Exhibit 10.62
AMENDMENT NO. 1
TO
CREDIT AGREEMENT
THIS AMENDMENT No. 1 ("Amendment") dated as of September 30,
1996 by and among IMC GLOBAL INC., a Delaware corporation ("Global"),
IMC GLOBAL OPERATIONS INC. ("Global Operations"), a Delaware
corporation, INTERNATIONAL MINERALS & CHEMICAL (CANADA) GLOBAL LIMITED,
a corporation organized under the federal laws of Canada ("IMC
Canada"), KALIUM CANADA, LTD., a corporation organized under the
federal laws of Canada ("Kalium"), and CENTRAL CANADA POTASH, INC., a
Delaware corporation ("CCP"; and, together with Global, Global
Operations, IMC Canada and Kalium, the "Borrowers"), GLOBAL and the
Subsidiary Guarantors (the "Guarantors"), the banks and financial
institutions (the "Lenders") listed on the signature pages hereof,
CITIBANK, N.A. ("Citibank"), as U.S. administrative agent (the "U.S.
Administrative Agent") and documentation agent (the "Documentation
Agent"), CITIBANK CANADA ("Citibank Canada"), as Canadian
administrative agent (the "Canadian Administrative Agent"), NATIONSBANC
CAPITAL MARKETS, INC., as syndication agent (the "Syndication Agent",
and together with the U.S. Administrative Agent, the Documentation
Agent and the Canadian Administrative Agent, the "Agents") and CITICORP
SECURITIES, INC. and NATIONSBANC CAPITAL MARKETS, INC., as Arrangers.
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 Lenders and the
Agents are parties to that certain Credit Agreement dated as of
February 28, 1996 (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 Lenders and
the Agents amend the Credit Agreement on the terms and conditions set
forth herein in order to remove Global Operations as a Borrower, modify
certain covenants contained therein and make certain other correlative
changes resulting therefrom;
WHEREAS, the Agents and the Lenders 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 Lenders and the Agents hereby agree as
follows.
1. Amendments to the Credit Agreement. Effective as of the
date hereof and subject to the satisfaction of the conditions precedent
set forth in Section 2 below, the Credit Agreement is hereby amended as
follows:
1.1. Section 1.04 of the Credit Agreement is hereby amended
by striking the phrase "after the Release Date" now contained in the
first sentence therein.
1.2. Section 5.02(b)(ii)(G) of the Credit Agreement is hereby
amended to delete the terms contained therein in their entirety and to
substitute the following therefor:
"(G) Debt (other than intercompany Debt listed on
Schedule 5.02(b)) owing to Global,"
1.3. Section 5.03(c)(ii) of the Credit Agreement is hereby
amended to delete the terms contained therein in their entirety and to
substitute the following therefor:
"(ii) (x) for fiscal year 1996, a Consolidated unaudited balance
sheet of Global Operations, KCL Holdings, IMC Global Potash
Holdings and the Joint Venture Company and its Subsidiaries as of
the end of such fiscal year and Consolidated unaudited statements
of income of such Borrower and its Subsidiaries and of the Joint
Venture Company for such fiscal year and (y) for each fiscal year
thereafter, a Consolidated unaudited statement of income, balance
sheet and cash flow of the Joint Venture Company and its
Subsidiaries as of the end of such fiscal year, together with
(A) a certificate of such accounting firm to the Lenders stating
that in the course of the regular audit of the business of Global
and its Subsidiaries, which audit was conducted by such accounting
firm in accordance with generally accepted auditing standards,
such accounting firm has obtained no knowledge that a Default has
occurred and is continuing, or if, in the opinion of such
accounting firm, a Default has occurred and is continuing, a
statement as to the nature thereof, (B) a schedule in form
satisfactory to the Agents of the computations used by such
accountants in determining, as of the end of such fiscal year,
compliance with the covenants contained in Section 5.04 and
(C) a certificate of the treasurer or chief financial officer of
Global stating that no Default has occurred and is continuing or,
if a default has occurred and is continuing, a statement as to the
nature thereof and the action that Global has taken and proposes
to take with respect thereto."
1.4. Section 5.03(f) of the Credit Agreement is hereby
amended to delete the terms contained therein in their entirety and to
substitute the following therefor: "[INTENTIONALLY OMITTED]."
1.5. Section 5.03(h) of the Credit Agreement is hereby
amended to insert immediately after the phrase "from that described in
Exhibit B to the Disclosure Letter" now occurring therein, the
following: "that could reasonably be expected to have a Material
Adverse Effect".
1.6. Section 5.04(b) of the Credit Agreement is hereby
amended to delete the phase "interest payable" now occurring therein
and to substitute the following therefor: "interest charges".
2. 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 the Documentation Agent
shall have received duly executed originals of this Amendment from the
Borrowers, the Guarantors and the Required Lenders.
3. 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.
4. 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 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 Agent or the Lenders, 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.
5. 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.
6. 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.
7. 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.
8. 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 New York.
9. No Course of Dealing. The Agents and the Lenders have
entered into this Amendment on the express understanding with the
Borrowers that in entering into this Amendment the Agents and the
Lenders are not establishing any course of dealing with the Borrowers.
The Agents' and the Lenders' rights to require strict performance with
all the terms and conditions of the Credit Agreement as amended by this
Amendment and the other Loan 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.,
as Borrower and Guarantor
IMC GLOBAL OPERATIONS, INC.,
as Borrower and Guarantor
INTERNATIONAL MINERALS &
CHEMICAL (CANADA) GLOBAL
LIMITED, as Borrower
By:
Name:
Title:
IMC KALIUM CANADA LTD. (formerly
known as Kalium Canada, Ltd.), as
Borrower and Guarantor
IMC CENTRAL CANADA POTASH INC.
(formerly known as Central Canada
Potash, Inc.), as Borrower and
Guarantor
THE VIGORO CORPORATION,
as Guarantor
VNH, INC., as Guarantor
IMC AGRIBUSINESS INC. (formerly known
as Vigoro Industries, Inc.), as
Guarantor
KCL HOLDINGS, INC.,
as Guarantor
IMC KALIUM LTD. (formerly known as
Kalium Chemicals, Ltd.), as Guarantor
IMC NITROGEN COMPANY (formerly
known as Phoenix Chemical Company),
as Guarantor
By:
Name:
Title:
IMC KALIUM INTANGIBLE HOLDING
COMPANY, as Guarantor
IMC KALIUM CARLSBAD POTASH
COMPANY, as Guarantor
By:
Name:
Title:
CITIBANK, N.A., as
U.S. Administrative Agent and
Documentation Agent
By:
Name:
Title:
CITIBANK CANADA, as
Canadian Administrative Agent
By:
Name:
Title:
NATIONSBANC CAPITAL MARKETS, INC.,
as Syndication Agent
By:
Name:
Title:
Lenders
CITIBANK, N.A.
By:
Name:
Title:
CITIBANK CANADA
By:
Name:
Title:
NATIONSBANK, N.A.
By:
Name:
Title:
ABN AMRO NORTH AMERICA, INC.,
as Agent for ABN AMRO BANK N.V.
By:
Name:
Title:
By:
Name:
Title:
ABN AMRO BANK CANADA
By:
Name:
Title:
By:
Name:
Title:
BANK OF MONTREAL
By:
Name:
Title:
CAISSE NATIONALE DE CREDIT
AGRICOLE
By:
Name:
Title:
CREDIT LYONNAIS CHICAGO BRANCH
By:
Name:
Title:
CREDIT LYONNAIS CANADA
By:
Name:
Title:
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By:
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK
By:
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By:
Name:
Title:
THE NORTHERN TRUST COMPANY
By:
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN -
BOERENLEENBANK, B.A."RABOBANK
NEDERLAND", NEW YORK BRANCH
By:
Name:
Title:
ROYAL BANK OF CANADA
By:
Name:
Title:
THE FUJI BANK, LIMITED
By:
Name:
Title:
