OMNIBUS TERMINATION AGREEMENT
THIS OMNIBUS
TERMINATION AGREEMENT, dated as of June 23, 2009 (this “Agreement”), is by and among
BAYER MATERIALSCIENCE LLC (as successor in interest to BAYER CORPORATION)
(“Bayer”); EL DORADO
NITROGEN, L.P. (as successor in interest to EL DORADO NITROGEN COMPANY), as
Lessee; EL DORADO CHEMICAL COMPANY; XXXXX FARGO BANK NORTHWEST, N.A. (as
successor in interest to BOATMEN’S TRUST COMPANY OF TEXAS), not in its
individual capacity but solely as Owner Trustee and Lessor; BAL INVESTMENT &
ADVISORY, INC. (as successor in interest to SECURITY PACIFIC LEASING
CORPORATION), as Owner Participant; WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Indenture Trustee; and BAYERISCHE LANDESBANK,
NEW YORK BRANCH, as Note Purchaser.
WITNESSETH:
WHEREAS,
the Lessee, Owner Trustee, Owner Participant, Indenture Trustee, Construction
Lenders, Note Purchaser and Construction Loan Agent are parties to that certain
Participation Agreement, dated as of June 27, 1997 (the “Participation
Agreement”);
WHEREAS,
pursuant to the Participation Agreement, the parties hereto and certain other
parties entered into the Operative Documents;
WHEREAS,
pursuant to the Assignment of Fixed Price Purchase Option, dated as of
June 23, 2009, between the Lessee, as assignor, and Bayer, as assignee, the
Lessee has assigned its right and obligations relating to the Fixed Price
Purchase Option (as defined in the Lease) to Bayer (the “Assignment
Agreement”);
WHEREAS,
concurrently with the execution of this Agreement and pursuant to
Section 22 of the Lease, Bayer is purchasing the Units from Owner Trustee;
and
WHEREAS,
the parties hereto intend to, among other things, effect Bayer’s exercise of the
purchase option of the Units pursuant to Section 22 of the Lease and cause
Lessor to convey to Bayer all of its right, title and interest in and to the
Units;
NOW
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as
follows:
SECTION
1. Definitions;
Rules of Interpretation.
(a) Capitalized
terms used but not otherwise defined herein shall have the meanings assigned to
them in the Participation Agreement.
(b) The
rules of interpretation set forth in Section 1.1 of the Participation Agreement
shall apply to this Agreement.
SECTION
2. Payments. This
Agreement confirms that no later than 12:00 noon, New York time, on June 23,
2009 (the “Payoff
Date”):
(a) Lessee
shall pay or cause to be paid to the Note Purchaser the debt portion of the
final installment of Rent in one or more wire transfers of immediately available
funds in the aggregate amount of $69,063.83 (the “Debt Payout
Amount”);
(b) Lessee
shall pay or cause to be paid to the Owner Participant (as designee of the
Lessor) the equity portion of the final installment of Rent in one or more wire
transfers of immediately available funds in the aggregate amount of
$3,089,524.02; and
(c) Bayer
shall pay or cause to be paid to the Owner Participant (as designee of the
Lessor) one or more wire transfers of immediately available funds in the
aggregate amount of $17,634,366.00 (the amounts set forth in clauses (b) and (c) of this Section
are hereinafter collectively referred to as the “Equity Payout Amount”; the
Equity Payment Amount and the Debt Payout Amount are hereinafter collectively
referred to as the “Payout
Amount”).
SECTION
3. Wire
Instructions. Lessee or Bayer, as applicable according to
Section 2 above, will transfer or cause to be transferred to:
(a) the
Note Purchaser the Debt Payout Amount by one or more wire transfers of
immediately available funds on the Payoff Date, to:
Wachovia
Bank N.A.
ABA No.
0000-0000-0
Swift
Code BYLAUS3
Account
No. 20001 9353 0090
Account
Name Bayerische Landesbank
Reference:
El Dorado Nitrogen FFPO # 268185; and
(b) the
Owner Participant (as designee of the Lessor) the Equity Payout Amount, by one
or more wire transfers of immediately available funds on the Payoff Date,
to:
Bank of
America
Concord,
California
ABA No.
0000-0000-0
Account
No. 14995-50439
Account
of Bal Investment & Advisory, Inc.
Reference:
El Dorado Nitrogen FPPO
SECTION
4. Termination
and Release. Upon receipt by the Note Purchaser and the Owner
Participant (as designee of the Lessor) of the Debt Payout Amount and the Equity
Payout Amount, respectively, and in consideration of payment of the Payout
Amount by or on behalf of Lessee, the parties hereto agree to execute and
deliver the following documents in the following order:
(a) Deed,
Xxxx of Sale and Assignment of Units, dated as of the date hereof, by the Owner
Trustee;
2
(b) Termination
of Participation Agreement, dated as of the date hereof, by and among the
Lessee, the Owner Trustee, the Owner Participant, the Indenture Trustee and the
Note Purchaser;
(c) Termination
of Trust Indenture and Security Agreement, dated as of the date hereof, by and
between the Owner Trustee and the Indenture Trustee;
(d) Termination
of Lease Agreement, dated as of the date hereof, by and between the Owner
Trustee and the Lessee;
(e) Termination
of Ground Sublease, dated as of the date hereof, by and between the Lessee and
the Owner Trustee;
(f) Termination
of Tax Indemnity Agreement, dated as of the date hereof, by and between the
Owner Participant and the Lessee;
(g) Termination
of Security Agreement and Collateral Assignment of Facility Documents, dated as
of the date hereof, by and between the Lessee and the Owner
Trustee;
(h) Termination
of Leasehold Deed of Trust (Indenture), dated as of the date hereof, by the
Owner Trustee and the Indenture Trustee;
(i) Termination
of Leasehold Deed of Trust (Construction), dated as of the date hereof, by the
Owner Trustee and the Indenture Trustee;
(j) Termination
of Bayer Support Agreement, dated as of the date hereof, by and among Bayer, the
Owner Participant, the Note Purchaser, the Lessee, El Dorado Chemical Company,
the Indenture Trustee and the Owner Trustee;
(k) Termination
of Bayer Letter, dated as of the date hereof, by and among Bayer, the Owner
Participant, the Note Purchaser, the Lessee, El Dorado Chemical Company, the
Indenture Trustee and the Owner Trustee; and
(l) Termination
of Amended and Restated Trust Agreement, dated as of the date hereof, by and
between the Owner Participant and the Owner Trustee.
SECTION
5. Cancellation
and Return of Certain Instruments.
(a) The
Indenture Trustee shall, as promptly as practicable after the Payoff Date (and
in any event within five business days after the Payoff Date): (i) deliver to
Owner Participant the original counterpart of the Lease and each Lease
Supplement, in each case containing Indenture Trustee’s receipt therefor, such
receipt duly marked by Indenture Trustee, in respect of the Debt Payout Amount,
“paid in full” or “cancelled” and (ii) return to Lessor the outstanding Notes
marked “paid and cancelled” and provide to Lessee a photocopy of such
outstanding Notes so marked; provided that if any of the
foregoing items have been lost or destroyed, Indenture Trustee may, in lieu
thereof, deliver to Lessor, Lessee and Owner Participant an affidavit certifying
as to such loss or destruction together with an indemnity, in a form and
substance
3
customary
for such circumstances and reasonably acceptable to Lessor, Owner Participant
and Lessee.
(b) Owner
Participant shall, as promptly as practicable after receipt of the final
installment of the Equity Payout Amount (and in any event within five business
days after the Payoff Date), to the extent Indenture Trustee has delivered the
following items to Owner Participant or the following items are otherwise in the
possession of Owner Participant return to Lessee the original counterpart of the
Lease and each Lease Supplement, in each case containing Indenture Trustee’s
receipt therefor, such receipt duly marked by Indenture Trustee, in respect of
the Debt Payout Amount, “paid in full” or “cancelled” and duly marked by Owner
Participant, in respect of the Equity Payout Amount, “paid in full” or
“cancelled”.
SECTION
6. Representations
and Warranties of Bayer. Bayer represents and warrants to the
other parties hereto that:
(a) Bayer
is a limited liability company, duly organized, validly existing and in good
standing under the laws of the State of Delaware and has full power, authority
and legal right to carry on its business as now conducted and to enter into and
perform its obligations hereunder and under the Assignment
Agreement;
(b) the
Assignment Agreement constitutes the legal, valid and binding obligation of
Bayer, enforceable against it in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors’, mortgagees’ or
lessors’ rights in general and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and
(c) the
execution, delivery and performance by Bayer of the Assignment Agreement and
compliance by Bayer with all of the provisions thereof do not and will not (i)
contravene any law or regulation of the United States of America or the State of
Delaware governing the powers of Bayer; (ii) contravene any order of any court
or Governmental Authority applicable to or binding on Bayer; or (iii) contravene
the provisions of, or constitute a default by Bayer under, or result in the
creation of any lien under its organizational documents or any indenture,
mortgage, contract or other agreement or instrument to which Bayer is a party or
by which Bayer or any of its property is bound or affected.
SECTION
7. UCC
Termination Statements, etc. Effective upon receipt by
Indenture Trustee of the Debt Payout Amount and the Owner Participant of the
Equity Payout Amount: (a) each of Lessor and Indenture Trustee authorizes
Bayer to prepare and file, without the signature of Lessor or Indenture Trustee,
as the case may be, any UCC termination statements with respect to any and all
UCC financing statements previously filed by Indenture Trustee, Lessor or Note
Purchaser with respect to the obligations of the Lessor and Lessee under the
Operative Documents and Bayer shall promptly deliver copies to the Owner
Participant of such UCC termination statements in recordable form when such
statements are available from the applicable filing offices, and (b) Indenture
Trustee and Lessor shall execute and deliver to Bayer, any other termination
statements, lien releases, mortgage releases, discharges of security interests
4
and other
similar discharge or release documents (in recordable form if applicable) as are
reasonably requested by Bayer to effectuate the termination and release of the
security interests and liens securing the obligations of Lessee under the
Operative Documents.
SECTION
8. Governing
Law. THIS AGREEMENT SHALL BE IN ALL RESPECTS GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
SECTION
9. Costs;
Taxes.
(a) Lessee
shall be liable for all costs and expenses reasonably incurred by Owner
Participant, Indenture Trustee, the Note Purchaser and Lessor (including
reasonable and documented attorney’s fees and disbursements of each such Person)
arising in connection with the transactions contemplated by this Agreement in
accordance with Section 22 of the Lease. To the extent such costs and
expenses are set forth in an invoice presented to the Lessee at least two
Business Days before the Payoff Date, the Lessee will pay such costs and
expenses on the Payoff Date.
(b) Bayer
shall be responsible for, and shall indemnify the Owner Trustee or the Owner
Participant, or both (each a “Tax Indemnitee”), in an amount that does not
exceed the amount that would be imposed if only one Tax Indemnitee were
indemnifiable at the maximum rate against, all Taxes incurred in connection with
the exercise of the Fixed Price Purchase Option, including, without limitation,
sales, use, transfer or excise taxes (and any interest and penalties in
connection therewith), but excluding Taxes that are net income, franchise or
gross receipts-type Taxes imposed in lieu of income taxes.
SECTION
10. Direction
to Owner Trustee. By its execution hereof, the Owner
Participant hereby authorizes and directs the Owner Trustee to execute, deliver
and perform this Agreement, each document identified in Section 4 to which the
Owner Trustee is a party and any and all other agreements, documents,
instruments or notices and to take any and all other action (including the
termination of the Trust Agreement) as may be necessary or convenient to effect
the transactions contemplated hereby.
SECTION
11. Direction
to Indenture Trustee.
(a) By
its signature below consenting hereto, the Person identified as the “Noteholder”
for the Notes confirms that it is the Note holder for all of the Notes (the
“Noteholder”).
(b) By
its execution hereof, the Noteholder hereby authorizes and directs the Indenture
Trustee to execute, deliver and perform this Agreement, each document identified
in Section 4 to which the Indenture Trustee is a party and any and all other
agreements, documents, instruments or notices and to take any and all other
action as may be necessary or convenient to effect the transactions contemplated
hereby.
5
SECTION
12. Miscellaneous.
This
Agreement may be executed in separate counterparts. Each signed
counterpart shall be an original of this Agreement and all signed counterparts
taken together shall constitute one and the same Agreement. Delivery
of this Agreement may be made by telecopy or electronic transmission of a duly
executed counterpart copy hereof. Any party delivering an executed
counterpart of this Agreement by telecopy or other electronic means also shall
deliver an original executed counterpart, but the failure to deliver an original
executed counterpart shall not affect the validity, enforceability and binding
effect of this Agreement. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement. This is
the entire agreement between the parties with respect to the subject matter
hereof.
[signature
pages follow]
6
IN WITNESS
WHEREOF, each of the parties hereto has duly executed this Agreement as
of the day and year first above written.
BAYER
MATERIALSCIENCE LLC
By:____________________________________
Name:__________________________________
Title:___________________________________
S-1
EL DORADO
NITROGEN, L.P., as Lessee
By:____________________________________
Name:__________________________________
Title:___________________________________
S-2
EL DORADO
CHEMICAL COMPANY
By:____________________________________
Name:__________________________________
Title:___________________________________
S-3
XXXXX
FARGO BANK NORTHWEST, N.A.,
not in
its individual capacity but solely as Owner Trustee
By:____________________________________
Name:__________________________________
Title:___________________________________
S-4
BAL
INVESTMENT & ADVISORY, INC.,
as Owner Participant
as Owner Participant
By:____________________________________
Name:__________________________________
Title:___________________________________
S-5
WILMINGTON
TRUST COMPANY,
not in
its individual capacity but solely as Indenture Trustee
By:____________________________________
Name:__________________________________
Title:___________________________________
S-6
BAYERISCHE
LANDESBANK, NEW YORK BRANCH,
as Note
Purchaser and Noteholder
By:____________________________________
Name:__________________________________
Title:___________________________________
By:____________________________________
Name:__________________________________
Title:___________________________________
S-7
