of any notice relating to the intention of the
PBGC to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (vi) the receipt by the Borrower or
any ERISA Affiliate of any notice concerning the imposition
of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA; and
(vii) any other similar event or condition with respect to a
Plan or Multiemployer Plan that could reasonably result in
liability of the Borrower.
"Event of Default" means any Event of Default
defined in Article VI.
"Existing FM Credit Agreement" has the meaning
assigned such term in Section 5.1(c).
"FCX" means Freeport-McMoRan Copper & Gold Inc., a
Delaware corporation.
"FCX Credit Agreement" means the $200,000,000
Credit Agreement dated as of June 30, 1995, among FCX, FI,
certain banks, Chemical Bank, as Administrative Agent and
FCX Collateral Agent, The Chase Manhattan Bank (National
Association), as Documentary Agent, and First Trust of New
York, National Association, as FI Trustee, as such agreement
may be amended or restated and in effect from time to time.
"FCX Guaranty" means the FCX Guaranty Agreement
dated as of July 17, 1995, by FCX of the Loans, the Pel-Tex
Debt and the loans under the TCB Credit Agreement,
substantially in the form of Exhibit L hereto, as such
agreement may be amended and in effect from time to time.
"FCX Intercreditor Agreement" means the Inter-
creditor Agreement in the form of Exhibit H to the FCX
Credit Agreement, as such Agreement may be amended and in
effect from time to time.
"Financial Officer" of any entity means the prin-
cipal financial officer, principal accounting officer, trea-
surer, assistant treasurer or controller of such entity;
provided that the Financial Officers of FTX, as managing
general partner of the Partnership, shall be deemed to be
Financial Officers of the Partnership.
"FI" means P.T. Freeport Indonesia Company, a
limited liability company organized under the laws of
Indonesia and domesticated in Delaware.
"Florida Joint Venture Agreement" means the Joint
Venture Agreement dated as of June 11, 1992, between IMC-
Agrico and the Partnership, in the form provided prior to
the Closing Date by FTX to the Banks, as amended and in
effect from time to time.
"FM Florida Properties Co." means FM Florida Prop-
erties Co., a Delaware general partnership between the Part-
nership and IMC-Agrico, formed pursuant to the Florida Joint
Venture Agreement.
"FM Intercreditor Agreement" means the
Intercreditor Agreement among FTX, the Administrative Agent
and the Pel-Tex Agent in the form of Exhibit I hereto, as
such Agreement may be amended and in effect from time to
time.
"FMPO Deed of Trust" means the Deed of Trust
granted by the Partnership in favor of FTX in order to
secure the Partnership's obligations under the Reimbursement
Agreement.
"FRP" means Freeport-McMoRan Resource Partners,
Limited Partnership, a Delaware limited partnership.
"FTX Collateral Agent" means Chase in its capacity
as FTX Collateral Agent for the Lenders (as defined in the
FTX Intercreditor Agreement) under the FTX Security
Agreement.
"FTX Credit Agreement" means the Credit Agreement
dated as of June 30, 1995, among FTX, FRP, certain banks and
Chase, as Administrative Agent, FTX Collateral Agent and
Documentary Agent, as such agreement may be amended or
restated and in effect from time to time.
"FTX/FMPO Credit Agreement" means the Credit
Agreement dated as of the Funding Date, between FTX and the
Partnership, in the form of Exhibit H hereto, as such
agreement may be amended as permitted hereby and in effect
from time to time.
"FTX Guaranty" means the FTX Guaranty Agreement
dated as of July 17, 1995, providing for the guarantee by
FTX of the Loans, the Pel-Tex Debt and the loans under the
TCB Credit Agreement, substantially in the form of Exhibit K
hereto, as such agreement may be amended and in effect from
time to time.
"FTX Intercreditor Agreement" means the
Intercreditor Agreement entered into as of June 11, 1992, as
amended and restated in its entirety as of June 1, 1993, and
as of the Funding Date in the form attached to the FTX
Credit Agreement as Exhibit G, among the Administrative
Agent on behalf of the Banks, the FTX Agent on behalf of the
FTX Lenders, the Pel-Tex Agent on behalf of the Pel-Tex
Lenders (each as defined therein), TCB and Chase, as FTX
Collateral Agent, as such agreement may be further amended
or restated and in effect from time to time.
"FTX Loan" has the meaning assigned such term in
the last clause of Section 4.2(g).
"FTX Security Agreement" means the security
agreement in the form of Exhibit F to the FTX Credit
Agreement, executed by FTX and delivered to the FTX
Collateral Agent, as such agreement may be amended and in
effect from time to time.
"Funding Date" means July 17, 1995.
"GAAP" has the meaning assigned to such term in
Section 1.2.
"Governmental Authority" means any Federal, state,
local or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"Guarantee" means, with respect to any Person, any
obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing
any Indebtedness or obligation of any other Person in any
manner, whether directly or indirectly, and including,
without limitation, any agreement or obligation (i) to pay
dividends or other distributions upon the stock of such
other Person, or any obligation of such other Person, direct
or indirect, (ii) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or
obligation or to purchase (or advance or supply funds for
the purchase of) any security for the payment of such
Indebtedness, obligation, dividend or distribution, (iii) to
purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness or
obligation or the holder of such stock of the payment of
such Indebtedness, obligation, dividend or distribution,
including, without limitation, any take-or-pay contract or
agreement to buy a minimum amount or quantity of production
or to provide an operating subsidy which, in each case, is
utilized for a third party financing, or (iv) to maintain
working capital, equity capital or any other financial
statement condition of the primary obligor, so as to enable
the primary obligor to pay such Indebtedness, obligation,
dividend or distribution; provided, however, that the term
Guarantee shall not include any endorsement for collection
or deposit in the ordinary course of business.
"Guaranties" shall mean the FCX Guaranty and the
FTX Guaranty.
"Hazardous Materials" means all explosive or
radioactive substances or wastes, hazardous or toxic
substances or wastes, pollutants, solid, liquid or gaseous
wastes, including petroleum or petroleum distillates,
asbestos or asbestos-containing materials, polychlorinated
biphenyls ("PCBs") or PCB-containing materials or equipment,
radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedge Agreement" means any interest rate,
currency or commodity swap, cap, floor or collar agreement
or similar hedging arrangement providing for the transfer or
mitigation of interest rate, commodity price or currency
value or exchange rate risks, either generally or under
specific contingencies.
"IMC-Agrico" means the general partnership formed
pursuant to the IMC-Agrico Partnership Agreement.
"IMC-Agrico Partnership Agreement" means the
Amended and Restated Partnership Agreement dated as of
July 1, 1993, by and among Agrico LP, a Delaware limited
partnership, IMC-Agrico GP Company, a Delaware corporation,
and IMC-Agrico MP Inc., a Delaware corporation, as amended
and in effect from time to time as permitted by
Section 5.2(r) of the FTX Credit Agreement as incorporated
herein by reference.
"Indebtedness" of any Person means, without
duplication, (a) all obligations of such Person for borrowed
money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (c) all
obligations of such Person for the unearned balance of any
payment received under any contract outstanding for 180
days, (d) all obligations of such Person under conditional
sale or other title retention agreements relating to
property or assets purchased by such Person, (e) all
obligations of such Person issued or assumed as the deferred
purchase price of property or services (excluding trade
accounts payable and accrued obligations incurred in the
ordinary course of business so long as the same are not
180 days overdue or, if overdue, are being contested in good
faith and by appropriate proceedings), (f) all Indebtedness
of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on property owned or acquired by
such Person, whether or not the obligations secured thereby
have been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capitalized Lease
Obligations of such Person, (i) all recourse obligations of
such Person with respect to sales of accounts receivable
which would be shown under GAAP on the balance sheet of such
Person as a liability, (j) all obligations of such Person as
an account party (including reimbursement obligations to the
issuer of a letter of credit) in respect of bankers'
acceptances and letters of credit Guaranteeing Indebtedness
and (k) all non-contingent obligations of such Person as an
account party (including reimbursement obligations to the
issuer of a letter of credit) in respect of letters of
credit other than those referred to in clause (j) above.
The Indebtedness of any Person shall include the
Indebtedness of any partnership in which such Person is a
general partner but shall exclude obligations under leases
which are characterized as Operating Leases.
"Intercreditor Documents" means the FM
Intercreditor Agreement and the FTX Intercreditor Agreement.
"Interest Payment Date" means (i) as to any
Reference Rate Loan, the next succeeding March 31, June 30,
September 30 or December 31 (subject to Section 2.16), or if
earlier, the Maturity Date, and (ii) as to any LIBO Rate
Loan, the last day of the Interest Period applicable to such
Loan (and, in the case of any Interest Period of more than
three months' duration, the date that would be the last day
of such Interest Period if such Interest Period were of
three months' duration) and the date of any continuation or
conversion of such Loan as or into a Loan of the same or a
different type.
"Interest Period" means (i) as to any LIBO Rate
Loan, the period commencing on the date of such LIBO Rate
Loan or on the last day of the immediately preceding
Interest Period applicable to such Loan, as the case may be,
and ending on the numerically corresponding day (or, if
there is no numerically corresponding day, on the last day)
in the calendar month that is 1, 2, 3 or 6 months
thereafter, as the Borrower may elect, and (ii) as to any
Reference Rate Loan, the period commencing on the date of
such Reference Rate Loan or on the last day of the
immediately preceding Interest Period applicable to such
Loan, as the case may be, and ending on the earliest of
(x) the next succeeding March 31, June 30, September 30 or
December 31, (y) the Maturity Date and (z) the date such
Loan is prepaid or converted as permitted hereby; provided,
however, that (1) if any Interest Period would end on a day
that shall not be a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless, with
respect to LIBO Rate Loans only, such next succeeding
Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding
Business Day, (2) no Interest Period with respect to any
Loan shall end later than the Maturity Date and (3) interest
shall accrue from and including the first day of an Interest
Period to but excluding the last day of such Interest
Period.
"Key Assets" means the properties and assets of
the Borrower shown on Schedule III hereto.
"LIBO Rate" means, with respect to any LIBO Rate
Loan for any Interest Period, an interest rate per annum
(rounded upwards, if not already a whole multiple of 1/100
of 1%, to the next higher 1/100 of 1%) equal to the
arithmetic average of the respective rates per annum at
which Dollar deposits approximately equal in principal
amount to Chase's portions of such LIBO Rate Loan and for a
maturity equal to the applicable Interest Period are offered
in immediately available funds to the principal London
offices of Chase in the London Interbank Market at
approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
"LIBO Rate Loan" means any Loan for which interest
is determined, in accordance with the provisions hereof, at
the Applicable LIBO Rate.
"LIBOR Office" means, for any Bank, the LIBOR
Office set forth for such Bank on the signature pages hereof
or as otherwise notified in writing to the Administrative
Agent and the Borrower, unless such Bank shall designate a
different LIBOR Office by notice in writing to the
Administrative Agent and the Borrower.
"Lien" means with respect to any asset, (a) a
mortgage, deed of trust, lien, pledge, encumbrance, charge
or security interest in or on such asset, (b) the interest
of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement
relating to such asset, (c) in the case of securities, any
purchase option, call or similar right of a third party with
respect to such securities and (d) other encumbrances of any
kind, including, without limitation, production payment
obligations.
"Loans" means the revolving loans made by the
Banks to the Borrower pursuant to Section 2.1. Each Loan
shall be either a LIBO Rate Loan or a Reference Rate Loan.
"Loan Documents" means this Agreement, the
Promissory Notes, the FTX Guaranty, the Intercreditor
Agreements, the FTX Security Agreement and all other
agreements, certificates and instruments now or hereafter
entered into in connection with any of the foregoing, in
each case as amended and modified from time to time.
"Margin Stock" has the meaning assigned to such
term in Regulation U.
"Material Adverse Effect" means (a) a materially
adverse effect on the business, assets, operations,
prospects or condition, financial or otherwise, of the
Guarantor or the Borrower and the Subsidiaries taken as a
whole, (b) material impairment of the ability of the
Guarantor or the Borrower or any of the Subsidiaries to
perform any of its obligations under any Loan Document to
which it is or will be a party or (c) material impairment of
the rights of or benefits available to the Banks under any
Loan Document.
"Material Agreements" means the Distribution
Agreement, the Partnership Agreement, the Administrative
Services Agreement, the Florida Joint Venture Agreement, the
Reimbursement Agreement and the FTX/FMPO Credit Agreement.
"Material Asset" means any single asset of the
Partnership for which, upon the sale thereof, the
Partnership receives in excess of $100,000 in Net Proceeds.
"Maturity Date" means February 28, 1998, or, if
earlier, the date of termination of the Commitments pursuant
to the terms hereof.
"MUD Proceeds" has the meaning assigned to such
term in Section 4.2(g)(vi).
"Multiemployer Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the Borrower
or any ERISA Affiliate is making or accruing an obligation
to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make
contributions.
"Net Proceeds" shall mean in connection with any
permitted asset sale, the proceeds thereof (including any
condemnation award and any payment or settlement of a
casualty insurance claim not used to restore the related
property) in the form of cash or cash equivalents (including
any such proceeds received by way of deferred payment of
principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only
as and when received), net of the following, without
duplication: (i) customary and reasonable attorneys' fees,
accountants' fees, investment banking fees, brokerage
commissions, all closing costs, and other customary fees and
expenses actually incurred in connection therewith as
transaction costs, and bona fide reserves and deposits, and
(ii) any taxes paid or reasonably estimated to be payable
solely in respect of such permitted asset sale as a result
thereof by the owner of such asset (after taking into
account any available tax credits or deductions).
"1995 FM Form 10-K" means the Annual Report on
Form 10-K of the Company for the year ended December 31,
1995.
"1995 FTX Form 10-K" means the Annual Report on
Form 10-K of FTX for the year ended December 31, 1995.
"Operating Lease" means any lease other than a
lease giving rise to a Capitalized Lease Obligation.
"Partnership Agreement" means the Amended and
Restated Agreement of General Partnership dated as of June
11, 1992, among FTX, the Company and FMOP Sub Inc., in the
form provided prior to the Closing Date by FTX to the Banks,
as amended and in effect from time to time.
"Partnership Obligations" means the principal and
interest on each Loan and all other amounts payable by the
Borrower hereunder and under the other Loan Documents,
including fees, indemnities and reimbursement of costs and
expenses.
"PBGC" means the Pension Benefit Guaranty
Corporation referred to and defined in ERISA.
"Pel-Tex Agent" means Hibernia National Bank, as
Agent for the Pel-Xxx Xxxxx.
"Pel-Tex Agreements" means the Note Agreement and
related documents dated as of December 31, 1985, as amended
and restated and in effect from time to time, between the
Partnership (as ultimate successor to FMP Operating Company)
and the Pel-Xxx Xxxxx (as successor to the Xxxxx Parties).
"Pel-Tex Bank Agreement" means the Credit Agree-
ment dated as of December 31, 1985, as amended and in effect
from time to time, among the Xxxxx Parties, the Pel-Xxx
Xxxxx and the Pel-Tex Agent.
"Pel-Xxx Xxxxx" means, collectively, the banks
which were parties to the Pel-Tex Bank Agreement and, in
connection with satisfaction on the Xxxxx Parties of the
Pel-Tex Bank Agreement, became the successors to the Xxxxx
Parties under the Pel-Tex Agreements (and the successors and
assigns of such banks).
"Pel-Tex Debt" means the Indebtedness permitted by
Section 4.2(g)(i).
"Pel-Tex Lenders" means, collectively, the Pel-Xxx
Xxxxx and the Pel-Tex Agent.
"Pel-Tex Obligations" means, without duplication,
all amounts owing by, and all other obligations (including,
without limitation, in respect of fees, indemnities and
reimbursement of costs or expenses), whether direct or
contingent, now or hereafter existing, due or to become due,
monetary or otherwise, of the Partnership to the Pel-Tex
Lenders in connection with the Pel-Tex Agreements.
"Permitted Investments" means:
(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally
guaranteed by, the United States of America, in each
case maturing within 90 days from the date of acquisi-
tion thereof;
(b) investments in commercial paper maturing
within 90 days from the date of acquisition thereof and
having, at such date of acquisition, an A-1 credit
rating from Standard & Poor's Corporation or a P-1
credit rating from Xxxxx'x Investors Service, Inc.;
(c) investments in certificates of deposit,
banker's acceptances and time deposits (onshore or
offshore) maturing within 90 days from the date of
acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or
offered by, any commercial bank, foreign or domestic,
having a short-term deposit rating issued by Xxxxx'x
Investor Service, Inc. of P-1;
(d) investments in readily marketable money market
funds having assets in excess of $1,000,000,000, which
assets have an average life of less than one year; and
(e) other investment instruments approved in writ-
ing by the Required Banks.
"Permitted Swap" means any Hedge Agreement between
the Partnership or any Subsidiary and any Bank or its
Affiliates that shall not require the payment of any up-
front fee or other up-front amount or any advance payment
(including such a payment in lieu of periodic payments of
amounts accrued during any period).
"Person" means any natural person, corporation,
partnership, joint venture, trust, incorporated or
unincorporated association, joint stock company, government
(or an agency or political subdivision thereof) or other
entity of any kind.
"Plan" means any employee pension benefit plan
(other than a Multiemployer Plan) which is subject to the
provisions of Title IV of ERISA or Section 412 of the Code
and in respect of which the Borrower or any ERISA Affiliate
is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Promissory Notes" means the promissory notes of
the Borrower referred to in Section 2.4.
"Property" has the meaning assigned such term in
Section 3.1(k).
"Reimbursement Agreement" means the Reimbursement
Agreement between the Partnership and FTX in the form of
Exhibit J hereto, as such agreement may be amended as
permitted hereby and in effect from time to time.
"Reference Rate Loan" means any Loan for which
interest is determined, in accordance with the provisions
hereof, at the Applicable Reference Rate.
"Register" has the meaning assigned such term in
Section 9.3(d).
"Regulation D" means Regulation D of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Regulation G" means Regulation G of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Regulation U" means Regulation U of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Regulation X" means Regulation X of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Release" means any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, disposing, depositing,
dispersing, emanating or migrating of any Hazardous Material
in, into, onto or through the environment.
"Remedial Action" means (a) "remedial action" as
such term is defined in CERCLA, 42 U.S.C. Section 9601(24),
and (b) all other actions required by any Governmental
Authority or voluntarily undertaken to: (i) cleanup,
remove, treat, xxxxx or in any other way address any
Hazardous Material in the environment; (ii) prevent the
Release or threat of Release, or minimize the further
Release, of any Hazardous Material so it does not migrate or
endanger or threaten to endanger public health, welfare or
the environment; or (iii) perform studies and investigations
in connection with, or as a precondition to, (i) or (ii)
above.
"Required Banks" means, subject to Section 9.7(b),
at any time Banks having Commitments representing at least
66-2/3% of the aggregate Commitments hereunder or, if the
Commitments have been terminated, Banks having outstanding
Loans representing at least 66-2/3% of the aggregate
principal amount of the outstanding Loans.
"Responsible Officer" of any entity means any
executive officer or Financial Officer of such entity and
any other officer or similar official thereof responsible
for the administration of the obligations of such entity in
respect of this Agreement; provided that the Responsible
Officers of FTX, as managing general partner of the
Partnership, shall be deemed to be Responsible Officers of
the Partnership.
"Restatement Agreement" means the Amendment
Agreement dated as of the date hereof, among the Borrower,
the Banks and the Agents.
"Restatement Closing Date" means the date upon
which the Restatement Agreement becomes effective in
accordance with its terms.
"Restricted Subsidiary" has the meaning assigned
to such term in the FTX Credit Agreement.
"Restructuring" means the transactions between FTX
and FCX (on the one hand) and RTZ, RTZ Indonesia and RTZ
America (on the other hand) pursuant to the Stock Purchase
Agreement and the distribution on a generally tax free basis
(subject to exceptions approved by the Administrative Agent
and the Documentation Agent) by FTX to its shareholders of
the shares of FCX, thereby leaving FTX as a holding company
for FRP and leaving FCX as the publicly held holding company
for FI, together with arrangements required by or
effectuated in connection with such distribution with
respect to existing contractual agreements and indebtedness
of FTX, FRP, FCX and FI, all on terms substantially the same
as those set forth in Schedule XI to the FTX Credit
Agreement or otherwise satisfactory to the Required Banks
(including all tax, accounting, corporate and partnership
matters).
"RTZ" means the RTZ Corporation PLC, a company
organized under the laws of England.
"RTZ America" means RTZ America, Inc., a Delaware
corporation and a wholly owned subsidiary of RTZ.
"RTZ Indonesia" means RTZ Indonesia Limited, a
company organized under the laws of England and a wholly
owned subsidiary of RTZ.
"SEC" means the Securities and Exchange
Commission.
"Specified Entities" means FTX, the Company, the
Restricted Subsidiaries of FTX, the Partnership and the
Subsidiaries.
"Statutory Reserves" means a fraction (expressed
as a decimal), the numerator of which is the number one and
the denominator of which is the number one minus the
aggregate of the maximum reserve percentages (including,
without limitation, any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by
the Board and any other banking authority, domestic or
foreign, to which the Administrative Agent or any Bank
(including any branch, Affiliate, or other funding office
making or holding a Loan) is subject (a) with respect to the
Base CD Rate (as such term is used in the definition of
"Alternate Base Rate"), for new negotiable nonpersonal time
deposits in Dollars of over $100,000 with maturities
approximately equal to the applicable Interest Period, and
(b) with respect to the LIBO Rate, for Eurocurrency
Liabilities (as defined in Regulation D). Such reserve
percentages shall include, without limitation, those imposed
under Regulation D. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change
in any reserve percentage.
"Stock Purchase Agreement" means the Agreement
dated as of May 2, 1995, by and between FTX, FCX, RTZ, RTZ
Indonesia and RTZ America, as amended from time to time as
permitted by the FTX Credit Agreement.
"Subordination Terms" means the form of subordina-
tion terms set forth as Exhibit E hereto.
"subsidiary" means, with respect to any Person,
any corporation at least a majority of whose securities
having ordinary voting power for the election of directors
(other than securities having such power only by reason of
the happening of a contingency) are at the time owned by
such Person and/or one or more other subsidiaries of such
Person and any partnership (other than joint ventures for
which the intention under the applicable agreements, includ-
ing operating agreements, if any, is that such joint ven-
tures be partnerships solely for purposes of the Code) in
which such person or a subsidiary of such person is a
general partner.
"Subsidiary" means any subsidiary of the
Partnership; provided, however, that Circle C Land Corp. and
any Circle C Entity shall not be "Subsidiaries" for purposes
of this Agreement unless the Partnership is liable, directly
or indirectly, for the obligations under the TCB Credit
Agreement (except for any liability of the Partnership
pursuant to the Reimbursement Agreement).
"TCB" means Texas Commerce Bank National Associa-
tion, a national banking association (and its successors and
assigns).
"TCB Borrower" means the borrower under the TCB
Credit Agreement.
"TCB Borrower Properties" means the Mortgaged
Property described in (and as defined in) the TCB Deed of
Trust.
"TCB Collateral" means all of the TCB Borrower's
properties or assets, now owned or hereafter acquired,
including, without limitation, the TCB Borrower Properties.
"TCB Credit Agreement" means the Credit Agreement
dated as of February 6, 1992, as amended to the date hereof
and as further amended and in effect from time to time,
between the TCB Borrower and TCB.
"TCB Deed of Trust" means the Deed of Trust (with
security agreement and financing statement) recorded in
Volume 11620, Page 1213 of the real property records of
Xxxxxx County, Texas, and in the official public records of
Xxxx County, Texas.
"Threshold Amount" means, with respect to FTX
and/or its Restricted Subsidiaries, $10,000,000, and, with
respect to the Partnership or any Subsidiary, $5,000,000.
"Total Commitment" means the sum of all the then
effective Commitments.
"Transfer Effective Date" has the meaning assigned
to such term in each Commitment Transfer Supplement.
"Transferee" means any Participant or Purchasing
Bank, as such terms are defined in Section 9.3.
"Withdrawal Liability" means liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 2.11834 Accounting Terms. Except as
otherwise herein specifically provided, each accounting term
used herein shall have the meaning given it under United
States generally accepted accounting principles in effect
from time to time (with such changes thereto as are approved
or concurred in from time to time by the Partnership's or
FTX's independent public accountants, as applicable) applied
on a basis consistent with those used in preparing the
financial statements referred to in Section 5.1(a) of the
FTX Credit Agreement ("GAAP"); provided, however, that each
reference in Section 4.2, or in the definition of any term
used in Section 4.2, to GAAP shall mean generally accepted
accounting principles as in effect on the Closing Date and
as applied by FTX in preparing the financial statements
referred to in Section 3.1(e). In the event any change in
GAAP materially affects any provision of this Agreement, the
Banks and the Borrower agree that they shall negotiate in
good faith in order to amend the affected provisions in such
a way as will restore the parties to their respective
positions prior to such change, and until such amendment
becomes effective the Borrower's compliance with such
provisions shall be determined on the basis of GAAP as in
effect immediately before such change in GAAP became
effective.
SECTION 3.11834 Section, Article, Exhibit and
Schedule References, etc. Unless otherwise stated, Section,
Article, Exhibit and Schedule references made herein are to
Sections, Articles, Exhibits or Schedules, as the case may
be, of this Agreement. Whenever the context may require,
any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes"
and "including" shall be deemed to be followed by the phrase
"without limitation". Except as otherwise expressly
provided herein, any reference in this Agreement to any Loan
Document shall mean such document as amended, restated,
supplemented or otherwise modified from time to time.
SECTION 4.11834 Incorporated Agreements and
Definitions. Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to such
terms in the FTX Credit Agreement, and the definitions of
such terms, and of any other terms included in such
definitions are hereby incorporated by reference into this
Agreement (but only for the purpose of ascertaining the
meanings of such incorporated definitions). For purposes of
such incorporation by reference, the FTX Credit Agreement
shall automatically mean such agreement in the form modified
or amended from time to time, without the necessity of any
further action or approval pursuant to this Agreement. If
the FTX Credit Agreement shall be terminated, for purposes
of this Agreement, the provisions of the terminated
agreement incorporated herein shall be deemed to be those as
in effect immediately prior to such termination.
ARTICLE II.
The Loans
SECTION 1.11834 Revolving Credit Facility. Upon
the terms and subject to the conditions and relying upon the
representations and warranties herein set forth, each Bank,
severally and not jointly, agrees to make Loans to the
Borrower, at any time and from time to time on or after the
Funding Date, and until the earlier of the Maturity Date and
the termination of the Commitment of such Bank in accordance
with the terms hereof, in an aggregate principal amount not
to exceed such Bank's Applicable Percentage of the then
effective unused Total Commitment on the Borrowing Date for
such Loan. Within the foregoing limits, the Borrower may
borrow, repay and reborrow, prior to the Maturity Date,
Loans subject to the terms, provisions and limitations set
forth herein.
SECTION 2.11834 Loans. (1) The Loans made by the
Banks to the Borrower on any one date shall be in an
aggregate principal amount which is (1) an integral multiple
of $1,000,000 or (2) equal to the remaining available
balance of the applicable Commitments. The Loans by each
Bank to the Borrower made on and after the Funding Date
shall be made against an appropriate Promissory Note,
payable to the order of such Bank in the amount of its
Commitment, executed by the Borrower and delivered to such
Bank on the Closing Date, as referred to in Section 2.4.
(2) Each Loan shall be either a Reference Rate
Loan or a LIBO Rate Loan as the Borrower may request
pursuant to Section 2.3. Subject to the provisions of
Sections 2.3 and 2.10, Loans of more than one type may be
outstanding at the same time.
(3) Each Bank shall make its portion, as
determined under Section 2.14, of each Loan hereunder on the
proposed date thereof by paying the amount required to the
Administrative Agent in New York, New York in immediately
available funds not later than 2:00 p.m., New York City
time, and the Administrative Agent shall by 3:00 p.m.,
New York City time, credit the amounts so received to the
general deposit account of the Borrower with the
Administrative Agent or, if Loans shall not be made on such
date because any condition precedent to a borrowing herein
specified is not met, return the amounts so received to the
respective Banks. Unless the Administrative Agent shall
have received notice from a Bank prior to the date of any
Loan that such Bank will not make available to the
Administrative Agent such Bank's portion of such Loan, the
Administrative Agent may assume that such Bank has made such
portion available to the Administrative Agent on the date of
such Loan in accordance with this paragraph (c) and the
Administrative Agent may, in reliance upon such assumption,
make available to the Borrower on such date a corresponding
amount. If the Administrative Agent shall have so made
funds available, then to the extent that such Bank shall not
have made such portion available to the Administrative
Agent, such Bank and the Borrower severally agree to repay
without duplication to the Administrative Agent forthwith on
demand such corresponding amount together with interest
thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is
repaid to the Administrative Agent at an interest rate equal
to (i) in the case of the Borrower, the interest rate
applicable at the time to the Loans comprising such
borrowing and (ii) in the case of such Bank, a rate
determined by the Administrative Agent to represent its cost
of overnight or short-term funds (which determination shall
be conclusive absent manifest error). If such Bank shall
repay to the Administrative Agent such corresponding amount,
such amount shall constitute such Bank's Loan for purposes
of this Agreement.
SECTION 3.3 Notice of Loans. (1) In order to
request a Loan, the Borrower shall give the Administrative
Agent irrevocable telephonic (promptly confirmed in
writing), written, telecopy or telex notice in the form of
Exhibit B hereto with respect to each Loan (1) in the case
of a LIBO Rate Loan, not later than 10:30 a.m., New York
City time, three Business Days before a proposed borrowing,
and (2) in the case of a Reference Rate Loan, not later
than 10:30 a.m., New York City time, on the date of a
proposed borrowing. Such notice shall be irrevocable
(except that in the case of a LIBO Rate Loan, the Borrower
may, subject to Section 2.13, revoke such notice by giving
written or telex notice thereof to the Administrative Agent
not later than 10:30 a.m., New York City time, two Business
Days before such proposed borrowing) and shall in each case
refer to this Agreement and specify (1) whether the Loan
then being requested is to be a Reference Rate Loan or LIBO
Rate Loan, (2) the date of such Loan (which shall be a
Business Day) and amount thereof, and (3) if such Loan is to
be a LIBO Rate Loan, the Interest Period or Interest Periods
(which shall not end after the Maturity Date) with respect
thereto. If no election as to the type of Loan is specified
in any such notice by the Borrower, such Loan shall be a
Reference Rate Loan. If no Interest Period with respect to
any LIBO Rate Loan is specified in any such notice by the
Borrower, then the Borrower shall be deemed to have selected
an Interest Period of one month's duration. The
Administrative Agent shall promptly advise the other Banks
of any notice given by the Borrower pursuant to this
Section 2.3(a) and of each Bank's portion of the requested
Loan.
(2) The Borrower may continue or convert all or
any part of any Loan as or into a Loan of the same or a
different type in accordance with Section 2.10 and subject
to the limitations set forth herein. If the Borrower shall
not have delivered a borrowing notice in accordance with
this Section 2.3 prior to the end of the Interest Period
then in effect for any Loan of the Borrower requesting that
such Loan be converted or continued as permitted hereby,
then the Borrower shall (unless the Borrower has notified
the Administrative Agent, not less than three Business Days
prior to the end of such Interest Period, that such Loan is
to be repaid at the end of such Interest Period) be deemed
to have delivered a borrowing notice pursuant to Section 2.3
requesting that such Loan be converted into or continued as
a Reference Rate Loan of equivalent amount.
(3) Notwithstanding any provision to the contrary
in this Agreement, the Borrower shall not in any borrowing
notice under this Section 2.3 request any LIBO Rate Loan
which, if made, would result in more than 8 separate LIBO
Rate Loans of any Bank. For purposes of the foregoing,
Loans having different Interest Periods, regardless of
whether they commence on the same date, shall be considered
separate Loans.
SECTION 4.3 Promissory Notes. (1) The Loans made
by each Bank to the Borrower shall be evidenced by a
Promissory Note duly executed on behalf of the Borrower,
dated the Closing Date, in substantially the form attached
hereto as Exhibit A, payable to the order of such Bank in a
principal amount equal to its Commitment. The outstanding
principal balance of each Loan, as evidenced by such
Promissory Note, shall be payable on the Maturity Date. Each
Promissory Note shall bear interest from the date of the
first borrowing hereunder on the outstanding principal
balance thereof, as provided in Section 2.5.
(2) Each Bank shall maintain in accordance with
its usual practice an account or accounts evidencing the
indebtedness to such Bank resulting from each Loan made by
such Bank from time to time, including the amounts of
principal and interest payable and paid to such Bank from
time to time under this Agreement. Each Bank shall, and is
hereby authorized by the Borrower to, endorse on the
schedule attached to the Promissory Note delivered by the
Borrower to such Bank (or on a continuation of such schedule
attached to such Promissory Note and made a part thereof),
or otherwise record in such Bank's internal records, an
appropriate notation evidencing the date and amount of each
Loan from such Bank to the Borrower, as well as the date and
amount of each payment and prepayment with respect thereto;
provided, however, that the failure of any Bank to make such
a notation or any error in such a notation shall not affect
the obligation of the Borrower to repay the Loans made by
such Bank in accordance with the terms of this Agreement and
such Promissory Note.
(3) The Administrative Agent shall maintain
accounts for (i) the type of each Loan made and the Interest
Period applicable thereto, (ii) the amount of any principal
or interest due and payable or to become due and payable
from the Borrower to each Bank hereunder and (iii) the
amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Bank's share thereof.
(4) The entries made in the accounts maintained
pursuant to paragraphs (b) and (c) of this Section 2.4 shall
be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the
failure of any Bank or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner
affect the obligations of the Borrower to repay the Loans in
accordance with their terms.
SECTION 5.4 Interest on Loans. (1) Subject to
the provisions of Section 2.8, each Reference Rate Loan
shall bear interest at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of
365 or 366 days, as the case may be, when determined by
reference to the Prime Rate, and over a year of 360 days at
all other times), equal to the Applicable Reference Rate.
(2) Subject to the provisions of Section 2.8, each
Loan which is a LIBO Rate Loan shall bear interest at a rate
per annum (computed on the basis of the actual number of
days elapsed over a year of 360 days) equal to the
Applicable LIBO Rate for the Interest Period in effect for
such Loan.
(3) Interest on each Loan shall be payable on each
applicable Interest Payment Date. The Applicable Reference
Rate and the Applicable LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be
conclusive absent manifest error. The Administrative Agent
shall promptly advise the Borrower and each Bank of such
determination.
SECTION 6.3 Fees. (1) The Borrower shall pay
each Bank, through the Administrative Agent, on the last
Business Day of each March, June, September and December,
and on the date on which the Commitment of such Lender shall
be terminated as provided herein (the "Commitment
Termination Date"), in immediately available funds, a
commitment fee (a "Commitment Fee") from and including the
Closing Date through and including the Commitment
Termination Date on the average daily amount of such Bank's
Applicable Percentage of the unused Total Commitment during
the quarter (or shorter period commencing with the earlier
of June 30, 1995, and the Funding Date or ending with the
Commitment Termination Date) ending on such date equal to
the applicable Commitment Fee percentage set forth in
Schedule I hereto.
(2) All Commitment Fees under this Section 2.6
shall be computed on the basis of the actual number of days
elapsed in a year of 365 or 366 days, as the case may be.
The Commitment Fees due to each Bank shall cease to accrue
on the earlier of the Maturity Date and the termination of
the Commitment of such Bank pursuant to Section 2.7.
(3) The Borrower agrees to pay to the
Administrative Agent, for its own account, on the Closing
Date and on each anniversary thereof, an administration fee
as agreed between the Borrower and the Administrative Agent.
(4) All such fees shall be paid on the dates due,
in immediately available funds, to the Administrative Agent
for distribution, if and as appropriate, among the Banks.
Once paid, all such fees shall be fully earned under any and
all circumstances.
SECTION 7.4 Maturity and Reduction of
Commitments. (1) Upon at least five days' prior written,
telecopied or telex notice to the Administrative Agent, the
Borrower may without penalty at any time in whole
permanently terminate, or from time to time permanently
reduce, the Total Commitment, ratably among the Banks in
accordance with the amounts of their respective Commitments;
provided, however, that each partial reduction of the
Commitment Amount shall be in a minimum principal amount of
$1,000,000 and an integral multiple of $1,000,000; provided
further that the Total Commitment may not be reduced to an
amount which is less than the aggregate principal amount of
all Loans outstanding after such reduction.
(2) The Total Commitment shall be automatically
and permanently reduced by an amount equal to 50% of the
proceeds of any equity issuance (other than pursuant to
employee option plans and similar arrangements) by the
Borrower and the Subsidiaries to any Person other than the
Borrower, FTX and the Subsidiaries. The Commitment
reductions required by this Section 2.7(b) shall be
effective as of the date of closing or effectiveness of any
transaction subject hereto.
(3) On the Maturity Date, the Commitments shall
automatically terminate and any outstanding Loans shall be
due and payable in full.
SECTION 8.3 Interest on Overdue Amounts;
Alternative Rate of Interest. (1) If the Borrower shall
default in the payment of the principal of or interest on
any Loan or any other amount becoming due hereunder or under
any other Loan Document, by acceleration or otherwise, the
Borrower shall on demand from time to time pay interest, to
the extent permitted by law, on such defaulted amount up to
the date of actual payment (after as well as before
judgment):
(1) in the case of the payment of principal of or
interest on a LIBO Rate Loan, at a rate 2% above the
rate which would otherwise be payable under
Section 2.5(b) until the last date of the Interest
Period then in effect with respect to such Loan and
thereafter as provided in clause (ii) below; and
(2) in the case of the payment of principal of or
interest on a Reference Rate Loan or any other amount
payable hereunder (other than principal of or interest
on any LIBO Rate Loan to the extent referred to in
clause (i) above), at a rate 2% above the Applicable
Reference Rate.
(2) In the event, and on each occasion, that on
the day two Business Days prior to the commencement of any
Interest Period for a LIBO Rate Loan the Administrative
Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower absent manifest
error) that (i) Dollar deposits in the requested principal
amount of such LIBO Rate Loan are not generally available in
the London Interbank Market, (ii) the rates at which Dollar
deposits are being offered will not adequately and fairly
reflect the cost to any Bank of making or maintaining such
LIBO Rate Loan during such Interest Period or (iii)
reasonable means do not exist for ascertaining the
Applicable LIBO Rate, the Administrative Agent shall as soon
as practicable thereafter give written, telecopied or telex
notice of such determination to the Borrower and the other
Banks, and any request by the Borrower for the making of a
LIBO Rate Loan pursuant to Section 2.3 or 2.10 shall, until
the Administrative Agent shall have advised the Borrower and
the Banks that the circumstances giving rise to such notice
no longer exist, be deemed to be a request for a Reference
Rate Loan; provided, however, that if the Administrative
Agent makes the determination specified in (ii) above, at
the option of the Borrower such request shall be deemed to
be a request for a Reference Rate Loan only from such Bank
referred to in (ii) above; provided further, however, that
such option shall not be available to the Borrower if the
Administrative Agent makes the determination specified in
(ii) above with respect to three or more Banks. Each
determination of the Administrative Agent hereunder shall be
conclusive absent manifest error.
SECTION 9.2 Prepayment of Loans. (1) The
Borrower shall have the right at any time and from time to
time to prepay any of the Loans, in whole or in part,
subject to the requirements of Section 2.13 but otherwise
without premium or penalty, upon prior written or telex
notice to the Administrative Agent by 10:30 a.m., New York
City time, on the date of such prepayment; provided,
however, that each such partial prepayment shall be in a
minimum amount of $1,000,000 and an integral multiple of
$1,000,000.
(2) In the event of any termination of the
Commitments, the Borrower shall repay or prepay all its
outstanding Loans on the date of such termination. On the
date of any partial reduction of the Commitments pursuant to
Section 2.7, including as required by Section 2.7(b), the
Borrower shall pay or prepay so much of the Loans as shall
be necessary in order that the aggregate principal amount of
the Loans (after giving effect to any other prepayment of
Loans on such date) outstanding will not exceed the Total
Commitment immediately following such reduction.
(3) All prepayments under this Section 2.9 shall
be subject to Section 2.13. Each notice of prepayment
delivered pursuant to paragraph (a) above shall specify the
prepayment date and the principal amount of each Loan (or
portion thereof) to be prepaid, shall be irrevocable and
shall commit the Borrower upon giving such notice to prepay
such Loan by the amount stated therein on the date stated
therein. All prepayments shall be applied first to
Reference Rate Loans and then to LIBO Rate Loans and shall
be accompanied by accrued interest on the principal amount
being prepaid to the date of prepayment. Any amounts prepaid
may be reborrowed to the extent permitted by the terms of
this Agreement.
SECTION 2.10. Continuation and Conversion of
Loans. The Borrower shall have the right, subject to the
provisions of Section 2.8, (i) on three Business Days' prior
irrevocable notice by the Borrower to the Administrative
Agent, to continue or convert any type of Loans as or into
LIBO Rate Loans, or (ii) with irrevocable notice by the
Borrower to the Administrative Agent by 10:30 a.m. on the
date of such proposed continuation or conversion, to
continue or convert any type of Loans as or into Reference
Rate Loans, in each case subject to the following further
conditions:
(a) each continuation or conversion shall be made
pro rata as to each type of Loan to be continued or
converted among the Banks in accordance with the
respective amounts of their Commitments and the notice
given to the Administrative Agent by the Borrower shall
specify the aggregate principal amount of Loans to be
continued or converted;
(b) in the case of a continuation or conversion of
less than all Loans, the Loans continued or converted
shall be in a minimum aggregate principal amount of
$3,000,000 and an integral multiple of $1,000,000;
(c) accrued interest on each Loan (or portion
thereof) being continued or converted shall be paid by
the Borrower at the time of continuation or conversion;
(d) the Interest Period with respect to any Loan
made in respect of a continuation or conversion thereof
shall commence on the date of the continuation or
conversion;
(e) any portion of a Loan maturing or required to
be prepaid in less than one month may not be continued
as or converted into a LIBO Rate Loan;
(f) a LIBO Rate Loan may be continued or converted
on the last day of the applicable Interest Period and,
subject to Section 2.13, on any other day;
(g) no Loan (or portion thereof) may be continued
as or converted into a LIBO Rate Loan if, after such
continuation or conversion, an aggregate of more than 8
separate LIBO Rate Loans of any Bank would result,
determined as set forth in Section 2.3(c);
(h) no Loan shall be continued or converted if
such Loan by any Bank would be greater than the amount
by which its Commitment exceeds the amount of its other
Loans at the time outstanding or if such Loan would not
comply with the other provisions of this Agreement; and
(i) any portion of a LIBO Rate Loan which cannot
be converted into or continued as a LIBO Rate Loan by
reason of clause (e) or (g) above shall be
automatically converted at the end of the Interest
Period in effect for such Loan into a Reference Rate
Loan.
The Administrative Agent shall communicate the information
contained in each irrevocable notice delivered by the
Borrower pursuant to this Section 2.10 to the other Banks
promptly after its receipt of the same.
The Interest Period applicable to any LIBO Rate
Loan resulting from a continuation or conversion shall be
specified by the Borrower in the irrevocable notice of
continuation or conversion delivered pursuant to this
Section 2.10; provided, however, that if no such Interest
Period for a LIBO Rate Loan shall be specified, the Borrower
shall be deemed to have selected an Interest Period of one
month's duration.
For purposes of this Section 2.10, notice received
by the Administrative Agent from the Borrower after
10:30 a.m., New York time, on a Business Day shall be deemed
to be received on the immediately succeeding Business Day.
SECTION 2.11. Reserve Requirements; Change in
Circumstances. (a) The Borrower shall pay to each Bank on
the last day of each Interest Period for any LIBO Rate Loan
so long as such Bank may be required to maintain reserves
against Eurocurrency Liabilities as defined in Regulation D
of the Board (or so long as such Bank may be required to
maintain reserves against any other category of liabilities
which includes deposits by reference to which the interest
rate on any LIBO Rate Loan is determined as provided in this
Agreement or against any category of extensions of credit or
other assets of such Bank which includes any LIBO Rate Loan)
an additional amount (determined by such Bank and notified
to the Borrower), equal to the product of the following for
each affected LIBO Rate Loan for each day during such
Interest Period:
(i) the principal amount of such affected LIBO
Rate Loan outstanding on such day; and
(ii) the remainder of (x) the product of Statutory
Reserves on such date times the Applicable LIBO Rate on
such day minus (y) the Applicable LIBO Rate on such
day; and
(iii) 1/360.
Each Bank shall separately xxxx the Borrower directly for
all amounts claimed pursuant to this Section 2.11(a).
(b) Notwithstanding any other provision herein,
if after the Closing Date any change in condition or
applicable law or regulation or in the interpretation or
administration thereof (whether or not having the force of
law and including, without limitation, Regulation D of the
Board) by any Governmental Authority charged with the
administration or interpretation thereof shall occur which
shall:
(i) subject any Bank (which shall for the purpose
of this Section include any assignee or lending office
of any Bank) to any tax of any kind whatsoever with
respect to its LIBO Rate Loans or other fees or amounts
payable hereunder or change the basis of taxation of
any of the foregoing (other than taxes (including Non-
Excluded Taxes) described in Section 2.17 and other
than any franchise tax or tax or other similar
governmental charges, fees or assessments based on the
overall net income of such Bank by the U.S. Federal
government or by any jurisdiction in which such Bank
maintains an office, unless the presence of such office
is solely attributable to the enforcement of any rights
hereunder or under the FTX Security Agreement with
respect to an Event of Default);
(ii) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets
of, deposits with or for the account of or credit
extended by any Bank;
(iii) impose on any such Bank or the London
Interbank Market any other condition affecting this
Agreement or LIBO Rate Loans made by such Bank; or
(iv) impose upon any Bank any other condition with
respect to any amount paid or to be paid by any Bank
with respect to its LIBO Rate Loans or this Agreement;
and the result of any of the foregoing shall be to increase
the cost to any Bank of making or maintaining its LIBO Rate
Loans or Commitment hereunder, or to reduce the amount of
any sum (whether of principal, interest or otherwise)
received or receivable by such Bank or to require such Bank
to make any payment, in respect of any such Loan, in each
case by or in an amount which such Bank in its sole judgment
shall deem material, then the Borrower shall pay to such
Bank on demand such an amount or amounts as will compensate
the Bank for such additional cost, reduction or payment.
(c) If any Bank shall have determined that the
applicability of any law, rule, regulation, agreement or
guideline adopted after the Closing Date regarding capital
adequacy, or any change after the Closing Date in any such
law, rule, regulation, agreement or guideline (whether such
law, rule, regulation, agreement or guideline has been
adopted) or in the interpretation or administration of any
of the foregoing by any Governmental Authority charged with
the interpretation or administration thereof, or compliance
by any Bank (or any lending office of such Bank) or any
Bank's holding company with any request or directive
regarding capital adequacy (whether or not having the force
of law) of any such Governmental Authority made or issued
after the Closing Date, has or would have the effect of
reducing the rate of return on such Bank's capital or on the
capital of such Bank's holding company, if any, as a
consequence of this Agreement or the Loans made pursuant
hereto to a level below that which such Bank or such Bank's
holding company could have achieved but for such
applicability, adoption, change or compliance (taking into
consideration such Bank's policies and the policies of such
Bank's holding company with respect to capital adequacy) by
an amount deemed by such Bank to be material, then from time
to time the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank or such
Bank's holding company for any such reduction suffered.
(d) If and on each occasion that a Bank makes a
demand for compensation pursuant to paragraph (a), (b) or
(c) above, or under Section 2.17 (it being understood that a
Bank may be reimbursed for any specific amount under only
one such paragraph or Section) the Borrower may, upon at
least three Business Days' prior irrevocable written or
telex notice to each of such Bank and the Administrative
Agent, in whole permanently replace the Commitment of such
Bank; provided that such notice must be given not later than
the 90th day following the date of a demand for compensation
made by such Bank; and provided that the Borrower shall
replace such Commitment with the Commitment of a commercial
bank satisfactory to the Administrative Agent. Such notice
from the Borrower shall specify an effective date for the
termination of such Bank's Commitment which date shall not
be later than the 180th day after the date such notice is
given. On the effective date of any termination of such
Bank's Commitment pursuant to this clause (d), the Borrower
shall pay to the Administrative Agent for the account of
such Bank (A) any Commitment Fees on the amount of such
Bank's Commitment so terminated accrued to the date of such
termination, (B) the principal amount of any outstanding
Loans held by such Bank plus accrued interest on such
principal amount to the date of such termination and (C) the
amount or amounts requested by such Bank pursuant to
clause (a), (b) or (c) above or Section 2.17, as applicable.
The Borrower will remain liable to such terminated Bank for
any loss or expense that such Bank may sustain or incur as a
consequence of such Bank's making any LIBO Rate Loan or any
part thereof or the accrual of any interest on any such Loan
in accordance with the provisions of this Section 2.11(d) as
set forth in Section 2.13. Upon the effective date of
termination of any Bank's Commitment pursuant to this
Section 2.11(d) such Bank shall cease to be a "Bank"
hereunder; provided that no such termination of any such
Bank's Commitment shall affect (i) any liability or
obligation of the Borrower or any other Bank to such
terminated Bank which accrued on or prior to the date of
such termination or (ii) such terminated Bank's rights
hereunder in respect of any such liability or obligation.
(e) A certificate of a Bank (or Transferee)
setting forth such amount or amounts as shall be necessary
to compensate such Bank (or Transferee) as specified in
paragraph (a), (b) or (c) (and in the case of paragraph (c),
such Bank's holding company) above or Section 2.17, as the
case may be, shall be delivered as soon as practicable to
the Borrower, and in any event within 90 days of the change
giving rise to such amount or amounts, and shall be
conclusive absent manifest error. The Borrower shall pay
each Bank the amount shown as due on any such certificate
within 15 days after its receipt of the same. In preparing
such a certificate, each Bank may employ such assumptions
and allocations of costs and expenses as it shall in good
xxxxx xxxx reasonable. The failure of any Bank (or
Transferee) to give the required 90 day notice shall excuse
the Borrower from its obligations to pay additional amounts
pursuant to such Sections incurred for the period that is 90
days or more prior to the date such notice was required to
be given.
(f) Failure on the part of any Bank to demand
compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital
within the 90 days required pursuant to Section 2.11(e)
shall not constitute a waiver of such Bank's rights to
demand compensation for any increased costs or reduction in
amounts received or receivable or reduction in return on
capital for any period after the date that is 90 days prior
to the date of the delivery of demand for compensation. The
protection of this Section 2.11 shall be available to each
Bank regardless of any possible contention of invalidity or
inapplicability of the law, regulation or condition which
shall have occurred or been imposed. The Borrower shall not
be required to make any additional payment to any Bank
pursuant to Section 2.11(a) or (b) in respect of any such
cost, reduction or payment that could be avoided by such
Bank in the exercise of reasonable diligence, including a
change in the lending office of such Bank if possible
without material cost to such Bank. Each Bank agrees that
it will promptly notify the Borrower and the Administrative
Agent of any event of which the responsible account officer
shall have knowledge which would entitle such Bank to any
additional payment pursuant to this Section 2.11. The
Borrower agrees to furnish promptly to the Administrative
Agent official receipts evidencing any payment of any tax.
SECTION 2.12. Change in Legality. (a) Notwith-
standing anything to the contrary herein contained, if after
the Closing Date any change in any law or regulation or in
the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof
shall make it unlawful for any Bank to make or maintain any
LIBO Rate Loan or to give effect to its obligations as
contemplated hereby with respect to any LIBO Rate Loan,
then, by written notice to the Borrower and to the
Administrative Agent, such Bank may:
(i) declare that LIBO Rate Loans will not
thereafter (for the duration of such unlawfulness or
impracticality) be made by such Bank hereunder,
whereupon the Borrower shall be prohibited from
requesting LIBO Rate Loans from such Bank hereunder
unless such declaration is subsequently withdrawn; and
(ii) require that all outstanding LIBO Rate Loans
made by it be converted to Reference Rate Loans, in
which event (A) all such LIBO Rate Loans shall be
automatically converted to Reference Rate Loans as of
the end of the applicable Interest Period, unless an
earlier conversion date is legally required, (B) all
payments and prepayments of principal which would
otherwise have been applied to repay the converted LIBO
Rate Loans shall instead be applied to repay the
Reference Rate Loans resulting from the conversion of
such LIBO Rate Loans and (C) the Reference Rate Loans
resulting from the conversion of such LIBO Rate Loans
shall be prepayable only at the times the converted
LIBO Rate Loans would have been prepayable,
notwithstanding the provisions of Section 2.9.
(b) Before giving any notice to the Borrower and
the Administrative Agent pursuant to this Section 2.12, such
Bank shall designate a different LIBOR Office if such
designation will avoid the need for giving such notice and
will not in the judgment of such Bank, be otherwise
disadvantageous to such Bank. For purposes of
Section 2.12(a), a notice to the Borrower by any Bank shall
be effective on the date of receipt by the Borrower.
SECTION 2.13. Indemnity. The Borrower shall
indemnify each Bank against any funding, redeployment or
similar loss or expense which such Bank may sustain or incur
as a consequence of (a) any event, other than a default by
such Bank in the performance of its obligations hereunder,
which results in (i) such Bank receiving or being deemed to
receive any amount on account of the principal of any LIBO
Rate Loan prior to the end of the Interest Period in effect
therefor (any of the events referred to in this clause (i)
being called a "Breakage Event") or (ii) any Loan to be made
by such Bank not being made after notice of such Loan shall
have been given by the Borrower hereunder or (b) any default
in the making of any payment or prepayment of any amount
required to be made hereunder. In the case of any Breakage
Event, such loss shall include an amount equal to the
excess, as reasonably determined by such Bank, of (i) its
cost of obtaining funds for the Loan which is the subject of
such Breakage Event for the period from the date of such
Breakage Event to the last day of the Interest Period in
effect (or which would have been in effect) for such Loan
over (ii) the amount of interest (as reasonably determined
by such Bank) that would be realized by such Bank in
reemploying the funds so paid, prepaid or converted or not
borrowed, continued or converted by making a LIBO Rate Loan
in such principal amount and with a maturity comparable to
such period. A certificate of any Bank setting forth any
amount or amounts which such Bank is entitled to receive
pursuant to this Section shall be delivered to the Borrower
and shall be conclusive absent manifest error.
SECTION 2.14. Pro Rata Treatment. Except as
permitted under any of Sections 2.8(b), 2.11, 2.12, 2.13 or
2.17, each borrowing under each type of Loan, each payment
or prepayment of principal of the Loans, each payment of
interest on the Loans, each other reduction of the principal
or interest outstanding under the Loans, however achieved,
including by setoff by any Person, each payment of the
Commitment Fees, each reduction of the Commitments and each
conversion or continuation of Loans shall be allocated pro
rata among the Banks in the proportions that their
respective Commitments bear to the Total Commitment (or, if
such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their
outstanding Loans). Each Bank agrees that in computing such
Bank's portion of any borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each
Bank's percentage of such borrowing to the next higher or
lower whole Dollar amount.
SECTION 2.15. Sharing of Setoffs. Each Bank
agrees that if it shall, through the exercise of a right of
banker's lien, setoff or counterclaim against the Borrower
or pursuant to a secured claim under Section 506 of Title 11
of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by
such Bank under any applicable bankruptcy, insolvency or
other similar law or otherwise, or by any other means obtain
payment (voluntary or involuntary) in respect of any Loan
held by it as a result of which the unpaid principal portion
of the Loans held by it shall be proportionately less than
the unpaid principal portion of the Loans held by any other
Bank (other than as permitted under any of Sections 2.8(b),
2.11, 2.12, 2.13 or 2.17), it shall be deemed to have
simultaneously purchased from such other Bank at face value,
and shall promptly pay to such other Bank the purchase price
for, a participation in the Loans held by such other Bank,
so that the aggregate unpaid principal amount of the Loans
and participation in Loans held by each Bank shall be in the
same proportion to the aggregate unpaid principal amount of
all Loans of the Borrower then outstanding as the principal
amount of the Loans held by it prior to such exercise of
banker's lien, setoff or counterclaim was to the principal
amount of all Loans of the Borrower outstanding prior to
such exercise of banker's lien, setoff or counterclaim or
other event; provided, however, that if any such purchase or
purchases or adjustments shall be made pursuant to this
Section 2.15 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such
recovery and the purchase price or prices or adjustment
restored without interest. To the fullest extent permitted
by applicable law, the Borrower expressly consents to the
foregoing arrangements and agrees that any Bank holding a
participation in a Loan deemed to have been so purchased may
exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the
Borrower hereunder to such Bank as fully as if such Bank had
made a Loan directly to the Borrower in the amount of such
participation.
SECTION 2.16. Payments. (a) Except as otherwise
provided in this Agreement, all payments and prepayments to
be made by the Borrower to the Banks hereunder, whether on
account of Commitment Fees, payment of principal or interest
on the Promissory Notes or other amounts at any time owing
hereunder or under any other Loan Document, shall be made to
the Administrative Agent at its office at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, for the account of the several Banks in
immediately available funds. All such payments shall be
made to the Administrative Agent as aforesaid not later than
10:30 a.m., New York City time, on the date due; and funds
received after that hour shall be deemed to have been
received by the Administrative Agent on the following
Business Day.
(b) As promptly as possible, but no later than
2:00 p.m., New York City time, on the date of each
borrowing, each Bank participating in the Loans made on such
date shall pay to the Administrative Agent such Bank's
Applicable Percentage of such Loan plus, if such payment is
received by the Administrative Agent after 2:00 p.m., New
York City time, on the date of such borrowing, interest at a
rate per annum equal to the rate in effect on such day,
quoted by the Administrative Agent at its office at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, for the overnight "sale" to such
Bank of Federal funds. At the time of, and by virtue of,
such payment, such Bank shall be deemed to have made its
Loan in the amount of such payment. The Administrative
Agent agrees to pay any moneys, including such interest, so
paid to it by the lending Banks promptly, but no later than
3:00 p.m., New York City time, on the date of such
borrowing, to the Borrower in immediately available funds.
(c) If any payment of principal, interest,
Commitment Fee or any other amount payable to the Banks
hereunder or under any Promissory Note shall fall due on a
day that is not a Business Day, then (except in the case of
payments of principal of or interest on LIBO Rate Loans, in
which case such payment shall be made on the next preceding
Business Day if the next succeeding Business Day would fall
in the next calendar month) such due date shall be extended
to the next succeeding Business Day, and interest shall be
payable on principal in respect of such extension.
(d) Unless the Administrative Agent shall have
been notified by the Borrower prior to the date on which any
payment or prepayment is due hereunder (which notice shall
be effective upon receipt) that the Borrower does not intend
to make such payment or prepayment, the Administrative Agent
may assume that the Borrower has made such payment or
prepayment when due and the Administrative Agent may in
reliance upon such assumption (but shall not be required to)
make available to each Bank on such date an amount equal to
the portion of such assumed payment or prepayment such Bank
is entitled to hereunder, and, if the Borrower has not in
fact made such payment or prepayment to the Administrative
Agent, such Bank shall, on demand, repay to the
Administrative Agent the amount made available to such Bank,
together with interest thereon in respect of each day during
the period commencing on the date such amount was made
available to such Bank and ending on (but excluding) the
date such Bank repays such amount to the Administrative
Agent, at a rate per annum equal to the rate, determined by
the Administrative Agent to represent its cost of overnight
or short-term funds (which determination shall be conclusive
absent manifest error).
(e) All payments of the principal of or interest
on the Loans or any other amounts to be paid to any Bank or
the Administrative Agent under this Agreement or any of the
other Loan Documents shall be made in Dollars, without
reduction by reason of any currency exchange expense.
SECTION 2.17. U.S. Taxes. (a) Any and all
payments by the Borrower hereunder shall be made, in
accordance with Section 2.16, free and clear of and without
deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all
liabilities with respect thereto imposed by the United
States or any political subdivision thereof, excluding
taxes imposed on the net income of the Administrative Agent
or any Bank (or Transferee) and franchise taxes of the
Administrative Agent or any Bank (or Transferee), as
applicable, as a result of a connection between the
jurisdiction imposing such taxes and the Administrative
Agent or such Bank (or Transferee), as applicable, other
than a connection arising solely from the Administrative
Agent or such Bank (or Transferee), as applicable, having
executed, delivered, performed its obligations or received a
payment under, or enforced, this Agreement (all such
nonexcluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to
as "Non-Excluded Taxes"). If the Borrower shall be required
by law to deduct any Non-Excluded Taxes from or in respect
of any sum payable hereunder to the Banks (or any
Transferee) or the Administrative Agent, (i) the sum payable
shall be increased by the amount necessary so that after
making all required deductions (including deductions
applicable to additional sums payable under this
Section 2.17) such Bank (or Transferee) or the
Administrative Agent (as the case may be) shall receive an
amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxing authority or other
Governmental Authority in accordance with applicable law;
provided, however, that no Transferee of any Bank shall be
entitled to receive any greater payment under this
Section 2.17 than such Bank would have been entitled to
receive with respect to the rights assigned, participated or
otherwise transferred unless such assignment, participation
or transfer shall have been made at a time when the
circumstances giving rise to such greater payment did not
exist.
(b) In addition, the Borrower agrees to bear and
to pay to the relevant Governmental Authority in accordance
with applicable law any current or future stamp or
documentary taxes or any other similar excise taxes, charges
or similar levies that arise from any payment made hereunder
or from the execution, delivery, registration or enforcement
of, or otherwise with respect to, this Agreement or any
other Loan Document and any property taxes that arise from
the enforcement of this Agreement or any other Loan Document
("Other Taxes").
(c) The Borrower will indemnify each Bank (or
Transferee) and each Agent for the full amount of Non-
Excluded Taxes and Other Taxes (including Non-Excluded Taxes
or Other Taxes imposed on amounts payable under this
Section 2.17) paid by such Bank (or Transferee) or such
Agent, as the case may be, and any liability (including
penalties, interest and expenses (including reasonable
attorney's fees and expenses)) arising therefrom or with
respect thereto. A certificate as to the amount of such
payment or liability prepared by a Bank or Agent, or the
Administrative Agent on behalf of such Bank or Agent, absent
manifest error, shall be final, conclusive and binding for
all purposes. Such indemnification shall be made within
30 days after the date the Bank (or Transferee) or the
Agent, as the case may be, makes written demand therefor.
(d) Within 30 days after the date of any payment
of Non-Excluded Taxes or Other Taxes by the Borrower to the
relevant Governmental Authority, the Borrower will furnish
to the Administrative Agent, at its address referred to on
the signature page, the original or a certified copy of a
receipt issued by such Governmental Authority evidencing
payment thereof.
(e) At the time it becomes a party to this
Agreement or a Transferee, each Bank (or Transferee) that is
organized under the laws of a jurisdiction outside the
United States shall (in the case of a Transferee, subject to
the immediately succeeding sentence) deliver to the Borrower
either a valid and currently effective Internal Revenue
Service Form 1001 or Form 4224 or, in the case of a Bank (or
Transferee) claiming exemption from U.S. Federal withholding
tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest", a Form W-8, or any
subsequent version thereof or successors thereto, (and if
such Bank (or Transferee) delivers a Form W-8, a certificate
representing that such Bank (or Transferee) is not a bank
for purposes of Section 881(c) of the Code, is not a
10-percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Code) of the Borrower and is not
a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code)),
properly completed and duly executed by such Bank (or
Transferee) establishing that such payment is (i) not
subject to United States Federal withholding tax under the
Code because such payment is effectively connected with the
conduct by such Bank (or Transferee) of a trade or business
in the United States or (ii) totally exempt from (or in case
of a Transferee, entitled to a reduced rate of) United
States Federal withholding tax. Notwithstanding any other
provision of this Section 2.17(e), no Transferee shall be
required to deliver any form pursuant to this
Section 2.17(e) that such Transferee is not legally able to
deliver. In addition, each Bank (or Transferee) shall
deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered, but only, in
such case, to the extent such Bank (or Transferee) is
legally able to do so.
(f) Notwithstanding anything to the contrary
contained in this Section 2.17, the Borrower shall not be
required to pay any additional amounts to any Bank (or
Transferee) in respect of United States Federal withholding
tax pursuant to paragraph (a) above if the obligation to pay
such additional amounts would not have arisen but for a
failure by such Bank (or Transferee) to comply with the
provisions of paragraph (e) above.
(g) Any Bank (or Transferee) claiming any
additional amounts payable pursuant to this Section 2.17
shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document
requested by the Borrower or to change the jurisdiction of
its applicable lending office if the making of such a filing
or change would avoid the need for or reduce the amount of
any such additional amounts which may thereafter accrue and
would not, in the sole determination of such Bank, be
otherwise disadvantageous to such Bank (or Transferee).
(h) Without prejudice to the survival of any
other agreement contained herein, the agreements and
obligations contained in this Section 2.17 shall survive the
payment in full of the principal of and interest on all
Loans made hereunder.
(i) Nothing contained in this Section 2.17 shall
require any Bank (or Transferee) or the Administrative Agent
to make available any of its income tax returns (or any
other information that it deems to be confidential or
proprietary).
SECTION 2.18. FTX or Restricted Subsidiary as
Limited Partner. Notwithstanding anything to the contrary
contained in this Agreement or any Promissory Note, with
respect to any direct liabilities of the Borrower to the
Banks under this Agreement, its Promissory Notes or the
other Loan Documents, FTX and any Restricted Subsidiary
solely in its capacity as a partner of the Borrower shall be
deemed to be limited, rather than general, partners of the
Borrower. Subject to the foregoing, the Partnership
Obligations shall be fully recourse to the Borrower and all
its assets and properties. Nothing in this Section 2.18
shall be deemed in any way to derogate from or affect FTX's
own direct obligations under this Agreement (including
Section 7.1), the FTX Guaranty or the other Loan Documents.
ARTICLE III
Representations and Warranties
SECTION 3.1. Representations and Warranties of
the Partnership. As of the Funding Date, and each other
date upon which such representations and warranties are
required to be made or deemed made pursuant to Section
5.2(a), the Partnership represents and warrants to each of
the Banks as follows:
(a) Organization, Powers. The Partnership is
duly organized, validly existing and in good standing
under the laws of the State of Delaware, has the requi-
site power and authority to own its property and assets
and to carry on its business as now conducted and is
qualified to do business in every jurisdiction where
such qualification is required, except where the fail-
ure so to qualify would not have a material adverse
effect on the condition, financial or otherwise, of the
Partnership. The Partnership has the power to execute,
deliver and perform its obligations under this Agree-
ment and any other Loan Documents executed and
delivered or to be executed and delivered by the Part-
nership at any time, to borrow hereunder, to execute
and deliver the Promissory Notes to be delivered by it
and to countersign and accept the terms of the FM
Intercreditor Agreement.
(b) Authorization. The execution, delivery and
performance of this Agreement, any other Loan Documents
executed and delivered or to be executed and delivered
by the Partnership at any time, the Borrowings
hereunder, the execution and delivery of the Promissory
Notes to be delivered by it and the countersignature
and the acceptance of the terms of the FM Intercreditor
Agreement (i) have been duly authorized by all
requisite partnership and, if required, partner action
on the part of the Partnership and all requisite corpo-
rate, and, if required, shareholder, action on the part
of FTX and the Company and (ii) will not (A) violate
(x) any provision of law, statute, rule or regulation
or the constitutive documents (including, without
limitation, the Partnership Agreement (as it may be
amended and in effect from time to time)) or
regulations of the Partnership, FTX or the Company,
(y) any order of any court, or any rule, regulation or
order of any other agency of government binding upon
the Partnership, FTX or the Company or any of their
assets or (z) any provisions of any indenture,
agreement or other instrument to which the Partnership,
FTX or the Company is a party, or by which the
Partnership, FTX or the Company or any of their
properties or assets are or may be bound, (B) be in
conflict with, result in a breach of or constitute
(alone or with notice or lapse of time or both) a
default under any indenture, agreement or other
instrument referred to in (ii)(A)(z) above or
(C) result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any
property or assets of the Partnership, FTX or the
Company, except for the FMPO Deed of Trust and the FTX
Security Agreement.
(c) Governmental Approval. No registration with
or consent or approval of, or other action by, any
Federal, state or other governmental agency, authority
or regulatory body is or will be required in connection
with the execution, delivery and performance of this
Agreement or any other Loan Document, the execution and
delivery of the Promissory Notes or the Borrowings
hereunder, except (i) such as have been made and
obtained and are in full force and effect and (ii) such
security filings and recordation as may be required in
connection with the grant of any Lien contemplated by
the FMPO Deed of Trust.
(d) Enforceability. Each of this Agreement and
the other Loan Documents executed and delivered by the
Partnership constitutes (or, as to any Loan Document
contemplated hereby to be executed and delivered by the
Partnership at any future date, will constitute) a
legal, valid and binding obligation of the Partnership,
in each case enforceable in accordance with its terms
(subject, as to the enforcement of remedies against the
Partnership, to applicable bankruptcy, reorganization,
insolvency, moratorium and similar laws affecting
creditors' rights against the Partnership generally in
connection with the bankruptcy, reorganization or
insolvency of the Partnership or a moratorium or
similar event relating to the Partnership).
(e) Financial Statements. FTX has heretofore
furnished to each of the Banks consolidated balance
sheets and statements of operations and changes in
retained earnings and cash flow of the Company as of
and for the fiscal years ended December 31, 1994 and
1995, all audited and certified by Xxxxxx Xxxxxxxx LLP,
independent public accountants, and included in the
1995 FM Form 10-K, and unaudited consolidated balance
sheets and statements of operations and cash flow of
the Company as of and for the fiscal quarter ended
September 30, 1996, included in the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30,
1996. In addition, the Partnership has heretofore
furnished to each of the Banks unaudited consolidated
balance sheets and statements of operations and cash
flow for the Partnership as of and for the fiscal years
ended December 31, 1994 and 1995, and for the fiscal
quarter ended September 30, 1996, all certified by the
Treasurer or another authorized Financial Officer of
the Partnership. All such balance sheets and
statements of operations and cash flow present fairly
the financial condition and results of operations of
the Company, the Partnership and their subsidiaries, as
of the dates and for the periods indicated. The
financial statements referred to in this Section 3.1(e)
and the notes thereto disclose all material
liabilities, direct or contingent, of the Company, the
Partnership and their subsidiaries, as of the dates
thereof and which are required to be shown on financial
statements prepared in accordance with GAAP. The
financial statements referred to in this Section 3.1(e)
have been prepared in accordance with GAAP. There has
been no material adverse change since December 31,
1995, in the businesses, assets, operations, prospects
or condition, financial or otherwise, of (i) the
Company, (ii) the Partnership, (iii) the Company and
its subsidiaries taken as a whole or (iv) the
Partnership and the Subsidiaries taken as a whole.
(f) Litigation; Compliance with Laws, etc.
(i) Except as disclosed in Schedule VI hereto or in
the 1995 FM Form 10-K and any subsequent reports filed
as of 20 days prior to the date hereof with the SEC on
Form 10-Q or Form 8-K which have been delivered to the
Banks, there are no actions, suits or proceedings at
law or in equity or by or before any governmental
instrumentality or other agency or regulatory authority
now pending or, to the knowledge of the Partnership,
threatened against or affecting the Partnership or any
Subsidiary or the businesses, assets or rights of the
Partnership or any Subsidiary (i) which involve this
Agreement, any other Loan Document or any of the
transactions contemplated hereby or thereby or (ii) as
to which there is a reasonable possibility of an
adverse determination and which, if adversely
determined, could, individually or in the aggregate,
materially impair the ability of the Partnership to
conduct its business substantially as described in the
1995 FM Form 10-K, or materially and adversely affect
the business, assets, operations, prospects or
condition, financial or otherwise, of the Partnership,
or impair the validity or enforceability of, or the
ability of the Partnership to perform its obligations
under, this Agreement or any other Loan Document.
(ii) Neither the Partnership nor any Subsidiary
is in violation of any law, or in default with respect
to any judgment, writ, injunction, decree, rule or
regulation of any court or governmental agency or
instrumentality, where such violation or default could
have a Material Adverse Effect on the business, assets,
operations or condition, financial or otherwise, of the
Partnership. Without limitation of the foregoing, the
Partnership and each Subsidiary has complied with all
Environmental Laws where any such noncompliance could
have a Material Adverse Effect on the business, assets,
operations or condition, financial or otherwise, of the
Partnership. Neither the Partnership nor any
Subsidiary has received notice of any material failure
so to comply. The Partnership's and the Subsidiaries'
plants do not handle any Hazardous Materials in
violation of any Environmental Law where any such
violation could have a Material Adverse Effect on the
business, assets, operations or condition, financial or
otherwise, of the Partnership. The Partnership and FTX
are aware of no events, conditions or circumstances
involving contaminants or employee health or safety
that could reasonably be expected to result in material
liability on the part of the Partnership or any
Subsidiary.
(g) Title, etc. The Partnership has good and
defensible title to its material properties, assets and
revenues (exclusive of oil, gas and other mineral
properties on which no development or production
activities following discovery of commercially
exploitable reserves are being conducted), free and
clear of all Liens except such as are permitted by
Section 4.2(d) and except for covenants, restrictions,
rights, easements and minor irregularities in title
which do not individually or in the aggregate interfere
with the occupation, use and enjoyment by the
Partnership or the respective Subsidiary of such
properties and assets in the normal course of business
as presently conducted or materially impair the value
thereof for use in such business.
(h) Federal Reserve Regulations; Use of Proceeds.
(i) Neither the Partnership nor any Subsidiary is
engaged principally, or as one of its important activi-
ties, in the business of extending credit for the pur-
pose of purchasing or carrying Margin Stock.
(ii) No part of the proceeds of the Loans will be
used, whether directly or indirectly, and whether imme-
diately, incidentally or ultimately, for any purpose
which entails a violation of, or which is inconsistent
with, the provisions of the Regulations of the Board,
including, without limitation, Regulations G, U or X
thereof.
(iii) The Partnership will use the proceeds of
all Loans made to it to finance general partnership
purposes of the Partnership and the Subsidiaries.
(i) Taxes. The Partnership and the Subsidiaries
have filed or caused to be filed all Federal, state and
local tax and information returns which are required to
be filed by them, and have paid or caused to be paid
all taxes shown to be due and payable on such returns
or on any assessments received by any of them, other
than any taxes or assessments the validity of which the
Partnership or any Subsidiary is contesting in good
faith by appropriate proceedings, and with respect to
which the Partnership or such Subsidiary shall, to the
extent required by GAAP, have set aside on its books
adequate reserves.
(j) Employee Benefit Plans. Each of the Borrower
and its ERISA Affiliates is in compliance in all
material respects with the applicable provisions of
ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has
occurred or is reasonably expected to occur that, when
taken together with all other such ERISA Events, could
materially and adversely affect the financial condition
and operations of the Borrower and the ERISA
Affiliates, taken as a whole. The present value of all
benefit liabilities under each Plan, determined on a
plan termination basis (based on those assumptions used
for financial disclosure purposes in accordance with
Statement of Financial Accounting Standards No. 87 of
the Financial Accounting Standards Board ("SFAS 87")
did not, as of the last annual valuation date
applicable thereto, exceed by more than $5,000,000 the
value of the assets of such Plan, and the present value
of all benefit liabilities of all underfunded Plans,
determined on a plan termination basis (based on those
assumptions used for financial disclosure purposes in
accordance with SFAS 87) did not, as of the last annual
valuation dates applicable thereto, exceed by more than
$5,000,000 the value of the assets of all such
underfunded Plans.
(k) Environmental Matters. (1) The properties
owned or operated by the Borrower and the Subsidiaries
(the "Properties") and all operations of the Borrower
and the Subsidiaries are in compliance, and in the last
three years have been in compliance, with all
Environmental Laws and all necessary Environmental
Permits have been obtained and are in effect, except to
the extent that such non-compliance or failure to
obtain any necessary permits, in the aggregate, could
not reasonably be expected to result in a Material
Adverse Effect;
(2) there have been no Releases or threatened
Releases at, from, under or proximate to the Properties
or otherwise in connection with the operations of the
Borrower or the Subsidiaries, which Releases or
threatened Releases, in the aggregate, could reasonably
be expected to result in a Material Adverse Effect;
(3) neither the Borrower nor any of the
Subsidiaries has received any notice of an
Environmental Claim in connection with the Properties
or the operations of the Borrower or the Subsidiaries
or with regard to any Person whose liabilities for
environmental matters the Borrower or the Subsidiaries
has retained or assumed, in whole or in part,
contractually, by operation of law or otherwise, which,
in the aggregate, could reasonably be expected to
result in a Material Adverse Effect, nor do the
Borrower or the Subsidiaries have reason to believe
that any such notice will be received or is being
threatened;
(4) Hazardous Materials have not been transported
from the Properties, nor have Hazardous Materials been
generated, treated, stored or disposed of at, on or
under any of the Properties in a manner that could give
rise to liability under any Environmental Law, nor have
the Borrower or the Subsidiaries retained or assumed
any liability, contractually, by operation of law or
otherwise, with respect to the generation, treatment,
storage or disposal of Hazardous Materials, which
transportation, generation, treatment, storage or
disposal, or retained or assumed liabilities, in the
aggregate, could reasonably be expected to result in a
Material Adverse Effect; and
(5) The Partnership and the Subsidiaries do not
have any ownership or control rights in respect of the
properties listed on Schedule IV which results in any
environmental or reclamation liability for the
Partnership and the Subsidiaries relating to such
properties.
(l) Investment Company Act. Neither the Partner-
ship nor any Subsidiary is an "investment company" as
defined in, or subject to regulation under, the Invest-
ment Company Act of 1940.
(m) Public Utility Holding Company Act. Neither
the Partnership nor any Subsidiary is a "holding
company", or a "subsidiary company" of a "holding com-
pany", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of
1935, as amended.
(n) Subsidiaries. Schedule V constitutes a
complete and correct list as of the Closing Date or the
date of any update thereof required by Section
4.1(a)(5) of all the Subsidiaries with at least
$1,000,000 in total assets, indicating the jurisdiction
of incorporation or organization of each such Subsidi-
ary and the percentage of voting shares or units owned
on such date directly or indirectly by the Partnership
in each such Subsidiary. The Partnership owns as of
such date, free and clear of all Liens (other than
those expressly permitted by this Agreement), the per-
centage of voting shares or units outstanding of the
Subsidiaries shown on Schedule V, and all such shares
or units are validly issued and fully paid.
(o) Solvency. (i) The fair salable value of the
assets of the Partnership and the Subsidiaries will
exceed the amount that will be required to be paid on
or in respect of the Indebtedness and other obligations
of the Partnership and the Subsidiaries as they become
absolute and mature.
(ii) The Partnership and the Subsidiaries will
not have unreasonably small capital to carry out their
businesses as conducted or as proposed to be conducted.
(iii) The Partnership, on a consolidated basis,
does not intend to, and does not believe that it will,
incur Indebtedness and other obligations beyond its
ability to pay such Indebtedness and obligations as
they mature (taking into account the timing and amounts
of cash to be received by it and the amounts to be
payable on or in respect of such Indebtedness and obli-
gations).
(p) No Material Misstatements. No information,
report (including any exhibit, schedule or other
attachment thereto or other document delivered in
connection therewith), financial statement, exhibit or
schedule prepared or furnished by the Borrower or the
Subsidiaries to the Administrative Agent or any Bank in
connection with this Agreement or any of the other Loan
Documents or included therein contained or contains any
material misstatement of fact or omitted or omits to
state any material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading.
SECTION 3.2. Representations and Warranties of
FTX. As of the Funding Date, and each other date upon which
such representations and warranties are required to be made
or deemed made pursuant to Section 5.2(a), FTX represents
and warrants to each of the Banks as follows:
(a) Organization, Powers. FTX is duly organized,
validly existing and in good standing under the laws of
the State of Delaware, has the requisite power and
authority to own its property and assets and to carry
on its business as now conducted and is qualified to do
business in every jurisdiction where such qualification
is required, except where the failure so to qualify
would not have a material adverse effect on the
condition, financial or otherwise, of FTX. FTX has the
power to execute, deliver and perform its obligations
under this Agreement, the FM Intercreditor Agreement,
the FTX Guaranty, the FTX Security Agreement and any
other Loan Document executed and delivered or to be
executed and delivered by it at any time, to guarantee
the Loans pursuant to the FTX Guaranty and to
countersign and accept the terms of the FTX
Intercreditor Agreement.
(b) Authorization. The execution, delivery and
performance of this Agreement (including, without limi-
tation, performance of obligations set forth in Sec-
tion 7.1), the FM Intercreditor Agreement, the FTX
Guaranty, the FTX Security Agreement and any other Loan
Documents executed and delivered or to be executed and
delivered by FTX at any time, the guarantee of the
Loans pursuant to the FTX Guaranty and the
countersignature and acceptance of the terms of the FTX
Intercreditor Agreement (i) have been duly authorized
by all requisite corporate and, if required,
shareholder, action on the part of FTX and (ii) will
not (A) violate (x) any provision of law, statute, rule
or regulation or the certificate or articles of incor-
poration or other constitutive documents or the By-laws
or regulations of FTX, (y) any order of any court, or
any rule, regulation or order of any other agency of
government binding upon FTX or (z) any provisions of
any indenture, agreement or other instrument to which
FTX is a party, or by which FTX or any of its proper-
ties or assets are or may be bound, (B) be in conflict
with, result in a breach of or constitute (alone or
with notice or lapse of time or both) a default under
any indenture, agreement or other instrument referred
to in (ii)(A)(z) above or (C) result in the creation or
imposition of any lien, charge or encumbrance of any
nature whatsoever upon any property or assets of FTX,
except pursuant to the FTX Security Agreement.
(c) Governmental Approval. No registration with
or consent or approval of, or other action by, any
Federal, state or other governmental agency, authority
or regulatory body is or will be required in connection
with the execution, delivery and performance of this
Agreement or any other Loan Document, or the guarantee
of the Loans pursuant to the FTX Guaranty except
(i) such as have been made and obtained and are in full
force and effect and (ii) such security filings and
recordation as may be required in connection with the
grant of any Lien under the FTX Security Agreement.
(d) Enforceability. Each of this Agreement and
the other Loan Documents executed and delivered by FTX
constitutes (or, as to any Loan Document contemplated
hereby to be executed and delivered by FTX at any
future date, will constitute) a legal, valid and
binding obligation of FTX, in each case enforceable in
accordance with its terms (subject, as to the
enforcement of remedies against FTX, to applicable
bankruptcy, reorganization, insolvency, moratorium and
similar laws affecting creditors' rights against FTX
generally in connection with the bankruptcy,
reorganization or insolvency of FTX or a moratorium or
similar event relating to FTX).
(e) Litigation; Compliance with Laws; etc.
(i) Except as disclosed in the 1995 FTX Form 10-K and
any subsequent reports filed as of 20 days prior to the
date hereof with the SEC on Form 10-Q or Form 8-K which
have been delivered to the Banks, there are no actions,
suits or proceedings at law or in equity or by or
before any governmental instrumentality or other agency
or regulatory authority now pending or, to the knowl-
edge of FTX, threatened against or affecting FTX or any
of its subsidiaries or the businesses, assets or rights
of FTX or any of its subsidiaries (i) which involve
this Agreement or any other Loan Document or any of the
transactions contemplated hereby or thereby or (ii) as
to which there is a reasonable possibility of an
adverse determination and which, if adversely deter-
mined, could, individually or in the aggregate, materi-
ally impair the ability of FTX or FRP to conduct its
business substantially as now conducted, or materially
and adversely affect the businesses, assets, opera-
tions, prospects or condition, financial or otherwise,
of FTX or FRP, or impair the validity or enforceability
of, or the ability of FTX to perform its obligations
under, this Agreement or any other Loan Document.
(f) Representations Incorporated By Reference
from the FTX Credit Agreement. Section 3.1 of the FTX
Credit Agreement (other than paragraphs (a), (b), (c),
(d), (f)(i), (h)(ii) and (iii) and (p) thereof) is
hereby incorporated by reference herein with the same
force and effect as though fully set forth herein in
its entirety and shall be deemed made each time the
representations in this Section 3.2 are made or deemed
made.
(g) Florida Environmental Liability. The
Partnership and the Subsidiaries do not have any
ownership or control rights in respect of the
properties listed on Schedule IV which results in any
environmental or reclamation liability for the
Partnership and the Subsidiaries relating to such
properties.
(h) No Material Misstatements. No information,
report (including any exhibit, schedule or other
attachment thereto or other document delivered in
connection therewith), financial statement, exhibit or
schedule prepared or furnished by FTX or its
subsidiaries to the Administrative Agent or any Bank in
connection with this Agreement or any of the other Loan
Documents or included therein or any information
provided to Cravath, Swaine & Xxxxx in connection with
the preparation of the environmental due diligence
summary memorandum referred to in paragraph (m) of
Article IV of the FTX Credit Agreement contained or
contains any material misstatement of fact or omitted
or omits to state any material fact necessary to make
the statements therein, in the light of the
circumstances under which they were made, not
misleading.
ARTICLE IV
Covenants
SECTION 4.1. Affirmative Covenants of the Part-
nership. Commencing as of the Funding Date and so long
thereafter as any Bank shall have any Commitment hereunder
or the principal of or interest on any Loan shall be unpaid,
unless the Required Banks shall have otherwise consented in
writing:
(a) Financial Statements, etc. The Partnership
shall furnish each Bank:
(1) within 95 days after the end of each
fiscal year of the Company, a consolidated balance
sheet of the Company and its subsidiaries (includ-
ing the Partnership) as at the close of such fis-
cal year and consolidated statements of operations
and of cash flow of the Company and its subsidiar-
ies for such year, with the opinion thereon of
Xxxxxx Xxxxxxxx LLP or other independent public
accountants of national standing selected by the
Company;
(2) within 50 days after the end of each of
the first three quarters of each fiscal year of
the Company, a consolidated balance sheet of the
Company and its subsidiaries as at the end of such
quarter and consolidated statements of operations
of the Company and its subsidiaries for such quar-
ter and consolidated statements of operations and
of cash flow of the Company for the period from
the beginning of the fiscal year to the end of
such quarter, certified by the Treasurer or other
authorized financial or accounting officer of FTX;
(3) within 95 days after the end of each
fiscal year of the Partnership, a consolidated
unaudited balance sheet of the Partnership and the
Subsidiaries as at the close of such fiscal year
and consolidated unaudited statements of
operations and of cash flow of the Partnership and
the Subsidiaries for such year, certified by the
Treasurer or other authorized financial or
accounting officer of FTX;
(4) within 50 days after the end of each of
the first three quarters of each fiscal year of
the Partnership, a consolidated balance sheet of
the Partnership and the Subsidiaries as at the end
of such quarter and consolidated statements of
operations of the Partnership and the Subsidiaries
for such quarter and consolidated statements of
operations and of cash flows of the Partnership
and the Subsidiaries for the period from the
beginning of the fiscal year to the end of such
quarter, certified by the Treasurer or other
authorized financial or accounting officer of FTX;
(5) at the time of the provision of the
financial statements referred to in clauses (1)
through (4) above, an update of Schedule V to
correct, add or delete any required information;
(6) promptly after their becoming available,
(a) copies of all financial statements, reports
and proxy statements which the Company shall have
sent to its shareholders generally, (b) copies of
all registration statements (excluding
registration statements relating to employee
benefit plans) and regular and periodic reports,
if any, which the Company shall have filed with
the SEC or with any national securities exchange
and (c) if requested by any Bank, copies of each
annual report filed with any governmental agency
pursuant to ERISA with respect to each Plan of the
Partnership or any of the Subsidiaries;
(7) within 95 days after the end of each
fiscal year of the Partnership, a certificate by a
Financial Officer of the Partnership, to the
effect that no Event of Default or Default has
occurred and is continuing, or if an Event of
Default or Default has occurred and is continuing,
specifying the nature and extent thereof and the
corrective action (if any) proposed to be taken
with respect thereto;
(8) promptly upon the occurrence of any ERISA
Event, Event of Default, Default or the
commencement of any proceeding regarding the Com-
pany, the Partnership or any Subsidiary under any
Federal or state bankruptcy law, notice thereof,
describing the same in reasonable detail;
(9) promptly upon the occurrence of any
development that, in the judgment of the Partner-
ship, has resulted in, or could reasonably be
anticipated to result in, a material adverse
effect on the business, assets, operations or
financial condition of the Partnership or its
ability to comply with its obligations under the
Loan Documents, notice thereof, describing the
same in reasonable detail;
(10) within 30 days after the end of each
quarter of each fiscal year of the Partnership, a
list of all Material Assets sold by the
Partnership during such preceding quarter;
(11) 30 days prior to the commencement of
each fiscal year of the Partnership, an operating
budget of the Partnership for such fiscal year;
(12) fifteen days prior to the grant of any
permitted Liens in favor of FTX, copies of all
agreements, documents or instruments pertaining
thereto;
(13) promptly after the execution thereof and
subject to Section 4.2(b) and Section 4.4(b), a
copy, certified by a Responsible Officer, of each
amendment, supplement, change or waiver to any
Material Agreement (including, without limitation,
to the Partnership Agreement); and
(14) from time to time, such further informa-
tion regarding the business, affairs and financial
condition of the Company, the Partnership or any
Subsidiary as any Bank may reasonably request.
(b) Obligations, Taxes and Claims. The Partner-
ship shall, and shall cause each Subsidiary to, pay its
Indebtedness and other obligations promptly and in
accordance with their terms and pay and discharge all
taxes, assessments and governmental charges or levies
imposed upon it, upon its income or profits or upon any
property belonging to it, prior to the date on which
material penalties attach thereto; provided that nei-
ther the Partnership nor any Subsidiary shall be
required to pay any such tax, assessment, charge or
levy, the payment of which is being contested in good
faith by proper proceedings and with respect to which
the Partnership or such Subsidiary shall have, to the
extent required by GAAP, set aside on its books xxx-
xxxxx reserves.
(c) Maintenance of Existence; Conduct of Busi-
ness. The Partnership shall preserve and maintain its
independent legal existence as a partnership; preserve
and maintain all its rights, privileges and franchises
necessary or desirable in the normal conduct of its
business; segregate its individual assets and business
functions from those of FTX, its subsidiaries, the
Company and its other subsidiaries, if any (which shall
not prohibit FTX from acting as managing general part-
ner of the Partnership), including, without limitation,
segregating its bank and investment accounts from those
of FTX, its subsidiaries, the Company or its other
subsidiaries, if any; maintain and preserve all
property material to the conduct of its business and
keep such property in good repair, working order and
condition and from time to time make, or cause to be
made, all needful and proper repairs, renewals,
additions, improvements and replacements thereto
necessary in order that the business carried on in
connection therewith may be properly conducted at all
times.
(d) Compliance with Applicable Laws. The Part-
nership shall, and shall cause each Subsidiary to,
comply with the requirements of all applicable laws,
rules, regulations and orders of any governmental
authority, a breach of which would materially and
adversely affect the consolidated financial condition
or business of the Partnership and the Subsidiaries,
except where contested in good faith and by proper
proceedings and with respect to which the Partnership
shall have, to the extent required by GAAP, set aside
on its books adequate reserves.
(e) Litigation. The Partnership shall promptly
give to each Bank notice in writing of all litigation
and all proceedings before any governmental or regula-
tory agencies or arbitration authorities affecting the
Partnership or any Subsidiary, except those which do
not relate to the Loan Documents and which, if
adversely determined, would not have a Material Adverse
Effect.
(f) ERISA. The Borrower shall, and shall cause
each of the ERISA Affiliates to, comply in all material
respects with the applicable provisions of ERISA and
the Code and furnish to the Administrative Agent as
soon as possible, and in any event within 30 days after
any Responsible Officer of the Borrower or any ERISA
Affiliate knows or has reason to know that, any ERISA
Event has occurred that alone or together with any
other ERISA Event could reasonably be expected to
result in liability of the Borrower in an aggregate
amount exceeding $25,000,000 or requires payment
exceeding $10,000,000 in any year, a statement of a
Financial Officer of the Borrower setting forth details
as to such ERISA Event and the action that the Borrower
proposes to take with respect thereto.
(g) Insurance. The Partnership and each Subsidi-
ary shall (i) keep its insurable properties adequately
insured at all times; (ii) maintain such other insur-
ance, to such extent and against such risks, including
fire, flood and other risks insured against by extended
coverage, as is customary with persons in the same or
similar businesses; (iii) maintain in full force and
effect public liability insurance against claims for
personal injury or death or property damage occurring
upon, in, about or in connection with the use of any
properties owned, occupied or controlled by it in such
amount as it shall reasonably deem necessary; and
(iv) maintain such other insurance as may be required
by law.
(h) Access to Premises and Records. The Partner-
ship and each Subsidiary shall maintain financial
records in accordance with GAAP, and, at all reasonable
times and as often as any Bank may reasonably request,
permit representatives of any Bank to have access to
its financial records and its premises and to the
records and premises of any of its subsidiaries, if
any, and to make such excerpts from such records as
such representatives deem necessary and to discuss its
affairs, finances and accounts with its officers, if
any, and the officers of FTX, as managing general part-
ner, and the Partnership's independent certified public
accountants or other parties preparing consolidated or
consolidating statements for the Partnership or on its
behalf.
(i) Compliance with Environmental Laws. The
Borrower shall comply, and cause the Subsidiaries and
all lessees and other Persons occupying the Properties
to comply, in all material respects with all
Environmental Laws and Environmental Permits applicable
to its operations and Properties; obtain and renew all
material Environmental Permits necessary for its
operations and Properties; and conduct any Remedial
Action in accordance with Environmental Laws; provided,
however, that neither the Borrower nor any of the
Subsidiaries shall be required to undertake any Remedial
Action to the extent that its obligation to do so is being
contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to
such circumstances.
(j) Preparation of Environmental Reports. If a
default caused by reason of a breach of Section 3.1(k)
or 4.1(i) shall have occurred and be continuing, at the
request of the Required Banks through the
Administrative Agent, the Borrower shall provide to the
Banks within 45 days after such request, at the expense
of the Borrower, an environmental site assessment
report for the Properties (which are the subject of
such default) prepared by an environmental consulting
firm acceptable to the Administrative Agent, indicating
the presence or absence of Hazardous Materials and the
estimated cost of any compliance or Remedial Action in
connection with such Properties.
(k) Reduction of Balance Under Pel-Tex
Agreements. On the last Business Day of each calendar
month, commencing January 31, 1997, the Partnership
shall repay the principal amount outstanding under the
Pel-Tex Agreements in an amount such that the total
amount of all such payments made by the Partnership
pursuant to this Section 4.1(k) from the Restatement
Closing Date through the 20th day of each such calendar
month is equal to at least 50% of the aggregate Net
Proceeds of all sales of Material Assets which have
occurred since the Restatement Closing Date, rounded
down to the nearest multiple of $100,000, it being
understood that any amounts not paid as a result of
such rounding down shall be carried over into the
calculation of the next month's payment pursuant to
this Section 4.1(k). The reductions required by this
Section 4.1(k) shall be effective as of the date of
closing or effectiveness of any sales transaction
subject hereto; provided that with respect to any non-
cash Net Proceeds, such reductions shall be effective
as of the date of receipt of cash proceeds thereof.
SECTION 4.2. Negative Covenants of the Partner-
ship. Commencing as of the Funding Date and so long
thereafter as any Bank shall have any Commitment hereunder
or the principal of or interest on any Loan shall be unpaid,
without the prior written consent of the Required Banks:
(a) Conflicting Agreements. The Partnership
shall not, and shall not permit any Subsidiary to,
enter into any agreement containing any provision which
(i) would be violated or breached by the performance of
its obligations under any Loan Document or under any
instrument or document delivered or to be delivered by
it hereunder or thereunder or in connection herewith or
therewith or (ii) would prohibit or restrict the pay-
ments of dividends or other distributions by any
Subsidiary.
(b) Material Agreements. The Partnership shall
not amend, supplement, change, terminate or waive any
material provision of any Material Agreement unless the
Banks shall have received 30 days' notice of such
amendment, supplement, change, termination or waiver
and the Required Banks shall not have objected thereto
on the ground that it would, in their judgment,
adversely affect the rights or interests of the Banks;
provided that, if the Partnership shall not have given
such 30 days' notice, the Partnership shall not amend,
supplement, change, terminate or waive any material
provision of any Material Agreement unless the Required
Banks shall have given their written consent thereto.
(c) Mergers and Consolidations. The Partnership
shall not, and shall not permit any Subsidiary to,
merge into or consolidate with any other Person or
permit any other Person to merge into or consolidate
with it, except that if at the time thereof and immedi-
ately after giving effect thereto no Event of Default
or Default shall have occurred and be continuing
(i) any wholly owned Subsidiary may liquidate into the
Partnership in a transaction in which the Partnership
is the surviving entity, (ii) any wholly owned Subsidi-
ary may merge into or consolidate with any other wholly
owned Subsidiary in a transaction in which the surviv-
ing entity is a wholly owned Subsidiary and no Person
other than the Partnership or a wholly owned Subsidiary
receives any consideration and (iii) any Subsidiary may
merge into or consolidate with any other Person in a
transaction in which the surviving Person is a Subsidi-
ary of which the Partnership owns a percentage of the
equity, directly or indirectly, at least equal to the
percentage of the equity that it owned in the merging
or consolidating Subsidiary immediately prior to such
merger or consolidation and in which no Person other
than the Partnership receives any consideration.
(d) Liens. The Partnership shall not, nor shall
it permit any Subsidiary to, create, incur, permit or
suffer to exist any Lien upon any of their respective
properties or assets (including, without limitation,
stock or other securities of, or ownership interest in,
any Person, including any Subsidiary) now owned or
hereafter acquired or on any income or revenues or
rights in respect of any thereof, except:
(i) materialmen's, suppliers', tax and other
similar Liens arising in the ordinary course of
the Partnership's or such Subsidiary's business
securing obligations which are not overdue or are
being contested in good faith by appropriate pro-
ceedings and as to which adequate reserves have
been set aside on its books to the extent required
by GAAP; Liens arising in connection with workers'
compensation, unemployment insurance and progress
payments under government contracts; and other
Liens incident to the ordinary conduct of the
Partnership's or such Subsidiary's business or the
ordinary operation of property or assets and not
incurred in connection with the obtaining of any
Indebtedness and which do not in the aggregate
materially detract from the value of their assets
or materially impair the use thereof in the
operation of their businesses;
(ii) zoning restrictions, easements, rights-
of-way, restrictions on use of real property and
other similar encumbrances incurred in the ordi-
nary course of business which, in the aggregate,
are not substantial in amount and do not
materially detract from the value of the property
subject thereto or interfere with the ordinary
conduct of the business of the Partnership or any
Subsidiary;
(iii) Liens of lessors of property (in such
capacity) leased by the Partnership, which Liens
are limited to the property leased thereunder;
(iv) Liens on property of the Partnership in
favor of FTX securing the obligations of the
Partnership under the FTX/FMPO Credit Agreement
and the Reimbursement Agreement on the real estate
assets of the Partnership (excluding the TCB
Collateral) that are subject to, and granted in
accordance with and on the terms of, the FM
Intercreditor Agreement;
(v) Liens in favor of FTX on the TCB Borrower
Properties securing the FTX Guaranty;
(vi) Liens in favor of TCB on the TCB
Collateral securing the obligations of the TCB
Borrower under the TCB Credit Agreement;
(vii) Liens securing Indebtedness permitted
by Section 4.2(g)(iv); provided, that each such
Lien is limited to the specific property of the
Partnership being developed with the proceeds of
such permitted Indebtedness and/or any
development, purchase or other agreements relating
thereto; and
(viii) Liens encumbering the City of Austin
Receivable, any agreements related thereto and any
security therefor, securing Indebtedness permitted
by Section 4.2(g)(v).
(e) Investments, Loans, Advances and Acquisi-
tions. The Partnership shall not, and shall not permit
any Subsidiary to, (i) purchase, lease or otherwise
acquire (in one transaction or a series of transac-
tions) all or any substantial part of the assets of,
(ii) purchase, hold or acquire any capital stock, evi-
dences of indebtedness or other securities of,
(iii) make or permit to exist any loans or advances to
or (iv) make or permit to exist any investment or any
other interest in, any other Person, or contribute
assets to any joint ventures with parties which are not
the Borrower or a Subsidiary, except:
(A) investments by the Partnership existing
on the Closing Date in the capital stock of the
Subsidiaries;
(B) loans by the Partnership to the TCB
Borrower or the Circle C Entity not in excess of
the interest expense payable by such entity on the
TCB Credit Agreement;
(C) (i) advances by the Partnership to the
TCB Borrower, the Circle C Entity or any other
Subsidiary in the amount of such Subsidiary's
reasonable operating expenses (including
development costs for the Circle C Property);
provided that such advances shall be made only
upon or after the incurrence of such expenses and
only to the extent utilized to pay such expenses
within thirty days of the date of any such
advance; and (ii) investments in joint ventures
and development arrangements, not in excess of an
aggregate amount of $10,000,000 for all such
advances and investments made pursuant to this
clause (C);
(D) Permitted Investments;
(E) promissory notes payable to the
Partnership representing the purchase price of
assets sold by the Partnership to the extent such
promissory notes are secured by the assets sold;
provided that such asset sales are made to third
party purchasers pursuant to arm's-length
transactions; and
(F) the loan by the Partnership to Circle C
Land Corp. of the MUD Proceeds, on the terms and
conditions previously approved by the Required
Banks.
(f) Distributions. The Partnership shall not,
and shall not permit any Subsidiary to, (i) pay,
directly or indirectly, or make any distribution (by
reduction of Partnership equity (including any option,
warrant or other right to acquire any Partnership
equity), capital or otherwise) or any dividend, whether
in cash, property, securities or a combination thereof,
with respect to any Partnership equity (including any
option, warrant or other right to acquire any Partner-
ship equity), (ii) directly or indirectly make any
redemption, repurchase or repayment of Partnership
equity (including any option, warrant or other right to
acquire any Partnership equity), (iii) purchase, redeem
or acquire any capital stock of the Company (or any
option, warrant or other right to acquire any such
capital stock) or (iv) make any payment, redemption,
repurchase or other acquisition or retirement for value
of any Indebtedness of the Company (which shall not
include any Indebtedness of the Partnership or of any
Subsidiary); provided, however, that (i) any Subsidiary
may declare and pay dividends or make other
distributions to the Partnership and (ii) the
Partnership may make such distributions from time to
time to the extent (but only to the extent) required to
enable the Company to pay (A) all reasonable out-of-
pocket expenses arising under the Administrative
Services Agreement (as it may be amended as permitted
hereby and in effect from time to time) which have
become due at or prior to the time of such
distribution, (B) the Company's actual current combined
Federal, state and local cash tax liability (including
estimated payments required by applicable law) arising
from or attributed to the Company's Partnership equity
interest, but only to the extent such distributions are
in fact utilized to pay such taxes within 30 days of
the date of any distribution, and (C) all other
reasonable and necessary general and administrative
cash expenses, not in excess of $2,000,000 per 12-month
period, relating to the management of the Company's
Partnership equity interest.
(g) Indebtedness. Neither the Partnership nor
any Subsidiary shall incur, create, assume or permit to
exist any Indebtedness of any of them except:
(i) Subject to Section 4.1(k), Indebtedness
of the Partnership not to exceed $34,000,000 in
aggregate principal amount outstanding on the date
hereof incurred pursuant to the Pel-Tex Agreements
as extended, renewed and/or replaced through the
Restatement Closing Date, but not any further
extensions, renewals or replacements of such
Indebtedness; provided that no payments on the
principal amount of such Indebtedness may be made,
directly or indirectly, from the proceeds of the
Loans;
(ii) Indebtedness owed by the Partnership to
FTX for loans made under the FTX/FMPO Credit
Agreement so long as no Default or Event of
Default has occurred and is continuing; provided
that all such loans other than the FTX Loan (as
defined below) (x) may be incurred only as
subordinated upon the Subordination Terms to the
Senior Debt (as defined in the Subordination
Terms) for the benefit of the holders of such
Senior Debt (which Subordination Terms shall be
contained in or attached to any promissory notes
executed in connection with such loans and to
which FTX shall evidence its agreement by
countersigning such promissory notes) subject to
and in accordance with the FM Intercreditor
Agreement and (y) may not permit payments of
principal or interest, prior to the Maturity Date
and the payment of all principal of and interest
on the Loans and all fees and other expenses or
amounts owed hereunder and termination of the
Commitments;
(iii) Indebtedness evidenced by the
Promissory Notes;
(iv) Secured Indebtedness of the Partnership
with an outstanding aggregate principal amount not
at any time in excess of $5,000,000, provided that
there is a developer's commitment relating to such
Indebtedness satisfactory to the Administrative
Agent, and unsecured Indebtedness of the
Partnership incurred in the ordinary course of
business not for borrowed money, in each case not
otherwise permitted by the foregoing clauses of
this Section 4.2(g), and including letters of
credit in favor of municipalities, used to
facilitate the construction of infrastructure
(such as utilities) for the properties owned by
the Partnership;
(v) Indebtedness of the Partnership (not in
excess of $4,500,000 in the aggregate) secured by
the pledge of the City of Austin Receivable; and
(vi) Indebtedness of the Partnership in
connection with its borrowing of approximately
$4,000,000 of Circle C Municipal Utility District
bond proceeds pursuant to the terms of that
certain Purchase and Sale Agreement between
Circle C Land Corp. and Phoenix Holdings Ltd. (the
"MUD Proceeds"), on the terms and conditions
previously approved by the Required Banks.
The Partnership may borrow up to $10,000,000 in
aggregate principal amount (the "FTX Loan") from time
to time under clause (iii) above on an unsubordinated
basis and may repay any or all of such amount borrowed,
from proceeds of Loans or otherwise.
(h) Sale and Lease-Back Transactions. The Part-
nership shall not, and shall not permit any Subsidiary
to, enter into any arrangement, directly or indirectly,
with any person whereby it shall sell or transfer any
property, real or personal, used or useful in its busi-
ness, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other pro-
perty which it intends to use for substantially the
same purpose or purposes as the property being sold or
transferred.
(i) Transactions with Affiliates. The Partner-
ship shall not, and shall not permit any Subsidiary to,
sell or transfer any property or assets to, purchase or
acquire any property or assets from, perform any ser-
vices for or otherwise engage in any other transactions
with, any Affiliate of the Partnership, except that as
long as no Default or Event of Default shall have
occurred and be continuing, the Partnership or any
Subsidiary may engage in any of the foregoing transac-
tions in the ordinary course of business on an arm's-
length and fair value basis; provided that the forego-
ing shall not prohibit (i) the joint venture between
the Partnership and IMC-Agrico providing for the joint
development of certain Florida real estate pursuant to,
and on the terms of, the Florida Joint Venture
Agreement (as it may be amended as permitted hereby and
in effect from time to time), (ii) FTX from making
permitted advances to the Partnership pursuant to the
FTX/FMPO Credit Agreement (as it may be amended as
permitted hereby and in effect from time to time),
(iii) FTX from acting as the managing general partner
of the Partnership or (iv) any other transactions
expressly permitted by this Agreement, including
pursuant to Sections 4.2(e) or 4.5 or the
Administrative Services Agreement.
(j) Fiscal Year. The Partnership shall not
change its fiscal year to end on any date other than
December 31.
(k) Business of Partnership and Subsidiaries.
The Partnership shall not, and shall not permit any
Subsidiary to, engage at any time in any business or
business activity other than as described in the 1995
FM Form 10-K and business activities reasonably
incidental thereto.
(l) Federal Reserve Regulations; Use of Proceeds.
The Partnership will not (i) use the proceeds of any
Loan in any manner that would result in a violation of,
or be inconsistent with, the provisions of
Regulations G, U or X of the Board, (ii) take any
action at any time that would cause the representation
and warranty contained in Section 3.1(h) at any time to
be other than true and correct, (iii) use any part of
the proceeds of any Loan, directly or indirectly,
immediately, incidentally or ultimately, to purchase or
carry Margin Stock or to refund indebtedness originally
incurred for such purpose or (iv) directly or
indirectly use the proceeds of any Borrowing (x) to
repay principal on any Indebtedness (subordinate or
otherwise) other than the FTX Loan or the Pel-Tex Debt
so long as no Default or Event of Default has occurred
or is continuing or would result therefrom or (y) to
purchase any investments or properties except to the
extent permitted by Section 4.2(e).
(m) Certain Debt Agreements. The Partnership
shall not, without the prior written consent thereto of
the Required Banks, amend, supplement or change in any
material manner (including any earlier maturity date or
amortization schedule) any of the terms or provisions
of any agreement, note or other instrument governing or
evidencing any of the Indebtedness referred to in
paragraphs (i) or (ii) of Section 4.2(g) or, with
respect to the Indebtedness referred to in paragraph
(ii) of such Section, any of the terms and provisions
(including without limitation the Subordination Terms)
required by such paragraph or the FM Intercreditor
Agreement.
(n) Swaps. Neither the Partnership nor any Sub-
sidiary shall enter into, or be obligated in respect
of, any Hedge Agreement; provided that the Partnership
may enter into any Permitted Swap so long as the
aggregate notional amounts under all such Permitted
Swaps shall not at any time be in excess of the amount
of the related Indebtedness (that bears interest at a
floating rate) permitted under Section 4.2(g) and
outstanding at such time; and provided further that no
Permitted Swap shall be secured unless all the Banks
consent thereto.
(o) Assets of Subsidiaries. The Partnership
shall not transfer any Key Assets to the Subsidiaries
or to any entity which owns the Circle C Property and
is liable for the obligations under the TCB Credit
Agreement, or permit the Subsidiaries or any entity
which owns the Circle C Property and is liable for the
obligations under the TCB Credit Agreement,
collectively, to own or hold any assets at any time
other than (i) those assets owned by the Subsidiaries
and any entity which owns the Circle C Property and is
liable for the obligations under the TCB Credit
Agreement, on the Closing Date and (ii) provided that
such investments and transactions involve assets other
than Key Assets, investments permitted by
Sections 4.2(e)(C) or (D) and transactions permitted by
Section 4.5.
SECTION 4.3. Affirmative Covenants of FTX. So
long as any Bank shall have any Commitment hereunder or the
principal of or interest on any Loan shall be unpaid, unless
the Required Banks shall otherwise consent in writing:
(a) Affirmative Covenants Incorporated by Refer-
ence from the FTX Credit Agreement. FTX will at all
times be in full compliance with Section 5.1 of the FTX
Credit Agreement, which is hereby incorporated by
reference herein with the same force and effect as
though fully set forth herein in its entirety; provided
that the references therein to "Default", "Event of
Default", "Bank" and "Agents" or "Agent" are replaced
herein with references to Default, Event of Default,
Bank and the Agents or Agent hereunder, respectively.
(b) Partnership's Covenants and FTX. FTX, in its
capacity as managing general partner of the Partner-
ship, shall cause the Partnership to perform and to
comply with its covenants set forth in Sections 4.1 and
4.2 and to otherwise act in accordance with this Agree-
ment. FTX shall at all times be a general partner of
the Partnership and the sole managing general partner
of the Partnership and shall at all times generally
carry out the functions of the managing general partner
of the Partnership; provided that the foregoing shall
not prevent FTX from delegating to any of its subsidi-
aries FTX's duties as the managing general partner of
the Partnership.
SECTION 4.4. Negative Covenants of FTX. So long
as any Bank shall have any Commitment hereunder or the prin-
cipal of or interest on any Loan shall be unpaid, without
the prior written consent of the Required Banks:
(a) Negative Covenants Incorporated by Reference
from the FTX Credit Agreement. FTX will not at any
time fail to be in full compliance with Section 5.2 of
the FTX Credit Agreement, which is hereby incorporated
by reference herein with the same force and effect as
though fully set forth herein in its entirety; provided
that the references therein to "this Agreement", "this
Agreement, the Pledge Agreement or the Security
Agreement", "Default", "Event of Default", "Banks",
"Required Banks" and "Agents" or "Agent" are replaced
herein with references to this Agreement, this Agree-
ment or any other Loan Document, Default, Event of
Default, Banks, Required Banks and Agents or Agent
hereunder, respectively.
(b) Material Agreements. FTX shall not amend,
supplement, change, terminate or waive any material
provision of any Material Agreement unless the Banks
shall have received 30 days' notice of such amendment,
supplement, change, termination or waiver and the
Required Banks shall not have objected thereto on the
ground that it would, in their judgment, adversely
affect the rights or interests of the Banks; provided
that if FTX shall not have given such 30 days' notice,
FTX shall not amend, supplement, change, terminate or
waive any material provision of any Material Agreement
unless the Required Banks shall have given their
written consent thereto.
SECTION 4.5. Covenants Regarding the TCB Borrower.
The following covenants shall be applicable to the
Partnership so long as any Bank shall have any Commitment
hereunder or the principal of or interest on any Loan shall
be unpaid, unless the Required Banks shall otherwise consent
in writing:
(a) Transfers and Investments. As of the
Restatement Closing Date, Circle C Land Corp. is the
TCB Borrower and is a wholly-owned subsidiary of the
Company. Notwithstanding any other provision of this
Agreement, including, without limitation, Sections
4.2(c), (e), (g), (i) and (o): (i) the Partnership may
engage in any transaction, including, without
limitation, a stock purchase, asset purchase, merger or
consolidation, pursuant to which the Partnership
becomes the owner of all or any portion of the TCB
Borrower and/or the Circle C Property and (ii) the
Partnership may enter into any transaction, including,
without limitation, a stock purchase, asset purchase,
merger or consolidation, pursuant to which the TCB
Borrower and/or the Circle C Property becomes owned by
an entity which is either wholly or partly owned by the
Partnership; provided, in each case, that (x) at the
time of any such transaction and after giving effect
thereto no Default or Event of Default shall have
occurred and be continuing, (y) the Administrative
Agent receives five (5) days' prior written notice of
such transaction describing the terms of such
transaction and (z) such transaction does not result in
the Partnership becoming liable, directly or
indirectly, for the obligations under the TCB Credit
Agreement.
ARTICLE V
Conditions of Credit
SECTION 5.1. Conditions Precedent to Initial
Borrowing. On the Funding Date, and as conditions precedent
to the initial Borrowing by the Borrower to occur on such
date, each of the following conditions shall have been
satisfied:
(a) Each Bank shall have received the following:
(i) a copy of the Certificates of Incorpora-
tion of FTX and FCX as in effect on the Closing
Date and each amendment, if any, subsequent
thereto, certified as of a recent date by the
Secretary of State of the State of Delaware as
being a true and correct copy of such documents on
file in his office;
(ii) the signed Certificate of the Secretary
of State of the State of Delaware, in regular
form, dated as of a recent date, listing the Cer-
tificate of Incorporation of FTX and FCX as in
effect on such recent date and each subsequent
amendment thereto on file in his office and
stating that such documents are the only charter
documents of FTX and FCX on file in his office and
that FTX and FCX are duly incorporated and in good
standing in the State of Delaware, have filed all
franchise tax returns and have paid all franchise
taxes required by law to be filed and paid by FTX
and FCX to the date of his Certificate;
(iii) the signed Certificate of the Secretary
or an Assistant Secretary of FTX, dated the Clos-
ing Date and certifying, among other things, (A) a
true and correct copy of resolutions adopted by
the Board of Directors of FTX authorizing the
making and performance of this Agreement and the
other Loan Documents (including the FTX Guaranty)
executed and delivered or to be executed and
delivered, as applicable, by FTX, and the
countersignature and acceptance by FTX of the FTX
Intercreditor Agreement, (B) that such resolutions
have not been modified, rescinded or amended and
are in full force and effect, (C) a true and
correct copy of the By-laws of FTX as in effect on
the Closing Date and at all times since a date
prior to the date of the resolutions described in
(A) above, (D) that the Certificate of
Incorporation of FTX has not been amended since
the date of the last amendment shown on the cer-
tificate referred to in (ii) above, and (E) the
incumbency and specimen signatures of each officer
of FTX executing the foregoing documents and any
other documents delivered to the Banks in connec-
tion herewith on behalf of FTX; and a certificate
of another officer of FTX as to the incumbency and
signature of such Secretary or Assistant
Secretary;
(iv) the signed Certificate of the Secretary
or an Assistant Secretary of FCX, dated the Clos-
ing Date and certifying, among other things, (A) a
true and correct copy of resolutions adopted by
the Board of Directors of FCX authorizing the
making and performance of this Agreement and the
other Loan Documents (including the FCX Guaranty)
executed and delivered or to be executed and
delivered, as applicable, by FCX, and the
countersignature and acceptance by FCX of the FCX
Intercreditor Agreement, (B) that such resolutions
have not been modified, rescinded or amended and
are in full force and effect, (C) a true and
correct copy of the By-laws of FCX as in effect on
the Closing Date and at all times since a date
prior to the date of the resolutions described in
(A) above, (D) that the Certificate of
Incorporation of FCX has not been amended since
the date of the last amendment shown on the cer-
tificate referred to in (ii) above, and (E) the
incumbency and specimen signatures of each officer
of FCX executing the foregoing documents and any
other documents delivered to the Banks in connec-
tion herewith on behalf of FCX; and a certificate
of another officer of FCX as to the incumbency and
signature of such Secretary or Assistant
Secretary;
(v) the signed Certificate of (A) the Chair-
man of the Board, the President or any executive
or senior vice president and (B) the Chief Xxxxx-
cial Officer, the Controller or the Treasurer of
FTX, dated the Closing Date and certifying that
(1) the representations and warranties of FTX
contained herein are true and correct as of the
Closing Date and (2) that there exists no Default
or Event of Default relating to FTX or the
Partnership; and
(vi) the signed Certificate of (A) the Chair-
man of the Board, the President or any executive
or senior vice president and (B) the Chief Xxxxx-
cial Officer, the Controller or the Treasurer of
FCX, dated the Closing Date and certifying that
(1) the representations and warranties of FCX
contained herein are true and correct as of the
Closing Date and (2) that there exists no Default
or Event of Default relating to FCX.
(b) The Administrative Agent shall have received
all fees and other amounts due and payable to the
Agents or the Banks on or prior to the Closing Date.
(c) All outstanding loans under the Credit
Agreement dated as of June 11, 1992, among the
Partnership, FTX, the banks named therein and Chemical
Bank, as agent and as collateral agent (the "Existing
FM Credit Agreement") shall have been repaid in full
and the Existing FM Credit Agreement and the
commitments of the banks party thereto shall have been
terminated.
(d) The Administrative Agent shall have received
fully executed copies of the Guaranties and the
Material Agreements, all of which shall be in full
force and effect.
(e) Each Bank shall have received the signed
certificate of (i) the Chairman of the Board, the
President or any executive or senior vice president and
(ii) the Chief Financial Officer, the Controller or the
Treasurer of both FTX and the Partnership (or, if there
shall be no such officers of the Partnership appointed,
of FTX as managing general partner of the Partnership),
dated the Funding Date and confirming compliance with
the conditions precedent in this Section.
(f) Each Bank shall have received the favorable
written opinions of (i) the General Counsel of FTX and
FCX and (ii) Xxxxx Xxxx & Xxxxxxxx, each dated the
Funding Date, addressed to the Banks, substantially in
the forms of Exhibits F and G, respectively, covering
such matters related to the transactions contemplated
hereby as the Administrative Agent may request and
otherwise satisfactory to Cravath, Swaine & Xxxxx,
counsel for the Agents. FTX and the Partnership
recognize that the Banks are relying on such opinions
in extending credit pursuant to this Agreement, and FTX
and the Partnership hereby direct such counsel to
deliver such opinions to the Banks.
(g) Each Bank shall have received (i) a
certificate of the Secretary or an Assistant Secretary
of the Partnership (or, if there shall be no such
officer appointed, of FTX as managing general partner
of the Partnership), dated the Funding Date and
certifying (A) that attached thereto are true and
complete copies of the Partnership Agreement and all
other constitutive documents, if any, of the
Partnership as in effect on the date of such
certificate and at all times since the resolution of
the Partnership described in item (B) below, (B) that
attached thereto is a true and complete copy of a
resolution or similar authorization adopted by FTX, as
managing general partner of the Partnership,
authorizing the execution, delivery and performance of
this Agreement and the other Loan Documents executed
and delivered or to be executed and delivered, as
applicable, by the Partnership, the countersignature
and acceptance by the Partnership of the FM
Intercreditor Agreement and the Borrowings hereunder by
the Partnership, and that such resolution or
authorization has not been modified, rescinded or
amended and is in full force and effect and (C) as to
the incumbency and specimen signature of each officer
executing on behalf of the Partnership the foregoing
documents and any other document delivered or to be
delivered in connection herewith or therewith; (ii) a
certificate of another officer of the Partnership (or,
if there shall be no such officer appointed, of FTX as
managing general partner of the Partnership) as to the
incumbency and signature of such Secretary or Assistant
Secretary; and (iii) such other instruments and
documents as any Bank or Cravath, Swaine & Xxxxx,
counsel for the Agents, may reasonably request.
(h) Each Bank shall have received a Promissory
Note, each duly executed by the Partnership, payable to
such Bank's order and otherwise complying with the
provisions of Section 2.4.
(i) The FM Intercreditor Agreement, the FCX
Intercreditor Agreement and the FTX Intercreditor
Agreement shall each have been executed and delivered
by all parties thereto other than the Administrative
Agent and, in the case of the FM Intercreditor
Agreement, the FM Collateral Agent, and countersigned
and delivered by FTX, FCX or the Partnership, as
applicable, and the Agents and each Bank shall have
received a copy of such Intercreditor Documents.
(j) There shall be no proceeding for the
dissolution or liquidation of the Partnership or any
proceeding to rescind the Partnership Agreement or the
existence of the Partnership which is pending or, to
the knowledge of FTX or the Partnership, threatened
against or affecting the Partnership.
(k) All legal matters incident to this Agreement,
the other Loan Documents and the Borrowings hereunder
shall be satisfactory to Cravath, Swaine & Xxxxx,
counsel for the Agents.
By its execution and delivery of this Agreement, and unless
prior to the Funding Date it shall have provided written
notice to the Administrative Agent and FTX indicating
otherwise, each Bank has evidenced its satisfaction with
each matter set forth in this Section requiring satisfaction
on its part.
SECTION 5.2. Conditions Precedent to Each
Borrowing. Each Borrowing shall be subject to the following
conditions precedent:
(a) the representations and warranties on the part
of the Partnership contained in Section 3.1 and on the
part of FTX contained in Section 3.2 shall be true and
correct in all material respects at and as of the date
of such Borrowing as though made on and as of such
date;
(b) the Administrative Agent shall have received a
notice of such Borrowing as required by Section 2.3;
and
(c) no Event of Default or Default shall have
occurred and be continuing on the date of such
Borrowing or would result from such Borrowing.
SECTION 5.3. Representations and Warranties with
Respect to Borrowings. Each Borrowing shall be deemed a
representation and warranty by FTX and the Partnership,
jointly and severally, that the conditions precedent to each
such Borrowing, unless otherwise waived in accordance
herewith, shall have been satisfied as of the date of such
Borrowing.
ARTICLE VI
Events of Default
SECTION 6.1. Events of Default. If any of the
following acts or occurrences (an "Event of Default") shall
occur and be continuing:
(a) default for three or more days in the payment
when due (whether at the due date thereof, at a date
fixed for prepayment thereof, by acceleration thereof
or otherwise) of any principal of any Promissory Note;
(b) default for three or more days in the payment
when due of any interest on any Promissory Note or of
any other amount payable under this Agreement or any
other Loan Document;
(c) any representation or warranty made or deemed
made in or in connection with this Agreement, any other
Loan Document or in any certificate, report, financial
statement, letter or other writing or instrument
furnished or delivered to the Agents or any Bank
pursuant hereto or thereto shall prove to have been
incorrect in any material respect when made, effective
or reaffirmed and repeated, as the case may be;
(d) default in the due observance or performance
of any covenant, condition or agreement in
Section 4.1(a)(8), the first clause of Section 4.1(c),
Section 4.1(k), Section 4.2 (other than paragraph (j)
thereof), Section 4.4 (other than Section 5.2(k) of the
FTX Credit Agreement, as such Section is incorporated
by reference under Section 4.4(a)) or Section 4.3(b) as
it relates to any of the foregoing;
(e) default by FTX in the due observance or
performance of any covenant, condition or agreement
incorporated in Section 4.3(a) which shall remain
unremedied for 30 days after written notice thereof
shall have been given to the Borrower by any Bank;
(f) default by FTX or the Partnership in the due
observance or performance of any other covenant,
condition or agreement contained in any Loan Document
which shall remain unremedied for 10 days after written
notice thereof shall have been given to the Borrower by
any Bank;
(g) any Specified Entity shall (i) voluntarily
commence any proceeding or file any petition seeking
relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal
or state bankruptcy, insolvency, liquidation or similar
law, (ii) consent to the institution of, or fail to
contravene in a timely and appropriate manner, any
proceeding or the filing of any petition described in
clause (h) below, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian,
sequestrator or similar official for such Specified
Entity or for a substantial part of its property or
assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the
benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its
debts as they become due or (vii) take any action for
the purpose of effecting any of the foregoing;
(h) an involuntary proceeding shall be commenced
or an involuntary petition shall be filed in a court of
competent jurisdiction seeking (i) relief in respect of
any Specified Entity, or of a substantial part of the
property or assets of any Specified Entity, under
Title 11 of the United States Code, as now constituted
or hereafter amended, or any other Federal or state
bankruptcy, insolvency, receivership or similar law,
(ii) the appointment of a receiver, trustee, custodian,
sequestrator or similar official for any Specified
Entity or for a substantial part of the property or
assets of any Specified Entity or (iii) the winding up
or liquidation of any Specified Entity; and such
proceeding or petition shall continue undismissed for
60 days, or an order or decree approving or ordering
any of the foregoing shall continue unstayed and in
effect for 30 days;
(i) default shall be made with respect to (x)
Hedge Agreements of any Specified Entity or (y) any
Indebtedness of any Specified Entity if the effect of
any such default shall be to accelerate, or to permit
the holder or obligee of any such obligations or
Indebtedness (or any trustee on behalf of such holder
or obligee) to accelerate (with or without notice or
lapse of time or both), the maturity of such
Indebtedness or the payment of any net termination
value in respect of Hedge Agreements, as applicable, in
an aggregate amount in excess of the Threshold Amount;
or any payment, regardless of amount, of (A) net
termination value on any such obligation in respect of
Hedge Agreements and/or (B) any Indebtedness of any
Specified Entity in an aggregate principal amount (or
in the case of a Hedge Agreement, net termination
value) in excess of the Threshold Amount, shall not be
paid when due, whether at maturity, by acceleration or
otherwise (after giving effect to any period of grace
specified in the instrument evidencing or governing
such Indebtedness or other obligation);
(j) an ERISA Event shall have occurred with
respect to any Plan or Multi employer Plan that, when
taken together with all other ERISA Events, reasonably
could be expected to result in liability of FTX or the
Borrower and/or any Restricted Subsidiary of FTX and/or
the Borrower's ERISA Affiliates in an aggregate amount
exceeding the Threshold Amount or requires payments
exceeding the Threshold Amount in any year;
(k) any security interest purported to be created
by the FTX Security Agreement shall cease to be, or
shall be asserted by the Borrower, FTX or any of their
Affiliates not to be, a valid, perfected, first
priority security interest in the securities, assets or
properties covered thereby, except to the extent that
any such loss of perfection or priority results from
the failure of the FTX Collateral Agent to maintain
possession of any certificates representing securities
pledged under the FTX Security Agreement to the extent
that such pledged securities are certificated
securities;
(l) a final judgment for the payment of money
shall be rendered by a court or other tribunal against
any Specified Entity in excess of the Threshold Amount
and shall remain undischarged for a period of
45 consecutive days during which execution of such
judgment shall not have been stayed effectively; or any
action shall be legally taken by a judgment creditor to
levy upon assets or properties of any Specified Entity
to enforce any such judgment;
(m) the Partnership Agreement (as it may be
amended and in effect from time to time) (or any
successor agreement pursuant to which FTX is appointed
and authorized to act as the managing general partner
of the Partnership) shall cease to be, or shall be
asserted by FTX not to be, in full force and effect and
enforceable in all material respects in accordance with
its terms;
(n) the FTX Guaranty or any Loan Document shall
cease to be, or shall be asserted by FTX, FCX or the
Partnership or any of their Affiliates not to be, in
full force and effect and enforceable in all material
respects in accordance with its terms; or
(o) there shall have occurred a Change in Control;
then, and in any such event (other than an event with
respect to FTX, FRP or the Partnership described in
paragraph (g) or (h) above), and at any time thereafter
during the continuance of such event, the Administrative
Agent may, and at the request of the Required Banks shall,
by written or telecopy notice to the Borrower, take one or
more of the following actions at the same or different
times: (i) declare the Commitments to be terminated,
whereupon they shall forthwith terminate; (ii) declare all
sums then owing by the Borrower under the Promissory Notes
or otherwise owing hereunder to be forthwith due and
payable, whereupon all such sums shall become and be
immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby
expressly waived by the Borrower, anything contained herein,
in any other Loan Document or in any Intercreditor Document
to the contrary notwithstanding or (iii) exercise (or cause
the FTX Collateral Agent to exercise) any or all the
remedies then available under the FTX Security Agreement;
and upon the occurrence of any event with respect to FTX,
FRP or the Partnership described in paragraph (g) or (h) of
this Section, all sums then owing by the Borrower under the
Promissory Notes or otherwise owing hereunder shall, without
any declaration or other action by any Bank or the Agents
hereunder, be immediately due and payable and all
Commitments hereunder shall be immediately terminated
without presentment, demand, protest or notice of any kind,
all of which are hereby expressly waived by the Borrower,
anything contained herein, in any other Loan Document or in
any other Intercreditor Document to the contrary
notwithstanding and the Administrative Agent may, and at the
request of the Required Banks shall, exercise any or all of
the remedies then available under the FTX Security
Agreement. Promptly following the making of any such
declaration, the Administrative Agent shall give notice
thereof to the Borrower but failure to do so shall not
impair, under any circumstances, the effect of such
declaration.
ARTICLE VII
FTX Undertaking
Section 7.1. FTX Undertaking. In addition to and
not in derogation from its obligations under the FTX
Guaranty, FTX hereby agrees that it shall be jointly and
severally liable with the Borrower for each of the
Partnership Obligations. FTX agrees that it shall pay on
demand any such Partnership Obligation for which it is
liable pursuant to this Section 7.1 which has remained
unpaid by the Borrower for five Business Days after such
amount is due or demanded from the Borrower; provided that
if an event referred to in Section 6.1(g) or (h) has
occurred with respect to the Borrower, such amounts shall be
payable on demand by FTX without the necessity of any demand
on the Borrower. The obligations of FTX under this
Section 7.1 shall be deemed to be a guarantee of payment and
not of collection. Upon payment by FTX of any sums to a
Bank or an Agent as provided above in this Section 7.1, all
rights of FTX against the Partnership arising as a result
thereof by way of right of subrogation or otherwise shall in
all respects be subordinated and junior in right of payment
to the prior payment in full of all the Partnership
Obligations to the Banks and the Agents and shall not be
exercised by FTX prior to payment in full of all Partnership
Obligations and termination of the Commitments. If any
amount shall be paid to FTX on account of any amount paid by
FTX pursuant to this guarantee or otherwise at any time when
all the Partnership Obligations shall not be paid in full,
such amount shall be held in trust by FTX for the benefit of
the Agent and the Banks and shall forthwith be paid to the
Administrative Agent to be credited and applied to the
Partnership Obligations, whether matured or unmatured. At
such time as all Partnership Obligations owing to such Bank
have been paid in full and its Commitment terminated, each
Bank shall, in a reasonable manner, assign (subject to the
continued effectiveness and the reinstatement provided for
above) the amount of the Partnership Obligations owed to it
and paid by FTX pursuant to this Section 7.1 to FTX, such
assignment to be pro tanto to the extent to which the
Partnership Obligations in question were discharged by FTX,
or make such other disposition thereof as FTX shall
reasonably direct (all without any representation or
warranty by, or any recourse to, such Bank).
ARTICLE VIII
The Agents
SECTION 8.1. The Agents. (a) For convenience of
administration and to expedite the transactions contemplated
by this Agreement, Chase is hereby appointed as
Administrative Agent and FTX Collateral Agent for the Banks
under this Agreement and the FTX Security Agreement and as
Documentation Agent for the Banks under this Agreement.
None of the Agents shall have any duties or responsibilities
with respect hereto except those expressly set forth herein.
Each Bank, and each subsequent holder of any Promissory Note
by its acceptance thereof, hereby irrevocably appoints and
expressly authorizes the Agents, without hereby limiting any
implied authority, to take such action as the Agents may
deem appropriate on its behalf and to exercise such powers
under this Agreement as are specifically delegated to such
Person by the terms hereof, together with such powers as are
reasonably incidental thereto. The Administrative Agent is
hereby expressly authorized by the Banks, without hereby
limiting any implied authority, (a) to receive on behalf of
the Banks all payments of principal of and interest on the
Loans and all other amounts due to the Banks hereunder, and
promptly to distribute to each Bank its proper share of each
payment so received; (b) to give notice on behalf of each of
the Banks to the Borrower of any Event of Default specified
in this Agreement of which the Administrative Agent has
actual knowledge acquired in connection with its agency
hereunder; and (c) to distribute to each Bank copies of all
notices, financial statements and other materials delivered
by the Borrower pursuant to this Agreement as received by
the Administrative Agent. Without limiting the generality
of the foregoing, the FTX Collateral Agent is hereby
expressly authorized to execute any and all documents
(including releases) with respect to the collateral for the
Loans and the rights of the secured parties with respect
thereto, as contemplated by and in accordance with the
provisions of this Agreement and the FTX Security Agreement.
Each of the Agents may exercise any of its duties hereunder
by or through their respective agents, officers or
employees. In addition, each Bank hereby irrevocably
authorizes and directs the Administrative Agent and the FTX
Collateral Agent to enter, on behalf of each of them, into
the respective Intercreditor Agreement and the FTX Security
Agreement as contemplated pursuant to this Agreement.
(b) None of the Agents or any of their respective
directors, officers, agents or employees shall be liable as
such for any action taken or omitted to be taken by any of
them except for its or his own gross negligence or wilful
misconduct, or be responsible for any statement, warranty or
representation herein or the contents of any document
delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance
or observance by the Borrower or any other party of any of
the terms, conditions, covenants or agreements contained in
any Loan Document. The Agents shall not be responsible to
the Banks or the holders of the Promissory Notes for the due
execution, genuineness, validity, enforceability or
effectiveness of this Agreement, the Promissory Notes or any
other Loan Documents or other instruments or agreements.
The Administrative Agent may deem and treat the payee of any
Promissory Note as the owner thereof for all purposes hereof
until it shall have received from the payee of such
Promissory Note notice, given as provided herein, of the
transfer thereof in compliance with Section 9.3. The Agents
shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written
instructions signed by the Required Banks and, except as
otherwise specifically provided herein, such instructions
and any action or inaction pursuant thereto shall be binding
on all the Banks and each subsequent holder of any
Promissory Note. Each Agent shall, in the absence of
knowledge to the contrary, be entitled to rely on any
instrument or document believed by it in good faith to be
genuine and correct and to have been signed or sent by the
proper Person or Persons. None of the Agents nor any of
their respective directors, officers, employees or agents
shall have any responsibility to the Borrower or any other
party on account of the failure of or delay in performance
or breach by any Bank of any of its obligations hereunder or
to any Bank on account of the failure of or delay in
performance or breach by any other Bank or the Borrower or
any other party of any of their respective obligations
hereunder or under any other Loan Document or in connection
herewith or therewith. Each of the Agents may execute any
and all duties hereunder by or through agents or employees
and shall be entitled to rely upon the advice of legal
counsel selected by it with respect to all matters arising
hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice
of such counsel. The Banks hereby acknowledge that none of
the Agents shall be under any duty to take any discretionary
action permitted to be taken by it pursuant to the
provisions of this Agreement unless it shall be requested in
writing to do so by the Required Banks.
(c) To the extent that any Agent shall not be
reimbursed by the Borrower for any costs, liabilities or
expenses incurred in such capacity, each Bank agrees (i) to
reimburse the Agents, on demand (in the amount of its
Applicable Percentage hereunder) for any expenses incurred
for the benefit of the Banks by the Agents, including
counsel fees and compensation of agents and employees paid
for services rendered on behalf of the Banks and (ii) to
indemnify and hold harmless each Agent and any of its
directors, officers, employees or agents, on demand, in the
amount of such Applicable Percentage, from and against any
and all liabilities, taxes, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against it in its
capacity as Agent or any of them in any way relating to or
arising out of this Agreement or any other Loan Document or
any action taken or omitted by it or any of them under this
Agreement or any other Loan Document; provided, however,
that no Bank shall be liable to an Agent for any portion of
such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or wilful misconduct of
such Agent or of its directors, officers, employees or
agents.
(d) With respect to the Loans made by it
hereunder and the Promissory Notes issued to it, each Agent
in its individual capacity and not as Agent shall have the
same rights and powers as any other Bank and may exercise
the same as though it were not an Agent, and the Agents and
their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower
or any Subsidiary or other Affiliate thereof as if it were
not an Agent.
(e) Subject to the appointment and acceptance of
a successor Agent as provided below, any Agent may resign at
any time by giving written notice thereof to the Banks and
the Borrower. Upon any such resignation, the Required Banks
shall have the right to appoint, and the Borrower shall have
the right to approve (such approval not to be unreasonably
withheld or delayed) a successor Administrative Agent, FTX
Collateral Agent or Documentation Agent, as the case may be.
If no successor Administrative Agent, FTX Collateral Agent
or Documentation Agent, as the case may be, shall have been
so appointed and approved and shall have accepted such
appointment, within 30 days after the retiring Agent's
giving of notice of resignation, then the retiring Person
may, on behalf of the Banks, appoint a successor
Administrative Agent, FTX Collateral Agent or Documentation
Agent, as the case may be, which shall be a Bank with an
office in New York, New York, having a combined capital and
surplus of at least $500,000,000 or an Affiliate of any such
Bank. Upon the acceptance of any appointment as
Administrative Agent, FTX Collateral Agent or Documentation
Agent hereunder by a successor Administrative Agent, FTX
Collateral Agent or Documentation Agent, as the case may be,
such successor Administrative Agent, FTX Collateral Agent or
Documentation Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of
the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After
any such retiring Agent's resignation hereunder as
Administrative Agent, FTX Collateral Agent or Documentation
Agent, as applicable, the provisions of this Article VIII
and Section 9.4 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was acting as
the Administrative Agent, FTX Collateral Agent or
Documentation Agent, as applicable.
(f) The Administrative Agent and the Documentation
Agent shall be responsible for supervising the preparation,
execution and delivery of this Agreement and the other
agreements and instruments contemplated hereby, any
amendment or modification thereto and the closing of the
transactions contemplated hereby and thereby. In addition,
the Administrative Agent shall assist the FTX Collateral
Agent in the performance of its duties as may be reasonably
requested by the FTX Collateral Agent from time to time.
(g) The obligations of the Administrative Agent,
the FTX Collateral Agent and the Documentation Agent shall
be separate and several and none of them shall be
responsible or liable for the acts or omissions of the
other, except, to the extent that a Bank serves in more than
one agent capacity, such Bank shall be responsible for the
acts and omissions relating to each such agency function.
(h) Without the prior written consent of the
Required Banks, the Administrative Agent and the FTX
Collateral Agent will not consent to any modification,
supplement or waiver of any Intercreditor Agreement or,
except to the extent required by an Intercreditor Agreement,
the FTX Security Agreement.
(i) Each Bank acknowledges that it has,
independently and without reliance upon the Agents or any
other Bank and based on such documents and information as it
has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without
reliance upon the Agents or any other Bank and based on such
documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement or any
other Loan Document, any related agreement or any document
furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.1. Notices. Notices and other
communications provided for herein shall be in writing and
shall be delivered by hand or overnight or same day courier
service or mailed or sent by telex, telecopy, graphic
scanning or other telegraphic communications equipment of
the sending party to the appropriate party's address set
forth on the signature pages hereof; provided that notices
by or to the Borrower may be given by or to FTX as its
general partner. All notices and other communications given
to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the
date of receipt if hand delivered or delivered by any
telecopy, telegraphic or telex communications equipment or
three days after being sent by registered or certified mail,
postage prepaid, return receipt requested, in each case
addressed to such party as provided in this Section 9.1 or
in accordance with the latest unrevoked direction from such
party.
SECTION 9.2. Survival of Agreement. All
covenants, agreements, representations and warranties made
by the Borrower or the Guarantor herein and in the
certificates or other instruments prepared or delivered in
connection with this Agreement or any other Loan Document
shall be considered to have been relied upon by the Banks
and the Agents and shall survive the making by the Banks of
the Loans and the execution and delivery to the Banks of the
Promissory Notes evidencing such Loans regardless of any
investigation made by the Banks or on their behalf, and
shall continue in full force and effect as long as the
principal of or any accrued interest on any Promissory Note,
any Commitment Fee or any other fee or amount payable under
the Loan Documents is outstanding and unpaid and so long as
the Commitments have not been terminated.
SECTION 9.3. Successors and Assigns;
Participation; Purchasing Banks. (a) This Agreement shall
be binding upon and inure to the benefit of the Borrower,
FTX, the Banks, the Agents, all future holders of the
Promissory Notes, and their respective successors and
assigns, except that neither the Borrower nor FTX may
assign, delegate or transfer any of its rights or
obligations under this Agreement without the prior written
consent of each Bank. Any Bank may at any time pledge or
assign all or any portion of its rights under this Agreement
and the Promissory Notes issued to it to a Federal Reserve
Bank to secure extensions of credit by such Federal Reserve
Bank to such Bank; provided that no such pledge or
assignment shall release a Bank from any of its obligations
hereunder or substitute any such Federal Reserve Bank for
such Bank as a party hereto.
(b) Any Bank may, in accordance with applicable
law, at any time sell to one or more banks or other entities
("Participants") participating interests in all or a portion
of any Loan owing to such Bank, any Promissory Note held by
such Bank, any Commitment of such Bank or any other interest
of such Bank hereunder. In the event of any such sale by a
Bank of participating interests to a Participant, such
Bank's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Bank shall
remain solely responsible for the performance thereof, such
Bank shall remain the holder of any such Promissory Note for
all purposes under this Agreement and the Borrower and the
Agents shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations
under this Agreement. The Borrower agrees that if amounts
outstanding under this Agreement and the Promissory Notes
are due and unpaid, or shall have been declared due or shall
have become due and payable upon the occurrence of an Event
of Default, each Participant shall be deemed to have the
right of setoff in respect of its participating interest in
amounts owing under this Agreement and any Promissory Note
to the same extent as if the amount of its participating
interest were owing directly to it as a Bank under this
Agreement or any Promissory Note; provided that such right
of setoff shall be subject to the obligation of such
Participant to share with the Banks, and the Banks agree to
share with such Participant, as provided in Section 2.15.
The Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 2.11, 2.12, 2.13, 2.15,
2.17 and 9.5 with respect to its participation in the
Commitments and the Loans outstanding from time to time as
if it were a Bank; provided that no Participant shall be
entitled to receive any greater payment pursuant to such
Sections than the transferor Bank would have been entitled
to receive in respect of the amount of the participation
transferred by such transferor Bank to such Participant
unless such participation shall have been made at a time
when the circumstances giving rise to such greater payment
did not exist; and provided that the voting rights of any
Participant would be limited to amendments, modifications or
waivers decreasing any fees payable hereunder or the amount
of principal of or the rate at which interest is payable on
the Loans, extending any scheduled principal payment date or
date fixed for the payment of interest on the Loans,
changing or extending the Commitments or release of all or
substantially all the collateral for the Loans.
(c) Any Bank may, in accordance with applicable
law and subject to Section 9.3(h), at any time assign by
novation all or any part of its rights and obligations under
this Agreement (including all or a portion of its Commitment
and the Loans at the time owing to it and the Promissory
Notes held by it) (I) to any Bank or any Affiliate thereof,
without the Borrower's consent, or (II) to one or more
additional banks or financial institutions (any such entity
referred to in clause (I) or (II) being a "Purchasing Bank")
with the consent of the Administrative Agent and the
Borrower, such consent not to be unreasonably withheld (it
being understood that the Borrower may withhold its consent
to a Purchasing Bank (i) which is not a commercial bank or
savings and loan institution or (ii) which would, as of the
effective date of such assignment, be entitled to claim
compensation under Section 2.11 which the transferor Bank
would not be entitled to claim as of such date), pursuant to
a Commitment Transfer Supplement in the form of Exhibit D,
executed by such Purchasing Bank and such transferor Bank
(and, in the case of a Purchasing Bank that is not then a
Bank or an Affiliate thereof, by the Borrower and the
Administrative Agent), and delivered for its recording in
the Register to the Administrative Agent, together with the
Promissory Notes subject to such assignment, the
registration and processing fee required by Section 9.3(e)
and an Administrative Questionnaire for the Purchasing Bank
if it is not already a Bank. Assignments shall be by
novation. Upon such execution, delivery and recording (and,
if required, consent of the Borrower and the Administrative
Agent), from and after the Transfer Effective Date
determined pursuant to such Commitment Transfer Supplement
(which shall be at least five days after the execution and
delivery thereof), (x) the Purchasing Bank thereunder shall
(if not already a party hereto) be a party hereto and have
the rights and obligations of a Bank hereunder with a
Commitment as set forth in such Commitment Transfer
Supplement, and (y) the transferor Bank thereunder shall, to
the extent assigned by such Commitment Transfer Supplement,
be released from its obligations under this Agreement (and,
in the case of a Commitment Transfer Supplement covering all
or the remaining portion of a transferor Bank's rights and
obligations under this Agreement, such transferor Bank shall
cease to be a party hereto). Such Commitment Transfer
Supplement shall be deemed to amend this Agreement
(including Schedule II hereto) to the extent, and only to
the extent, necessary to reflect the addition of such
Purchasing Bank (if not already a party hereto) and the
resulting adjustment of Applicable Percentages arising from
the purchase by such Purchasing Bank of all or a portion of
the rights and obligations of such transferor Bank under
this Agreement and the Promissory Notes. On or prior to the
Transfer Effective Date determined pursuant to such
Commitment Transfer Supplement, the Borrower, at its own
expense, shall execute and deliver to the Administrative
Agent in exchange for the surrendered Promissory Note a new
Promissory Note to the order of such Purchasing Bank in an
amount equal to the Commitment assumed by it pursuant to
such Commitment Transfer Supplement and, if the transferor
Bank has retained a Commitment hereunder, a new Promissory
Note to the order of the transferor Bank in an amount equal
to the Commitment retained by it hereunder. Such new
Promissory Notes shall be dated the Closing Date and shall
otherwise be in the form of the Promissory Notes replaced
thereby. The Promissory Notes surrendered by the transferor
Bank shall be returned by the Administrative Agent to the
Borrower marked "canceled".
(d) The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at
one of its offices in the City of New York a copy of each
Commitment Transfer Supplement delivered to it and a
register (the "Register") for the recordation of the names
and addresses of the Banks and the Commitment of, and
principal amount of the Loans owing to, each Bank from time
to time. The entries in the Register shall be conclusive,
in the absence of manifest error, and the parties hereto may
treat each Person whose name is recorded in the Register as
the owner of the Loan recorded therein for all purposes of
this Agreement. The Register shall be available for
inspection by the parties hereto at any reasonable time and
from time to time upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer
Supplement executed by a transferor Bank and a Purchasing
Bank (and, in the case of a Purchasing Bank that is not then
a Bank or an Affiliate thereof, by the Borrower and the
Administrative Agent) together with payment to the
Administrative Agent of a registration and processing fee of
$3,500, the Administrative Agent shall (i) promptly accept
such Commitment Transfer Supplement and (ii) on the Transfer
Effective Date determined pursuant thereto record the
information contained therein in the Register and give
notice of such acceptance and recordation to the Banks and
the Borrower.
(f) Subject to Section 9.15, the Borrower and the
Guarantor authorize each Bank to disclose to any Participant
or Purchasing Bank (each, a "Transferee") and any
prospective Transferee any and all financial and other
information in such Bank's possession concerning the
Guarantor, the Borrower and their Affiliates which has been
delivered to such Bank by or on behalf of the Borrower
pursuant to this Agreement or which has been delivered to
such Bank by or on behalf of the Borrower in connection with
such Bank's credit evaluation of the Borrower, the Guarantor
and their Affiliates prior to becoming a party to this
Agreement.
(g) If, pursuant to this Section 9.3, any
interest in this Agreement or any Promissory Note is
transferred to any Transferee which is organized under the
laws of any jurisdiction other than the United States or any
State thereof, the transferor Bank (x) shall immediately
notify the Administrative Agent of such transfer, describing
the terms thereof and indicating the identity and country of
residence of each Transferee. Such transferor Bank or
Transferee shall indemnify and hold harmless the Borrower
and the Administrative Agent from and against any tax,
interest, penalty or other expense that the Borrower and the
Administrative Agent may incur as a consequence of any
failure to withhold applicable United States taxes because
of any transfer or participation arrangement that is not
fully disclosed to them as required hereunder.
(h) By executing and delivering a Commitment
Transfer Supplement, the transferor Bank thereunder and the
Purchasing Bank thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as
follows: (i) such transferor Bank warrants that it is the
legal and beneficial owner of the interest being assigned
thereby free and clear of any adverse claim and that its
Commitment, and the outstanding balance of its Loans, in
each case without giving effect to assignments thereof which
have not become effective, are as set forth in such
Commitment Transfer Supplement, (ii) except as set forth in
(i) above, such transferor Bank makes no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value
of this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto, or the
financial condition of the Borrower or any Subsidiary or the
performance or observance by the Guarantor, the Borrower or
any Subsidiary of any of its obligations under this
Agreement, any other Loan Document or any other instrument
or document furnished pursuant hereto; (iii) such Purchasing
Bank represents and warrants that it is legally authorized
to enter into such Commitment Transfer Supplement; (iv) such
Purchasing Bank confirms that it has received a copy of this
Agreement, together with copies of the most recent financial
statements, if any, delivered pursuant to Section 5.1 and
such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to
enter into such Commitment Transfer Supplement; (v) such
Purchasing Bank will independently and without reliance upon
the Agents, such transferor Bank or any other Bank and based
on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this
Agreement; (vi) such Purchasing Bank appoints and authorizes
the Agents to take such action as agent on its behalf and to
exercise such respective powers under this Agreement and the
other Loan Documents as are delegated to the Agents by the
terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such Purchasing Bank agrees
that it will perform in accordance with their terms all the
obligations which by the terms of this Agreement are
required to be performed by it as a Bank.
SECTION 9.4. Expenses of the Banks; Indemnity.
(a) The Borrower and FTX, jointly and severally, agree to
pay all out-of-pocket expenses reasonably incurred by the
Agents in connection with the preparation and administration
of this Agreement, the Promissory Notes and the other Loan
Documents or with any amendments, modifications or waivers
of the provisions hereof or thereof (whether or not the
transactions hereby contemplated shall be consummated) or
reasonably incurred by the Agents or any Bank in connection
with the enforcement or protection of their rights in
connection with this Agreement and the other Loan Documents
or with the Loans made or the Promissory Notes issued
hereunder (whether through negotiations, legal proceedings
or otherwise), including, but not limited to, the reasonable
fees and disbursements of Cravath, Swaine & Xxxxx, special
counsel for the Agents, and, in connection with such
enforcement or protection, the reasonable fees and
disbursements of other counsel for any Bank. The Borrower
and FTX, jointly and severally, further agree that they
shall indemnify the Banks and the Agents from and hold them
harmless against any documentary taxes, assessments or
charges made by any Governmental Authority by reason of the
execution and delivery of or in connection with the
performance of this Agreement, any of the Promissory Notes
or any of the other Loan Documents. Further, the Borrower
and FTX, jointly and severally, agree to pay, and to
protect, indemnify and save harmless each Bank, each Agent
and each of their respective officers, directors,
shareholders, employees, agents and servants from and
against, any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments,
demands, damages, costs or expenses (including, without
limitation, attorneys' fees and expenses) in connection with
any investigative, administrative or judicial proceeding,
whether or not such Bank or Agent shall be designated a
party thereto of any nature arising from or relating to (i)
the execution or delivery of this Agreement or any other
Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their
respective obligations thereunder or the consummation of the
transactions contemplated hereby and thereby (including the
Restructuring) or (ii) the use of the proceeds of the Loans;
and the Borrower also agrees to pay, and to protect,
indemnify and save harmless each Bank, each Agent and each
of their respective officers, directors, shareholders,
employees, agents and servants from and against, any and all
losses, liabilities (including liabilities for penalties),
actions, suits, judgments, demands, damages, costs or
expenses (including, without limitation, attorneys' fees and
expenses in connection with any investigative,
administrative or judicial proceeding, whether or not such
Bank or Agent shall be designated a party thereto) of any
nature arising from or relating to any actual or alleged
presence or Release of Hazardous Materials on any property
owned or operated by the Borrower or any of the
Subsidiaries, or any Environmental Claim related in any way
to the Borrower or the Subsidiaries or arising from or in
connection with the environmental due diligence summary
memorandum referred to in paragraph (m) of Article IV of the
FTX Credit Agreement; provided that any such indemnity
referred to in this sentence shall not, as to any
indemnified Person, be available to the extent that such
losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and
non-appealable judgment to have resulted from the gross
negligence or wilful misconduct of such indemnified Person.
If any action, suit or proceeding arising from any of the
foregoing is brought against any Bank, Agent or other Person
indemnified or intended to be indemnified pursuant to this
Section 9.4, the Borrower and FTX, jointly and severally, to
the extent and in the manner directed by such indemnified
party, will resist and defend such action, suit or
proceeding or cause the same to be resisted and defended by
counsel designated by the Borrower (which counsel shall be
satisfactory to such Bank, Agent or other Person indemnified
or intended to be indemnified). If the Borrower or FTX
shall fail to do any act or thing which it has covenanted to
do hereunder or any representation or warranty on the part
of the Borrower or FTX contained in this Agreement shall be
breached, any Bank or Agent may (but shall not be obligated
to) do the same or cause it to be done or remedy any such
breach, and may expend its funds for such purpose. Any and
all amounts so expended by any Bank or Agent shall be
repayable to it by the Borrower and FTX, jointly and
severally, immediately upon such Bank's or such Agent's
demand therefor.
(b) The provisions of this Section 9.4 shall
remain operative and in full force and effect regardless of
the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby or
thereby, the repayment of any of the Loans or any Promissory
Notes, the invalidity or unenforceability of any term or
provision of this Agreement, any other Loan Document or any
Promissory Note, or any investigation made by or on behalf
of any Bank or any Agent. All amounts due under this
Section 9.4 shall be payable on written demand therefor.
SECTION 9.5. Right of Setoff. If an Event of
Default shall have occurred and be continuing and the Loans
shall have been accelerated or any Bank shall have requested
the Administrative Agent to declare the Loans immediately
due and payable pursuant to Article VI, then each Bank is
hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand,
provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the
credit or the account of the Borrower against any of and all
the obligations of the Borrower now or hereafter existing
under this Agreement and the Promissory Notes held by such
Bank, irrespective of whether or not such Bank shall have
made any demand under this Agreement or such Promissory
Notes and although such obligations may be unmatured. Each
Bank agrees promptly to notify the Borrower after any such
setoff and application made by such Bank, but the failure to
give such notice shall not affect the validity of such
setoff and application. The rights of each Bank under this
Section 9.5 are in addition to other rights and remedies
(including, without limitation, other rights of setoff)
which such Bank may have.
SECTION 9.6. APPLICABLE LAW. THIS AGREEMENT AND
THE PROMISSORY NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.7. Waivers; Amendments. (a) No
failure or delay of any Bank or Agent in exercising any
power or right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further
exercise thereof or the exercise of any other right or
power. The rights and remedies of the Banks and the Agents
hereunder and under the other documents and agreements
entered into in connection herewith are cumulative and not
exclusive of any rights or remedies which they would
otherwise have. No waiver of any provision of this
Agreement, any other Loan Document or any Promissory Note or
any other such document or agreement or consent to any
departure by the Borrower therefrom shall in any event be
effective unless the same shall be authorized as provided in
paragraph (b) below, and then such waiver or consent shall
be effective only in the specific instance and for the
purpose for which given. No notice or demand on the
Borrower in any case shall entitle the Borrower to any other
or further notice or demand in similar or other
circumstances. Each holder of any of the Promissory Notes
shall be bound by any amendment, modification, waiver or
consent authorized as provided herein, whether or not such
Promissory Note shall have been marked to indicate such
amendment, modification, waiver or consent.
(b) Neither this Agreement nor any provision
hereof may be waived, amended or modified except pursuant to
an agreement or agreements in writing entered into by the
Borrower and the Required Banks; provided, however, that no
such agreement shall (i) change the principal amount of, or
extend or advance the maturity of or any date for the
payment (other than pursuant to Section 2.7(b), which may be
amended by the Required Banks) of any principal of or
interest on, any Promissory Note (including, without
limitation, any such payment pursuant to Section 2.7(c) or
paragraph (a) or (b) of Section 2.9), or waive or excuse any
such payment or any part thereof, or change the rate of
interest on any Promissory Note, without the written consent
of each holder affected thereby, (ii) change or extend the
Commitment of any Bank without the written consent of such
Bank, or change any fees to be paid to any Bank or Agent
hereunder without the written consent of such Bank or the
Agent, as applicable, (iii) amend or modify the provisions
of this Section 9.7, Sections 2.8 through 2.15 or
Section 9.4 or the definition of "Required Banks", without
the written consent of each Bank or (iv) release the
collateral granted as security under the FTX Security
Agreement (except as expressly required hereby or thereby),
without the written consent of each Bank; and provided
further that no such agreement shall amend, modify or
otherwise affect the rights or duties of an Agent hereunder
without the written consent of such Agent. Each Bank and
holder of any Promissory Note shall be bound by any
modification or amendment authorized by this Section 9.7
regardless of whether its Promissory Notes shall be marked
to make reference thereto, and any consent by any Bank or
holder of a Promissory Note pursuant to this Section shall
bind any Person subsequently acquiring a Promissory Note
from it, whether or not such Promissory Note shall be so
marked.
SECTION 9.8. Severability. In the event any one
or more of the provisions contained in this Agreement or in
the Promissory Notes should be held invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein
or therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the
invalid, illegal or unenforceable provisions.
SECTION 9.9. Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together
shall constitute but one contract, and shall become
effective when copies hereof which, when taken together,
bear the signatures of each of the parties hereto shall be
delivered or mailed to the Administrative Agent and the
Borrower.
SECTION 9.10. Headings. Article and Section
headings and the Table of Contents used herein are for
convenience of reference only and are not to affect the
construction of, or to be taken into consideration in
interpreting, this Agreement.
SECTION 9.11. Entire Agreement. This Agreement,
the other Loan Documents, the fee letters between the Agents
and the Borrower and the Exhibits and Schedules hereto
contain the entire agreement among the parties hereto with
respect to the Loans and the related transactions. Any
previous agreement among the parties with respect to the
subject matter hereof is superseded by this Agreement, such
fee letters and the other Loan Documents. Nothing in this
Agreement or in the other Loan Documents, expressed or
implied, is intended to confer upon any party other than the
parties hereto any rights, remedies, obligations or
liabilities under or by reason of this Agreement or the
other Loan Documents.
SECTION 9.12. WAIVER OF JURY TRIAL, ETC.
(A) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.12.
(b) Except as prohibited by law, each party
hereto hereby waives any right it may have to claim or
recover in any litigation referred to in paragraph (a) of
this Section 9.12 any special, indirect, exemplary, punitive
or consequential damages or any damages other than, or in
addition to, actual damages.
(c) Each party hereto (i) certifies that no
representative, agent or attorney of any Bank has
represented, expressly or otherwise, that such Bank would
not, in the event of litigation, seek to enforce the
foregoing waivers and (ii) acknowledges that it has been
induced to enter into this Agreement or any other document,
as applicable, by, among other things, the mutual waivers
and certifications herein.
SECTION 9.13. Interest Rate Limitation.
Notwithstanding anything herein or in the Promissory Notes
to the contrary, if at any time the interest rate applicable
to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under
applicable law (collectively the "Charges"), as provided for
herein or in any other document executed in connection
herewith, or otherwise contracted for, charged, received,
taken or reserved by any Bank, shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted
for, charged, taken, received or reserved by such Bank in
accordance with applicable law, the rate of interest in
respect of such Loan hereunder or payable under the
Promissory Note held by such Bank, together with all Charges
payable to such Bank, shall be limited to the Maximum Rate
and, to the extent lawful, the interest and Charges that
would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section 9.13
shall be cumulated and the interest and Charges payable to
such Bank in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until
such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall
have been received by such Bank.
SECTION 9.14. JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (A) THE BORROWER AND FTX EACH HEREBY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO
THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR
FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW
YORK CITY, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO
THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF
THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED
IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY
OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT
SHALL AFFECT ANY RIGHT THAT ANY BANK OR AGENT MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AGAINST
THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
(B) THE BORROWER AND FTX EACH HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY
LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY NEW
YORK STATE OR FEDERAL COURT. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(C) EACH PARTY TO THIS AGREEMENT IRREVOCABLY
CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 9.1. NOTHING IN THIS AGREEMENT WILL
AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 9.15. Confidentiality. Each Bank agrees
(which agreement shall survive the termination of this
Agreement) that financial information, information from the
Borrower's and its Subsidiaries' books and records,
information concerning the Borrower's and its Subsidiaries'
trade secrets and patents and any other information received
from the Borrower and its Subsidiaries hereunder shall be
treated as confidential by such Bank, and each Bank agrees
to use its best efforts to ensure that such information is
not published, disclosed or otherwise divulged to anyone
other than employees or officers of such Bank and its
counsel and agents; provided that it is understood that the
foregoing shall not apply to:
(i) disclosure made with the prior written
authorization of the Borrower or FTX;
(ii) disclosure of information (other than that
received from the Borrower and its Subsidiaries or FTX
prior to or under this Agreement) already known by, or
in the possession of, such Bank without restrictions on
the disclosure thereof at the time such information is
supplied to such Bank by the Borrower or its
Subsidiaries or FTX hereunder;
(iii) disclosure of information which is required by
applicable law or to a governmental agency having
supervisory or regulatory authority over any party
hereto;
(iv) disclosure of information in connection with
any suit, action or proceeding in connection with the
enforcement of rights hereunder or in connection with
the transactions contemplated hereby or thereby;
(v) disclosure to any bank (or other financial
institution) which may acquire a participation or other
interest in the Loans or rights of any Bank hereunder;
provided that such bank (or other financial
institution) agrees to maintain any such information to
be received in accordance with the provisions of this
Section 9.15;
(vi) disclosure by any party hereto to any other
party hereto or their counsel or agents;
(vii) disclosure by any party hereto to any entity,
or to any subsidiary of such an entity, which owns,
directly or indirectly, more than 50% of the voting
stock of such party, or to any subsidiary of such an
entity; or
(viii) disclosure of information that prior to such
disclosure has become public knowledge through no
violation of this Agreement.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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.
FM PROPERTIES OPERATING CO.,
by FREEPORT-McMoRan INC.,
its Managing General Partner,
by
______________________________
Name: X. Xxxxxx Xxxxxx
Title: Treasurer
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: X. Xxxxxx Xxxxxx
Treasurer
Telephone: 000-000-0000
Telecopy: 000-000-0000
FREEPORT-McMoRan INC.,
by
______________________________
Name: X. Xxxxxx Xxxxxx
Title: Treasurer
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: X. Xxxxxx Xxxxxx
Treasurer
Telex: 0000000000
Telephone: 000-000-0000
Telecopy: 000-000-0000
THE CHASE MANHATTAN BANK,
(successor by merger to Chemical Bank and The Chase
Manhattan Bank (National Association)), individually and as
Administrative Agent, FTX Collateral Agent and Documentation
Agent
by
______________________________
Name:
Title:
DOMESTIC OFFICE AND LIBOR OFFICE:
Xxx Xxxxx Xxxxxxxxx Xxxxx (0xx Xxxxx)
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Vice President
Telephone: 000-000-0000
Telecopy: 000-000-0000
ADDRESS FOR NOTICES:
Agent Bank Services
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telex: 353006 ABSCNYK
Telephone: 000-000-0000
Telecopy: 212-622-0002
SCHEDULE I
Applicable Margin
LIBOR Rate Loans: 1% per annum
Reference Rate Loans: 0% per annum
Commitment Fee Rates on average
daily unused Commitment: 3/8% per annum
SCHEDULE II
COMMITMENTS OF THE BANKS
Applicable
Bank Percentage
Commitment
The Chase 100%
$10,000,000.00
Manhattan Bank
TOTAL 100%
$10,000,000.00
SCHEDULE III
Key Assets
Residential acres, pods or Bent Tree Office -- Addison, TX
bulk lot sales of 25 or more 17.66 acre office site
lots or Clubs Xxxxxx Creek Resort &
aggregating over $1 million
in gross sales proceeds
Xxxxxx Springs -- Addison, TX
10.74 acre commercial site
Xxxxxx'x Xxxx -- Plano, TX
8.95 acres retail land
Camino Real -- San Antonio,TX
22.7 acres multi-family land--
Vista del Norte 10AV
(Tract 2)
Bent Tree Addison --Addison, TX
50.1 acre tract suitable for
industrial
Bent Tree
Apartment/Retail -- Addison, TX
10.42 acre commercial site
Tree Farm -- Plano, TX
21.5 acre commercial site
Bent Tree Xxxxx -- Carrolton, TX
22.85 acre site suitable for
community retail center
SCHEDULE IV
FLORIDA PROPERTIES
FM Florida Properties Co.
SCHEDULE V
SUBSIDIARIES
FM Properties Senior Holding Inc.
Estates of Xxxxxx Creek Utilities, Inc.
Lakeside Utilities, Inc.
SCHEDULE VI
LITIGATION
1. On October 28, 1996, the City of Austin filed suit in
Xxxxxx County District Court against the Southwest
Xxxxxx County Water District (the "District") alleging
that the legislation creating the District was
unconstitutional. The City challenged the validity of
the legislation for three reasons: (1) carving out the
District from the City's extraterritorial jurisdiction
violated the City's home-rule powers; (2) the District
has more power and authority than permitted for this
type of conservation reclamation district; and (3) the
legislation impairs existing City contract rights with
the Circle C MUDs. The District, the Circle C MUDs,
the Circle C Fire District, Phoenix Holdings, Ltd. and
the Partnership are discussing strategies for
responding to this lawsuit.
