SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
March 15, 1996
IMC GLOBAL INC.
(Exact name of registrant as specified in charter)
Delaware 1-9759 36-3492467
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
2100 Sanders Road, Northbrook, Illinois 60062
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (847) 272-9200
Item 2. Acquisition or Disposition of Assets.
On March 1, 1996, The Vigoro Corporation (Vigoro) became a subsidiary of IMC
Global Inc. (IMC) upon consummation of the merger (the Merger) contemplated by
the Agreement and Plan of Merger dated as of November 13, 1995 (the Agreement).
Under the terms of the Agreement, each share of Vigoro common stock outstanding
immediately prior to the Merger was converted into the right to receive 1.6
shares of IMC common stock. As a result of the Merger, IMC is a leading
supplier of crop nutrients serving the global agriculture industry and also has
complementary retail distribution capabilities.
The Merger was structured to qualify as a tax-free reorganization for income
tax purposes and is being accounted for as a pooling of interests.
The other information required by this item has been previously reported by
IMC or Vigoro and is included or incorporated by reference in the Joint Proxy
Statement/Prospectus (the Proxy Statement/Prospectus) which constitutes a part
of IMC's Registration Statement on Form S-4 (Registration No. 333-00439).
Item 5. Other Events.
On February 28, 1996, IMC entered into an unsecured credit facility (the
Credit Facility) with a group of banks. Under the terms of the Credit
Facility, IMC and certain of its subsidiaries may borrow up to $450 million
under a revolving credit facility which matures on March 1, 1999 and $50
million under a long-term credit facility which matures March 2, 2001. At
March 1, 1996, IMC and its subsidiaries had borrowed $26 million under the
revolving credit facility and $50 million under the long-term facility.
Simultaneously with the execution of the Credit Facility, IMC and one of its
subsidiaries refinanced unsecured term loans of Vigoro and one of its
subsidiaries. The new $120 million unsecured term loans (the Term Loans) bear
interest at rates between 7.37 percent and 7.43 percent and mature at various
times between 2000 and 2005.
The Credit Facility and Term Loans contain customary negative covenants and
financial ratios and other tests which must be met with respect to interest
coverage, tangible net worth and leverage.
The preceding description of the Credit Facility and Term Loans does not
purport to be complete and is qualified in its entirety by reference to the
Credit Facility and Term Loans, conformed copies of which are attached hereto
as Exhibits 10.65, 10.66 and 10.67, respectively, and incorporated herein by
reference.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) The Vigoro financial statements have been previously reported by
Vigoro and are included or incorporated by reference in the Proxy
Statement/Prospectus.
(b) It is not practical for IMC to provide at this time the pro forma
financial statements to reflect the estimated impact of the Merger on the
historical Consolidated Financial Statements of IMC at December 31, 1995 and
for the six-month periods ended December 31, 1995 and 1994. Such pro forma
financial statements will be filed as an amendment to this Current Report on
Form 8-K no later than May 15, 1996.
The other pro forma financial statements required by this item have been
previously reported by IMC and are included in the Proxy Statement/Prospectus.
(c) Exhibits.
No. Description
3.4 By-Laws, amended as of March 4, 1996, and as currently in effect
10.65 Credit Agreement, dated as of February 28, 1996, among IMC Global
Inc., IMC Global Operations Inc., International Minerals & Chemical
(Canada) Global Limited, Kalium Canada Ltd., Central Canada Potash,
Inc. and the Banks Listed Therein
10.66 Second Amended and Restated Note Purchase Agreement, dated as of
February 28, 1996, to the Amended and Restated Note Purchase and
Private Shelf Agreement dated as of December 22, 1994, among IMC
Global Inc., The Vigoro Corporation and The Prudential Insurance
Company of America
10.67 Second Amended and Restated Note Purchase Agreement, dated as of
February 28, 1996, to the Amended and Restated Note Purchase and
Private Shelf Agreement dated as of December 22, 1994, between Kalium
Canada, Ltd. and The Prudential Insurance Company of America
* * * * * * * * * * * * * * * *
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
IMC GLOBAL INC.
BRIAN J. SMITH
Brian J. Smith
Executive Vice President
and Chief Financial Officer
Date: March 15, 1996
EXHIBIT 3.4
As amended 3/4/96
BY-LAWS
OF IMC GLOBAL INC.
ARTICLE I
Meetings of Stockholders
SECTION 1. The Annual Meeting of Stockholders of this Corporation for
the election of directors and the transaction of such other business as may
properly come before the meeting shall be held on such day in September,
October or November of each year and at such place and hour as may be fixed by
the Board of Directors prior to the giving of the notice of the date, place and
object of such meeting, or if no other date, place and hour has been so fixed,
on the third Wednesday in October and in the office of the Corporation, 2100
Sanders Road, Northbrook, Illinois 60062, at 2:00 p.m. Chicago time. Notice
of the time, place and object of such meeting shall be given by mailing at
least ten days previous to such meeting, postage prepaid, a copy of such notice
addressed to each stockholder at his residence or place of business as the same
shall appear on the books of the Corporation.
SECTION 2. Special meetings of the stockholders other than those by
statute may be called at any time by the Chairman of the Board, the President
or by a majority of the directors. Notice of every special meeting stating the
time, place and object thereof, shall be given by mailing, postage prepaid, at
least ten days before such meeting, a copy of such notice addressed to each
stockholder at his post office address as the same appears on the books of the
Corporation.
SECTION 3. At all meetings of stockholders a majority of the capital
stock outstanding, either in person or by proxy, shall constitute a quorum,
excepting as may be otherwise provided by law.
SECTION 4. The Board of Directors may fix a date not more than sixty
days prior to the day of holding any meeting of stockholders as the date as of
which stockholders entitled to notice of and to vote at such meeting shall be
determined.
SECTION 5. At all meetings of stockholders all questions shall be
determined by a majority vote of the stockholders entitled to vote, present in
person or by proxy, except as otherwise provided by law.
SECTION 6. Except as may otherwise be required by applicable law or
regulation or be expressly authorized by the Board of Directors, a stockholder
may make a nomination or nominations for director of the Corporation at an
annual meeting of stockholders or at a special meeting of stockholders called
for the purpose of electing directors or may bring up any other matter for
consideration and action by the stockholders at a meeting of stockholders only
if the provisions of Subsections A, B and C hereto shall have been satisfied.
If such provisions shall not have been satisfied, any nomination sought to be
made or other business sought to be presented by a stockholder for
consideration and action by the stockholders at the meeting shall be deemed not
properly brought before the meeting, is and shall be ruled by the chairman of
the meeting to be out of order, and shall not be presented or acted upon at the
meeting.
A. The stockholder must be a stockholder of record on the record
date for such meeting entitled to vote thereat and must continue to
be a stockholder of record at the time of such meeting.
B. The stockholder must, not less than sixty days before the day of
the meeting or within ten days after the Company has mailed to
stockholders a notice of an annual meeting of stockholders, whichever
is the later, deliver or cause to be delivered a written notice to
the Secretary of the Corporation. The notice shall specify (a) the
name and address of the stockholder as they appear on the books of
the Corporation; (b) the class and number of shares of the
Corporation which are beneficially owned by the stockholder; (c) any
material interest of the stockholder in the proposed business
described in the notice; (d) if such business is a nomination for
director, each nomination sought to be made, together with the
reasons for each nomination, a description of the qualifications and
business or professional experience of each proposed nominee, and a
statement signed by each nominee indicating his or her willingness so
to serve if elected, and disclosing the information about him or her
that is required by the Securities Exchange Act of 1934 (the "1934
Act") and the rules and regulations promulgated thereunder to be
disclosed in the proxy materials for the meeting involved if he or
she were a nominee of the Corporation for election as one of its
directors; (e) if such business is other than a nomination for
director, the nature of the business, the reasons why it is sought to
be raised and submitted for a vote of the stockholders, and if and
why it is deemed by the stockholder to be beneficial to the
Corporation; and (f) if so requested by the Corporation, all other
information that would be required to be filed with the Securities
and Exchange Commission if, with respect to the business proposed to
be brought before the meeting, the person proposing such business was
a participant in a solicitation subject to Section 14 of the 1934
Act.
C. Notwithstanding satisfaction of the provisions of Subsection A,
the proposed business described in the notice may be deemed not to be
properly brought before the meeting if, pursuant to state law or to
any rule or regulation of the Securities and Exchange Commission, it
was offered as a stockholder proposal and was omitted, or had it been
so offered, it could have been omitted, from the notice of, and proxy
material for, the meeting (or any supplement thereto) authorized by
the Board of Directors.
D. In the event such notice is timely given and the business
described therein is not disqualified because of Subsection B, such
business (a) may nevertheless not be presented or acted upon at a
special meeting of stockholders unless in all other respects it is
properly before such meeting; and (b) may not be presented except by
the stockholder who shall have given the notice required by
Subsection A or a representative of such stockholder who is qualified
under the law of the State of Delaware to present the proposal on the
stockholder's behalf at the meeting.
ARTICLE II
Directors
SECTION 1. The number of directors of the Corporation may be
determined from time to time by resolution adopted by a majority of the entire
Board of Directors, except that such number shall not be less than five nor
more than fifteen, exclusive of directors, if any, to be elected by the holders
of one or more series of Series Preferred Stock pursuant to the provisions of
Section (a) of Article Fourth of the Certificate of Incorporation of the
Corporation. Until the next such resolution is adopted, the Board of Directors
shall consist of thirteen directors. No decrease in the number of directors
shall shorten the term of any incumbent director. As used in these By-Laws,
the "entire Board of Directors" means the total number of directors which the
Corporation would have if there were no vacancies. Vacancies occurring in the
Board of Directors may be filled for the unexpired term only by majority vote
of the remaining directors. The Board of Directors shall adopt such rules and
regulations for the conduct of the meetings and management of the affairs of
the Corporation as they may deem proper, not inconsistent with the laws of the
State of Delaware, the Certificate of Incorporation of the Corporation, or
these By-Laws.
SECTION 2. The directors shall elect one of their members, who may or
may not be an officer of the Corporation, to act as Chairman of the Board. He
shall preside, when present, at all meetings of the Board of Directors and
stockholders.
SECTION 3. As soon as practicable after the Annual Meeting of
Stockholders, the newly elected Board of Directors shall hold its first meeting
for the purpose of organization and the transaction of business. At such
organizational meeting, the Board of Directors shall elect the officers of the
Corporation and shall prepare a schedule fixing the time and place of all
regular meetings of the Board of Directors to be held during the succeeding
calendar year. All such regular meetings of the Board of Directors may be held
without further notice to any director who shall have attended the
organizational meeting. Notice of the time and place fixed for such regular
meetings shall be given by personal notice or by mail or telegraph to each
director who shall not have attended the organizational meeting at least ten
days prior to the first Board of Directors' meeting after such organizational
meeting which such director shall be eligible to attend. The Board of
Directors shall have authority to change the time and place of any regular
meeting previously fixed, provided that the foregoing provisions as to notice
thereof shall apply to any such changed regular meeting. The Chairman of the
Board of Directors or the President may, and at the request of a majority of
the Board of Directors in writing must, call a special meeting of the Board of
Directors, not less than 24 hours' notice of which must be given by personal
notice or by mail or telegraph. Nothing herein contained shall prevent a
waiver of notice of meeting by directors.
SECTION 4. At all meetings of the Board of Directors one-third of the
entire Board of Directors as from time to time fixed under these By-Laws shall
constitute a quorum.
ARTICLE III
Committees of the Board
SECTION 1. The Board of Directors may elect from among its members, by
resolution adopted by two-thirds of the entire Board of Directors, an Executive
Committee consisting of at least three members of the Board of Directors. From
the members of the Executive Committee, the Board of Directors shall elect a
chairman of such committee.
SECTION 2. During the intervals between meetings of the Board of
Directors, the Executive Committee shall, subject to any limitations imposed by
law or the Board of Directors, possess and may exercise all of the powers of
the Board of Directors in the management and direction of the Corporation in
such manner as the Executive Committee shall deem best for the interests of the
Corporation, in all cases in which specific directions shall not have been
given by the Board of Directors.
SECTION 3. The Board of Directors may also elect from among its
members, by resolutions adopted by a majority of the entire Board of Directors,
such other committee or committees as the Board of Directors shall determine,
each such committee to consist of one or more members of the Board of
Directors. The Board of Directors shall elect a chairman of each such
committee, shall fix the number of and elect the other members thereof, and
shall establish the duties and authority thereof, subject to such limitations
as may be required by law.
SECTION 4. The Board of Directors shall fill any vacancies on any
committee established under this Article, with the objective of keeping the
membership of each such committee full at all times.
SECTION 5. All action by any committee of the Board of Directors shall
be referred to the Board of Directors at its meeting next succeeding such
action, and shall be subject to revision or alteration by the Board of
Directors provided that no rights or acts of third parties shall be affected by
any such revision or alteration. Subject to such applicable resolutions as may
be adopted by the Board of Directors, each committee shall fix its own rules of
procedure and shall meet where and as provided in such rules, but in any case
the presence of a majority of the committee members shall be necessary to
constitute a quorum.
ARTICLE IV
Meetings by Consent
SECTION 1. Any action required or permitted to be taken by the Board
of Directors or any committee thereof may be taken without a meeting if all
members of the Board of Directors or of the committee consent in writing to the
adoption of a resolution authorizing the action. The resolution and the
written consents thereto by the members of the Board of Directors or committee
shall be filed with the minutes of the proceedings of the Board of Directors or
committee.
SECTION 2. Any one or more members of the Board of Directors or any
committee thereof may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications
equipment allowing all persons participating in the meeting to hear each other
at the same time. Participation by such means shall constitute presence in
person at a meeting.
ARTICLE V
Officers
SECTION 1. The officers of the Corporation shall be one or more
Presidents, one or more Vice Presidents, a Secretary, a Controller, a
Treasurer, and such Assistant Secretaries, Assistant Controllers and Assistant
Treasurers as the Board of Directors may deem necessary. The Chairman of the
Board may be an officer of the Corporation. The Board of Directors may create
such other office or offices from time to time as shall in their judgment, be
necessary and convenient and shall have power to prescribe the duties and
authority of the officers elected thereto by the Board of Directors. Any two
offices, excepting those of President and Secretary, may be held by one person.
SECTION 2. The Presidents shall have such powers and duties in the
management of the Corporation as may be prescribed by the Chief Executive
Officer and, to the extent not so provided, as generally pertain to their
respective offices, subject to the control of the Board of Directors.
SECTION 3. The Vice Presidents, one or more of whom may be designated
Executive or Senior Vice Presidents, shall perform such duties in such
capacities or as heads of their respective operating divisions as may be
assigned by the Board of Directors, Chairman of the Board or the President. In
the absence or incapacity of the President, the duties of the office of
President shall be performed by the Vice Presidents in the order of priority
established by the Board of Directors, and unless and until the Board of
Directors shall otherwise direct.
SECTION 4. The Controller shall be the chief accounting officer of the
Corporation and shall be in charge of its books of account, accounting records
and accounting and internal auditing procedures. He shall be responsible for
the verification of all of the assets of the Corporation and the preparation of
all tax returns and other financial reports to governmental agencies by the
Corporation and shall have such other duties and powers as shall be designated
from time to time by the Board of Directors or the Chairman of the Board. The
Controller shall be responsible to and shall report to the Board of Directors,
but in the ordinary conduct of the Corporation's business shall be under the
supervision of the Chairman of the Board or such officer of the Corporation as
the Board of Directors shall designate.
SECTION 5. The Treasurer, subject to the direction and supervision of
such officer and to such limitations on his authority as the Board of Directors
may from time to time designate or prescribe, shall have the care and custody
of the funds and securities of the Corporation, sign checks, drafts, notes and
orders for the payment of money, pay out and disburse the funds and securities
of the Corporation and in general perform the duties customary to that office.
SECTION 6. The Secretary shall keep the minutes of meetings of the
Board of Directors and the minutes of the stockholders' meetings and have the
custody of the seal of the Corporation and affix and attest the same to
certificates of stock, contracts and other documents when proper and
appropriate. He shall perform all of the other duties usual to that office.
SECTION 7. The Assistant Secretaries, Assistant Controllers and
Assistant Treasurers shall perform such duties as may be assigned by the Board
of Directors.
SECTION 8. Each officer elected by the Board of Directors shall hold
office until the next annual meeting of the Board of Directors and until his
successor is elected. Any officer may be removed at any time with or without
cause by a vote of a majority of the members of the Board of Directors. A
vacancy in any office caused by the death, resignation or removal of the
person elected thereto or because of the creation of a new office or for any
other reason, may be filled for the unexpired portion of the term by election
of the Board of Directors at any meeting. In case of the absence or
disability, or refusal to act, of any officer of the Corporation, or for any
other reason that the Board of Directors shall deem sufficient, the Board of
Directors may delegate, for the time being, the powers and duties, or any of
them, of such officer to any other officer or to any director.
ARTICLE VI
Capital Stock
SECTION 1. Subscriptions to the capital stock must be paid to the
Treasurer at such time or times, and in such installments as the Board of
Directors may by resolution require.
SECTION 2. Certificates for shares of the Corporation shall be in such
form as shall be approved by the Board of Directors and shall be signed by the
Chairman of the Board or the President or a Vice President and by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant Secretary, and shall
be sealed with the seal of the Corporation or a facsimile thereof. The
signatures of the officers upon a certificate may be facsimiles if the
certificate is countersigned by a transfer agent or registered by a registrar
other than the Corporation itself or any employee. In case any officer has
signed, or whose facsimile signature has been placed upon, a certificate shall
have ceased to be such officer before such certificate is issued, it may be
issued by the Corporation with the same effect as if he were such officer at
the date of the issue.
SECTION 3. Registration of transfers of shares shall be made upon the
books of the Corporation by the registered holder in person or by power of
attorney, duly executed and filed with the Secretary or other proper officer of
the Corporation, and upon surrender of the certificate or certificates for such
shares, properly assigned for transfer.
ARTICLE VII
Indemnification of Directors and Officers
SECTION 1. Each person who was or is made a party or is threatened to
be made a party to or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a director or
officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (hereinafter an "indemnitee"), whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as
a director, officer, employee or agent, shall be indemnified and held harmless
by the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than such law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the indemnitee's heirs,
executors and administrators; provided, however, that, except as provided in
Section 2 hereof with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. The right to indemnification conferred in this
Section shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance
of its final disposition (hereinafter an "advancement of expenses"); provided,
however, that, if the Delaware General Corporation Law requires, an advancement
of expenses incurred by an indemnitee in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay
all amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for such
expenses under this section or otherwise.
SECTION 2. If a claim under Section 1 of this Article is not paid in
full by the Corporation within sixty days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement
of expenses, in which case the applicable period shall be twenty days, the
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in
any such suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit. In (a) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that, and
(b) in any suit by the Corporation to recover an advancement of expenses
pursuant to the terms of expenses upon final adjudication that, the indemnitee
has not met the applicable standard of conduct set forth in the Delaware
General Corporation Law. Neither the failure of the Corporation (including its
board of directors, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such suit that
indemnification of the indemnitee is proper in the circumstances because the
indemnitee has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the Corporation
(including its board of directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee
to enforce a right to indemnification or to an advancement of expenses
hereunder, or by the Corporation to recover an advancement of expenses pursuant
to the terms of an undertaking, the burden of proving that the indemnitee is
not entitled to be indemnified, or to such advancement of expenses, under this
Article or otherwise shall be on the Corporation.
SECTION 3. The rights to indemnification and to the advancement of
expenses conferred in this Article shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, the
Corporation's certificate of incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 4. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the Delaware General Corporation Law.
SECTION 5. The Corporation may, to the extent authorized from time to
time by the Board of Directors, grant rights to indemnification, and to the
advancement of expenses to any employee or agent of the Corporation to the
fullest extent of the provisions of this Section with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
ARTICLE VIII
Amendments
SECTION 1. These By-Laws may be amended at any stockholders' meeting
by a majority of the votes cast at such meeting by the holders of shares
entitled to vote thereon, represented either in person or by proxy.
SECTION 2. Subject to the limitations, if any, from time to time
prescribed in by-laws established by stockholders, the Board of Directors at
any regular or special meeting, by the vote of a majority of the directors may
establish, alter, amend or repeal any by-laws, but any by-laws established by
the Board of Directors may be altered or repealed by stockholders.
EXHIBIT 10.65
EXECUTION COPY
U.S.$500,000,000
CREDIT AGREEMENT
Dated as of February 28, 1996
Among
IMC GLOBAL INC.,
IMC GLOBAL OPERATIONS INC.,
INTERNATIONAL MINERALS & CHEMICAL
(CANADA) GLOBAL LIMITED,
KALIUM CANADA, LTD. and
CENTRAL CANADA POTASH, INC.,
as Borrowers
and
IMC GLOBAL INC. AND THE SUBSIDIARY
GUARANTORS NAMED HEREIN,
as Guarantors
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders
and
CITIBANK, N.A.,
as U.S. Administrative Agent and Documentation Agent
and
CITIBANK CANADA,
as Canadian Administrative Agent
and
NATIONSBANC CAPITAL MARKETS, INC.,
as Syndication Agent
and
CITICORP SECURITIES, INC. and NATIONSBANC CAPITAL MARKETS, INC.,
as Arrangers
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms 2
1.02. Computation of Time Periods 33
1.03. Accounting Terms 33
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
2.01. The Regular Advances 34
2.02. Making the Regular Advances 35
2.03. Repayment of Regular Advances 38
2.04. Reduction of the Commitments 39
2.05. Prepayments of Regular Advances 40
2.06. Interest on Regular Advances 41
2.07. Fees 43
2.08. Conversion of Regular Advances 44
2.09. Increased Costs, Etc. 45
2.10. Payments and Computations 47
2.11. Taxes 49
2.12. Sharing of Payments, Etc. 51
2.13. Letters of Credit 52
2.14. The Competitive Bid Advances 58
2.15. Use of Proceeds 62
2.16. Defaulting Lenders 63
2.17. Replacement of Certain Lenders 65
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
3.01. Conditions to Effectiveness 66
3.02. Conditions Precedent to Initial Extension
of Credit 68
3.03. Conditions Precedent to Each Regular Borrowing
and Each Issuance, Etc. 71
3.04. Conditions Precedent to Each Competitive
Bid Borrowing 71
3.05. Determinations Under Sections 3.01 and 3.02 72
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrowers
and the Guarantors 73
ARTICLE V
COVENANTS OF THE BORROWERS AND THE GUARANTORS
5.01. Affirmative Covenants 79
5.02. Negative Covenants 83
5.03. Reporting Requirements 93
5.04. Financial Covenants 97
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default 98
6.02. Actions in Respect of the Letters of Credit
upon Default 101
ARTICLE VII
GUARANTY
7.01. Guaranty 102
7.02. Guaranty Absolute 103
7.03. Waiver 104
7.04. Payments Free and Clear of Taxes, Etc. 104
7.05. Continuing Guaranty; Assignments 105
7.06. Subrogation 106
7.07. Release of Subsidiary Guarantors 107
ARTICLE VIII
THE AGENTS
8.01. Authorization and Action 107
8.02. Agents' Reliance, Etc. 107
8.03. Citibank, NationsBanc and Affiliates 108
8.04. Lender Credit Decision 108
8.05. Indemnification 109
8.06. Successor Agents 109
ARTICLE IX
MISCELLANEOUS
9.01. Amendments, Etc. 110
9.02. Notices, Etc. 111
9.03. No Waiver; Remedies 111
9.04. Costs and Expenses 111
9.05. Right of Setoff 113
9.06. Binding Effect 114
9.07. Assignments, Designations and Participations 114
9.08. Governing Law 118
9.09. Execution in Counterparts 118
9.10. No Liability of the Issuing Banks 118
9.11. Confidentiality 119
9.12. Acknowledgements 119
9.13. Judgment 119
9.14. Jurisdiction, Etc. 120
9.15. Interest Act (Canada) 121
9.16. Currency 121
9.17. Waiver of Jury Trial 121
Schedules
Schedule I - Commitments and Applicable Lending Offices
Schedule 2.13(f) - Existing Letters of Credit
Schedule 4.01(b) - List of Relevant Subsidiaries
Schedule 4.01(d) - List of Authorizations, Approvals, Actions,
Notices and Filings
Schedule 5.02(a) - Existing Liens
Schedule 5.02(b) - Existing Debt
Schedule 5.02(e) - Existing Investments
Exhibits
Exhibit A-1 - Form of Canadian RC Note
Exhibit A-2 - Form of U.S. RC Note
Exhibit A-3 - Form of Competitive Bid Note
Exhibit A-4 - Form of Term Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Opinion of Canadian Counsel for the Loan Parties
Exhibit F - Form of Opinion of Canadian Counsel for the Lenders
Exhibit G - Form of Opinion of New York Counsel
for the Loan Parties
Exhibit H - Form of Opinion of General Counsel of Global with respect
to the Loan Parties
Exhibit I - Form of Confidentiality Agreement
Exhibit J - Form of Opinion of Canadian Counsel for the Loan Parties
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of February 28, 1996 among IMC GLOBAL INC.,
a Delaware corporation ("Global"), IMC GLOBAL OPERATIONS INC. ("Global
Operations"), a Delaware corporation, INTERNATIONAL MINERALS & CHEMICAL
(CANADA) GLOBAL LIMITED, a corporation organized under the federal laws of
Canada ("IMC Canada"), KALIUM CANADA, LTD., a corporation organized under the
federal laws of Canada ("Kalium"), and CENTRAL CANADA POTASH, INC., a Delaware
corporation ("CCP"), as borrowers (to the extent hereinafter described), GLOBAL
and the Subsidiary Guarantors (as hereinafter defined), as guarantors (to the
extent hereinafter described), the banks and financial institutions (the
"Initial Lenders") listed on the signature pages hereof, CITIBANK, N.A.
("Citibank"), as U.S. administrative agent (together with any successor
appointed pursuant to Article VIII, the "U.S. Administrative Agent") and
documentation agent (together with any successor appointed pursuant to
Article VIII, the "Documentation Agent"), CITIBANK CANADA ("Citibank Canada"),
as Canadian administrative agent (together with any successor appointed
pursuant to Article VIII, the "Canadian Administrative Agent"), NATIONSBANC
CAPITAL MARKETS, INC., as syndication agent (the "Syndication Agent", and
together with the U.S. Administrative Agent, the Documentation Agent and the
Canadian Administrative Agent, the "Agents") and CITICORP SECURITIES, INC. and
NATIONSBANC CAPITAL MARKETS, INC., as Arrangers.
PRELIMINARY STATEMENTS.
(1) Pursuant to the Agreement and Plan of Merger dated as of
November 13, 1995 (as amended, supplemented or otherwise modified in accordance
with its terms, to the extent consented to pursuant to Section 3.02 and as
permitted in accordance with the Loan Documents (as hereinafter defined), the
"Merger Agreement") among Global, Bull Merger Company, a Delaware corporation
and wholly-owned subsidiary of Global ("Bull Merger"), and The Vigoro
Corporation, a Delaware corporation ("Vigoro"), Global has agreed to consummate
a merger (the "Merger") of Bull Merger with and into Vigoro, in which Vigoro
will be the surviving corporation.
(2) In order to provide funds for the refinancing of certain
existing Debt (as hereinafter defined) of Global Operations, Vigoro and Kalium
and for other general corporate purposes, the Borrowers have entered into this
Agreement pursuant to which the Lenders have indicated their willingness to
agree to lend to the Borrowers an aggregate principal amount of up to
$500,000,000 on the terms and conditions set forth herein. The Guarantors have
agreed to guarantee, on the terms and conditions set forth herein, the due and
punctual payment and performance by the Borrowers of their Obligations (as
hereinafter defined) to the Agents and the Lenders pursuant hereto.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Adjusted Net Assets" has the meaning specified in Section 7.01(b).
"Adjusted Tangible Net Worth" means, 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 Global and its Subsidiaries exceeds
(b) Consolidated total intangible assets of Global 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 Global and its other Subsidiaries in the financial
statements of Global recorded as the foreign currency translation
adjustment in the equity accounts of the Consolidated financial statements
of Global shall be excluded.
"Advance" means a Term Advance, an RC Advance, a Swing Line Advance,
a Competitive Bid Advance or a Letter of Credit Advance.
"Affected Lender" has the meaning specified in Section 2.17.
"Affiliate" means, 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 means 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.
"Agents" has the meaning specified in the recital of parties to this
Agreement.
"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 Section 4.01(f), 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 Global 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 Section 5.02(h). In the event an
amendment is entered into pursuant to Section 5.02(h), 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 Global 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 Section 5.02(h).
"Applicable Lending Office" means, with respect to (a) each U.S. RC
Lender and each Term Lender, such Lender's Domestic Lending Office in the
case of a Base Rate Advance and such Lender's Eurodollar Lending Office in
the case of a Eurodollar Rate Advance, (b) each Canadian RC Lender, such
Lender's Canadian Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and (c) in the case of a Competitive Bid Advance, the office of
such Lender notified by such Lender to the Appropriate Administrative
Agent as its Applicable Lending Office with respect to such Competitive
Bid Advance.
"Applicable Margin" means, in the case of Base Rate Advances and
Eurodollar Rate Advances, at any time (a) from the date hereof until the
date on which financial statements are delivered or required to be
delivered pursuant to Section 5.03(b), 0.00% for Base Rate Advances and
1/2 of 1% for Eurodollar Rate Advances and (b) thereafter, a rate equal to
the rate per annum set forth in the table below under the heading
"Applicable Margin for Base Rate Advances" or "Applicable Margin for
Eurodollar Rate Advances", as the case may be, opposite the leverage ratio
(calculated as set forth in Section 5.04(c) (the "Leverage Ratio")) set
forth below as calculated based on the most recent financial statements
required to be delivered by Global pursuant to Section 5.03(b) or (c).
Applicable Applicable
Margin for Margin for
Level Leverage Ratio Base Rate Eurodollar
Advances Advances
Level 1 Less than or equal 0.00% 0.3750%
to 0.35
Level 2 Greater than 0.35 0.00% 0.4375%
and less than or
equal to 0.40
Level 3 Greater than 0.40 0.00% 0.5000%
and less than or
equal to 0.45
Level 4 Greater than 0.45 .50% 0.6250%
and less than or
equal to 0.50
Level 5 Greater than 0.50 1.00% 0.7500%
The Applicable Margin for Swing Line Advances shall be a percentage per
annum equal to the Applicable Margin in effect from time to time for RC
Advances that are Base Rate Advances less the Unused Commitment Fee Rate
in effect at such time. In the determination of the Applicable Margin
hereunder, (A) no change in the Applicable Margin shall be effective until
two Business Days after the date on which the U.S. Administrative Agent
receives financial statements pursuant to Section 5.03(b) or (c) and a
certificate of the chief financial officer or treasurer of Global pursuant
to Section 5.03(b) or (c) demonstrating such ratio and (B) if Global has
not submitted to the U.S. Administrative Agent the information described
in clause (A) above as and when required under Section 5.03(b) or 5.03(c),
as the case may be, the Applicable Margin shall be at Level 5 until the
Business Day on which such information has been received by the U.S.
Administrative Agent, at which time the Applicable Margin shall be based
on such information.
"Appropriate Administrative Agent" means, at any time, with respect
to (a) the U.S. RC Facility, the U.S. Borrowers, the Term Facility or the
Term Borrowers, the U.S. Administrative Agent and (b) with respect to the
Canadian RC Facility or the Canadian Borrowers, the Canadian
Administrative Agent.
"Appropriate Administrative Agent's Account" means, with respect to
(a) the U.S. Administrative Agent, the account of the U.S. Administrative
Agent maintained by the U.S. Administrative Agent with Citibank at its
office at 399 Park Avenue, New York, New York 10043, Account No. 36852248,
Account Name: NAIB Agency/MTF Ref: IMC Global, Attention: Philip Green,
(b) the Canadian Administrative Agent, the account of the Canadian
Administrative Agent with Citibank, N.A. at its office at 399 Park Avenue,
New York, New York 10043, Account No. 36006535, Account Name: Citibank
Canada, Attention: Lita Pulumbarit, and (c) either Administrative Agent,
such other account maintained by such Administrative Agent and designated
by such Administrative Agent in a written notice to the Borrowers and the
Appropriate Lenders.
"Appropriate Lender" means, at any time, with respect to (a) any of
the Term, Canadian RC or U.S. RC Facilities, a Lender that has a
Commitment with respect to such Facility at such time, (b) the Letter of
Credit Facility, (i) any Issuing Bank and (ii) if the other RC Lenders
have made Letter of Credit Advances pursuant to Section 2.13(c) that are
outstanding at such time, each such other RC Lender and (c) the Swing Line
Facility, (i) any Swing Line Bank and (ii) if the other RC Lenders have
made Swing Line Advances pursuant to Section 2.02(b) that are outstanding
at such time, each such other RC Lender.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, accepted and, if
applicable, approved by the U.S. Administrative Agent and, if applicable,
approved by Global, in accordance with Section 9.07 and in substantially
the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is
no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1%
per annum, plus (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates
in the United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal
Reserve Bank of New York or, if such publication shall be suspended
or terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal
to 100% minus the average of the daily percentages specified during
such three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for Citibank with
respect to liabilities consisting of or including (among other
liabilities) three-month U.S. dollar non-personal time deposits in
the United States, plus (iii) the average during such three-week
period of the annual assessment rates estimated by Citibank for
determining the then current annual assessment payable by Citibank to
the Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United States; and
(c) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means a Regular Advance that bears interest as
provided in Section 2.06(a)(i).
"Borrower" means (i) with respect to the Term Facility and the
Advances made thereunder, the Term Borrower; (ii) with respect to the U.S.
RC Facility and the Advances made thereunder, either U.S. Borrower; (iii)
with respect to the Canadian RC Facility and the Advances made thereunder,
any Canadian Borrower; (iv) with respect to the Swing Line Facility and
the Advances made thereunder, either U.S. Borrower; (v) with respect to
the Letter of Credit Facility under the U.S. RC Facility, the Letters of
Credit issued thereunder and the Letter of Credit Advances resulting
therefrom, either U.S. Borrower; (vi) with respect to the Letter of Credit
Facility under the Canadian RC Facility, the Letters of Credit issued
thereunder and the Letter of Credit Advances resulting therefrom, any
Canadian Borrower; and (vii) in all other respects, any of either U.S.
Borrower, any Canadian Borrower and/or the Term Borrower, as applicable.
"Borrower's Account" means, with respect to Borrowings by Global,
Global Operations, IMC Canada, Kalium or CCP, as the case may be, (i) the
account of Global maintained by Global with Citibank at its office at 399
Park Avenue, New York, New York 10043, Account No. 40506006, (ii) the
account of Global Operations maintained by Global Operations with Citibank
at its office at 399 Park Avenue, New York, New York 10043, Account
No. 40508677, (iii) the account of Kalium maintained by Kalium with Royal
Bank of Canada, Business Banking Centre, P.O. Box 4422, 2010 11th Avenue,
8th Floor, Regina, Saskatchewan S4P 3W7, Account No. 400-045-1 and (iv)
with respect to either CCP or IMC Canada, such account or accounts
maintained by Kalium with Royal Bank of Canada, Business Banking Centre,
P.O. Box 4422, 2010 11th Avenue, 8th Floor, Regina, Saskatchewan S4P 3W7,
Account No. 400-045-1, and designated by CCP or IMC Canada, as the case
may be, as its "Borrower's Account" in a written notice to the Canadian
Administrative Agent.
"Borrowing" means a Term Borrowing, an RC Borrowing, a Competitive
Bid Borrowing or a Swing Line Borrowing.
"Bull Merger" has the meaning specified in the recital of the parties
to this Agreement.
"Business Day" means (i) for all purposes other than as covered by
clauses (ii) and (iii) below, a day of the year on which banks are not
required or authorized to close in New York, NY or Chicago, IL; (ii) with
respect to all notices and determinations in connection with, and payments
of principal and interest on, the Canadian RC Advances or the Term
Advances, a day of the year on which banks are not required or authorized
to close in Toronto, Ontario, or Regina, Saskatchewan; and (iii) with
respect to all notices and determinations in connection with, and payments
of principal and interest on, the Eurodollar Rate Advances, a day of the
year under clause (i) above and on which dealings are carried on in the
London interbank market.
"Canadian Administrative Agent" has the meaning specified in the
recitals of the parties to this Agreement.
"Canadian Borrower" means any of IMC Canada, Kalium or CCP.
"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 Section 5.02(h), on a consistent basis.
"Canadian Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Canadian Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Canadian Borrowers and the
Canadian Administrative Agent.
"Canadian Plan" means any plan, arrangement or agreement relating to
retirement savings or pensions including, without limiting the generality
of the foregoing, any defined benefit pension plan, defined contribution
pension plan, or group registered retirement savings plan, in respect of
which any Canadian Borrower is a party or is bound, or has any liability
or contingent liability (other than the Canada Pension Plan and other
plans established and administered by the federal or any provincial
government of Canada).
"Canadian RC Advance" has the meaning specified in Section
2.01(a)(ii).
"Canadian RC Borrowing" means a borrowing consisting of simultaneous
Canadian RC Advances of the same Type made by the Canadian RC Lenders.
"Canadian RC Commitment" means, with respect to any Canadian RC
Lender at any time, the amount set forth opposite such Canadian RC
Lender's name on Schedule I hereto under the caption "Canadian RC
Commitment" or, if such Canadian RC Lender has entered into one or more
Assignments and Acceptances, the amount set forth for such Canadian RC
Lender in the Register maintained by the U.S. Administrative Agent
pursuant to Section 9.07(g) as such Canadian RC Lender's "Canadian RC
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.04.
"Canadian RC Facility" means, at any time, the aggregate amount of
the Canadian RC Lenders' Canadian RC Commitments at such time.
"Canadian RC Lender" means any Lender that has a Canadian RC
Commitment.
"Canadian RC Note" means a promissory note of any Canadian Borrower
payable to the order of any Canadian RC Lender, in substantially the form
of Exhibit A-1 hereto, evidencing the aggregate indebtedness of such
Borrower to such Lender resulting from the Canadian RC Advances made by
such Lender.
"Canpotex" means Canpotex Limited, a corporation organized under
the federal laws of Canada.
"Canpotex Debt" means all Debt of IMC Canada and Kalium or any other
Subsidiary of Global 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 Agreement
with Neptune Bulk Terminal (Canada) Ltd. and related documents in the
aggregate principal amount of Canadian $30,000,000.
"Capitalization" means 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" means, 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 Moody's 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 Moody's 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" has the meaning specified in the recital of parties to this
Agreement.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as the same may be amended from time to time.
"Chemical Supplier Debt" shall mean indebtedness incurred in the
ordinary course of business owing by Global or any of its Subsidiaries to
chemical suppliers, which indebtedness represents a financing of the
purchase price of such goods.
"Citibank" has the meaning specified in the recital of parties to
this Agreement.
"Citibank Canada" has the meaning specified in the recital of parties
to this Agreement.
"Commitment" means a Term Commitment, a U.S. RC Commitment, a
Canadian RC Commitment or a Letter of Credit Commitment.
"Competitive Bid Advance" means an advance by a Lender to either U.S.
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.14 and refers to a
Fixed Rate Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose offer
to make one or more Competitive Bid Advances as part of such borrowing has
been accepted under the competitive bidding procedure described in
Section 2.14.
"Competitive Bid Note" means a promissory note of either U.S.
Borrower payable to the order of any Lender, in substantially the form of
Exhibit A-3 hereto, evidencing the indebtedness of such U.S. Borrower to
such Lender resulting from a Competitive Bid Advance made by such Lender.
"Competitive Bid Reduction" has the meaning specified in Section
2.01(a)(i).
"Confidential Information" means information that any Loan Party or
any of its Subsidiaries furnishes to any Agent or any Lender on a
confidential basis, including, without limitation, information subject to
the confidentiality provisions contained in the applicable Lender's
Confidentiality Agreement, the Pre-Commitment Information, but does not
include any such information that is or becomes generally available to the
public other than as a result of a breach by any Agent or any Lender of
its obligations hereunder or under its Confidentiality Agreement or that
is or becomes available to such Agent or such Lender from a source other
than any other Lender or any Loan Party or any of its Subsidiaries.
"Confidentiality Agreement" means (a) for each Agent or Lender party
hereto as of the Effective Date, the confidentiality agreement entered
into among Global, Vigoro and such Agent or Lender (or its Affiliate) in
contemplation of the financing transaction evidenced by this Agreement and
(b) otherwise has the meaning specified in Section 9.07(i).
"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 Funded Debt of Global and its Consolidated Subsidiaries outstanding
on that date (but excluding, to the extent otherwise included therein,
Excluded Debt).
"Conversion", "Convert" and "Converted" each refer to a conversion of
Regular Advances of one Type into Regular Advances of the other Type
pursuant to Section 2.08 or 2.09.
"Current Interest" has the meaning specified in Section 4.01 of the
Partnership Agreement.
"Disclosure Letter" means the disclosure letter dated as of the date
hereof from the Loan Parties to the Lenders and the Agents.
"Debt" of any Person means, 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 the 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 Section 5.02(b), 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 Section 5.04, Debt shall not be
interpreted to include any such obligations.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Defaulted Advance" means, with respect to any Lender at any time,
the amount of any Advance required to be made by such Lender to any
Borrower pursuant to Section 2.01 at or prior to such time which has not
been so made as of such time; provided, however, any Advance made by
either Administrative Agent for the account of such Lender pursuant to
Section 2.02(e) shall not be considered a Defaulted Advance even if, at
such time, such Lender shall not have reimbursed the Appropriate
Administrative Agent therefor as provided in Section 2.02(e). In the
event that a portion of a Defaulted Advance shall be deemed made pursuant
to Section 2.16(a), the remaining portion of such Defaulted Advance shall
be considered a Defaulted Advance originally required to be made pursuant
to Section 2.01 on the same date as the Defaulted Advance so deemed made
in part.
"Defaulted Amount" means, with respect to any Lender at any time, any
amount required to be paid by such Lender to either Administrative Agent
or any other Lender hereunder or under any other Loan Document at or prior
to such time which has not been so paid as of such time, including,
without limitation, any amount required to be paid by such Lender to (a)
any Swing Line Bank pursuant to Section 2.02(b) to purchase a portion of a
Swing Line Advance made by such Swing Line Bank, (b) any Issuing Bank
pursuant to Section 2.13(c) to purchase a portion of a Letter of Credit
Advance made by such Issuing Bank, (c) either Administrative Agent
pursuant to Section 2.02(e) to reimburse such Administrative Agent for the
amount of any Advance made by such Administrative Agent for the account of
such Lender, (d) any other Lender pursuant to Section 2.12 to purchase any
participation in Advances owing to such other Lender and (e) any Agent
pursuant to Section 8.05 to reimburse such Agent for such Lender's ratable
share of any amount required to be paid by the Lenders to such Agent as
provided therein. In the event that a portion of a Defaulted Amount shall
be deemed paid pursuant to Section 2.16(b), the remaining portion of such
Defaulted Amount shall be considered a Defaulted Amount originally
required to be made hereunder or under any other Loan Document on the same
date as the Defaulted Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender that, at such
time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take
or be the subject of any action or proceeding of a type described in
Section 6.01(f).
"Designated Bidder" means (a) an Eligible Assignee or (b) an
Affiliate of a Lender (other than a Designated Bidder) that is generally
in the business of commercial banking or is a special purpose corporation
that is engaged in making, purchasing or otherwise investing in commercial
loans in the ordinary course of its business and that issues (or the
parent of which issues) commercial paper rated at least "Prime-1" (or the
then equivalent grade) by Moody's or "A-1" (or the then equivalent grade)
by S&P that, in the case of either clause (a) or (b), (i) is organized
under the laws of the United States or any State thereof, (ii) shall have
become a party hereto pursuant to Section 9.07(d), (e) and (f) and
(iii) is not otherwise a Lender.
"Designation Agreement" means a designation agreement entered into by
a Lender (other than a Designated Bidder) and a Designated Bidder, and
accepted by the U.S. Administrative Agent, in substantially the form of
Exhibit D hereto.
"Disclosed Litigation" has the meaning specified in Section 3.01(c).
"Documentation Agent" has the meaning specified in the recital of
parties to this Agreement.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Borrowers and the U.S.
Administrative Agent.
"EBITDA" means, 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 Exhibit A to 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).
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (a) with respect to any Facility (other
than the Letter of Credit Facility or Canadian RC Facility) (i) an
affiliate of a Lender at least 50% of the Voting Stock of which is owned
by such Lender; (ii) a Lender (other than a Designated Bidder);
(iii) (A) a commercial bank organized under the laws of the United States,
or any State thereof, and having a combined capital and surplus of at
least $250,000,000; (B) a bank listed in Schedule I or Schedule II to the
Bank Act (Canada), and having a combined capital and surplus of at least
$250,000,000; or (C) a commercial bank organized under the laws of any
other country that is a member of the OECD or has concluded special
lending arrangements with the International Monetary Fund associated with
its General Arrangements to Borrow, or a political subdivision of any such
country, and having a combined capital and surplus of at least
$250,000,000, so long as such bank is acting through a branch or agency
located in the United States, in each case under clauses (A) through (C),
so long as no Event of Default under Section 6.01(a), (c) (with respect to
Section 5.04) or (f) shall have occurred and be continuing, as approved by
Global, such approval not to be unreasonably withheld or delayed; and
(iv) any other Person approved by the Appropriate Administrative Agent
and, so long as no Event of Default under Section 6.01(a), (c) (with
respect to Section 5.04) or (f) shall have occurred and be continuing, as
approved by Global, such approval not to be unreasonably withheld or
delayed, (b) with respect to the Canadian RC Facility, a bank listed in
Schedule I or II to the Bank Act (Canada), and having a combined capital
and surplus of at least $250,000,000 and, so long as no Event of Default
under Section 6.01(a), (c) (with respect to Section 5.04) or (f) shall
have occurred and be continuing, approved by Global, such approval not to
be unreasonably withheld or delayed, and (c) with respect to the Letter of
Credit Facility, (i) under the U.S. RC Facility, a Person that is an
Eligible Assignee under subclause (iii)(A) or (iii)(C) of clause (a) of
this definition and (ii) under the Canadian RC Facility, any Person that
is an Eligible Assignee under clause (b) and, in each case, approved by
the Appropriate Administrative Agent and, so long as no Event of Default
under Section 6.01(a), (c) (with respect to Section 5.04) or (f) shall
have occurred and be continuing, by Global, such approval not to be
unreasonably withheld or delayed; provided, however, that no Affiliate of
any Borrower shall qualify as an Eligible Assignee under clause (a), (b)
or (c) of this definition.
"Environmental Claims" means any and all applicable administrative,
regulatory or judicial actions, suits, demands, directives, demand
letters, claims that have been threatened or asserted, liens, notices of
noncompliance or violation, investigations, fines, penalties, injunctions,
orders or proceedings relating in any way to any Environmental Law or any
permit issued, or any approval given, under any such Environmental Law
(hereafter "Claims"), including, without limitation, (a) any and all
Claims by governmental or regulatory authorities for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Laws, and (b) any and all Claims by any third
party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or
arising from alleged injury or threat of injury to health, safety or the
environment.
"Environmental Law" means any international, foreign, federal,
regional, provincial, state or local treaty, statute, law, rule,
regulation, ordinance, code or rule of common law now or hereafter in
effect and in each case as amended, and any final judicial or
administrative interpretation thereof, including any final judicial or
administrative order, consent decree or judgment, relating to the
environment, natural resource conservation, pollution, health, safety or
Hazardous Materials, including, without limitation, CERCLA, the Hazardous
Materials Transportation Act, as amended, 49 U.S.C. 1801 et seq., RCRA,
the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et
seq., the Toxic Substances Control Act, 15 U.S.C. 2601 et seq., the
Clean Air Act, 42 U.S.C. 7401 et seq., the Safe Drinking Water Act, 42
U.S.C. 3808 et seq., the Oil Pollution Act, 33 U.S.C. 2701 et seq.
and any Canadian federal, provincial, municipal or local counterparts or
equivalents thereof, including the Canadian Environmental Protection Act,
as amended, the Environmental Protection Act (Ontario), as amended, the
Ontario Water Resources Act, the Environmental Management and Protection
Act (Saskatchewan) and Clean Air Act (Saskatchewan) and any foreign
counterparts or equivalents thereof; and the terms and conditions of any
required environmental permits issued pursuant to any environmental laws
to a Loan Party or any of its Subsidiaries.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" of any Person means any other Person that for
purposes of Title IV of ERISA is a member of such Person's controlled
group, or under common control with such Person, within the meaning of
Section 414 of the Internal Revenue Code.
"ERISA Event" with respect to any Person means (a) (i) the occurrence
of a reportable event, within the meaning of Section 4043 of ERISA, with
respect to any Plan of such Person or any of its ERISA Affiliates unless
the 30-day notice requirement with respect to such event has been waived
by the PBGC or (ii) the requirements of subsection (1) of Section 4043(b)
of ERISA (without regard to subsection (2) of such Section) are met with
respect to a contributing sponsor, as defined in Section 4001(a)(13) of
ERISA, of a Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days; (b) the provision
by the administrator of any Plan of such Person or any of its ERISA
Affiliates of a notice of intent to terminate such Plan, pursuant to
Section 4041(a)(2) of ERISA (including any such notice with respect to a
plan amendment referred to in Section 4041(e) of ERISA); (c) the cessation
of operations at a facility of such Person or any of its ERISA Affiliates
in the circumstances described in Section 4062(e) of ERISA; (d) the
withdrawal by such Person or any of its ERISA Affiliates from a Multiple
Employer Plan during a plan year for which it was a substantial employer,
as defined in Section 4001(a)(2) of ERISA; (e) the failure by such Person
or any of its ERISA Affiliates to make a payment to a Plan required under
Section 302(f)(1) of ERISA; (f) the adoption of an amendment to a Plan of
such Person or any of its ERISA Affiliates requiring the provision of
security to such Plan, pursuant to Section 307 of ERISA; or (g) the
institution by the PBGC of proceedings to terminate a Plan of such Person
or any of its ERISA Affiliates, pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that could constitute grounds for the termination of, or the appointment
of a trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender (or, if no such office is specified,
its Domestic Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Borrowers and the U.S.
Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the average
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if
such average is not a multiple) of the rate per annum at which deposits in
U.S. dollars are offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London interbank market at
11:00 A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference Bank's
Eurodollar Rate Advance comprising part of such Borrowing to be
outstanding during such Interest Period (or, if any Reference Bank shall
not have such a Eurodollar Rate Advance, $1,000,000) and for a period
equal to such Interest Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period. The
Eurodollar Rate for any Interest Period for each Eurodollar Rate Advance
comprising part of the same Borrowing shall be determined by the U.S.
Administrative Agent on the basis of applicable rates furnished to and
received by the U.S. Administrative Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.06.
"Eurodollar Rate Advance" means a Regular Advance that bears interest
as provided in Section 2.06(a)(ii).
"Eurodollar Rate Borrowing" means a Borrowing consisting of
Eurodollar Rate Advances.
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances or LIBO Advances comprising part of the same
Borrowing means the reserve percentage applicable two Business Days before
the first day of such Interest Period under regulations issued from time
to time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate
on Eurodollar Rate Advances is determined) having a term equal to such
Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"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.
"Existing Debt" has the meaning specified in Section 5.02(b)(ii)(B).
"Existing Issuing Banks" means the Lenders that are "Issuing Banks"
under the Global Operations Credit Agreement or the Vigoro Credit
Agreement.
"Existing Lender" means any Lender that is party to an Existing
Credit Agreement.
"Existing Letters of Credit" has the meaning specified in Section
2.13(f).
"Facility" means the Term Facility, the RC Facilities, the Swing Line
Facility and the Letter of Credit Facility.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day for such transactions received by
the U.S. Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Rate Advances" has the meaning specified in Section
2.14(a)(i).
"Freeport" means Freeport-McMoRan Resource Partners, Limited
Partnership, a Delaware limited partnership.
"Funded Debt" means, 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.
"Funding Date" means the first date on which all of the conditions in
Article III shall have been satisfied.
"Global" has the meaning specified in the recital of parties to this
Agreement.
"Global Operations" has the meaning specified in the recital of
parties to this Agreement.
"Global Operations Credit Agreement" means the Amended and Restated
Credit Agreement dated as of July 31, 1995, as amended, among Global
Operations, as borrower, Global, as guarantor, the banks parties thereto,
Citibank, as administrative agent, co-agent and swing line bank and
NationsBank and Cooperatieve Centrale Raiffeissen-Boerenleenbank B.A., as
co-agents.
"Guaranteed Obligations" has the meaning specified in Section 7.01.
"Guarantors" means (a) Global, (b) prior to the Release Date, the
Subsidiary Guarantors (except Global Operations) and (c) prior to the
Operations Release Date, Global Operations.
"Guaranty" means the Guaranty set forth in Article VII.
"Hazardous Materials" means any material which is hazardous or toxic
and includes: (a) any petroleum or petroleum products, radioactive
materials, asbestos in any form that is or could become friable, urea
formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls in excess
of 50 parts per million and radon gas; (b) any chemicals, materials or
substances defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials", "extremely
hazardous wastes", "restricted hazardous wastes", "toxic substances",
"toxic pollutants", "contaminants", "pollutants", "subject wastes",
"deleterious substances" or words of similar import under any applicable
Environmental Law; and (c) any other chemical, material or substance,
exposure to which is prohibited, limited or regulated by any applicable
governmental authority, including, without limitation, any contaminant as
defined in the Environmental Protection Act (Ontario), as amended.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, foreign exchange
contracts, currency swap agreements, currency future or option contracts,
commodities contracts (including, without limitation, options, forwards,
futures and similar agreements) and other similar agreements.
"IMC Canada" has the meaning specified in the recital of the parties
to this Agreement.
"IMC Global Potash Holdings" means IMC Global Potash Holdings Inc., a
Delaware corporation and a Subsidiary of Global.
"IMC Partner" means IMC-Agrico GP Company, a Delaware corporation, or
any successor corporation otherwise permitted hereunder.
"Indemnified Party" has the meaning specified in Section 9.04(b).
"Information Memoranda" means (a) the joint Global and Vigoro binder
of information, dated January, 1996, (b) the binder of information
entitled "Overview of The Vigoro Corporation" dated January, 1996 and (c)
the binder of information regarding Global and its subsidiaries issued
January, 1996, in each case, used by the Arrangers in connection with the
syndication of the Commitments.
"Initial Extension of Credit" means the earlier to occur of the
initial Borrowing and the initial issuance of a Letter of Credit
hereunder.
"Initial Lenders" has the meaning specified in the recital of parties
to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Regular Borrowing and for each LIBO Rate Advance
comprising part of the same Competitive Bid Borrowing, the period
commencing on the date of such Eurodollar Rate Advance or LIBO Rate
Advance or the date of the Conversion of any Base Rate Advance into such
Eurodollar Rate Advance, and ending on the last day of the period selected
by the Borrower requesting such Borrowing pursuant to the provisions below
and, thereafter, with respect to Eurodollar Rate Advances, each subsequent
period commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by such Borrower
pursuant to the provisions below. The duration of each such Interest
Period for each Eurodollar Rate Advance shall be one, two, three, six or,
if available to all Appropriate Lenders, nine or twelve months, and the
duration of each such Interest Period for each LIBO Rate Advance shall be
the number of days or months, in each case, as such Borrower may, upon
notice received by the Appropriate Administrative Agent not later than
12:00 noon (New York City time) on the third Business Day prior to the
first day of such Interest Period, select; provided, however, that:
(a) the Borrowers may not select any Interest Period that
ends after the Termination Date;
(b) Interest Periods commencing on the same date for Eurodollar
Rate Advances comprising part of the same Regular Borrowing shall be
of the same duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such extension
would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall
occur on the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Investment" in any Person means 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.
"Issuing Bank" means (a) with respect to the Canadian RC Facility,
Citibank Canada, any other Canadian RC Lender approved as an Issuing Bank
under the Canadian RC Facility by the Canadian Administrative Agent and,
so long as no Event of Default under Section 6.01(a), (c) (with respect to
Section 5.04) or (f), shall have occurred and be continuing, by Global
(such approvals not to be unreasonably withheld or delayed) and each
Eligible Assignee to which a Letter of Credit Commitment hereunder has
been assigned pursuant to Section 9.07 and (b) with respect to the U.S. RC
Facility, Citibank, NationsBank and any other U.S. RC Lender approved as
an Issuing Bank under the U.S. RC Facility by the U.S. Administrative
Agent and, so long as no Default shall have occurred and be continuing, by
Global (such approvals not to be unreasonably withheld or delayed) and
each Eligible Assignee to which a Letter of Credit Commitment hereunder
has been assigned pursuant to Section 9.07, in the case of each such RC
Lender or Eligible Assignee, so long as such RC Lender or Eligible
Assignee expressly agrees to perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be
performed by it as an Issuing Bank and notifies the Appropriate
Administrative Agent of its Applicable Lending Office and the amount of
its Letter of Credit Commitment (which information shall be recorded by
the U.S. Administrative Agent in the Register), and shall include the
issuers of Existing Letters of Credit.
"Joint Venture Company" means IMC-Agrico Company, a Delaware general
partnership established pursuant to the terms of the Partnership
Agreement.
"Kalium" has the meaning specified in the recital of parties to this
Agreement.
"L/C Cash Collateral Account" has the meaning specified in
Section 6.02.
"L/C Related Documents" has the meaning specified in Section
2.13(d)(i).
"Lenders" means the Initial Lenders, each Person that shall become a
party hereto pursuant to Sections 9.07(a), (b) and (c) and, except when
used (i) in reference to a Regular Advance, a Regular Borrowing, a Note
(other than a Competitive Bid Note), a Commitment or a related term, or
(ii) in connection with the reporting requirements set forth in Section
5.02(h) and 5.03, each Designated Bidder.
"Letter of Credit" has the meaning specified in Section 2.13(a).
"Letter of Credit Advance" means an advance made by any Issuing Bank
or any Lender pursuant to Section 2.13(c).
"Letter of Credit Agreement" has the meaning specified in Section
2.13(b).
"Letter of Credit Commitment" means, with respect to any Issuing Bank
under the Canadian RC Facility or the U.S. RC Facility at any time, the
amount set forth opposite such Issuing Bank's name on Schedule I hereto
under the caption "Canadian RC Facility L/C Commitment" or "U.S. RC
Facility L/C Commitment", as the case may be, or, if such Issuing Bank has
entered into one or more Assignments and Acceptances, set forth for such
Issuing Bank in the Register maintained by the Administrative Agent
pursuant to Section 9.07(g) as such Issuing Bank's "Canadian RC Facility
L/C Commitment" or "U.S. RC Facility L/C Commitment", as the case may be,
as such amount may be reduced at or prior to such time pursuant to Section
2.04.
"Letter of Credit Facility" means, at any time, (a) with respect to
the Canadian RC Facility, an amount equal to the lesser of (i) the
aggregate amount of the Letter of Credit Commitments of the Issuing Banks
under the Canadian RC Facility at such time and (ii) $15,000,000, as such
amount may be reduced at or prior to such time pursuant to Section 2.04,
and (b) with respect to the U.S. RC Facility, an amount equal to the
lesser of (i) the aggregate amount of the Letter of Credit Commitments of
the Issuing Banks under the U.S. RC Facility at such time and (ii)
$75,000,000, as such amount may be reduced at or prior to such time
pursuant to Section 2.04.
"Leverage Ratio" means the leverage ratio described in Section
5.04(c).
"LIBO Rate" means, for any Interest Period for all LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing, an interest rate
per annum equal to the rate per annum obtained by dividing (a) the average
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if
such average is not such a multiple) of the rate per annum at which
deposits in U.S. dollars are offered by the principal office of each of
the Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in an amount substantially equal to the
amount that would be the Reference Banks' respective ratable shares of
such Borrowing if such Borrowing were to be a Regular Borrowing to be
outstanding during such Interest Period and for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage for such Interest Period. The LIBO Rate for any
Interest Period for each LIBO Rate Advance comprising part of the same
Competitive Bid Borrowing shall be determined by the U.S. Administrative
Agent on the basis of applicable rates furnished to and received by the
U.S. Administrative Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject, however, to the
provisions of Section 2.06(d).
"LIBO Rate Advances" has the meaning specified in Section 2.14(a)(i).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"Loan Documents" means this Agreement, the Notes and each Letter of
Credit Agreement.
"Loan Parties" means the Borrowers and the Guarantors.
"Managing Partner" means IMC-Agrico MP, Inc., a Delaware corporation.
"Margin Stock" has the meaning specified in Regulation U.
"Material Accounting Changes" has the meaning specified in Section
5.02(h).
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of Global 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 Global and its Subsidiaries taken as a whole,
(b) the rights and remedies of any Agent or any Lender under any Loan
Document or (c) the ability of any Loan Party to perform its Obligations
under any Loan Document or Related Document to which it is or is to be a
party.
"Membership Debt" means, with respect to Global 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" has the meaning specified in the Preliminary Statements.
"Merger Agreement" has the meaning specified in the Preliminary
Statements.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" of any Person means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, to which such Person or any of its
ERISA Affiliates is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"Multiple Employer Plan" of any Person means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of such Person or any of its ERISA Affiliates and at least one
Person other than such Person and its ERISA Affiliates or (b) was so
maintained and in respect of which such Person or any of its ERISA
Affiliates could have liability under Section 4064 or 4069 of ERISA in the
event such plan has been or were to be terminated.
"NationsBanc" has the meaning specified in the recital of parties to
this Agreement.
"NationsBank" means NationsBank, N.A. (formerly known as NationsBank
of North Carolina, N.A.).
"Non-Guarantor Subsidiary" means any Subsidiary of Global other than
a Subsidiary Guarantor.
"Note" means a U.S. RC Note, a Canadian RC Note, a Term Note or a
Competitive Bid Note.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Competitive Bid Borrowing" has the meaning specified in
Section 2.14(a).
"Notice of Issuance" has the meaning specified in Section 2.13(b)(i).
"Notice of Renewal" has the meaning specified in Section 2.13(a).
"Notice of Swing Line Borrowing" has the meaning specified in
Section 2.02(b).
"Obligation" means, with respect to any Loan Party or its
Subsidiaries, any obligation of such Loan Party or Subsidiary of any kind,
including, without limitation, any liability of such Loan Party or such
Subsidiary 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 referred to in
Section 6.01(f). Without limiting the generality of the foregoing, the
Obligations of the Loan Parties under the Loan Documents include (a) the
obligation to pay principal, interest, Letter of Credit commissions,
charges, expenses, fees, reasonable attorneys' fees and disbursements,
indemnities and other amounts payable by any Loan Party under any Loan
Document and (b) the obligation to reimburse any amount in respect of any
of the foregoing that any Lender, in its reasonable discretion, may elect
to pay or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"Operations Release Date" means the later to occur of the Release
Date and the date on which Global Operations is permanently released as a
guarantor under the Prudential Guarantee.
"Other Taxes" has the meaning specified in Section 2.11(b).
"Partnership Agreement" means 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 the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation.
"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 Global'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 Global 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" means 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" means The Phosphate Chemicals Export Association.
"Phosrock" means The Phosphate Rock Export Association.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Potash" means IMC Potash Corporation, a Delaware corporation and a
wholly owned Subsidiary of Global Operations.
"Pre-Commitment Information" has the meaning specified in Section
3.01(e).
"Preferred Stock" means, 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.
"Prepayment Account" means, as the context may require, the account
of either of the U.S. Borrowers to be established and maintained by such
U.S. Borrowers with Citibank at its office at 399 Park Avenue, New York,
New York 10043, in the name of such U.S. Borrowers but under the sole
control and dominion of the U.S. Administrative Agent and subject to the
terms of this Agreement in connection with Section 2.05(a)(iv) or the
account of any of the Canadian Borrowers to be established and maintained
by such Canadian Borrowers with Citibank Canada at its office at Citibank
Place, 123 Front Street, West, Toronto, Ontario, M5J 2M3, in the name of
such Canadian Borrowers but under the sole control and dominion of the
Canadian Administrative Agent and subject to the terms of the Agreement in
connection with Section 2.05(a)(iv).
"Pro Rata Share" of any amount means (a) with respect to any Canadian
RC Lender at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender's Canadian RC Commitment
at such time and the denominator of which is the Canadian RC Facility at
such time and (b) with respect to any U.S. RC Lender at any time, the
product of such amount times a fraction the numerator of which is the
amount of such Lender's U.S. RC Commitment at such time and the
denominator of which is the U.S. RC Facility at such time.
"Process Agent" has the meaning specified in Section 9.14.
"Prudential Guarantee" means the amended and restated affiliate
guaranty dated as of February 28, 1996 issued by Global Operations and
certain other Subsidiary Guarantors in favor of The Prudential Insurance
Company of America as in effect on the date hereof.
"RC Advance" means a Canadian RC Advance or a U.S. RC Advance.
"RC Commitment" means a Canadian RC Commitment or a U.S. RC
Commitment.
"RC Facility" means the Canadian RC Facility or the U.S. RC Facility.
"RC Lender" means any Canadian RC Lender or any U.S. RC Lender.
"Redeemable" means, 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.
"Reference Banks" means Citibank and NationsBank, provided, however,
that if the rating of the long-term debt of any Reference Bank is
downgraded or put on credit watch by Moody's or S&P and as a result of
such downgrading or credit watch, there is an increase by 1/16 or greater
in the Eurodollar Rate quoted by such Reference Bank over the Eurodollar
Rate quoted by the other Reference Bank, then Global may, by written
notice to the Administrative Agents, replace such Reference Bank with
another RC Lender (so long as such RC Lender has agreed to act as a
Reference Bank hereunder).
"Register" has the meaning specified in Section 9.07(g).
"Regular Advance" means any Advance other than a Competitive Bid
Advance.
"Regular Borrowing" means a Term Borrowing, an RC Borrowing or a
Swing Line Borrowing.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Related Documents" means the Merger Agreement and the Partnership
Agreement.
"Release Date" means the earlier of (a) the later of (i) the
Termination Date and (ii) the date on which the Obligations of the Loan
Parties under the Loan Documents shall be paid in full in cash and (b) the
date on which Global shall have received a rating of BBB- or above from
S&P or Baa3 or above from Moody's on any class of Global's non-credit
enhanced long-term senior unsecured Debt, provided that no Default shall
have occurred and shall be continuing on such date.
"Relevant Subsidiary" means, at any time, a Subsidiary of Global
having (a) at least 5% of the total Consolidated assets of Global 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
Global 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 Global.
"Required Lenders" means at any time Lenders owed or holding at least
a majority in interest of (a) the aggregate principal amount of the
Regular Advances outstanding at such time, (b) the aggregate Available
Amount of all Letters of Credit outstanding at such time, (c) the
aggregate unused Term Commitments and (d) the aggregate Unused RC
Commitments at such time; provided, however, that if any Lender shall be a
Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (i) the aggregate principal
amount of the Regular Advances owing to such Lender (in its capacity as a
Lender) and outstanding at such time, (ii) such Lender's Pro Rata Share of
the aggregate Available Amount of all Letters of Credit issued by such
Lender outstanding at such time, (iii) the unused Term Commitment of such
Lender at such time and (iv) the aggregate Unused RC Commitments of such
Lender at such time. For purposes of this definition, the aggregate
principal amount of Letter of Credit Advances owing to any Issuing Bank
and the Available Amount of each Letter of Credit under the Canadian RC
Facility shall be considered to be owed to the Canadian RC Lenders ratably
in accordance with their respective Canadian RC Commitments, the aggregate
principal amount of Swing Line Advances owing to any Swing Line Bank and
of Letter of Credit Advances owing to any Issuing Bank and the Available
Amount of each Letter of Credit under the U.S. RC Facility shall be
considered to be owed to the U.S. RC Lenders ratably in accordance with
their respective U.S. RC Commitments.
"Responsible Officer" means the chief executive officer, chief
operating officer, chief financial officer, treasurer or chief accounting
officer of Global or any other officer of Global involved principally in
its financial administration or its controllership function.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw-
Hill, Inc.
"Single Employer Plan" of any Person means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of such Person or any of its ERISA Affiliates and no Person
other than such Person and its ERISA Affiliates or (b) was so maintained
and in respect of which such Person or any of its ERISA Affiliates could
have liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"SKMG" means The Sulphate of Potash Magnesia Export Association.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of
such corporation (irrespective of whether at the time capital stock of any
other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (b) the interest in the
capital or profits of such 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, the Joint Venture
Company shall be deemed to be a Subsidiary of Global Operations and
Global.
"Subsidiary Guarantors" means the Subsidiaries listed on Part I of
Schedule 4.01(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 Section 5.01(l).
"Swing Line Advance" means an advance made by (a) a Swing Line Bank
pursuant to Section 2.01(b) or (b) any Lender pursuant to Section 2.02(b).
"Swing Line Bank" means each of Citibank and NationsBank.
"Swing Line Borrowing" means a borrowing consisting of a Swing Line
Advance made by any Swing Line Bank or made by any Lender pursuant to
Section 2.02(b).
"Swing Line Facility" has the meaning specified in Section 2.01(b).
"Syndication Agent" has the meaning specified in the recital of
parties of this Agreement.
"Taxes" has the meaning specified in Section 2.11(a).
"Term Advance" has the meaning specified in Section 2.01(c).
"Term Borrower" means Kalium.
"Term Borrowing" means a borrowing consisting of simultaneous Term
Advances of the same Type made by the Term Lenders.
"Term Commitment" means, with respect to any Term Lender at any time,
the amount set forth opposite such Term Lender's name on Schedule I hereto
under the caption "Term Commitment" or, if such Term Lender has entered
into one or more Assignments and Acceptances, set forth for such Term
Lender in the Register maintained by the U.S. Administrative Agent
pursuant to Section 9.07(g) as such Term Lender's "Term Commitment", as
such amount may be reduced at or prior to such time pursuant to Section
2.04.
"Term Facility" means, at any time, the aggregate amount of the Term
Lenders' Term Commitments at such time.
"Term Lender" means any Lender that has a Term Commitment.
"Term Note" means a promissory note of the Term Borrower payable to
the order of any Term Lender, in substantially the form of Exhibit A-4
hereto, evidencing the aggregate indebtedness of such Borrower to such
Lender resulting from the Term Advances made by such Lender.
"Termination Date" means (a) with respect to the RC Facilities, the
Swing Line Facility and the Letter of Credit Facilities, the earlier of
March 1, 1999 and the date of termination in whole of the RC Commitments
pursuant to Section 2.04 or 6.01 and (b) with respect to the Term
Facility, the earlier of (i) the day immediately succeeding the five-year
anniversary of the date of the last Term Advance and (ii) the date of
termination in whole of the Term Commitments pursuant to Section 2.04(a)
or 6.01.
"Type" refers to the distinction between Regular Advances bearing
interest at the Base Rate and Regular Advances bearing interest at the
Eurodollar Rate.
"Unused Canadian RC Commitment" means, with respect to any Canadian
Lender at any time, (a) such Lender's Canadian RC Commitment at such time
minus (b) the sum of (i) the aggregate principal amount of all RC Advances
and Letter of Credit Advances made by such Lender under the Canadian RC
Facility and outstanding at such time, plus (ii) such Lender's Pro Rata
Share of (A) the aggregate Available Amount of all Letters of Credit
outstanding under the Canadian RC Facility at such time and (B) the
aggregate principal amount of all Letter of Credit Advances made by the
Issuing Banks under the Canadian RC Facility pursuant to Section 2.13(c)
and outstanding at such time other than any such Letter of Credit Advance
which, at or prior to such time, has been assigned in part to such Lender
pursuant to Section 2.13(c).
"Unused Commitment Fee Rate" has the meaning specified in
Section 2.07.
"Unused RC Commitment" means an Unused Canadian RC Commitment or an
Unused U.S. RC Commitment.
"Unused U.S. RC Commitment" means, with respect to any U.S. RC Lender
at any time, (a) such Lender's U.S. RC Commitment at such time minus (b)
the sum of (i) the aggregate principal amount of all Advances, Swing Line
Advances and Letter of Credit Advances made by such Lender under the U.S.
RC Facility and outstanding at such time, plus (ii) such Lender's Pro Rata
Share of (A) the aggregate Available Amount of all Letters of Credit
outstanding under the U.S. RC Facility at such time, (B) the aggregate
principal amount of all Letter of Credit Advances made by the Issuing
Banks under the U.S. RC Facility pursuant to Section 2.13(c) and
outstanding at such time and (C) the aggregate principal amount of all
Swing Line Advances made by the Swing Line Banks pursuant to Section
2.01(b) and outstanding at such time.
"U.S. Administrative Agent" has the meaning specified in the recital
of parties to this Agreement.
"U.S. Borrower" means either of Global or Global Operations.
"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
Section 5.02(h), on a consistent basis.
"U.S. RC Advance" has the meaning specified in Section 2.01(a)(i).
"U.S. RC Borrowing" means a borrowing consisting of simultaneous U.S.
RC Advances of the same Type made by the U.S. RC Lenders.
"U.S. RC Commitment" means, with respect to any RC Lender at any
time, the amount set forth opposite such RC Lender's name on Schedule I
hereto under the caption "U.S. RC Commitment" or, if such RC Lender has
entered into one or more Assignments and Acceptances, set forth for such
RC Lender in the Register maintained by the U.S. Administrative Agent
pursuant to Section 9.07(g) as such RC Lender's "U.S. RC Commitment", as
such amount may be reduced at or prior to such time pursuant to Section
2.04.
"U.S. RC Facility" means, at any time, the aggregate amount of the
U.S. RC Lenders' U.S. RC Commitments at such time.
"U.S. RC Lender" means any Lender that has a U.S. RC Commitment.
"U.S. RC Note" means a promissory note of either U.S. Borrower
payable to the order of any U.S. RC Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the aggregate indebtedness of such Borrower
to such Lender resulting from the U.S. RC Advances made by such Lender.
"Vigoro" has the meaning specified in the Preliminary Statements.
"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 Harris Trust and Savings Bank, as Paying Agent.
"Vigoro Series E Preferred Stock" means the shares of preferred stock
of Vigoro, par value $100 per share, designated Series E.
"Voting Stock" means 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.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
Section 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
Section 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with Agreement
Accounting Principles.
Section 1.04 Optional Removal of Global Operations as a Borrower.
Global Operations may, at any time after the Release Date, as long as no
Default has occurred and is continuing, by written notice to the U.S.
Administrative Agent, elect to be removed as a Borrower under this Agreement.
From and after giving such notice and notwithstanding anything herein to the
contrary, each reference in this Agreement or any of the other Loan Documents
to a "Borrower" or "U.S. Borrower" shall no longer include Global Operations.
Effective on the date of such notice: (a) Global hereby irrevocably,
absolutely, unconditionally and expressly assumes the due and punctual payment
of all of the principal of, interest on, and all other amounts due in respect
of U.S. RC Advances, Swing Line Advances, Competitive Bid Advances and Letter
of Credit Advances owing at any time by Global Operations and Letters of Credit
issued for the account of Global Operations (the "Assumed Obligations"); and
(b) Global Operations shall be released hereby from the Assumed Obligations;
provided, however, the foregoing shall in no way impair, limit, discharge or
otherwise affect the liabilities and obligations, if any, of Global Operations
as a Subsidiary Guarantor. Each of the U.S. Lenders shall, upon request of the
U.S. Administrative Agent or Global Operations given on or after such election
has been made, promptly return to Global Operations each of the Notes issued by
it marked cancelled.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
Section 2.01. The Regular Advances. (a) (i) The U.S. RC Advances.
Each U.S. RC Lender severally agrees, on the terms and conditions hereinafter
set forth, to make advances (each a "U.S. RC Advance") to either U.S. Borrower
from time to time on any Business Day during the period from the Funding Date
until the Termination Date in an amount for each such U.S. RC Advance not to
exceed such Lender's Unused U.S. RC Commitment at such time, provided that the
aggregate amount of the U.S. RC Commitments of the U.S. RC Lenders shall be
deemed used from time to time to the extent of the aggregate amount of the
Competitive Bid Advances then outstanding and such deemed use of the aggregate
amount of the U.S. RC Commitments shall be allocated among such Lenders ratably
according to their respective U.S. RC Commitments (such deemed use of the
aggregate amount of the U.S. RC Commitments being a "Competitive Bid
Reduction"). Each U.S. RC Borrowing shall be in an aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof (other than
a Borrowing the proceeds of which shall be used solely to repay or prepay in
full outstanding Swing Line Advances made by any Swing Line Bank) or, if less,
an aggregate amount equal to the amount by which the aggregate amount of a
proposed Competitive Bid Borrowing requested by either U.S. Borrower exceeds
the aggregate amount of Competitive Bid Advances offered to be made by the U.S.
RC Lenders and accepted by such U.S. Borrower in respect of such Competitive
Bid Borrowing, if such Competitive Bid Borrowing is made on the same date as
such Regular Borrowing. Each U.S. RC Borrowing shall consist of U.S. RC
Advances made simultaneously by the U.S. RC Lenders ratably according to their
U.S. RC Commitments. Within the limits of each U.S. RC Lender's Unused U.S. RC
Commitment in effect from time to time, the U.S. Borrowers may borrow under
this Section 2.01(a)(i), prepay pursuant to Section 2.05(a) and reborrow under
this Section 2.01(a)(i).
(ii) The Canadian RC Advances. Each Canadian RC Lender severally
agrees, on the terms and conditions hereinafter set forth, to make advances
(each a "Canadian RC Advance") to any Canadian Borrower from time to time on
any Business Day during the period from the Funding Date until the Termination
Date in an amount for each such Advance not to exceed such Lender's Unused
Canadian RC Commitment at such time. Each Canadian RC Borrowing shall be in an
aggregate amount of $2,500,000 or an integral multiple of $1,000,000 in excess
thereof and shall consist of Canadian RC Advances made simultaneously by the
Canadian RC Lenders ratably according to their Canadian RC Commitments. Within
the limits of each Canadian RC Lender's Unused Canadian RC Commitment in effect
from time to time, a Canadian Borrower may borrow under this Section
2.01(a)(ii), prepay pursuant to Section 2.05(a) and reborrow under this Section
2.01(a)(ii).
(b) The Swing Line Advances. Either U.S. Borrower may request any
Swing Line Bank to make, and such Swing Line Bank may, if in its sole
discretion it elects to do so, make, on the terms and conditions hereinafter
set forth, Swing Line Advances to such U.S. Borrower from time to time on any
Business Day during the period from the Funding Date until the Termination Date
(i) in an aggregate amount owing from the U.S. Borrowers to all Swing Line
Banks not to exceed at any time outstanding $25,000,000 (the "Swing Line
Facility") and (ii) in an amount for each such Swing Line Borrowing not to
exceed the aggregate of the Unused U.S. RC Commitments of the Lenders at such
time. No Swing Line Advance shall be used for the purpose of funding the
payment of principal of any other Swing Line Advance. Each Swing Line
Borrowing shall be in an amount of $500,000 or an integral multiple of $250,000
in excess thereof and shall be made as a Base Rate Advance. Upon the making of
a Swing Line Borrowing by either U.S. Borrower, such Borrower shall, at such
time, be contingently liable for any such Swing Line Advance made at any time
by any Lender in satisfaction of its obligations under Section 2.02(b). Within
the limits of the Swing Line Facility and within the limits referred to in
clause (ii) above, so long as any Swing Line Bank, in its sole discretion,
elects to make Swing Line Advances, the U.S. Borrowers may borrow under this
Section 2.01(b), repay pursuant to Section 2.03(c) or prepay pursuant to
Section 2.05(a) and reborrow under this Section 2.01(b).
(c) The Term Advances. Each Term Lender severally agrees, on the
terms and conditions hereinafter set forth, to make a single advance (a "Term
Advance") to the Term Borrower on the Funding Date in an amount not to exceed
such Lender's Term Commitment at such time. The Term Borrowing shall consist
of Term Advances made simultaneously by the Term Lenders ratably according to
their Term Commitments. Amounts borrowed under this Section 2.01(c) and repaid
or prepaid may not be reborrowed.
Section 2.02. Making the Regular Advances. (a) Except as otherwise
provided in Section 2.02(b) or 2.13, each Regular Borrowing shall be made on
notice, given not later than 1:00 P.M. (New York City time) on the third
Business Day prior to the date of the proposed Borrowing, in the case of a
Borrowing consisting of Eurodollar Rate Advances, and not later than 1:00 P.M.
(New York City time) on the date of the proposed Borrowing, in the case of a
Borrowing consisting of Base Rate Advances, by any Borrower to the Appropriate
Administrative Agent, which shall give to each Appropriate Lender (and, in the
case of the Canadian Administrative Agent, to the U.S. Administrative Agent)
prompt notice thereof by telex, telecopier or cable. Each such notice of a
Regular Borrowing (a "Notice of Borrowing") shall be by telex, telecopier or
cable, promptly confirmed in writing, in substantially the form of Exhibit B-1
hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type
of Advances comprising such Borrowing, (iii) aggregate amount of such
Borrowing, (iv) in the case of a Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Advance and (v) Facility under
which such Borrowing is being made. In the case of a proposed Borrowing
comprised of Eurodollar Rate Advances, the Appropriate Administrative Agent
shall promptly notify the relevant Borrower and each Appropriate Lender of the
applicable interest rate under Section 2.06(a)(ii). Each Appropriate Lender
shall, before 2:00 P.M. (New York City time) on the date of such Borrowing,
make available for the account of its Applicable Lending Office to the
Appropriate Administrative Agent at the Appropriate Administrative Agent's
Account, in same day funds, such Lender's ratable portion of such Borrowing in
accordance with the respective Commitments under the applicable Facility of
such Lender and the other Appropriate Lenders. After such Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, such Administrative Agent will make such funds
available to the relevant Borrower making such Borrowing by crediting the
relevant Borrower's Account; provided, however, that in the case of any U.S. RC
Borrowing, the U.S. Administrative Agent shall first make a portion of such
funds equal to the aggregate principal amount of any Swing Line Advances and
Letter of Credit Advances then outstanding under the U.S. RC Facility and owing
to any Swing Line Bank or any Issuing Bank, as the case may be, and to any
other Lender on the date of such Borrowing, available to such Swing Line Bank
or such Issuing Bank, as the case may be, and such other Lenders for repayment
of such Swing Line Advances and Letter of Credit Advances under the U.S. RC
Facility and in the case of any Canadian RC Borrowing, the Appropriate
Administrative Agent shall first make a portion of such funds equal to the
aggregate principal amount of any Letter of Credit Advances then outstanding
under the Canadian RC Facility and owing to any Issuing Bank and to any other
Lender on the date of such Borrowing, available to such Issuing Bank and such
other Lenders for repayment of such Letter of Credit Advances.
(b) Each Swing Line Borrowing shall be made on notice, given not
later than 1:00 P.M. (New York City time) on the date of the proposed Swing
Line Borrowing, by either U.S. Borrower to any Swing Line Bank and the U.S.
Administrative Agent. Each such notice of a Swing Line Borrowing (a "Notice of
Swing Line Borrowing") shall be by telephone, promptly confirmed in writing, or
telex or telecopier, specifying therein the requested (i) date of such
Borrowing, (ii) amount of such Borrowing and (iii) maturity of such Borrowing
(which maturity shall be no later than the 14th day after the requested date of
such Borrowing). If, in its sole discretion, it elects to make the requested
Swing Line Advance, such Swing Line Bank will make the amount thereof available
to the U.S. Administrative Agent at the Appropriate Administrative Agent's
Account, in same day funds. After the U.S. Administrative Agent's receipt of
such funds and upon fulfillment of the applicable conditions set forth in
Article III, the U.S. Administrative Agent will make such funds available to
such U.S. Borrower by crediting the relevant Borrower's Account. Upon written
demand by any Swing Line Bank with any outstanding Swing Line Advance, with a
copy of such demand to the U.S. Administrative Agent, each other U.S. RC Lender
shall purchase from such Swing Line Bank, and such Swing Line Bank shall sell
and assign to each such other U.S. RC Lender, such other U.S. RC Lender's Pro
Rata Share of such outstanding Swing Line Advance as of the date of such
demand, by making available for the account of its Applicable Lending Office to
the U.S. Administrative Agent for the account of such Swing Line Bank, by
deposit to the Appropriate Administrative Agent's Account, in same day funds,
an amount equal to the portion of the outstanding principal amount of such
Swing Line Advance to be purchased by such Lender. Each U.S. Borrower hereby
agrees to each such sale and assignment. Each U.S. RC Lender agrees to
purchase its Pro Rata Share of an outstanding Swing Line Advance on (i) the
Business Day on which demand therefor is made by any Swing Line Bank that made
such Advance, provided that notice of such demand is given not later than 12:00
noon (New York City time) on such Business Day or (ii) the first Business Day
next succeeding such demand if notice of such demand is given after such time.
Upon any such assignment by a Swing Line Bank to any other U.S. RC Lender of a
portion of a Swing Line Advance, such Swing Line Bank represents and warrants
to such other Lender that such Swing Line Bank is the legal and beneficial
owner of such interest being assigned by it, but makes no other representation
or warranty and assumes no responsibility with respect to such Swing Line
Advance, the Loan Documents or any Loan Party. If and to the extent that any
U.S. RC Lender shall not have so made its Pro Rata Share of such Swing Line
Advance available to the U.S. Administrative Agent, such Lender agrees to pay
to the U.S. Administrative Agent forthwith on demand, but without duplication,
such amount, together with interest thereon, for each day from the date of
demand by such Swing Line Bank until the date such amount is paid to the U.S.
Administrative Agent, at the Federal Funds Rate. If such U.S. RC Lender shall
pay to the U.S. Administrative Agent such amount for the account of such Swing
Line Bank on any Business Day, such amount so paid in respect of principal
shall constitute a Swing Line Advance made by such Lender on such Business Day
for purposes of this Agreement, and the outstanding principal amount of the
Swing Line Advance made by such Swing Line Bank shall be reduced by such amount
on such Business Day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrowers may not select Eurodollar Rate Advances for
any Borrowing if the aggregate amount of such Borrowing is less than $5,000,000
or if the obligation of the Appropriate Lenders to make Eurodollar Rate
Advances shall then be suspended pursuant to Section 2.09, (ii) the U.S. RC
Advances may not be outstanding as part of more than 25 separate Eurodollar
Rate Borrowings, (iii) the Canadian RC Advances may not be outstanding as part
of more than 10 separate Eurodollar Rate Borrowings and (iv) the Term Advances
may not be outstanding as part of more than 10 separate Eurodollar Rate
Borrowings.
(d) Each Notice of Borrowing and Notice of Swing Line Borrowing
shall be irrevocable and binding on the Borrower giving such notice. In the
case of any Borrowing that the related Notice of Borrowing specifies is to be
comprised of Eurodollar Rate Advances, the Borrower giving such notice shall
indemnify each Appropriate Lender against any loss (excluding loss of
anticipated profits), cost or expense incurred by such Lender as a result of
any failure to fulfill on or before the date specified in such Notice of
Borrowing for such Borrowing the applicable conditions set forth in Article
III, including, without limitation, any loss (excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the Advance to be
made by such Lender as part of such Borrowing when such Advance, as a result of
such failure, is not made on such date.
(e) Unless the Appropriate Administrative Agent shall have received
notice from an Appropriate Lender prior to the date of any Regular Borrowing
that such Lender will not make available to such Administrative Agent such
Lender's ratable portion of such Borrowing, such Administrative Agent may
assume that such Lender has made such portion available to such Administrative
Agent on the date of such Borrowing in accordance with subsection (a) of this
Section 2.02 and such Administrative Agent may, in reliance upon such
assumption, make available to such Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have so made such
ratable portion available to such Administrative Agent, such Lender and such
Borrower severally agree to repay or pay to such Administrative Agent forthwith
on demand such corresponding amount and to pay interest thereon, for each day
from the date such amount is made available to such Borrower until the date
such amount is repaid or paid to such Administrative Agent, at (i) in the case
of the Borrowers, the interest rate applicable at such time under Section 2.06
to Advances comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Rate. If such Lender shall pay to such Administrative Agent such
corresponding amount, such amount so paid shall constitute such Lender's
Advance as part of such Borrowing for purposes of this Agreement.
(f) The failure of any Lender to make the Advance to be made by it
as part of any Regular Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on the date of any
Borrowing.
Section 2.03. Repayment of Regular Advances. (a) U.S. RC Advances.
Each U.S. Borrower shall repay to the U.S. Administrative Agent for the ratable
account of the U.S. RC Lenders the aggregate outstanding principal amount of
the U.S. RC Advances made to such U.S. Borrower on the Termination Date.
(b) Canadian RC Advances. Each Canadian Borrower shall repay to the
Canadian Administrative Agent for the ratable account of the Canadian RC
Lenders the aggregate outstanding principal amount of the Canadian RC Advances
made to such Canadian Borrower on the Termination Date.
(c) Letter of Credit Advances. Each Borrower shall repay to the
Appropriate Administrative Agent for the account of each Issuing Bank and each
other Lender that has made a Letter of Credit Advance to or for the account of
such Borrower the outstanding principal amount of each Letter of Credit Advance
made to or for the account of such Borrower by each of them on demand and, in
any event, on the Termination Date.
(d) Swing Line Advances. Each U.S. Borrower shall repay to the U.S.
Administrative Agent for the account of each Swing Line Bank and each other
U.S. RC Lender that has made a Swing Line Advance the outstanding principal
amount of each Swing Line Advance made by each of them and owing by such U.S.
Borrower on the earlier of the maturity date specified in the applicable Notice
of Swing Line Borrowing (which maturity shall be no later than the fourteenth
day after the requested date of such Borrowing) and the Termination Date.
(e) Term Advances. The Term Borrower shall repay to the Canadian
Administrative Agent for the ratable account of the Term Lenders the aggregate
outstanding principal amount of the Term Advances on the following dates in the
amounts indicated (which amounts shall be reduced as a result of the
application of optional prepayments in accordance with the order of priority
set forth in Section 2.05(a)(iii)):
Date Amount
March 1, 1997 $3,125,000
March 1, 1998 $3,125,000
March 1, 1999 $3,125,000
March 1, 2000 $3,125,000
Termination Date
for Term Advances $37,500,000
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term Advances outstanding on such date.
Section 2.04. Reduction of the Commitments. (a) Optional. (i) The
U.S. Borrowers may, upon at least two Business Days' notice to the U.S.
Administrative Agent, terminate in whole or reduce in part the Unused U.S. RC
Commitments or the Letter of Credit Facility under which it may request Letters
of Credit, (ii) the Canadian Borrowers may, upon at least two Business Days'
notice to the Canadian Administrative Agent, terminate in whole or reduce in
part the Unused Canadian RC Commitments or the Letter of Credit Facility under
which they may request Letters of Credit and (iii) the Term Borrower may, upon
at least two Business Days' notice to the U.S. Administrative Agent, terminate
in whole or reduce in part the unused portion of the Term Commitments;
provided, however, that each partial reduction of a Facility (i) shall be in an
aggregate amount of $5,000,000 with respect to the U.S. RC Commitments or
$2,500,000 with respect to the Canadian RC Commitments or, in each case, an
integral multiple of $1,000,000 in excess thereof and (ii) shall be made
ratably among the Appropriate Lenders in accordance with Commitments with
respect to such Facility and provided further that the aggregate amount of the
U.S. RC Commitments of the Lenders shall not be reduced to an amount that is
less than the aggregate principal amount of the Competitive Bid Advances then
outstanding.
(b) Mandatory. (i) On the date of the Term Borrowing, after giving
effect to such Term Borrowing, and from time to time thereafter upon each
repayment or prepayment of the Term Advances, the aggregate Term Commitments of
the Term Lenders shall be automatically and permanently reduced, on a pro rata
basis, by an amount equal to the amount by which the aggregate Term Commitments
immediately prior to such reduction exceed the aggregate unpaid principal
amount of the Term Advances then outstanding.
(ii) The Letter of Credit Facility under which the U.S. Borrowers may
request Letters of Credit and the Swing Line Facility shall be permanently
reduced from time to time on the date of each reduction in the U.S. RC Facility
by the amounts, if any, by which the amounts of such Letter of Credit Facility
and the Swing Line Facility, respectively, exceed the U.S. RC Facility after
giving effect to such reduction of the U.S. RC Facility.
(iii) The Letter of Credit Facility under which the Canadian
Borrowers may request Letters of Credit shall be permanently reduced from time
to time on the date of each reduction in the Canadian RC Facility by the
amount, if any, by which the amount of such Letter of Credit Facility exceeds
the Canadian RC Facility after giving effect to such reduction of the Canadian
RC Facility.
Section 2.05. Prepayments of Regular Advances. (a) Optional. Each
Borrower may, upon at least two Business Days' notice, in the case of the
prepayment of Eurodollar Rate Advances, and upon same day notice, in the case
of the prepayment of Base Rate Advances (but in any event prior to such
prepayment), to the Appropriate Administrative Agent stating the proposed date
and aggregate principal amount of the prepayment, and if such notice is given
such Borrower shall, prepay the outstanding aggregate principal amount of the
Regular Advances made to such Borrower comprising part of the same Borrowing in
whole or ratably in part; provided, however, that (i) each partial prepayment
shall be in an aggregate principal amount of $1,000,000 or an integral multiple
of $1,000,000 in excess thereof or such lesser amount as may then be
outstanding, (ii) if any prepayment of a Eurodollar Rate Advance is made on a
date other than the last day of an Interest Period for such Advance, such
Borrower shall also pay any amounts owing pursuant to Section 9.04(c) and (iii)
in the case of the prepayment of Term Advances, such prepayments shall be
applied in order of scheduled maturity.
(b) Mandatory. (i) The Canadian Borrowers shall, on each Business
Day, prepay an aggregate principal amount of the Canadian RC Advances
comprising part of the same Borrowings and the Letter of Credit Advances owing
under the Canadian RC Facility equal to the amount by which (A) the sum of the
aggregate principal amount of (x) the Canadian RC Advances and (y) the Letter
of Credit Advances owing under the Canadian RC Facility then outstanding plus
the aggregate Available Amount of all Letters of Credit then outstanding under
the Canadian RC Facility exceeds (B) the Canadian RC Facility on such Business
Day.
(ii) The U.S. Borrowers shall, on each Business Day, prepay an
aggregate principal amount of the U.S. RC Advances comprising part of the same
Borrowings, the Letter of Credit Advances owing by it and the Swing Line
Advances owing by it equal to the amount by which (A) the sum of the aggregate
principal amount of (x) the U.S. RC Advances, (y) the Letter of Credit Advances
owing by it and (z) the Swing Line Advances owing by it then outstanding plus
the aggregate Available Amount of all Letters of Credit then outstanding under
the U.S. RC Facility exceeds (B) the U.S. RC Facility on such Business Day.
(iii) All prepayments under this subsection (b) shall be made
without penalty or premium; and all accrued interest to the date of such
prepayment on the principal amount prepaid shall be made on the last day of the
month in which such prepayment is made.
(iv) So long as no Default has occurred and is continuing, to the
extent that the provisions of Section 2.05(b)(i) would otherwise require the
application of any prepayment to Eurodollar Rate Advances on a date that is not
the last day of the then existing Interest Period therefor, each Borrower shall
have the right, in lieu of making such prepayment on such date, to deposit the
amount of such prepayment in the relevant Prepayment Account for disbursement
and application in accordance with the foregoing provisions of this Section
2.05 on the last day of the then existing Interest Period for such Eurodollar
Rate Advances.
Section 2.06. Interest on Regular Advances. (a) Ordinary Interest.
Each Borrower shall pay interest on the unpaid principal amount of each Advance
made to such Borrower and owing to each Appropriate Lender from the date of
such Advance until such principal amount shall be paid in full, at the
following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the sum of (A)
the Base Rate in effect from time to time plus (B) the Applicable Margin
in effect from time to time, payable in arrears monthly on the last day of
each month during such periods and on the date such Base Rate Advance
shall be paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance
is a Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the sum of (A) the Eurodollar
Rate for such Interest Period for such Advance plus (B) the Applicable
Margin in effect from time to time, payable in arrears on the last day of
such Interest Period.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default, each Borrower shall pay interest on (i) to
the fullest extent permitted by law, the unpaid principal amount of each
Regular Advance made to such Borrower and owing to each Lender, payable in
arrears on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate
per annum equal at all times to 2% per annum above the rate per annum required
to be paid on such Advance pursuant to clause (a)(i) or (a)(ii) above and
(ii) to the fullest extent permitted by law, the amount of any interest, fee or
other amount payable hereunder which is not paid when due, from the date such
amount shall be due until such amount shall be paid in full, payable in arrears
on the date such amount shall be paid in full and on demand, at a rate per
annum equal at all times to 2% per annum above the rate per annum required to
be paid on Base Rate Advances pursuant to clause (a)(i) above.
(c) Notice of Interest Rate. Promptly after receipt of a Notice of
Borrowing pursuant to Section 2.02(a), the U.S. Administrative Agent shall give
notice to the relevant Borrower and each Appropriate Lender of the applicable
interest rate determined by the U.S. Administrative Agent for purposes of
clause (a)(i) or (a)(ii), and the applicable rate, if any, furnished by each
Reference Bank for the purpose of determining the applicable interest rate
under clause (a)(ii).
(d) Interest Rate Determination. (i) Each Reference Bank agrees to
furnish to the U.S. Administrative Agent timely information for the purpose of
determining each Eurodollar Rate and each LIBO Rate. If any one or more of the
Reference Banks shall not furnish such timely information to the U.S.
Administrative Agent for the purpose of determining any such interest rate, the
Administrative Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks.
(ii) If fewer than two Reference Banks are able to furnish timely
information to the U.S. Administrative Agent for determining the Eurodollar
Rate or LIBO Rate for any Eurodollar Rate Advances or Competitive Bid Advances,
as the case may be, the U.S. Administrative Agent shall apply an interest rate
per annum equal to the rate per annum obtained by dividing (a) the rate per
annum at which deposits in U.S. dollars are offered by the principal office of
Citibank (or, if such rate is unavailable, by NationsBank or any replacement
Reference Bank therefor) in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before the first
day of such Interest Period in an amount of $1,000,000 and for a period equal
to such Interest Period by (b) a percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage for such Interest Period.
(iii) If the U.S. Administrative Agent is not able to furnish the
Eurodollar Rate as set forth in (ii) above,
(A) the U.S. Administrative Agent shall forthwith notify the
applicable Borrower and the Lenders that the interest rate cannot be
determined for such Eurodollar Rate Advances,
(B) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, convert into a Base Rate Advance
(or if such Advance is then a Base Rate Advance, will continue as a Base
Rate Advance), and
(C) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the U.S.
Administrative Agent shall notify the Borrowers and the Lenders that the
circumstances causing such suspension no longer exist.
Section 2.07. Fees. (a) Commitment Fee. Global shall pay to the
Appropriate Administrative Agent for the account of each Lender (other than the
Designated Bidders) a commitment fee, from (i) the earlier of (A) the Funding
Date and (B) March 4, 1996 in the case of each Initial Lender, (ii) from the
effective date specified in the Assignment and Acceptance pursuant to which it
became a Lender in the case of each other Lender until the date on which
financial statements are delivered or required to be delivered pursuant to
Section 5.03(b) at .1500% per annum, and (iii) thereafter until the Termination
Date, at a rate per annum (the "Unused Commitment Fee Rate") determined by
reference to the Leverage Ratio in effect from time to time as set forth below,
in each case, payable on the average daily Unused RC Commitments of such Lender
(excluding, for the purposes of this Section 2.07(a), such Lender's Competitive
Bid Advances) and such Lender's Pro Rata Share of the average daily outstanding
Swing Line Advances during such quarter.
Level Leverage Ratio Unused
Commitment Fee
Rate
Level 1 Less than or equal to 0.35 0.1250%
Level 2 Greater than 0.35 and less 0.1500%
than or equal
to 0.40
Level 3 Greater than 0.40 and less 0.1875%
than or equal
to 0.45
Level 4 Greater than 0.45 and less 0.2500%
than or equal
to 0.50
Level 5 Greater than 0.50 0.2500%
provided, however, that (A) no change in the Unused Commitment Fee Rate shall
be effective until two Business Days after the date on which the U.S.
Administrative Agent receives financial statements pursuant to Section 5.03(b)
or 5.03(c) and a certificate of the treasurer or chief financial officer of
Global pursuant to Section 5.03(b)(ii) or 5.03(c)(ii) demonstrating such ratio
and (B) if Global has not submitted to the U.S. Administrative Agent the
information described in clause (A) of this proviso as and when required under
Section 5.03(b) or 5.03(c), as the case may be, the Unused Commitment Fee Rate
shall be at Level 5 until the Business Day on which such information is
received by such Administrative Agent at which time the Unused Commitment Fee
Rate shall be based on such information. Such commitment fee shall in all
cases be payable in arrears quarterly on the last Business Day of each March,
June, September and December, commencing on March 31, 1996 and on the
Termination Date; provided, however, that (i) any commitment fee accrued with
respect to any of the Commitments of a Defaulting Lender during the period
prior to the time such Lender became a Defaulting Lender and unpaid at such
time shall not be payable by the Borrowers so long as such Lender shall be a
Defaulting Lender except to the extent that such commitment fee shall otherwise
have been due and payable by the Borrowers prior to such time, (ii) no
commitment fee shall accrue on any of the Commitments of a Defaulting Lender so
long as such Lender shall be a Defaulting Lender and (iii) all accrued and
unpaid commitment fees with respect to any Commitment reduced pursuant to
Section 2.04 shall be due and payable on the date of such reduction.
(b) Administrative Agent's Fees. Global shall pay to each
Administrative Agent for its own account such fees as may from time to time be
agreed between Global and such Administrative Agent.
Section 2.08. Conversion of Regular Advances. (a) Optional. Any
Borrower may on any Business Day, upon notice given to the Appropriate
Administrative Agent not later than 1:00 P.M. (New York City time) on the third
Business Day prior to the date of the proposed Conversion and subject to the
provisions of Section 2.09, Convert all or any portion of the Regular Advances
of one Type made to such Borrower comprising the same Borrowing into Regular
Advances of the other Type; provided, however, that (i) if any Conversion of
Eurodollar Rate Advances into Base Rate Advances shall be made on a date other
than the last day of an Interest Period for such Eurodollar Rate Advances, such
Borrower shall also pay any amounts owing pursuant to Section 9.04(c), (ii) any
Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in an
amount not less than the minimum amount specified in Section 2.02(c), (iii) no
Conversion of any Regular Advances shall result in more separate Eurodollar
Rate Borrowings than permitted under Section 2.02(c) and (iv) each Conversion
of Advances comprising part of the same Borrowing under any Facility shall be
made ratably among the Appropriate Lenders in accordance with their Commitments
under such Facility. Each such notice of Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii) the
Advances to be Converted and (iii) if such Conversion is into Eurodollar Rate
Advances, the duration of the initial Interest Period for such Advances. Each
notice of Conversion shall be irrevocable and binding on the Borrower giving
such notice.
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $5,000,000 with
respect to the U.S. RC Advances or $2,500,000 with respect to the Canadian RC
Advances, such Advances shall automatically Convert into Base Rate Advances.
(ii) If any Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances made to it in accordance with
the provisions contained in the definition of "Interest Period" in Section
1.01, the Appropriate Administrative Agent will forthwith so notify such
Borrower and the Appropriate Lenders, whereupon each such Eurodollar Rate
Advance will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance.
Section 2.09. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force
of law), there shall be any increase in the cost to any Lender of agreeing to
make or of making, funding or maintaining Eurodollar Rate Advances or LIBO Rate
Advances (excluding for purposes of this Section 2.09 any such increased costs
resulting from Taxes or Other Taxes (as to which Section 2.11 shall govern)) or
of agreeing to issue or of issuing or maintaining Letters of Credit or of
agreeing to make or of making or maintaining Letter of Credit Advances, then
the Borrowers shall from time to time, upon demand by such Lender (with a copy
of such demand to the Appropriate Administrative Agent), pay to the Appropriate
Administrative Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost; provided,
however, that before making any such demand, each Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office if
the making of such a designation would avoid the need for, or reduce the amount
of, such increased cost and would not, in the sole judgment of such Lender, be
otherwise disadvantageous to such Lender. A certificate as to the amount of
such increased cost, submitted to the Borrowers by such Lender, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender and that the amount of
such capital is increased by or based upon the existence of such Lender's
commitment to lend hereunder and other commitments of such type or the issuance
or maintenance of the Letters of Credit (or similar contingent obligations),
then, upon demand by such Lender (with a copy of such demand to the Appropriate
Administrative Agent), the Borrowers shall pay to such Administrative Agent for
the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's
commitment to lend hereunder or to the issuance or maintenance of any Letters
of Credit. A certificate as to such amounts submitted to the Borrowers by such
Lender shall be conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances or LIBO Rate
Advances, the Required Lenders notify the Appropriate Administrative Agent that
the Eurodollar Rate or LIBO Rate for any Interest Period for such Advances will
not adequately reflect the cost to such Lenders of making, funding or
maintaining their Eurodollar Rate Advances or LIBO Rate Advances for such
Interest Period, such Administrative Agent shall forthwith so notify the
Borrowers and the Lenders, whereupon (i) with respect to Eurodollar Rate
Advances, each such Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate
Advance, and (ii) the obligation of the Lenders to make Eurodollar Rate
Advances or LIBO Rate Advances, or to Convert Base Rate Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrowers that such Lenders have determined that the
circumstances causing such suspension no longer exist; provided, however, that
before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Eurodollar Lending Office if the making of such a
designation would allow such Lender or its Eurodollar Lending Office to
continue to perform its obligations to make Eurodollar Rate Advances or to
continue to fund or maintain Eurodollar Rate Advances and would not, in the
sole judgment of such Lender, be otherwise disadvantageous to such Lender.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or LIBO Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances hereunder, then, on notice thereof and demand therefor by such
Lender to the Borrowers through the Appropriate Administrative Agent, (i) each
Eurodollar Rate Advance or LIBO Rate Advance, as the case may be, will
automatically, upon such demand, Convert into a Base Rate Advance or an Advance
that bears interest at the rate set forth in Section 2.06(a)(i), as the case
may be, and (ii) the obligation of the Lenders to make Eurodollar Rate Advances
or LIBO Rate Advances or to Convert Regular Advances into Eurodollar Rate
Advances shall be suspended until such Administrative Agent shall notify the
Borrowers that such Lender has determined that the circumstances causing such
suspension no longer exist.
(e) If any Default has occurred and is continuing, (i) each
Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance and (ii)
the obligation of the Lenders to make, or to Convert Advances into, Eurodollar
Rate Advances shall be suspended.
Section 2.10. Payments and Computations. (a) Each Borrower shall
make each payment hereunder and under the Notes not later than 1:00 P.M. (New
York City time) on the day when due in U.S. dollars to the Appropriate
Administrative Agent at the Appropriate Administrative Agent's Account in same
day funds. The Administrative Agent will promptly thereafter cause like funds
to be distributed (i) if such payment by such Borrower is in respect of
principal, interest, commitment fees or any other Obligation then payable
hereunder and under the Notes to more than one Lender, to such Lenders for the
account of their respective Applicable Lending Offices ratably in accordance
with the amounts of such respective Obligations then payable to such Lenders
and (ii) if such payment by such Borrower is in respect of any Obligation then
payable hereunder to one Lender, to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 9.07(c), from and after the effective date of such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) Each Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under the
Note held by such Lender, to charge from time to time against any or all of
such Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall be
made by the Appropriate Administrative Agent on the basis of a year of 365 or
366 days, as the case may be, and all computations of interest based on the
Eurodollar Rate, the LIBO Rate or the Federal Funds Rate and of all fees and
Letter of Credit commissions shall be made by the Administrative Agent on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest, fees or commissions are payable. Each determination
by either Administrative Agent of an interest rate, fee or commission hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee,
as the case may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances or LIBO Rate
Advances to be made in the next following calendar month, such payment shall be
made on the next preceding Business Day.
(e) Unless the Appropriate Administrative Agent shall have received
notice from a Borrower prior to the date on which any payment is due by such
Borrower to any Lender hereunder that such Borrower will not make such payment
in full, such Administrative Agent may assume that such Borrower has made such
payment in full to such Administrative Agent on such date and such
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each such Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent any Borrower shall not have so made
such payment in full to such Administrative Agent, each such Lender shall repay
to such Administrative Agent forthwith on demand such amount distributed to
such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to such Administrative Agent, at the Federal Funds Rate.
Section 2.11. Taxes. (a) Any and all payments by or on behalf of
any Borrower hereunder or under the Notes shall be made, in accordance with
Section 2.10, free and clear of and without deduction for any and all present
or future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and
each Agent, overall net income taxes that are imposed by the United States and
franchise taxes and overall net income taxes that are imposed on such Lender or
such Agent by the state or foreign jurisdiction under the laws of which such
Lender or such Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, franchise taxes and
overall net income taxes that are imposed on such Lender by the state or
foreign jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If any Person shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note to any Lender or
any Agent, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.11) such Lender or such Agent (as
the case may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) such Person shall make such deductions and
(iii) such Person shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Borrowers jointly and severally agree to pay
any present or future stamp, documentary, excise, property or similar taxes,
charges or levies that arise from any payment made or receipt hereunder or
under the Notes or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or the Notes (hereinafter referred to
as "Other Taxes").
(c) The Borrowers shall jointly and severally indemnify each Lender
and each Agent for the full amount of Taxes and Other Taxes, and for the full
amount of taxes imposed by any jurisdiction on amounts payable under this
Section 2.11, imposed on or paid by such Lender or Agent (as the case may be)
and any liability (including penalties, additions to tax, interest and
expenses) arising therefrom or with respect thereto. This indemnification
shall be made within 30 days from the date such Lender or such Agent (as the
case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrowers shall furnish to the Appropriate Administrative Agent, at its address
referred to in Section 9.02, the original receipt of payment thereof or a
certified copy of such receipt. In the case of any payment hereunder or under
the Notes by or on behalf of the Borrowers through (i) an account or branch
outside the United States, in the case of a U.S. Borrower, and (ii) an account
or branch outside Canada, in the case of a Canadian Borrower, or by a payor
that is not a United States Person or a Person Resident in Canada, as the case
may be, if the Borrowers determine that no Taxes are payable in respect
thereof, the Borrowers shall furnish, or shall cause such payor to furnish, to
the Appropriate Administrative Agent, at such address, an opinion of counsel
acceptable to the Appropriate Administrative Agent stating that such payment is
exempt from Taxes. For purposes of this Agreement, the terms "United States"
and "United States Person" shall have the meanings specified in Section 7701 of
the Internal Revenue Code and the terms "Canada" and "Resident in Canada" shall
have the meanings ascribed thereto for purposes of the Income Tax Act (Canada).
(e) With respect to the U.S. Borrowers, each Lender organized under
the laws of a jurisdiction outside the United States shall, on or prior to the
date of its execution and delivery of this Agreement in the case of each
Initial Lender, and on the date of the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other Lender, and from time to
time thereafter if requested by the U.S. Borrowers or the U.S. Administrative
Agent (but only so long thereafter as such Lender remains lawfully able to do
so), provide the U.S. Administrative Agent and the U.S. Borrowers with Internal
Revenue Service form 1001 or 4224, as appropriate, or any successor form
prescribed by the Internal Revenue Service, certifying that such Lender is
entitled to benefits under an income tax treaty to which the United States is a
party that reduces the rate of withholding tax on payments under this Agreement
or the Notes or certifying that the income receivable pursuant to this
Agreement or the Notes is effectively connected with the conduct of a trade or
business in the United States. If the form provided by a Lender at the time
such Lender first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender provides
the appropriate form certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from
Taxes for periods governed by such form; provided, however, that, if at the
date of the Assignment and Acceptance pursuant to which a Lender assignee
becomes a party to this Agreement, the Lender assignor was entitled to payments
under subsection (a) in respect of United States withholding tax with respect
to interest paid at such date, then, to such extent, the term Taxes shall
include (in addition to withholding taxes that may be imposed in the future or
other amounts otherwise includable in Taxes) United States withholding tax, if
any, applicable with respect to the Lender assignee on such date. If any form
or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001
or 4224, that the Lender reasonably considers to be confidential, the Lender
shall give notice thereof to the Borrowers and shall not be obligated to
include in such form or document such confidential information.
(f) With respect to a Canadian Borrower, if at the time a Lender
first becomes a party to this Agreement, payments hereunder or under the Notes
are subject to Canadian interest withholding tax at a rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Lender becomes subject to withholding tax at a lesser rate,
whereupon withholding tax at such lesser rate only shall be considered excluded
from Taxes for periods during which such lower rate applies; provided, however,
that, if at the date of the Assignment and Acceptance pursuant to which a
Lender becomes a party to this Agreement, the Lender assignor was entitled to
payments under Section 2.11(a) in respect of Canadian withholding tax with
respect to interest paid at such date, then, to such extent, the term "Taxes"
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) Canadian withholding
tax, if any, applicable with respect to the Lender assignee on such date.
(g) For any period with respect to which a Lender has failed to
provide the Borrowers with the appropriate form described in subsection (e)
(other than if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form
otherwise is not required under subsection (e)), such Lender shall not be
entitled to indemnification under subsection (a) or (c) with respect to Taxes
imposed by the United States; provided, however, that should a Lender become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrowers shall take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes.
(h) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in this Section 2.11 shall survive the payment in full of principal and
interest hereunder and under the Notes.
(i) Any Lender claiming any additional amounts payable pursuant to
this Section 2.11 agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the sole judgment of such Lender,
be otherwise disadvantageous to such Lender.
Section 2.12. Sharing of Payments, Etc. If any Lender shall obtain
at any time any payment (whether voluntary, involuntary, through the exercise
of any right of setoff, or otherwise) (a) on account of Obligations due and
payable to such Lender hereunder and under the Notes at such time in excess of
its ratable share (according to the proportion of (i) the amount of such
Obligations due and payable to such Lender at such time to (ii) the aggregate
amount of the Obligations due and payable to all Lenders hereunder and under
the Notes at such time) of payments on account of the Obligations due and
payable to all Lenders hereunder and under the Notes at such time obtained by
all the Lenders at such time or (b) on account of Obligations owing (but not
due and payable) to such Lender hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations owing to such Lender at such time to (ii) the aggregate amount
of the Obligations owing (but not due and payable) to all Lenders hereunder and
under the Notes at such time) of payments on account of the Obligations owing
(but not due and payable) to all Lenders hereunder and under the Notes at such
time obtained by all the Lenders at such time, such Lender shall forthwith
purchase from the other Lenders such participations in the Obligations due and
payable or owing to them, as the case may be, as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each other
Lender shall be rescinded and such other Lender shall repay to the purchasing
Lender the purchase price to the extent of such other Lender's ratable share
(according to the proportion of (i) the purchase price paid to such Lender to
(ii) the aggregate purchase price paid to all Lenders) of such recovery
together with an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such other Lender's required repayment to
(ii) the total amount so recovered from the purchasing Lender) of any interest
or other amount paid or payable by the purchasing Lender in respect of the
total amount so recovered. Each Borrower agrees that any Lender so purchasing
a participation from another Lender pursuant to this Section 2.12 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of such Borrower in the amount of such
participation.
Section 2.13. Letters of Credit. (a) The Letter of Credit
Facility. Each Issuing Bank severally agrees, on the terms and conditions
hereinafter set forth, to issue letters of credit (together with the Existing
Letters of Credit referred to in Section 2.13(f), the "Letters of Credit") for
the account of either U.S. Borrower, in the case of Letters of Credit to be
issued under the U.S. RC Facility, and any Canadian Borrower, in the case of
Letters of Credit to be issued under the Canadian RC Facility, from time to
time on any Business Day during the period from the Funding Date until 30 days
before the Termination Date (i) in an aggregate Available Amount for all
Letters of Credit issued by such Issuing Bank not to exceed at any time such
Issuing Bank's Letter of Credit Commitment under the Facility which the Notice
of Issuance specifies as the Facility under which such Letter of Credit is to
be issued, (ii) in an Available Amount for each such Letter of Credit issued
under the U.S. RC Facility not to exceed the lesser of (x) the Letter of Credit
Facility at such time and (y) the Unused U.S. RC Commitments of the U.S. RC
Lenders at such time and (iii) in an Available Amount for each such Letter of
Credit issued under the Canadian RC Facility not to exceed the lesser of (x)
the Letter of Credit Facility at such time and (y) the Unused Canadian RC
Commitments of the Canadian RC Lenders at such time. No Letter of Credit shall
have an expiration date (including all rights of such Borrower or the
beneficiary to require renewal) later than the earlier of 20 days before the
Termination Date and one year after the date of issuance thereof, but may by
its terms be renewable annually either automatically unless notice is given by
the Issuing Bank of non-renewal or upon notice (a "Notice of Renewal") given to
the Issuing Bank that issued such Letter of Credit (which notice such Issuing
Bank shall promptly supply to the U.S. Administrative Agent) on or prior to any
date for notice of renewal set forth in such Letter of Credit but in any event
at least three Business Days prior to the date of the proposed renewal of such
Letter of Credit and upon fulfillment of the applicable conditions set forth in
Article III unless such Issuing Bank has notified the relevant Borrower (with a
copy to the Appropriate Administrative Agent) on or prior to the date for
notice of termination set forth in such Letter of Credit but in any event at
least 30 Business Days prior to the date of automatic renewal of its election
not to renew such Letter of Credit (a "Notice of Termination"); provided,
however, that in the case of any Existing Letters of Credit, such Existing
Letters of Credit may be renewed in accordance with their respective terms and
the applicable conditions set forth in Article III shall be deemed to have been
fulfilled unless the Issuing Bank thereof shall have received written notice to
the contrary from the applicable Borrower or the U.S. Administrative Agent at
least 10 days prior to the date of renewal; provided further that the terms of
each Letter of Credit that is automatically renewable annually shall
(x) require the Issuing Bank that issued such Letter of Credit to give the
beneficiary named in such Letter of Credit notice of any Notice of Termination,
(y) permit such beneficiary, upon receipt of such notice, to draw under such
Letter of Credit prior to the date such Letter of Credit otherwise would have
been automatically renewed and (z) not permit the expiration date (after giving
effect to any renewal) of such Letter of Credit in any event to be extended to
a date later than 20 days before the Termination Date. If either a Notice of
Renewal is not given by the relevant Borrower or a Notice of Termination is
given by the relevant Issuing Bank pursuant to the immediately preceding
sentence, such Letter of Credit shall expire on the date on which it otherwise
would have been automatically renewed; provided, however, that even in the
absence of receipt of a Notice of Renewal the relevant Issuing Bank may in its
discretion, unless instructed to the contrary by the Appropriate Administrative
Agent or the Borrower giving such notice, deem that a Notice of Renewal had
been timely delivered and in such case, a Notice of Renewal shall be deemed to
have been so delivered for all purposes under this Agreement. Within the
limits of the Letter of Credit Facility, and subject to the limits referred to
above, the Borrowers may request the issuance of Letters of Credit under this
Section 2.13(a), repay any Letter of Credit Advances resulting from drawings
thereunder pursuant to Section 2.13(c) and request the issuance of additional
Letters of Credit under this Section 2.13(a).
(b) Request for Issuance. (i) Each Letter of Credit shall be
issued upon notice, given not later than 12:00 noon (New York City time) on the
third Business Day prior to the date of the proposed issuance of such Letter of
Credit, by a U.S. Borrower or a Canadian Borrower giving notice to any Issuing
Bank, which shall give to the Appropriate Administrative Agent and each
Appropriate Lender prompt notice thereof by telex, telecopier or cable. Each
such notice of issuance of a Letter of Credit (a "Notice of Issuance") shall be
by telex, telecopier or cable, promptly confirmed in writing, specifying
therein the requested (A) date of such issuance (which shall be a Business
Day), (B) Available Amount of such Letter of Credit, (C) expiration date of
such Letter of Credit, (D) name and address of the beneficiary of such Letter
of Credit and (E) form of such Letter of Credit, and shall be accompanied by
such application and agreement for letter of credit (a "Letter of Credit
Agreement") as such Issuing Bank may specify to such Borrower for use in
connection with such requested Letter of Credit. If (x) the requested form of
such Letter of Credit is acceptable to such Issuing Bank in its sole discretion
and (y) it has not received notice of objection to such issuance from the
Required Lenders, such Issuing Bank will, upon fulfillment of the applicable
conditions set forth in Article III, make such Letter of Credit available to
such Borrower at its office referred to in Section 9.02 or as otherwise agreed
with such Borrower in connection with such issuance. Upon the issuance of any
Letter of Credit for the account of any Borrower, such Borrower shall, at such
time, be contingently liable for any Letter of Credit Advances resulting from a
draw under such Letter of Credit made or deemed made at any time by any Issuing
Bank or any other Lender in satisfaction of its obligations under Section
2.13(c). In the event and to the extent that the provisions of any Letter of
Credit Agreement shall conflict with this Agreement, the provisions of this
Agreement shall govern.
(ii) Each Issuing Bank shall furnish to Global and (A) to the
Administrative Agent on the first Business Day of each month a written report
summarizing issuance and expiration dates of Letters of Credit issued by such
Issuing Bank during the previous month and drawings during such month under all
Letters of Credit issued by such Issuing Bank, (B) to each Appropriate Lender
on the first Business Day of each month a written report summarizing issuance
and expiration dates of Letters of Credit issued by such Issuing Bank during
the preceding quarter and drawings during such month under all Letters of
Credit issued by such Issuing Bank and (C) to the Administrative Agent and each
Appropriate Lender on the first Business Day of each calendar quarter a written
report setting forth the average daily aggregate Available Amount during the
preceding calendar quarter of all Letters of Credit issued by such Issuing
Bank.
(c) Drawing and Reimbursement. The payment by any Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by such Issuing Bank of a Letter of Credit Advance,
which shall be a Base Rate Advance, in the amount of such draft. Upon written
demand by such Issuing Bank, with a copy of such demand to the Appropriate
Administrative Agent, each other U.S. RC Lender, in the case of a Letter of
Credit issued under the U.S. RC Facility, and each other Canadian RC Lender, in
the case of a Letter of Credit issued under the Canadian RC Facility, shall
purchase from such Issuing Bank, and such Issuing Bank shall sell and assign to
each such other Lender, such other Lender's Pro Rata Share of such outstanding
Letter of Credit Advance as of the date of such purchase, by making available
for the account of its Applicable Lending Office to such Administrative Agent
for the account of such Issuing Bank, by deposit to such Administrative Agent's
Account, in same day funds, an amount equal to the portion of the outstanding
principal amount of such Letter of Credit Advance to be purchased by such
Lender. Each Borrower hereby agrees to each such sale and assignment. Each
U.S. RC Lender or Canadian RC Lender agrees to purchase its Pro Rata Share of
any Letter of Credit Advance outstanding under the U.S. RC Facility or the
Canadian RC Facility, as the case may be, on (i) the Business Day on which
demand therefor is made by the Issuing Bank which made such Advance, provided
notice of such demand is given not later than 12:00 noon (New York City time)
on such Business Day or (ii) the first Business Day next succeeding such demand
if notice of such demand is given after such time. Upon any such assignment by
an Issuing Bank to any other Lender of a portion of a Letter of Credit Advance,
such Issuing Bank represents and warrants to such other Lender that such
Issuing Bank is the legal and beneficial owner of such interest being assigned
by it, but makes no other representation or warranty and assumes no
responsibility with respect to such Letter of Credit Advance, the Loan
Documents or any Loan Party. If and to the extent that any Lender shall not
have so made the amount of such Letter of Credit Advance available to such
Administrative Agent, such Lender agrees to pay to such Administrative Agent
forthwith on demand such amount together with interest thereon, for each day
from the date of demand by such Issuing Bank until the date such amount is paid
to such Administrative Agent, at the Federal Funds Rate. If such Lender shall
pay to such Administrative Agent such amount for the account of such Issuing
Bank on any Business Day, such amount so paid in respect of principal shall
constitute a Letter of Credit Advance made by such Lender on such Business Day
for purposes of this Agreement, and the outstanding principal amount of the
Letter of Credit Advance made by such Issuing Bank shall be reduced by such
amount on such Business Day.
(d) Obligations Absolute. The Obligations of each Borrower under
this Agreement, any Letter of Credit Agreement and any other agreement or
instrument relating to any Letter of Credit shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement, such Letter of Credit Agreement and such other agreement or
instrument under all circumstances, including, without limitation, the
following circumstances (it being understood that any such payment by such
Borrower is without prejudice to, and does not constitute a waiver of, any
rights such Borrower might have or might acquire as a result of any failure to
pay or any payment by any Issuing Bank of any draft or the reimbursement by
such Borrower thereof):
(i) any lack of validity or enforceability of this Agreement, any
Letter of Credit Agreement, any Letter of Credit or any other agreement or
instrument relating thereto (this Agreement and all of the other foregoing
being, collectively, the "L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of any Borrower in respect of
any L/C Related Document or any other amendment or waiver of or any
consent to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, setoff, defense or other right
that any Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), any Issuing Bank or any
other Person, whether in connection with the transactions contemplated by
the L/C Related Documents or any unrelated transaction;
(iv) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not comply with the terms
of such Letter of Credit, unless such draft or certificate is
substantially different from the applicable form specified by such Letter
of Credit;
(vi) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from the
Guaranty or any other guarantee, for all or any of the Obligations of any
Borrower in respect of the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute a defense available to,
or a discharge of, any Borrower, any Guarantor or any other guarantor.
(e) Compensation. (i) The U.S. Borrowers jointly and severally
agree to pay to the U.S. Administrative Agent for the account of each U.S. RC
Lender and the Canadian Borrowers jointly and severally agree to pay the
Canadian Administrative Agent for the account of each Canadian RC Lender a
commission on such Lender's Pro Rata Share of the average daily aggregate
Available Amount of all Letters of Credit outstanding from time to time under
the U.S. RC Facility or the Canadian RC Facility, as the case may be, at the
rate per annum determined by reference to the Leverage Ratio in effect from
time to time as set forth below, payable in arrears quarterly on the last
Business Day of each March, June, September and December commencing March 31,
1996 and on the Termination Date:
Level Leverage Ratio Letter of Credit
Fee Rate
Level 1 Less than or equal to 0.35 0.3750%
Level 2 Greater than 0.35 and less 0.4375%
than or equal to 0.40
Level 3 Greater than 0.40 and less 0.5000%
than or equal to 0.45
Level 4 Greater than 0.45 and less 0.6250%
than or equal to 0.50
Level 5 Greater than 0.50 0.7500%
(ii) Any Borrower giving a Notice of Issuance shall pay to each
Issuing Bank, for its own account, and any Borrower giving a Notice of Renewal
with respect to any Existing Letter of Credit shall pay to the Issuing Bank
renewing such Existing Letter of Credit, for its own account, such commissions,
issuance fees, transfer fees and other fees and charges in connection with the
issuance or administration of the requested Letter of Credit as such Borrower
and such Issuing Bank shall agree.
(f) Existing Letters of Credit. Effective as of the Funding Date,
(i) the "Letters of Credit" issued for the account of any Canadian Borrower,
Global Operations, Global or Vigoro by any Existing Issuing Bank pursuant to an
Existing Credit Agreement (such "Letters of Credit" as are outstanding
thereunder on the date hereof and set forth on Schedule 2.13(f) hereto being
the "Existing Letters of Credit"), will be deemed to be Letters of Credit
hereunder for the account of such Canadian Borrower, in the case of an Existing
Letter of Credit issued for the account of a Canadian Borrower, for the account
of Global Operations, in the case of an Existing Letter of Credit issued for
the account of Global Operations, and for the account of Global, in the case of
Existing Letters of Credit issued for the account of Global or Vigoro, under
the Canadian RC Facility or the U.S. RC Facility, as the case may be, (ii) the
Existing Letters of Credit will no longer be Obligations outstanding under such
Existing Credit Agreement and (iii) each such Existing Issuing Bank will be
deemed to have sold and transferred an undivided interest and participation in
respect of the Existing Letters of Credit issued by it and each Appropriate
Lender hereunder will be deemed to have purchased and received, without further
action on the part of any party, an undivided interest and participation in
such Existing Letters of Credit, based on such Lender's Pro Rata Share of the
Canadian RC Facility or the U.S. RC Facility, as the case may be. Global
hereby expressly assumes all Obligations in respect of each Existing Letter of
Credit issued for the account of Vigoro (including, without limitation, the
repayment, in accordance with Section 2.03(c), of any Letter of Credit Advances
resulting from a draw under any such Existing Letter of Credit).
Section 2.14. The Competitive Bid Advances. (a) Each U.S. RC
Lender severally agrees that the U.S. Borrowers may make Competitive Bid
Borrowings under this Section 2.14 from time to time on any Business Day during
the period from the Funding Date until the date occurring 30 days prior to the
Termination Date in the manner set forth below; provided that, following the
making of each Competitive Bid Borrowing, the aggregate amount of the U.S. RC
Advances then outstanding shall not exceed the aggregate amount of the U.S. RC
Commitments of the Lenders (computed without regard to any Competitive Bid
Reduction).
(i) The U.S. Borrowers may request a Competitive Bid Borrowing under
this Section 2.14 by delivering to the U.S. Administrative Agent, by
telecopier or telex, a notice of a Competitive Bid Borrowing (a "Notice of
Competitive Bid Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying therein the requested (v) date of such proposed
Competitive Bid Borrowing, (w) aggregate amount of such proposed
Competitive Bid Borrowing, (x) in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances, Interest Period, or in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances, maturity date
for repayment of each Fixed Rate Advance to be made as part of such
Competitive Bid Borrowing (which maturity date may not be earlier than the
date occurring 7 days after the date of such Competitive Bid Borrowing or
later than the earlier of (I) 180 days after the date of such Competitive
Bid Borrowing and (II) the Termination Date), (y) interest payment date or
dates relating thereto, and (z) other terms (if any) to be applicable to
such Competitive Bid Borrowing, not later than 1:00 P.M. (New York City
time) (A) at least one Business Day prior to the date of the proposed
Competitive Bid Borrowing, if the U.S. Borrower giving such notice shall
specify in the Notice of Competitive Bid Borrowing that the rates of
interest to be offered by the U.S. RC Lenders shall be fixed rates per
annum (the Advances comprising any such Competitive Bid Borrowing being
referred to herein as "Fixed Rate Advances") and (B) at least five
Business Days prior to the date of the proposed Competitive Bid Borrowing,
if such U.S. Borrower shall instead specify in the Notice of Competitive
Bid Borrowing that the rates of interest be offered by the U.S. RC Lenders
are to be based on the LIBO Rate (the Advances comprising such Competitive
Bid Borrowing being referred to herein as "LIBO Rate Advances"). Each
Notice of Competitive Bid Borrowing shall be irrevocable and binding on
such U.S. Borrower. The U.S. Administrative Agent shall in turn promptly
notify each U.S. RC Lender of each request for a Competitive Bid Borrowing
received by it from either U.S. Borrower by sending such Lender a copy of
the related Notice of Competitive Bid Borrowing.
(ii) Each U.S. RC Lender may, if, in its sole discretion, it elects
to do so, irrevocably offer to make one or more Competitive Bid Advances
to the U.S. Borrower requesting a Competitive Bid Borrowing as part of
such proposed Competitive Bid Borrowing at a rate or rates of interest
specified by such U.S. RC Lender in its sole discretion, by notifying the
U.S. Administrative Agent (which shall give prompt notice thereof to the
relevant U.S. Borrower), before 10:00 A.M. (New York City time) on the
date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances and before
10:00 A.M. (New York City time) three Business Days before the date of
such proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances, of the minimum amount and
maximum amount of each Competitive Bid Advance which such U.S. RC Lender
would be willing to make as part of such proposed Competitive Bid
Borrowing (which amounts may, subject to the proviso to the first sentence
of this Section 2.14(a), exceed such Lender's U.S. RC Commitment, if any),
the rate or rates of interest therefor and such Lender's Applicable
Lending Office with respect to such Competitive Bid Advance; provided that
if the U.S. Administrative Agent in its capacity as a U.S. RC Lender
shall, in its sole discretion, elect to make any such offer, it shall
notify such U.S. Borrower of such offer at least 30 minutes before the
time and on the date on which notice of such election is to be given to it
by the other U.S. RC Lenders and prior to reviewing any offer made by any
other Lender. If any U.S. RC Lender shall elect not to make such an
offer, such Lender shall so notify the U.S. Administrative Agent, before
10:00 A.M. (New York City time) on the date on which notice of such
election is to be given to the U.S. Administrative Agent by the other U.S.
RC Lenders, and such U.S. RC Lender shall not be obligated to, and shall
not, make any Competitive Bid Advance as part of such Competitive Bid
Borrowing; provided that the failure by any U.S. RC Lender to give such
notice shall not cause such U.S. RC Lender to be obligated to make any
Competitive Bid Advance as part of such proposed Competitive Bid
Borrowing.
(iii) Such U.S. Borrower shall, in turn, before 1:00 P.M.
(New York City time) on the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of Fixed
Rate Advances and before 1:00 P.M. (New York City time) three Business
Days before the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of LIBO Rate Advances,
either:
(x) cancel such Competitive Bid Borrowing by giving the
U.S. Administrative Agent notice to that effect, or
(y) accept one or more of the offers made by any U.S. RC
Lender or Lenders pursuant to paragraph (ii) above, in its sole
discretion, by giving notice to the U.S. Administrative Agent of the
amount of each Competitive Bid Advance (which amount shall be equal
to or greater than the minimum amount, and equal to or less than the
maximum amount, notified to such U.S. Borrower by the U.S.
Administrative Agent on behalf of such Lender for such Competitive
Bid Advance pursuant to paragraph (ii) above) to be made by each U.S.
RC Lender as part of such Competitive Bid Borrowing, and reject any
remaining offers made by U.S. RC Lenders pursuant to paragraph (ii)
above by giving the U.S. Administrative Agent notice to that effect.
The relevant U.S. Borrower shall accept the offers made by any U.S.
RC Lender or U.S. RC Lenders to make Competitive Bid Advances in
order of the lowest to the highest rates of interest offered by such
Lenders. If two or more U.S. RC Lenders have offered the same
interest rate, the amount to be borrowed at such interest rate will
be allocated among such U.S. RC Lenders in proportion to the amount
that each such U.S. RC Lender offered at such interest rate.
(iv) If the U.S. Borrower requesting a Competitive Bid Borrowing
notifies the U.S. Administrative Agent that such Competitive Bid Borrowing
is cancelled pursuant to paragraph (iii)(x) above, the U.S. Administrative
Agent shall give prompt notice thereof to the U.S. RC Lenders and such
Competitive Bid Borrowing shall not be made.
(v) If the U.S. Borrower requesting a Competitive Bid Borrowing
accepts one or more of the offers made by any U.S. RC Lender or Lenders
pursuant to paragraph (iii)(y) above, the U.S. Administrative Agent shall
in turn promptly notify (A) each U.S. RC Lender that has made an offer as
described in paragraph (ii) above, of the date and aggregate amount of
such Competitive Bid Borrowing and whether or not any offer or offers made
by such U.S. RC Lender pursuant to paragraph (ii) above have been accepted
by such U.S. Borrower, (B) each U.S. RC Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, of the
amount of each Competitive Bid Advance to be made by such U.S. RC Lender
as part of such Competitive Bid Borrowing, and (C) each U.S. RC Lender
that is to make a Competitive Bid Advance as part of such Competitive Bid
Borrowing, upon receipt, that the U.S. Administrative Agent has received
forms of documents appearing to fulfill the applicable conditions set
forth in Article III. Each U.S. RC Lender that is to make a Competitive
Bid Advance as part of such Competitive Bid Borrowing shall, before
2:00 P.M. (New York City time) on the date of such Competitive Bid
Borrowing specified in the notice received from the U.S. Administrative
Agent pursuant to clause (A) of the preceding sentence or any later time
when such U.S. RC Lender shall have received notice from the U.S.
Administrative Agent pursuant to clause (C) of the preceding sentence,
make available for the account of its Applicable Lending Office to the
U.S. Administrative Agent at the Appropriate Administrative Agent's
Account, in same day funds, such U.S. RC Lender's portion of such
Competitive Bid Borrowing. Upon fulfillment of the applicable conditions
set forth in Article III and after receipt by the U.S. Administrative
Agent of such funds, the U.S. Administrative Agent will make such funds
available to such U.S. Borrower at the applicable Borrower's Account.
Promptly after each Competitive Bid Borrowing, the U.S. Administrative
Agent will notify each U.S. RC Lender of the amount of the Competitive Bid
Borrowing, the consequent Competitive Bid Reduction and the dates upon
which such Competitive Bid Reduction commenced and will terminate.
(vi) If a U.S. Borrower notifies the U.S. Administrative Agent that
it accepts one or more of the offers made by any U.S. RC Lender or U.S. RC
Lenders pursuant to paragraph (iii)(y) above, such notice of acceptance
shall be irrevocable and binding on such U.S. Borrower. The U.S.
Borrowers shall indemnify each U.S. RC Lender against any loss (excluding
loss of anticipated profits), cost or expense incurred by such U.S. RC
Lender as a result of any failure to fulfill on or before the date
specified in the related Notice of Competitive Bid Borrowing for such
Competitive Bid Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such
U.S. RC Lender to fund the Competitive Bid Advance to be made by such U.S.
RC Lender as part of such Competitive Bid Borrowing when such Competitive
Bid Advance, as a result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount
of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each Competitive Bid Borrowing, the U.S. Borrowers
shall be in compliance with the limitation set forth in the proviso to the
first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.14, U.S. Borrowers may from time to time borrow under this
Section 2.14, repay or prepay pursuant to subsection (d) below, and reborrow
under this Section 2.14, provided that a Competitive Bid Borrowing shall not be
made within three Business Days of the date of any other Competitive Bid
Borrowing.
(d) Each U.S. Borrower shall repay to the U.S. Administrative Agent
for the account of each U.S. RC Lender that has made a Competitive Bid Advance
to such U.S. Borrower, on the maturity date of each Competitive Bid Advance
(such maturity date being that specified by a U.S. Borrower for repayment of
such Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above and provided in the Competitive
Bid Note evidencing such Competitive Bid Advance), the then unpaid principal
amount of such Competitive Bid Advance. Either U.S. Borrower may prepay any
principal amount of any Competitive Bid Advance (i) on the terms specified by
the U.S. Borrower for such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and set
forth in the Competitive Bid Note evidencing such Competitive Bid Advance or
(ii) so long as such U.S. Borrower shall also pay any amounts owing pursuant to
Section 9.04(c), if prepaid other than on the terms set forth in the related
Notice of Competitive Bid Borrowing.
(e) Each U.S. Borrower shall pay interest on the unpaid principal
amount of each Competitive Bid Advance owing by such U.S. Borrower from the
date of such Competitive Bid Advance to the date the principal amount of such
Competitive Bid Advance is repaid in full, at the rate of interest for such
Competitive Bid Advance specified by the U.S. RC Lender making such Competitive
Bid Advance in its notice with respect thereto delivered pursuant to
subsection (a)(ii) above, payable on the interest payment date or dates
specified by a U.S. Borrower for such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above, as provided in the Competitive Bid Note evidencing such Competitive Bid
Advance. Upon the occurrence and during the continuance of an Event of
Default, such U.S. Borrower shall pay interest on the amount of unpaid
principal of and interest on each Competitive Bid Advance owing to a U.S. RC
Lender, payable in arrears on the date or dates interest is payable thereon, at
a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Competitive Bid Advance under the terms of the
Competitive Bid Note evidencing such Competitive Bid Advance unless otherwise
agreed in such Competitive Bid Note.
(f) The indebtedness of any U.S. Borrower resulting from each
Competitive Bid Advance made to such U.S. Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note of the U.S.
Borrower payable to the order of the U.S. RC Lender making such Competitive Bid
Advance.
(g) Upon delivery of each Notice of Competitive Bid Borrowing, the
U.S. Borrower giving such notice shall pay a non-refundable fee of $2,500 to
the U.S. Administrative Agent for its own account.
Section 2.15. Use of Proceeds. (a) The proceeds of the RC Advances
shall be available (and the Borrowers agree that they shall use such proceeds)
solely (i) to refinance Debt of Global Operations under the Global Operations
Agreement, (ii) to refinance the Obligations in respect of Tranche A Term Loans
(as defined in the Vigoro Credit Agreement) and the revolving loan facility
under the Vigoro Credit Agreement, (iii) to refinance money market loans made
to Global or any of its Subsidiaries and (iv) for general corporate purposes
and (b) the proceeds of the Term Advances shall be available (and the Term
Borrower agrees that it shall use such proceeds) solely to refinance the
Obligations in respect of Tranche B Term Loans (as defined in the Vigoro Credit
Agreement) under the Vigoro Credit Agreement.
Section 2.16. Defaulting Lenders. (a) In the event that, at any
one time, (i) any Lender shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to any Borrower and (iii) any Borrower
shall be required to make any payment hereunder or under any other Loan
Document to or for the account of such Defaulting Lender, then such Borrower
may, so long as no Default shall occur or be continuing at such time and to the
fullest extent permitted by applicable law, set off and otherwise apply the
Obligation of such Borrower to make such payment to or for the account of such
Defaulting Lender against the Obligation of such Defaulting Lender to make such
Defaulted Advance. In the event that such Borrower shall so set off and
otherwise apply the Obligation of such Borrower to make any such payment
against the Obligation of such Defaulting Lender to make any such Defaulted
Advance on any date, the amount so set off and otherwise applied by such
Borrower shall constitute for all purposes of this Agreement and the other Loan
Documents an Advance by such Defaulting Lender made on such date under the
Facility pursuant to which such Defaulted Advance was originally required to
have been made pursuant to Section 2.01. Such Advance shall be considered, for
all purposes of this Agreement, to comprise part of the Borrowing in connection
with which such Defaulted Advance was originally required to have been made
pursuant to Section 2.01 and such Advance shall bear interest at the same rate
as the other Advances comprising part of the same Borrowing. Each Borrower
shall notify the Appropriate Administrative Agent at any time such Borrower
reduces the amount of the Obligation of such Borrower to make any payment
otherwise required to be made by it hereunder or under any other Loan Document
as a result of the exercise by such Borrower of its right set forth in this
subsection (a) and shall set forth in such notice (A) the name of the
Defaulting Lender and the Defaulted Advance required to be made by such
Defaulting Lender and (B) the amount set off and otherwise applied in respect
of such Defaulted Advance pursuant to this subsection (a). Any portion of such
payment otherwise required to be made by any Borrower to or for the account of
such Defaulting Lender which is paid by any Borrower, after giving effect to
the amount set off and otherwise applied by such Borrower pursuant to this
subsection (a), shall be applied by such Administrative Agent as specified in
subsection (b) or (c) of this Section 2.16.
(b) In the event that, at any one time, (i) any Lender shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
either Administrative Agent or any of the other Lenders and (iii) any Borrower
shall make any payment hereunder or under any other Loan Document to the
Administrative Agent for the account of such Defaulting Lender, then such
Administrative Agent may, on its behalf or on behalf of such other Lenders and
to the fullest extent permitted by applicable law, apply at such time the
amount so paid by such Borrower to or for the account of such Defaulting Lender
to the payment of each such Defaulted Amount to the extent required to pay such
Defaulted Amount. In the event that such Administrative Agent shall so apply
any such amount to the payment of any such Defaulted Amount on any date, the
amount so applied by such Administrative Agent shall constitute for all
purposes of this Agreement and the other Loan Documents payment, to such
extent, of such Defaulted Amount on such date. Any such amount so applied by
such Administrative Agent shall be retained by such Administrative Agent or
distributed by such Administrative Agent to such other Lenders, ratably in
accordance with the respective portions of such Defaulted Amounts payable at
such time to such Administrative Agent and such other Lenders and, if the
amount of such payment made by such Borrower shall at such time be insufficient
to pay all Defaulted Amounts owing at such time to such Administrative Agent
and the other Lenders, in the following order of priority:
(i) first, to such Administrative Agent for any Defaulted Amount
then owing to such Administrative Agent (in its capacity as Administrative
Agent); and
(ii) second, to any other Lenders for any Defaulted Amounts then
owing to such other Lenders, ratably in accordance with such respective
Defaulted Amounts then owing to such other Lenders.
Any portion of such amount paid by such Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by an
Administrative Agent pursuant to this subsection (b), shall be applied by such
Administrative Agent as specified in subsection (c) of this Section 2.16.
(c) In the event that, at any one time, (i) any Lender shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) any Borrower, either Administrative
Agent or any other Lender shall be required to pay or distribute any amount
hereunder or under any other Loan Document to or for the account of such
Defaulting Lender, then such Borrower or such other Lender shall pay such
amount to such Administrative Agent to be held by such Administrative Agent, to
the fullest extent permitted by applicable law, in escrow or the Administrative
Agent shall, to the fullest extent permitted by applicable law, hold in escrow
such amount otherwise held by it. Any funds held by such Administrative Agent
in escrow under this subsection (c) shall be deposited by such Administrative
Agent in an account with Citibank, in the name and under the control of such
Administrative Agent, but subject to the provisions of this subsection (c).
The terms applicable to such account, including the rate of interest payable
with respect to the credit balance of such account from time to time, shall be
Citibank's standard terms applicable to escrow accounts maintained with it.
Any interest credited to such account from time to time shall be held by such
Administrative Agent in escrow under, and applied by such Administrative Agent
from time to time in accordance with the provisions of, this subsection (c).
Each Administrative Agent shall, to the fullest extent permitted by applicable
law, apply all funds so held in escrow from time to time to the extent
necessary to make any Advances required to be made by such Defaulting Lender
and to pay any amount payable by such Defaulting Lender hereunder and under the
other Loan Documents to the Administrative Agent or any other Lender, as and
when such Advances or amounts are required to be made or paid and, if the
amount so held in escrow shall at any time be insufficient to make and pay all
such Advances and amounts required to be made or paid at such time, in the
following order of priority:
(i) first, to such Administrative Agent for any amount then due and
payable by such Defaulting Lender to such Administrative Agent (in its
capacity as Administrative Agent) hereunder;
(ii) second, to any other Lenders for any amount then due and payable
by such Defaulting Lender to such other Lenders hereunder, ratably in
accordance with such respective amounts then due and payable to such other
Lenders; and
(iii) third, to such Borrower for any Advance then required to be
made by such Defaulting Lender pursuant to a Commitment of such Defaulting
Lender.
In the event that such Defaulting Lender shall, at any time, cease to be a
Defaulting Lender, any funds held by such Administrative Agent in escrow at
such time with respect to such Defaulting Lender shall be distributed by such
Administrative Agent to such Defaulting Lender and applied by such Defaulting
Lender to the Obligations owing to such Lender at such time under this
Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.16 are in addition to other rights and remedies that the Borrowers
may have against such Defaulting Lender with respect to any Defaulted Advance
and that any Administrative Agent or any Lender may have against such
Defaulting Lender with respect to any Defaulted Amount.
Section 2.17. Replacement of Certain Lenders. In the event a Lender
("Affected Lender") shall: (i) be a Defaulting Lender, (ii) have required
Conversion of or caused the suspension of availability of Eurodollar Rate
Advances or LIBO Rate Advances pursuant to Section 2.09(d), (iii) have
requested compensation from any Borrower under Sections 2.09 or (iv) have
requested compensation from any Borrower under Section 2.11 to recover Taxes,
Other Taxes or other additional costs incurred by such Lender then, in any such
case, Global may make written demand on such Affected Lender (with a copy to
the U.S. Administrative Agent) for the Affected Lender to assign, and such
Affected Lender shall use its best efforts to assign pursuant to one or more
duly executed assignment and acceptance agreements in substantially the form of
Exhibit C five Business Days after the date of such demand, to one or more
Eligible Assignees which the Borrower shall have engaged for such purpose
("Replacement Lender"), all of such Affected Lender's rights and obligations
under this Agreement and other Loan Documents (including, without limitation,
its RC Commitments, all Advances owing to it, all of its participation interest
in outstanding Swing Line Advances, Letter of Credit Advances and Letters of
Credit, and its obligation to participate in additional Swing Line Advances,
Letter of Credit Advances and Letters of Credit hereunder) in accordance with
Section 9.07. The U.S. Administrative Agent agrees, upon the occurrence of
such events with respect to an Affected Lender and upon the written request of
the Borrower, to reasonably cooperate with the Borrower's efforts to obtain the
commitments from one or more Eligible Assignees to act as a Replacement Lender.
Further, with respect to such assignment, the Affected Lender shall have
concurrently received, in cash, all amounts due and owing to the Affected
Lender hereunder or under any other Loan Document, including, without
limitation, the aggregate outstanding principal amount of the Advances owed to
such Lender, together with accrued interest thereon through the date of such
assignment, amounts payable under Sections 2.09 and 2.11 with respect to such
Affected Lender and compensation payable under Section 9.04 in the event of any
replacement of any Affected Lender under clause (iii) of this Section 2.17;
provided that upon such Affected Lender's replacement, such Affected Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.09, 2.11 and 9.04, as well as to any fees accrued for
its account hereunder and not yet paid, and shall continue to be obligated
under Section 8.05. Upon the replacement of any Affected Lender pursuant to
this Section 2.17, the provisions of Sections 2.09, 2.11 and 9.04 shall
continue to apply with respect to Borrowings which are then outstanding with
respect to which the Affected Lender failed to fund its Pro Rata Share and
which failure has not been cured.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
Section 3.01. Conditions to Effectiveness. Sections 2.01, 2.13 and
2.14 of this Agreement shall become effective on and as of the first date (the
"Effective Date") on which the following conditions precedent shall have been
met:
(a) The Lenders shall be satisfied with the corporate and legal
structure and capitalization of each Loan Party and the Joint Venture
Company, including the terms and conditions of the charter, bylaws and
each class of capital stock of each Loan Party and of each agreement or
instrument relating to such structure or capitalization.
(b) Before giving effect to the Merger and the other transactions
contemplated by this Agreement, there shall have occurred no material
adverse change in the business, condition (financial or otherwise),
operations, performance, properties or prospects of Global and its
Relevant Subsidiaries (other than Vigoro and its Subsidiaries), taken as a
whole, or of Vigoro and its Subsidiaries, taken as a whole, in each case
since June 30, 1995.
(c) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any Subsidiary of any Loan Party
pending or threatened before any court, governmental agency or arbitrator
that (i) would be reasonably likely to have a Material Adverse Effect
other than the matters described in Exhibit B to the Disclosure Letter
(the "Disclosed Litigation") or (ii) purports to affect the legality,
validity or enforceability of this Agreement, any Note, any other Loan
Document, any Related Document or the consummation of the Merger or the
other transactions contemplated hereby, and there shall have been no
change in the status or financial effect on Global and its Relevant
Subsidiaries (other than Vigoro and its Subsidiaries), taken as a whole,
or of Vigoro and its Subsidiaries, taken as a whole, of the Disclosed
Litigation from that described in the Pre-Commitment Information that may
have a Material Adverse Effect.
(d) There shall exist no injunction or temporary restraining order
in connection with any proceeding challenging the consummation of the
Merger, and all applicable waiting periods shall have expired and no
action shall have been taken by any competent authority restraining,
preventing or imposing materially adverse conditions upon the transactions
contemplated thereby.
(e) The Lenders shall have completed a due diligence investigation
of Vigoro and its Subsidiaries in scope, and with results, satisfactory to
the Lenders, and nothing shall have come to the attention of the Lenders
to lead them to believe that the information provided by or on behalf of
the Loan Parties to the Agents or to the Lenders generally, as a group, in
connection with this Agreement and the transactions contemplated hereby
prior to the date hereof, including, but not limited to, the Merger
Agreement, the Information Memoranda, the proxy statement filed with the
Securities Exchange Commission on January 30, 1996, the disclosure
letters referred to in the Merger Agreement, the Disclosed Litigation and
the environmental matters disclosed in writing prior to the Effective Date
with respect to Global and its Subsidiaries prior to the Merger (the
"Pre-Commitment Information") contains any material misstatement of fact
or omitted to state a material fact necessary to make the statements
contained therein (in the context of all other information provided, taken
as a whole), not misleading; without limiting the generality of the
foregoing, the Lenders shall have been given such access to the
management, records, books of account, contracts and properties of each
Loan Party and the Subsidiary of each Loan Party as the Lenders shall have
reasonably requested.
(f) All material governmental and third party consents and approvals
necessary in connection with the Merger, the Loan Documents and the
transactions contemplated hereby shall have been obtained (without the
imposition of any conditions that are not acceptable to the Lenders) and
shall remain in effect, and no law or regulation shall be applicable that
restrains, prevents or imposes materially adverse conditions upon the
transactions contemplated hereby.
(g) Global shall have notified each Lender and each Agent in writing
as to the proposed Funding Date (if such Funding Date is other than March
1, 1996) and the proposed Effective Date (if such Effective Date is other
than February 27, 1996).
Section 3.02. Conditions Precedent to Initial Extension of Credit.
The obligation of each Lender to make a Regular Advance or of any Issuing Bank
to issue a Letter of Credit on the occasion of the Initial Extension of Credit
hereunder is subject to the satisfaction of the following conditions precedent
before or concurrently with the Initial Extension of Credit:
(a) The Merger shall have been consummated substantially in
accordance with the terms of the Merger Agreement, without any waiver,
modification, revision or amendment since the delivery of the Lenders'
Commitments not consented to by the Lenders (such consent not to be
unreasonably withheld) of any term, provision or condition set forth
therein in any material respects, and in compliance with all applicable
laws and all applicable waiting periods.
(b) The Merger Agreement shall be in full force and effect.
(c) The Borrowers shall have authorized from the proceeds of the
Initial Extension of Credit the payment of all accrued fees of the Agents
and the Lenders and all accrued expenses of the Agents (including the
accrued fees and expenses of Shearman & Sterling, counsel to the U.S.
Administrative Agent, and Tory Tory DeLauriers & Binnington, local counsel
to the Lenders), for which Global has received detailed invoices prior to
the Effective Date.
(d) The U.S. Administrative Agent shall have received on or before
the Effective Date the following, each dated such day (unless otherwise
specified), in form and substance satisfactory to the Lenders (unless
otherwise specified) and (except for the Notes) in sufficient copies for
each Lender:
(i) The Notes to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board of
Directors of each Loan Party approving this Agreement, the Notes and
each other Loan Document to which it is or is to be a party, and of
all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement, the
Notes and each other Loan Document.
(iii) A copy of a certificate of the Secretary of State of
the state of incorporation of each Loan Party incorporated in the
United States, dated reasonably near the Funding Date, listing the
charter of such Loan Party and each amendment thereto on file in his
office and certifying that (A) such amendments are the only
amendments to such Loan Party's charter on file in his office, (B)
such Loan Party has paid all franchise taxes to the date of such
certificate and (C) such Loan Party is duly incorporated and in good
standing under the laws of the state of such Loan Party's
incorporation.
(iv) A certificate of compliance issued under the Canada
Business Corporations Act with respect to each of the Loan Parties
incorporated under the laws of Canada, together with a certified copy
of the articles of each such Loan Party.
(v) A certificate of each Loan Party, dated the Funding Date,
the statements made in which certificate shall be true on and as of
the Funding Date, signed on behalf of such Loan Party, (A) by its
Secretary or any Assistant Secretary, certifying as to (x) the
absence of any amendments to the charter of such Loan Party since the
date of the Secretary of State's certificate referred to in Section
3.02(d)(iii) or the certified copy of the articles referred to in
Section 3.02(d)(iv), (y) a true and correct copy of the bylaws of
such Loan Party as in effect on the Funding Date, (z) the absence of
any proceeding for the dissolution or liquidation of such Loan Party
and (B) by its treasurer, chief financial officer, president or any
vice president, certifying as to (x) the truth of the representations
and warranties contained in the Loan Documents as though made on and
as of the Funding Date and (y) the absence of any event occurring and
continuing that constitutes a Default.
(vi) A certificate of the Secretary or an Assistant Secretary of
each Loan Party certifying the names and true signatures of the
officers of such Loan Party authorized to sign this Agreement, the
Notes and each other Loan Document to which they are or are to be
parties and the other documents to be delivered hereunder and
thereunder.
(vii) Certified copies of each of the Related Documents and
the Prudential Guarantee, duly executed by the parties thereto and in
form and substance reasonably satisfactory to the Lenders, together
with all agreements, instruments and other documents delivered in
connection therewith.
(viii) Such financial, business and other information
regarding each Loan Party and their respective Subsidiaries as the
Lenders shall have reasonably requested, including, without
limitation, information as to possible contingent liabilities, tax
matters, environmental matters, obligations under ERISA and Welfare
Plans, collective bargaining agreements and other arrangements with
employees.
(ix) Evidence satisfactory to the Lenders that all Obligations
in respect of Debt outstanding under the Existing Credit Agreements
are being prepaid, redeemed or defeased in full from the proceeds of
the Initial Extension of Credit, or otherwise satisfied and
extinguished (subject to the survival of provisions relating to
indemnifications, taxes and increased costs, to the extent set forth
therein), and the "Commitments" (as defined in each Existing Credit
Agreement) under the Existing Credit Agreements have been terminated.
(x) A letter from the Process Agent, dated the Effective
Date, agreeing to act as Process Agent, in form and substance
satisfactory to the Lenders.
(xi) The Disclosure Letter, duly executed by each Loan Party.
(xii) A favorable opinion of Blake, Cassels & Graydon,
Canadian counsel for the Loan Parties, in substantially the form of
Exhibit E hereto and as to such other matters as any Lender or any
Agent through the U.S. Administrative Agent may reasonably request.
(xiii) A favorable opinion of Tory Tory DeLauriers &
Binnington, Canadian counsel for the Lenders, in substantially the
form of Exhibit F hereto and as to such other matters as any Lender
or any Agent through the U.S. Administrative Agent may reasonably
request.
(xiv) A favorable opinion of Sidley & Austin, special
counsel for the Loan Parties, in substantially the form of Exhibit G
hereto and as to such other matters as any Lender or any Agent
through the U.S. Administrative Agent may reasonably request.
(xv) A favorable opinion of Marschall I. Smith, General Counsel
of Global, with respect to each Loan Party, in substantially the form
of Exhibit H hereto and as to such other matters as any Lender or any
Agent through the U.S. Administrative Agent may reasonably request.
(xvi) A favorable opinion of Fraser & Beatty, Canadian
counsel for the Loan Parties, in substantially the form of Exhibit J
hereto and as to such other matters as any Lender or any Agent
through the U.S. Administrative Agent may reasonably request.
(xvii) A favorable opinion of Shearman & Sterling, counsel
for the Lenders, in form and substance satisfactory to the Lenders.
Section 3.03. Conditions Precedent to Each Regular Borrowing and
Each Issuance, Etc. The obligation of each Appropriate Lender to make a
Regular Advance (other than a Letter of Credit Advance made by an Issuing Bank
or a Lender pursuant to Section 2.13(c) and a Swing Line Advance made by a
Lender pursuant to Section 2.02(b)) on the occasion of each Borrowing
(including the initial Borrowing), and the right of the Borrowers to request
the issuance of Letters of Credit (including the initial issuance of Letters of
Credit) or renew Letters of Credit and Swing Line Borrowings, shall be subject
to the conditions precedent that the Funding Date shall have occurred and on
the date of such Borrowing, issuance or renewal (a) the following statements
shall be true (and each of the giving of the applicable Notice of Borrowing,
Notice of Swing Line Borrowing or Notice of Issuance and the acceptance by such
Borrower of the proceeds of such Borrowing or of such Letter of Credit shall
constitute a representation and warranty by such Borrower that on the date of
such Borrowing, issuance or renewal such statements are true):
(i) the representations and warranties contained in each Loan
Document are true and correct on and as of the date of such Borrowing,
issuance or renewal, before and after giving effect to such Borrowing,
issuance or renewal and to the application of the proceeds therefrom, as
though made on and as of such date, other than any such representations or
warranties that, by their terms, refer to a date other than the date of
such Borrowing, issuance or renewal; and
(ii) no event has occurred and is continuing, or would result from
such Borrowing, issuance or renewal or from the application of the
proceeds therefrom, that constitutes a Default;
and (b) the U.S. Administrative Agent shall have received such other approvals,
opinions or documents as any Appropriate Lender through the Administrative
Agent may reasonably request.
Section 3.04. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each U.S. RC Lender that is to make a Competitive
Bid Advance on the occasion of a Competitive Bid Borrowing to make such
Competitive Bid Advance as part of such Competitive Bid Borrowing is subject to
the conditions precedent that (a) the Funding Date shall have occurred, (b) the
U.S. Administrative Agent shall have received the written confirmatory Notice
of Competitive Bid Borrowing with respect thereto, (c) on or before the date of
such Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing,
the U.S. Administrative Agent shall have received a Competitive Bid Note
payable to the order of such Lender for each of the one or more Competitive Bid
Advances to be made by such Lender as part of such Competitive Bid Borrowing,
in a principal amount equal to the principal amount of the Competitive Bid
Advance to be evidenced thereby and otherwise on such terms as were agreed to
for such Competitive Bid Advance in accordance with Section 2.14, and (d) on
the date of such Competitive Bid Borrowing the following statements shall be
true (and each of the giving of the applicable Notice of Competitive Bid
Borrowing and the acceptance by the U.S. Borrower giving such notice of the
proceeds of such Competitive Bid Borrowing shall constitute a representation
and warranty by such U.S. Borrower that on the date of such Competitive Bid
Borrowing such statements are true):
(i) the representations and warranties contained in each Loan
Document are true and correct on and as of the date of such Competitive
Bid Borrowing, before and after giving effect to such Competitive Bid
Borrowing and to the application of the proceeds therefrom, as though made
on and as of such date, other than any such representations or warranties
that, by their terms, refer to a date other than the date of such
Borrowing, and
(ii) no event has occurred and is continuing, or would result from
such Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Section 3.05. Determinations Under Sections 3.01 and 3.02. For
purposes of determining compliance with the conditions specified in Section
3.01 or 3.02, as the case may be, each Lender shall be deemed to have consented
to, approved or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Lenders unless an officer of the Appropriate Administrative
Agent responsible for the transactions contemplated by the Loan Documents shall
have received notice from such Lender prior to the date that Global, by notice
to the Lenders, designates as the proposed Effective Date or Funding Date, as
the case may be, specifying its objection thereto, and in the case of Section
3.02, if the Initial Extension of Credit consists of a Borrowing, such Lender
shall not have made available to the Administrative Agent such Lender's ratable
portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Borrowers and
the Guarantors. Each Loan Party represents and warrants as follows:
(a) Each Loan Party (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 or extraprovincial 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. Except as set forth on
Schedule 4.01(b), all of the outstanding capital stock of each Borrower
has been validly issued, is fully paid and non-assessable and, is owned
directly or indirectly, by Global free and clear of all Liens.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate
list of all Relevant Subsidiaries of each Loan Party as of the Funding
Date, showing as of the date hereof (as to each such Subsidiary) the
jurisdiction of its incorporation, as of the Effective Date, the number of
shares of each class of capital stock authorized, and the number
outstanding, on the date hereof and the percentage of the outstanding
shares of each such class owned (directly or indirectly) by such Loan
Party 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 Effective Date by such Loan Party 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 each Loan Party of
this Agreement, the Notes, each other Loan 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, are within such
Loan Party's corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene such Loan Party's charter or
by-laws, (ii) violate any law (including, without limitation, the
Securities Exchange Act of 1934), rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or
award, (iii) conflict with or result in the breach of, or constitute a
default under, any material contract, loan agreement, indenture, mortgage,
deed of trust, material lease or other instrument binding on or affecting
any Loan Party, any Subsidiary of any Loan Party or of their properties or
(iv) result in or require the creation or imposition of any Lien upon or
with respect to any of the properties of any Loan Party or any Subsidiary
of any Loan Party. No Loan Party and no Subsidiary of any Loan Party is
in violation of any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument, the violation or breach of which could be reasonably
likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any
other third party is required for (i) the due execution, delivery,
recordation, filing or performance by any Loan Party of this Agreement,
the Notes, any other Loan Document or any Related Document to which it is
or is to be a party, or for the consummation of the Merger or the other
transactions contemplated hereby or (ii) the exercise by any Agent or any
Lender of its rights under the Loan Documents except for the
authorizations, approvals, actions, notices and filings listed on Schedule
4.01(d), all of which have been duly obtained, taken, given or made and
are in full force and effect. All applicable waiting periods in
connection with the Merger and the other transactions contemplated hereby
have expired and no action shall have 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 Loan
Document and each Related Document when delivered hereunder will have
been, duly executed and delivered by each Loan Party thereto. This
Agreement is, and each of the Notes, each other Loan Document and each
Related Document when delivered hereunder will be, the legal, valid and
binding obligation of each Loan Party thereto, enforceable against such
Loan Party in accordance with its terms subject to the effect of any
applicable bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar
law affecting creditors' rights generally.
(f) (i) The Consolidated balance sheets of Global and its
Subsidiaries as at June 30, 1995, and the related Consolidated statements
of income and cash flows of Global and its Subsidiaries for the fiscal
year then ended, accompanied by an opinion of Global's independent public
accountants, and the summary financial statements of Global and its
Subsidiaries as at December 31, 1995, and for the six months then ended,
duly certified by the treasurer or chief financial officer of Global,
copies of which have been furnished to each Lender, fairly present,
subject, in the case of said summary financial statements as at December
31, 1995, and for the six months then ended, to year-end audit
adjustments, the Consolidated financial condition of Global and its
Subsidiaries as at such dates and the Consolidated results of the
operations of Global 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.
(ii) The Consolidated balance sheets of Vigoro and its Subsidiaries
as at June 30, 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 summary financial information of Vigoro and its Subsidiaries as at
September 30, 1995 and for the nine months then ended, duly certified by
the treasurer or chief financial officer of Vigoro, copies of which have
been furnished to each Lender, fairly present, subject, in the case of
said summary financial information September 30, 1995 and for the nine
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
June 30, 1994, there has been no Material Adverse Change as of the
Effective Date.
(g) The unaudited Consolidated pro forma condensed combined
financial information of Global and its Subsidiaries consisting of the
unaudited Consolidated pro forma combined statement of operations for the
one-year period ended June 30, 1995 and the unaudited pro forma condensed
Consolidated pro forma combined balance sheet at September 30, 1995 of
Global and its Subsidiaries, giving effect to the Merger, certified by the
treasurer or chief financial officer of Global and the treasurer or chief
financial officer of Vigoro, copies of which have been furnished to each
Lender, fairly present the Consolidated pro forma results of operations of
Global and its Subsidiaries for the one-year period ended on such date, in
each case giving effect to the Merger, all in accordance with U.S. GAAP.
(h) The Consolidated forecasted balance sheets, income statements
and cash flows statements of Global and its Subsidiaries delivered to the
Lenders pursuant to Section 3.02(d)(vii) 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, Global'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 Global or Vigoro of the future achievement of
such performance.
(i) Neither the Pre-Commitment Information (taken as a whole) nor
any other information, exhibit or report furnished by any Loan Party to
any Agent or to the Lenders generally as a group, in connection with the
negotiation of the Loan Documents or pursuant to the terms of the Loan
Documents (other than projections and forecasts as to which clause (h)
above applies) contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements made
therein not misleading at the time and under the circumstances when given.
(j) Except as to Environmental Claims (which are addressed solely by
Section 4.01(q)), there is no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any Subsidiary of any Loan Party
pending or threatened before any court, governmental agency or arbitrator
that (i) would reasonably be expected to have a Material Adverse Effect
(other than the Disclosed Litigation) or (ii) purports to affect the
legality, validity or enforceability of this Agreement, any Note, any
other Loan Document or any Related Document or the consummation of the
Merger or the other transactions contemplated hereby, and there has been
no material change in the status, or financial effect on any Loan Party or
any Subsidiary of any Loan Party, of the Disclosed Litigation from that
described of Parts I and II in Exhibit B to the Disclosure Letter that
could be reasonably likely to have a Material Adverse Effect; provided,
however, that neither Global nor any of its Subsidiaries makes any
representation in the first sentence of this Section 4.01(j) with respect
to the litigation set forth as Item 2 of Parts I and II in Exhibit B to
the Disclosure Letter; with respect to the litigation set forth on Item 2
on Schedule 301(c), to the actual knowledge of the chairman, vice
chairman, president or treasurer of Global and Vigoro, there have been no
actions taken by Global or any of its Subsidiaries that are the subject of
such litigation that could reasonably be expected to have a material
adverse effect on the ability of any Loan Party to perform their
obligations under the Loan Documents or the Related Documents or that
purport to affect the legality, validity or enforceability of this
Agreement, any Note, any other Loan Document or any Related Document or
the consummation of the Merger or the other transactions contemplated
hereby.
(k) No proceeds of any Advance will be used to acquire, in
connection with a hostile or contested bid, any equity security of a class
that is registered pursuant to Section 12 of the Securities Exchange Act
of 1934.
(l) (i) (A) No Borrower is engaged in the business of extending
credit for the purpose of purchasing or carrying, and no proceeds of any
Advance will be used to extend credit to others for the purpose of
purchasing or carrying, Margin Stock, and (B) no proceeds of any Advance
will be used to purchase or carry any Margin Stock in connection with a
hostile or contested bid.
(ii) Following application of the proceeds of each Advance, not more
than 25% of the value of the assets (of any Loan Party individually or
with such Loan Party's Subsidiaries taken as a whole) subject to the
provisions of Section 5.02(a) or 5.02(d) or subject to any restriction
contained in any agreement or instrument between any Loan Party and any
Lender or any Affiliate of any Lender relating to Debt and within the
scope of Section 6.01(e) will be Margin Stock.
(m) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan of any Loan Party or any of its ERISA Affiliates
which ERISA Event could reasonably be expected to subject any Loan Party
or any of its ERISA Affiliates to liability in excess of $7,500,000.
(n) Schedule B (Actuarial Information) to the most recent report
(Form 5500 Series) for each Plan of each Loan Party and each of its ERISA
Affiliates, copies of which have been filed with the Internal Revenue
Service, is complete and accurate and fairly presents the funding status
of such Plan, and since the date of such Schedule B there has been no
material adverse change in such funding status.
(o) No Loan Party and no ERISA Affiliate of any Loan party has
incurred and not discharged in the ordinary course and in accordance with
ERISA or is reasonably expected to incur any Withdrawal Liability in
excess of $7,500,000 to any Multiemployer Plan.
(p) No Loan Party and no ERISA Affiliate of any Loan Party has been
notified by the sponsor of a Multiemployer Plan of any Loan Party or any
of their ERISA Affiliates that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of
ERISA, and no such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of
ERISA other than in connection with any such reorganization or termination
which is not reasonably expected to subject any Loan Party or any of its
ERISA Affiliates to liability in any plan year in excess of $1,500,000 in
excess of the aggregate annual contributions of the Loan Parties and their
ERISA Affiliates to all Multiemployer Plans.
(q) To the best knowledge of the Loan Parties and their Subsidiaries
and except as disclosed in Exhibit C to the Disclosure Letter, (i) each
Loan Party and each of its Subsidiaries has complied with, and is in
compliance with, all applicable Environmental Laws and the requirements to
obtain and comply with any permits or governmental approvals issued under
such Environmental Laws, (ii) there are no past, pending or threatened
Environmental Claims against either a Loan Party or any of its
Subsidiaries or on any Real Property owned or operated at any time by a
Loan Party or any of its Subsidiaries, and (iii) there are no facts,
circumstances, conditions or occurrences arising from, relating to or on
any real property owned or operated at any time by a Loan Party or any of
its Subsidiaries or on any property adjoining or in the immediate vicinity
of any such Real Property that could be reasonably be expected (A) to form
the basis of an Environmental Claim against any Loan Party or any of its
Subsidiaries or any such Real Property or (B) to cause such real property
to be subject to any restrictions on the ownership, occupancy, use or
transferability of such real property under any Environmental Law, except
all such non-compliances, Environmental Claims, and facts, circumstances,
conditions or occurrences described in the preceding clauses (i), (ii) and
(iii) which individually or in the aggregate could not reasonably be
expected to have a material adverse effect on the ability of the Loan
Parties to perform their obligations under the Loan Documents from the
date hereof through the Termination Date. Notwithstanding any other
provision contained in this Section 4.01, the provisions of this
Section 4.01(q) shall be the only representations and warranties
applicable to environmental matters or Environmental Claims and no other
provision of this Section 4.01 shall be construed to include environmental
matters or Environmental Claims.
(r) No Loan Party and no Subsidiary of any Loan Party is a party to
any indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any charter or corporate restriction that could
reasonably be expected to have a Material Adverse Effect.
(s) Each Loan Party and each of its Subsidiaries has filed, has
caused to be filed or has been included in all income and other material
tax returns (Federal, state, provincial, local and foreign) required to be
filed and has paid all income and other material taxes shown thereon to be
due, together with applicable interest and penalties other than any such
tax, assessment, charge, levy or claim that is being contested in good
faith and by proper proceedings and as to which appropriate reserves are
being maintained, unless and until any Lien attaches with respect thereto
which is not a Lien permitted under Section 5.02(a).
(t) No Loan Party and no Subsidiary of any Loan Party is an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances, nor the issuance of any Letters of Credit, nor the
application of the proceeds or repayment thereof by any Borrower, nor the
consummation of the other transactions contemplated hereby, will violate
any provision of such Act or any rule, regulation or order of the
Securities and Exchange Commission thereunder.
(u) (i) All actuarial reports and annual regulatory or other
reports, returns and filings in respect of each Canadian Plan, and any
agreements made or required to have been made with any regulatory agency,
have been made and no material adverse change has occurred since the date
thereof; (ii) each Canadian Plan complies in all material respects, and
has been administered in compliance in all material respects with, its
terms and with all applicable legislation and regulatory policy, and none
of the Canadian Borrowers has received any notice from any party
questioning or challenging such compliance; (iii) no event has occurred
respecting any Canadian Plan which would entitle any person or persons
(without the consent of the applicable Canadian Borrower) to wind-up or
terminate any Canadian Plan in whole or in part, nor has any person
threatened to do so; (iv) there are no unfunded liabilities in any
material amount under any Canadian Plan (including, without limiting the
generality of the foregoing, any going concern unfunded actuarial
liability, past service unfunded actuarial liability or solvency
deficiency); (v) there has been no surplus received in any material amount
(except with the approval of all necessary pension regulatory and taxation
authorities) or applied for in respect of any Canadian Plan; and (vi)
there have been no improper withdrawals or transfers of assets in respect
of any Canadian Plan which would result in liabilities in any material
amount.
ARTICLE V
COVENANTS OF THE BORROWERS AND THE GUARANTORS
Section 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender shall
have any Commitment hereunder, each Loan Party will:
(a) Compliance with Laws, Etc. Comply and cause each of its
Subsidiaries to comply with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and
the ownership of its property except (i) such noncompliances as could not,
individually or in the aggregate, have a Material Adverse Effect and (ii)
as to environmental matters which are solely addressed by Section 5.01(c).
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
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 no Loan Party and no Subsidiary of
any Loan Party 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 Section 5.02(a).
(c) Compliance with Environmental Laws. Comply, and cause each of
its Subsidiaries to comply, in all material respects, with all applicable
Environmental Laws, except for such non-compliance which individually or
in the aggregate could not reasonably be expected to have a material
adverse effect on the ability of the Loan Parties to perform their
obligations under the Loan Documents from the date hereof through the
Termination Date and promptly pay or cause to be paid all costs and
expenses incurred in connection with such compliance with Environmental
Laws. Notwithstanding any other provision contained in this Section 5.01,
the provisions of this Section 5.01(c) shall be the only covenant
applicable to environmental matters and no other provision of this Section
5.01 shall be construed to include environmental matters.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which such Loan
Party or such Subsidiary operates; provided, however, that the Borrowers
and their Subsidiaries may self-insure to the same extent as other
companies engaged in similar businesses and owing similar properties in
the same general areas in which such Borrower or such Subsidiary operates
and to the extent consistent with prudent business practice.
(e) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain, its
corporate existence, rights (charter and statutory) and franchises;
provided, however, that each Loan Party and its Subsidiaries may
consummate any merger, amalgamation or consolidation permitted under
Section 5.02(c) and provided further that no Loan Party and no Subsidiary
of a Loan Party shall be required to preserve any right or franchise if
the Board of Directors of such Loan Party or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of such Loan Party or such Subsidiary, as the case
may be, and that the loss thereof is not disadvantageous in any material
respect to such Loan Party or such Relevant Subsidiary, as the case may
be, or to the Lenders.
(f) Visitation Rights. At any reasonable time and from time to
time, upon reasonable prior notice, permit any Agent or any of the Lenders
or any agents or representatives thereof to examine and make copies of and
abstracts from the records (other than any confidential non-public
proprietary information relating to operational technology (including,
without limitation, information relating to the process of solution mining
of potash), unless an Event of Default has occurred and is continuing, in
which case to the extent practicable and to the extent consistent with the
Lenders' objectives, the Lenders will use reasonable efforts to inspect
such information on-site without making any copies thereof) and books of
account of, and visit the properties of (other than upon the occurrence
and continuance of an Event of Default, such visitation and inspection to
be conducted, in the case of the Lenders, by all of the Lenders at the
same time), any Loan Party and any Subsidiary of any Loan Party, and to
discuss the affairs, finances and accounts of such Loan Party and such
Subsidiary with any of its officers or directors and with its independent
certified public accountants.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of such Loan Party and each Subsidiary of such Loan Party in
accordance with generally accepted accounting principles in effect from
time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or are, in the reasonable judgment of such Loan
Party, useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
(i) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real
property, keep such leases in full force and effect and not allow such
leases to lapse or be terminated or any rights to renew such leases to be
forfeited or cancelled, notify the U.S. Administrative Agent of any
default by any party with respect to such leases and cooperate with the
U.S. Administrative Agent in all respects to cure any such default, and
cause each of its Subsidiaries to do so, in each case except to the extent
that the failure to do so could not reasonably be expected to have a
Material Adverse Effect.
(j) Performance of Related Documents. 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 the U.S. Administrative Agent and, upon the reasonable
request of the U.S. Administrative Agent, make to each other party to each
such Related Document such demands and requests for information and
reports or for action as such Loan Party 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 such Loan Party or any of
their Subsidiaries and could not be reasonably likely to materially impair
the interests or materially impair the rights of any Agent or any Lender.
(k) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of their Affiliates on terms that are fair and
reasonable and no less favorable to such Loan Party or such Subsidiary
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 Fitzgerald,
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) loans, Investments and other transactions between or
among Global and its subsidiaries to the extent permitted by Section
5.02(b), (c), (d) or (e).
(l) Covenant to Guarantee Obligations. So long as the Release Date
shall not have occurred, at the expense of Global, at such time as any new
direct or indirect Relevant Subsidiaries of Global are formed or acquired
or any existing Subsidiary of Global becomes a Relevant Subsidiary (other
than IMC Canada, IMC Global Potash Holdings, George Smith Ag Services,
Inc. and the Joint Venture Company) (i) within 15 Business Days
thereafter, cause such Relevant Subsidiary to duly execute and deliver to
the U.S. Administrative Agent a guaranty or other agreement, in form and
substance satisfactory to the U.S. Administrative Agent, whereby such
Relevant Subsidiary guarantees Global's Obligations under the Loan
Documents, such Guaranty to be effective until the Release Date, (ii)
within 30 days thereafter, deliver to the U.S. Administrative Agent a
signed copy of a favorable opinion, addressed to the Agents and the
Lenders, of internal counsel for Global or other counsel for the Loan
Parties acceptable to the U.S. Administrative Agent as to such guaranty
being the legal, valid and binding Obligation of the Loan Party party
thereto, enforceable in accordance with its terms and as to such other
matters as the U.S. Administrative Agent may reasonably request; provided,
however, that nothing contained in this Section 5.01(l) shall require that
any present or future Subsidiary of the Borrower issue any such guaranty
if as a result of the issuance of such guaranty, Global would incur
material adverse tax consequences.
Section 5.02. Negative Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender shall
have any Commitment hereunder, no Loan Party will, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to 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, or permit any of its Subsidiaries to sign or
file, under the Uniform Commercial Code or other applicable personal
property security legislation of any jurisdiction, a financing statement
that names any Loan Party or any Subsidiary of any Loan Party as debtor,
or sign, or permit any of its Subsidiaries to sign, any security agreement
authorizing any secured party thereunder to file such financing statement,
or assign, or permit any of its Subsidiaries to 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 Effective Date and described
on Schedule 5.02(a);
(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 Global 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 the Loan Documents;
(iv) Liens arising by reason of customary deposits necessary to
qualify Global 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 Global 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 pursuant to Section 5.02(d)(iv);
(ix) The replacement, extension or renewal of any Lien permitted
by clause (ii) above upon or in the same property theretofore subject
thereto or the replacement, extension or renewal (without increase in
the amount or change in any direct or contingent obligor) of the Debt
secured thereby; and
(x) Liens not otherwise covered in (i) through (ix) of this
Section 5.02(a) which Liens do not secure obligations in an amount
exceeding $25,000,000 in the aggregate.
(b) Debt. Create, incur, assume or suffer to exist, or permit any
of its Subsidiaries to create, incur, assume or suffer to exist, any Debt
other than:
(i) in the case of Global,
(A) unsecured Debt, provided that immediately after giving
effect thereto, Global shall be in pro forma compliance
(calculated based on historical financial statements most
recently furnished or required to be furnished pursuant to
Section 5.03(b) or (c) 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 Section 5.04, 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), and
(B) Debt under the Loan Documents,
(ii) in the case of Global'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 5.02(b) (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 Funding Date and the direct
and contingent obligors therefor shall not be changed (other
than the addition of the guarantee of such Debt by Global) to
the extent such guarantee is otherwise permitted under Section
5.02(b)(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 Global
to any other Subsidiary of Global,
(G) Debt (other than intercompany Debt listed on Schedule
5.02(b)) owing to Global, which, prior to the Release Date,
shall not exceed, in the aggregate, $200,000,000 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 U.S. Administrative Agent, not materially
more restrictive than the provisions in the Loan Documents and
not materially adverse to the interests of the Lenders, and
(J) Debt under the Loan Documents;
(K) other Debt not to exceed in the aggregate
$75,000,000 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 5.02(b) (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 Funding 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,
(F) Debt incurred in connection with the limited
recourse sale of accounts receivable in an aggregate amount not
to exceed $75,000,000 outstanding at any time, and
(G) other Debt not to exceed in the aggregate $50,000,000
outstanding at any time.
(c) Mergers, Etc. Merge into, amalgamate or consolidate with any
Person, permit any Person to merge into it, 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 Global (or other securities convertible into
such securities) representing 35% or more of the combined voting power of
all the Voting Stock of Global, except that (i) Global, Bull Merger 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 Global's wholly owned Subsidiaries may merge into Global and (y)
any of Global's Subsidiaries may merge into any other of Global's
Subsidiaries; provided further that in each case, immediately after giving
effect thereto, no event shall occur and be continuing that constitutes a
Default and, in the case of any such merger to which Global is a party,
Global is the surviving corporation.
(d) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to 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 third party or to any other Subsidiary) consistent with
past business practices;
(ii) in a transaction authorized by subsection (c) of this
Section;
(iii) the sale of Global'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;
(v) the lease (as lessee) by Global 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 Section 5.02(b));
(vi) prior to the Release Date, any sale of assets by (A) any
Subsidiary Guarantor to any Non-Guarantor Subsidiary, (B) Global to
any of its Subsidiaries, and (C) any Subsidiary Guarantor to Global
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 Global to a Subsidiary of Global for fair value
(including by way of liquidation or dissolution of such Subsidiary)
and (B) made by a Subsidiary of Global to any other Subsidiary of
Global or to Global;
(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 for cash (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 the
Termination Date; provided, however, that up to 20% of the aggregate
purchase price for such sales set forth in (A) and (B) above may be
received in the form of senior promissory notes payable within five
years of the date of issuance of such promissory note.
(e) Investments in Other Persons. Make or hold, or permit any of
its Subsidiaries to make or hold, any Investment in any Person other than:
(i) Global 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 Global or any of its Subsidiaries in Cash
Equivalents;
(iii) Investments by Global or any of its Subsidiaries
resulting from Hedge Agreements permitted under Section 5.02(b)(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 Section 5.02(b)(iii)(A);
(v) Equity investments by Global or any of its Subsidiaries in
any of its Subsidiaries made prior to the date hereof;
(vi) Investments by Global or any of its Subsidiaries in any
third party made prior to the date hereof and set forth on Schedule
5.02(e);
(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 Lenders
pursuant to Section 5.03(b) or (c)), Global shall have delivered to
the U.S. Administrative Agent an officer's certificate executed by
the chief financial officer or treasurer of Global 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 to the Lenders
pursuant to Section 5.03(b) or (c), Global and its Subsidiaries would
have been in compliance with Section 5.04(b) for the relevant period
ended on the last day of such fiscal quarter, (b) demonstrate
compliance with Section 5.04(a) and 5.04(c) after giving effect to
such acquisition, and (c) state that no Default then exists or would
result therefrom;
(viii) Global or any of its Subsidiaries may acquire and hold
promissory notes received in connection with any asset sale permitted
pursuant to Section 5.02(d)(ix);
(ix) Equity Investments made after the date hereof by Global and
its Subsidiaries in any of its Subsidiaries;
(x) Investments consisting of Debt owing to Global or any of
its Subsidiaries permitted under Section 5.02(b)(i) or (ii)(E), (F)
or (G);
(xi) Investments consisting of guaranties by Global of Debt of
its Subsidiaries to the extent permitted under Section 5.02(b);
(xii) Investments consisting of the purchase, repurchase,
self-tender or redemption of capital stock of Global;
(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.
(f) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business as
carried on at the date hereof.
(g) Charter Amendments. Amend, or permit any of its Subsidiaries to
amend, its certificate of incorporation or bylaws in any manner that could
be reasonably expected to be adverse to the Lenders of the Loan Parties.
(h) Accounting Changes. 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
Global'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 Global shall promptly provide written notice to the
Lenders and the Agents 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 Global 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 Section 5.04 or the
restrictions contained in Section 5.02 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 Global 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 Global and the Required Banks.
(i) Amendment, Etc. of Related Documents. 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 any Loan Party thereunder or that would materially
impair the interests or materially impair the rights of any Agent or any
Lender.
(j) Negative Pledge. Enter into or suffer to exist, or permit any
of its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon
any of its property or assets other than in favor of the Agents and the
Lenders other than (i) agreements to which a Loan Party or any Subsidiary
of a Loan Party is a party on the date hereof that, as of the date hereof,
contain such a prohibition or condition, (ii) the Certificate of
Designation with respect to the Vigoro Series E Preferred Stock, (iii) any
agreement or indenture evidencing the Debt permitted under Section
5.02(b)(i) and (iv) any agreement or indenture evidencing Debt of Global
issued in a public offering or under Rule 144a of the Securities Act of
1933, as amended, to the extent such agreement or indenture provides that
the Debt thereunder shall be equally and ratably secured upon the creation
or granting of certain liens or security interests.
(k) Partnerships. 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 shall have occurred
and be continuing.
(l) Maintenance of Ownership of Subsidiaries. Sell or otherwise
dispose of any shares of Voting Stock of any Relevant Subsidiary of the
U.S. Borrower (other than (i) the contribution of the Voting Stock of
Kalium and/or CCP to the IMC Global Potash Holdings and (ii) the sale or
other disposition by Kalium Canada, Ltd. of 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 of the U.S.
Borrower to issue, sell or otherwise dispose of any shares of its Voting
Stock or the Voting Stock of any other Relevant Subsidiary of the U.S.
Borrower (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.
Section 5.03. Reporting Requirements. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender shall
have any Commitment hereunder, the U.S. Borrower will furnish to the Lenders:
(a) Default Notice. As soon as possible and in any event within two
days after any Loan Party becomes aware that any Default has occurred and
such Default is continuing on the date of such statement, a statement of
the treasurer or chief financial officer of Global setting forth details
of such Default and the action that Global has taken and proposes to take
with respect thereto.
(b) Quarterly Financials. As soon as available and in any event
within 50 days after the end of each of the first three quarters of each
fiscal year of Global, Consolidated balance sheets of Global and its
Subsidiaries as of the end of such quarter and Consolidated statements of
income and cash flows of Global and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with the end
of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding period of the preceding fiscal
year, all in reasonable detail and duly certified (subject to year-end
audit adjustments) by the treasurer or chief financial officer of Global
as having been prepared in accordance with U.S. GAAP, together with (i) a
certificate of said officer stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a statement as
to the nature thereof and the action that Global has taken and proposes to
take with respect thereto and (ii) a schedule in form satisfactory to the
Agents of the computations used by Global in determining compliance with
the covenants contained in Section 5.04.
(c) Annual Financials. As soon as available and in any event within
95 days after the end of each fiscal year of Global, (i) a copy of the
annual audit report for such year for Global and its Subsidiaries,
including therein Consolidated balance sheets of Global and its
Subsidiaries as of the end of such fiscal year and Consolidated statements
of income and cash flows of Global and its Subsidiaries for such fiscal
year, in each case accompanied by an opinion acceptable to the Required
Lenders of the independent public accountants of Global, who shall be of
recognized standing acceptable to the Required Lenders and (ii) a
Consolidated unaudited balance sheet of Global Operations, KCL Holdings,
IMC Global Potash Holdings and the Joint Venture Company and its
Subsidiaries and of the Joint Venture Company as of the end of such fiscal
year and Consolidated unaudited statements of income and cash flows of
such Borrower and its Subsidiaries and of the Joint Venture Company for
such fiscal year, together with (A) a certificate of such accounting firm
to the Lenders stating that in the course of the regular audit of the
business of Global and its Subsidiaries, which audit was conducted by such
accounting firm in accordance with generally accepted auditing standards,
such accounting firm has obtained no knowledge that a Default has occurred
and is continuing, or if, in the opinion of such accounting firm, a
Default has occurred and is continuing, a statement as to the nature
thereof, (B) a schedule in form satisfactory to the Agents of the
computations used by such accountants in determining, as of the end of
such fiscal year, compliance with the covenants contained in Section 5.04
and (C) a certificate of the treasurer or chief financial officer of
Global stating that no Default has occurred and is continuing or, if a
default has occurred and is continuing, a statement as to the nature
thereof and the action that Global has taken and proposes to take with
respect thereto.
(d) ERISA Events. Promptly and in any event within 20 days after
any Loan Party or any of its ERISA Affiliates knows or has reason to know
that any ERISA Event with respect to any Loan Party or any of its ERISA
Affiliates that has resulted or is reasonably likely to result in a
liability of any Loan Party or any of its ERISA Affiliates in excess of
$1,000,000 has occurred, a statement of the treasurer or chief financial
officer of Global describing such ERISA Event and the action, if any, that
such Loan Party or such ERISA Affiliate has taken and proposes to take
with respect thereto.
(e) Plan Terminations. Promptly and in any event within 10 Business
Days after receipt thereof by any Loan Party or any of its ERISA
Affiliates, copies of each notice from the PBGC stating its intention to
terminate any Plan of such Loan Party or any of its ERISA Affiliates or to
have a trustee appointed to administer any such Plan.
(f) Plan Annual Reports. Promptly and in any event within 30 days
after the filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
with respect to each Plan of each Loan Party or any of its ERISA
Affiliates.
(g) Multiemployer Plan Notices. Promptly and in any event within 10
Business Days after receipt thereof by any Loan Party or any of its ERISA
Affiliates from the sponsor of a Multiemployer Plan of any Loan Party or
any of its ERISA Affiliates, copies of each notice concerning (i) the
imposition of Withdrawal Liability in excess of $1,000,000 by any such
Multiemployer Plan, (ii) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such Multiemployer Plan that has
resulted or is reasonably likely to result in a liability of any Loan
Party or any of its ERISA Affiliates in excess of $1,000,000 or (iii) the
amount of liability incurred, or that may be incurred, by such Loan Party
or any of its ERISA Affiliates in connection with any event described in
clause (i) or (ii).
(h) Litigation. Promptly after the commencement thereof, notice of
all actions, suits, investigations, litigation and proceedings before any
court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting any Loan Party or any
Subsidiary of any Loan Party of the type described in Section 4.01(j) that
could be reasonably likely to have a Material Adverse Effect or in which
the relief requested (if successful) would require the payment by any Loan
Party or any Subsidiary of any Loan Party of an amount in excess of any
amount in excess of 5% of the book value of the Consolidated assets of
Global and its Subsidiaries or more, and promptly after the occurrence
thereof, notice of any material adverse change in the status or the
financial effect on any Loan Party or any Subsidiary of any Loan Party of
the Disclosed Litigation from that described in Exhibit B to the
Disclosure Letter.
(i) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and reports
that any Loan Party or any Subsidiary of any Loan Party sends to its
stockholders in a general distribution, and copies of all regular,
periodic and special reports, and all registration statements, that any
Loan Party or any Subsidiary of any Loan Party files with the Securities
and Exchange Commission or any governmental authority that may be
substituted therefor, or with any national securities exchange (other than
any such reports to which the Securities and Exchange Commission accords
confidential treatment).
(j) Agreement Notices. Promptly upon receipt thereof, (i) copies of
all notices of breach or default and any other notices or requests, the
substance of which could materially impair the value of the interests or
materially impair rights of any Loan Party or any Subsidiary of any Loan
Party or could materially impair the interests or materially impair the
rights of any Agent or any Lender received by either Loan Party or any of
its Subsidiaries under or pursuant to any Related Document (ii) copies of
all notices of breach or default received by any Loan Party or any of its
Subsidiaries under or pursuant to any Related Document the impact of which
could reasonably be expected to materially impair the value of the
interests or materially impair the rights of any Loan Party and, (iii)
from time to time upon request by any Agent, such information and reports
regarding the Related Documents and the Related Documents as such Agent
may reasonably request.
(k) Environmental Matters. Promptly upon the chief executive
officer, chief operating officer, president, vice president, chief
financial officer, treasurer, assistant treasurer or any other senior
financial officer or legal officer of Global obtaining knowledge thereof,
notice of any of the following environmental matters: (i) any pending or
threatened Environmental Claim against Global or any of its Subsidiaries
or any real property owned or at any time operated by Global or any of its
Subsidiaries; (ii) any condition or occurrence on, arising from or related
to any real property owned or at any time operated by Global or any of its
Subsidiaries that (a) results in non-compliance by Global or any of its
Subsidiaries with any applicable Environmental Law or (b) could be
reasonably anticipated to form the basis of an Environmental Claim against
Global or any of its Subsidiaries or any such real property; (iii) any
condition or occurrence on, arising from, or related to any real property
owned or at any time operated by Global or any of its Subsidiaries that
could be reasonably anticipated to cause such real property to be subject
to any restrictions on the ownership, occupancy, use or transferability of
such real property under any Environmental Law; and (iv) the taking of any
removal or remedial action in response to the actual or alleged presence
of any Hazardous Material on any real property owned or at any time
operated by Global or any of its Subsidiaries as required by any
Environmental Law or any governmental or other administrative agency;
unless the Environmental Claims, conditions, occurrences, non-compliances,
restrictions and removal or remedial actions described in the preceding
clauses (i), (ii), (iii) and (iv) could not, individually or in the
aggregate, be reasonably expected to have a material adverse effect on the
ability of the Loan Parties to perform their Obligations under the Loan
Documents from the date hereof through the Termination Date. All such
notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and
Global's or such Subsidiary's response thereto and with respect to such
matters Global, at the request of the Required Banks, will provide the
U.S. Administrative Agent for distribution to the Banks and Agents with
copies of all material communications by Global or any of its Subsidiaries
with any Person (including any government or governmental agency), other
than such communications or reports between Global or any of its
Subsidiaries and their counsel to the extent same are subject to
attorney-client privilege.
(l) Amendment, Etc. of Related Documents. Promptly after the
execution or occurrence thereof, copies of any amendment, modification or
supplement of any Related Documents including, without limitation, any
waiver or consent given thereunder.
(m) Canadian Pension Plans. Promptly and in any event within 20
days after any Loan Party knows or has any reason to know that any of the
representations and warranties regarding Canadian Plans referred to in
Section 4.01(u) is no longer accurate and that the event causing such
inaccuracy has resulted or is reasonably likely to result in a liability
to any Canadian Borrower in excess of $7,500,000, a statement of the
treasurer of chief financial officer of Global describing such event and
the action, if any, that such Canadian Borrower has taken and proposes to
take with respect thereto.
(n) Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of Global or any of its Subsidiaries as any Agent
or any Lender may from time to time reasonably request.
Section 5.04. Financial Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender shall
have any Commitment hereunder, Global will:
(a) Tangible Net Worth. Maintain at the end of each fiscal quarter
of Global 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
Global and its Subsidiaries for each fiscal quarter of Global commencing
April 1, 1996 and (iii) the amount, if any, of equity resulting from the
conversion of Global's 6.25% Convertible Subordinated Notes due 2001 into
equity.
(b) Interest Coverage Ratio. Maintain at the end of each fiscal
quarter of Global a ratio of (x) an amount equal to (i) Consolidated
EBITDA of Global and its Subsidiaries less (ii) income from minority
interests held by Global 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 Global 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 Global 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 Global and its Subsidiaries on
hand at such time to (ii) Capitalization, in each case, of Global and its
Subsidiaries of not more than 0.55:1.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) (i) any Borrower shall fail to pay any principal of any Advance
when the same becomes due and payable, (ii) any Borrower shall fail to pay
any interest on any Advance within five Business Days of the date such
interest becomes due and payable, or (iii) any Loan Party shall fail to
make any other payment under any Loan Document within five Business Days
of the date such payment becomes due and payable; or
(b) any representation or warranty made by any Loan Party (or any of
its officers) under or in connection with any Loan Document shall prove to
have been incorrect in any material respect when made; or
(c) any Borrower shall fail to perform or observe any term, covenant
or agreement contained in Section 5.01(d), 5.01(k), 5.02, 5.03(a) or 5.04;
or
(d) any Loan Party shall fail to perform any other term, covenant or
agreement contained in any Loan Document on its part to be performed or
observed and (i) such failure shall remain unremedied for 30 Business Days
after written notice thereof shall have been given to such Borrower by the
Appropriate Administrative Agent or any Lender or (ii) any such failure
shall not be remedied within 30 Business Days after any Responsible
Officer of Global obtains actual knowledge thereof; or
(e) any Loan Party or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in
respect of any Debt that is outstanding in a principal amount of at least
$15,000,000 in the aggregate (but excluding Debt outstanding hereunder) of
such Loan Party or such Subsidiary (as the case may be), when the same
becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist under any agreement or instrument relating
to any such Debt and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such
event or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt or otherwise to cause, or to permit the holder
thereof to cause, such Debt to mature; or any such Debt shall be declared
to be due and payable or required to be prepaid or redeemed (other than by
a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(f) any Loan Party or any of its Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against any Loan Party or any of its Subsidiaries seeking to adjudicate it
a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee, or other
similar official for it or for any substantial part of its property and,
in the case of any such proceeding instituted against it (but not
instituted by it) that is being diligently contested by it in good faith,
either such proceeding shall remain undismissed or unstayed for a period
of 60 days or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or any substantial part of its property) shall occur; or any Loan
Party or any of its Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (f); or
(g) any judgment or order for the payment of money in excess of
$15,000,000 (calculated after deducting therefrom any amount that will be
paid by any insurer rated at least A+ by A.M. Best Company to the extent
such insurer has been notified of, and has not disputed the claim made for
payment of, the amount of such judgment or order) shall be rendered
against any Loan Party or any of its Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor upon
such judgment or order or (ii) there shall be any period of 10 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered against any
Loan Party or any of its Subsidiaries that could reasonably be expected to
have a Material Adverse Effect, and there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(i) any provision of any Loan Document, the invalidity of which
could materially adversely affect the rights and remedies of the Lenders,
after delivery thereof pursuant to Article III or Section 5.01(l) shall
for any reason cease to be valid and binding on or enforceable against any
Loan Party party to it, or either such Loan Party shall so state in
writing; or
(j) (i) 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 Global (or other
securities convertible into such Voting Stock) representing 35% or more of
the combined voting power of all Voting Stock of Global; or (ii) 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 Global shall cease for any reason (other than due to
death or disability) to constitute a majority of the board of directors of
Global, 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 Global or (y) nominated for
election by a majority of the remaining members of the board of directors
of Global and thereafter elected as directors by the shareholders of
Global; or (iii) 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 has resulted in its or their acquisition of,
control over Voting Stock of Global (or other securities convertible into
such securities) representing 35% or more of the combined voting power of
all Voting Stock of Global; or
(k) any ERISA Event shall have occurred with respect to a Plan of
any Loan Party or any of its ERISA Affiliates and the sum (determined as
of the date of occurrence of such ERISA Event) of the Insufficiency of
such Plan and the Insufficiency of any and all other Plans of the Loan
Parties and their ERISA Affiliates with respect to which an ERISA Event
shall have occurred and then exist (or the liability of the Loan Parties
and their ERISA Affiliates related to such ERISA Event) exceeds
$15,000,000; or
(l) any Loan Party or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan of any Loan Party or any
of its ERISA Affiliates that it has incurred Withdrawal Liability to such
Multiemployer Plan in an amount that, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Loan Parties and
their ERISA Affiliates as Withdrawal Liability (determined as of the date
of such notification), exceeds $15,000,000 or requires payments exceeding
$3,000,000 per annum; or
(m) any Loan Party or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan of any Loan Party or any
of its ERISA Affiliates that such Multiemployer Plan is in reorganization
or is being terminated, within the meaning of Title IV of ERISA, and as a
result of such reorganization or termination the aggregate annual
contributions of the Loan Parties and their ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $3,000,000;
then, and in any such event, the U.S. Administrative Agent (i) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Borrowers, declare the obligation of each Appropriate Lender to make Advances
(other than Letter of Credit Advances by an Issuing Bank or an RC Lender
pursuant to Section 2.13(c) and Swing Line Advances by a U.S. RC Lender
pursuant to Section 2.02(b)) and of any Issuing Bank to issue Letters of Credit
to be terminated, whereupon the same shall forthwith terminate, and (ii) shall
at the request, or may with the consent, of the Required Lenders, (A) by notice
to the Borrowers, declare the Notes, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest
or further notice of any kind, all of which are hereby expressly waived by each
Borrower and (B) by notice to each party required under the terms of any
agreement in support of which a Letter of Credit is issued, request that all
Obligations under such agreement be declared to be due and payable; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to any Loan Party under the Federal Bankruptcy Code, (x) the
obligation of each Lender to make Advances (other than Letter of Credit
Advances by an Issuing Bank or an RC Lender pursuant to Section 2.13(c) and
Swing Line Advances by a U.S. RC Lender pursuant to Section 2.02(b)) and of
each Issuing Bank to issue Letters of Credit shall automatically be terminated
and (y) the Notes, all such interest and all such amounts shall automatically
become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by each Borrower.
Section 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Appropriate Administrative Agent may, irrespective of whether it is taking any
of the actions described in Section 6.01 or otherwise, make demand upon the
Borrowers to, and forthwith upon such demand the Borrowers will, pay to the
Appropriate Administrative Agent on behalf of the Lenders in same day funds at
the Administrative Agent's office designated in such demand, for deposit in a
non-interest bearing cash collateral account in the name of such Borrower but
under the sole control and dominion of the Appropriate Administrative Agent and
subject to the terms of this Agreement (the "L/C Cash Collateral Account"), an
amount equal to the aggregate Available Amount of all Letters of Credit then
outstanding. If at any time the Appropriate Administrative Agent determines
that any funds held in the L/C Cash Collateral Account are subject to any right
or claim of any Person other than the Agents and the Lenders or that the total
amount of such funds is less than the aggregate Available Amount of all Letters
of Credit, such Borrower will, forthwith upon demand by such Administrative
Agent, pay to such Administrative Agent, as additional funds to be deposited
and held in the L/C Cash Collateral Account, an amount equal to the excess of
(a) such aggregate Available Amount over (b) the total amount of funds, if any,
then held in the L/C Cash Collateral Account that such Administrative Agent
determines to be free and clear of any such right and claim.
ARTICLE VII
GUARANTY
Section 7.01. Guaranty. (a) Global hereby unconditionally and
irrevocably guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all Obligations of Global Operations
and each Canadian Borrower now or hereafter existing under the Loan Documents,
whether for principal, interest, fees, expenses or otherwise (such Obligations
being such Guarantor's "Parent Guaranteed Obligations"), and agrees to pay any
and all expenses (including reasonable counsel fees and expenses) incurred by
any Agent or any Lender in enforcing any rights under such Guaranty.
(b) (i) Each Subsidiary Guarantor (except Kalium) hereby
unconditionally and irrevocably guarantees the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all Obligations of
Global now or hereafter existing under the Loan Documents, whether for
principal, interest, fees, expenses or otherwise (such Obligations being such
Guarantor's "Guaranteed U.S. Obligations"), and agrees to pay any and all
expenses (including reasonable counsel fees and expenses) incurred by any Agent
or any Lender in enforcing any rights under such Guaranty.
(ii) Kalium hereby unconditionally and irrevocably guarantees the
punctual payment when due, whether at stated maturity, by acceleration or
otherwise, of all Obligations of Kalium Chemicals, Ltd., a Delaware corporation
and of KCL Holdings, Inc., a Delaware corporation, now or hereafter existing
under the Loan Documents, whether for principal, interest, fees, expenses or
otherwise (such Obligations being Kalium's "Guaranteed Canadian Obligations"
and together with the Parent Guaranteed Obligations and the Guaranteed U.S.
Obligations, the "Guaranteed Obligations"), and agree to pay any and all
expenses (including reasonably counsel fees and expenses) incurred by any Agent
or any Lender in enforcing any rights under such Guaranty.
(iii) The liability of any Subsidiary Guarantor (except Kalium)
under this Guaranty shall not exceed the greater of (A) the net benefit
realized by such Subsidiary Guarantor from the proceeds of the advances made
from time to time by the Borrowers to such Subsidiary Guarantor or any
Subsidiary of such Subsidiary Guarantor and (B) the greater of (x) 95% of the
"Adjusted Net Assets" (as defined below) of such Subsidiary Guarantor on the
date of delivery hereof and (y) 95% of the Adjusted Net Assets of such
Subsidiary Guarantor on the date of any payment hereunder. "Adjusted Net
Assets" of a Subsidiary Guarantor at any date means the lesser of (x) the
amount by which the fair value of the property of such Subsidiary Guarantor
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities, but excluding liabilities under this Guaranty, of such
Subsidiary Guarantor at such date and (y) the amount by which the present fair
salable value of the assets of such Subsidiary Guarantor at such date exceeds
the amount that will be required to pay the probable liability of such
Subsidiary Guarantor on its debts, excluding debt in respect of this Guaranty,
as they become absolute and matured.
(c) Without limiting the generality of the foregoing, each
Guarantor's liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by the Borrowers to the Agents or the
Lenders under the Loan Documents but for the fact that they are unenforceable
or not allowable due to the existence of a bankruptcy, reorganization or
similar proceeding involving such Borrower.
Section 7.02. Guaranty Absolute. Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
the Loan Documents, regardless of any law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of the
Agents or the Lenders with respect thereto. The Obligations of each Guarantor
under this Guaranty are independent of the Guaranteed Obligations or any other
Obligations of any Loan Party under the Loan Documents, and a separate action
or actions may be brought and prosecuted against such Guarantor to enforce this
Guaranty, irrespective of whether any action is brought against any Borrower or
whether any Borrower is joined in any such action or actions. The liability of
such Guarantor under this Guaranty shall be irrevocable, absolute and
unconditional irrespective of, and each Guarantor hereby irrevocably waives to
the extent permitted by applicable law any defenses it may now or hereinafter
have in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document or
any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under the Loan Documents, or any other
amendment or waiver of or any consent to departure from any Loan Document,
including, without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to any Borrower or any
of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any manner of application of collateral, or proceeds thereof, to
all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Guaranteed Obligations
or any other Obligations of any other Loan Party under the Loan Documents
or any other assets of any Borrower or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Borrower or any of its Subsidiaries; or
(f) any other circumstance or any existence of or reliance on any
representation by any Agent or any Lender that might otherwise constitute
a defense available to, or a discharge of, any Borrower, any Guarantor or
any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated (provided no such
reinstatement shall occur after the Release Date with respect to any Subsidiary
Guarantor (except Global Operations) and after the Operations Release Date with
respect to Global Operations), as the case may be, if at any time any payment
of any of the Guaranteed Obligations made, with respect to the Subsidiary
Guarantors (except Global Operations), prior to the Release Date and with
respect to Global Operations prior to the Operations Release Date, is rescinded
or must otherwise be returned by any Agent or any Lender upon the insolvency,
bankruptcy or reorganization of any Borrower or otherwise, all as though such
payment had not been made.
Section 7.03. Waiver. Each Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations and this Guaranty and any requirement that any Agent or
any Lender protect, secure, perfect or insure any Lien on any property subject
thereto or exhaust any right or take any action against any Borrower or any
other Person or any collateral. Each Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waiver set forth in this
Section 7.03 is knowingly made in contemplation of such benefits.
Section 7.04. Payments Free and Clear of Taxes, Etc. (a) Any and
all payments made by or on behalf of any Guarantor hereunder shall be made, in
accordance with Section 2.11, free and clear of and without deduction for any
and all present or future Taxes. If any Person shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder to any Lender
or any Agent, (i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) such Lender or such Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) such Person shall make such deductions and
(iii) such Person shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, each Guarantor agrees to pay any present or future
Other Taxes.
(c) Each Guarantor will indemnify each Lender and each Agent for the
full amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed by any jurisdiction on amounts payable under this
Section) imposed on or paid by such Lender or such Agent (as the case may be)
and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within
30 days from the date such Lender or such Agent (as the case may be) makes
written demand therefor.
(d) Within 30 days after the date of any payment of Taxes by a
Guarantor, such Guarantor will furnish to the Appropriate Administrative Agent,
at its address referred to in Section 9.02, appropriate evidence of payment
thereof. In the case of any payment hereunder by such Guarantor through an
account or branch outside the United States, in the case of the U.S. Borrowers,
or outside Canada, in the case of a Canadian Borrower, or by or on behalf of
such Guarantor by a payor that is not a United States person or a person
Resident in Canada, as the case may be, such Guarantor will furnish, or will
cause such payor to furnish, to the Appropriate Administrative Agent, at such
address, a certificate from each appropriate taxing authority or authorities or
an opinion of counsel reasonably acceptable to the Appropriate Administrative
Agent, in either case stating that such payment is exempt from or not subject
to Taxes.
(e) Without prejudice to the survival of any other agreement of any
Guarantor hereunder, the agreements and obligations of each Guarantor contained
in this Section 7.04 shall (i) in the case of Global, survive the payment in
full of the Guaranteed Obligations and all other amounts payable under this
Guaranty, (ii) in the case of the Subsidiary Guarantors, survive until the
Release Date and (iii) with respect to Global Operations, survive until the
Operations Release Date.
Section 7.05. Continuing Guaranty; Assignments. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until, (i) in
the case of Global, the later of the indefeasible cash payment in full of the
Guaranteed Obligations and the Termination Date, (ii) in the case of Global
Operations, the Operations Release Date and (iii) in the case of each
Subsidiary Guarantor (other than Global Operations), the Release Date, (b) be
binding upon each Guarantor, its successors and assigns and (c) inure to the
benefit of and be enforceable by the Lenders, the Agents and their successors,
transferees and assigns. Without limiting the generality of the foregoing
clause (c), any Lender may assign or otherwise transfer all or any portion of
its rights and obligations hereunder (including, without limitation, all or any
portion of its Commitment, the Advances owing to it and the Note or Notes held
by it) to any Eligible Assignee, and such Eligible Assignee shall thereupon
become vested with all the benefits in respect thereof granted to such Lender
herein or otherwise, in each case as provided in Section 9.07.
Section 7.06. Subrogation. No Guarantor will exercise any rights
that it may now or hereafter acquire against any Borrower or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
any Guarantor's Obligations under this Agreement or any other Loan Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in
any claim or remedy of any Agent or any Lender against any Borrower or any
other insider guarantor or any collateral, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from any Borrower or any other
insider guarantor, directly or indirectly, in cash or other property or by
setoff or in any other manner, payment or security on account of such claim,
remedy or right, unless and until all of the Obligations and all other amounts
payable under this Guaranty shall have been paid in full in cash and the
Commitments shall have expired or terminated. If any amount shall be paid to
any Guarantor in violation of the preceding sentence at any time prior to the
later of the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Guaranty and the Termination Date, such amount
shall be held in trust for the benefit of the Agents and the Lenders and shall
forthwith be paid to the U.S. Administrative Agent to be credited and applied
to the Guaranteed Obligations and all other amounts payable under this
Guaranty, whether matured or unmatured, in accordance with the terms of the
Loan Documents, or to be held as collateral for any Guaranteed Obligations or
other amounts payable under this Guaranty thereafter arising. If (i) any
Guarantor shall make payment to any Agent or any Lender of all or any part of
the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all
other amounts payable under this Guaranty shall be paid in full in cash and
(iii) the Termination Date shall have occurred, the Agents and the Lenders
will, at such Guarantor's request and expense, execute and deliver to such
Guarantor appropriate documents, without recourse and without representation or
warranty, necessary to evidence the transfer by subrogation to such Guarantor
of an interest in the Guaranteed Obligations resulting from such payment by
such Guarantor.
Section 7.07. Release of Subsidiary Guarantors. The U.S.
Administrative Agent is authorized on behalf of each of the Agents and the
Lenders to execute a release evidencing the termination of the Subsidiary
Guarantors' Obligations under this Article VII and the permanent release of the
guarantees of such Subsidiary Guarantors hereunder (a) in the case of Global
Operations, at any time or after the Operations Release Date and (b) in the
case of the other Subsidiary Guarantors, at any time on or after the Release
Date. Unless on or prior to the date on which Global receives a rating of BBB-
or above from S&P or Baa3 or above from Moody's on any class of Global's non-
credit enhanced long-term senior unsecured Debt, the Borrowers or any Lender
shall have notified the U.S. Administrative Agent (and in the case of any
Lender, such notice has also been sent to Global by such Lender or by the U.S.
Administrative Agent) in writing that a Default has occurred, the U.S.
Administrative Agent shall have no liability in executing any such release of
the Subsidiary Guarantors on or after such date. The U.S. Administrative Agent
will, at Global's request and expense, timely execute and deliver to Global
appropriate release documents necessary to evidence the release and termination
of each of the Subsidiary Guarantors from all of its Obligations under this
Article VII, (a) in the case of Global Operations, at any time or after the
Operations Release Date and (b) in the case of the other Subsidiary Guarantors,
at any time on or after the Release Date.
ARTICLE VIII
THE AGENTS
Section 8.01. Authorization and Action. Each Lender (in its
capacity as a Lender, a Swing Line Bank (if applicable) and an Issuing Bank (if
applicable)) hereby appoints and authorizes each Agent to take such action as
agent on its behalf and to exercise such powers and discretion under this
Agreement and the other Loan Documents as are delegated to such Agent by the
terms hereof and thereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
the Loan Documents (including, without limitation, enforcement or collection of
the Notes), no Agent shall be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions
of the Required Lenders, and such instructions shall be binding upon all
Lenders and all holders of Notes; provided, however, that no Agent shall be
required to take any action that exposes any of them to personal liability or
that is contrary to this Agreement or applicable law. Each Agent agrees to
give to each Lender and to each other Agent prompt notice of each notice given
to it by any Borrower pursuant to the terms of this Agreement.
Section 8.02. Agents' Reliance, Etc. No Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken
or omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, each Agent: (i) may
treat the payee of any Note as the holder thereof until the Administrative
Agent receives and accepts an Assignment and Acceptance entered into by the
Lender that is the payee of such Note, as assignor, and an Eligible Assignee,
as assignee, as provided in Section 9.07; (ii) may consult with legal counsel
(including counsel for any Loan Party), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (iii) make no warranty or representation to
any Lender and shall not be responsible to any Lender for any statements,
warranties or representations made in or in connection with the Loan Documents;
(iv) shall not have any duty to ascertain or to inquire as to the performance
or observance of any of the terms, covenants or conditions of any Loan Document
on the part of either Loan Party or to inspect the property (including the
books and records) of either Loan Party; (v) shall not be responsible to any
Lender for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Loan Document or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in
respect of any Loan Document by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telegram, telecopy, cable or
telex) believed by it to be genuine and signed or sent by the proper party or
parties.
Section 8.03. Citibank, NationsBanc and Affiliates. With respect to
its Commitments, the Advances made by it and the Note issued to it, Citibank
and NationsBanc shall have the same rights and powers under the Loan Documents
as any other Lender and may exercise the same as though it were not an Agent;
and the term "Lender" or "Lenders" shall, unless otherwise expressly indicated,
include Citibank and NationsBanc in their respective individual capacities.
Citibank and NationsBanc and their respective affiliates may accept deposits
from, lend money to, act as trustee under indentures of, accept investment
banking engagements from and generally engage in any kind of business with,
either Loan Party, any of its Subsidiaries and any Person who may do business
with or own securities of either Loan Party or any such Subsidiary, all as if
Citibank and NationsBanc were not Agents and without any duty to account
therefor to the Lenders.
Section 8.04. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon any Agent or any other Lender
and based on the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon any Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
Section 8.05. Indemnification. Each Lender (other than the
Designated Bidders) severally agrees to indemnify each Agent (to the extent not
promptly reimbursed by the Borrowers) from and against such Lender's ratable
share of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against such
Agent in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Agent under the Loan Documents; provided, however,
that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender (other
than the Designated Bidders) agrees to reimburse each Agent promptly upon
demand for its ratable share of any costs and expenses payable by any Borrower
under Section 9.04, to the extent that such Agent is not promptly reimbursed
for such costs and expenses by the Borrowers. For purposes of this Section
8.05, the Lenders' respective ratable shares of any amount shall be determined,
at any time, according to the sum of (a) the aggregate principal amount of the
Regular Advances outstanding at such time and owing to the respective Lenders,
(b) their respective Pro Rata Shares of the aggregate Available Amount of all
Letters of Credit outstanding at such time, (c) the aggregate unused portions
of their Term Commitments at such time plus (d) their respective Unused RC
Commitments at such time. In the event that any Defaulted Advance shall be
owing by any Defaulting Lender at any time, such Lender's Commitment with
respect to the Facility under which such Defaulted Advance was required to have
been made shall be considered to be unused for purposes of this Section 8.05 to
the extent of the amount of such Defaulted Advance. The failure of any Lender
to reimburse any Agent promptly upon demand for its ratable share of any amount
required to be paid by the Lenders to such Agent as provided herein shall not
relieve any other Lender of its obligation hereunder to reimburse such Agent
for its ratable share of such amount, but no Lender shall be responsible for
the failure of any other Lender to reimburse such Agent for such other Lender's
ratable share of such amount.
Section 8.06. Successor Agents. Any Agent may resign at any time by
giving 30 days' written notice thereof to the Lenders and the Borrowers and may
be removed as such Agent at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Agent, subject, so long as no Default under
Section 6.01(a), (c) (with respect to Section 5.04) or (f) shall have occurred
and be continuing, to consent by Global of such appointment (which consent
shall not be unreasonably withheld or delayed). If no successor Agent shall
have been so appointed by the Required Lenders and, if applicable, consented to
by Global, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, subject, so long as no Default shall have
occurred and be continuing, to consent by Global of such appointment (which
consent shall not be unreasonably withheld or delayed) which shall be a
commercial bank organized under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least $250,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Agent and the
retiring Agent shall be discharged from its duties and obligations under the
Loan Documents. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article VIII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent, under this
Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes or the Subordination Agreement, nor
consent to any departure by any Loan Party therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Required
Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that (a) no amendment, waiver or consent shall, unless in writing and
signed by all of the Lenders (other than any Lender Party that is, at such
time, a Defaulting Lender and the Designated Bidders), do any of the following
at any time: (i) waive any of the conditions specified in Section 3.01 or 3.02
or, in the case of the Initial Extension of Credit, Section 3.03, (ii) change
the number of Lenders or the percentage of (x) the Commitments, (y) the
aggregate unpaid principal amount of the Advances or (z) the aggregate
Available Amount of outstanding Letters of Credit that, in each case, shall be
required for the Lenders or any of them to take any action hereunder, (iii)
reduce or limit the obligations of any Guarantor under Section 7.01 of the
Guaranty or otherwise limit the Guarantor's liability with respect to the
Obligations owing to the Agents and the Lenders or (iv) amend this Section 9.01
and (b) no amendment, waiver or consent shall, unless in writing and signed by
the Required Lenders and each Lender that has a Commitment under the Term
Facility, the U.S. RC Facility or the Canadian RC Facility if affected by such
amendment, waiver or consent, (i) increase the Commitments of such Lender or
subject such Lender to any additional obligations, (ii) reduce the principal
of, or interest on, the Notes held by such Lender or any fees or other amounts
payable hereunder to such Lender or (iii) postpone any date fixed for any
payment of principal of, or interest on, the Notes held by such Lender or any
fees or other amounts payable hereunder to such Lender; provided further that
no amendment, waiver or consent shall, unless in writing and signed by each
Swing Line Bank or each Issuing Bank, as the case may be, in addition to the
Lenders required above to take such action, affect the rights or obligations of
the Swing Line Banks or of the Issuing Banks, as the case may be, under this
Agreement; and provided further that no amendment, waiver or consent shall,
unless in writing and signed by any Agent in addition to the Lenders required
above to take such action, affect the rights or duties of such Agent under this
Agreement.
Section 9.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy,
telex or cable communication) and mailed, telegraphed, telecopied, telexed,
cabled or delivered, if to:
(a) any Loan Party, c/o Global, at its address at 2100 Sanders Road,
Northbrook, Illinois 60062, Attention: Treasurer;
(b) any Initial Lender, at its Domestic Lending Office specified
opposite its name on Schedule I hereto;
(c) any other Lender, at (i) its Domestic Lending Office specified
in the Assignment and Acceptance pursuant to which it became a Lender or
(ii) at the notice address specified in the Designation Agreement pursuant
to which it became a Lender in the case of a Designated Bidder;
(d) the U.S. Administrative Agent, at its address at 399 Park
Avenue, New York, New York 10043, Attention: Philip Green; and
(e) the Canadian Administrative Agent, at its address at Citibank
Place, 123 Front Street, West, Toronto, Ontario, M5J 2M3, Attention: Lita
Pulumbarit;
or, as to each party, at such other address as shall be designated by such
party in a written notice to the other parties. All such notices and
communications shall, when mailed, telegraphed, telecopied, telexed or cabled,
be effective when deposited in the mails, delivered to the telegraph company,
transmitted by telecopier, confirmed by telex answerback or delivered to the
cable company, respectively, except that notices and communications to either
Administrative Agent pursuant to Article II, III or VIII shall not be effective
until received by such Agent.
Section 9.03. No Waiver; Remedies. No failure on the part of any
Lender or any Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 9.04. Costs and Expenses. (a) Global agrees to pay not
later than 20 Business Days after presentation of relevant invoices and backup
information (i) all reasonable costs and expenses of the Administrative Agent
in connection with the preparation, execution, delivery, administration,
modification and amendment of the Loan Documents (including, without
limitation, (A) all due diligence, syndication, transportation, computer,
duplication, appraisal, audit, insurance, consultant, search, filing and
recording fees and expenses (provided that so long as no Default shall have
occurred and be continuing, no such appraisal, audit, insurance or consultant
fees and expenses shall be incurred without the consent of Global) and (B) the
reasonable fees and expenses of Shearman & Sterling and local counsel to
Lenders, counsel for the Administrative Agents with respect thereto, with
respect to advising the Administrative Agents as to their respective rights and
responsibilities, or the perfection, protection or preservation of rights or
interests, under the Loan Documents, with respect to negotiations with any Loan
Party or with other creditors of any Loan Party or any of its Subsidiaries
arising out of any Default or any events or circumstances that may give rise to
a Default and with respect to presenting claims in or otherwise participating
in or monitoring any bankruptcy, insolvency or other similar proceeding
involving creditors' rights generally and any proceeding ancillary thereto) and
(ii) all reasonable costs and expenses of the Agents and the Lenders in
connection with the enforcement of the Loan Documents, whether in any action,
suit or litigation, any bankruptcy, insolvency or other similar proceeding
affecting creditors' rights generally or otherwise (including, without
limitation, the reasonable fees and expenses of counsel for each Agent and each
Lender with respect thereto).
(b) Each Borrower agrees to indemnify and hold harmless each Agent
and each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of, or in connection with the
preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with (i) the transactions
contemplated hereby or (ii) the actual or alleged presence of Hazardous
Materials on any property of any Loan Party or any of its Subsidiaries or any
Environmental Claim relating in any way to any Loan Party or any of its
Subsidiaries, in each case whether or not such investigation, litigation or
proceeding is brought by either Loan Party, its directors, shareholders or
creditors or an Indemnified Party or any Indemnified Party is otherwise a party
thereto and whether or not the transactions contemplated hereby are consummated
(but excluding any such claims, damages, losses, liabilities and expenses (A)
of any Indemnified Party to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct or (B) arising from disputes among two or more Lenders (but
not including any dispute that involves a Lender to the extent that such Lender
is acting in a different capacity (such as Agent) under the Loan Documents or
to the extent it involves the Agents' syndication activities). Each Borrower
also agrees not to assert any claim against any Agent, any Lender, any of their
affiliates, or any of their respective directors, officers, employees,
attorneys and agents, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to any
of the transactions contemplated herein or in any other Loan Document or the
actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance or LIBO Rate Advance is made by any Borrower to or for the account
of a Lender other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.05, 2.08(a)(i) or
(b)(i), 2.09(d) or 2.14(d), acceleration of the maturity of the Notes pursuant
to Section 6.01 or for any other reason, such Borrower shall, upon demand by
such Lender (with a copy of such demand to the Appropriate Administrative
Agent), pay to the Appropriate Administrative Agent for the account of such
Lender any amounts required to compensate such Lender for any additional losses
(excluding loss of anticipated profits), costs or expenses that it may
reasonably incur as a result of such payment or Conversion, including, without
limitation, any loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by any Lender to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by any Agent or any Lender, in its sole
discretion.
(e) Notwithstanding any provision to the contrary in this Agreement
or any of the other Loan Documents, including without limitation any provision
of this Agreement which provides that the Borrowers are jointly and severally
liable to the Lenders for the payment of any amount or the performance of any
obligation hereunder, each of Kalium and IMC Canada shall only be liable to the
Lenders for (i) Borrowings made by it, (ii) all interest, fees and other sums
due hereunder attributable directly to such Borrowings, (iii) in the case of
Kalium, all amounts due hereunder which it has guaranteed pursuant to Article
VII, and (iv) in the case of Kalium, obligations of KCL Holdings, Inc. and
Kalium Chemicals, Ltd. for which it is jointly liable under this Agreement.
Section 9.05. Right of Setoff. Upon (a) the occurrence and during
the continuance of any Event of Default and (b) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the U.S.
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and otherwise apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender or such Affiliate to or for the
credit or the account of any Borrower or any Guarantor against any and all of
the Obligations of each Borrower or each Guarantor now or hereafter existing
under this Agreement and the Note or Notes held by such Lender, irrespective of
whether such Lender shall have made any demand under this Agreement or such
Note or Notes and although such Obligations may be unmatured. Each Lender
agrees promptly to notify the Borrowers or the Guarantors, as the case may be,
after any such setoff and application; provided, however, that the failure to
give such notice shall not affect the validity of such setoff and application.
The rights of each Lender and its Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
setoff) that such Lender and its Affiliates may have.
Section 9.06. Binding Effect. This Agreement shall become effective
(other than Sections 2.01, 2.13 and 2.14, which shall only become effective
upon satisfaction of the conditions precedent set forth in Section 3.01) when
it shall have been executed by each Borrower, each Guarantor, each Agent and
when the U.S. Administrative Agent shall have been notified by each Initial
Lender that such Initial Lender has executed it and thereafter shall be binding
upon and inure to the benefit of each Loan Party each Agent and each Lender and
their respective successors and assigns, except that no Borrower and no
Guarantor shall have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders.
Section 9.07. Assignments, Designations and Participations. (a)
Each Lender (other than the Designated Bidders) may and, if demanded by Global
pursuant to Section 2.17, will assign to one or more banks or other entities
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment or Commitments, the
Regular Advances owing to it and the Note or Notes held by it); provided,
however, that (i) each such assignment shall be of a uniform, and not a
varying, percentage of all rights and obligations under and in respect of one
or more Facilities (other than any right to make Competitive Bid Advances,
Competitive Bid Advances owing to it and Competitive Bid Notes), (ii) except in
the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender (other than a Designated Bidder) or an assignment of
all of a Lender's rights and obligations under this Agreement, the amount of
the Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000 and
shall be an integral multiple of $1,000,000, (iii) each such assignment shall
be to an Eligible Assignee to which Global shall have consented, if required,
and (iv) the parties to each such assignment shall execute and deliver to the
U.S. Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note or Notes subject to such
assignment and a processing and recordation fee of $3,000; and (v) the
Assignment and Acceptance shall contain a representation by the assignee to the
effect that none of the consideration used to make the purchase of the
Commitments, advances and other Obligations under the applicable Assignment and
Acceptance are "plan assets" as defined under ERISA or that an applicable
exemption is available to exempt such purchase from the prohibited transaction
provisions of ERISA and the Internal Revenue Code. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in such Assignment and Acceptance, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease
to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any other instrument
or document furnished pursuant thereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Borrower or any Guarantor or the performance or
observance by any Borrower or any Guarantor of any of its obligations under the
Loan Documents or any other instrument or document furnished pursuant thereto;
(iii) such assignee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in Section 4.01
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance upon
any Agent, such assigning Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes each Agent to take such action as agent
on its behalf and to exercise such powers and discretion under this Agreement
as are delegated to such Agents by the terms hereof, together with such powers
and discretion as are reasonably incidental thereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, together with any Note or Notes subject to
such assignment, the U.S. Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Canadian Administrative Agent and the relevant Borrower. Within five Business
Days after its receipt of such notice, such Borrower, at its own expense, shall
execute and deliver to the U.S. Administrative Agent in exchange for the
surrendered Note or Notes a new Note to the order of such Eligible Assignee in
an amount equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Commitment hereunder, a
new Note to the order of the assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of Exhibit A-1,
A-2 or A-3 hereto, as the case may be.
(d) Each U.S. RC Lender (other than the Designated Bidders) may
designate one or more banks or other entities to have a right to make
Competitive Bid Advances as a Lender pursuant to Section 2.14; provided,
however, that (i) no such Lender shall be entitled to make more than two such
designations, (ii) each such Lender making one or more of such designations
shall retain the right to make Competitive Bid Advances as a Lender pursuant to
Section 2.14, (iii) each such designation shall be to a Designated Bidder, and
other than with respect to any Designated Bidder that is a Lender or an
affiliate of a Lender at least 50% of the Voting Stock of which is owned by
such Lender, Global shall have approved the designation of such Designated
Bidder (such approval not to be unreasonably withheld or delayed) (iv) the
Designated Bidder shall have entered into a Confidentiality Agreement and
(v) the parties to each such designation shall execute and deliver to the U.S.
Administrative Agent, for its acceptance (and Global's approval, if required)
and recording in the Register, a Designation Agreement. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Designation Agreement, the designee thereunder shall be a party hereto
with a right to make Competitive Bid Advances as a Lender pursuant to
Section 2.14 and the obligations related thereto.
(e) By executing and delivering a Designation Agreement, the U.S. RC
Lender making the designation thereunder and its designee thereunder confirm
and agree with each other and the other parties hereto as follows: (i) such
Lender makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any
other instrument or document furnished pursuant hereto; (ii) such Lender makes
no representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrowers or the performance or observance by the
Borrower, of any of its obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such designee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Designation Agreement; (iv) such designee will,
independently and without reliance upon any Agent, such designating Lender or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such designee confirms that it is a
Designated Bidder; (vi) such designee appoints and authorizes the Agents to
take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to such Agents by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such designee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(f) Upon its receipt of a Designation Agreement executed by a
designating Lender and a designee representing that it is a Designated Bidder,
the U.S. Administrative Agent shall, if such Designation Agreement has been
completed and is substantially in the form of Exhibit D hereto, (i) accept such
Designation Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the relevant Borrower.
(g) The U.S. Administrative Agent shall maintain at its address
referred to in Section 9.02 a copy of each Assignment and Acceptance and
Designation Agreement delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders other than Designated
Bidders, the Commitment under each Facility of, and principal amount of the
Advances owing under each Facility of, and principal amount of Advances owing
to each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and
the Loan Parties, the Agents and the Lenders may treat each Person whose name
is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by any Loan Party,
any Agent or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(h) Each Lender may sell participations in or to all or a portion of
its rights and obligations under this Agreement (including, without limitation,
all or a portion of its Commitments, the Advances owing to it and the Note or
Notes held by it); provided, however, that (i) such Lender's obligations under
this Agreement (including, without limitation, its Commitments) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender shall
remain the holder of any such Note for all purposes of this Agreement, (iv) the
Borrowers, the Guarantors, the Agents and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and (v) no participant under any
such participation shall have any right to approve any amendment or waiver of
any provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation and provided, further, that
participations in or to any Canadian RC Commitment, any Canadian RC Advance,
any Letter of Credit issued under the Canadian RC Facility, any Letter of
Credit Advance under the Canadian RC Facility or any of the other rights and
obligations under the Canadian RC Facility may be sold only to a bank listed in
Schedule I or II to the Bank Act (Canada).
(i) Any Lender may, in connection with any assignment, designation
or participation or proposed assignment, designation or participation pursuant
to this Section 9.07, disclose to the assignee, designee or participant or
proposed assignee, designee or participant, any information relating to any
Borrower or any Guarantor furnished to such Lender by or on behalf of such
Borrower or such Guarantor; provided, however, that, prior to any such
disclosure, the assignee, designee or participant or proposed assignee,
designee or participant shall execute and deliver to Global and the U.S.
Administrative Agent a confidentiality agreement (the "Confidentiality
Agreement") substantially in the form attached hereto as Exhibit N, and
otherwise agree to preserve the confidentiality of any Confidential Information
received by it from such Lender.
(j) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
Section 9.08. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
Section 9.09. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 9.10. No Liability of the Issuing Banks. The Borrowers
assume all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
any Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith;
(b) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; (c) payment by such
Issuing Bank against presentation of documents that do not comply with the
terms of a Letter of Credit, including failure of any documents to bear any
reference or adequate reference to the Letter of Credit; or (d) any other
circumstances whatsoever in making or failing to make payment under any Letter
of Credit, except that each Borrower to which a Letter of Credit has been
issued shall have a claim against such Issuing Bank, and such Issuing Bank
shall be liable to such Borrower, to the extent of any direct, but not
consequential, damages suffered by such Borrower that such Borrower proves were
caused by (i) such Issuing Bank's willful misconduct or gross negligence in
determining whether documents presented under any Letter of Credit comply with
the terms of the Letter of Credit or (ii) such Issuing Bank's willful failure
to make lawful payment under a Letter of Credit after the presentation to it of
a draft and certificates strictly complying with the terms and conditions of
the Letter of Credit. In furtherance and not in limitation of the foregoing,
such Issuing Bank may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any
notice or information to the contrary.
Section 9.11. Confidentiality. None of the Agents or the Lenders
shall disclose any Confidential Information to any Person without the consent
of the relevant Borrower or the relevant Guarantor, other than (a) as permitted
pursuant to the Confidentiality Agreement to which such Agent or Lender is a
party, and (b) to any rating agency when required by it, provided that, prior
to such disclosure, such rating agency shall undertake to preserve the
confidentiality of any Confidential Information relating to Global or any of
its Subsidiaries received by it from such Lender. Notwithstanding any term
contained in any Confidentiality Agreement to the contrary, each of the Agents
and Lenders agrees that its obligations under its Confidentiality Agreement
shall not terminate until two years following the payment in full of the
Obligations hereunder and the termination of this Agreement.
Section 9.12. Acknowledgements. Each of the Lenders party to this
Agreement on the Effective Date acknowledge that (i) it has executed a
Confidentiality Agreement and (ii) has received from Global prior to the
Effective Date a summary of the insurance plans set forth as Exhibit D to the
Disclosure Letter and such summary and the coverage described therein as of
such date is satisfactory to the Lenders as of the Effective Date.
Section 9.13. Judgment. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder or under
the Notes in any currency (the "Original Currency") into another currency (the
"Other Currency"), the parties hereto agree, to the fullest extent that they
may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the Original Currency with the Other Currency at 9:00 A.M. (New York
City time) on the first Business Day preceding that on which final judgment is
given.
(b) The obligation of each Borrower in respect of any sum due in the
Original Currency from it to any Lender or any Agent hereunder or under the
Note or Notes held by such Lender shall, notwithstanding any judgment in any
Other Currency, be discharged only to the extent that on the Business Day
following receipt by such Lender or such Agent (as the case may be) of any sum
adjudged to be so due in such Other Currency, such Lender or such Agent (as the
case may be) may in accordance with normal banking procedures purchase Dollars
with such Other Currency; if the amount of Dollars so purchased is less than
the sum originally due to such Lender or such Agent (as the case may be) in the
Original Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or such Agent (as
the case may be) against such loss, and if the amount of Dollars so purchased
exceeds the sum originally due to any Lender or any Agent (as the case may be)
in the Original Currency, such Lender or such Agent (as the case may be) agrees
to remit to such Borrower such excess.
Section 9.14. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
this Agreement or any of the other Loan Documents to which it is a party, or
for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York
State court or, to the extent permitted by law, in such federal court. Each of
the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or any of the other Loan
Documents in the courts of any jurisdiction. Each Canadian Borrower hereby
irrevocably appoints CT Corporation System (the "Process Agent"), with an
office on the date hereof at 1633 Broadway, New York, New York 10019, United
States, as its agent to receive on behalf of such Canadian Borrower and its
property service of copies of the summons and complaint and any other process
which may be served in any such action or proceeding. Such service may be made
by mailing or delivering a copy of such process to the relevant Canadian
Borrower in care of the Process Agent at the Process Agent's above address, and
such Canadian Borrower hereby irrevocably authorizes and directs the Process
Agent to accept such service on its behalf. As an alternative method of
service, each Borrower also irrevocably consents, to the extent permitted by
applicable law, such action or proceeding by sending copies of such process by
mail (by method requiring evidence of receipt) with a second copy to be sent by
courier to such Borrower at its address specified in Section 9.02 or by such
other method as is permitted by applicable law.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any of the
other Loan Documents to which it is a party in any New York State or federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) To the extent that any Loan Party has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution or otherwise) with respect to itself or its property, such Loan Party
hereby irrevocably waives such immunity in respect of its Obligations under
this Agreement, any other Loan Documents or any Related Documents and, without
limiting the generality of the foregoing, agrees that the waivers set forth in
this subsection (c) shall have the fullest scope permitted under the Foreign
Sovereign Immunities Act of 1976 of the United States and are intended to be
irrevocable for purposes of such Act.
Section 9.15. Interest Act (Canada). For purposes of the Interest
Act (Canada), where in any Loan Document (i) a rate of interest is to be
calculated on the basis of a year of 360 days, the yearly rate of interest to
which the 360 day rate is equivalent is such rate multiplied by the number of
days in the year for which such calculation is made and divided by 360, or (ii)
an annual rate of interest is to be calculated during a leap year, the yearly
rate of interest to which such rate is equivalent is such rate multiplied by
366 and divided by 365.
Section 9.16. Currency. Except as otherwise specifically provided
herein, all monetary amounts in this Agreement are stated in United States
dollars.
Section 9.17. Waiver of Jury Trial. Each of the Borrowers, the
Guarantors, the Agents and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to any of the Loan
Documents, the transactions contemplated thereby, the Advances or the actions
of any Agent or any Lender in the negotiation, administration, performance or
enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
IMC GLOBAL INC.,
as Borrower and Guarantor
By:
Title:
IMC GLOBAL OPERATIONS, INC.,
as Borrower and Guarantor
By:
Title:
INTERNATIONAL MINERALS &
CHEMICAL (CANADA) GLOBAL LIMITED,
as Borrower
By:
Title:
KALIUM CANADA, LTD.,
as Borrower and Guarantor
By:
Title:
CENTRAL CANADA POTASH, INC.,
as Borrower and Guarantor
By:
Title:
THE VIGORO CORPORATION,
as Guarantor
By:
Title:
VNH, INC., as Guarantor
By:
Title:
VIGORO INDUSTRIES, INC.,
as Guarantor
By:
Title:
KCL HOLDINGS, INC.,
as Guarantor
By:
Title:
KALIUM CHEMICALS, LTD.,
as Guarantor
By:
Title:
PHOENIX CHEMICAL COMPANY
By:
Title:
CITIBANK, N.A., as
U.S. Administrative Agent and
Documentation Agent
By:
Title:
CITIBANK CANADA, as
Canadian Administrative Agent
By:
Title:
NATIONSBANC CAPITAL MARKETS, INC.,
as Syndication Agent
By:
Title:
Initial Lenders
CITIBANK, N.A.
By:
Title:
CITIBANK CANADA
By:
Title:
NATIONSBANK, N.A.
By:
Title:
ABN AMRO NORTH AMERICA, INC.,
as Agent for ABN AMRO BANK N.V.
By:
Title:
By:
Title:
ABN AMRO BANK CANADA
By:
Title:
By:
Title:
BANK OF MONTREAL
By:
Title:
CAISSE NATIONALE DE CREDIT
AGRICOLE
By:
Title:
CREDIT LYONNAIS CHICAGO BRANCH
By:
Title:
CREDIT LYONNAIS CANADA
By:
Title:
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By:
Title:
HARRIS TRUST AND SAVINGS BANK
By:
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By:
Title:
THE NORTHERN TRUST COMPANY
By:
Title:
PNC BANK,
NATIONAL ASSOCIATION
By:
COOPERATIEVE CENTRALE RAIFFEISEN -
BOERENLEENBANK, B.A."RABOBANK
NEDER LAND", NEW YORK BRANCH
By:
ROYAL BANK OF CANADA
By:
Title:
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 Changes 22
6F. 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 Properties 31
8F. 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.
2100 Sanders Road
Northbrook, Illinois 60062
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
Two Prudential Plaza
Suite 5600
Chicago, Illinois 60601
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, Two
Prudential Plaza, Suite 5600, Chicago, Illinois 60601, 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 mark 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, Cassels & Graydon and/or
MacPherson, Leslie & 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 Marschall I. Smith, 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, Schiff Hardin & Waite
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 Fitzgerald, 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, George Smith 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 paragraph 5D, 5I, paragraph 5J, paragraph 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 bill 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 Moody's 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 Moody's 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 Moody's 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 McGraw-
Hill, 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 Harris
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., 2100 Sanders Road,
Northbrook, Illinois 60062, 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
EXHIBIT 10.67
DRAFT: 2/28/96
KALIUM CANADA, LTD.
SECOND AMENDED AND RESTATED
NOTE PURCHASE AGREEMENT
$55,000,000 Amended and Restated Series A Senior Notes
Due August 31, 2005
$18,000,000 Amended and Restated Series B Senior Notes
Due August 31, 2005
Dated as of February 28, 1996
TABLE OF CONTENTS
(Not Part of Agreement)
Page
1. AUTHORIZATION OF ISSUE OF NOTES 2
2. ISSUANCE OF NOTES 3
3. CONDITIONS OF EFFECTIVENESS. 4
4. PREPAYMENTS 7
5. AFFIRMATIVE COVENANTS 8
6. NEGATIVE COVENANTS 9
7. EVENTS OF DEFAULT 9
8. REPRESENTATIONS, COVENANTS AND WARRANTIES 14
9. REPRESENTATIONS OF THE PURCHASERS 17
10. DEFINITIONS 17
11. MISCELLANEOUS 25
LIST OF ATTACHMENTS
PURCHASER SCHEDULE
EXHIBIT A-1 -- FORM OF AMENDED AND RESTATED SERIES A NOTE
EXHIBIT A-2 -- FORM OF AMENDED AND RESTATED SERIES B NOTE
EXHIBIT B -- FORM OF OPINION OF COMPANY'S CANADIAN COUNSEL
EXHIBIT C -- FORM OF OPINION OF COMPANY'S SPECIAL COUNSEL
EXHIBIT D -- FORM OF OPINION OF COMPANY'S GENERAL COUNSEL
EXHIBIT E -- FORM OF GLOBAL GUARANTY
SCHEDULE I -- LIST OF SUBSIDIARIES
SECOND AMENDED AND RESTATED
NOTE PURCHASE AGREEMENT
KALIUM CANADA, LTD.
1200-1801 Hamilton Street
Regina, Saskatchewan
Canada S4P 4B5
As of February 28, 1996
To: The Prudential Insurance Company
of America (herein called "Prudential")
Each Prudential Affiliate that is a
holder of a Note listed on the Purchaser
Schedule attached hereto
c/o Prudential Capital Group
Two Prudential Plaza
Suite 5600
Chicago, Illinois 60601
Attention: Managing Director
Ladies and Gentlemen:
The undersigned, Kalium Canada, Ltd., a corporation organized
under the federal laws of Canada (herein called the "Company") hereby
agrees with you as set forth below. Reference is made to paragraph 10
hereof for definitions of capitalized terms used herein and not
otherwise defined herein.
The Company and you have entered into the 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 Note Agreement"), pursuant to
which the Company issued to you the Existing Series A Notes and the
Existing Series B Notes, as more particularly described in paragraph 1
hereto.
The Vigoro Corporation, a Delaware corporation and the owner of
all of the outstanding capital stock of the Company ("Vigoro"), has
entered into an Agreement and Plan of Merger dated as of November 13,
1995 with IMC Global Inc., a Delaware corporation ("Global") and Bull
Merger Company, a Delaware corporation and a wholly-owned subsidiary of
Global ("Bull"), pursuant to which Bull could merge with and into
Vigoro.
Consummation of the aforementioned merger, and certain
transactions contemplated therewith, is prohibited by the terms of the
Vigoro Guaranty and thus could constitute an Event of Default under the
Existing Note Agreement.
Vigoro, Global and the Company desire that you and the Company
amend and restate the Existing Note Agreement in order to permit the
consummation of the above mentioned merger without causing an Event of
Default to occur under the Existing Note Agreement and to accomplish
certain other changes.
Accordingly, the parties hereto agree that, effective upon the
satisfaction of the conditions precedent set forth in paragraph 3
hereof, the Existing Note Agreement is amended and restated in its
entirety to read as follows:
1. AUTHORIZATION OF ISSUE OF NOTES.
1A. Authorization of Issue of Amended and Restated Series A
Notes. The Company has previously authorized the issue of, and sold to
the Purchasers, its senior promissory notes (herein called the
"Existing Series A Notes") in the aggregate principal amount of
$55,000,000 dated August 31, 1993, maturing on August 31, 2005. The
Company has authorized the issue of its senior promissory notes (herein
called the "Amended and Restated Series A Notes") in the aggregate
principal amount of $55,000,000, dated the most recent interest payment
date on the Existing Series A Notes occurring on or prior to the date
of issuance of the Amended and Restated Series A Notes, maturing on
August 31, 2005, bearing interest on the unpaid balance thereof from
date thereof until the principal thereof shall have become due and
payable at the rate specified therein and on overdue principal, Yield-
Maintenance Amount and interest at the rate specified therein, and to
be substantially in the form of Exhibit A-1 attached hereto. The
Company and the Purchasers agree that, effective as of the Restatement
Date, the terms of the Existing Series A Notes are amended and restated
as provided herein and in the Amended and Restarted Series A Notes.
The terms "Amended and Restated Series A Note" and "Amended and
Restated Series A Notes" as used herein shall include each Amended and
Restated Series A Note delivered pursuant to any provision of this
Agreement and each Amended and Restated Series A Note delivered in
substitution or exchange for any such Amended and Restated Series A
Note pursuant to any such provision.
1B. Authorization of Issue of Amended and Restated Series B
Notes. The Company has previously authorized the issue of, and sold to
the Purchasers, its senior promissory notes (herein called the
"Existing Series B Notes") in the aggregate principal amount of
$18,000,000, dated September 23, 1993, maturing on August 31, 2005.
The Company has authorized the issue of its senior promissory notes
(herein called the "Amended and Restated Series B Notes") in the
aggregate principal amount of $18,000,000, dated the most recent
interest payment date on the Existing Series B Notes occurring on or
prior to the date of issuance of the Amended and Restated Series B
Notes, maturing on August 31, 2005, bearing interest on the unpaid
balance thereof from the date thereof until the principal thereof shall
have become due and payable at the rate specified therein and on
overdue principal, Yield-Maintenance Amount and interest at the rate
specified therein, and to be substantially in the form of Exhibit A-2
attached hereto. The Company and the Purchaser agree that, effective
upon the effectiveness of the amendment and restatement of the Existing
Note Agreement pursuant to this Agreement, the terms of the Existing
Series B Notes are amended and restated as provided herein and in the
Amended and Restated Series B Notes. The terms "Amended and Restated
Series B Note" and "Amended and Restated Series B Notes" as used herein
shall include each Amended and Restated Series B Note delivered
pursuant to any provision of this Agreement and each Amended and
Restated Series B Note delivered in substitution or exchange for any
such Amended and Restated Series B Note pursuant to any such provision.
The terms "Note" or "Notes" as used herein shall include each Amended
and Restated Series A Note and each Amended and Restated Series B Note.
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,
Two Prudential Plaza, Suite 5600, Chicago, Illinois 60601, one or more
Amended and Restated Series A Notes and one or more Amended and
Restated 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 Amended and Restated Series A
Notes and the Amended and Restated 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 mark 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 Note Agreement pursuant to this Agreement shall not
become effective unless and until each of the following conditions have
been fully satisfied, as determined by the Purchasers in their 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, Global or any Global Subsidiary, as applicable, that are a
party thereto, shall in all respects be satisfactory to the Purchasers
in both form and substance, 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, and, in the case
of the Global Agreement, all conditions precedent to the effectiveness
of the amendment and restatement pursuant thereto shall have been
satisfied:
(i) this Agreement;
(ii) the Notes;
(iii) the Global Agreement;
(iv) the Global Guaranty;
(v) the Disclosure Letter;
(vi) certified copies of (1) the resolutions of the Board of
Directors of the Company and Global 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;
(vii) a copy of a certificate of the Secretary of State of
the state of incorporation of the Company, Global 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;
(viii) a certificate of compliance issued under the Canada
Business Corporations Act with respect to the Company and each
Relevant Subsidiary that is a party to any Transaction Document
incorporated under the laws of Canada, together with a certified
copy of the articles of each such Person;
(ix) a certificate of the Company, Global 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;
(x) a certificate of the Secretary or an Assistant Secretary
of the Company, Global 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;
(xi) 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;
(xii) a favorable opinion of Blake, Cassels & Graydon and/or
MacPherson, Leslie & Tyerman, Canadian counsel for the Company and
certain Global Subsidiaries, in substantially the form of Exhibit
B hereto and as to such other matters as you may reasonably
request;
(xiii) a favorable opinion of Sidley & Austin, special
counsel for the Company, Global and each Relevant Subsidiary that
is a party to any Transaction Document, in substantially the form
of Exhibit C hereto and as to such other matters as you may
reasonably request; and
(xiv) a favorable opinion of Marschall I. Smith, General
Counsel of Global, in substantially the form of Exhibit D hereto
and as to such matters as you may reasonably request.
3B. Representations and Warranties; No Default. The
representations and warranties contained in the Global Guaranty and
paragraph 8 hereof shall be true on and as of the date hereof and the
Restatement Date; the Company and Global shall be in compliance with
all of the covenants under the Global Guaranty and this Agreement 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 and Global shall have each delivered to you an
Officer's Certificate, dated the Restatement Date, to such effect.
3C. Fees. Global shall have paid or caused to be paid to
Prudential all reasonable fees and expenses of its special counsel,
Schiff Hardin & Waite due to Prudential pursuant to the letter
agreement (the "Arrangement Letter") between Prudential, Global 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. Counsel for the Purchasers 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 each
Purchaser, and each Purchaser shall have received all such counterpart
originals or certified or other copies of such documents as it may
reasonably request. You shall have received such financial, business
and other information regarding the Company, Global and each Global
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 with
respect to the required prepayments specified in paragraph 4A and the
optional prepayments specified in paragraph 4B.
4A(1). Required Prepayment of Amended and Restated Series A
Notes. Until the Amended and Restated Series A Notes shall be paid in
full, the Company shall apply to the prepayment of the Amended and
Restated Series A Notes the following amounts on the following dates:
$11,500,000 on August 31, 2002, $13,000,000 on August 31, 2003,
$15,750,000 on August 31, 2004 and the unpaid balance on August 31,
2005 with the final payment on August 31, 2005 to be in an amount equal
to the then outstanding principal balance thereof together with any
accrued and unpaid interest thereon.
4A(2). Required Prepayment of Amended and Restated Series B
Notes. Until the Amended and Restated Series B Notes shall be paid in
full, the Company shall apply to the prepayment of the Amended and
Restated Series B Notes the following amounts on the following dates:
$3,500,000 on August 31, 2002, $4,000,000 on August 31, 2003,
$5,000,000 on August 31, 2004 and the unpaid balance on August 31, 2005
with the final payment on August 31, 2005 to be in an amount equal to
the then outstanding principal balance thereof together with any
accrued and unpaid interest thereon.
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 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 paragraphs 4A or 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,
Global or any of the Global Subsidiaries other than by prepayment
pursuant to paragraphs 4A or 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 or Global or the Global
Subsidiaries to, prepay or otherwise retire in whole or in part prior
to their stated final maturity (other than (i) by prepayment pursuant
to paragraphs 4A or 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, Global or
such Subsidiary, Global 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 or Global or the Global Subsidiaries shall
not be deemed to be outstanding for any purpose under this Agreement,
except as provided in paragraph 4D.
5. AFFIRMATIVE COVENANTS. The Company covenants and agrees to,
and to cause its Subsidiaries to, perform and observe all of the
covenants and agreements applicable to the Company and its Subsidiaries
contained in paragraph 5 of the Global Guaranty (whether set forth in
the text thereof, cross referenced therein or otherwise) to the same
extent and with the same effect as if such covenants and agreements
were fully set forth herein.
6. NEGATIVE COVENANTS. The Company covenants and agrees to, and
to cause its Subsidiaries to, perform and observe all of the covenants
and agreements applicable to the Company and its Subsidiaries contained
in paragraph 6 of the Global Guaranty (whether set forth in the text
thereof, cross referenced therein or otherwise) to the same extent and
with the same effect as if such covenants and agreements were fully set
forth herein.
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, Global, any Subsidiary of the Company or
any other Global 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 fails to perform or observe any other
agreement, term or condition contained in any agreement under
which any such 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 obligation to become due (or to
be repurchased by the Company, Global, any Subsidiary of the
Company or any other Global 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, Global, any Subsidiary of the Company or
any other Global Subsidiary) shall occur and be continuing exceeds
$15,000,000; or
(iv) any representation or warranty made by the Company
herein or by Global, the Company or any of their respective
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 paragraph 5 (insofar as such agreement relates to any
agreement in paragraph 5D, 5I, paragraph 5J, or paragraph 5K of
the Global Guaranty) or paragraph 6 of this Agreement; 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, Global, any Subsidiary of the Company,
or any other Global 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, Global, any Subsidiary of the Company, or any other
Global Subsidiary is entered under any bankruptcy reorganization,
compromise, arrangement, insolvency, readjustment of debt,
composition, dissolution, winding up or liquidation or similar
law, whether now or hereafter in effect (herein called the
"Bankruptcy Law"), of any jurisdiction; or
(ix) the Company, Global, any Subsidiary of the Company, or
any other Global 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, Global, any Subsidiary of the Company, or any other
Global Subsidiary, or of any substantial part of the assets of the
Company, Global, any Subsidiary of the Company, or any other
Global 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, Global, any Subsidiary of the
Company, or any other Global Subsidiary under the Bankruptcy Law
of any other jurisdiction or takes any corporate action to
authorize any of the actions described in this clause (ix) of
paragraph 7A; or
(x) any such petition or application is filed, or any such
proceedings are commenced, against the Company, Global, any
Subsidiary of the Company, or any other Global 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, Global, any Subsidiary of the
Company, or any other Global Subsidiary decreeing the dissolution
of the Company, Global, any Subsidiary of the Company, or any
other Global Subsidiary and such order, judgment or decree remains
unstayed and in effect for more than 60 days; or
(xii) one or more judgments or decrees shall be entered
against the Company, Global, any Subsidiary of the Company or any
other Global Subsidiary 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
(xiii) (a) the Company, Global, any Subsidiary of the
Company, or any other Global Subsidiary 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
Global Guaranty (whether or not such failure or default is
subsequently waived, consented to or rescinded); Global shall fail
to comply with or to perform any provision of, or otherwise be in
default beyond any applicable grace period under the Global
Agreement or the Global Notes (whether or not such failure or
default is subsequently waived, consented to or rescinded); or the
Global Guaranty 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 Global 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
(xiv) the Company or Global ceases or threatens to cease
carrying on its business permanently; or
(xv) an encumbrancer takes possession of, or a receiver or
receiver manager is appointed over all or substantially all of the
assets or revenues of the Company or Global; or
(xvi) 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
Transaction Documents; or
(xvii) the Company, Global, any Subsidiary of the Company, or
any other Global Subsidiary 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, Global, any Subsidiary of
the Company, or any other Global Subsidiary 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 Global
or any of the Global Subsidiaries or 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 (xviii), 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 is a corporation duly
organized and existing in good standing under the laws of Canada, each
subsidiary is duly organized and existing in good standing under the
laws of the jurisdiction in which it is incorporated, and the Company
has and each subsidiary has the corporate power to own its respective
property and to carry on its respective business as now being
conducted. The names and jurisdictions of incorporation of each
Relevant Subsidiary are set forth on Schedule I.
(b) The execution, delivery and performance by the Company of
this Agreement, the Notes, each other Transaction Document to which it
is or is to be a party, and the consummation of the other transactions
contemplated hereby and thereby, are within the Company's corporate
powers, and have been duly authorized by all necessary corporate
action.
(c) This Agreement has been, and each of the Notes and each other
Transaction Document, when delivered hereunder, will have been, duly
executed and delivered by the Company. This Agreement is, and each of
the Notes and each other Transaction Document, when delivered
hereunder, will be, the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms
subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights
generally.
8B. Outstanding Indebtedness. Neither the Company nor any
Subsidiary has any indebtedness outstanding except as permitted by
paragraph 6 of the Global Guaranty. There exists no default under the
provisions of any instrument evidencing such indebtedness or of any
agreement relating thereto.
8C. 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. As of the
Restatement Date, neither the execution nor delivery of this Agreement,
the Notes or the Global Guaranty, nor the offering, issuance and
exchange of the Notes, nor fulfillment of nor compliance with the terms
and provisions of this Agreement, the Notes or the Global Guaranty 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.
8D. 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 exchange 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.
8E. Regulation G, Etc. The proceeds of sale of the Existing
Series A Notes and the Existing Series B Notes were used to primarily
refinance certain existing indebtedness of the Company and Vigoro and
for 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 indebtedness 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 such 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 237.2(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 the Notes 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.
8F. 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, exchange 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 and/or Canadian
provincial legislation) in connection with the execution and delivery
of any Transaction Document or Related Document, the offering,
issuance, exchange or delivery of the Notes or fulfillment of or
compliance with the terms and provisions of this Agreement or the
Notes.
8G. Disclosure. Other than projections and forecasts as to which
no representation under this paragraph 8G is made, neither this
Agreement nor any other document, certificate or statement furnished to
any Purchaser 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
Global and the Global 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 the Purchasers by the Company
or Global prior to the date hereof in connection with the transactions
contemplated hereby.
8H. Taxes. No Tax, fee or other duty or levy is payable and no
filing or recording is necessary under the laws of Saskatchewan or the
federal laws of Canada applicable therein in connection with the
execution or delivery of, or to make effective, this Agreement or any
Note.
8I. Submission to Jurisdiction. Neither the laws of the province
of Saskatchewan nor the federal laws of Canada require the consent of
any public official or authority to the commencement or prosecution of
any action, suit or proceeding in the courts of the province of
Saskatchewan against the Company arising out of or relating to the
Company's obligations under or pursuant to this Agreement or any Note.
No immunity from jurisdiction nor any defense based on the status of
the Company is available to the Company in any such action, suit or
proceeding in the courts of the Province of Saskatchewan under the laws
of the Province of Saskatchewan or the federal laws of Canada. Each
holder of a Note, notwithstanding that such holder of a Note may not be
a resident or citizen of Canada or a corporation incorporated under the
laws of Canada or under the laws of any province thereof, and may not
maintain a permanent establishment in Canada, is entitled to have full
access as plaintiff to the courts of the Province of Saskatchewan and,
further, is entitled to maintain an action in such courts to enforce a
judgment for money of a state or federal court of competent
jurisdiction in the State of Illinois.
9. REPRESENTATIONS OF THE PURCHASERS.
Each Purchaser represents as follows:
9A. Nature of Acquisition. Such Purchaser is acquiring the Notes
to be acquired by it hereunder as a principal for its own account or
for separate accounts managed by such Purchaser with not less than
$150,000 of Notes acquired for each such separate account and not with
a view to or for sale in connection with any distribution thereof
within the meaning of the Securities Act or securities laws of Canada,
provided that the disposition of such Purchaser's property shall at all
times be and remain within its control; provided, however, that no
Purchaser or Transferee shall, other than pursuant to an exemption from
the securities laws of Canada, sell, transfer or otherwise dispose of
any Note (i) in Canada or to any Person residing in Canada, or (ii) to
any other Person without obtaining from such Person a covenant to
refrain from selling such Note, to any Person specified in clause (i)
above.
9B. Source of Funds. The source of funds used by such Purchaser
to pay the purchase price of the Existing Series A Notes or Existing
Series B Notes purchased by it under the Existing Note 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, and on the Restatement
Date such Purchaser satisfies, 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 Purchaser 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 paragraphs hereof and in paragraphs 1 and 2
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 4B
or is declared to be immediately due and payable pursuant to paragraph
7A, as the context requires.
"Designated Spread" shall mean with respect to the Called
Principal of any Note of any Series, an amount equal to 0.50% plus the
difference between (a) the non-default rate of interest applicable to
such Note in effect as of the Settlement Date for such Note and (b)
6.62%.
"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 (919) (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 bill
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 4B 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) $1,909,000 with respect to Amended and
Restated 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 Amended and Restated Series A Notes, then the Yield-
Maintenance Amount shall not be less than the product of (i) $1,909,000
and (2) the quotient obtained by dividing the aggregate outstanding
principal amount of the Amended and Restated Series A Notes for which
the Yield-Maintenance Amount is to be paid by the aggregate outstanding
principal amount of all Amended and Restated Series A Notes) and (ii)
$629,600 with respect to Amended and Restated 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 Amended and
Restated Series B Notes, then the Yield-Maintenance Amount shall not be
less than the product of (1) $629,600 and (2) the quotient obtained by
dividing the aggregate outstanding principal amount of the Amended and
Restated Series B Notes for which the Yield-Maintenance Amount is to be
paid by the aggregate outstanding principal amount of all Amended and
Restated Series B Notes).
10B. Other Terms.
"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.
"Amended and Restated Series A Note" shall have the meaning given
in paragraph 1A.
"Amended and Restated Series B Note" shall have the meaning given
in paragraph 1B.
"Bankruptcy Law" shall have the meaning specified in clause (viii)
of paragraph 7A.
"Business Day" shall mean any day other than (i) a Saturday or a
Sunday, and (ii) a day on which commercial banks in Saskatchewan or
Ontario, Canada, or Chicago, Illinois or New York, New York are
required or authorized to be closed.
"Canadian Tax" shall mean any and all present and future taxes,
duties, levies, imposts, fees, compulsory loans, charges and
withholdings whatsoever imposed, assessed, levied or collected in
respect of payment under the Notes or this Agreement, as well as any
interest or penalties in respect of such amounts, by or for the account
of (i) Canada or any political subdivision or taxing authority thereof
or therein, or (ii) such other taxing jurisdiction (or any political
subdivision or taxing authority thereof or therein) in which the
Company may now or hereafter reside or be treated (by such taxing
jurisdiction) as residing for tax purposes or with which the Company
has any relation or asserted relation forming the basis for the
imposition, assessment, levy or collection of any such taxes, duties,
levies, imposts, fees, compulsory loans, charges or withholdings.
"Capitalized Lease Obligation" shall mean any rental obligation
which, under generally accepted accounting principles, is or will be
required to be capitalized on the books of the Company or any
Subsidiary, taken at the amount thereof accounted for as indebtedness
(net of interest expenses) in accordance with such principles.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"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 concerning the Company and
its Subsidiaries are set forth.
"Dollars" and "$" shall mean the lawful money of the United States
of America.
"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.
"Existing Credit Agreement" shall have the meaning specified in
the Global Agreement.
"Existing Note Agreement" shall have the meaning specified in the
introductory paragraph of this Agreement.
"Existing Related Party Guaranties" shall mean and include each
Related Party Guaranty in the form of Exhibit E-1 to the Existing Note
Agreement in the case of Vigoro and Exhibit E-2 to the Existing Note
Agreement in the case of any corporation organized under the laws of
any State of the United States, executed by Subsidiaries of Vigoro, as
amended, supplemented or otherwise modified from time to time in
accordance with their respective terms.
"Existing Series A Notes" shall have the meaning specified in
paragraph 1A.
"Existing Series B Notes" shall have the meaning specified in
paragraph 1B.
"Global" shall mean IMC Global Inc., a Delaware corporation.
"Global Agreement" shall mean that certain Second Amended and
Restated Note Purchase Agreement, dated as of the date hereof, among
Global, Vigoro, Prudential and PrucoLife Insurance Company, as amended,
restated, extended, renewed, supplemented or otherwise modified from
time to time in accordance with the terms thereof.
"Global Guaranty" shall mean the Second Amended and Restated
Related Party Guaranty, substantially in the form of Exhibit D attached
hereto, executed by Global, as amended, restated, extended, renewed,
supplemented or otherwise modified from time to time in accordance with
the terms thereof.
"Global Note" shall mean each promissory note issued by Global
pursuant to the Global Agreement.
"Global Subsidiaries" shall mean "Subsidiaries" as defined in the
Global Agreement.
"Guarantee" shall mean, with respect to any Person, any direct or
indirect liability, contingent or otherwise, of such Person with
respect to any indebtedness, lease, dividend or other obligation of
another, including, without limitation, any such obligation directly or
indirectly guaranteed, endorsed (otherwise than for collection or
deposit in the ordinary course of business) or discounted or sold with
recourse by such Person, or in respect of which such Person is
otherwise directly or indirectly liable, including, without limitation,
any such obligation in effect guaranteed by such Person through any
agreement (contingent or otherwise) to purchase, repurchase or
otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation (whether
in the form of loans, advances, stock purchases, capital contributions
or otherwise), or to maintain the solvency or any balance sheet or
other financial condition of the obligor of such obligation, or to make
payment for any products, materials or supplies or for any
transportation or service, regardless of the non-delivery or non-
furnishing thereof, in any such case if the purpose or intent of such
agreement is to provide assurance that such obligation will be paid or
discharged, or that any agreements relating thereto will be complied
with, or that the holders of such obligation will be protected against
loss in respect thereof. The amount of any Guarantee shall be equal to
the outstanding principal amount of the obligation guaranteed or such
lesser amount to which the maximum exposure of the guarantor shall have
been specifically limited.
"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.
"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 or the Personal Property Security
legislation 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.
"Merger Agreement" shall mean that certain Agreement and Plan of
Merger dated as of November 13, 1995 among Global, 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.
"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, Global, certain other
Global 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.
"Notes" shall have the meaning specified in paragraph 1B.
"Officer's Certificate" shall mean a certificate signed in the
name of the Company by a 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-Agrico GP Company, Agrico, Limited Partnership, IMC-Agrico
MP, Inc. and IMC Global Operations, Inc., 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.
"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.
"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.
"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.
"Purchasers" shall mean any holder of an existing Series A Note or
Existing Series B Note 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.
"Reference Bank" shall mean Morgan Guaranty Trust Company of New
York or such other commercial bank or trust company as shall be
selected by the Required Holder(s).
"Related Documents" shall mean the Merger Agreement and the
Partnership Agreement.
"Relevant Subsidiary" shall have the meaning specified in the
Global Agreement.
"Required Holder(s)" shall mean at any time, the holder or holders
of at least 51% of the aggregate principal amount of the Notes of such
series outstanding at such time.
"Responsible Officer" shall mean the president, 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.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Series" shall have the meaning specified in paragraph 1B.
"Series E Preferred Stock" shall mean the shares of preferred
stock of Vigoro, par value $100 per share designated as Series E.
"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).
"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 (as defined in the Global Agreement) shall be deemed to be a
Subsidiary of Global Operations (as defined in the Global Agreement)
and Global 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 Global.
"Subsidiary Guaranty" shall mean the Amended and Restated
Affiliate Guaranty dated as of February 28, 1996 made by Vigoro and
certain other Subsidiaries of Global in favor of Prudential and certain
other Persons substantially in the form of Exhibit E attached hereto,
as amended, restated, extended, renewed, supplemented or otherwise
modified from time to time in accordance with the terms thereof.
"Taxes" means all taxes (including, without limitation, income,
gross receipts, sales, use, personal property (tangible and intangible)
and stamp taxes), charges, fees (including, without limitation, all
license, documentation, recording and registration fees), levies,
imposts, duties, assessments or withholdings of any nature whatsoever
(together with any penalties, additions to tax, fines or interest
thereon) howsoever imposed by any federal, state, provincial, regional
or local government or any national or international cooperative or
joint action agency or authority, or any governmental subdivision or
taxing authority of any thereof.
"Transaction Documents" shall mean, collectively, this Agreement,
the Notes, the Guaranty and all other agreements, instruments and other
documents executed and delivered by Global or any Global 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.
"Vigoro" shall mean The Vigoro Corporation, a Delaware
corporation.
"Vigoro Guaranty" shall mean the Existing Related Party Guaranty
executed by Vigoro.
"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.
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 attached
hereto 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 any subsequent proposed modification of,
or proposed consent under this Agreement, or 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. No Note may be transferred to any Person resident for
the purposes of Part XIII of the Income Tax Act (Canada) in any
jurisdiction other than Canada or the United States of America unless
(i) interest payable on the Notes would have been payable to Persons
with whom the Company was dealing at arm's length for such purposes and
who were so resident in such jurisdiction on the date of closing
referred to in the Existing Agreement without any deduction or
withholding in respect of Canadian Taxes or (ii) interest payable on
the Notes to Persons so resident in such jurisdiction at the time of
transfer would be subject to deduction or withholding of Canadian Taxes
at a rate not greater than the rate then applicable to Persons resident
in the United States of America.
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 attached hereto, 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 Kalium Canada, Ltd., Box 7500, Regina, Saskatchewan
Canada S4P 4L8, Attention: Vice President-Finance, with a copy to IMC
Global Inc., 2100 Sanders Road, Northbrook, Illinois 60062, 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 Purchaser 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 or the Global 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 Global or any of the Global Subsidiaries)
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 5) 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.
11O. Submission to Jurisdiction; Waiver of Immunity; Agent for
Service of Process. For the purpose of assuring that the holders of
the Notes may enforce their rights under this Agreement or the Notes,
the Company, for itself and its successors and assigns, hereby
irrevocably (i) agrees that any legal or equitable action, suit or
proceeding against the Company arising out of or relating to this
Agreement, the Notes or any transaction contemplated hereby or the
subject matter of any of the foregoing may be instituted in any state
or federal court in the State of Illinois, (ii) waives any objection
which it may now or hereafter have to the venue or forum of any action,
suit or proceeding, (iii) submits itself to the nonexclusive
jurisdiction of any state or federal court of competent jurisdiction in
the State of Illinois for purposes of any such action, suit or
proceeding, and (iv) waives any defense to an action being brought that
it might otherwise have been able to assert in statute or common law to
which it might otherwise be entitled in any such action, suit or
proceeding which may be instituted in any state or federal court in the
State of Illinois, and irrevocably waives any immunity from the
maintaining of an action against it to enforce any judgment for money
obtained in any such action, suit or proceeding and, to the extent
permitted by applicable law, any immunity from execution. The Company
has designated and appointed Global at its office at 2100 Sanders Road,
Northbrook, Illinois 60062 as its authorized agent to accept and
acknowledge on its behalf service of any and all process which may be
served in any such action, suit or proceeding with respect to any
matter as to which it has submitted to jurisdiction as set forth in
this paragraph 11O, and agrees that service upon such authorized agent
shall be deemed in every respect service of process upon the Company or
its successors or assigns, and, to the extent permitted by applicable
law, shall be taken and held to be valid personal service upon it.
Such designation and appointment shall be irrevocable except that at
the request of the Required Holder(s) the Company shall designate and
appoint a replacement acceptable to such Required Holder(s) and
reasonably acceptable to the Company for such Person as such agent.
The Company represents and warrants that Global has agreed to act as
such agent for service of process. The Company will take all action,
including the filing of any and all documents and instruments, as may
be necessary to continue in full force and effect the designation and
appointment as such agent of Global or any successor or such other
corporation or entity as shall be reasonably satisfactory to the
Required Holder(s), so that the Company shall at all times have an
agent for service of process for the above purposes in the County of
Cook, State of Illinois. Nothing contained in this paragraph 11O shall
be deemed to affect the right of the holders of the Notes to serve
process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Company in any
jurisdiction.
11P. Currency Equivalent. For purposes of the construction of
this Agreement and the Notes, the equivalent in Dollars of an amount in
any other currency shall be determined at the rate of exchange quoted
by the Reference Bank in New York City, at 9:00 A.M. (New York City
time) on the Business Day immediately preceding the date of
determination to prime banks in New York City for the spot purchase in
the New York foreign exchange market of Dollars with such other
currency.
11Q. Judgment. (a) If for the purpose of obtaining judgment in
any court it is necessary for any holder of any Note to convert a sum
due hereunder or under such Note in Dollars (the "Original Currency")
into another currency (the "Other Currency"), the Company agrees, to
the fullest extent permitted by applicable law, that the rate of
exchange used shall be that at which in accordance with normal banking
procedures such Person could purchase the Original Currency with the
Other Currency on the Business Day preceding that on which final
judgment is given.
(b) The obligation of the Company in respect of any sum due from
it to any holder of any Note hereunder shall, notwithstanding any
judgment in such Other Currency, be discharged only to the extent that
on the Business Day following receipt by such Person of any sum
adjudged to be so due in the Other Currency such Person may in
accordance with normal banking procedures purchase the Original
Currency with the Other Currency. If the amount of the Original
Currency so purchasable is less than the sum originally due to such
Person in the Original Currency, the Company agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such
Person against such loss, and if the amount of the Original Currency so
purchasable exceeds the sum originally due to such Person in the
Original Currency, such Person agrees to remit to the Company such
excess.
11R. Tax Indemnity. Any and all payments by the Company under
this Agreement and pursuant to the Notes shall be made free and clear
of, and without deduction or withholding for or on account of, Canadian
Tax unless any deduction or withholding for or on account of Canadian
Tax is required by law. If the Company shall be obligated by law to
deduct or withhold for or on account of any Canadian Tax, or, if any
holder of a Note shall be obligated to pay any Canadian Tax on or in
respect of any payment under the Notes or under this Agreement, then
the Company will (i) within 10 days notify each holder of Notes of such
event and (ii) promptly (a) pay over to the government or taxing
authority imposing such Canadian Tax the full amount required to be
deducted or withheld from or otherwise paid by the Company (including
the full amount required to be deducted or withheld from or otherwise
paid by it in respect to any Additional Amount paid pursuant to clause
(b) hereof), and (b) except as provided below, pay to such holder such
additional amount (the "Additional Amount") as is necessary in order
that the net amount received by such holder after any required
deduction, withholding or other payment of, or liability for, Canadian
Tax on or in respect of such payment and any required deduction,
withholding or other payment of, or liability for, Canadian Tax and
United States Federal or State Tax net of all applicable foreign tax
credits, it being understood and agreed that the Company shall have no
right to examine any of the books, records or tax returns of any
holder, on or with respect to such Additional Amount, shall equal the
amount such holder would have received had no such deduction,
withholding or other payment of, or liability for, such Canadian Tax or
United States Federal or State Tax been paid or incurred, and (c)
furnish to such holder within 30 days after it or they become
available, the official receipt or receipts from the relevant taxation
or other authorities for the full amounts deducted, withheld or paid.
The provisions of this paragraph 11R shall apply to any successive
holder of any Notes. Notwithstanding the foregoing, the Company will
not be liable for the payment of any Additional Amount to any holder of
Notes if and to the extent such holder is subject to Canadian Tax in
respect of the Notes by reason of such holder's being or having been
connected with Canada (including without limitation being or having
been or having been deemed to be a resident in Canada, engaged in a
trade or business in Canada or having or having had a permanent
establishment in Canada) other than solely by virtue of its holding of
Notes or to any holder with whom the Company does not deal at arm's-
length as such term is defined under the Income Tax Act (Canada).
11S. Further Assurances. At any and all times the Company will
do, execute, acknowledge and deliver or will cause to be done,
executed, acknowledged and delivered all and every such further acts,
deeds, and assurances in law as may be necessary or desirable in order
to give full effect to this Agreement and every part hereof.
11T. 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.
11U. Binding Agreement. When this Agreement is executed and
delivered by the Company and the Purchasers, it shall become a binding
agreement between the Company and the Purchasers.
12. AMENDMENT AND RESTATEMENT. Subject to the satisfaction (or
express written waiver by the Purchaser) of all of the conditions of
effectiveness contained in paragraph 3 of this Agreement, this
Agreement amends and restates in its entirety the Existing Note
Agreement as of the Restatement Date. Upon the effectiveness of this
Agreement, the Existing Note Agreement is fully superseded hereby;
however, the indebtedness governed by the Existing Note Agreement
remains outstanding and shall be governed by the terms of this
Agreement. This Agreement does not constitute a novation of such
indebtedness. 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.
Very truly yours,
KALIUM CANADA, LTD.
By:
Title:
The foregoing Agreement is
hereby accepted as of the
date first above written.
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By:
Vice President
