EXHIBIT 10.72
_______________________________________________________________
TRANSFER AND ADMINISTRATION AGREEMENT
between
ENTERPRISE FUNDING CORPORATION,
as Company
and
IMC-AGRICO RECEIVABLES COMPANY L.L.C.
as Transferor
and
IMC-AGRICO COMPANY
individually and as Collection Agent
Dated as of June 27, 1997
_______________________________________________________________
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Defined Terms 1
SECTION 1.2. Other Terms 25
SECTION 1.3. Computation of Time Periods 25
ARTICLE II
PURCHASES AND SETTLEMENTS
SECTION 2.1. Facility 26
SECTION 2.2. Transfers; Company Certificate;
Eligible Receivables
26
SECTION 2.3. Selection of Tranche Periods and
Tranche Rates
29
SECTION 2.4. Discount, Fees and Other Costs
and Expenses
30
SECTION 2.5. Non-Liquidation Settlement and
Reinvestment Procedures
30
SECTION 2.6. Liquidation Settlement Procedures 31
SECTION 2.7. Fees 32
SECTION 2.8. Protection of Ownership Interest of the
Company 32
SECTION 2.9. Deemed Collections; Application
of Payments
34
SECTION 2.10. Payments and Computations, Etc. 35
SECTION 2.11. Reports. 35
SECTION 2.12. Collection Account 36
SECTION 2.13. Net Investment Amount. 36
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of the
Transferor 38
SECTION 3.2. Representations and Warranties of the
Collection Agent 42
SECTION 3.3. Reaffirmation of Representations and
Warranties by the Transferor and
Collection Agent 44
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.1. Conditions to Closing. 45
ARTICLE V
COVENANTS
SECTION 5.1 Affirmative Covenants of Transferor 48
SECTION 5.2. Negative Covenants of Transferor 54
SECTION 5.3. Minimum Net Worth of the Transferor 56
SECTION 5.4. Covenants of the Collection Agent 56
SECTION 5.5. Covenants of the Seller 58
ARTICLE VI
ADMINISTRATION AND COLLECTIONS
SECTION 6.1. Appointment of Collection Agent 60
SECTION 6.2. Duties of Collection Agent 60
SECTION 6.3. Rights After Designation of New
Collection Agent
63
SECTION 6.4. Responsibilities of the Transferor
and the Seller
63
ARTICLE VII
TERMINATION EVENTS
SECTION 7.1. Termination Events 65
SECTION 7.2. Termination 66
ARTICLE VIII
INDEMNIFICATION; EXPENSES; RELATED MATTERS
SECTION 8.1. Indemnities by the Transferor 68
SECTION 8.2. Indemnity for Taxes, Reserves and
Expenses
70
SECTION 8.3. Other Costs, Expenses and
Related Matters
73
SECTION 8.4. Reconveyance Under Certain
Circumstances
74
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Term of Agreement 75
SECTION 9.2. Waivers; Amendments 75
SECTION 9.3. Notices 75
SECTION 9.4. Governing Law; Submission to
Jurisdiction; Integration
77
SECTION 9.5. Severability; Counterparts 78
SECTION 9.6. Successors and Assigns 78
SECTION 9.7. Waiver of Confidentiality 78
SECTION 9.8. Confidentiality Agreement 79
SECTION 9.9. No Bankruptcy Petition Against
the Company 80
SECTION 9.10. No Recourse Against Stockholders,
Officers or Directors 80
SECTION 9.11. Characterization of the Transactions
Contemplated by the Agreement 80
EXHIBITS
EXHIBIT A Form of Contract
EXHIBIT B Credit and Collection Policies and Practices
EXHIBIT C List of Lock-Box Banks
EXHIBIT D Form of Lock-Box Agreement
EXHIBIT E Form of Investor Report
EXHIBIT F Form of Transfer Certificate
EXHIBIT G Certain Definitions
EXHIBIT H-1 List of Actions and Suits of Transferor
EXHIBIT H-2 List of Action and Suits of Seller
EXHIBIT I [Reserved]
EXHIBIT J [Reserved]
EXHIBIT K Form of Opinion of Counsel for the Seller, Collection
Agent and Transferor
EXHIBIT L-1 Form of Responsible Officer's Certificate of Transferor
EXHIBIT L-2 Form of Responsible Officer's Certificate of Seller
EXHIBIT M Form of Company Certificate
TRANSFER AND ADMINISTRATION AGREEMENT
TRANSFER AND ADMINISTRATION AGREEMENT (this "Agreement"),
dated as of June 27, 1997, among IMC-Agrico Receivables Company L.L.C.,
a Delaware limited liability company as transferor (the "Transferor"),
IMC-AGRICO COMPANY, a general partnership formed under the laws of the
State of Delaware, individually, as Seller (in such capacity the
"Seller") and as collection agent (in such capacity, the "Collection
Agent"), and ENTERPRISE FUNDING CORPORATION, a Delaware corporation
(the "Company").
PRELIMINARY STATEMENTS
WHEREAS, the Transferor may desire to convey, transfer and
assign, from time to time, undivided percentage interests in certain
accounts receivable, and the Company may desire to accept such
conveyance, transfer and assignment of such undivided percentage
interests, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
DEFINITIONS
SECTION 1.1. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings:
"Adverse Claim" means a lien, security interest, charge or
encumbrance, or other right or claim in, of or on any Person's assets
or properties in favor of any other Person.
"Administrative Agent" means NationsBank, N.A., as
administrative agent.
"Affiliate" means, with respect to any Person, any Person
directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person. A Person shall be deemed to
control another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through
ownership of voting stock, by contract or otherwise.
"Affiliated Obligor" means any Obligor which is an Affiliate
of another Obligor.
"Aggregate Unpaids" means, at any time, an amount equal to
the sum of (i) the aggregate accrued and unpaid Discount with respect
to all Tranche Periods at such time, (ii) the Net Investment at such
time, and (iii) all other amounts owed (whether due or accrued)
hereunder by Transferor to the Company at such time.
"Amendment Fee" means the fee payable by the Transferor to
the Administrative Agent pursuant to Section 2.7 hereof, the terms of
which are set forth in the Fee Letter.
"Average Collection Period" means at any time a period of
days (rounded up to the next whole day) equal to the product of (i) a
fraction the numerator of which shall be the amount set forth in the
most recent Investor Report as the "Beginning Balance" of the
Receivables and the denominator of which shall be the Collections as
set forth in the most recent Investor Report and (ii) thirty (30).
"Base Rate" or "BR" means, a rate per annum equal to the
greater of (i) the prime rate of interest announced by the Liquidity
Provider from time to time, changing when and as said prime rate
changes (such rate not necessarily being the lowest or best rate
charged by the Liquidity Provider) and (ii) the rate equal to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Liquidity Provider from three Federal
funds brokers of recognized standing selected by it plus 2%.
"Business Day" means any day excluding Saturday, Sunday and
any day on which banks in New York, New York, Charlotte, North
Carolina, Dallas, Texas or Chicago, Illinois are authorized or required
by law to close, and, when used with respect to the determination of
any Eurodollar Rate or any notice with respect thereto, any such day
which is also a day for trading by and between banks in United States
dollar deposits in the London interbank market.
"BR Tranche" means a Tranche as to which Discount is
calculated at the Base Rate.
"BR Tranche Period" means, with respect to a BR Tranche,
prior to the Termination Date, a period of up to 30 days requested by
the Transferor and agreed to by the Company or the Liquidity Provider
, as the case may be, commencing on a Business Day requested by the
Transferor and agreed to by the Company or the Liquidity Provider , as
the case may be, and after the Termination Date, a period of one day.
If such BR Tranche Period would end on a day which is not a Business
Day, such BR Tranche Period shall end on the next succeeding Business
Day.
"Capitalized Lease" of a Person means any lease of property
by such Person as lessee which would be capitalized on a balance sheet
of such Person prepared in accordance with generally accepted
accounting principles.
"CD Rate" shall mean, with respect to any CD Tranche Period,
a rate which is 0.375% in excess of a rate per annum equal to the sum
(rounded upward to the nearest 1/100 of 1%) of (A) the rate obtained by
dividing (x) the Certificate of Deposit Rate for such CD Tranche Period
by (y) a percentage equal to 100% minus the stated maximum rate for all
reserve requirements as specified in Regulation D (including without
limitation any marginal, emergency, supplemental, special or other
reserves) that would be applicable during such Tranche Period to a
negotiable certificate of deposit in excess of $100,000, with a
maturity approximately equal to such Tranche Period, of any member bank
of the Federal Reserve System plus (B) the then daily net annual
assessment rate (rounded upward, if necessary, to the nearest 1/100 of
1%) as estimated by the Liquidity Provider for determining the current
annual assessment payable by the Liquidity Provider to the Federal
Deposit Insurance Corporation for insuring such certificates of
deposit.
"CD Tranche" means a Tranche as to which Discount is
calculated at the CD Rate.
"CD Tranche Period" means, with respect to a CD Tranche,
prior to the Termination Date, a period of up to one month requested by
the Transferor and agreed to by the Company or the Liquidity Provider,
as the case may be, commencing on a Business Day requested by the
Transferor and agreed to by the Company or the Liquidity Provider, as
the case may be, and after the Termination Date, a period of one day.
If such CD Tranche Period would end on a day which is not a Business
Day, such CD Tranche Period shall end on the next succeeding Business
Day.
"Certificate of Deposit Rate" means, with respect to any CD
Tranche Period, the average of the bid rates determined by the
Liquidity Provider to be bid rates per annum, at approximately 10:00
a.m. (New York City time) on the Business Day before the first day of
the CD Tranche Period for which such CD Rate is to be applicable, of
two or more New York certificate of deposit dealers of recognized
standing selected by the Liquidity Provider for the purchase in New
York from the Liquidity Provider at face value of certificates of
deposit of the Liquidity Provider in an aggregate amount approximately
comparable to the amount of the CD Tranche to which such CD Rate is to
be applicable and with a maturity approximately equal to the applicable
CD Tranche Period.
"Closing Date" means June 30, 1997.
"Collateral Agent" means NationsBank, N.A., as collateral
agent for any Liquidity Provider, any Credit Support Provider, the
holders of Commercial Paper and certain other parties.
"Collections" means, with respect to any Receivable, all cash
collections and other cash proceeds of such Receivable, including,
without limitation, all Finance Charges, if any, and cash proceeds of
Related Security with respect to such Receivable and any Deemed
Collections.
"Collection Account" means the account, established by the
Collateral Agent, for the benefit of the Company, pursuant to Section
2.12.
"Collection Agent" means at any time the Person then
authorized pursuant to Section 6.1 to service, administer and collect
Receivables.
"Collection Delay" means 30 days, or upon written notice to
the Collection Agent, such higher number of days as the Administrative
Agent may estimate to be necessary for the collection of a Receivable.
"Commercial Paper" means the promissory notes of the Company
issued by the Company in the commercial paper market.
"Company Certificate" means the certificate issued to the
Company pursuant to Section 2.2 hereof.
"Concentration Factor" means for any Designated Obligor at
any time (a) (i) with respect to any Designated Obligor and its affili
ates whose long term unsecured debt obligations are rated at xxxxx "X0"
by Moody's and at least "A+" by Standard & Poor's and with respect to
which rating neither Moody's nor Standard & Poor's shall have made a
public announcement anticipating a downgrading of such Designated
Obligor's long term unsecured debt obligations to a rating less than
the aforementioned ratings ("A1/A+ Rated Obligors") 5% of the
Outstanding Balance of all Eligible Receivables at such time; (ii) with
respect to Phosphate Chemicals Export Association, Inc. (a "Special
Obligor"), 50% of the Outstanding Balance of all Eligible Receivables
at such time, provided that such amount shall not exceed $32,500,000,
and the Company shall have full recourse to the Transferor for all
Receivables payable by Phosphate Chemicals Export Association, Inc.;
and (iii) with respect to any other Designated Obligor, 3% of the
Outstanding Balance of all Eligible Receivables at such time, or (b)
such other amount determined by the Company in the reasonable exercise
of its good faith judgment and disclosed in a written notice delivered
to the Transferor.
"Contract" means an agreement or invoice in substantially the
form of one of the forms set forth in Exhibit A or otherwise approved
by the Company, pursuant to or under which an Obligor shall be
obligated to pay for merchandise purchased or services rendered.
"CP Rate" means, with respect to any CP Tranche Period, the
rate equivalent to the rate (or if more than one rate, the weighted
average of the rates) at which Commercial Paper having a term equal to
such CP Tranche Period may be sold by any placement agent or commercial
paper dealer selected by the Company, provided, however, that if the
rate (or rates) as agreed between any such agent or dealer and the
Company is a discount rate, then the rate (or if more than one rate,
the weighted average of the rates) resulting from the Company's
converting such discount rate (or rates) to an interest-bearing equiva
lent rate per annum.
"CP Tranche" means a Tranche as to which Discount is
calculated at a CP Rate.
"CP Tranche Period" means, with respect to a CP Tranche, a
period of days not to exceed 120 days commencing on a Business Day
requested by the Transferor and agreed to by the Company pursuant to
Section 2.3. If such CP Tranche Period would end on a day which is not
a Business Day, such CP Tranche Period shall end on the next succeeding
Business Day.
"Credit and Collection Policy" shall mean the Transferor's
credit and collection policy or policies and practices, relating to
Contracts and Receivables existing on the date hereof and referred to
in Exhibit B attached hereto, as modified from time to time in
compliance with Section 5.2(c).
"Credit Support Agreement" means the agreement between the
Company and the Credit Support Provider evidencing the obligation of
the Credit Support Provider to provide credit support to the Company in
connection with the issuance by the Company of Commercial Paper.
"Credit Support Provider" means the Person or Persons who
will provide credit support to the Company in connection with the
issuance by the Company of Commercial Paper.
"Dealer Fee" means the fee payable by the Transferor to the
Collateral Agent, pursuant to Section 2.4 hereof, the terms of which
are set forth in the Fee Letter.
"Deemed Collections" means any Collections on any Receivable
deemed to have been received pursuant to Section 2.9(a) or (b).
"Defaulted Receivable" means a Receivable: (i) as to which
any payment, or part thereof, remains unpaid for 91 days or more from
the original due date for such Receivable; (ii) as to which an Event of
Bankruptcy has occurred with respect to the Obligor thereof; (iii)
which has been identified by the Seller, the Transferor or the
Collection Agent as uncollectible; or (iv) which, consistent with the
Credit and Collection Policy, should be written off as uncollectible.
"Delinquency Ratio" means, the ratio (expressed as a
percentage) computed as of the last day of each calendar month by
dividing (i) the aggregate Outstanding Balance of all Delinquent
Receivables as of such date by (ii) the aggregate Outstanding Balance
of all Receivables as of such date less Defaulted Receivables as of
such date.
"Delinquent Receivable" means a Receivable: (i) as to which
any payment, or part thereof, remains unpaid for more than 30 days from
the original due date for such Receivable and (ii) which is not a
Defaulted Receivable.
"Designated Obligor" means, at any time, each Obligor;
provided, however, that any Obligor shall cease to be a Designated
Obligor upon notice to the Transferor from the Company, delivered at
any time.
"Dilution Ratio" means the ratio (expressed as a percentage)
computed as of the last day of each calendar month by dividing (i) the
aggregate amount of credits, rebates, discounts, disputes, warranty
claims, repossessed or returned goods, charge back allowances and other
dilutive factors, and any other billing or other adjustment by the
Transferor or the Collection Agent, provided to Obligors in respect of
Receivables during such calendar month by (ii) the aggregate Outstand
ing Balance of all Receivables which arose during the immediately
preceding calendar month.
"Discount" means, with respect to any Tranche Period:
(TR x TNI x AD)
360
Where:
TR = the Tranche Rate applicable to such Tranche Period.
TNI = the portion of the Net Investment allocated to such Tranche
Period.
AD = the actual number of days during such Tranche Period.
provided, however, that no provision of this Agreement shall require
the payment or permit the collection of Discount in excess of the
maximum amount permitted by applicable law; and provided, further, that
Discount shall not be considered paid by any distribution if at any
time such distribution is rescinded or must be returned for any reason.
"Discount Reserve" means, at any time, an amount equal to:
TD + LY
Where:
TD = the sum of the unpaid Discount for all Tranche Periods.
LY = the Liquidation Yield
"Early Collection Fee" means, for any Tranche Period (such
Tranche Period to be determined without regard to the last sentence in
Section 2.3(a) hereof) during which the portion of the Net Investment
that was allocated to such Tranche Period is reduced for any reason
whatsoever, the excess, if any, of (i) the additional Discount that
would have accrued during such Tranche Period if such reductions had
not occurred, minus (ii) the income, if any, received by the Company
from investing the proceeds of such reductions.
"Eligible Investments" means any of the following (a) negotia
ble instruments or securities represented by instruments in bearer or
registered or in book-entry form which evidence (i) obligations fully
guaranteed by the United States of America; (ii) time deposits in, or
bankers acceptances issued by, any depositary institution or trust
company incorporated under the laws of the United States of America or
any state thereof and subject to supervision and examination by Federal
or state banking or depositary institution authorities; provided,
however, that at the time of investment or contractual commitment to
invest therein, the certificates of deposit or short-term deposits, if
any, or long-term unsecured debt obligations (other than such
obligation whose rating is based on collateral or on the credit of a
Person other than such institution or trust company) of such depositary
institution or trust company shall have a credit rating from Moody's
and S&P of at least "P-1" and "A-1", respectively, in the case of the
certificates of deposit or short-term deposits, or a rating not lower
than one of the two highest investment categories granted by Moody's
and by S&P; (iii) certificates of deposit having, at the time of
investment or contractual commitment to invest therein, a rating from
Moody's and S&P of at least "P-1" and "A-1", respectively; (iv)
investments in money market funds rated in the highest investment
category or otherwise approved in writing by the applicable rating
agencies, (b) demand deposits in any depositary institution or trust
company referred to in (a)(ii) above, (c) commercial paper (having
original or remaining maturities of no more than 30 days) having, at
the time of investment or contractual commitment to invest therein, a
credit rating from Moody's and S&P of at least "P-1" and "A-1",
respectively, (d) Eurodollar time deposits having a credit rating from
Moody's and S&P of at least "P-1" and "A-1", respectively, and (e)
repurchase agreements involving any of the Eligible Investments
described in clauses (a)(i), (a)(iii) and (d) hereof so long as the
other party to the repurchase agreement has at the time of investment
therein, a rating from Moody's and S&P of at least "P-1" and "A-1",
respectively.
"Eligible Receivable" means, at any time, any Receivable:
(i) which (a) has been originated by the Seller,
(b) which has been sold or otherwise conveyed by the Seller
to the Transferor pursuant to (and in accordance with) the
Receivables Purchase Agreement and (c) to which the
Transferor has good title thereto, free and clear of all
Adverse Claims;
(ii) the Obligor of which is a United States
resident, is a Designated Obligor at the time of the initial
creation of an interest therein hereunder, is not an
Affiliate of any of the parties hereto, and is not a
government or a governmental subdivision or agency;
(iii) which is not a Defaulted Receivable at the
time of the initial creation of an interest of the Company
therein;
(iv) which is not a Delinquent Receivable at the
time of the initial creation of an interest of the Company
therein;
(v) which is required to be paid in full within
not more than 30 days of the original billing date therefor;
provided that not more than 10.0% of the Receivables
(determined by reference to the Outstanding Balance of such
Receivables and the aggregate Outstanding Balance of all
Receivables) may be required to be paid in full greater than
30 days but within 90 days of the original billing date
therefor;
(vi) which is an "eligible asset" as defined in
Rule 3a-7 under the Investment Company Act of 1940, as
amended;
(vii) a purchase of which with the proceeds of
Commercial Paper would constitute a "current transaction"
within the meaning of Section 3(a)(3) of the Securities Act
of 1933, as amended;
(viii) which is an "account" or "chattel paper"
within the meaning of Article 9 of the UCC of all applicable
jurisdictions;
(ix) which is denominated and payable only in
United States dollars in the United States;
(x) which, arises under a Contract that together
with the Receivable related thereto, is in full force and
effect and constitutes the legal, valid and binding
obligation of the related Obligor enforceable against such
Obligor in accordance with its terms and is not subject to
any offset, counterclaim or other defense at such time;
(xi) which, together with the Contract related
thereto, does not contravene in any material respect any
laws, rules or regulations applicable thereto (including,
without limitation, laws, rules and regulations relating to
truth in lending, fair credit billing, fair credit reporting,
equal credit opportunity, fair debt collection practices and
privacy) and with respect to which no part of the Contract
related thereto is in violation of any such law, rule or
regulation in any material respect;
(xii) which (A) satisfies all applicable
requirements of the Credit and Collection Policy and (B)
arises pursuant to a Contract with respect to which the
Seller has performed all obligations required to be performed
by it thereunder at the time it is transferred to the Buyer
including, but not limited to, the shipment of the product;
(xiii) which was generated in the ordinary course
of the Seller's business;
(xiv) the Obligor of which has been directed to
make all payments to a specified account of the Transferor
covered by a Lock-Box Agreement;
(xv) which (together with the Collections and
Related Security related thereto) has been the subject of
either a valid transfer and assignment from the Transferor to
the Company of all the Transferor's right, title, and
interest therein or the grant of a first priority perfected
security interest therein (and in the Collections and Related
Security related thereto), effective until the termination of
this Agreement; and
(xvi) the assignment of which by the Seller to the
Transferor under the Receivables Purchase Agreement and
hereunder by the Transferor to the Company does not violate,
conflict or contravene any applicable laws, rules,
regulations, orders or writs or any contractual or other
restriction, limitation or encumbrance.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
the rulings issued thereunder.
"Estimated Maturity Period" means, at any time, the period,
rounded upward to the nearest whole number of days, equal to the
weighted average number of days until due of the Receivables as
calculated by the Collection Agent in good faith and set forth in the
most recent Investor Report, such calculation to be based on the
assumptions that (a) each Receivable within a particular aging
category, (as set forth in the Investor Report) will be paid on the
last day of such aging category and (b) the last day of the last such
aging category coincides with the last date on which any Outstanding
Balance of any Receivables would be written off as uncollectible or
charged against any applicable reserve or similar account in accordance
with the objective requirements of the Credit and Collection Policy and
the Seller's normal accounting practices applied on a basis consistent
with those reflected in the Seller's financial statements, provided,
however, that if the Company shall reasonably disagree with any such
calculaion, the Company may recalculate the Estimated Maturity Period,
and such recalculation, in the absence of manifest error, shall be
conclusive.
"Eurodollar Rate" means, with respect to any Eurodollar
Tranche Period, a rate which is 0.25% in excess of a rate per annum
equal to the sum (rounded upwards, if necessary, to the next higher
1/100 of 1%) of (A) the rate obtained by dividing (i) the applicable
LIBOR Rate by (ii) a percentage equal to 100% minus the reserve
percentage used for determining the maximum reserve requirement as
specified in Regulation D (including, without limitation, any marginal,
emergency, supplemental, special or other reserves) that is applicable
to the Liquidity Provider during such Eurodollar Tranche Period in
respect of eurocurrency or eurodollar funding, lending or liabilities
(or, if more than one percentage shall be so applicable, the daily
average of such percentage for those days in such Eurodollar Tranche
Period during which any such percentage shall be applicable) plus (B)
the then daily net annual assessment rate (rounded upwards, if neces
sary, to the nearest 1/100 of 1%) as estimated by the Liquidity
Provider for determining the current annual assessment payable by the
Liquidity Provider to the Federal Deposit Insurance Corporation in
respect of eurocurrency or eurodollar funding, lending or liabilities.
"Eurodollar Tranche" means a Tranche as to which Discount is
calculated at the Eurodollar Rate.
"Eurodollar Tranche Period" means, with respect to a
Eurodollar Tranche, prior to the Termination Date, a period of up to
one month requested by the Transferor and agreed to by the Company or
the Liquidity Provider, as the case may be, commencing on a Busness Day
requested by the Transferor and agreed to by the Company; provided,
however, that if such Eurodollar Tranche Period would expire on a day
which is not a Business Day, such Eurodollar Tranche Period shall
expire on the next succeeding Business Day; provided, further, that if
such Eurodollar Tranche Period would expire on (a) a day which is not a
Business Day but is a day of the month after which no further Business
Day occurs in such month, such Eurodollar Tranche Period shall expire
on the next preceding Business Day or (b) a Business Day for which
there is no numerically corresponding day in the applicable subsequent
calendar month, such Eurodollar Tranche Period shall expire on the last
Business Day of such month.
"Event of Bankruptcy", with respect to any Person, shall mean
(i) that such Person shall generally not pay its debts as such debts
become due or shall admit in writing its inability to pay its debts
generally or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against such
Person seeking to adjudicate it as bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or compostion of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee or other similar official for it or any
substantial part of its property provided that in the case of any such
proceeding instituted against such Person, either such proceeding shall
remain undismissed or unstayed for a period of thirty (30) days or any
action sought in such proceeding shall occur or (ii) if such Person is
a corporation, such Person or any Subsidiary shall take any corporate
action to authorize any of the actions set forth in the preceding
clause (i).
"Fee Letter" means the letter agreement dated the date hereof
between the Transferor and the Company, as amended, modified or
supplemented from time to time.
"Finance Charges" means, with respect to a Contract, any
finance, interest, late or similar charges owing by an Obligor pursuant
to such Contract.
"Guaranty" means, with respect to any Person, any agreement
by which such Person assumes, guarantees, endorses, contingently agrees
to purchase or provide funds for the payment of, or otherwise becomes
liable upon, the obligation of any other Person, or agrees to maintain
the net worth or working capital or other financial condition of any
other Person or otherwise assures any other creditor of such other
Person against loss, including, without limitation, any comfort letter,
operating agreement or take-or-pay contract and shall include, without
limitation, the contingent liabilIty of such Person in connection with
any application for a letter of credit.
"Incremental Transfer" means a Transfer which is made
pursuant to Section 2.2(a).
"Indebtedness" means, with respect to any Person such
Person's (i) obligations for borrowed money, (ii) obligations repre
senting the deferred purchase price of property other than accounts
payable arising in the ordinary course of such Person's business on
terms customary in the trade, (iii) obligations, whether or not
assumed, secured by liens or payable out of the proceeds or production
from property now or hereafter owned or acquired by such Person, (iv)
obligations which are evidenced by notes, acceptances, or other
instruments, (v) Capitalized Lease obligations and (vi) obligations for
which such Person is obligated pursuant to a Guaranty.
"Indemnified Amounts" has the meaning specified in Section
8.1.
"Indemnified Parties" has the meaning specified in Section
8.1.
"Investor Report" means a report, in substantially the form
of Exhibit E or in such other form as is mutually agreed to by the
Transferor and the Company, furnished by the Collection Agent to the
Company and the Administrative Agent pursuant to Section 2.11.
"Law" shall mean any law (including common law),
constitution, statute, treaty, regulation, rule, ordinance, order,
injunction, writ, decree or award of any Official Body.
"LIBOR Rate" shall mean, with respect to any Eurodollar
Tranche Period, the rate at which deposits in dollars are offered to
the Liquidity Provider in the London interbank market at approximately
11:00 a.m. (London time) two Business Days before the first day of such
Eurodollar Tranche Period in an amount approximately equal to the
Eurodollar Tranche to which the Eurodollar Rate is to apply and for a
period of time approximately equal to the applicable Eurodollar Tranche
Period.
"Liquidation Yield" means, at any time, an amount equal
to:
(RVF x LBR x NI) x (EM + CD)
360
Where:
RVF = the Rate Variance Factor at such time.
LBR = the Base Rate at such time which is applicable to the
liquidation period of the Net Investment at such time.
NI = the Net Investment at such time.
EM = the Estimated Maturity Period of the Receivables.
CD = the Collection Delay.
"Liquidity Provider Agreement" means the agreement between
the Company and the Liquidity Provider evidencing the obligation of the
Liquidity Provider to provide liquidity support to the Company in
connection with the issuance by the Company of Commercial Paper.
"Liquidity Provider" means the Person or Persons who will
provide liquidity support to the Company in connection with the
issuance by the Company of Commercial Paper.
"Lock-Box Account" means an account maintained by the
Collection Agent at a Lock-Box Bank for the purpose of receiving
Collections from Receivables.
"Lock-Box Agreement" means an agreement among the Collateral
Agent, the Collection Agent and a Lock-Box Bank in substantially the
form of Exhibit D hereto.
"Lock-Box Bank" means each of the banks set forth in Exhibit
C hereto and such banks as may be added thereto or deleted therefrom
pursuant to Section 2.8.
"Loss Percentage" means on any day the greater of (i) five
(5) times the highest Loss-to-Liquidation Ratio as of the last day of
the 12 calendar months preceding the then current calendar month and
(ii) 10%.
"Loss Reserve" means, on any day, an amount equal to:
LP x (NI + DR + SFR)
Where:
LP = the Loss Percentage at the close of business of the
Collection Agent on such day.
NI = the Net Investment at the close of business of the
Collection Agent on such day.
DR = the Discount Reserve at the close of business of the
Collection Agent on such day.
SFR = the Servicing Fee Reserve at the close of business of
the Collection Agent on such day.
Notwithstanding the foregoing, the Loss Reserve shall at all times be
at least equal to $3,000,000.
"Loss-to-Liquidation Ratio" means the ratio (expressed as a
percentage) computed as of the last day of each calendar month by
dividing (i) the aggregate Outstanding Balance of all Receivables which
became Defaulted Receivables during such calendar month, by (ii) the
aggregate amount of Collections received by the Collection Agent during
such calendar month.
"Management Committee" means the management committee of the
Transferor.
"Maximum Net Investment" means $65,000,000.
"Maximum Percentage Factor" means 95%.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Investment" means the sum of the amounts paid to the
Transferor for each Incremental Transfer less the aggregate amount of
Collections received and applied by the Company to reduce such Net
Investment pursuant to Section 2.6 or Section 2.9; provided that the
Net Investment shall be restored in the amount of any Collections so
received and applied if at any time the distribution of such
Collections is rescinded or must otherwise be returned for any reason;
provided further that at no time shall the Net Investment exceed the
Maximum Net Investment.
"Net Receivables Balance" means at any time the Outstanding
Balance of the Eligible Receivables at such time reduced by the sum of
(i) the aggregate amount by which the Outstanding Balance of all
Eligible Receivables of each Designated Obligor exceeds the
Concentration Factor for such Designated Obligor, plus (ii) the
aggregate Outstanding Balance of all Eligible Receivables which are
Defaulted Receivables, plus (iii) the aggregate OutStanding Balance of
all Eligible Receivables of each Obligor with respect to which 50% or
more of such Obligor's Receivables are Delinquent Receivables.
"Net Worth" means, with respect to the Transferor and at any
time, an amount equal to the aggregate outstanding balance of all
Eligible Receivables at such time minus the amount of the Net
Investment at such time minus the outstanding principal amount at such
time of the subordinated note issued by the Transferor in connection
with the Receivables Purchase Agreement entered into with the Seller
minus any other liabilities of the Transferor plus all cash of the
Transferor.
"Obligor" means a Person obligated to make payments for the
provision of goods and services pursuant to a Contract.
"Official Body" shall mean any government or political
subdivision or any agency, authority, bureau, central bank, commission,
department or instrumentality of any such government or political
subdivision, or any court, tribunal, grand jury or arbitrator, in each
case whether foreign or domestic.
"Operating Manager" means IMC-Agrico Company in its capacity
as the operating manager of the Transferor.
"Other Transferor" means any Person other than the Transferor
that has entered into a receivables purchase agreement or transfer and
administration agreement with the Company.
"Outstanding Balance" of any Receivable at any time means the
then outstanding principal amount thereof including any accrued and
outstanding Finance Charges related thereto.
"Percentage Factor" means the percentage computed at any time
of determination as follows:
NI + LR + DR + SFR
NRB
Where:
NI = the Net Investment at the time of such computation.
LR = the Loss Reserve at the time of such computation.
DR = the Discount Reserve at the time of such computation.
SFR = the Servicing Fee Reserve at the time of such
computation.
NRB = the Net Receivables Balance at the time of such
computation.
Notwithstanding the foregoing computation, the Percentage
Factor shall not exceed one hundred percent (100%). The Percentage
Factor shall be calculated by the Collection Agent on the day of the
initial Incremental Transfer hereunder. Thereafter, until the
Termination Date, the Collection Agent shall daily recompute the
Percentage Factor and report such recomputations to the Company monthly
in the Investor Report or as requested by the Company. The Percentage
Factor shall remain constant from the time as of which any such compu
tation or recomputation is made until the time as of which the next
such recomputation shall be made, notwithstanding any additional
Receivables arising, any Incremental Transfer made pursuant to Section
2.2(a) or any reinvestment Transfer made pursuant to Section 2.2(b) and
2.5 during any period between computations of the Percentage Factor.
The Percentage Factor, as calculated at the close of business on the
Business Day immediately preceding the Termination Date, shall remain
constant at all times thereafter until such time as the Company shall
have received the Aggregate Unpaids, at which time the Percentage
Factor shall be recomputed in accordance with Section 2.6.
"Person" means any corporation, limited liability company,
natural person, firm, joint venture, partnership, trust, unincoporated
organization, enterprise, government or any department or agency of any
government.
"Potential Termination Event" means an event which but for
the lapse of time or the giving of notice, or both, would constitute a
Termination Event.
"Proceeds" means "proceeds" as defined in Section 9-306(1) of
the UCC.
"Program Fee" means the fee payable by the Transferor to the
Company pursuant to Section 2.7 hereof, the terms of which are set
forth in the Fee Letter.
"Purchased Interest" means the interest in the Receivables
acquired by the Liquidity Provider through purchase pursuant to the
terms of the Liquidity Provider Agreement.
"Rate Variance Factor" means the number, computed from time
to time in good faith by the Company, that reflects the largest
potential variance (from minimum to maximum) in selected interest rates
over a period of time selected by the Company from time to time, set
forth in a written notice by the Company to the Transferor and the
Collection Agent. As of the date hereof, the Rate Variance Factor is
1.15% (it being understood that such number is subject to change as set
forth above).
"Receivable" means the indebtedness owed to the Seller by any
Obligor (without giving effect to any purchase under the Receivables
Purchase Agreement by the Transferor at any time) under a Contract and
sold or otherwise conveyed by the Seller to the Transferor pursuant to
the Receivables Purchase Agreement whether constituting an account,
chattel paper, instrument or general intangible, arising in connection
with the sale or lease of merchandise or the rendering of services by
the Seller and includes the right to payment of any Finance Charges and
other obligations of such Obligor with respect thereto.
Notwithstanding the foregoing, once a Receivable has been deemed
collected pursuant to Section 2.9 hereof, it shall no longer constitute
a Receivable hereunder.
"Receivables Purchase Agreement" means that certain
Receivables Purchase Agreement dated as of June 27, 1997 between the
Seller as seller and the Transferor as purchaser, as such agreement may
be amended, modified or supplemented and in effect from time to time.
"Records" means all Contracts and other documents, books,
records and other information (including, without limitation, computer
programs, tapes, discs, punch cards, data processing software and
related property and rights) maintained with respect to Receivables and
the related Obligors.
"Related Security" means with respect to any Receivable all
of the Transferor's right, title and interest in, to and under:
(i) all of the Transferor's interest, if any, in
the merchandise (including returned or repossessed
merchandise), if any, the sale of which by the Seller to the
relevant Obligor gave rise to such Receivable;
(ii) all other security interests or liens and
property subject thereto from time to time, if any,
purporting to secure payment of such Receivable, whether
pursuant to the Contract related to such Receivable or
otherwise, together with all financing statements signed by
an Obligor describing any collateral securing such
Receivable;
(iii) all guarantees, indemnities, warranties,
insurance (and proceeds and premium refunds thereof) or other
agreements or arrangements of any kind from time to time sup
porting or securing payment of such Receivable whether
pursuant to the Contract related to such Receivable or
otherwise;
(iv) all Records related to such Receivables;
(v) all rights and remedies of the Transferor
under the Receivables Purchase Agreement, together with all
financing statements filed by the Transferor against the Sell
er in connection therewith; and
(vi) all Proceeds of any of the foregoing.
"Section 8.2 Costs" has the meaning specified in Section
8.2(d).
"Seller" means IMC-Agrico Company as seller under the
Receivables Purchase Agreement and its successors and permitted
assigns.
"Servicing Fee" shall mean the fee payable by the Company to
the Collection Agent, with respect to a Tranche, in an amount equal to
0.75% per annum on the amount of the Net Investment allocated to such
Tranche pursuant to Section 2.3. Such fee shall accrue from the date
of the initial purchase of an ownership interest in the Receivables to
the later of the Termination Date or the date on which the Net
Investment is reduced to zero. On or prior to the Termination Date
such fee shall be payable only from Collections pursuant to, and
subject to the priority of payments set forth in, Section 2.5. After
the Termination Date such fee shall be payable only from Collections
pursuant to, and subject to the priority of payments set forth in,
Section 2.6.
"Servicing Fee Reserve" means at any time the sum of (i) the
Servicing Fee for all outstanding Tranches and (ii) an amount equal to
the product of (A) the Net Investment at such time, and (B) the
Servicing Fee percentage and (C) a fraction having as the numerator,
the sum of the Estimated Maturity Period and the Collection Delay and
as the denominator, 360.
"Standard & Poor's" or "S&P" means Standard & Poor's Ratings,
a Group division of XxXxxx-Xxxx Companies, Inc.
"Subsidiary" of a Person means any corporation more than 50%
of the outstanding voting securities of which shall at any time be
owned or controlled, directly or indirectly, by such Person or by one
or more Subsidiaries of such Person or any similar business
organization which is so owned or controlled.
"Termination Date" means the earliest of (i) that Business
Day designated by the Transferor to the Company as the Termination Date
at any time following 30 days written notice to the Company, (ii) the
date of termination of the commitment of the Liquidity Provider under
the Liquidity Provider Agreement, (iii) the date of termination of the
commitment of the Credit Support Provider under the Credit Support
Agreement, (iv) the day occurring on or after a Termination Event on
which the Company notifies the Transferor that the Termination Date has
occurred except that in the case of the events specified in Section
7.1(e), (f) and (k) the Termination Date shall occur automatically upon
the occurrence of such event without any further notice to Section 7.1,
or (v) June 26, 1998, unless extended.
"Termination Event" means an event described in Section 7.1.
"Tranche" means a portion of the Net Investment allocated to
a Tranche Period pursuant to Section 2.3.
"Tranche Period" means a CP Tranche Period, a BR Tranche
Period, a CD Tranche Period or a Eurodollar Tranche Period.
"Tranche Rate" means the CP Rate, the Base Rate, the CD Rate
or the Eurodollar Rate.
"Transaction Costs" has the meaning specified in Section
8.3(a).
"Transaction Documents" means, collectively, this Agreement,
the Receivables Purchase Agreement, the Fee Letter, the Lock-Box
Agreements, the Company Certificates, the Transfer Certificates and all
of the other instruments, documents and other agreements executed and
delivered by the Seller or the Transferor in connection with any of the
foregoing, in each case, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"Transfer" means a conveyance, transfer and assignment by the
Transferor to the Company of an undivided percentage ownership interest
in Receivables hereunder.
"Transfer Certificate" has the meaning given to it in Section
2.2(a).
"Transfer Date" means, with respect to each Transfer, the
Business Day on which such Transfer is made.
"Transfer Price" means with respect to any Incremental
Transfer, the amount paid to the Transferor by the Company as described
in the Transfer Certificate.
"Transferor" means IMC-Agrico Receivables Company L.L.C., a
Delaware limited liability company, and its successors and permitted
assigns.
"Transferred Interest" means, at any time of determination,
an undivided percentage ownership interest in (i) each and every then
outstanding Receivable, (ii) all Related Security with respect to each
such Receivable, (iii) all Collections with respect thereto, and (iv)
other Proceeds of the foregoing, which undivided ownership interest
shall be equal to the Percentage Factor at such time, and only at such
time (without regard to prior calculations). The Transferred Interest
in each Receivable, together with Related Security and Collections and
Proceeds with respect thereto, shall at all times be equal to the
Transferred Interest in each other Receivable, together with Related
Security and Collections and Proceeds with respect thereto. To the
extent that the Transferred Interest shall decrease as a result of a
recalculation of the Percentage Factor, the Company shall be considered
to have reconveyed to the Transferor an undivided percentage ownership
interest in each Receivable, together with Related Security and
Collections and Proceeds with respect thereto, in an amount equal to
such decrease such that in each case the Transferred Interest in each
Receivable shall be equal to the Transferred Interest in each other
Receivable.
"UCC" means, with respect to any state, the Uniform
Commercial Code as from time to time in effect in such state.
"Unused Facility Fee" means the fee payable by the Transferor
to the Company pursuant to Section 2.7 hereof, the terms of which are
set forth in the Fee Letter.
SECTION 1.2. Other Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principles. All terms used in Article 9
of the UCC in the State of New York, and not specifically defined
herein, are used herein as defined in such Article 9.
SECTION 1.3. Computation of Time Periods. Unless otherwise
stated in this Agreement, in the computation of a period of time from a
specified date to a later specified date, the word "from" means "from
and including" and the words "to" and "until" each means "to but
excluding and the word "within" means "from and excluding a specified
date and to and including a later specified date"."
ARTICLE II
PURCHASES AND SETTLEMENTS
SECTION 2.1. Facility. Upon the terms and subject to the
conditions herein set forth the Transferor may, at its option, convey,
transfer and assign to the Company, and the Company shall accept such
conveyance, transfer and assignment from the Transferor, without
recourse except as provided herein, undivided percentage ownership
interests in the Receivables, together with Related Security and
Collections with respect thereto, from time to time.
SECTION 2.2. Transfers; Company Certificate; Eligible
Receivables. (a) Incremental Transfers. Upon the terms and subject to
the conditions herein set forth the Transferor may, at its option,
convey, transfer and assign to the Company, and the Company shall
accept such conveyance, transfer and assignment from the Transferor,
without recourse except as provided herein, undivided percentage
ownership interests in the Receivables, together with Related Security
and Collections with respect thereto (each, an "Incremental Transfer")
from time to time prior to the Termination Date for an aggregate
Transfer Price not to exceed the Maximum Net Investment. The
Transferor shall by notice given by telefax offer to convey, transfer
and assign to the Company undivided percentage ownership interests in
the Receivables at least three (3) Business Days prior to the proposed
date of transfer. Each such notice shall specify the desired Transfer
Price (which shall be at least $1,000,000 or integral multiples of
$250,000 (or to the extent that the then unused portion of the Maximum
Net Investment is less than $250,000, such lesser amount) in excess
thereof) and the desired date of such Incremental Transfer, together
with the desired Tranche Period (or range) related thereto as required
by Section 2.3. The Company shall accept such offer to convey,
transfer and assign undivided percentage ownership interests by notice
given to the Transferor by telephone or telefax. Each notice of
proposed Transfer shall be irrevocable and binding on the Transferor
and the Transferor shall indemnify the Company against any loss or
expense incurred by the Company, either directly or through the
Liquidity Provider Agreement as a result of any failure by the
Transferor to complete such Incremental Transfer including, without
limitation, any loss (including loss of anticipated profits) or expense
incurred by the Company, either directly or pursuant to the Liquidity
Provider Agreement, by reason of the liquidation or reemployment of
funds acquired by the Company or the Liquidity Provider (including,
without limitation, funds obtained by issuing commercial paper or
promissory notes or obtaining deposits or loans from third parties) for
the Company to fund such Incremental Transfer. Notwithstanding any
other provision hereof, the Company shall have no obligation to accept
any Transfer if it is unable to obtain funds therefor in the commercial
paper market or under the Liquidity Provider Agreement.
On the date of the initial Incremental Transfer, the Company
shall deliver written confirmation to the Transferor of the Transfer
Price, the Tranche Period(s) and the Tranche Rate(s) relating to such
Transfer and the Transferor shall deliver to the Company the Transfer
Certificate in the form of Exhibit F hereto (the "Transfer
Certificate"). The Company shall indicate the amount of the initial
Incremental Transfer together with the date thereof on the grid
attached to the Transfer Certificate. On the date of each subsequent
Incremental Transfer, the Company shall send written confirmation to
the Transferor of the Transfer Price, the Tranche Period(s), the
Transfer Date and the Tranche Rate(s) applicable to such Incremental
Transfer. The Company shall indicate the amount of the Incremental
Transfer together with the date thereof as well as any decrease in the
Net Investment on the grid attached to the Transfer Certificate. The
Transfer Certificate shall evidence the Incremental Transfers.
Following each Incremental Transfer, the Company shall deposit to the
Transferor's account at the location indicated in Section 9.3, in
immediately available funds, an amount equal to the Transfer Price for
such Incremental Transfer.
(b) Reinvestment Transfers. On each Business Day
occurring after the initial Incremental Transfer hereunder and prior to
the Termination Date, the Transferor hereby agrees to convey, transfer
and assign to the Company, and in consideration of Transferor's
agreement to maintain at all times prior to the Termination Date a Net
Receivables Balance in an amount at least sufficient to maintain the
Percentage Factor at an amount not greater than the Maximum Percentage
Factor, the Company hereby agrees to purchase from the Transferor
undivided percentage ownership interests in each and every Receivable,
together with Related Security and Collections with respect thereto, to
the extent that Collections are available for such Transfer in
accordance with Section 2.5, such that after giving effect to such
Transfer, (i) the amount of the Company's Net Investment at the close
of the Company's business on such Business Day shall be equal to the
amount of the Company's Net Investment at the close of the Company's
business on the Business Day immediately preceding such Business Day
plus the Transfer Price of any Incremental Transfer made on such day,
if any, less the aggregate amount of any Collections received and
applied by the Company on such day to reduce the Net Investment
pursuant to Section 2.6 or Section 2.9 and (ii) the Company's
Transferred Interest in each Receivable, together with Related Security
and Collections with respect thereto, shall be equal to its Transferred
Interest in each other Receivable, together with Related Security and
Collections with respect thereto.
(c) All Transfers. Each Transfer shall constitute a
purchase of undivided percentage ownership interests in each and every
Receivable, together with Related Security and Collections with respect
thereto, then existing, as well as in each and every Receivable,
together with Related Security and Collections with respect thereto,
which arises at any time after the date of such Transfer but prior to
the date on which the Net Investment shall become zero and all amounts
due hereunder from the Transferor shall be paid in full. The Company's
aggregate undivided percentage ownership interest in the Receivables,
together with Related Security and Collections with respect thereto,
shall equal the Percentage Factor in effect from time to time.
(d) Company Certificate. The Transferor shall issue to
the Company the Company Certificate, in the form of Exhibit M, on or
prior to the date hereof.
(e) Percentage Factor. The Percentage Factor shall be
initially computed as of the opening of business of the Collection
Agent on the date of the initial Incremental Transfer hereunder.
Thereafter until the Termination Date, the Percentage Factor shall be
automatically recomputed as of the close of business of the Collection
Agent on each day (other than a day after the Termination Date). The
Percentage Factor shall remain constant from the time as of which any
such computation or recomputation is made until the time as of which
the next such recomputation, if any, shall be made. The Percentage
Factor, as computed as of the day immediately preceding the Termination
Date, shall remain constant at all times on and after such Termination
Date until the date on which the Net Investment shall become zero.
SECTION 2.3. Selection of Tranche Periods and Tranche
Rates.
(a) At all times hereafter, but prior to the occurrence
of a Termination Event, the Transferor shall, subject to the Company's
approval and the limitations described below, request Tranche Periods
and allocate a portion of the Net Investment to each selected Tranche
Period, so that the aggregate amounts allocated to outstanding Tranche
Periods at all times shall equal the Net Investment. The Transferor
shall give the Company irrevocable notice by telephone of the new
requested Tranche Period(s) at least three (3) Business Days prior to
the expiration of any then existing Tranche Period; provided, however,
that the Company may select, in its discretion, any such new Tranche
Period if (i) the Transferor fails to provide such notice on a timely
basis or (ii) the Company determines, in its reasonable discretion,
that the Tranche Period requested by the Transferor is unavailable or
for any reason commercially impracticable. The Company confirms that
it is its intention to allocate all or substantially all of the Net
Investment to one or more CP Tranche Periods; provided that the Company
may determine, from time to time, in its reasonable discretion, that
funding such Net Investment by means of one or more CP Tranche Periods
is impracticable for any reason. If the Liquidity Provider acquires a
Purchased Interest with respect to the Receivables pursuant to the
terms of the Liquidity Provider Agreement, the Liquidity Provider may
exercise the right of selection granted to the Company hereby. The
Tranche Rate applicable to any such Purchased Interest shall be
selected by the Liquidity Provider and shall be any of the BR Rate, the
CD Rate or the Eurodollar Rate (in each case as defined herein). In
the case of any Tranche Period outstanding upon the occurrence of a
Termination Event, such Tranche Period shall end on the date of such
occurrence.
(b) At all times on and after the occurrence of a
Termination Event, the Company or the Liquidity Provider, as
applicable, shall select all Tranche Periods and Tranche Rates
applicable thereto.
SECTION 2.4. Discount, Fees and Other Costs and Expenses.
Notwithstanding the limitation on recourse under Section 2.1, the
Transferor shall pay, as and when due in accordance with this
Agreement, all fees hereunder, Discount, all amounts payable pursuant
to Article VIII hereof, if any, and the Servicing Fee. On the last day
of each Tranche Period the Transferor shall pay to the Company an
amount equal to the discount accrued on the Company's Commercial Paper
notes to the extent such notes were issued in order to fund the
Transferred Interest in an amount in excess of the Transfer Price of an
Incremental Transfer. The Transferor shall pay to the Company, on each
day on which Commercial Paper is issued by the Company, the Dealer Fee.
Discount shall accrue with respect to each Tranche on each day
occurring during the Tranche Period related thereto. Nothing in this
Agreement shall limit in any way the obligations of the Transferor to
pay the amounts set forth in this Section 2.4.
SECTION 2.5. Non-Liquidation Settlement and Reinvestment
Procedures. On each day after the date of any Incremental Transfer but
prior to the Termination Date and provided that no Potential
Termination Event shall have occurred and be continuing, the Collection
Agent shall out of the Percentage Factor of Collections received on or
prior to such day and not previously applied or accounted for: (i) set
aside and hold in trust for the Company (or deposit into the Collection
Account if so required pursuant to Section 2.12) an amount equal to all
Discount and the Servicing Fee accrued through such day and not so
previously set aside or paid and (ii) apply the balance of such
Percentage Factor of Collections remaining after application of
Collections as provided in clause (i) of this Section 2.5 to the
Transferor, for the benefit of the Company to the purchase of addi
tional undivided percentage interests in each Receivable pursuant to
Section 2.2(b). On the last day of each Tranche Period, from the
amounts set aside as described in clause (i) of the first sentence of
this Section 2.5, the Collection Agent shall deposit to the Company's
account, an amount equal to the accrued and unpaid Discount for such
Tranche Period and shall deposit to its account an amount equal to the
accrued and unpaid Servicing Fee for such Tranche Period. As provided
in Section 6.2(b), the Collection Agent shall remit to the Transferor,
as soon as practicable after receipt, such portion of Collections not
allocated to the Company.
SECTION 2.6. Liquidation Settlement Procedures. If on the
Termination Date, the Percentage Factor is greater than the Maximum
Percentage Factor, then the Transferor shall immediately pay to the
Company from previously received Collections, an amount equal to the
amount such that, when applied in reduction of the Net Investment, will
result in a Percentage Factor less than or equal to the Maximum
Percentage Factor. Such amount shall be applied by the Company to the
reduction of the Net Investment of Tranche Periods selected by the
Company. On the Termination Date and on each day thereafter, and on
each day on which a Potential Termination Event has occurred and is
continuing, the Collection Agent shall set aside and hold in trust for
the Company (or deposit into the Collection Account if so required
pursuant to Section 2.12) the Percentage Factor of all Collections
received on such day. On the Termination Date or the day on which a
Potential Termination Event occurs, the Collection Agent shall deposit
to the Company's account any remaining amounts set aside pursuant to
Section 2.5(i) above. On the last day of each Tranche Period to occur
on or after the Termination Date or during the continuance of a
Potential Termination Event, the Collection Agent shall deposit to the
Company's account, the amounts set aside pursuant to the preceding
sentence, together with any remaining amounts set aside pursuant to
Section 2.5(i) prior to the Termination Date or the day on which a
Potential Termination Event occurs but not to exceed the sum of (i) the
accrued Discount for such Tranche Period, (ii) the portion of the Net
Investment allocated to such Tranche Period, and (iii) the aggregate of
all other amounts then owed (whether due or accrued) hereunder by
Transferor to the Company. On such day, the Collection Agent shall
deposit to its account, from the amounts set aside pursuant to the
preceding sentence which remain after payment in full of the afore
mentioned amounts, the accrued Servicing Fee for such Tranche Period.
If there shall be insufficient funds on deposit for the Collection
Agent to distribute funds in payment in full of the aforementioned
amounts, the Collection Agent shall distribute funds first, in payment
of the accrued Discount, second, in payment of all fees and expenses
payable to the Company hereunder, third, if the Transferor or an
Affiliate of the Transferor is not the Collection Agent, to the
Collection Agent's account, in payment of the Servicing Fee payable to
the Collection Agent, fourth, in reduction of the Net Investment allo
cated to such Tranche Period, fifth, in payment of all other amounts
payable to the Company and sixth, if the Transferor or an Affiliate of
the Transferor is the Collection Agent, to its or such Affiliate's
account as Collection Agent, in payment of the Servicing Fee payable to
the Transferor as Collection Agent. Following the date on which the
Net Investment has been reduced to zero, all accrued Discount and
Servicing Fees have been paid in full and all other Aggregate Unpaids
have been paid in full, (i) the Collection Agent shall recompute the
Percentage Factor, (ii) the Company shall be considered to have
reconveyed to the Transferor any interest in the Receivables (including
the Transferred Interest), (iii) the Collection Agent shall pay to
Transferor any remaining Collections set aside and held by the
Collection Agent pursuant to the second sentence of this Section 2.6
and (iv) the Company shall execute and deliver to the Transferor, at
the Transferor's expense, such documents or instruments as are
necessary to terminate the Company's interest in the Receivables. Any
such documents shall be prepared by or on behalf of the Transferor.
SECTION 2.7. Fees. Notwithstanding any limitation on
recourse contained in this Agreement, the Transferor shall pay the
following non-refundable fees:
(a) On the last day of each calendar month, to the
Company, the Program Fee and the Unused Facility Fee.
(b) On the date of execution hereof, to the
Administrative Agent, the Amendment Fee.
SECTION 2.8 . Protection of Ownership Interest of the
Company. (a) The Transferor agrees that from time to time, at its
expense, it will promptly execute and deliver all instruments and
documents and take all actions as may be necessary or as the Company
may reasonably request in order to perfect or protect the Transferred
Interest or as are necessary to enable the Company to exercise or
enforce any of its rights hereunder. Without limiting the foregoing,
the Transferor will, upon the request of the Company, in order to
accurately reflect this purchase and sale transaction, execute and file
such financing or continuation statements or amendments thereto or
assignments thereof (as permitted pursuant to Section 9.6 hereof) as
may be requested by the Company and xxxx its master data processing
records and other documents with a legend describing the purchase by
the Company of the Transferred Interest. The Transferor shall, upon
request of the Company, obtain such additional search reports as the
Company shall request. To the fullest extent permitted by applicable
law, the Company shall be permitted to sign and file continuation
statements and amendments thereto and assignments thereof without the
Transferor's signature. Carbon, photographic or other reproduction of
this Agreement or any financing statement shall be sufficient as a
financing statement. The Transferor shall neither change its name,
identity or corporate structure (within the meaning of Section 9-402(7)
of the UCC as in effect in the States of New York and Illinois) nor
relocate its chief executive office or any office where Records are
kept unless it shall have: (i) given the Company at least thirty (30)
days prior notice thereof and (ii) prepared at Transferor's expense and
delivered to the Company all financing statements, instruments and
other documents necessary to preserve and protect the Transferred
Interest or requested by the Company in connection with such change or
relocation. Any filings under the UCC or otherwise that are occasioned
by such change in name or location shall be made at the expense of
Transferor.
(b) The Collection Agent shall instruct all Obligors to
cause all Collections to be deposited directly with a Lock-Box Bank.
Any Lock-Box Account maintained by a Lock-Box Bank pursuant to the
related Lock-Box Agreement shall be under the ownership and control of
the Collateral Agent. The Collection Agent shall be permitted to give
instructions to the Lock-Box Banks for so long as either a Collection
Agent default or any other Termination Event has not occurred
hereunder. The Collection Agent shall not add any bank as a Lock-Box
Bank to those listed on Exhibit C unless such bank has entered into a
Lock-Box Agreement. The Collection Agent shall not terminate any bank
as a Lock-Box Bank unless the Administrative Agent shall have received
fifteen (15) days' prior notice of such termination. If the Transferor
or the Collection Agent receives any Collections or the Transferor is
deemed to receive any Collections pursuant to Section 2.9, the
Transferor or the Collection Agent, as applicable, shall immediately,
but in any event within forty-eight (48) hours of receipt, remit such
Collections to a Lock-Box Account.
SECTION 2.9. Deemed Collections; Application of Payments.
(a) If on any day the Outstanding Balance of a Receivable is either (x)
reduced as a result of any defective, rejected or returned goods or
services, any cash discount, credit, rebate, allowance or other
dilution factor, any billing adjustment or other adjustment, or (y)
reduced or canceled as a result of a setoff or offset in respect of any
claim by any Person (whether such claim arises out of the same or a
related transaction or an unrelated transaction), the Transferor shall
be deemed to have received on such day a collection of such Receivable
in the amount of such reduction or cancellation and the Transferor
shall pay to the Collection Agent an amount equal to such reduction or
cancellation and such amount shall be applied by the Collection Agent
as a Collection in accordance with Section 2.5 or 2.6, as applicable.
The Net Investment shall be reduced by the amount of such payment
actually received by the Company.
(b)If on any day any of the representations or warran
ties in Section 3.1(d), (e), (i), (k),(l), (o), (r), (u) or (v) is no
longer true with respect to a Receivable, the Transferor shall be
deemed to have received on such day a Collection of such Receivable in
full and the Transferor shall on such day pay to the Collection Agent
an amount equal to the aggregate Percentage Factor of the Outstanding
Balance of such Receivable and such amount shall be allocated to the
Company and applied by the Collection Agent as a Collection allocable
to the Transferred Interest in accordance with Section 2.5 or 2.6, as
applicable. The Net Investment shall be reduced by the amount of such
payment actually received by the Company.
(c)Any payment by an Obligor in respect of any
indebtedness owed by it to the Transferor shall, except as otherwise
specified by such Obligor or otherwise required by contract or law and
unless otherwise instructed by the Company, be applied as a Collection
of any Receivable of such Obligor included in the Transferred Interest
(starting with the oldest such Receivable) to the extent of any amounts
then due and payable thereunder before being applied to any other
receivable or other indebtedness of such Obligor.
(d)If on any day any Receivable owed by Phosphate
Chemicals Export Association, Inc. is determined to be either a
Delinquent Receivable or a Defaulted Receivable, the Transferor shall
within two (2) Business Days thereafter pay to the Collection Agent an
amount equal to the aggregate Percentage Factor of the Outstanding
Balance of such Receivable and such amount shall be allocated to the
Company and applied by the Collection Agent as a Collection allocable
to the Transferred Interest in accordance with Section 2.5 or 2.6, as
applicable. The Net Investment shall be reduced by the amount of such
payment actually received by the Company.
SECTION 2.10. Payments and Computations, Etc. All amounts
to be paid or deposited by the Transferor or the Collection Agent
hereunder shall be paid or deposited in accordance with the terms
hereof no later than 1:00 p.m. (New York City time) on the day when due
in immediately available funds; if such amounts are payable to the
Company they shall be paid or deposited in the account indicated on the
signature page hereof, until otherwise notified by the Company. The
Transferor shall, to the extent permitted by law, pay to the Company
upon demand, interest on all amounts not paid or deposited when due to
the Company hereunder at a rate equal to 2% per annum plus the Base
Rate. All computations of discount, interest and all per annum fees
hereunder shall be made on the basis of a year of 360 days for the
actual number of days (including the first but excluding the last day)
elapsed. Any computations of amounts payable by the Transferor
hereunder to the Company, the Liquidity Provider or the Credit Support
Provider shall be binding absent manifest error.
SECTION 2.11. Reports. Prior to the fifteenth day of each
month, the Collection Agent shall prepare and forward to the
Administrative Agent (i) an Investor Report as of the end of the last
day of the immediately preceding month, (ii) if requested by the
Company or the Administrative Agent, a listing by Obligor of all
Receivables together with an aging of such Receivables and (iii) such
other information as the Company or the Administrative Agent may
reasonably request.
SECTION 2.12. Collection Account. There shall be estab
lished on the day of the initial Incremental Transfer hereunder and
maintained, for the benefit of the Company, with the Collateral Agent,
a segregated account (the "Collection Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the
benefit of the Company. The Collection Agent shall remit daily within
forty-eight hours of receipt to the Collection Account all Collections
received with respect to any Receivables; provided, however, the
Collection Agent shall be permitted to make payments to the Company on
the last day of each Tranche Period instead of depositing funds into
the Collection Account on a daily basis for so long as, and only for so
long as no Collection Agent default and no other Termination Event has
occurred hereunder. Funds on deposit in the Collection Account (other
than investment earnings) shall be invested by the Collateral Agent in
Eligible Investments that will mature so that such funds will be avail
able prior to the last day of each successive Tranche Period following
such investment. On the last day of each calendar month, all interest
and earnings (net of losses and investment expenses) on funds on
deposit in the Collection Account shall be retained in the Collection
Account and be available to make any payments required to be made
hereunder (including Discount) to the Company. On the date on which
the Net Investment is zero and all amounts payable hereunder have been
paid to the Company, any funds remaining on deposit in the Collection
Account shall be paid to the Transferor.
SECTION 2.13. Net Investment Amount. The Transferor hereby
acknowledges that upon the effectiveness of the Receivables Purchase
Agreement, the Net Investment will be equal to $32,536,515.31 prior to
the transfers to be made pursuant to Section 2.2 hereof. The
Transferor also hereby acknowledges that such amount represents the net
investment in effect as of the date of termination of the Transfer and
Administration Agreement dated as of October 31, 1994 between the
Company and the Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of the. The
Transferor represents and warrants to the Company that:
(a) Existence and Power. The Transferor is a limited
liability company formed and validly existing under the laws of the
State of Delaware and has all power and all material governmental
licenses, authorizations, consents and approvals required to carry on
its business in each jurisdiction in which its business is now con
ducted where the failure to have such governmental licenses,
authorizations, consents and approvals would have a material adverse
effect on (i) the Transferor's busness or properties, (ii) the
Transferor's ability to perform its obligations hereunder or (iii) the
Company's interest in the Receivables.
(b) Authorization; Contravention. The execution,
delivery and performance by the Transferor of this Agreement, the
Receivables Purchase Agreement, the Fee Letter, the Company Certificate
and the Transfer Certificate are within the Transferor's limited
liability company powers, have been duly authorized by all necessary
action, require no action by or in respect of, or filing with, any
governmental body, agency or official (except as contemplated by
Section 2.8), and do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the certificate of
formation or agreement among members (or other similar agreement) of
the Transferor or of any agreement, judgment, injunction, order, decree
or other instrument binding upon the Transferor or result in the
creation or imposition of any lien on assets of the Transferor or any
of its Subsidiaries (except as contemplated by Section 2.8).
(c) Binding Effect. Each of this Agreement, the
Receivables Purchase Agreement, the Fee Letter and the Company
Certificate constitutes and the Transfer Certificate upon payment by
the Company of the Transfer Price set forth therein will constitute the
legal, valid and binding obligation of the Transferor, enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws affecting the rights of
creditors.
(d) Perfection. Immediately preceding each Transfer
hereunder, the Transferor shall be the owner of all of the Receivables
(with the exception of the Receivables related to the Special Obligor),
free and clear of all liens, encumbrances, security interests,
preferences or other security arrangement of any kind or nature whatso
ever. On or prior to each Transfer and each recomputation of the
Transferred Interest, all financing statements and other documents
required to be recorded or filed in order to perfect and protect the
Transferred Interest against all creditors of and purchasers from the
Transferor and the Seller will have been duly filed in each filing
office necessary for such purpose and all filing fees and taxes, if
any, payable in connection with such filings shall have been paid in
full.
(e) Accuracy of Information. To the best of its
knowledge, all information heretofore furnished by the Transferor
(including without limitation, the Investor Reports, any reports
delivered pursuant to Section 2.11 and the Transferor's financial
statements) to the Company or the Administrative Agent for purposes of
or in connection with this Agreement or any transaction contemplated
hereby is, and all such information hereafter furnished by the
Transferor to the Company or the Administrative Agent will be, true and
accurate in every material respect, on the date such information is
stated or certified.
(f) Tax Status. The Transferor has filed all tax
returns (federal, state and local) required to be filed and has paid or
made adequate provision for the payment of all taxes, assessments and
other governmental charges.
(g) Action, Suits. Except as set forth in Exhibit H-1,
there are no actions, suits or proceedings pending or, to the knowledge
of the Transferor, threatened against the Transferor or any Affiliate
of the Transferor or their respective properties, in or before any
court, arbitrator or other body, which question the validity of the
transactions contemplated hereby and by the Receivables Purchase
Agreement or which, individually or in the aggregate, could be
reasonably expected to have a material adverse effect on the
Transferor's ability to perform its obligations under this Agreement
and the Receivables Purchase Agreement.
(h) Place of Business. The chief place of business and
chief executive office of the Transferor and the offices where the
Transferor keeps all its Records relating to the Receivables are
located at the address of the Transferor indicated in Section 9.3
hereof or such other locations notified to the Company in accordance
with Section 2.8 in jurisdictions where all action required by Section
2.8 has been taken and completed.
(i) Good Title. Upon each Transfer and each
recomputation of the Transferred Interest, assuming that the Company
takes all action required under this Agreement, the Company shall
acquire a valid and perfected first priority undivided percentage
ownership interest to the extent of the Transferred Interest or a first
priority perfected security interest, to the extent such interests can
be created under Article 9 of the UCC and perfected by the filing of
financing statements, in each Receivable that exists on the date of
such Transfer and recomputation and in the Related Security and
Collections with respect thereto free and clear of any Adverse Claim.
(j) Tradenames, Etc. As of the date hereof: (i) the
Transferor has no subsidiaries or divisions; and (ii) the Transferor
has, since formation, not operated under any tradenames, and, since
formation, has not changed its name, merged with or into or
consolidated with any other corporation or been the subject of any
proceeding under Xxxxx 00, Xxxxxx Xxxxxx Code (Bankruptcy).
(k) Nature of Receivables. Each Receivable (x)
represented by the Transferor or the Collection Agent, so long as the
Collection Agent is IMC-Agrico Company or an affiliate thereof, to be
an Eligible Receivable (including in any Investor Report or other
report delivered pursuant to Section 2.11 of this Agreement) or (y)
included in the calculation of the Net Receivables Balance, in fact
satisfies at such time the definition of "Eligible Receivables" and is
an "eligible asset" as defined in Rule 3a-7 under the Investment
Company Act, of 1940, as amended.
(l) Coverage Requirement; Amount of Receivables. The
Percentage Factor does not exceed the Maximum Percentage Factor. As of
June 26, 1997, the aggregate Outstanding Balance of the Receivables in
existence was $77,556,653.71 and the Net Receivable Balance was
$58,765,886.42.
(m) Credit and Collection Policy. Since February 20,
1997, there have been no material changes in the Credit and Collection
Policy.
(n) [Intentionally omitted]
(o) No Termination Event. No event has occurred and is
continuing and no condition exists which constitutes a Termination
Event or a Potential Termination Event.
(p) Not an Investment Company. The Transferor is not
an "investment company" within the meaning of the Investment Company
Act of 1940, as amended, or is exempt from all provisions of such Act.
(q) ERISA. The Transferor is in compliance in all
material respects with ERISA and no lien in favor of the Pension
Benefit Guaranty Corporation on any of the Receivables shall exist.
(r) Lock-Box Accounts. The names and addresses of all
the Lock-Box Banks, together with the account numbers of the Lock-Box
Accounts at such Lock-Box Banks, are specified in Exhibit C hereto (or
at such other Lock-Box Banks and/or with such other Lock-Box Accounts
as have been notified to the Collateral Agent and for which Lock-Box
Agreements have been executed in accordance with Section 2.8(b) and
delivered to the Collection Agent). All Obligors have been instructed
to make payment to a Lock-Box Account and only Collections shall be
deposited into the Lock-Box Accounts.
(s) Use of Proceeds. No proceeds of any Transfer will
be used by the Transferor to acquire any security in any transaction
which is subject to Section 13 or 14 of the Securities and Exchange Act
of 1934, as amended;
(t) Bulk Sales. No transaction contemplated hereby or
by the Receivables Purchase Agreement requires compliance with any bulk
sales act or similar law.
(u) Transfers Under Receivables Purchase Agreement.
Each Receivable which has been transferred or otherwise conveyed to the
Transferor by the Seller has been acquired by the Transferor from the
Seller pursuant to, and in accordance with, the terms of the
Receivables Purchase Agreement.
(v) Preference; Voidability. The Transferor shall have
given reasonably equivalent value to the Seller in consideration for
the transfer to the Transferor of the Receivables and Related Security
from the Seller, and each such transfer shall not have been made for or
on account of an antecedent debt owed by the Seller to the Transferor
and no such transfer is or may be voidable under any Section of the
Bankruptcy Reform Act of 1978 (11 U.S.C. 101 et seq.), as amended.
Any document, instrument, certificate or notice delivered by
the Transferor to the Company hereunder shall be deemed a
representation and warranty by the Transferor.
SECTION 3.2. Representations and Warranties of the
Collection Agent. The Collection Agent represents and warrants to the
Company that:
(a) Corporate Existence and Power. The Collection
Agent is a general partnership formed and validly existing under the
laws of the State of Delaware and has all power and all material
governmental licenses, authorizations, consents and approvals required
to carry on its business in each jurisdiction in which its business is
now conducted where the failure to have such governmental licenses,
authorizations, consents and approvals would have a material adverse
effect on (i) the Collection Agent's business or properties, (ii) the
Collection Agent's ability to perform its obligations hereunder or
(iii) the Company's interest in the Receivables.
(b) Partnership and Governmental Authorization;
Contravention. The execution, delivery and performance by the
Collection Agent of this Agreement are within the Collection Agent's
partnership powers, have been duly authorized by all necessary action,
require no action by or in respect of, or filing with, any governmental
body, agency or official (except as contemplated by Section 2.8), and
do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the partnership agreement of the
Collection Agent or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Collection Agent or result
in the creation or imposition of any lien on assets of the Collection
Agent or any of its Subsidiaries.
(c) Binding Effect. This Agreement constitutes, the
legal, valid and binding obligation of the Collection Agent,
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, moratorium or other similar laws affecting the
rights of creditors.
(d) Accuracy of Information. To the best of its
knowledge, all information heretofore furnished by the Collection Agent
to the Transferor, the Company or the Administrative Agent for purposes
of or in connection with this Agreement or any transaction contemplated
hereby is, and all such information hereafter furnished by the
Collection Agent to the Transferor, the Company or the Administrative
Agent will be, true and accurate in every material respect, on the date
such information is stated or certified.
(e) Tax Status. The Collection Agent has filed all tax
returns (federal, state and local) required to be filed and has paid or
made adequate provision for the payment of all taxes, assessments and
other governmental charges on or before the date such taxes are due,
taking into account any extension of such due date.
(f) Action, Suits. Except as set forth in Exhibit H-2,
there are no actions, suits or proceedings pending or, to the knowledge
of the Collection Agent, threatened against or affecting the Collection
Agent or any Affiliate of the Collection Agent or their respective
properties, in or before any court, arbitrator or other body, which
question the validity of the transactions contemplated hereby or which,
individually or in the aggregate, could be reasonably expected to have
a material adverse effect on the Collection Agent's ability to perform
its obligations hereunder.
(g) Collections and Servicing. Since June 27, 1997,
there has been no material adverse change in the ability of the
Collection Agent to service and collect the Receivables.
(h) Not an Investment Company. The Collection Agent is
not an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or is exempt from all provisions of
such Act.
(i) ERISA. The Collection Agent is in compliance in
all material respects with ERISA.
SECTION 3.3. Reaffirmation of Representations and
Warranties by the Transferor and Collection Agent. On each day that a
Transfer is made hereunder, the Transferor, by accepting the proceeds
of such Transfer, whether delivered to the Transferor pursuant to
Section 2.2(a) or Section 2.5, shall be deemed to have certified that
all representations and warranties described in Section 3.1 hereof are
correct on and as of such day as though made on and as of such day, and
provided that the Collection Agent is IMC-Agrico Company or an
affiliate thereof, the Collection Agent shall be deemed to have
certified that all the representations and warranties described in
Section 3.2 hereof are correct on and as of such day as though made on
and as of such day. Each Incremental Transfer shall be subject to the
further condition precedent that prior to the date of such Transfer,
the Collection Agent shall have delivered to the Administrative Agent,
in form and substance satisfactory to the Administrative Agent, a
completed Investor Report dated within fourteen (14) days prior to the
date of such Incremental Transfer, together with a listing by Obligor,
if requested, and such additional information as may be reasonably
requested by the Administrative Agent; and the Transferor shall be
deemed to have represented and warranted that such conditions precedent
have been satisfied.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 4.1. Conditions to Closing. On or prior to the
Closing Date, the Transferor shall deliver to the Company the following
documents, instruments and fees all of which shall be in a form and
substance acceptable to the Company:
(a) Copies of the unanimous written consents of the
Board of Directors of IMC-Agrico MP, Inc., as managing partner of the
Seller, and of the Policy Committee of the Seller, individually and as
Operating Manager, certified by the Secretary of IMC-Agrico MP, Inc.,
approving the execution, delivery and performance by the Transferor of
this Agreeent, the Receivables Purchase Agreement and the other
Transaction Documents to be delivered by the Transferor hereunder or
thereunder.
(b) The Certificate of Formation of the Transferor
certified by the Secretary of State or other similar official of the
Transferor's jurisdiction of organization dated a date reasonably prior
to the Closing Date and the Transferor's agreement among members (or
other similar agreement) certified by the Secretary of IMC-Agrico MP
Inc.
(c) A Certificate of the Secretary of the Managing
Partner of the Collection Agent substantially in the form of Exhibit L-
2 attached hereto.
(d) The partnership agreement of the Collection Agent,
the Certificate of Incorporation of the Managing Partner certified by
the Secretary of State or other similar official of Delaware and the By-
laws of the Managing Partner certified by the secretary of the Managing
Partner.
(e) A Good Standing Certificate for the Managing
Partner issued by the Secretary of State or a similar official of
Delaware and certificates of qualification as a forign corporation
issued by the Secretaries of State or other similar officials of each
jurisdiction when such qualification is material to the transactions
contemplated by this Agreement.
(f) Copies of proper financing statements (Form UCC-1),
dated a date reasonably near to the date of the initial Incremental
Transfer naming the Transferor as the debtor/seller in favor of the
Company and showing the Collateral Agent as assignee of the secured
party/purchaser or other similar instruments or documents as may be
necessary or in the reasonable opinion of the Company desirable under
the UCC of all appropriate jurisdictions or any comparable law to
perfect the Company's ownership interest in all Receivables.
(g) Copies of proper financing statements (Form UCC-1),
dated a date reasonably near to the date of the initial Incremental
Transfer naming the Seller as the debtor/seller in favor of the
Transferor as secured party/purchaser and the Collateral Agent, as
assignee of the secured party or other similar instruments or documents
as may be necessary or in the reasonable opinion of the Company
desirable under the UCC of all appropriate jurisdictions or any
comparable law to perfect the Transferor's ownership interest in all
Receivables.
(h) Copies of proper financing statements (Form UCC-3),
if any, necessary to terminate all security interests and other rights
of any person in Receivables previously granted by Transferor.
(i) Copies of proper financing statements (Form UCC-3),
if any, necessary to terminate all security interests and other rights
of any person in Receivables previously granted by the Seller.
(j) Certified copies of requests for information or
copies (Form UCC-11) (or a similar search report certified by parties
acceptable to the Company) dated a date reasonably near the date of the
initial Incremental Transfer listing all effective financing statements
which name the Transferor or the Seller (under any present or previous
name) as debtor and which are filed in jurisdictions in which the
filings were made pursuant to items (f), (g), and (h) above together
with copies of such financing statements (none of which shall cover any
Receivables or Contracts).
(k) Executed copies of the Lock-Box Agreements.
(l) Opinions of (i) Sidley & Austin, special counsel to
the Transferor, the Collection Agent and the Seller, covering certain
of the matters set forth in Exhibit K hereto and certain bankuptcy
matters, in each case in form and substance acceptable to the
Administrative Agent and (ii) Xxxxxxxxx X. Xxxxx, Esq., Vice President
and General Counsel of IMC Global Inc., as to certain of the matters
set forth in Exhibit K hereto, in form and substance acceptable to the
Administrative Agent.
(m) A computer tape setting forth all Receivables and
the Outstanding Balances thereon and such other information as the
Company may reasonably request.
(n) An executed copy of the Fee Letter.
(o) The Transfer Certificate, duly executed by the
Transferor.
(p) The Company Certificate, duly executed by the
Transferor and appropriately completed.
(q) The Amendment Fee in accordance with Section
2.7(b).
(r) An Investor Report dated June 27, 1997.
(s) Such other documents as the Company shall
reasonably request.
ARTICLE V
COVENANTS
SECTION 5.1. Affirmative Covenants of Transferor. At all
times from the date hereof to the later to occur of (i) the Termination
Date or (ii) the date on which the Company's Transferred Interest shall
be equal to zero, unless the Company shall otherwise consent in
writing:
(a) Financial Reporting. The Transferor will maintain
a system of accounting established and administered in accordance with
generally accepted accounting principles, and furnish to the
Administrative Agent:
(i) Annual Reporting.
(A) Within ninety (90) days after the close of each of
the Seller's fiscal years, audited financial statements,
prepared in accordance with generally accepted accounting
principles on a consolidated and consolidating basis
(consolidating statements need not be audited by such
accountants) for the Seller and its Subsidiaries, in each
case, including balance sheets as of the end of such period,
related statements of operations, partner's or shareholder's
equity and cash flows, accompanied by an unqualified audit
report certified by independent certified public accountants,
acceptable to the Administrative Agent, prepared in
accordance with generally accepted auditing principles and
any management letter prepared by said accountants.
(B) Within ninety (90) days after the close of each of
the Transferor's fiscal years, financial statements, reviewed
by independent certified public accountants, acceptable to
the Administrative Agent, in accordance with the standards of
the American Institute of Certified Public Accountants for
the Transferor, including balance sheets as of the end of
such period, related statements of operations, partner's or
shareholder's equity and cash flows, accompanied by a review
report certified by such independent certified public
accountants.
(ii) Quarterly Reporting. Within forty-five (45)
days after the close of the first three quarterly periods of
each of the Transferor's and the Seller's fiscal years, for
(x) the Transferor and (y) for the Seller and its
Subsidiaries, in each case, consolidated and, in the case of
the Seller, consolidating unaudited balance sheets as at the
close of each such period and consolidated and consoliating
related statements of operations, partner's or shareholder's
equity and cash flows for the period from the beginning of
such fiscal year to the end of such quarter, all certified by
its chief financial officer of the Seller or the Operating
Manager, as applicable.
(iii) Compliance Certificate. Together with the
financial statements required hereunder, a compliance
certificate signed by an authorized officer of the Seller or
the Operating Manager statng that no Termination Event or
Potential Termination Event exists, or if any Termination
Event or Potential Termination Event exists, stating the
nature and status thereof and showing the computation of, and
showing compliance with, each of the financial ratios and
restrictions set forth in Section 5.3.
(iv) Partners Statements. Promptly upon the
furnishing thereof to the partners of the Seller, copies of
all financial statements so furnished.
(v) S.E.C. Filings. Promptly upon the filing
thereof, copies of all registration statements and annual,
quarterly, monthly or other regular reports which the Seller
or any subsidiary files with the Securities and Exchange
Commission.
(vi) Notice of Termination Events or Potential
Termination Events. As soon as possible and in any event
within three (3) days after the occurrence of each
Termination Event or each Potential Termination Event, a
statement of an authorized officer of the Operating Manager
setting forth details of such Termination Event or Potential
Termination Event and the action which the Transferor
proposes to take with respect thereto.
(vii) Change in Credit and Collection Policy.
Within ten (10) days after the date any material change in or
amendment to the Credit and Collection Policy is made, a copy
of the Credit and Collection Policy then in effect indicating
such change or amendment.
(viii) Credit and Collection Policy. Upon request
of the Administrative Agent, a complete copy of the Credit
and Collection Policy then in effect.
(ix) Other Information. Such other information
including non-financial information as the Administrative
Agent may from time to time reasonably request with respect
to the Seller, the Transferor or any Subsidiary of the
foregoing.
(b) Conduct of Business. The Transferor will, and will
cause the Seller and each of the Seller's Subsidiaries to, (x) carry on
and conduct its business in substantially the same manner and in
substantially the same fields of enterprise as it is presently
conducted and (y) do all things necessary to remain validly existing as
a domestic partnership, limited liability company or corporation, as
applicable, in the State of Delaware and maintain all requisite
authority to conduct its business in each jurisdiction in which its
business is conducted where the failure to maintain such authority
would have a material adverse effect on (i) the Transferor's or
Seller's business or properties, (ii) the Transferor's or Seller's
ability to perform its obligations hereunder or (iii) the
collectability of the Receivables.
(c) Compliance with Laws. The Transferor will, and
will cause the Seller and each of the Seller's Subsidiaries to, comply
with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject.
(d) Furnishing of Information and Inspection of
Records. The Transferor will and will cause the Seller to furnish to
the Company from time to time such information with respect to the
Receivables as the Company may reasonably request, including, without
limitation, listings identifying the Obligor and the Outstanding
Balance for each Receivable. The Transferor will and will cause the
Seller to at any time and from time to time during regular business
hours permit the Company, or its agents or representatives, (i) to exam
ine and make copies of and abstracts from all Records and (ii) to visit
the offices and properties of the Transferor or the Seller, as
applicable, for the purpose of examining such Records, and to discuss
matters relating to Receivables or the Transferor's or the Seller's, as
applicable, performance hereunder with any of the officers, directors,
employees or independent public accountants of the Transferor or the
Seller having knowledge of such matters.
(e) Keeping of Records and Books of Account. The
Transferor will and will cause the Seller to maintain and implement
administrative and operating procedures (including, without limitation,
an ability to recreate records evidencing Receivables in the event of
the destruction of the originals thereof), and keep and maintain, all
documents, books, records and other information reasonably necessary or
advisable for the collection of all Receivables (including, without
limitation, records adequate to permit the daily identification of each
new Receivable and all Collections of and adjustments to each existing
Receivable). The Transferor will and will cause the Seller to give the
Company notice of any material change in the administrative and
operating procedures referred to in the previous sentence.
(f) Performance and Compliance with Receivables and
Contracts. The Transferor, at its expense, will and will cause the
Seller to timely and fully perform and comply with all material
provisions, covenants and other promises required to be observed by the
Transferor or the Seller under the Contracts related to the
Receivables.
(g) Credit and Collection Policies. The Transferor
will and will cause the Seller to comply in all material respects with
the Credit and Collection Policy in regard to each Receivable and the
related Contract.
(h) Collections. The Transferor shall and shall cause
the Seller to instruct all Obligors to cause all Collections to be
deposited directly to a Lock-Box Account.
(i) Collections Received. The Transferor shall and
shall cause the Seller to, hold in trust, and deposit or mail for
deposit, immediately, but in any event not later than forty-eight (48)
hours of its receipt thereof, to a Lock-Box Account all Collections
received from time to time by the Transferor or the Seller (including
without limitation all Collections deemed to have been received by the
Transferor under Section 2.9).
(j) Sale Treatment. The Transferor shall report the
transactions contemplated by this Agreement on its financial statements
as a sale of the Transferred Interest to the Company and, to the extent
such reporting is required, shall cause the Seller to report the
transactions contemplated by the Receivables Purchase Agreement on its
financial statements as a sale of the Receivables to the Transferor.
(k) Certain Actions. Each of the Transferor and the
Seller shall conduct its business and its relationships with its
Affiliates in such a manner so as to comply with the facts and
assumptions set forth in paragraphs 1 through 17, inclusive, of Section
I of the opinion of Sidley & Austin, special counsel to the Transferor
and the Seller, dated the date hereof and addressed to the Company and
the Collateral Agent, covering certain bankruptcy matters.
(l) Separate Business. The Transferor shall at all
times (a) to the extent the Transferor's office is located in the
offices of the Seller or any Affiliate of the Seller, pay fair market
rent for its executive office space located in the offices of the
Seller or any Affiliate of the Seller, (b) have at all times an
Independent Manager who is not and has never been an employee, officer
or director of the Seller or any Affiliate of the Seller or of any
major creditor of the Seller or any Affiliate of the Seller and are
persons who are familiar and have experience with asset securitization,
(c) maintain the Transferor's books, financial statements, accounting
records and other corporate documents and records separate from those
of the Seller or any other entity, (d) not commingle the Transferor's
assets with those of the Seller or any other entity, (e) act solely in
its company name and through its own authorized manager, officers and
agents, (f) make investments directly or by brokers engaged and paid by
the Transferor or its agents (provided that if any such agent is an
Affiliate of the Transferor it shall be compensated at a fair market
rate for its services), (g) separately manage the Transferor's
liabilities from those of the Seller or any Affiliates of the Seller
and pay its own liabilities, including all administrative expenses,
from its own separate assets, except that the Seller may pay the
organizational expenses of the Transferor, and (h) pay from the
Transferor's assets all obligations and indebtedness of any kind
incurred by the Transferor. The Transferor shall abide by all company
formalities, including the maintenance of current minute books, and the
Transferor shall cause its financial statements to be prepared in
accordance with generally accepted accounting principles in a manner
that indicates the separate existence of the Transferor and its assets
and liabilities. The Transferor shall (i) pay all its liabilities,
(ii) not assume the liabilities of the Seller or any Affiliate of the
Seller, (iii) not lend funds or extend credit to the Seller or any
affiliate of the Seller except pursuant to the Receivables Purchase
Agreement in connection with the purchase of Receivables thereunder and
(iv) not guarantee the liabilities of the Seller or any Affiliates of
the Seller. The Management Committee and/or the Operating Manager of
the Transferor (as appropriate) shall make decisions with respect to
the business and daily operations of the Transferor independent of and
not dictated by any controlling entity. The Transferor shall not
engage in any business not permitted by its Certificate of Formation as
in effect on the Closing Date.
(m) Limited Liability Company Documents. The
Transferor shall only amend, alter, change or repeal Restricted
Articles as defined in its Certificate of Formation with the prior
written consent of the Administrative Agent.
SECTION 5.2. Negative Covenants of Transferor. During the
term of this Agreement, unless the Company shall otherwise consent in
writing:
(a) No Sales, Liens, Etc. Except as otherwise provided
herein, the Transferor will not and will not permit the Seller to sell,
assign (by operation of law or otherwise) or otherwise dispose of, or
create or suffer to exist any Adverse Claim upon (or the filing of any
financing statement) or with respect to, any inventory or goods, the
sale of which will give rise to a Receivable, or any Receivable or
related Contract, or upon or with respect to any account which
concentrates in a Lock-Box Bank to which any Collections of any
Receivable are sent, or assign any right to receive income in respect
thereof.
(b) No Extension or Amendment of Receivables. Except
as otherwise permitted in Section 6.2, the Transferor will not and will
not permit the Seller to extend, amend or otherwise modify the terms of
any Receivable, or amend, modify or waive any term or condition of any
Contract related thereto.
(c) No Change in Business or Credit and Collection
Policy. The Transferor will not and will not permit the Seller to make
any material change in the character of its business or in the Credit
and Collection Policy, which change would, in either case, impair the
collectibility of any Receivable.
(d) No Mergers, Etc. The Transferor will not and will
not permit the Seller to (i) consolidate or merge with or into any
other Person, or (ii) sell, lease or transfer all or substantially all
of its assets to any other person.
(e) Change in Payment Instructions to Obligors. The
Transferor will not and will not permit the Seller to, add or terminate
any bank as a Lock-Box Bank or any account as a Lock-Box Account to or
from those listed in Exhibit C hereto or make any change in its
instructions to Obligors regarding payments to be made to any Lock-Box
Account, unless (i) such instructions are to deposit such payments to
another existing Lock-Box Account or (ii) the Administrative Agent
shall have received written notice of such addition, termination or
change at least 30 days prior thereto and the Administrative Agent
shall have received a Lock-Box Agreement executed by each new Lock-Box
Bank or an existing Lock-Box Bank with respect to each new Lock-Box
Account, as applicable.
(f) Deposits to Lock-Box Accounts. The Transferor will
not and will not permit the Seller, to, deposit or otherwise credit, or
cause or permit to be so deposited or credited, to any Lock-Box Account
cash or cash proceeds other than Collections of Receivables.
(g) Change of Name, Etc. The Transferor will not and
will not permit the Seller to, change its name, identity or structure
or its chief executive office, unless at least 10 days prior to the
effective date of any such change the Transferor delivers to the
Collateral Agent (i) UCC financing statements, executed by the
Transferor, necessary to reflect such change and to continue the
perfection of the Company's ownership interests or security interests
in the Receivables and (ii) the Lock-Box Agreements and, in the case of
the Lock-Box Agreements, the Lock-Box Banks necessary to reflect such
change and to continue to enable the Collateral Agent to exercise its
rights contained in Section 2.8.
(h) Intentionally omitted.
(i) Amendment to Receivables Purchase Agreement. The
Transferor will not, and will not permit the Seller to, amend, modify,
or supplement the Receivables Purchase Agreement or waive any provision
thereof, in each case except with the prior written consent of the
Administrative Agent; nor shall the Transferor take, or permit the
Seller to take, any other action under the Receivables Purchase
Agreement that shall have a material adverse affect on the Company or
which is inconsistent with the terms of this Agreement.
(j) Other Debt. Except as provided for herein, the
Transferor will not create, incur, assume or suffer to exist any
indebtedness whether current or funded, or any other liability other
than (i) indebtedness of the Transferor representing fees, expenses and
indemnities arising hereunder or under the Receivables Purchase
Agreement for the purchase price of the Receivables under the
Receivables Purchase Agreement, including, without limitation, the
Subordinated Note and (ii) other indebtedness incurred in the ordinary
course of its business in an amount not to exceed $100,000 at any time
outstanding.
(k) Payment to the Seller. With respect to any
Receivable sold by the Seller to the Transferor, the Transferor shall,
and shall cause the Seller to, effect such sale under, and pursuant to
the terms of, the Receivables Purchase Agreement, including, without
limitation, the payment by the Transferor (either in cash or by
increase in the amount of the Subordinated Note) to the Seller of an
amount equal to the purchase price for such Receivable as required by
the terms of the Receivables Purchase Agreement.
SECTION 5.3. Minimum Net Worth of the Transferor. During
the term of this Agreement, unless the Company shall otherwise consent
in writing:
(a) On the Closing Date, the Transferor shall have a
Net Worth of at least 10% of the Outstanding Balance of Eligible
Receivables.
(b) The Transferor shall make no distributions of
dividends or returns of capital except to the extent that, after giving
effect thereto, the Transferor shall have a Net Worth at least equal to
the greater of (i) 10% of the aggregate Outstanding Balance of all
Eligible Receivables shown on the Investor Report delivered with
respect to the immediately preceding calendar month period or (ii)
$4,000,000.
SECTION 5.4. Covenants of the Collection Agent. The
Collection Agent covenants to the Company and the Transferor that:
(a) Compliance with Requirements of Law. The
Collection Agent shall duly satisfy its obligations in all material
respects in its part to be fulfilled under or in connection with each
Receivable and the related Contract, will maintain in effect all
material qualifications required under Requirements of Law in order to
service properly each Receivable and the related Contract and will
comply in all material respects with all other Requirements of Law in
connection with servicing each Receivable and the related Contract the
failure to comply with which would have a material adverse effect on
the Company.
(b) No Rescission or Cancellation. The Collection
Agent shall not permit any rescission or cancellation of an Eligible
Receivable except as ordered by a court of competent jurisdiction or
other governmental authority or in the ordinary course of its business
and in accordance with the Credit and Collection Policy.
(c) Protection of Company's Rights. Except as
otherwise permitted by this Agreement, the Collection Agent shall take
no action, nor omit to take any action, which would impair the rights
of the Company in any Receivable or the related Contract.
(d) All Consents Required. All approvals,
authorizations, consents, orders, or other actions of any Person or of
any governmental body or official required in connection with the
execution and delivery by the Collection Agent of this Agreement, the
performance by the Collection Agent of the transactions contemplated by
this Agreement and the fulfillment by the Collection Agent of the terms
of this Agreement, have been obtained.
(e) Custodian. The Collection Agent will, at its own
cost and expense, (i) maintain the books and records with respect to
the Accounts and the Receivables and copies of all documents relating
to each Account as custodian for the Company and (ii) clearly and
unambiguously xxxx such books and records that indicate the Receivables
have been sold to the Transferor under the Receivables Purchase
Agreement and to the Company, pursuant to this Agreement.
(f) No Extension or Amendment of Receivables. Except
as otherwise permitted in Sections 5.2 and 6.2 of this Agreement, the
Collection Agent will not extend, amend or otherwise modify the terms
of any Eligible Receivable, or amend, modify or waive any term or
condition of any Contract related thereto except as otherwise allowed
by the Credit and Collection Policy.
(g) No Change in Business or Credit and Collection
Policy. The Collection Agent will not make any change in the character
of its business or in the Credit and Collection Policy which would in
either case impair the collectibility of any material portion of the
Receivables or otherwise result in a material adverse effect on the
collectibility of the Receivables.
(h) No Mergers, Etc. The Collection Agent will not (i)
consolidate or merge with or into any other Person (except for a merger
with or into any wholly-owned subsidiary, where the Collection Agent
shall be the surviving entity), or (ii) sell, lease or transfer all or
substantially all of its assets to any other Person.
(i) Change in Payment Instructions to Obligors. The
Collection Agent will not make any change in the instructions to
Obligors regarding payments to be made to any Lock-Box Account, unless
(i) such instructions are to deposit such payments to another existing
Lock-Box Account or (ii) the Collection Agent shall have received
written notice of such change at least 30 days prior thereto and the
Collection Agent shall have received a Lock-Box Agreement executed by
each new Lock-Box Bank or an existing Lock-Box Bank with respect to
each new Lock-Box Account, as applicable.
(j) Deposits to Lock-Box Accounts. The Collection
Agent will not deposit or otherwise credit, or cause or permit to be so
deposited or credited, to any Lock-Box Account cash or cash proceeds
other than Collection of Receivables.
SECTION 5.5. Covenants of the Seller. The Seller hereby
covenants to the Transferor, the Company and the Collection Agent that:
(a) Modification Regarding Distributable Cash. The
Seller will not amend or otherwise modify the definition of
"Distributable Cash" or the provisions relating to thereto in its
partnership agreement (including without limitation Section 5.07
thereof) without the prior written consent of the Company.
(b) Fixed Charge Coverage Ratio. The Seller will keep
and maintain, for a period of four consecutive fiscal quarters ending
as of each fiscal quarter, a ratio of EBITDA minus Capital Expenditures
to the sum of (i) cash interest payable on, and amortization of debt
discount in respect of, all Indebtedness during such period plus (ii)
regularly scheduled principal amounts of all Indebtedness (including
current obligations owing under Capitalized Leases) payable during the
period of the prior four consecutive fiscal quarters beginning on the
day after such date of determination, of not less than 2.0 to 1.0.
(Capitalized terms used in this Section 5.5(b) which are not defined in
Article I shall have the meanings assigned thereto in Exhibit G.)
ARTICLE VI
ADMINISTRATION AND COLLECTIONS
SECTION 6.1. Appointment of Collection Agent. The ser
vicing, administering and collection of the Receivables shall be
conducted by such Person (the "Collection Agent") so designated from
time to time in accordance with this Section 6.1. Until the Company
gives notice to the Transferor and IMC-AGRICO COMPANY of the
designation of a new Collection Agent pursuant to the succeeding
sentence, IMC-AGRICO COMPANY is hereby designated as, and hereby agrees
to perform the duties and obligations of, the Collection Agent pursuant
to the terms hereof. The Company may, upon the occurrence of a
Colletion Agent default or any Termination Event designate as
Collection Agent any Person (including itself) to succeed IMC-AGRICO
COMPANY or any successor Collection Agent, on the condition in each
case that any such Person so designated shall agree to perform the
duties and obligations of the Collection Agent pursuant to the terms
hereof. The Company may notify any Obligor of the Transferred
Interest.
SECTION 6.2. Duties of Collection Agent.
(a) The Collection Agent shall take or cause to be
taken all such action as may be necessary or advisable to collect each
Receivable from time to time, all in accordance with applicable laws,
rules and regulations, with reasonable care and diligence, and in
accordance with the Credit and Collection Policy. Each of the
Transferor and the Company hereby appoints as its agent the Collection
Agent, from time to time designated pursuant to Section 6.1, to enforce
its respective rights and interests in and under the Receivables, the
Related Security and the Contracts. To the extent permitted by
applicable law, each of the Transferor and the Seller (to the extent
not then acting as Collection Agent hereunder) hereby grants to any
Collection Agent appointed hereunder an irrevocable power of attorney
to take any and all steps in the Transferor's and/or the Seller's name
and on behalf of the Transferor or the Seller necessary or desirable,
in the reasonable determination of the Collection Agent, to collect all
amounts due under any and all Receivables, including, without
limitation, endorsing the Transferor's and/or the Seller's name on
checks and other instruments representing Collections and enforcing
such Receivables and the related Contracts. The Collection Agent shall
set aside for the account of the Transferor and the Company their
respective allocable shares of the Collections of Receivables in
accordance with Sections 2.5 and 2.6. Neither the Collection Agent nor
the Transferor may extend the maturity of Receivables except as
provided in the next sentence. So long as no Termination Event shall
have occurred and be continuing, the Transferor or the Collection Agent
may, in accordance with the Credit and Collection Policy, adjust the
Outstanding Balance of Receivables and may extend the maturity of any
Defaulted Receivable in each case as the Transferor or the Collection
Agent may determine to be appropriate to maximize Collections thereof;
provided, however, that such adjustment shall not alter the amount of
such Receivable considered as a Delinquent Receivable or a Defaulted
Receivable. The Transferor and/or the Collection Agent shall also be
authorized to adjust the Outstanding Balance of any Receivable to
reflect reductions of the type described in the first sentence of
Section 2.9(a). The Transferor shall deliver to the Collection Agent
and the Collection Agent shall hold in trust for the Transferor and the
Company in accordance with their respective interests, all Records
which evidence or relate to Receivables or Related Security.
Notwithstanding anything to the contrary contained herein, the Company
shall have the absolute and unlimited right to direct the Collection
Agent (whether the Collection Agent is the Transferor or any other
Person) to commence or settle any legal action to enforce collection of
any Receivable or to foreclose upon or repossess any Related Security.
(b) The Collection Agent shall as soon as practicable
following receipt thereof, turn over to the Transferor any collections
of any indebtedness of any Person which is not on account of a Receiv
able. If the Collection Agent is not the Transferor or the Seller or
an Affiliate of the Transferor or the Seller, the Collection Agent, by
giving three Business Days' prior written notice to the Company, may
revise the percentage used to calculate the Servicing Fee so long as
the revised percentage will not result in a Servicing Fee that exceeds
110% of the reasonable and appropriate out-of-pocket costs and expenses
of such Collection Agent incurred in connection with the performance of
its obligations hereunder as documented to the reasonable satisfaction
of the Company. The Collection Agent, if other than the Transferor or
the Seller or an Affiliate of the Transferor the Seller, shall as soon
as practicable upon demand, deliver to the Seller all Records in its
possession which evidence or relate to indebtedness of an Obligor which
is not a Receivable.
(c) On or before 90 days after the end of each fiscal
year of the Collection Agent, beginning with the fiscal year ending
June 30, 1997, the Collection Agent shall cause a firm of independent
public accountants (who may also render other services to the Colletion
Agent, the Transferor, the Seller or any Affiliate of any of the
foregoing), the Business Credit Field Exam Group of NationsBank, N.A.
or such other Person as may be approved by the Administrative Agent to
furnish a report to the Company to the effect that they have (i)
compared the information contained in the Investor Reports delivered
during such fiscal year with the information contained in the Contracts
and the Collection Agent's records and computer systems for such
period, and that, on the basis of such examination and comparison, such
firm is of the opinion that the information contained in the Investor
Reports reconciles with the information contained in the Contracts and
the Collection Agent's records and computer system and that the
servicing of the Receivables has been conducted in compliance with this
Agreement, and (ii) verified that the Receivables treated by the
Collection Agent as Eligible Receivables in fact satisfied the require
ments of the definition thereof contained herein, except, in each case
for (a) such exceptions as such firm shall believe to be immaterial
(which exceptions need not be enumerated) and (b) such other exceptions
as shall be set forth in such statement.
(d) Notwithstanding anything to the contrary contained
in this Article VI, the Collection Agent, if not the Transferor, the
Seller or any Affiliate of the Transferor or the Seller shall have no
obligation to collect, enforce or take any other action described in
this Article VI with respect to any Receivable that is not included in
the Transferred Interest other than to deliver to the Transferor or
Seller, as applicable, the Collections and documents with respect to
any such Receivable as described in Section 6.2(b).
SECTION 6.3. Rights After Designation of New Collection
Agent. At any time following the designaion of a Collection Agent
(other than the Transferor, the Seller or any Affiliate of the
Transferor or the Seller) pursuant to Section 6.1:
(i) The Company may direct that payment of all
amounts payable under any Receivable be made directly to the
Company or its designee.
(ii) The Transferor shall, at the Company's
request and at the Transferor's expense, give notice of the
Company's ownership of Receivables to each Obligor and direct
that payments be made directly to the Company or its
designee.
(iii) The Transferor shall, at the Company's
request, (A) assemble all of the Records, and shall make the
same available to the Company at a place selected by the
Company or its designee, and (B) segregate all cash, checks
and other instruments received by it from time to time
constituting Collections of Receivables in a manner
acceptable to the Company and shall, promptly upon receipt,
remit all such cash, checks and instruments, duly endorsed or
with duly executed instruments of transfer, to the Company or
its designee.
(iv) The Transferor and the Seller hereby
authorize the Company to take any and all steps in the
Transferor's or Seller's name and on behalf of the Transferor
and the Seller necessary or desirable, in the determination
of the Company, to collect all amounts due under any and all
Receivables, including, without limitation, endorsing the
Transferor's or Seller's name on checks and other instruments
representing Collections and enforcing such Receivables and
the related Contracts.
SECTION 6.4. Responsibilities of the Transferor and the
Seller. Anything herein to the contrary notwithstanding, the
Transferor shall and/or shall cause the Seller to (i) perform all of
the Seller's obligations under the Contracts related to the Receivables
to the same extent as if interests in such Receivables had not been
sold hereunder and under the Receivables Purchase Agreement, and the
exercise by the Company of its rights hereunder or the Receivables
Purchase Agreement shall not relieve the Transferor or the Seller from
such obligations and (ii) pay when due any taxes, including without
limitation, any sales taxes payable in connection with the Receivables
and their creation and satisfaction. The Company shall not have any
obligation or liability with respect to any Receivable or related
Contracts, nor shall it be obligated to perform any of the obligations
of the Transferor or the Seller thereunder.
ARTICLE VIII
TERMINATION EVENTS
SECTION 7.1. Termination Events. The occurrence of any one
or more of the following events shall constitute a Termination Event:
(a) (i) the Collection Agent shall fail to perform or
observe any term, covenant, or agreement under this Agreement or other
related agreements and such failure shall remain unremedied for 10 days
after the earlier of (x) the date on which the Company notifies the
Collection Agent thereof and (y) the date the Collection Agent knew of
any such breach, or (ii) either the Collection Agent or the Transferor
shall fail to make any payment or deposit to be made by it hereunder
when due or the Collection Agent shall fail to observe or perform any
term, covenant or agreement on the Collection Agent's part to be
performed under Section 2.8(b) hereof, or
(b) any representation, warranty, certification or
statement made by the Transferor in this Agreement or any other
Transaction Document to which it is a party or in any other document
delivered pursuant hereto or thereto shall prove to have been incorrect
in any material respect when made or deemed made; or
(c) the Transferor or the Collection Agent shall de
fault in the performance of any payment or undertaking (other than
those covered by clause (a) above) (i) to be performed or observed
under Sections 5.1(a)(vii), 5.1(b)(x), 5.1(f), 5.1(g), 5.1(h), 5.1(k),
5.2(a), (c), (d), (e), (g)(ii), (h) or (i) or (ii) to be performed or
observed under any other provision hereof and such default in the case
of this clause (ii) shall continue for ten (10) days after the earlier
of (x) the date on which the Company notifies the Transferor thereof
and (y) the date the Transferor knew of any such default; or
(d) any Indebtedness in excess of $10,000,000 in the
aggregate for the Transferor or the Seller shall be declared due and
payable, or required to be prepaid (other than by a regularly scheduled
payment) prior to the scheduled date of maturity thereof; or
(e) any Event of Bankruptcy shall occur with respect to
(i) the Transferor or the Seller, (ii) any Subsidiary of the Seller; or
(f) the Company shall, for any reason, fail to have a
valid and perfected first priority security interest in the
Receivables; or
(g) the Seller shall enter into any transaction or
merger whereby it is not the surviving entity; or
(h) there shall have occurred any event which
materially affects the Collection Agent's ability either to collect the
Receivables or to perform under this Agreement; or
(i) the Liquidity Provider or the Credit Support
Provider shall have given notice that an event of default has occurred
and is continuing under its agreements with the Company; or
(j) Intentionally Omitted; or
(k) the Percentage Factor exceeds the Maximum
Percentage Factor unless the Transferor reduces the Net Investment
within two Business Days, bringing the Percentage Factor to less than
or equal to 95% or the Percentage Factor equals or exceeds 100% at any
time; or
(l) the Dilution Ratio averaged for any three
consecutive months exceeds 3.50%; or
(m) the Loss to Liquidation Ratio averaged for any
three consecutive months exceeds 1.25%; or
(n) the Delinquency Ratio averaged for any three
consecutive months exceeds 5.0%; or
(o) Any breach of any of the covenants of the Seller
set forth in Section 5.5 shall occur; or
(p) the Receivables Purchase Agreement shall have
terminated.
SECTION 7.2. Termination. (a) If a Termination Event
occurs, the Company may, by notice to the Transferor, declare all
outstanding Tranche Periods to be ended and designate the Base Rate
plus 2% to be applicable to the Net Investment.
(b) In addition, if any Termination Event occurs the
Company and the Collateral Agent shall have all of the rights and
remedies provided to a secured creditor or a purchaser of accounts
under the UCC by applicable law in respect thereto.
ARTICLE VIII
INDEMNIFICATION; EXPENSES; RELATED MATTERS
SECTION 8.1. Indemnities by the Transferor. Without
limiting any other rights which the Company may have hereunder or under
applicable law, the Transferor hereby agrees to indemnify the Company,
the Liquidity Provider and the Credit Support Provider and any
permitted assigns and their respective officers, directors and
employees (collectively, "Indemnified Parties") from and against any
and all damages, losses, claims, liabilities, costs and expenses,
including reasonable attorneys' fees (which such attorneys may be
employees of the Liquidity Provider, the Credit Support Provider or the
Company) and disbursements (all of the foregoing being collectively
referred to as "Indemnified Amounts") awarded against or incurred by
any of them arising out of or as a result of this Agreement, the other
Transaction Documents, the ownership, either directly or indirectly, by
the Company of the Transferred Interest or any of the other
transactions contemplated hereby or thereby, excluding, however, (i)
Indemnified Amounts to the extent resulting from gross negligence or
willful misconduct on the part of an Indemnified Party or (ii) recourse
(except as otherwise specifically provided in this Agreement) for
uncollectible Receivables or (iii) income or franchise taxes payable by
any Indemnified Party on amounts received under this Agreement.
Without limiting the generality of the foregoing, the Transferor shall
indemnify each Indemnified Party for Indemnified Amounts relating to or
resulting from:
(i) any representation or warranty made by the
Transferor or the Seller (including, in its capacity as the
Collection Agent) (or any officers of the Transfeor or the
Seller (including, in its capacity as the Collection Agent))
under or in connection with this Agreement, the Receivables
Purchase Agreement, any of the other Transaction Documents,
any Investor Report or any other information or report
delivered by the Transferor or the Collection Agent pursuant
hereto, which shall have been false or incorrect in any
material respect when made or deemed made;
(ii) the failure by the Transferor or the Seller
(including, in its capacity as the Collection Agent) to
comply with any applicable law, rule or regulation with
respect to any Receivable or the related Contract, or the
nonconformity of any Receivable or the related Contract with
any such applicable law, rule or regulation;
(iii) the failure to vest and maintain vested in
the Company an undivided percentage ownership interest, to
the extent of the Transferred Interest, in the Receivables
included in the Transferred Interest, free and clear of any
Adverse Claim;
(iv) the failure to file, or any delay in filing,
financing statements, continuation statements, or other simi
lar instruments or documents under the UCC of any applicable
jurisdiction or other applicable laws with respect to any
Receivable included in the Transferred Interest;
(v) any dispute, claim, offset or defense (other
than discharge in bankruptcy) of the Obligor to the payment
of any Receivable included in the Transferred Interest
(including, without limitation, a defense based on such
Receivable or the related Contract not being the legal, valid
and binding obligation of such Obligor enforceable against it
in accordance with its terms), or any other claim resulting
from the sale of merchandise or services related to such
Receivable or the furnishing or failure to furnish such
merchandise or services;
(vi) any failure of the Seller, as Collection
Agent or otherwise, to perform its duties or obligations in
accordance with the provisions of Article VI; or
(vii) any products liability claim or personal
injury or property damage suit or other similar or related
claim or action of whatever sort arising out of or in
connection with merchandise or services which are the subject
of any Receivable;
provided, however, that if the Company enters into agreements for the
purchase of interests in receivables from one or more Other
Transferors, the Company shall allocate such Indemnified Amounts which
are in connection with the Liquidity Provider Agreement, the Credit
Support Agreement or the credit support furnished by the Credit Support
Provider to the Transferor and each Other Transferor; and provided,
further, that if such Indemnified Amounts are attributable to the
Transferor or the Seller (including in its capacity as the Collection
Agent) and not attributable to any Other Transferor, the Transferor
shall be solely liable for such Indemnified Amounts or if such
Indemnified Amounts are attributable to Other Transferors and not
attributable to the Transferor or the Seller (including in its capacity
as the Collection Agent), such Other Transferors shall be solely liable
for such Indemnified Amounts.
SECTION 8.2. Indemnity for Taxes, Reserves and Expenses.
(a) If after the date hereof, the adoption of any Law or bank
regulatory guideline or any amendment or change in the interpretation
of any existing or future Law or bank regulatory guideline by any
Official Body charged with the administration, interpretation or
application thereof (and, in the case of a change in the interpretation
of any such Law or regulatory guideline, such change has been generally
accepted by institutions to which such Law or regulatory guideline is
applicable), or the compliance with any directive of any Official Body
(in the case of any bank regulatory guideline, whether or not having
the force of Law):
(i) shall subject any Indemnified Party to any
tax, duty or other charge with respect to this Agreement, the
other Transaction Documents, the ownership, maintenance or
financing of the Transferred Interest, the Receivables or
payments of amounts due hereunder, or shall change the basis
of taxation of payments to any Indemnified Party of amounts
payable in respect of this Agreement, the other Transaction
Documents, the ownership, maintenance or financing of the
Transferred Interest, the Receivables or payments of amounts
due hereunder or its obligation to advance funds herewith
under the Liquidity Provider Agreement or the credit support
furnished by the Credit Support Provider or otherwise in
respect of this Agreement, other Transaction Documents, the
ownership, maintenance or financing of the Transferred
Interest or the Receivables (except for changes in the rate
of general corporate, franchise, net income or other income
tax imposed on such Indemnified Party by the jurisdiction in
which such Indemnified Party's principal executive office is
located);
(ii) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (including,
without limitation, any such requirement imposed by the Board
of Governors of the Federal Reserve System) against assets
of, deposits with or for the account of, or credit extended
by, any Indemnified Party or shall impose on any Indemnified
Party or on the United States market for certificates of
deposit or the London interbank market any other condition
affecting this Agreement, the other Transaction Documents,
the ownership, maintenance or financing of the Transferred
Interest, the Receivables or payments of amounts due
hereunder or its obligation to advance funds under the
Liquidity Provider Agreement or the credit support provided
by the Credit Support Provider or otherwise in respect of
this Agreement, the other Transaction Documents, the
ownership, maintenance or financing of the Transferred
Interest or the Receivables; or
(iii) imposes upon any Indemnified Party any other
expense (including, without limitation, reasonable attorneys'
fees and expenses, and expenses of litigation or preparation
therefor in contesting any of the foregoing) with respect to
this Agreement, the other Transaction Documents, the
ownership, maintenance or financing of the Transferred
Interest, the Receivables or payments of amounts due
hereunder or its obligation to advance funds hereunder, under
the Liquidity Provider Agreement or the credit support
furnished by the Credit Support Provider or otherwise in
respect of this Agreement, the other Transaction Documents,
the ownership, maintenance or financing of the Transferred
Interests or the Receivables,
and the result of any of the foregoing is to increase the cost to such
Indemnified Party with respect to this Agreement, the other Transaction
Documents, the ownership, maintenance or financing of the Transferred
Interest, the Receivables, the obligations hereunder, the funding of
any purchases hereunder, the Liquidity Provider Agreement or the Credit
Support Agreement, by an amount deemed by such Indemnified Party to be
material, then, within ten (10) days after demand by the Company, the
Transferor shall pay to the Company such additional amount or amounts
as will compensate such Indemnified Party for such increased cost or
reduction; provided, however, that such demand shall not seek
additional amounts incurred earlier than the ninetieth day immediately
succeeding the date of such demand.
(b) If any Indemnified Party shall have determined that
after the date hereof, the adoption of any applicable Law or bank
regulatory guideline regarding capital adequacy, or any change therein,
or any change in the interpretation thereof by any Official Body (which
change has been generally accepted by institutions to which such Law or
regulatory guideline is applicable), or any directive regarding capital
adequacy (in the case of any bank regulatory guideline, whether or not
having the force of law) of any such Official Body, has or would have
the effect of reducing the rate of return on capital of such
Indemnified Party (or its parent) as a consequence of such Indemnified
Party's obligations hereunder or with respect hereto to a level below
that which such Indemnified Party (or its parent) could have achieved
but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an
amount deemed by such Indemnified Party to be material, then from time
to time, within ten (10) days after demand by the Company, the
Transferor shall pay to the Company such additional amount or amounts
as will compensate such Indemnified Party (or its parent) for such
reduction; provided, however, that such demand shall not seek
additional amounts incurred earlier than the ninetieth day immediately
succeeding the date of such demand.
(c) The Company will promptly notify the Transferor of
any event of which it has knowledge, occurring after the date hereof,
which will entitle an Indemnified Party to compensation pursuant to
this Section. A notice by the Company claiming compensation under this
Section and setting forth the additional amount or amounts to be paid
to it hereunder shall be conclusive in the absence of manifest error.
In determining such amount, the Company may use any reasonable
averaging and attributing methods.
(d) Anything in this Section 8.2 to the contrary
notwithstanding, if the Company enters into agreements for the
acquisition of interests in receivables from one or more Other
Transferors, the Company shall allocate the liability for any amounts
under this Section 8.2 ("Section 8.2 Costs") to the Transferor and each
Other Transferor; and provided, further, that if such Section 8.2 Costs
are attributable to the Transferor or the Seller (in its capacity as
the Collection Agent) and not attributable to any Other Transferor, the
Transferor shall be solely liable for such Section 8.2 Costs or if such
Section 8.2 Costs are attributable to Other Transferors and not
attributable to the Transferor or the Seller (in its capacity as the
Collection Agent), such Other Transferors shall be solely liable for
such Section 8.2 Costs.
SECTION 8.3 Other Costs, Expenses and Related Matters. (a)
The Transferor agrees, upon receipt of a written invoice, to pay or
cause to be paid, and to save the Company and the Administrative Agent
harmless against liability for the payment of, all reasonable out-of-
pocket expenses (including, without limitation, reasonable attorneys',
accountants' and other third parties' fees and expenses, any filing
fees and expenses incurred by officers or employees of the Company)
incurred by or on behalf of the Company and the Administrative Agent
(i) in connection with the negotiation, execution, delivery and
preparation of this Agreement and any documents or instruments
delivered pursuant hereto and the transactions contemplated hereby
(including, without limitation, the perfection or protection of the
Transferred Interest) and (ii) from time to time (a) relating to any
amendments, waivers or consents under this Agreement, (b) arising in
connection with the Company's or its agent's enforcement or
preservation of rights (including, without limitation, the perfection
and protection of the Transferred Interest under this Agreement), or
(c) arising in connection with any audit, dispute, disagreement,
litigation or preparation for litigation involving this Agreement (all
of such amounts, collectively, "Transaction Costs").
(b) Transferor shall pay the Company on demand any
Early Collection Fee due on account of the reduction of a Tranche on a
day prior to the last day of its Tranche Period.
SECTION 8.4. Reconveyance Under Certain Circumstances.
Transferor agrees to accept the reconveyance from the Company of the
Transferred Interest if the Company notifies Transferor of a material
breach of any representation or warranty made or deemed made pursuant
to Article III of this Agreement and such breach shall not be cured
within 15 days (or, in the case of the representations and warranties
in Sections 3.1(d) and 3.1(j), 3 days) of such notice. The
reconveyance price shall be paid by the Transferor to the Company in
immediately available funds on such 15th day (or 3rd day, if
applicable) in an amount equal to the Aggregate Unpaids.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Term of. This Agreement shall terminate fol
lowing the Termination Date when the Net Investment has been reduced to
zero, all accrued Discount has been paid in full and all other
Aggregate Unpaids have been paid in full; provided, however, that (i)
the rights and remedies of the Company with respect to any
representation and warranty made or deemed to be made by Transferor or
the Collection Agent pursuant to this Agreement, (ii) the
indemnification and payment provisions of Article VIII, and (iii) the
agreement set forth in Section 9.9, shall be continuing and shall
survive any termination of this Agreement.
SECTION 9.2. Waivers; Amendments. No failure or delay on
the part of the Company in exercising any power, right or remedy under
this Agreement shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power, right or remedy preclude any
other further exercise thereof or the exercise of any other power,
right or remedy. The rights and remedies herein provided shall be
cumulative and nonexclusive of any rights or remedies provided by law.
Any provision of this Agreement may be amended if, but only if, such
amendment is in writing and is signed by the Transferor and the
Company.
SECTION 9.3. Notices. Except as provided below, all
communications and notices provided for hereunder shall be in writing
(including bank wire, telex, telecopy or electronic facsimile
transmission or similar writing) and shall be given to the recipient at
its address or telecopy number set forth below or at such other address
or telecopy number as such party may hereafter specify for the purposes
of notice to such party. Each such notice or other communication shall
be effective (i) if given by telecopy, when such telecopy is
transmitted to the telecopy number specified in this Section and
confirmation is received, (ii) if given by mail 3 Business Days
following such posting, or (iii) if given by any other means, when
received at the address specified in this Section. However, anything
in this Agreement to the contrary notwithstanding, the Transferor
hereby authorizes the Company to effect Transfers, Tranche Period and
Tranche Rate selections based on telephonic notices made by any Person
which the Company in good faith believes to be acting on behalf of the
Transferor. The Transferor agrees to deliver promptly to the Company a
written confirmation of each telephonic notice signed by an authorized
representative of Transferor. However, the absence of such
confirmation shall not affect the validity of such notice. If the
written confirmation differs in any material respect from the action
taken by the Company, the records of the Company shall govern absent
manifest error.
If to the Company:
Enterprise Funding Corporation
c/o Merrill Xxxxx Money Markets Inc.
World Financial Center--South Tower
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(with a copy to the Administrative Agent)
If to the Transferor:
IMC AGRICO RECEIVABLES COMPANY L.L.C.
0000 Xxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxxx, XX 00000
Telephone:
Telecopy:
Attention:
Payment Information:
NationsBank, N.A.
ABA 000000000
Account 65595
Reference IMC-Agrico Receivables
Company L.L.C.
If to the Collection Agent or Seller:
IMC-AGRICO COMPANY
0000 Xxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Vice President-Finance
If to the Collateral Agent or the Administrative Agent:
NationsBank, N.A.
NationsBank Corporate Center
NC1-007-10-01
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx--
Investment Banking
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SECTION 9.4. Governing Law; Submission to Jurisdiction;
Integration.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING 5-1401 OF
THE GENERAL OBLIGATIONS LAW BUT OTHERWISE WITHOUT GIVING EFFECT TO
CONFLICTS OF LAWS PRINCIPLES AND THE PERFECTION AND THE EFFECT OF
PERFECTION OR NONPERFECTION OF ANY "SECURITY INTEREST" (AS DEFINED IN
THE UCC AS IN EFFECT IN THE STATE OF NEW YORK) GRANTED HEREUNDER SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS. THE TRANSFEROR
HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW
YORK STATE COURT SITTING IN THE CITY OF NEW YORK FOR PURPOSES OF ALL
LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. The Transferor hereby irrevocably
waives, to the fullest extent it may effectively do so, any objection
which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient
forum. Nothing in this Section 9.4 shall affect the right of the
Company to bring any action or proceeding against the Transferor or its
property in the courts of other jurisdictions.
(b) This Agreement contains the final and complete
integration of all prior expressions by the parties hereto with respect
to the subject matter hereof and shall constitute the entire Agreement
among the parties hereto with respect to the subject matter hereof
superseding all prior oral or written understandings.
SECTION 9.5. Severability; Counterpart. This Agreement may
be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which when taken together shall
constitute one and the same Agreement. Any provisions of this
Agreement which are prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 9.6. Successors and Assigns.
(e) This Agreement shall be binding on the parties
hereto and their respective successors and assigns; provided, however,
that neither the Transferor nor the Seller may assign any of its rights
or delegate any of its duties hereunder or under the Receivables
Purchase Agreement or under any of the other Transaction Documents to
which it is a party without the prior written consent of the Company.
No provision of this Agreement shall in any manner restrict the ability
of the Company to assign, participate, grant security interests in, or
otherwise transfer any portion of the Transferred Interest.
(f) Each of the Transferor and the Seller hereby agrees
and consents to the assignment by the Company from time to time of all
or any part of its rights under, interest in and title to this
Agreement and the Transferred Interest to any Liquidity Provider. In
addition, the Transferor hereby agrees and consents to the complete
assignment by the Company of all of its rights under, interest in and
title to this Agreement and the Transferred Interest to the Collateral
Agent.
SECTION 9.7. Waiver of Confidentiality. Each of the
Transferor and the Seller hereby consents to the disclosure of any non-
public information with respect to it received by the Company or the
Administrative Agent (i) to any nationally recognized rating agency
rating the Company's commercial paper provided such rating agencies are
informed of the highly confidential nature of such information, (ii) to
any of the Company, the Administrative Agent, the Liquidity Provider,
the Credit Support Provider or any placement agent for the Company's
Commercial Paper in relation to this Agreement, provided any such
Person agrees to hold such information confidential, or any of such
Person's auditors, attorneys or financial advisors provided such
parties are informed of the highly confidential nature of such
information, (iii) as otherwise required by applicable law or order of
a court of competent jurisdiction or as requested by any regulatory
authority having jurisdiction over the Company or the Administrative
Agent or (iv) as requested by the Liquidity Provider, the Credit Sup
port Provider or any placement agent for the Company's Commercial Paper
solely as a result of a requirement of applicable law or order of a
court of competent jurisdiction or solely as a result of a request by
any regulatory authority having jurisdiction over any such Person.
Notwithstanding the foregoing, the Company shall be permitted to
disclose portfolio data regarding the Receivables to holders (and
prospective holders) of its Commercial Paper provided that such
information does not contain the name of the Transferor, the Seller or
the Collection Agent.
SECTION 9.8. Confidentiality Agreement. Each of the
Transferor, the Collection Agent and the Seller hereby agrees that it
will not disclose the contents of this Agreement or any other
proprietary or confidential information of the Company, the Collateral
Agent, the Administrative Agent, the Liquidity Provider or the Credit
Support Provider to any other Person except (i) their auditors and
attorneys or financial advisors (other than any commercial bank) who
are in confidential relationships with the Transferor, the Collection
Agent or the Seller and to any affiliates of the Transferor, the
Collection Agent or the Seller and/or the Buyer and any nationally
recognized rating agency, provided such auditors, attorneys, financial
advisors or rating agencies are informed of the highly confidential
nature of such information or (ii) as otherwise required by applicable
law or order of a court of competent jurisdiction or as requested by
any regulatory authority having jurisdiction over the Transferor,
Collection Agent or Seller.
SECTION 9.9. No Bankruptcy Petition Against the Company.
Each of the Transferor, the Seller and the Collection Agent hereby
covenants and agrees that, prior to the date which is one year and one
day after the payment in full of all outstanding Commercial Paper or
other indebtedness of the Company, it will not institute against, or
join any other Person in instituting against, the Company any bankrupt
cy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceeding under the laws of the United States or any
state of the United States.
SECTION 9.10. No Recourse Against Stockholders, Officers or
Directors. No recourse under any obligation, covenant or agreement of
the Company contained in this Agreement shall be had against Xxxxxxx
Xxxxx Money Markets Inc. (or any affiliate thereof), or any
stockholder, officer or director of the Company, as such, by the
enforcement of any assessment or by any legal or equitable proceeding,
by virtue of any statute or otherwise; it being expressly agreed and
understood that this Agreement is solely a corporate obligation of the
Company, and that no personal liability whatever shall attach to or be
incurred by Xxxxxxx Xxxxx Money Markets Inc. (or any affiliate
thereof), or the stockholders, officers or directors of the Company, as
such, or any of them, under or by reason of any of the obligations,
covenants or agreements of the Company contained in this Agreement, or
implied therefrom, and that any and all personal liability for breaches
by the Company of any of such obligations, covenants or agreements,
either at common law or at equity, or by statute or constitution, of
Xxxxxxx Xxxxx Money Markets Inc. (or any affiliate thereof) and every
such stockholder, officer or director is hereby expressly waived as a
condition of and consideration for the execution of this Agreement.
SECTION 9.11. Characterization of the Transactions
Contemplated by the Agreement. It is the intention of the parties that
the transactions contemplated hereby constitute the sale of the
Transferred Interest, conveying good title thereto free and clear of
any Adverse Claims to the Company and that the Transferred Interest not
be part of the Transferor's estate in the event of an insolvency. If,
notwithstanding the foregoing, the transactions contemplated hereby
should be deemed a financing, the parties intend that the Transferor
shall be deemed to have granted to the Company, and the Transferor
hereby grants to the Company, a first priority perfected security
interest in all of the Transferor's right, title and interest in, to
and under the Receivables, together with Related Security, Collections
and Proceeds with respect thereto and that this Agreement shall
constitute a security agreement under applicable law.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Transfer and Administration Agreement as of the date
first written above.
ENTERPRISE FUNDING CORPORATION,
as Company
By:
Name:
Title:
IMC-AGRICO RECEIVABLES COMPANY L.L.C.
as Transferor
By: IMC AGRICO COMPANY,
its operating manager
By: IMC AGRICO MP, INC.,
its managing partner
By: ________________________
Name:
Title:
IMC-AGRICO COMPANY,
as Collection Agent
By: IMC-AGRICO MP, INC.,
its managing partner
By:
Name:
Title:
Exhibit A
[Form of Contract]
Exhibit B
[Credit and Collection Policies and Practices]
The Transferor's Credit and Collection Policy or Policies and
practices, relating to Contracts and Receivables, existing on the date
hereof are as set forth in manuals that were delivered by the
Transferor on February 20, 1997 to the Company and the receipt of which
has been separately acknowledged by the Company.
Exhibit C
List of Lock-Box Banks and Accounts
Exhibit D
FORM OF LOCK-BOX AGREEMENT
[Date]
[Name and Address
of Lock-Box Bank]
Re: IMC-AGRICO COMPANY
Lock-Box Account
No[s]. ___________
Ladies and Gentlemen:
IMC-AGRICO COMPANY ("IMC-Agrico") hereby notifies you that
in connection with certain transactions involving its accounts
receivable, it has transferred exclusive ownership and dominion of
its lock-box account no[s]. __________ maintained with you
(collectively the "Accounts") to IMC-Agrico Receivables Company
L.L.C., for the benefit of NationsBank, N.A., as collateral agent
(the "Collateral Agent"), and that IMC-Agrico Receivables Company
L.L.C. will transfer exclusive control of the Accounts to the
Collateral Agent effective upon delivery to you of the Notice of
Effectiveness (as hereinafter defined).
In furtherance of the foregoing, IMC-Agrico Receivables
Company L.L.C. and the Collateral Agent hereby instruct you,
beginning on the date of your receipt of the Notice of
Effectiveness: (i) to collect the monies, checks, instruments and
other items of payment mailed to the Accounts; (ii) to deposit into
the Accounts all such monies, checks, instruments and other items of
payment or all funds collected with respect thereto (unless
otherwise instructed by the Collateral Agent); and (iii) to transfer
all funds deposted and collected in the Accounts pursuant to
instructions given to you by the Collateral Agent from time to time.
You are hereby further instructed: (i) unless and until
the Collateral Agent notifies you to the contrary at any time after
your receipt of the Notice of Effectiveness, to make such transfers
from the Accounts at such times and in such manner as IMC-Agrico, in
its capacity as collection agent for IMC-Agrico Receivables Company
L.L.C., and the Collateral Agent, shall from time to time instruct
to the extent such instructions are not inconsistent with the
instructions set forth herein, and (ii) to permit IMC-Agrico (in its
capacity as collection agent for the IMC-Agrico Receivables Company
L.L.C. and the Collateral Agent) and the Collateral Agent to obtain
upon request any information relating to the Accounts, including,
without limitation, any information regarding the balance or
activity of the Accounts.
IMC-Agrico Receivables Company L.L.C. also hereby notifies
you that, beginning on the date of your receipt of the Notice of
Effectiveness and notwithstanding anything herein or elsewhere to
the contrary, the Collateral Agent, and not IMC-Agrico or IMC-Agrico
Receivables Company L.L.C., shall be irrevocably entitled to
exercise any and all rights in respect of or in connection with the
Accounts, including, without limitation, the right to specify when
payments are to be made out of or in connection with the Accounts.
The Collateral Agent has a continuing interest in all of the checks
and their proceeds and all monies and earnings, if any, thereon in
the Accounts, and you shall be the Collateral Agent's agent for the
purpose of holding and collecting such property. The monies,
checks, instruments and other items of payment mailed to, and funds
deposited to, the Accounts will not be subject to deduction, set-
off, banker's lien, or any other right in favor of any person other
than the Collateral Agent (except that you may set off (i) all
amounts due to you in respect of your customary fees and expenses
for the routine maintenance and operation of the Accounts, and (ii)
the face amount of any checks which have been credited to the
Accounts but are subsequently returned unpaid because of uncollected
or insufficient funds).
This Agreement may not be terminated at any time by IMC-
Agrico Receivables Company L.L.C. or you without the prior written
consent of the Collateral Agent. Neither this Agreement nor any
provision hereof may be changed, amended, modified or waived orally
but only by an instrument in writing signed by the Collateral Agent
and IMC-Agrico Receivables Company L.L.C.
You shall not assign or transfer your rights or
obligations hereunder (other than to the Collateral Agent) without
the prior written consent of the Collateral Agent and IMC-Agrico
Receivables Company L.L.C. Subject to the preceding sentence, this
Agreement shall be binding upon each of the parties hereto and their
respective successors and assigns, and shall inure to the benefit
of, and be enforceable by, the Collateral Agent, each of the parties
hereto and their respective successors and assigns.
You hereby represent that the person signing this
Agreement on your behalf is duly authorized by you to so sign.
You agree to give the Collateral Agent and IMC-Agrico
prompt notice if the Accounts become subject to any writ,
garnishment, judggent, warrant of attachment, execution or similar
process.
Any notice, demand or other communication required or
permitted to be given hereunder shall be in writing and may be
personally served or sent by facsimile or by courier service or by
United States mail and shall be deemed to have been delivered when
delivered in person or by courier service or by facsimile or three
(3) Business Days after deposit in the United States mail
(registered or certified, with postage prepaid and properly
addressed). For the purposes hereof, (i) the addresses of the
parties hereto shall be as set forth below each party's name below,
or, as to each party, at such other address as may be designated by
such party in a written notice to the other party and the Collateral
Agent and (ii) the address of the Collateral Agent shall be
NationsBank, N.A., NationsBank Corporate Center, 000 Xxxxx Xxxxx
Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Xxxxxxxx X. Xxxxx, Investment Banking, or at such other address as
may be designated by the Collateral Agent in a written notice to
each of the parties hereto.
Please agree to the terms of, and acknowledge receipt of,
this notice by signing in the space provided below.
The transfer of control of the Accounts, referred to in
the first paragraph of this letter, shall become effective upon
delivery to you of a notice (the "Notice of Effectiveness") in
substantially the form attached hereto as Annex "1".
Very truly yours,
IMC-AGRICO COMPANY
By: IMC-Agrico MP Inc.,
its managing partner
By:_____________________________
Title:__________________________
Attention:______________________
Facsimile No.:__________________
IMC-AGRICO COMPANY RECEIVABLES
COMPANY L.L.C.
By: IMC-Agrico Company,
its operating manager
By:_____________________________
Title:__________________________
By: IMC-Agrico MP Inc.,
its managing partner
By:_____________________________
Title:__________________________
ACKNOWLEDGED AND AGREED:
[NAME OF LOCK-BOX BANK]
By:________________________
Title:_____________________
Date:______________________
[Address]
Attention:_________________
Facsimile No.:_____________
ANNEX 1
TO LOCK-BOX AGREEMENT
[FORM OF NOTICE OF EFFECTIVENESS]
DATED: ______________, 199_
TO: [Name of Lock-Box Bank]
[Address]
ATTN: ______________________
Re: Lock-Box Account No[s]._______
Ladies and Gentlemen:
We hereby give you notice that the transfer of control of
the above-referenced Lock-Box Account[s], as described in our letter
agreement with you dated ________ __, 1997 is effective as of the
date hereof. You are hereby instructed to comply immediately with
the instructions set forth in that letter.
Very truly yours,
IMC-AGRICO RECEIVABLES
COMPANY L.L.C.
By:_____________________________
Title:__________________________
ACKNOWLEDGED AND AGREED:
[NAME OF LOCK-BOX BANK]
By:________________________
Title:_____________________
Date:______________________
[Address]
Attention:_________________
Facsimile No.:_____________
ANNEX 2
TO LOCK-BOX AGREEMENT
[FORM OF ACKNOWLEDGMENT AND AUTHORIZATION]
ACKNOWLEDGMENT AND AUTHORIZATION
NationsBank, N.A., as collateral agent (the "Collateral
Agent"), hereby acknowledges the transfer of exclusive ownership,
dominion and control of the Accounts defined in and pursuant to the
foregoing letter agreement (the "Lock-Box Agreement"), executed by IMC-
AGRICO RECEIVABLES COMPANY L.L.C. ("IMC-Agrico") and acknowledged by
[Name of Lock-Box Bank] (the "Bank"), which transfer to the Collateral
Agent of ownership and dominion of the Accounts is in effect on, and
shall continue after, the date hereof and which transfer to the
Collateral Agent of control of the Accounts shall be effective upon
delivery to the Bank of the Notice of Effectiveness (as defined in the
Lock-Box Agreement). Pursuant to the third and fourth paragraphs of
the Lock-Box Agreement, the Collateral Agent hereby instructs the Bank,
beginning on the date of the Notice of Effectiveness until the
Collateral Agent notifies the Bank to the contrary, to accept the
directions of IMC-Agrico, as collection agent for the Collateral Agent,
as to the manner and timing of such payments.
Very truly yours,
NATIONSBANK, N.A.,
as Collateral Agent
By:_________________________________
Name:
Title:
ACKNOWLEDGED AND AGREED:
[NAME OF LOCK-BOX BANK]
By:________________________
Title:_____________________
Date:______________________
Exhibit E
Form of Investor Report
Exhibit F
[Transfer Certificate]
TRANSFER CERTIFICATE
Reference is made to the Transfer and Administration
Agreement dated as of June 27, 1997 (the "Agreement") among IMC-AGRICO
RECEIVABLES COMPANY, L.L.C. as transferor (in such capacity, the
"Transferor"), IMC-AGRICO COMPANY as seller (in such capacity, the
"Seller") and ENTERPRISE FUNDING CORPORATION (the "Company"). Terms
defined in the Agreement are used herein as therein defined.
The Transferor hereby conveys, transfers and assigns to the
Company an undivided ownership interest in the Receivables, together
with Related Security and Collections with respect thereto (each, an
"Incremental Transfer"). Each Incremental Transfer by the Transferor
to the Company and each reduction or increase in the Net Investment in
respect of each Incremental Transfer evidenced hereby shall be
indicated by the Company on the grid attached hereto which is part of
this Transfer Certificate.
This Transfer Certificate is made without recourse except as
otherwise provided in the Agreement.
This Transfer Certificate shall be governed by, and construed
in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned has caused this Transfer
Certificate to be duly executed and delivered by its duly authorized
officer as of the date first above written.
[ ]
By
Name:
Title:
GRID
Net Investment
Date of Amount of (Giving Effect
Incremental Incremental to Incremental
Transfer Transfer Transfer)
Exhibit G
Definitions of Certain Terms
"Capital Expenditures" means all expenditures which in
accordance with generally accepted accounting principles would be
classified as capital expenditures, including without limitation,
Capitalized Leases.
"Capitalized Lease" means the obligations of a Person as
lessee under leases that have been, or should be, characterized as
capital leases in accordance with generally accepted accounting
principles applied on a consistent basis.
"EBITDA" means, for any period, the net earnings (or net
loss) plus the sum of (i) interest expense (including amortization of
debt discount), (ii) income tax expense, (iii) depreciation,
amortization and depletion expense, in each case determined in
accordance with generally accepted accounting principles applied on a
consistent basis for such period.
Exhibit H-1
List of Actions and Suits for Transferor
Exhibit H-2
List of Actions and Suits for Seller
Exhibit I
[Reserved]
Exhibit J
[Reserved]
Exhibit K
[Form of Transferor's and Seller's Counsel Opinion]
[Letterhead of Counsel]
____________, 19__
Enterprise Funding Corporation
c/o Merrill Xxxxx Money Markets Inc.
Xxxxxxx Xxxxx World Headquarters
World Financial Center--South Tower
000 Xxxxxxx Xxxxxx--0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
NationsBank, N.A.
as Collateral Agent
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section _______ of
the Transfer and Administration Agreement dated as of _________, 199_
(the "Agreement") among [TRANSFEROR], a _______ [corporation] (the
"Transferor"), [SELLER], a _________[corporation], individually and as
Collection Agent ("[SELLER]"), and Enterprise Funding Corporation, a
Delaware corporation (the "Company"). Terms defined in the Agreement
and not otherwise defined herein are used in this opinion with the
meanings so defined.
We have acted as counsel to the Seller and the Transferor in
connection with the preparation of the Agreement, the Receivables
Purchase Agreement, the other Transaction Documents and the
transactions contemplated thereby.
We have examined, on the date hereof, the Agreement and all
Exhibits thereto, the Receivables Purchase Agreement and all Exhibits
thereto, the Certificate, the Transfer Certificate delivered under the
Agreement, certificates of public officials and of officers of the
Transferor and the Seller and certified copies of Seller's and the
Transferor's certificate of incorporation, and the Seller's partnership
agreement, by-laws, the Board of Directors' resolutions authorizing
Seller's and the Transferor's participation in the transactions
contemplated by the Agreement and the Receivables Purchase Agreement,
copies of each of the above having been delivered to you, copies of the
financing statements on Form UCC-1 filed in the filing offices listed
in Schedule I hereto executed by Seller, as debtor, in favor of the
Transferor, and showing the Collateral Agent as the assignee of the
secured party, substantially in the form attached hereto as Exhibit A
(the "Seller Financing Statements") and copies of the financing
statements on Form UCC-1 filed in the filing offices listed in Schedule
II hereto executed by Transferor, as debtor, in favor of the Company,
and showing the Collateral Agent as the assignee of the secured party,
substantially in the form attached hereto as Exhibit B (the "Transferor
Financing Statements"). We have also examined the closing documents
delivered pursuant to the Agreement and the Receivables Purchase
Agreement and copies of all such documents and records, and have made
such investigations of law, as we have deemed necessary and relevant as
a basis for our opinion. With respect to the accuracy of material
factual matters which were not independently established, we have
relied on certificates and statements of officers of Seller and the
Transferor.
On the basis of the foregoing, we are of the opinion that:
1. The Transferor is a corporation duly incorporated, validly
existing and in good standing under the laws of _________, has the
corporate power and authority to own its properties and to carry on its
business as now being conducted, and had at all relevant times, and now
has, all necessary power, authority, and legal right to acquire and own
the Receivables, and is duly qualified and in good standing as a
foreign corporation and is authorized to do business in each
jurisdiction in which the character of its properties or the nature of
its business requires such qualification or authorization, except for
qualifications and authorizations the lack of which, singly or in the
aggregate, has not had and will not have a materially adverse affect
upon the business properties of the Transferor or its ability to
perform its obligations under the Transaction Documents.
2. The Seller is a partnership duly organized, validly
existing and in good standing under the laws of Delaware, has the power
and authority to own its properties and to carry on its business as now
being conducted, and had at all relevant times, and now has, all
necessary power, authority, and legal right to acquire and own the
Receivables, and is duly qualified and in good standing as a foreign
partnership and is authorized to do business in each jurisdiction in
which the character of its properties or the nature of its business
requires such qualification or authorization, except for qualifications
and authorizations the lack of which, singly or in the aggregate, has
not had and will not have a materially adverse affect upon the business
properties of the Seller or its ability to perform its obligations
under the Agreement.
3. The Transferor has the power, corporate and other, and has
taken all necessary corporate action to execute, deliver and perform
the Agreement and the other Transaction Documents, each in accordance
with its respective terms, and to consummate the transactions
contemplated thereby. The Transaction Documents to which the
Transferor is a party have been duly executed and delivered by the
Transferor and when duly executed and delivered will constitute the
legal, valid and binding obligations of the Transferor enforceable
against the Transferor in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency and other
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles.
4. The Seller has the power and has taken all necessary
action to execute, deliver and perform the Agreement, and the other
Transaction Documents which it is a party, each in accordance with its
respective terms, and to consummate the transactions contemplated
thereby. The Agreement, and the other Transaction Documents to which
it is a party, have been duly executed and delivered by the Seller and
constitute the legal, valid and binding obligations of the Transferor
enforceable against the Seller in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency and
other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles.
5. The execution, delivery and performance in accordance with
their terms by the Transferor of the Agreement and the other
Transaction Documents and the consummation of the transactions
contemplated thereby, do not and will not (i) require (a) any
governmental approval or (b) any consent or approval of any stockholder
of the Transferor that has not been obtained, (ii) violate or conflict
with, result in a breach of, or constitute a default under (a) the
certificate of incorporation or the by-laws of the Transferor, (b) any
other agreement to which the Transferor is a party or by which the
Transferor or any of its properties may be bound, or (c) any applicable
law, or any order, rule, or regulation applicable to the Transferor of
any court or of any federal or state regulatory body, administrative
agency, or other governmental instrumentality having jurisdiction over
the Transferor or any of its properties, or (iii) result or require in
the creation or imposition of any Lien upon any of the assets, property
or revenue of the Transferor other than as contemplated by the
Agreement.
6. The execution, delivery and performance in accordance with
their terms by the SELLER of the Receivables Purchase Agreement and the
other Transaction Documents and the consummation of the transactions
contemplated thereby, do not and will not (i) require (a) any
governmental approval or (b) any consent or approval of any partner of
the Seller that has not been obtained, (ii) violate or conflict with,
result in a breach of, or constitute a default under (a) the Seller's
partnership agreement (b) any other agreement to which the Seller is a
party or by which the Seller or any of its properties may be bound, or
(c) any applicable law, or any order, rule, or regulation applicable to
the Seller of any court or of any federal or state regulatory body,
administrative agency, or other governmental instrumentality having
jurisdiction over the Seller or any of its properties, or (iii) result
or require in the creation or imposition of any Lien upon any of the
assets, property or revenue of the Seller other than as contemplated by
the Receivables Purchase Agreement.
7. [Except as set forth in the schedule attached hereto,] to
the best of our knowledge, after due inquiry, there are not, in any
court or before any arbitrator of any kind or before or by any
governmental or non-governmental body, any actions, suits, proceedings
or investigations, pending or threatened, (i) against the Transferor or
the business or any property of the Transferor except actions, suits or
proceedings that, if adversely determined, would not, singly or in the
aggregate, have a materially adverse affect on the Transferor, or on
the ability of the Transferor to perform its respective obligations
under the Agreement and the Company Certificate or (ii) relating to the
Agreement or the Company Certificate.
8. [Except as set forth in the schedule attached hereto,] to the
best of our knowledge, after due inquiry, there are not, in any court
or before any arbitrator of any kind or before or by any governmental
or non-governmental body, any actions, suits, proceedings or
investigations, pending or to the best of our knowledge, after due
inquiry, threatened, (i) against the Seller or the business or any
property of the Seller except actions, suits or proceedings that, if
adversely determined, would not, singly or in the aggregate, have a
Materially Adverse Effect or (ii) relating to the Receivables Purchase
Agreement or any other Transaction Document.
9. The Agreement and the Transfer Certificate creates a
valid "security interest" (as that term is defined in Section 1-201(37)
of the Uniform Commercial Code (including the conflict of laws rules
thereof) as in effect in each applicable jurisdiction (the "UCC"),
including New York (the "New York UCC") and _______ (the "XYZ UCC"),
under Article 9 of the New York UCC ("Security Interest") in favor of
the Company in each Receivable (except that the Security Interest will
attach only when the Transferor possesses rights in such Receivable).
The internal laws of XYZ govern the perfection by the filing of
financing statements of the Company's Security Interest in the
Receivables and the proceeds thereof. The Financing Statement(s) have
been filed in the filing office(s) located in XYZ listed in Schedule I
hereto, which [is] [are] the only office(s) in which filings are
required under the XYZ UCC to perfect the Company's Security Interest
in the Receivables and the proceeds thereof, and accordingly the
Company's Security Interest in each Receivable and the proceeds thereof
will, on the date of the initial transfer under the Agreement, be
perfected under Article 9 of the XYZ UCC. All filing fees and all
taxes required to be paid as a condition to or upon the filing of the
Financing Statement(s) in XYZ have been paid in full. As of the date
hereof, there were no (i) UCC financing statements naming Transferor as
debtor, seller or assignor and covering any Receivables or any interest
therein or (ii) notices of the filing of any federal tax lien (filed
pursuant to Section 6323 of the Internal Revenue Code) or lien of the
Pension Benefit Guaranty Corporation (filed pursuant to Section 4068 of
the Employment Retirement Insurance Act) covering any Receivable or any
interest therein. The filing of the Financing Statement(s) in the
filing offices listed in Schedule I will create a first priority
security interest in each Receivable. Such perfection and priority
will continue, provided that appropriate continuation statements are
timely filed where and when required under the UCC.
10. The Receivables Purchase Agreement creates a valid "security
interest" (as that term is defined in Section 1-201(37) of the Uniform
Commercial Code (including the conflict of laws rules thereof) as in
effect in each applicable jurisdiction (the "UCC"), including New York
(the "New York UCC") and _______ (the "XYZ UCC"), under Article 9 of
the New York UCC ("Security Interest") in favor of the Transferor in
the Receivables and the proceeds thereof (except that the Security
Interest will attach to any Receivable created after the date hereof
only when the Seller possesses rights in such Receivable). The
internal laws of XYZ govern the perfection by the filing of financing
statements of the Transferor's Security Interest in the Receivables and
the proceeds thereof. The Seller Financing Statement(s) have been
filed in the filing office(s) located in XYZ listed in Schedule I
hereto, which [is] [are] the only office(s) in which filings are
required under the XYZ UCC to perfect the Transferor's Security
Interest in the Receivables and the proceeds thereof, and accordingly
the Transferor's Security Interest in each Receivable and the proceeds
thereof will, on the date of the initial transfer under the Receivables
Purchase Agreement, be perfected under Article 9 of the XYZ UCC. All
filing fees and all taxes required to be paid as a condition to or upon
the filing of the Seller Financing Statement(s) in XYZ have been paid
in full. As of the date hereof, there were no (i) UCC financing
statements naming the Seller as debtor, seller or assignor and covering
any Receivables or any interest therein or (ii) notices of the filing
of any federal tax lien (filed pursuant to Section 6323 of the Internal
Revenue Code) or lien of the Pension Benefit Guaranty Corporation
(filed pursuant to Section 4068 of the Employment Retirement Insurance
Act) covering any Receivable or any interest therein. The filing of
the Seller Financing Statement(s) in the filing offices listed in
Schedule I will create a first priority security interest in each
Receivable. Such perfection and priority will continue, provided that
appropriate continuation statements are timely filed where and when
required under the UCC.
In giving the opinions in paragraph 10 and 11, we have
assumed that (1) the Seller's and Transferor's chief executive office
will continue to be located in _____, and (2) the Transferor and the
Seller has kept and will continue to keep all of its records concerning
Receivables located only in ___ and _____, respectively. The
conclusions expressed in paragraph 10 and 11 are subject to the
accuracy of the personnel in the filing offices referred to above with
regard to the filing, indexing and recording of financing statements
and notices of Liens, and to the correctness of reports to us by
____________, who performed the searches of such records and who made
the filings on behalf of the Seller and Transferor in ___.
In giving the opinions set forth in paragraph 10 and 11, we
have assumed that all filings as appropriate in the event of a change
in the name, identity or corporate structure of the debtor (or seller
or assignor) named in any financing statements and all continuation
statements necessary under the UCC to maintain the perfection of the
Transferor's Security Interest and Company's Security Interest in the
Receivables and the proceeds thereof will be duly and timely filed. In
giving such opinions, we also do not express any opinion as to (a)
transactions excluded from Article 9 of the UCC by virtue of Section 9-
104 of the UCC, (b) any security interest in proceeds except to the
extent that the validity and perfection of any interest in proceeds (as
such term is defined under the UCC) thereof that is covered by the
Seller Financing Statements or the Transferor, the Financing Statements
or any duly filed financing statement referred to above may be
permitted by Section 9-306 of the UCC, and (c) any security interest
that is terminated or released.
The foregoing opinions and conclusions were given only in
respect of the laws of the State of New York, the Uniform Commercial
Code as in effect on the date hereof in the State of XYZ and, to the
extent specifically referred to herein, the Federal laws of the United
States of America.
This opinion has been delivered at your request for the
purposes contemplated by the Agreement. Without our prior written
consent, this opinion is not to be utilized or quoted for any other
purpose and no one other than you, any Liquidity Provider, Credit
Support Provider and any placement agent for the Company's Commercial
Paper is entitled to rely thereon.
Very truly yours,
Exhibit L-1
RESPONSIBLE OFFICER'S CERTIFICATE
I, __________________, the undersigned ________________ of
_________ (the "Transferor"), a ________ corporation, DO HEREBY CERTIFY
that:
1. Attached hereto as Annex A is a true and complete copy of
the Certificate of Incorporation of the Company as in effect on the
date hereof.
2. Attached hereto as Annex B is a true and complete copy of
the By-laws of the Company as in effect on the date hereof.
3. Attached hereto as Annex C is a true and complete copy of
the resolutions duly adopted by the Board of Directors of the Company
[adopted by consent] as of _________________, 199_, authorizing the
execution, delivery and performance by Company of each of the documents
mentioned therein, which resolutions have not been revoked, modified,
amended or rescinded and are still in full force and effect.
4. The below-named persons have been duly qualified as and
at all times since ________________, 199_, to and including the date
hereof have been officers or representatives of the Company holding the
respective offices or positions below set opposite their names are
authorized to execute on behalf of the Company the below-mentioned
Transfer and Administration Agreement and all other Transaction
Documents (as defined in such Transfer and Administration Agreement) to
which the Company is a party and the signatures below set opposite
their names are their genuine signatures:
Name Office Signatures
[OFFICE]
[OFFICE]
5. The representations and warranties of the Company
contained in Section 3.1 of the Transfer and Administration Agreement
dated as of March __, 1997 between the Transferor and Enterprise
Funding Corporation are true and correct as if made on the date
hereof.]
6. The Company is a general partner of the Transferor.
WITNESS my hand and seal of the Company as of this ____ day
of ________, 199_.
Secretary
[NAME OF COMPANY]
I, the undersigned, Vice President of the Company, DO HEREBY
CERTIFY that _____________________ is the duly elected and qualified
Secretary of the Company and the signature above is his/her genuine
signature.
WITNESS my hand as of this ____ day of _______, 199_.
Vice President
[NAME OF COMPANY]
Exhibit L-2
SECRETARY'S CERTIFICATE
I, __________________, the undersigned ________________ of
___________ (the "Company"), a ________ corporation, DO HEREBY CERTIFY
that:
1. Attached hereto as Annex A is a true and complete copy of
the Certificate of Incorporation of the Company as in effect on the
date hereof.
2. Attached hereto as Annex B is a true and complete copy of
the By-laws of the Company as in effect on the date hereof.
3. Attached hereto as Annex C is a true and complete copy of
the resolutions duly adopted by the Board of Directors of the Company
[adopted by consent] as of _________________, 199_, authorizing the
execution, delivery and performance of each of the documents mentioned
therein, which resolutions have not been revoked, modified, amended or
rescinded and are still in full force and effect.
4. The below-named persons have been duly qualified as and
at all times since ________________, 199_, to and including the date
hereof have been officers or representatives of the Company holding the
respective offices or positions below set opposite their names and are
authorized to execute on behalf of the Company the below-mentioned
Transfer and Administration Agreement and Receivables Purchase
Agreement and all other Transaction Documents (as defined in such
Transfer and Administration Agreement) to which the Company is a party
and the signatures below set opposite their names are their genuine
signatures:
Name Office Signatures
[OFFICE]
[OFFICE]
5. The representations and warranties of the Company
contained in Section ___ of the Transfer and Administration Agreement
dated as of __________, 199_ among the Company, IMG Agrico Funding
Company as Transferor, Enterprise Funding Corporation, NationsBank,
N.A. and certain financial institutions named therein are true and
correct as if made on the date hereof.]
6. The Company is a general partner of the Transferor.
WITNESS my hand and seal of the Company as of this ____ day
of ________, 199_.
Secretary
I, the undersigned, Vice President of the Company, DO HEREBY
CERTIFY that _____________________ is the duly elected and qualified
Secretary of the Company and the signature above is his/her genuine
signature.
WITNESS my hand as of this ____ day of _______, 199_.
Vice President
Exhibit M
[Form of Company Certificate]
THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE TRANSFERRED,
ASSIGNED, EXCHANGED OR CONVEYED EXCEPT IN ACCORDANCE WITH THE TRANSFER
AND ADMINISTRATION AGREEMENT REFERRED TO HEREIN.
No. 1 One Unit
[Date]
Evidencing an undivided interest in a pool of accounts receivables
generated from time to time in the ordinary course of business by [
] (the "Transferor").
(Not an interest in or obligation of [ ] )
This certifies that ENTERPRISE FUNDING CORPORATION
("Enterprise") is the registered owner of a fractional undivided
interest in a pool of accounts receivables pursuant to a Transfer and
Administration Agreement between Enterprise and the Transferor, dated
as of March __, 1997 (the "Agreement"). The Receivables consist of all
accounts receivables generated under the Contracts from time to time
hereafter, all monies due or to become due in payment of the
Receivables and the other assets and interests as provided in the
Agreement.
To the extent not defined herein, capitalized terms used
herein have the meanings assigned to such terms in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement, as amended from time
to time, the holder hereof by virtue of the acceptance hereof assents
and by which the holder hereof is bound. In the event of any
inconsistency or conflict between the terms of this Certificate and the
terms of the Agreement, the terms of the Agreement shall control.
This Certificate represents a fractional undivided interest
in the Receivables, including the right to receive Collections and
other amounts at the times and in the amounts specified in the
Agreement. The aggregate interest in the Receivables represented by
this Certificate at any time shall equal the Percentage Factor as
determined in accordance with the Agreement.
IN WITNESS WHEREOF, the Transferor has caused this
Certificate to be duly executed.
[ ]
By:
Name:
Title:
