EXHIBIT 4.5
CONSENT AND AMENDMENT NO. 2
CONSENT AND AMENDMENT NO. 2 dated as of July 31, 1996 among: TERRA
CAPITAL, INC., a Delaware corporation (the "Company"); TERRA NITROGEN, LIMITED
PARTNERSHIP, a Delaware limited partnership ("TNLP") and, together with the
Company, the "Borrowers"); each of the entities listed on the signature pages
hereof under the caption "GUARANTORS" (each such entity, and each of the
Borrowers, an "Obligor" and, collectively, the "Obligors"); each of the lenders
(the "Lenders") and issuing banks (the "Issuing Banks") listed on the signature
pages hereof; and CITIBANK, N.A., as agent for the Lenders and Issuing Banks
under the Credit Agreement referred to below (in such capacity, the "Agent").
The Obligors, the Lenders, the Issuing Banks and the Agent are parties
to an Amended and Restated Credit Agreement dated as of December 14, 1995 (as
amended by Consent and Amendment No. 1 dated as of June 4, 1996, and as from
time to time further amended, the "Credit Agreement"). In order to implement a
new "Permitted Receivables Facility" (as defined in the Credit Agreement), the
Company has requested that the Lenders grant certain consents and amend the
Credit Agreement in certain respects. The Lenders are willing to so consent and
to so amend the Credit Agreement, all on the terms and conditions set forth
herein. Accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement and
not otherwise defined herein are used herein as therein defined.
Section 2. Amendments to Credit Agreement. Subject to the
satisfaction of the conditions precedent specified in Section 5 hereof, but
effective as of the date hereof, the Credit Agreement shall be amended as
follows:
A. General. References in the Credit Agreement and the other
Loan Documents (including references to the Credit Agreement as amended
hereby) to the Credit Agreement (including indirect references such as
"hereunder", "hereby", "herein" and "hereof") shall be deemed to be
references to the Credit Agreement as amended hereby.
B. Definitions. Section 1.01 of the Credit Agreement shall be
amended by restating the following definitions:
"Permitted Receivables Facilities" means, collectively, (a)
the Receivables Purchase Agreement dated as of March 31, 1994
among TI, as Seller, the financial institutions party thereto, as
Purchasers, and Bank of America Illinois, successor to
Continental Bank N.A., as agent, as from time to time amended, or
any replacement or refinancing thereof, and (b) one or more
additional facilities entered
into by the Company and/or any of its Subsidiaries (which may be
effected by an amendment to the facility referred to in clause
(a) of this definition or otherwise) providing for the sale of
Receivables (including without limitation the August 1996
Receivables Purchase Agreement among Terra Funding Corporation,
as Seller, the Company, as initial servicer, the financial
institutions party thereto, as Purchasers, and Bank of America
National Trust and Savings Association, as Administrative Agent)
(the "1996 Receivables Agreement"), provided, that the aggregate
amount outstanding under all of the Permitted Receivables
Facilities (other than Intercompany Receivables Facilities),
taken together, may not at any time exceed $150,000,000 plus
reasonable reserves.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, limited
liability company, trust, unincorporated association, joint
venture or other entity, or a government or any political
subdivision or agency thereof.
"Receivables Subsidiary" means a Subsidiary of the Company
that meets both of the following criteria:
(1) such Subsidiary is formed solely for the purpose of,
and is engaged solely in the business of, (x)
purchasing Receivables of the Company and one or more
of its Subsidiaries under an Intercompany Receivables
Facility and, at its option, selling all or a portion
of such Receivables under a Permitted Receivables
Facility and/or (y) owning the capital stock of, or
other ownership interests in, one or more Receivables
Subsidiaries; and
(2) all of the capital stock of and/or other ownership
interests in, such Subsidiary (other than, in the case
of a Subsidiary of the Company that is an obligor or a
seller under a Permitted Receivables Facility, shares
of preferred stock of such Subsidiary having a de
minimis liquidation value, which preferred shares may
be held by one or more financial institutions party to
such Permitted Receivables Facility or their designees,
including one or more individuals, and their
successors) is owned beneficially and of record,
directly or indirectly, by Terra Capital Holdings, the
Company and/or one or more other Receivables
Subsidiaries.
"Second Amendment" means the Consent and Amendment No. 2 to
this Credit Agreement, dated as of July 31, 1996.
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"Subsidiary" of any Person means any corporation,
partnership, joint venture, limited liability company, trust or
estate of which (or in which) more than 50% of (a) the issued and
outstanding capital stock having ordinary voting power to elect a
majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (b) the interest
in the capital or profits of such partnership, joint venture or
limited liability company or (c) the beneficial interest in such
trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its
other Subsidiaries or by one or more of such Person's other
Subsidiaries.
C. Certain Obligations Respecting Subsidiaries. Section 5.02(m)
shall be amended to read as follows:
"(m) Certain Obligations Respecting Subsidiaries. Enter
into, or permit any of its Subsidiaries (other than a Receivables
Subsidiary) to enter into, after the Restatement Date, any
indenture, agreement, instrument or other arrangement that,
directly or indirectly, prohibits or restrains, or has the effect
of prohibiting or restraining, or imposes materially adverse
conditions upon, the declaration or payment of dividends or the
making of loans or advances to or Investments in or the sale,
assignment, transfer or other disposition of property to Terra or
any Subsidiary thereof (other than a Receivables Subsidiary);
provided, that notwithstanding this Section 5.02(m), Terra and
its Subsidiaries (whether or not Receivables Subsidiaries) may
include in Permitted Receivables Facilities provisions
substantially to the effect of those attached as Exhibit A to the
Second Amendment."
Section 3. Consents Relating to the Permitted Receivables Facility.
Subject to the satisfaction of the conditions precedent set forth in Section 5
hereof, but effective as of the date hereof, each Lender and Issuing Bank
hereby:
A. Consents to the inclusion in the 1996 Receivables Agreement
of the provisions attached as Exhibit A hereto; and
B. Without limiting Section 7.06(c) of the Credit Agreement,
authorizes and directs the Agent to release from any Liens all Receivables
(including guarantees and security therefor) in which an interest is sold
or transferred pursuant to a Permitted Receivables Facility (including any
related Intercompany Receivables Facility).
Section 4. Representations and Warranties. The Company hereby
represents and warrants to the Agent, the Lenders and the Issuing Banks that,
both before and after giving effect to the amendments to the Credit Agreement
and the consents set forth herein:
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(i) the representations and warranties contained in each
Loan Document are correct on and as of the date hereof, as though made
on and as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such
specific date); and
(ii) no event has occurred and is continuing that
constitutes a Default or an Event of Default.
Section 5. Conditions Precedent. As provided in Sections 2 and 3
hereof, the amendments to the Credit Agreement set forth in said Section 2 and
the consents set forth in said Section 3 shall each become effective, as of the
date hereof, upon the satisfaction of the condition precedent that the Agent
shall have received the following (each in form and substance satisfactory to
it):
A. Execution and Delivery, Etc. This Consent and Amendment
No. 2, duly executed by each of the Obligors, Lenders constituting Required
Lenders and the Agent.
B. Other Documents. Such other documents as the Agent or any
Lender or special New York counsel to the Agent may reasonably request.
Section 6. Miscellaneous. Except as herein provided, the Credit
Agreement and each of the other Loan Documents shall remain unchanged and in
full force and effect. This Consent and Amendment No. 2 may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Consent and
Amendment No. 2 by signing any such counterpart. This Consent and Amendment No.
2 shall be governed by, and construed in accordance with, the law of the State
of New York.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Consent and
Amendment No. 2 to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
THE BORROWERS
-------------
TERRA CAPITAL, INC.
By___________________________________
Title: Vice President
TERRA NITROGEN, LIMITED PARTNERSHIP
By Terra Nitrogen Corporation,
its General Partner
By________________________________
Title: Vice President
GUARANTORS
----------
TERRA INDUSTRIES INC.
By___________________________________
Title: Vice President
TERRA NITROGEN CORPORATION
By___________________________________
Title: Vice President
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BEAUMONT METHANOL,
LIMITED PARTNERSHIP
By Terra Methanol Corporation,
its General Partner
By_______________________________
Title: Vice President
TERRA METHANOL CORPORATION
By__________________________________
Title: Vice President
BMC HOLDINGS, INC.
By__________________________________
Title: Vice President
TERRA CAPITAL HOLDINGS, INC.
By__________________________________
Title: Vice President
THE AGENT
---------
CITIBANK, N.A.
By___________________________________
Title: Attorney-in-Fact
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THE ISSUING BANKS
-----------------
CITIBANK, N.A.
By___________________________________
Title: Attorney-in-Fact
COMMITMENTS THE LENDERS
----------- -----------
Terra Commitment CITIBANK, N.A.
----------------
$28,500,000.00
TNLP Commitment By_____________________________________
--------------- Title: Attorney-in-Fact
$1,900,000.00
Terra Commitment THE CHASE MANHATTAN BANK
---------------- (formerly known as CHEMICAL BANK)
$28,500,000.00
TNLP Commitment By_____________________________________
--------------- Title:
$1,900,000.00
Terra Commitment ARAB BANKING CORPORATION
----------------
$16,500,000.00
TNLP Commitment By_____________________________________
--------------- Title:
$1,100,000.00
Terra Commitment BANK OF AMERICA ILLINOIS
----------------
$28,500,000.00
TNLP Commitment By_____________________________________
--------------- Title:
$1,900,000.00
Terra Commitment THE BANK OF NOVA SCOTIA
----------------
$28,500,000.00
TNLP Commitment By_____________________________________
--------------- Title:
$1,900,000.00
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Terra Commitment CAISSE NATIONALE DE CREDIT AGRICOLE
----------------
$28,500,000.00
TNLP Commitment By_____________________________________
--------------- Title:
$1,900,000.00
Terra Commitment COOPERATIEVE CENTRALE RAIFFEISEN-
---------------- BOERENLEEBANK, B.A. "RABOBANK
$28,500,000.00 NEDERLAND", New York Branch
TNLP Commitment
---------------
$1,900,000.00
By_____________________________________
Title:
Terra Commitment CREDIT LYONNAIS CHICAGO BRANCH
----------------
$28,500,000.00
TNLP Commitment By_____________________________________
--------------- Title:
$1,900,000.00
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By_____________________________________
Title: Attorney-in-Fact
Terra Commitment DRESDNER BANK AG, CHICAGO AND
---------------- GRAND CAYMAN BRANCHES
$28,500,000.00
TNLP Commitment
---------------
$1,900,000.00 By____________________________________
Title:
By_____________________________________
Title:
Terra Commitment FIRST BANK NATIONAL ASSOCIATION
----------------
$28,500,000.00
TNLP Commitment By_____________________________________
--------------- Title:
$1,900,000.00
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Terra Commitment THE FUJI BANK, LIMITED
----------------
$28,500,000.00
TNLP Commitment By_____________________________________
--------------- Title:
$1,900,000.00
Terra Commitment MELLON BANK, N.A.
----------------
$28,500,000.00
TNLP Commitment By_____________________________________
--------------- Title:
$1,900,000.00
Terra Commitment NATIONSBANK OF TEXAS, N.A.
----------------
$28,500,000.00
TNLP Commitment By_____________________________________
--------------- Title:
$1,900,000.00
Terra Commitment UNION BANK OF SWITZERLAND, CHICAGO
---------------- BRANCH
$16,500,000.00
TNLP Commitment
---------------
$1,100,000.00 By____________________________________
Title:
By_____________________________________
Title:
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