EXHIBIT 10.63
AMENDMENT NO. 3 TO CANADIAN FIVE-YEAR CREDIT AGREEMENT
AMENDMENT dated as of December 16, 1998 to the Five-Year
Canadian Credit Agreement dated as of December 22, 1997 (as amended by
Amendment No. 1 to Canadian Five-Year Credit Agreement dated as of
March 31, 1998 and Amendment No. 2 to Canadian Five-Year Credit
Agreement dated as of August 31, 1998, the "Agreement") among IMC
Kalium Canada Ltd., International Minerals & Chemical (Canada) Global
Limited and International Minerals & Chemical (Canada) Limited
Partnership (collectively, the "Borrowers"), IMC Global Inc. (the
"Guarantor"), the Banks listed on the signature pages hereof (the
"Banks") and Royal Bank of Canada, as Agent (the "Agent").
W I T N E S S E T H:
WHEREAS, the parties hereto desire to amend the Agreement as
specified below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise
specifically defined herein, each term used herein which is defined in
the Agreement shall have the meaning assigned to such term in the
Agreement. Each reference to "hereof", "hereunder", "herein" and
"hereby" and each other similar reference and each reference to "this
Agreement" and each other similar reference contained in the Agreement
shall from and after the date hereof refer to the Agreement as amended
hereby.
SECTION 2. Amendments to Definitions. Section 1.1 of the
Agreement is amended by inserting, in their appropriate alphabetical
position, the following definitions:
"IMC Inorganic Chemicals Inc." means IMC Inorganic Chemicals
Inc., a Delaware corporation, formerly known as Xxxxxx Chemical Group,
Inc.
"PLP" means Phosphate Resource Partners Limited Partnership, a
Delaware limited partnership and its successors.
SECTION 3. Amendment to Borrowings Condition. Section 3.2
of the Agreement is amended by amending and restating subparagraph (d)
thereof in its entirety as follows:
(d) the fact that the representations and warranties (other
than (i) the representations and warranties set forth in clauses
4.1(d)(ii) and 4.2(b)(ii) in the case of a Borrowing which does not
result in an increase in the sum of the aggregate outstanding principal
amount of the Loans, the aggregate Bankers' Acceptance Obligations and
the aggregate Letter of Credit Liabilities and (ii) the representations
and warranties set forth in clauses 4.1(1) and 4.2(b)(vii) in the case
of any Borrowing after December 3l, 2000) of the Borrowers and the
Guarantor contained in this Agreement shall be true on and as of the
date of such Borrowing or issuance of such Letter of Credit.
SECTION 4. Amendment to Representations and
Warranties.
(a) Article 4 of the Agreement is amended by adding a new Section
4.1(1) immediately after Section 4.1(k) thereof, to read in its
entirety as follows:
4.1(1). Year 2000. Any reprogramming required to permit the
proper functioning, in and following year 2000, of (a) each of the
Borrower's material computer systems and (b) material equipment
containing embedded microchips (including systems and equipment
supplied by others or with which any of the Borrower's systems
interface) and the testing of all such systems and equipment, as so
reprogrammed, will be completed in a timely fashion. The cost to each
Borrower of such reprogramming and testing and of the reasonably
foreseeable consequences of year 2000 to each of the Borrowers
(including, without limitation, reprogramming errors and the failure of
others' systems or equipment) will not result in a Default or Material
Adverse Effect. Except for such of the reprogramming referred to in
the preceding sentence as may be necessary, the computer and management
information systems of each of the Borrowers and their Subsidiaries are
and, with ordinary course upgrading and maintenance, will continue for
the term of this Agreement, to be sufficient to permit each of the
Borrowers to conduct its business without Material Adverse Effect.
(b) Article 4 of the Agreement is amended by adding a new Section
4.2(b)(vii) immediately after Section 4.2(b)(vi) thereof, to read in
its entirety as follows:
4.2(b)(vii). Year 2000. Any reprogramming required to permit
the proper functioning, in and following year 2000, of (a) the
Guarantor's computer systems and (b) equipment containing embedded
microchips (including systems and equipment supplied by others or with
which the Guarantor's systems interface) and the testing of all such
systems and equipment, as so reprogrammed, will be completed in a
timely fashion. The cost to the Guarantor of such reprogramming and
testing and of the reasonably foreseeable consequences of year 2000 to
the Guarantor (including, without limitation, reprogramming errors and
the failure of others' systems or equipment) will not result in a
Default or Material Adverse Effect. Except for such of the
reprogramming referred to in the preceding sentence as may be
necessary, the computer and management information systems of the
Guarantor and its Subsidiaries are and, with ordinary course upgrading
and maintenance, will continue for the term of this Agreement, to be
sufficient to permit the Guarantor to conduct its business without
Material Adverse Effect.
SECTION 5. Amendment to Debt of Subsidiaries Covenant.
Section 5.2(g) of the Agreement is amended and restated in its entirely
as follows:
SECTION 5.2(g). Debt of Subsidiaries. Total Debt of all
Subsidiaries of the Guarantor (excluding Debt (i) of a Subsidiary owing
to the Guarantor, (ii) of a Subsidiary owing to a Substantially-Owned
Consolidated Subsidiary, (iii) of an "Eligible Subsidiary" as defined
in the Guarantor's Credit Agreement, (iv) of PLP in an aggregate
principal amount not exceeding (U.S.) $300,000,000 outstanding on the
Effective Date (but not any refinancing thereof), (v) of Xxxxxx
Chemical North America, Inc. and its Subsidiaries arising out of the
Argus Utilities sale-leaseback transaction in an aggregate principal
amount not exceeding (U.S.) $71,000,000, or (vi) of IMC Inorganic
Chemicals Inc., formerly known as Xxxxxx Chemical Group, Inc., and its
Subsidiaries in an aggregate principal amount not exceeding
UK50,000,000) will not at any date exceed 25% of Consolidated Net Worth
(calculated as of the last day of the fiscal quarter most recently
ended on or prior to such date). For purposes of this Section any
preferred stock of a Consolidated Subsidiary (other than the Series E
Preferred Stock) held by a Person other than the Guarantor or a
Substantially-Owned Consolidated Subsidiary shall be included, at the
higher of its voluntary or involuntary liquidation value, in the "Debt"
of such Consolidated Subsidiary.
SECTION 6. Representations and Warranties.
(a) IMC Kalium represents and warrants for itself, and only
with respect to itself, and IMC Canada and IMC Partnership jointly and
severally represent and warrant for themselves, and only with respect
to themselves, that as of the date hereof and after giving effect
hereto:
(i) no Default has occurred and is continuing; and
(ii) each representation and warranty of IMC Kalium and
IMC Canada and IMC Partnership, as applicable, set forth in the
Agreement is true and correct as though made on and as of the date
hereof.
(b) The Guarantor represents and warrants that as of the
date hereof and after giving effect hereto:
(i) no Default has occurred and is continuing; and
(ii) each representation and warranty of the Guarantor
set forth in the Agreement is true and correct on and as of the date
hereof.
SECTION 7. Confirmation of Guarantee. The Guarantor hereby
acknowledges and agrees to the foregoing amendments to the Agreement
and expressly confirms that the guarantee provided by the Guarantor
pursuant to Article 9 of the Agreement and the liability of the
Guarantor thereunder remains in full force and effect notwithstanding
the amendments to the Agreement made pursuant hereto.
SECTION 8. Governing Law. This Amendment shall be governed
by and construed in accordance with the laws of the Province of
Ontario.
SECTION 9. Counterparts; Effectiveness. This Amendment may
be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto
were upon the same instrument. This Amendment shall become effective
as of the date hereof when the Agent shall have received duly executed
counterparts hereof signed by the Borrowers and the Guarantor and the
Required Banks (or, in the case of any party as to which an executed
counterpart shall not have been received, the Agent shall have received
telegraphic, telex or other written confirmation from such party of
execution of a counterpart hereof by such party).
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
IMC GLOBAL INC., as Guarantor
By: /s/ E. Xxxx Xxxx, Jr.
Name: E. Xxxx Xxxx, Jr.
Title: Treasurer
ROYAL BANK OF CANADA, as Agent
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Senior Manager
ROYAL BANK OF CANADA, as Bank
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Account Manager
BANK OF MONTREAL, as Bank and Co-Agent
By: /s/ Xxx X. Xxxxxxx
Name: Xxx X. Xxxxxxx
Title: Director
FIRST CHICAGO NBD BANK, CANADA, as Bank
By: /s/ T. Xxxxxx Xxxxx
Name: T. Xxxxxx Xxxxx
Title: First Vice President
X.X. XXXXXX CANADA, as Bank and Co-Agent
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Vice President and Controller
THE CHASE MANHATTAN BANK OF CANADA, as Bank
By: /s/ Xxxxxxxxx Xxxx
Name: Xxxxxxxxx Xxxx
Title: Vice President
By: /s/ Xx Xxxxxx
Name: Xx Xxxxxx
Title: Vice President
IMC KALIUM CANADA LTD., as Borrower
By: /s/ Rose Xxxxx Xxxxxxxx
Name: Rose Xxxxx Xxxxxxxx
Title: Secretary
INTERNATIONAL MINERALS & CHEMICAL (CANADA) GLOBAL LIMITED, as Borrower
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: President
INTERNATIONAL MINERALS & CHEMICAL (CANADA) LIMITED PARTNERSHIP, by its
general partner, International Minerals & Chemical (Canada) Global
Limited, as Borrower
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: President
