AMENDMENT NO. 1 AND CONSENT
TO
CREDIT AND GUARANTEE AGREEMENT
THIS AMENDMENT NO. 1 AND CONSENT ("Amendment") dated as of May
22, 1998 by and among North American Chemical Company, North American Salt
Company, Great Salt Lake Minerals Corporation (collectively, the "Borrowers"),
Xxxxxx Chemical North America, Inc. ("HCNA"), as guarantor (together with the
other "Guarantors" (as defined in the Credit Agreement), the "Guarantors"), IMC
Global Inc., as the sole Lender (the "Lender"), and IMC Global Inc., as
administrative agent (in such capacity, the "Administrative Agent") and as
collateral agent (in such capacity, the "Collateral Agent") for the Lender.
Capitalized terms used in this Amendment which are not otherwise defined herein,
shall have the meanings given such terms in the Credit Agreement.
WITNESSETH:
WHEREAS, the Borrowers, the Guarantors, the Lender, the
Administrative Agent and the Collateral Agent are parties to that certain Credit
and Guarantee Agreement, dated as of October 15, 1993, as amended and restated
as of February 27, 1997 (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement");
WHEREAS, the Borrowers have requested that the Lender and the
Administrative Agent amend the Credit Agreement on the terms and conditions set
forth herein in order to modify certain covenants contained therein and make
certain other correlative changes resulting therefrom;
WHEREAS, the Administrative Agent and the Lender have agreed
to enter into this Amendment on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrowers, the Lender and the Administrative Agent hereby agree as follows:
1. Amendments to the Credit Agreement. Effective as of
April 1, 1998 and subject to the satisfaction of the conditions precedent set
forth in Section 3 below, the Credit Agreement is hereby amended as follows:
1.1. Section 1 of the Credit Agreement is hereby amended to
delete in their entirety the definitions of "Eligible Inventory" and "Eligible
Receivables" now appearing therein, and to substitute the following therefor:
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"Eligible Inventory": shall mean, with respect to the
relevant Borrower, an amount equal to the book value of all of
the inventory ("Inventory") of such Borrower, determined in
accordance with GAAP consistently applied.
"Eligible Receivables": shall mean, with respect to the
relevant Borrower, an amount equal to the book value of all of
the accounts receivable ("Accounts") of such Borrower,
determined in accordance with GAAP consistently applied.
1.2. Sections 9.2(a), (b), (c), (d) and (f), 9.5(c) and 9.10
of the Credit Agreement are hereby deleted in their entirety and of no further
force and effect.
1.3. Section 9.2(e) of the Credit Agreement is hereby amended
to delete the phrase "each of (i) the end of the first two weeks of each Interim
Accounting Period and (ii)" now appearing therein.
1.4. Section 10 of the Credit Agreement is hereby deleted
in its entirety and of no further force and effect.
1.5. Section 12 of the Credit Agreement is hereby deleted
in its entirety and the following is substituted therefor:
"If any of the following events shall occur and be continuing:
(a) any Borrower shall fail to pay when due any
principal of any Loan or any L/C Obligation, or shall fail to
pay, within five (5) Business Days after notice from the
Administrative Agent, any interest, fees, or any other amount
payable hereunder;
(b) any Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement for thirty
(30) days after notice thereof has been given to such Borrower
by the Administrative Agent; or
(c) (i) HCNA or any of its Subsidiaries shall
commence any case, proceeding or action, or (in the case of
any Canadian Subsidiary) file a notice of intention to
commence any of the foregoing, (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating
to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with
respect to it, or seeking to adjudicate it a bankrupt or
insolvent or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or
other similar official for it or for all or any substantial
part of its assets, or HCNA or any of its Subsidiaries shall
make a general assignment for the benefit of its creditors; or
(ii) there shall be commenced against HCNA or any of its
Subsidiaries any case, proceeding or action of a nature
referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment
or (B) remains undismissed, undischarged or unbonded for a
period of 60 days; or
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(iii) there shall be commenced against HCNA or any of its
Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its
assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry
thereof; or (iv) HCNA or any of its Subsidiaries shall take
any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or (v) HCNA or any of its
Subsidiaries shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they
become due or otherwise be insolvent under applicable law of
any jurisdiction;
then, and in any such event, (A) if such event is an
Event of Default specified in clause (i) or (ii) of Section
12(c) above with respect to any Borrower, automatically the
Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement (including, without
limitation, all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) and the
Loans shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of
the following actions may be taken: (i) with the consent of
the Aggregate Required Lenders, the Administrative Agent may,
or upon the request of the Aggregate Required Lenders, the
Administrative Agent shall, by notice to the Borrowers declare
the Commitments to be limited, restricted or terminated
forthwith, whereupon the Commitments shall immediately so be
limited, restricted or terminated; and (ii) with the consent
of the Aggregate Required Lenders, the Administrative Agent
may, or upon the request of the Aggregate Required Lenders,
the Administrative Agent shall, by notice to the Borrowers,
declare the Loans hereunder (with accrued interest thereon)
and all other amounts owing under this Agreement (including,
without limitation, all amounts of L/C Obligations, whether or
not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder)
and the Loans to be due and payable forthwith, whereupon the
same shall immediately become due and payable (the date of any
termination or declaration referred to in this paragraph, the
"Acceleration Date")."
Except as expressly provided above in this Section 12,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
2. Consent. Each of the Administrative Agent and the Lender
hereby consent to permit each of HCNA and/or Sifto Canada, Inc., as applicable,
to make one or more offers to purchase the Public Debt, provided each such offer
is made no later than December 31, 1998.
3. Conditions of Effectiveness of this Amendment. This
Amendment shall become effective and be deemed effective as of April 1, 1998
(the "Effective Date"), if, and only if the Administrative Agent shall have
received duly executed originals of this Amendment from the Borrowers, the
Guarantors, the Administrative Agent, the Collateral Agent and the Lender.
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4. Representations and Warranties of the Borrowers and the
Guarantors. The Borrowers and the Guarantors hereby represent and warrant as
follows:
(a) This Amendment and the Credit Agreement as previously
executed and as amended hereby, constitute legal, valid and binding obligations
of the Borrowers and the Guarantors and are enforceable against the Borrowers
and the Guarantors in accordance with their terms.
(b) Upon the effectiveness of this Amendment, the Borrowers
and the Guarantors hereby reaffirm all covenants, representations and warranties
made in the Credit Agreement to the extent the same are not amended hereby,
agree that all such covenants, representations and warranties shall be deemed to
have been remade as of the effective date of this Amendment.
5. Reference to the Effect on the Credit Agreement.
(a) Upon the effectiveness of Section 1 hereof, on and after
the date hereof, each reference in the Credit Agreement to "this Agreement,"
"this Credit Agreement," "hereunder," "hereof," "herein" or words of like import
shall mean and be a reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit Agreement
and all other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Administrative Agent or the Lender, nor
constitute a waiver of any provision of the Credit Agreement or any other
documents, instruments and agreements executed and/or delivered in connection
therewith.
6. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
7. Counterparts. This Amendment may be executed by one or
more of the parties to the Amendment on any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument.
8. Entire Agreement. This Amendment, taken together with the
Credit Agreement and all of the other Loan Documents, embodies the entire
agreement and understanding of the parties hereto and supersedes all prior
agreements and understandings, written and oral, relating to the subject matter
hereof.
9. Governing Law. This Amendment shall be governed by and
construed in accordance with the internal laws of the State of New York.
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IN WITNESS WHEREOF, this Amendment has been duly executed as
of the day and year first above written.
NORTH AMERICAN SALT COMPANY,
as Borrower and as Guarantor
By: /s/ J. Xxxxxxxx Xxxxx
Name: J. Xxxxxxxx Xxxxx
Title: Vice President
NORTH AMERICAN CHEMICAL COMPANY,
as Borrower and as Guarantor
By: /s/ J. Xxxxxxxx Xxxxx
Name: J. Xxxxxxxx Xxxxx
Title: Vice President
GREAT SALT LAKE MINERALS CORPORATION,
as Borrower and as Guarantor
By: /s/ J. Xxxxxxxx Xxxxx
Name: J. Xxxxxxxx Xxxxx
Title: Vice President
IMC GLOBAL INC., as Administrative Agent,
Collateral Agent and as Lender
By: /s/ J. Xxxxxxxx Xxxxx
Name: J. Xxxxxxxx Xxxxx
Title: Sr. Vice President and Chief Executive Officer
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Acknowledged and agreed as of the 22d day of May, 1998:
XXXXXX CHEMICAL NORTH AMERICA
INC., as Guarantor
By: /s/ J. Xxxxxxxx Xxxxx
Name: J. Xxxxxxxx Xxxxx
Title: Vice President
NAMSCO, INC., as Guarantor
By: /s/ J. Xxxxxxxx Xxxxx
Name: J. Xxxxxxxx Xxxxx
Title: Vice President
XXXXX SALT COMPANY, as Guarantor
By: /s/ J. Xxxxxxxx Xxxxx
Name: J. Xxxxxxxx Xxxxx
Title: Vice President
GSL CORPORATION, as Guarantor
By: /s/ J. Xxxxxxxx Xxxxx
Name: J. Xxxxxxxx Xxxxx
Title: Vice President
GSL HOLDINGS, INC., as Guarantor
By: /s/ J. Xxxxxxxx Xxxxx
Name: J. Xxxxxxxx Xxxxx
Title: Vice President
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THE XXXXXXXXXX & NORTHERN RAILWAY
COMPANY, as Guarantor
By: /s/ J. Xxxxxxxx Xxxxx
Name: J. Xxxxxxxx Xxxxx
Title: Vice President
NORTH AMERICAN TERMINALS, INC.,
as Guarantor
By: /s/ J. Xxxxxxxx Xxxxx
Name: J. Xxxxxxxx Xxxxx
Title: Vice President
OLDEXAER, INC., as Guarantor
By: /s/ J. Xxxxxxxx Xxxxx
Name: J. Xxxxxxxx Xxxxx
Title: Vice President
WRNM HOLDINGS, INC., as Guarantor
By: /s/ J. Xxxxxxxx Xxxxx
Name: J. Xxxxxxxx Xxxxx
Title: Vice President
WHITE RIVER NAHCOLITE MINERALS
LIMITED LIABILITY COMPANY, as
Guarantor
By: /s/ J. Xxxxxxxx Xxxxx
Name: J. Xxxxxxxx Xxxxx
Title: Vice President
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