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Exhibit 10(m)
ASSIGNMENT AND CONSENT AGREEMENT
THIS AGREEMENT is made effective as of the 31st day of August, 1998.
BETWEEN:
INTERNATIONAL MINERALS & CHEMICAL (CANADA)
GLOBAL LIMITED, a corporation incorporated
pursuant to the laws of Canada,
(hereinafter referred to as "IMC")
- and -
INTERNATIONAL MINERALS & CHEMICAL
(CANADA) LIMITED PARTNERSHIP, a limited
partnership formed under the laws of Saskatchewan,
by its General Partner, INTERNATIONAL MINERALS
& CHEMICAL (CANADA) GLOBAL LIMITED,
(hereinafter referred to as "IMC LP")
- and -
POTASH CORPORATION OF SASKATCHEWAN INC.,
a corporation incorporated pursuant to the laws of
Saskatchewan,
(hereinafter referred to as "PCS")
WHEREAS:
1. IMC and PCS are parties to a Restated Mining and Processing Agreement
dated January 31, 1978, as amended from time to time (the "Processing
Agreement");
2. As part of a restructuring of its business operations, IMC wishes to
transfer all of its operating assets, which includes all of IMC's interest
in and to the Processing Agreement and the Esterhazy Facilities and
Reserves, as defined in the Processing Agreement (herein collectively
called the "Esterhazy Assets") to IMC LP, a limited partnership formed
between IMC, as the general partner holding a 99.5% partnership interest,
and its wholly-owned subsidiary, IMC Esterhazy Ltd. ("IMC Esterhazy"), as
the limited partner holding a .5% partnership interest; and
3. PCS consents to the assignment of the Processing Agreement by IMC to IMC
LP in accordance with the terms and conditions contained herein;
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. In consideration of the sum of One Dollar ($1.00) and other valuable
consideration paid by IMC LP to IMC, the receipt and sufficiency of which are
hereby acknowledged, IMC hereby assigns to IMC LP all of its interest in and to
the Processing Agreement.
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2. Subject to the terms hereof, PCS hereby consents to the assignment (the
"Assignment") of all of IMC's interest in and to the Processing Agreement by IMC
to IMC LP.
3. For purposes of the Assignment only and without prejudice to any rights
of first refusal or other preferential rights which may arise after the
effective date of this Agreement (the "Effective Date") by the terms of the
Processing Agreement, PCS hereby waives any rights of first refusal or other
preferential rights to acquire any of IMC's interest in any of the Esterhazy
Assets pursuant to the provisions of the Processing Agreement and, in
particular, pursuant to section 11.04 thereof, as a result of the Assignment.
4. IMC LP hereby accepts the assignment set forth in paragraph 1 hereof
and does hereby agree that from and after the Effective Date, it shall perform,
fulfil and discharge all of the covenants, obligations and liabilities of IMC
under the Processing Agreement or any revision or substitution thereof, to the
same extent as if it had been party thereto in the place and stead of IMC. For
this purpose, it is agreed that the reference in section 11.03 of the
Processing Agreement to "INTERNATIONAL" shall henceforth be considered for all
purposes as a reference to IMC.
5. PCS acknowledges, accepts and agrees that from and after the Effective
Date and subject to the terms hereof, IMC LP is substituted as a party to the
Processing Agreement in the place and stead of IMC and is entitled to hold and
enforce all the rights and privileges of IMC under the Processing Agreement.
6. IMC hereby irrevocably and unconditionally guarantees to PCS the
performance of all of the obligations of IMC LP under the Processing Agreement,
and for purposes of the terms of the Processing Agreement, PCS agrees that IMC
is an acceptable guarantor.
7. Nothing in this Agreement shall have the effect of relieving IMC from
those of its obligations under the Processing Agreement which arose prior to
the execution of this Agreement.
8. Each of IMC and IMC LP hereby represents and warrants to PCS that:
(a) IMC, as general partner of IMC LP, has been duly authorized by
IMC LP to execute this Agreement for and on behalf of IMC LP; and
(b) the assets and liabilities of IMC immediately before the
Effective Date were substantially the same as the collective assets
and liabilities of IMC and IMC LP on the Effective Date.
9. IMC agrees that it will not, without the prior consent of PCS, which
consent shall not be withheld unreasonably, (i) cease to be the general partner
of IMC LP, (ii) transfer, assign or relinquish any of its partnership interest
in IMC LP to any party other than IMC Esterhazy, or (iii) cease to hold 100% of
the shares of IMC Esterhazy.
10. The parties hereto agree to perform such further and other acts and to
execute and deliver all such further and other documents and assurances as may
reasonably be required in order to fully perform and carry out the terms of this
Agreement.
11. Notwithstanding any rule of law, equity or statute to the contrary,
this Agreement shall not result in the merger of any covenant, representation or
warranty found in any previous agreement, transfer or document.
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12. Any notices, requests, demands and other communications hereunder shall
be in writing and shall be furnished to the parties at the addresses given
below. Such notices and other communications shall be deemed to have been duly
given if delivered personally, by telecopier (confirmation of receipt received
by return telecopy) or mailed by registered mail, return receipt requested to:
IMC and IMC LP:
International Minerals & Chemical
(Canada) Global Limited
General Delivery
Xxxxxxxxx, Xxxxxxxxxxxx
X0X 0X0
Attention: Mr. Xxx Xxxx
Fax: (000) 000-0000
PCS:
Potash Corporation of Saskatchewan Inc.
PCS Tower
000, 000 - 0xx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxx
X0X 0X0
Attention: President, PCS Potash
Fax: (000) 000-0000
13. This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective permitted successors and assigns.
14. This Agreement may be executed in several counterparts, each of which
when so executed shall be deemed to be an original and shall have the same force
and effect as an original but such counterparts together shall constitute one
and the same instrument. A telecopy or fax copy of an executed copy of this
Agreement shall have the same force and effect as an originally executed copy of
this Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement
effective as of the day and year first above written.
INTERNATIONAL MINERALS & CHEMICAL
(CANADA) GLOBAL LIMITED
Per: /s/____________________________
Per: /s/____________________________
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INTERNATIONAL MINERALS & CHEMICAL
(CANADA) LIMITED PARTNERSHIP BY ITS GENERAL
PARTNER INTERNATIONAL MINERALS & CHEMICAL
(CANADA) GLOBAL LIMITED
Per: /s/_____________________________
Per: /s/_____________________________
POTASH CORPORATION OF SASKATCHEWAN INC.
Per: /s/_____________________________
Per: /s/_____________________________
