EXHIBIT 10.69
FOURTH AMENDMENT AND WAIVER AGREEMENT
THIS FOURTH AMENDMENT AND WAIVER AGREEMENT dated as of May
14, 1996 (the "Fourth 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") (as amended and modified hereby
and as the same may be further amended, modified and restated from time
to time hereafter, the "Credit Agreement"; terms used but not otherwise
defined herein shall have the meanings assigned in 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").
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;
WHEREAS, (i) the Borrower has informed the Agent that an Event of
Default may exist under the terms of the Credit Agreement due to
incorrect calculations with respect to the ownership of the Borrower in
connection with the Change of Control requirements set forth in section
7.01(h) of the Credit Agreement and (ii) the Borrower has requested
certain other modifications to various provisions contained therein;
and
WHEREAS, the Required Banks have agreed and waive such Event of
Default and 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 is
hereby acknowledged, the parties hereto agree as follows:
1. The definition of "Change of Control" in Section 1.01 of the
Credit Agreement is hereby amended and modified to read as follows:
"Change of Control" means (i) IMC Global Inc., a Delaware
corporation ("IMC Global"), and Freeport-McMoRan Resource
Partners, Limited Partnership, a Delaware limited partnership,
collectively, shall at any time fail to own, directly or
indirectly,
(A) at least 85% of the capital interests in the
Borrower, or
(B) at least 85% of the capital stock or capital
interests in the corporate managing partner of the Borrower,
(ii) IMC Global Inc., individually, shall at any time fail
to
(A) own, directly or indirectly, at least 50% of the
capital interests in the Borrower,
(B) own, directly or indirectly, at least 50% of the
capital stock or capital interests in the corporate managing
partner of the Borrower,
(C) appoint and control, directly or indirectly, at
least 50% of the members of the Board of Directors (or other
governing body) of the Borrower, or
(iii) Freeport-McMoRan, Inc., shall at any time fail to own,
directly or indirectly, in excess of 50% of the capital interests
in Freeport-McMoRan Resource Partners, Limited Partnership.
2. Subsection (k) of Section 6.01 of the Credit Agreement is
hereby amended and modified to read as follows:
"(k) additional Indebtedness for borrowed money in an
aggregate amount not to exceed $60,000,000."
3. Subsections (i) and (ii) of Section 6.07 of the Credit
Agreement is hereby amended and modified to read as follows:
"(i) after the issuance thereof, amend or modify (or permit
the amendment or modification of, if reasonably adverse to the
interests of the Banks, any of the terms of any subordinated
Indebtedness; (ii) except with respect to Indebtedness permitted
pursuant to Section 6.01(k), make (or give any notice with respect
thereto) any voluntary or optional payment or prepayment or
redemption or acquisition for value of (including without
limitation, by way of depositing money or securities with the
trustee with respect thereto before due for the purpose of paying
when due) or exchange of any other subordinated Indebtedness for
borrowed money or"
4. The Banks hereby confirm and agree to a waiver of any Default
or Event of Default which existed or may have existed prior to the date
of this Fourth Amendment on account of a violation of the Change of
Control requirement contained in Section 7.01(h) of the Credit
Agreement. The Borrower shall, however, hereafter keep and maintain
such requirement in accordance with the terms of Section 7.01(h) of the
Credit Agreement, as amended hereby.
5. In connection with this Fourth Amendment, the Borrower hereby
represents and warrants that as of the date hereof (before (except for
Section 7.01(h) of the Credit Agreement to the extent described in the
first sentence of Section 4 of this Fourth Amendment) 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.
6. Except as expressly modified hereby, all of the terms and
provisions of the Credit Agreement remain in full force and effect.
7. The Borrower agrees to pay all reasonable costs and expenses
in connection with the preparation, execution and delivery of this
Fourth Amendment, including the reasonable fees and expenses of the
Agent's legal counsel.
8. This Fourth 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
Fourth Amendment to produce or account for more than one such
counterpart.
9. This Fourth 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.
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Fourth 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:___________________
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:_______________________
Title:____________________
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK,
B.A.
By:___________________
Title:________________
By:___________________
Title:________________
ARAB BANKING CORPORATION
By:___________________
Title:________________
