Exhibit
4.ii


 


AMENDMENT No. 5 dated as of October 8, 2004, to the Amended and
Restated Credit Agreement dated as of May 17, 2001, amended and restated
as of February 21, 2003 (the “Credit Agreement”), among IMC GLOBAL
INC. (the “Company”), the Borrowing Subsidiaries party thereto (together
with the Company, the “Borrowers”), the Lenders party thereto, JPMorgan
Chase Bank, as administrative agent (the “Administrative Agent”), and
Goldman Sachs Credit Partners L.P., as syndication agent.


 


WHEREAS, the Company has requested, and the
undersigned Lenders and the Administrative Agent have agreed, upon the terms
and subject to the conditions set forth herein, that the Credit Agreement be
amended as provided herein;


 


NOW, THEREFORE, in consideration of the
mutual agreements herein contained and other good and valuable consideration,
the sufficiency and receipt of which are hereby acknowledged, and subject to
the conditions set forth herein, the parties hereto hereby agree as follows:


 


SECTION 1.  Amendments to
Section 1.01.  Section 1.01 of the
Credit Agreement is hereby amended as follows:


 


(a)  The
definition of “Change in Control” is hereby amended to read in its
entirety as follows:


 


“Change in Control” means either (a)
that the Company ceases to be a wholly owned subsidiary of Mosaic or
(b) the failure by Cargill, Incorporated to beneficially own and control,
directly or indirectly, Equity Interests of Mosaic representing at least a
majority of the aggregate ordinary voting power represented by the issued and
outstanding Equity Interests of Mosaic.


 


(b)  The
definition of “Consolidated EBITDA” is hereby amended to read in its
entirety as follows:


 


“Consolidated EBITDA” means, for any period,
the consolidated operating earnings from (i) continuing operations of the Company,
(ii) continuing operations of the Company’s consolidated Subsidiaries and (iii)
discontinued operations of the Company and its consolidated Subsidiaries, in
each case for such period before interest, taxes, depreciation, depletion,
amortization, other income and expense, minority interests, the cumulative
non-cash effect of changes in accounting standards and other non-cash
adjustments to operating earnings (other than any such non-cash charge to the
extent that it represents an accrual of or reserve for cash expenditures in any
future period), plus (except for purposes of determining the Applicable Rate)
any fees, expenses and other charges (up to an aggregate amount not to exceed
$40,000,000) incurred by the Company in consummating the transactions
contemplated by the Merger Agreement to the


 





















 


extent deducted in calculating such
consolidated operating earnings and, and plus (except for purposes of
determining the Applicable Rate) any costs (up to an aggregate amount not to
exceed $58,000,000) identified by Ernst & Young arising from the temporary
shutdown of phosphates operating assets of the Company and its Subsidiaries
during the Company’s 2001 fiscal year that were deducted in calculating such
consolidated operating earnings during such period and minus any
non-recurring or other charges not included in consolidated operating earnings
which are cash or represent an accrual of or reserve for cash expenditures in
future periods; provided that there shall be excluded the consolidated
operating earnings (if positive) of any Subsidiary to the extent that the
declaration of dividends or similar distributions by that Subsidiary of such
consolidated operating earnings is restricted, other than due to restrictions
imposed by the Argus Lease. Except for purposes of Section 6.13, Consolidated
EBITDA for each four-quarter period will be adjusted on a pro-forma basis to
reflect any Acquisition or Disposition closed during such period as if such
Acquisition or Disposition had been closed on the first day of such period.


 


(c)  The
following new definitions are inserted in the appropriate alphabetical order:


 


“Cargill Transactions Effective Date”
means the Effective Date as such term is defined in the Merger Agreement.


 


“High Yield Senior Notes” means the
notes issued pursuant to the New Senior Notes Indentures and the 2003
Indenture.


 


“Merger Agreement” means the Agreement
and Plan of Merger and Contribution, dated as of January 26, 2004, as
amended by Amendment No. 1 thereto dated as of June 15, 2004, among the Company,
Mosaic, GNS Acquisition Corp., Cargill, Incorporated and Cargill Fertilizer,
Inc.


 


“Mosaic” means The Mosaic Company, a
Delaware corporation.


 


“2003 Indenture” means the Indenture
dated as of August 1, 2003 between the Company, the guarantors named therein
and BNY Midwest Trust Company, as Trustee.


 


SECTION
2.  Amendment to Section 6.01.  Section 6.01(a) of the Credit Agreement is
hereby amended by inserting the following sentence at the end hereof:


 


Notwithstanding the foregoing, the Company
will not, and will not permit any Subsidiary to, create, incur, assume or
permit to exist any Indebtedness owing to any Affiliate (other than to any of
the Company and its Subsidiaries, to the extent permitted hereunder) unless the
obligor in respect of such Indebtedness is a Loan Party and such Indebtedness
is subordinated to the Obligations on terms satisfactory to the Administrative
Agent.


 


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SECTION
3.  Amendment to Section 6.02.  Section 6.02(a) of the Credit Agreement is
hereby amended by inserting the following sentence at the end thereof:


 


Notwithstanding the foregoing, the Company
will not, and will not permit any Subsidiary to, create, incur, assume or
permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts
receivable) or rights in respect of any thereof, in favor of any Affiliate of
the Company (other than in favor of any of the Company and its Subsidiaries, to
the extent permitted hereunder), provided, that, for the avoidance of doubt and
without any implication to the contrary, the Company shall be permitted to
enter into any collection, sales, servicing or other arrangements with respect
to customer accounts, including with any Affiliate of the Company, otherwise
permitted to be entered into under this Agreement.


 


SECTION
4.  Amendment to Section 6.08.  Section 6.08(b) of the Credit Agreement is
hereby amended as follows:


 


(a)  by
deleting the text “and” at the end of clause (xiii) in Section 6.08(b);


 


(b)  by
inserting the text “and” at the end of clause (xiv) in Section 6.08(b) and


 


(c)  by
inserting the following new clause (xv) immediately after clause (xiv) in
Section 6.08(b):


 


(xv) payments of consent fees in connection
with the consent solicitation described in the Form S-4 of The Mosaic Company
and Cargill Fertilizer LLC filed with the Securities and Exchange Commission on
September 24, 2004.


 


SECTION
5.  Amendments to Article VII.  Article VII of the Credit Agreement is hereby
amended as follows:


 


(a)  by
deleting the text “and” immediately before proviso (C) of clause
(g) in Article VII and inserting a comma;


 


(b)  by
inserting the following new proviso (D) after proviso (C) in Article
VII:


 


and (D) subclause (ii) of this
clause (g) shall not apply to the High Yield Senior Notes that become
payable, or the Potash Facility to the extent it becomes due, as a result of
the transactions contemplated by the Merger Agreement;


 


(c)  by
deleting the text “or” at the end of clause (m) in Article VII;


 


(d)  by
inserting the text “or” at the end of clause (n) in Article VII and


 


(e)  by
inserting the following new clause (o) immediately after clause (n) in
Article VII:


 


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(o) all outstanding Loans and other amounts
accrued and owing hereunder and the other Loan Documents shall have not been
paid, and all Revolving Commitments terminated, on or before March 24,
2005 (or such later date approved by the Required Lenders);


 


SECTION
6.  Representations and Warranties.  The Company represents and warrants to the
Administrative Agent and to each of the Lenders that:


 


(a)  This
Amendment has been duly authorized, executed and delivered by each of the
Borrowers and constitutes a legal, valid and binding obligation of each of the
Borrowers, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors’ rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.


 


(b)  The
representations and warranties of the Company set forth in the Loan Documents
are true and correct in all material respects on and as of the date hereof, except
to the extent such representations and warranties expressly relate to an
earlier date, in which case such representations and warranties are true and
correct in all material respects as of such earlier date.


 


(c)  Immediately
after giving effect to this Amendment, no Default shall have occurred and be
continuing.


 


(d)  None
of the reports, financial statements, certificates and other written
information furnished on or prior to the date hereof by or on behalf of any
Loan Party to any Agent or to any of the Lenders relating to the transactions
contemplated by the Merger Agreement, when taken as a whole, contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected
financial information, the Company represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time (it being understood that the projected financial information is subject
to significant uncertainties and contingencies, many of which are beyond the
Company’s control, that the Company gives no assurance such projections will be
realized and that actual results may differ from those in the projected
financial information and such differences may be material).


 


SECTION
7.  Conditions to Effectiveness.  This Amendment shall become effective on the
Cargill Transactions Effective Date concurrently with the effectiveness of the
Merger (as defined in the Merger Agreement), provided that on or before such
date (a) the Administrative Agent shall have received counterparts of this
Amendment that, when taken together, bear the signatures of each of the
Borrowers and the Required Lenders and (b) the Administrative Agent shall have
received payment of all expenses required to be paid or reimbursed by the
Company under or in connection with this Amendment and the Credit Agreement, in
each case to the extent such expenses have


 


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been invoiced at least two Business Days
prior to the date that this Amendment becomes effective.


 


SECTION
8.  Credit Agreement.  Except as specifically amended hereby, the
Credit Agreement shall continue in full force and effect in accordance with the
provisions thereof as in existence on the date hereof.  After the date hereof, any reference to the
Credit Agreement shall mean the Credit Agreement as amended or modified
hereby.  This Amendment shall be a Loan
Document for all purposes.  Capitalized
terms used but not defined herein have the meanings assigned to them in the
Credit Agreement.


 


SECTION
9.  Applicable Law.  THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


SECTION
10.  Counterparts.  This Amendment may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one agreement.  Delivery of an executed signature page to
this Amendment by facsimile transmission shall be effective as delivery of a
manually signed counterpart of this Amendment.


 


SECTION
11.  Expenses.  The Company agrees to reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Amendment, including the reasonable fees, charges and disbursements
of Cravath, Swaine & Moore LLP, counsel for the Administrative Agent.


 


SECTION
12.  Headings.  The Section headings used herein are for
convenience of reference only, are not part of this Amendment and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Amendment.


 


[The remainder of this page has been left
blank intentionally.]


 


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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first written above.


 


	
   

  	
  IMC GLOBAL INC.,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ E. Paul Dunn, Jr.

  	
   

  
	
   

  	
   

  	
  Name: E. Paul Dunn, Jr.

  
	
   

  	
   

  	
  Title:   Vice President,
  Finance &

  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PHOSPHATE RESOURCE PARTNERS

  LIMITED PARTNERSHIP,

  
	
   

  	
   

  
	
   

  	
  By: PRP-GP LLC, its Administrative

  Managing General Partner,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ E. Paul Dunn, Jr.

  	
   

  
	
   

  	
   

  	
  Name: E. Paul Dunn, Jr.

  
	
   

  	
   

  	
  Title:   Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  And by: FMRP Inc., its General Partner,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ E. Paul Dunn, Jr.

  	
   

  
	
   

  	
   

  	
  Name: E. Paul Dunn, Jr.

  
	
   

  	
   

  	
  Title:   Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  IMC PHOSPHATES COMPANY,

  
	
   

  	
   

  
	
   

  	
  By: IMC Phosphates MP Inc., its Managing

  General Partner,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ E. Paul Dunn, Jr.

  	
   

  
	
   

  	
   

  	
  Name: E. Paul Dunn, Jr.

  
	
   

  	
   

  	
  Title:  Treasurer

  



 


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  JPMORGAN CHASE BANK, individually

  and as Administrative Agent,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Peter S. Predun

  	
   

  
	
   

  	
   

  	
  Name: Peter S. Predun

  
	
   

  	
   

  	
  Title:   Vice President

  



 


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  SIGNATURE PAGE TO AMENDMENT NO. 5, DATED AS OF OCTOBER  8, 2004,
  IN RESPECT OF THE AMENDED AND RESTATED CREDIT AGREEMENT, DATED MAY 17, 2001,
  AMENDED AND RESTATED AS OF FEBRUARY 21, 2003, AMONG IMC GLOBAL INC., THE
  BORROWING SUBSIDIARIES PARTY THERETO, THE LENDERS PARTY THERETO, JPMORGAN
  CHASE BANK, AS ADMINISTRATIVE AGENT, AND GOLDMAN SACHS CREDIT PARTNERS L.P.,
  AS SYNDICATION AGENT.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name of Institution:

  
	
   

  	
   

  
	
   

  	
  [Various Lenders]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ [Authorized Signatory]

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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