EXHIBIT 4.3
$250,000,000
FIVE-YEAR
CREDIT AGREEMENT
Among
FMC CORPORATION,
FMC TECHNOLOGIES, INC.,
BANK OF AMERICA, N.A.,
as Administrative Agent
and
L/C Issuer,
and
The Lenders Named Herein,
as Lenders
BANC OF AMERICA SECURITIES LLC
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
as Co-Lead Arrangers and Co-Book Managers
CITIBANK, N.A.,
as Syndication Agent
COOPERATIVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK NEDERLAND",
as Documentation Agent
Dated as of April 26, 2001
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS.......................................................1
1.01 Defined Terms...............................................................1
1.02 Other Interpretive Provisions..............................................14
1.03 Accounting Terms...........................................................14
1.04 Rounding...................................................................15
1.05 References to Agreements and Laws..........................................15
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS................................................15
2.01 Loans......................................................................15
2.02 Borrowings, Conversions and Continuations of Loans.........................15
2.03 Letters of Credit..........................................................17
2.04 Prepayments................................................................23
2.05 Reduction or Termination of Commitments....................................23
2.06 Repayment of Loans.........................................................23
2.07 Interest...................................................................23
2.08 Fees.......................................................................24
2.09 Computation of Interest and Fees...........................................24
2.10 Evidence of Debt...........................................................25
2.11 Payments Generally.........................................................25
2.12 Sharing of Payments........................................................27
2.13 Regulation D Compensation..................................................27
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY..............................................28
3.01 Taxes......................................................................28
3.02 Illegality.................................................................29
3.03 Inability to Determine Rates...............................................30
3.04 Increased Cost and Reduced Return; Capital Adequacy........................30
3.05 Funding Losses.............................................................30
3.06 Matters Applicable to all Requests for Compensation........................31
3.07 Survival...................................................................31
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS............................................31
4.01 Conditions of Initial Credit Extension.....................................31
4.02 Conditions to the Assumption...............................................33
4.03 Conditions to all Credit Extensions........................................34
4.04 Guaranty Release Conditions................................................34
ARTICLE V. REPRESENTATIONS AND WARRANTIES........................................................35
5.01 Corporate or Partnership Existence and Power...............................35
5.02 Corporate and Governmental Authorization; No Contravention.................35
5.03 Binding Effect.............................................................35
5.04 Financial Information......................................................35
5.05 Litigation.................................................................36
5.06 Compliance with ERISA......................................................36
5.07 Environmental Matters......................................................36
5.08 Taxes......................................................................36
5.09 Full Disclosure............................................................37
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5.10 Compliance with Laws.......................................................37
5.11 Regulated Status...........................................................37
ARTICLE VI. AFFIRMATIVE COVENANTS................................................................37
6.01 Information................................................................37
6.02 Payment of Obligations.....................................................39
6.03 Maintenance of Property; Insurance.........................................39
6.04 Inspection of Property, Books and Records..................................39
6.05 Maintenance of Existence, Rights, Etc......................................40
6.06 Bridge Credit Agreement....................................................40
ARTICLE VII. NEGATIVE COVENANTS..................................................................40
7.01 Liens......................................................................40
7.02 Consolidations, Mergers and Sales of Assets................................42
7.03 Use of Proceeds............................................................43
7.04 Compliance with Laws.......................................................43
7.05 Restricted Subsidiary Debt.................................................43
7.06 Restricted Payments........................................................44
7.07 Investments in Unrestricted Subsidiaries...................................44
7.08 Limitations on Upstreaming.................................................44
7.09 Transactions with Affiliates...............................................44
7.10 Financial Covenants........................................................44
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES.....................................................45
8.01 Events of Default..........................................................45
ARTICLE IX. ADMINISTRATIVE AGENT.................................................................47
9.01 Appointment and Authorization of Administrative Agent......................47
9.02 Delegation of Duties.......................................................47
9.03 Liability of Administrative Agent..........................................47
9.04 Reliance by Administrative Agent...........................................48
9.05 Notice of Default..........................................................48
9.06 Credit Decision; Disclosure of Information by Administrative Agent.........49
9.07 Indemnification of Administrative Agent....................................49
9.08 Administrative Agent in its Individual Capacity............................49
9.09 Successor Administrative Agent.............................................50
9.10 Other Agents...............................................................50
ARTICLE X. MISCELLANEOUS.........................................................................50
10.01 Amendments, Etc............................................................50
10.02 Notices and Other Communications; Facsimile Copies.........................51
10.03 No Waiver; Cumulative Remedies.............................................52
10.04 Attorney Costs, Expenses and Taxes.........................................52
10.05 Indemnification by the Borrower............................................52
10.06 Payments Set Aside.........................................................53
10.07 Successors and Assigns.....................................................53
10.08 Confidentiality............................................................56
10.09 Set-off....................................................................56
10.10 Interest Rate Limitation...................................................57
10.11 Counterparts...............................................................57
10.12 Integration................................................................57
10.13 Survival of Representations and Warranties.................................57
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10.14 Severability...............................................................57
10.15 Removal and Replacement of Lenders.........................................58
10.16 Governing Law..............................................................58
10.17 Waiver of Right to Trial by Jury...........................................59
10.18 Time of the Essence........................................................59
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FIVE-YEAR CREDIT AGREEMENT
--------------------------
THIS FIVE-YEAR CREDIT AGREEMENT is entered into as of April 26, 2001,
among FMC CORPORATION, a Delaware corporation ("FMC"), FMC TECHNOLOGIES, INC., a
Delaware corporation ("Technologies"), each lender from time to time party
hereto (collectively, the "Lenders" and individually, a "Lender"), and BANK OF
AMERICA, N.A., as Administrative Agent (defined below) and L/C Issuer (defined
below).
FMC has requested that the Lenders provide a revolving credit facility,
and the Lenders are willing to do so on the terms and conditions set forth
herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms shall
-------------
have the meanings set forth below:
Adjusted Total Debt means, at any date, the Debt of the Borrower and its
Consolidated Restricted Subsidiaries, determined on a consolidated basis as of
such date.
Administrative Agent means Bank of America in its capacity as
administrative agent under the Loan Documents, or any successor administrative
agent.
Administrative Agent's Office means the Administrative Agent's address
and, as appropriate, account as set forth below its signature hereto, or such
other address or account as the Administrative Agent may from time to time
notify to the Borrower and the Lenders.
Administrative Questionnaire means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Lender.
Affiliate means, as to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with,
such Person. A Person shall be deemed to be "controlled by" any other Person if
such other Person possesses, directly or indirectly, power (a) to vote 10% or
more of the securities (on a fully diluted basis) having ordinary voting power
for the election of directors or managing general partners or (b) to direct or
cause the direction of the management and policies of such Person whether by
contract or otherwise.
Agent-Related Persons means the Administrative Agent (including any
successor administrative agent), together with its Affiliates and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
Aggregate Commitments has the meaning specified in the definition of
"Commitment."
Agreement means this Five-Year Credit Agreement (as the same may hereafter
be amended, modified, supplemented or restated from time to time).
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Applicable Rate means the following percentages per annum, based upon the
Debt Rating:
----------------------------------------------------------------------------------------------
Applicable Rate
----------------------------------------------------------------------------------------------
Eurodollar
Rate +
Pricing Debt Ratings ----------
Level S&P/▇▇▇▇▇'▇ Facility Fee Letters of Utilization Fee
Credit
----------------------------------------------------------------------------------------------
1 *BBB+/Baa1 .125% .500% .125%
----------------------------------------------------------------------------------------------
2 BBB/Baa2 .150% .725% .125%
----------------------------------------------------------------------------------------------
3 BBB-/Baa3 .200% .800% .125%
----------------------------------------------------------------------------------------------
4 **BB+/Ba1 .300% .950% .125%
----------------------------------------------------------------------------------------------
* more than or equal to sign
** less than or equal to sign
Debt Rating means, as of any date of determination, the rating as
determined by either S&P or ▇▇▇▇▇'▇ (collectively, the "Debt Ratings") of
the Borrower's non-credit-enhanced, senior unsecured long-term debt;
provided that if a Debt Rating is issued by each of the foregoing rating
agencies, then the higher of such Debt Ratings shall apply (with Pricing
Level 1 being the highest and Pricing Level 4 being the lowest), unless
there is a split in Debt Ratings of more than one level, in which case the
average Debt Rating (or the higher of two intermediate Debt Ratings) shall
apply. If neither of the foregoing rating agencies issues a Debt Rating,
Pricing Level 4 shall apply.
On the Closing Date, the Applicable Rate shall be determined based upon the Debt
Rating specified in the certificate delivered pursuant to Section 4.01(a)(v) and
shall become effective on the Closing Date. Until the Guaranty Release Date, the
Applicable Rate shall be determined based upon the Debt Rating of FMC. On the
Guaranty Release Date, the Applicable Rate shall be determined based upon the
Debt Rating specified in the certificate delivered pursuant to Section 4.04(f)
and shall become effective on the Guaranty Release Date. Each change in the
Applicable Rate resulting from a publicly announced change in the Debt Rating
shall be effective during the period commencing on the date of the public
announcement thereof and ending on the date immediately preceding the effective
date of the next such change.
Assignment and Acceptance means an assignment and acceptance substantially
in the form of Exhibit F.
Assumption means the assumption by Technologies of all of the obligations
of FMC under the Loan Documents pursuant to Section 10.07(a).
Assumption Date has the meaning specified in Section 4.02.
Attorney Costs means and includes all reasonable fees and disbursements of
any law firm or other external counsel and, without duplication, the allocated
cost of internal legal services and all disbursements of internal counsel.
Bank of America means Bank of America, N.A.
Base Rate means, for any day, a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." Such rate is a rate set by Bank of America based
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upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
Base Rate Loan means a Loan that bears interest at the Base Rate.
Board means the Board of Governors of the Federal Reserve System of the
United States of America.
Borrower means (a) for the period from the date hereof to the Assumption,
FMC, and (b) for the period from and after the Assumption, Technologies, and
each of their respective successors and permitted assigns.
Bridge Credit Agreement means that certain 180-Day Credit Agreement dated
as of February 21, 2001, among FMC, Technologies, the lenders from time to time
party thereto and Citibank, N.A., as administrative agent.
Borrowing means a borrowing consisting of simultaneous Loans of the same
Type and having the same Interest Period made by each of the Lenders pursuant to
Section 2.01.
Business Day means any day other than a Saturday, Sunday, or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank market.
Cash Collateralize means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Administrative Agent and
the L/C Issuer (which documents are hereby consented to by the Lenders).
Derivatives of such term shall have corresponding meanings.
Change of Control means an event or series of events by which:
(a) any Person or two or more Persons acting in concert (other than a
Plan or Plans) shall acquire beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended) of 20% or more of the outstanding shares
of voting stock of the Borrower;
(b) during any period of 12 consecutive months (or, in the case of
Technologies, such lesser period of time as shall have elapsed since the
date of the Technologies IPO), commencing before or after the date of this
Agreement (in the case of FMC) or commencing on the date of the
Technologies IPO (in the case of Technologies), individuals who at the
beginning of such 12 month (or lesser) period were directors of the
Borrower (together with any new directors whose election by the Borrower's
board of directors or whose nomination for election by the Borrower's
stockholders was approved by a vote of a majority of the directors then
still in office who either were directors at the beginning of such period
or whose election or nomination was previously so approved) cease for any
reason to constitute a majority of the board of directors of the Borrower;
or
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(c) at any time prior to the Technologies IPO, Technologies shall
cease to be a wholly-owned Restricted Subsidiary of FMC.
Closing Date means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with this Agreement.
Code means the Internal Revenue Code of 1986.
Commitment means, as to each Lender, its obligation to (a) make Loans to
the Borrower pursuant to Section 2.01 and (b) purchase participations in L/C
Obligations in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender's name on Schedule 2.01, as
such amount may be reduced or adjusted from time to time in accordance with this
Agreement (collectively, the "Aggregate Commitments").
Common Stock means all capital stock of an issuer except capital stock as
to which both the entitlement to dividends and the participation in assets upon
liquidation are by the terms of such capital stock limited to a fixed or
determinable amount.
Compensation Period has the meaning specified in Section 2.11(d)(ii).
Compliance Certificate means a certificate substantially in the form of
Exhibit E.
Consolidated Cash Flow means, for any period, Consolidated Net Income for
such period, plus (a) the aggregate pre-tax amounts deducted in determining such
Consolidated Net Income in respect of depreciation and amortization and other
similar non-cash charges (other than Non-Recurring Items), plus (b) the amount
of any increase (or minus the amount of any decrease) in the consolidated
deferred tax or general tax reserves of FMC and its Consolidated Restricted
Subsidiaries during such period, plus (c) Non-Recurring Items deducted in
determining Consolidated Net Income for such period, minus (d) cash outlays (net
of cash inflows) in such period with respect to Non-Recurring Items incurred
after September 30, 2000 (such cash outlays to be included in this calculation
only to the extent they cumulatively exceed $100,000,000 after September 30,
2000.)
Consolidated EBITDA means, for any period, Consolidated Net Income for
such period, plus, without duplication and to the extent included in determining
Consolidated Net Income for such period, the sum of (a) total income tax expense
of the Borrower and its Restricted Subsidiaries, (b) Consolidated Interest
Expense, (c) depreciation, depletion and amortization expense of the Borrower
and its Restricted Subsidiaries, (d) amortization of intangibles (including
goodwill) and organization costs of the Borrower and its Restricted Subsidiaries
and (e) any other non-cash charges, minus, to the extent included in determining
Consolidated Net Income for such period, any non-cash credits of the Borrower
and its Restricted Subsidiaries. For purposes of Sections 4.04(f)(ii), 7.10(d)
and 7.10(e), Consolidated EBITDA shall be deemed to be $49,900,000 for the
fiscal quarter ended June 30, 2000, $39,800,000 for the fiscal quarter ended
September 30, 2000, $48,000,000 for the fiscal quarter ended December 31, 2000
and $24,000,000 for the fiscal quarter ended March 31, 2001.
Consolidated Interest Expense means, for any period with respect to the
Borrower and its Consolidated Restricted Subsidiaries on a consolidated basis,
the sum of (a) all interest, premium payments, fees, charges and related
expenses for such period in connection with borrowed money (including
capitalized interest) or in connection with the deferred purchase price of
assets, plus (b) the portion of rent expense with respect to such period under
capital leases that is treated as interest, minus (c) interest income for such
period. For purposes of Sections 4.04(f)(ii) and 7.10(e), Consolidated
4
Interest Expense shall be deemed to be $4,500,000 for each of the fiscal
quarters ended June 30, 2000, September 30, 2000, December 31, 2000 and March
31, 2001 and $50,000 for each day from April1, 2001 to the Guaranty Release
Date.
Consolidated Net Income means, for any period, the net income (or loss) of
FMC or Technologies, as the case may be, and its Consolidated Restricted
Subsidiaries for such period, excluding, without duplication, (i) extraordinary
items, (ii) the effect of cumulative changes in generally accepted accounting
principles and (iii) any income (or loss) of any Unrestricted Subsidiary during
such period except to the extent of dividends received during such period by FMC
or Technologies, as the case may be, or by a Consolidated Restricted Subsidiary.
Consolidated Restricted Subsidiary means, at any date, any Restricted
Subsidiary the accounts of which would be consolidated with those of FMC or
Technologies, as the case may be, in its consolidated financial statements as of
such date.
Consolidated Subsidiary means, at any date, any Subsidiary or other entity
the accounts of which would be consolidated with those of FMC or Technologies,
as the case may be, in its consolidated financial statements as of such date.
Consolidated Tangible Net Worth means, at any time, the consolidated
stockholders' equity of the Borrower and its Consolidated Restricted
Subsidiaries at such time, minus the consolidated Intangible Assets of the
Borrower and its Consolidated Restricted Subsidiaries at such time, excluding,
without duplication, the effects of (i) extraordinary items, (ii) cumulative
changes in generally accepted accounting principles and (iii) amounts included
in other comprehensive income under generally accepted accounting principles.
For purposes of this definition, "Intangible Assets" means the amount (to the
extent reflected in determining consolidated stockholders' equity) of all
unamortized debt discount and expense (to the extent, if any, recorded as an
unamortized deferred charge), unamortized deferred charges, goodwill, patents,
trademarks, service marks, trade names, copyrights and organization expenses.
Credit Extension means a Borrowing or an L/C Credit Extension.
Debt of any Person means, at any date, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments (other
than the non-negotiable notes of the Borrower issued to its insurance carriers
in lieu of maintenance of policy reserves in connection with its workers'
compensation and auto liability insurance program), (c) all obligations of such
Person to pay the deferred purchase price of property or services, except trade
accounts payable, expense accruals and deferred employee compensation items
arising in the ordinary course of business, (d) (i) if such date is prior to the
Guaranty Release Date, all non-contingent obligations (and, for purposes of
Section 7.01 and the definition of Material Financial Obligations, all
contingent obligations) of such Person to reimburse any Lender or other Person
in respect of amounts paid under a letter of credit or similar instrument, and
(ii) if such date is on or after the Guaranty Release Date, all obligations
(contingent or non-contingent) of such Person to reimburse any Lender or any
other Person in respect of amounts payable or paid under a financial standby
letter of credit or similar instrument, (e) all obligations of such Person as
lessee under capital leases, (f) all Debt of others secured by a Lien on any
asset of such Person, whether or not such Debt is assumed by such Person, and
(g) all Guaranty Obligations of such Person in respect of the Debt of any other
Person
Debt Rating has the meaning specified in the definition of "Applicable
Rate."
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Debtor Relief Laws means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, fraudulent transfer or conveyance, or similar debtor relief Laws
of the United States of America or other applicable jurisdictions from time to
time in effect and affecting the rights of creditors generally.
Default means any event that, with the giving of any notice, the passage
of time, or both, would be an Event of Default.
Default Rate means an interest rate equal to (a) the Base Rate plus (b) 2%
per annum; provided that with respect to a Eurodollar Rate Loan, the Default
Rate shall be an interest rate equal to the interest rate (including the
Applicable Rate) otherwise applicable to such Eurodollar Rate Loan plus 2% per
annum, in each case to the fullest extent permitted by applicable Laws.
Derivatives Obligations of any Person means all obligations of such Person
in respect of any rate swap transaction, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap, equity or equity
index option, bond option, interest rate option, foreign exchange transaction,
cap transaction, floor transaction, collar transaction, currency swap
transaction, cross-currency rate swap transaction, currency option or other
similar transaction (including any option with respect to any of the foregoing
transactions) or any combination of the foregoing transactions.
Dollar and $ mean lawful money of the United States of America.
Eligible Assignee has the meaning specified in Section 10.07(h).
Enforceable Judgment means a judgment or order of a court or arbitral or
regulatory authority as to which the period, if any, during which the
enforcement of such judgment or order is stayed shall have expired. A judgment
or order which is under appeal or as to which the time in which to perfect an
appeal has not expired shall not be deemed an Enforceable Judgment so long as
enforcement thereof is effectively stayed pending the outcome of such appeal or
the expiration of such period, as the case may be.
Environmental Laws means any and all federal, state, local and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment, including ambient air, surface water, ground water, or land, or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, petroleum
or petroleum products, chemicals or industrial, toxic or hazardous substances or
wastes or the clean-up or other remediation thereof.
Equity Issuance means the issue or sale of any stock of Technologies to
any Person other than Technologies or any Subsidiary of Technologies.
ERISA means the Employee Retirement Income Security Act of 1974.
ERISA Group means the Borrower, any Restricted Subsidiary and all members
of a controlled group of corporations and all trades or businesses (whether or
not incorporated) under common control
6
which, together with the Borrower or any Restricted Subsidiary, are treated as a
single employer under Section 414 of the Code.
Eurodollar Rate means, for any Interest Period with respect to any
Eurodollar Rate Loan:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, or
(b) in the event the rate referenced in the preceding clause (a) does
not appear on such page or service or such page or service shall cease to
be available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, or
(c) in the event the rates referenced in the preceding clauses (a)
and (b) are not available, the rate per annum determined by the
Administrative Agent as the rate of interest (rounded upward to the next
1/10,000th of 1%) at which deposits in Dollars for delivery on the first
day of such Interest Period in same day funds in the approximate amount of
the Eurodollar Rate Loan being made, continued or converted by Bank of
America and with a term equivalent to such Interest Period would be
offered by Bank of America's London Branch to major banks in the London
interbank market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period.
Eurodollar Rate Loan means a Loan that bears interest at a rate based on
the Eurodollar Rate.
Eurodollar Reserve Percentage means, with respect to any Lender for any
day during any Interest Period, the reserve percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1%) in effect on such day under
regulations issued from time to time by the Board for determining the maximum
reserve requirement (including any emergency, supplemental or other marginal
reserve requirement) applicable to such Lender with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities").
Event of Default means any of the events or circumstances specified in
Article VIII.
Evergreen Letter of Credit has the meaning specified in Section
2.03(b)(iii).
Facility Fee has the meaning specified in Section 2.08(a).
Federal Funds Rate means, for any day, the rate per annum (rounded upwards
to the nearest 1/100 of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day,
7
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
Fee Letter means that certain letter agreement dated March 28, 2001, among
FMC, Bank of America and Banc of America Securities LLC.
FMC has the meaning specified in the introductory paragraph hereof.
Governmental Authority means any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
Guarantor means FMC from the date of its execution of the Guaranty until
the Guaranty Release Conditions are satisfied on the Guaranty Release Date.
Guaranty means a guaranty executed by the Guarantor in favor of the
Administrative Agent and the Lenders, substantially in the form of Exhibit G.
Guaranty Obligation means, as to any Person, (a) any obligation,
contingent or otherwise, of such Person guarantying or having the economic
effect of guarantying any Debt or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Debt or other obligation, (ii) to purchase or lease property, securities or
services for the purpose of assuring the obligee in respect of such Debt or
other obligation of the payment or performance of such Debt or other obligation,
(iii) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Debt or other obligation, or (iv) entered into for
the purpose of assuring in any other manner the obligees in respect of such Debt
or other obligation of the payment or performance thereof or to protect such
obligees against loss in respect thereof (in whole or in part), or (b) any Lien
on any assets of such Person securing any Debt or other obligation of any other
Person, whether or not such Debt or other obligation is assumed by such Person;
provided that the term "Guaranty Obligation" shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Guaranty Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guaranty Obligation is made or, if not stated
or determinable, the maximum reasonably anticipated liability in respect thereof
as determined by the guarantying Person in good faith.
Guaranty Release Conditions has the meaning specified in Section 4.04.
Guaranty Release Date has the meaning specified in Section 4.04.
Honor Date has the meaning specified in Section 2.03(c)(i).
Indemnified Liabilities has the meaning specified in Section 10.05.
Indemnitees has the meaning specified in Section 10.05.
8
Interest Payment Date means, (a) as to any Eurodollar Rate Loan, the last
day of each Interest Period applicable to such Loan; provided that if any
Interest Period for a Eurodollar Rate Loan exceeds three months, the date that
falls three months after the beginning of such Interest Period shall also be an
Interest Payment Date; and (b) as to any Base Rate Loan, the last Business Day
of each March, June, September and December and the Maturity Date.
Interest Period means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date 7 or 14 days or one,
two, three or six months thereafter, as selected by the Borrower in its Loan
Notice; provided that:
(a) any Interest Period (other than a 7 or 14 day Interest Period)
that would otherwise end on a day that is not a Business Day shall be
extended to the next succeeding Business Day unless such Business Day
falls in another calendar month, in which case such Interest Period shall
end on the next preceding Business Day;
(b) 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 the calendar month at the
end of such Interest Period;
(c) an Interest Period longer than one month shall not be available
prior to the Assumption Date; and
(d) no Interest Period shall extend beyond the scheduled Maturity
Date.
Investee has the meaning specified in the definition of Investment.
Investment means any investment by any Person (the "Investor") in any
other Person (the "Investee"), whether by means of share purchase, capital
contribution, loan, time deposit, incurrence of Guaranty Obligation or
otherwise. It is understood that neither (a) an item reflected in the financial
statements of the Investor as an expense nor (b) an adjustment to the carrying
value of the Investee in the financial statements of the Investor (such as by
reason of increased retained earnings of the Investee) constitutes the making or
acquisition of an Investment for purposes hereof.
Investor has the meaning specified in the definition of Investment.
IRS means the United States Internal Revenue Service.
Laws means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
L/C Advance means, with respect to each Lender, such Lender's
participation in any L/C Borrowing in accordance with its Pro Rata Share.
9
L/C Borrowing means an extension of credit resulting from a drawing under
any Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Borrowing.
L/C Credit Extension means, with respect to any Letter of Credit, the
issuance thereof, the extension of the expiry date thereof or the renewal or
increase of the amount thereof.
L/C Issuer means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
L/C Obligations means, as at any date of determination, the aggregate
undrawn face amount of all outstanding Letters of Credit plus the aggregate of
all Unreimbursed Amounts, including all L/C Borrowings.
Lender has the meaning specified in the introductory paragraph hereof and,
as the context requires, includes the L/C Issuer.
Lending Office means, as to any Lender, the office or offices of such
Lender described as such on the Administrative Questionnaire, or such other
office or offices as such Lender may from time to time notify the Borrower and
the Administrative Agent.
Letter of Credit means any standby letter of credit issued hereunder.
Letter of Credit Application means an application and agreement for the
issuance or amendment of a standby letter of credit in the form from time to
time in use by the L/C Issuer.
Letter of Credit Expiration Date means the day that is 7 days prior to the
Maturity Date (or, if such day is not a Business Day, the next preceding
Business Day).
Letter of Credit Sublimit means an amount equal to $25,000,000. The Letter
of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.
Lien means with respect to any asset, any mortgage, lien, pledge, security
interest or encumbrance of any kind in respect of such asset. For the purpose of
this Agreement, the Borrower or any Subsidiary shall be deemed to own subject to
a Lien any asset that it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset.
Loan has the meaning specified in Section 2.01.
Loan Documents means this Agreement, each Note, the Guaranty (prior to the
Guaranty Release Date), the Fee Letter and each Request for Credit Extension.
Loan Notice means a notice of (a) a Borrowing, (b) a conversion of Loans
from one type to the other, or (c) a continuation of Loans as the same type,
pursuant to Section 2.02(a), which if in writing, shall be substantially in the
form of Exhibit A.
Material Adverse Effect means an effect (other than the Technologies IPO)
that results in or causes a material adverse effect (a) on the business,
financial condition or operations of the Borrower and its Consolidated
Subsidiaries, taken as a whole, or (b) on the legality, validity or
enforceability of this Agreement, any Note, the Guaranty (prior to the Guaranty
Release Date) or the Fee Letter.
10
Material Financial Obligations means a principal or face amount of Debt
(other than Debt under this Agreement) and/or payment in respect of Derivatives
Obligations of the Borrower and/or one or more of its Subsidiaries or the
Guarantor, arising in one or more related or unrelated transactions, exceeding
in the aggregate (a) $50,000,000 prior to the Assumption Date and (b)
$25,000,000 from and after the Assumption Date.
Material Plan means any Plan or Plans having aggregate Unfunded
Liabilities in excess of (a) $50,000,000 prior to the Assumption Date and (b)
$25,000,000 from and after the Assumption Date.
Material Subsidiary means any Restricted Subsidiary in which the Borrower
has an Investment, direct or indirect, of at least (a) $15,000,000 prior to the
Assumption Date and (b) $5,000,000 from and after the Assumption Date.
Maturity Date means (a) the fifth anniversary of the date of this
Agreement or (b) such earlier date upon which the Commitments may be terminated
in accordance with the terms hereof.
Maximum Rate has the meaning specified in Section 10.10.
Moody's means ▇▇▇▇▇'▇ Investors Service, Inc.
Multiemployer Plan means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
Net Cash Proceeds means proceeds received by Technologies in cash or cash
equivalents from any Equity Issuance, net of brokers' and advisors' fees and
other costs incurred in connection with such transaction; provided that evidence
of such costs as described in the Registration Statement shall be in form and
substance satisfactory to the Administrative Agent.
Non-Recurring Items means, to the extent reflected in the determination of
Consolidated Net Income for any period, provisions for restructuring,
discontinued operations, special reserves or other similar charges including
write-downs or write-offs of assets (other than write-downs resulting from
foreign currency translations).
Nonrenewal Notice Date has the meaning specified in Section 2.03(b)(iii).
Note means a promissory note made by the Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit B.
Obligations means all advances to, and debts, liabilities, obligations,
covenants and duties of, the Borrower arising under any Loan Document, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest that accrues after the commencement by or against the
Borrower of any proceeding under any Debtor Relief Laws naming the Borrower as
the debtor in such proceeding.
Other Taxes has the meaning specified in Section 3.01(b).
11
Outstanding Amount means (a) with respect to Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Loans occurring on such date; and
(b) with respect to any L/C Obligations on any date, the amount of such L/C
Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Letters of Credit or any reductions in the
maximum amount available for drawing under Letters of Credit taking effect on
such date.
Participant has the meaning specified in Section 10.07(d).
PBGC means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
Person means any individual, trustee, corporation, general partnership,
limited partnership, limited liability company, joint stock company, trust,
unincorporated organization, bank, business association, firm, joint venture or
Governmental Authority.
Plan means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and either (a) is
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (b) has at any time within the preceding five
years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
Principal Officer means, with respect to each of FMC and Technologies, any
of the following officers of such Person: Chairman of the Board, President,
Secretary, Treasurer, or any Vice President. If any of the titles of the
preceding officers are changed after the date hereof, the term "Principal
Officer" shall thereafter mean any officer performing substantially the same
functions as are currently performed by one or more of the officers listed in
the first sentence of this definition.
Pro Rata Share means, with respect to each Lender, the percentage (carried
out to the tenth decimal place) of the Aggregate Commitments set forth opposite
the name of such Lender on Schedule 2.01, as such share may be adjusted as
contemplated herein.
Qualification means, with respect to any certificate covering financial
statements, a qualification to such certificate (such as a "subject to" or
"except for" statement therein) (a) resulting from a limitation on the scope of
examination of such financial statements or the underlying data, (b) as to the
capability of the Person whose financial statements are certified to continue
operations as a going concern or (c) which could be eliminated by changes in
financial statements or notes thereto covered by such certificate (such as by
the creation of or increase in a reserve or a decrease in the carrying value of
assets) and which if so eliminated by the making of any such change and after
giving effect thereto would occasion a Default; provided that neither of the
following shall constitute a Qualification: (i) a consistency exception relating
to a change in accounting principles with which the independent public
accountants for the Person whose financial statements are being certified have
concurred or (ii) a qualification relating to the outcome or disposition of
threatened litigation, pending litigation being contested in good faith, pending
or threatened claims or other contingencies, the impact of which litigation,
claims or contingencies cannot be determined with sufficient certainty to permit
quantification in such financial statements.
Register has the meaning specified in Section 10.07(c).
12
Registration Statement means Technologies' Form S-1 filed with the
Securities and Exchange Commission, as amended and in effect from time to time.
Request for Credit Extension means (a) with respect to a Borrowing,
conversion or continuation of Loans, a Loan Notice and (b) with respect to an
L/C Credit Extension, a Letter of Credit Application.
Required Lenders means, as of any date of determination, Lenders whose
Voting Percentages aggregate 66-2/3% or more.
Restricted Payment means any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock of the
Borrower or any Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such capital stock or of any option, warrant or other right to acquire any
such capital stock.
Restricted Subsidiary means any Subsidiary other than an Unrestricted
Subsidiary.
S&P means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
Subsidiary means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Borrower.
Surviving Contingent Obligations means contingent obligations arising
under provisions of this Agreement that by their terms survive the termination
hereof.
Taxes has the meaning specified in Section 3.01.
Technologies has the meaning specified in the introductory paragraph
hereof.
Technologies IPO means the consummation of an initial public offering of
the Common Stock of Technologies.
364-Day Credit Agreement means the $150,000,000 364-Day Credit Agreement
dated as of the date hereof, among FMC, Technologies, the lenders party thereto
and Bank of America, as administrative agent.
Type means, with respect to a Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.
Unfunded Liabilities means, with respect to any Plan at any time, the
amount (if any) by which (a) the present value of all benefits under such Plan
exceeds (b) the fair market value of all Plan assets allocable to such benefits
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
Unreimbursed Amount has the meaning specified in Section 2.03(c)(i).
Unrestricted Subsidiary means (a) prior to the Guaranty Release Date (i)
FMC Funding Corporation and Astaris L.L.C. and (ii) any other Subsidiary of FMC
which is declared to be an
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Unrestricted Subsidiary by FMC by notice to the Lenders; provided that the sum
of all (A) Investments of FMC and its Restricted Subsidiaries in any Subsidiary
included in clause (a)(i) above and (B) Investments of FMC and its Restricted
Subsidiaries in Unrestricted Subsidiaries so declared under clause (a)(ii) above
shall not aggregate more than $200,000,000, and (b) from and after the Guaranty
Release Date, any Subsidiary of Technologies that is declared to be an
Unrestricted Subsidiary by Technologies.
Utilization Fee has the meaning specified in Section 2.08(b).
Voting Percentage means, as to any Lender, (a) at any time when the
Commitments are in effect, such Lender's Pro Rata Share and (b) at any time
after the termination of the Commitments, the percentage (carried out to the
tenth decimal place) which (i) the sum of (A) the Outstanding Amount of such
Lender's Loans plus (B) such Lender's Pro Rata Share of the Outstanding Amount
of L/C Obligations, then constitutes of (ii) the Outstanding Amount of all Loans
and L/C Obligations.
1.02 Other Interpretive Provisions.
-----------------------------
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) (i) The words "herein" and "hereunder" and words of similar import
when used in any Loan Document shall refer to such Loan Document as a whole and
not to any particular provision thereof.
(ii) Unless otherwise specified herein, Article, Section, Exhibit
and Schedule references are to this Agreement.
(iii) The term "including" is by way of example and not limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words "to"
and "until" each mean "to but excluding;" and the word "through" means "to and
including."
(d) Section headings herein and the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this
Agreement or any other Loan Document.
(e) Provisions or portions of provisions of the Loan Documents that are
expressly stated to be applicable prior to the Assumption Date, the Technologies
IPO or the Guaranty Release Date, as the case may be, shall have no
applicability from and after the Assumption Date, the Technologies IPO or the
Guaranty Release Date, as the case may be.
1.03 Accounting Terms. Unless otherwise specified herein, all accounting
----------------
terms used herein shall be interpreted, all accounting determinations hereunder
shall be made, and all financial statements required to be delivered hereunder
shall be prepared, in accordance with United States generally accepted
accounting principles as in effect from time to time applied on a basis
consistent (except for changes concurred in by the Borrower's independent public
accountants) with the most recent audited consolidated financial statements of
the Borrower and its Consolidated Subsidiaries delivered to the
14
Lenders; provided that, if the Borrower notifies the Administrative Agent that
the Borrower wishes to amend any covenant in Article VII to eliminate the effect
of any change in generally accepted accounting principles on the operation of
such covenant (or if the Administrative Agent notifies the Borrower that the
Required Lenders wish to amend Article VII for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
generally accepted accounting principles in effect immediately before the
relevant change in generally accepted accounting principles became effective,
unless or until either such notice is withdrawn or such covenant is amended in a
manner satisfactory to the Borrower and the Required Lenders. The Administrative
Agent shall promptly notify the Lenders of any notice received from the Borrower
pursuant to this Section 1.03.
1.04 Rounding. Any financial ratios required to be maintained by the
--------
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 References to Agreements and Laws. Unless otherwise expressly
---------------------------------
provided herein, (a) references to agreements (including the Loan Documents) and
other contractual instruments shall be deemed to include all subsequent
amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent that such amendments, restatements, extensions,
supplements and other modifications are not prohibited by any Loan Document; and
(b) references to any Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such Law.
Article II.
The Commitments and Credit Extensions
2.01 Loans. Subject to the terms and conditions set forth herein, each
-----
Lender severally agrees to make loans (each such loan, a "Loan") to the Borrower
from time to time on any Business Day during the period from the Closing Date to
the Maturity Date, in an aggregate amount not to exceed at any time outstanding
the amount of such Lender's Commitment; provided that after giving effect to any
Borrowing, (a) the aggregate Outstanding Amount of all Loans and L/C Obligations
shall not exceed the Aggregate Commitments and (b) the aggregate Outstanding
Amount of the Loans of any Lender plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations shall not exceed such Lender's
Commitment. Within the limits of each Lender's Commitment, and subject to the
other terms and conditions hereof, the Borrower may borrow under this Section
2.01, prepay under Section 2.04 and reborrow under this Section 2.01. Loans may
be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
2.02 Borrowings, Conversions and Continuations of Loans.
--------------------------------------------------
(a) Each Borrowing, each conversion of Loans from one Type to the other,
and each continuation of Loans as the same Type shall be made upon the
Borrower's irrevocable notice to the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Administrative Agent not
later than 11:00 a.m., New York time, (i) three Business Days prior to the
requested date of any Borrowing of, conversion to or continuation of Eurodollar
Rate Loans, and (ii) on the requested date of any Borrowing of or conversion to
Base Rate Loans. Each such telephonic notice must be confirmed promptly by
delivery to the Administrative Agent of a written Loan Notice, appropriately
completed and signed by a Principal Officer of the Borrower. Each Borrowing of,
15
conversion to or continuation of Eurodollar Rate Loans shall be in a principal
amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each
Borrowing of or conversion to Base Rate Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each Loan Notice
(whether telephonic or written) shall specify (i) whether the Borrower is
requesting a Borrowing, a conversion of Loans from one Type to the other, or a
continuation of Eurodollar Rate Loans for a new Interest Period, (ii) the
requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iii) the principal amount of Loans to be
borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to
which existing Loans are to be converted, and (v) if applicable, the duration of
the Interest Period with respect thereto. If the Borrower fails to specify a
Type of Loan in a Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Loans shall be made
or continued as, or converted to, Base Rate Loans. Any such automatic conversion
to Base Rate Loans shall be effective as of the last day of the Interest Period
then in effect with respect to the applicable Eurodollar Rate Loans. If the
Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar
Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it
will be deemed to have specified an Interest Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of its Pro Rata Share of the applicable Borrowing,
and if no timely notice of a conversion or continuation is provided by the
Borrower, the Administrative Agent shall notify each Lender of the details of
any automatic conversion to Base Rate Loans described in Section 2.02(a). In the
case of a Borrowing, each Lender shall make the amount of its Loan available to
the Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m., New York time, on the Business Day
specified in the applicable Loan Notice. Upon satisfaction of the applicable
conditions set forth in Section 4.03 (and, if such Borrowing is the initial
Credit Extension, Section 4.01 and, if such Borrowing is made on the Assumption
Date, Section 4.02), the Administrative Agent shall make all funds so received
available to the Borrower in like funds as received by the Administrative Agent
either by (i) crediting the account of the Borrower on the books of Bank of
America with the amount of such funds or (ii) wire transfer of such funds, in
each case in accordance with instructions provided to the Administrative Agent
by the Borrower; provided that if, on the date of the Borrowing there are L/C
Borrowings outstanding, then the proceeds of such Borrowing shall be applied,
first, to the payment in full of any such L/C Borrowings and, second, to the
----- ------
Borrower as provided above.
(c) During the existence of a Default or Event of Default, no Loans may
be requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Eurodollar Rate Loan upon
determination of such interest rate. The determination of the Eurodollar Rate by
the Administrative Agent shall be conclusive in the absence of manifest error.
The Administrative Agent shall notify the Borrower and the Lenders of any change
in Bank of America's prime rate used in determining the Base Rate promptly
following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type, there
shall not be at any one time more than five Interest Periods in effect with
respect to Loans.
16
2.03 Letters of Credit.
-----------------
(a) The Letter of Credit Commitment.
-------------------------------
(i) Subject to the terms and conditions set forth herein, (A) the L/C
Issuer agrees, in reliance upon the agreements of the other Lenders set
forth in this Section 2.03, (1) from time to time on any Business Day
during the period from the Assumption Date until the Letter of Credit
Expiration Date, to issue Letters of Credit for the account of the
Borrower and to amend or renew Letters of Credit previously issued by it,
in accordance with Section 2.03(b), and (2) to honor drafts under the
Letters of Credit; and (B) the Lenders severally agree to participate in
Letters of Credit issued for the account of the Borrower; provided that
the L/C Issuer shall not be obligated to make any L/C Credit Extension
with respect to any Letter of Credit, and no Lender shall be obligated to
participate in, any Letter of Credit if as of the date of such L/C Credit
Extension, (x) the Outstanding Amount of all L/C Obligations and all Loans
would exceed the Aggregate Commitments, (y) the aggregate Outstanding
Amount of the Loans of any Lender plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations would exceed such Lender's
Commitment, or (z) the Outstanding Amount of the L/C Obligations would
exceed the Letter of Credit Sublimit. Within the foregoing limits, and
subject to the terms and conditions hereof, the Borrower's ability to
obtain Letters of Credit shall be fully revolving, and accordingly the
Borrower may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn upon
and reimbursed.
(ii) The L/C Issuer shall be under no obligation to issue any Letter
of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the
L/C Issuer from issuing such Letter of Credit, or any Law applicable
to the L/C Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction
over the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or such
Letter of Credit in particular or shall impose upon the L/C Issuer
with respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which the L/C Issuer
in good ▇▇▇▇▇ ▇▇▇▇▇ material to it (for which the L/C Issuer is not
otherwise compensated hereunder);
(B) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last renewal, unless the Required Lenders
have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would
occur after the Maturity Date, unless all the Lenders have approved
such expiry date;
(D) the issuance of such Letter of Credit would violate one or
more policies of the L/C Issuer; or
(E) such Letter of Credit is in a face amount less than $100,000
or is denominated in a currency other than Dollars.
17
(iii) The L/C Issuer shall be under no obligation to amend any Letter
of Credit if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof, or
(B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit; Evergreen
---------------------------------------------------------------------
Letters of Credit.
-----------------
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of the Borrower delivered to the L/C Issuer (with
a copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Principal Officer of
the Borrower. Such L/C Application must be received by the L/C Issuer and
the Administrative Agent not later than 11:00 a.m., New York time, at
least two Business Days (or such later date and time as the L/C Issuer may
agree in a particular instance in its sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be. In the
case of a request for an initial issuance of a Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory
to the L/C Issuer: (A) the proposed issuance date of the requested Letter
of Credit (which shall be a Business Day); (B) the amount thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary thereof;
(E) the documents to be presented by such beneficiary in case of any
drawing thereunder; (F) the full text of any certificate to be presented
by such beneficiary in case of any drawing thereunder; and (G) such other
matters as the L/C Issuer may reasonably require. In the case of a request
for an amendment of any outstanding Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to the
L/C Issuer (w) the Letter of Credit to be amended; (x) the proposed date
of amendment thereof (which shall be a Business Day); (y) the nature of
the proposed amendment; and (z) such other matters as the L/C Issuer may
reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Borrower and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. The L/C Issuer shall
(subject, if the Letter of Credit Application requests an L/C Credit
Extension, to (x) receipt by the L/C Issuer of confirmation from the
Administrative Agent that such L/C Credit Extension is permitted hereunder
and (y) the terms and conditions hereof), on the requested date, issue or
amend the applicable Letter of Credit in accordance with the L/C Issuer's
usual and customary business practices. Immediately upon the issuance of
each Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the L/C Issuer a
participation in such Letter of Credit in an amount equal to the product
of such Lender's Pro Rata Share times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion,
agree to issue a Letter of Credit that has automatic renewal provisions
(each, an "Evergreen Letter of Credit"); provided that any such Evergreen
Letter of Credit must permit the L/C Issuer to prevent any such renewal at
least once in each twelve-month period (commencing with the date of
issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the "Nonrenewal Notice Date") in
each such twelve-month period to be agreed upon at the time such Letter of
Credit is issued. Unless otherwise directed by the L/C Issuer, the
Borrower shall not be required to make a specific request to the L/C
Issuer for any such renewal. Once an Evergreen Letter of Credit has been
issued, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer
18
to permit the renewal of such Letter of Credit at any time to a date
not later than the Maturity Date; provided that the L/C Issuer shall not
permit any such renewal if (A) the L/C Issuer would have no obligation at
such time to issue such Letter of Credit in its renewed form under the
terms hereof, or (B) it has received notice (which may be by telephone or
in writing) on or before the Business Day immediately preceding the
Nonrenewal Notice Date (1) from the Administrative Agent that the Required
Lenders have elected not to permit such renewal or (2) from the
Administrative Agent, any Lender or the Borrower that one or more of the
applicable conditions specified in Section 4.03 is not then satisfied.
Notwithstanding anything to the contrary contained herein, the L/C Issuer
shall have no obligation to permit the renewal of any Evergreen Letter of
Credit at any time.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto
or to the beneficiary thereof, the L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
------------------------------------------------------
(i) Upon any drawing under any Letter of Credit, the L/C Issuer
shall notify the Borrower and the Administrative Agent thereof. Not later
than 11:00 a.m., New York time, on the date of any payment by the L/C
Issuer under a Letter of Credit (each such date, an "Honor Date"), the
Borrower shall reimburse the L/C Issuer through the Administrative Agent
in an amount equal to the amount of such drawing. If the Borrower fails to
so reimburse the L/C Issuer by such time, the Administrative Agent shall
promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the "Unreimbursed Amount"), and such Lender's Pro
Rata Share thereof. In such event, the Borrower shall be deemed to have
requested a Borrowing of Base Rate Loans to be disbursed on the Honor Date
in an amount equal to the Unreimbursed Amount, without regard to the
minimum and multiples specified in Section 2.02 for the principal amount
of Base Rate Loans, but subject to the amount of the unutilized portion of
the Aggregate Commitments and the conditions set forth in Section 4.03
(other than the delivery of a Loan Notice). Any notice given by the L/C
Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may
be given by telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(ii) Each Lender (including the Lender acting as L/C Issuer) shall
upon any notice pursuant to Section 2.03(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer at the
Administrative Agent's Office in an amount equal to its Pro Rata Share of
the Unreimbursed Amount not later than 1:00 p.m., New York time, on the
Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.03(c)(iii), each Lender
that so makes funds available shall be deemed to have made a Base Rate
Loan to the Borrower in such amount. The Administrative Agent shall remit
the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Borrowing of Base Rate Loans because the conditions set
forth in Section 4.03 cannot be satisfied or for any other reason, the
Borrower shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In
such event, each Lender's payment to the Administrative Agent
19
for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be
deemed payment in respect of its participation in such L/C Borrowing and
shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.
(iv) Until a Lender funds its Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any
Letter of Credit, interest in respect of such Lender's Pro Rata Share of
such amount shall be solely for the account of the L/C Issuer.
(v) Each Lender's obligation to make Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(c), shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender may
have against the L/C Issuer, the Borrower or any other Person for any
reason whatsoever; (B) the occurrence or continuance of a Material Adverse
Effect or a Default or Event of Default; or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing. Any
such reimbursement shall not relieve or otherwise impair the obligation of
the Borrower to reimburse the L/C Issuer for the amount of any payment
made by the L/C Issuer under any Letter of Credit, together with interest
as provided herein.
(vi) If any Lender fails to make available to the Administrative
Agent for the account of the L/C Issuer any amount required to be paid by
such Lender pursuant to the foregoing provisions of this Section 2.03(c)
by the time specified in Section 2.03(c)(ii), the L/C Issuer shall be
entitled to recover from such Lender, on demand, such amount with interest
thereon for the period from the date such payment is required to the date
on which such payment is immediately available to the L/C Issuer at a rate
per annum equal to the Federal Funds Rate from time to time in effect. A
certificate of the L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause
(vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
---------------------------
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C
Advance in respect of such payment in accordance with Section 2.03(c), if
the Administrative Agent receives for the account of the L/C Issuer any
payment related to such Letter of Credit (whether directly from the
Borrower or otherwise, including proceeds of Cash Collateral applied
thereto by the Administrative Agent), or any payment of interest thereon,
the Administrative Agent will distribute to such Lender its Pro Rata Share
thereof in the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned, each Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand
to the date such amount is returned by such Lender, at a rate per annum
equal to the Federal Funds Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the
--------------------
L/C Issuer for each drawing under each Letter of Credit, and to repay each L/C
Borrowing and each drawing under a Letter of Credit that is refinanced by a
Borrowing of Loans, shall be absolute, unconditional and
20
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) the existence of any claim, counterclaim, set-off, defense or
other right that the Borrower may have at any time against any beneficiary
or any transferee of such Letter of Credit (or any Person for whom any
such beneficiary or any such transferee may be acting), the L/C Issuer or
any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented
under such 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; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by the
L/C Issuer under such Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to
any beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying
------------------
any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. No Agent-Related Person
nor any of the respective correspondents, participants or assignees of the L/C
Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the
Required Lenders, as applicable; (ii) any action taken or omitted in the absence
of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or Letter of Credit Application. The Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or transferee with
respect to its use of any Letter of Credit; provided that this assumption is not
intended to, and shall not, preclude the Borrower's pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under
any other agreement. No Agent-Related Person, nor any of the respective
correspondents, participants or assignees of the L/C
21
Issuer, shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.03(e); provided that anything in such
clauses to the contrary notwithstanding, the Borrower may have a claim against
the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent,
but only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Borrower which the Borrower proves were caused by the
L/C Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C 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 the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral. If, as of the Maturity Date, any Letter of Credit may
---------------
for any reason remain outstanding and partially or wholly undrawn, the Borrower
shall, upon the request of the Administrative Agent (made at the request of the
Required Lenders), immediately Cash Collateralize the then Outstanding Amount of
all L/C Obligations (in an amount equal to such Outstanding Amount).
(h) Applicability of ISP98. Unless otherwise expressly agreed by the L/C
----------------------
Issuer and the Borrower when a Letter of Credit is issued, rules of the
"International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative
---------------------
Agent for the account of each Lender in accordance with its Pro Rata Share a
Letter of Credit fee for each Letter of Credit equal to the Applicable Rate
times the actual daily maximum amount available to be drawn under such Letter of
Credit. Such fee for each Letter of Credit shall be due and payable on the last
Business Day of each March, June, September and December, commencing with the
first such date to occur after the issuance of such Letter of Credit, and on the
Letter of Credit Expiration Date. If there is any change in the Applicable Rate
during any quarter, the actual daily amount of each Letter of Credit shall be
computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
------------------------------------------------------------------
Issuer. The Borrower shall pay directly to the L/C Issuer for its own account a
------
fronting fee in an amount set forth in the Fee Letter, due and payable quarterly
in arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter
of Credit, and on the Letter of Credit Expiration Date. In addition, the
Borrower shall pay directly to the L/C Issuer for its own account the customary
issuance, administration, presentation, amendment and other processing fees, and
other standard costs and charges, of the L/C Issuer relating to letters of
credit as from time to time in effect. Such fees and charges are due and payable
on demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any
------------------------------------------
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
22
2.04 Prepayments.
-----------
(a) The Borrower may, upon notice to the Administrative Agent, at any
time or from time to time voluntarily prepay Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received by the
Administrative Agent not later than 11:00 a.m., New York time, (A) three
Business Days prior to any date of prepayment of Eurodollar Rate Loans, and (B)
on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurodollar
Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Loans shall
be in a principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof, provided that Base Rate Loans borrowed pursuant to Section 2.03(c)(i)
may be prepaid in full in an amount equal to the amount so borrowed. Each such
notice shall specify the date and amount of such prepayment and the Type(s) of
Loans to be prepaid. The Administrative Agent will promptly notify each Lender
of its receipt of each such notice, and of such Lender's Pro Rata Share of such
prepayment. If such notice is given by the Borrower, the Borrower shall make
such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 3.05. Each such prepayment shall
be applied to the Loans of the Lenders in accordance with their respective Pro
Rata Shares.
(b) If for any reason the Outstanding Amount of all Loans and L/C
Obligations at any time exceeds the Aggregate Commitments then in effect, the
Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess.
(c) Upon the receipt, on or before the seventh day after the Technologies
IPO, by Technologies of Net Cash Proceeds that are not applied to repay or
prepay loans outstanding made under the Bridge Credit Agreement or under the
364-Day Credit Agreement, the Borrower shall immediately prepay the Loans in an
amount equal to 100% of such Net Cash Proceeds.
(d) If the Technologies IPO does not occur on or before August 20, 2001,
the Borrower shall immediately prepay the Loans and other Obligations, and the
Aggregate Commitments shall immediately terminate without further action by the
Administrative Agent or any Lender.
2.05 Reduction or Termination of Commitments. The Borrower may, upon
---------------------------------------
notice to the Administrative Agent, terminate the Aggregate Commitments, or
permanently reduce the Aggregate Commitments to an amount not less than the then
Outstanding Amount of all Loans and L/C Obligations; provided that (i) any such
notice shall be received by the Administrative Agent not later than 11:00 a.m.,
three Business Days prior to the date of termination or reduction, and (ii) any
such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof. The Administrative Agent shall
promptly notify the Lenders of any such notice of reduction or termination of
the Aggregate Commitments. Once reduced in accordance with this Section, the
Aggregate Commitments may not be increased. Any reduction of the Aggregate
Commitments shall be applied to the Commitment of each Lender according to its
Pro Rata Share.
2.06 Repayment of Loans. On the Maturity Date, the Borrower shall repay to
------------------
the Lenders the aggregate principal amount of Loans outstanding on such date.
2.07 Interest.
---------
(a) Subject to the provisions of Section 2.7(b), (i) each Eurodollar Rate
Loan shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to
23
the Eurodollar Rate for such Interest Period plus the Applicable Rate and (ii)
each Base Rate Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the Base
Rate.
(b) Upon the request of the Administrative Agent (made with the consent
or at the direction of the Required Lenders) at any time an Event of Default
exists, the Borrower shall pay interest on the principal amount of all
outstanding Obligations (which shall include past-due interest and fees to the
fullest extent permitted by applicable Law) at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent permitted by
applicable Law. Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.08 Fees. In addition to certain fees described in Sections 2.03(i) and
----
(j):
(a) Facility Fee. The Borrower shall pay to the Administrative Agent for
------------
the account of each Lender in accordance with its Pro Rata Share, a Facility Fee
(herein so called) equal to the amount set forth in the definition of Applicable
Rate times the actual daily amount of the Aggregate Commitments, regardless of
usage. The Facility Fee shall accrue at all times from the Closing Date until
the Maturity Date and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with the
first such date to occur after the Closing Date, and on the Maturity Date. The
Facility Fee shall be calculated quarterly in arrears, and if there is any
change in the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect. The Facility Fee
shall accrue at all times, including at any time during which one or more of the
conditions in Article IV is not met.
(b) Utilization Fee. The Borrower shall pay to the Administrative Agent
---------------
for the account of each Lender in accordance with its Pro Rata Share, a
Utilization Fee (herein so called) equal to the amount set forth in the
definition of Applicable Rate times the actual daily aggregate Outstanding
Amount of Loans and L/C Obligations for each day that such aggregate Outstanding
Amount exceeds 33% of the Aggregate Commitments. The Utilization Fee shall be
due and payable quarterly in arrears on the last Business Day of each March,
June, September and December, commencing with the first such date to occur after
the Closing Date, and on the Maturity Date. The Utilization Fee shall be
calculated quarterly in arrears, and if there is any change in the Applicable
Rate during any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect. The Utilization Fee shall accrue at all
times, including at any time during which one or more of the conditions in
Article IV is not met.
(c) Other Fees. The Borrower shall pay the other fees set forth in the
----------
Fee Letter in the amounts and at the times set forth therein.
2.09 Computation of Interest and Fees. Interest on Base Rate Loans (if
--------------------------------
determined under clause (b) of the definition of Base Rate) shall be calculated
on the basis of a year of 365 or 366 days, as the case may be, and the actual
number of days elapsed. All other types of interest and all fees shall be
calculated on the basis of a year of 360 days and the actual number of days
elapsed, which results in a higher yield to the payee thereof than a method
based on a year of 365 or 366 days. Interest shall accrue
24
on each Loan for the day on which the Loan is made, and shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such portion is
paid, provided that any Loan that is repaid on the same day on which it is made
shall bear interest for one day.
2.10 Evide9nce of Debt.
-----------------
(a) The Credit Extensions made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be rebuttable presumptive
evidence of the amount of the Credit Extensions made by the Lenders to the
Borrower and the interest and payments thereon. Any failure so to record or any
error in doing so shall not, however, limit or otherwise affect the obligation
of the Borrower hereunder to pay any amount owing with respect to the Loans and
L/C Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of such Lender shall
control. Upon the request of any Lender made through the Administrative Agent,
such Lender's Loans may be evidenced by a Note in addition to such accounts or
records. Each Lender may attach schedules to its Note and endorse thereon the
date, Type (if applicable), amount and maturity of the applicable Loans and
payments with respect thereto.
(b) In addition to the accounts and records referred to in Section
2.10(a), each Lender and the Administrative Agent shall maintain in accordance
with its usual practice accounts or records evidencing the purchases and sales
by such Lender of participations in Letters of Credit. In the event of any
conflict between the accounts and records maintained by the Administrative Agent
and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control.
2.11 Payments Generally.
------------------
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 12:00 noon,
New York time, on the date specified herein. The Administrative Agent will
promptly distribute to each Lender its Pro Rata Share (or other applicable share
as provided herein) of such payment in like funds as received by wire transfer
to such Lender's Lending Office. All payments received by the Administrative
Agent after 12:00 noon, New York time, shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue.
(b) If any payment to be made by the Borrower shall come due on a day
other than a Business Day, payment shall be made on the next following Business
Day (unless such Business Day falls in another calendar month in which case such
payment shall be made on the next preceding Business Day), and such extension of
time shall be reflected in computing interest or fees, as the case may be.
(c) If, at any time prior to the Obligations being accelerated or
otherwise becoming due and payable in full, insufficient funds are received by
and available to the Administrative Agent to pay fully all amounts of principal,
L/C Borrowings, interest and fees then due hereunder, such funds shall be
applied (i) first, toward repayment of principal and L/C Borrowings then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and L/C Borrowings then due to such parties, (ii) second,
toward repayment of interest and fees then due hereunder, ratably among
25
the parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (iii) third, toward costs and expenses (including
-----
Attorney Costs and amounts payable under Article III) incurred by the
Administrative Agent and each Lender. If. at any time after the Obligations are
accelerated or otherwise become due and payable in full, funds are received by
and available to the Administrative Agent to pay the Obligations, such funds
shall be applied (i) first, toward costs and expenses (including Attorney Costs
-----
and amounts payable under Article III) incurred by the Administrative Agent and
each Lender, (ii) second, toward repayment of interest and fees then due
------
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (iii) third, toward
-----
repayment of principal and L/C Borrowings then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal and L/C
Borrowings then due to such parties.
(d) Unless the Borrower or any Lender has notified the Administrative
Agent prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Borrower or such Lender, as the case may be, has timely made such payment and
may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
(i) if the Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in immediately
available funds, together with interest thereon in respect of each day
from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to
the Administrative Agent in immediately available funds, at the Federal
Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the period
from the date such amount was made available by the Administrative Agent
to the Borrower to the date such amount is recovered by the Administrative
Agent (the "Compensation Period") at a rate per annum equal to the Federal
Funds Rate from time to time in effect. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's
Loan, included in the applicable Borrowing. If such Lender does not pay
such amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent may make a demand therefor upon the Borrower, and the
Borrower shall pay such amount to the Administrative Agent, together with
interest thereon for the Compensation Period at a rate per annum equal to
the rate of interest applicable to the applicable Borrowing. Nothing
herein shall be deemed to relieve any Lender from its obligation to
fulfill its Commitment or to prejudice any rights which the Administrative
Agent or the Borrower may have against any Lender as a result of any
default by such Lender hereunder.
A notice of the Administrative Agent to any Lender with respect to any
amount owing under this Section 2.11(d) shall be conclusive, absent manifest
error.
(e) If any Lender makes available to the Administrative Agent funds for
any Loan to be made by such Lender as provided in the foregoing provisions of
this Article II, and the conditions to the applicable Credit Extension set forth
in Article IV are not satisfied or waived in accordance with the
26
terms hereof, the Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund
participations in Letters of Credit are several and not joint. The failure of
any Lender to make any Loan or to fund any such participation on any date
required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.12 Sharing of Payments. If, other than as expressly provided elsewhere
-------------------
herein, any Lender shall obtain on account of the Loans made by it, or the
participations in L/C Obligations held by it, any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its ratable share (or other share contemplated hereunder) thereof,
such Lender shall immediately (a) notify the Administrative Agent of such fact,
and (b) purchase from the other Lenders such participations in the Loans made by
them and/or such subparticipations in the participations in L/C Obligations held
by them, as the case may be, as shall be necessary to cause such purchasing
Lender to share the excess payment in respect of such Loan or such
participations, as the case may be, pro rata with each of them; provided that if
all or any portion of such excess payment is thereafter recovered from the
purchasing Lender, such purchase shall to that extent be rescinded and each
other Lender shall repay to the purchasing Lender the purchase price paid
therefor, together with an amount equal to such paying Lender's ratable share
(according to the proportion of (i) the amount of such paying Lender's required
repayment 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. The Borrower agrees that any Lender so
purchasing a participation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off, but subject to Section 10.09) with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the amount
of such participation. The Administrative Agent will keep records (which shall
be conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Lenders following
any such purchases or repayments. Each Lender that purchases a participation
pursuant to this Section shall from and after such purchase have the right to
give all notices, requests, demands, directions and other communications under
this Agreement with respect to the portion of the Obligations purchased to the
same extent as though the purchasing Lender were the original owner of the
Obligations purchased.
2.13 Regulation D Compensation. Each Lender may require the Borrower to
-------------------------
pay, contemporaneously with each payment of interest on the Eurodollar Rate
Loans, additional interest on the related Eurodollar Rate Loan of such Lender at
a rate per annum determined by such Lender up to but not exceeding the excess of
(i) (A) the applicable Eurodollar Rate divided by (B) one minus the Eurodollar
Reserve Percentage over (ii) the applicable Eurodollar Rate. Any Lender wishing
to require payment of such additional interest (x) shall so notify the Borrower
and the Administrative Agent, in which case such additional interest on the
Eurodollar Rate Loans of such Lender shall be payable to such Lender at the
place indicated in such notice with respect to each Interest Period commencing
at least three Business Days after such Lender gives such notice and (y) shall
notify the Borrower at least five Business Days before each date on which
interest is payable on the Eurodollar Rate Loans of the amount then due under
this Section 2.13.
27
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
-----
(a) Any and all payments by the Borrower to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its net
income, and franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the Laws of which the
Administrative Agent or such Lender, as the case may be, is organized or
maintains a lending office (all such non-excluded taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be
required by any Laws to deduct any Taxes from or in respect of any sum payable
under any Loan Document to the Administrative Agent or any Lender, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section), the Administrative Agent and such Lender receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable Laws, and (iv) within 30 days after the date of such
payment, the Borrower shall furnish to the Administrative Agent (which shall
forward the same to such Lender) the original or a certified copy of a receipt
evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp, court or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay any Taxes or Other
Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent (for the account of such Lender) or to such Lender, at the
time interest is paid, such additional amount that such Lender specifies is
necessary to preserve the after-tax yield (after factoring in all taxes,
including taxes imposed on or measured by net income) such Lender would have
received if such Taxes or Other Taxes had not been imposed.
(d) The Borrower agrees to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by the Administrative Agent and such Lender, (ii) amounts
payable under Section 3.01(c) and (iii) any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, in each case
whether or not such Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. Payment under this Section
3.01(d) shall be made within 30 days after the date the Lender or the
Administrative Agent makes a demand therefor.
(e) Each Lender organized under the Laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
or the Administrative
28
Agent (but only so long as such Lender remains lawfully able to do so), shall
provide the Borrower and the Administrative Agent with (i) if such Lender is a
"bank" within the meaning of Section 881(c)(3)(A) of the Code, IRS Form W-8BEN
or W-8ECI, as appropriate, or any successor form prescribed by the IRS,
certifying that such Lender is entitled to benefits under an income tax treaty
to which the United States is a party which exempts withholding tax on (or, in
the case of a form delivered subsequent to the date on which a form originally
was provided, reduces the rate of withholding tax on) payments of interest or
certifying that the income receivable pursuant to this Agreement is effectively
connected with the conduct of a trade or business in the United States, or (ii)
if such Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code and intends to claim an exemption from United States withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest," a Form W-8, or any successor or other applicable form prescribed by
the IRS, and a certificate representing that such Lender is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Code) of the Borrower, and is not a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Code). Each Lender which so delivers a Form ▇-▇,
▇-▇▇▇▇, ▇▇ ▇-▇▇▇▇ further undertakes to deliver to the Borrower and the
Administrative Agent additional forms (or a successor form) on or before the
date such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form so delivered by it, in each case
certifying that such Lender is entitled to receive payments from the Borrower
under any Loan Document without deduction or withholding (or at a reduced rate
of deduction or withholding) of any United States federal income taxes, unless
an event (including without limitation any change in treaty, law, or regulation)
has occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender advises the Borrower and the Administrative Agent that it is not
capable of receiving such payments without any deduction or withholding of
United States federal income tax.
(f) Failure to Provide Withholding Forms; Changes in Tax Laws. For any
---------------------------------------------------------
period with respect to which a Lender has failed to provide the Borrower and the
Administrative Agent with the appropriate form pursuant to Section 3.01(e)
(unless such failure is due to a change in Law occurring subsequent to the date
on which a form originally was required to be provided), such Lender shall not
be entitled to indemnification under Section 3.01(a) or 3.01(b) with respect to
Taxes imposed by the United States; provided, however, that should a Lender,
which is otherwise exempt from or subject to a reduced rate of withholding tax,
become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such Taxes.
(g) Change in Applicable Lending Office. If Borrower is required to pay
-----------------------------------
additional amounts to or for the account of any Lender pursuant to this Section
3.01, then such Lender will agree to use reasonable efforts to change the
jurisdiction of its Lending Office so as to eliminate or reduce any such
additional payment which may thereafter accrue if such change, in the reasonable
judgment of such Lender, is not otherwise materially disadvantageous to such
Lender.
3.02 Illegality. If any Lender determines that any Law has made it
----------
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or materially restricts the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the applicable offshore
Dollar market, or to determine or charge interest rates based upon the
Eurodollar Rate, then, on notice thereof by such Lender to the Borrower through
the Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans
(but not to make, maintain or fund Base Rate Loans) shall be suspended until
such Lender notifies the Administrative
29
Agent and the Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, the Borrower shall, upon demand
from such Lender (with a copy to the Administrative Agent), convert all
Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day
of the Interest Period thereof, if such Lender may lawfully continue to maintain
such Eurodollar Rate Loans to such day, or on such earlier date after which such
Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon
any such conversion, the Borrower shall also pay accrued interest on the amount
so converted. Each Lender agrees to designate a different Lending Office if such
designation will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to such Lender.
3.03 Inability to Determine Rates. If the Administrative Agent determines
----------------------------
in connection with any request for a Eurodollar Rate Loan or a conversion to or
continuation thereof that (a) Dollar deposits are not being offered to banks in
the applicable offshore Dollar market for the applicable amount and Interest
Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not
exist for determining the Eurodollar Base Rate for such Eurodollar Rate Loan or
(c) the Eurodollar Base Rate for such Eurodollar Rate Loan does not adequately
and fairly reflect the cost to the Lenders of funding such Eurodollar Rate Loan,
the Administrative Agent will promptly notify the Borrower and all Lenders.
Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate
Loans shall be suspended until the Administrative Agent revokes such notice.
Upon receipt of such notice, the Borrower may revoke any pending request for a
Borrowing, conversion or continuation of Eurodollar Rate Loans or, failing that,
will be deemed to have converted such request into a request for a Borrowing of
Base Rate Loans in the amount specified therein.
3.04 Increased Cost and Reduced Return; Capital Adequacy.
---------------------------------------------------
(a) If any Lender determines that as a result of the introduction of or
any change in or in the interpretation of any Law, or such Lender's compliance
therewith, there shall be any increase in the cost to such Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Loans or (as the case may
be) issuing or participating in Letters of Credit, or a reduction in the amount
received or receivable by such Lender in connection with any of the foregoing
(excluding for purposes of this Section 3.04(a) any such increased costs or
reduction in amount resulting from (i) Taxes or Other Taxes (as to which Section
3.01 shall govern), (ii) changes in the basis of taxation of overall net income
or overall gross income by the United States or any foreign jurisdiction or any
political subdivision of either thereof under the Laws of which such Lender is
organized or has its Lending Office, and (iii) reserve requirements contemplated
by Section 2.13), then from time to time upon demand of such Lender (with a copy
of such demand to the Administrative Agent), the Borrower shall pay to such
Lender such additional amounts as will compensate such Lender for such increased
cost or reduction.
(b) If any Lender determines that the introduction of any Law regarding
capital adequacy or any change therein or in the interpretation thereof, or
compliance by such Lender (or its Lending Office) therewith, has the effect of
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder
(taking into consideration its policies with respect to capital adequacy) by an
amount such Lender deems material, then from time to time upon demand of such
Lender (with a copy of such demand to the Administrative Agent), the Borrower
shall pay to such Lender such additional amounts as will compensate such Lender
for such reduction.
3.05 Funding Losses. Upon demand of any Lender (with a copy to the
--------------
Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:
30
(a) any continuation, conversion, payment or prepayment of any Eurodollar
Rate Loan on a day other than the last day of the Interest Period for such Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or
otherwise);
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any
Eurodollar Rate Loan on the date or in the amount notified by the Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last
day of the Interest Period therefor as a result of a request by the Borrower
pursuant to Section 10.15;
including any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained, but excluding any Applicable Rate.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Base Rate used in determining the
Eurodollar Rate for such Loan by a matching deposit or other borrowing in the
applicable offshore Dollar interbank market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan was in fact so
funded.
3.06 Matters Applicable to all Requests for Compensation.
---------------------------------------------------
(a) The applicable Lender shall notify the Administrative Agent and the
Borrower as soon as practicable (and in any event within 120 days) after such
Lender obtains actual knowledge of any event or condition which will entitle
such Lender to compensation under Section 3.01 or 3.04, and the Borrower shall
not be liable for any such amount that accrues between the date such
notification is required to be given to the Borrower and the date such notice is
actually given to the Borrower.
(b) A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth in reasonable detail the
basis for and calculation of the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. In determining
such amount, the Administrative Agent or such Lender may use any reasonable
averaging and attribution methods.
(c) Upon any Lender making a claim for compensation under Section 3.01 or
3.04 or notifying the Borrower that such Lender may not make or maintain
Eurodollar Rate Loans pursuant to Section 3.02, the Borrower may remove or
replace such Lender in accordance with Section 10.15.
3.07 Survival. All of the Borrower's obligations under this Article III
--------
shall survive termination of the Commitments and payment in full of all the
Obligations.
Article IV.
CONDITIONS PRECEDENT TO Credit Extensions
4.01 Conditions of Initial Credit Extension. The obligation of each Lender
--------------------------------------
to make its initial Credit Extension hereunder is subject to satisfaction of the
following conditions precedent:
31
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Principal Officer of the
applicable party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent and its legal
counsel:
(i) executed counterparts of this Agreement, sufficient in number
for distribution to the Administrative Agent, each Lender and the
Borrower;
(ii) a Note executed by the Borrower in favor of each Lender
requesting a Note, each in a principal amount equal to such Lender's
Commitment;
(iii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Principal Officers of FMC and
Technologies as the Administrative Agent may request to establish the
identities of and verify the authority and capacity of each Principal
Officer thereof authorized to act as a Principal Officer in connection
with this Agreement and the other Loan Documents to which FMC or
Technologies is a party;
(iv) such evidence as the Administrative Agent may reasonably
request to verify that each of FMC and Technologies is duly incorporated,
validly existing and in good standing in its jurisdiction of
incorporation, including certified copies of the certificate of
incorporation and bylaws of each of FMC and Technologies and certificates
of good standing for each of FMC and Technologies in its jurisdiction of
incorporation;
(v) a certificate signed by a Principal Officer of FMC (A)
certifying that the conditions specified in Sections 4.03(a) and (b) have
been satisfied, (B) certifying that there has been no event or
circumstance since December 31, 2000, which has had or could be reasonably
expected to have a Material Adverse Effect, and (c) showing the Debt
Ratings of FMC on the Closing Date;
(vi) an opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Associate General Counsel of
FMC, substantially in the form of Exhibit C;
(vii) an opinion of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, counsel to FMC and
Technologies, substantially in the form of Exhibit D; and
(viii) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent or the Required Lenders reasonably
may require.
(b) Any fees required to be paid on or before the Closing Date pursuant
to the Fee Letter shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have
paid all Attorney Costs of the Administrative Agent to the extent invoiced prior
to or on the Closing Date, plus such additional amounts of Attorney Costs as
shall constitute its reasonable estimate of Attorney Costs incurred or to be
incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude a final settling of accounts between the Borrower
and the Administrative Agent).
(d) No event or circumstance shall have occurred since December 31, 2000
that has had or could reasonably be expected to have a Material Adverse Effect.
32
4.02 Conditions to the Assumption. The Assumption shall become effective
----------------------------
on the date (the "Assumption Date") when, but only when, the following
conditions precedent have been satisfied:
(a) The transfer of substantially all of the assets by FMC to
Technologies, and the assumption of the liabilities of FMC by Technologies, each
as described in the Registration Statement, shall have occurred.
(b) FMC shall have assigned to Technologies, and Technologies shall have
assumed, all of the obligations of FMC under the Bridge Credit Agreement.
(c) No Default or Event of Default shall exist or would result from the
Assumption.
(d) The representations and warranties of the Borrower contained in
Article V shall be true and correct in all material respects on the Assumption
Date after giving effect to the Assumption, except to the extent that such
representation and warranties specifically refer to an earlier date, in which
case they shall have been true and correct in all material respects as of such
earlier date.
(e) The Administrative Agent shall have received each of the following,
in form and substance satisfactory to it:
(i) a Note executed by Technologies in favor of each Lender
requesting a Note, each in a principal amount equal to such Lender's
Commitment, which Note shall be in substitution and replacement of the
Note, if any, executed by FMC in favor of such Lender pursuant to Section
4.01(a)(2);
(ii) the Guaranty executed by FMC;
(iii) a certificate of the Secretary or an Assistant Secretary of
Technologies or FMC, as the case may be, certifying any changes in the
certificate of incorporation or bylaws of Technologies or FMC, as the case
may be, delivered pursuant to Section 4.01(a)(iv);
(iv) bring-down certificates of Governmental Authorities attesting
to the existence and good standing of each of Technologies and FMC in its
jurisdiction of incorporation;
(v) an opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, counsel to Technologies,
addressing such matters as the Administrative Agent may reasonably
request;
(vi) an opinion of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, counsel to FMC, addressing
such matters as the Administrative Agent may reasonably request;
(vii) all documents (including an incumbency certificate and
certification by the Secretary or Assistant Secretary of each of
Technologies and FMC of board resolutions) it may reasonably request
relating to the existence of Technologies or FMC, as the case may be, the
corporate authority for and the validity of the Loan Documents, and any
other matter relevant hereto;
(viii) a certificate of a Principal Officer of Technologies
certifying that the conditions specified in Sections 4.02(a), (b), (c) and
(d) have been satisfied;
33
(ix) executed copies of the Separation and Distribution Agreement,
the U.S. Purchase Agreement, the International Purchase Agreement, the Tax
Sharing Agreement, and the Transition Services Agreement (and any related
agreements requested by the Administrative Agent), and a list of
Subsidiaries of Technologies, each as described in, and substantially in
the form filed as exhibits to, the Registration Statement and each having
terms and conditions reasonably acceptable to the Administrative Agent;
and
(x) such other documents, instruments or materials as the
Administrative Agent or the Required Lenders may reasonably request.
4.02 Conditions to all Credit Extensions. The obligation of each Lender to
-----------------------------------
make any Credit Extension is subject to satisfaction of the following conditions
precedent:
(a) The representations and warranties of the Borrower contained in
Article V shall be true and correct in all material respects on and as of the
date of such Credit Extension, except to the extent that such representations
and warranties specifically refer to an earlier date, in which case they shall
have been true and correct in all material respects as of such earlier date,
except that the representations and warranties set forth in Sections 5.04(b) and
5.05 shall be required to be true and correct in all material respects only on
the date of the initial Credit Extension and on the Assumption Date after giving
effect to the Assumption.
(b) No Default or Event of Default shall exist or would result from such
proposed Credit Extension.
(c) The Administrative Agent and, if applicable, the L/C Issuer shall
have received a Request for Credit Extension in accordance with the requirements
hereof.
(d) The Administrative Agent shall have received, in form and substance
satisfactory to it, such other assurances, certificates, documents or consents
related to the foregoing as the Administrative Agent or the Required Lenders may
reasonably request.
Each Request for Credit Extension submitted by the Borrower shall be
deemed to be a representation and warranty that the conditions specified in
Sections 4.03(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension.
4.04 Guaranty Release Conditions. The Guaranty shall be released and
---------------------------
discharged, without any action by the Administrative Agent or any Lender, on the
date (the "Guaranty Release Date") when, but only when, the following conditions
precedent (the "Guaranty Release Conditions") have been satisfied:
(a) The Technologies IPO shall have been consummated.
(b) The capitalization of Technologies shall be as set forth in the
amendment to the Registration Statement filed with the Securities and Exchange
Commission on April 4, 2001, with such changes to such capitalization as may be
acceptable to the Administrative Agent in its sole discretion.
(c) The Debt Ratings of Technologies shall be at least BBB- by S&P and at
least Baa3 by ▇▇▇▇▇'▇.
34
(d) No Default or Event of Default shall exist or would result from the
release of the Guaranty.
(e) All obligations owing under the Bridge Credit Agreement shall have
been paid in full and all commitments thereunder shall have been terminated.
(f) FMC shall have paid to Technologies any adjustment or "true-up" of
the "Final Calculation Amount" in accordance with Schedule 2.6(b) of the
Separation and Distribution Agreement described in Section 4.02(e)(ix).
(g) Technologies shall have delivered to the Administrative Agent a
certificate of a Principal Officer (i) certifying that the conditions set forth
in Sections 4.04(a), (b), (c), (d) and (e) have been satisfied, (ii) showing pro
forma compliance, assuming that the Assumption Date was April 1, 2000 and after
giving effect to the satisfaction of the Guaranty Release Conditions, with the
covenants set forth in Sections 7.06(c), 7.10(c), 7.10(d) and 7.10(e), and
stating pro forma compliance with the covenants set forth in Sections
7.01(b)(vii), 7.05(c) and 7.07, in each case as of ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇) showing
the Debt Ratings of Technologies on the Guaranty Release Date, and (iv)
certifying the accuracy and completeness, in all material respects (but subject
to adjustments as set forth in the Separation and Distribution Agreement
described in Section 4.02(e)(vii)), of an attached pro forma consolidated
balance sheet and income statement of Technologies and its Consolidated
Subsidiaries as of and for the four fiscal quarter period ended March 31, 2001,
assuming that the Assumption Date was April 1, 2000 and after giving effect to
the satisfaction of the Guaranty Release Conditions.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the
Lenders that:
5.01 Corporate or Partnership Existence and Power. The Borrower and each
--------------------------------------------
Material Subsidiary (a) is a corporation or partnership duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, (b) has all corporate or partnership powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business and (c) is duly qualified as a foreign corporation or
partnership and in good standing in each jurisdiction where qualification is
required by the nature of its business or the character and location of its
property, business or customers, except, as to clauses (b) and (c), where the
failure so to qualify or to have such licenses, authorizations, consents and
approvals, in the aggregate, would not have a Material Adverse Effect.
5.02 Corporate and Governmental Authorization; No Contravention. The
----------------------------------------------------------
execution, delivery and performance by the Borrower of this Agreement and the
Notes (and by FMC of the Guaranty) are within the Borrower's (and FMC's, in the
case of the Guaranty) corporate power, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any Governmental Authority and do not contravene, or constitute a default
under, any provision of applicable Law or of the certificate of incorporation or
bylaws of the Borrower or FMC or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Borrower or FMC or result in or
require the creation or imposition of any Lien on any asset of the Borrower or
FMC or any Subsidiary.
5.03 Binding Effect. This Agreement constitutes a legal, valid and binding
--------------
agreement of the Borrower and the Notes and the Guaranty, when executed and
delivered in accordance with this
35
Agreement, will constitute the legal, valid and binding obligations of the
Borrower (and FMC, in the case of the Guaranty), in each case enforceable in
accordance with their respective terms, except as such enforceability may be
limited by Debtor Relief Laws.
5.04 Financial Information.
---------------------
(a) The consolidated balance sheet of FMC and its Consolidated
Subsidiaries as of December 31, 2000, and the related consolidated statements of
income, cash flows and changes in stockholders' equity for the fiscal year then
ended, reported on by KPMG LLP and set forth in FMC's Annual Report on Form 10-K
for the fiscal year ended December 31, 2000, filed with the Securities and
Exchange Commission, a copy of which has been delivered to each of the Lenders,
fairly present in all material respects, in conformity with generally accepted
accounting principles, the consolidated financial position of FMC and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations, cash flows and changes in stockholders' equity for such fiscal year.
(b) There has been no change since December 31, 2000 which has a Material
Adverse Effect.
5.05 Litigation. There is no action, suit, proceeding or arbitration
----------
pending against, or to the knowledge of the Borrower threatened against or
affecting, the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable likelihood of an adverse decision which would have a Material Adverse
Effect or which in any manner questions the validity or enforceability of this
Agreement, the Notes or the Guaranty.
5.06 Compliance with ERISA. Each member of the ERISA Group has fulfilled
---------------------
its obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code with respect to each Plan.
No member of the ERISA Group has (a) sought a waiver of the minimum funding
standard under Section 412 of the Code in respect of any Plan, (b) failed to
make any contribution or payment to any Plan or Multiemployer Plan or made any
amendment to any Plan which in either case has resulted or could result in the
imposition of a Lien or the posting of a bond or other security under ERISA or
the Code or (c) incurred any liability under Title IV of ERISA other than a
liability to the PBGC for premiums under Section 4007 of ERISA.
5.07 Environmental Matters. In the ordinary course of its business, the
---------------------
Borrower conducts an ongoing review of the effect of Environmental Laws on the
business, operations and properties of the Borrower and its Subsidiaries, in the
course of which it identifies and evaluates associated liabilities and costs
(including any capital or operating expenditures required for clean-up or
closure of properties presently or previously owned, any capital or operating
expenditures required to achieve or maintain compliance with environmental
protection standards imposed by law or as a condition of any license, permit or
contract, any related constraints on operating activities, including any
periodic or permanent shutdown of any facility or reduction in the level of or
change in the nature of operations conducted thereat and any actual or potential
liabilities to third parties, including employees, and any related costs and
expenses). On the basis of this review, the Borrower has reasonably concluded
that Environmental Laws are unlikely to have a Material Adverse Effect.
5.08 Taxes. United States Federal income tax returns of FMC and its
-----
Subsidiaries have been examined and closed through the fiscal year ended
December 31, 1992. The Borrower and each Subsidiary have filed all United States
Federal income tax returns and all other material tax returns that are required
to be filed by them and have paid all taxes due pursuant to such returns or
pursuant to any
36
assessment received by any of them, except for any such taxes being diligently
contested in good faith and by appropriate proceedings. Adequate reserves have
been provided on the books of the Borrower and its Subsidiaries in respect of
all taxes or other governmental charges in accordance with generally accepted
accounting principles, and no tax liabilities in excess of the amount so
provided are anticipated that could reasonably be expected to have a Material
Adverse Effect.
5.09 Full Disclosure. All information (other than financial projections)
---------------
heretofore furnished by the Borrower to the Administrative Agent or any Lender
for purposes of or in connection with this Agreement or any transaction
contemplated hereby (including the Technologies IPO) was, and all such
information hereafter furnished by the Borrower to the Administrative Agent or
any Lender will be, true and accurate in every material respect, and all
financial projections concerning the Borrower and its Subsidiaries that have
been or hereafter will be furnished by the Borrower to the Administrative Agent
or any Lender have been and will be prepared in good faith based on assumptions
believed by the Borrower to be reasonable.
5.10 Compliance with Laws. The Borrower and each Material Subsidiary are
--------------------
in compliance with all applicable Laws other than such Laws (a) the validity or
applicability of which the Borrower or such Material Subsidiary is contesting in
good faith or (b) failure to comply with which cannot reasonably be expected to
have a Material Adverse Effect.
5.11 Regulated Status. The Borrower is not an "investment company," within
----------------
the meaning of the Investment Company Act of 1940, or a "holding company" or a
"subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligations (other than Surviving Contingent Obligations) shall remain
unpaid or unsatisfied, or any Letter of Credit shall remain outstanding:
6.01 Information. The Borrower will deliver to the Administrative Agent
-----------
and each of the Lenders:
(a) within 90 days after the end of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as
of the end of such fiscal year and the related consolidated statements of
income, of cash flows and of changes in stockholders' equity for such fiscal
year, setting forth in each case in comparative form the figures as of the end
of and for the previous fiscal year, all in reasonable detail and reported on
without Qualification by KPMG LLP or other independent public accountants of
nationally recognized standing;
(b) within 45 days after the end of each of the first three quarters of
each fiscal year of the Borrower, a consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries as of the end of such quarter, and the related
consolidated statements of income for such quarter and for the portion of the
Borrower's fiscal year ended at the end of such quarter and the related
consolidated statement of cash flows for the portion of the Borrower's fiscal
year ended at the end of such quarter, setting forth in each case in comparative
form the consolidated balance sheet as of the end of the previous fiscal year
and the consolidated statements of income for the corresponding quarter and the
corresponding portion of the Borrower's previous fiscal year, all certified
(subject to normal year-end adjustments) as to fairness of
37
presentation and consistency by the chief financial officer, the treasurer or
the chief accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of financial statements
referred to in Sections 6.01(a) and (b), a Compliance Certificate of the chief
financial officer, the treasurer, or the chief accounting officer of the
Borrower (i) setting forth in reasonable detail such calculations as are
required to establish whether the Borrower was in compliance with the
requirements of Sections 7.06(c) and 7.10 and stating whether the Borrower was
in compliance with the requirements of Sections 7.01(a)(viii), 7.01(b)(vii),
7.05(c) and 7.07, as applicable to the Borrower, on the date of such financial
statements and (ii) stating whether there exists on the date of such certificate
any Default or Event of Default and, if any Default or Event of Default then
exists, setting forth the details thereof and the action that the Borrower is
taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial statements
referred to in Sections 6.01(a) and (b), a schedule, certified as to its
accuracy and completeness by the chief financial officer, the treasurer or the
chief accounting officer of the Borrower, listing in reasonable detail the Debt
balance of each Restricted Subsidiary where such Debt balance is in excess of
$1,000,000, listing only Debt instruments of $1,000,000 or more; provided that
no such schedule need be furnished if at the date of the related financial
statements (i) the aggregate amount of Debt of domestic Restricted Subsidiaries
did not exceed (A) $100,000,000 prior to the Assumption Date or (B) $50,000,000
from and after the Assumption Date and (ii) the aggregate amount of Debt of all
Restricted Subsidiaries did not exceed (C) $200,000,000 prior to the Assumption
Date or (D) $100,000,000 from and after the Assumption Date;
(e) within five Business Days after any officer of the Borrower obtains
knowledge of any Default or Event of Default, if such Default or Event of
Default is then continuing, a certificate of the chief financial officer, the
treasurer or the chief accounting officer of the Borrower setting forth the
details thereof and the action that the Borrower is taking or proposes to take
with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the Borrower
generally, copies of all financial statements, reports and proxy statements so
mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent), annual, quarterly or monthly reports and any
reports on Form 8-K (or any successor form) that the Borrower or any Subsidiary
shall have filed with the Securities and Exchange Commission;
(h) within 14 days after any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA which liability exceeds $1,000,000
or notice that any Multiemployer Plan is in reorganization, is insolvent or has
been terminated, a copy of such notice; (iii) receives notice from the PBGC
under Title IV of ERISA of an intent to terminate, impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or appoint a trustee to
administer, any Plan, a copy of such notice; (iv) applies for a waiver of the
minimum funding standard under Section 412 of the Code, a copy of such
application; (v) gives notice of intent to terminate any Plan under Section
4041(c) of ERISA, a copy of such notice and other information filed with the
PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of
ERISA, a copy of such notice; or (vii) fails to make any payment or contribution
to any Plan or
38
Multiemployer Plan or makes any amendment to any Plan which in either case has
resulted or could result in the imposition of a Lien or the posting of a bond or
other security, a certificate of the chief financial officer, the chief
accounting officer or the treasurer of the Borrower setting forth details as to
such occurrence and the action, if any, which the Borrower or applicable member
of the ERISA Group is required or proposes to take with respect thereto;
(i) as soon as practicable after a Principal Officer of the Borrower
obtains knowledge of the commencement of an action, suit or proceeding against
the Borrower or any Subsidiary before any court or arbitrator or any
governmental body, agency or official in which there is a reasonable likelihood
of an adverse decision which would have a Material Adverse Effect or which in
any manner questions the validity or enforceability of this Agreement or any of
the transactions contemplated hereby, information as to the nature of such
pending or threatened action, suit or proceeding; and
(j) from time to time such additional information regarding the business,
properties, financial position, results of operations, or prospects of the
Borrower or any Subsidiary as the Administrative Agent, at the request of any
Lender, may reasonably request.
Payment of Obligations. Borrower will pay and discharge, and will cause
each of its Subsidiaries to pay and discharge, at or before maturity, all their
respective material obligations and liabilities and all lawful taxes,
assessments and governmental charges or levies upon it or its property or
assets, except where the same may be diligently contested in good faith by
appropriate proceedings or where the failure to so pay and discharge would not
have a Material Adverse Effect, and will maintain, and will cause each of its
Subsidiaries to maintain, in accordance with United States generally accepted
accounting principles as in effect from time to time, appropriate reserves for
the accrual of any of the same.
6.03 Maintenance of Property; Insurance.
----------------------------------
(a) The Borrower will keep, and will cause each Restricted Subsidiary to
keep, all material property useful and necessary in its business in good working
order and condition, normal wear and tear excepted.
(b) The Borrower will, and will cause each of its Material Subsidiaries
to, maintain (either in the name of the Borrower or in such Material
Subsidiary's own name) with financially sound and responsible insurance
companies, insurance on all their respective properties in at least such amounts
and against at least such risks (and with such risk retention) as are usually
maintained in the same general area by companies of established repute engaged
in the same or a similar business; and will furnish to the Lenders, upon request
from the Administrative Agent, information presented in reasonable detail as to
the insurance so carried.
6.04 Inspection of Property, Books and Records. The Borrower will keep,
-----------------------------------------
and will cause each of its Subsidiaries to keep, proper books of record and
account in which full, true and correct entries shall be made of all dealings
and transactions in relation to its business and activities. Subject to Section
10.08, the Borrower will permit, and will cause each of its Subsidiaries to
permit, representatives of any Lender to visit and inspect any of their
respective properties, to examine their respective corporate, financial and
operating records and make copies thereof or abstracts therefrom, and to discuss
their respective affairs, finances and accounts with their respective directors,
officers, employees and independent public accountants (provided that the
Borrower shall have the right to participate in any discussions with such
accountants), all at such reasonable times and as often as may reasonably be
desired, upon reasonable advance notice to the Borrower.
39
6.05 Maintenance of Existence, Rights, Etc.
-------------------------------------
(a) The Borrower will preserve, renew and keep in full force and effect,
and will cause each of its Restricted Subsidiaries to preserve, renew and keep
in full force and effect their respective corporate or partnership existence and
their respective rights, privileges and franchises necessary or desirable in the
normal conduct of business, except when failure to do so would not have a
Material Adverse Effect; provided that nothing in this Section 6.05 shall
prohibit (i) a transaction permitted under Section 7.02 or (ii) the termination
of the corporate or partnership existence of any Restricted Subsidiary if the
Borrower in good faith determines that such termination is in the best interest
of the Borrower and would not have a Material Adverse Effect.
(b) At no time will any Unrestricted Subsidiary hold, directly or
indirectly, any capital stock of any Restricted Subsidiary.
Bridge Credit Agreement. The Borrower will terminate and repay in full all
obligations owing under the Bridge Credit Agreement within seven days after the
Technologies IPO.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligations (other than Surviving Contingent Obligations) shall remain
unpaid or unsatisfied, or any Letter of Credit shall remain outstanding:
7.01 Liens.
-----
(a) Prior to the Guaranty Release Date, FMC will not, and will not permit
any Restricted Subsidiary to, create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it, except:
(i) Liens existing on the date hereof, securing Debt outstanding
on the date hereof;
(ii) Liens incidental to the conduct of its business or the
ownership of its assets which (A) arise in the ordinary course of
business, (B) do not secure Debt and (C) do not in the aggregate
materially detract from the value of its assets or materially impair the
use thereof in the operation of its business;
(iii) Liens on property or assets of any Person existing at the time
such Person becomes a Restricted Subsidiary;
(iv) Liens on any property or assets existing at the time of
acquisition thereof (including acquisition through merger or
consolidation) to secure the payment of all or any part of the purchase
price or construction cost thereof or to secure any Debt incurred prior
to, at the time of or within 120 days after the later of the acquisition
of such property or assets or the completion of any such construction and
the commencement of operation of such property or assets, for the purpose
of financing all or any part of the purchase price or construction cost
thereof;
40
(v) Liens in favor of a Governmental Authority to secure payments
under any contract or statute, or to secure any Debt incurred in financing
the acquisition, construction or improvement of property subject thereto,
including Liens on, and created or arising in connection with the
financing of the acquisition, construction or improvement of, any facility
used or to be used in the business of FMC or any Restricted Subsidiary
through the issuance of obligations, the income from which shall be
excludable from gross income by virtue of Section 103 of the Code (or any
subsequently adopted provisions thereof providing for a specific exclusion
from gross income);
(vi) Liens on assets of Restricted Subsidiaries securing Debt owing
to FMC;
(vii) any extension, renewal, substitution, or replacement (or
successive extensions, renewals, substitutions or replacements), as a
whole or in part, of any Lien referred to in clauses (i) through (vi)
above or the Debt secured thereby; provided that (1) such extension,
renewal, substitution or replacement Lien shall be limited to all or any
part of the same property or assets or shares of stock or Debt that
secured the Lien extended, renewed, substituted or replaced (plus
improvements on such property) and (2) the Debt secured by such Lien at
such time is not increased; and
(viii) other Liens securing Debt in an aggregate principal amount at
any time outstanding not to exceed $150,000,000 at any time; provided
that, notwithstanding the foregoing, the Borrower will not, and will not
permit any Restricted Subsidiary to, create, assume or suffer to exist any
Lien permitted solely by this clause (viii) on any stock, indebtedness or
other security of any Unrestricted Subsidiary now owned or hereafter
acquired by it.
(b) From and after the Guaranty Release Date, the Borrower will not, and
will not permit any Restricted Subsidiary to, create, assume or suffer to exist
any Lien on any asset now owned or hereafter acquired by it, except:
(i) Liens existing on the date hereof and described on Schedule
7.01, securing Debt outstanding on the date hereof;
(ii) Liens incidental to the conduct of its business or the
ownership of its assets which (A) arise in the ordinary course of
business, (B) do not secure Debt and (C) do not in the aggregate
materially detract from the value of its assets or materially impair the
use thereof in the operation of its business;
(iii) Liens in favor of the Borrower or any other Restricted
Subsidiary;
(iv) Liens on any property or assets existing at the time of, or
incurred within 120 days after, the acquisition thereof (by purchase,
merger or otherwise), securing Debt incurred to pay the purchase price or
construction cost thereof, so long as such Liens do not and are not
extended to cover any other property or assets;
(v) Liens in favor of a Governmental Authority to secure payments
under any contract or statute, or to secure any Debt incurred in financing
the acquisition, construction or improvement of property subject thereto,
including Liens on, and created or arising in connection with the
financing of the acquisition, construction or improvement of, any facility
used or to be used in the business of the Borrower or any Restricted
Subsidiary through the issuance of obligations, the income from which
shall be excludable from gross income by virtue of
41
Section 103 of the Code (or any subsequently adopted provisions thereof
providing for a specific exclusion from gross income);
(vi) any extension, renewal, substitution, or replacement (or
successive extensions, renewals, substitutions or replacements), as a
whole or in part, of any Lien referred to in clauses (i) through (v)
above; provided that (1) such extension, renewal, substitution or
replacement Lien shall be limited to all or any part of the same property
or assets subject to the Lien extended, renewed, substituted or replaced
(plus improvements on such property) and (2) the Debt secured by such Lien
at such time is not increased; and
(vii) other Liens so long as the principal amount of the Debt of the
Borrower and its Restricted Subsidiaries secured thereby does not exceed
$75,000,000 in the aggregate at any time and so long as the principal
amount of the Debt of the Borrower's Restricted Subsidiaries secured
thereby does not exceed $25,000,000 in the aggregate at any time.
7.01 Consolidations, Mergers and Sales of Assets.
-------------------------------------------
(a) Prior to the Guaranty Release Date, FMC will not (i) consolidate with
or merge with or into any other Person or (ii) sell, assign, lease, transfer or
otherwise dispose of all or substantially all of its assets to any other Person;
provided that FMC may consolidate or merge with or into another Person if (A)
immediately after giving effect to such consolidation or merger, no Default or
Event of Default shall have occurred and be continuing, (B) the surviving entity
is a domestic corporation and (C) the Person surviving such consolidation or
merger, if not FMC, executes and delivers to the Administrative Agent and each
of the Lenders an instrument satisfactory to the Required Lenders pursuant to
which such Person assumes all of FMC's obligations under this Agreement as
theretofore amended or modified, including the full and punctual payment
(whether at stated maturity, upon acceleration or otherwise) of the principal of
and interest on each Loan made to FMC pursuant to this Agreement, the full and
punctual payment of all other amounts payable hereunder and the performance of
all of the other covenants and agreements contained herein.
(b) From and after the Guaranty Release Date, the Borrower will not, and
will not permit any Restricted Subsidiary to, merge or consolidate with or into,
or sell, convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) a material portion of its assets to,
any Person, except that, so long as no Default or Event of Default then exists
or would result therefrom:
(i) any Restricted Subsidiary may merge or consolidate with (A) the
Borrower, provided that the Borrower shall be the continuing or surviving
Person, (B) any other Restricted Subsidiary or (C) any other Person if the
Borrower in good faith determines that such merger or consolidation is in
the best interest of the Borrower and would not have a Material Adverse
Effect and, at least five days prior to such merger or consolidation (if
the transaction value of such merger or consolidation is in the amount of
$100,000,000 or more), the Borrower delivers to the Administrative Agent a
certificate of the chief financial officer, the treasurer or the chief
accounting officer of the Borrower showing pro forma compliance with the
covenants set forth in Sections 7.06(c), 7.10(c), 7.10(d) and 7.10(e), and
stating pro forma compliance with the covenants set forth in Sections
7.01(b)(vii), 7.05 and 7.07, in each case after giving effect thereto;
(ii) any Restricted Subsidiary may sell, convey, transfer, lease or
otherwise dispose of a material portion of its assets to (A) the Borrower,
(B) any other Restricted Subsidiary or (C)
42
any other Person if the Borrower in good faith determines that such sale is
in the best interest of the Borrower and would not have a Material Adverse
Effect and, at least five days prior to such sale, conveyance, transfer,
lease or other disposition (if the transaction value of such sale,
conveyance, transfer, lease of other disposition is in the amount of
$100,000,000 or more), the Borrower delivers to the Administrative Agent a
certificate of the chief financial officer, the treasurer or the chief
accounting officer of the Borrower showing pro forma compliance with the
covenants set forth in Sections 7.06(c), 7.10(c), 7.10(d) and 7.10(e), and
stating pro forma compliance with the covenants set forth in Sections
7.01(b)(vii), 7.05 and 7.07, in each case after giving effect thereto;
(iii) the Borrower may merge or consolidate with any other Person,
provided that (A) the Borrower is the continuing or surviving Person, (B)
the Borrower's Debt Ratings are not less than BBB- by S&P or Baa3 by
▇▇▇▇▇'▇ after giving effect thereto, and (C) at least five days prior to
such merger or consolidation (if the transaction value of such merger or
consolidation is in the amount of $100,000,000 or more), the Borrower
delivers to the Administrative Agent a certificate of the chief financial
officer, the treasurer or the chief accounting officer of the Borrower
showing pro forma compliance with the covenants set forth in Sections
7.06(c), 7.10(c), 7.10(d) and 7.10(e), and stating pro forma compliance
with the covenants set forth in Sections 7.01(b)(vii), 7.05 and 7.07, in
each case after giving effect thereto; and
(iv) the Borrower may sell, convey, transfer, lease or otherwise
dispose of a material portion of its assets to any Person, provided that
(A) the Borrower's Debt Ratings are not less than BBB- by S&P or Baa3 by
▇▇▇▇▇'▇ after giving effect thereto and (B) at least five days prior to
such sale, conveyance, transfer, lease or other disposition (if the
transaction value of such sale, conveyance, transfer, lease or other
disposition is in the amount of $100,000,000 or more), the Borrower
delivers to the Administrative Agent a certificate of the chief financial
officer, the treasurer or the chief accounting officer of the Borrower
showing pro forma compliance with the covenants set forth in Sections
7.06(c), 7.10(c), 7.10(d) and 7.10(e), and stating pro forma compliance
with the covenants set forth in Sections 7.01(b)(vii), 7.05 and 7.07, in
each case after giving effect thereto.
7.03 Use of Proceeds. The proceeds of the Borrowings under this Agreement
---------------
will be used by the Borrower for general corporate purposes. None of such
proceeds will be used, directly or indirectly, in a manner that violates
Regulation U or X of the Board. The Borrower will not permit more than 25% of
the consolidated assets of the Borrower and its Subsidiaries to consist of
"margin stock," as such term is defined in Regulation U of the Board. Borrowings
by FMC under this Agreement shall be made only in contemplation of the
assumption of such Borrowings by Technologies.
7.04 Compliance with Laws. The Borrower will comply, and cause each of its
--------------------
Subsidiaries to comply, in all material respects with all requirements of Law
(including ERISA, Environmental Laws and the rules and regulations thereunder),
except where failure to so comply would not have a Material Adverse Effect.
7.05 Restricted Subsidiary Debt. From and after the Guaranty Release Date,
--------------------------
the Borrower will not permit any Restricted Subsidiary to create, incur, assume
or permit to exist any Debt, except:
(a) Debt existing on the date hereof and described on Schedule 7.05;
(b) Debt owed to the Borrower or any other Restricted Subsidiary; and
43
(c) other Debt in an aggregate principal amount for all Restricted
Subsidiaries not exceeding $50,000,000 at any time.
7.06 Restricted Payments. From and after the Guaranty Release Date, the
-------------------
Borrower will not, and will not permit any Restricted Subsidiary to, declare or
make any Restricted Payment, except that:
(a) any Restricted Subsidiary may declare and make Restricted Payments to
the Borrower or to any other Restricted Subsidiary (and, in the case of a
Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower
or any other Restricted Subsidiary and to each other owner of capital stock of
such Restricted Subsidiary on a pro-rata basis based on their relative ownership
interests);
(b) the Borrower or any Restricted Subsidiary may declare and make
Restricted Payments, payable solely in the Common Stock of such Person; and
(c) the Borrower may declare and make Restricted Payments to its
stockholders during any fiscal quarter in an amount not exceeding 50% of its
Consolidated Net Income in respect of the immediately preceding fiscal quarter,
provided that no Default or Event of Default exists at the time of the
declaration thereof or would result therefrom.
7.07 Investments in Unrestricted Subsidiaries. From and after the Guaranty
----------------------------------------
Release Date, the Borrower will not, and will not permit any Restricted
Subsidiary to, make Investments in Unrestricted Subsidiaries in an aggregate
amount outstanding at any time in excess of $100,000,000 for all such
Unrestricted Subsidiaries.
7.08 Limitations on Upstreaming. From and after the Guaranty Release Date,
--------------------------
the Borrower will not, and will not permit any Restricted Subsidiary to,
directly or indirectly agree to any restriction or limitation on the making of
Restricted Payments by a Restricted Subsidiary, the repaying of loans or
advances owing by a Restricted Subsidiary to the Borrower or any other
Restricted Subsidiary or the transferring of assets from any Restricted
Subsidiary to the Borrower or any other Restricted Subsidiary, except (a)
restrictions and limitations imposed by Laws or by the Loan Documents, (b)
customary restrictions and limitations contained in agreements relating to the
disposition of a Restricted Subsidiary or its assets that is permitted hereunder
and (c) any other restrictions that could not reasonably be expected to impair
the Borrower's ability to repay the Obligations as and when due.
7.09 Transactions with Affiliates. From and after the Guaranty Release
----------------------------
Date, the Borrower will not, and will not permit any Restricted Subsidiary to,
enter into any transaction of any kind with any Affiliate of the Borrower (other
than the Borrower or a Restricted Subsidiary), other than upon fair and
reasonable terms as could reasonably be obtained in an arms-length transaction
with a Person that is not an Affiliate in accordance with prevailing industry
customs and practices.
7.10 Financial Covenants.
-------------------
(a) Consolidated Adjusted Net Worth. Prior to the Guaranty Release Date,
-------------------------------
FMC will not permit the consolidated stockholders' equity of FMC and its
Consolidated Subsidiaries to be less than $1,017,275,000.
(b) Cash Flow Coverage. Prior to the Guaranty Release Date, FMC will not
------------------
permit the ratio of Consolidated Cash Flow for any period of four consecutive
fiscal quarters to Adjusted Total Debt as of the last day of any such period to
be less than 0.20 to 1.00.
44
(c) Consolidated Tangible Net Worth. From and after the Guaranty Release
-------------------------------
Date, the Borrower will not permit Consolidated Tangible Net Worth as of the end
of any fiscal quarter of the Borrower ending after the Guaranty Release Date to
be less than the sum of (i) 90% of Consolidated Tangible Net Worth on the
Guaranty Release Date after giving effect to the satisfaction of the Guaranty
Release Conditions, plus (ii) an amount equal to 50% of the Consolidated Net
Income earned in each fiscal quarter ending after the Guaranty Release Date
(with no deduction for a net loss in any such fiscal quarter) plus (iii) an
amount equal to 75% of the aggregate increases in stockholders' equity of the
Borrower and its Consolidated Restricted Subsidiaries after the Guaranty Release
Date by reason of any Equity Issuance.
(d) Total Debt to EBITDA Ratio. From and after the Guaranty Release Date,
--------------------------
the Borrower will not permit the ratio of Adjusted Total Debt as of the last day
of any fiscal quarter to Consolidated EBITDA for the period of four consecutive
fiscal quarters ended on such last day to be more than 3.25 to 1.00.
(e) Interest Coverage Ratio. From and after the Guaranty Release Date,
-----------------------
the Borrower will not permit the ratio of Consolidated EBITDA for any period of
four consecutive fiscal quarters to Consolidated Interest Expense for such
period to be less than 4.25 to 1.00.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any of the following shall constitute an Event of
-----------------
Default:
(a) any principal of any Loan shall not be paid when due, or any
interest, fees or other amount payable hereunder shall not be paid within five
Business Days of the due date thereof;
(b) the Borrower shall fail to observe or perform any covenant contained
in Section 6.05(b) or 6.06 or Article VII;
(c) the Borrower shall fail to observe or perform any of its covenants or
agreements contained in this Agreement (other than those covered by clause (a)
or (b) above) for 30 days after notice thereof has been given to the Borrower by
the Administrative Agent at the request of any Lender; provided that the 30-day
grace period set forth above shall be reduced by the number of days that any
officer of the Borrower had knowledge of any applicable failure prior to giving
notice thereof to the Administrative Agent and the Lenders pursuant to Section
6.01(e);
(d) any representation, warranty, certification or statement by the
Borrower made in this Agreement or in any certificate, financial statement or
other document delivered pursuant hereto or deemed to be made pursuant to
Section 4.03 shall have been incorrect in any material respect when made or
deemed to be made;
(e) the Borrower, any Material Subsidiary or the Guarantor shall fail to
make any payment in respect of Material Financial Obligations when due after
giving effect to any applicable grace period;
(f) any event or condition shall occur that (i) results in the
acceleration of the maturity of Material Financial Obligations or (ii) enables
the holder or holders of Material Financial Obligations or any Person acting on
behalf of such holder or holders to accelerate the maturity thereof, provided
that no
45
Event of Default under this clause (ii) shall occur unless and until any
required notice has been given and/or period of time has elapsed with respect to
such Material Financial Obligations so as to perfect such right to accelerate;
(g) the Borrower, any Material Subsidiary or the Guarantor shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any Debtor Relief Law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due, or shall take any corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced against the
Borrower, any Material Subsidiary or the Guarantor seeking liquidation,
reorganization or other relief with respect to it or its debts under any Debtor
Relief Law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower, any Material Subsidiary or the
Guarantor under the Federal bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an amount or
amounts aggregating in excess of (i) $50,000,000 prior to the Assumption or (ii)
$25,000,000 after the Assumption which it shall have become liable to pay under
Title IV of ERISA; or notice of intent to terminate a Material Plan shall be
filed under Title IV of ERISA by any member of the ERISA Group, any plan
administrator or any combination of the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate, to impose liability (other
than for premiums under Section 4007 of ERISA) in respect of, or to cause a
trustee to be appointed to administer, any Material Plan; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall occur a
complete or partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current payment
obligation in excess of (iii) $50,000,000 prior to the Assumption or (iv)
$25,000,000 after the Assumption;
(j) Enforceable Judgments for the payment of money in an aggregate amount
exceeding (i) $50,000,000 prior to the Assumption or (ii) $25,000,000
($50,000,000 if rendered against the Guarantor) after the Assumption shall be
rendered against the Borrower, any Material Subsidiary or the Guarantor and
shall continue unsatisfied and unstayed for a period of 30 days;
(k) a Change of Control shall occur; or
(l) any Loan Document, at any time after its execution and delivery and for
any reason other than the agreement of the Required Lenders or all Lenders, as
may be required hereunder, or satisfaction in full of all the Obligations,
ceases to be in full force and effect, or the Borrower or the Guarantor denies
that it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document;
then, and in every such event, the Administrative Agent shall (i) if requested
by the Required Lenders, by notice to the Borrower, terminate the Commitments,
and the Commitments shall thereupon terminate and (ii)
46
if requested by Required Lenders, by notice to the Borrower, declare the
Obligations to be, and the Obligations shall thereupon become, immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower and (iii) if requested by the
Required Lenders, require that the Borrower Cash Collateralize the L/C
Obligations (in an amount equal to the Outstanding Amount thereof); provided
that in the case of any of the Events of Default specified in Sections 8.01(g)
and (h) with respect to the Borrower, immediately and without any notice to the
Borrower or any other act by the Administrative Agent or the Lenders, the
Commitments shall terminate and the Obligations shall become immediately due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower, and the obligation of the Borrower to
Cash Collateralize the L/C Obligations as aforesaid shall become effective.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authorization of Administrative Agent.
-----------------------------------------------------
(a) Each Lender hereby irrevocably (subject to Section 9.09) appoints,
designates and authorizes the Administrative Agent to take such action on its
behalf under the provisions of this Agreement and each other Loan Document and
to exercise such powers and perform such duties as are expressly delegated to it
by the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere herein or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Administrative Agent have or be deemed
to have any fiduciary relationship with any Lender or participant, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" herein and in
the other Loan Documents with reference to the Administrative Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect only
an administrative relationship between independent contracting parties.
(b) The L/C Issuer shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith until such
time (and except for so long) as the Administrative Agent may agree at the
request of the Required Lenders to act for the L/C Issuer with respect thereto;
provided that the L/C Issuer shall have all of the benefits and immunities (i)
provided to the Administrative Agent in this Article IX with respect to any acts
taken or omissions suffered by the L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and the application and
agreements for letters of credit pertaining to the Letters of Credit as fully as
if the term "Administrative Agent" as used in this Article IX included the L/C
Issuer with respect to such acts or omissions, and (ii) as additionally provided
herein with respect to the L/C Issuer.
9.02 Delegation of Duties. The Administrative Agent may execute any of its
--------------------
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects in the absence of
gross negligence or willful misconduct.
9.03 Liability of Administrative Agent. No Agent-Related Person shall
---------------------------------
(a) be liable for any action taken or omitted to be taken by any of them under
or in connection with this Agreement or any
47
other Loan Document or the transactions contemplated hereby (except for its own
gross negligence or willful misconduct in connection with its duties expressly
set forth herein), or (b) be responsible in any manner to any Lender or
participant for any recital, statement, representation or warranty made by FMC,
Technologies or any officer thereof contained herein or in any other Loan
Document, or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of the Borrower or any other party
to any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender or participant
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower or any
Affiliate thereof.
9.04 Reliance by Administrative Agent.
--------------------------------
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to the Borrower), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under any
Loan Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Required
Lenders or all the Lenders, if required hereunder, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and participants. Where this Agreement expressly permits or prohibits an
action unless the Required Lenders otherwise determine, the Administrative Agent
shall, and in all other instances, the Administrative Agent may, but shall not
be required to, initiate any solicitation for the consent or a vote of the
Lenders.
(b) For purposes of determining compliance with the conditions specified
in Section 4.01, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by the Administrative Agent to such Lender for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender.
9.05 Notice of Default. The Administrative Agent shall not be deemed to
-----------------
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Administrative Agent for the account of the Lenders,
unless the Administrative Agent shall have received written notice from a Lender
or the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." The
Administrative Agent will notify the Lenders of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be directed by the Required Lenders in accordance with
Article VIII; provided that unless and until the Administrative Agent has
received any such direction, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable or in the best
interest of the Lenders.
48
9.06 Credit Decision; Disclosure of Information by Administrative Agent.
------------------------------------------------------------------
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereinafter taken, including any consent to and acceptance of any assignment or
review of the affairs of the Borrower or any of its Subsidiaries thereof, shall
be deemed to constitute any representation or warranty by any Agent-Related
Person to any Lender as to any matter, including whether Agent-Related Persons
have disclosed material information in their possession. Each Lender represents
to the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries, and all applicable bank
or other regulatory Laws relating to the transactions contemplated hereby, and
made its own decision to enter into this Agreement and to extend credit to the
Borrower hereunder. Each Lender also represents that it will, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent herein, the Administrative
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of the Borrower or
any of its Subsidiaries which may come into the possession of any Agent-Related
Person.
9.07 Indemnification of Administrative Agent. Whether or not the
---------------------------------------
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of the Borrower and without limiting the obligation of the Borrower to do
so), pro rata, and hold harmless each Agent-Related Person from and against any
and all Indemnified Liabilities incurred by it; provided that no Lender shall be
liable for the payment to any Agent-Related Person of any portion of such
Indemnified Liabilities resulting from such Person's gross negligence or willful
misconduct; provided that no action taken in accordance with the directions of
the Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. Without limitation of the foregoing,
each Lender shall reimburse the Administrative Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs) 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 rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent
that the Administrative Agent is not reimbursed for such expenses by or on
behalf of the Borrower. The undertaking in this Section shall survive
termination of the Commitments, the payment of all Obligations hereunder and the
resignation or replacement of the Administrative Agent.
9.08 Administrative Agent in its Individual Capacity. Bank of America and
-----------------------------------------------
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
the Borrower and its Affiliates as though Bank of America were not the
Administrative Agent hereunder and without notice to or consent of the Lenders.
The Lenders acknowledge that, pursuant to such activities, Bank of America or
its Affiliates may receive information regarding the Borrower or any of its
Subsidiaries (including information that may be subject to confidentiality
obligations in favor of the Borrower or any of its Subsidiaries) and acknowledge
that the Administrative Agent shall be under no obligation to provide such
information to them. With respect to its Loans, Bank
49
of America shall have the same rights and powers under this Agreement as any
other Lender and may exercise such rights and powers as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" include Bank of
America in its individual capacity.
9.09 Successor Administrative Agent. The Administrative Agent may resign
------------------------------
as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent resigns under this Agreement, the Required Lenders shall
appoint from among the Lenders a successor administrative agent for the Lenders
which successor administrative agent shall be consented to by the Borrower at
all times other than during the existence of an Event of Default (which consent
of the Borrower shall not be unreasonably withheld or delayed). If no successor
administrative agent is appointed prior to the effective date of the resignation
of the Administrative Agent, the Administrative Agent may appoint, after
consulting with the Lenders and the Borrower, a successor administrative agent
from among the Lenders. Upon the acceptance of its appointment as successor
administrative agent hereunder, such successor administrative agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term "Administrative Agent" shall mean such successor
administrative agent and the retiring Administrative Agent's appointment, powers
and duties as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article IX and Sections 10.03 and 10.13 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor administrative agent
has accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above.
9.10 Other Agents. None of the Lenders identified on the facing page or
------------
signature pages of this Agreement as a "syndication agent," "documentation
agent," or "co-agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of the Lenders so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc. No amendment or waiver of any provision of this
---------------
Agreement or any other Loan Document, and no consent to any departure by the
Borrower therefrom, shall be effective unless in writing signed by the Required
Lenders (or the Administrative Agent with the written consent of the Required
Lenders) and, in the case of an amendment, the Borrower and each such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided that no such amendment, waiver or consent
shall, unless in writing and signed by each of the Lenders directly affected
thereby (or the Administrative Agent with the written consent of such Lenders)
and, in the case of an amendment, by the Borrower do any of the following:
(a) except as expressly contemplated by Section 2.03, extend or increase
the Commitment of any Lender (or reinstate any Commitment terminated pursuant to
Article VIII);
50
(b) postpone any date fixed by this Agreement or any other Loan Document
for any payment or mandatory prepayment of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under any other Loan
Document;
(c) reduce the principal of, or the rate of interest specified herein on,
any Loan, or (subject to clause (iii) of the proviso below) any fees or other
amounts payable hereunder or under any other Loan Document; provided that only
the consent of the Required Lenders shall be necessary to amend the definition
of "Default Rate" or to waive any obligation of the Borrower to pay interest at
the Default Rate;
(d) change the percentage of the Aggregate Commitments or of the
aggregate unpaid principal amount of the Loans which is required for the Lenders
or any of them to take any action hereunder;
(e) change the Pro Rata Share or Voting Percentage of any Lender;
(f) release the Guaranty except in accordance with the terms and
conditions of Section 4.04;
(g) amend this Section, Section 2.12, Section 4.02, Section 4.04, Section
10.05, or any provision herein providing for consent or other action by all the
Lenders;
and, provided further that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Required
Lenders or all the directly affected Lenders, as the case may be (or the
Administrative Agent on their behalf), affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; and (ii)
the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto.
10.02 Notices and Other Communications; Facsimile Copies.
--------------------------------------------------
(a) General. Unless otherwise expressly provided herein, all notices and
-------
other communications provided for hereunder shall be in writing (including by
facsimile transmission) and mailed, faxed or delivered to the address, facsimile
number or (subject to subsection (c) below) electronic mail address specified
for notices on the signature pages hereof or on the applicable Administrative
Questionnaire or to such other address as shall be designated by a party hereto
in a notice to the other parties hereto. All such notices and other
communications shall be deemed to be given or made upon the earlier to occur of
(i) actual receipt by the intended recipient and (ii) (A) if delivered by hand
or by courier, when signed for by the intended recipient; (B) if delivered by
mail, three Business Days after deposit in the mails, postage prepaid; (C) if
delivered by facsimile, when sent and receipt has been confirmed by telephone;
and (D) if delivered by electronic mail (which form of delivery is subject to
the provisions of subsection (c) below), when delivered; provided that notices
and other communications to the Administrative Agent pursuant to Article II
shall not be effective until actually received by such Person. Any notice or
other communication permitted to be given, made or confirmed by telephone
hereunder shall be given, made or confirmed by means of a telephone call to the
intended recipient at the number specified on the signature pages hereof or on
the applicable Administrative Questionnaire or at the number that may be
otherwise specified in accordance
51
herewith, it being understood and agreed that a voicemail message shall in no
event be effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents
---------------------------------------------------
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on the Borrower,
the Administrative Agent and the Lenders. The Administrative Agent may also
require that any such documents and signatures be confirmed by a manually-signed
original thereof; provided that the failure to request or deliver the same shall
not limit the effectiveness of any facsimile document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and internet and
------------------------------
intranet websites may be used only to distribute routine communications, such as
financial statements and other information, and to distribute Loan Documents for
execution by the parties thereto, and may not be used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative
--------------------------------------------
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Loan Notices) purportedly given by or on behalf of the
Borrower even if (i) such notices were not made in a manner specified herein,
were incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Borrower shall indemnify each Agent-
Related Person and each Lender from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given by
or on behalf of the Borrower. All telephonic notices to and other communications
with the Administrative Agent may be recorded by the Administrative Agent, and
each of the parties hereto hereby consents to such recording.
10.03 No Waiver; Cumulative Remedies. No failure by any Lender or the
------------------------------
Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein or therein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
10.04 Attorney Costs, Expenses and Taxes. The Borrower agrees (a) to pay
----------------------------------
or reimburse the Administrative Agent for all reasonable costs and expenses
incurred in connection with the development, preparation, negotiation and
execution of this Agreement and the other Loan Documents and any amendment,
waiver, consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs, and (b) to pay or
reimburse the Administrative Agent and each Lender for all reasonable costs and
expenses incurred in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or the other Loan
Documents (including all such costs and expenses incurred during any "workout"
or restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs. The agreements in this Section shall survive the termination of the
Aggregate Commitments and repayment of all the other Obligations.
10.05 Indemnification by the Borrower. Whether or not the transactions
-------------------------------
contemplated hereby are consummated, the Borrower agrees to indemnify, save and
hold harmless each Agent-Related Person,
52
each Lender and their respective Affiliates, directors, officers, employees,
counsel, agents and attorneys-in-fact (collectively the "Indemnitees") from and
against: (a) any and all claims, demands, actions or causes of action that are
asserted against any Indemnitee by any Person (other than the Administrative
Agent or any Lender) relating directly or indirectly to a claim, demand, action
or cause of action that such Person asserts or may assert against the Borrower,
any Affiliate of the Borrower or any of their respective officers or directors,
including any Indemnified Liability arising out of or based upon any untrue
statement or alleged untrue statement of a material fact, or omission or alleged
omission to state a material fact required to be stated, in the Registration
Statement; (b) any and all claims, demands, actions or causes of action that may
at any time (including at any time following repayment of the Obligations and
the resignation or removal of the Administrative Agent or the replacement of any
Lender) be asserted or imposed against any Indemnitee arising out of or relating
to the Loan Documents, any Commitment, the use or contemplated use of the
proceeds of any Credit Extension, or the relationship of the Borrower, the
Administrative Agent and the Lenders under this Agreement or any other Loan
Document; (c) any administrative or investigative proceeding by any Governmental
Authority arising out of or related to a claim, demand, action or cause of
action described in subsection (a) or (b) above; and (d) any and all liabilities
(including liabilities under indemnities), losses or reasonable costs or
expenses (including Attorney Costs) that any Indemnitee suffers or incurs as a
result of the assertion of any foregoing claim, demand, action, cause of action
or proceeding, or as a result of the preparation of any defense in connection
with any foregoing claim, demand, action, cause of action or proceeding, in all
cases, whether or not arising out of the negligence of an Indemnitee, and
whether or not an Indemnitee is a party to such claim, demand, action, cause of
action or proceeding (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that no Indemnitee shall be entitled to indemnification
for any Indemnified Liability caused by its own gross negligence or willful
misconduct or for any loss asserted against it by another Indemnitee. The
agreements in this Section shall survive the termination of the Aggregate
Commitments and repayment of all the other Obligations.
10.06 Payments Set Aside. To the extent that the Borrower makes a payment
------------------
to the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time to
time in effect.
10.07 Successors and Assigns.
----------------------
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that, except as provided in this Section 10.07(a) or in
Section 7.02, the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by the Borrower without such consent
shall be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy or
claim under or by reason of this Agreement. On the Assumption Date, and subject
to the satisfaction of the conditions precedent
53
set forth in Section 4.02, FMC agrees to assign (and shall be deemed to have
assigned without the necessity of any separate assignment agreement) and
Technologies agrees to assume (and shall be deemed to have assumed without the
necessity of any separate assumption agreement), all of FMC's rights and
obligations as the Borrower under the Loan Documents. Upon such assignment by
FMC and assumption by Technologies, FMC shall be released from all of its
obligations and liabilities under the Loan Documents (except under the Guaranty)
without the necessity of any separate release agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this
subsection (b), participations in L/C Obligations) at the time owing to it);
provided that (i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time owing to
it or in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Commitment
(which for this purpose includes Loans outstanding thereunder) subject to each
such assignment, determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent, shall not
be less than $5,000,000, unless each of the Administrative Agent and, so long as
no Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed), (ii)
each partial assignment shall be made as an assignment of a proportionate part
of all the assigning Lender's rights and obligations under this Agreement with
respect to the Loans or the Commitment assigned, and (iii) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to Section 10.07(c), from and after the effective date specified in each
Assignment and Acceptance, the Eligible Assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 3.07, 10.04 and 10.05). Upon request, the Borrower (at its
expense) shall execute and deliver new or replacement Notes to the assigning
Lender and the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent
of the Borrower, shall maintain at the Administrative Agent's Office a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). Subject to the
fourth sentence of Section 2.10(a), the entries in the Register shall be
rebuttably presumptively true and correct, and the Borrower, the Administrative
Agent and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Any Lender may, without the consent of, or notice to, the Borrower
or the Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and/or
obligations under this Agreement (including all or a portion of its Commitment
and/or the Loans (including such Lender's participations in L/C Obligations)
owing to it);
54
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) 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. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
that would (i) postpone any date upon which any payment of money is scheduled to
be paid to such Participant or (ii) reduce the principal, interest, fees or
other amounts payable to such Participant. Subject to Section 10.07(e), the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to subsection (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.09 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.12 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.01 or Section 3.04 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Lender
organized under the laws of a jurisdiction outside of the United States if it
were a Lender shall not be entitled to the benefits of Section 3.01 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section 3.01
as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its
Notes, if any) to secure obligations of such Lender to a Federal Reserve Bank;
provided that no such pledge or assignment shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
(g) If the consent of the Borrower to an assignment or to an Eligible
Assignee is required hereunder (including a consent to an assignment which does
not meet the minimum assignment threshold specified in clause (i) of the proviso
to the first sentence of Section 10.07(b)), the Borrower shall be deemed to have
given its consent five Business Days after the date notice thereof has been
delivered by the assigning Lender (through the Administrative Agent) unless such
consent is expressly refused by the Borrower prior to such fifth Business Day.
(h) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) an Approved Fund; and (iv) any other Person (other than a
natural Person) approved by the Administrative Agent and the L/C Issuer
and, unless an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed).
"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.
55
"Approved Fund" means any Fund that is administered or managed by
(i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an
Affiliate of an entity that administers or manages a Lender.
(i) Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of America may, upon 30 days' notice to the Borrower
and the Lenders, resign as L/C Issuer. In the event of any such resignation as
L/C Issuer, the Borrower shall be entitled to appoint from among the Lenders a
successor L/C Issuer hereunder; provided that no failure by the Borrower to
appoint any such successor shall affect the resignation of Bank of America as
L/C Issuer. Bank of America shall retain all the rights and obligations of the
L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the
effective date of its resignation as L/C Issuer and all L/C Obligations with
respect thereto (including the right to require the Lenders to make Base Rate
Loans or fund participations in Unreimbursed Amounts pursuant to Section
2.03(c)).
10.08 Confidentiality. Each of the Administrative Agent and the Lenders
---------------
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential); (b) to the extent requested
by any regulatory authority; (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process; (d) to any other party
to this Agreement; (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any Eligible Assignee of
or Participant in, or any prospective Eligible Assignee of or Participant in,
any of its rights or obligations under this Agreement or (ii) any direct or
indirect contractual counterparty or prospective counterparty (or such
contractual counterparty's or prospective counterparty's professional advisor)
to any credit derivative transaction relating to obligations of the Borrower;
(g) with the consent of the Borrower; (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than the Borrower; or (i) to the
National Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's or its Affiliates' investment portfolio in
connection with ratings issued with respect to such Lender or its Affiliates.
For the purposes of this Section, "Information" means all information received
from the Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by the Borrower; provided that, in the
case of information received from the Borrower after the date hereof, such
information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
10.09 Set-off. In addition to any rights and remedies of the Lenders
-------
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender is authorized at any time and from time to time, without
prior notice to the Borrower, any such notice being waived by the Borrower 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 by,
and other indebtedness at any time owing by, such Lender to or for the credit or
the account of the Borrower against any and all Obligations
56
then due and payable to such Lender, now or hereafter existing, irrespective of
whether or not the Administrative Agent or such Lender shall have made demand
under this Agreement or any other Loan Document. Each Lender agrees promptly to
notify the Borrower and the Administrative Agent after any such set-off and
application made by such Lender; provided that the failure to give such notice
shall not affect the validity of such set-off and application.
10.10 Interest Rate Limitation. Notwithstanding anything to the contrary
------------------------
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the Borrower. In determining whether
the interest contracted for, charged, or received by the Administrative Agent or
a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations.
10.11 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.12 Integration. This Agreement, together with the other Loan Documents,
-----------
comprises the complete and integrated agreement of the parties on the subject
matter hereof and thereof and supersedes all prior agreements, written or oral,
on such subject matter. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control; provided that the inclusion of supplemental rights or
remedies in favor of the Administrative Agent or the Lenders in any other Loan
Document shall not be deemed a conflict with this Agreement. Each Loan Document
was drafted with the joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.
10.13 Survival of Representations and Warranties. All representations and
------------------------------------------
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default or Event of Default at the time of any Credit Extension, and shall
continue in full force and effect as long as any Loan or any other Obligation
(other than Contingent Surviving Obligations) shall remain unpaid or unsatisfied
or any Letter of Credit shall remain outstanding.
10.14 Severability. Any provision of this Agreement and the other Loan
------------
Documents to which the Borrower is a party that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions thereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
57
10.15 Removal and Replacement of Lenders.
----------------------------------
(a) Under any circumstances set forth herein providing that the Borrower
shall have the right to remove or replace a Lender as a party to this Agreement,
the Borrower may, upon notice to such Lender and the Administrative Agent, (i)
remove such Lender by terminating such Lender's Commitment or (ii) replace such
Lender by causing such Lender to assign its Commitment pursuant to Section
10.07(b) to one or more other Lenders or Eligible Assignees procured by the
Borrower; provided that if the Borrower elects to exercise such right with
respect to any Lender pursuant to Section 3.06(b), it shall be obligated to
remove or replace, as the case may be, all Lenders that have made similar
requests for compensation pursuant to Section 3.01 or 3.04 or make similar
notifications pursuant to Section 3.02. The Borrower shall, in the case of a
termination of such Lender's Commitment pursuant to clause (i) preceding, (x)
pay in full all principal, interest, fees and other amounts owing to such Lender
through the date of termination or assignment (including any amounts payable
pursuant to Section 3.05), (y) provide appropriate assurances and indemnities
(which may include letters of credit) to the L/C Issuer as it may reasonably
require with respect to any continuing obligation of such Lender to purchase
participation interests in any L/C Obligations then outstanding, and (z) release
such Lender from its obligations under the Loan Documents. Any Lender being
replaced shall execute and deliver an Assignment and Acceptance with respect to
such Lender's Commitment and outstanding Credit Extensions. The Borrower shall,
in the case of an assignment pursuant to clause (ii) preceding, cause to be paid
the assignment fee payable to the Administrative Agent pursuant to Section
10.07(b). The Administrative Agent shall distribute an amended Schedule 2.01,
which shall be deemed incorporated into this Agreement, to reflect changes in
the identities of the Lenders and adjustments of their respective Commitments
and/or Pro Rata Shares resulting from any such removal or replacement.
(b) This Section 10.15 shall supersede any provision in Section 10.01 to
the contrary.
10.16 Governing Law.
-------------
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND
EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
SITTING IN MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH
STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER
DOCUMENT RELATED THERETO. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH
LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH
MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
58
10.17 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT
--------------------------------
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.18 Time of the Essence. Time is of the essence of the Loan Documents.
-------------------
REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES TO FOLLOW.
59
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
FMC CORPORATION
By:__________________________________
Name:__________________________
Title:_________________________
By:__________________________________
Name:__________________________
Title:_________________________
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Facsimile No.: 312.861.5797
FMC TECHNOLOGIES, INC.
By:__________________________________
Name:__________________________
Title:_________________________
By:__________________________________
Name:__________________________
Title:_________________________
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Facsimile No.: 312.861.5797
Signature Page to Five-Year Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
BANK OF AMERICA, N.A., as Administrative Agent
By:________________________________
Name:___________________________
Title:__________________________
Administrative Agent's Office:
Address:___________________________
___________________________
___________________________
Facsimile No.:_____________________
Attention:_________________________
ABA No.:___________________________
Account No.:_______________________
Reference: FMC Technologies
BANK OF AMERICA, N.A., as a Lender and L/C
Issuer
By:________________________________
Name:___________________________
Title:__________________________
Address:___________________________
___________________________
___________________________
Facsimile No.:_____________________
Signature Page to Five-Year Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
CITIBANK, N.A., as a Lender
By:________________________________
Name:___________________________
Title:__________________________
Signature Page to Five-Year Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
COOPERATIVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", as a Lender
By:________________________________
Name:___________________________
Title:__________________________
Signature Page to Five-Year Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
DEN NORSKE BANK ASA, as a Lender
By:________________________________
Name:___________________________
Title:_________________________
Signature Page to Five-Year Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
THE ROYAL BANK OF SCOTLAND PLC, as a Lender
By:________________________________
Name:___________________________
Title:__________________________
Signature Page to Five-Year Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
BRANCH, as a Lender
By:________________________________
Name:___________________________
Title:__________________________
By:________________________________
Name:___________________________
Title:__________________________
Signature Page to Five-Year Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
▇▇▇▇▇ FARGO BANK TEXAS, NATIONAL ASSOCIATION, as a
Lender
By:________________________________
Name:___________________________
Title:__________________________
Signature Page to Five-Year Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
THE BANK OF NOVA SCOTIA, as a Lender
By:________________________________
Name:___________________________
Title:__________________________
Signature Page to Five-Year Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
THE BANK OF NEW YORK, as a Lender
By:________________________________
Name:___________________________
Title:__________________________
Signature Page to Five-Year Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
CREDIT SUISSE FIRST BOSTON, as a Lender
By:________________________________
Name:___________________________
Title:__________________________
Signature Page to Five-Year Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
DANSKE BANK, as a Lender
By:________________________________
Name:___________________________
Title:__________________________
By:________________________________
Name:___________________________
Title:__________________________
Signature Page to Five-Year Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
WACHOVIA BANK, N.A., as a Lender
By:________________________________
Name:___________________________
Title:__________________________
Signature Page to Five-Year Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
THE NORTHERN TRUST COMPANY, as a Lender
By:________________________________
Name:___________________________
Title:__________________________
Signature Page to Five-Year Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
THE FUJI BANK, LIMITED, as a Lender
By:________________________________
Name:___________________________
Title:__________________________
Signature Page to Five-Year Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
THE DAI-ICHI KANGYO BANK, LTD., as a Lender
By:________________________________
Name:___________________________
Title:__________________________
Signature Page to Five-Year Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
THE INDUSTRIAL BANK OF JAPAN, LTD., as a Lender
By:________________________________
Name:___________________________
Title:__________________________
Signature Page to Five-Year Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
__________________________________, as a Lender
By:________________________________
Name:___________________________
Title:__________________________
Signature Page to Five-Year Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
__________________________________, as a Lender
By:________________________________
Name:___________________________
Title:__________________________
By:________________________________
Name:___________________________
Title:__________________________
Signature Page to Five-Year Credit Agreement