EXHIBIT 10.70
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT dated as of February 4,
1997 (the "Fifth Amendment") is to that Credit Agreement dated as of
February 9, 1994, as amended by that certain First Amendment to Credit
Agreement dated as of June 15, 1994 (the "First Amendment"), as further
amended by that certain Second Amendment to Credit Agreement dated as
of February 24, 1995 (the "Second Amendment"), as further amended by
that certain Third Amendment to Credit Agreement dated as of August 1,
1995 (the "Third Amendment"), and as further amended by that certain
Fourth Amendment to Credit Agreement dated as of May 14, 1996 (the
"Fourth Amendment") (as amended and modified hereby and as the same may
be further amended, modified and restated from time to time hereafter,
the "Credit Agreement"), by and among IMC-AGRICO COMPANY, a Delaware
general partnership (the "Borrower"), the Banks identified therein, and
NATIONSBANK, N.A. (successor in interest to NationsBank, N.A.
(Carolinas) and NationsBank of North Carolina, N.A.), as Agent (the
"Agent"). Terms used but not otherwise defined herein shall have the
meanings assigned in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Banks have, pursuant to the terms of the Credit
Agreement, made available to the Borrower a $75,000,000 credit facility
(the "Facility");
WHEREAS, the Banks and the Borrower have agreed, pursuant to a
letter agreement dated October 30, 1996, to a permanent reduction in
the maximum amount available under the Facility from $75,000,000 to
$45,000,000, effective as of November 4, 1996;
WHEREAS, the Borrower has requested (i) that the Termination Date
of the Facility be extended for a period of one year, (ii) that the
Banks agree to an adjustment of the interest rate of the Revolving
Loans and (iii) that the Banks agree to an adjustment of the Commitment
Fee;
WHEREAS, the Banks have agreed to approve the requested changes on
the terms and conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good
and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. The definition of "Applicable Margin" in Section 1.01 of the
Credit Agreement is hereby amended and modified to read as follows:
"Applicable Margin" means (i) in the case of Base Rate Loans,
0%, and (ii) in the case of Eurodollar Loans, .425%.
2. Section 2.01 of the Credit Agreement is hereby amended by
substituting the first sentence thereof with the following:
"Revolving Loan Commitment. Subject to and upon the terms
and conditions and relying upon the representations and warranties
herein set forth, each Bank severally agrees, from time to time
from the Closing Date until February 9, 1998 (such date, as it may
be extended, from time to time, in the sole discretion of the
Banks as hereinafter provided, is hereinafter referred to as the
"Termination Date") to make revolving credit loans (each a
"Revolving Loan" and, collectively, the "Revolving Loans") to the
Borrower for the purposes hereinafter set forth; provided,
however, that (i) with regard to the Banks collectively, the
principal amount of Revolving Loans outstanding shall not at any
time exceed FORTY-FIVE MILLION DOLLARS ($45,000,000) in the
aggregate (as such aggregate maximum amount may be reduced from
time to time as hereinafter provided, the "Revolving Committed
Amount"), and (ii) with regard to each Bank individually, each
such Bank's pro rata share of outstanding principal amount of
Revolving Loans and LOC Obligations shall not at any time exceed
such Bank's Revolving Committed Amount; provided, further, that
notwithstanding anything herein to the contrary, the sum of the
principal amount of Revolving Loans plus LOC Obligations shall not
at any time exceed the aggregate Revolving Committed Amount; and
provided, further, still, that notwithstanding anything to the
contrary contained herein, for a period of 30 consecutive days
during each calendar year, the Borrower will pay the Revolving
Loans down to, and maintain for such period, a zero outstanding
balance."
3. Subsection (a) of Section 2.10 of the Credit Agreement is
hereby amended and modified to read as follows:
"(a) Commitment Fee. In consideration for the Commitments by
the Banks hereunder, the Borrower agrees to pay to the Agent
quarterly in arrears on the 15th day following the last day of
each of the Borrower's fiscal quarters for the ratable benefit of
the Banks a commitment fee (the "Commitment Fee") of one-eighth of
one percent (1/8%) per annum on the average daily unused amount of
the Revolving Committed Amount for such prior fiscal quarter."
4. In connection with this Fifth Amendment, the Borrower hereby
represents and warrants that as of the date hereof (before and after
giving effect to this Amendment) (a) the representations and warranties
set forth in Section 4 of the Credit Agreement are true and correct in
all material respects (except for those which expressly relate to an
earlier date), and (b) no Default or Event of Default presently exists
under the Credit Agreement.
5. Except as expressly modified hereby, all of the terms and
provisions of the Credit Agreement remain in full force and effect.
6. The Borrower agrees to pay all reasonable costs and expenses
in connection with the preparation, execution and delivery of this
Fifth Amendment, including the reasonable fees and expenses of the
Agent's legal counsel.
7. This Fifth Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be
deemed an original. It shall not be necessary in making proof of this
Fifth Amendment to produce or account for more than one such
counterpart.
8. This Fifth Amendment, as the Credit Agreement, shall be
deemed to be a contract under, and shall for all purposes be construed
in accordance with, the laws of the State of New York.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Fifth Amendment to be duly executed and delivered
as of the date first above written.
BORROWER: IMC-AGRICO COMPANY, a Delaware
general partnership by its Managing Partner
By: IMC-AGRICO MP, Inc., a Delaware
corporation, as Managing Partner
By:__________________________________
Name:________________________________
Title:_______________________________
BANKS: NATIONSBANK, N.A.,
individually in its capacity as a
Bank and in its capacity as Agent
By:__________________________________
Xxxxxxx Xxxxxx, Xx.
Vice President
CITIBANK, N.A.
By:__________________________________
Name:________________________________
Title:_______________________________
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A.
By:__________________________________
Name:________________________________
Title:_______________________________
By:__________________________________
Name:________________________________
Title:_______________________________
ARAB BANKING CORPORATION
By:__________________________________
Name:________________________________
Title:_________________________________
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Fifth Amendment to be duly executed and delivered
as of the date first above written.
BORROWER: IMC-AGRICO COMPANY, a Delaware
general partnership by its Managing Partner
By: IMC-AGRICO MP, Inc., a Delaware
corporation, as Managing Partner
By:__________________________________
Name:________________________________
Title:_______________________________
BANKS: NATIONSBANK, N.A.,
individually in its capacity as a
Bank and in its capacity as Agent
By:__________________________________
Xxxxxxx Xxxxxx, Xx.
Vice President
CITIBANK, N.A.
By:__________________________________
Name: Xxxx X. Xxxxxxxx
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A.
By:__________________________________
Name:________________________________
Title:_______________________________
By:__________________________________
Name:________________________________
Title:_______________________________
ARAB BANKING CORPORATION
By:__________________________________
Name:________________________________
Title:_________________________________
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Fifth Amendment to be duly executed and delivered
as of the date first above written.
BORROWER: IMC-AGRICO COMPANY, a Delaware
general partnership by its Managing Partner
By: IMC-AGRICO MP, Inc., a Delaware
corporation, as Managing Partner
By:__________________________________
Name:________________________________
Title:_______________________________
BANKS: NATIONSBANK, N.A.,
individually in its capacity as a
Bank and in its capacity as Agent
By:__________________________________
Xxxxxxx Xxxxxx, Xx.
Vice President
CITIBANK, N.A.
By:__________________________________
Name:________________________________
Title:_______________________________
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A., "RABOBANK
NEDERLAND",
NEW YORK BRANCH
By:__________________________________
Name:________________________________
Title:_______________________________
By:__________________________________
Name: Xxxx X. Xxxxxxxx
Title: Vice President
ARAB BANKING CORPORATION
By:__________________________________
Name:________________________________
Title:_______________________________
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Fifth Amendment to be duly executed and delivered
as of the date first above written.
BORROWER: IMC-AGRICO COMPANY, a Delaware
general partnership by its Managing Partner
By: IMC-AGRICO MP, Inc., a Delaware
corporation, as Managing Partner
By:__________________________________
Name:________________________________
Title:_______________________________
BANKS: NATIONSBANK, N.A.
individually in its capacity as a
Bank and in its capacity as Agent
By:__________________________________
Xxxxxxx Xxxxxx, Xx.
Vice President
CITIBANK, N.A.
By:__________________________________
Name:________________________________
Title:_______________________________
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A.
By:__________________________________
Name:________________________________
Title:_______________________________
By:__________________________________
Name:________________________________
Title:_______________________________
ARAB BANKING CORPORATION
By:__________________________________
Name: Xxxxx X. XxXxxxxx
Title: Vice President
