Exhibit 10.4
$500,000,000
CREDIT AGREEMENT
Dated as of October 21, 2002
among
FMC Corporation
as Borrower
and
The Lenders and Issuers Party Hereto
and
Citicorp USA, Inc.
as Administrative Agent
and
ABN AMRO, N.V.
as Documentation Agent
and
Bank of America, N.A.
Wachovia Bank, National Association
as Co-Syndication Agents
and
Salomon Smith Barney Inc.
Banc of America Securities LLC
Wachovia Securities, Inc.
as Co-Lead Arrangers and Co-Book Managers
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153-0119
Credit Agreement dated as of October 21, 2002, among FMC Corporation,
a Delaware corporation (the "Borrower"), the Lenders (as defined below), the
Issuers (as defined below), Citicorp USA, Inc. ("CUSA"), as agent for the
Lenders and the Issuers and as agent for the Secured Parties (as defined below)
under the Collateral Documents (as defined below) (in such capacity, the
"Administrative Agent"), ABN AMRO, N.V., as documentation agent, Bank of America
N.A. and Wachovia Bank, National Association, as co-syndication agents, and
Salomon Smith Barney Inc., Banc of America Securities LLC and Wachovia
Securities, Inc., as co-lead arrangers and co-book managers.
W i t n e s s e t h:
Whereas, the Borrower has requested that the Lenders and Issuers make
available for the purposes specified in this Agreement a term loan, revolving
credit loan and letter of credit facility; and
Whereas, the Lenders and Issuers are willing to make available to the
Borrower such term loan, revolving credit loan and letter of credit facility
upon the terms and subject to the conditions set forth herein;
Now, Therefore, in consideration of the premises and the covenants and
agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I
Definitions, Interpretation and Accounting Terms
Section 1.1 Defined Terms
As used in this Agreement, the following terms have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Additional Lender" has the meaning specified in Section 2.1(c).
"Administrative Agent" has the meaning specified in the preamble to
this Agreement.
"Affected Lender" has the meaning specified in Section 2.16
(Substitution of Lenders).
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling or that is controlled by or is under common
control with such Person, each officer, director, general partner or
joint-venturer of such Person, and each Person that is the beneficial owner of
5% or more of any class of Voting Stock of such Person. For the purposes of this
definition, "control" means the possession of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agreement" means this Credit Agreement.
"Alternate Currency" means any lawful currency other than Dollars
which is freely transferable into Dollars.
"Applicable Lending Office" means, with respect to each Lender, its
Domestic Lending Office in the case of a Base Rate Loan, and its Eurodollar
Lending Office in the case of a Eurodollar Rate Loan.
Credit Agreement
FMC Corporation
"Applicable Margin" means (a) in the case of the Term Loans, with
respect to that portion of the Term Loans maintained as (i) Base Rate Loans, a
rate equal to 3.75% per annum and (ii) Eurodollar Rate Loans, a rate equal to
4.75% per annum, and (b) in the case of the Revolving Loans, (i) during the
period commencing on the Closing Date and ending on March 31, 2003, with respect
to the Revolving Loans maintained as (A) Base Rate Loans, a rate equal to 2.50%
per annum and (B) Eurodollar Rate Loans, a rate equal to 3.50% per annum and
(ii) thereafter, as of any date of determination, a per annum rate equal to the
rate set forth below opposite the applicable type of Loan and the then
applicable Leverage Ratio (determined on the last day of the most recent Fiscal
Quarter for which Financial Statements have been delivered pursuant to Section
6.1(a) or (b) (Financial Statements)) set forth below:
-------------------------------------------------------------------------------------
Leverage Ratio Base Rate Eurodollar Rate
Revolving Loans Revolving Loans
-------------------------------------------------------------------------------------
Greater than or equal to 4 to 1 2.875% 3.875%
-------------------------------------------------------------------------------------
Less than 4 to 1 and equal to or greater 2.500% 3.500%
than 3.5 to 1
-------------------------------------------------------------------------------------
Less than 3.5 to 1 and equal to or greater 2.250% 3.250%
than 3 to 1
-------------------------------------------------------------------------------------
Less than 3 to 1 1.875% 2.875%
-------------------------------------------------------------------------------------
Changes in the Applicable Margin resulting from a change in the Leverage Ratio
on the last day of any subsequent Fiscal Quarter shall become effective as to
all Revolving Loans on the date of the delivery by the Borrower to the
Administrative Agent of new Financial Statements pursuant to Section 6.1(a) or
(b) (Financial Statements), as applicable. Notwithstanding anything to the
contrary set forth in this Agreement (including the then effective Leverage
Ratio), if the Borrower shall fail to deliver such Financial Statements within
any of the time periods specified in Section 6.1(a) and (b) (Financial
Statements), the Applicable Margin from and including the 46/th/ day after the
end of such Fiscal Quarter or the 91st day after the end of such Fiscal Year, as
the case may be, to but not including the date the Borrower delivers to the
Administrative Agent such Financial Statements shall conclusively equal the
highest possible Applicable Margin provided for by this definition.
Notwithstanding anything to the contrary set forth in this Agreement, as of the
effective date of the Permitted Revolving Credit Extension, to the extent that
(a) the sum of (i) the initial applicable margin for Eurodollar rate loans under
such Permitted Revolving Credit Extension and (ii) the quotient of (A) the
weighted average (expressed as a percentage) of fees payable in connection with
such Permitted Revolving Credit Extension on or prior to such date divided by
(B) the number of years remaining until the scheduled maturity of such Permitted
Revolving Credit Extension exceeds (b) the sum of (i) the Applicable Margin for
Term Loans maintained as Eurodollar Rate Loans in effect at such time and (ii)
the quotient of (A) the weighted average (expressed as a percentage) of fees
paid to the Term Loan Lenders on or prior to the Closing Date divided by (B)
five years, the Applicable Margin for the Term Loans shall be increased by
clause (a) above minus clause (b) above.
"Applicable Unused Commitment Fee Rate" means, (a) during the period
commencing on the Closing Date and ending on March 31, 2003, a rate equal to
0.50% per annum and (b) thereafter, as of any date of determination, a per annum
rate equal to the rate set forth below opposite the then applicable Leverage
Ratio (determined on the last day of the most recent Fiscal Quarter, for which
Financial Statements have been delivered pursuant to Section 6.1(a) or (b)
(Financial Statements)) set forth below:
---------------------------------------------------------------
Leverage Ratio Applicable Unused Commitment
Fee Rate
---------------------------------------------------------------
Greater than or equal to 4 to 1 0.75%
---------------------------------------------------------------
Less than 4 to 1 0.50%
---------------------------------------------------------------
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Credit Agreement
FMC Corporation
Changes in the Applicable Unused Commitment Fee Rate resulting from a change in
the Leverage Ratio on the last day of any subsequent Fiscal Quarter shall become
effective on the date of the delivery by the Borrower to the Administrative
Agent of new Financial Statements pursuant to Section 6.1(a) or (b) (Financial
Statements), as applicable. Notwithstanding anything to the contrary set forth
in this Agreement (including the then effective Leverage Ratio), if the Borrower
shall fail to deliver such Financial Statements within any of the time periods
specified in Section 6.1(a) or (b) (Financial Statements), the Applicable Unused
Commitment Fee Rate from and including the 46/th/ day after the end of such
Fiscal Quarter or the 91/st/ day after the end of such Fiscal Year, as the case
may be, to but not including the date the Borrower delivers to the
Administrative Agent such Financial Statements shall conclusively equal the
highest possible Applicable Unused Commitment Fee Rate provided for in this
definition.
"Approved Deposit Account" has the meaning specified in the Bank
Security Agreement.
"Approved Fund" means any Fund that is advised or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or Affiliate of an entity
that administers or manages a Lender.
"Approved Securities Intermediary" means a securities intermediary or
commodity intermediary selected or approved by the Administrative Agent and with
respect to which a Loan Party has delivered to the Administrative Agent an
executed Control Account Agreement.
"Arrangers" means SSB, BAS and Wachovia Securities, Inc., in their
respective capacities as co-lead arrangers and co-book managers.
"Asset Sale" has the meaning specified in Section 8.4 (Sale of
Assets).
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the Administrative
Agent, in substantially the form of Exhibit A (Form of Assignment and
Acceptance).
"Astaris" means, Astaris LLC, a Delaware limited liability company.
"Astaris Indemnification Agreement" means the agreement, dated October
5, 2001, among the Borrower, Solutia Inc., Astaris Production LLC, Astaris Idaho
LLC and Astaris, as such agreement may be modified, amended, restated or
replaced; provided that the terms of any such modification, amendment,
restatement or replacement after the Closing Date do not materially increase the
Borrower's or any Subsidiary of the Borrower's obligations thereunder and such
terms (including as to tenor) are no more onerous from a financial perspective,
taken as a whole, to the Borrower and its Subsidiaries.
"Astaris Power Payment" means, collectively, payments by the Borrower
made with respect to the "Idaho Power Termination Amount" as defined in and
pursuant to the Astaris Indemnification Agreement in an aggregate amount after
the Closing Date not to exceed $10,400,000.
"Astaris Secured Payments" means, the keepwell payments required to be
made by the Borrower to Astaris pursuant to that certain Guaranty Agreement
dated as of September 14, 2000, as in effect on the date hereof, by the Borrower
in favor of Astaris and the lenders under a credit agreement in connection
therewith.
"Available Credit" means, at any time, (a) the then effective
Revolving Credit Commitments minus (b) the aggregate Revolving Credit
Outstandings at such time.
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Credit Agreement
FMC Corporation
"Bank Security Agreement" means an agreement, in substantially the
form of Exhibit H (Form of Bank Security Agreement), executed by the Borrower
and each applicable Guarantor.
"Bankruptcy Code" means title 11, United States Code.
"Banks' Collateral" has the meaning specified in the Bank Security
Agreement.
"BAS" means Banc of America Securities LLC, a Delaware limited
liability company.
"Base Rate" means a fluctuating interest rate per annum as shall be in
effect from time to time, which rate per annum shall be equal at all times to
the highest of the following:
(a) the rate of interest announced publicly by Citibank in New York,
New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 0.25% or, if there is no nearest
0.25%, to the next higher 0.25%) of (i) 0.5% per annum, (ii) the rate per
annum obtained by dividing (A) the latest three-week moving average of
secondary market morning offering rates in the United States for
three-month certificates of deposit of major United States money market
banks, such three-week moving average being determined weekly on each
Monday (or, if any such day is not a Business Day, on the next succeeding
Business Day) for the three-week period ending on the previous Friday by
Citibank on the basis of such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank of New York or, if
such publication shall be suspended or terminated, on the basis of
quotations for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected by Citibank,
by (B) a percentage equal to 100% minus the average of the daily
percentages specified during such three-week period by the Federal Reserve
Board for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) for Citibank
in respect of liabilities consisting of or including (among other
liabilities) three-month U.S. dollar nonpersonal time deposits in the
United States and (iii) the average during such three-week period of the
maximum annual assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring Dollar deposits in
the United States; and
(c) 0.5% per annum plus the Federal Funds Rate.
"Base Rate Loan" means any Loan during any period in which it bears
interest based on the Base Rate.
"Blockage Notice" has the meaning specified in each Deposit Account
Control Agreement.
"BofA" means Bank of America, N.A., a national banking association.
"Bonds" means, collectively, (i) the Industrial Revenue Bonds issued
by the Erie County Industrial Development Agency and maturing on February 1,
2003 and (ii) the Industrial Revenue Bonds issued by Lincoln County, Wyoming and
maturing on November 1, 2003, in each case of the Borrower.
"Borrower" has the meaning specified in the preamble to this
Agreement.
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Credit Agreement
FMC Corporation
"Borrower's Accountants" means KPMG LLP or other independent
nationally-recognized public accountants acceptable to the Administrative Agent.
"Borrowing" means a borrowing consisting of Revolving Loans or Term
Loans made on the same day by the Lenders ratably according to their respective
Commitments. A Borrowing may be a Revolving Credit Borrowing or a Term Loan
Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized to close in New York City and, if the applicable Business Day
relates to notices, determinations, fundings and payments in connection with the
Eurodollar Rate or any Eurodollar Rate Loans, a day on which dealings in Dollar
deposits are also carried on in the London interbank market.
"Capital Expenditures" means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including in
all events all amounts expended or capitalized under Capital Leases but
excluding any amount representing capitalized interest) by the Borrower and its
Subsidiaries during that period that, in conformity with GAAP, are or are
required to be included in the property, plant or equipment reflected in the
Consolidated balance sheet of the Borrower and its Subsidiaries; provided that
(i) the 2003 earn-out payment in respect of TG Soda Ash pursuant to the TG Soda
Ash Agreement and any true-up payments made in respect of such payment or in
respect of other payments made pursuant to the TG Soda Ash Agreement prior to
2004, (ii) any Like Kind Exchange, (iii) any portion of any Reinvestment
Deferred Amount actually reinvested pursuant to Section 2.8(e) and (iv) any
Permitted Acquisition (to the extent such Permitted Acquisition (A) is permitted
by Section 8.7 and (B) would constitute a Capital Expenditure) shall not be
considered a Capital Expenditure.
"Capital Lease" means, with respect to any Person, any lease of, or
other arrangement conveying the right to use, property by such Person as lessee
that would be accounted for as a capital lease on a balance sheet of such Person
prepared in conformity with GAAP.
"Capital Lease Obligations" means, with respect to any Person, the
capitalized amount of all Consolidated obligations of such Person or any of its
Subsidiaries under Capital Leases.
"Cash Collateral Account" has the meaning specified in the Bank
Security Agreement.
"Cash Equivalents" means (a) securities issued or fully guaranteed or
insured by the United States government or any agency thereof, (b) certificates
of deposit, eurodollar time deposits, overnight bank deposits and bankers'
acceptances of any Lender or any commercial bank organized under the laws of the
United States, any state thereof, the District of Columbia, any foreign bank, or
its branches or agencies (fully protected against currency fluctuations) that,
at the time of acquisition, are rated at least "A-1" by S&P or "P-1" by Moody's,
(c) commercial paper of an issuer rated at least "A-1" by S&P or "P-1" by
Moody's and (d) shares of any money market fund that (i) has at least 95% of its
assets invested continuously in the types of investments referred to in clauses
(a), (b) and (c) above, (ii) has net assets of not less than $500,000,000 and
(iii) is rated at least "A-1" by S&P or "P-1" by Moody's; provided, however,
that the maturities of all obligations of the type specified in clauses (a), (b)
and (c) above shall not exceed 180 days.
"Cash Management Document" means any certificate, agreement or other
document executed by any Loan Party in respect of the Cash Management
Obligations of any Loan Party.
"Cash Management Obligation" means, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of such Person in respect
of cash management services (including treasury, depository, overdraft, credit
or debit card, electronic funds transfer and other cash management
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Credit Agreement
FMC Corporation
arrangements), including obligations for the payment of fees, interest, charges,
expenses, attorneys' fees and disbursements in connection therewith.
"Change of Control" means the occurrence of any of the
following: (a) any Person or group of Persons (within the meaning of the
Securities Exchange Act of 1934, as amended) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the SEC under the Securities
Exchange Act of 1934, as amended) of 20% or more of the issued and outstanding
Voting Stock of the Borrower, (b) during any period of twenty-four (24)
consecutive calendar months, individuals who at the beginning of such period
constituted the board of directors of the Borrower (together with any new
directors whose election by the board of directors of the Borrower or whose
nomination for election by the stockholders of the Borrower was approved by a
vote of at least two-thirds of the directors then still in office who either
were directors at the beginning of such period or whose elections or nomination
for election was previously so approved) cease for any reason other than death
or disability to constitute a majority of the directors then in office or (c)
any "Change of Control" under and as defined in the Senior Secured Notes.
"Citibank" means Citibank, N.A., a national banking
association.
"Closing Date" means October 21, 2002.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means all property and interests in property and
proceeds thereof now owned or hereafter acquired by any Loan Party in or upon
which a Lien is granted under any Collateral Document.
"Collateral Documents" means the Bank Security Agreement, the
Shared Collateral Security Agreement, the Collateral Trust Agreement, the
Restricted Cash Collateral Account Agreement, the Debt Reserve Account
Agreement, each Foreign Pledge Agreement, the Sharing Agreement, the Mortgages,
the Deposit Account Control Agreements and any other document executed and
delivered by a Loan Party granting a Lien or purporting to grant a Lien on any
of its property to secure payment of the Secured Obligations.
"Collateral Trust Agreement" means that certain collateral
trust agreement dated as of the date hereof, between the Collateral Trustee, the
"Trustee" under and as defined in the Indenture and the Indenture Trustee, in
substantially the form of Exhibit J.
"Collateral Trustee" means Citicorp USA, Inc. in its capacity
as collateral agent for the secured parties under the Collateral Trust
Agreement.
"Commitment" means, with respect to any Lender, such Lender's
Revolving Credit Commitment, if any, and Term Loan Commitment, if any, and
"Commitments" means the aggregate Revolving Credit Commitments and Term Loan
Commitments of all Lenders.
"Commitment Date" has the meaning specified in Section
2.1(c).
"Commitment Increase" has the meaning specified in Section
2.1(c).
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Credit Agreement
FMC Corporation
"Compliance Certificate" has the meaning specified in Section
6.1(c) (Financial Statements).
"Consolidated" means, with respect to any Person, the
consolidation of accounts of such Person and its Subsidiaries in accordance with
GAAP.
"Consolidated Current Assets" means, with respect to any
Person at any date, the total Consolidated current assets (other than cash and
Cash Equivalents) of such Person and its Subsidiaries at such date.
"Consolidated Current Liabilities" means, with respect to any
Person at any date, all liabilities of such Person and its Subsidiaries at such
date that should be classified as current liabilities on a Consolidated balance
sheet of such Person and its Subsidiaries, but excluding, in the case of the
Borrower, the sum of (a) the principal amount of any current portion of
long-term Financial Covenant Debt and (b) (without duplication of clause (a)
above) the then outstanding principal amount of the Loans.
"Consolidated Indebtedness" means at any date the total
Indebtedness of the Borrower and its Subsidiaries on a Consolidated basis,
determined as of such date.
"Consolidated Interest Expense" means, for the Borrower and
its Subsidiaries on a Consolidated basis for any period, total interest expense
for such period determined on a Consolidated basis in conformity with GAAP and
including, in any event, the amortization of debt discount and premium, the
portion of any payments due under any Capitalized Lease Obligation or other
obligation allocable to interest expense and the implied interest component
under any securitization programs of the Borrower.
"Consolidated Net Income" means, for any period, the sum of
net income (or loss) for such period of the Borrower and its Subsidiaries
determined on a Consolidated basis in accordance with GAAP, but excluding: (a)
any income of any Person if such Person is not a Subsidiary of the Borrower,
except that the Borrower's equity in the net income of any such Person for such
period shall be included in such net income up to the aggregate amount of cash
actually distributed by such Person during such period to the Borrower or a
Subsidiary of the Borrower as a dividend or other distribution; (b) the income
(or loss) of any Person accrued prior to the date it became a Subsidiary of the
Borrower or is merged into or consolidated with the Borrower or such Person's
assets are acquired by the Borrower or any of its Subsidiaries; and (c) the
income of any Subsidiary of the Borrower to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary of that income
is prohibited by operation of the terms of its charter or any agreement,
instrument, judgment, decree, statute, rule or governmental regulation
applicable to such Subsidiary.
"Constituent Documents" means, with respect to any Person, (a)
the articles of incorporation, certificate of incorporation or certificate of
formation (or the equivalent organizational documents) of such Person, (b) the
by-laws, operating agreement (or the equivalent governing documents) of such
Person and (c) any document setting forth the manner of election and duties of
the directors or managing members of such Person (if any) and the designation,
amount or relative rights, limitations and preferences of any class or series of
such Person's Stock.
"Contaminant" means any material, substance or waste that is
classified, regulated or otherwise characterized under any Environmental Law as
hazardous, toxic, a contaminant or a pollutant or by other words of similar
meaning or regulatory effect, including any petroleum or petroleum-derived
substance or waste, asbestos and polychlorinated biphenyls.
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Credit Agreement
FMC Corporation
"Contractual Obligation" of any Person means any obligation,
agreement, undertaking or similar provision of any Security issued by such
Person or of any agreement, undertaking, contract, lease, indenture, mortgage,
deed of trust or other instrument (excluding a Loan Document) to which such
Person is a party or by which it or any of its property is bound or to which any
of its property is subject.
"Control Account" means a securities account or commodity
account that is the subject of an effective Control Account Agreement and that
is maintained by any Loan Party with an Approved Securities Intermediary.
"Control Account" includes all financial assets held in a securities account or
a commodity account and all certificates and instruments, if any, representing
or evidencing the financial assets contained therein.
"Control Account Agreement" has the meaning specified in the
Bank Security Agreement.
"CUSA" has the meaning specified in the preamble to this
Agreement.
"Customary Permitted Liens" means, with respect to any Person,
any of the following Liens:
(a) Liens for taxes, assessments, governmental charges, claims
or levies in each case that are not yet due or that are being contested
in good faith by appropriate proceedings and with respect to which
adequate reserves (in the good faith judgment of the management of the
respective Person) have been established;
(b) Liens of landlords, liens in favor of utilities and liens
of suppliers, mechanics, carriers, materialmen, warehousemen or workmen
and other liens imposed by law or contract which were incurred in the
ordinary course of business and (i) which secure amounts not yet due or
(ii)(A) which do not in the aggregate materially detract from the value
of such property (other than immaterial property) or materially impair
the use thereof in the operation of the business of any Person or (B)
which Liens (or the amounts secured thereby) are being contested in
good faith by appropriate proceedings, which proceedings have the
effect of preventing the forfeiture or sale of the property subject to
such Lien;
(c) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance or other types of social security benefits or to secure the
performance of trade contracts, bids, tenders, statutory and regulatory
obligations, sales, contracts (other than for the repayment of borrowed
money), appeal bonds, leases, government contracts or customs bonds and
other similar obligations incurred in the ordinary course of business;
(d) encumbrances arising by reason of zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar encumbrances on the
use of real property not materially detracting from the value of such
real property or not materially interfering with the ordinary conduct
of the business conducted and proposed to be conducted at such real
property;
(e) encumbrances, easements, rights-of-way, restrictions,
minor defects or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the ordinary
conduct of the business of any Person;
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Credit Agreement
FMC Corporation
(f) encumbrances arising under leases or subleases of real
property that do not, in the aggregate, materially detract from the
value of such real property or interfere with the ordinary conduct of
the business conducted at such real property;
(g) financing statements with respect to a lessor's rights in
and to personal property leased to such Person in the ordinary course
of such Person's business;
(h) Liens arising from judgments, decrees or attachments and
Liens securing appeal bonds arising from judgments, in each case in
circumstances not constituting an Event of Default, provided that no
cash or property is deposited or delivered to secure any such judgment
or award;
(i) Liens on tangible property of a Person or a business that
are existing at the time such Person or business is acquired pursuant
to a Permitted Acquisition, provided that (i) such Liens were not
placed on such property in contemplation of the consummation of the
acquisition and do not extend to any property other than those of the
Person or the business so acquired (and proceeds and products of any of
the foregoing), and (ii) the aggregate Indebtedness secured by all
Liens permitted by this clause (i) is permitted by Section 8.1;
(j) Liens encumbering goods under production and arising from
progress or partial payments by the Borrower or any Subsidiary relating
to the underlying goods;
(k) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into
by the Borrower or any Subsidiary in the ordinary course of business;
(l) Liens under ERISA to the extent the creation thereof would
not breach the representation made in Section 4.16 if made immediately
after such creation;
(m) deposits or pledges in connection with the entry into or
performance of agreements entered into to effect Permitted Acquisitions
in an aggregate amount for all such deposits and pledges not to exceed
$1,000,000 plus the aggregate of such deposits or pledges returned to
Borrower or any Subsidiary or actually applied against the purchase
price paid in respect of such Permitted Acquisition;
(n) Liens on any proceeds (including, without limitation,
insurance, condemnation and eminent domain proceeds) or products of any
property, a lien over which is a Lien permitted by Section 8.2; and
(o) any exception to title set forth in the title insurance
policy or title commitment with respect to any property of the Borrower
or any Subsidiary Guarantor with respect to which a Mortgage has been
executed.
"Debt Reserve Account" means Account No. 104479 established by
the Borrower with Citibank, N.A. in which cash and Cash Equivalents may from
time to time be on deposit or held therein, and the proceeds of which shall be
used solely for (x) the redemption or repurchase of the Specified Debt, (y)
after the Specified Debt has been repaid in full, the redemption or repurchase
of Indebtedness permitted under Section 8.6(b)(vi) and (z) the purposes
specified in Section 2.8(f).
"Debt Reserve Account Agreement" means a letter agreement,
substantially in the form of Exhibit M (with such changes as may be approved by
the Administrative Agent), executed by the Borrower, the Administrative Agent
and the applicable Deposit Account Bank.
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Credit Agreement
FMC Corporation
"Default" means any event that, with the passing of time or
the giving of notice or both, would become an Event of Default.
"Deposit Account" has the meaning specified in the Bank
Security Agreement.
"Deposit Account Bank" has the meaning specified in the Bank
Security Agreement.
"Deposit Account Control Agreement" has the meaning specified
in the Bank Security Agreement.
"Disclosure Documents" means, collectively, (i) the
confidential information memorandum and related materials prepared in connection
with the syndication of the Facilities and (ii) the Offering Memorandum dated
October 9, 2002 prepared by the Borrower in connection with the issuance and
sale of the Senior Secured Notes.
"Disqualified Stock" means with respect to any Person, any
Stock that, by its terms (or by the terms of any Security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is exchangeable for Indebtedness of such Person, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the Scheduled Termination Date.
"Documentary Letter of Credit" means any Letter of Credit that
is drawable upon presentation of documents evidencing the sale or shipment of
goods purchased by the Borrower or any of its Subsidiaries in the ordinary
course of its business.
"Dollar Equivalent" of any amount means, at the time of
determination thereof, (a) if such amount is expressed in Dollars, such amount,
(b) if such amount is expressed in an Alternate Currency, the equivalent of such
amount in Dollars determined by using the rate of exchange quoted by Citibank in
New York, New York at 11:00 a.m. (New York time) on the date of determination to
prime banks in New York for the spot purchase in the New York foreign exchange
market of such amount of Dollars with such Alternate Currency and (c) if such
amount is denominated in any other currency, the equivalent of such amount in
Dollars as determined by the Administrative Agent using any method of
determination it deems appropriate.
"Dollars" and the sign "$" each mean the lawful money of the
United States of America.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule II (Applicable Lending Offices and Addresses for Notices)
or on the Assignment and Acceptance by which it became a Lender or such other
office of such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"Domestic Subsidiary" means any Subsidiary of the Borrower
organized under the laws of any state of the United States of America or the
District of Columbia.
"EBITDA" means, for any period, Consolidated Net Income for
such period, plus, without duplication and to the extent deducted from revenues
in determining Consolidated Net Income for such period, the sum of (a) the
aggregate amount of Consolidated Interest Expense for such period, (b) the
aggregate amount of income and franchise tax expense for such period, (c) all
amounts attributable to depreciation and amortization for such period, (d) all
non-recurring non-cash charges during such period (other than any non-cash item
of expense requiring an accrual or reserve for future cash expense) and
10
Credit Agreement
FMC Corporation
minus, without duplication and to the extent added to revenues in determining
Consolidated Net Income for such period, all non-recurring non-cash gains during
such period, all as determined on a consolidated basis with respect to the
Borrower and its Subsidiaries in accordance with GAAP on the last day of such
period.
"Eligible Assignee" means (a) a Lender or any Affiliate or Approved
Fund of such Lender, (b) a commercial bank having total assets in excess of
$5,000,000,000, (c) a finance company, insurance company or any other financial
institution or fund, in each case reasonably acceptable to the Administrative
Agent and regularly engaged in making, purchasing or investing in loans and
having a net worth, determined in accordance with GAAP, in excess of
$250,000,000 or, to the extent net worth is less than such amount, a finance
company, insurance company, other financial institution or fund, reasonably
acceptable to the Administrative Agent and the Borrower or (d) a savings and
loan association or savings bank organized under the laws of the United States
or any State thereof having a net worth, determined in accordance with GAAP, in
excess of $250,000,000.
"Environmental Laws" means all applicable Requirements of Law now or
hereafter in effect and as amended or supplemented from time to time, relating
to pollution or the regulation and protection of human health, safety, the
environment or natural resources, including the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. (S)
9601 et seq.); the Hazardous Material Transportation Act, as amended (49 U.S.C.
(S) 1801 et seq.); the Federal Insecticide, Fungicide, and Rodenticide Act, as
amended (7 U.S.C. (S) 136 et seq.); the Resource Conservation and Recovery Act,
as amended (42 U.S.C. (S) 6901 et seq.); the Toxic Substance Control Act, as
amended (42 U.S.C. (S) 7401 et seq.); the Clean Air Act, as amended (42 U.S.C.
(S) 740 et seq.); the Federal Water Pollution Control Act, as amended (33 U.S.C.
(S) 1251 et seq.); the Occupational Safety and Health Act, as amended (29 U.S.C.
(S) 651 et seq.); the Safe Drinking Water Act, as amended (42 U.S.C. (S) 300f et
seq.); and each of their state and local counterparts or equivalents and any
transfer of ownership notification or approval statute, including the Industrial
Site Recovery Act (N.J. Stat. Ann. (S) 13:1K-6 et seq.).
"Environmental Liabilities and Costs" means, with respect to any
Person, all liabilities, obligations, responsibilities, Remedial Actions,
losses, damages, punitive damages, consequential damages, treble damages, costs
and expenses (including all fees, disbursements and expenses of counsel, experts
and consultants and costs of investigation and feasibility studies), fines,
penalties, sanctions and interest incurred as a result of any claim or demand by
any other Person, whether based in contract, tort, implied or express warranty,
strict liability, criminal or civil statute and whether arising under any
Environmental Law, Permit, order or agreement with any Governmental Authority or
other Person, in each case relating to any environmental, health or safety
condition or to any Release or threatened Release and resulting from the past,
present or future operations of, or ownership of property by, such Person or any
of its Subsidiaries.
"Environmental Lien" means any Lien in favor of any Governmental
Authority for Environmental Liabilities and Costs.
"Equity Issuance" means (x) the issue or sale of any Stock of the
Borrower or any Subsidiary of the Borrower by the Borrower or any Subsidiary of
the Borrower to any Person other than the Borrower or any Subsidiary of the
Borrower or (y) the receipt by the Borrower of any capital contributions.
"ERISA" means the Employee Retirement Income Security Act of 1974.
11
Credit Agreement
FMC Corporation
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control or treated as a single employer with the
Borrower or any of its Subsidiaries within the meaning of Section 414(b), (c),
(m) or (o) of the Code.
"ERISA Event" means (a) a reportable event described in Section
4043(b) or 4043(c)(1), (2), (3), (5), (6), (8) or (9) of ERISA with respect to a
Title IV Plan or a Multiemployer Plan, (b) the withdrawal of the Borrower, any
of its Subsidiaries or any ERISA Affiliate from a Title IV Plan subject to
Section 4063 of ERISA during a plan year in which it was a substantial employer,
as defined in Section 4001(a)(2) of ERISA, (c) the complete or partial
withdrawal of the Borrower, any of its Subsidiaries or any ERISA Affiliate from
any Multiemployer Plan, (d) notice of reorganization or insolvency of a
Multiemployer Plan, (e) the filing of a notice of intent to terminate a Title IV
Plan or the treatment of a plan amendment as a termination under Section 4041 of
ERISA, (f) the institution of proceedings to terminate a Title IV Plan or
Multiemployer Plan by the PBGC, (g) the failure to make any required
contribution to a Title IV Plan or Multiemployer Plan, (h) the imposition of a
lien under Section 412 of the Code or Section 302 of ERISA on the Borrower or
any of its Subsidiaries or any ERISA Affiliate or (i) any other event or
condition that might reasonably be expected to constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Title IV Plan or Multiemployer Plan or the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Federal Reserve Board.
"Eurodollar Base Rate" means, with respect to any Interest Period for
any Eurodollar Rate Loan, the rate of interest determined by the Administrative
Agent to be the rate per annum at which deposits in Dollars are offered by the
principal office of each of the Reference Banks in London to major banks in the
London interbank market at 11:00 a.m. (London time) two Business Days before the
first day of such Interest Period in an amount substantially equal to the
Eurodollar Rate Loan of such Reference Bank for a period equal to such Interest
Period.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite its
name on Schedule II (Applicable Lending Offices and Addresses for Notices) or on
the Assignment and Acceptance by which it became a Lender (or, if no such office
is specified, its Domestic Lending Office) or such other office of such Lender
as such Lender may from time to time specify to the Borrower and the
Administrative Agent.
"Eurodollar Rate" means, with respect to any Interest Period for any
Eurodollar Rate Loan, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the Eurodollar Base Rate by (b)(i) a percentage equal
to 100% minus (ii) the reserve percentage applicable two Business Days before
the first day of such Interest Period under regulations issued from time to time
by the Federal Reserve Board for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement)
for a member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities (or
with respect to any other category of liabilities that includes deposits by
reference to which the Eurodollar Rate is determined) having a term equal to
such Interest Period.
"Eurodollar Rate Loan" means any Loan that, for an Interest Period,
bears interest based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 9.1 (Events of
Default).
12
Credit Agreement
FMC Corporation
"Excess Cash Flow" means, for the Borrower and its Subsidiaries for
any period, (a) the sum, without duplication, of (i) EBITDA for such period;
provided that for purposes hereof, EBITDA shall not be calculated on a pro forma
basis with respect to any Permitted Acquisitions made within the last twelve
(12) months, (ii) extraordinary or non-recurring cash receipts of the Borrower
and its Subsidiaries, if any, during such period and not included in EBITDA,
(iii) reductions to non-cash working capital of the Borrower and its
Subsidiaries for such period (i.e., the decrease, if any, in Consolidated
Current Assets minus Consolidated Current Liabilities from the beginning to the
end of such period), (iv) repayments to the Borrower of intercompany loans made
by the Borrower to any Foreign Subsidiaries to the extent included in clause
(iv) below, and (v) provisions taken for environmental remediation, pensions and
post employment benefits related to discontinued businesses, in each case to the
extent such provisions result in the reduction of EBITDA, minus (b) the sum,
without duplication, of (i) the amount of any cash income and franchise taxes
payable by the Borrower and its Subsidiaries with respect to such period, (ii)
cash interest paid by the Borrower and its Subsidiaries during such period,
(iii) Capital Expenditures committed or made in cash in accordance with Section
5.4 during such period (and not deducted from Excess Cash Flow in any prior
year), (iv) principal repayments permitted by Section 8.6 and optional
prepayments (to the extent such optional prepayments are made from Internally
Generated Funds) of Indebtedness made by the Borrower and its Subsidiaries
during such period (other than repayments or prepayments of intercompany loans);
provided that, with respect to payments of Revolving Loans, such payments shall
only be included in this clause (iv) to the extent that such payment is
accompanied by a simultaneous reduction of the Revolving Credit Commitments),
(v) Investments permitted under Section 8.3(i) or (j), (vi) extraordinary or
non-recurring expenses and losses to the extent paid in cash by the Borrower and
its Subsidiaries, if any, during such period and not included in EBITDA, (vii)
additions to non-cash working capital for such period (i.e., the increase, if
any, in Consolidated Current Assets minus Consolidated Current Liabilities from
the beginning to the end of such period), (viii) phosphorus restructuring cash
payments not to exceed in the aggregate the amount of the outstanding reserves
as of September 30, 2002, as set forth on Schedule IX hereto, (ix) the Astaris
Secured Payments and the Astaris Power Payment, (x) the 2003 earn-out payment in
respect of TG Soda Ash pursuant to the TG Soda Ash Agreement and any true-up
payments made in respect of such payment or in respect of other payments made
pursuant to the TG Soda Ash Agreement prior to 2004, (xi) expenditures (net of
recoveries) in respect of environmental remediation (other than as set forth in
clause (viii) above) not to exceed $125,000,000 in the aggregate for the five
Fiscal Year period ending December 31, 2007, and (xii) payments for post
employment benefits related to discontinued businesses and contributions to
pensions; provided that, to the extent otherwise included herein, the Net Cash
Proceeds of Asset Sales, Property Loss Events, issuances of Indebtedness
described in clauses (a) and (b) of the definition of "Indebtedness" and Equity
Issuances shall be excluded from the calculation of Excess Cash Flow.
"Existing Agent" means Citibank, N.A. in its capacity as
administrative agent under the Existing Credit Agreements.
"Existing Credit Agreements" means, collectively, (i) the 364-Day
Credit Agreement dated as of December 6, 2001, among the Borrower, the
institutions party thereto as lenders and the Existing Agent and (ii) the Credit
Agreement dated as of January 31, 2002, as amended, among the Borrower, the
institutions party thereto as lenders and the Existing Agent.
"Existing Indebtedness" means Indebtedness of the Borrower and its
Subsidiaries in existence on the Closing Date (other than Indebtedness in
respect of Foreign Credit Lines) and disclosed on Schedule 8.1 (Existing
Indebtedness).
"Existing Public Debt" means each of the indentures and other
Indebtedness of the Borrower listed on Schedule VII.
13
Credit Agreement
FMC Corporation
"Facilities" means (a) the Term Loan Facility and (b) the Revolving
Credit Facility.
"Fair Market Value" means (a) with respect to any asset or group of
assets (other than a marketable Security) at any date, the value of the
consideration obtainable in a sale of such asset at such date assuming a sale by
a willing seller to a willing purchaser dealing at arm's length and arranged in
an orderly manner over a reasonable period of time having regard to the nature
and characteristics of such asset, as reasonably determined, in the case of any
Asset Sale in excess of $5,000,000, by the Board of Directors of the Borrower or
a Subsidiary of the Borrower, as the case may be, or, if such asset shall have
been the subject of a relatively contemporaneous appraisal by an independent
third party appraiser, the basic assumptions underlying which have not
materially changed since its date, the value set forth in such appraisal and (b)
with respect to any marketable Security at any date, the closing sale price of
such Security on the Business Day next preceding such date, as appearing in any
published list of any national securities exchange or the NASDAQ Stock Market
or, if there is no such closing sale price of such Security, the final price for
the purchase of such Security at face value quoted on such Business Day by a
financial institution of recognized standing regularly dealing in securities of
such type and selected by the Administrative Agent.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the United
States Federal Reserve System, or any successor thereto.
"Financial Covenant Debt" of any Person means Indebtedness of the type
specified in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of the definition
of "Indebtedness"; provided that in the case of clause (c), such obligations
shall be included in this definition of Financial Covenant Debt only to the
extent such obligations are in respect of unreimbursed drawings under letters of
credit or the guarantees referred to in clause (b) of the definition of
"Permitted Vendor Indebtedness"; and provided further, that, in the case of a
guaranty of any obligation to Astaris under clause (g), such obligations shall
be included in this definition of Financial Covenant Debt only to the extent
that any such obligation is due and payable on the date on which any calculation
of Financial Covenant Debt is made.
"Financial Statements" means the financial statements of the Borrower
and its Subsidiaries delivered in accordance with Sections 4.4 (Financial
Statements) and 6.1 (Financial Statements).
"Fiscal Quarter" means each of the three month periods ending on March
31, June 30, September 30 and December 31.
"Fiscal Year" means the twelve month period ending on December 31.
"FMC Wyoming" means FMC Wyoming Corporation, a Delaware corporation.
"FMC Wyoming Agreement" means that certain Joint Venture Agreement
dated June 30, 1995, by and among the Borrower, FMC Wyoming, Nippon Sheet Glass
Co., Ltd. and Sumitomo Corporation, as amended through the date hereof.
14
Credit Agreement
FMC Corporation
"FMC's Business" means the business of developing, manufacturing
and/or selling, and providing research and development, marketing and/or other
services and support for, chemical-based and formulated products and related
organic and inorganic materials and any business reasonably related, incidental,
complementary or ancillary thereto.
"Foreign Borrower" means each Foreign Subsidiary owing obligations
pursuant to (i) any Foreign Credit Line or (ii) Hedging Contracts and Cash
Management Obligations that are otherwise guaranteed by the Borrower.
"Foreign Credit Line" means a credit facility or similar credit
arrangement (including any arrangement in connection with Permitted Vendor
Indebtedness) made available by a financial institution to Foreign Subsidiaries
or their customers, as applicable.
"Foreign Subsidiary" means any Subsidiary of the Borrower that is not
a Domestic Subsidiary.
"Foreign Pledge Agreements" means each of the foreign pledge and/or
security agreements listed on Schedule 1.1, executed by one or more Foreign
Subsidiaries, Domestic Subsidiaries and/or the Borrower, as applicable, in form
and substance satisfactory to the Administrative Agent.
"Fund" means any Person (other than a natural Person) that is or will
be engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Board, or in such other statements by such other
entity as may be in general use by significant segments of the accounting
profession, that are applicable to the circumstances as of the date of
determination.
"Governmental Authority" means any nation, sovereign or government,
any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, including any central bank.
"Guarantor" means the Borrower (with respect to the Parent Guaranty)
and each Subsidiary Guarantor.
"Guaranty" means each of the Parent Guaranty and the U.S. Subsidiary
Guaranty.
"Guaranty Obligation" means, as applied to any Person, any direct or
indirect liability, contingent or otherwise, of such Person with respect to any
Indebtedness of another Person, if the purpose or intent of such Person in
incurring the Guaranty Obligation is to provide assurance to the obligee of such
Indebtedness that such Indebtedness will be paid or discharged, or that any
agreement relating thereto will be complied with, or that any holder of such
Indebtedness will be protected (in whole or in part) against loss in respect
thereof, including (a) the direct or indirect guaranty, endorsement (other than
for collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of Indebtedness
of another Person and (b) any liability of such Person for Indebtedness of
another Person through any agreement (contingent or otherwise) (i) to purchase,
repurchase or otherwise acquire such Indebtedness or any security therefor, or
to provide funds for the payment or discharge of such Indebtedness (whether in
the form of a loan, advance, stock purchase,
15
Credit Agreement
FMC Corporation
capital contribution or otherwise), (ii) to maintain the solvency or any balance
sheet item, level of income or financial condition of another Person, (iii) to
make take-or-pay or similar payments outside of the ordinary course of business,
if required, regardless of non-performance by any other party or parties to an
agreement, (iv) to purchase, sell or lease (as lessor or lessee) property, or to
purchase or sell services, primarily for the purpose of enabling the debtor to
make payment of such Indebtedness or to assure the holder of such Indebtedness
against loss or (v) to supply funds to, or in any other manner invest in, such
other Person (including to pay for property or services irrespective of whether
such property is received or such services are rendered), if in the case of any
agreement described under clause (b)(i), (ii), (iii), (iv) or (v) above the
primary purpose or intent thereof is to provide assurance that Indebtedness of
another Person will be paid or discharged, that any agreement relating thereto
will be complied with or that any holder of such Indebtedness will be protected
(in whole or in part) against loss in respect thereof. The amount of any
Guaranty Obligation shall be equal to the amount of the Indebtedness so
guaranteed or otherwise supported.
"Hedging Contracts" means all Interest Rate Contracts, foreign
exchange contracts, currency swap or option agreements, forward contracts,
commodity swap, purchase or option agreements, other commodity price hedging
arrangements, and all other similar agreements or arrangements designed to alter
the risks of any Person arising from fluctuations in interest rates, currency
values or commodity prices.
"Increase Date " has the meaning specified in Section 2.1(c).
"Increasing Lender" has the meaning specified in Section 2.1(c).
"Indebtedness" of any Person means without duplication (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person evidenced by notes, bonds, debentures or similar instruments or that bear
interest, (c) all reimbursement and all obligations with respect to letters of
credit, bankers' acceptances, surety bonds and performance bonds, whether or not
matured, (d) all indebtedness for the deferred purchase price of property or
services, other than trade payables incurred in the ordinary course of business
that are not overdue, (e) all indebtedness of such Person created or arising
under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (f) all Capital Lease Obligations of
such Person and the present value of future rental payments under all synthetic
leases, (g) all Guaranty Obligations of such Person, (h) all obligations of such
Person to purchase, redeem, retire, defease or otherwise acquire for value any
Stock or Stock Equivalents of such Person, valued, in the case of redeemable
preferred stock, at the greater of its voluntary liquidation preference and its
involuntary liquidation preference plus accrued and unpaid dividends, (i) all
payments that such Person would have to make in the event of an early
termination on the date Indebtedness of such Person is being determined in
respect of Hedging Contracts of such Person and (j) all Indebtedness of the type
referred to above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien upon or
in property (including accounts and general intangibles) owned by such Person,
even though such Person has not assumed or become liable for the payment of such
Indebtedness.
"Indemnified Matter" has the meaning specified in Section 11.4
(Indemnities).
"Indemnitee" has the meaning specified in Section 11.4 (Indemnities).
"Indenture" means the Indenture, dated as of October 21, 2002, among
the Borrower, the Subsidiary Guarantors and Wachovia, as trustee.
16
Credit Agreement
FMC Corporation
"Indenture Trustee" means Wachovia, as successor to Harris Trust and
Savings Bank, an Illinois banking corporation, and any further successor, as
trustee under (i) the Indenture dated as of April 1, 1992 and (ii) the Indenture
dated as of July 1, 1996, in each case entered into with Borrower.
"Interest Coverage Ratio" means, with respect to the Borrower and its
Subsidiaries on a Consolidated basis for any period, the ratio of EBITDA for
such period to Net Consolidated Interest Expense for such period.
"Interest Income" means , for the Borrower and its Subsidiaries on a
Consolidated basis for any period, total interest income for such period on a
Consolidated basis in conformity with GAAP.
"Interest Period" means, in the case of any Eurodollar Rate Loan, (a)
initially, the period commencing on the date such Eurodollar Rate Loan is made
or on the date of conversion of a Base Rate Loan to such Eurodollar Rate Loan
and ending one, two, three or six months thereafter (or such other period as the
Revolving Credit Lenders may agree), as selected by the Borrower in its Notice
of Borrowing or Notice of Conversion or Continuation given to the Administrative
Agent pursuant to Section 2.2 (Borrowing Procedures) or 2.10
(Conversion/Continuation Option) and (b) thereafter, if such Loan is continued,
in whole or in part, as a Eurodollar Rate Loan pursuant to Section 2.10
(Conversion/Continuation Option), a period commencing on the last day of the
immediately preceding Interest Period therefor and ending one, two, three or six
months thereafter (or such other period as the Revolving Credit Lenders may
agree), as selected by the Borrower in its Notice of Conversion or Continuation
given to the Administrative Agent pursuant to Section 2.10
(Conversion/Continuation Option); provided, however, that all of the foregoing
provisions relating to Interest Periods in respect of Eurodollar Rate Loans are
subject to the following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless the result of such extension would be to
extend such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month at the end of such
Interest Period; and
(iii) the Borrower may not select any Interest Period that ends
after the date of a scheduled principal payment on the Loans as set forth
in Article II (The Facilities) unless, after giving effect to such
selection, the aggregate unpaid principal amount of the Loans for which
Interest Periods end after such scheduled principal payment shall be equal
to or less than the principal amount to which the Loans are required to be
reduced after such scheduled principal payment is made.
"Interest Rate Contracts" means all interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements and interest rate
insurance.
"Internally Generated Funds" means all cash, income and other funds of
the Borrower and its Subsidiaries other than proceeds of (i) insurance and
condemnation policies, (ii) Asset Sales, (iii) sale and leaseback transactions,
(iv) Equity Issuances and (v) issuances of Indebtedness of the type specified in
clause (a) or (b) of the definition of "Indebtedness" by the Borrower or any of
its Subsidiaries.
17
Credit Agreement
FMC Corporation
"Investment" means, with respect to any Person, (a) any purchase or
other acquisition by such Person of (i) any Security issued by, (ii) a
beneficial interest in any Security issued by, or (iii) any other equity
ownership interest in, any other Person, (b) any purchase by such Person of all
or a significant part of the assets of a business conducted by any other Person,
or all or substantially all of the assets constituting the business of a
division, branch or other unit operation of any other Person, (c) any loan,
advance (other than deposits with financial institutions available for
withdrawal on demand, prepaid expenses, accounts receivable and similar items
made or incurred in the ordinary course of business as presently conducted) or
capital contribution by such Person to any other Person, including all
Indebtedness of any other Person to such Person arising from a sale of property
by such Person other than in the ordinary course of its business, and (d) any
Guaranty Obligation incurred by such Person in respect of Indebtedness of any
other Person.
"Inventory" has the meaning specified in each Pledge and Security
Agreement.
"IRB Obligations" means the variable rate industrial and pollution
control revenue bonds of the Borrower.
"IRS" means the Internal Revenue Service of the United States or any
successor thereto.
"Issue" means, with respect to any Letter of Credit, to issue, extend
the expiry of, renew or increase the maximum face amount (including by deleting
or reducing any scheduled decrease in such maximum face amount) of, such Letter
of Credit. The terms "Issued" and "Issuance" shall have a corresponding meaning.
"Issuer" means each Lender or Affiliate of a Lender that (a) is listed
on the signature pages hereof as an "Issuer" or (b) hereafter becomes an Issuer
with the approval of the Administrative Agent and the Borrower by agreeing
pursuant to an agreement with and in form and substance satisfactory to the
Administrative Agent and the Borrower to be bound by the terms hereof applicable
to Issuers.
"Joinder Agreement" means a joinder agreement entered into by an
Eligible Assignee or other financial institution, accepted by the Administrative
Agent, and in substantially the form of Exhibit L (Form of Joinder Agreement)
and otherwise in form and substance acceptable to the Administrative Agent.
"L/C Agreement" means that certain letter of credit agreement dated as
of the date hereof, among the Borrower, Citibank and BofA, providing for the
issuance of standby letters of credit on behalf of the Borrower, in an amount
not to exceed $40,000,000.
"Leases" means, with respect to any Person, all of those leasehold
estates in real property of such Person, as lessee, as such may be amended,
supplemented or otherwise modified from time to time.
"Lender" means each financial institution or other entity that (a) is
listed on the signature pages hereof as a "Lender" or (b) from time to time
becomes a party hereto by execution of an Assignment and Acceptance or Joinder
Agreement.
"Letter of Credit" means any letter of credit issued pursuant to
Section 2.3 (Letters of Credit).
18
Credit Agreement
FMC Corporation
"Letter of Credit Obligations" means, at any time, the aggregate of
all liabilities at such time of the Borrower to all Issuers with respect to
Letters of Credit, whether or not any such liability is contingent, including,
without duplication, the sum of (a) the Reimbursement Obligations at such time
and (b) the Letter of Credit Undrawn Amounts at such time.
"Letter of Credit Reimbursement Agreement" has the meaning specified
in Section 2.3(e) (Letters of Credit).
"Letter of Credit Request" has the meaning specified in Section 2.3(c)
(Letters of Credit).
"Letter of Credit Sublimit" means $50,000,000; provided, however, that
if the Revolving Credit Facility shall be increased to an amount equal to
$300,000,000, then the Letter of Credit Sublimit shall be equal to $75,000,000
and, if the Revolving Credit Facility shall be increased to an amount greater
than $300,000,000, then the Letter of Credit Sublimit shall be equal to the sum
of (a) $75,000,000 plus (b) the amount by which the Revolving Credit Facility
exceeds $300,000,000.
"Letter of Credit Undrawn Amounts" means, at any time, the aggregate
undrawn face amount of all Letters of Credit outstanding at such time.
"Leverage Ratio" means, with respect to the Borrower and its
Subsidiaries on a Consolidated basis as of any date, the ratio of Net Debt as of
such date to EBITDA for the last four Fiscal Quarters ending on or before such
date.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge, deposit arrangement, encumbrance, lien (statutory or other),
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever intended to assure
payment of any Indebtedness or the performance of any other obligation,
including any conditional sale or other title retention agreement, the interest
of a lessor under a Capital Lease and any financing lease having substantially
the same economic effect as any of the foregoing, and the filing of any
financing statement under the UCC or comparable law of any jurisdiction naming
the owner of the asset to which such Lien relates as debtor.
"Like Kind Exchange" means an Asset Sale of property for Fair Market
Value to the extent that (a) the consideration received in exchange therefor
consists of property of equivalent value that is useful in the conduct of the
business of the Borrower and its Subsidiaries and (b) such Asset Sale qualifies
for non-recognition treatment under Section 1031 of the Code; provided that no
Like Kind Exchange shall be for all or substantially all of the assets of any
Subsidiary of the Borrower.
"Loan" means any loan made by any Lender pursuant to this Agreement.
"Loan Documents" means, collectively, this Agreement, the Notes (if
any), the U.S. Subsidiary Guaranty, the Parent Guaranty, each Letter of Credit
Reimbursement Agreement, each Hedging Contract or Cash Management Document in
effect as of the Closing Date between any Loan Party (other than a Foreign
Subsidiary) and any Person who is a Lender or an Affiliate of a Lender on the
Closing Date, each Hedging Contract or Cash Management Document between any Loan
Party (other than a Foreign Subsidiary) and any Person who, at the time such
Person entered into such Hedging Contract or Cash Management Document, was a
Lender or an Affiliate of a Lender, the Collateral Documents and each
certificate, agreement or document executed by a Loan Party and delivered to the
Administrative Agent or any Lender in connection with or pursuant to any of the
foregoing.
19
Credit Agreement
FMC Corporation
"Loan Party" means each of the Borrower, each Guarantor and each other
Subsidiary of the Borrower that executes and delivers a Loan Document (other
than any Foreign Subsidiary that executes a Foreign Pledge Agreement in respect
of such Foreign Subsidiary's Stock).
"Material Adverse Change" means a material adverse change in any of
(a) the condition (financial or otherwise), business, prospects, operations or
properties of the Borrower and its Subsidiaries taken as a whole, (b) the
legality, validity or enforceability of any Loan Document, (c) the perfection or
priority of the Liens granted pursuant to the Collateral Documents, (d) the
ability of the Borrower to repay the Obligations or of the other Loan Parties to
perform their respective obligations under the Loan Documents or (e) the rights
and remedies of the Administrative Agent, the Lenders or the Issuers under the
Loan Documents.
"Material Adverse Effect" means an effect that results in or causes,
or could reasonably be expected to result in or cause, a Material Adverse
Change.
"Material Real Property" means (i) each Principal Property (as such
term is defined in the indentures governing the Existing Public Debt) and (ii)
each piece of real property of the Borrower or its Subsidiaries having a net
book value of $2,500,000 or more.
"Material Subsidiary" means any Subsidiary of the Borrower from time
to time in which the Borrower has an Investment, direct or indirect, of at least
$10,000,000 (excluding Investments by such Subsidiary in other Subsidiaries in
the form of Stock or Stock Equivalents), which Subsidiaries on the Closing Date
are listed on Schedule VIII hereto.
"Moody's" means Moody's Investors Services, Inc.
"Mortgages" means the mortgages, deeds of trust or other real estate
security documents made or required herein to be made by the Borrower or any
other Loan Party.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower, any of its Subsidiaries or any ERISA
Affiliate has any obligation or liability, contingent or otherwise.
"Net Cash Proceeds" means proceeds received by, (x) in the case of
clauses (a) and (b) below, the Borrower or any of its Subsidiaries, and (y) in
the case of clause (c) below, any Loan Party, in each case after the Closing
Date in cash or Cash Equivalents from any (a) Asset Sale described in Section
8.4(h), net of (i) the reasonable cash costs of sale, assignment or other
disposition, (ii) taxes paid or reasonably estimated to be payable as a result
thereof and (iii) any amount required to be paid or prepaid on Indebtedness
(other than the Obligations) secured by the assets subject to such Asset Sale;
provided, however, that evidence of each of (i), (ii) and (iii) above is
provided to the Administrative Agent in form and substance satisfactory to it,
(b) Property Loss Event or (c) Equity Issuance (other than any such issuance of
common Stock of the Borrower occurring in the ordinary course of business to any
director, member of the management or employee of the Borrower or its
Subsidiaries), net of brokers' and advisors' fees and other costs incurred in
connection with such transaction; provided, however, that in the case of this
clause (c), evidence of such costs is provided to the Administrative Agent in
form and substance satisfactory to it.
"Net Consolidated Interest Expense" means, for any period,
Consolidated Interest Expense for such period less the sum of (x) amortization
of debt discount and premium for such period and (y) Interest Income for such
period.
20
Credit Agreement
FMC Corporation
"Net Debt" means, as of any date of determination, the aggregate
amount of Financial Covenant Debt of the Borrower and its Subsidiaries as of
such date less an amount equal to the sum of (i) aggregate amount held in the
Debt Reserve Account and (ii) that portion of the aggregate amount held in the
Restricted Cash Collateral Account designated to be applied solely to secure
letters of credit supporting the IRB Obligations and amounts disbursed from the
Restricted Cash Collateral Account actually used for such purpose, in each case
as of such date.
"Net Worth" of any Person means, at any date, the stockholders' equity
that would be reflected on a Consolidated balance sheet of such Person and its
Subsidiaries at such date prepared in conformity with GAAP (except, for the
purposes hereof, such amount shall (i) exclude changes after June 30, 2002 in
the cumulative foreign currency translation adjustment and any mark to market of
a derivative or hedging instrument (or any other adjustment related thereto)
required under FAS 133 and (ii) be adjusted on each date of determination, by an
amount equal to the non-cash charges to other comprehensive income made with
respect to Fiscal Year 2002 to the extent such non-cash charges relate to
pension plans of the Borrower and its Subsidiaries, as if such non-cash charges
were made as of such date).
"Non-Funding Lender" has the meaning specified in Section 2.2(e)
(Borrowing Procedures).
"Non-Guarantor Subsidiary" means each Subsidiary of the Borrower
listed on Schedule III hereto.
"Non-U.S. Lender" means each Lender (or the Administrative Agent) that
is not a United States person as defined in Section 7701(a)(30) of the Code.
"Note" means any Revolving Credit Note or Term Loan Note.
"Notice of Borrowing" has the meaning specified in Section 2.2(a)
(Borrowing Procedures).
"Notice of Conversion or Continuation" has the meaning specified in
Section 2.10 (Conversion/Continuation Option).
"Obligations" means the Loans, the Letter of Credit Obligations and
all other amounts, obligations, covenants and duties owing by the Borrower to
the Administrative Agent, any Lender, any Issuer, any Affiliate of any of them
or any Indemnitee, of every type and description (whether by reason of an
extension of credit, opening or amendment of a letter of credit or payment of
any draft drawn thereunder, loan, guaranty, indemnification, foreign exchange or
currency swap transaction, interest rate or commodity hedging transaction or
otherwise), present or future, arising under this Agreement, any other Loan
Document (including Cash Management Documents and Hedging Contracts that are
Loan Documents), whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired and whether or not evidenced by any note,
guaranty or other instrument or for the payment of money, including all letter
of credit, cash management and other fees, interest, charges, expenses,
attorneys' fees and disbursements, Cash Management Obligations and other sums
chargeable to the Borrower under this Agreement, any other Loan Document
(including Cash Management Documents and Hedging Contracts that are Loan
Documents) and all obligations of the Borrower under any Loan Document to
provide cash collateral for Letter of Credit Obligations.
21
Credit Agreement
FMC Corporation
"Outstanding Notes" means, collectively, (i) the 6 3/8% Senior Notes
due September 1, 2003 issued under the indenture dated as of April 1, 1992
between the Borrower and Wachovia, as trustee, (ii) the 7.125% Fixed Rate Series
B Medium Term Notes due November 25, 2002 and the 2007 Notes (both issued under
the indenture dated as of July 1, 1996 between the Borrower and Wachovia, as
trustee).
"Parent Guaranty" means the guaranty of the obligations of the Foreign
Borrowers under (i) the Foreign Credit Lines and (ii) Hedging Contracts and Cash
Management Obligations that are otherwise guaranteed by the Borrower, executed
by the Borrower, in substantially the form of Exhibit G-2.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Permit" means any permit, approval, authorization, license, variance
or permission required from a Governmental Authority under an applicable
Requirement of Law.
"Permitted Acquisition" means the acquisition by the Borrower or any
of its Subsidiaries of all or substantially all of the assets or Stock of any
Person or of any operating division thereof (the "Target"), or the merger of the
Target with or into the Borrower or any Subsidiary of the Borrower (with the
Borrower, in the case of a merger with the Borrower, being the surviving
corporation) subject to the satisfaction of each of the following conditions:
(a) the Administrative Agent shall receive at least 30 days' prior
written notice of such acquisition, which notice shall include, without
limitation, a reasonably detailed description of such acquisition;
(b) such acquisition shall only involve assets comprising a business,
or those assets of a business, of the type described in the definition of
"FMC's Business";
(c) such acquisition shall be consensual and shall have been approved
by the Target's board of directors;
(d) no additional Indebtedness or other liabilities shall be incurred,
assumed or otherwise reflected on a Consolidated balance sheet of the
Borrower and Target after giving effect to such acquisition, except (i)
Loans made hereunder, (ii) ordinary course trade payables and accrued
expenses and (iii) Indebtedness permitted under Section 8.1 (Indebtedness);
(e) the sum of all amounts payable in connection with such acquisition
and all other Permitted Acquisitions (including all transaction costs and
all Indebtedness, liabilities and Guaranty Obligations incurred or assumed
in connection therewith or otherwise reflected in a Consolidated balance
sheet of the Borrower and Target) shall not exceed $50,000,000, of which
not more than $25,000,000 in the aggregate, may be used to purchase assets
located outside the United States; provided that, solely with respect to
acquisitions of assets located within the United States, the Borrower may
exceed such limitation, to the extent the Leverage Ratio shall be less than
2.5 to 1.0 after giving effect to such acquisition on a pro forma basis;
(f) at or prior to the closing of such acquisition, the Borrower (or
the Subsidiary making such acquisition) and the Target shall have executed
such documents and taken such actions as may be required under Section 7.11
(Additional Collateral and Guaranties);
22
Credit Agreement
FMC Corporation
(g) concurrently with delivery of the notice referred to in clause (a)
above, the Borrower shall have delivered to the Administrative Agent, in
form and substance satisfactory to the Administrative Agent and the
Requisite Lenders, such other financial information, financial analysis,
documentation or other information relating to such acquisition as the
Administrative Agent or any Lender shall reasonably request;
(h) on or prior to the date of such acquisition, the Administrative
Agent shall have received, in form and substance satisfactory to the
Administrative Agent and the Requisite Lenders, copies of the acquisition
agreement, related Contractual Obligations and instruments, and all
opinions, certificates, lien search results and other documents reasonably
requested by the Administrative Agent; and
(i) at the time of such acquisition and after giving effect thereto,
(i) no Default or Event of Default shall have occurred and be continuing
and (ii) all representations and warranties contained in Article IV
(Representations and Warranties) and in the other Loan Documents shall be
true and correct in all material respects.
"Permitted Refinancing" has the meaning specified in Section 8.1.
"Permitted Revolving Credit Extension" has the meaning specified in
Section 8.1.
"Permitted Vendor Indebtedness" means Indebtedness incurred by
Subsidiaries of the Borrower organized in Brazil (and the guarantees by the
Borrower thereof) consisting of (a) import financing Indebtedness incurred
directly by any such Subsidiary for the purpose of conducting vendor financing
programs in South America and (b) guarantees by any such Subsidiary or the
Borrower of Indebtedness incurred by customers in order to finance the purchase
of products of the Borrower and its Subsidiaries or the purchase of third-party
agricultural products, in an aggregate principal amount not to exceed the amount
set forth on Schedule VI.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, estate, trust, limited liability company,
unincorporated association, joint venture or other entity, or a Governmental
Authority.
"Pledge and Security Agreement" means each of the Bank Security
Agreement and the Shared Collateral Security Agreement.
"Pledged Notes" has the meaning specified in each Pledge and Security
Agreement.
"Pledged Stock" has the meaning specified in each Pledge and Security
Agreement.
"Pocatello Equipment" means the equipment no longer used in the
Borrower's operations and located at the Borrower's Pocatello, Idaho facility.
"Property Loss Event" means (a) any loss of or damage to property of
the Borrower or any of its Subsidiaries that results in the receipt by such
Person of proceeds of insurance in excess of $5,000,000 (individually or in the
aggregate) or (b) any taking of property of the Borrower or any of its
Subsidiaries that results in the receipt by such Person of a compensation
payment in respect thereof in excess of $5,000,000 (individually or in the
aggregate).
"Protective Advances" means all expenses, disbursements and advances
incurred by the Administrative Agent pursuant to the Loan Documents after the
occurrence and during the continuance of
23
Credit Agreement
FMC Corporation
an Event of Default that the Administrative Agent, in its sole discretion, deems
necessary or desirable to preserve or protect the Collateral or any portion
thereof or to enhance the likelihood, or maximize the amount, of repayment of
the Obligations.
"Purchasing Lender" has the meaning specified in Section 11.7 (Sharing
of Payments, Etc.).
"Ratable Portion" or "ratably" means, with respect to any Lender, (a)
with respect to the Revolving Credit Facility, the percentage obtained by
dividing (i) the Revolving Credit Commitment of such Lender by (ii) the
aggregate Revolving Credit Commitments of all Lenders (or, at any time after the
Revolving Credit Termination Date, the percentage obtained by dividing the
aggregate outstanding principal balance of the Revolving Credit Outstandings
owing to such Lender by the aggregate outstanding principal balance of the
Revolving Credit Outstandings owing to all Lenders) and (b) with respect to the
Term Loan Facility, the percentage obtained by dividing (i) the Term Loan
Commitment of such Lender by (ii) the aggregate Term Loan Commitments of all
Lenders (or, at any time after the Closing Date, the percentage obtained by
dividing the principal amount of such Lender's Term Loans by the aggregate Term
Loans of all Lenders).
"Reference Bank" means the Lender or any Affiliate thereof that is
then acting as the Administrative Agent or an Affiliate of the Administrative
Agent, BofA and Wachovia.
"Register" has the meaning specified in Section 11.2(c) (Assignments
and Participations).
"Reimbursement Date" has the meaning specified in Section 2.3(h)
(Letters of Credit).
"Reimbursement Obligations" means all matured reimbursement or
repayment obligations of the Borrower to any Issuer with respect to amounts
drawn under Letters of Credit.
"Reinvestment Deferred Amount" means, with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by any Loan Party in connection
therewith that are not initially applied to prepay the Loans pursuant to Section
2.8 (Mandatory Prepayments) as a result of the delivery of a Reinvestment
Notice.
"Reinvestment Event" means any Property Loss Event in respect of which
the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice" means a written notice executed by a Responsible
Officer of the Borrower stating that no Default or Event of Default has occurred
and is continuing and that the Borrower (directly or indirectly through one of
its Subsidiaries) intends and expects to use all or a specified portion of the
Net Cash Proceeds of a Property Loss Event to acquire replacement assets useful
in its or one of its Subsidiaries' businesses or to effect repairs.
"Reinvestment Prepayment Amount" means, with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended or required to be expended pursuant to a Contractual Obligation
entered into prior to the relevant Reinvestment Prepayment Date to acquire
replacement assets useful in the Borrower's business or to effect repairs.
"Reinvestment Prepayment Date" means, with respect to any Reinvestment
Event, the earlier of (a) the date occurring 180 days after such Reinvestment
Event and (b) the date that is five Business Days after the date on which the
Borrower shall have notified the Administrative Agent of the
24
Credit Agreement
FMC Corporation
Borrower's determination not to acquire replacement assets useful in the
Borrower's or a Subsidiary's business or not to effect repairs) with all or any
portion of the relevant Reinvestment Deferred Amount.
"Release" means, with respect to any Person, any release, spill,
emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal,
leaching or migration, in each case, of any Contaminant into the indoor or
outdoor environment or into or out of any property owned by such Person,
including the movement of Contaminants through or in the air, soil, surface
water, ground water or property.
"Remedial Action" means all actions required to (a) clean up, remove,
treat or in any other way address any Contaminant in the indoor or outdoor
environment, (b) prevent the Release or threat of Release or minimize the
further Release so that a Contaminant does not migrate or endanger or threaten
to endanger public health or welfare or the indoor or outdoor environment or (c)
perform pre-remedial studies and investigations and post-remedial monitoring and
care.
"Requirement of Law" means, with respect to any Person, the common law
and all federal, state, local and foreign laws, rules and regulations, orders,
judgments, decrees and other determinations of any Governmental Authority or
arbitrator, applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"Requisite Lenders" means, collectively, Lenders having more than
fifty percent (50%) of the sum of (a) the aggregate outstanding amount of the
Revolving Credit Commitments or, after the Revolving Credit Termination Date,
the aggregate Revolving Credit Outstandings and (b) the aggregate outstanding
amount of the Term Loan Commitments or, after the Closing Date, the principal
amount of all Term Loans then outstanding. A Non-Funding Lender shall not be
included in the calculation of "Requisite Lenders."
"Requisite Revolving Credit Lenders" shall mean Revolving Credit
Lenders having more than fifty percent (50%) of the aggregate outstanding amount
of the Revolving Credit Commitments or, after the Revolving Credit Termination
Date, more than fifty percent (50%) of the aggregate Revolving Credit
Outstandings. A Non-Funding Lender shall not be included in the calculation of
"Requisite Revolving Credit Lenders."
"Requisite Term Loan Lenders" means Term Loan Lenders having more than
50% of the aggregate outstanding amount of the Term Loan Commitments or, after
the Closing Date, more than fifty percent (50%) of the principal amount of all
Term Loans then outstanding.
"Responsible Officer" means, with respect to any Person, any of the
principal executive officers, managing members or general partners of such
Person but, in any event, with respect to financial matters, the chief financial
officer or treasurer of such Person.
"Restricted Cash Collateral Account" means Account No. 104480
established by the Borrower with Citibank, N.A. in which cash and Cash
Equivalents may from time to time be on deposit or held therein, and the
proceeds of which shall be used from time to time solely to (a) refinance and/or
replace or secure with cash collateral certain surety bonds, letters of credit
or trust arrangements supporting self-insurance programs, environmental
obligations, future business commitments and letters of credit in an amount not
exceeding $44,030,000 supporting IRB Obligations, in each case, issued by or for
the benefit of the Borrower and its Subsidiaries or (b) make a mandatory
prepayment pursuant to Section 2.8(i).
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Credit Agreement
FMC Corporation
"Restricted Cash Collateral Account Agreement" means a letter
agreement, substantially in the form of Exhibit N (with such changes as may be
approved by the Administrative Agent), executed by the Borrower, the
Administrative Agent and the applicable Deposit Account Bank.
"Restricted Payment" means (a) any dividend, distribution or any other
payment whether direct or indirect, on account of any Stock or Stock Equivalents
of the Borrower or any of its Subsidiaries now or hereafter outstanding and (b)
any redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any Stock or Stock Equivalents of
the Borrower or any of its Subsidiaries now or hereafter outstanding.
"Revolving Credit Borrowing" means Revolving Loans made on the same
day by the Revolving Credit Lenders ratably according to their respective
Revolving Credit Commitments.
"Revolving Credit Commitment" means, with respect to each Revolving
Credit Lender, the commitment of such Revolving Credit Lender to make Revolving
Loans and acquire interests in other Revolving Credit Outstandings in the
aggregate principal amount outstanding not to exceed the amount set forth
opposite such Revolving Credit Lender's name on Schedule I (Commitments) under
the caption "Revolving Credit Commitment," as such amount may be increased or
reduced from time to time to reflect each Assignment and Acceptance and Joinder
Agreement executed by such Revolving Credit Lender and as such amount may be
reduced pursuant to this Agreement. The initial aggregate amount of the
Revolving Credit Commitments shall not exceed $250,000,000; provided that, upon
the request of the Borrower, the Revolving Credit Commitments may be increased
to an amount not to exceed $340,000,000 in the aggregate.
"Revolving Credit Facility" means the Revolving Credit Commitments and
the provisions herein related to the Revolving Loans and Letters of Credit.
"Revolving Credit Lender" means each Lender having a Revolving Credit
Commitment.
"Revolving Credit Note" means a promissory note of the Borrower
payable to the order of any Revolving Credit Lender in a principal amount equal
to the amount of such Revolving Credit Lender's Revolving Credit Commitment
evidencing the aggregate Indebtedness of the Borrower to such Revolving Credit
Lender resulting from the Revolving Loans owing to such Revolving Credit Lender.
"Revolving Credit Outstandings" means, at any particular time, the sum
of (a) the principal amount of the Revolving Loans outstanding at such time and
(b) the Letter of Credit Obligations outstanding at such time.
"Revolving Credit Termination Date" shall mean the earliest of (a) the
Scheduled Termination Date, (b) the date of termination in whole of the
Revolving Credit Commitments pursuant to Section 2.4 (Reduction and Termination
of the Revolving Credit Commitments) and (c) the date on which the Obligations
become due and payable pursuant to Section 9.2 (Remedies).
"Revolving Loan" has the meaning specified in Section 2.1(a) (The
Commitments).
"S&P" means Standard & Poor's Rating Services.
"Sarbanes-Oxley Act" means the United States Sarbanes-Oxley Act of
2002.
26
Credit Agreement
FMC Corporation
"Scheduled Termination Date" means the later of (a) the third
anniversary of the Closing Date or (b) if extended pursuant to the Permitted
Revolving Credit Extension, the scheduled maturity date of the Permitted
Revolving Credit Extension.
"SEC" means the United States Securities and Exchange Commission.
"Secured Obligations" means, (i) in the case of the Borrower, (A) the
Obligations, (B) the "Obligations" as defined in the L/C Agreement, (C) the
"Obligations," as defined in the Parent Guaranty and (D) the Astaris Secured
Payments, and (ii) in the case of any other Loan Party, the obligations of such
Loan Party under the Guaranties and the other Loan Documents to which it is a
party.
"Secured Parties" means the Lenders, the Issuers, the Administrative
Agent and any other holder of any Secured Obligation.
"Securities Account" has the meaning specified in the Bank Security
Agreement.
"Securitization Facility" means the Receivables Purchase Agreement
dated as of November 24, 1999 among FMC Funding Corporation, as seller, the
Borrower, as initial servicer, CIESCO, L.P., as investor, Citibank, N.A., as a
bank, and Citicorp North America, Inc., as agent, and any other transaction or
series of related transactions that effect the securitization of accounts,
payment intangibles or other cash flow streams of the Borrower.
"Security" means any Stock, Stock Equivalent, voting trust
certificate, bond, debenture, note or other evidence of Indebtedness, whether
secured, unsecured, convertible or subordinated, or any certificate of interest,
share or participation in, any temporary or interim certificate for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing, but shall not include any evidence of the Obligations.
"Selling Lender" has the meaning specified in Section 11.7 (Sharing of
Payments, Etc.).
"Senior Secured Notes" means, the senior notes of the Borrower due
2009 issued on the Closing Date pursuant to the Indenture and the senior notes
of the Borrower due 2009 issued in exchange therefor pursuant to the
registration rights agreement dated as of the Closing Date by and between the
Borrower and the initial purchasers of the Senior Secured Notes.
"Shared Collateral" has the meaning specified in the Shared Collateral
Security Agreement.
"Shared Collateral Security Agreement" means an agreement, in
substantially the form of Exhibit I, executed by the Borrower.
"Sharing Agreement" means an agreement, in substantially the form of
Exhibit K, executed by each Lender, each Issuer, each issuer under the L/C
Agreement, BofA, as agent for lenders to Astaris, and each lender under the
Foreign Credit Lines from time to time party thereto.
"Solvent" means, with respect to any Person, that the value of the
assets of such Person (both at fair value and present fair saleable value) is,
on the date of determination, greater than the total amount of liabilities
(including contingent and unliquidated liabilities) of such Person as of such
date and that, as of such date, such Person is able to pay all liabilities of
such Person as such liabilities mature and does not have unreasonably small
capital. In computing the amount of contingent or unliquidated liabilities at
any time, such liabilities shall be computed at the amount that, in light of all
the facts and
27
Credit Agreement
FMC Corporation
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
"Special Purpose Vehicle" means any special purpose funding vehicle
identified as such in writing by any Lender to the Administrative Agent.
"Specified Debt" means the Borrower's $99,500,000 Medium-Term Notes
due November 2002 and $160,500,000 Debentures due September 2003.
"SSB" means Salomon Smith Barney Inc.
"Standby Letter of Credit" means any Letter of Credit that is not a
Documentary Letter of Credit.
"Stock" means shares of capital stock (whether denominated as common
stock or preferred stock), beneficial, partnership or membership interests,
participations or other equivalents (regardless of how designated) of or in a
corporation, partnership, limited liability company or equivalent entity,
whether voting or non-voting.
"Stock Equivalents" means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase or
subscribe for any Stock, whether or not presently convertible, exchangeable or
exercisable.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company or other business entity of which an
aggregate of more than 50% of the outstanding Voting Stock is, at the time,
directly or indirectly, owned or controlled by such Person or one or more
Subsidiaries of such Person. Notwithstanding the foregoing, Astaris shall not be
deemed a Subsidiary of the Borrower at any time solely by virtue of the
Borrower's control of the voting power to elect more than 50% of the managers of
Astaris, so long as the Borrower and its Subsidiaries have not, directly or
indirectly, made any Investment in Astaris other than pursuant to the Astaris
Support Agreement (as defined in the Senior Secured Notes) or the Astaris
Indemnification Agreement.
"Subsidiary Guarantor" means each Domestic Subsidiary party to or that
becomes party to the U.S. Subsidiary Guaranty.
"Substitute Institution" has the meaning specified in Section 2.16
(Substitution of Lenders).
"Substitution Notice" has the meaning specified in Section 2.16
(Substitution of Lenders).
"Swiss Note" means the promissory note (or notes) in the aggregate
principal amount of approximately $85,000,000 due March 26, 2003 and given by
FMC Chemical International AG to the Borrower.
"Syndication Agents" means BofA and Wachovia, as Co-Syndication
Agents.
"Tax Affiliate" means, with respect to any Person, (a) any Subsidiary
of such Person, and (b) any Affiliate of such Person with which such Person
files or is eligible to file consolidated, combined or unitary tax returns.
"Tax Return" has the meaning specified in Section 4.8(a) (Taxes).
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"Taxes" has the meaning specified in Section 2.15(a) (Taxes).
"Term Loan" has the meaning specified in Section 2.1(b) (The
Commitments).
"Term Loan Borrowing" means Term Loans made on the same day by the
Term Loan Lenders ratably according to their respective Term Loan Commitments.
"Term Loan Commitment" means, with respect to each Term Loan Lender,
the commitment of such Lender to make Term Loans to the Borrower in the
aggregate principal amount outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule I (Commitments) under the caption "Term
Loan Commitment" as such amount may be increased or reduced from time to time to
reflect each Assignment and Acceptance executed by such Lender and as such
amount may be reduced pursuant to this Agreement. The aggregate amount of the
Term Loan Commitments of all Term Loan Lenders shall not exceed $250,000,000.
"Term Loan Facility" means the Term Loan Commitments and the
provisions herein related to the Term Loans.
"Term Loan Lender" means each Lender having a Term Loan Commitment.
"Term Loan Maturity Date" means the fifth anniversary of the Closing
Date.
"Term Loan Note" means a promissory note of the Borrower payable to
the order of any Term Loan Lender in a principal amount equal to the amount of
such Lender's Term Loan Commitment evidencing the Indebtedness of the Borrower
to such Lender resulting from the Term Loan owing to such Lender.
"TG Soda Ash" means Tg Soda Ash, Inc., a corporation the Stock of
which was acquired by FMC Wyoming and then merged into FMC Wyoming, effective
December 31, 2000.
"TG Soda Ash Agreement" means that certain Stock Purchase Agreement
dated June 30, 1999, as in effect on the date hereof, by and among Elf Atochem
North America, Elf Atochem Wyoming Holdings, Inc., the Borrower and FMC Wyoming.
"Title IV Plan" means a pension plan, other than a Multiemployer Plan,
covered by Title IV of ERISA and to which the Borrower any of its Subsidiaries
or any ERISA Affiliate has any obligation or liability (contingent or
otherwise).
"2007 Notes" means the Borrower's 7.320% Fixed Rate Medium Term Notes
due February 2007.
"UCC" has the meaning specified in each Pledge and Security Agreement.
"Unfunded Pension Liability" means, with respect to the Borrower or
any of its Subsidiaries at any time, the sum of (a) the amount, if any, by which
the present value of all accrued benefits under each Title IV Plan (other than
any Title IV Plan subject to Section 4063 of ERISA) exceeds the fair market
value of all assets of such Title IV Plan allocable to such benefits in
accordance with Title IV of ERISA, as determined as of the most recent valuation
date for such Title IV Plan using the actuarial assumptions in effect under such
Title IV Plan, (b) the aggregate amount of withdrawal liability that could be
assessed under Section 4063 with respect to each Title IV Plan subject to such
section, separately calculated for each such Title IV Plan as of its most recent
valuation date and (c) for a
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period of five years following a transaction reasonably likely to be covered by
Section 4069 of ERISA, the liabilities (whether or not accrued) that could be
avoided by the Borrower, any of its Subsidiaries or any ERISA Affiliate as a
result of such transaction.
"Unused Commitment Fee" has the meaning specified in Section 2.11(a)
(Fees).
"U.S. Subsidiary Guaranty" means a guaranty, in substantially the form
of Exhibit G-1 (Form of U.S. Subsidiary Guaranty), executed by one or more
Subsidiary Guarantors.
"Voting Stock" means Stock of any Person having ordinary power to vote
in the election of members of the board of directors, managers, trustees or
other controlling Persons, of such Person (irrespective of whether, at the time,
Stock of any other class or classes of such entity shall have or might have
voting power by reason of the happening of any contingency).
"Wachovia" means Wachovia Bank, National Association.
"Wholly-Owned Subsidiary" means, in respect of any Person, any
Subsidiary of such Person, all of the Stock of which (other than director's
qualifying shares, as may be required by law) is owned by such Person, either
directly or indirectly through one or more Wholly-Owned Subsidiaries of such
Person.
"Withdrawal Liability" means, with respect to the Borrower or any of
its Subsidiaries at any time, the aggregate liability incurred (whether or not
assessed) with respect to all Multiemployer Plans pursuant to Section 4201 of
ERISA or for increases in contributions required to be made pursuant to Section
4243 of ERISA.
Section 1.2 Computation of Time Periods
In this Agreement, in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding" and the
word "through" means "to and including."
Section 1.3 Accounting Terms and Principles
(a) Except as set forth below, all accounting terms not specifically
defined herein shall be construed in conformity with GAAP and all accounting
determinations required to be made pursuant hereto (including for purpose of
measuring compliance with Article V (Financial Covenants)) shall, unless
expressly otherwise provided herein, be made in conformity with GAAP.
(b) If any change in the accounting principles used in the
preparation of the most recent Financial Statements referred to in Section 6.1
(Financial Statements) is hereafter required or permitted by the rules,
regulations, pronouncements and opinions of the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or any
successors thereto) and such change is adopted by the Borrower with the
agreement of the Borrower's Accountants and results in a change in any of the
calculations required by Article V (Financial Covenants) or VIII (Negative
Covenants) had such accounting change not occurred, for purposes of the
calculation of such covenants and the definitions related thereto, such
calculation shall be made using GAAP as used by the Borrower in its December 31,
2001 financial statements.
(c) For purposes of calculating compliance with each of the financial
covenants set forth in Article V in respect of a Permitted Acquisition or an
Asset Sale permitted under Section 8.4(h),
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such transaction shall be deemed to have occurred as of the first day of the
four Fiscal-Quarter period ending as of the most recent Fiscal Quarter end
preceding the date of such transaction with respect to which the Administrative
Agent has received the Financial Statements required to be delivered pursuant to
Section 6.1(a) (each such transaction, a "Pro Forma Transaction"). In respect of
each Pro Forma Transaction, (i) for purposes of any such calculation in respect
of any such Asset Sale, (A) income statement items (whether positive or
negative) attributable to the assets and/or property disposed of shall be
excluded and (B) any Indebtedness which is retired in connection with such
transaction shall be excluded and deemed to have been retired as of the first
day of the applicable period, and (ii) for purposes of any such calculation in
respect of any such Permitted Acquisition, (A) any Indebtedness incurred by the
Borrower or any of its Subsidiaries on a Consolidated basis in connection with
such transaction (x) shall be deemed to have been incurred as of the first day
of the applicable period and (y) if such Indebtedness has a floating or formula
rate, shall have an implied rate of interest for the applicable period for
purposes of this clause (c) determined by utilizing the rate which is or would
be in effect with respect to such Indebtedness as at the relevant date of
determination, (B) income statement items (whether positive or negative)
attributable to the Person or property acquired shall be included beginning as
of the first day of the applicable period and (C) pro forma adjustments may be
included to the extent that such adjustments meet the requirements of Regulation
S-X under the Securities Act of 1933, as amended, and all other accounting rules
and regulations of the SEC promulgated thereunder.
Section 1.4 Certain Terms
(a) The terms "herein," "hereof" and "hereunder" and similar terms
refer to this Agreement as a whole, and not to any particular Article, Section,
subsection or clause in, this Agreement.
(b) Unless otherwise expressly indicated herein, (i) references in
this Agreement to an Exhibit, Schedule, Article, Section, clause or sub-clause
refer to the appropriate Exhibit or Schedule to, or Article, Section, clause or
sub-clause in this Agreement and (ii) the words "above" and "below", when
following a reference to a clause or a sub-clause of any Loan Document, refer to
a clause or sub-clause within, respectively, the same Section or clause.
(c) Each agreement defined in this Article I shall include all
appendices, exhibits and schedules thereto. Unless the prior written consent of
the Requisite Lenders is required hereunder for an amendment, restatement,
supplement or other modification to any such agreement and such consent is not
obtained, references in this Agreement to such agreement shall be to such
agreement as so amended, restated, supplemented or modified.
(d) References in this Agreement to any statute shall be to such
statute as amended or modified from time to time and to any successor
legislation thereto, in each case as in effect at the time any such reference is
operative.
(e) The term "including" when used in any Loan Document means
"including without limitation" except when used in the computation of time
periods.
(f) The terms "Lender," "Issuer" and "Administrative Agent" include,
without limitation, their respective successors.
(g) Upon the appointment of any successor Administrative Agent
pursuant to Section 10.6 (Successor Administrative Agent), references to CUSA in
Section 10.3 (The Administrative Agent Individually) and to Citibank in the
definitions of Base Rate, Dollar Equivalent, Eurodollar Rate and Reference Bank
shall be deemed to refer to the financial institution then acting as the
Administrative Agent or one of its Affiliates if it so designates.
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ARTICLE II
The Facilities
Section 2.1 The Commitments
(a) Revolving Credit Commitments. On the terms and subject to the
conditions contained in this Agreement, each Revolving Credit Lender severally
agrees to make loans (each a "Revolving Loan") in Dollars to the Borrower from
time to time on any Business Day during the period from the date hereof until
the Revolving Credit Termination Date in an aggregate principal amount at any
time outstanding for all such loans by such Revolving Credit Lender not be
exceed such Revolving Credit Lender's Revolving Credit Commitment; provided,
however, that at no time shall any Revolving Credit Lender be obligated to make
a Revolving Loan in excess of such Revolving Credit Lender's Ratable Portion of
the Available Credit. Within the limits of the Revolving Credit Commitment of
each Revolving Credit Lender, amounts of Revolving Loans repaid or prepaid may
be reborrowed under this Section 2.1.
(b) Term Loan Commitments. On the terms and subject to the
conditions contained in this Agreement, each Term Loan Lender severally agrees
to make a loan (each a "Term Loan") in Dollars to the Borrower on the Closing
Date, in an amount not to exceed such Lender's Term Loan Commitment. Amounts of
Term Loans repaid or prepaid may not be reborrowed.
(c) Commitment Increase.
(i) Promptly after receiving a request from the Borrower for
an increase of up to $90,000,000 in the aggregate Revolving Credit
Commitments (a "Commitment Increase"), to be effective as of the applicable
Increase Date, the Administrative Agent shall notify the Lenders of such
request by the Borrower, which notice shall include the date by which the
Lenders wishing to participate in the Commitment Increase in their sole
discretion must commit to an increase in the amount of their respective
Revolving Credit Commitments (the "Commitment Date"); provided, however,
that no more than two such Commitment Increases shall be made; and
provided, further, that the aggregate Revolving Credit Commitments, after
giving effect to any such Commitment Increase, shall not exceed
$340,000,000. Each Lender that is willing to participate in the requested
Commitment Increase (each an "Increasing Lender") shall, in its sole
discretion, give written notice to the Administrative Agent on or prior to
the Commitment Date of the amount by which it is willing to increase its
Revolving Credit Commitment; provided, however, that the increase in such
Increasing Lender's Revolving Credit Commitment shall be in an amount equal
to $5,000,000 or an integral multiple of $1,000,000 in excess thereof.
(ii) Promptly following the Commitment Date, the
Administrative Agent shall notify the Borrower as to the amount, if any, by
which the existing Lenders are willing to participate in the requested
Commitment Increase. If the aggregate amount by which the existing Lenders
are willing to participate in the requested Commitment Increase on any such
Commitment Date is more than the requested Commitment Increase, then each
Increasing Lender's additional Revolving Credit Commitment shall be reduced
on a pro rata basis so that the aggregate additional Revolving Credit
Commitments equal the requested Commitment Increase. If the aggregate
amount by which the existing Lenders are willing to participate in the
requested Commitment Increase on any such Commitment Date is less than the
requested Commitment Increase, then the Borrower may extend offers to one
or more financial institutions or Eligible Assignees to participate in any
portion of the requested Commitment Increase that has
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not been committed to by the Lenders as of such Commitment Date; provided,
however, that the Commitment of each such financial institution or Eligible
Assignee shall be in an amount equal to $1,000,000 or an integral multiple of
$1,000,000 in excess thereof.
(iii) Each Commitment Increase shall become effective upon a date
(each an "Increase Date") on or after the satisfaction of conditions precedent
to be agreed by the Administrative Agent and the Loan Parties (which may
include, without limitation, increases in the Applicable Margin, fees,
amendments and covenants) and the receipt by the Administrative Agent of each of
the following (or due waiver of such condition or requirement by the
Administrative Agent):
(A) (x) certified copies of resolutions of the Board of
Directors of the Borrower approving such Commitment Increase and the
corresponding modifications to this Agreement and (y) an opinion of counsel
for the Borrower (which may be in-house counsel), in a form reasonably
satisfactory to the Administrative Agent;
(B) confirmation from each Increasing Lender of the increase
in the amount of its Commitment in a writing satisfactory to the Borrower
and the Administrative Agent;
(C) a Joinder Agreement from each financial institution or
Eligible Assignee that accepts an offer to participate in such Commitment
Increase in accordance with clause (i) above (each, an "Additional
Lender"), if any, in form and substance satisfactory to the Borrower and
the Administrative Agent, duly executed by such financial institution or
Eligible Assignee, the Administrative Agent and the Borrower;
(D) any costs, expenses, fees and other amounts then due
hereunder or as otherwise agreed to by the Borrower, the Administrative
Agent, the Syndication Agents and the Arrangers; and
(E) such other document as the Administrative Agent or any
Lender through the Administrative Agent may reasonably request.
(iv) As of any Increase Date, (A) the Revolving Credit Commitment of
each Increasing Lender for the requested Commitment Increase shall be increased
by the amount set forth in such Lender's confirmation delivered pursuant to
clause (B) above, (B) each Additional Lender shall be deemed to become a Lender
party to this Agreement and (C) the Administrative Agent shall notify the
Lenders (including each Additional Lender) and the Borrower, on or before 1:00
P.M. (New York City time), by telecopier or telex, of the occurrence of the
Commitment Increase to be effected on such Increase Date and shall record in the
Register the relevant information with respect to each Increasing Lender and
each Additional Lender on such date.
(d) Nothing in this Agreement shall be construed to obligate any Lender to
negotiate for (whether or not in good faith), solicit, provide or consent to any
increase in the Commitments, and any such increase may be subject to changes in
any term herein.
(e) Pursuant to the L/C Agreement, as of any Increase Date, the aggregate
amount of standby letters of credit available to be issued thereunder (the "L/C
Commitment") shall automatically be reduced by the amount by which the Revolving
Credit Commitments, after giving effect to the Commitment Increase, exceed
$300,000,000 and, to the extent the aggregate amount of standby letters of
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credit issued prior to such Increase Date exceeds the reduced L/C Commitment,
the Borrower shall provide cash collateral equal to the amount of such excess.
Section 2.2 Borrowing Procedures
(a) Each Revolving Credit Borrowing shall be made on notice given by
the Borrower to the Administrative Agent not later than 11:00 a.m. (New York
time) (i) in the case of a Revolving Credit Borrowing of Base Rate Loans, on the
day of the proposed Revolving Credit Borrowing and (ii) in the case of a
Revolving Credit Borrowing of Eurodollar Rate Loans, three Business Days prior
to the date of the proposed Revolving Credit Borrowing. Each such notice shall
be in substantially the form of Exhibit C (Form of Notice of Borrowing) (a
"Notice of Borrowing"), specifying (A) the date of such proposed Revolving
Credit Borrowing, (B) the aggregate amount of such proposed Revolving Credit
Borrowing, (C) whether any portion of the proposed Revolving Credit Borrowing
will be of Base Rate Loans or Eurodollar Rate Loans and (D) the initial Interest
Period or Periods for any such Eurodollar Rate Loans. The Revolving Loans shall
be made as Base Rate Loans unless, subject to Section 2.13 (Special Provisions
Governing Eurodollar Rate Loans), the Notice of Borrowing specifies that all or
a portion thereof shall be Eurodollar Rate Loans. Each Revolving Credit
Borrowing shall be in an aggregate amount of not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof. The Borrower may not request
more than fifteen (15) Revolving Credit Borrowings per month in the form of
Eurodollar Rate Loans.
(b) The Term Loan Borrowing shall be made upon receipt of a Notice
of Borrowing given by the Borrower to the Administrative Agent not later than
11:00 a.m. (New York City time) (i) one Business Day, in the case of a Term Loan
Borrowing of Base Rate Loans and (ii) three Business Days, in the case of a Term
Loan Borrowing of Eurodollar Rate Loans, prior to the Closing Date. The Notice
of Borrowing shall specify (A) the Closing Date, (B) the aggregate amount of
such proposed Term Loan Borrowing, (C) whether any portion of the proposed Term
Loan Borrowing will be of Base Rate Loans or Eurodollar Rate Loans, and (D) the
initial Interest Period or Periods for any such Eurodollar Rate Loans. The Term
Loans shall be made as Base Rate Loans unless (subject to Section 2.13 (Special
Provisions Governing Eurodollar Rate Loans)) the Notice of Borrowing specifies
that all or a portion thereof shall be Eurodollar Rate Loans.
(c) The Administrative Agent shall give to each Lender prompt notice
of the Administrative Agent's receipt of a Notice of Borrowing and, if
Eurodollar Rate Loans are properly requested in such Notice of Borrowing, the
applicable interest rate determined pursuant to Section 2.13(a) (Determination
of Interest Rate). Each Lender shall, (i) in the case of Eurodollar Rate Loans,
before 11:00 a.m. (New York time) and (ii) in the case of Base Rate Loans,
before 2:00 p.m. (New York time) on the date of the proposed Borrowing, make
available to the Administrative Agent at its address referred to in Section 11.8
(Notices, Etc.), in immediately available funds, such Lender's Ratable Portion
of such proposed Borrowing. Upon fulfillment (or due waiver in accordance with
Section 11.1 (Amendments, Waivers, Etc.)) (i) on the Closing Date, of the
applicable conditions set forth in Section 3.1 (Conditions Precedent to Initial
Loans and Letters of Credit) and (ii) at any time (including the Closing Date),
of the applicable conditions set forth in Section 3.2 (Conditions Precedent to
Each Loan and Letter of Credit), and after the Administrative Agent's receipt of
such funds, the Administrative Agent shall make such funds available to the
Borrower.
(d) Unless the Administrative Agent shall have received notice from
a Lender prior to the date of any proposed Borrowing that such Lender will not
make available to the Administrative Agent such Lender's Ratable Portion of such
Borrowing (or any portion thereof), the Administrative Agent may assume that
such Lender has made such Ratable Portion available to the Administrative Agent
on the date of such Borrowing in accordance with this Section 2.2 and the
Administrative Agent may, in
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Credit Agreement
FMC Corporation
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such Ratable Portion available to the Administrative Agent, such Lender and
the Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to the Loans comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate for the
first Business Day and thereafter at the interest rate applicable at the time to
the Loans comprising such Borrowing. If such Lender shall repay to the
Administrative Agent such corresponding amount, such corresponding amount so
repaid shall constitute such Lender's Loan as part of such Borrowing for
purposes of this Agreement and such repayment shall relieve the Borrower's
obligation with respect to the principal portion of such amount. If the Borrower
shall repay to the Administrative Agent such corresponding amount, such payment
shall not relieve such Lender of any obligation it may have hereunder to the
Borrower.
(e) The failure of any Lender to make the Loan or any payment
required by it on the date specified (a "Non-Funding Lender"), including any
payment in respect of its participation in Letter of Credit Obligations, shall
not relieve any other Lender of its obligations to make such Loan or payment on
such date but no such other Lender shall be responsible for the failure of any
Non-Funding Lender to make a Loan or payment required under this Agreement.
Section 2.3 Letters of Credit
(a) On the terms and subject to the conditions contained in this
Agreement, each Issuer agrees to Issue at the request of the Borrower and for
the account of the Borrower one or more Letters of Credit from time to time on
any Business Day during the period commencing on the Closing Date and ending on
the earlier of the Revolving Credit Termination Date and 30 days prior to the
Scheduled Termination Date; provided, however, that no Issuer shall be under any
obligation to Issue any Letter of Credit upon the occurrence of any of the
following:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall purport by its terms to enjoin or restrain
such Issuer from Issuing such Letter of Credit or any Requirement of Law
applicable to such Issuer or any request or directive (whether or not
having the force of law) from any Governmental Authority with jurisdiction
over such Issuer shall prohibit, or request that such Issuer refrain from,
the Issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon such Issuer with respect to such Letter of
Credit any restriction or reserve or capital requirement (for which such
Issuer is not otherwise compensated) not in effect on the date of this
Agreement or result in any unreimbursed loss, cost or expense that was not
applicable, in effect or known to such Issuer as of the date of this
Agreement and that such Issuer in good faith deems material to it;
(ii) such Issuer shall have received any written notice of the
type described in clause(d) below;
(iii) after giving effect to the Issuance of such Letter of
Credit, the aggregate Revolving Credit Outstandings would exceed the
aggregate of the Revolving Credit Commitments in effect at such time;
(iv) after giving effect to the Issuance of such Letter of
Credit, the sum of (i) the Letter of Credit Undrawn Amounts at such time
and (ii) the Reimbursement Obligations at such time exceeds the Letter of
Credit Sublimit;
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FMC Corporation
(v) any fees due in connection with any Issuance have not been
paid;
(vi) such Letter of Credit is requested to be Issued in a form
that is not acceptable to such Issuer; or
(vii) such Letter of Credit is requested to be denominated in
any currency other than Dollars.
None of the Revolving Credit Lenders (other than the Issuers in their capacity
as such) shall have any obligation to Issue any Letter of Credit.
(b) In no event shall the expiration date of any Letter of Credit (i)
be more than one year after the date of issuance thereof or (ii) be less than
thirty (30) days prior to the Scheduled Termination Date; provided, however,
that any Letter of Credit with a one-year term may provide for the renewal
thereof for additional one-year periods (which shall in no event extend beyond
the expiry date referred to in clause (ii) above).
(c) In connection with the Issuance of each Letter of Credit, the
Borrower shall give the relevant Issuer and the Administrative Agent at least
two Business Days' prior written notice, in substantially the form of Exhibit D
(Form of Letter of Credit Request) (or in such other written or electronic form
as is acceptable to the Issuer), of the requested Issuance of such Letter of
Credit (a "Letter of Credit Request"). Such notice shall be irrevocable and
shall specify the Issuer of such Letter of Credit, the currency of issuance and
face amount of the Letter of Credit requested, the date of Issuance of such
requested Letter of Credit, the date on which such Letter of Credit is to expire
(which date shall be a Business Day) and, in the case of an issuance, the Person
for whose benefit the requested Letter of Credit is to be issued. Such notice,
to be effective, must be received by the relevant Issuer and the Administrative
Agent not later than 11:00 a.m. (New York time) on the second Business Day prior
to the date of the requested Issuance of such Letter of Credit.
(d) Subject to the satisfaction of the conditions set forth in this
Section 2.3, the relevant Issuer shall, on the requested date, Issue a Letter of
Credit on behalf of the Borrower in accordance with such Issuer's usual and
customary business practices. No Issuer shall Issue any Letter of Credit in the
period commencing on the first Business Day after it receives written notice
from any Lender that one or more of the conditions precedent contained in
Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall not
on such date be satisfied or duly waived and ending when such conditions are
satisfied or duly waived. The relevant Issuer shall not otherwise be required to
determine that, or take notice whether, the conditions precedent set forth in
Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) have been
satisfied in connection with the Issuance of any Letter of Credit.
(e) If requested by the relevant Issuer, prior to the issuance of
each Letter of Credit by such Issuer, and as a condition of such Issuance and of
the participation of each Revolving Credit Lender in the Letter of Credit
Obligations arising with respect thereto in accordance with clause (g) below,
the Borrower shall have delivered to such Issuer a letter of credit
reimbursement agreement, in such form as the Issuer may employ in its ordinary
course of business for its own account (a "Letter of Credit Reimbursement
Agreement"), signed by the Borrower, and such other documents or items as may be
required pursuant to the terms thereof. In the event of any conflict between the
terms of any Letter of Credit Reimbursement Agreement and this Agreement, the
terms of this Agreement shall govern.
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(f) Each Issuer shall:
(i) give the Administrative Agent written notice (or
telephonic notice confirmed promptly thereafter in writing, which writing
may be a telecopy or electronic mail, of the Issuance of a Letter of Credit
Issued by it, of all drawings under a Letter of Credit Issued by it and the
payment (or the failure to pay when due) by the Borrower of any
Reimbursement Obligation when due (which notice the Administrative Agent
shall promptly transmit by telecopy, electronic mail or similar
transmission to each Revolving Credit Lender);
(ii) upon the request of any Revolving Credit Lender, furnish
to such Revolving Credit Lender copies of any Letter of Credit
Reimbursement Agreement to which such Issuer is a party and such other
documentation as may reasonably be requested by such Revolving Credit
Lender; and
(iii) no later than 10 Business Days following the last day of
each calendar month, provide to the Administrative Agent (and the
Administrative Agent shall provide a copy to each Revolving Credit Lender
requesting the same) and the Borrower separate schedules for Documentary
Letters of Credit and Standby Letters of Credit issued by it, in form and
substance reasonably satisfactory to the Administrative Agent, setting
forth the aggregate Letter of Credit Obligations outstanding at the end of
each month and any information requested by the Borrower or the
Administrative Agent relating thereto.
(g) Immediately upon the issuance by an Issuer of a Letter of Credit
in accordance with the terms and conditions of this Agreement, such Issuer shall
be deemed to have sold and transferred to each Revolving Credit Lender, and each
Revolving Credit Lender shall be deemed irrevocably and unconditionally to have
purchased and received from such Issuer, without recourse or warranty, an
undivided interest and participation, to the extent of such Revolving Credit
Lender's Ratable Portion of the Revolving Credit Commitments, in such Letter of
Credit and the obligations of the Borrower with respect thereto (including all
Letter of Credit Obligations with respect thereto) and any security therefor and
guaranty pertaining thereto.
(h) The Borrower agrees to pay to the Issuer of any Letter of Credit
the amount of all Reimbursement Obligations owing to such Issuer under any
Letter of Credit issued for its account no later than the date that is the next
succeeding Business Day after the Borrower receives written notice from such
Issuer that payment has been made under such Letter of Credit (the
"Reimbursement Date"), irrespective of any claim, set-off, defense or other
right that the Borrower may have at any time against such Issuer or any other
Person. In the event that any Issuer makes any payment under any Letter of
Credit and the Borrower shall not have repaid such amount to such Issuer
pursuant to this clause (h) or any such payment by the Borrower is rescinded or
set aside for any reason, such Reimbursement Obligation shall be payable on
demand with interest thereon computed (i) from the date on which such
Reimbursement Obligation arose to the Reimbursement Date, at the rate of
interest applicable during such period to Revolving Loans that are Base Rate
Loans and (ii) from the Reimbursement Date until the date of repayment in full,
at the rate of interest applicable during such period to past due Revolving
Loans that are Base Rate Loans, and such Issuer shall promptly notify the
Administrative Agent, which shall promptly notify each Revolving Credit Lender
of such failure, and each Revolving Credit Lender shall promptly and
unconditionally pay to the Administrative Agent for the account of such Issuer
the amount of such Revolving Credit Lender's Ratable Portion of such payment in
Dollars and in immediately available funds. If the Administrative Agent so
notifies such Revolving Credit Lender prior to 11:00 a.m. (New York time) on any
Business Day, such Revolving Credit Lender shall make available to the
Administrative Agent for the account of such Issuer its Ratable Portion of the
amount of such payment on such Business Day in immediately available funds. Upon
such payment by a Revolving Credit Lender,
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Credit Agreement
FMC Corporation
such Revolving Credit Lender shall, except during the continuance of a Default
or Event of Default under Section 9.1(f) (Events of Default) and notwithstanding
whether or not the conditions precedent set forth in Section 3.2 (Conditions
Precedent to Each Loan and Letter of Credit) shall have been satisfied (which
conditions precedent the Revolving Credit Lenders hereby irrevocably waive), be
deemed to have made a Revolving Loan to the Borrower in the principal amount of
such payment. Whenever any Issuer receives from the Borrower a payment of a
Reimbursement Obligation as to which the Administrative Agent has received for
the account of such Issuer any payment from a Revolving Credit Lender pursuant
to this clause (h), such Issuer shall pay to the Administrative Agent and the
Administrative Agent shall promptly pay to each Revolving Credit Lender, in
immediately available funds, an amount equal to such Revolving Credit Lender's
Ratable Portion of the amount of such payment adjusted, if necessary, to reflect
the respective amounts the Revolving Credit Lenders have paid in respect of such
Reimbursement Obligation.
(i) If and to the extent such Revolving Credit Lender shall not have
so made its Ratable Portion of the amount of the payment required by clause (h)
above available to the Administrative Agent for the account of such Issuer, such
Revolving Credit Lender agrees to pay to the Administrative Agent for the
account of such Issuer forthwith on demand any such unpaid amount together with
interest thereon, for the first Business Day after payment was first due at the
Federal Funds Rate and, thereafter until such amount is repaid to the
Administrative Agent for the account of such Issuer, at the rate per annum
applicable to Base Rate Loans under the Facility.
(j) The Borrower's obligation to pay each Reimbursement Obligation
and the obligations of the Revolving Credit Lenders to make payments to the
Administrative Agent for the account of the Issuers with respect to Letters of
Credit shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement, under any and all
circumstances whatsoever, including the occurrence of any Default or Event of
Default, and irrespective of any of the following:
(i) any lack of validity or enforceability of any Letter of
Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, set off, defense or other
right that the Borrower, any other party guaranteeing, or otherwise
obligated with, the Borrower, any Subsidiary or other Affiliate thereof or
any other Person may at any time have against the beneficiary under any
Letter of Credit, any Issuer, the Administrative Agent or any Lender or any
other Person, whether in connection with this Agreement, any other Loan
Document or any other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
(v) payment by the Issuer under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of
the Issuer, the Lenders, the Administrative Agent or any other Person or
any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section 2.3,
constitute a legal or equitable discharge of the Borrower's obligations
hereunder.
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Credit Agreement
FMC Corporation
Any action taken or omitted to be taken by the relevant Issuer under or in
connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or willful misconduct, shall not put such Issuer under any
resulting liability to the Borrower or any Lender. In determining whether drafts
and other documents presented under a Letter of Credit comply with the terms
thereof, the Issuer may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any
notice or information to the contrary and, in making any payment under any
Letter of Credit, the Issuer may rely exclusively on the documents presented to
it under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereunder equals the
amount of such draft and whether or not any document presented pursuant to such
Letter of Credit proves to be insufficient in any respect, if such document on
its face appears to be in order, and whether or not any other statement or any
other document presented pursuant to such Letter of Credit proves to be forged
or invalid or any statement therein proves to be inaccurate or untrue in any
respect whatsoever and any noncompliance in any immaterial respect of the
documents presented under such Letter of Credit with the terms thereof shall, in
each case, be deemed not to constitute willful misconduct or gross negligence of
the Issuer.
Section 2.4 Reduction and Termination of the Revolving Credit
Commitments
The Borrower may, upon at least three Business Days' prior notice to
the Administrative Agent, terminate in whole or reduce in part ratably the
unused portions of the respective Revolving Credit Commitments of the Revolving
Credit Lenders; provided, however, that each partial reduction shall be in an
aggregate amount of not less than $5,000,000 or an integral multiple of $500,000
in excess thereof and any mandatory prepayment resulting from such reduction
shall have been made.
Section 2.5 Repayment of Loans
(a) The Borrower promises to repay the entire unpaid principal amount
of the Revolving Loans on the Revolving Credit Termination Date.
(b) The Borrower promises to repay the Term Loans at the dates and in
the amounts set forth below:
-----------------------------------------------------------------------------------
At the end of each calendar quarter
ending prior to the Term Loan Maturity 0.25% of the total principal amount of
Date, commencing with the calendar the Term Loans on the Closing Date.
quarter ending March 31, 2003:
-----------------------------------------------------------------------------------
On the Term Loan Maturity Date: The remaining outstanding principal
amount of the Term Loans.
-----------------------------------------------------------------------------------
Section 2.6 Evidence of Debt
(a) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing Indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(b) The Administrative Agent shall maintain accounts in accordance
with its usual practice in which it shall record (i) the amount of each Loan
made and, if a Eurodollar Rate Loan, the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable by the Borrower to
each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent
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Credit Agreement
FMC Corporation
hereunder from the Borrower, whether such sum constitutes principal or interest
(and the type of Loan to which it applies), fees, expenses or other amounts due
under the Loan Documents and each Lender's share thereof, if applicable.
(c) The entries made in the accounts maintained pursuant to clauses
(a) and (b) above shall, to the extent permitted by applicable law, be prima
facie evidence of the existence and amounts of the obligations recorded therein;
provided, however, that the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any manner affect the
obligations of the Borrower to repay the Loans in accordance with their terms.
(d) Notwithstanding any other provision of the Agreement, in the
event that any Lender requests that the Borrower execute and deliver a
promissory note or notes payable to such Lender in order to evidence the
Indebtedness owing to such Lender by the Borrower hereunder, the Borrower shall
promptly execute and deliver a Note or Notes to such Lender evidencing any Term
Loans and Revolving Loans, as the case may be, of such Lender, substantially in
the forms of Exhibit B-1 (Form of Revolving Credit Note) or Exhibit B-2 (Form of
Term Note), respectively.
Section 2.7 Optional Prepayments
(a) Revolving Loans. The Borrower may, (i) in respect of Eurodollar
Rate Loans, upon at least three Business Days' prior notice to the
Administrative Agent, and (ii) in respect of Base Rate Loans, upon notice to the
Administrative Agent no later than 11:00 a.m. (New York time) on any Business
Day, in each case stating the proposed date and aggregate principal amount of
the prepayment, prepay the outstanding principal amount of the Revolving Loans
in whole or in part; provided, however, that if any prepayment of any Eurodollar
Rate Loan is made by the Borrower other than on the last day of an Interest
Period for such Loan, the Borrower shall also pay any amount owing pursuant to
Section 2.13(e) (Breakage Costs); and, provided, further, that each partial
prepayment shall be in an aggregate principal amount not less than $5,000,000 or
integral multiples of $500,000 in excess thereof. Upon the giving of such notice
of prepayment, the principal amount of Revolving Loans specified to be prepaid
shall become due and payable on the date specified for such prepayment.
(b) Term Loans. The Borrower may, (i) in respect of Eurodollar Rate
Loans, upon at least three Business Days' prior notice to the Administrative
Agent, and (ii) in respect of Base Rate Loans, upon notice to the Administrative
Agent no later than 11:00 a.m. (New York time) on any Business Day, in each case
stating the proposed date and aggregate principal amount of the prepayment,
prepay the outstanding principal amount of the Term Loans, in whole or in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that if any prepayment of any Eurodollar Rate
Loan is made by the Borrower other than on the last day of an Interest Period
for such Loan, the Borrower shall also pay any amounts owing pursuant to Section
2.13(e) (Breakage Costs); and, provided, further, that each partial prepayment
shall be in an aggregate amount not less than $5,000,000 or integral multiples
of $500,000 in excess thereof and that any such partial prepayment shall be
applied to reduce ratably the remaining installments of such outstanding
principal amount of the Term Loans in the inverse order of their maturities.
Upon the giving of such notice of prepayment, the principal amount of the Term
Loans specified to be prepaid shall become due and payable on the date specified
for such prepayment.
(c) The Borrower shall have no right to prepay the principal amount
of any Revolving Loan or any Term Loan other than as provided in this Section
2.7.
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Credit Agreement
FMC Corporation
Section 2.8 Mandatory Prepayments
(a) Upon receipt by the Borrower or any of its Subsidiaries of Net
Cash Proceeds arising (i) from an Asset Sale in excess of (A) $5,000,000, in the
case of any single Asset Sale or (B) $15,000,000 in the aggregate for all Asset
Sales in any calendar year (excluding any Asset Sale described in clause (i)(A)
above in respect of which a mandatory prepayment has previously been made), or
(ii) from any Non-Guarantor Subsidiary as described in Section 7.12, the
Borrower shall immediately prepay the Loans (or provide cash collateral in
respect of Letters of Credit) and provide cash collateral in respect of letters
of credit under the L/C Agreement in an amount equal to 100% of such Net Cash
Proceeds; provided that, in the case of any Net Cash Proceeds of Asset Sales
described in clause (i)(B) above, only the amount of such Net Cash Proceeds in
excess of $15,000,000 shall be required to prepay the Loans; and provided
further, that, to the extent any Net Cash Proceeds on account of any Asset Sale
are received by any Non-Guarantor Subsidiary pursuant to clause (ii) above, only
the Net Cash Proceeds actually received by the Borrower or any Guarantor (in the
form of any payment, dividend, distribution or otherwise) shall be required to
prepay the Loans pursuant to this Section 2.8. Any such mandatory prepayment
shall be applied in accordance with clause (d) below.
(b) Upon receipt by the Borrower or any of its Subsidiaries of Net
Cash Proceeds arising from an Equity Issuance, the Borrower shall immediately
prepay the Loans (or provide cash collateral in respect of Letters of Credit)
and provide cash collateral in respect of letters of credit under the L/C
Agreement in an amount equal to 50% of such Net Cash Proceeds, if the Leverage
Ratio (prior to giving effect to such Equity Issuance) is greater than or equal
to 3.0 to 1.0, as of the end of the most recent fiscal period for which
financial statements have been delivered pursuant to Section 6.1. Any such
mandatory prepayment shall be applied in accordance with clause (d) below.
(c) The Borrower shall, with respect to each Fiscal Year commencing
with the Fiscal Year ending December 31, 2003, prepay the Loans on the earlier
to occur of (i) 90 days after the last day of such Fiscal Year or (ii) the date
of the delivery by the Borrower of the financial statements referred to in
Section 6.1(b), in an amount equal to (x) 50% or (y) in the event that the
Leverage Ratio shall be less than 2.5 to 1.0 at the end of such Fiscal Year,
25%, in each case of Excess Cash Flow for such Fiscal Year. Any such mandatory
prepayment shall be applied in accordance with clause (d) below.
(d) Subject to the provisions of Section 2.12(f) (Payments and
Computations), any prepayments made by the Borrower required to be applied in
accordance with this clause (d) shall be applied as follows: first, other than
in respect of prepayments made with the Net Cash Proceeds of a Reinvestment
Event, on a pro rata basis, (i) to repay the outstanding principal balance of
the Term Loans, until such Term Loans shall have been prepaid in full, and (ii)
at the Borrower's option, (x) to reduce the commitments under the L/C Agreement
until the total commitments thereunder shall be equal to zero and/or (y) cash
collateralize the letters of credit under the L/C Agreement; second, to repay
the outstanding principal balance of the Revolving Loans until such Revolving
Loans shall have been paid in full; and then, to provide cash collateral for any
Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in
Respect of Letters of Credit) until all such Letter of Credit Obligations have
been fully cash collateralized in the manner set forth therein. All repayments
of the Term Loans made pursuant to this clause (d) shall be applied to reduce
ratably the remaining installments of such outstanding principal amounts of the
Term Loans in the inverse order of their maturities. All repayments of any
Revolving Loans or Term Loans shall be applied as follows: first, to repay such
Loans outstanding as Base Rate Loans and then, to repay such Loans outstanding
as Eurodollar Rate Loans, with those Eurodollar Rate Loans having earlier
expiring Interest Periods being repaid prior to those having later expiring
Interest Periods.
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Credit Agreement
FMC Corporation
(e) Upon the receipt by the Borrower or any of its Subsidiaries of
Net Cash Proceeds of a Property Loss Event, the Borrower shall prepay the Loans
to the extent required in this clause (e). If any repayment of the Loans
required to be made pursuant to this Section 2.8 is made from the Net Cash
Proceeds of a Reinvestment Event, the Loans shall not be repaid by such
prepayment to the extent of the Reinvestment Deferred Amount of such
Reinvestment Event until the Reinvestment Prepayment Date corresponding thereto
and, on such Reinvestment Prepayment Date, the Loans shall be repaid only to the
extent of the Reinvestment Prepayment Amount applicable to such Reinvestment
Event, if any; provided, that, upon the occurrence of any Default or Event of
Default on or before the Reinvestment Prepayment Date corresponding to such
Reinvestment Event, the Loans shall be repaid by the entire Reinvestment
Deferred Amount corresponding to such Reinvestment Event; and provided further,
that, to the extent that any Net Cash Proceeds on account of a Property Loss
Event are received by any Non-Guarantor Subsidiary, only the Net Cash Proceeds
actually received by the Borrower or a Guarantor (in the form of any payment,
dividend, distribution or otherwise) shall be required to prepay the Loans.
(f) The Borrower shall immediately prepay the Loans (or provide cash
collateral in respect of Letters of Credit) in an amount equal to 100% of the
amounts on deposit, if any, in the Debt Reserve Account after the date on which
all of the obligations of the Borrower set forth in this Agreement with respect
to the refinancing, replacement, redemption or repurchase of the Outstanding
Notes and the Bonds, as applicable, shall have been satisfied. Any such
mandatory prepayment shall be applied in accordance with clause (d) above.
(g) In the event that, ninety (90) days prior to the maturity of the
2007 Notes, the Borrower has not deposited into the Debt Reserve Account
sufficient funds to repay the 2007 Notes in full, the Borrower shall prepay the
Term Loans in full.
(h) If at any time, the aggregate principal amount of Revolving
Credit Outstandings exceeds the Revolving Credit Commitments at such time, the
Borrower shall forthwith prepay the Revolving Loans then outstanding in an
amount equal to such excess. If any such excess remains after repayment in full
of the aggregate outstanding Revolving Loans, the Borrower shall provide cash
collateral for the Letter of Credit Obligations in the manner set forth in
Section 9.3 (Actions in Respect of Letters of Credit).
(i) Subject to the terms of the Restricted Cash Collateral Account
Agreement, after the Existing L/Cs (as defined in the Bank Security Agreement)
are no longer outstanding and all obligations thereunder shall have been paid in
full, the Borrower may elect to withdraw from the Restricted Cash Collateral
Account the balance of the funds therein to prepay the Term Loans, in which
event such prepayment shall be applied to reduce ratably the remaining
installments of such outstanding principal amounts of the Term Loans in the
inverse order of their maturities. Such repayment of the Term Loans shall be
applied as follows: first, to repay such Loans outstanding as Base Rate Loans
and then, to repay such Loans outstanding as Eurodollar Rate Loans, with those
Eurodollar Rate Loans having earlier expiring Interest Periods being repaid
prior to those having later expiring Interest Periods.
Section 2.9 Interest
(a) Rate of Interest. All Loans and the outstanding amount of all
other Obligations (other than pursuant to Hedging Contracts that are Loan
Documents, to the extent such Hedging Contracts provide for the accrual of
interest on unpaid obligations) shall bear interest, in the case of Loans, on
the unpaid principal amount thereof from the date such Loans are made and, in
the case of such other Obligations, from the date such other Obligations are due
and payable until, in all cases, the date such Obligations are paid in full,
except as otherwise provided in clause (c) below, as follows:
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Credit Agreement
FMC Corporation
(i) if a Base Rate Loan or such other Obligation, at a rate per
annum equal to the sum of (A) the Base Rate as in effect from time to
time and (B) the Applicable Margin; and
(ii) if a Eurodollar Rate Loan, at a rate per annum equal to the
sum of (A) the Eurodollar Rate determined for the applicable Interest
Period and (B) the Applicable Margin in effect from time to time during
such Interest Period.
(b) Interest Payments. (i) Interest accrued on each Base Rate Loan
shall be payable in arrears (A) on the first Business Day of each calendar
quarter, commencing on the first such day following the making of such Base Rate
Loan, (B) in the case of Base Rate Loans that are Term Loans, upon the payment
or prepayment thereof in full or in part and (C) if not previously paid in full,
at maturity (whether by acceleration or otherwise) of such Base Rate Loan, (ii)
interest accrued on each Eurodollar Rate Loan shall be payable in arrears (A) on
the last day of each Interest Period applicable to such Loan and, if such
Interest Period has a duration of more than three months, on each day during
such Interest Period occurring every three months from the first day of such
Interest Period, (B) upon the payment or prepayment thereof in full or in part
and (C) if not previously paid in full, at maturity (whether by acceleration or
otherwise) of such Eurodollar Rate Loan and (iii) interest accrued on the amount
of all other Obligations shall be payable on demand from and after the time such
Obligation becomes due and payable (whether by acceleration or otherwise).
(c) Default Interest. Notwithstanding the rates of interest specified
in clause (a) above or elsewhere herein, effective immediately upon the
occurrence of an Event of Default and for as long thereafter as such Event of
Default shall be continuing, the principal balance of all Loans and the amount
of all other Obligations then due and payable shall bear interest at a rate that
is two percent (2.0%) per annum in excess of the rate of interest applicable to
such Loans or other Obligations from time to time.
Section 2.10 Conversion/Continuation Option
(a) The Borrower may elect (i) at any time on any Business Day to
convert Base Rate Loans or any portion thereof to Eurodollar Rate Loans and (ii)
at the end of any applicable Interest Period, to convert Eurodollar Rate Loans
or any portion thereof into Base Rate Loans or to continue such Eurodollar Rate
Loans or any portion thereof for an additional Interest Period; provided,
however, that the aggregate amount of the Eurodollar Loans converted or
continued for each Interest Period must be in the amount of at least $5,000,000
or an integral multiple of $1,000,000 in excess thereof. Each conversion or
continuation shall be allocated among the Loans of each Lender in accordance
with such Lender's Ratable Portion. Each such election shall be in substantially
the form of Exhibit E (Form of Notice of Conversion or Continuation) (a "Notice
of Conversion or Continuation") and shall be made by giving the Administrative
Agent at least three Business Days' prior written notice specifying (A) the
amount and type of Loan being converted or continued, (B) in the case of a
conversion to or a continuation of Eurodollar Rate Loans, the applicable
Interest Period and (C) in the case of a conversion, the date of conversion.
(b) The Administrative Agent shall promptly notify each Lender of its
receipt of a Notice of Conversion or Continuation and of the options selected
therein. Notwithstanding the foregoing, no conversion in whole or in part of
Base Rate Loans to Eurodollar Rate Loans, and no continuation in whole or in
part of Eurodollar Rate Loans upon the expiration of any applicable Interest
Period, shall be permitted at any time at which (A) a Default or an Event of
Default shall have occurred and be continuing or (B) the continuation of, or
conversion into, a Eurodollar Rate Loan would violate any provision of Section
2.13 (Special Provisions Governing Eurodollar Rate Loans). If, within the time
period required under the terms of this Section 2.10, the Administrative Agent
does not receive a Notice of Conversion or
43
Credit Agreement
FMC Corporation
Continuation from the Borrower containing a permitted election to continue any
Eurodollar Rate Loans for an additional Interest Period or to convert any such
Loans, then, upon the expiration of the applicable Interest Period, such Loans
shall be automatically converted to Base Rate Loans. Each Notice of Conversion
or Continuation shall be irrevocable.
Section 2.11 Fees
(a) Unused Commitment Fee. The Borrower agrees to pay to each
Revolving Credit Lender a commitment fee on the actual daily amount by which the
Revolving Credit Commitment of such Lender exceeds such Lender's Ratable Portion
of the sum of (i) the outstanding principal amount of Revolving Loans and (ii)
the outstanding amount of the Letter of Credit Obligations (the "Unused
Commitment Fee") from the date hereof through the Revolving Credit Termination
Date at the Applicable Unused Commitment Fee Rate, payable in arrears (x) on the
first Business Day of each calendar quarter, commencing on the first such
Business Day following the Closing Date and (y) on the Revolving Credit
Termination Date.
(b) Letter of Credit Fees. The Borrower agrees to pay the following
amounts with respect to Letters of Credit issued by any Issuer:
(i) to the Administrative Agent for the account of each Issuer
of a Letter of Credit, with respect to each Letter of Credit issued by such
Issuer, an issuance fee equal to 0.25% per annum of the maximum undrawn
face amount of such Letter of Credit, payable in arrears (A) on the first
Business Day of each calendar quarter, commencing on the first such
Business Day following the issuance of such Letter of Credit and (B) on the
Revolving Credit Termination Date;
(ii) to the Administrative Agent for the ratable benefit of the
Revolving Credit Lenders, with respect to each Letter of Credit, a fee
accruing at a rate per annum equal to the Applicable Margin for Revolving
Loans that are Eurodollar Rate Loans on the maximum undrawn face amount of
such Letter of Credit, payable in arrears (A) on the first Business Day of
each calendar quarter, commencing on the first such Business Day following
the issuance of such Letter of Credit and (B) on the Revolving Credit
Termination Date; provided, however, that during the continuance of an
Event of Default, such fee shall be increased by two percent per annum and
shall be payable on demand; and
(iii) to the Issuer of any Letter of Credit, with respect to the
issuance, amendment or transfer of each Letter of Credit and each drawing
made thereunder, documentary and processing charges in accordance with such
Issuer's standard schedule for such charges in effect at the time of
issuance, amendment, transfer or drawing, as the case may be.
(c) Additional Fees. The Borrower agrees to pay to the Administrative
Agent, the Syndication Agents and the Arrangers the administrative and other
fees from time to time agreed to by the Borrower and such parties.
Section 2.12 Payments and Computations
(a) The Borrower shall make each payment hereunder (including fees
and expenses) not later than 11:00 a.m. (New York time) on the day when due, in
Dollars, to the Administrative Agent at its address referred to in Section 11.8
(Notices, Etc.) in immediately available funds without set-off or counterclaim.
The Administrative Agent shall promptly thereafter cause to be distributed
immediately available funds relating to the payment of principal, interest or
fees to the Lenders, in accordance with the
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Credit Agreement
FMC Corporation
application of payments set forth in Section 2.8(d) (Mandatory Prepayments) and
in clauses (e) or (f) below, as applicable, for the account of their respective
Applicable Lending Offices; provided, however, that amounts payable pursuant to
Section 2.14 (Capital Adequacy), 2.15 (Taxes) or Section 2.13(c) (Increased
Costs) or (d) (Illegality) shall be paid only to the affected Lender or Lenders.
Payments received by the Administrative Agent after 11:00 a.m. (New York time)
shall be deemed to be received on the next Business Day.
(b) All computations of interest and of fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest and fees are payable. Each
determination by the Administrative Agent of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, the due date for such payment shall be extended to
the next succeeding Business Day, and such extension of time shall in such case
be included in the computation of payment of interest or fees, as the case may
be; provided, however, that if such extension would cause payment of interest on
or principal of any Eurodollar Rate Loan to be made in the next calendar month,
such payment shall be made on the immediately preceding Business Day. All
repayments of any Revolving Loans or Term Loans shall be applied as follows:
first, to repay such Loans outstanding as Base Rate Loans and then, to repay
such Loans outstanding as Eurodollar Rate Loans, with those Eurodollar Rate
Loans having earlier expiring Interest Periods being repaid prior to those
having later expiring Interest Periods.
(d) Unless the Administrative Agent shall have received notice from
the Borrower to the Lenders prior to the date on which any payment is due
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent that the Borrower shall not have made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon at the Federal Funds Rate, for the first Business Day, and,
thereafter, at the rate applicable to Base Rate Loans, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Administrative Agent.
(e) Except for payments and other amounts received by the
Administrative Agent and applied in accordance with the provisions of clause (f)
below (or required to be applied in accordance with Section 2.8(d) (Mandatory
Prepayments)), all payments and any other amounts received by the Administrative
Agent from or for the benefit of the Borrower shall be applied as follows:
first, to pay principal of, and interest on, any portion of the Loans the
Administrative Agent may have advanced pursuant to the express provisions of
this Agreement on behalf of any Lender, for which the Administrative Agent has
not then been reimbursed by such Lender or the Borrower, second, to pay all
other Obligations then due and payable and third, as the Borrower so designates.
Payments in respect of Revolving Loans received by the Administrative Agent
shall be distributed to each Revolving Credit Lender in accordance with such
Lender's Ratable Portion of the Revolving Credit Commitments; payments in
respect of the Term Loans received by the Administrative Agent shall be
distributed to each Term Loan Lender in accordance with such Lender's Ratable
Portion of the Term Loans; and all payments of fees and all other payments in
respect of any other Obligation shall be allocated among such of the Lenders and
Issuers as are entitled thereto and, for such payments allocated to the Lenders,
in proportion to their respective Ratable Portions.
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Credit Agreement
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(f) The Borrower hereby irrevocably waives the right to direct the
application of any and all payments in respect of the Obligations and any
proceeds of Collateral after the occurrence and during the continuance of an
Event of Default and agrees that, notwithstanding the provisions of Section
2.8(d) (Mandatory Prepayments) and clause (e) above, the Administrative Agent
may, and, upon either (A) the written direction of the Requisite Lenders or (B)
the acceleration of the Obligations pursuant to Section 9.2 (Remedies), shall,
deliver a Blockage Notice to each Deposit Account Bank and apply all payments in
respect of any Obligations and all funds on deposit in any Cash Collateral
Account (including all proceeds arising from a Reinvestment Event that are held
in the Cash Collateral Account pending application of such proceeds as specified
in a Reinvestment Notice) and all other proceeds of Collateral in the following
order:
First, to pay Obligations in respect of any expense
reimbursements or indemnities and Cash Management Obligations then due to
the Administrative Agent;
Second, to pay Obligations in respect of any expense
reimbursements or indemnities and Cash Management Obligations then due to
the Lenders and the Issuers;
Third, to pay Obligations in respect of any fees then due to the
Administrative Agent, the Lenders and the Issuers;
Fourth, to pay interest then due and payable in respect of the
Loans and Reimbursement Obligations;
Fifth, to pay or prepay principal amounts on the Loans and
Reimbursement Obligations and to provide cash collateral for outstanding
Letter of Credit Undrawn Amounts in the manner described in Section 9.3
(Actions in Respect of Letters of Credit), ratably to the aggregate
principal amount of such Loans, Reimbursement Obligations and Letter of
Credit Undrawn Amounts, Cash Management Obligations, and Obligations owing
with respect to Hedging Contracts; and
Sixth, to the ratable payment of all other Obligations;
provided, however, that if sufficient funds are not available to fund all
payments to be made in respect of any of the Obligations described in any of the
foregoing clauses first through sixth, the available funds being applied with
respect to any such Obligation (unless otherwise specified in such clause) shall
be allocated to the payment of such Obligations ratably, based on the proportion
of the Administrative Agent's and each Lender's, Issuer's and other Secured
Party's interest in the aggregate outstanding Obligations described in such
clauses; provided, further, that the funds allocated to the Revolving Credit
Lenders and Issuers shall be used to pay, first, interest on and then principal
of any portion of the Revolving Loans which the Administrative Agent may have
advanced on behalf of any Lender for which the Administrative Agent has not then
been reimbursed by such Lender or the Borrower (unless the Administrative Agent
shall have received from such Lender, prior to making such Advance, a notice of
the type described in Section 2.2(d)), and this proviso and the order of
priority set forth in clauses first through second of this Section 2.12(f) may
be changed only with the prior written consent of the Administrative Agent in
addition to the Requisite Revolving Credit Lenders and the Requisite Term Loan
Lenders. The order of priority set forth in clauses first through sixth of this
Section 2.12(f) may at any time and from time to time be changed by the
agreement of the Requisite Revolving Credit Lenders and the Requisite Term Loan
Lenders without necessity of notice to or consent of or approval by the
Borrower, any Secured Party that is not a Lender or Issuer, or any other Person.
(g) At the option of the Administrative Agent, Reimbursement
Obligations, interest, fees, expenses and other sums due and payable in respect
of the Loans and Protective Advances may be
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paid from the proceeds of Revolving Loans. The Borrower hereby authorizes the
Revolving Credit Lenders to make Revolving Loans pursuant to Section 2.2(a)
(Borrowing Procedures) from time to time in such Revolving Credit Lender's
discretion, that are in the amounts of any and all interest, fees, expenses and
other sums payable in respect of the Revolving Loans and Protective Advances,
and further authorizes the Administrative Agent to give the Revolving Credit
Lenders notice of any Borrowing with respect to such Revolving Loans and to
distribute the proceeds of such Revolving Loans to pay such amounts. The
Borrower agrees that all such Revolving Loans so made shall be deemed to have
been requested by it (irrespective of the satisfaction of the conditions in
Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit), which
conditions the Revolving Credit Lenders irrevocably waive) and directs that all
proceeds thereof shall be used to pay such amounts.
Section 2.13 Special Provisions Governing Eurodollar Rate Loans
(a) Determination of Interest Rate
The Eurodollar Rate for each Interest Period for Eurodollar Rate Loans
shall be determined by the Administrative Agent pursuant to the procedures set
forth in the definition of "Eurodollar Rate." The Administrative Agent's
determination shall be presumed to be correct absent manifest error and shall be
binding on the Borrower.
(b) Interest Rate Unascertainable, Inadequate or Unfair
In the event that (i) the Administrative Agent determines that
adequate and fair means do not exist for ascertaining the applicable interest
rates by reference to which the Eurodollar Rate then being determined is to be
fixed or (ii) the Requisite Lenders notify the Administrative Agent that the
Eurodollar Rate for any Interest Period will not adequately reflect the cost to
such Lenders of making or maintaining such Loans for such Interest Period, the
Administrative Agent shall forthwith so notify the Borrower and the Lenders,
whereupon each Eurodollar Loan shall automatically, on the last day of the
current Interest Period for such Loan, convert into a Base Rate Loan and the
obligations of the Lenders to make Eurodollar Rate Loans or to convert Base Rate
Loans into Eurodollar Rate Loans shall be suspended until the Administrative
Agent shall notify the Borrower that the Requisite Lenders have determined that
the circumstances causing such suspension no longer exist.
(c) Increased Costs
If at any time any Lender determines that the introduction of, or any
change in or in the interpretation of, any law, treaty or governmental rule,
regulation or order (other than any change by way of imposition or increase of
reserve requirements included in determining the Eurodollar Rate) or the
compliance by such Lender with any guideline, request or directive from any
central bank or other Governmental Authority (whether or not having the force of
law), shall have the effect of increasing the cost to such Lender of agreeing to
make or making, funding or maintaining any Eurodollar Rate Loans, then the
Borrower shall from time to time, upon demand by such Lender (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender additional amounts sufficient to compensate such
Lender for such increased cost. A certificate as to the amount of such increased
cost, submitted to the Borrower and the Administrative Agent by such Lender,
shall be conclusive and binding for all purposes, absent manifest error.
(d) Illegality
Notwithstanding any other provision of this Agreement, if any Lender
determines that the introduction of, or any change in or in the interpretation
of, any law, treaty or governmental rule,
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regulation or order after the date of this Agreement shall make it unlawful, or
any central bank or other Governmental Authority shall assert that it is
unlawful, for any Lender or its Eurodollar Lending Office to make Eurodollar
Rate Loans or to continue to fund or maintain Eurodollar Rate Loans, then, on
notice thereof and demand therefor by such Lender to the Borrower through the
Administrative Agent, (i) the obligation of such Lender to make or to continue
Eurodollar Rate Loans and to convert Base Rate Loans into Eurodollar Rate Loans
shall be suspended, and each such Lender shall make a Base Rate Loan as part of
any requested Borrowing of Eurodollar Rate Loans and (ii) if the affected
Eurodollar Rate Loans are then outstanding, the Borrower shall immediately
convert each such Loan into a Base Rate Loan. If, at any time after a Lender
gives notice under this Section 2.13(d), such Lender determines that it may
lawfully make Eurodollar Rate Loans, such Lender shall promptly give notice of
that determination to the Borrower and the Administrative Agent, and the
Administrative Agent shall promptly transmit the notice to each other Lender.
The Borrower's right to request, and such Lender's obligation, if any, to make
Eurodollar Rate Loans shall thereupon be restored.
(e) Breakage Costs
In addition to all amounts required to be paid by the Borrower
pursuant to Section 2.9 (Interest), the Borrower shall compensate each Lender,
upon demand, for all losses, expenses and liabilities (including any loss or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund or maintain such Lender's Eurodollar
Rate Loans to the Borrower but excluding any loss of the Applicable Margin on
the relevant Loans) that such Lender may sustain (i) if for any reason a
proposed Borrowing, conversion into or continuation of Eurodollar Rate Loans
does not occur on a date specified therefor in a Notice of Borrowing or a Notice
of Conversion or Continuation given by the Borrower or in a telephonic request
by it for borrowing or conversion or continuation or a successive Interest
Period does not commence after notice therefor is given pursuant to Section 2.10
(Conversion/Continuation Option), or any other conversion or continuation of a
Eurodollar Rate Loan occurs on a date that is not the last day of the applicable
Interest Period, (ii) if for any reason any Eurodollar Rate Loan is prepaid
(including mandatorily pursuant to Section 2.8 (Mandatory Prepayments)) on a
date that is not the last day of the applicable Interest Period, (iii) as a
consequence of a required conversion of a Eurodollar Rate Loan to a Base Rate
Loan as a result of any of the events indicated in clause (d) above or (iv) as a
consequence of any failure by the Borrower to repay Eurodollar Rate Loans when
required by the terms hereof. The Lender making demand for such compensation
shall deliver to the Borrower concurrently with such demand a written statement
as to such losses, expenses and liabilities, and this statement shall be
conclusive as to the amount of compensation due to such Lender, absent manifest
error.
Section 2.14 Capital Adequacy
If at any time any Lender determines that (a) the adoption of, or any
change in or in the interpretation of, any law, treaty or governmental rule,
regulation or order after the date of this Agreement regarding capital adequacy,
(b) compliance with any such law, treaty, rule, regulation or order or (c)
compliance with any guideline or request or directive from any central bank or
other Governmental Authority (whether or not having the force of law) shall have
the effect of reducing the rate of return on such Lender's (or any corporation
controlling such Lender's) capital as a consequence of its obligations hereunder
or under or in respect of any Letter of Credit to a level below that which such
Lender or such corporation could have achieved but for such adoption, change,
compliance or interpretation, then, upon demand from time to time by such Lender
(with a copy of such demand to the Administrative Agent), the Borrower shall pay
to the Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender for such reduction. A certificate as to such amounts submitted to the
Borrower and the Administrative Agent by such Lender shall be conclusive and
binding for all purposes absent manifest error.
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Credit Agreement
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Section 2.15 Taxes
(a) Any and all payments by any Loan Party under each Loan Document
shall be made free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding (i) in the case of each Lender and
the Administrative Agent (A) taxes measured by its net income, and franchise
taxes imposed on it, by the jurisdiction (or any political subdivision thereof)
under the laws of which such Lender or the Administrative Agent (as the case may
be) is organized and (B) any United States withholding taxes payable with
respect to payments under the Loan Documents under laws (including any statute,
treaty or regulation) in effect on the Closing Date (or, in the case of an
Eligible Assignee, the date of the Assignment and Acceptance) applicable to such
Lender or the Administrative Agent, as the case may be, but not excluding any
United States withholding taxes payable as a result of any change in such laws
occurring after the Closing Date (or the date of such Assignment and Acceptance)
and (ii) in the case of each Lender, taxes measured by its net income, and
franchise taxes imposed on it as a result of a present or former connection
between such Lender and the jurisdiction of the Governmental Authority imposing
such tax or any taxing authority thereof or therein (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If any Taxes shall be required by law to be
deducted from or in respect of any sum payable under any Loan Document to any
Lender or the Administrative Agent (w) the sum payable shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.15 such Lender or the
Administrative Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (x) the relevant Loan
Party shall make such deductions, (y) the relevant Loan Party shall pay the full
amount deducted to the relevant taxing authority or other authority in
accordance with applicable law and (z) the relevant Loan Party shall deliver to
the Administrative Agent evidence of such payment.
(b) In addition, each Loan Party agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies of the United States or any political subdivision thereof or any
applicable foreign jurisdiction, and all liabilities with respect thereto, in
each case arising from any payment made under any Loan Document or from the
execution, delivery or registration of, or otherwise with respect to, any Loan
Document (collectively, "Other Taxes").
(c) Each Loan Party shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including any
Taxes and Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.15) paid by such Lender or the Administrative Agent (as the case may
be) and any liability (including for penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within 30 days
from the date such Lender or the Administrative Agent (as the case may be) makes
written demand therefor. Each Lender and the Administrative Agent will use
reasonable efforts to assist any Loan Party in obtaining any refunds from any
Governmental Authority for any Taxes or Other Taxes improperly imposed on or
asserted against a Lender or the Administrative Agent for which such Loan Party
has made an indemnification payment under this Section 2.15(c). Upon receipt of
any such refund, such Lender or the Administrative Agent shall promptly repay
the applicable Loan Party the amount of such refund.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes by any Loan Party, the Borrower shall furnish to the Administrative Agent,
at its address referred to in Section 11.8 (Notices, Etc.), the original or a
certified copy of a receipt evidencing payment thereof.
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Credit Agreement
FMC Corporation
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under the Guaranties, the agreements and obligations of
such Loan Party contained in clauses (b) and (c) of this Section 2.15 shall
survive the payment in full of the Obligations.
(f) Prior to the Closing Date in the case of each Non-U.S. Lender
that is a signatory hereto, and on the date of the Assignment and Acceptance
pursuant to which it becomes a Lender in the case of each other Non-U.S. Lender
and from time to time thereafter if requested by the Borrower or the
Administrative Agent, each Non-U.S. Lender that is entitled at such time to an
exemption from United States withholding tax, or that is subject to such tax at
a reduced rate under an applicable tax treaty, shall provide the Administrative
Agent and the Borrower with two completed originals of each of the following:
(i) Form W-8ECI (claiming exemption from withholding because the income is
effectively connected with a U.S. trade or business) or any successor form, (ii)
Form W-8BEN (claiming exemption from, or a reduction of, withholding tax under
an income tax treaty) or any successor form, (iii) in the case of a Non-U.S.
Lender claiming exemption under Sections 871(h) or 881(c) of the Code, a Form
W-8BEN (claiming exemption from withholding under the portfolio interest
exemption) or any successor form or (iv) any other applicable form, certificate
or document prescribed by the IRS certifying as to such Non-U.S. Lender's
entitlement to such exemption from United States withholding tax or reduced rate
with respect to all payments to be made to such Non-U.S. Lender under the Loan
Documents. Unless the Borrower and the Administrative Agent have received forms
or other documents satisfactory to them indicating that payments under any Loan
Document to or for a Non-U.S. Lender are not subject to United States
withholding tax or are subject to such tax at a rate reduced by an applicable
tax treaty, the Borrower or the Administrative Agent shall withhold amounts
required to be withheld by applicable Requirements of Law from such payments at
the applicable statutory rate.
(g) Any Lender claiming any additional amounts payable pursuant to
this Section 2.15 shall use its reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that would be payable
or may thereafter accrue and would not, in the sole determination of such
Lender, be otherwise disadvantageous to such Lender.
Section 2.16 Substitution of Lenders
(a) In the event that (i)(A) any Lender makes a claim under Section
2.13(c) (Increased Costs) or Section 2.14 (Capital Adequacy), (B) it becomes
illegal for any Lender to continue to fund or make any Eurodollar Rate Loan and
such Lender notifies the Borrower pursuant to Section 2.13(d) (Illegality), (C)
the Borrower is required to make any payment pursuant to Section 2.15 (Taxes)
that is attributable to a particular Lender or (D) any Lender becomes a
Non-Funding Lender, (ii) in the case of clause (i)(A) above, as a consequence of
increased costs in respect of which such claim is made, the effective rate of
interest payable to such Lender under this Agreement with respect to its Loans
materially exceeds the effective average annual rate of interest payable to the
Requisite Lenders under this Agreement and (iii) in the case of clause (i)(A),
(B) and (C) above, Lenders holding at least 75% of the Revolving Credit
Commitments and Lenders holding at least 75% of the Term Loan Commitments are
not subject to such increased costs or illegality, payment or proceedings (any
such Lender, an "Affected Lender"), the Borrower may substitute any Lender and,
if reasonably acceptable to the Administrative Agent, any other Eligible
Assignee (a "Substitute Institution") for such Affected Lender hereunder, after
delivery of a written notice (a "Substitution Notice") within a reasonable time
(in any case not to exceed 90 days) following the occurrence of any of the
events described in clauses (i)(A), (B), (C) or (D) above by the Borrower to the
Administrative Agent and the Affected Lender that the Borrower intends to make
such substitution; provided, however, that, if more than one Lender claims
increased costs, illegality or right to payment arising from the same act or
condition and such claims are
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Credit Agreement
FMC Corporation
received by the Borrower within 30 days of each other, then the Borrower may
substitute all, but not (except to the extent the Borrower has already
substituted one of such Affected Lenders before the Borrower's receipt of the
other Affected Lenders' claim) less than all, Lenders making such claims.
(b) If the Substitution Notice was properly issued under this Section
2.16, the Affected Lender shall sell, and the Substitute Institution shall
purchase, all rights and claims of such Affected Lender under the Loan Documents
and the Substitute Institution shall assume, and the Affected Lender shall be
relieved of, the Affected Lender's Revolving Credit Commitments and all other
prior unperformed obligations of the Affected Lender under the Loan Documents
(other than in respect of any damages (other than exemplary or punitive damages,
to the extent permitted by applicable law) in respect of any such unperformed
obligations). Such purchase and sale (and the corresponding assignment of all
rights and claims hereunder) shall be effective on (and not earlier than) the
later of (i) the receipt by the Affected Lender of its Ratable Portion of the
Revolving Credit Outstandings, the Term Loans, together with any other
Obligations owing to it, (ii) the receipt by the Administrative Agent of an
agreement in form and substance satisfactory to it and the Borrower whereby the
Substitute Institution shall agree to be bound by the terms hereof and (ii) the
payment in full to the Affected Lender in cash of all fees, unreimbursed costs
and expenses and indemnities accrued and unpaid through such effective date.
Upon the effectiveness of such sale, purchase and assumption, the Substitute
Institution shall become a "Lender" hereunder for all purposes of this Agreement
having a Commitment in the amount of such Affected Lender's Commitment assumed
by it and such Commitment of the Affected Lender shall be terminated; provided,
however, that all indemnities under the Loan Documents shall continue in favor
of such Affected Lender.
(c) Each Lender agrees that, if it becomes an Affected Lender and its
rights and claims are assigned hereunder to a Substitute Institution pursuant to
this Section 2.16, it shall execute and deliver to the Administrative Agent an
Assignment and Acceptance to evidence such assignment, together with any Note
(if such Loans are evidenced by a Note) evidencing the Loans subject to such
Assignment and Acceptance; provided, however, that the failure of any Affected
Lender to execute an Assignment and Acceptance shall not render such assignment
invalid.
ARTICLE III
Conditions to Loans and Letters of Credit
Section 3.1 Conditions Precedent to Initial Loans and Letters of
Credit
The obligation of each Lender to make the Loans requested to be made
by it on the Closing Date and the obligation of each Issuer to Issue Letters of
Credit on the Closing Date is subject to the satisfaction or due waiver in
accordance with Section 11.1 (Amendments, Waivers, Etc.) of each of the
following conditions precedent:
(a) Certain Documents. The Administrative Agent shall have received
on or prior to the Closing Date each of the following, each dated the Closing
Date unless otherwise indicated or agreed to by the Administrative Agent, in
form and substance satisfactory to the Administrative Agent and the Lenders and
in sufficient copies for each Lender:
(i) this Agreement, duly executed and delivered by the
Borrower and, for the account of each Lender requesting the same, a Note or
Notes of the Borrower conforming to the requirements set forth herein;
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Credit Agreement
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(ii) (x) the U.S. Subsidiary Guaranty and (y) the Parent
Guaranty, in each case duly executed by each applicable Guarantor;
(iii) (x) the Bank Security Agreement and (y) the Shared
Collateral Security Agreement, in each case duly executed by the Borrower
and the Subsidiary Guarantors party thereto, together with each of the
following:
(A) evidence satisfactory to the Administrative Agent
that, upon the filing and recording of instruments delivered
hereunder, the Administrative Agent (for the benefit of the Secured
Parties) shall have a valid and perfected first priority security
interest (subject to Liens permitted under this Agreement) in the
Banks' Collateral, and the Collateral Trustee shall have a valid and
perfected first priority security interest (subject to Liens permitted
under this Agreement) in the Shared Collateral (which such lien shall
be junior only to the lien of the Administrative Agent and Lenders on
that portion of the Banks' Collateral constituting the Shared
Collateral), including (x) such documents duly executed by each Loan
Party as the Administrative Agent may request with respect to the
perfection of its security interests in the Collateral (including
financing statements under the UCC, patent, trademark and copyright
security agreements suitable for filing with the U.S. Patent and
Trademark Office or the U.S. Copyright Office, as the case may be, and
other applicable documents under the laws of any jurisdiction with
respect to the perfection of Liens created by each Pledge and Security
Agreement), (y) copies of UCC search reports as of a recent date
listing all effective financing statements that name the Borrower or
any Subsidiary Guarantor as debtor, together with copies of such
financing statements, none of which shall cover the Collateral except
for those that shall be terminated on the Closing Date or are
otherwise permitted hereunder and (z) all filing and recording fees
and taxes in connection therewith shall have been paid;
(B) share certificates representing all of the
certificated Pledged Stock being pledged pursuant to each Pledge and
Security Agreement and stock powers for such share certificates
executed in blank;
(C) all instruments representing Pledged Notes, including
the Swiss Note, being pledged pursuant to each Pledge and Security
Agreement duly endorsed in favor of the Administrative Agent or the
Collateral Trustee, as the case may be, or in blank;
(D) Deposit Account Control Agreements from all Deposit
Account Banks; and
(E) Control Account Agreements from (1) all securities
intermediaries with respect to all securities accounts and securities
entitlements of the Borrower and each Subsidiary Guarantor and (2) all
futures commission agents and clearing houses with respect to all
commodities contracts and commodities accounts held by the Borrower
and each Subsidiary Guarantor;
(iv) each Foreign Pledge Agreement listed on Schedule 3.1, in
each case duly executed by the applicable Loan Party and/or Foreign
Subsidiary, as the case may be, together with:
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Credit Agreement
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(A) evidence satisfactory to the Administrative Agent
that the Parent Guaranty shall be secured by the assets of certain
Foreign Subsidiaries pursuant to such Foreign Pledge Agreements,
including such documents duly executed by the applicable Foreign
Subsidiary as the Administrative Agent may request;
(B) share certificates representing all of the
certificated Pledged Stock being pledged, if any, pursuant to each
Foreign Pledge Agreement and stock powers for such share certificates
executed in blank; and
(C) all instruments representing Pledged Notes being
pledged, if any, pursuant to each Foreign Pledge Agreement duly
endorsed in favor of the Administrative Agent or in blank;
(v) the Collateral Trust Agreement, duly executed by each
party thereto;
(vi) the Debt Reserve Account Agreement and the Restricted Cash
Collateral Account Agreement, duly executed by each party thereto;
(vii) the Sharing Agreement, duly executed by the Lenders and
the Issuers, the issuers under the L/C Agreement, the Astaris Agent (as
such term is defined in the Sharing Agreement) and each lender (to the
extent the signature of such lender is available as of the Closing Date)
under (A) any Foreign Credit Line or (B) Hedging Contracts and Cash
Management Obligations that are otherwise guaranteed by the Borrower;
(viii) Mortgages for the real properties of the Loan Parties
specified on Schedule V (except as may be agreed to by the Administrative
Agent and the Lenders), together with (A) title insurance policies (or
marked-up unconditional binders for such insurance or other evidence
acceptable to the Administrative Agent proving ownership thereof) and, to
the extent required by the Administrative Agent or the Collateral Trustee,
maps or plats of current as-built surveys and a surveyor's certificate
therefor, zoning letters and certificates of occupancy, in each case
satisfactory in form and substance to the Administrative Agent or the
Collateral Trustee, as the case may be, in its sole discretion, and (B) an
opinion of counsel in each state in which any such Mortgage is to be
recorded in form and substance and from counsel satisfactory to the
Administrative Agent or the Collateral Trustee;
(ix) a favorable opinion of (A) Morgan, Lewis & Bockius LLP,
U.S. counsel to the Loan Parties, in substantially the form of Exhibit F
(Form of Opinion of U.S. Counsel for the Loan Parties), (B) counsel to the
Loan Parties in each jurisdiction specified by the Administrative Agent in
which any Foreign Subsidiary whose shares are being pledged hereunder is
organized or in which Collateral is located, in each case addressed to the
Administrative Agent and the Lenders and addressing such other matters as
any Lender through the Administrative Agent may reasonably request and (C)
counsel to the Administrative Agent as to the enforceability of this
Agreement and the other Loan Documents to be executed on the Closing Date;
(x) a copy of the Indenture, the Senior Secured Notes and each
Disclosure Document certified as being complete and correct by a
Responsible Officer of the Borrower;
(xi) a copy of the articles or certificate of incorporation
(or equivalent Constituent Document) of each Loan Party that is required to
execute any Loan Document, certified as of a recent date by the Secretary
of State of the state of organization of such Loan
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Party, together with certificates of such official attesting to the good
standing of each such Loan Party;
(xii) a certificate of the Secretary or an Assistant Secretary
of each Loan Party that is required to execute any Loan Document certifying
(A) the names and true signatures of each officer of such Loan Party that
has been authorized to execute and deliver any Loan Document or other
document required hereunder to be executed and delivered by or on behalf of
such Loan Party, (B) the by-laws (or equivalent Constituent Document) of
such Loan Party as in effect on the date of such certification, (C) the
resolutions of such Loan Party's Board of Directors (or equivalent
governing body) approving and authorizing the execution, delivery and
performance of this Agreement and the other Loan Documents to which it is a
party and (D) that there have been no changes in the certificate of
incorporation (or equivalent Constituent Document) of such Loan Party from
the certificate of incorporation (or equivalent Constituent Document)
delivered pursuant to clause (xi) above;
(xiii) a certificate of a Responsible Officer of the Borrower,
stating that the Borrower and the Borrower and its Subsidiaries on a
Consolidated basis are Solvent after giving effect to the initial Loans and
Letters of Credit, the application of the proceeds thereof in accordance
with Section 7.9 (Application of Proceeds), the transactions contemplated
hereby and the payment of all estimated legal, accounting and other fees
related hereto and thereto;
(xiv) a certificate of a Responsible Officer of the Borrower to
the effect that (A) the condition set forth in Section 3.2(b) (Conditions
Precedent to Each Loan and Letter of Credit) has been satisfied and (B) no
action, suit, investigation, proceeding or litigation not listed on
Schedule 4.7 (Litigation) shall have been commenced against any Loan Party
or any of its Subsidiaries that, (x) if adversely determined, could
reasonably be expected to result in or cause a Material Adverse Effect or
(y) restrains, prevents or imposes or can reasonably be expected to impose
materially adverse conditions upon the Facilities or the transactions
contemplated hereby;
(xv) a certificate of a Responsible Officer of the Borrower
certifying that the Senior Secured Notes have been issued in a public
offering or in a Rule 144A or other private placement for gross cash
proceeds of not less than $300,000,000;
(xvi) a certificate of a Responsible Officer of the Borrower
setting forth, with respect to each Foreign Subsidiary, (A) the aggregate
amount available, (B) the aggregate amount of commitments, if any, and (C)
the aggregate principal amount outstanding under all Foreign Credit Lines
as of September 30, 2002;
(xvii) evidence satisfactory to the Administrative Agent that
the insurance policies required by Section 7.5 (Maintenance of Insurance)
and any Collateral Document are in full force and effect, together with
endorsements naming the Administrative Agent and the Collateral Trustee, on
behalf of the Secured Parties, as an additional insured or loss payee under
all insurance policies to be maintained with respect to the properties of
the Borrower and its Domestic Subsidiaries; and
(xviii) such other certificates, documents, agreements and
information respecting any Loan Party as any Lender through the
Administrative Agent may reasonably request.
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(b) Fees and Expenses Paid. There shall have been paid to the
Administrative Agent, for the account of the Administrative Agent and the
Lenders, as applicable, all fees and expenses (including reasonable fees and
expenses of counsel) due and payable on or before the Closing Date.
(c) Repayment of Existing Credit Agreements. (i) All obligations
under the Existing Credit Agreements shall have been repaid in full, (ii) the
Existing Credit Agreements and all Loan Documents (as defined therein) shall
have been terminated on terms satisfactory to the Administrative Agent, (iii)
all liens and security interests granted in connection with the Existing Credit
Agreements shall have been terminated in form and substance satisfactory to the
Administrative Agent and (iv) the Administrative Agent shall have received a
payoff letter duly executed and delivered by the Borrower and the Existing Agent
or other evidence of such termination in each case in form and substance
satisfactory to the Administrative Agent.
(d) Repayment of Securitization Facility. (i) All obligations under
the Securitization Facility to Persons other than the Borrower or a Subsidiary
of the Borrower shall have been repaid in full, (ii) the Securitization Facility
and all documents related thereto (other than any sale and servicing agreement
or equivalent agreement between the Borrower or a Subsidiary of the Borrower and
FMC Funding Corporation) shall have been terminated on terms satisfactory to the
Administrative Agent and (iii) the Administrative Agent shall have received a
payoff letter duly executed and delivered by the Borrower and the relevant
parties or other evidence of such termination in each case in form and substance
satisfactory to the Administrative Agent.
(e) Indenture. The Administrative Agent shall be satisfied that (i)
terms and conditions of the Indenture shall not have been amended, waived or
modified without the approval of the Administrative Agent and such Indenture
shall have been duly executed by the Borrower and the trustee thereunder, (ii)
the Indenture and the issuance of the Senior Secured Notes by the Borrower shall
have been approved by all corporate action of the Borrower and each of the other
parties thereto, shall be in full force and effect and there shall not have
occurred and be continuing any material breach or default thereunder, (iii) all
conditions precedent to the issuance of the Senior Secured Notes shall have been
satisfied or waived with the consent of the Administrative Agent and such Senior
Secured Notes shall have been issued, (iv) the execution, delivery and
performance of the Indenture and the issuance of the Senior Secured Notes do not
violate any Requirement of Law on the date of or immediately following such
execution, delivery, performance or issuance and are not enjoined, temporarily,
preliminarily or permanently and (v) all representations and warranties
contained in the Indenture and the Senior Secured Notes shall be true and
correct in all material respects on the Closing Date.
(f) Consents, Etc. Each of the Borrower and its Subsidiaries shall
have received all consents and authorizations required pursuant to any material
Contractual Obligation with any other Person and shall have obtained all Permits
of, and effected all notices to and filings with, any Governmental Authority, in
each case, as may be necessary to allow each of the Borrower and its
Subsidiaries lawfully (i) to execute, deliver and perform, in all material
respects, their respective obligations hereunder and under the Loan Documents,
the Senior Secured Notes and the Indenture to which each of them, respectively,
is, or shall be, a party and each other agreement or instrument to be executed
and delivered by each of them, respectively, pursuant thereto or in connection
therewith, and (ii) to create and perfect the Liens on the Collateral to be
owned by each of them in the manner and for the purpose contemplated by the Loan
Documents.
(g) Environmental Due Diligence Review. The Administrative Agent
shall have conducted an environmental due diligence review demonstrating to the
sole satisfaction of the Arrangers the absence of unbudgeted or unprogrammed
Environmental Liabilities and Costs that are reasonably likely to have a
Material Adverse Effect.
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(h) Liens on Specified Debt. All liens and security interests granted
in connection with the Specified Debt (if any) shall have been terminated
pursuant to documentation in form and substance satisfactory to the
Administrative Agent.
(i) ERISA. The Arrangers shall be satisfied that the Borrower and its
Subsidiaries will be able to meet their obligations under all employee and
retiree welfare plans of the Borrower and its Subsidiaries, that such employee
benefit plans are, in all material respects, funded in accordance with the
minimum statutory requirements, that no material "reportable event" (as defined
in ERISA, but excluding events for which reporting has been waived) has occurred
as to any such employee benefit plan and that no termination of, or withdrawal
from, any such employee benefit plan has occurred or is contemplated that could
result in a material liability.
(j) Cash Management. The Administrative Agent shall be satisfied
that, as of the Closing Date, the procedures with respect to cash management
required by the Collateral Documents have been established and are currently
being maintained by the Borrower and each Subsidiary Guarantor, together with
copies of all Deposit Account Control Agreements executed by such Loan Party in
connection therewith.
(k) Restricted Cash Collateral and Debt Reserve Accounts. The
Administrative Agent shall be satisfied that, as of the Closing Date, the
Borrower shall have established the Restricted Cash Collateral Account and the
Debt Reserve Account with financial institutions and on terms acceptable to it.
(l) Certain Proceeds. The Administrative Agent shall have received
satisfactory evidence that (i) the Borrower shall have caused an aggregate
amount not less than $130,800,000 to be deposited into the Restricted Cash
Collateral Account, of which an aggregate amount of $37,776,950 shall have then
been withdrawn pursuant to the terms of the Restricted Cash Collateral Account
Agreement and deposited into accounts designated by Wachovia to cash
collateralize letters of credit issued by Wachovia outstanding as of the Closing
Date and (ii) the Borrower shall have caused an amount not less than
$260,000,000 to be deposited into the Debt Reserve Account, the proceeds of
which shall be released solely for the purposes specified in the Debt Reserve
Account Agreement.
Section 3.2 Conditions Precedent to Each Loan and Letter of Credit
The obligation of each Lender on any date (including the Closing Date)
to make any Loan and of each Issuer on any date (including the Closing Date) to
Issue any Letter of Credit is subject to the satisfaction of each of the
following conditions precedent:
(a) Request for Borrowing or Issuance of Letter of Credit. With
respect to any Loan, the Administrative Agent shall have received a duly
executed Notice of Borrowing, and, with respect to any Letter of Credit, the
Administrative Agent and the Issuer shall have received a duly executed Letter
of Credit Request.
(b) Representations and Warranties; No Defaults. The following
statements shall be true on the date of such Loan or Issuance, both before and
after giving effect thereto and, in the case of any Loan, to the application of
the proceeds therefrom:
(i) the representations and warranties set forth in Article IV
(Representations and Warranties) and in the other Loan Documents shall be
true and correct on and as of the Closing Date and shall be true and
correct in all material respects on and as of any such date after the
Closing Date with the same effect as though made on and as of such date,
except to the extent
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such representations and warranties expressly relate to an earlier date, in
which case such representations and warranties shall have been true and
correct in all material respects as of such earlier date; and
(ii) no Default or Event of Default shall have occurred and be
continuing.
(c) No Legal Impediments. The making of the Loans or the Issuance of
such Letter of Credit on such date does not violate any Requirement of Law on
the date of or immediately following such Loan or Issuance of such Letter of
Credit and is not enjoined, temporarily, preliminarily or permanently.
(d) Additional Matters. The Administrative Agent shall have received
such additional documents, information and materials as any Lender, through the
Administrative Agent, may reasonably request.
Each submission by the Borrower to the Administrative Agent of a Notice of
Borrowing and the acceptance by the Borrower of the proceeds of each Loan
requested therein, and each submission by the Borrower to an Issuer of a Letter
of Credit Request, and the Issuance of each Letter of Credit requested therein,
shall be deemed to constitute a representation and warranty by the Borrower as
to the matters specified in clause (b) above on the date of the making of such
Loan or the Issuance of such Letter of Credit.
Section 3.3 Determinations of Initial Borrowing Conditions
For purposes of determining compliance with the conditions specified
in Section 3.1 (Conditions Precedent to Initial Loans and Letters of Credit),
each Lender shall be deemed to have consented to, approved, accepted or be
satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
prior to the initial Borrowing or Issuance hereunder specifying its objection
thereto and such Lender shall not have made available to the Administrative
Agent such Lender's Ratable Portion of such Borrowing.
ARTICLE IV
Representations and Warranties
To induce the Lenders, the Issuers and the Administrative Agent to
enter into this Agreement, the Borrower represents and warrants each of the
following to the Lenders, the Issuers and the Administrative Agent, on and as of
the Closing Date and the making of the Loans and the other financial
accommodations on the Closing Date and on and as of each date as required by
Section 3.2(b)(i) (Conditions Precedent to Each Loan and Letter of Credit):
Section 4.1 Corporate Existence; Compliance with Law
Each of the Borrower and its Subsidiaries (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) is duly qualified to do business as a foreign corporation and
in good standing under the laws of each jurisdiction where such qualification is
necessary, except where the failure to be so qualified or in good standing would
not, in the aggregate, be reasonably likely to have a Material Adverse Effect,
(c) has all requisite power and authority and the legal right to own, pledge,
mortgage and operate its properties, to lease the property it operates under
lease and
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to conduct its business as now or currently proposed to be conducted, (d) with
respect to the Borrower and the Domestic Subsidiaries, is in compliance with its
Constituent Documents, (e) is in compliance with all applicable Requirements of
Law except where the failure to be in compliance would not, in the aggregate, be
reasonably likely to have a Material Adverse Effect and (f) has all necessary
licenses, permits, consents or approvals from or by, has made all necessary
filings with, and has given all necessary notices to, each Governmental
Authority having jurisdiction, to the extent required for such ownership,
operation and conduct, except for licenses, permits, consents, approvals or
filings that can be obtained or made by the taking of ministerial action to
secure the grant or transfer thereof or the failure to obtain or make would not,
in the aggregate, be reasonably likely to have a Material Adverse Effect.
Section 4.2 Corporate Power; Authorization; Enforceable Obligations
(a) The execution, delivery and performance by each Loan Party of the
Loan Documents to which it is a party and the consummation of the transactions
contemplated thereby:
(i) are within such Loan Party's corporate, limited liability
company, partnership or other powers;
(ii) have been or, at the time of delivery thereof pursuant to
Article III (Conditions To Loans And Letters Of Credit) will have been duly
authorized by all necessary action, including the consent of shareholders,
partners and members where required;
(iii) do not and will not (A) contravene such Loan Party's or
any of its Subsidiaries' respective Constituent Documents, (B) violate any
other Requirement of Law applicable to such Loan Party (including
Regulations T, U and X of the Federal Reserve Board), or any order or
decree of any Governmental Authority or arbitrator applicable to such Loan
Party, (C) conflict with or result in the breach of, or constitute a
default under, or result in or permit the termination or acceleration of,
any Contractual Obligation of such Loan Party or any of its Subsidiaries,
including the Existing Public Debt, or (D) result in the creation or
imposition of any Lien upon any property of such Loan Party or any of its
Subsidiaries, other than those in favor of the Secured Parties pursuant to
the Collateral Documents; and
(iv) do not require the consent of, authorization by, approval
of, notice to, or filing or registration with, any Governmental Authority
or any other Person, other than those listed on Schedule 4.2 (Consents) and
that have been or will be, prior to the Closing Date, obtained or made,
copies of which have been or will be delivered to the Administrative Agent
pursuant to Section 3.1 (Conditions Precedent to Initial Loans and Letters
of Credit), and each of which on the Closing Date will be in full force and
effect and, with respect to the Collateral, filings required to perfect the
Liens created by the Collateral Documents.
(b) This Agreement has been, and each of the other Loan Documents
will have been upon delivery thereof pursuant to the terms of this Agreement,
duly executed and delivered by each Loan Party party thereto. This Agreement is,
and the other Loan Documents will be, when delivered hereunder, the legal, valid
and binding obligation of each Loan Party party thereto, enforceable against
such Loan Party in accordance with its terms.
Section 4.3 Ownership of Borrower; Subsidiaries
Set forth on Schedule 4.3 (Ownership of Subsidiaries) is a complete
and accurate list showing, as of the Closing Date, all Subsidiaries of the
Borrower and, as to each such Subsidiary, the jurisdiction of its organization,
the number of shares of each class of Stock authorized (if applicable), the
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number outstanding on the Closing Date and the number and percentage of the
outstanding shares of each such class owned (directly or indirectly) by the
Borrower. No Stock of any Material Subsidiary is subject to any outstanding
option, warrant, right of conversion or purchase of any similar right. All of
the outstanding Stock of each Material Subsidiary owned (directly or indirectly)
by the Borrower has been validly issued, is fully paid and non-assessable (to
the extent applicable) and is owned by the Borrower or a Subsidiary of the
Borrower, free and clear of all Liens (other than the Lien in favor of the
Secured Parties created pursuant to the Pledge and Security Agreements and Liens
permitted under this Agreement), options, warrants, rights of conversion or
purchase or any similar rights. Except as set forth on Schedule 4.3, neither the
Borrower nor any Material Subsidiary is a party to, or has knowledge of, any
agreement restricting the transfer or hypothecation of any Stock of any such
Subsidiary, other than the Loan Documents, the Indenture and the indentures
pursuant to which the Outstanding Notes were issued. The Borrower does not own
or hold, directly or indirectly, any Stock of any Person other than such
Subsidiaries and Investments permitted by Section 8.3 (Investments).
Section 4.4 Financial Statements
(a) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 2001, and the related Consolidated statements of
income, retained earnings and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, certified by the Borrower's Accountants, and the
Consolidated balance sheets of the Borrower and its Subsidiaries as at June 30,
2002, and the related Consolidated statements of income, retained earnings and
cash flows of the Borrower and its Subsidiaries for the six months then ended,
copies of which have been furnished to each Lender, fairly present, subject, in
the case of said balance sheets as at June 30, 2002, and said statements of
income, retained earnings and cash flows for the six months then ended, to the
absence of footnote disclosure and normal recurring year-end audit adjustments,
the Consolidated financial condition of the Borrower and its Subsidiaries as at
such dates and the Consolidated results of the operations of the Borrower and
its Subsidiaries for the period ended on such dates, all in conformity with
GAAP.
(b) Neither the Borrower nor any of its Subsidiaries has any material
obligation, contingent liability or liability for taxes, long-term leases or
unusual forward or long-term commitment that is not reflected in the Financial
Statements referred to in clause (a) above or in the notes thereto and not
otherwise permitted by this Agreement.
Section 4.5 Material Adverse Change
Since December 31, 2001, there has been no Material Adverse Change and
there have been no events or developments that, in the aggregate, have had a
Material Adverse Effect.
Section 4.6 Solvency
Both before and after giving effect to (a) the Loans and Letter of
Credit Obligations to be made or extended on the Closing Date or such other date
as Loans and Letter of Credit Obligations requested hereunder are made or
extended, (b) the disbursement of the proceeds of such Loans pursuant to the
instructions of the Borrower, (c) the consummation of the other financing
transactions contemplated hereby and (d) the payment and accrual of all
transaction costs in connection with the foregoing, the Borrower and Borrower
and its Subsidiaries on a Consolidated basis, are Solvent.
Section 4.7 Litigation
Except as set forth on Schedule 4.7 (Litigation), there are no pending
or, to the knowledge of the Borrower, threatened actions, investigations or
proceedings affecting the Borrower or
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any of its Subsidiaries before any court, Governmental Authority or arbitrator
other than those that, in the aggregate, would not be reasonably likely to have
a Material Adverse Effect. The performance of any action by any Loan Party
required or contemplated by any Loan Document, the Indenture or the Senior
Secured Notes is not restrained or enjoined (either temporarily, preliminarily
or permanently).
Section 4.8 Taxes
(a) All federal, state, local and foreign income and franchise and
other material tax returns, reports and statements (collectively, the "Tax
Returns") required to be filed by the Borrower or any of its Tax Affiliates have
been filed with the appropriate Governmental Authorities in all jurisdictions in
which such Tax Returns are required to be filed, all such Tax Returns are true
and correct in all material respects, and all taxes, charges and other
impositions reflected therein or otherwise due and payable have been paid prior
to the date on which any fine, penalty, interest, late charge or loss may be
added thereto for non-payment thereof except where contested in good faith and
by appropriate proceedings if adequate reserves therefor have been established
on the books of the Borrower or such Tax Affiliate in conformity with GAAP.
Proper and accurate amounts have been withheld by the Borrower and each of its
Tax Affiliates from their respective employees for all periods in full and
complete compliance with the tax, social security and unemployment withholding
provisions of applicable Requirements of Law and such withholdings have been
timely paid to the respective Governmental Authorities.
(b) None of the Borrower or any of its Tax Affiliates has (i)
incurred any obligation under any tax sharing agreement or arrangement other
than those with FMC Wyoming and with FMC Technologies, Inc., copies of which
have been made available to the Administrative Agent or (ii) been a member of an
affiliated, combined or unitary group other than the group of which the Borrower
(or its Tax Affiliate) is the common parent.
Section 4.9 Full Disclosure
(a) The information prepared or furnished by or on behalf of the
Borrower in connection with this Agreement, the Indenture or the Senior Secured
Notes or the consummation of the transactions contemplated hereunder and
thereunder taken as a whole, including the information contained in the
Disclosure Documents, does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements contained
therein or herein not misleading.
(b) The Borrower has delivered (or otherwise made available through
electronic access) to each Lender a true, complete and correct copy of each
Disclosure Document. The Disclosure Documents comply as to form in all material
respects with all applicable requirements of all applicable state and Federal
securities laws.
Section 4.10 Margin Regulations
The Borrower is not engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U of the Federal Reserve Board), and no proceeds of any Loan will be
used to purchase or carry any such margin stock or to extend credit to others
for the purpose of purchasing or carrying any such margin stock in contravention
of Regulation T, U or X of the Federal Reserve Board.
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Section 4.11 No Burdensome Restrictions; No Defaults
(a) Neither the Borrower nor any of its Subsidiaries (i) is a party to
any Contractual Obligation the compliance with one or more of which would have,
in the aggregate, a Material Adverse Effect or the performance of which by any
thereof, either unconditionally or upon the happening of an event, would result
in the creation of a Lien (other than a Lien permitted under Section 8.2 (Liens,
Etc.)) on the assets of any thereof or (ii) is subject to one or more charter or
corporate restrictions that would, in the aggregate, be reasonably likely to
have a Material Adverse Effect.
(b) Neither the Borrower nor any of its Subsidiaries is in default
under or with respect to any Contractual Obligation owed by it and, to the
knowledge of the Borrower, no other party is in default under or with respect to
any Contractual Obligation owed to any Loan Party or to any Subsidiary of a Loan
Party, other than, in either case, those defaults that, in the aggregate, would
not be reasonably likely to have a Material Adverse Effect.
(c) No Default or Event of Default has occurred and is continuing.
(d) To the best knowledge of the Borrower, there are no Requirements
of Law applicable to any Loan Party or any Subsidiary of any Loan Party the
compliance with which by such Loan Party or such Subsidiary, as the case may be,
would, in the aggregate, be reasonably likely to have a Material Adverse Effect.
Section 4.12 Investment Company Act; Public Utility Holding Company
Act
Neither the Borrower nor any of its Subsidiaries is (a) an "investment
company" or an "affiliated Person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended or (b) a "holding company," or an "affiliate" or
a "holding company" or a "subsidiary company" of a "holding company," as each
such term is defined and used in the Public Utility Holding Company Act of 1935,
as amended.
Section 4.13 Use of Proceeds
The proceeds of the Loans and the Letters of Credit are being used by
the Borrower solely (i) for deposit into the Restricted Cash Collateral Account
in an aggregate amount equal to approximately $130,800,000 and used from time to
time solely to (A) refinance and/or replace or secure with cash collateral
certain surety bonds and letters of credit currently supporting self-insurance
programs, environmental obligations, future business commitments and letters of
credit in an amount not exceeding $44,030,000 supporting IRB Obligations, in
each case, issued by or for the benefit of the Borrower and its Subsidiaries or
(B) make a mandatory prepayment pursuant to Section 2.8(i), (ii) for deposit
into the Debt Reserve Account in an amount equal to approximately $260,000,000
and used for the redemption or repurchase of the Specified Debt, (iii) to
refinance outstandings under the Securitization Facility, (iv) for the payment
of transaction costs, fees and expenses incurred in connection with this
Agreement and the transactions contemplated hereby, (v) to provide for working
capital from time to time for the Borrower and (vi) for other general corporate
purposes.
Section 4.14 Insurance
All policies of insurance of any kind or nature of the Borrower or any
of its Subsidiaries are in full force and effect and are of a nature and provide
such coverage as is sufficient and as is customarily carried by companies
engaged in similar businesses and owning similar properties in the same general
areas in which the Borrower or such Subsidiary operates.
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Section 4.15 Labor Matters
(a) There are no strikes, work stoppages, slowdowns or lockouts
pending or threatened against or involving the Borrower or any of its
Subsidiaries, other than those that, in the aggregate, would not be reasonably
likely to have a Material Adverse Effect.
(b) There are no unfair labor practices, grievances or complaints
pending, or, to the Borrower's knowledge, threatened, against or involving the
Borrower or any of its Subsidiaries, nor are there any arbitrations or
grievances threatened involving the Borrower or any of its Subsidiaries, other
than those that, in the aggregate, would not be reasonably likely to have a
Material Adverse Effect.
(c) Except as set forth on Schedule 4.15 (Labor Matters), as of the
Closing Date, there is no collective bargaining agreement covering any employee
of the Borrower or its Subsidiaries.
(d) Schedule 4.15 (Labor Matters) sets forth as of the date hereof,
all material consulting agreements, executive employment agreements, executive
compensation plans, deferred compensation agreements, employee stock purchase
and stock option plans and severance plans of the Borrower and any of its
Subsidiaries.
Section 4.16 ERISA
(a) Schedule 4.16 (List of Plans) separately identifies as of the date
hereof all Title IV Plans, all Multiemployer Plans and all of the employee
benefit plans within the meaning of Section 3(3) of ERISA, to which the Borrower
or any of its Subsidiaries has any obligation or liability, contingent or
otherwise.
(b) Each employee benefit plan of the Borrower or any of its
Subsidiaries intended to qualify under Section 401 of the Code does so qualify,
and any trust created thereunder is exempt from tax under the provisions of
Section 501 of the Code, except where such failures, in the aggregate, would not
be reasonably likely to have a Material Adverse Effect.
(c) Each Title IV Plan is in compliance in all material respects with
applicable provisions of ERISA, the Code and other Requirements of Law except
for non-compliances that, in the aggregate, would not be reasonably likely to
have a Material Adverse Effect.
(d) There has been no, nor is there reasonably expected to occur, any
ERISA Event other than those that, in the aggregate, would not be reasonably
likely to have a Material Adverse Effect.
(e) Except to the extent set forth on Schedule 4.16 (List of Plans),
none of the Borrower, any of the Borrower's Subsidiaries or any ERISA Affiliate
would have any Withdrawal Liability as a result of a complete withdrawal as of
the date hereof from any Multiemployer Plan.
Section 4.17 Environmental Matters Except as disclosed in the
Borrower's SEC filings filed on or prior to September 30, 2002:
(a) The operations of the Borrower and each of its Subsidiaries have
been and are in compliance with all Environmental Laws, including obtaining and
complying with all required Permits required under or by Environmental Laws
(collectively, "Environmental Permits"), other than non-compliances that,
individually or in the aggregate, would not be reasonably likely to have a
Material Adverse Effect.
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(b) None of the Borrower or any of its Subsidiaries or any real
property currently or, to the knowledge of the Borrower, previously owned,
operated or leased by or for the Borrower or any of its Subsidiaries is subject
to any pending or, to the knowledge of the Borrower, threatened, claim, order,
agreement, notice of potential liability or is the subject of any pending or
threatened proceeding or governmental investigation under or pursuant to
Environmental Laws other than those that, individually or in the aggregate, are
not reasonably likely to have a Material Adverse Effect.
(c) Except as disclosed on Schedule 4.17 (Environmental Matters), none
of the real property owned or operated by the Borrower or any of its
Subsidiaries is a treatment, storage or disposal facility requiring a Permit
under the Resource Conservation and Recovery Act, 42 U.S.C. (S) 6901 et seq. and
the regulations thereunder.
(d) There are no facts, circumstances or conditions arising out of or
relating to the operations or ownership of the Borrower or of real property
owned, operated or leased by the Borrower or any of its Subsidiaries that are
not specifically included in the financial information furnished to the Lenders
other than those that, individually or in the aggregate, would not be reasonably
likely to have a Material Adverse Effect.
(e) As of the date hereof, no Environmental Lien has attached to any
property of the Borrower or any of its Material Subsidiaries and, to the
knowledge of the Borrower, no facts, circumstances or conditions exist that
could reasonably be expected to result in any such Lien attaching to any such
property.
(f) The Borrower and each of its Subsidiaries have made available to
the Lenders copies of all material environmental, health or safety audits,
studies, assessments, inspections, investigations or other environmental health
and safety reports relating to the operations of the Borrower or any of its
Subsidiaries or any real property of any of them that are in the possession,
custody or control of the Borrower or any of its Subsidiaries.
Section 4.18 Intellectual Property
The Borrower and its Subsidiaries own or license or otherwise have the
right to use all licenses, permits, patents, patent applications, trademarks,
trademark applications, service marks, trade names, copyrights, copyright
applications, franchises, authorizations and other intellectual property rights
(including all Intellectual Property as defined in the Bank Security Agreement)
that are necessary for the operations of their respective businesses, except
where such failure would not be reasonably likely to have a Material Adverse
Effect. To the Borrower's actual knowledge, no slogan or other advertising
device, product, process, method, substance, part or component, or other
material now employed, or now contemplated to be employed, by the Borrower or
any of its Subsidiaries infringes upon or conflicts with any valid and
enforceable intellectual property rights owned by any other Person, except where
such infringement or conflict would not be reasonably likely to have a Material
Adverse Effect.
Section 4.19 Title; Real Property
(a) Each of the Borrower and its Subsidiary Guarantors has insurable
title to, or valid leasehold interests in, all real property and good title to
all personal property, in each case that is purported to be owned or leased by
it, including those reflected on the most recent Financial Statements delivered
by the Borrower, and none of such properties and assets is subject to any Lien,
except Liens permitted under Section 8.2 (Liens, Etc.). The Borrower and the
Subsidiary Guarantors have received all deeds, assignments, waivers, consents,
non-disturbance and recognition or similar agreements, bills of sale and other
documents, and have duly effected all recordings, filings and other actions
necessary to
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establish, protect and perfect the Borrower's and such Subsidiary Guarantors'
right, title and interest in and to all such property, except where the failure
to do so would not be reasonably likely to have a Material Adverse Effect.
(b) All Permits necessary for the conduct of the business in all
material respects as presently conducted or all Permits required to have been
issued or appropriate to enable all real property owned or leased by the
Borrower or any of its Subsidiaries to be lawfully occupied and used for all of
the purposes for which they are currently occupied and used have been lawfully
issued and are in full force and effect, other than those that, in the
aggregate, would not be reasonably likely to have a Material Adverse Effect.
(c) None of the Borrower or any of its Subsidiaries has received any
notice, or has any knowledge, of any pending condemnation proceeding affecting
any real property owned or leased by the Borrower or any of its Subsidiaries or
any part thereof, except those that, in the aggregate, would not be reasonably
likely to have a Material Adverse Effect.
Section 4.20 Indenture and Senior Secured Notes
(a) The execution, delivery and performance by each Loan Party of the
Indenture and the Senior Secured Notes, as applicable, and the consummation of
the transactions contemplated thereby by such Loan Party:
(i) are within such Loan Party's respective corporate, limited
liability company, partnership or other powers;
(ii) have been duly authorized by all necessary corporate or other
action, including the consent of stockholders where required;
(iii) do not and will not (A) contravene or violate any Loan
Party's or any of its Subsidiaries' respective Constituent Documents, (B)
violate any other Requirement of Law applicable to any Loan Party, or any
order or decree of any Governmental Authority or arbitrator, (C) conflict
with or result in the breach of, constitute a default under, or result in
or permit the termination or acceleration of, any Contractual Obligation
of any Loan Party or any of its Subsidiaries, except for those that, in
the aggregate, would not be reasonably likely to have a Material Adverse
Effect or (D) result in the creation or imposition of any Lien upon any
property of any Loan Party or any of its Subsidiaries; and
(iv) do not require the consent of, authorization by, approval of,
notice to, or filing or registration with, any Governmental Authority or
any other Person, other than those that (A) will have been obtained at the
Closing Date, each of which will be in full force and effect on the
Closing Date, none of which will on the Closing Date impose materially
adverse conditions upon the exercise of control by the Borrower over any
of its Subsidiaries and (B) in the aggregate, if not obtained, would not
be reasonably likely to have a Material Adverse Effect.
(b) Each of the Indenture and the Senior Secured Notes has been or at
the Closing Date will have been duly executed and delivered by each Loan Party
party thereto and at the Closing Date will be the legal, valid and binding
obligation of each Loan Party party thereto, enforceable against such Loan Party
in accordance with its terms.
Section 4.21 Deposit Accounts; Securities Accounts. The only Deposit
Accounts or Securities Accounts maintained by the Borrower or any of the
Subsidiary Guarantors on the date hereof
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are those listed on Schedule 4.21 (Deposit Accounts; Securities Accounts), which
sets forth such information separately for each such Loan Party.
ARTICLE V
Financial Covenants
The Borrower agrees with the Lenders and the Administrative Agent to
each of the following as long as any Obligation or any Commitment remains
outstanding and, in each case, unless the Requisite Lenders otherwise consent in
writing:
Section 5.1 Maximum Leverage Ratio
The Borrower shall maintain, on each day of each Fiscal Quarter set
forth below, a Leverage Ratio of not more than the maximum ratio set forth below
opposite such Fiscal Quarter:
-------------------------------------------------------------------
Fiscal Quarters Ending Maximum Leverage Ratio
-------------------------------------------------------------------
December 31, 2002 through March 31, 2003 4.95 to 1
-------------------------------------------------------------------
June 30, 2003 4.75 to 1
-------------------------------------------------------------------
September 30, 2003 4.50 to 1
-------------------------------------------------------------------
December 31, 2003 through March 31, 2004 4.25 to 1
-------------------------------------------------------------------
June 30, 2004 through March 31, 2005 3.75 to 1
-------------------------------------------------------------------
June 30, 2005 through March 31, 2006 3.25 to 1
-------------------------------------------------------------------
June 30, 2006 through the Term Loan 3.00 to 1
Maturity Date
-------------------------------------------------------------------
Section 5.2 Minimum Interest Coverage Ratio
The Borrower shall maintain an Interest Coverage Ratio, as
determined as of the last day of each Fiscal Quarter set forth below, for the
four Fiscal Quarters ending on such day, of at least the minimum ratio set forth
below opposite such Fiscal Quarter:
-------------------------------------------------------------------
Fiscal Quarters Ending Minimum Interest Coverage
Ratio
-------------------------------------------------------------------
December 31, 2002 through December 2.50 to 1
31, 2003
-------------------------------------------------------------------
March 31, 2004 2.75 to 1
-------------------------------------------------------------------
June 30, 2004 through December 31, 3.00 to 1
2004
-------------------------------------------------------------------
March 31, 2005 through December 31, 3.25 to 1
2005
-------------------------------------------------------------------
March 31, 2006 through December 31, 3.50 to 1
2006
-------------------------------------------------------------------
March 31, 2007 through the Term Loan 3.75 to 1
Maturity Date
-------------------------------------------------------------------
Section 5.3 Maintenance of Net Worth
The Borrower shall maintain at all times a Net Worth of not less than
an amount equal to the sum of (i) $350,000,000 plus (ii) 50% of Consolidated Net
Income (to the extent such amount is a positive number) for each Fiscal Quarter
ending after June 30, 2002.
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Section 5.4 Capital Expenditures
(a) The Borrower shall not make or incur, or permit to be made or
incurred, Capital Expenditures during each of the Fiscal Years set forth below,
in the aggregate, in excess of the maximum amount set forth below for such
Fiscal Year:
--------------------------------------------------
FIscal Year Maximum Capital
Expenditures
--------------------------------------------------
2002 $ 90,000,000
--------------------------------------------------
2003 $110,000,000
--------------------------------------------------
2004 $120,000,000
--------------------------------------------------
2005 $120,000,000
--------------------------------------------------
2006 $120,000,000
--------------------------------------------------
provided, however, that to the extent that actual Capital Expenditures for any
such Fiscal Year shall be less than the maximum amount set forth above for such
Fiscal Year (without giving effect to the carryover permitted by this proviso),
75% of the difference between said stated maximum amount and such actual Capital
Expenditures shall, in addition, be available for Capital Expenditures in the
next succeeding Fiscal Year.
(b) At any time a Permitted Acquisition is consummated, the relevant
amount determined in accordance with the preceding clause (a) in respect of the
Fiscal Year in which such acquisition is consummated shall be deemed
automatically adjusted on a prospective basis by increasing such amount by an
amount equal to the product of (i) an amount equal to 5% of the revenues of the
business or entity being acquired for the last twelve (12) months for which
financial statements are available prior to the date of consummation of such
Permitted Acquisition, and (ii) a fraction, the numerator of which is the number
of days remaining in the Fiscal Year during which the acquisition was
consummated and the denominator of which is 365 or 366, as the case may be. In
respect of subsequent Fiscal Years, the amount determined in accordance with the
preceding clause (a) shall be increased by the amount specified in clause (i) of
the preceding sentence.
ARTICLE VI
REPORTING COVENANTS
The Borrower agrees with the Lenders and the Administrative Agent to
each of the following, as long as any Obligation or any Commitment remains
outstanding and, in each case, unless the Requisite Lenders otherwise consent in
writing:
Section 6.1 Financial Statements
The Borrower shall furnish to the Administrative Agent (with sufficient
copies for each of the Lenders) each of the following:
(a) Quarterly Reports. Within 45 days after the end of each Fiscal
Quarter of each Fiscal Year, financial information regarding the Borrower and
its Subsidiaries consisting of Consolidated unaudited balance sheets as of the
close of such quarter and the related statements of income and cash flow for
such quarter and that portion of the Fiscal Year ending as of the close of such
quarter, setting forth in comparative form the figures for the corresponding
period in the prior year, in each case certified by a Responsible Officer of the
Borrower as fairly presenting the Consolidated financial position of the
Borrower and its Subsidiaries as at the dates indicated and the results of their
operations and cash flow for
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the periods indicated in accordance with GAAP (subject to the absence of
footnote disclosure and normal year-end audit adjustments).
(b) Annual Reports. Within 90 days after the end of each Fiscal Year,
financial information regarding the Borrower and its Subsidiaries consisting of
Consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as of the end of such year and related statements of income and
cash flows of the Borrower and its Subsidiaries for such Fiscal Year, all
prepared in conformity with GAAP and certified, in the case of such Consolidated
Financial Statements, without qualification as to the scope of the audit by the
Borrower's Accountants, together with the report of such accounting firm stating
that (i) such Financial Statements fairly present the Consolidated financial
position of the Borrower and its Subsidiaries as at the dates indicated and the
results of their operations and cash flow for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years (except for
changes with which the Borrower's Accountants shall concur and that shall have
been disclosed in the notes to the Financial Statements) and (ii) the
examination by the Borrower's Accountants in connection with such Consolidated
Financial Statements has been made in accordance with generally accepted
auditing standards.
(c) Compliance Certificate. Together with each delivery of any
financial statement pursuant to clause (a) or (b) above, a certificate of a
Responsible Officer of the Borrower (each, a "Compliance Certificate") (i)
showing in reasonable detail the calculations used in determining the Leverage
Ratio (for purposes of determining the Applicable Margin and the Applicable
Unused Commitment Fee Rate) and demonstrating compliance with each of the
financial covenants contained in Article V (Financial Covenants) that is tested
on a quarterly basis, (ii) stating that no Default or Event of Default has
occurred and is continuing or, if a Default or an Event of Default has occurred
and is continuing, stating the nature thereof and the action that the Borrower
proposes to take with respect thereto and (iii) setting forth, with respect to
each Foreign Subsidiary, (A) the aggregate amount available, (B) the aggregate
amount of commitments, if any, and (C) the aggregate principal amount
outstanding under all Foreign Credit Lines as of such date.
(d) Corporate Chart and Other Collateral Updates. To the extent that
there has been any change in the following requested information since the date
of the last delivery of the same by the Borrower, or as otherwise requested by
the Administrative Agent, on or before each date on or before which Financial
Statements are required to be delivered pursuant to clause (a) or (b) above, (i)
a corporate organizational chart or other equivalent document, current as of the
date of receipt of such chart by the Administrative Agent and, if later, such
date for the delivery of Financial Statements, in form and substance reasonably
acceptable to the Administrative Agent and certified as true, correct and
complete by a Responsible Officer of the Borrower, setting forth, for the
Borrower and for each Subsidiary Guarantor that is subject to Section 7.11
(Additional Collateral and Guaranties), (A) the full legal name of such Person
(and any trade name, fictitious name or other name such Person may have had or
operated under), (B) the jurisdiction of organization and organizational number
(if any) of such Person, (C) the location of such Person's chief executive
office (or sole place of business) and (D) the number of shares of each class of
such Person's Stock authorized (if applicable), the number outstanding as of the
date of delivery, and the number and percentage of the outstanding shares of
each such class owned (directly or indirectly) by any Loan Party and (ii) a
certificate of a Responsible Officer of the Borrower in form and substance
satisfactory to the Administrative Agent that all certificates, statements,
updates and other documents (including updated schedules) required to be
delivered pursuant to the Pledge and Security Agreements by any Loan Party in
the preceding Fiscal Quarter have been delivered thereunder. The reporting
requirements set forth in this clause (d) are in addition to, and are not
intended to and shall not replace, relax or otherwise modify, any obligation of
any Loan Party under any Loan Document (including other notice or reporting
requirements). Compliance with the reporting obligations in this clause (d)
shall not, by itself, operate to update any Schedule hereto or any schedule to
any other Loan
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Document and shall not cure, or otherwise modify in any way, any failure to
comply with any covenant, or any breach of any representation or warranty,
contained in any Loan Document or any other Default or Event of Default.
(e) Business Plan. Not later than 60 days after the beginning of each
Fiscal Year, (i) the annual business plan of the Borrower for such Fiscal Year
approved by the Board of Directors of the Borrower, (ii) forecasts prepared by
management of the Borrower for each of the succeeding Fiscal Years through the
Fiscal Year in which the Term Loan Maturity Date is scheduled to occur,
including, in each instance described in clause (ii) above, (x) a projected
year-end Consolidated balance sheet and income statement and statement of cash
flows and (y) a statement of all of the material assumptions on which such
forecasts are based, and (iii) the year-end estimate of the Borrower's reserves
for Environmental Liabilities and Costs. All such information shall be prepared
in a format similar to the format required for the preparation of financial
statements in accordance with GAAP.
(f) Management Letters, Etc. Within five Business Days after receipt
thereof by any Loan Party, copies of each management letter, exception report or
similar letter or report received by such Loan Party from its independent
certified public accountants (including the Borrower's Accountants).
(g) Intercompany Loan Balances. Together with each delivery of any
financial statement pursuant to clause (a) above, a summary of the outstanding
balance of all intercompany Indebtedness as of the last day of the fiscal
quarter covered by such financial statement, certified by a Responsible Officer.
(h) Consolidated Net Tangible Assets. Concurrently with the delivery
of any financial statements as at the end of any fiscal period pursuant to
clauses (a) or (b) above of this Section 6.1, a calculation, which calculation
shall be certified by a Responsible Officer of the Borrower, of "Consolidated
Net Tangible Assets" under and as defined in (x) each of the indentures
governing the Existing Public Debt and (y) the Indenture, setting forth the
aggregate amount of the Secured Obligations that may be secured by property of
the Borrower and its Subsidiaries without requiring that such security be shared
equally and ratably with the security issued under such indentures and the
Indenture.
Section 6.2 Default Notices
As soon as practicable, and in any event within five Business Days
after a Responsible Officer of any Loan Party has actual knowledge of the
existence of any Default, Event of Default or other event having had a Material
Adverse Effect or having any reasonable likelihood of causing or resulting in a
Material Adverse Change, the Borrower shall give the Administrative Agent notice
specifying the nature of such Default or Event of Default or other event,
including the anticipated effect thereof, which notice, if given by telephone,
shall be promptly confirmed in writing on the next Business Day.
Section 6.3 Litigation
Promptly after the commencement thereof, the Borrower shall give the
Administrative Agent written notice of the commencement of all actions, suits
and proceedings before any domestic or foreign Governmental Authority or
arbitrator, affecting the Borrower or any of its Subsidiaries that (i) seeks
injunctive or similar relief that, if granted, would be reasonably likely to
have a Material Adverse Effect or (ii) in the reasonable judgment of the
Borrower or such Subsidiary, exposes the Borrower or such Subsidiary to
liability that, if adversely determined, would be reasonably likely to have a
Material Adverse Effect.
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Section 6.4 Asset Sales
At least five (5) Business Days prior to any Asset Sale permitted by
Section 8.4(h) (Sale of Assets) anticipated to generate in excess of $5,000,000
(or its Dollar Equivalent) in Net Cash Proceeds, the Borrower shall send the
Administrative Agent a notice (a) describing such Asset Sale or the nature and
material terms and conditions of such transaction and (b) stating the estimated
Net Cash Proceeds anticipated to be received by the Borrower or any of its
Subsidiaries.
Section 6.5 Notices under Indentures and Senior Secured Notes
Promptly after the sending or filing thereof, the Borrower shall send
the Administrative Agent copies of all material notices, certificates or reports
delivered pursuant to, or in connection with, the Indenture, the Senior Secured
Notes or any indenture governing the Existing Public Debt.
Section 6.6 SEC Filings; Press Releases
Promptly after the sending or filing thereof, the Borrower shall send
the Administrative Agent copies, electronic or otherwise, of (a) all reports
that the Borrower sends to its security holders generally, (b) all reports and
registration statements that the Borrower or any of its Subsidiaries files with
the SEC or any national or foreign securities exchange or the National
Association of Securities Dealers, Inc., (c) all press releases and (d) all
other statements concerning material changes or developments in the business of
such Loan Party made available by any Loan Party to the public or any other
creditor.
Section 6.7 Labor Relations
Promptly after becoming aware of the same, the Borrower shall give the
Administrative Agent written notice of (a) any material labor dispute to which
the Borrower or any of its Subsidiaries is or may become a party, including any
strikes, lockouts or other disputes relating to any of such Person's plants and
other facilities, and (b) any Worker Adjustment and Retraining Notification Act
or related liability incurred with respect to the closing of any plant or other
facility of any such Person.
Section 6.8 Tax Returns
Upon the request of any Lender, through the Administrative Agent, the
Borrower shall provide copies of all federal, state, local and foreign tax
returns and reports filed by the Borrower or any of its Subsidiaries in respect
of taxes measured by income (excluding sales, use and like taxes).
Section 6.9 Insurance
As soon as is practicable and in any event within 90 days after the end
of each Fiscal Year, the Borrower shall furnish the Administrative Agent (in
sufficient copies for each of the Lenders) with (a) a report in form and
substance satisfactory to the Administrative Agent and the Lenders outlining all
material insurance coverage maintained as of the date of such report by the
Borrower and its Subsidiaries and the duration of such coverage and (b) a
certificate of a Responsible Officer of the Borrower stating that all premiums
then due and payable with respect to such coverage have been paid and confirming
that the Administrative Agent and the Collateral Trustee has been named, to the
extent required by the Loan Documents, as loss payee or additional insured, as
applicable.
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Section 6.10 ERISA Matters
The Borrower shall furnish the Administrative Agent (with sufficient
copies for each of the Lenders) each of the following:
(a) promptly and in any event within 30 days after the Borrower, any
of its Subsidiaries or any ERISA Affiliate knows or has reason to know that any
ERISA Event has occurred, written notice describing such event;
(b) promptly and in any event within 10 days after the Borrower, any
of its Subsidiaries or any ERISA Affiliate knows or has reason to know that a
request for a minimum funding waiver under Section 412 of the Code has been
filed with respect to any Title IV Plan or Multiemployer Plan, a written
statement of a Responsible Officer of the Borrower describing such ERISA Event
or waiver request and the action, if any, the Borrower, its Subsidiaries and
ERISA Affiliates propose to take with respect thereto and a copy of any notice
filed with the PBGC or the IRS pertaining thereto; and
(c) simultaneously with the date that the Borrower, any of its
Subsidiaries or any ERISA Affiliate files a notice of intent to terminate any
Title IV Plan, if such termination would require material additional
contributions in order to be considered a standard termination within the
meaning of Section 4041(b) of ERISA, a copy of each notice.
Section 6.11 Environmental Matters
(a) The Borrower shall provide the Administrative Agent promptly and
in any event within 10 days after the Borrower or any Subsidiary obtains
knowledge of any of the following, written notice of each of the following (but
only to the extent that any of the following is reasonably likely to result in
any unbudgeted Environmental Liabilities and Costs to the Borrower or any of its
Subsidiaries in excess of $2,500,000):
(i) that any Loan Party is or may be liable to any Person as a
result of a Release or threatened Release, notice or knowledge of a
violation of or potential liability under Environmental Law, or the
commencement of any judicial or administrative proceeding or investigation
alleging a violation of or liability under any Environmental Law that could
result in the Borrower incurring material unbudgeted Environmental
Liabilities and Costs in any Fiscal Year;
(ii) the receipt by any Loan Party of notification that any real
or personal property of such Loan Party is or is reasonably likely to be
subject to any Environmental Lien; and
(iii) any action by any Loan Party or any of its Subsidiaries or
any change in Environmental Laws that, in the aggregate, have a reasonable
likelihood of requiring the Loan Parties to obtain additional material
Environmental Permits or make additional capital improvements to obtain
compliance with Environmental Laws that, in the aggregate, would subject
the Loan Parties to material unbudgeted Environmental Liabilities and Costs
in any Fiscal Year.
(b) Upon written request by the Administrative Agent, the Borrower
shall provide a report providing an update of the status of any environmental,
health or safety compliance, hazard or liability issue identified in any notice
or report delivered pursuant to this Agreement or in the Borrower's SEC filings
or if the Administrative Agent reasonably believes that there exists undisclosed
conditions
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that could result in any Loan Party incurring material unbudgeted Environmental
Liabilities and Costs; provided that the Administrative Agent shall make such
request no more often than annually absent a continuing Event of Default.
(c) The Borrower shall provide notice to the Administrative Agent of
any adjustment to the year-end estimate of the Borrower's reserves for
Environmental Liabilities and Costs provided pursuant to Section 6.1(e)(iii)
that at any time reflects, in the aggregate, an increase of ten percent (10%) or
more in the Borrower's previous reserves for Environmental Liabilities and
Costs.
Section 6.12 Other Information
The Borrower shall provide the Administrative Agent with such other
information respecting the business, properties, condition, financial or
otherwise, or operations of the Borrower or any of its Subsidiaries as the
Administrative Agent or any Lender through the Administrative Agent may from
time to time reasonably request.
ARTICLE VII
AFFIRMATIVE COVENANTS
The Borrower agrees with the Lenders and the Administrative Agent to
each of the following, as long as any Obligation or any Commitment remains
outstanding and, in each case, unless the Requisite Lenders otherwise consent in
writing:
Section 7.1 Preservation of Corporate Existence, Etc.
The Borrower shall, and shall cause each of its Subsidiaries to,
preserve and maintain its legal existence, rights (charter and statutory) and
franchises, except as permitted by Sections 8.3 (Investments), 8.4 (Sale of
Assets) and 8.7 (Restriction on Fundamental Changes; Permitted Acquisitions).
Section 7.2 Compliance with Laws, Etc.
The Borrower shall, and shall cause each of its Subsidiaries to, comply
with all applicable Requirements of Law, Contractual Obligations and Permits,
including ERISA and environmental laws, except where the failure so to comply
would not, in the aggregate, be reasonably likely to have a Material Adverse
Effect.
Section 7.3 Conduct of Business
The Borrower shall, and shall cause each of its Subsidiaries to, (a)
conduct its business in the ordinary course consistent with past practice and
(b) use its reasonable efforts, in the ordinary course and consistent with past
practice, to preserve its business and the goodwill and business of the
customers, advertisers, suppliers and others having business relations with the
Borrower or any of its Subsidiaries, except in each case where the failure to
comply with the covenants in each of clauses (a) and (b) above would not, in the
aggregate, be reasonably likely to have a Material Adverse Effect.
Section 7.4 Payment of Taxes, Etc.
The Borrower shall, and shall cause each of its Subsidiaries to, pay
and discharge before the same shall become delinquent, all lawful governmental
claims, taxes, assessments, charges and levies,
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except where contested in good faith, by proper proceedings and adequate
reserves therefor have been established on the books of the Borrower or the
appropriate Subsidiary in conformity with GAAP.
Section 7.5 Maintenance of Insurance
The Borrower shall (a) maintain for, itself, and cause to be maintained
for each of its Subsidiaries, insurance with responsible and reputable insurance
companies or associations in such amounts (subject to customary retentions and
deductibles) and covering such risks as is usually carried by companies engaged
in similar businesses and owning similar properties in the same general areas in
which the Borrower or such Subsidiary operates and, in any event, all insurance
required by any Collateral Documents and (b) cause all such insurance with
respect to the Borrower and its Domestic Subsidiaries to name the Administrative
Agent and the Collateral Trustee on behalf of the Secured Parties as additional
insured or loss payee, as appropriate, and to provide that no cancellation,
material addition in amount or material change in coverage shall be effective
until after 30 days' written notice thereof to the Administrative Agent and the
Collateral Trustee.
Section 7.6 Access
The Borrower shall from time to time permit the Administrative Agent
and the Lenders, or any agents or representatives thereof, within two Business
Days after written notification of the same (except that during the continuance
of an Event of Default, no such notice shall be required) to (a) examine and
make copies of and abstracts from the records and books of account of the
Borrower and each of its Subsidiaries, (b) visit the properties of the Borrower
and each of its Subsidiaries, (c) discuss the affairs, finances and accounts of
the Borrower and each of its Subsidiaries with any of their respective officers
or directors and (d) communicate directly with any of its certified public
accountants (including the Borrower's Accountants). The Borrower shall authorize
its certified public accountants (including the Borrower's Accountants) to
disclose to the Administrative Agent or any Lender any and all financial
statements and other information of any kind, as the Administrative Agent or any
Lender reasonably requests from the Borrower and that such accountants may have
with respect to the business, financial condition, results of operations or
other affairs of the Borrower or any of its Subsidiaries.
Section 7.7 Keeping of Books
The Borrower shall, and shall cause each of its Subsidiaries to keep,
proper books of record and account, in which full and correct entries shall be
made in conformity with GAAP of all financial transactions and the assets and
business of the Borrower and each such Subsidiary.
Section 7.8 Maintenance of Properties, Etc.
The Borrower shall, and shall cause each of its Subsidiaries to,
maintain and preserve (a) in good working order and condition all of its
properties necessary in the conduct of its business, (b) all rights, permits,
licenses, approvals and privileges (including all Permits) used or useful or
necessary in the conduct of its business and (c) all registered patents,
trademarks, trade names, copyrights and service marks with respect to its
business, except where failure to so maintain and preserve the items set forth
in clauses (a), (b) and (c) above would not, in the aggregate, be reasonably
likely to have a Material Adverse Effect.
Section 7.9 Application of Proceeds
The Borrower shall use the entire amount of the proceeds of the Loans
as provided in Section 4.13 (Use of Proceeds).
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Section 7.10 Environmental
The Borrower shall, and shall cause all of its Subsidiaries to, comply
in all material respects with Environmental Laws and, without limiting the
foregoing, the Borrower shall, at its sole cost and expense, upon receipt of any
notification or otherwise obtaining knowledge of any Release or other event that
has any reasonable likelihood of the Borrower and its Subsidiaries incurring
material Environmental Liabilities and Costs, (a) conduct or pay for consultants
to conduct, such tests or assessments of environmental conditions at such
operations or properties as the Borrower deems appropriate under the
circumstances and (b) take such Remedial Action and undertake such investigation
or other action as required by Environmental Laws or as any Governmental
Authority requires or as is appropriate and consistent with good business
practice to address the Release or event and otherwise ensure compliance with
Environmental Laws.
Section 7.11 Additional Collateral and Guaranties
To the extent not delivered to the Administrative Agent on or before
the Closing Date, the Borrower agrees to do promptly each of the following:
(a) execute and deliver, and cause its Subsidiaries to execute and
deliver, to the Administrative Agent such supplements, amendments and joinders
to the Collateral Documents (or, in the case of any Subsidiary of the Borrower
that is not a Domestic Subsidiary, foreign pledges and security agreements) as
the Administrative Agent deems necessary or advisable in order to grant to the
Administrative Agent, for the benefit of the Secured Parties, a perfected
security interest in the Stock and Stock Equivalents and other debt Securities
of any Loan Party or Subsidiary thereof that are owned by such Loan Party or
such Subsidiary and requested to be pledged by the Administrative Agent;
provided, however, that, unless otherwise agreed by the Borrower and the
Administrative Agent, in no event shall such Loan Party or such Subsidiary be
required to pledge in excess of 65% of the outstanding Voting Stock of any
direct Subsidiary of any Borrower or Guarantor that is a Foreign Subsidiary
(other than a Foreign Subsidiary that is a Foreign Borrower) or, unless such
Stock is otherwise held by the Borrower or any other Guarantor, any of the Stock
of any Subsidiary of such direct Subsidiary; and provided, further, that, unless
otherwise agreed by the Borrower and the Administrative Agent, in no event shall
FMC Wyoming or any Subsidiary of any Loan Party that is not a Domestic
Subsidiary be required to guaranty the payment of the Obligations or grant a
security interest in any of its assets to secure the Secured Obligations;
(b) deliver to the Administrative Agent the certificates (if any)
representing such Stock and Stock Equivalents and other debt Securities,
together with (i) in the case of such certificated Stock and Stock Equivalents,
undated stock powers endorsed in blank and (ii) in the case of such certificated
debt Securities, endorsed in blank, in each case executed and delivered by a
Responsible Officer of such Loan Party or such Subsidiary thereof, as the case
may be;
(c) in the case of any Wholly-Owned Subsidiary of any Loan Party that
is a Domestic Subsidiary, cause such Wholly-Owned Subsidiary (i) to execute a
supplement, amendment or joinder or otherwise become a party to the U.S.
Subsidiary Guaranty and the applicable Collateral Documents and (ii) to take
such actions necessary or advisable to grant to the Administrative Agent for the
benefit of the Secured Parties a perfected security interest in the Collateral
described in the Collateral Documents with respect to such Wholly-Owned
Subsidiary, including the filing of UCC financing statements in such
jurisdictions as may be required by the Collateral Documents or by law or as may
be reasonably requested by the Administrative Agent and compliance with Section
7.13 (Real Property); and
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(d) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Agent.
Section 7.12 Non-Guarantor Subsidiaries
The Borrower shall require each Non-Guarantor Subsidiary, upon the
receipt by such Non-Guarantor Subsidiary of any Net Cash Proceeds on account of
any Asset Sale (other than as specified in clauses (a) through (g) of Section
8.4) in excess of $5,000,000 in the aggregate for all Asset Sales, to make a
payment, dividend or other distribution to the Borrower or any Guarantor in the
amount of such Net Cash Proceeds, but only to the extent (in the case of any Net
Cash Proceeds received by any Foreign Subsidiary) such payment, dividend or
distribution does not, in the reasonable judgment of the Borrower or such
Guarantor, as the case may be, cause materially adverse tax consequences to the
Borrower or the Guarantor that is the recipient thereof.
Section 7.13 Real Property
(a) If, at any time, any Domestic Subsidiary acquires a fee interest
in any Material Real Property;
(i) at least 20 days prior to the closing of such acquisition,
the Borrower shall provide the Administrative Agent written notice thereof; and
(ii) the Borrower shall cause the applicable Subsidiary to
promptly execute, deliver and record a first priority Mortgage (subject to Liens
permitted under this Agreement) in favor of the Administrative Agent or the
Collateral Trustee, as applicable, on behalf and for the ratable benefit of the
Secured Parties covering such Real Property (subordinate only to such Liens as
are permitted hereunder), in form and substance reasonably satisfactory to the
Administrative Agent, and provide the Administrative Agent with a Mortgagee's
Title Insurance Policy covering such Material Real Property in an amount equal
to the purchase price of such Material Real Property, a current ALTA survey
thereof, if available, local counsel opinions with respect thereto and such
other agreements, documents and instruments as the Administrative Agent deems
necessary or reasonably advisable, the same to be in form and substance
satisfactory to the Administrative Agent and to be subject only to Liens
permitted under Section 8.2.
Section 7.14 Restricted Cash Collateral Account
The Borrower shall, promptly after receipt of any funds previously
withdrawn from the Restricted Cash Collateral Account that were used to
collateralize any obligation described in the definition of Restricted Cash
Collateral Account, deposit such funds in the Restricted Cash Collateral
Account.
ARTICLE VIII
NEGATIVE COVENANTS
The Borrower agrees with the Lenders and the Administrative Agent to
each of the following, as long as any Obligation or any Commitment remains
outstanding and, in each case, unless the Requisite Lenders otherwise consent in
writing:
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Section 8.1 Indebtedness
The Borrower shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness except for the
following:
(a) the Secured Obligations;
(b) the Existing Indebtedness;
(c) the Foreign Credit Lines; provided that, at any time, the sum of
(i) the aggregate amount of commitments under the Foreign Credit Lines and (ii)
the aggregate principal amount outstanding under all uncommitted Foreign Credit
Lines shall not exceed $180,000,000; and provided further that the aggregate
amount of Permitted Vendor Indebtedness shall not exceed the amount set forth on
Schedule VI at any time;
(d) Guaranty Obligations incurred by the Borrower or any Guarantor in
respect of Indebtedness of the Borrower or any Guarantor that is permitted by
this Section 8.1;
(e) Capital Lease Obligations and purchase money Indebtedness incurred
by the Borrower or a Subsidiary of the Borrower to finance the acquisition of
fixed assets; provided, however, that the Capital Expenditure related thereto is
otherwise permitted by Section 5.4 (Capital Expenditures) and that the aggregate
outstanding principal amount of all such Capital Lease Obligations and purchase
money Indebtedness shall not exceed $25,000,000 at any time;
(f) Indebtedness arising from intercompany loans (i) from the Borrower
to any Guarantor, (ii) from any Guarantor to the Borrower or any other
Guarantor, (iii) from the Borrower or any Guarantor to any Non-Guarantor
Subsidiary, (iv) from any Non-Guarantor Subsidiary to any other Non-Guarantor
Subsidiary and (v) from a Non-Guarantor Subsidiary to the Borrower or a
Subsidiary Guarantor; provided, however, that, with respect to clause (iii), (A)
the Investment in the intercompany loan to such Subsidiary is permitted under
Section 8.3 (Investments), (B) all such intercompany loans shall not exceed an
amount greater than $50,000,000 in the aggregate and (C) the Administrative
Agent shall be granted a Lien on any such intercompany loans to the extent the
granting of such Lien is not prohibited by applicable local law; provided
further, however, that each such intercompany loan referred to in clause (iii)
shall be evidenced by an intercompany note and (A) to the extent requested by
the Administrative Agent, the Administrative Agent shall have a perfected
security interest in such intercompany note and any related intercompany
guaranties and (B) no Event of Default has occurred and is continuing at the
time such Indebtedness is incurred or would result therefrom;
(g) Indebtedness arising under any performance or surety bond entered
into in the ordinary course of business;
(h) Indebtedness of a Non-Guarantor Subsidiary in the form of
overdraft or other cash management lines, factoring arrangements or other
similar obligations;
(i) Hedging Contracts in the ordinary course of the Borrower's or a
Subsidiary of the Borrower's business;
(j) Indebtedness under the Senior Secured Notes;
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(k) Indebtedness not otherwise permitted under this Section 8.1;
provided, however, that the aggregate principal amount of all such Indebtedness
shall not exceed $25,000,000 at any time; and provided, further, however, that,
if such Indebtedness is secured, the Liens in connection therewith (i) shall not
exist on any of the Collateral and (ii) shall be permitted by Section 8.2; and
(l) Renewals, extensions, refinancings and refundings of Indebtedness
permitted by clauses (b), (c) or (i) above or this clause (l); provided,
however, that any such renewal, extension, refinancing or refunding is in an
aggregate principal amount not greater than the principal amount of, and is on
terms no less favorable to, the Borrower or the applicable Subsidiary, including
as to weighted average maturity, than the Indebtedness being renewed, extended,
refinanced or refunded (a "Permitted Refinancing"). Notwithstanding anything to
the contrary herein, "Permitted Refinancing" shall also include a one-time
extension of the Revolving Credit Facility ("Permitted Revolving Credit
Extension"); provided that the final maturity date thereof is a date on or
subsequent to the Term Loan Maturity Date.
Section 8.2 Liens, Etc.
The Borrower shall not, and shall not permit any of its Subsidiaries
to, create or suffer to exist, any Lien upon or with respect to any of their
respective properties or assets, whether now owned or hereafter acquired, or
assign, or permit any of its Subsidiaries to assign, any right to receive
income, except for the following:
(a) Liens created pursuant to the Loan Documents;
(b) Liens existing on the date of this Agreement and disclosed on
Schedule 8.2 (Existing Liens);
(c) Customary Permitted Liens of the Borrower and the Borrower's
Subsidiaries;
(d) purchase money Liens granted by the Borrower or any Subsidiary of
the Borrower (including Liens arising pursuant to Capital Leases and purchase
money mortgages or security interests securing Indebtedness representing or
financing the purchase price of equipment (or improvements to existing
equipment) acquired by the Borrower or any Subsidiary of the Borrower) securing
Indebtedness permitted under Section 8.1(e) (Indebtedness) and limited in each
case to the property purchased with the proceeds of such purchase money
Indebtedness or subject to such Capital Lease;
(e) any Lien securing the renewal, extension, refinancing or
refunding of any Indebtedness secured by any Lien permitted by clause (b) or (d)
above or this clause (e) without any change in the assets subject to such Lien
and to the extent such renewal, extension, refinancing or refunding is permitted
by Section 8.1 (Indebtedness);
(f) Liens in favor of lessors securing operating leases permitted
hereunder;
(g) Liens on any tangible or intangible asset or property of a
Foreign Subsidiary securing the Foreign Credit Lines of such Foreign Subsidiary
or a Permitted Refinancing thereof or securing Indebtedness permitted by Section
8.1(f);
(h) Liens in respect of the Senior Secured Notes and the Existing
Public Debt to the extent provided in the Collateral Documents;
(i) Liens in respect of the L/C Agreement;
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(j) Liens on funds permitted to be withdrawn from the Restricted Cash
Collateral Account by the terms of the Restricted Cash Collateral Account
Agreement; and
(k) Liens on assets that are not Collateral and that are not
otherwise permitted by the foregoing clauses of this Section 8.2 securing
obligations or other liabilities of any Subsidiary; provided, however, that the
aggregate outstanding amount of all such obligations and liabilities shall not
exceed $25,000,000 at any time.
Section 8.3 Investments
The Borrower shall not, nor shall it permit any of its Subsidiaries
to, directly or indirectly make or maintain any Investment except for the
following:
(a) Investments existing on the date of this Agreement and disclosed
on Schedule 8.3 (Existing Investments);
(b) Investments in cash and Cash Equivalents held in a Deposit
Account or a Control Account with respect to which the Administrative Agent for
the benefit of the Secured Parties has a first priority perfected Lien (subject
to Liens permitted under this Agreement);
(c) Investments in accounts, payment intangibles and chattel paper
(each as defined in the UCC), notes receivable and similar items arising or
acquired in the ordinary course of business consistent with the past practice of
the Borrower and its Subsidiaries;
(d) Investments received in settlement of amounts due to the Borrower
or any Subsidiary of the Borrower effected in the ordinary course of business;
(e) Investments by (i) the Borrower in any Guarantor or by any
Guarantor in the Borrower or any other Guarantor, (ii) the Borrower or any
Guarantor in connection with a Permitted Acquisition, (iii) a Non-Guarantor
Subsidiary in the Borrower or any other Subsidiary of the Borrower or (iv) the
Borrower or any Guarantor in a Non-Guarantor Subsidiary; provided, however, that
with respect to the Investments referred to in clause (iv) above, such
Investments (A) shall be in the form of intercompany loans and (B) shall be
permitted by Section 8.1; provided further, however, that (i) to the extent
requested by the Administrative Agent, the Administrative Agent has a perfected
security interest in the intercompany note evidencing such intercompany loan and
any related intercompany guaranties and (ii) no Event of Default has occurred
and is continuing at the time such Investment is made or would result therefrom;
(f) loans or advances to employees of the Borrower or any of its
Subsidiaries in the ordinary course of business as presently conducted other
than any loans or advances to any director or executive officer (or equivalent
thereof) that would be in violation of Section 402 of the Sarbanes-Oxley Act;
provided, however, that the aggregate principal amount of all such loans and
advances shall not exceed $2,000,000 at any time;
(g) Investments constituting Guaranty Obligations permitted by
Section 8.1 (Indebtedness);
(h) Investments consisting of payments on guarantees constituting
Permitted Vendor Indebtedness;
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(i) Investments not otherwise permitted hereby; provided, however,
that the aggregate outstanding amount of all such Investments shall not exceed
$25,000,000 at any time;
(j) Investments by the Borrower or any Guarantor in a Non-Guarantor
Subsidiary to the extent such Investments are required in order to comply with
"thin capitalization" rules of the Code, the capitalization regulations of any
other jurisdiction, exchange control regulations or any similar applicable law;
provided that all such Investments for which the Borrower or such Guarantor
shall not have received payment of an equivalent amount directly or indirectly
within 45 days of such Investment shall not, at any time, exceed an aggregate
amount equal to $25,000,000;
(k) Investments constituting (A) the Astaris Power Payments and (B)
the Astaris Secured Payments; and
(l) Investments constituting loans and advances to customers and
suppliers of the Borrower and its Subsidiaries made in the ordinary course of
business and consistent with past practice and in an aggregate amount not to
exceed $5,000,000 at any time.
Section 8.4 Sale of Assets
The Borrower shall not, and shall not permit any of its Subsidiaries
to, wind up, liquidate or dissolve its affairs, or sell, convey, transfer, lease
(including in a sale and leaseback transaction) or otherwise dispose of, all or
any part of their respective assets or any interest therein (including the sale
or factoring at maturity or collection of any accounts) to any Person, or permit
or suffer any other Person to acquire any interest in any of their respective
assets or, in the case of any Subsidiary, issue or sell any shares of such
Subsidiary's Stock or Stock Equivalent (any such disposition being an "Asset
Sale"), in each case whether domestic or foreign, except for the following:
(a) the sale or disposition of inventory in the ordinary course of
business;
(b) the sale or disposition of equipment that has become obsolete or
is replaced in the ordinary course of business; provided, however, that, other
than in respect of the sale of the Pocatello Equipment, the aggregate Fair
Market Value of all such equipment disposed of in any Fiscal Year shall not
exceed $5,000,000; and provided further, however, that the proceeds from any
sale in respect of the Pocatello Equipment shall be used solely to fund
obligations in respect of required Remedial Action;
(c) the lease or sublease of real property not constituting a sale
and leaseback, to the extent not otherwise prohibited by this Agreement;
(d) assignments and licenses of intellectual property of the Borrower
and its Subsidiaries in the ordinary course of business;
(e) any Like Kind Exchange;
(f) any transfer of assets by the Borrower or any of its Subsidiaries
as consideration for an Investment permitted by Section 8.3;
(g) any Asset Sale to the Borrower or any Guarantor (other than any
Principal Property (as defined in the indentures governing the Existing Public
Debt)); and
(h) as long as no Default or Event of Default is continuing or would
result therefrom, any other Asset Sale for Fair Market Value, payable in cash
upon such sale; provided, however, that with
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respect to any such Asset Sale pursuant to this clause (h), all Net Cash
Proceeds of such Asset Sale are applied as set forth in, and to the extent
required by, Section 2.8 (Mandatory Prepayments).
Section 8.5 Restricted Payments
The Borrower shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, declare, order, pay, make or set apart any sum for
any Restricted Payment except for the following:
(a) Restricted Payments by any Subsidiary of the Borrower to the
Borrower or any Guarantor;
(b) (i) dividends payable to the Borrower's or any of its
Subsidiary's joint venture partners on a pro rata basis in accordance with their
respective equity interests and (ii) dividends payable to the Borrower's joint
venture partners in respect of FMC Wyoming; provided that the Borrower shall
have received the share of dividends payable to it in accordance with the terms
of the FMC Wyoming Agreement;
(c) dividends and distributions declared and paid on the common Stock
of the Borrower and payable only in common Stock of the Borrower;
(d) Restricted Payments in the form of purchases of Stock of a
Subsidiary of the Borrower to the extent permitted by Section 8.3(i); and
(e) repurchases of Stock of the Borrower resulting from the cashless
exercise of stock options in accordance with the provisions of stock option
plans maintained by the Borrower and/or in connection with the contribution of
Stock to employee benefit plans maintained by the Borrower.
Section 8.6 Prepayment and Cancellation of Indebtedness
(a) The Borrower shall not, and shall not permit any of its
Subsidiaries to, cancel any claim or Indebtedness owed to any of them except in
the ordinary course of business consistent with past practice.
(b) The Borrower shall not, and shall not permit any of its
Subsidiaries to, prepay, redeem, purchase, defease or otherwise satisfy prior to
the scheduled maturity thereof in any manner, or make any payment in violation
of any subordination terms of, any Indebtedness, including the Senior Secured
Notes; provided, however, that the Borrower may (i) prepay the Obligations in
accordance with the terms of this Agreement, (ii) make regularly scheduled or
otherwise required repayments, repurchases or redemptions of Existing
Indebtedness, (iii) prepay Indebtedness under the Existing Credit Agreements and
the Securitization Facility with the proceeds of the initial Borrowings
hereunder, (iv) prepay any Indebtedness payable to the Borrower by any of its
Subsidiaries, (v) renew, extend, refinance and refund Indebtedness, so long as
such renewal, extension, refinancing or refunding is permitted under Section
8.1(l) (Indebtedness), (vi) redeem, repurchase or otherwise satisfy any Existing
Public Debt maturing prior to December 31, 2003 and (vii) consummate the
exchange offer for the Senior Secured Notes issued on the Closing Date in
accordance with the registration rights agreement dated the Closing Date among
the Borrower and the initial purchasers of the Senior Secured Notes.
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Section 8.7 Restriction on Fundamental Changes; Permitted
Acquisitions
Except in connection with a Permitted Acquisition, the Borrower shall
not, and shall not permit any of its Subsidiaries to, (a) merge with any Person
other than the Borrower or a Guarantor, (b) consolidate with any Person, (c)
acquire all or substantially all of the Stock or Stock Equivalents of any
Person, (d) acquire all or substantially all of the assets of any Person or all
or substantially all of the assets constituting the business of a division,
branch or other unit operation of any Person, (e) enter into any joint venture
or partnership with any Person or (f) acquire or create any Subsidiary unless,
after giving effect to such creation or acquisition, such Subsidiary is a
Wholly-Owned Subsidiary of the Borrower, the Borrower is in compliance with
Section 7.11 (Additional Collateral and Guaranties) and the Investment in such
Subsidiary is permitted under Section 8.3(c) (Investments).
Section 8.8 Change in Nature of Business
The Borrower shall not, and shall not permit any of its Subsidiaries
to, make any material change in the nature or conduct of FMC's Business, whether
in connection with a Permitted Acquisition or otherwise.
Section 8.9 Transactions with Affiliates
The Borrower shall not, and shall not permit any of its Subsidiaries
to, except as otherwise expressly permitted herein, do any of the following: (a)
make any Investment in an Affiliate of the Borrower that is not a Subsidiary of
the Borrower, (b) transfer, sell, lease, assign or otherwise dispose of any
asset to any Affiliate of the Borrower that is not a Subsidiary of the Borrower,
(c) merge into or consolidate with or purchase or acquire assets from any
Affiliate of the Borrower that is not a Subsidiary of the Borrower, (d) repay
any Indebtedness to any Affiliate of the Borrower that is not a Subsidiary of
the Borrower or (e) enter into any other transaction directly or indirectly with
or for the benefit of any Affiliate of the Borrower that is not a Guarantor
(including guaranties and assumptions of obligations of any such Affiliate),
except for (i) payments under contracts existing as of the Closing Date and
transactions in the ordinary course of business, in each case, on a basis no
less favorable to the Borrower or such Guarantor as would be obtained in a
comparable arm's length transaction with a Person not an Affiliate, including
with respect to the payment of management fees to such Affiliate, and (ii) the
payment of salaries and other director or employee compensation to officers or
directors of the Borrower or any of its Subsidiaries commensurate with current
compensation levels (including increases consistent with customary policies and
practices), customary advances and indemnities provided to directors and
officers and arrangements relating to the foregoing.
Section 8.10 Limitations on Restrictions on Subsidiary Distributions;
No New Negative Pledge
Except as set forth on Schedule 8.10 and in the Loan Documents, the
Indenture and any agreements governing Existing Indebtedness and the Foreign
Credit Lines, and pursuant to purchase money Indebtedness or Capital Lease
Obligations permitted by Section 8.1(b), (c) or (e) (which, in the case of
clause (e), prohibition or limitation shall only be effective against the assets
financed thereby), and any Permitted Refinancing, the Borrower shall not, and
shall not permit any of its Subsidiaries to, (a) agree to enter into or suffer
to exist or become effective any consensual encumbrance or restriction of any
kind on the ability of such Subsidiary to pay dividends or make any other
distribution or transfer of funds or assets or make loans or advances to or
other Investments in, or pay any Indebtedness owed to, the Borrower or any other
Subsidiary of the Borrower or (b) enter into or suffer to exist or become
effective any agreement prohibiting or limiting the ability of the Borrower or
any Subsidiary to create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned
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or hereafter acquired, to secure the Obligations, including any agreement
requiring any other Indebtedness or Contractual Obligation to be equally and
ratably secured with the Obligations.
Section 8.11 Modification of Constituent Documents
The Borrower shall not, nor shall it permit any of its Subsidiaries
to, change its capital structure (including in the terms of its outstanding
Stock) or otherwise amend its Constituent Documents, except for changes and
amendments that would not reasonably be expected to have a Material Adverse
Effect.
Section 8.12 Accounting Changes; Fiscal Year
The Borrower shall not, and shall not permit any of its Subsidiaries
to, change its (a) accounting treatment and reporting practices or tax reporting
treatment, except as required or permitted by GAAP, or (b) Fiscal Year.
Section 8.13 Margin Regulations
The Borrower shall not, and shall not permit any of its Subsidiaries
to, use all or any portion of the proceeds of any credit extended hereunder to
purchase or carry margin stock (within the meaning of Regulation U of the
Federal Reserve Board) in contravention of Regulation U of the Federal Reserve
Board.
Section 8.14 Operating Leases; Sale/Leasebacks
(a) The Borrower shall not, and shall not permit any of its
Subsidiaries to, become or remain liable as lessee or guarantor or other surety
with respect to any operating lease, unless the aggregate amount of all rents
paid or accrued under all such operating leases shall not exceed $25,000,000 in
any Fiscal Year.
(b) The Borrower shall not, and shall not permit any of its
Subsidiaries to, enter into any sale and leaseback transaction if, after giving
effect to such sale and leaseback transaction, the aggregate Fair Market Value
of all properties covered by sale and leaseback transactions would exceed
$50,000,000.
Section 8.15 No Speculative Transactions
The Borrower shall not, and shall not permit any of its Subsidiaries
to, enter into any Hedging Contract solely for speculative purposes or other
than for the purpose of hedging risks associated with the businesses of the
Borrower and its Subsidiaries, as done in the ordinary course of such
businesses.
Section 8.16 Compliance with ERISA
The Borrower shall not cause or permit to occur, and shall not permit
any of its Subsidiaries or ERISA Affiliates to cause or permit to occur, (a) an
event that could result in the imposition of a Lien under Section 412 of the
Code or Section 302 or 4068 of ERISA or (b) ERISA Events that would have a
Material Adverse Effect in the aggregate.
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Section 8.17 Transfer of Principal Properties
The Borrower shall not transfer to any of its Subsidiaries any
Principal Property (as such term is defined in the indentures governing the
Existing Public Debt) until after the Borrower shall have provided sufficient
documentation to the Administrative Agent and/or Collateral Trustee, as
applicable, and taken all necessary actions with respect to such Principal
Property in order to preserve the Lien on and security interest in such
Principal Property in favor of the Administrative Agent and/or Collateral
Trustee, as applicable, and the relative priority of such Lien.
Section 8.18 Debt Reserve Collateral Account and Restricted Cash
Collateral Account
The Borrower shall not withdraw funds from (i) the Debt Reserve
Collateral Account except for the purposes set forth in the Debt Reserve
Collateral Account Agreement, and (ii) the Restricted Cash Collateral Account
except for the purposes set forth in the Restricted Cash Collateral Account
Agreement.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.1 Events of Default
Each of the following events shall be an Event of Default:
(a) the Borrower shall fail to pay any principal of any Loan or any
Reimbursement Obligation when the same becomes due and payable; or
(b) the Borrower shall fail to pay any interest on any Loan, any fee
under any of the Loan Documents or any other Obligation (other than one referred
to in clause (a) above) and such non-payment continues for a period of three
Business Days after the due date therefor; or
(c) any representation or warranty made or deemed made by any Loan
Party in any Loan Document or by any Loan Party (or any of its officers) in
connection with any Loan Document shall prove to have been incorrect in any
material respect when made or deemed made; or
(d) any Loan Party shall fail to perform or observe (i) any term,
covenant or agreement contained in Article V (Financial Covenants), Section 6.1
(Financial Statements), 6.2 (Default Notices), 7.1 (Preservation of Corporate
Existence, Etc.), 7.9 (Application of Proceeds), 7.11 (Additional Collateral and
Guaranties), or 7.13 (Non-Guarantor Subsidiaries) or Article VIII (Negative
Covenants) or (ii) any other term, covenant or agreement contained in this
Agreement or in any other Loan Document if such failure under this clause (ii)
shall remain unremedied for 30 days after the earlier of (A) the date on which a
Responsible Officer of the Borrower becomes aware of such failure and (B) the
date on which written notice thereof shall have been given to the Borrower by
the Administrative Agent or any Lender; or
(e) (i) the Borrower or any of its Subsidiaries shall fail to make
any (A) payment on any Indebtedness of the Borrower or any such Subsidiary
(other than the Obligations) or any Guaranty Obligation in respect of
Indebtedness of any other Person, and, in each case, such failure relates to
Indebtedness having an aggregate outstanding principal amount of $25,000,000 or
more, (B) payments under the Foreign Credit Lines, and such failure relates to
Foreign Credit Lines having an aggregate
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outstanding principal amount of $25,000,000 or more, or (C) Astaris Secured
Payments, in each case when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise),
(ii) any other event shall occur or condition shall exist under any agreement or
instrument relating to any such Indebtedness, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity of
such Indebtedness or (iii) any such Indebtedness shall become or be declared to
be due and payable, or required to be prepaid or repurchased (other than by a
regularly scheduled required prepayment), prior to the stated maturity thereof;
or
(f) (i) the Borrower or any of its Material Subsidiaries shall
generally not pay its debts as such debts become due, shall admit in writing its
inability to pay its debts generally or shall make a general assignment for the
benefit of creditors, (ii) any proceeding shall be instituted by or against the
Borrower or any of its Material Subsidiaries seeking to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts, under any
Requirement of Law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a custodian, receiver, trustee or other similar official for it
or for any substantial part of its property; provided, however, that, in the
case of any such proceedings instituted against the Borrower or any of its
Material Subsidiaries (but not instituted by the Borrower or any of its Material
Subsidiaries), either such proceedings shall remain undismissed or unstayed for
a period of 30 days or more or any action sought in such proceedings shall occur
or (iii) the Borrower or any of its Material Subsidiaries shall take any
corporate action to authorize any action set forth in clauses (i) and (ii)
above; or
(g) one or more judgments or orders (or other similar process)
involving, in the case of money judgments, an aggregate amount in excess of
$25,000,000, to the extent not covered by insurance, shall be rendered against
one or more of any Loan Party and its Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 30 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(h) an ERISA Event shall occur and the amount of all liabilities and
deficiencies resulting therefrom, whether or not assessed, exceeds $25,000,000
in the aggregate; or
(i) any provision of any Collateral Document or any Guaranty after
delivery thereof pursuant to this Agreement or any other Loan Document shall for
any reason cease to be valid and binding on, or enforceable against, any Loan
Party party thereto, or any Loan Party shall so state in writing; or
(j) any Collateral Document shall for any reason fail or cease to
create a valid Lien on any Collateral purported to be covered thereby or, except
as permitted by the Loan Documents, such Lien shall fail or cease to be a
perfected Lien with the priority set forth in such Loan Document or any Loan
Party shall so state in writing; or
(k) there shall occur a "Default" or an "Event of Default" under and
as defined in the L/C Agreement;
(l) there shall occur any Change of Control;
(m) one or more of the Borrower and its Subsidiaries shall have
entered into one or more consent or settlement decrees or agreements or similar
arrangements with a Governmental Authority or one or more judgments, orders,
decrees or similar actions shall have been entered against one or more of the
Borrower and its Subsidiaries based on or arising from the violation of or
pursuant to any
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Environmental Law, or the generation, storage, transportation, treatment,
disposal or Release of any Contaminant and, in connection with all the
foregoing, the Borrower and its Subsidiaries are likely to incur Environmental
Liabilities and Costs in excess of $25,000,000 in the aggregate, net of amounts
available under insurance and contributions from third parties that were not
reflected in the Financial Statements delivered pursuant to Section 4.4
(Financial Statements) and the notes thereto.
Section 9.2 Remedies
During the continuance of any Event of Default, the Administrative
Agent (a) may, and, at the request of the Requisite Lenders, shall, by notice to
the Borrower declare that all or any portion of the Commitments be terminated,
whereupon the obligation of each Lender to make any Loan and each Issuer to
Issue any Letter of Credit shall immediately terminate and (b) may and, at the
request of the Requisite Lenders, shall, by notice to the Borrower, declare the
Loans, all interest thereon and all other amounts and Obligations payable under
this Agreement to be forthwith due and payable, whereupon the Loans, all such
interest and all such amounts and Obligations shall become and be forthwith due
and payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrower; provided, however,
that upon the occurrence of the Events of Default specified in Section 9.1(f)
(Events of Default), (x) the Commitments of each Lender to make Loans and the
commitments of each Lender and Issuer to Issue or participate in Letters of
Credit shall each automatically be terminated and (y) the Loans, all such
interest and all such amounts and Obligations shall automatically become and be
due and payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Borrower. In addition to the
remedies set forth above, the Administrative Agent may exercise any remedies
provided for by the Collateral Documents in accordance with the terms thereof or
any other remedies provided by applicable law.
Section 9.3 Actions in Respect of Letters of Credit
Upon the Revolving Credit Termination Date or as may be required by
Section 2.8(d) (Mandatory Prepayments) and at any time after the Revolving
Credit Termination Date when the aggregate amount of funds in the Cash
Collateral Account shall be less than the Letter of Credit Obligations, the
Borrower shall pay to the Administrative Agent in immediately available funds at
the Administrative Agent's office referred to in Section 11.8 (Notices, Etc.),
for deposit in a Cash Collateral Account, an amount equal to (a) 105% of the sum
of all outstanding Letter of Credit Obligations less (b) the aggregate amount of
funds in the Cash Collateral Account. The Administrative Agent may, from time to
time after funds are deposited in any Cash Collateral Account, apply funds then
held in such Cash Collateral Account to the payment of any amounts, in
accordance with Section 2.12(f) (Payments and Computations), as shall have
become or shall become due and payable by the Borrower to the Issuers or Lenders
in respect of the Letter of Credit Obligations. The Administrative Agent shall
promptly give written notice of any such application; provided, however, that
the failure to give such written notice shall not invalidate any such
application.
Section 9.4 Rescission
If at any time after termination of the Commitments or acceleration of
the maturity of the Loans, the Borrower shall pay all arrears of interest and
all payments on account of principal of the Loans and Reimbursement Obligations
that shall have become due otherwise than by acceleration (with interest on
principal and, to the extent permitted by law, on overdue interest, at the rates
specified herein) and all Events of Default and Defaults (other than non-payment
of principal of and accrued interest on the Loans due and payable solely by
virtue of acceleration) shall be remedied or waived pursuant to Section 11.1
(Amendments, Waivers, Etc.), then upon the written consent of the Requisite
Lenders and written notice to the Borrower, the termination of the Commitments
or the acceleration and their consequences may be
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rescinded and annulled; provided, however, that such action shall not affect any
subsequent Event of Default or Default or impair any right or remedy consequent
thereon. The provisions of the preceding sentence are intended merely to bind
the Lenders and the Issuers to a decision that may be made at the election of
the Requisite Lenders, and such provisions are not intended to benefit the
Borrower and do not give the Borrower the right to require the Lenders to
rescind or annul any acceleration hereunder, even if the conditions set forth
herein are met.
ARTICLE X
THE ADMINISTRATIVE AGENT
Section 10.1 Authorization and Action
(a) Each Lender and each Issuer hereby appoints CUSA as the
Administrative Agent hereunder and each Lender and each Issuer authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement and the other Loan Documents as are delegated
to the Administrative Agent under such agreements and to exercise such powers as
are reasonably incidental thereto. Without limiting the foregoing, each Lender
and each Issuer hereby authorizes the Administrative Agent to execute and
deliver, and to perform its obligations under, each of the Loan Documents to
which the Administrative Agent is a party, to exercise all rights, powers and
remedies that the Administrative Agent may have under such Loan Documents and,
in the case of the Collateral Documents, to act as agent for the Lenders,
Issuers and the other Secured Parties under such Collateral Documents.
(b) As to any matters not expressly provided for by this Agreement
and the other Loan Documents (including enforcement or collection), the
Administrative Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Requisite Lenders, and such instructions shall be binding upon all Lenders
and each Issuer; provided, however, that the Administrative Agent shall not be
required to take any action that (i) the Administrative Agent in good faith
believes exposes it to personal liability unless the Administrative Agent
receives an indemnification satisfactory to it from the Lenders and the Issuers
with respect to such action or (ii) is contrary to this Agreement or applicable
law. The Administrative Agent agrees to give to each Lender and each Issuer
prompt notice of each notice given to it by any Loan Party pursuant to the terms
of this Agreement or the other Loan Documents.
(c) In performing its functions and duties hereunder and under the
other Loan Documents, the Administrative Agent is acting solely on behalf of the
Lenders and the Issuers and its duties are entirely administrative in nature.
The Administrative Agent does not assume and shall not be deemed to have assumed
any obligation other than as expressly set forth herein and in the other Loan
Documents or any other relationship as the agent, fiduciary or trustee of or for
any Lender, Issuer or holder of any other Obligation. The Administrative Agent
may perform any of its duties under any Loan Document by or through its agents
or employees.
Section 10.2 Administrative Agent's Reliance, Etc.
None of the Administrative Agent, any of its Affiliates or any of
their respective directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it, him, her or them under or in
connection with this Agreement or the other Loan Documents, except for its, his,
her or their own gross negligence or willful misconduct. Without limiting the
foregoing, the Administrative Agent (a) may treat the payee of any Note as its
holder until such Note has been assigned
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in accordance with Section 11.2 (Assignments and Participations), (b) may rely
on the Register to the extent set forth in Section 11.2(c) (Assignments and
Participations), (c) may consult with legal counsel (including counsel to the
Borrower or any other Loan Party), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts, (d) makes no warranty or representation to any Lender or
Issuer and shall not be responsible to any Lender or Issuer for any statements,
warranties or representations made by or on behalf of the Borrower or any of its
Subsidiaries in or in connection with this Agreement or any other Loan Document,
(e) shall not have any duty to ascertain or to inquire either as to the
performance or observance of any term, covenant or condition of this Agreement
or any other Loan Document, as to the financial condition of any Loan Party or
as to the existence or possible existence of any Default or Event of Default,
(f) shall not be responsible to any Lender or Issuer for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the
attachment, perfection or priority of any Lien created or purported to be
created under or in connection with, this Agreement, any other Loan Document or
any other instrument or document furnished pursuant hereto or thereto and (g)
shall incur no liability under or in respect of this Agreement or any other Loan
Document by acting upon any notice, consent, certificate or other instrument or
writing (which writing may be a telecopy or electronic mail) or any telephone
message believed by it to be genuine and signed or sent by the proper party or
parties.
Section 10.3 The Administrative Agent Individually
With respect to its Ratable Portion, CUSA shall have and may exercise
the same rights and powers hereunder and is subject to the same obligations and
liabilities as and to the extent set forth herein for any other Lender. The
terms "Lenders", "Revolving Credit Lenders", "Term Loan Lenders", "Requisite
Lenders" and any similar terms shall, unless the context clearly otherwise
indicates, include, without limitation, the Administrative Agent in its
individual capacity as a Lender, a Revolving Credit Lender, Term Loan Lender or
as one of the Requisite Lenders. CUSA and its Affiliates may accept deposits
from, lend money to, and generally engage in any kind of banking, trust or other
business with, any Loan Party as if CUSA were not acting as the Administrative
Agent.
Section 10.4 Lender Credit Decision
Each Lender and each Issuer acknowledges that it shall, independently
and without reliance upon the Administrative Agent or any other Lender conduct
its own independent investigation of the financial condition and affairs of the
Borrower and each other Loan Party in connection with the making and continuance
of the Loans and with the issuance of the Letters of Credit. Each Lender and
each Issuer also acknowledges that it shall, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement and the
other Loan Documents.
Section 10.5 Indemnification
Each Lender agrees to indemnify the Administrative Agent and each of
its Affiliates, and each of their respective directors, officers, employees,
agents and advisors (to the extent not reimbursed by the Borrower), from and
against such Lender's aggregate Ratable Portion of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements (including fees, expenses and disbursements of
financial and legal advisors) of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against, the Administrative Agent or any of
its Affiliates, directors, officers, employees, agents and advisors in any way
relating to or arising out of this Agreement or the other Loan Documents or any
action taken or omitted by the Administrative Agent
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under this Agreement or the other Loan Documents; provided, however, that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's or such Affiliate's gross negligence
or willful misconduct. Without limiting the foregoing, each Lender agrees to
reimburse the Administrative Agent promptly upon demand for its ratable share of
any out-of-pocket expenses (including fees, expenses and disbursements of
financial and legal advisors) incurred by the Administrative Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of its rights or responsibilities
under, this Agreement or the other Loan Documents, to the extent that the
Administrative Agent is not reimbursed for such expenses by the Borrower or
another Loan Party.
Section 10.6 Successor Administrative Agent
The Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Requisite Lenders shall have the right to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Requisite Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving of notice of resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, selected from among the Lenders. In either case,
such appointment shall be subject to the prior written approval of the Borrower
(which approval may not be unreasonably withheld and shall not be required upon
the occurrence and during the continuance of an Event of Default). Upon the
acceptance of any appointment as Administrative Agent by a successor
Administrative Agent, such successor Administrative Agent shall succeed to, and
become vested with, all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under this Agreement and the other
Loan Documents. Prior to any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the retiring Administrative Agent shall take
such action as may be reasonably necessary to assign to the successor
Administrative Agent its rights as Administrative Agent under the Loan
Documents. After such resignation, the retiring Administrative Agent shall
continue to have the benefit of this Article X as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this Agreement
and the other Loan Documents.
Section 10.7 Concerning the Collateral and the Collateral Documents
(a) Each Lender and each Issuer agrees that any action taken by the
Administrative Agent or the Requisite Lenders (or, where required by the express
terms of this Agreement, a greater proportion of the Lenders) in accordance with
the provisions of this Agreement or of the other Loan Documents, and the
exercise by the Administrative Agent or the Requisite Lenders (or, where so
required, such greater proportion) of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders and the Issuers. Without limiting
the generality of the foregoing, the Administrative Agent shall have the sole
and exclusive right and authority to (i) act as the disbursing and collecting
agent for the Lenders and the Issuers with respect to all payments and
collections arising in connection herewith and with the Collateral Documents,
(ii) execute and deliver each Collateral Document and accept delivery of each
such agreement delivered by the Borrower or any of its Subsidiaries, (iii) act
as collateral agent for the Lenders and the Issuers for purposes of the
perfection of all security interests and Liens created by such agreements and
all other purposes stated therein; provided, however, that the Administrative
Agent hereby appoints, authorizes and directs each Lender and Issuer to act as
collateral sub-agent for the Administrative Agent, the Lenders and the Issuers
for purposes of the perfection of all security interests and Liens with respect
to the Borrower's and its Subsidiaries' respective Deposit Accounts maintained
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with, and cash and Cash Equivalents held by, such Lender or such Issuer, (iv)
manage, supervise and otherwise deal with the Collateral, (v) take such action
as is necessary or desirable to maintain the perfection and priority of the
security interests and Liens created or purported to be created by the
Collateral Documents and (vi) except as may be otherwise specifically restricted
by the terms hereof or of any other Loan Document, exercise all remedies given
to the Administrative Agent, the Lenders and the Issuers with respect to the
Collateral under the Loan Documents relating thereto, applicable law or
otherwise.
(b) Each of the Lenders and the Issuers hereby directs, in accordance
with the terms hereof and subject to the release provisions in the Bank Security
Agreement and the Collateral Trust Agreement, the Administrative Agent to
release (or, in the case of clause (ii) below, release or subordinate) any Lien
held by the Administrative Agent for the benefit of the Lenders and the Issuers
against any of the following:
(i) all of the Collateral, upon termination of the Commitments
and payment and satisfaction in full of all Loans, Reimbursement
Obligations and all other Obligations that the Administrative Agent has
been notified in writing are then due and payable (and, in respect of
contingent Letter of Credit Obligations, with respect to which cash
collateral has been deposited or a back-up letter of credit has been
issued, in either case on terms satisfactory to the Administrative Agent
and the applicable Issuers);
(ii) any assets that are subject to a Lien permitted by Section
8.2(d) or (e) (Liens, Etc.); and
(iii) any part of the Collateral sold or disposed of by a Loan
Party if such sale or disposition is permitted by this Agreement (or
permitted pursuant to a waiver or consent of a transaction otherwise
prohibited by this Agreement).
Each of the Lenders and the Issuers hereby directs the Administrative Agent to
execute and deliver or file such termination and partial release statements and
do such other things as are necessary to release Liens to be released pursuant
to this Section 10.7 promptly upon the effectiveness of any such release.
Section 10.8 Other Agent Responsibilities.
The Syndication Agents and the Arrangers, in such capacities, shall
have no duties or responsibilities hereunder except as specifically set forth in
this Agreement.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Amendments, Waivers, Etc.
(a) No amendment or waiver of any provision of this Agreement or any
other Loan Document nor consent to any departure by any Loan Party therefrom
shall in any event be effective unless the same shall be in writing and signed
by the Requisite Lenders (or by the Administrative Agent with the consent of the
Requisite Lenders) and, in the case of any amendment, by the Borrower, and then
any such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no amendment,
waiver or consent shall, unless in writing and signed by each Lender directly
affected thereby, in addition to the Requisite Lenders (or the Administrative
Agent with the consent thereof), do any of the following:
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(i) waive any condition specified in Section 3.1 (Conditions
Precedent to Initial Loans and Letters of Credit) or 3.2(b) (Conditions
Precedent to Each Loan and Letter of Credit), except with respect to a
condition based upon another provision hereof, the waiver of which requires
only the concurrence of the Requisite Lenders and, in the case of the
conditions specified in Section 3.1 (Conditions Precedent to Initial Loans
and Letters of Credit), subject to the provisions of Section 3.3
(Determinations of Initial Borrowing Conditions);
(ii) increase the Commitment of such Lender or subject such
Lender to any additional obligation (other than any Commitment Increase
pursuant to Section 2.1(c));
(iii) extend the scheduled final maturity of any Loan owing to
such Lender, or waive, reduce or postpone any scheduled date fixed for the
payment or reduction of principal of any such Loan (it being understood
that Section 2.8 (Mandatory Prepayments) does not provide for scheduled
dates fixed for payment) or for the reduction of such Lender's Commitment;
(iv) reduce the principal amount of any Loan or Reimbursement
Obligation owing to such Lender (other than by the payment or prepayment
thereof);
(v) reduce the rate of interest on any Loan or Reimbursement
Obligations outstanding to such Lender or any fee payable hereunder to such
Lender;
(vi) postpone any scheduled date fixed for payment of such
interest or fees owing to such Lender;
(vii) change the aggregate Ratable Portions of Lenders required
for any or all Lenders to take any action hereunder;
(viii) require additional consents to be obtained with respect to
assignments and participations;
(ix) release all or substantially all of the Collateral except
as provided in Section 10.7(b) (Concerning the Collateral and the
Collateral Documents) or release the Borrower from its payment obligation
to such Lender under this Agreement or the Notes owing to such Lender (if
any) or release any Guarantor from its obligations under any Guaranty
except in connection with the sale or other disposition of a Guarantor (or
all or substantially all of the assets thereof) permitted by this Agreement
(or permitted pursuant to a waiver or consent of a transaction otherwise
prohibited by this Agreement); or
(x) amend Section 10.7(b) (Concerning the Collateral and the
Collateral Documents), this Section 11.1 or any definition of the terms
"Requisite Lenders", "Requisite Term Loan Lenders", "Requisite Revolving
Credit Lenders" or "Ratable Portion";
and provided, further, that (x) any modification of the source or application of
payments to the Term Loans pursuant to Section 2.8 (Mandatory Prepayments) shall
require the consent of the Requisite Term Loan Lenders and any such modification
of the source or application of payments to the Revolving Loans pursuant to
Section 2.8 (Mandatory Prepayments) or the reduction of the Revolving Credit
Commitments pursuant to Section 2.5 (Reduction and Termination of the Revolving
Credit Commitments) shall require the consent of the Requisite Revolving Credit
Lenders, (y) no amendment, waiver or consent shall, unless in writing and signed
by any Special Purpose Vehicle that has been granted an option pursuant to
Section 11.2(f) (Assignments and Participations) affect the grant or nature of
such option or the right or
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duties of such Special Purpose Vehicle hereunder and (z) no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Administrative Agent under this Agreement or the other Loan
Documents.
(b) The Administrative Agent may, but shall have no obligation to,
with the written concurrence of any Lender, execute amendments, modifications,
waivers or consents on behalf of such Lender without requiring an executed
counterpart from such Lender. Any waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was given. No
notice to or demand on the Borrower in any case shall entitle the Borrower to
any other or further notice or demand in similar or other circumstances.
Section 11.2 Assignments and Participations
(a) Each Lender may sell, transfer, negotiate or assign to one or
more Eligible Assignees all or a portion of its rights and obligations hereunder
(including all of its rights and obligations with respect to the Term Loans, the
Revolving Loans and the Letters of Credit); provided, however, that (i)(A) if
any such assignment shall be of the assigning Lender's Revolving Credit
Outstandings and Revolving Credit Commitments, such assignment shall cover the
same percentage of such Lender's Revolving Credit Outstandings and Revolving
Credit Commitment and (B) if any such assignment shall be of the assigning
Lender's Term Loans and Term Loan Commitment, such assignment shall cover the
same percentage of such Lender's Term Loans and Term Loan Commitment, (ii) the
aggregate amount being assigned pursuant to each such assignment (determined as
of the date of the Assignment and Acceptance with respect to such assignment)
shall in no event (if less than the Assignor's entire interest) be less than (x)
in the case of any Revolving Loans, $5,000,000 or an integral multiple of
$1,000,000 in excess thereof, and (y) in the case of any Term Loan, $1,000,000
or an integral multiple of $500,000 in excess thereof, except, in either case,
(A) with the consent of the Borrower (except in respect of assignments by the
initial Term Loan Lenders) and the Administrative Agent (in each case such
consent not to be unreasonably withheld); or (B) if such assignment is being
made to a Lender or an Affiliate or Approved Fund of such Lender, and (iii) if
such Eligible Assignee is not, prior to the date of such assignment, a Lender or
an Affiliate or Approved Fund of a Lender, such assignment shall be subject to
the prior consent of the Administrative Agent and the Borrower (which consent
shall not be unreasonably withheld or delayed); and provided, further, that,
notwithstanding any other provision of this Section 11.2, the consent of the
Borrower shall not be required for any assignment occurring when any Event of
Default shall have occurred and be continuing. Any such assignment need not be
ratable as among the Term Loan Facility and the Revolving Credit Facility.
(b) The parties to each such assignment shall execute and deliver to
the Administrative Agent, for its acceptance and recording, an Assignment and
Acceptance, together with any Note (if the assigning Lender's Loans are
evidenced by a Note) subject to such assignment. Upon the execution, delivery,
acceptance and recording of any Assignment and Acceptance and, other than in
respect of assignments made pursuant to Section 2.16 (Substitution of Lenders)
and Section 11.1 (Amendments, Waivers, Etc.), the receipt by the Administrative
Agent from the assignee of an assignment fee in the amount of $3,500 from and
after the effective date specified in such Assignment and Acceptance, (i) the
assignee thereunder shall become a party hereto and, to the extent that rights
and obligations under the Loan Documents have been assigned to such assignee
pursuant to such Assignment and Acceptance, have the rights and obligations of a
Lender, and if such Lender were an Issuer, of such Issuer hereunder and
thereunder, and (ii) the assignor thereunder shall, to the extent that rights
and obligations under this Agreement have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights (except for those surviving the
payment in full of the Obligations) and be released from its obligations under
the Loan Documents, other than those relating to events or circumstances
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occurring prior to such assignment (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under the Loan Documents, such Lender shall cease to be a party
hereto).
(c) The Administrative Agent shall maintain at its address referred
to in Section 11.8 (Notices, Etc.) a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recording of the names
and addresses of the Lenders and the Commitments of and principal amount of the
Loans and Letter of Credit Obligations owing to each Lender from time to time
(the "Register"). Any assignment pursuant to this Section 11.2 shall not be
effective until such assignment is recorded in the Register. The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Loan Parties, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender for all purposes
of this Agreement. The Register shall be available for inspection by the
Borrower, the Administrative Agent or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(d) Notwithstanding anything to the contrary contained in clause (b)
above, the Loans (including the Notes evidencing such Loans) are registered
obligations and the right, title, and interest of the Lenders and their
assignees in and to such Loans shall be transferable only upon notation of such
transfer in the Register. A Note shall only evidence the Lender's or an
assignee's right title and interest in and to the related Loan, and in no event
is any such Note to be considered a bearer instrument or obligation. This
Section 11.2 shall be construed so that the Loans are at all times maintained in
"registered form" within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2)
of the Code and any related regulations (or any successor provisions of the Code
or such regulations). Solely for purposes of this and for tax purposes only, the
Administrative Agent shall act as the Borrower's agent for purposes of
maintaining such notations of transfer in the Register.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, the Administrative Agent shall, if such
Assignment and Acceptance has been completed, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall, if
requested by such assignee, execute and deliver to the Administrative Agent new
Notes to the order of such assignee in an amount equal to the Commitments and
Loans assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has surrendered any Note for exchange in connection with the
assignment and has retained Commitments or Loans hereunder, new Notes to the
order of the assigning Lender in an amount equal to the Commitments and Loans
retained by it hereunder. Such new Notes shall be dated the same date as the
surrendered Notes and be in substantially the form of Exhibit B-1 (Form of
Revolving Credit Note) or Exhibit B-2 (Form of Term Note), as applicable.
(f) In addition to the other assignment rights provided in this
Section 11.2, each Lender may (i) grant to a Special Purpose Vehicle the option
to make all or any part of any Loan that such Lender would otherwise be required
to make hereunder and the exercise of such option by any such Special Purpose
Vehicle and the making of Loans pursuant thereto shall satisfy (once and to the
extent that such Loans are made) the obligation of such Lender to make such
Loans thereunder, provided, however, that nothing herein shall constitute a
commitment or an offer to commit by such a Special Purpose Vehicle to make Loans
hereunder and no such Special Purpose Vehicle shall be liable for any indemnity
or other Obligation (other than the making of Loans for which such Special
Purpose Vehicle shall have exercised an option, and then only in accordance with
the relevant option agreement), and (ii) assign, as collateral or otherwise, any
of its rights under this Agreement, whether now owned or hereafter acquired
(including rights to payments of principal or interest on the Loans), to (x) any
Federal Reserve Bank pursuant to Regulation A of the Federal Reserve Board
without notice to or consent of the
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Borrower or the Administrative Agent, (y) any trustee for the benefit of the
holders of such Lender's Securities without notice to or consent of the
Administrative Agent or the Borrower and (z) to any Special Purpose Vehicle to
which such Lender has granted an option pursuant to clause (i) above; and
provided, further, that no such assignment or grant shall release such Lender
from any of its obligations hereunder except as expressly provided in clause (i)
above. Each party hereto acknowledges and agrees that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior debt of any such Special Purpose Vehicle, such party shall
not institute against, or join any other Person in instituting against, any
Special Purpose Vehicle that has been granted an option pursuant to this clause
(f) any bankruptcy, reorganization, insolvency or liquidation proceeding (such
agreement shall survive the payment in full of the Obligations).
(g) Each Lender may sell participations to one or more Persons in or
to all or a portion of its rights and obligations under the Loan Documents
(including all its rights and obligations with respect to the Term Loans,
Revolving Loans and Letters of Credit). The terms of such participation shall
not, in any event, require the participant's consent to any amendments, waivers
or other modifications of any provision of any Loan Documents, the consent to
any departure by any Loan Party therefrom, or to the exercising or refraining
from exercising any powers or rights such Lender may have under or in respect of
the Loan Documents (including the right to enforce the obligations of the Loan
Parties), except if any such amendment, waiver or other modification or consent
would (i) reduce the amount, or postpone any date fixed for, any amount (whether
of principal, interest or fees) payable to such participant under the Loan
Documents, to which such participant would otherwise be entitled under such
participation or (ii) result in the release of all or substantially all of the
Collateral other than in accordance with Section 10.7(b) (Concerning the
Collateral and the Collateral Documents). In the event of the sale of any
participation by any Lender, (w) such Lender's obligations under the Loan
Documents shall remain unchanged, (x) such Lender shall remain solely
responsible to the other parties for the performance of such obligations, (y)
such Lender shall remain the holder of such Obligations for all purposes of this
Agreement and (z) the Borrower, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. Each participant
shall be entitled to the benefits of Sections 2.14 (Capital Adequacy) and 2.15
(Taxes) and of Section 2.13(d) (Illegality) as if it were a Lender; provided,
however, that anything herein to the contrary notwithstanding, the Borrower
shall not, at any time, be obligated to make under Section 2.14 (Capital
Adequacy), 2.15 (Taxes) or 2.13(d) (Illegality) to the participants in the
rights and obligations of any Lender (together with such Lender) any payment in
excess of the amount the Borrower would have been obligated to pay to such
Lender in respect of such interest had such participation not been sold.
(h) Any Issuer may at any time assign its rights and obligations
hereunder to any other Lender by an instrument in form and substance
satisfactory to the Borrower, the Administrative Agent, such Issuer and such
Lender. If any Issuer ceases to be a Lender hereunder by virtue of any
assignment made pursuant to this Section 11.2, then, as of the effective date of
such cessation, such Issuer's obligations to Issue Letters of Credit pursuant to
Section 2.3 (Letters of Credit) shall terminate and such Issuer shall be an
Issuer hereunder only with respect to outstanding Letters of Credit issued prior
to such date.
Section 11.3 Costs and Expenses
(a) The Borrower agrees upon demand to pay, or reimburse the
Administrative Agent, the Syndication Agents and the Arrangers for, all of their
respective reasonable internal and external audit, legal, appraisal, valuation,
filing, document duplication and reproduction and investigation expenses and for
all other reasonable out-of-pocket costs and expenses of every type and nature
(including, without limitation, the reasonable fees, expenses and disbursements
of the Administrative
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Agent's counsel, Weil, Gotshal & Manges LLP and, to the extent related to
environmental and asbestos matters in connection with (x) this Agreement and the
other Loan Documents and the diligence performed in connection therewith and (y)
the syndication of the Commitments and the Loans hereunder, Cahill Gordon &
Reindel, local legal counsel, auditors, accountants, appraisers, printers,
insurance and environmental advisors, and other consultants and agents) incurred
by the Administrative Agent, the Syndication Agents or the Arrangers in
connection with any of the following: (i) the Administrative Agent's audit and
investigation of the Borrower and its Subsidiaries in connection with the
preparation, negotiation or execution of any Loan Document or the Administrative
Agent's periodic audits of the Borrower or any of its Subsidiaries, as the case
may be, (ii) all due diligence, syndication (including printing, distribution
and bank meetings), transportation, computer, duplication, messenger, audit,
insurance, appraisal and consultant costs and expenses, and all search, filing
and recording fees incurred or sustained by the Administrative Agent, the
Syndication Agents or the Arrangers in connection with the Facilities, the Loan
Documents or the transactions contemplated hereby and thereby, (iii) the
preparation, negotiation, execution or interpretation of this Agreement
(including, without limitation, the satisfaction or attempted satisfaction of
any condition set forth in Article III (Conditions To Loans And Letters Of
Credit), any Loan Document or any proposal letter or commitment letter issued in
connection therewith, or the making of the Loans hereunder, (iv) the creation,
perfection or protection of the Liens under any Loan Document (including any
reasonable fees, disbursements and expenses for local counsel in various
jurisdictions), (v) the ongoing administration of this Agreement and the Loans,
including consultation with attorneys in connection therewith and with respect
to the Administrative Agent's rights and responsibilities hereunder and under
the other Loan Documents, (vi) the protection, collection or enforcement of any
Obligation or the enforcement of any Loan Document, (vii) the commencement,
defense or intervention in any court proceeding relating in any way to the
Obligations, any Loan Party, any of the Borrower's Subsidiaries, the Indenture,
the Senior Secured Notes, this Agreement or any other Loan Document; provided
that the Borrower shall not be responsible for the costs and expenses of
referred to in this clause (vii) of any party to the extent such court
proceeding shall have been caused by or resulted from the gross negligence,
willful misconduct or willful breach of the Loan Documents of such party, as
determined by a court of competent jurisdiction in a final non-appealable
judgment or order, (viii) the response to, and preparation for, any subpoena or
request for document production with which the Administrative Agent is served or
deposition or other proceeding in which the Administrative Agent is called to
testify, in each case, relating in any way to the Obligations, any Loan Party,
any of the Borrower's Subsidiaries, the Indenture, the Senior Secured Notes,
this Agreement or any other Loan Document and (ix) any amendment, consent,
waiver, assignment, restatement, or supplement to any Loan Document or the
preparation, negotiation, and execution of the same.
(b) The Borrower further agrees to pay or reimburse the
Administrative Agent and each of the Lenders and Issuers upon demand for all
out-of-pocket costs and expenses, including, without limitation, reasonable
attorneys' fees (including allocated costs of internal counsel and costs of
settlement), incurred by the Administrative Agent, such Lenders or Issuers in
connection with any of the following: (i) in enforcing any Loan Document or
Obligation or any security therefor or exercising or enforcing any other right
or remedy available by reason of an Event of Default, (ii) in connection with
any refinancing or restructuring of the credit arrangements provided hereunder
in the nature of a "work-out" or in any insolvency or bankruptcy proceeding,
(iii) in commencing, defending or intervening in any litigation or in filing a
petition, complaint, answer, motion or other pleadings in any legal proceeding
relating to the Obligations, any Loan Party, any of the Borrower's Subsidiaries
and related to or arising out of the transactions contemplated hereby or by any
other Loan Document, the Indenture or the Senior Secured Notes or (iv) in taking
any other action in or with respect to any suit or proceeding (bankruptcy or
otherwise) described in clause (i), (ii) or (iii) above.
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Section 11.4 Indemnities
(a) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, the Syndication Agents, the Arrangers, each Lender and
each Issuer and each of their respective Affiliates, and each of the directors,
officers, employees, agents, trustees, representative, attorneys, consultants
and advisors of or to any of the foregoing (including those retained in
connection with the satisfaction or attempted satisfaction of any condition set
forth in Article III (Conditions To Loans And Letters Of Credit)) (each such
Person being an "Indemnitee") from and against any and all claims, damages,
liabilities, obligations, losses, penalties, actions, judgments, suits, costs,
disbursements and expenses of any kind or nature (including fees, disbursements
and expenses of financial and legal advisors to any such Indemnitee) that may be
imposed on, incurred by or asserted against any such Indemnitee in connection
with or arising out of any investigation, litigation or proceeding, whether or
not such investigation, litigation or proceeding is brought by the Borrower, any
of its directors, security holders or creditors, an Indemnitee or any other
Person or whether or not any such Indemnitee is a party thereto and whether or
not the transactions contemplated hereby are consummated, whether direct,
indirect, or consequential and whether based on any federal, state or local law
or other statutory regulation, securities or commercial law or regulation, or
under common law or in equity, or on contract, tort or otherwise, in any manner
relating to or arising out of this Agreement, any other Loan Document, any
Obligation, any Letter of Credit, any Disclosure Document, the Indenture or the
Senior Secured Notes or any act, event or transaction related or attendant to
any thereof, or the use or intended use of the proceeds of the Loans or Letters
of Credit or in connection with any investigation of any potential matter
covered hereby (collectively, the "Indemnified Matters"); provided, however,
that the Borrower shall not have any obligation under this Section 11.4 to an
Indemnitee with respect to any Indemnified Matter caused by or resulting from
the gross negligence, willful misconduct or willful breach of the Loan Documents
of that Indemnitee, as determined by a court of competent jurisdiction in a
final non-appealable judgment or order. Without limiting the foregoing,
"Indemnified Matters" include (i) all Environmental Liabilities and Costs
arising from or connected with the past, present or future operations of the
Borrower or any of its Subsidiaries involving any property subject to a
Collateral Document, or damage to real or personal property or natural resources
or harm or injury alleged to have resulted from any Release of Contaminants on,
upon or into such property or any contiguous real estate, (ii) any costs or
liabilities incurred in connection with any Remedial Action concerning any
Borrower or any of its Subsidiaries, (iii) any costs or liabilities incurred in
connection with any Environmental Lien and (iv) any costs or liabilities
incurred in connection with any other matter under any Environmental Law,
including the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, (49 U.S.C. (S) 9601 et seq.) and applicable state property transfer
laws, whether, with respect to any such matter, such Indemnitee is a mortgagee
pursuant to any leasehold mortgage, a mortgagee in possession, the successor in
interest to the Borrower or any of its Subsidiaries, or the owner, lessee or
operator of any property of the Borrower or any of its Subsidiaries by virtue of
foreclosure, except, with respect to those matters referred to in clauses (i),
(ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure by
the Administrative Agent, any Lender or any Issuer, or the Administrative Agent,
any Lender or any Issuer having become the successor in interest to the Borrower
or any of its Subsidiaries and (y) attributable solely to acts of the
Administrative Agent, such Lender or such Issuer or any agent on behalf of the
Administrative Agent, such Lender or such Issuer.
(b) The Borrower shall indemnify the Administrative Agent, the
Syndication Agents, the Arrangers, the Lenders and each Issuer for, and hold the
Administrative Agent, the Lenders and each Issuer harmless from and against, any
and all claims for brokerage commissions, fees and other compensation made
against the Administrative Agent, the Syndication Agents, the Arrangers, the
Lenders and the Issuers for any broker, finder or consultant with respect to any
agreement, arrangement or
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understanding made by or on behalf of any Loan Party or any of its Subsidiaries
in connection with the transactions contemplated by this Agreement.
(c) The Borrower, at the request of any Indemnitee, shall have the
obligation to defend against such investigation, litigation or proceeding or
requested Remedial Action and the Borrower, in any event, may participate in the
defense thereof with legal counsel of the Borrower's choice. In the event that
such Indemnitee requests the Borrower to defend against such investigation,
litigation or proceeding or requested Remedial Action, the Borrower shall
promptly do so and such Indemnitee shall have the right to have legal counsel of
its choice participate in such defense. No action taken by legal counsel chosen
by such Indemnitee in defending against any such investigation, litigation or
proceeding or requested Remedial Action, shall vitiate or in any way impair the
Borrower's obligation and duty hereunder to indemnify and hold harmless such
Indemnitee.
(d) The Borrower agrees that any indemnification or other protection
provided to any Indemnitee pursuant to this Agreement (including pursuant to
this Section 11.4) or any other Loan Document shall (i) survive payment in full
of the Obligations and (ii) inure to the benefit of any Person that was at any
time an Indemnitee under this Agreement or any other Loan Document.
Section 11.5 Limitation of Liability
The Borrower agrees that no Indemnitee shall have any liability
(whether direct or indirect, in contract, tort or otherwise) to any Loan Party
or any of their respective Subsidiaries or any of their respective equity
holders or creditors for or in connection with the transactions contemplated
hereby and in the other Loan Documents, the Indenture and the Senior Secured
Notes, except for direct damages (as opposed to special, indirect, consequential
or punitive damages (including, without limitation, any loss of profits,
business or anticipated savings)) determined in a final non-appealable judgment
by a court of competent jurisdiction to have resulted from such Indemnitee's
gross negligence, willful misconduct or willful breach of the Loan Documents.
The Borrower hereby waives, releases and agrees (each for itself and on behalf
of its Subsidiaries) not to sue upon any such claim for any special, indirect,
consequential or punitive damages, whether or not accrued and whether or not
known or suspected to exist in its favor.
Section 11.6 Right of Set-off
Upon the occurrence and during the continuance of any Event of Default
each Lender and each Affiliate of a Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender or its
Affiliates to or for the credit or the account of the Borrower against any and
all of the Obligations now or hereafter existing whether or not such Lender
shall have made any demand under this Agreement or any other Loan Document and
even though such Obligations may be unmatured. Each Lender agrees promptly to
notify the Borrower after any such set-off and application made by such Lender
or its Affiliates; provided, however, that the failure to give such notice shall
not affect the validity of such set-off and application. The rights of each
Lender under this Section 11.6 are in addition to the other rights and remedies
(including other rights of set-off) that such Lender may have.
Section 11.7 Sharing of Payments, Etc.
(a) If any Lender obtains any payment (whether voluntary,
involuntary, through the exercise of any right of set-off or otherwise) of the
Loans owing to it, any interest thereon, fees in respect thereof or amounts due
pursuant to Section 11.3 (Costs and Expenses) or 11.4 (Indemnities) (other than
payments pursuant to Section 2.13 (Special Provisions Governing Eurodollar Rate
Loans), 2.14 (Capital
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Adequacy) or 2.15 (Taxes)) in excess of its Ratable Portion of all payments of
such Obligations obtained by all the Lenders, such Lender (a "Purchasing
Lender") shall forthwith purchase from the other Lenders (each, a "Selling
Lender") such participations in their Loans or other Obligations as shall be
necessary to cause such Purchasing Lender to share the excess payment ratably
with each of them.
(b) If all or any portion of any payment received by a Purchasing
Lender is thereafter recovered from such Purchasing Lender, such purchase from
each Selling Lender shall be rescinded and such Selling Lender shall repay to
the Purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Selling Lender's ratable share (according to the
proportion of (i) the amount of such Selling Lender's required repayment in
relation to (ii) the total amount so recovered from the Purchasing Lender) of
any interest or other amount paid or payable by the Purchasing Lender in respect
of the total amount so recovered.
(c) The Borrower agrees that any Purchasing Lender so purchasing a
participation from a Selling Lender pursuant to this Section 11.7 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation.
Section 11.8 Notices, Etc.
All notices, demands, requests and other communications provided for in
this Agreement shall be given in writing, or by any telecommunication device
capable of creating a written record (including electronic mail), and addressed
to the party to be notified as follows:
(a) if to the Borrower:
FMC Corporation
1735 Market Street
Philadelphia, Pennsylvania 19103
Attention: Thomas C. Deas, Jr.
Telecopy Number: (215) 299-6557
E-Mail Address: fmc_treasurer@fmc.com
with a copy to:
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, Pennsylvania 19103
Attention: Lawrence Berger
Telecopy Number: (215) 963-5299
E-Mail Address: lberger@morganlewis.com
(b) if to any Lender, at its Domestic Lending Office specified
opposite its name on Schedule II (Applicable Lending Offices and Addresses for
Notices) or on the signature page of any applicable Assignment and Acceptance;
(c) if to any Issuer, at the address set forth under its name on
Schedule II (Applicable Lending Offices and Addresses for Notices); and
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(d) if to CUSA, as the Administrative Agent, at its Domestic Lending
Office specified opposite its name on Schedule II (Applicable Lending Offices
and Addresses for Notices), with a copy to:
Weil, Gotshal & MANGES LLP
767 Fifth Avenue
New York, New York 10153-0119
Attention: Marsha Simms
Telecopy Number: (212) 310-8007
E-Mail Address: marsha.simms@weil.com
or at such other address as shall be notified in writing (x) in the case of the
Borrower and the Administrative Agent, to the other parties and (y) in the case
of all other parties, to the Borrower and the Administrative Agent. All such
notices and communications shall be effective upon personal delivery (if
delivered by hand, including any overnight courier service), when deposited in
the mails (if sent by mail), or when properly transmitted (if sent by a
telecommunications device or through the Internet); provided, however, that
notices and communications to the Administrative Agent pursuant to Article II
(The Facilities) or X (The Administrative Agent) shall not be effective until
received by the Administrative Agent.
Section 11.9 No Waiver; Remedies
No failure on the part of any Lender, Issuer or the Administrative
Agent to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 11.10 Binding Effect
This Agreement shall become effective when it shall have been executed
by the Borrower and the Administrative Agent and when the Administrative Agent
shall have been notified by each Lender and Issuer that such Lender or Issuer
has executed it and thereafter shall be binding upon and inure to the benefit of
the Borrower, the Administrative Agent and each Lender and Issuer and, in each
case, their respective successors and assigns; provided, however, that the
Borrower shall not have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders.
Section 11.11 Governing Law
This Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York.
Section 11.12 Submission to Jurisdiction; Service of Process
(a) Any legal action or proceeding with respect to this Agreement or
any other Loan Document may be brought in the courts of the State of New York or
of the United States of America for the Southern District of New York, and, by
execution and delivery of this Agreement, the Borrower hereby accepts for itself
and in respect of its property, generally and unconditionally, the jurisdiction
of the aforesaid courts. The parties hereto hereby irrevocably waive any
objection, including any objection to the laying of venue or based on the
grounds of forum non conveniens, that any of them may now or hereafter have to
the bringing of any such action or proceeding in such respective jurisdictions.
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(b) The Borrower hereby irrevocably consents to the service of any
and all legal process, summons, notices and documents in any suit, action or
proceeding brought in the United States of America arising out of or in
connection with this Agreement or any other Loan Document by the mailing (by
registered or certified mail, postage prepaid) or delivering of a copy of such
process to the Borrower at its address specified in Section 11.8 (Notices,
Etc.). The Borrower agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
(c) Nothing contained in this Section 11.12 shall affect the right of
the Administrative Agent or any Lender to serve process in any other manner
permitted by law or commence legal proceedings or otherwise proceed against the
Borrower or any other Loan Party in any other jurisdiction.
(d) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in Dollars into another currency, the
parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase Dollars with such
other currency at the spot rate of exchange quoted by the Administrative Agent
at 11:00 a.m. (New York time) on the Business Day preceding that on which final
judgment is given, for the purchase of Dollars, for delivery two Business Days
thereafter.
Section 11.13 Waiver of Jury Trial
Each of the Administrative Agent, the Lenders, the Issuers and the
Borrower irrevocably waives trial by jury in any action or proceeding with
respect to this Agreement or any other Loan Document.
Section 11.14 Marshaling; Payments Set Aside
None of the Administrative Agent, any Lender or any Issuer shall be
under any obligation to marshal any assets in favor of the Borrower or any other
party or against or in payment of any or all of the Obligations. To the extent
that the Borrower makes a payment or payments to the Administrative Agent, the
Lenders or the Issuers or any such Person receives payment from the proceeds of
the Collateral or exercise their rights of setoff, and such payment or payments
or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other party, then to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied, and all Liens, right and remedies therefor, shall be revived and
continued in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.
Section 11.15 Section Titles
The section titles contained in this Agreement are and shall be without
substantive meaning or content of any kind whatsoever and are not a part of the
agreement between the parties hereto, except when used to reference a section.
Any reference to the number of a clause, sub-clause or subsection hereof
immediately followed by a reference in parenthesis to the title of the Section
containing such clause, sub-clause or subsection is a reference to such clause,
sub-clause or subsection and not to the entire Section; provided, however, that,
in case of direct conflict between the reference to the title and the reference
to the number of such Section, the reference to the title shall govern absent
manifest error. If any reference to the number of a Section (but not to any
clause, sub-clause or subsection thereof) is
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followed immediately by a reference in parenthesis to the title of a Section,
the title reference shall govern in case of direct conflict absent manifest
error.
Section 11.16 Execution in Counterparts
This Agreement may be executed in any number of counterparts and by
different parties in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute one
and the same agreement. Signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are attached to the same document. Delivery of an executed signature page of
this Agreement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Agreement
signed by all parties shall be lodged with the Borrower and the Administrative
Agent.
Section 11.17 Entire Agreement
This Agreement, together with all of the other Loan Documents and all
certificates and documents delivered hereunder or thereunder, embodies the
entire agreement of the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof.
Section 11.18 Confidentiality
Each Lender and the Administrative Agent agree to keep information
obtained by it pursuant hereto and the other Loan Documents confidential in
accordance with such Lender's or the Administrative Agent's, as the case may be,
customary practices and agrees that it shall only use such information in
connection with the transactions contemplated by this Agreement and not disclose
any such information other than (a) to such Lender's or the Administrative
Agent's, as the case may be, employees, representatives and agents that are or
are expected to be involved in the evaluation of such information in connection
with the transactions contemplated by this Agreement and are advised of the
confidential nature of such information, (b) to the extent such information
presently is or hereafter becomes available to such Lender or the Administrative
Agent, as the case may be, on a non-confidential basis from a source other than
the Borrower, (c) to the extent disclosure is required by law, regulation or
judicial order or requested or required by bank regulators or auditors or any
quasi-regulatory authority (including the National Association of Insurance
Companies) or (d) to current or prospective assignees, participants and Special
Purpose Vehicles grantees of any option described in Section 11.2(f)
(Assignments and Participations), in each case to the extent such assignees,
participants or grantees agree to be bound by the provisions of this Section
11.18.
[Signature Pages Follow]
99
In Witness Whereof, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
FMC Corporation,
as Borrower
By: _________________________________________
Name:
Title:
Citicorp USA, Inc.,
as Administrative Agent and Lender
By: ________________________________________
Name:
Title:
Citibank, N.A.,
as Issuer
By: _________________________________________
Name:
Title:
Salomon Smith Barney Inc.,
as Arranger
By: _________________________________________
Name:
Title:
Banc of America Securities LLC
as Arranger
By: _________________________________________
Name:
Title:
Wachovia Securities, Inc.,
as Arranger
By: _________________________________________
Name:
Title:
[Signature Page To FMC Corporation Credit Agreement]
Bank of America, N.A.,
as Co-Syndication Agent and Lender
By: ______________________________
Name:
Title:
Wachovia Bank, National Association,
as Co-Syndication Agent and Lender
By: ______________________________
Name:
Title:
ABN-AMRO, N.V.,
as Documentation Agent and Lender
By: ______________________________
Name:
Title:
[Signature Page to FMC Corporation Credit Agreement]
Other Lenders:
[Name of Lender]
By: ________________________________
Name:
Title:
[Name of Lender]
By: ________________________________
Name:
Title:
[Signature Page to FMC Corporation Credit Agreement]
Table of Contents
ARTICLE I DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS ............... 1
Section 1.1 Defined Terms ................................................. 1
Section 1.2 Computation of Time Periods ................................... 30
Section 1.3 Accounting Terms and Principles ............................... 30
Section 1.4 Certain Terms ................................................. 31
ARTICLE II THE FACILITIES ................................................. 32
Section 2.1 The Commitments ............................................... 32
Section 2.2 Borrowing Procedures .......................................... 34
Section 2.3 Letters of Credit ............................................. 35
Section 2.4 Reduction and Termination of the Revolving Credit Commitments.. 39
Section 2.5 Repayment of Loans ............................................ 39
Section 2.6 Evidence of Debt .............................................. 39
Section 2.7 Optional Prepayments .......................................... 40
Section 2.8 Mandatory Prepayments ......................................... 41
Section 2.9 Interest ...................................................... 42
Section 2.10 Conversion/Continuation Option ................................ 43
Section 2.11 Fees .......................................................... 44
Section 2.12 Payments and Computations ..................................... 44
Section 2.13 Special Provisions Governing Eurodollar Rate Loans ............ 47
Section 2.14 Capital Adequacy .............................................. 48
Section 2.15 Taxes ......................................................... 49
Section 2.16 Substitution of Lenders ....................................... 50
ARTICLE III CONDITIONS TO LOANS AND LETTERS OF CREDIT ...................... 51
Section 3.1 Conditions Precedent to Initial Loans and Letters of Credit ... 51
Section 3.2 Conditions Precedent to Each Loan and Letter of Credit ........ 56
Section 3.3 Determinations of Initial Borrowing Conditions ................ 57
ARTICLE IV REPRESENTATIONS AND WARRANTIES ................................. 57
Section 4.1 Corporate Existence; Compliance with Law ...................... 57
Section 4.2 Corporate Power; Authorization; Enforceable Obligations ....... 58
Section 4.3 Ownership of Borrower; Subsidiaries ........................... 58
Section 4.4 Financial Statements .......................................... 59
Section 4.5 Material Adverse Change ....................................... 59
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Table of Contents
(Continued)
Section 4.6 Solvency ..................................................... 59
Section 4.7 Litigation ................................................... 59
Section 4.8 Taxes ........................................................ 60
Section 4.9 Full Disclosure .............................................. 60
Section 4.10 Margin Regulations ........................................... 60
Section 4.11 No Burdensome Restrictions; No Defaults ...................... 61
Section 4.12 Investment Company Act; Public Utility Holding Company Act ... 61
Section 4.13 Use of Proceeds .............................................. 61
Section 4.14 Insurance .................................................... 61
Section 4.15 Labor Matters ................................................ 62
Section 4.16 ERISA ........................................................ 62
Section 4.17 Environmental Matters Except as disclosed in the Borrower's
SEC filings filed on or prior to September 30, 2002: ......... 62
Section 4.18 Intellectual Property ........................................ 63
Section 4.19 Title; Real Property ......................................... 63
Section 4.20 Indenture and Senior Secured Notes ........................... 64
Section 4.21 Deposit Accounts; Securities Accounts ........................ 64
ARTICLE V FINANCIAL COVENANTS ............................................ 65
Section 5.1 Maximum Leverage Ratio ....................................... 65
Section 5.2 Minimum Interest Coverage Ratio .............................. 65
Section 5.3 Maintenance of Net Worth ..................................... 65
Section 5.4 Capital Expenditures ......................................... 66
ARTICLE VI REPORTING COVENANTS ............................................ 66
Section 6.1 Financial Statements ......................................... 66
Section 6.2 Default Notices .............................................. 68
Section 6.3 Litigation ................................................... 68
Section 6.4 Asset Sales .................................................. 69
Section 6.5 Notices under Indentures and Senior Secured Notes ............ 69
Section 6.6 SEC Filings; Press Releases .................................. 69
Section 6.7 Labor Relations .............................................. 69
Section 6.8 Tax Returns .................................................. 69
Section 6.9 Insurance .................................................... 69
ii
Table of Contents
(Continued)
Section 6.10 ERISA Matters ................................................ 70
Section 6.11 Environmental Matters ........................................ 70
Section 6.12 Other Information ............................................ 71
ARTICLE VII AFFIRMATIVE COVENANTS .......................................... 71
Section 7.1 Preservation of Corporate Existence, Etc. .................... 71
Section 7.2 Compliance with Laws, Etc. ................................... 71
Section 7.3 Conduct of Business .......................................... 71
Section 7.4 Payment of Taxes, Etc. ....................................... 71
Section 7.5 Maintenance of Insurance ..................................... 72
Section 7.6 Access ....................................................... 72
Section 7.7 Keeping of Books ............................................. 72
Section 7.8 Maintenance of Properties, Etc. .............................. 72
Section 7.9 Application of Proceeds ...................................... 72
Section 7.10 Environmental ................................................ 73
Section 7.11 Additional Collateral and Guaranties ......................... 73
Section 7.12 Non-Guarantor Subsidiaries ................................... 74
Section 7.13 Real Property ................................................ 74
Section 7.14 Restricted Cash Collateral Account ........................... 74
ARTICLE VIII NEGATIVE COVENANTS ............................................. 74
Section 8.1 Indebtedness ................................................. 75
Section 8.2 Liens, Etc. .................................................. 76
Section 8.3 Investments .................................................. 77
Section 8.4 Sale of Assets ............................................... 78
Section 8.5 Restricted Payments .......................................... 79
Section 8.6 Prepayment and Cancellation of Indebtedness .................. 79
Section 8.7 Restriction on Fundamental Changes; Permitted Acquisitions ... 80
Section 8.8 Change in Nature of Business ................................. 80
Section 8.9 Transactions with Affiliates ................................. 80
Section 8.10 Limitations on Restrictions on Subsidiary Distributions;
No New Negative Pledge ....................................... 80
Section 8.11 Modification of Constituent Documents ........................ 81
Section 8.12 Accounting Changes; Fiscal Year .............................. 81
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Table of Contents
(Continued)
Section 8.13 Margin Regulations .......................................... 81
Section 8.14 Operating Leases; Sale/Leasebacks ........................... 81
Section 8.15 No Speculative Transactions ................................. 81
Section 8.16 Compliance with ERISA ....................................... 81
Section 8.17 Transfer of Principal Properties ............................ 82
Section 8.18 Debt Reserve Collateral Account and Restricted Cash
Collateral Account .......................................... 82
ARTICLE IX EVENTS OF DEFAULT ............................................. 82
Section 9.1 Events of Default ........................................... 82
Section 9.2 Remedies .................................................... 84
Section 9.3 Actions in Respect of Letters of Credit ..................... 84
Section 9.4 Rescission .................................................. 84
ARTICLE X THE ADMINISTRATIVE AGENT ...................................... 85
Section 10.1 Authorization and Action .................................... 85
Section 10.2 Administrative Agent's Reliance, Etc. ....................... 85
Section 10.3 The Administrative Agent Individually ....................... 86
Section 10.4 Lender Credit Decision ...................................... 86
Section 10.5 Indemnification ............................................. 86
Section 10.6 Successor Administrative Agent .............................. 87
Section 10.7 Concerning the Collateral and the Collateral Documents ...... 87
Section 10.8 Other Agent Responsibilities ................................ 88
ARTICLE XI MISCELLANEOUS ................................................. 88
Section 11.1 Amendments, Waivers, Etc. .................................. 88
Section 11.2 Assignments and Participations ............................. 90
Section 11.3 Costs and Expenses ......................................... 92
Section 11.4 Indemnities ................................................ 94
Section 11.5 Limitation of Liability .................................... 95
Section 11.6 Right of Set-off ........................................... 95
Section 11.7 Sharing of Payments, Etc. .................................. 95
Section 11.8 Notices, Etc. .............................................. 96
Section 11.9 No Waiver; Remedies ........................................ 97
Section 11.10 Binding Effect ............................................. 97
iv
Table of Contents
(Continued)
Section 11.11 Governing Law .......................................... 97
Section 11.12 Submission to Jurisdiction; Service of Process ......... 97
Section 11.13 Waiver of Jury Trial ................................... 98
Section 11.14 Marshaling; Payments Set Aside ......................... 98
Section 11.15 Section Titles ......................................... 98
Section 11.16 Execution in Counterparts .............................. 99
Section 11.17 Entire Agreement ....................................... 99
Section 11.18 Confidentiality ........................................ 99
v
Table of Contents
(Continued)
Schedules
Schedule I - Commitments
Schedule II - Applicable Lending Offices and Addresses for Notices
Schedule III - Non-Guarantor Subsidiaries
Schedule V - Mortgages
Schedule VI - Permitted Vendor Indebtedness
Schedule VII - Existing Public Debt
Schedule VIII - Material Subsidiaries
Schedule IX - Outstanding Reserves
Schedule 1.1 - Foreign Pledge Agreements
Schedule 4.2 - Consents
Schedule 4.3 - Ownership of Subsidiaries
Schedule 4.7 - Litigation
Schedule 4.15 - Labor Matters
Schedule 4.16 - List of Plans
Schedule 4.17 - Environmental Matters
Schedule 4.21 - Deposit Accounts; Securities Accounts
Schedule 8.1 - Existing Indebtedness
Schedule 8.2 - Existing Liens
Schedule 8.3 - Existing Investments
Schedule 8.10 - Exceptions to Negative Pledge
Exhibits
Exhibit A - Form of Assignment and Acceptance
Exhibit B-1 - Form of Revolving Credit Note
Exhibit B-2 - Form of Term Note
Exhibit C - Form of Notice of Borrowing
Exhibit D - Form of Letter of Credit Request
Exhibit E - Form of Notice of Conversion or Continuation
Exhibit F - Form of Opinion of U.S. Counsel for the Loan Parties
Exhibit G-1 - Form of U.S. Subsidiary Guaranty
Exhibit G-2 - Form of Parent Guaranty
Exhibit H - Form of Bank Security Agreement
Exhibit I - Form of Shared Collateral Security Agreement
Exhibit J - Form of Collateral Trust Agreement
Exhibit K - Form of Sharing Agreement
Exhibit L - Form of Joinder Agreement
Exhibit M - Form of Debt Reserve Account Agreement
Exhibit N - Form of Restricted Cash Collateral Account Agreement
vi