EXHIBIT 4.8
CONFORMED COPY
AMENDMENT NO. 5
AMENDMENT NO. 5 (this "Agreement") dated as of May 27, 1997 among:
TERRA CAPITAL, INC., a Delaware corporation (the "Company"); TERRA NITROGEN,
LIMITED PARTNERSHIP, a Delaware limited partnership ("TNLP" and, together with
the Company, the "Borrowers); each of the entities listed on the signature pages
hereof under the caption "GUARANTORS" (each such entity, and each of the
Borrowers, an "Obligor" and, collectively, the "Obligors"); each of the lenders
(the "Lenders") and issuing banks (the "Issuing Banks") listed on the signature
pages hereof; and CITIBANK, N.A., as agent for the Lenders and Issuing Banks
under the Credit Agreement referred to below (in such capacity, the "Agent").
The Obligors, the Lenders, the Issuing Banks and the Agent are parties
to an Amended and Restated Credit Agreement dated as of December 14, 1995 (as
from time to time amended, the "Credit Agreement"). The Company has requested
the Lenders to amend the Credit Agreement in certain respects, and the Lenders
are willing to so amend the Credit Agreement, all on the terms and conditions
set forth herein. Accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 5, terms defined in the Credit Agreement are used herein as
defined therein.
Section 2. Amendments. Subject to the Agent's receipt of this
Agreement, duly executed by each of the Obligors, the Required Lenders and the
Agent, but effective as of the date hereof, the Credit Agreement shall be
amended as follows:
A. General. References in the Credit Agreement to "this Agreement"
(including indirect references such as "hereunder", "hereby", "herein" and
"hereof") shall be deemed to be references to the Credit Agreement as amended
hereby.
B. Definitions. Section 1.01 of the Credit Agreement is amended by
inserting the following definitions (or, in the case of any definition for a
term that is defined in the Credit Agreement before giving effect to this
Amendment No. 5, by amending and restating such definition to read as set forth
below):
Amendment No. 5
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"Acquired Debt" means, without duplication:
(a) Debt of Subsidiaries of Terra acquired by Terra or any of
its Subsidiaries after the Restatement Date;
(b) Debt assumed by Terra (whether by operation of law or
contract or otherwise) in connection with mergers by Terra after the
Restatement Date consummated in accordance with Section
5.02(d)(ii)(y); and
(c) assumptions or Guarantees of other Acquired Debt by Terra or
one of its Subsidiaries.
"Blytheville Assets" means TI's Blytheville, Arkansas facility and
related assets having (in the reasonable judgment of TI's Board of
Directors) an aggregate fair market value not exceeding $5,000,000.
"Farmland JV" means a joint venture (which may be structured as a
partnership, limited liability company, corporation or other business form)
between TI and Farmland Industries, Inc. (or one of its Affiliates), in
which joint venture TI has at least a 50% ownership interest.
"Guarantee" by any Person means any arrangement by which such Person
incurs Debt of the types referred to in clauses (i) and (j) of the
definition of "Debt" in respect of such Person.
"Outside Subsidiary" means any Subsidiary of Terra (other than Terra
Capital Holdings or any of its Subsidiaries).
"Permitted JV" means Xxxxx LLC and Farmland JV.
"Specified Acquisitions" means Investments (including, without
limitation, Investments arising by reason of any merger or consolidation
permitted under Sections 5.02(d)(i)(y) and 5.02(d)(ii)(y), but excluding
(1) Investments contemplated by the Port Xxxx Transaction, (2) Terra Stock
Repurchases, (3) the purchase, redemption or other acquisition of Senior
Preference Units pursuant to the SPU Redemption and (4) capital
contributions to Subsidiaries of Terra) consisting of acquisitions of
ownership interests in one or more entities engaged in the same or allied
line or lines of business as Terra and its Subsidiaries, taken as a whole.
For purposes hereof, the amount of Specified Acquisitions made during any
period shall include, without duplication, the aggregate amount of
Investments in
Amendment No. 5
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Permitted JVs (other than Investments referred to in clauses (xvi) and
(xviii)(y) of Section 5.02(f)) made during such period and the aggregate
amount of payments made during such period by Terra and its Subsidiaries in
respect of the Obligations referred to in clauses (xv), (xvi), (xvii) and
(xviii) of Section 5.02(b).
"Specified Call Option" means a cash-settled call option with respect
to a U.S. Stock Index, which call option (a) has an expiration date not
later than March 31, 1998, (b) is entered into with a counterparty (or
designated guarantor) having (at the time of acquisition thereof) senior,
unsecured long-term debt rated at least BBB by Standard & Poor's and Baa2
by Xxxxx'x and (c) is documented under an agreement that permits close-out
and netting of all call options thereunder.
"U.S. Stock Index" means a nationally-recognized diversified index of
equity securities (which may relate to a single industry) of companies that
are predominantly domiciled or doing business in the United States.
C. TNLP Advances. Section 2.01(b)(iv) of the Credit Agreement shall
be amended to read as follows:
"(iv) The proceeds of the TNLP Advances shall be used solely (A) for
general corporate purposes of TNLP, including, without limitation, to
finance its ongoing working capital needs and to refinance outstanding Debt
and (B) to finance all or a portion of the SPU Redemption."
D. Disposition Prepayment. Section 2.05(b)(i)(z) of the Credit
Agreement shall be amended to read as follows:
"(z) neither the transfer of the Blytheville Assets in accordance with
Section 5.02(e)(xi) nor the Beaumont Disposition shall be deemed to be a
Disposition for purposes of this clause (i)."
E. Transactions with Affiliates. Section 5.01(m)(vii) of the Credit
Agreement shall be amended to read as follows:
"(vii) Investments in Permitted JVs to the extent permitted hereunder
and general and administrative and purchasing services for Permitted JVs
(including inventory purchasing arrangements, whether for inventory
manufactured and/or produced by Terra or any of its Subsidiaries or
purchased from third parties, vendors or suppliers and including leasing
and subleasing of furnishings, fixtures and equipment)."
Amendment Xx. 0
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X. Xxxx. Section 5.02(b) of the Credit Agreement shall be amended:
(1) by amending clause (xi) thereof to read as follows:
"(xi) Acquired Debt in an aggregate principal amount not
exceeding $50,000,000 at any one time outstanding;" and
(2) by deleting the "and" at the end of clause (xvi) thereof, by
substituting a semicolon for the period at the end of clause (xvii) thereof
and by adding the following new clause (xviii) thereto:
"(xviii) Debt of Terra to former shareholders of Xxxxxxxx
Elevator Company in an aggregate principal amount not exceeding
$7,000,000."
G. Mergers, Etc. Section 5.02(d) of the Credit Agreement shall be
amended by redesignating clauses (ii) and (iii) as clauses (iii) and (iv),
respectively, and by adding the following new clause (ii) thereto:
"(ii) if no Default or Event of Default shall have occurred and be
continuing or would result therefrom, (x) any Outside Subsidiary may be
merged or consolidated with or into Terra (provided, that Terra shall be
the continuing or surviving corporation) or any other wholly owned Outside
Subsidiary of Terra and (y) Terra or any of its Outside Subsidiaries may
merge or consolidate with any other Person (other than Terra Capital
Holdings or any of its Subsidiaries); provided, that (1) in the case of a
merger or consolidation of Terra, Terra is the continuing or surviving
corporation, and (2) in any other case, the continuing or surviving
corporation is a wholly owned Outside Subsidiary of Terra;"
H. Sales, Etc., of Assets. Section 5.02(e) of the Credit Agreement
shall be amended by deleting the "and" at the end of clause (viii) thereof, by
substituting a semicolon for the period at the end of clause (ix) thereof and by
adding the following new clauses (x) and (xi) thereto:
"(x) transfers of assets by Terra or one of the Outside
Subsidiaries, directly or indirectly, to a wholly owned Subsidiary of Terra
(a "Recipient") to the extent the consideration paid by such Recipient (if
any) for all such assets does not exceed the fair market value of such
property; and
Amendment No. 5
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(xi) transfers by TI of the Blytheville Assets to Farmland JV in
accordance with Section 5.02(f)(xviii)(x)."
I. Investments. Section 5.02(f) of the Credit Agreement shall be
amended:
(1) by amending clause (iv) thereof to read as follows:
"(iv) Investments arising solely by reason of any merger or
consolidation expressly permitted by Section 5.02(d)(i)(x) or
5.02(d)(ii)(x);" and
(2) by deleting the "and" at the end of clause (xv) thereof, by
substituting a semicolon for the period at the end of clause (xvi) thereof
and by adding the following new clauses (xvii) and (xviii) thereto:
"(xvii) the purchase and sale by Terra of one or more Specified
Call Options (each relating to the same U.S. Stock Index and entered
into with the same counterparty) having an aggregate net cost to Terra
and its Subsidiaries of not more than $20,000,000, which purchases and
sales when taken together are (in the reasonable determination of
Terra) reasonably prudent investments to be made for an appropriate
business purpose; and
(xviii) Investments by TI in Farmland JV constituting (x) the
acquisition of not less than 50% of the ownership interests of
Farmland JV in exchange for the contribution of the Blytheville Assets
to Farmland JV; and (y) loans and net capital contributions made by
Terra or one or more of its Subsidiaries to Farmland JV from time to
time, in an aggregate principal amount not to exceed $10,000,000 at
any one time outstanding, to finance working capital needs of Farmland
JV and the purchase by Farmland JV of furnishings, fixtures and
equipment, real estate and/or equity interests in entities engaged in
the same or allied lines of business."
Section 3. Representations and Warranties. The Company hereby
represents and warrants to the Agent and the Lenders that:
(a) the representations and warranties contained in each Loan
Document are correct on and as of the date hereof, as though made on and
as of such date (or, if any such
Amendment No. 5
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representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date); and
(b) no event has occurred and is continuing that constitutes a
Default or an Event of Default.
Section 4. Miscellaneous. Except as herein provided, the Credit
Agreement and each of the other Loan Documents shall remain unchanged and in
full force and effect. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart. This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
Amendment No. 5
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE BORROWERS
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TERRA CAPITAL, INC.
By /s/ X. X. Xxxxx
--------------------------------
Title: Vice President
TERRA NITROGEN, LIMITED PARTNERSHIP
By Terra Nitrogen Corporation, its General
Partner
By /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Title: Vice President
GUARANTORS
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TERRA INDUSTRIES INC.
By /s/ X. X. Xxxxx
--------------------------------
Title: Senior Vice President
and C.F.O.
TERRA NITROGEN CORPORATION
By /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Title: Vice President
Amendment No. 5
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BEAUMONT METHANOL, LIMITED
PARTNERSHIP
By Terra Methanol Corporation,
its General Partner
By /s/ X. X. Xxxxxxxxx
---------------------------
Title: Vice President
TERRA METHANOL CORPORATION
By /s/ X. X. Xxxxxxxxx
--------------------------------
Title: Vice President
BMC HOLDINGS, INC.
By /s/ X. X. Xxxxxxxxx
--------------------------------
Title: Vice President
TERRA CAPITAL HOLDINGS, INC.
By /s/ X. X. Xxxxx
--------------------------------
Title: Vice President
THE AGENT
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CITIBANK, N.A.
By /s/ Xxxxxx Xxxxxxx Xxxxxx
--------------------------------
Title: Attorney-in-Fact
Amendment No. 5
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COMMITMENTS THE LENDERS
----------- -----------
Terra Commitment CITIBANK, N.A.
----------------
$26,980,000.00
TNLP Commitment
---------------
$ 1,900,000.00 By /s/ Xxxxxx Xxxxxxx Xxxxxx
--------------------------------
Title:Attorney-in-Fact
Terra Commitment THE CHASE MANHATTAN BANK
----------------
$26,980,000.00
TNLP Commitment
---------------
$ 1,900,000.00 By /s/ Xxxxx X. Xxxx
---------------------------------
Title: Vice President
Terra Commitment ARAB BANKING CORPORATION
----------------
$15,620,000.00
TNLP Commitment
---------------
$ 1,100,000.00 By /s/ Xxxxxxx Xxxxxx
---------------------------------
Title: Deputy General Manager
Terra Commitment BANK OF AMERICA ILLINOIS
----------------
$26,980,000.00
TNLP Commitment
---------------
$ 1,900,000.00 By /s/ X. X. Xxxxxxxx
---------------------------------
Title: Vice President
Terra Commitment THE BANK OF NOVA SCOTIA
----------------
$26,980,000.00
TNLP Commitment
---------------
$ 1,900,000.00 By /s/ F. C. H. Xxxxx
--------------------------------
Title: Senior Manager Loan
Operations
Terra Commitment CAISSE NATIONAL DE CREDIT AGRICOLE
----------------
$26,980,000.00
TNLP Commitment
---------------
$ 1,900,000.00 By /s/ W. Xxxxx Xxxxxx
---------------------------------
Title: First Vice President
Amendment No. 5
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Terra Commitment COOPERATIEVE CENTRALE RAIFFEISEN-
---------------- BOERENLEEBANK, B.A. "RABOBANK
$14,980,000.00 NEDERLAND", NEW YORK BRANCH
TNLP Commitment
---------------
$ 1,054,929.57
By /s/ Xxxx X. Xxxxxxxx
---------------------------------
Title: Vice President
By /s/ Xxx Xxxxx
---------------------------------
Title: Senior Credit Officer
Terra Commitment CREDIT LYONNAIS CHICAGO BRANCH
----------------
$26,980,000.00
TNLP Commitment
---------------
$ 1,900,000.00 By /s/ Xxxxx X. Xxxxx
---------------------------------
Title: Vice President
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By /s/ Xxxxx X. Xxxxx
---------------------------------
Title: Authorized Signature
Terra Commitment DRESDNER BANK AG, CHICAGO AND GRAND
---------------- CAYMAN BRANCHES
$26,980,000.00
TNLP Commitment
---------------
$ 1,900,000.00 By /s/ Xxxxxx X. Xxxx
---------------------------------
Title: Vice President
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Title: Assistant Treasurer
Terra Commitment FIRST BANK NATIONAL ASSOCIATION
----------------
$26,980,000.00
TNLP Commitment
---------------
$ 1,900,000.00 By /s/ Xxxx X. Xxxxx
---------------------------------
Title: Senior Vice President
Amendment No. 5
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Terra Commitment THE FUJI BANK, LIMITED
----------------
$26,980,000.00
TNLP Commitment
---------------
$ 1,900,000.00 By /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Title: Joint General Manager
Terra Commitment MELLON BANK, N.A.
----------------
$26,980,000.00
TNLP Commitment
---------------
$ 1,900,000.00 By /s/ Xxxx X. Xxxxx
--------------------------------
Title: Vice President
Terra Commitment NATIONSBANK OF TEXAS, N.A.
----------------
$26,980,000.00
TNLP Commitment
---------------
$ 1,900,000.00 By /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Title: Vice President
Terra Commitment UNION BANK OF SWITZERLAND, NEW YORK
---------------- BRANCH
$15,620,000.00
TNLP Commitment
---------------
$ 1,100,000.00 By /s/ Xxxxxxx Xxxxxxx
---------------------------------
Title: Vice President
By /s/ Xxxx X. Xxxxxxxx
---------------------------------
Title: Assistant Treasurer
Terra Commitment BOATMEN'S NATIONAL BANK
----------------
$ 7,000,000.00
TNLP Commitment
---------------
$ 492,957.75 By /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Title: Vice President
Terra Commitment BANQUE NATIONALE DE PARIS
----------------
$ 5,000,000.00
TNLP Commitment
---------------
$ 352,112.68 By /s/ Xxxxxx Xxxxxx du Bocage
---------------------------------
Title: Executive Vice President
and General Manager
Amendment No. 5
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