Exhibit 10.64
AMENDMENT NO. 1
TO
SECOND AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
AND
SECOND AMENDED AND RESTATED RELATED PARTY GUARANTY
THIS AMENDMENT No. 1 ("Amendment") dated as of September 30,
1996 by and among IMC GLOBAL INC., a Delaware corporation ("Global"),
THE VIGORO CORPORATION, a Delaware corporation ("Vigoro"), the
PRUDENTIAL INSURANCE COMPANY OF AMERICA ("Prudential") and PRUCO LIFE
INSURANCE COMPANY ("Pruco"). Capitalized terms used in this Amendment
which are not otherwise defined herein, shall have the meanings given
such terms in each of the "Purchase Agreement" and the "Guaranty" (as
defined below), as applicable.
WITNESSETH:
WHEREAS, Global, Vigoro, Prudential and Pruco are parties to
that certain Second Amended and Restated Note Purchase Agreement dated
as of February 28, 1996 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Purchase
Agreement");
WHEREAS, Global, Vigoro and Prudential are parties to that
certain Second Amended and Restated Related Party Guaranty dated as of
February 28, 1996 (as the same may be amended, restated, supplemented
or otherwise modified from time to time, the "Guaranty") in connection
with that certain Second Amended and Restated Note Purchase Agreement
dated as of February 28, 1996 among Kalium Canada, Ltd. and Prudential;
WHEREAS, Global has requested that Prudential and Pruco amend
the Purchase Agreement and the Guaranty 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, Prudential and Pruco 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, Global, Vigoro, Prudential and Pruco hereby agree as
follows.
1. Amendments to the Purchase Agreement. Effective as of
the date hereof and subject to the satisfaction of the conditions
precedent set forth in Section 3 below, the Purchase Agreement is
hereby amended as follows:
1.1. Section 5A(ii)(b) of the Purchase Agreement is hereby
amended to delete the terms contained therein in their entirety and to
substitute the following therefor:
"(b) for fiscal year 1996 only, a Consolidated unaudited balance
sheet of each Borrower and its Subsidiaries as of the end of such
fiscal year and Consolidated unaudited statements of income of
such Borrower and its Subsidiaries for such fiscal year"
1.2. Section 5A(iv) of the Purchase Agreement is hereby
amended to delete the phase "6B(2)(ii)(M)" now occurring therein and to
substitute the following therefor: "6B(2)(ii)(L)"; and to delete the
term "6B(2)(iii)(G)" now occurring therein.
1.3. Section 5K(b) of the Purchase Agreement is hereby
amended to delete the phrase "interest payable" now occurring therein
and to substitute the following therefor: "interest charges".
1.4. Section 6B(2)(ii)(G) of the Purchase Agreement is hereby
amended to delete the phrase ", which, prior to the Release Date, shall
not exceed, in the aggregate, $300,000,000 at any time outstanding" now
occurring therein.
2. Amendments to the Guaranty. Effective as of the date
hereof and subject to the satisfaction of the conditions precedent set
forth in Section 3 below, the Guaranty is hereby amended as follows:
2.1. Section 5A(ii)(b) of the Guaranty is hereby amended to
delete the terms contained therein in their entirety and to substitute
the following therefor:
"(b) for fiscal year 1996 only, a Consolidated unaudited balance
sheet of each Borrower and its Subsidiaries as of the end of such
fiscal year and Consolidated unaudited statements of income of
such Borrower and its Subsidiaries for such fiscal year"
2.2. Section 5A(iv) of the Guaranty is hereby amended to
delete the phrase "6B(2)(ii)(M)" now occurring therein and to
substitute the following therefor: "6B(2)(ii)(L)"; and to delete the
term "6B(2)(iii)(G)" now occurring therein.
2.3. Section 5J(b) of the Guaranty is hereby amended to
delete the phrase "interest payable" now occurring therein and to
substitute the following therefor: "interest charges".
2.4. Section 6B(2)(ii)(G) of the Guaranty is hereby amended
to delete the phrase ", which, prior to the Release Date, shall not
exceed, in the aggregate, $300,000,000 at any time outstanding" now
occurring therein.
3. Conditions of Effectiveness of this Amendment. This
Amendment shall become effective and be deemed effective as of the date
hereof (the "Effective Date"), if, and only if Prudential shall have
received duly executed originals of this Amendment from Global, Vigoro,
Prudential and Pruco.
4. Representations and Warranties of Global and Vigoro.
Global and Vigoro hereby represent and warrant as follows:
(a) This Amendment, the Purchase Agreement and the Guaranty
as previously executed and as amended hereby, constitute legal, valid
and binding obligations of Global and Vigoro and are enforceable
against Global and Vigoro in accordance with their terms.
(b) Upon the effectiveness of this Amendment, Global and
Vigoro hereby reaffirm all covenants, representations and warranties
made in each of the Purchase Agreement and the Guaranty 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 Purchase Agreement.
(a) Upon the effectiveness of Section 1 hereof, on and after
the date hereof, each reference in the Purchase Agreement to "this
Purchase Agreement," "hereunder," "hereof," "herein" or words of like
import shall mean and be a reference to the Purchase Agreement as
amended hereby.
(b) Except as specifically amended above, the Purchase
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 Prudential or Pruco, nor
constitute a waiver of any provision of the Purchase Agreement or any
other documents, instruments and agreements executed and/or delivered
in connection therewith.
6. Reference to the Effect on the Guaranty.
(a) Upon the effectiveness of Section 1 hereof, on and after
the date hereof, each reference in the Guaranty to "this Guaranty,"
"hereunder," "hereof," "herein" or words of like import shall mean and
be a reference to the Guaranty as amended hereby.
(b) Except as specifically amended above, the Guaranty 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 Prudential, nor constitute a
waiver of any provision of the Guaranty or any other documents,
instruments and agreements executed and/or delivered in connection
therewith.
7. 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.
8. 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.
9. Entire Agreement. This Amendment, taken together with
the Purchase Agreement, the Guaranty and all of the other Transaction
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.
10. Governing Law. This Amendment shall be governed by and
construed in accordance with the internal laws (without regard to the
conflict of laws provisions) of the State of Illinois.
11. No Course of Dealing. Prudential and Pruco have entered
into this Amendment on the express understanding with Global and Vigoro
that in entering into this Amendment Prudential and Pruco are not
establishing any course of dealing with Global and Vigoro.
Prudential's and Pruco's rights to require strict performance with all
the terms and conditions of the Purchase Agreement and the Guaranty as
amended by this Amendment and the other Transaction Documents shall not
in any way be impaired by the execution of this Amendment.
IN WITNESS WHEREOF, this Amendment has been duly executed as
of the day and year first above written.
IMC GLOBAL INC.
By:
Name:
Title:
THE VIGORO CORPORATION
By:
Name:
Title:
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:
Name:
Title:
PRUCO LIFE INSURANCE COMPANY
By:
Name:
Title:
