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.
0000-0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxx
Xxxxxx X0X 0X0
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
Xxx Xxxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
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,
Xxx Xxxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, 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 xxxx 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, Xxxxxxx & Xxxxxxx and/or
XxxXxxxxxx, Xxxxxx & 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 Xxxxxxxxx X. Xxxxx, 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,
Xxxxxx Xxxxxx & Xxxxx 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 xxxxxxxxx 0X, 0X, xxxxxxxxx 0X, 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 xxxx
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 Xxxxxx 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., Xxx 0000, Xxxxxx, Xxxxxxxxxxxx
Xxxxxx X0X 0X0, Attention: Vice President-Finance, with a copy to IMC
Global Inc., 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, 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 0000 Xxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000 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
Xxxx, 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
