EXHIBIT 10.31
EXECUTION COPY
AMENDMENT, WAIVER AND CONSENT
AMENDMENT, WAIVER, AND CONSENT (this "Agreement") dated as of May
26, 1995 among IMC Global Inc., a Delaware corporation ("Global"), IMC
Global Operations Inc., a Delaware corporation ("Operations"), IMC-
Agrico GP Company, a Delaware corporation ("IMC GPCo"), IMC-Agrico MP,
Inc., a Delaware corporation ("MPCo"), IMC-Agrico Company, a Delaware
general partnership ("IMC-Agrico"), Freeport-McMoRan Inc., a Delaware
corporation ("FTX"), Freeport-McMoRan Resource Partners Limited
Partnership, a Delaware limited partnership ("FRP"), and Agrico,
Limited Partnership, a Delaware limited partnership ("Agrico LP").
Capitalized terms used in this Agreement, and not otherwise defined
herein, shall have the meaning given to such terms in the Schedule of
Definitions constituting Exhibit A to the Amended and Restated
Partnership Agreement dated as of July 1, 1993, and further amended and
restated as of May 26, 1995 among IMC GPCo, Agrico LP and MPCo.
W I T N E S S E T H:
WHEREAS, certain of the parties hereto have entered into, among
others, an Amended and Restated Partnership Agreement (the "Partnership
Agreement") dated as of July 1, 1993 among IMC GPCo, Agrico LP and MPCo
and a Parent Agreement (the "Parent Agreement") dated as of July 1,
1993 among Operations (formerly IMC Fertilizer, Inc.), FRP, IMC-Agrico,
FTX and Global (formerly IMC Fertilizer Group, Inc.) with respect to
the formation of IMC-Agrico and to certain matters related thereto;
WHEREAS, Operations owns 500 shares of the Common Stock of
IMC GPCo and MPCo owns 100 shares of the preferred stock of IMC GPCo,
which shares constitute all of the issued and outstanding shares of
capital stock of IMC GPCo;
WHEREAS, Operations, IMC GPCo and MPCo wish to accomplish (i) the
voluntary complete liquidation and dissolution of IMC GPCo, in
accordance with the General Corporation Law of the State of Delaware
("Delaware Law"), (ii) the admission of Operations as a Partner in the
Partnership in accordance with the terms of the Partnership Agreement,
(iii) the assumption by Operations (a) as of the date hereof, of 80% of
all obligations of IMC GPCo incurred by IMC GPCo (x) as a General
Partner of Partnership and (y) pursuant to the terms of the Partnership
Agreement and (b) upon the completion of such liquidation and
dissolution, of all remaining obligations of IMC GPCo, (iv) the
transfer to Operations of the assets, properties, rights and interests
of IMC GPCo, including, but not limited to, its Current Interest and
Capital Interest (both as defined in the Partnership Agreement) in IMC-
Agrico, and its 50% common stock interest in MPCo, after all debts,
obligations and liabilities of IMC GPCo are satisfied and (v) the
repurchase by IMC GPCo of the preferred stock of IMC GPCo owned by MPCo
at its liquidation value;
WHEREAS, Operations and IMC GPCo wish to accomplish the above
described voluntary complete liquidation and dissolution of IMC GPCo in
two phases, as provided in this Agreement and the IMC GPCo Plan of
Liquidation (defined below);
WHEREAS, the parties hereto wish to approve and consent to the
above described voluntary complete liquidation and dissolution of IMC
GPCo as further described in the Agreement and Plan of Complete
Liquidation and Dissolution (the "IMC GPCo Plan of Liquidation")
attached hereto as Exhibit A and to amend or waive certain provisions
of the Partnership Agreement and Parent Agreement, as necessary, to
accomplish and reflect the transactions described in, or related to,
the IMC GPCo Plan of Liquidation;
WHEREAS, FTX and FRP wish to accomplish (i) the liquidation of
Agrico, Inc., a Delaware corporation ("FRP GPCo") and owner of a 0.2%
general partnership interest in Agrico LP, or the merger of FRP GPCo
with and into Freeport Chemical Company, a Delaware corporation
("FCC"), and the liquidation of FCC or the merger of FCC with and into
FTX (the "FRP GPCo/FCC/FTX Mergers") and (ii) the repurchase by FRP
GPCo of the preferred stock of FRP GPCo owned by MPCo at its
liquidation value;
WHEREAS, the FRP GPCo/FCC/FTX Mergers are to be accomplished as
promptly as reasonably practicable pursuant to a certificate of
ownership and merger and board resolutions adopted by FRP GPCo, FCC and
FTX in the forms attached hereto as Exhibit B (the "FRP GPCo/FCC/FTX
Merger Documents"), with the result that, thereafter, FTX (i) shall be
the owner of such 0.2% general partnership interest in Agrico LP and
(ii) shall have assumed as of the date of the completion of such
mergers, all obligations of FRP GPCo and FCC;
WHEREAS, the parties hereto wish to approve and consent to the
FRP GPCo/FCC/FTX Mergers and to amend or waive certain provisions of
the Partnership Agreement and Parent Agreement, as necessary, to
accomplish and reflect the FRP GPCo/FCC/FTX Mergers;
WHEREAS, FTX and FRP wish to have the option of merging or
voluntarily liquidating or dissolving Agrico LP (or transferring the
Partnership Interests of Agrico LP to FRP or an Affiliate of FRP), in
accordance with Delaware Law, at some time in the future as provided in
this Agreement and thereupon transferring the obligations, assets,
properties, rights and interests of Agrico LP to FRP or to an Affiliate
of FRP and admitting FRP or such Affiliate of FRP as a Partner in the
Partnership; and
WHEREAS, the parties hereto wish to approve and consent to the
above described merger, liquidation or dissolution of Agrico LP (or
transfer of its Partnership Interests), when and if it occurs.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Amendments to Partnership and Parent Agreements.
a. Effective as of the date hereof, the Partnership Agreement
shall be amended and restated in its entirety in the form attached
hereto as Exhibit C.
b.Effective as of the date hereof, the Parent Agreement shall
be amended and restated in its entirety in the form attached
hereto as Exhibit D.
SECTION 2. Waiver. a. Only with respect to (i) the transactions
described in, or contemplated by, the IMC GPCo Plan of Liquidation,
(ii) the FRP GPCo/FCC/FTX Mergers in accordance with the terms of the
FRP GPCo/FCC/FTX Merger Documents and (iii) the potential merger,
liquidation or dissolution of Agrico LP (or the transfer by Agrico LP
of its Partnership Interests to FRP or an Affiliate of FRP)
contemplated by Section 3c of this Agreement, the parties hereto hereby
waive the operation and effect of:
A. Section 3.0 of the Parent Agreement, as amended and
restated as of May 26, 1995;
B. with respect to the transactions described in or
contemplated by the IMC GPCo Plan of Liquidation, Sections 7.01,
7.02 and 7.05 of the Partnership Agreement, as amended and
restated as of May 26, 1995;
C. any other provisions or terms of the Transaction
Agreements (as defined in the Partnership Agreement), as amended
and restated as of May 26, 1995, inconsistent with (i) the IMC
GPCo Plan of Liquidation, (ii) the FRP GPCo/FCC/FTX Mergers, (iii)
the merger, liquidation or dissolution of Agrico LP (or the
transfer of its Partnership Interests to FRP or an Affiliate of
FRP) contemplated by Section 3c of this Agreement or (iv) this
Agreement; and
agree that none of (i) the transactions described in, or contemplated
by, the IMC GPCo Plan of Liquidation, (ii) the FRP GPCo/FCC/FTX Mergers
in accordance with the terms of the FRP GPCo/FCC/FTX Merger Documents
or (iii) the potential merger, liquidation or dissolution of Agrico LP
(or the transfer by Agrico LP of its Partnership Interests to FRP or an
Affiliate of FRP) contemplated by Section 3c of this Agreement shall be
deemed to be (i) Triggering Events, as such term is defined in the
Partnership Agreement, as amended, or (ii) transactions, agreements,
arrangements or understandings with Affiliates, as such terms are used
in Sections 6.07 and 9.12 of the Partnership Agreement, as amended and
restated as of May 26, 1995.
b. Each of the parties waives any non-compliance occurring prior
to May 26, 1995 with the terms of Section 9.0(b) of the Parent
Agreement by any of the parties thereto.
SECTION 3. Consent. a. The parties hereto hereby consent to the
voluntary complete liquidation and dissolution of IMC GPCo, such
liquidation and dissolution to be effected in accordance with the plan
of liquidation and dissolution set forth in the IMC GPCo Plan of
Liquidation, and as further set forth below:
(1) Effective as of May 26, 1995 (i) 80% of all
obligations of IMC GPCo incurred by IMC GPCo (x) as a General
Partner of Partnership and (y) pursuant to the terms of the
Partnership Agreement, shall be assumed by Operations and (ii)
(A) 100% of IMC GPCo's 50% common stock interest in MPCo and
(B) 80% of all of the other assets, properties, rights and
interests of IMC GPCo (items (A) and (B) above collectively
being the "Interests"), including but not limited to, its
Current Interest and Capital Interest in IMC-Agrico, cash,
trademarks, tradenames, service marks, copyrights, patents,
indemnification rights and accounts receivable, shall be
transferred, assigned, conveyed and distributed to Operations,
as IMC GPCo's sole shareholder in cancellation of 80% of IMC
GPCo's issued and outstanding shares of common stock.
(2) Effective as of May 26, 1995, the one hundred (100)
shares of Preferred Stock, par value $.01 per share of
IMC GPCo (the "Preferred Stock"), owned by MPCo, shall be
repurchased by IMC GPCo at the liquidation value per share of
$500.00.
(3) After June 4, 1996 and, to the extent practicable,
after identifying and satisfying the remaining debts,
obligations and liabilities, including but not limited to
taxes, license fees and franchise fees of IMC GPCo, and
winding up the business affairs of IMC GPCo, the remaining 20%
of the Interests, and any other remaining obligations, assets,
properties, rights and interests of IMC GPCo, shall be
transferred, assigned, conveyed and distributed to, and
assumed by, Operations, as IMC GPCo's sole shareholder, to
complete the cancellation of IMC GPCo's issued and outstanding
capital stock, and IMC GPCo shall be dissolved in accordance
with the laws of the State of Delaware. Such liquidation and
dissolution of IMC GPCo (the "Final IMC GPCo Liquidating
Distribution") shall be completed in accordance with the
following time schedule:
(A) if (x) FTX and FRP elect by written notice to the
Partners and the Partnership, at any time after November 30,
1995 and on or prior to June 4, 1996, to cause the merger,
liquidation or dissolution of Agrico LP (or the transfer by
Agrico LP of its Partnership Interests to FRP or an Affiliate
of FRP) as contemplated by Section 3c of this Agreement, and
(y) such merger, liquidation or dissolution of Agrico LP (or
such transfer of its Partnership Interests) is completed not
earlier than June 5, 1996 and not later than June 15, 1996,
the Final IMC GPCo Liquidating Distribution shall be
undertaken promptly after June 22, 1997;
(B) if (x) FTX and FRP elect by written notice to the
Partners and the Partnership, at any time after November 30,
1995 and on or prior to June 4, 1996, to cause the merger,
liquidation or dissolution of Agrico LP (or the transfer by
Agrico LP of its Partnership Interests to FRP or an Affiliate
of FRP) as contemplated by Section 3c of this Agreement, but
(y) such merger, liquidation or dissolution of Agrico LP (or
such transfer of its Partnership Interests) is not completed
by June 15, 1996, the Final IMC GPCo Liquidating Distribution
shall be undertaken after June 15, 1996 and shall be completed
no later than June 30, 1996; and
(C) if FTX and FRP do not elect, at any time after
November 30, 1995 and on or prior to June 4, 1996, to cause
the merger, liquidation or dissolution of Agrico LP (or the
transfer by Agrico LP of its Partnership Interests to FRP or
an Affiliate of FRP) as contemplated by Section 3c of this
Agreement, the Final IMC GPCo Liquidating Distribution shall
be undertaken after June 4, 1996 and shall be completed by
June 30, 1996.
b. The parties hereto hereby also consent to (i) the
FRP GPCo/FCC/FTX Mergers to be accomplished as soon as reasonably
practicable on the terms set forth in the FRP GPCo/FCC/FTX Merger
Documents and (ii) the repurchase by FRP GPCo of the preferred
stock of FRP GPCo owned by MPCo at its liquidation value, with the
result that FTX, as a result of such FRP GPCo/FCC/FTX Mergers and
redemption of the FRP GPCo preferred stock (i) becomes the general
partner of Agrico LP and (ii) assumes all outstanding obligations
of FRP GPCo and FCC.
c. The parties hereto hereby also acknowledge and agree that
FTX and FRP will have the option to (i) cause the merger,
liquidation or dissolution of Agrico LP (or the transfer of its
Partnership Interests to FRP or an Affiliate of FRP) under
Delaware Law, provided that such merger, liquidation or
distribution (or such transfer of its Partnership Interests)
results in a transfer of the assets, properties, rights, interests
and all obligations of Agrico LP to FRP or an Affiliate of FRP and
(ii) admit FRP or such Affiliate of FRP as a Partner in the
Partnership. This option may be exercised:
At any time after November 30, 1995 and on or prior to
June 4, 1996 by giving notice of such exercise to the Partners
and the Partnership on or prior to June 4, 1996; provided that
if FTX and FRP exercise such option after November 30, 1995
and on or prior to June 4, 1996, their right to cause such
merger, liquidation or dissolution of Agrico LP (or such
transfer of its Partnership Interests) at that time will be
forfeited unless such merger, liquidation or dissolution of
Agrico LP (or such transfer of its Partnership Interests) is
completed not earlier than June 5, 1996 and not later than
June 15, 1996; provided further that if after November 30,
1995 and on or prior to June 4, 1996 FTX and FRP so exercise
such option, but such merger, liquidation or dissolution of
Agrico LP (or such transfer of its Partnership Interests) is
not completed on or prior to June 15, 1996, FTX and FRP will
have an additional option to cause such merger, liquidation or
dissolution of Agrico LP (or such transfer of its Partnership
Interests) at any time after July 15, 1997; and, provided
further that if after November 30, 1995 and on or prior to
June 4, 1996, FTX and FRP do not so exercise their option to
cause such merger, liquidation or dissolution of Agrico LP (or
such transfer of its Partnership Interests), FTX and FRP will
have the right to exercise such option at any time after
July 15, 1997;
provided however that, notwithstanding the provisions of this paragraph
(c), FTX and FRP may merge, liquidate or dissolve Agrico LP (or
transfer its Partnership Interests) pursuant to this Agreement at any
time so long as FTX and FRP bear, and assume liability for, any
expense, cost or loss (including any increase in taxes, other than any
increase in income taxes which arises solely from the timing of the
reporting of income, deductions and credits attributable to the normal
business activities of the Partnership) suffered by the Partnership,
any other Partner or any of their Related Persons resulting therefrom.
SECTION 4. Miscellaneous. The parties hereto hereby agree that
(i) they shall bear, and assume liability for, any expense, cost or
loss (including any increase in taxes, other than any increase in
income taxes which arises solely from the timing of the reporting of
income, deductions and credits attributable to the normal business
activities of the Partnership) suffered by the Partnership, any other
Partner or any of their Related Persons arising out of transactions
accomplished in violation of the provisions of this Agreement;
(ii) notwithstanding the terms of any provision of the Transaction
Agreements or any other agreement between the parties hereto or their
affiliates, they shall not have any liability to any other party
hereto, nor to any of their Related Persons, shareholders, unitholders,
successors or assigns for any tax consequences of this Agreement, its
execution or the consummation of the transactions contemplated by
Section 3 of this Agreement (except as set forth in Section 4(i) and
the final proviso of Section 3c of this Agreement); and (iii)
notwithstanding any action taken in amending the Partnership Agreement
as contemplated by Section 1a hereof, the current members of the Policy
Committee, any alternates thereto and the Chairman of the Policy
Committee shall not change as a result of the transactions contemplated
hereby.
SECTION 5. Representations and Warranties. Each of the parties
hereto hereby represents and warrants as follows:
a. It is duly organized, validly existing and in good
standing under the laws of its state of formation.
b. The execution and delivery of this Agreement by such party
and the execution and delivery of the IMC GPCo Plan of
Liquidation, the FRP GPCo/FCC/FTX Merger Documents, the
Partnership Agreement, as amended and restated as of May 26, 1995
and the Parent Agreement, as amended and restated as of May 26,
1995 (collectively, the "Other Agreements") by each party thereto
and the performance by each party of their respective obligations
hereunder and under such of the Other Agreements to which it, or
any affiliate thereof, is a party, are within their (and such
affiliates') respective organizational powers, have been duly
authorized by all necessary organizational action by such party
(and such affiliates), have received all necessary governmental
approvals (if any shall be required), and do not and will not
contravene or conflict with any provision of law or of the
organizational instruments of such party (or any affiliate thereof
that is a party thereto), respectively.
c. This Agreement and such of the Other Agreements to which
it, or any affiliate thereof, is a party, is the legal, valid and
binding obligation of each party hereto and thereto (or any
affiliate thereof that is a party hereto or thereto),
respectively, enforceable against them in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
now or hereafter in effect affecting the enforcement of creditors'
rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
SECTION 6. Effect of Amendment, Waiver and Consent.
a. Except as specifically amended above, the Transaction
Agreements, as amended, are and shall continue to be in full force
and effect and are hereby in all respects ratified and confirmed.
b. The execution, delivery and effectiveness of this
Agreement shall not, except as expressly provided herein, operate
as a waiver of any right, power or remedy of any party hereto
under any of the Transaction Agreements, as amended, nor
constitute a waiver of any provision of any of the Transaction
Agreements, as amended.
SECTION 7. 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 and delivered
shall be deemed to be an original and all of which taken together shall
constitute but one and the same agreement.
SECTION 8. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware
without regard to the conflicts of law rules of such state.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment,
Waiver and Consent to be executed as of the date first above written.
IMC GLOBAL INC.
By: XXXXX XXXX
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Name Printed: Xxxxx Xxxx
Title: Vice President
FREEPORT-McMoRan RESOURCE PARTNERS, LIMITED PARTNERSHIP
By: Freeport McMoRan Inc., its
general partner
By:
-------------------------------
Name Printed:
---------------------
Title:
----------------------------
IMC-AGRICO GP COMPANY
By: XXXXXX X. XXXXXXXXX
-------------------------------
Name Printed: Xxxxxx X. Xxxxxxxxx
Title: Vice President
FREEPORT-McMoRan INC.
By:
-------------------------------
Name Printed:
---------------------
Title:
----------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Amendment,
Waiver and Consent to be executed as of the date first above written.
IMC GLOBAL INC.
By:
--------------------------------
Name Printed:
-----------------------
Title:
-------------------------------
FREEPORT-McMoRan RESOURCE PARTNERS, LIMITED PARTNERSHIP
By: Freeport McMoRan Inc., its
general partner
By: XXXXXXX X. XXXXXXXX
-------------------------------
Name Printed: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
IMC-AGRICO GP COMPANY
By:
-------------------------------
Name Printed:
-----------------------
Title:
------------------------------
FREEPORT-McMoRan INC.
By: XXXXXXX X. XXXXXXXX
-------------------------------
Name Printed: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
IMC GLOBAL OPERATIONS INC.
By: XXXXX XXXX
-------------------------------
Name Printed: Xxxxx Xxxx
Title: Vice President
IMC-AGRICO MP, INC.
By: XXXXXX X. XXXXXXXXX
-------------------------------
Name Printed: Xxxxxx X. Xxxxxxxxx
Title: Vice President
AGRICO, LIMITED PARTNERSHIP
By: Agrico, Inc., its
general partner
By:
-------------------------------
Name Printed:
---------------------
Title:
----------------------------
IMC-AGRICO COMPANY
By: IMC-Agrico-MP, Inc.,
its general partner
By: XXXXXX X. XXXXXXXXX
Name Printed: Xxxxxx X. Xxxxxxxxx
Title: Vice President
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IMC GLOBAL OPERATIONS INC.
By:
-------------------------------
Name Printed:
-----------------------
Title:
------------------------------
IMC-AGRICO MP, INC.
By:
-------------------------------
Name Printed:
---------------------
Title:
----------------------------
AGRICO, LIMITED PARTNERSHIP
By: Agrico, Inc., its
general partner
By: XXXXXXX X. XXXXXXXX
-------------------------------
Name Printed: Xxxxxxx X. Xxxxxxxx
Title: Vice President
IMC-AGRICO COMPANY
By: IMC-Agrico-MP, Inc.,
its general partner
By: XXXXXX X. XXXXXXXXX
Name Printed: Xxxxxx X. Xxxxxxxxx
Title: Vice President
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