EXHIBIT 10.66
IMC GLOBAL INC.
SECOND AMENDED AND RESTATED
NOTE PURCHASE AGREEMENT
$17,000,000 Series A Senior Notes
Due August 31, 2005
and
$30,000,000 Series B Senior Notes
Due July 13, 2000
Dated as of February 28, 1996
1. ASSUMPTION; AUTHORIZATION OF ISSUE OF NOTES. 2
1A. Assumption 2
1B. Authorization of Issue of Notes 2
2. ISSUANCE OF NOTES. 3
3. CONDITIONS OF EFFECTIVENESS 3
3A. Execution and Delivery of Documents 3
3B. Representations and Warranties; No Default 5
3C. Fees 5
3D. Purchase Permitted By Applicable Laws 5
3E. Legal Matters 6
3F. Proceedings; Etc 6
3G. Consummation of Merger 6
3H. New Credit Agreement 6
3I. Termination of Existing Credit Agreements 6
4. PREPAYMENTS 6
4A. [INTENTIONALLY OMITTED] 7
4B. Optional Prepayment with Yield-Maintenance Amount 7
4C. Notice of Optional Prepayment 7
4D. Partial Payments Pro Rata 7
4E. Retirement of Notes 7
5. AFFIRMATIVE COVENANTS 8
5A. Financial Statements 8
5B. Inspection of Property 9
5C. Covenant to Secure Notes Equally 10
5D. Maintenance of Insurance 10
5E. Agreement Assuming Liability on Notes 10
5F. Compliance with Laws 10
5G. Payment of Taxes, Etc 11
5H. Performance of Related Documents 11
5I. Transactions with Affiliates 11
5J. Covenant to Guarantee Obligations 12
5K. Financial Covenants 12
5L. Arrangement Letter Fee. 13
6. NEGATIVE COVENANTS 13
6A. [INTENTIONALLY OMITTED] 13
6B. Credit and Other Restrictions 13
6B(1). Lien Restrictions 13
6B(2). Debt Restriction 15
6B(3). Investments 18
6B(4). Sale of Stock of Subsidiaries 20
6B(5). Mergers, Etc. 20
6B(6). Sales, Etc. of Assets 20
6B(7). Sale or Discount of Receivables. 21
6C. Business 22
6D. Charter Amendments 22
6E. Accounting ▇▇▇▇▇▇▇ ▇▇
▇▇. Amendment, Etc. of Related Documents 22
6G. Partnerships 23
7. EVENTS OF DEFAULT 23
7A. Acceleration 23
7B. Rescission of Acceleration 27
7C. Notice of Acceleration or Rescission 27
7D. Other Remedies 27
8. REPRESENTATIONS, COVENANTS AND WARRANTIES 28
8A. Organization, Etc. 28
8B. Financial Statements 29
8C. Actions Pending 30
8D. Outstanding Indebtedness 31
8E. Title to ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. Taxes 31
8G. Conflicting Agreements and Other Matters 32
8H. Offering of Notes 32
8I. Regulation G, Etc. 32
8J. ERISA 33
8K. Governmental Consent 33
8L. Environmental Compliance 33
8M. Disclosure 34
9. REPRESENTATIONS OF THE PURCHASERS 34
9A. Nature of Purchase 34
9B. Source of Funds 34
10. DEFINITIONS 34
10A. Yield-Maintenance Terms 35
10B. Other Terms 36
10C. Accounting Principles, Terms and Determinations 49
11. MISCELLANEOUS 49
11A. Note Payments 49
11B. Expenses 49
11C. Consent to Amendments 50
11D.Form, Registration, Transfer and Exchange of Notes;
Lost Notes 50
11E. Persons Deemed Owners; Participations 51
11F. Survival of Representations and Warranties; Entire
Agreement 51
11G. Successors and Assigns 52
11H. Notices 52
11I. Disclosure to Other Persons 52
11J. Payments Due on Non-Business Days 53
11K. Severability 53
11L. Descriptive Headings 53
11M. Satisfaction Requirement 53
11N. Governing Law 53
110. Counterparts 54
11P. Binding Agreement 54
12. AMENDMENT AND RESTATEMENT 54
LIST OF ATTACHMENTS
PURCHASER SCHEDULE
EXHIBIT A -- FORM OF SERIES A NOTE
EXHIBIT B -- FORM OF SERIES B NOTE
EXHIBIT C -- FORM OF OPINION OF COMPANY'S CANADIAN SPECIAL
COUNSEL
EXHIBIT D -- FORM OF OPINION OF COMPANY'S SPECIAL COUNSEL
EXHIBIT E -- FORM OF OPINION OF COMPANY'S GENERAL COUNSEL
EXHIBIT F -- FORM OF IMC GUARANTY
EXHIBIT G -- FORM OF KALIUM GUARANTY
EXHIBIT H -- FORM OF SUBSIDIARY GUARANTY
EXHIBIT I -- FORM OF GUARANTY LETTER AGREEMENT
SCHEDULE 6B(1) -- EXISTING LIENS
SCHEDULE 6B(2) -- EXISTING DEBT
SCHEDULE 6B(3) -- EXISTING INVESTMENTS
SCHEDULE 8A(b) -- RELEVANT SUBSIDIARIES
SECOND AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
IMC GLOBAL INC.
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
As of February 28, 1996
To: The Prudential Insurance Company
of America
Each Prudential Affiliate
that is a holder of a Note
c/o Prudential Capital Group
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Managing Director
Ladies and Gentlemen:
The Vigoro Corporation, a Delaware corporation ("Vigoro"), and you have
entered into an Amended and Restated Note Purchase and Private Shelf Agreement
dated as of December 22, 1994 (as heretofore amended, restated, extended,
renewed, supplemented or otherwise modified, the "Existing Vigoro Agreement")
pursuant to which Vigoro has issued 6.68% Series A Senior Notes due August 31,
2005 in the aggregate principal amount of $17,000,000 (the "Existing Series A
Notes") and 6.64% Series B Senior Notes due July 13, 2000 in the aggregate
principal amount of $30,000,000 (the "Existing Series B Notes;" the Existing
Series A Notes and the Existing Series B Notes being herein called,
collectively, the "Vigoro Notes").
Vigoro has entered into an Agreement and Plan of Merger dated as of
November 13, 1995 with IMC Global Inc., a Delaware corporation (the "Company"),
and Bull Merger Company, a Delaware corporation and wholly-owned subsidiary of
the Company ("Bull"), pursuant to which it is intended that Bull merge with and
into Vigoro.
Consummation of the aforementioned merger, and certain transactions
contemplated in connection therewith, is prohibited by the terms of the
Existing Vigoro Agreement.
Vigoro and the Company desire that the parties hereto hereby amend and
restate the Existing Vigoro Agreement in order to permit the consummation of
the aforementioned merger and to accomplish certain other changes including,
without limitation, the assumption by the Company of all of the debts,
liabilities and obligations of Vigoro arising under and otherwise relating to
the Existing Vigoro Agreement, the Vigoro Notes and all other instruments,
agreements and undertakings made by Vigoro in connection with the Existing
Vigoro Agreement and the Vigoro Notes (collectively with the Existing Vigoro
Agreement and the Vigoro Notes, the "Existing Vigoro Documents").
Accordingly, the parties hereto agree that, effective upon the
satisfaction (or express written waiver by the Purchasers) of the conditions
precedent set forth in paragraph 3 hereof, the Company hereby assumes the
debts, liabilities and obligations of Vigoro relating to the Existing Vigoro
Documents as herein provided and the Existing Vigoro Agreement is hereby
amended and restated in its entirety to read as follows.
1. ASSUMPTION; AUTHORIZATION OF ISSUE OF NOTES.
1A. Assumption. Effective as of the Restatement Date, the Company
hereby irrevocably, absolutely, unconditionally and expressly assumes (i) the
due and punctual payment of all of the principal of, interest on, Yield-
Maintenance Amount (if any) with respect to, and all other payments due
relating to the Vigoro Notes and the other Existing Vigoro Documents (after
giving effect hereto), (ii) the due and punctual performance of all covenants
and provisions contained in the Existing Vigoro Documents (after giving effect
hereto), and (iii) all other debts, liabilities and obligations of Vigoro
arising under and otherwise relating to the Existing Vigoro Documents (after
giving effect hereto). The Company covenants that its debts, liabilities and
obligations under the Existing Vigoro Documents, this Agreement and the Notes
shall be those of a primary obligor and not a guarantor, surety or secondary
obligor. Effective as of the Restatement Date, Vigoro shall be released hereby
from the debts, liabilities and obligations assumed by the Company hereby that
arise from Vigoro's status as a signatory to the Existing Vigoro Agreement and
the Vigoro Notes; provided, however, that the foregoing shall in no way limit,
discharge or otherwise impair the debts, liabilities and obligations of Vigoro
arising under and otherwise relating to the Subsidiary Guaranty to which it is
a party.
1B. Authorization of Issue of Notes. The Company has authorized the
issue of (i) its Series A senior promissory notes (herein called the "Series A
Notes") in the aggregate principal amount of $17,000,000, maturing on August
31, 2005, bearing interest on the unpaid balance thereof at the rate specified
therein and substantially in the form of Exhibit A attached hereto, and (ii)
its Series B senior promissory notes (herein called the "Series B Notes") in
the aggregate principal amount of $30,000,000, maturing on July 13, 2000,
bearing interest on the unpaid principal thereof at the rate specified therein
and substantially in the form of Exhibit B attached hereto. The terms "Note"
or "Notes" as used herein shall include each Series A Note and each Series B
Note delivered pursuant to any provision of this Agreement and each Note
delivered in substitution or exchange for any such Note pursuant to any such
provision. Notes which have (i) the same final maturity, (ii) the same
principal prepayment dates, (iii) the same principal prepayment amounts (as a
percentage of the original principal amount of each Note), (iv) the same
interest rate, (v) the same interest payment periods, and (vi) which are
otherwise designated a "Series" hereunder are herein called a "Series" of
Notes.
2. ISSUANCE OF NOTES. On the Restatement Date, the Company will
deliver to each Purchaser at the offices of Prudential Capital Group, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, one or more Series A
Notes and one or more Series B Notes, as applicable, registered in its name,
evidencing the aggregate principal amount of Notes to be issued to such
Purchaser hereunder, as set forth opposite its name in the Purchaser Schedule
attached hereto, and in the denomination or denominations specified with
respect to such Purchaser in the Purchaser Schedule attached hereto, in
exchange for a like principal amount of Existing Series A Notes or Existing
Series B Notes, as applicable, held by such Purchaser on the Restatement Date.
The Series A Notes and the Series B Notes (i) are given in exchange and
substitution for, and not as payment of the indebtedness evidenced by, the
Existing Series A Notes and the Existing Series B Notes, respectively, (ii)
merely re-evidence the indebtedness evidenced by the Existing Series A Notes
and the Existing Series B Notes, respectively, and (iii) are not intended to
constitute a novation or discharge of the indebtedness evidenced by the
Existing Series A Notes or the Existing Series B Notes. Promptly after the
Restatement Date, each Purchaser agrees to ▇▇▇▇ the Existing Series A Notes and
Existing Series B Notes held by it "Replaced" and return such Existing Series A
Notes and Existing Series B Notes to the Company.
3. CONDITIONS OF EFFECTIVENESS. The amendment and restatement of the
Existing Vigoro Agreement pursuant to this Agreement shall not become effective
unless and until each of the following conditions have been fully satisfied, as
determined by you in your sole discretion, on or before the Restatement Date:
3A. Execution and Delivery of Documents.
The following documents shall have been executed and delivered by the
Company or its Subsidiaries, as applicable, that are a party thereto, shall in
all respects be satisfactory to you in both form and substance, and shall be in
full force and effect with no event having occurred and then continuing
thereunder that would constitute or provide a basis for termination thereof:
(i) this Agreement;
(ii) the Notes;
(iii) the Kalium Agreement;
(iv) the Kalium Notes;
(v) the IMC Guaranty;
(vi) the Kalium Guaranty;
(vii) the Subsidiary Guaranty;
(viii) the Disclosure Letter;
(ix) The Guaranty Letter Agreement;
(x) certified copies of (1) the resolutions of the Board of
Directors of the Company and each Relevant Subsidiary approving (as
applicable) this Agreement, the Notes and each other Transaction
Document to which it is or is to be a party, and (2) all documents
evidencing other necessary corporate action and governmental approvals,
if any, with respect to this Agreement, the Notes and each other
Transaction Document;
(xi) a copy of a certificate of the Secretary of State of the
state of incorporation of the Company and each Relevant Subsidiary
(provided such Subsidiary is incorporated in the United States), dated
reasonably near the Restatement Date, listing all charter documents of
such Person and each amendment thereto on file in his office and
certifying that (1) such amendments are the only amendments to such
Person's charter on file in his office, (2) such Person has paid all
franchise taxes to the date of such certificate and (3) such Person is
duly incorporated and in good standing under the laws of the state of
such Person's incorporation;
(xii) a certificate of compliance issued under the Canada
Business Corporations Act with respect to each Relevant Subsidiary that
is a party to any Transaction Document and incorporated under the laws
of Canada, together with a certified copy of the articles of each such
Person;
(xiii) a certificate of the Company and each Relevant Subsidiary
that is a party to any Transaction Document, dated the Restatement Date,
the statements made in which certificate shall be true on and as of the
Restatement Date, signed on behalf of such Person, by its Secretary or
any Assistant Secretary, certifying as to (1) the absence of any
amendments to the charter of such Person since the date of the Secretary
of State's certificate referred to above or the certified copy of the
articles referred to above, other than amendments attached to such
certificate, (2) a true and correct copy of the bylaws of such Person as
in effect on the Restatement Date, and (3) the absence of any proceeding
for the dissolution or liquidation of such Person;
(xiv) a certificate of the Secretary or an Assistant Secretary of
the Company and each Relevant Subsidiary that is a party to any
Transaction Document certifying the names and true signatures of the
officers of such Person authorized to sign each Transaction Document to
which it is or is to be a party;
(xv) certified copies of each of the Related Documents, duly
executed by the parties thereto, together with all agreements,
instruments and other documents delivered in connection therewith;
(xvi) a favorable opinion of Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and/or
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Tyerman, Canadian counsel for the Company and
certain Subsidiaries, in substantially the form of Exhibit C hereto and
as to such matters as you may reasonably request;
(xvii) a favorable opinion of Sidley & Austin, special counsel for
the Company and each Relevant Subsidiary that is a party to any
Transaction Document, in substantially the form of Exhibit D hereto and
as to such matters as you may reasonably request;
(xviii) a favorable opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel
of the Company, in substantially the form of Exhibit E hereto and as to
such matters as you may reasonably request.
3B. Representations and Warranties; No Default. The representations
and warranties contained in paragraph 8 hereof shall be true on and as of the
date hereof and the Restatement Date; there shall exist on the date hereof and
the Restatement Date no Event of Default or Default; and the Company shall have
delivered to you an Officer's Certificate, dated the Restatement Date, to both
such effects.
3C. Fees. The Company shall have paid or caused to be paid for the
reasonable fees and expenses of its special counsel, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
pursuant to the letter agreement (the "Arrangement Letter") between Prudential,
the Company and Vigoro dated February 16, 1996 by wire transfer of immediately
available funds to such account or accounts as Prudential shall have directed.
3D. Purchase Permitted By Applicable Laws. The issuance of the Notes
on the terms and conditions herein provided shall not violate any applicable
law or governmental regulation (including, without limitation, Section 5 of the
Securities Act or Regulation G, T or X of the Board of Governors of the Federal
Reserve System) and shall not subject any Purchaser to any tax (other than
ordinary income taxes), penalty, liability or other onerous condition under or
pursuant to any applicable law or governmental regulation, and such Purchaser
shall have received such certificates or other evidence as such Purchaser may
request to establish compliance with this condition.
3E. Legal Matters. Your counsel shall be reasonably satisfied as to
all legal matters relating to issuance of the Notes, this Agreement and the
other Transaction Documents and the transactions contemplated hereby and
thereby.
3F. Proceedings; Etc. All corporate and other proceedings taken or to
be taken in connection with the transactions contemplated hereby and by all
other Transaction Documents and all documents incident thereto shall be
reasonably satisfactory in substance and form to you, and you shall have
received all such counterpart originals or certified or other copies of such
documents as you may reasonably request. You shall have received such
financial, business and other information regarding the Company and each
Subsidiary as you shall have reasonably requested, including, without
limitation, information as to possible contingent liabilities, tax matters,
environmental matters, obligations under ERISA, collective bargaining
agreements and other arrangements with employees.
3G. Consummation of Merger. All consents and approvals necessary for
consummation of the Merger shall have been duly obtained and be in full force
and effect. The Merger Agreement shall be in full force and effect, and the
Merger shall have been consummated substantially in accordance with the terms
of the Merger Agreement and in compliance with all applicable laws.
3H. New Credit Agreement. The New Credit Agreement and the other
"Loan Documents" (as defined therein) shall be in full force and effect and be
satisfactory to you in form and substance. All conditions precedent to the
effectiveness of the New Credit Agreement and the making of the initial
extension of credit thereunder, as set forth in Sections 3.01 and 3.02 therein,
shall be fully satisfied and not waived or otherwise modified. You shall have
received a copy of the New Credit Agreement and such other instruments,
documents and agreements relating thereto as you may request, certified by a
Responsible Officer as being true and complete and as being in full force and
effect.
3I. Termination of Existing Credit Agreements. You shall have
received written evidence satisfactory to you that all Obligations in respect
of Debt outstanding under the Existing Credit Agreements have been prepaid,
redeemed or defeased in full or otherwise satisfied and extinguished (subject
to customary survival of provisions relating to indemnifications, taxes and
increased costs, to the extent set forth therein), and that all Existing Credit
Agreements have been terminated.
4. PREPAYMENTS. The Notes shall be subject to prepayment only with
respect to optional prepayments permitted by paragraph 4B.
4A. [INTENTIONALLY OMITTED]
4B. Optional Prepayment with Yield-Maintenance Amount. Subject to the
limitations set forth below, the Notes shall be subject to prepayment, in whole
at any time or from time to time in part (in $500,000 increments and not less
than $1,000,000 per occurrence), at the option of the Company, at 100% of the
principal amount so prepaid plus interest thereon to the prepayment date and
the Yield-Maintenance Amount, if any, with respect to each Note so prepaid.
Any partial prepayment of the Notes pursuant to this paragraph 4B shall be
applied in satisfaction of required payments (if any) of principal in the
inverse order of their scheduled due dates.
4C. Notice of Optional Prepayment. The Company shall give to the
holder of each Note of a Series irrevocable written notice of any optional
prepayment pursuant to paragraph 4B with respect to such Series not less than
thirty (30) days prior to the prepayment date, specifying (i) such prepayment
date, (ii) the aggregate principal amount of the Notes of such Series to be
prepaid on such date, (iii) the principal amount of the Notes of such holder to
be prepaid on that date, and (iv) stating that such optional prepayment is to
be made pursuant to paragraph 4B. Notice of optional prepayment having been
given as aforesaid, the principal amount of the Notes specified in such notice,
together with interest thereon to the prepayment date and together with the
Yield-Maintenance Amount, if any, with respect thereto, shall become due and
payable on such prepayment date.
4D. Partial Payments Pro Rata. In the case of each prepayment
pursuant to paragraph 4B of less than the entire unpaid principal amount of all
outstanding Notes of any Series, the amount to be prepaid shall be applied pro
rata to all outstanding Notes of such Series (including, for the purpose of
this paragraph 4D only, all Notes of such Series prepaid or otherwise retired
or purchased or otherwise acquired by the Company or any of its Subsidiaries or
Affiliates other than by prepayment pursuant to paragraph 4B) according to the
respective unpaid principal amounts thereof.
4E. Retirement of Notes. The Company shall not, and shall not permit
any of its Subsidiaries or Affiliates to, prepay or otherwise retire in whole
or in part prior to their stated final maturity (other than (i) by prepayment
pursuant to paragraph 4B or (ii) upon acceleration of such final maturity
pursuant to paragraph 7A), or purchase or otherwise acquire, directly or
indirectly, Notes held by any holder unless the Company or such Subsidiary or
Affiliate shall have offered to prepay or otherwise retire or purchase or
otherwise acquire, as the case may be, the same proportion of the aggregate
principal amount of Notes held by each other holder of Notes at the time
outstanding upon the same terms and conditions. Any Notes so prepaid or
otherwise retired or purchased or otherwise acquired by the Company or any of
its Subsidiaries or Affiliates shall not be deemed to be outstanding for any
purpose under this Agreement, except as provided in paragraph 4D.
5. AFFIRMATIVE COVENANTS.
5A. Financial Statements. The Company covenants that it will deliver
to each Significant Holder of any Notes in triplicate:
(i) as soon as practicable and in any event within 50 days
after the end of each quarterly period (other than the last quarterly
period) in each fiscal year, Consolidated statements of income and cash
flows of the Company and its Subsidiaries for the period from the
beginning of the current fiscal year to the end of such quarterly
period, and a Consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarterly period, setting forth in
each case in comparative form figures for the corresponding period in
the preceding fiscal year, all in reasonable detail and certified by an
authorized financial officer of the Company, subject to changes
resulting from year-end adjustments;
(ii) as soon as practicable and in any event within 95 days
after the end of each fiscal year, (a) Consolidated statements of income
and cash flows and a Consolidated statement of shareholders' equity of
the Company and its Subsidiaries for such year, and a Consolidated
balance sheet of the Company and its Subsidiaries as at the end of such
year, setting forth in each case in comparative form corresponding
Consolidated figures from the preceding annual audit, reported on by
independent public accountants of recognized national standing selected
by the Company whose report shall be without limitation as to scope of
the audit and shall not be qualified in any respect , and (b) a
Consolidated unaudited balance sheet of each Borrower and its
Subsidiaries as of the end of such fiscal year and Consolidated
unaudited statements of income and cash flows of such Borrower and its
Subsidiaries for such fiscal year;
(iii) promptly upon transmission thereof, copies of all such
financial statements, proxy statements, notices and reports as it shall
send to its public stockholders and copies of all registration
statements (without exhibits) and all reports which it files with the
Securities and Exchange Commission (or any governmental body or agency
succeeding to the functions of the Securities and Exchange Commission),
other than any such reports to which the Securities and Exchange
Commission accords confidential treatment; and
(iv) with reasonable promptness, such other information
respecting the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Company or any of its
Subsidiaries as such Significant Holder may from time to time reasonably
request.
Together with each delivery of financial statements required by clauses (i) and
(ii) above, the Company will deliver to each holder of any Notes an Officer's
Certificate demonstrating (with computations in reasonable detail) compliance
by the Company and its Subsidiaries with the provisions of paragraphs 5K,
6B(1)(iii), 6B(1)(vii), 6B(1)(x), 6B(2)(i), 6B(2)(ii)(F), 6B(2)(ii)(G),
6B(2)(ii)(J), 6B(2)(ii)(K), 6B(2)(ii)(M), 6B(2)(iii)(F),
6B(2)(iii)(G), 6B(3)(xiv), 6B(6)(ix) and stating that there exists no Event of
Default or Default, or, if any Event of Default or Default exists, specifying
the nature and period of existence thereof and what action the Company proposes
to take with respect thereto. Together with each delivery of financial state
ments required by clause (ii) above, the Company will deliver to each holder of
any Notes a certificate of such accountants stating that, in making the audit
necessary for their report on such financial statements, they have obtained no
knowledge of any Event of Default or Default, or, if they have obtained
knowledge of any Event of Default or Default, specifying the nature and period
of existence thereof. Such accountants, however, shall not be liable to anyone
by reason of their failure to obtain knowledge of any Event of Default or
Default which would not be disclosed in the course of an audit conducted in
accordance with generally accepted auditing standards.
The Company also covenants that immediately after any Responsible Officer
obtains actual knowledge of an Event of Default or Default, it will deliver to
each holder of any Notes an Officer's Certificate specifying the nature and
period of existence thereof and what action the Company proposes to take with
respect thereto.
5B. Inspection of Property. The Company covenants that it will permit
any Person designated by any Significant Holder in writing, at such Significant
Holder's expense, under guidance of officers of the Company or its
Subsidiaries, to visit and inspect any of the properties of the Company and its
Subsidiaries, to examine the corporate books and financial records of the
Company and its Subsidiaries and make copies thereof and extracts therefrom and
to discuss the affairs, finances and accounts of any of such corporations with
the principal officers of the Company, all at such reasonable times and as
often as such Significant Holder may reasonably request. Notwithstanding
anything to the contrary in paragraph 5A or 5B or elsewhere in this Agreement,
unless and until an Event of Default shall have occurred and be continuing, the
Company and its Subsidiaries shall have no obligation to disclose to any
Purchaser or Transferee, or any representative or agent of any Purchaser or
Transferee, any confidential non-public proprietary information relating to
operational technology, including, without limitation, information relating to
the process of solution mining of potash (when there is an Event of Default, to
the extent practicable and to the extent consistent with such Significant
Holder's objectives, such Person shall use reasonable efforts to inspect such
confidential non-public proprietary information on-site without making copies
thereof). If any such information does become known to any such Person, it
shall use its best efforts to keep such information confidential in accordance
with the requirements of this Agreement.
5C. Covenant to Secure Notes Equally. The Company covenants that, if
it or any Subsidiary shall create or assume any Lien upon any of its property
or assets, whether now owned or hereafter acquired, other than Liens permitted
by the provisions of paragraph 6B(1) (unless prior written consent to the
creation or assumption thereof shall have been obtained pursuant to paragraph
11C), it will make or cause to be made effective provision whereby the Notes
will be secured by such Lien equally and ratably with any and all other Debt
thereby secured so long as any such other Debt shall be so secured.
5D. Maintenance of Insurance. The Company covenants that it and each
Subsidiary shall maintain, with financially sound and reputable insurers,
insurance in such amounts and against such liabilities and hazards as
ordinarily carried by companies similarly situated in the same or similar lines
of business; provided, however, that the Company and its Subsidiaries may self-
insure to the same extent as other companies similarly situated in the same or
similar lines of business. The Company has delivered to the Purchasers a
summary of the insurance plans set forth in the Disclosure Letter and such
summary and the coverage described therein is satisfactory to the Purchasers as
of the date hereof.
5E. Agreement Assuming Liability on Notes. The Company covenants
that, if at any time any Person should become liable (as co-obligor, endorser,
guarantor or surety) on any other obligation for borrowed money of the Company
or on any obligation for borrowed money of any Subsidiary (other than
obligations incurred by such Subsidiary in the ordinary course of its business
in connection with take-or-pay contracts, chemical supply contracts or other
similar ordinary course agreements or arrangements), the Company will, at the
same time, cause such Person to deliver to the holders of the Notes an
agreement pursuant to which such Person becomes similarly liable on the Notes.
5F. Compliance with Laws. Except as to environmental matters, the
Company covenants that it and each Subsidiary shall comply with all applicable
laws, rules, regulations, decrees and orders of all Federal, state, local or
foreign courts or governmental agencies, authorities, instrumentalities or
regulatory bodies noncompliance with which could be reasonably expected to
result in a Material Adverse Effect. With respect to environmental matters,
the Company covenants that it and each Subsidiary shall comply with all
applicable laws, rules, regulations, decrees and orders of all federal, state,
local or foreign courts or governmental agencies, authorities,
instrumentalities or regulatory bodies relating to the protection of the
environment ("Environmental Laws") noncompliance with which could be reasonably
expected to have a material adverse effect on the ability of the Company and
its Subsidiaries to perform and comply with all of their obligations under this
Agreement and the documents delivered in connection herewith. Notwithstanding
any other provision contained in this Agreement to the contrary, the provisions
of the immediately preceding sentence of this paragraph 5F shall be the only
covenant applicable to compliance with Environmental Laws.
5G. Payment of Taxes, Etc. The Company covenants that it will pay and
discharge, and cause the Subsidiaries to pay and discharge, before the same
shall become delinquent, (i) all income and other material taxes, assessments
and governmental charges or levies imposed upon it or upon its property and
(ii) all lawful claims that, if unpaid, might by law become a Lien upon its
property; provided, however, that neither the Company nor any Subsidiary shall
be required to pay or discharge any such tax, assessment, charge, levy or claim
that is being contested in good faith and by proper proceedings and as to which
adequate reserves are being maintained, unless and until any Lien attaches with
respect thereto which is not a Lien permitted under paragraph 6B(1).
5H. Performance of Related Documents. The Company covenants that it
will, and will cause each Subsidiary (as applicable) to, perform and observe
all of the terms and provisions of each Related Document to be performed or
observed by it, maintain each such Related Document in full force and effect,
enforce such Related Document in accordance with its terms, take all such
action to such end as may be from time to time reasonably requested by any
Significant Holder and, upon the reasonable request of any Significant Holder,
make to each other party to each such Related Document such demands and
requests for information and reports or for action as such Person is entitled
to make under such Related Document, in each case except to the extent that the
failure to do so could not be reasonably likely to materially impair the value
of the interests or materially impair the rights of the Company or any
Subsidiaries and could not be reasonably likely to materially impair the
interests or materially impair the rights of any holder of Notes.
5I. Transactions with Affiliates. The Company covenants that it will
conduct, and cause the Subsidiaries to conduct, all transactions otherwise
permitted under this Agreement with any of their Affiliates on terms that are
fair and reasonable and no less favorable to the Company or such Subsidiary (as
applicable) than it would obtain in a comparable arm's-length transaction with
a Person not an Affiliate, other than: (i) the marketing and administrative
services agreement between Global Operations and the Managing Partner, (ii) the
employee leasing agreement between Global Operations and the Managing Partner,
(iii) transactions between the Joint Venture Company and (A) Global Operations'
railcar repair business located at ▇▇▇▇▇▇▇▇▇▇, Georgia, (B) Global Operations'
"Rainbow" Division, (C) Vigoro's and its Subsidiaries' "FarMarkets" Divisions
pursuant to the arrangements set forth in the Partnership Agreement as in
effect on the date hereof and (D) IMC Canada and (iv) Investments and other
transactions between or among the Company and its Subsidiaries to the extent
expressly permitted by paragraphs 6B(2), 6B(3), 6B(5) or 6B(6).
5J. Covenant to Guarantee Obligations. The Company covenants that it
will, so long as the Release Date shall not have occurred, at the expense of
the Company, at such time as any new direct or indirect Relevant Subsidiary is
formed or acquired or any existing Subsidiary of the Company becomes a Relevant
Subsidiary (other than IMC Canada, IMC Global Potash Holdings, ▇▇▇▇▇▇ ▇▇▇▇▇ Ag
Services, Inc. and the Joint Venture Company) (i) within 15 Business Days
thereafter, cause such Relevant Subsidiary to duly execute and deliver to each
holder of a Note a guaranty or other agreement, in form and substance
satisfactory to the Required Holder(s), whereby such Relevant Subsidiary
guarantees the Company's Obligations under this Agreement and the Notes, such
guaranty to be effective until the Release Date, (ii) within 30 days
thereafter, deliver to each holder of a Note a signed copy of a favorable
opinion, addressed to each holder of a Note, of internal counsel for the
Company or other counsel acceptable to the Required Holder(s) as to such
guaranty being the legal, valid and binding Obligation of the party thereto,
enforceable in accordance with its terms and as to such other matters as the
Required Holder(s) may reasonably request; provided, however, that nothing
contained in this paragraph shall require that any present or future Subsidiary
issue any such guaranty if as a result of the issuance of such guaranty, the
Company would incur material adverse tax consequences.
5K. Financial Covenants. The Company covenants that it will:
(a) Tangible Net Worth. Maintain at the end of each fiscal
quarter of the Company Adjusted Tangible Net Worth in an amount equal at
least to the sum of (i) $900,000,000, (ii) an amount equal to 40% of
cumulative Consolidated net income (calculated with the payment of
dividends on the Vigoro Series E Preferred Stock being treated as
interest payments) of the Company and its Subsidiaries for each fiscal
quarter of the Company commencing April 1, 1996 and (iii) the amount, if
any, of equity resulting from the conversion of the Company's 6.25%
Convertible Subordinated Notes due 2001 into equity.
(b) Interest Coverage Ratio. Maintain at the end of each
fiscal quarter of the Company a ratio of (x) an amount equal to
(i) Consolidated EBITDA of the Company and its Subsidiaries less
(ii) income from minority interests held by the Company or any of its
Subsidiaries to (y) the sum of (A) interest payable on, and amortization
of debt discount in respect of, all Debt of the Company and its
Subsidiaries (excluding, to the extent included therein, interest in
respect of the Chemical Supplier Debt and contingent obligations in
respect of Membership Debt) and (B) cash dividends on the Vigoro Series
E Preferred Stock of not less than 3.25:1 for the four consecutive
fiscal quarters of the Company then ended.
(c) Leverage Ratio. Maintain at all times a ratio of (i) the
sum of (A) Consolidated Funded Debt and (B) the average (calculated as
at the end of each of the twelve most recently ended months) outstanding
Consolidated short-term Debt with a maturity of less than one year from
the date of the creation of such liabilities (excluding, to the extent
included therein, Debt in respect of Hedge Agreements, the Chemical
Supplier Debt and contingent obligations in respect of Membership Debt)
and (C) the book value of the Vigoro Series E Preferred Stock minus
(D) cash and Cash Equivalents in excess of $15,000,000 of the Company
and its Subsidiaries on hand at such time to (ii) Capitalization, in
each case, of the Company and its Subsidiaries of not more than 0.55:1.
5L. Arrangement Letter Fee. The Company shall pay to Prudential all
fees due to Prudential pursuant to the Arrangement Letter; provided, however,
that notwithstanding clause (h) of the Arrangement Letter the non-refundable
fee referred to in such clause (h) shall be paid on or before the "Change Date"
(as such term is defined in the IMC Guaranty).
6. NEGATIVE COVENANTS. Unless the Required Holder(s) shall otherwise
consent in writing, the Company agrees to observe and perform and to cause its
Subsidiaries to observe and perform each of the negative covenants set forth
below so long as any Note shall remain outstanding.
6A. [INTENTIONALLY OMITTED]
6B. Credit and Other Restrictions. The Company covenants that it will
not and will not permit any Subsidiary to:
6B(1). Lien Restrictions. Create, incur, assume or suffer to exist any
Lien on or with respect to any of its properties of any character (including,
without limitation, accounts) whether now owned or hereafter acquired, or sign
or file under the Uniform Commercial Code or other applicable personal property
security legislation of any jurisdiction, a financing statement that names the
Company or any Subsidiary as debtor, or sign any security agreement authorizing
any secured party thereunder to file such financing statement, or assign any
accounts or other right to receive income, excluding, however, from the
operation of the foregoing restrictions the following:
(i) Permitted Liens;
(ii) Liens in existence on the date hereof which are
specifically described on Schedule 6B(1);
(iii) (A) Liens arising in connection with Capitalized Leases,
provided that no such Lien shall extend to or cover any property or
assets other than the assets subject to such Capitalized Leases, and (B)
Liens upon or in real property or equipment acquired or held by the
Company or any of its Subsidiaries in the ordinary course of business
after the date hereof to secure the purchase price of such property or
equipment or to secure Debt incurred or assumed solely for the purpose
of financing the acquisition, construction or improvement of any such
property or equipment to be subject to such Liens, or Liens existing on
any such property or equipment at the time of acquisition (other than
any such Liens created in contemplation of such acquisition that do not
secure the purchase price), or extensions, renewals or replacements of
any of the foregoing for the same or a lesser amount as at the time of
such acquisition, construction or improvement; provided, however, that
no such Lien shall extend to or cover any property other than the
property or equipment being acquired, constructed or approved and no
such extension, renewal or replacement shall extend to or cover any
property not theretofore subject to the Lien being extended, renewed or
replaced; provided further that such Lien shall be incurred within 180
days after such acquisition, construction or improvement; and provided
still further that the aggregate principal amount of the Debt secured by
Liens permitted by this clause (iii) shall not exceed $25,000,000 at any
time outstanding and that any such Debt shall not otherwise be
prohibited by the terms of this Agreement;
(iv) Liens arising by reason of customary deposits necessary to
qualify the Company or any of its Subsidiaries to maintain self-
insurance, to the extent such self-insurance is permitted hereunder;
(v) security deposits customarily required in connection with
leases of real property entered into in the ordinary course of business;
(vi) any interest or title of a lessor under any operating lease
and liens arising from precautionary filings of UCC financing statements
regarding leases;
(vii) attachment, judgment and other similar Liens arising in
connection with court proceedings; provided that the execution or other
enforcement of such Liens is effectively stayed within ten days after
the Company or one of its Subsidiaries receives notice thereof and the
claims secured thereby are being actively contested in good faith by
appropriate proceedings and against which an adequate reserve has been
established, and provided further that the aggregate amount secured by
such Liens does not exceed $15,000,000;
(viii) Liens on accounts receivable and other related assets
(including the taking of possession of chattel paper) arising solely in
connection with the sale, assignment or other disposition of such
accounts receivable permitted under paragraph 6B(7);
(ix) The replacement, extension or renewal of any Lien permitted
by clause (ii) above upon or in the same property theretofore subject
thereto (provided there is no increase in the amount, nor any change in
any direct or contingent obligor, of the Debt secured thereby); and
(x) Liens not otherwise covered in (i) through (ix) of this
paragraph 6B(1) which Liens do not secure obligations in an amount
exceeding $25,000,000 in the aggregate.
6B(2). Debt Restriction.
(i) in the case of the Company, unsecured Debt, provided that
immediately after giving effect thereto, the Company shall be in pro
forma compliance (calculated based on historical financial statements
most recently furnished or required to be furnished pursuant to
paragraph 5A(i) or (ii) as though such Debt had been incurred at the
beginning of the period covered thereby, adjusted to account for the
refinancing or replacement of Debt by such Debt being incurred and for
any permanent repayments of Debt) with the covenants set forth in
paragraph 5K, provided further, that with respect to any Debt arising
under Hedge Agreements, such Hedge Agreements shall be designed to hedge
against fluctuations in interest rates, commodity prices or foreign
exchange rates incurred in the ordinary course of business, shall be
consistent with prudent business practices, and shall be non-speculative
in nature (including, without limitation, with respect to the term and
purpose thereof);
(ii) in the case of the Company's Subsidiaries (other than the
Joint Venture Company),
(A) Membership Debt with respect to (i) Canpotex
incurred in the ordinary course of business and consistent with
prudent business practices or (ii) SKMG incurred in the ordinary
course of business and consistent with past business practices,
(B) Debt existing on the date hereof, as set
forth on Part I of Schedule 6B(2) (such Debt, other than Debt
consisting of intercompany Debt, being the "Existing Subsidiary
Debt"), and any Debt extending the maturity of, or refunding or
refinancing, in whole or in part, any Existing Subsidiary Debt,
provided that the terms of any such extending, refunding or
refinancing Debt, and of any agreement entered into and of any
instrument issued in connection therewith, are no more
restrictive in any material respects than the terms of the
Existing Subsidiary Debt being extended, refunded or refinanced
thereby (it being understood that Debt being refinanced at
maturity may bear interest at then-market rates) and provided
further that the principal amount of such Existing Subsidiary
Debt shall not be increased above the principal amount thereof
outstanding immediately prior to the Restatement Date and the
direct and contingent obligors therefor shall not be changed
(other than the addition of the guaranty of such Debt by the
Company) to the extent such guarantee is otherwise permitted
under paragraph 6B(2)(i), as a result of or in connection with
such extension, refunding or refinancing,
(C) Debt arising under Hedge Agreements designed
to hedge against fluctuations in interest rates, commodity prices
or foreign exchange rates incurred in the ordinary course of
business and consistent with prudent business practices, provided
that such Hedge Agreements shall be non-speculative in nature
(including, without limitation, with respect to the term and
purpose thereof),
(D) indorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary
course of business,
(E) Debt owing from a Subsidiary Guarantor to
another Subsidiary Guarantor,
(F) (i) prior to the Release Date, (x) Debt owing
from a Subsidiary Guarantor to a Non-Guarantor Subsidiary (y)
Debt owing from a Non-Guarantor Subsidiary to any other Non-
Guarantor Subsidiary, and (z) Debt owing from a Non-Guarantor
Subsidiary to a Subsidiary Guarantor, which, shall not exceed, in
the aggregate, $25,000,000 at any time outstanding, and (ii)
after the Release Date, Debt owing from any Subsidiary of the
Company to any other Subsidiary of the Company,
(G) (i) Debt in an amount of $300,000,000 in
connection with the reinstatement of the Subordinated
Intercompany Notes, and (ii) other Debt owing to the Company,
which, prior to the Release Date, shall not exceed, in the
aggregate, $300,000,000 at any time outstanding,
(H) Chemical Supplier Debt incurred in the
ordinary course of business and consistent with past business
practices,
(I) Debt of any Subsidiary arising in connection
with the redemption of the Vigoro Series E Preferred Stock
outstanding on the date hereof upon exercise of any mandatory
redemption right; provided, however, that the provisions of the
documents governing or evidencing the same are, in the good faith
determination of the Required Holder(s), not materially more
restrictive than the provisions in this Agreement and not
materially adverse to the interests of the holders of the Notes,
(J) in the case of Global Operations only and
only during such time as Global Operations is a party to the
Subsidiary Guaranty as a "Guarantor" (as such term is defined
therein) and the Subsidiary Guaranty is in full force and effect,
Debt constituting money borrowed by Global Operations under the
New Credit Agreement; provided, however, that the aggregate
outstanding principal amount thereof at no time exceeds
$405,000,000 minus the aggregate outstanding principal amount of
money borrowed by the Company under the New Credit Agreement;
provided further, that in the event any Default or Event of
Default shall occur and be continuing Global Operations shall
not, during such time, be permitted by reason of this clause (J)
to incur Debt (as opposed to permitting to exist Debt theretofore
incurred) constituting money borrowed under the New Credit
Agreement,
(K) in the case of Kalium only, Funded Debt
constituting money borrowed by Kalium under the New Credit
Agreement; provided, however, that the aggregate principal amount
borrowed shall not exceed $50,000,000,
(L) other Debt not to exceed in the aggregate
$120,000,000 outstanding at any time;
(iii) in the case of the Joint Venture Company,
(A) Debt existing on the date hereof, as set
forth on Part II of Schedule 6B(2) (the "Existing JV Debt"), and
any Debt extending the maturity of, or refunding or refinancing,
in whole or in part, any JV Existing Debt, provided that the
terms of any such extending, refunding or refinancing Debt, and
of any agreement entered into and of any instrument issued in
connection therewith, are no more restrictive in any material
respects than the terms of the Existing Debt being extended,
refunded or refinanced thereby (it being understood that Debt
being refinanced at maturity may bear interest at then-market
rates) and provided further that the principal amount of such JV
Existing Debt shall not be increased above the principal amount
thereof outstanding immediately prior to the Restatement Date and
the direct and contingent obligors therefor shall not be changed
as a result of or in connection with such extension, refunding or
refinancing,
(B) indorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary
course of business,
(C) Debt arising under Hedge Agreements designed
to hedge against fluctuations in interest rates, commodity prices
or foreign exchange rates incurred in the ordinary course of
business and consistent with prudent business practices, provided
that such Hedge Agreements shall be non-speculative in nature
(including, without limitation, with respect to the term and
purpose thereof),
(D) Membership Debt with respect to PhosChem or
Phosrock incurred in the ordinary course of business and
consistent with past business practices,
(E) Chemical Supplier Debt incurred in the
ordinary course of business and consistent with past business
practices, and
(F) other Debt not to exceed in the aggregate
$50,000,000 outstanding at any time; and
(iv) notwithstanding the foregoing provisions of this paragraph
6B(2), the Company shall at all times be in compliance with the
provisions of paragraph 5K.
6B(3). Investments. Make or hold any Investment in any Person other
than:
(i) the Company and its Subsidiaries may acquire and hold
receivables owing to them, if created or acquired in the ordinary course
of business and payable or dischargeable in accordance with prudent
business practices;
(ii) Investments by the Company or any of its Subsidiaries in
Cash Equivalents;
(iii) Investments by the Company or any of its Subsidiaries
resulting from Hedge Agreements permitted under paragraph 6B(2)(i) or
(ii)(C);
(iv) Investments (a) by Global Operations and the Managing
Partner in the Joint Venture Company in accordance with the terms of the
Partnership Agreement and (b) by Global Operations in IMC Partner, the
Managing Partner and the Joint Venture Company, in each case pursuant to
and in accordance with the Partnership Agreement or as otherwise
permitted under paragraph 6B(2)(iii)(A);
(v) Equity investments by the Company or any of its
Subsidiaries in any of its Subsidiaries made prior to the date hereof;
(vi) Investments by the Company or any of its Subsidiaries in
any third party made prior to the date hereof and set forth on Schedule
6B(3);
(vii) Investments in connection with the acquisition of all or a
material part of the assets or capital stock or other equity interest of
any Person provided, however, that in connection with any such
acquisition for which the aggregate consideration payable in connection
therewith is in excess of 5% of Adjusted Tangible Net Worth (calculated
as at the end of the most recent fiscal quarter for which financial
statements have been furnished to the Significant Holders pursuant to
paragraph 5A(i) or (ii)), the Company shall have delivered to each
holder of Notes an officer's certificate executed by the chief financial
officer or treasurer of the Company which certificate shall
(a) demonstrate that on a pro forma basis determined as if such
acquisition had been consummated on the date occurring 12 months prior
to the last day of the most recently ended fiscal quarter for which
financial statements have been furnished pursuant to paragraph 5A(i) or
(ii), the Company and its Subsidiaries would have been in compliance
with paragraph 5K(b) for the relevant period ended on the last day of
such fiscal quarter, (b) demonstrate compliance with paragraph 5K(a) and
paragraph 5K(c) after giving effect to such acquisition, and (c) state
that no Default or Event of Default then exists or would result
therefrom;
(viii) the Company or any of its Subsidiaries may acquire and hold
promissory notes received in connection with any asset sale permitted
pursuant to paragraph 6B(6)(ix);
(ix) Equity Investments made after the date hereof by the
Company and its Subsidiaries in any of its Subsidiaries;
(x) Investments consisting of Debt owing to the Company or any
of its Subsidiaries permitted under paragraph 6B(2)(i) or (ii)(E), (F)
or (G);
(xi) Investments consisting of guaranties by the Company of Debt
of its Subsidiaries to the extent permitted under paragraph 6B(2);
(xii) Investments consisting of the purchase, repurchase, self-
tender or redemption of capital stock of the Company;
(xiii) Investments in special purpose vehicles on a basis
consistent with the securitization program for the Joint Venture Company
in effect on the date hereof in connection with securitizations, to the
extent otherwise permitted hereunder; and
(xiv) other Investments having an aggregate cost at any time not
to exceed $35,000,000.
6B(4). Sale of Stock of Subsidiaries. Sell or otherwise dispose of any
shares of Voting Stock of any Relevant Subsidiary (other than (i)the
contribution of the Voting Stock of Kalium and/or CCP to IMC Global Potash
Holdings and (ii) the sale or other disposition by Kalium of 10 shares of
Preferred Stock owned by it in KCL Holdings, Inc.) or any warrants, rights or
options to acquire such Voting Stock or permit any Relevant Subsidiary to
issue, sell or otherwise dispose of any shares of its Voting Stock or the
Voting Stock of any other Relevant Subsidiary (other than the issuance of
Preferred Stock of IMC Global Potash Holdings in an amount not to exceed
$10,000,000) or any warrants, rights or options to acquire such Voting Stock.
6B(5). Mergers, Etc. Merge into, amalgamate or consolidate with any
Person or permit any Person to merge into it, or permit any of its Subsidiaries
to do so, or enter into any contract or arrangement that, upon consummation,
will result in any Person or two or more Persons acquiring control over Voting
Stock of the Company (or other securities convertible into such securities)
representing 35% or more of the combined voting power of all Voting Stock of
the Company, except that (i) the Company, Bull and Vigoro may consummate the
Merger, (ii) any Non-Guarantor Subsidiary may merge into, amalgamate or
consolidate with any other Non-Guarantor Subsidiary, (iii) any Subsidiary
Guarantor may merge into, amalgamate or consolidate with any other Subsidiary
Guarantor, (iv) any Subsidiary Guarantor may merge into, amalgamate or
consolidate with any Non-Guarantor Subsidiary, provided, however, that in the
case of any such merger, amalgamation or consolidation prior to the Release
Date, such Subsidiary Guarantor is the surviving corporation and (v) after the
Release Date, (x) any of the Company's wholly owned Subsidiaries may merge into
the Company and (y) any of the Company's Subsidiaries may merge into any other
of the Company's Subsidiaries; provided further that in each case, immediately
after giving effect thereto, no event shall occur and be continuing that
constitutes a Default or an Event of Default and, in the case of any such
merger to which the Company is a party, the Company is the surviving
corporation.
6B(6). Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of any assets, including, without limitation, any manufacturing plant
or substantially all assets constituting the business of a division, branch or
other unit operation, or grant any option or other right to purchase, lease or
otherwise acquire any assets other than inventory to be sold in the ordinary
course of its business, except:
(i) sales of assets in the ordinary course of its business
(whether to a to a third party or to any other Subsidiary) consistent
with past business practices;
(ii) in a transaction authorized by paragraph 6B(5);
(iii) the sale of the Company's 50% interest in Chinhae Chemical
Company, Ltd., a Korean Chemical Company, for cash and for fair value;
(iv) the limited recourse sale of accounts receivable permitted
under paragraph 6(7);
(v) the lease (as lessee) by the Company or any of its
Subsidiaries of real or personal property in the ordinary course of
business (as long as such lease does not create Debt under Capitalized
Leases not permitted under paragraph 6B(2));
(vi) prior to the Release Date, any sale of assets by (A) any
Subsidiary Guarantor to any Non-Guarantor Subsidiary, (B) the Company to
any of its Subsidiaries, and (C) any Subsidiary Guarantor to the Company
in an aggregate amount under this subclause (vi) not to exceed
$25,000,000, from the date hereof to the Release Date;
(vii) after the Release Date, any sale or other disposition of
assets (A) made by the Company to a Subsidiary of the Company for fair
value (including by way of liquidation or dissolution of such
Subsidiary) and (B) made by a Subsidiary of the Company to any other
Subsidiary of the Company or to the Company;
(viii) sale, discount, or transfer of (a) delinquent accounts
receivable in the ordinary course of business for purposes of collection
or (b) receivables arising in connection with credit card purchases sold
or transferred, in each case, in the ordinary course of business and
consistent with past practices; and
(ix) other sales of assets (except as set forth below) and for
fair value in an amount not to exceed (A) an aggregate purchase price of
$50,000,000 for any consecutive twelve-month period or (B) an aggregate
of $150,000,000 from the date hereof until all Notes are fully paid.
6B(7). Sale or Discount of Receivables. Notwithstanding any other
provision herein, sell with recourse, or discount or otherwise sell, assign or
dispose for less than the fact value thereof, any of its notes or accounts
receivable, provided that the Company and its Subsidiaries may sell with
recourse or discount or otherwise sell, assign or dispose for less than face
value thereof notes or accounts receivable having a face value that does not
exceed an aggregate outstanding amount of $150,000,000 at any time.
6C. Business. The Company covenants that it will not, and will not
permit any of its Subsidiaries to, engage (directly or indirectly) in any
business other than lines of business in which the Company or its Subsidiaries
was engaged on the date hereof and other reasonably related business incidental
to such lines of business.
6D. Charter Amendments. The Company covenants that it will not amend,
or permit any of its Subsidiaries to amend, its charter or bylaws in any manner
that could be reasonably expected to be adverse to any holder of Notes.
6E. Accounting Changes. The Company covenants that it will not make
or permit, or permit any of its Subsidiaries to make or permit, any change in
accounting policies or reporting practices, except as required or permitted
(with the consent of the Company's independent public accountants), by U.S. or
Canadian generally accepted accounting principles or make more than two changes
in its fiscal year, provided that the Company shall promptly provide written
notice to the holders of Notes of any change in its fiscal year; provided
further, however, that if any changes in U.S. GAAP or Canadian GAAP are
hereafter required or permitted and are adopted by the Company or any of its
Subsidiaries and such changes result in a material change in the method of
calculation of any of the financial covenants contained in paragraph 5K or the
restrictions contained in paragraph 6B or in the related definitions or terms
used in either of such Sections ("Material Accounting Changes"), the parties
hereto agree to enter into negotiations, in good faith, in order to amend such
provisions in a credit neutral manner so as to reflect equitably such changes
with the desired result that the criteria for evaluating the Company and its
Subsidiaries' financial condition shall be the same after such changes as if
such changes had not been made; provided, however, that no Material Accounting
Change shall be given effect in such calculations until such provisions are
amended, in a manner reasonably satisfactory to the Company and the Required
Holders.
6F. Amendment, Etc. of Related Documents. The Company covenants that
it will not cancel or terminate any Related Document or consent to or accept
any cancellation or termination thereof, amend or otherwise modify any Related
Document or give any consent, waiver or approval thereunder, waive any default
under or breach of any Related Document, agree in any manner to any other
amendment, modification or change of any term or condition of any Related
Document or take any other action in connection with any Related Document or
permit any of its Subsidiaries to do any of the foregoing, in each case, that
would materially impair or reduce the value of the interests or materially
impair the rights of the Company or any Subsidiary or that would materially
impair the interests or materially impair the rights of any holder of Notes.
6G. Partnerships. The Company covenants that it will not become a
general partner in any general or limited partnership, or permit any of its
Subsidiaries to do so, other than (i) any Subsidiary the sole assets of which
consist of its interest in such partnership, (ii) as contemplated by, and in
accordance with the terms of, the Partnership Agreement and (iii) other
partnerships so long as before and after giving effect thereto, no Default or
Event of Default shall have occurred and be continuing.
7. EVENTS OF DEFAULT.
7A. Acceleration. If any of the following events shall occur and be
continuing for any reason whatsoever (and whether such occurrence shall be
voluntary or involuntary or come about or be effected by operation of law or
otherwise):
(i) the Company defaults in the payment of any principal of, or
Yield-Maintenance Amount payable with respect to, any Note when the same
shall become due, either by the terms thereof or otherwise as herein
provided; or
(ii) the Company defaults in the payment of any interest on any
Note for more than 10 days after the date due; or
(iii) the Company or any Subsidiary defaults (whether as primary
obligor or as guarantor or other surety) in any payment of principal of
or interest on any other Debt beyond any period of grace provided with
respect thereto, or the Company or any Subsidiary fails to perform or
observe any other agreement, term or condition contained in any
agreement under which any Debt is created (or if any other event
thereunder or under any such agreement shall occur and be continuing)
and the effect of such failure or other event is to cause, or to permit
the holder or holders of such Debt (or a trustee on behalf of such
holder or holders) to cause, such Debt to become due (or to be
repurchased by the Company or any Subsidiary) prior to any stated
maturity, provided that the aggregate amount of all Debt as to which
such a payment default shall occur and be continuing or such a failure
or other event causing or permitting acceleration (or resale to the
Company or any Subsidiary) shall occur and be continuing exceeds
$15,000,000; or
(iv) any representation or warranty made by the Company herein
or by the Company or any of its officers in any writing furnished in
connection with or pursuant to this Agreement shall be false in any
material respect on the date as of which made; or
(v) the Company fails to perform or observe any agreement
contained in ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ 5K or paragraph
6; or
(vi) the Company fails to perform or observe any other
agreement, term or condition contained herein and such failure shall not
be remedied within 30 Business Days after (a) written notice thereof
shall have been received by the Company from the Required Holder(s), or
(b) any Responsible Officer obtains actual knowledge thereof; or
(vii) the Company or any Subsidiary makes an assignment for the
benefit of creditors or is generally not paying its debts as such debts
become due; or
(viii) any decree or order for relief in respect of the Company or
any Subsidiary is entered under any bankruptcy, reorganization,
compromise, arrangement, insolvency, readjustment of debt, dissolution
or liquidation or similar law, whether now or hereafter in effect
(herein called the "Bankruptcy Law"), of any jurisdiction; or
(ix) the Company or any Subsidiary petitions or applies to any
tribunal for, or consents to, the appointment of, or taking possession
by, a trustee, receiver, custodian, liquidator or similar official of
the Company or any Subsidiary, or of any substantial part of the assets
of the Company or any Subsidiary, or commences a voluntary case under
the Bankruptcy Law of the United States or any proceedings (other than
proceedings for the voluntary liquidation and dissolution of a
Subsidiary) relating to the Company or any Subsidiary under the
Bankruptcy Law of any other jurisdiction; or
(x) any such petition or application is filed, or any such
proceedings are commenced, against the Company or any Subsidiary and the
Company or such Subsidiary by any act indicates its approval thereof,
consent thereto or acquiescence therein, or an order, judgment or decree
is entered appointing any such trustee, receiver, custodian, liquidator
or similar official, or approving the petition in any such proceedings,
and such order, judgment or decree is not controverted diligently in
good faith or remains unstayed and in effect for more than 60 days; or
(xi) any order, judgment or decree is entered in any proceedings
against the Company decreeing the dissolution of the Company and such
order, judgment or decree remains unstayed and in effect for more than
60 days: or
(xii) (a) any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule 13d-
3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Stock of the
Company (or other securities convertible into such Voting Stock)
representing 35% or more of the combined voting power of all Voting
Stock of the Company; or (b) during any period of up to 24 consecutive
months, commencing after the date of this Agreement, individuals who at
the beginning of such 24-month period were directors of the Company
shall cease for any reason (other than due to death or disability) to
constitute a majority of the board of directors of the Company, except
to the extent that individuals who at the beginning of such 24-month
period were replaced by individuals (x) elected by 66-2/3% of the
remaining members of the board of directors of the Company of
(y) nominated for election by a majority of the remaining members of the
board of directors of the Company and thereafter elected as directors by
the shareholders of the Company; or (3) any Person or two or more
Persons acting in concert shall have acquired by contract or otherwise,
or shall have entered into a contract or arrangement that, upon
consummation, has resulted in its or their acquisition of, control over
Voting Stock of the Company (or other securities convertible into such
securities) representing 35% or more of the combined voting power of all
Voting Stock of the Company; or
(xiii) one or more judgments or decrees shall be entered against
the Company or any of its Subsidiaries involving in the aggregate for
the Company and its Subsidiaries a liability (not paid or fully covered
by a financially sound insurance company (subject to deductibles and
retrospective adjustments)) and such judgments and decrees either shall
be final and non-appealable or shall not be vacated, discharged or
stayed or bonded pending appeal, in each case for any period of thirty
(30) consecutive days or more and the aggregate amount of all such
judgments exceeds $15,000,000; or
(xiv) (a) the Company shall fail to comply with or to perform any
provision of, or otherwise be in default beyond any applicable grace
period under, the New Credit Agreement or the IMC Guaranty (whether or
not such failure or default is subsequently waived, consented to or
rescinded); Kalium shall fail to comply with or to perform any provision
of, or otherwise be in default beyond any applicable grace period under
the Kalium Agreement, the Kalium Notes or the Kalium Guaranty (whether
or not such failure or default is subsequently waived, consented to or
rescinded); any Subsidiary shall fail to comply with or to perform any
provision of, or otherwise be in default beyond any applicable grace
period under the Subsidiary Guaranty or any other guaranty delivered
pursuant to paragraph 5J (whether or not such failure or default is
subsequently waived, consented to or rescinded); or any of the IMC
Guaranty, the Kalium Guaranty, the Subsidiary Guaranty or any other
guaranty delivered pursuant to paragraph 5J shall fail to remain in full
force and effect in accordance with its terms (except to the extent of
any release granted in accordance with its terms) or any guarantor
thereunder shall take any action to disaffirm any of its obligations
thereunder or terminate any provisions thereof; or (b) Vigoro shall fail
to declare and pay on the applicable dividend payment date two
consecutive quarterly dividends on the Series E Preferred Stock and such
failure shall continue unremedied for five Business Days after written
notice to Vigoro; or
(xv) any facts, circumstances, conditions or occurrences shall
arise or exist with respect to any of the litigation described in the
Disclosure Letter such that such litigation could reasonably be expected
to have a material adverse effect on the ability of the Company and its
Subsidiaries to perform and comply with all of their obligations under
this Agreement and the other Termination Documents; or
(xvi) the Company and its Subsidiaries or any of their respective
properties (whether or not then owned) shall have failed to comply at
any time and in any respect with any applicable federal, state, local or
regional statute, law, ordinance or judicial or administrative order,
judgment, ruling or regulation relating to the protection of the
environment and such non-compliance individually or in the aggregate
could reasonably be expected to have a material adverse effect on the
ability of the Company and its Subsidiaries to perform and comply with
all of their obligations under this Agreement and the other Transaction
Documents;
then (a) if such event is an Event of Default specified in clause (i) or (ii)
of this paragraph 7A, the holder of any Note (other than the Company or any of
its Subsidiaries or Affiliates) may at its option, by notice in writing to the
Company, declare such Note to be, and such Note shall thereupon be and become,
immediately due and payable together with interest accrued thereon and together
with the Yield-Maintenance Amount, if any, with respect to each such Note,
without presentment, demand, protest or notice of any kind, all of which are
hereby waived by the Company, (b) if such event is an Event of Default
specified in clause (viii), (ix) or (x) of this paragraph 7A with respect to
the Company, all of the Notes at the time outstanding shall automatically
become immediately due and payable at par together with interest accrued
thereon, without presentment, demand, protest or notice of any kind, all of
which are hereby waived by the Company, and (c) if such event is not an Event
of Default specified in clause (viii), (ix) or (x) of this paragraph 7A with
respect to the Company, the Required Holder(s) of any Series of Notes may at
its or their option, by notice in writing to the Company, declare all of the
Notes of such Series to be, and all of the Notes of such Series shall thereupon
be and become, immediately due and payable together with interest accrued
thereon and together with the Yield-Maintenance Amount, if any, with respect to
each Note of such Series, without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Company, provided that the
Yield-Maintenance Amount, if any, with respect to each Note of such Series
shall be due and payable upon such declaration only if (x) such event is an
Event of Default specified in any of clauses (i) through (vi), inclusive, or
clauses (xi) through (xvi), inclusive, of this paragraph 7A, (y) the Required
Holder(s) of such Series shall have given to the Company, at least 10 Business
Days before such declaration, written notice stating its or their intention so
to declare the Notes of such Series to be immediately due and payable and
identifying one or more such Events of Default whose occurrence on or before
the date of such notice permits such declaration, and (z) one or more of the
Events of Default so identified shall be continuing at the time of such
declaration.
7B. Rescission of Acceleration. At any time after any or all of the
Notes of a Series shall have been declared immediately due and payable pursuant
to paragraph 7A, the Required Holder(s) of such Series may, by notice in
writing to the Company, rescind and annul such declaration and its consequences
if (i) the Company shall have paid all overdue interest on the Notes of such
Series, the principal of and Yield-Maintenance Amount, if any, payable with
respect to any Notes of such Series which have become due otherwise than by
reason of such declaration, and interest on such overdue interest and overdue
principal and Yield-Maintenance Amount at the rate specified in the Notes of
such Series, (ii) the Company shall not have paid any amounts which have become
due solely by reason of such declaration, (iii) all Events of Default and
Defaults, other than non-payment of amounts which have become due solely by
reason of such declaration, shall have been cured or waived pursuant to
paragraph 11C, and (iv) no judgment or decree shall have been entered for the
payment of any amounts due pursuant to the Notes of such Series or this
Agreement (as this Agreement pertains to the Notes of such Series). No such
rescission or annulment shall extend to or affect any subsequent Event of
Default or Default or impair any right arising therefrom.
7C. Notice of Acceleration or Rescission. Whenever any Note shall be
declared immediately due and payable pursuant to paragraph 7A or any such
declaration shall be rescinded and annulled pursuant to paragraph 7B, the
Company shall forthwith give written notice thereof to the holder of each Note
at the time outstanding.
7D. Other Remedies. If any Event of Default or Default shall occur
and be continuing, the holder of any Note may proceed to protect and enforce
its rights under this Agreement and such Note by exercising such remedies as
are available to such holder in respect thereof under applicable law, either by
suit in equity or by action at law, or both, whether for specific performance
of any covenant or other agreement contained in this Agreement or in aid of the
exercise of any power granted in this Agreement. No remedy conferred in this
Agreement upon the holder of any Note is intended to be exclusive of any other
remedy, and each and every such remedy shall be cumulative and shall be in
addition to every other remedy conferred herein or now or hereafter existing at
law or in equity or by statute or otherwise.
8. REPRESENTATIONS, COVENANTS AND WARRANTIES. The Company
represents, covenants and warrants as follows:
8A. Organization, Etc.
(a) The Company (i) is a corporation duly organized, validly
existing and good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases
property or in which the conduct of its business requires it to so
qualify or be licensed except where the failure to so qualify or be
licensed could not be reasonably likely to have a Material Adverse
Effect and (iii) has all requisite corporate power and authority to own
or lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted.
(b) Set forth on Schedule 8A(b) hereto is a complete and
accurate list of all Relevant Subsidiaries as of the Restatement Date,
showing as of the Restatement Date (as to each such Subsidiary) the
jurisdiction of its incorporation, as of the Restatement Date, the
number of shares of each class of capital stock authorized, and the
number outstanding, on the Restatement Date and the percentage of the
outstanding shares of each such class owned (directly or indirectly) by
the Company and its Subsidiaries and the number of shares covered by all
outstanding options, warrants, rights of conversion or purchase and
similar rights at the date hereof. All of the outstanding capital stock
of all of such Subsidiaries has been validly issued, is fully paid and
non-assessable and is owned as of the Restatement Date by the Company or
one or more of its Subsidiaries free and clear of all Liens. Each such
Subsidiary (i) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation,
(ii) is duly qualified and in good standing as a foreign or extra-
provincial corporation in each other jurisdiction in which it owns or
leases property or in which the conduct of its business requires it to
so qualify or be licensed except where the failure to so qualify or be
licensed could not be reasonably likely to have a Material Adverse
Effect and (iii) has all requisite corporate power and authority to own
or lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted.
(c) The execution, delivery and performance by the Company and,
as applicable, its Subsidiaries of this Agreement, the Notes, each other
Transaction Document and each Related Document to which it is or is to
be a party, and the consummation of the Merger and the other
transactions, contemplated hereby and thereby, are within such Person's
corporate powers, and have been duly authorized by all necessary
corporate action.
(d) All applicable waiting periods in connection with the
Merger and the other transactions contemplated hereby have expired and
no action has been taken by any competent authority restraining,
preventing or imposing materially adverse conditions upon the
transactions contemplated hereby.
(e) This Agreement has been, and each of the Notes, each other
Transaction Document and each Related Document when delivered hereunder
will have been, duly executed and delivered by the Company and each
Subsidiary (as the case may be) that is a party thereto. This Agreement
is, and each of the Notes, each other Transaction Document and each
Related Document when delivered hereunder will be, the legal, valid and
binding obligation of the Company and each Subsidiary (as the case may
be) that is a party thereto, enforceable against such Person in
accordance with its terms subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally.
8B. Financial Statements.
(a) The Consolidated balance sheets of the Company and its
Subsidiaries as at June 30, 1995, and the related Consolidated statement
of operations of the Company and its Subsidiaries for the fiscal year
then ended, accompanied by an opinion of the Company's independent
public accountants, and the Consolidated balance sheets of the Company
and its Subsidiaries as at September 30, 1995, and the related
Consolidated statement of operations of the Company and its Subsidiaries
for the three months then ended, duly certified by the treasurer or
chief financial officer of the Company, copies of which have been
furnished to you, fairly present, subject, in the case of said balance
sheets as at September 30, 1995, and said statement of operations for
the three months then ended, to year-end audit adjustments, the
Consolidated financial condition of the Company and its Subsidiaries as
at such dates and the Consolidated results of the operations of the
Company and its Subsidiaries for the periods ended on such dates, all in
accordance with generally accepted accounting principles applied on a
consistent basis, and since June 30, 1995, there has been no Material
Adverse Change.
(b) The Consolidated balance sheets of Vigoro and its
Subsidiaries as at December 31, 1994, and the related Consolidated
statements of income and cash flows of Vigoro and its Subsidiaries for
the fiscal year then ended, accompanied by an opinion of Vigoro's
independent public accountants, and the Consolidated balance sheets of
Vigoro and its Subsidiaries as at December 31, 1995, and the related
Consolidated statements of income and cash flows of Vigoro and its
Subsidiaries for the twelve months then ended, duly certified by the
treasurer or chief financial officer of Vigoro, copies of which have
been furnished to you, fairly present, subject, in the case of said
balance sheets as at December 31, 1995, and said statements of income
and cash flows for the twelve months then ended, to year-end audit
adjustments, the Consolidated financial condition of Vigoro and its
Subsidiaries as at such dates and the Consolidated results of the
operations of Vigoro and its Subsidiaries for the periods ended on such
dates, all in accordance with generally accepted accounting principles
applied on a consistent basis, and since December 31, 1994, there has
been no Material Adverse Change.
(c) The unaudited Consolidated pro forma condensed combined
financial information of the Company and its Subsidiaries consisting of
the unaudited Consolidated pro forma combined statement of operations
for the one-year period ending June 30, 1995 and the unaudited pro forma
condensed Consolidated pro forma combined balance sheet at September 30,
1995, certified by the treasurer or chief financial officer of the
Company and the treasurer or chief financial officer of Vigoro, copies
of which have been furnished to you, fairly present the Consolidated pro
forma financial condition of the Company and its Subsidiaries at
September 30, 1995 and the Consolidated pro forma results of operations
of the Company and its Subsidiaries for the one-year period ended on
June 30, 1995, in each case giving effect to the Merger, all in
accordance with U.S. GAAP.
(d) The Consolidated forecasted balance sheets, income
statements and cash flows statements of the Company and its Subsidiaries
delivered to you in connection herewith were prepared in good faith on
the basis of the assumptions stated therein, which assumptions were fair
in the light of conditions existing at the time of delivery of such
forecasts, and represented, at the time of delivery, the Company's and
Vigoro's, as applicable, good faith estimate of its and its applicable
Subsidiaries' future financial performance, it being understood that
uncertainty is inherent in any forecasts or projections and that no
assurances can be given by the Company or Vigoro of the future
achievement of such performance.
8C. Actions Pending. Except as to environmental matters (which are
addressed solely by paragraph 8L) and litigation set forth in the Disclosure
Letter, there is no action, suit, investigation or proceeding pending or, to
the actual knowledge of the Responsible Officers of the Company, threatened
against the Company or any Subsidiary or any properties or rights of the
Company or any Subsidiary, by or before any court, arbitrator or administrative
or governmental body which could be reasonably expected to have a Material
Adverse Effect, and there has been no material change in the status, or
financial effect on the Company or any Subsidiary, of the litigation and
environmental matters referenced in the Disclosure Letter from that described
therein that could reasonably be expected to have a Material Adverse Effect.
With respect to the litigation set forth in the Disclosure Letter, to the
actual knowledge of the Responsible Officers of the Company, there have been no
actions taken by the Company or any of its Subsidiaries that are the subject of
such litigation that could be reasonably expected to have a material adverse
effect on the ability of the Company and its Subsidiaries to perform and comply
with all their respective obligations under this Agreement and the other
Transaction Documents.
8D. Outstanding Indebtedness. Neither the Company nor any Subsidiary
has any Debt outstanding except as permitted by paragraph 6B(2). There exists
no default under the provisions of any instrument evidencing such Debt or of
any agreement relating thereto.
8E. Title to Properties. The Company has, and each Subsidiary has,
good and indefeasible title to its respective real properties (other than
properties which it leases) and good title to all of its other properties and
assets, including the properties and assets reflected in the most recent
audited balance sheet of the Company referred to in paragraph 8B (other than
properties and assets disposed of in the ordinary course of business), subject
to no Lien of any kind except Liens permitted by paragraph 6B(1). The Company
and each Subsidiary enjoys peaceful and undisturbed possession of all leases
necessary in any material respect for the conduct of their respective
businesses, none of which contains any unusual or burdensome provisions which
could be reasonably expected to materially affect or impair the operation of
such businesses. All such leases are valid and subsisting and are in full
force and effect.
8F. Taxes. The Company has, and each Subsidiary has, filed all
federal, state, provincial, local and foreign income and other material tax
returns which are required to be filed, and each has paid all income and other
material taxes as shown on such returns and on all assessments received by it
to the extent that such taxes have become due, except for such taxes for which
valid extensions have been filed and not denied and for such other taxes as are
being contested in good faith by appropriate proceedings for which adequate
reserves have been established in accordance with generally accepted accounting
principles, unless and until any Lien resulting therefrom attaches which is not
a Lien permitted under paragraph 6(B)(1).
8G. Conflicting Agreements and Other Matters. As of the Restatement
Date, neither the Company nor any of its Subsidiaries is a party to any
contract or agreement or subject to any charter or other corporate restriction
which materially and adversely affects its business, property or assets, or
financial condition. Neither the execution nor delivery of this Agreement or
any other Transaction Document, nor the offering, issuance and sale of the
Notes, nor fulfillment of nor compliance with the terms and provisions hereof
and thereof will conflict with, or result in a breach of the terms, conditions
or provisions of, or constitute a default under, or result in any violation of,
or result in the creation of any Lien upon any of the properties or assets of
the Company or any of its Subsidiaries pursuant to, the charter or by-laws of
the Company or any of its Subsidiaries, any award of any arbitrator or any
agreement (including any agreement with stockholders), instrument, order,
judgment, decree, statute, law, rule or regulation to which the Company or any
of its Subsidiaries is subject.
8H. Offering of Notes. Neither the Company nor any agent acting on
its behalf has, directly or indirectly, offered the Notes or any similar
security of the Company for sale to, or solicited any offers to buy the Notes
or any similar security of the Company from, or otherwise approached or
negotiated with respect thereto with, any Person other than Institutional
Investors, and neither the Company nor any agent acting on its behalf has taken
or will take any action which would subject the issuance or sale of the Notes
to the provisions of section 5 of the Securities Act or to the provisions of
any securities or blue sky law of any applicable jurisdiction.
8I. Regulation G, Etc. The proceeds of sale of the Vigoro Notes were
used primarily to refinance certain existing Debt of Vigoro and for its working
capital purposes. None of such proceeds were used, directly or indirectly, for
the purpose whether immediate, incidental or ultimate, of purchasing or
carrying any margin stock or for the purpose of maintaining, reducing or
retiring any Debt which was originally incurred to purchase or carry any stock
that is currently a margin stock or for any other purpose which might
constitute this transaction a "purpose credit" within the meaning of Regulation
G. Neither the Company nor any of its Subsidiaries is engaged principally, or
as one of their important activities, in the business of extending credit for
the purpose of purchasing or carrying margin stock, and less than twenty-five
percent (25%) of the assets of the Company and its Subsidiaries subject to any
arrangement (as such term is used in Section 207.2(f) of Regulation G)
hereunder consists of margin stock. Neither the Company nor any agent acting
on its behalf has taken or will take any action which might cause this
Agreement or any other Transaction Document to violate Regulation G, Regulation
T or any other regulation of the Board of Governors of the Federal Reserve
System or to violate the Securities Exchange Act of 1934, as amended, in each
case as in effect now or as the same may hereafter be in effect.
8J. ERISA. No accumulated funding deficiency (as defined in section
302 of ERISA and section 412 of the Code), whether or not waived, exists with
respect to any Plan (other than a Multiemployer Plan). No liability to the
Pension Benefit Guaranty Corporation has been or is expected by the Company or
any ERISA Affiliate to be incurred with respect to any Plan (other than a
Multiemployer Plan) by the Company, any Subsidiary or any ERISA Affiliate which
is or would be materially adverse to the performance, business, assets,
operations, properties, condition (financial or otherwise) or prospects of the
Company and its Subsidiaries taken as a whole. Neither the Company, any
Subsidiary or any ERISA Affiliate has incurred or presently expects to incur
any withdrawal liability under Title IV of ERISA with respect to any
Multiemployer Plan which is or would be materially adverse to the Company and
its Subsidiaries taken as a whole. The execution and delivery of this
Agreement and the issuance and sale of the Notes will be exempt from, or will
not involve any transaction which is subject to the prohibitions of, section
406 of ERISA and will not involve any transaction in connection with which a
penalty could be imposed under section 502(i) of ERISA or a tax could be
imposed pursuant to section 4975 of the Code. The representation by the
Company in the next preceding sentence is made in reliance upon and subject to
the accuracy of each Purchaser's representation in paragraph 9B.
8K. Governmental Consent. Neither the nature of the Company or of any
Subsidiary, nor any of their respective businesses or properties, nor any
relationship between the Company or any Subsidiary and any other Person, nor
any circumstance in connection with the offering, issuance, sale or delivery of
the Notes or in connection with the execution, delivery or performance of any
other Transaction Document or Related Document is such as to require any
authorization, consent, approval, exemption or other action by or notice to or
filing with any court or administrative or governmental body (other than
routine filings after the date of closing with the Securities and Exchange
Commission and/or state Blue Sky authorities) in connection with the execution
and delivery of any Transaction Document or Related Document, the offering,
issuance, sale or delivery of the Notes or fulfillment of or compliance with
the terms and provisions of this Agreement.
8L. Environmental Compliance. To the best knowledge of the
Responsible Officers of the Company and except as disclosed in the Disclosure
Letter, the Company and its Subsidiaries and all of their respective properties
and facilities have complied at all times and in all respects with all
applicable Environmental Laws except, in any such case, where failure to comply
either individually or in the aggregate could not reasonably be expected to
have a material adverse effect on the ability of the Company and its
Subsidiaries to perform and comply with all of their respective obligations
under this Agreement and the other Transaction Documents. Notwithstanding any
other provision contained in paragraph 8, the provisions of this paragraph 8L
shall be the only representations and warranties applicable to compliance with
Environmental Laws
8M. Disclosure. Other than projections and forecasts as to which no
representation under this paragraph 8M is made, neither this Agreement nor any
other document, certificate or statement furnished to any holder of any Note by
or on behalf of the Company in connection herewith (taken as a whole) contains
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements contained herein and therein not
misleading at the time and in light of the circumstances under which such
information was provided. There is no fact peculiar to the Company or any of
its Subsidiaries which materially adversely affects or in the future may (so
far as the Company can now reasonably foresee) materially adversely affect the
business, property or assets, or financial condition of the Company and its
Subsidiaries taken as a whole and which has not been set forth in this
Agreement or in the other documents, certificates and statements furnished to
Prudential by the Company prior to the date hereof in connection with the
transactions contemplated hereby.
9. REPRESENTATIONS OF THE PURCHASERS.
Each Purchaser represents as follows:
9A. Nature of Purchase. Such Purchaser did not acquire and does not
hold the Notes acquired by it hereunder with a view to or for sale in
connection with any distribution thereof within the meaning of the Securities
Act, provided that the disposition of such Purchaser's property shall at all
times be and remain within its control.
9B. Source of Funds. The source of funds used by such Purchaser to
pay the purchase price of the Existing Series A Notes and the Existing Series B
Notes purchased by it under the Existing Vigoro Agreement, and the Existing
Series A Notes and Existing Series B Notes held by it on the Restatement Date,
constitutes assets allocated to: (i) such Purchaser's "insurance company
general account" (as such term is defined under Section V of the United States
Department of Labor's Prohibited Transaction Class Exemption ("PTCE") 95-60),
and as of the date of the purchase such Purchaser satisfied all of the
applicable requirements for relief under Sections I and IV of PTCE 95-60 or
(ii) an account maintained by such Purchaser in which no employee benefit plan,
other than employee benefit plans identified on a list which has been furnished
by such holder to the Company, participates to the extent of 10% or more. For
the purpose of this paragraph 9B, the terms "separate account" and "employee
benefit plan" shall have the respective meanings specified in section 3 of
ERISA.
10. DEFINITIONS. For the purpose of this Agreement, the terms defined
in the introductory paragraph of this Agreement and in paragraph 1 shall have
the respective meanings specified therein, and the following terms shall have
the meanings specified with respect thereto below:
10A. Yield-Maintenance Terms.
"Called Principal" shall mean, with respect to any Note, the principal of
such Note that is to be prepaid pursuant to paragraph 4 or is declared to be
immediately due and payable pursuant to paragraph 7A, as the context requires.
"Designated Spread" shall mean (i) with respect to the Called Principal
of any Series B Note, an amount equal to 0.50% plus the difference between (a)
the non-default rate of interest applicable to such Series B Note in effect as
of the Settlement Date for such Series B Note and (b) 6.64%; and (ii) with
respect to the Called Principal of any Series A Note, an amount equal to the
difference between (a) the non-default rate of interest applicable to such Note
as of the Settlement Date for such Note and (b) 6.68%.
"Discounted Value" shall mean, with respect to the Called Principal of
any Note, the amount obtained by discounting all Remaining Scheduled Payments
with respect to such Called Principal from their respective scheduled due dates
to the Settlement Date with respect to such Called Principal, in accordance
with accepted financial practice and at a discount factor (calculated on the
same periodic basis as that on which interest on such Note is payable) equal to
the Reinvestment Yield with respect to such Called Principal.
"Reinvestment Yield" shall mean, with respect to the Called Principal of
any Note, the Designated Spread plus the yield to maturity implied by (i) the
yields reported, as of 10:00 A.M. (New York City local time) on the Business
Day next preceding the Settlement Date with respect to such Called Principal,
on the display designated as "Page 678" on the Telerate Service (or such other
display as may replace Page 678 on the Telerate Service) for actively traded
U.S. Treasury securities having a maturity equal to the Remaining Average Life
of such Called Principal as of such Settlement Date, or if such yields shall
not be reported as of such time or the yields reported as of such time shall
not be ascertainable, (ii) the Treasury Constant Maturity Series yields
reported, for the latest day for which such yields shall have been so reported
as of the Business Day next preceding the Settlement Date with respect to such
Called Principal, in Federal Reserve Statistical Release H.15 (519) (or any
comparable successor publication) for actively traded U.S. Treasury securities
having a constant maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date. Such implied yield shall be determined,
if necessary, by (a) converting U.S. Treasury ▇▇▇▇ quotations to bond-
equivalent yields in accordance with accepted financial practice and (b)
interpolating linearly between yields reported for various maturities.
"Remaining Average Life" shall mean, with respect to the Called Principal
of any Note, the number of years (calculated to the nearest one-twelfth year)
obtained by dividing (i) such Called Principal into (ii) the sum of the
products obtained by multiplying (a) each Remaining Scheduled Payment of such
Called Principal (but not of interest thereon) by (b) the number of years
(calculated to the nearest one-twelfth year) which will elapse between the
Settlement Date with respect to such Called principal and the scheduled due
date of such Remaining Scheduled Payment.
"Remaining Scheduled Payments" shall mean, with respect to the Called
Principal of any Note, all payments of such Called Principal and interest
thereon that would be due on or after the Settlement Date with respect to such
Called Principal if no payment of such Called Principal were made prior to its
scheduled due date.
"Settlement Date" shall mean, with respect to the Called Principal of any
Note, the date on which such Called Principal is to be prepaid pursuant to
paragraph 4 or is declared to be immediately due and payable pursuant to
paragraph 7A, as the context requires.
"Yield-Maintenance Amount" shall mean, with respect to any Note, an
amount equal to the excess, if any, of the Discounted Value of the Called
Principal of such Note over the sum of (i) such Called Principal plus (ii)
interest accrued thereon as of (including interest due on) the Settlement Date
with respect to such Called Principal. The Yield-Maintenance Amount shall in
no event be less than zero; provided, however, that prior to March 1, 1997 the
Yield-Maintenance Amount shall in no event be less than (i) $690,600 with
respect to Series A Notes (or, if the Yield-Maintenance Amount is being
determined with respect to less than 100% of the outstanding principal amount
of all Series A Notes, then the Yield-Maintenance Amount shall not be less than
the product of (i) $690,600 and (2) the quotient obtained by dividing the
aggregate outstanding principal amount of the Series A Notes for which the
Yield-Maintenance Amount is to be paid by the aggregate outstanding principal
amount of all Series A Notes) and (ii) $1,377,600 with respect to Series B
Notes (or, if the Yield-Maintenance Amount is being determined with respect to
less than 100% of the outstanding principal amount of all Series B Notes, then
the Yield-Maintenance Amount shall not be less than the product of (1)
$1,377,600 and (2) the quotient obtained by dividing the aggregate outstanding
principal amount of the Series B Notes for which the Yield-Maintenance Amount
is to be paid by the aggregate outstanding principal amount of all Series B
Notes).
10B. Other Terms.
"Adjusted Tangible Net Worth" shall mean, at any time of determination,
an amount equal to the amount by which (a) Consolidated total shareholders'
equity (excluding the aggregate liquidation preference of the Vigoro Series E
Preferred Stock) in the Company and its Subsidiaries exceeds (b) Consolidated
total intangible assets of the Company and its Subsidiaries; provided, however,
that in calculating Adjusted Tangible Net Worth, the one time and ongoing
impact of the change in the functional currency of any foreign Subsidiary for
purposes of the consolidation of their accounts with those of the Company and
its other Subsidiaries in the financial statements of the Company recorded as
the foreign currency translation adjustment in the equity accounts of the
Consolidated financial statements of the Company shall be excluded.
"Affiliate" shall mean, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling", "controlled
by" and "under common control with") of a Person shall mean the possession,
direct or indirect, of the power to vote 10% or more of the Voting Stock of
such Person or to direct or cause the direction of the management and policies
of such Person, whether through the ownership of Voting Stock, by contract or
otherwise.
"Agreement Accounting Principles" shall mean U.S. GAAP or Canadian GAAP,
as the case may be, as applied in the preparation of the financial statements
referred to in paragraph 8B, applied in all material respects on a consistent
basis, together with any changes in U.S. GAAP or Canadian GAAP, as the case may
be, after the date hereof or any inconsistent applications by the Company or
any of its Subsidiaries arising as a result of the Merger, in each case, which
are not Material Accounting Changes, to the extent permitted under paragraph
6E. In the event an amendment is entered into pursuant to paragraph 6E, all
references in this Agreement to Agreement Accounting Principles, U.S. GAAP or
Canadian GAAP shall mean U.S. GAAP or Canadian GAAP, as applicable, as in
effect from time to time after the date of such amendment, applied in all
material respects thereafter on a consistent basis taking into account such
amendment, together with any changes in U.S. GAAP or Canadian GAAP, as
applicable, or any inconsistent applications by the Company or any of its
Subsidiaries arising as a result of the Merger after the date of such amendment
in each case which are not Material Accounting Changes, to the extent permitted
under paragraph 6E.
"Arrangement Letter" has the meaning specified in paragraph 3C.
"Bankruptcy Code" shall mean Title 11 of the United States Code (11
U.S.C. 101 et. seq.), as amended from time to time, or any successor statute.
"Bankruptcy Law" shall have the meaning specified in clause (viii) of
paragraph 7A.
"Borrower" shall mean Global Operations, KCL Holdings, Inc. and IMC
Global Potash Holdings.
"Business Day" shall mean any day other than (i) a Saturday or a Sunday,
and (ii) a day on which commercial banks in Chicago, Illinois or New York, New
York are required or authorized to be closed.
"Canadian GAAP" shall mean, at any time, accounting principles generally
accepted in Canada as recommended in the Handbook of the Canadian Institute of
Chartered Accountants, applied, except as otherwise provided in paragraph 6E,
on a consistent basis.
"Canpotex" shall mean Canpotex Limited, a corporation organized under the
federal laws of Canada.
"Canpotex Debt" shall mean all Debt of IMC Canada and Kalium or any other
Subsidiary of the Company arising out of or related to their membership in
Canpotex, including all Debt under (i) the Ground Lease and the Facilities
Lease with the Port of Portland and related documents in connection with the
issuance by the Port of Portland of $48,000,000 in aggregate principal amount
of its Special Obligation Revenue Bonds, Series 1996 (Portland Bulk Terminals,
L.L.C. Project and (ii) the Loan Agreement with London Life Insurance Company
and the corresponding Neptune Port Expansion Loan Agreement with Neptune Bulk
Terminal (Canada) LTD and related documents in the aggregate principal amount
of Canadian $30,000,000.
"Capitalization" shall mean the sum of (a) Adjusted Tangible Net Worth
plus (b) Consolidated Funded Debt.
"Capitalized Leases" has the meaning specified in clause (e) of the
definition of Debt.
"Cash Equivalents" shall mean, as to any Person, (i) securities issued or
directly and fully guaranteed or insured by the United States, or Canada or any
province thereof, or any agency or instrumentality thereof (provided that the
full faith and credit of the United States, or Canada or any province thereof,
is pledged in support thereof) having maturities of not more than six months
from the date of acquisition, (ii) time deposits and certificates of deposit of
any commercial bank incorporated in the United States or Canada of recognized
standing having capital and surplus in excess of $250,000,000 having, or which
is the principal banking subsidiary of a bank holding company having, a long-
term unsecured debt rating of at least "A" or the equivalent thereof from S&P
or "A-2" or the equivalent thereof from ▇▇▇▇▇'▇ or at least A or the equivalent
thereof by Canadian Bond Rating Service Limited or at least A Middle or the
equivalent thereof by Dominion Bond Rating Service Limited with maturities of
not more than six months from the date of acquisition by such Person, (iii)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (i) above entered into with any
bank meeting the qualifications specified in clause (ii) above, (iv) commercial
paper issued by any Person incorporated in the United States, or Canada or any
province thereof, rated at least A-1 or the equivalent thereof by S&P or at
least P-1 or the equivalent thereof by ▇▇▇▇▇'▇ or at least A-1 or the
equivalent thereof by Canadian Bond Rating Service Limited or at least R-1
(Middle or High) or the equivalent thereof by Dominion Bond Rating Service
Limited and in each case maturing not more than six months after the date of
acquisition by such Person, (v) investments in money market funds substantially
all of whose assets are comprised of securities of the types described in
clauses (i) through (iv) above and (vi) investments in funds substantially all
of whose assets are comprised of securities of the types described in clauses
(i) through (v) above in an aggregate principal amount not to exceed $5,000,000
at any one time outstanding without regard to the credit rating qualifications
set forth in any of such clauses.
"CCP" shall mean Central Canada Potash, Inc., a Delaware corporation.
"Chemical Supplier Debt" shall mean indebtedness incurred in the ordinary
course of business owing by the Company or any of its Subsidiaries to chemical
suppliers, which indebtedness represents a financing of the purchase price of
such goods.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Consolidated" refers to the consolidation of accounts in accordance with
Agreement Accounting Principles.
"Consolidated Funded Debt" as of any date means the aggregate amount of
the Consolidated Funded Debt of the Company and its Consolidated Subsidiaries
outstanding on that date (but excluding, to the extent otherwise included
therein, Excluded Debt).
"Current Interest" has the meaning specified in Section 4.01 of the
Partnership Agreement.
"Debt" of any Person shall mean, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all payment Obligations of
such Person for the deferred purchase price of property or services (other than
trade payables and other accrued expenses not overdue by more than 180 days
incurred in the ordinary course of such Person's business and other than
Obligations of such Person arising in connection with take-or-pay contracts not
overdue by more than 180 days with suppliers of ammonia, phosphate, natural gas
or other fertilizer or for transport of such products to meet its normal raw
material supply requirements in the ordinary course of business) such as take-
or-pay and similar Obligations, (c) all Obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all Obligations of
such Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all Obligations of such Person as lessee under leases that have been or should
be, in accordance with Agreement Accounting Principles, recorded as capital
leases ("Capitalized Leases"), (f) all Obligations, contingent or otherwise, of
such Person under acceptance, letter of credit or similar facilities, (g) all
Obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any capital stock of or other ownership or
profit interest in such Person or any of its Affiliates or any warrants, rights
or options to acquire such capital stock, valued, in the case of Redeemable
Preferred Stock, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends, (h) all Obligations of such
Person for production payments from property operated by or on behalf of such
Person and other similar arrangements with respect to natural resources, (i)
all Obligations of such Person in respect of Hedge Agreements, (j) all Debt of
others referred to in clauses (a) through (i) above guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement (i) to pay or purchase such Debt
or to advance or supply funds for the payment or purchase of such Debt, (ii) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make payment of
such Debt or to assure the holder of such Debt against loss, (iii) to supply
funds to or in any other manner invest in the debtor (including any agreement
to pay for property or services irrespective of whether such property is
received or such services are rendered) or (iv) otherwise to assure a creditor
against loss, and (k) all Debt referred to in clauses (a) through (j) above
secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including,
without limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Debt. For purposes only of paragraph 6B(2), the term Debt shall include
obligations incurred in connection with the limited recourse sale of accounts
receivable. For all other purposes, including, without limitation, for
purposes of the financial covenants in paragraph 5K, Debt shall not be
interpreted to include any such obligations incurred in connection with sales
of receivables permitted under paragraph 6B(7).
"Disclosure Letter" shall mean that certain letter dated February 28,
1996 from the Company to the Purchasers in which disclosures of certain
litigation and environmental matters regarding the Company and its
Subsidiaries, certain insurance matters and certain joint venture accounting
matters are set forth.
"Dollars" and "$" shall mean the lawful money of the United States of
America.
"EBITDA" shall mean, for any period, net income (or net loss) (calculated
prior to giving effect to any dividends on the Vigoro Series E Preferred Stock)
plus the sum of (a) interest expense, (b) income tax expense, (c) the "JV
Consolidation Adjustment" (calculated on substantially the same basis as set
forth in the Disclosure Letter, (d) depreciation, amortization and depletion
expense (including, without limitation, depreciation, amortization and
depletion expense relating to oil and gas-producing properties but excluding
depreciation, amortization and depletion expense included in the "JV
Consolidation Adjustment" referred to in clause (c) above), (e) any non-cash
foreign exchange losses, (f) extraordinary losses (other than extraordinary
losses realized in cash from the utilization of net operating loss carry
forwards) and (g) any income, loss or expense of the Joint Venture Company
attributable to Freeport (calculated based on the Current Interest then held by
it in the Joint Venture Company), in each case determined in accordance with
Agreement Accounting Principles for such period minus (i) any non-cash foreign
exchange gains and (ii) extraordinary gains (other than extraordinary gains
realized in cash from the utilization of net operating loss carry forwards).
"Environmental Laws" has the meaning specified in paragraph 5F.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"ERISA Affiliate" shall mean any corporation which is a member of the
same controlled group of corporations as the Company within the meaning of
section 414(b) of the Code, or any trade or business which is under common
control with the Company within the meaning of section 414(c) of the Code.
"Event of Default" shall mean any of the events specified in paragraph
7A, provided that there has been satisfied any requirement in connection with
such event for the giving of notice, or the lapse of time, or the happening of
any further condition, event or act, and "Default" shall mean any of such
events, whether or not any such requirement has been satisfied.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Excluded Debt" means Chemical Supplier Debt, Debt consisting of
obligations in respect of Hedge Agreements and contingent obligations in
respect of Membership Debt.
"Existing Credit Agreements" means the Global Operations Credit Agreement
and the Vigoro Credit Agreement.
"Freeport" shall mean Freeport-McMoRan Resource Partners, Limited
Partnership, a Delaware limited partnership.
"Funded Debt" shall mean, with respect to any Person, all Debt of such
Person which by its terms or by the terms of any instrument or agreement
relating thereto matures, or which is otherwise payable or unpaid, more than
one year from, or is directly or indirectly renewable or extendible at the
option of the debtor to a date more than one year (including an option of the
debtor under a revolving credit or similar agreement obligating the lender or
lenders to extend credit over a period of more than one year) from, the date of
the creation thereof (except Debt in respect of Hedge Agreements) and shall
include, without limitation, the current portion of Funded Debt.
"Global Operations" shall mean IMC Global Operations Inc.
"Global Operations Credit Agreement" means the Amended and Restated
Credit Agreement dated as of July 31, 1995, as amended, among Global
Operations, as borrower, the Company, as guarantor, the banks parties thereto,
Citibank, as administrative agent, co-agent and swing line bank and NationsBank
and Cooperative Centrale Raiffeissen-Boerenleenbank B.A., as co-agents.
"Guaranty Letter" shall mean the letter agreement, dated as of February
28, 1996, among the parties to the Subsidiary Guaranty and substantially in the
form of Exhibit I attached hereto, as amended, restated, extended, renewed,
supplemented or otherwise modified from time to time.
"Hedge Agreements" shall mean interest rate swap, cap or collar
agreements, interest rate future or option contracts, foreign exchange
contracts, currency swap agreements, currency future or option contracts,
commodity contracts (including, without limitation, options, forwards, futures
and similar agreements) and other similar agreements.
"IMC Canada" shall mean International Minerals & Chemical (Canada) Global
Limited, a corporation organized under the federal laws of Canada.
"IMC Global Potash Holdings" shall mean IMC Global Potash Holdings Inc.,
a Delaware corporation.
"IMC Guaranty" shall mean that certain Second Amended and Restated
Related Party Guaranty dated as of the date hereof made by the Company and
Vigoro in favor of Prudential and certain other Persons substantially in the
form of Exhibit F attached hereto, as amended, restated, extended, renewed,
supplemented or otherwise modified from time to time in accordance with the
terms thereof.
"IMC Partner" shall mean IMC-Agrico GP Company, a Delaware corporation,
or any successor corporation otherwise permitted hereunder.
"Institutional Investor" shall mean Prudential, any Prudential Affiliate
or any bank, bank affiliate, financial institution, insurance company, pension
fund, endowment or other organization which regularly acquires debt instruments
for investment.
"Investment" in any Person shall mean any loan or advance to such Person,
any purchase or other acquisition of any capital stock, warrants, rights,
options, obligations or other securities of such Person, any capital
contribution to such Person or any other investment in such Person, including,
without limitation, any arrangement pursuant to which the investor incurs Debt
of the types referred to in clauses (i) and (j) of the definition of "Debt" in
respect of such Person.
"Joint Venture Company" shall mean IMC-Agrico Company, a Delaware general
partnership established pursuant to the terms of the Partnership Agreement.
"Kalium" shall mean Kalium Canada, Ltd., a corporation organized under
the federal laws of Canada.
"Kalium Agreement" shall mean that certain Second Amended and Restated
Note Purchase Agreement, dated as of the date hereof, among Kalium, Prudential
and the other Persons who may from time to time become parties thereto, as
amended, restated, extended, renewed, supplemented or otherwise modified from
time to time in accordance with the terms thereof.
"Kalium Guaranty" shall mean that certain Amended and Restated Affiliate
Guaranty dated as of the date hereof made by Kalium in favor of Prudential and
certain other Persons substantially in the form of Exhibit G attached hereto,
as amended, restated, extended, renewed, supplemented or otherwise modified
from time to time in accordance with the terms thereof.
"Kalium Notes" shall mean each promissory note issued by Kalium pursuant
to the Kalium Agreement.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien (statutory or otherwise) or charge of any kind (including any agreement to
give any of the foregoing, any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing of or agreement to
give any financing statement under the Uniform Commercial Code of any
jurisdiction) or any other type of preferential arrangement for the purpose, or
having the effect, of protecting a creditor against loss or securing the
payment or performance of an obligation.
"Managing Partner" shall mean IMC-Agrico MP, Inc., a Delaware
corporation.
"Margin Stock" shall have the meaning specified in Regulation G.
"Material Accounting Changes" has the meaning specified in paragraph 6E.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Company and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Company and its Subsidiaries taken as a whole,
(b) the rights and remedies of any holder of any Note under any Transaction
Document or (c) the ability of the Company or any Subsidiary to perform its
Obligations under any Transaction Document or Related Document to which it is
or is to be a party.
"Membership Debt" shall mean, with respect to the Company or any of its
Subsidiaries, (a) Canpotex Debt and (b) all Debt arising out of or related to
its membership in SKMG, PhosChem or Phosrock.
"Merger" shall mean the merger of Bull Merger Company, a Delaware
corporation and wholly owned subsidiary of the Company, with and into Vigoro as
contemplated by the Merger Agreement.
"Merger Agreement" shall mean that certain Agreement and Plan of Merger
dated as of November 13, 1995 among the Company, Vigoro and Bull Merger
Company, as amended, supplemented or otherwise modified from time to time in
accordance with its terms to the extent permitted hereby.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" shall mean any Plan which is a "multiemployer plan"
(as such term is defined in section 4001 (a) (3) of ERISA).
"New Credit Agreement" shall mean that certain Credit Agreement dated as
of February 28, 1996 among the Company, Kalium, certain other Subsidiaries,
certain financial institutions, Citibank, N.A., as U.S. administrative agent,
Citibank Canada, as Canadian administrative agent, and certain other parties,
as amended, restated, extended, renewed, supplemented or otherwise modified
from time to time in accordance with the terms thereof.
"Non-Guarantor Subsidiary" means any Subsidiary of the Company other than
a Subsidiary Guarantor.
"Notes" shall have the meaning specified in paragraph 1B.
"Obligation" shall mean any obligation of any kind, including, without
limitation, any liability on any claim, whether or not the right of any
creditor to payment in respect of such claim is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed,
legal, equitable, secured or unsecured, and whether or not such claim is
discharged, stayed or otherwise affected by any proceeding under any Bankruptcy
Law.
"Officer's Certificate" shall mean a certificate signed in the name of
the Company by an Responsible Officer of the Company.
"Partnership Agreement" shall mean the Amended and Restated Partnership
Agreement dated as of July 1, 1993 (as further amended and restated as of May
26, 1995, as further amended as of January 25, 1996) among IMC Partner, Agrico,
Limited Partnership, the Managing Partner and Global Operations, together with
all schedules and exhibits thereto, as amended, supplemented or otherwise
modified from time to time in accordance with its terms to the extent permitted
in accordance with this Agreement.
"Permitted Liens" means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced
or as to which such enforcement, collection, execution, levy or foreclosure
proceeding is being contested in good faith in a proper proceeding, and is not
reasonably likely to have a Material Adverse Effect: (a) liens imposed by law,
such as suppliers', vendors', carriers', landlords', warehousemen's, workmen's,
materialmen's and mechanics' liens and other similar liens arising in the
ordinary course of business which secure obligations other than for money
borrowed and that are not more than 60 days past due or which are being
contested in good faith by appropriate proceedings and for which adequate
reserves shall have been set aside on the Company's books; (b) easements,
building restrictions, zoning restrictions, reservations, exceptions,
encroachments, rights of way, covenants running with the land, encumbrances or
charges against real property as are of a nature generally existing with
respect to properties of a similar character and which do not materially affect
the marketability of such real property or interfere in any material respect
with the ordinary conduct of the Company or its Subsidiaries; (c) liens
securing the performance of any contract or undertaking made in the ordinary
course of business (as such business is currently conducted) other than for the
borrowing of money; (d) deposits or pledges under worker's compensation,
unemployment insurance, social security and other similar laws, or to secure
the performance of bids, tenders or contracts (other than for the repayment of
borrowed money) or to secure indemnity, performance or other similar bonds for
the performance of bids, tenders or contracts (other than for the repayment of
borrowed money) or to secure statutory obligations or surety or appeal bonds,
or to secure indemnity, performance or other similar bonds in the ordinary
course of business; (e) liens which arise by operation of law under Article 4
of the Uniform Commercial Code in favor of a collecting bank; and (f) liens
with respect to the payment of taxes, assessments or governmental charges in
all cases which are not yet due or which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves have been
established.
"Person" shall mean an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"PhosChem" shall mean The Phosphate Chemicals Export Association.
"Phosrock" shall mean The Phosphate Rock Export Association.
"Plan" shall mean any "employee pension benefit plan" (as such term is
defined in section 3 of ERISA) which is or has been established or maintained,
or to which contributions are or have been made, by the Company or any ERISA
Affiliate.
"Preferred Stock" shall mean, with respect to any corporation, capital
stock issued by such corporation that is entitled to a preference or priority
over any other capital stock issued by such corporation upon any distribution
of such corporation's assets, whether by dividend or upon liquidation.
"Prudential" shall mean The Prudential Insurance Company of America.
"Prudential Affiliate" shall mean any corporation or other entity all of
the Voting Stock (or equivalent voting securities or interests) of which is
owned by Prudential either directly or through Prudential Affiliates.
"Purchaser" shall mean any Note holder identified on the Purchaser
Schedule.
"Purchaser Schedule" shall mean the schedule attached hereto entitled
"Purchaser Schedule", as amended, supplemented or otherwise modified from time
to time in accordance with the terms hereof.
"Redeemable" shall mean, with respect to any capital stock, Debt or other
right or Obligation, any such right or Obligation that (a) the issuer has
undertaken to redeem at a fixed or determinable date or dates, whether by
operation of a sinking fund or otherwise, or upon the occurrence of a condition
not solely within the control of the issuer or (b) is redeemable at the option
of the holder.
"Regulation G" shall mean Regulation G of the Board of Governors of the
Federal Reserve System.
"Related Documents" shall mean the Merger Agreement and the Partnership
Agreement.
"Release Date" shall mean the date on which the Company shall have
received a rating of BBB- or above from S&P or Baa3 or above from Moody's on
any class of the Company's non-credit enhanced long-term senior unsecured Debt,
provided that no Default or Event of Default shall have occurred and shall be
continuing on such date.
"Relevant Subsidiary" shall mean, at any time, a Subsidiary of the
Company having (a) at least 5% of the total Consolidated assets of the Company
and its Subsidiaries (determined as of the last day of the most recent fiscal
quarter of such Person) or (b) at least 5% of the Consolidated EBITDA of the
Company and its Subsidiaries for the four consecutive fiscal quarters most
recently ended, in each case as shown in a certificate of the treasurer or
chief financial officer of the Company.
"Required Holder(s)" shall mean, at any time, the holder or holders of at
least 51% of the aggregate principal amount of the Notes outstanding at such
time.
"Responsible Officer" shall mean the chief executive officer, chief
operating officer, chief financial officer, treasurer, or chief accounting
officer of the Company or any other officer of the Company involved principally
in its financial administration or its controllership function.
"Restatement Date" shall mean March 1, 1996, or such other date as the
parties hereto may agree in writing.
"S&P" shall mean Standard & Poor's Ratings Group, a division of ▇▇▇▇▇▇-
▇▇▇▇, Inc.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Series" shall have the meaning specified in paragraph 1B.
"Significant Holder" shall mean (i) Prudential or any Prudential
Affiliate, so long as Prudential or any Prudential Affiliate shall hold any
Note or (ii) any other holder of at least 10% of the aggregate principal amount
of any Series of Notes from time to time outstanding. To the extent that any
notice or document is required to be delivered to the Significant Holders under
this Agreement, such requirement shall be satisfied with respect to Prudential
and all Prudential Affiliates by giving notice, or delivery of a copy of any
such document, to Prudential (addressed to Prudential and each such Prudential
Affiliate).
"SKMG" shall mean The Sulphate of Potash Magnesia Export Association.
"Subsidiary" of any Person shall mean any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or
classes of such corporation shall or might have voting power upon the
occurrence of any contingency), (b) the interest in the capital or profits of
such limited liability company, partnership or joint venture or (c) the
beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more
of its other Subsidiaries or by one or more of such Person's other
Subsidiaries; provided that in any event, (i) the Joint Venture Company shall
be deemed to be a Subsidiary of Global Operations and the Company and (ii) the
term "Subsidiary" shall be determined after giving effect to the Merger.
Unless otherwise expressly provided, all references herein to "Subsidiary"
shall mean a Subsidiary of the Company.
"Subsidiary Guarantors" means the Subsidiaries listed on Schedule 8A(b)
hereto and any other Relevant Subsidiaries (other than IMC Canada, IMC Global
Potash Holdings and the Joint Venture Company) that shall be required to
execute and deliver a guaranty or otherwise become a guarantor hereunder
pursuant to paragraph 5J.
"Subsidiary Guaranty" shall mean that certain Amended and Restated
Affiliate Guaranty dated as of the date hereof made by the Subsidiary
Guarantors in favor of Prudential and certain other Persons substantially in
the form of Exhibit H attached hereto, as amended, restated, extended, renewed,
supplemented or otherwise modified from time to time in accordance with the
terms thereof.
"Subordinated Intercompany Notes" shall mean (i) the Substitute
Subordinated Intercompany Promissory Note dated March 1, 1996 in the principal
amount of $215,000,000 issued by Global Operations to the Company, (ii) the
Substitute Subordinated Intercompany Promissory Note dated March 1, 1996 in the
principal amount of $260,000,000 issued by Global Operations to the Company,
and (iii) the Substitute Subordinated Intercompany Note dated March 1, 1996 in
the principal amount of $160,000,000 issued by Global Operations to the
Company.
"Transaction Documents" shall mean, collectively, this Agreement, the
Notes, the IMC Guaranty, the Kalium Guaranty, the Subsidiary Guaranty, each
guaranty delivered pursuant to paragraph 5J and all other agreements,
instruments and other documents executed and delivered by the Company or any
Subsidiary pursuant to the foregoing.
"Transferee" shall mean any direct or indirect transferee of all or any
part of any Note purchased by any Purchaser under this Agreement.
"U.S. GAAP" shall mean, at any time, accounting principles generally
accepted in the United States of America as recommended by the Financial
Accounting Standards Board, applied, except as otherwise provided in paragraph
6E on a consistent basis.
"Vigoro Credit Agreement" means the Amended and Restated Credit Agreement
dated as of December 22, 1994 by and among Vigoro, Kalium, CCP, the banks
parties thereto, Bankers Trust Company, as Administrative Agent and ▇▇▇▇▇▇
Trust and Savings Bank, as Paying Agent.
"Vigoro Series E Preferred Stock" shall mean the shares of preferred
stock of Vigoro, par value $100 per share, designated Series E.
"Voting Stock" shall mean capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even if the right so
to vote has been suspended by the happening of such a contingency.
10C. Accounting Principles, Terms and Determinations. All accounting
terms not specifically defined in this Agreement shall be construed in
accordance with Agreement Accounting Principles.
11. MISCELLANEOUS.
11A. Note Payments. The Company agrees that, so long as any Purchaser
shall hold any Note, it will make payments of principal of, interest on and any
Yield-Maintenance Amount payable with respect to such Note, which comply with
the terms of this Agreement, by wire transfer of immediately available funds
for credit (not later than 11:00 a.m., Chicago time, on the date due) to (i)
such Purchaser's account or accounts as specified in the Purchaser Schedule or
(ii) such other account or accounts in the United States as such Purchaser may
designate in writing, notwithstanding any contrary provision herein or in any
Note with respect to the place of payment. Each Purchaser agrees that, before
disposing of any Note, such Purchaser will make a notation thereon (or on a
schedule attached thereto) of all principal payments previously made thereon
and of the date to which interest thereon has been paid. The Company agrees to
afford the benefits of this paragraph 11A to any Transferee which shall have
made the same agreement as each Purchaser has made in this paragraph 11A.
11B. Expenses. The Company agrees, whether or not the transactions
contemplated hereby shall be consummated, to pay, and save Prudential, each
Purchaser and any Transferee harmless against liability for the payment of, all
reasonable out-of-pocket expenses arising in connection with such transactions,
including (i) all document production and duplication charges and the
reasonable fees and expenses of any special counsel engaged by the Purchasers
or any Transferee in connection with (1) subject to the Arrangement Letter,
documenting and closing this Agreement and the other Transaction Documents
contemplated hereby to be executed and delivered on or prior to the Restatement
Date, and (2) any subsequent proposed modification of, or proposed consent
under, this Agreement or any other Transaction Document, whether or not such
proposed modification shall be effected or proposed consent granted, and (ii)
the costs and expenses, including reasonable attorneys' fees, incurred by any
Purchaser or any Transferee in enforcing (or determining whether or how to
enforce) any rights under this Agreement or the Notes or in responding to any
subpoena or other legal process or informal investigative demand issued in
connection with this Agreement or the transactions contemplated hereby or by
reason of any Purchaser's or any Transferee's having acquired any Note,
including without limitation costs and expenses incurred in any bankruptcy
case. The obligations of the Company under this paragraph 11B shall survive
the transfer of any Note or portion thereof or interest therein by any
Purchaser or any Transferee and the payment of any Note.
11C. Consent to Amendments. This Agreement may be amended, and the
Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, if the Company shall obtain the written
consent to such amendment, action or omission to act, of the Required Holder(s)
of the Notes except that, (i) with the written consent of the holders of all
Notes of a particular Series, and if an Event of Default shall have occurred
and be continuing, of the holders of all Notes of all Series, at the time
outstanding (and not without such written consents), the Notes of such Series
may be amended or the provisions thereof waived to change the maturity thereof,
to change or affect the principal thereof, or to change or affect the rate or
time of payment of interest on or any Yield-Maintenance Amount payable with
respect to the Notes of such Series, and (ii) without the written consent of
the holder or holders of all Notes at the time outstanding, no amendment to or
waiver of the provisions of this Agreement shall change or affect the
provisions of paragraph 7A or this paragraph 11C insofar as such provisions
relate to proportions of the principal amount of the Notes of any Series, or
the rights of any individual holder of Notes, required with respect to any
declaration of Notes to be due and payable or with respect to any consent,
amendment, waiver or declaration. Each holder of any Note at the time or
thereafter outstanding shall be bound by any consent authorized by this
paragraph 11C, whether or not such Note shall have been marked to indicate such
consent, but any Notes issued thereafter may bear a notation referring to any
such consent. No course of dealing between the Company and the holder of any
Note nor any delay in exercising any rights hereunder or under any Note shall
operate as a waiver of any rights of any holder of such Note. As used herein
and in the Notes, the term "this Agreement" and references thereto shall mean
this Agreement as it may from time to time be amended or supplemented.
11D. Form, Registration, Transfer and Exchange of Notes; Lost Notes.
The Notes are issuable as registered notes without coupons in denominations of
at least $100,000, except as may be necessary to reflect any principal amount
not evenly divisible by $100,000. The Company shall keep at its principal
office a register in which the Company shall provide for the registration of
Notes and of transfers of Notes. Upon surrender for registration of transfer
of any Note at the principal office of the Company, the Company shall, at its
expense, execute and deliver one or more new Notes of like tenor and of a like
aggregate principal amount, registered in the name of such transferee or
transferees. At the option of the holder of any Note, such Note may be
exchanged for other Notes of like tenor and of any authorized denominations, of
a like aggregate principal amount, upon surrender of the Note to be exchanged
at the principal office of the Company. Whenever any Notes are so surrendered
for exchange, the Company shall, at its expense, execute and deliver the Notes
which the holder making the exchange is entitled to receive. Each installment
of principal payable on each installment date upon each new Note issued upon
any such transfer or exchange shall be in the same proportion to the unpaid
principal amount of such new Note as the installment of principal payable on
such date on the Note surrendered for registration of transfer or exchange bore
to the unpaid principal amount of such Note. No reference need be made in any
such new Note to any installment or installments of principal previously due
and paid upon the Note surrendered for registration of transfer or exchange.
Every Note surrendered for registration of transfer or exchange shall be duly
endorsed, or be accompanied by a written instrument of transfer duly executed,
by the holder of such Note or such holder's attorney duly authorized in
writing. Any Note or Notes issued in exchange for any Note or upon transfer
thereof shall carry the rights to unpaid interest and interest to accrue which
were carried by the Note so exchanged or transferred, so that neither gain nor
loss of interest shall result from any such transfer or exchange. Upon receipt
of written notice from the holder of any Note of the loss, theft, destruction
or mutilation of such Note and, in the case of any such loss, theft or
destruction, upon receipt of such holder's unsecured indemnity agreement, or in
the case of any such mutilation upon surrender and cancellation of such Note,
the Company will make and deliver a new Note, of like tenor, in lieu of the
lost, stolen, destroyed or mutilated Note.
11E. Persons Deemed Owners; Participations. Prior to due presentment
for registration of transfer, the Company may treat the Person in whose name
any Note is registered as the owner and holder of such Note for the purpose of
receiving payment of principal of and interest on, and any Yield-Maintenance
Amount payable with respect to, such Note and for all other purposes
whatsoever, whether or not such Note shall be overdue, and the Company shall
not be affected by notice to the contrary. Subject to the preceding sentence,
the holder of any Note may from time to time grant participations in all or any
part of such Note to any Person on such terms and conditions as may be
determined by such holder in its sole and absolute discretion.
11F. Survival of Representations and Warranties; Entire Agreement. All
representations and warranties contained herein or made in writing by or on
behalf of the Company in connection herewith shall survive the execution and
delivery of this Agreement and the Notes, the transfer by any Purchaser of any
Note or portion thereof or interest therein and the payment of any Note, and
may be relied upon by any Transferee regardless of any investigation made at
any time by or on behalf of any Purchaser or any Transferee. Subject to the
preceding sentence, this Agreement, the Notes, the Arrangement Letter, and the
Disclosure Letter embody the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersede all
prior agreements and understandings relating to such subject matter.
11G. Successors and Assigns. All covenants and other agreements in
this Agreement contained by or on behalf of any of the parties hereto shall
bind and inure to the benefit of the respective successors and assigns of the
parties hereto (including, without limitation, any Transferee) whether so
expressed or not.
11H. Notices. All written communications provided for hereunder (other
than communications provided for under paragraph 2) shall be sent by first
class mail, nationwide overnight delivery service (with charges prepaid) or
personal delivery and (i) if to any Purchaser, addressed to such Purchaser at
the address specified for such communications in the Purchaser Schedule, or at
such other address as any Purchaser shall have specified in writing to the
Company, and (ii) if to any other holder of any Note, addressed to such other
holder at such address as such other holder shall have specified in writing to
the Company or, if any such other holder shall not have so specified an address
to the Company, then addressed to such other holder in care of the last holder
of such Note which shall have so specified an address to the Company, and (iii)
if to the Company, addressed to it at IMC Global Inc., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer, or at such other address as
the Company shall have specified to the holder of each Note in writing.
11I. Disclosure to Other Persons. By its acceptance of any Note, each
holder of a Note and each Transferee agrees to use its best efforts to hold in
confidence and not disclose any written information (other than information (a)
which was publicly known or otherwise known to such Person, at the time of
disclosure (except pursuant to disclosure in connection with this Agreement),
(b) which subsequently becomes publicly known through no act or omission by
such Person, or (c) which otherwise becomes known to such Person, other than
through disclosure by the Company) delivered or made available by or on behalf
of the Company or any subsidiary to such Person (including, without limitation,
any non-public information obtained pursuant to paragraph 5A or 5B) in
connection with or pursuant to this Agreement which is proprietary in nature;
provided, however, that nothing herein shall prevent the holder of any Note
from disclosing any information disclosed to such holder to (i) its directors,
officers, employees, agents and professional consultants, (ii) any
Institutional Investor which holds any Note, (iii) any Institutional Investor
to which it offers to sell any Note or any part thereof, (iv) any Institutional
Investor to which it sells or offers to sell a participation in all or any part
of any Note, (v) any Institutional Investor from which it offers to purchase
any security of the Company, (vi) any federal or state regulatory authority
having jurisdiction over it, (vii) the National Association of Insurance
Commissioners or any similar organization, or (viii) any other Person to which
such delivery or disclosure may be necessary or appropriate (1) in compliance
with any law, rule, regulation or order applicable to it, (2) in response to
any subpoena or other legal process or informal investigative demand, (3) in
connection with any litigation to which it is a party or (4) in order to
protect its investment and enforce the rights of any holder in any Note;
provided, further, that in regard to any such disclosure to a Person described
in clause (ii), (iii), (iv) or (v) such Person agrees in writing to be bound by
the provisions of this paragraph 11I as if it were a holder of a Note
hereunder.
11J. Payments Due on Non-Business Days. Anything in this Agreement or
the Notes to the contrary notwithstanding, any payment of principal of or
interest on, or Yield-Maintenance Amount payable with respect to, any Note that
is due on a date other than a Business Day shall be made on the next succeeding
Business Day. If the date for any payment is extended to the next succeeding
Business Day by reason of the preceding sentence, the period of such extension
shall be included in the computation of the interest payable on such Business
Day.
11K. Severability. Any provision of this Agreement which is 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.
11L. Descriptive Headings. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
11M. Satisfaction Requirement. If any agreement, certificate or other
writing, or any action taken or to be taken, is by the terms of this Agreement
required to be satisfactory to any Purchaser, to any holder of Notes or to the
Required Holder(s), the determination of such satisfaction shall be made by
such Purchaser, such holder or the Required Holder(s), as the case may be, in
the sole and exclusive judgment (exercised in good faith) of the Person or
Persons making such determination.
11N. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF
THE STATE OF ILLINOIS.
110. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
11P. Binding Agreement. When this Agreement is executed and delivered
by the parties hereto, it shall become a binding agreement between the parties
hereto.
12. AMENDMENT AND RESTATEMENT. Subject to the satisfaction (or
express written waiver by the Purchasers) of all of the conditions of
effectiveness contained in paragraph 3 of this Agreement, this Agreement amends
and restates in its entirety the Existing Vigoro Agreement as of the
Restatement Date. Upon the effectiveness of this Agreement, the Existing
Vigoro Agreement is fully superseded hereby; however, the indebtedness governed
by the Existing Vigoro Agreement remains outstanding and shall be governed by
the terms of this Agreement and this Agreement does not constitute a novation
of such indebtedness. Without limiting the foregoing, notwithstanding that
certain provisions in the Existing Vigoro Agreement have been deleted in this
Agreement, the Purchasers are not waiving any of their respective rights,
powers or remedies with respect to any misrepresentation, breach or fraud by
Vigoro in connection with the Existing Vigoro Agreement. In the event that the
aforementioned conditions of effectiveness have not been so satisfied (or so
waived) by March 9, 1996, this Agreement shall cease to be of any effect.
[The remainder of this page intentionally left blank]
Very truly yours,
IMC GLOBAL INC.
By:
Title:
THE VIGORO CORPORATION
By:
Title:
The foregoing Agreement is
hereby accepted as of the
date first above written.
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By:
Vice President
PRUCO LIFE INSURANCE COMPANY
By:
Vice President