EXHIBIT 10.64
Execution Copy
AMENDMENT NO. 4 TO CANADIAN FIVE-YEAR CREDIT AGREEMENT
AMENDMENT dated as of December 31, 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, Amendment No. 2 to Canadian Five-Year Credit Agreement dated as
of August 31, 1998 and Amendment No. 3 to Canadian Five-Year Credit
Agreement dated as of December 16, 1998, the "Agreement") among IMC
Kalium Canada Ltd. ("IMC Kalium"), International Minerals & Chemical
(Canada) Global Limited ("IMC Canada") and International Minerals &
Chemical (Canada) Limited Partnership ("IMC 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").
WHEREAS the parties hereto desire to amend the Agreement as
specified below;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the sum
of $1.00 now paid by each party to the other party and for other good
and valuable consideration (the receipt and sufficiency of which are
hereby acknowledged) the parties hereto agree as follows:
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.
2. Amendment of Definition of "Consolidated EBITDA". The following
sentence is added to end of the definition of Consolidated EBITDA in
Section 1. 1 of the Agreement: "For the purpose of calculating the
Leverage Ratio for the purposes of Section 5.2(i) hereunder,
Consolidated EBITDA shall (i) exclude the pre-tax non-recurring charges
not in excess of U.S.$325,000,000 incurred by the Guarantor in, and
reflected in the Guarantor's consolidated statement of income for, the
fiscal year ended December 31, 1998 and (ii) disregard classification
of the Guarantor's Agribusiness unit as a discontinued operation".
3. 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:
(b) no Default has occurred and is continuing; and
(c) 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.
(d) The Guarantor represents and warrants that as of the date
hereof and after giving effect hereto.
(e) no Default has occurred and is continuing; and
(f) each representation and warranty of the Guarantor set forth
in the Agreement is true and correct on and as of the date
hereof.
4. 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.
5. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the Province of Ontario.
6. Counterparts. 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.
7. Effectiveness. This Amendment shall become effective as of the
date hereof on the date when the following conditions are met (the
"Amendment Effective Date"):
(a) the Agent shall have received duly executed counterparts
hereof signed by the Borrowers, 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); and
(b) the Agent shall have received an amendment fee for the
account of each Bank which shall have signed and delivered
a permanent waiver with respect to this amendment on or
before January 11, 1999, in an amount equal to 0.05% of
such Bank's Commitment on January 11, 1999.
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: Vice President
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/X. X. Xxxxx
Name: X. X. Xxxxx
Title:
BANK OF MONTREAL., as Bank and Co-Agent
By: /s/ Xxx X. Xxxxxxx
Name: Xxx X. Xxxxxxx
Title:
FIRST CHICAGO NBD BANK, CANADA, as Bank
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: First Vice President
X.X. XXXXXX CANADA, as Bank and Co-Agent
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title:
XXX XXXXX XXXXXXXXX XXXX XX XXXXXX, as Bank
By: /s/ Xxxxxxxxx Xxxx
Name: Xxxxxxxxx Xxxx
Title:
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title:
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
