EXHIBIT 10.62
AMENDMENT NO. 2 TO CANADIAN FIVE-YEAR CREDIT AGREEMENT
Amendment dated as of August 31, 1998 among International
Minerals & Chemical (Canada) Global Limited ("IMC Canada"), IMC Kalium
Canada Ltd. ("IMC Kalium"). International Minerals & Chemical (Canada)
Limited Partnership ("IMC Partnership"), IMC Global Inc. (the
"Guarantor"), the Banks listed on the signature pages hereof (the
"Banks") and Royal Bank of Canada, as Agent (the "Agent").
WHEREAS IMC Canada, IMC Kalium, the Guarantor, the Banks and the
Agent are parties to a Five-Year Canadian Credit Agreement dated as of
December 22, 1997, as amended by an agreement among the same parties
dated as of March 31, 1998 (collectively the "Original Agreement");
AND WHEREAS IMC Canada will subscribe for shares of IMC Esterhazy
Ltd. ("IMC Esterhazy") and will pay C$2,000,000 to IMC Esterhazy in
consideration therefor (the "Initial Transaction");
AND WHEREAS the said C$2,000,000 represents approximately 0.5% of
the operating assets of IMC Canada;
AND WHEREAS IMC Esterhazy will be a direct wholly-owned subsidiary
of IMC Canada;
AND WHEREAS IMC Canada and IMC Esterhazy (collectively, the
"Partners") will form a Saskatchewan limited partnership to be called
International Minerals & Chemical (Canada) Limited Partnership ("IMC
Partnership");
AND WHEREAS IMC Canada and IMC Esterhazy will transfer their
operating assets to IMC Partnership (the "Subsequent Transaction");
AND WHEREAS the parties hereto desire to amend the Original
Agreement to include IMC Partnership as a Borrower and to make such
other amendments as are specified below (the "Original Agreement", as
amended hereby being herein referred to as the "Agreement");
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of
the sum of $1.00 now paid by each party to the other and for other good
and valuable consideration ( the receipt and sufficiency which are
hereby acknowledged) that parties hereto agree as follows:
1. Addition of Borrower.
IMC Partnership is hereby added as a Borrower under the
Agreement. By its execution of this Amendment, IMC Partnership
expressly agrees to become a party to the Agreement and be
bound by the provisions thereof.
2. Transfer of Assets.
The Banks and the Agent hereby confirm their consent to the
Initial Transaction and the Subsequent Transaction.
3. Definitions; References.
(a) Unless otherwise specifically defined herein, each term
used herein which is defined in the Original Agreement
shall have the meaning assigned to such term in the
Original Agreement.
(b) The following definitions are added to Section 1.1 in
their appropriate alphabetical positions:
(c) "change in constitution of IMC Partnership" has the
meaning ascribed to that term for purposes of the
Partnership Act (Saskatchewan).
(d) "IMC Esterhazy means IMC Esterhazy Ltd.
(e) "IMC Partnership" means International Minerals & Chemical
(Canada) Limited Partnership.
(f) "Jointly Liable Borrowers" has the meaning set forth in
Section 1.6.
(g) The definition of "Borrower" in Section 1.1 is amended by
deleting the word "or" following the word "IMC Canada"
and substituting a comma (",") therefore and inserting
the words "or IMC Partnership" following the words "IMC
Kalium".
(h) The definition of "Consolidated Subsidiary" in
Section 1.1 is amended by inserting the words ", for
greater certain and without limitation, IMC Partnership
shall be deemed to be a "Consolidated Subsidiary of the
Guarantor, IMC Canada and IMC Potash" following the word
"Guarantor" at the end of such definition.
(i) The definition of "Substantially-Owned Consolidated
Subsidiary" in Section 1.1 is amended by inserting the
words", and further provided, for greater certainty, and
without limitation, that IMC Partnership shall be deemed
to be a "Substantially-Owned Consolidated Subsidiary""
following the words "a Consolidated Subsidiary" at the
end of such definition.
(j) The definition of "Subsidiary" in Section 1.1 is amended
by inserting he words", for greater certainty, and
without limitation, IMC Partnership shall be deemed to be
a "Subsidiary" of IMC Canada, IMC Potash and the
Guarantor" at the end of such definition following the
words "owned by such Person".
4. Representations and Warranties - Amendments.
(a) The words "Each of the Borrowers" in the introductory
language of Section 4.1 are deleted and the words "IMC
Kalium represents and warrants for itself and only with
respect to itself and IMC Canada and IMC Partnership
jointly and severally" substituted therefor. The words
"for itself" appearing in the introductory language o
Section 4.1 following the words "represent and warrant"
and preceding the word "that;" are deleted and the words
"for themselves and only with respect to themselves" are
substituted therefor.
(b) The words "the Borrower" following the words "Each of" in
section 4.1(a) are deleted and the words "IMC Canada and
IMC Kalium" substituted therefor. The words:
(c) "IMC Partnership is a limited partnership validly
established and existing under the laws of the Province
of Saskatchewan and has all powers and all material
governmental licenses, authorizations, consent and
approvals required to carry n its business as now
conducted and is duly qualified or registered as a
limited partnership in each jurisdiction where such
qualification or registration is required, except where
the failure to so qualify or register could not be
expected to have a Material Averse Effect. IMC Canada
and IMC Esterhazy are, respectively, the general partner
and limited partner of IMC Partnership. IMC Canada has
full power and authority to act as the general partner of
IMC Partnership"
are inserted at the end of Section 4.1(a) following the
period (".").
(d) Section 4.1(b) is deleted in its entirety and the
following substituted therefor:
(e) "Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance
by each of IMC Canada (for itself and in its capacity as
the general partner of IMC Partnership) and IMC Kalium
of this Agreement are within the corporate powers of IMC
Canada and IMC Kalium and the partnership powers of IMC
Partnership, have been duly authorized by all necessary
corporate of other similar action, require no action by
or in respect of, or filing with, any governmental body,
agency or official and do not contravene, or constitute
a default under, any provision of applicable law or
regulation or of the certificate or article so
incorporation or by-laws of either of IMC Canada or IMC
Kalium or the certificate of IMC Partnership or of any
other agreement (including any partnership agreement),
judgment, injunction, order, decree or other instrument
binding upon any of the Borrowers or any of its
Subsidiaries or result in the creation or imposition of
any lien on any asset of any one of the Borrowers or any
of its Subsidiaries."
(f) The words, "(iii) The unaudited pro forma balance sheet
of IMC Partnership as of July 31, 1998 fairly presents
the financial position of IMC Partnership as if it was
existing on such date." are added as new
clause 4.1(d)(iii).
(g) The word "corporate" is inserted following the words
"Each of the Borrowers" in Section 4.1(i).
(h) The words, "(k) IMC Esterhazy. IMC Esterhazy is a
wholly-owned direct Subsidiary of IMC Canada." are added
as a new subsection at the end of Section 4.1.
(i) Section 4.2(a) is deleted in its entirety and the
following substituted therefor:
(j) "(a) The Guarantor repeats the representations and
warranties made in the first sentence of
subsection 4.1(a), and in subsection 4.1(b), 4.1(c),
4.1(f), 4.1(g) and 4.1(i) as if the references to the
"Borrower" (and in the case of the first sentence of
subsection 4.1(a) and of subsection 4.1(b) "IMC Canada
and IMC Kalium") therein (s the context permits) were
read as "Guarantor"."
5. Covenants - Amendments.
(a) The parenthetical "(A)" is added following the words "of
each fiscal year of" and preceding the words "each of"
in Section 5.1(a)(i) and the words "and (B) an unaudited
balance sheet of IMC Partnership and it respective
Subsidiaries as a the end of such fiscal year and the
related unaudited statement of earnings, cash flows and
changes in partnership interest for such fiscal year,
setting forth in each case in comparative form the
figures for the previous fiscal year, all prepared on a
basis consistent with the financial statements referred
to in Section 4.1(d) hereof following the words "IMC
potash" and preceding the semi-colon (";") at the end of
Section 5.1(a).
(b) The words "or any action, event or circumstance" are
inserted following the word "transaction" in
Section 5.1(a)(iii).
(c) The parenthetical phrase "(other than a Borrower): is
inserted after each reference to the word "Subsidiary"
is clauses (i) and (ii) of Section 5.1(d) and clause (i)
of Section 5.2(c).
(d) The word "corporate" is deleted following the words ",
renew and keep in full force and effect, its respective"
in Section 5.1(d) and the word "legal" substituted
therefor.
(e) The words "and will not permit any o its Subsidiaries
to" are inserted immediately following the words "The
Borrower will not" in Section 5.1(g)(ii).
(f) The word "corporate" is deleted from Section 5.1(b) and
the word "operating" substituted therefor.
6. Defaults - Amendments.
(a) The words, ", IMC Esterhazy" are inserted immediately
following the word "Borrowers" and preceding the words
"or any subsidiary of the Borrower" and immediately
following the word "Borrowers" an preceding the words
"or any such Material Subsidiary" in each place such
words appear in Section 6.1(i).
(b) The words ",IMC Esterhazy shall cease to be a direct
wholly-owned Subsidiary of IMC Canada or there shall be
any change in the members of IMC Partnership" are
inserted at the end of Section 6.1(m) following the
word "Guarantor".
7. Guarantee - Amendments.
(a) The word ", revoked" is inserted following the word
"discharged" in the introductory language of
Section 9.2.
(b) The words ", including a change in the constitution of
IMC Partnership" are added following the words
"ownership of any Borrower" in Section 9.2(d).
8. Schedules and Exhibits - Amendments.
(a) The following address is added immediately prior to the
heading "Guarantor" in Schedule II.
International Minerals & Chemical (Canada) Limited
c/o IMC Global Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
Vice President and Assistant Secretary
Phone: 000-000-0000
Fax: 000-000-0000
(b) The words "International Minerals & Chemical (Canada)
Limited Partnership," are added following the words
"IMC Kalium Canada Ltd.," in the first paragraph of
Exhibit A and Exhibit B.
(c) The words "International Minerals & Chemical (Canada)
Limited Partnership," are added following the words
"IMC Kalium Canada Ltd.," in the second paragraph of
Exhibit C.
(d) The parenthetical following the words "IMC Kalium
Canada Ltd.," in the introductory paragraph of
Exhibit D is deleted and the following substituted
therefor "("IMC Kalium"), International Minerals &
Chemical (Canada) Limited Partnership ("IMC
Partnership" and, collectively with IMC Canada and IMC
Kalium, the "Borrowers")" substituted therefor.
(e) A signature line for IMC Partnership is inserted
immediately following the signature line for IMC
Kalium in Exhibit D as follows:
(f) "INTERNATIONAL MINERAL & CHEMICAL (CANADA) LIMITED
PARTNERSHIP by its general partner, INTERNATIONAL
MINERALS & CHEMICAL (CANADA) GLOBAL LIMITED
By:
----------------------------------
Name:
Title:
(g) The words "International Minerals & Chemical (Canada)
Limited Partnership," are added following the words
"IMC Kalium Canada Ltd.," in the first paragraph of
Exhibit F-1 and Exhibit F-2.
9. Miscellaneous Amendments.
(a) The words "International Minerals & chemical (Canada)
Limited Partnership" are inserted on the cover page of
the Agreement following the words "IMC Kalium Canada
Ltd."
(b) The words "International Minerals & chemical (Canada)
Limited Partnership" are inserted following the words
"IMC Kalium Canada Ltd.," in the introductory
paragraph on page one of the Agreement.
(c) The words "Joint and Several and" are inserted in
Section 1.6 preceding the heading "Several Liability".
The words "each Borrower hereunder" in Section 1.6 are
deleted and the words:
(d) "IMC Canada and IMC Partnership (collectively, the
"Jointly Liable Borrowers") hereunder shall be joint
and several with respect to the indebtedness and
liability of each other hereunder. The indebtedness
and liability of the Jointly Liable Borrowers and each
of them hereunder (on the one hand) and IMC Kalium
hereunder (on the other hand)"all" are substituted
therefor.
(e) The word "either" is deleted and the word "any"
substituted therefor preceding the words "of the
Borrower" in Sections 2.1(a) and (b), 2.15(h)(ii),
6.1(a), (b), (d), (g), (i), (l) and (m), 7.4 and 9.5
in the Agreement and in the proviso of the final
paragraph of Section 6.1.
(f) The words "either or both" are deleted from the
parenthetical in the definition of "Acquisition" in
Section 1.1 and the word "any" substituted therefor.
(g) The word "either" is deleted and the word "any"
substituted therefor preceding the words "Borrower of
the Guarantor" in Section 6.3.
(h) The words "Neither" and "either" are deleted from the
introductory language of Section 5.1(i) and the words
"None" and "any", respectively, substituted therefor.
(i) The word "both" is deleted following the word "means"
and preceding the words "of the foregoing" in the
definition of "Borrower" in Section 1.1 and the word
"all" substituted therefor.
(j) The word "both" is deleted from the definition of
"Issuing Bank" in Section 1.1 and the word "all"
substituted therefor.
(k) The word "both" is deleted from clause (i) of
Section 2.1(b) and the word "all" substituted
therefor.
(l) The words, ", a certificate of an Approved Officer of
such Borrower setting forth the details thereof" are
added at the end of Section 5.1(a)(iii) following the
words "Event of Default" and preceding the semi-colon
(";").
10. Representations and Warranties.
(a) IMC Kalium represents and warrants for itself and only
with respect to itself and IMC Canada and IMC
Partnership jointly and severally represent for
themselves and only with respect to themselves that as
of the date hereof and after giving effect hereto:
(i) no Default has occurred and is continuing; and
(ii) each representation and warranty of the Borrowers
set forth in the Agreement is true and correct as
though made on the date hereof.
(b) IMC Canada and the Guarantor jointly and severally
represent and warrant that the Initial Transaction
and IMC Canada, IMC Partnership and the Guarantor
jointly and severally represent and warrant that the
Subsequent Transaction were, in each case, within the
corporate power of the Partners, have been duly
authorized by all necessary corporate action, require
no action by or in respect of, or filing with, any
governmental boy agency or official (other than those
which have taken place) and do not contravene or
constitute a default under any provision of
applicable law or regulation or of the certificate of
incorporation or by-law of either of the Partners or
the certificate of IMC Partnership or any other
agreement (including any partnership agreement),
judgment, injunction, order, deed or other instrument
brought against either of the Partners or the
Guarantor or any of their respective subsidiaries or
result in the creation of any lien on any asset of
any one of the Partners, the Guarantor or any of
their respective Subsidiaries.
10. Confirmation of Guarantee.
The Guarantor hereby acknowledges the foregoing amendments
to the Original Agreement and hereby expressly confirms
that the guarantee (as amended hereby) provided by the
Guarantor pursuant to Article 9 of the Agreement and the
liability of the Guarantor thereunder remains in full
force and effect notwithstanding the amendments to the
Original Agreement made pursuant hereto. Without, in any
way limiting the foregoing, the Guarantor hereby
acknowledges and confirms that its guarantee extends to
and includes all obligations of IMC Partnership under the
Agreement.
11. Governing Law.
This Amendment shall be governed by and construed in
accordance with the laws of the Province of Ontario and
the federal laws of Canada applicable therein.
12. Counterparts; Effectiveness.
This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the
same effect as if the signature thereto and hereto were
upon the same instrument. This Amendment shall become
effective as of the date hereof when the Agent shall have
received (i) duly executed counterparts hereof signed by
each of the Borrowers, the Guarantor and the Required
Banks (or, in the case of any party as to which an
executed counterpart shall not have been received, the
Agent shall have received telegraphic, telex or other
written confirmation from such party o execution of a
counterpart hereof by such party) and (ii) an unaudited
pro forma balance sheet of IMC Partnership as of July 31,
1998.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed as of the date first above written.
INTERNATIONAL MINERALS & CHEMICAL (CANADA) GLOBAL LIMITED
By /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title:
IMC KALIUM CANADA LTD.
By /s/ Rose Xxxxx Xxxxxxxx
Name: Xxxx Xxxxx Xxxxxxxx
Title:
IMC GLOBAL INC.
By /s/ Rose Xxxxx Xxxxxxxx
Name: Rose Xxxxx Xxxxxxxx
Title:
INTERNATIONAL MINERALS & CHEMICAL (CANADA) LIMITED PARTNERSHIP by its
general partner, INTERNATIONAL MINERALS & CHEMICAL (CANADA) GLOBAL
LIMITED
By /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title:
ROYAL BANK OF CANADA,
as Agent
By /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title:
ROYAL BANK OF CANADA,
as Bank
By /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title:
BANK OF MONTREAL,
as Bank and Co-Agent
By /s/ Xxx X. Xxxxxxx
Name: Xxx X. Xxxxxxx
Title:
FIRST CHICAGO NBD BANK, CANADA
By /s/ T. Xxxxxx Xxxxx
Name: T. Xxxxxx Xxxxx
Title:
X.X. XXXXXX CANADA,
as Bank and Co-Agent
By /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title:
THE CHASE MANHATTAN BANK OF CANADA
By /s/ Xxxxxxxxxxx Xxxx
Name: Xxxxxxxxxxx Xxxx
Title:
