EXECUTION VERSION #89536643v12 ═══════════════════════════════════════ $1,500,000,000 SECOND AMENDED AND RESTATED CREDIT AGREEMENT Dated as of May 2, 2017 among FMC CORPORATION as U.S. Borrower and THE FOREIGN SUBSIDIARIES PARTY HERETO FROM TIME TO...
EXECUTION VERSION
#89536643v12
═══════════════════════════════════════
$1,500,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of May 2, 2017
among
FMC CORPORATION
as U.S. Borrower
and
THE FOREIGN SUBSIDIARIES PARTY HERETO FROM TIME TO TIME
as Euro Borrowers
THE LENDERS AND ISSUING BANKS PARTY HERETO
and
CITIBANK, N.A.,
as Administrative Agent,
* * *
CITIGROUP GLOBAL MARKETS INC.
and
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
as Joint Lead Arrangers
BANK OF AMERICA, N.A.,
as Syndication Agent
and
BNP PARIBAS,
JPMORGAN CHASE BANK, N.A.,
SUMITOMO MITSUI BANKING CORPORATION
and
TD BANK, N.A.,
as Co-Documentation Agents
═══════════════════════════════════════
I
#89536643v12
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS .................................................. 1
SECTION 1.01. Certain Defined Terms ............................................................... 1
SECTION 1.02. Computation of Time Periods .................................................. 27
SECTION 1.03. Accounting Terms and Principles ............................................ 27
SECTION 1.04. Certain Terms ........................................................................... 28
ARTICLE II AMOUNTS AND TERMS OF THE LOANS ................................................... 28
SECTION 2.01. The Revolving Loans ............................................................... 28
SECTION 2.02. [Intentionally Deleted] ............................................................. 29
SECTION 2.03. The Swing Loans ...................................................................... 29
SECTION 2.04. The Letters of Credit ................................................................ 30
SECTION 2.05. Fees .......................................................................................... 30
SECTION 2.06. Reductions and Increases of the Commitments ....................... 31
SECTION 2.07. Repayment ................................................................................ 34
SECTION 2.08. Interest ...................................................................................... 36
SECTION 2.09. Interest Rate Determinations .................................................... 37
SECTION 2.10. Prepayments ............................................................................. 38
SECTION 2.11. Payments and Computations .................................................... 38
SECTION 2.12. Taxes ........................................................................................ 40
SECTION 2.13. Sharing of Payments, Etc ......................................................... 44
SECTION 2.14. Conversion or Continuation of Revolving Loans ..................... 44
SECTION 2.15. Extension of Termination Date ................................................ 45
SECTION 2.16. Defaulting Lender .................................................................... 48
SECTION 2.17. Acknowledgement and Consent to Bail-In of EEA
Financial Institutions ................................................................ 51
ARTICLE III MAKING THE LOANS AND ISSUING THE LETTERS OF CREDIT .......... 52
SECTION 3.01. Making the Revolving Loans ................................................... 52
SECTION 3.02. [Intentionally Deleted] ............................................................. 53
SECTION 3.03. Making the Swing Loans, Etc .................................................. 53
SECTION 3.04. Issuance of Letters of Credit .................................................... 56
SECTION 3.05. Increased Costs ......................................................................... 60
SECTION 3.06. Illegality ................................................................................... 62
SECTION 3.07. Reasonable Efforts to Mitigate ................................................. 62
ii
SECTION 3.08. Right to Replace Affected Person or Lender ............................ 63
SECTION 3.09. Use of Proceeds ........................................................................ 63
ARTICLE IV CONDITIONS OF LENDING ........................................................................... 64
SECTION 4.01. Conditions Precedent to Initial Borrowing ............................... 64
SECTION 4.02. Conditions Precedent to Each Revolving Loan
Borrowing, Swing Loan Borrowing and Letter of Credit
Issuance .................................................................................... 65
ARTICLE V REPRESENTATIONS AND WARRANTIES .................................................. 66
SECTION 5.01. Corporate Existence; Compliance with Law ............................ 66
SECTION 5.02. Corporate Power; Authorization; Enforceable
Obligations ............................................................................... 66
SECTION 5.03. Financial Statements ................................................................ 67
SECTION 5.04. Material Adverse Change ......................................................... 67
SECTION 5.05. Litigation .................................................................................. 67
SECTION 5.06. Taxes ........................................................................................ 67
SECTION 5.07. Full Disclosure ......................................................................... 68
SECTION 5.08. Investment Company Act ......................................................... 68
SECTION 5.09. ERISA ...................................................................................... 68
SECTION 5.10. Environmental Matters ............................................................. 68
SECTION 5.11. Ownership of Properties; Liens ................................................ 69
SECTION 5.12. Sanctions .................................................................................. 69
SECTION 5.13. Anti-Corruption Laws; Anti-Money Laundering Laws ........... 69
ARTICLE VI COVENANTS OF THE COMPANY ................................................................ 70
SECTION 6.01. Financial Covenants ................................................................. 70
SECTION 6.02. Reporting Covenants ................................................................ 71
SECTION 6.03. Affirmative Covenants ............................................................. 74
SECTION 6.04. Negative Covenants.................................................................. 76
ARTICLE VII EVENTS OF DEFAULT ................................................................................... 78
SECTION 7.01. Events of Default ...................................................................... 78
SECTION 7.02. Actions in Respect of the Letters of Credit Upon Event
of Default; L/C Cash Collateral Account; Investing of
Amounts in the L/C Cash Collateral Account; Release ........... 80
ARTICLE VIII THE ADMINISTRATIVE AGENT .................................................................. 83
SECTION 8.01. Authorization and Action ......................................................... 83
SECTION 8.02. Reliance, Etc ............................................................................ 83
iii
SECTION 8.03. The Agents and their Affiliates as Lenders .............................. 84
SECTION 8.04. Lender Credit Decision ............................................................ 84
SECTION 8.05. Indemnification ........................................................................ 84
SECTION 8.06. Successor Administrative Agent .............................................. 85
SECTION 8.07. No Other Duties, Etc ................................................................ 85
ARTICLE IX MISCELLANEOUS ........................................................................................... 85
SECTION 9.01. Amendments, Etc ..................................................................... 85
SECTION 9.02. Notices, Etc .............................................................................. 86
SECTION 9.03. No Waiver; Remedies .............................................................. 89
SECTION 9.04. Costs and Expenses .................................................................. 89
SECTION 9.05. Rights of Set-off; Payments Set Aside ..................................... 91
SECTION 9.06. Binding Effect .......................................................................... 91
SECTION 9.07. Assignments and Participations ............................................... 92
SECTION 9.08. No Liability of the Issuing Banks ............................................ 96
SECTION 9.09. Governing Law ......................................................................... 97
SECTION 9.10. Execution in Counterparts ........................................................ 97
SECTION 9.11. Confidentiality .......................................................................... 97
SECTION 9.12. Submission to Jurisdiction; Service of Process ........................ 98
SECTION 9.13. WAIVER OF JURY TRIAL .................................................... 98
SECTION 9.14. Judgment Currency .................................................................. 99
SECTION 9.15. European Monetary Union ....................................................... 99
SECTION 9.16. USA PATRIOT Act ............................................................... 100
SECTION 9.17. Continued Effectiveness ......................................................... 100
SECTION 9.18. Entire Agreement ................................................................... 100
SECTION 9.19. No Fiduciary Duty .................................................................. 100
ARTICLE X GUARANTY ................................................................................................... 101
SECTION 10.01. Guaranty ................................................................................. 101
SECTION 10.02. Authorization; Other Agreements .......................................... 101
SECTION 10.03. Guaranty Absolute and Unconditional ................................... 102
SECTION 10.04. Waivers .................................................................................. 103
SECTION 10.05. Reliance .................................................................................. 104
SECTION 10.06. Waiver of Subrogation and Contribution Rights .................... 104
SECTION 10.07. Subordination ......................................................................... 104
SECTION 10.08. Default; Remedies .................................................................. 105
iv
SECTION 10.09. Irrevocability .......................................................................... 105
SECTION 10.10. Setoff ...................................................................................... 105
SECTION 10.11. No Marshaling ........................................................................ 105
SECTION 10.12. Enforcement; Amendments; Waivers .................................... 105
SCHEDULES AND EXHIBITS
SCHEDULES
Schedule I - Commitments
Schedule II - Material Subsidiaries
Schedule 2.04 - Existing Letters of Credit
Schedule 5.02 - Consents
Schedule 5.05 - Litigation
Schedule 5.10 - Environmental Matters
Schedule 6.04(a) - Existing Liens
EXHIBITS
Exhibit A - Form of Revolving Loan Note
Exhibit B-1 - Form of Notice of Revolving Loan Borrowing
Exhibit B-2 - Form of Notice of Conversion or Continuation
Exhibit C-1 - Form of Assignment and Acceptance
Exhibit C-2 - Form of Participation Agreement
Exhibit C-3 - Form of New Commitment Acceptance
Exhibit D-1 - Form of Euro Borrower Designation
Exhibit D-2 - Form of Swing Loan Borrower Designation
Exhibit E - Form of Swing Loan Request
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
FMC CORPORATION
#89536643v12
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
“Agreement”), dated as of May 2, 2017, among FMC CORPORATION, a Delaware corporation
(“U.S. Borrower”), the Euro Borrowers (as defined below) and the Swing Loan Borrowers (as
defined below), in each case, party hereto from time to time (the Euro Borrowers and the Swing
Loan Borrowers together with the U.S. Borrower, collectively the “Borrowers”), the lenders and
issuing banks listed on the signature pages hereof under the heading “Lenders” (the “Lenders”)
and the other Lenders (as defined below) party hereto from time to time, BANK OF AMERICA,
N.A., as syndication agent (the “Syndication Agent”), BNP PARIBAS, JPMORGAN CHASE
BANK, N.A., SUMITOMO MITSUI BANKING CORPORATION and TD BANK, N.A., as co-
documentation agents and CITIBANK, N.A., as administrative agent (in such capacity, the
“Administrative Agent”) for the Lenders hereunder.
WHEREAS, certain of the Borrowers are party to the Amended and Restated
Credit Agreement, dated as of October 10, 2014, among the U.S. Borrower, as borrower, the U.S.
Borrower’s foreign subsidiaries party thereto, Citibank, N.A., as administrative agent, and the
lenders, issuing banks and other parties party thereto (as amended by that certain Amendment No.
1 thereto, dated as of August 26, 2015 and that certain Amendment No. 2 thereto, dated as of
March 24, 2016, prior to the date hereof, the “Existing Credit Agreement”); and
WHEREAS, the Borrowers have requested, among other things, that the Lenders
make certain changes to the Existing Credit Agreement as contained herein and amend and restate
the Existing Credit Agreement in whole, without constituting a novation.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties hereto agree to amend and restate the Existing Credit
Agreement in its entirety without constituting a novation, effective on the Effective Date, as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
“Acceptance” means an Assignment and Acceptance or a New Commitment
Acceptance.
“Acquired Business” means, collectively, certain assets of the Seller acquired by
the U.S. Borrower (either directly or indirectly through one or more of its Subsidiaries) from the
Seller pursuant to the Acquisition Agreement.
“Acquisition” means the acquisition by the U.S. Borrower (either directly or
indirectly through one or more of its Subsidiaries) of certain assets of the Seller and the
concurrent acquisition by the Seller (either directly or indirectly through one or more of its
Subsidiaries) of certain assets of the U.S. Borrower, in each case, pursuant to the Acquisition
Agreement.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
FMC CORPORATION
2
“Acquisition Agreement” means that certain Transaction Agreement, dated as of
March 31, 2017, by and between the U.S. Borrower and the Seller.
“Acquisition Closing Date” means the date on which the Acquisition is
consummated in accordance with terms of the Acquisition Agreement.
“Administrative Agent” has the meaning specified in the recital of parties to this
Agreement.
“Administrative Agent’s Account” means, in respect of any Currency, such
account as the Administrative Agent shall designate in a notice to the U.S. Borrower and the
Lenders.
“Affected Person” has the meaning specified in Sections 2.12(j), 3.05(e), 3.06
and 3.08(a).
“Affiliate” means, with respect to any Person, any other Person directly or
indirectly controlling or that is controlled by or is under common control with such Person, each
officer, director, general partner or joint-venturer of such Person, and each Person that is the
beneficial owner of 5% or more of any class of Voting Stock of such Person. For the purposes of
this definition, “control” means the possession of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
“Agents” means, collectively, the Administrative Agent and the Syndication
Agent.
“Alternate Currency” means any lawful currency other than Dollars (approved by
the Administrative Agent and each Lender) which is freely transferable into Dollars.
“Anniversary Date” has the meaning specified in Section 2.15(a).
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction
applicable to any Borrower or its Subsidiaries from time to time concerning or relating to bribery
or corruption, including without limitation the Foreign Corrupt Practices Act of 1977, 15 U.S.C.
§§ 78dd-1, et seq.
“Anti-Money Laundering Laws” means all laws, rules, and regulations of any
jurisdiction applicable to any Borrower or its Subsidiaries from time to time concerning or
relating to money laundering, including without limitation the Patriot Act.
“Applicable Lending Office” means, with respect to each Lender, and for each
Type and Currency of Loan, such Lender’s Domestic Lending Office in the case of a Base Rate
Loan and such Lender’s Eurocurrency Lending Office in the case of a Eurocurrency Rate Loan.
“Applicable Margin” means, as of any date, the applicable margin set forth under
the Eurocurrency Rate or Base Rate column set forth below, as applicable, based upon the Public
Debt Rating in effect on such date:
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
FMC CORPORATION
3
PUBLIC DEBT RATING
S&P/▇▇▇▇▇’▇
EUROCURRENCY
RATE
BASE RATE
Level 1
A / A2 or higher
0.805% 0.000%
▇▇▇▇▇ ▇
▇- / ▇▇
0.910% 0.000%
▇▇▇▇▇ ▇
▇▇▇▇ / ▇▇▇▇
1.000% 0.000%
▇▇▇▇▇ ▇
▇▇▇ / ▇▇▇▇
1.100% 0.100%
▇▇▇▇▇ ▇
▇▇▇- / ▇▇▇▇
1.300% 0.300%
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇
1.500% 0.500%
“Applicable Percentage” means, as of any date, the applicable percentage set
forth below under the Facility Fee column based upon the Public Debt Rating in effect on such
date:
PUBLIC DEBT RATING
S&P/▇▇▇▇▇’▇
FACILITY
FEE
Level 1
A / A2 or higher
0.070%
▇▇▇▇▇ ▇
▇- / ▇▇
▇.▇▇▇%
▇▇▇▇▇ ▇
▇▇▇▇ / ▇▇▇▇
0.125%
▇▇▇▇▇ ▇
▇▇▇ / ▇▇▇▇
0.150%
▇▇▇▇▇ ▇
▇▇▇- / ▇▇▇▇
0.200%
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇
0.250%
“Arrangers” means CGMI and Merrill, in their respective capacities as joint lead
arrangers.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
FMC CORPORATION
4
“Assignment and Acceptance” means an assignment and acceptance entered into
by a Lender and an Eligible Assignee, and accepted by the Administrative Agent, in accordance
with Section 9.07 and in substantially the form of Exhibit C-1 hereto.
“Available Amount” means, at any time, with respect to any Letter of Credit, the
maximum amount available to be drawn under such Letter of Credit at such time (assuming
compliance at such time with all conditions to drawing), provided, that if any Letter of Credit
provides for future increases in the maximum amount available to be drawn under such Letter of
Credit, then the “Available Amount” of such Letter of Credit shall mean, at any time, the
maximum amount available to be drawn under such Letter of Credit after taking into account all
increases in the availability thereunder.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers
by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial
Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country
implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council
of the European Union, the implementing law for such EEA Member Country from time to time
which is described in the EU Bail-In Legislation Schedule.
“Base Rate” means, for any period, a fluctuating interest rate per annum as shall
be in effect from time to time which rate per annum shall at all times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank in New York, New
York, from time to time, as its “base rate”;
(b) the Federal Funds Rate plus 1/2 of 1%; and
(c) Eurocurrency Rate for a one-month period plus 1%; provided, that for
purposes of this clause (c), the Eurocurrency Rate shall be based on the Eurocurrency Rate at
approximately 11:00 A.M. (London time) on such day of determination, but shall otherwise be
calculated in accordance with the definition of “Eurocurrency Rate” (including the interest rate
floors set forth therein).
“Base Rate Loan” means a Loan denominated in Dollars which bears interest as
provided in Section 2.08(a)(i).
“BofA” means Bank of America, N.A., a national banking association.
“Borrowers” has the meaning specified in the recital of parties to this Agreement.
“Borrowers’ Accountants” means KPMG LLP or other independent nationally-
recognized public accountants acceptable to the Administrative Agent
“Borrowing” means a Revolving Loan Borrowing or a Swing Loan Borrowing.
“Business Day” means a day of the year on which banks are not required or
authorized by law to close in New York City and, if the applicable Business Day relates to any
Eurocurrency Rate Loans, on which dealings are carried on in the London interbank market (or,
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
FMC CORPORATION
5
in the case of Loans denominated in Euros, on which the Trans-European Automated Real-Time
Gross Settlement Express Transfer (TARGET) System is open).
“Capital Lease” means, with respect to any Person, any lease of, or other
arrangement conveying the right to use, property by such Person as lessee that would be
accounted for as a capital lease on a balance sheet of such Person prepared in conformity with
GAAP.
“Capital Lease Obligations” means, with respect to any Person, the capitalized
amount of all Consolidated obligations of such Person or any of its Subsidiaries under Capital
Leases.
“Cash Collateralize” means, in respect of an obligation, to provide and pledge (as
a first priority perfected security interest) cash collateral in Dollars or Alternate Currency
specified by the Administrative Agent, at a location and pursuant to documentation in form and
substance reasonably satisfactory to the Administrative Agent (and “Cash Collateralization” has a
corresponding meaning).
“CGMI” means Citigroup Global Markets Inc.
“Change of Control” means the occurrence of any of the following: (a) any
Person or group of Persons (within the meaning of the Securities Exchange Act of 1934, as
amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the SEC
under the Securities Exchange Act of 1934, as amended) of 30% or more of the issued and
outstanding Voting Stock of the U.S. Borrower or (b) during any period of twenty-four (24)
consecutive calendar months, individuals who at the beginning of such period constituted the
board of directors of the U.S. Borrower (together with any new directors whose election by the
board of directors of the U.S. Borrower or whose nomination for election by the stockholders of
the U.S. Borrower was approved by a vote of at least two-thirds of the directors then still in office
who either were directors at the beginning of such period or whose elections or nomination for
election was previously so approved) cease for any reason other than death or disability to
constitute a majority of the directors then in office.
“Citibank” means Citibank, N.A., a national banking association, and its
successors.
“Code” means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated and rulings issued thereunder.
“Co-Documentation Agents” has the meaning specified in the recital of parties to
this Agreement.
“Commitment” means, as to any Lender, (i) the Dollar amount set forth opposite
its name on Schedule I hereto or (ii) if such Lender has entered into one or more Acceptances, the
amount set forth for such Lender in the Register, in each case as the same may be increased or
reduced as expressly provided herein (including, without limitation, pursuant to Sections 2.06,
2.15(c), 3.08 and 9.07).
“Confidential Information” has the meaning set forth in Section 9.11 hereto.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
FMC CORPORATION
6
“Consolidated” refers to the consolidation of accounts of the U.S. Borrower and
its Subsidiaries in accordance with GAAP.
“Constituent Documents” means, with respect to any Person, (a) the articles of
incorporation and/or organization, certificate of incorporation or certificate of formation (or the
equivalent organizational documents) of such Person, (b) the by-laws, operating agreement (or
the equivalent governing documents) of such Person and (c) any document setting forth the
manner of election and duties of the directors or managing members of such Person (if any) and
the designation, amount or relative rights, limitations and preferences of any class or series of
such Person’s Stock.
“Contaminant” means any material, substance or waste that is classified,
regulated or otherwise characterized under any Environmental Law as hazardous, toxic, a
contaminant or a pollutant or by other words of similar meaning or regulatory effect, including
any green house gas, petroleum or petroleum-derived substance or waste, asbestos and
polychlorinated biphenyls.
“Continuation”, “Continue” and “Continued” each refer to a continuation of
Eurocurrency Rate Loans for an additional Interest Period pursuant to Section 2.14.
“Contractual Obligation” means, as to any Person, any agreement, instrument or
other undertaking to which such Person is a party or by which it or any of its property is bound.
“Conversion”, “Convert” and “Converted” each refer to a conversion of
Revolving Loans of one Type into Revolving Loans of the other Type pursuant to Section 2.14.
“CRR” means the Council Regulation (EU) No 575/2013 of the European
Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions
and investment firms and amending Regulation (EU) No 648/2012.
“Currency” means Dollars or any Alternate Currency.
“Customary Permitted Liens” means, with respect to any Person, any of the
following Liens:
(a) Liens for taxes, assessments, governmental charges, claims or levies in
each case that are not yet due or that are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves (in the good faith judgment of the management of the
respective Person) have been established;
(b) Liens of landlords, liens in favor of utilities and liens of suppliers,
mechanics, carriers, materialmen, warehousemen or workmen and other liens imposed by law or
contract which were incurred in the ordinary course of business and (i) which secure amounts not
yet due or (ii)(A) which do not in the aggregate materially detract from the value of such property
(other than immaterial property) or materially impair the use thereof in the operation of the
business of any Person or (B) which Liens (or the amounts secured thereby) are being contested
in good faith by appropriate proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property subject to such Lien and with respect to which adequate reserves
(in the good faith judgment of the management of the respective Person) have been established;
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
FMC CORPORATION
7
(c) Liens incurred or deposits made in the ordinary course of business in
connection with workers’ compensation, unemployment insurance or other types of social
security benefits or to secure the performance of trade contracts, bids, tenders, statutory and
regulatory obligations, sales, contracts (other than for the repayment of borrowed money), appeal
bonds, leases, government contracts or customs bonds and other similar obligations incurred in
the ordinary course of business;
(d) encumbrances arising by reason of zoning restrictions, easements,
licenses, reservations, covenants, rights-of-way, utility easements, building restrictions and other
similar encumbrances on the use of real property not materially detracting from the value of such
real property or not materially interfering with the ordinary conduct of the business conducted
and proposed to be conducted at such real property;
(e) encumbrances, easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not interfering in any material
respect with the ordinary conduct of the business of any Person;
(f) encumbrances arising under leases or subleases of real property that do
not, in the aggregate, materially detract from the value of such real property or interfere with the
ordinary conduct of the business conducted at such real property;
(g) financing statements with respect to a lessor’s rights in and to personal
property leased to such Person in the ordinary course of such Person’s business;
(h) Liens arising from judgments, decrees or attachments and Liens securing
appeal bonds arising from judgments, in each case in circumstances not constituting an Event of
Default, provided that no cash or property is deposited or delivered to secure any such judgment
or award;
(i) Liens on property of a Person or a business that are existing at the time
such Person or business is acquired pursuant to an acquisition not prohibited by Section 6.04(b),
provided that such Liens were not placed on such property in contemplation of the consummation
of the acquisition and do not extend to any property other than those of the Person or the business
so acquired (and proceeds and products of any of the foregoing);
(j) Liens encumbering goods under production and arising from progress or
partial payments by the U.S. Borrower or any Subsidiary relating to the underlying goods;
(k) Liens arising out of conditional sale, title retention, consignment or
similar arrangements for the sale of goods entered into by the U.S. Borrower or any Subsidiary in
the ordinary course of business;
(l) Liens under ERISA to the extent the creation thereof would not breach
the representation made in Section 5.09 if made immediately after such creation;
(m) Liens on any proceeds (including, without limitation, insurance,
condemnation and eminent domain proceeds) or products of any property, a lien over which is a
Lien permitted by Section 6.04(a); and
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
FMC CORPORATION
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(n) Liens arising solely by virtue of any statutory or common law provisions
relating to (i) banker’s liens, (ii) liens in favor of securities intermediaries and (iii) rights of set off
or similar rights and remedies as to deposit accounts or securities accounts or other funds
maintained with depository institutions or securities intermediaries, including Liens arising under
Article 24 of the general terms and conditions of any member of the Dutch Bankers' Association
or any similar term applied by a financial institution in the Netherlands pursuant to its general
terms and conditions.
“Default” means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or both.
“Default Interest” has the meaning specified in Section 2.08(b).
“Defaulting Lender” means at any time, subject to Section 2.16(e), (i) any Lender
that has failed to comply with its obligations under this Agreement to make a Loan, make a
payment to any Issuing Bank in respect of a Letter of Credit, make a payment to the Swing Loan
Lender in respect of a Swing Loan or pay to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder (each a “Funding Obligation”) within two
Business Days of the date such Funding Obligation was required to be funded hereunder unless
such Lender notifies the Administrative Agent and the U.S. Borrower in writing that such failure
is the result of such Lender’s good faith determination that one or more conditions precedent to
funding (each of which conditions precedent, together with any applicable default, shall be
specifically identified in such writing) has not been satisfied, (ii) any Lender that has notified the
Administrative Agent, the U.S. Borrower, the Issuing Bank or the Swing Loan Lender in writing,
or has stated publicly, that it does not intend to comply with its Funding Obligations hereunder
(unless such writing or public statement relates to such Lender’s obligation to fund a Loan
hereunder and states that such position is based on such Lender’s good faith determination that a
condition precedent to funding (which condition precedent, together with any applicable default,
shall be specifically identified in such writing or public statement) cannot be satisfied), (iii) any
Lender that has defaulted on its funding obligations under any other loan agreements or credit
agreements generally, (iv) any Lender that has, for three or more Business Days after written
request of the Administrative Agent or the U.S. Borrower, failed to confirm in writing to the
Administrative Agent and the U.S. Borrower that it will comply with its prospective funding
obligations hereunder (provided that such Lender will cease to be a Defaulting Lender pursuant to
this clause (iv) upon the Administrative Agent’s and the U.S. Borrower’s receipt of such written
confirmation), (v) any Lender with respect to which a Lender Insolvency Event has occurred and
is continuing with respect to such Lender or its Parent Company or (vi) any Lender that has, or
has a Parent Company that has, become the subject of a Bail-in Action (provided, in each case,
that neither the reallocation of Funding Obligations provided for in Section 2.16 as a result of a
Lender's being a Defaulting Lender nor the performance by Non-Defaulting Lenders of such
reallocated Funding Obligations will by themselves cause the relevant Defaulting Lender to
become a Non-Defaulting Lender). Notwithstanding anything to the contrary above, any
determination by the Administrative Agent that a Lender is a Defaulting Lender under any of
clauses (i) through (v) above will be conclusive and binding absent manifest error, and such
Lender will be deemed to be a Defaulting Lender (subject to Section 2.16(e)) upon notification of
such determination by the Administrative Agent to the U.S. Borrower, the Issuing Banks, the
Swing Loan Lender and the Lenders.
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“Designated Borrower” means any Euro Borrower or Swing Loan Borrower
designated pursuant to a Euro Borrower Designation or a Swing Loan Borrower Designation,
respectively.
“Disclosure Documents” means the U.S. Borrower’s annual report on Form 10-K
for December 31, 2016 and any amendments thereto filed by the U.S. Borrower with the SEC.
“Documentary Letter of Credit” means any Letter of Credit that is drawable upon
presentation of documents evidencing the sale or shipment of goods purchased by the U.S.
Borrower or any of its Subsidiaries in the ordinary course of its business.
“Dollar Equivalent” means, with respect to any amount denominated in an
Alternate Currency, the amount of Dollars that would be required to purchase such amount of
such Alternate Currency, based upon the rate at which such Alternate Currency may be
exchanged for Dollars (x) in the case of an amount denominated in any Alternate Currency other
than Euros, in the London foreign exchange market at approximately 11:00 A.M. London time or
(y) in the case of an amount denominated in Euros, in the London foreign exchange market at
approximately 10:00 A.M. London time or, at the request of the Borrower, 11:00 A.M., Brussels
time, in each case for delivery two Business Days thereafter; provided that, solely for purposes of
calculating the amount of any fronting fee payable to any Issuing Bank pursuant to Section
2.05(b)(ii) that is otherwise calculated in Euros or the amount of any Reimbursement Obligations
owing to any Issuing Bank pursuant to Section 3.04(g) or 3.04(h) in respect of any Letter of
Credit denominated in Euros, “Dollar Equivalent” shall be the amount of Dollars that would be
required to purchase such amount of Euros, based upon the rate determined by such Issuing Bank
through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two
Business Days prior to the date as of which the foreign exchange computation is made.
“Dollar Revolving Loan” has the meaning specified in Section 2.01(a).
“Dollars” and “$” mean lawful money of the United States of America.
“Domestic Lending Office” means, with respect to any Lender, the office of such
Lender specified as its “Domestic Lending Office” in its administrative questionnaire delivered to
the Administrative Agent or in the Acceptance pursuant to which it became a Lender, or such
other office of such Lender as such Lender may from time to time specify to the U.S. Borrower
and the Administrative Agent.
“Domestic Subsidiary” means any Subsidiary of the U.S. Borrower organized
under the laws of any state of the United States of America or the District of Columbia or any
entity disregarded for U.S. tax purposes wholly owned by the U.S. Borrower or a Domestic
Subsidiary.
“Dutch Borrower” means any Borrower that is organized under the laws of the
Netherlands.
“Dutch Non-Public Lender” means:
(i) until the publication of an interpretation of “public” as referred to in the CRR
by the competent authority/ies: an entity which (x) assumes rights and/or obligations vis-à-vis a
Dutch Borrower, the value of which is at least EUR 100,000 (or its equivalent in another
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currency), (y) which provides repayable funds for an initial amount of at least EUR 100,000 (or
its equivalent in another currency) or (z) otherwise qualifies as not forming part of the public),
and
(ii) as soon as the interpretation of the term “public” as referred to in the CRR
has been published by the competent authority/ies: an entity which is considered not to form part
of the public on the basis of such interpretation.
“EBITDA” means, for any period, net income for such period, plus, without
duplication and to the extent deducted from revenues in determining net income for such period,
the sum of (a) the aggregate amount of interest expense for such period, (b) the aggregate amount
of income and franchise tax expense for such period, (c) all amounts attributable to depreciation
and amortization for such period, (d) all other non-cash charges and non-cash losses for such
period, (e) all Non-Recurring Items for such period and (f) all fees, expenses and charges incurred
in connection with or arising as a result of any proposed or actual acquisitions, investments, asset
sales or divestitures and minus, without duplication and to the extent added to revenues in
determining net income for such period, the sum of (i) all non-recurring non-cash gains during
such period, (ii) the amount of cash used during such period to the extent charged against net
income in a different period (excluding any item under clause (f) above) and (iii) the amount of
cash used during such period relating to a Non-Recurring Item, all as determined on a
consolidated basis with respect to the U.S. Borrower and its Subsidiaries in accordance with
GAAP. For the purposes of calculating EBITDA for any period, if during such period the U.S.
Borrower or any Subsidiary shall have made an acquisition, EBITDA for such period shall be
calculated after giving pro forma effect thereto as if such acquisition occurred on the first day of
such period.
“EEA Financial Institution” means (a) any credit institution or investment firm
established in any EEA Member Country which is subject to the supervision of an EEA
Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of
an institution described in clause (a) of this definition, or (c) any financial institution established
in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b)
of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union,
Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any
person entrusted with public administrative authority of any EEA Member Country (including
any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” has the meaning set forth in Section 4.01.
“Eligible Assignee” means a Lender and any Affiliate of such Lender or any
other Person approved in writing by the Administrative Agent, the Issuing Banks, the Swing Loan
Lenders and the U.S. Borrower; provided, that for the purposes of any Loan owed by a Dutch
Borrower, any of the aforementioned Persons is a Dutch Non-Public Lender; provided, further,
that none of the following shall be an Eligible Assignee: (i) any natural person (or a holding
company, investment vehicle or trust for, or owned and operated for the primary benefit of, a
natural person), (ii) any Borrower or any Affiliates of such Borrower or (iii) any Defaulting
Lender.
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“EMU” means economic and monetary union as contemplated in the Treaty on
European Union.
“EMU Legislation” means legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European currency (whether
known as the euro or otherwise), being in part the implementation of the third stage of EMU.
“Environmental Law” means any federal, state or local law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award relating to the environment,
health, safety or hazardous materials, including, without limitation, CERCLA, the Resource
Conservation and Recovery Act, the Hazardous Materials Transportation Act, the Clean Water
Act, the Toxic Substances Control Act, the Clean Air Act, the Safe Drinking Water Act, the
Atomic Energy Act, the Federal Insecticide, Fungicide and Rodenticide Act and the Occupational
Safety and Health Act.
“Environmental Liabilities and Costs” means, with respect to any Person, all
liabilities, obligations, responsibilities, Remedial Actions, losses, damages, punitive damages,
consequential damages, treble damages, costs and expenses (including all fees, disbursements and
expenses of counsel, experts and consultants and costs of investigation and feasibility studies),
fines, penalties, sanctions and interest, whether based in contract, tort, implied or express
warranty, strict liability, criminal or civil statute and whether arising under any Environmental
Law, Permit, order or agreement with any Governmental Authority or other Person, in each case
relating to any environmental, health or safety condition or to any Release or threatened Release
and resulting from the past, present or future operations of, or ownership of property by, such
Person or any of its Subsidiaries.
“Environmental Lien” means any Lien in favor of any Governmental Authority
for Environmental Liabilities and Costs.
“ERISA” means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued thereunder.
“ERISA Affiliate” means any Person who for purposes of Title IV of ERISA is a
member of the U.S. Borrower’s controlled group, or under common control with the U.S.
Borrower, within the meaning of Section 414(b) or 414(c) of the Code.
“ERISA Event” means, with respect to any Person, (a) the occurrence of a
reportable event, within the meaning of Section 4043 of ERISA, with respect to any Plan of such
Person or any of its ERISA Affiliates unless the 30-day notice requirement with respect to such
event has been waived by the PBGC; (b) the provision by the administrator of any Plan of such
Person or any of its ERISA Affiliates of a notice of intent to terminate such Plan pursuant to
Section 4041(a)(2) of ERISA with respect to a termination described in Section 4041(c)(2) of
ERISA (including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (c) the cessation of operations at a facility of such Person or any of
its ERISA Affiliates in the circumstances described in Section 4062(e) of ERISA; (d) the
withdrawal by such Person or any of its ERISA Affiliates from a Multiple Employer Plan during
a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA;
(e) the failure by such Person or any of its ERISA Affiliates to make a payment to a Plan required
under the minimum funding standards of ERISA; (f) a determination that any Plan is in “at risk”
status (within the meaning of Section 303 of ERISA or Section 430 of the Code); or (g) the
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institution by the PBGC of proceedings to terminate a Plan of such Person or any of its ERISA
Affiliates, pursuant to Section 4042 of ERISA.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule
published by the Loan Market Association (or any successor person), as in effect from time to
time.
“Euro” means the single currency of Participating Member States of the
European Union.
“Euro Borrower” means each of FMC Finance B.V., a company organized and
existing under the laws of the Netherlands, FMC Chemicals Netherlands B.V., a company
organized and existing under the laws of the Netherlands, FMC ▇▇▇▇▇, ▇.▇., a company organized
and existing under the laws of Spain, FMC Luxembourg Holdings S.à ▇.▇. (previously named
“SHCO 91 S.à ▇.▇.”), a private limited liability company (société à responsabilité limitée) having
its registered office at ▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇▇ of
Luxembourg, registered with the Luxembourg Trade and Companies Register under number B
189601, FMC Luxembourg S.à ▇.▇. (previously named “SHCO 92 S.à ▇.▇.”), a private limited
liability company (société à responsabilité limitée) having its registered office at ▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇▇ of Luxembourg, registered with the Luxembourg
Trade and Companies Register under number B 189617, Surety International Ltd., a company
organized and existing under the laws of Bermuda and any Foreign Subsidiary; provided, that
such Foreign Subsidiary (i) is designated a “Euro Borrower” for purposes of this Agreement by
the U.S. Borrower in a written notice in substantially the form of Exhibit D-1 hereto (each, a
“Euro Borrower Designation” and each Euro Borrower designated thereby, a “Designated
Borrower”), (ii) is approved as a Euro Borrower by the Administrative Agent and each Lender
and (iii) joins this Agreement and the other Loan Documents pursuant to documentation
satisfactory to the Administrative Agent (including such guaranties as the Administrative Agent
may require).
“Euro Borrower Designation” has the meaning specified in the definition of
“Euro Borrower”.
“Euro Revolving Loan” has the meaning specified in Section 2.01(a).
“Eurocurrency Lending Office” means, with respect to any Lender, the office of
such Lender specified as its “Eurocurrency Lending Office” in its administrative questionnaire
delivered to the Administrative Agent or in the Acceptance pursuant to which it became a Lender
(or, if no such office is specified, its Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the U.S. Borrower and the
Administrative Agent.
“Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“Eurocurrency Rate” means, for any Interest Period for each Eurocurrency Rate
Loan comprising part of the same Borrowing, the rate per annum appearing on Reuters Screen
LIBOR01 Page (or on any successor or substitute page of such service, or any successor to or
substitute for such service, providing rate quotations comparable to those currently provided on
such page, as determined by the Administrative Agent from time to time for purposes of
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providing quotations of interest rates applicable to dollar deposits in the London interbank
market, the “Screen Rate”) as the London interbank offered rate for deposits in the applicable
currency at approximately 11:00 A.M. (London time) on the second Business Day immediately
preceding the first day of such Interest Period, for a term comparable to such Interest Period;
provided, that the Eurocurrency Rate shall not be less than zero; provided, further, that if the
applicable Screen Rate shall not be available at such time for such Interest Period (an “Impacted
Interest Period”) with respect to the relevant currency, then the Eurocurrency Rate shall be the
Interpolated Rate at such time. “Interpolated Rate” means, at any time, the rate per annum
determined by the Administrative Agent (which determination shall be conclusive and binding
absent manifest error) to be equal to the rate that results from interpolating on a linear basis
between: (a) the applicable Screen Rate for the longest period (for which that Screen Rate is
available in the relevant currency) that is shorter than the Impacted Interest Period and (b) the
Screen Rate for the shortest period (for which that Screen Rate is available in the relevant
currency) that exceeds the Impacted Interest Period, in each case, at such time.
“Eurocurrency Rate Loan” means a Loan denominated in Dollars or Euros which
bears interest as provided in Section 2.08(a)(iii).
“Eurocurrency Rate Reserve Percentage” of any Lender for any Interest Period
for any Eurocurrency Rate Loan means the reserve percentage applicable during such Interest
Period (or if more than one such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any such percentage shall be so
applicable) under regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve requirement) for such
Lender with respect to liabilities or assets consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
“Events of Default” has the meaning specified in Section 7.01.
“Excluded Representations” means the representations and warranties set forth in
Sections 5.04 and 5.05.
“Existing Credit Agreement” has the meaning specified in the recitals hereto.
“Existing Letters of Credit” means each “Letter of Credit” issued pursuant to the
terms of, and as defined in, the Existing Credit Agreement and outstanding on the Effective Date
and listed on Schedule 2.04.
“Facility” means the Commitments and the provisions herein relating to the
Revolving Loans and Letters of Credit.
“Farm Credit System” means a federally chartered network of borrower-owned
lending institutions comprised of cooperatives and related service organizations regulated by the
Farm Credit Administration.
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of
this Agreement (or any amended or successor version that is substantively comparable and not
materially more onerous to comply with), any current or future regulations or official
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interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the
Code and any intergovernmental agreement implementing the foregoing.
“FDIC” means the Federal Deposit Insurance Corporation or any successor.
“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum
equal for each day during such period to the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System, as published for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it; provided that the Federal
Funds Rate shall not be less than zero.
“Fee Letter” means that certain Fee Letter in respect of the Facility, dated as of
March 31, 2017, between the U.S. Borrower and CGMI.
“Final Termination Date” means, at any time, the latest occurring Termination
Date in effect at such time.
“Financial Covenant Debt” of any Person means Indebtedness of the type
specified in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of the definition of “Indebtedness”;
provided, however, that (i) in the case of clause (c), such obligations shall be included in this
definition of Financial Covenant Debt only to the extent such obligations are in respect of
unreimbursed drawings under letters of credit, and (ii) that Guaranty Obligations supported by a
Letter of Credit shall not, to the extent so supported, be included in this definition of Financial
Covenant Debt.
“Fiscal Quarter” means each of the three month periods ending on March 31,
June 30, September 30 and December 31.
“Fiscal Year” means the twelve month period ending on December 31.
“FMC’s Business” means the business of developing, manufacturing and/or
selling, and providing research and development, marketing and/or other services and support for,
chemical-based and formulated products and related organic and inorganic materials and any
business reasonably related, incidental, complementary or ancillary thereto.
“Foreign Currency Equivalent” means, with respect to any amount in Dollars, the
amount of an Alternate Currency that could be purchased with such amount of Dollars using the
reciprocal of foreign exchange rate(s) specified in the definition of the term “Dollar Equivalent”,
as determined by the Administrative Agent.
“Foreign Credit Line” means a credit facility or similar credit arrangement
(including any arrangement in connection with vendor financing) made available by a financial
institution to Foreign Subsidiaries or their customers, as applicable.
“Foreign Subsidiary” means any Subsidiary of the U.S. Borrower that is not a
Domestic Subsidiary.
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“GAAP” means generally accepted accounting principles in the United States of
America as in effect from time to time, except that, with respect to the determination of
compliance by the U.S. Borrower with the covenant set forth in Section 6.01, “GAAP” shall
mean such principles in the United States of America as in effect as of the date of, and used in,
the preparation of the audited financial statements of the U.S. Borrower referred to in
Section 5.03.
“Governmental Authority” means any nation, sovereign or government, any state
or other political subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory, taxing or administrative functions of or pertaining to government, including any
central bank and any supra-national bodies (such as the European Union or the European Central
Bank).
“Granting Lender” has the meaning specified in Section 9.07(a).
“Guarantied Obligations” has the meaning specified in Section 10.01(a).
“Guarantor” has the meaning specified in Section 10.01(a).
“Guaranty” means the U.S. Borrower’s guaranty of the Guarantied Obligations of
the Euro Borrowers and the Swing Loan Borrowers under this Agreement as set forth in Article X
(Guaranty) hereof.
“Guaranty Obligation” means, as applied to any Person, any direct or indirect
liability, contingent or otherwise, of such Person with respect to any Indebtedness of another
Person, if the purpose or intent of such Person in incurring the Guaranty Obligation is to provide
assurance to the obligee of such Indebtedness that such Indebtedness will be paid or discharged,
or that any agreement relating thereto will be complied with, or that any holder of such
Indebtedness will be protected (in whole or in part) against loss in respect thereof, including
(a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the
ordinary course of business), co-making, discounting with recourse or sale with recourse by such
Person of Indebtedness of another Person and (b) any liability of such Person for Indebtedness of
another Person through any agreement (contingent or otherwise) (i) to purchase, repurchase or
otherwise acquire such Indebtedness or any security therefor, or to provide funds for the payment
or discharge of such Indebtedness (whether in the form of a loan, advance, stock purchase, capital
contribution or otherwise), (ii) to maintain the solvency or any balance sheet item, level of
income or financial condition of another Person, (iii) to make take-or-pay or similar payments
outside of the ordinary course of business, if required, regardless of non-performance by any
other party or parties to an agreement, (iv) to purchase, sell or lease (as lessor or lessee) property,
or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment
of such Indebtedness or to assure the holder of such Indebtedness against loss or (v) to supply
funds to, or in any other manner invest in, such other Person (including to pay for property or
services irrespective of whether such property is received or such services are rendered), if in the
case of any agreement described under clause (b)(i), (ii), (iii), (iv) or (v) above the primary
purpose or intent thereof is to provide assurance that Indebtedness of another Person will be paid
or discharged, that any agreement relating thereto will be complied with or that any holder of
such Indebtedness will be protected (in whole or in part) against loss in respect thereof. The
amount of any Guaranty Obligation shall be equal to the amount of the Indebtedness so
guaranteed or otherwise supported.
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“Hedging Contracts” means all Interest Rate Contracts, foreign exchange
contracts, currency swap or option agreements, forward contracts, commodity swap, purchase or
option agreements, other commodity price hedging arrangements, and all other similar
agreements or arrangements designed to alter the risks of any Person arising from fluctuations in
interest rates, currency values or commodity prices.
“Increasing Lender” means, in connection with any increase in the aggregate
amount of the Commitments pursuant to Section 2.06(b), a Lender whose Commitment is
increased pursuant to Section 2.06(b)(vi).
“Indebtedness” of any Person means, as of any date of determination, without
duplication (a) all indebtedness of such Person for borrowed money, (b) all obligations of such
Person evidenced by notes, bonds (other than surety and performance bonds, which are covered
in clause (c) below), debentures or similar instruments or that bear interest, (c) all reimbursement
and other obligations with respect to letters of credit, bankers’ acceptances, surety bonds and
performance bonds, whether or not matured, (d) all indebtedness for the deferred purchase price
of property or services, other than trade payables incurred in the ordinary course of business that
are not overdue, (e) all indebtedness of such Person created or arising under any conditional sale
or other title retention agreement with respect to property acquired by such Person (even though
the rights and remedies of the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (f) all Capital Lease Obligations of such Person
and the present value of future rental payments under all synthetic leases, (g) all Guaranty
Obligations of such Person, (h) all obligations of such Person to purchase, redeem, retire, defease
or otherwise acquire for value any Stock or Stock Equivalents of such Person, valued, in the case
of redeemable preferred stock, at the greater of its voluntary liquidation preference and its
involuntary liquidation preference plus accrued and unpaid dividends, (i) all net obligations
payable by such Person in respect of Hedging Contracts of such Person and (j) all Indebtedness of
the type referred to above secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including
accounts and general intangibles) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness.
“Indemnified Party” has the meaning specified in Section 9.04(b).
“Interest Coverage Ratio” means, with respect to the U.S. Borrower and its
Subsidiaries on a Consolidated basis for any period, the ratio of EBITDA for such period to Net
Consolidated Interest Expense for such period.
“Interest Income” means, for the U.S. Borrower and its Subsidiaries on a
Consolidated basis for any period, total interest income for such period on a Consolidated basis in
conformity with GAAP.
“Interest Period” means, with respect to each Eurocurrency Rate Loan, the period
commencing on the date of such Eurocurrency Rate Loan and ending one, two, three or six (or, if
requested by the U.S. Borrower and acceptable to each of the Lenders, twelve) calendar months
thereafter, as the U.S. Borrower (on its own behalf and on behalf of any other Borrower) may,
upon notice received by the Administrative Agent not later than 12:00 noon (New York City
time) on the third Business Day prior to the first day of such Interest Period, select; provided that:
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(i) the U.S. Borrower may not select any Interest Period that ends
after the Final Termination Date;
(ii) Interest Periods commencing on the same date for Revolving
Loans comprising part of the same Revolving Loan Borrowing shall be of the same
duration;
(iii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day, provided in the case of any
Interest Period for a Eurocurrency Rate Loan, that if such extension would cause the last
day of such Interest Period to occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding Business Day; and
(iv) 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.
“Interest Rate Contracts” means all interest rate swap agreements, interest rate
cap agreements, interest rate collar agreements and interest rate insurance.
“Investment” means, with respect to any Person, (a) any purchase or other
acquisition by such Person of (i) any security issued by, (ii) a beneficial interest in any security
issued by, or (iii) any other equity ownership interest in, any other Person, (b) any purchase by
such Person of all or a significant part of the assets of a business conducted by any other Person,
or all or substantially all of the assets constituting the business of a division, branch or other unit
operation of any other Person, (c) any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses, accounts receivable and
similar items made or incurred in the ordinary course of business as presently conducted) or
capital contribution by such Person to any other Person, including all Indebtedness of any other
Person to such Person arising from a sale of property by such Person other than in the ordinary
course of its business, and (d) any Guaranty Obligation incurred by such Person in respect of
Indebtedness of any other Person.
“IRB Obligations” means the variable rate industrial and pollution control
revenue bonds of the U.S. Borrower that are supported by letters of credit set forth on Schedule
2.04 (Existing Letters of Credit).
“Issue” means, with respect to any Letter of Credit, to issue, extend the expiry of,
renew or increase the maximum face amount (including by deleting or reducing any scheduled
decrease in such maximum face amount) of, such Letter of Credit. The terms “Issued” and
“Issuance” shall have a corresponding meaning
“Issuing Bank” means each Lender or Affiliate of a Lender that (a) is listed on
the signature pages hereof as an “Issuing Bank” or (b) hereafter becomes an Issuing Bank with
the approval of the Administrative Agent and the U.S. Borrower by agreeing pursuant to an
agreement with and in form and substance satisfactory to the Administrative Agent and the U.S.
Borrower to be bound by the terms hereof applicable to Issuing Banks.
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“L/C Cash Collateral Account” has the meaning specified in Section 7.02(b).
“L/C Cash Collateral Account Collateral” has the meaning specified in Section
7.02(b).
“L/C Cash Collateral Account Investments” has the meaning specified in Section
7.02(c).
“L/C Cash Collateral Account Obligations” has the meaning specified in
Section 7.02(e)(i).
“Lender Insolvency Event” shall mean that (i) a Lender or its Parent Company is
insolvent, or is generally unable to pay its debts as they become due, or admits in writing its
inability to pay its debts as they become due, or makes a general assignment for the benefit of its
creditors, or (ii) such Lender or its Parent Company is the subject of a bankruptcy, insolvency,
reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or
sequestrator or the like has been appointed for such Lender or its Parent Company.
Notwithstanding anything to the contrary above, a Lender will not be a Defaulting Lender solely
by virtue of the ownership or acquisition of any Stock in such Lender or its Parent Company by
any Governmental Authority.
“Lenders” means the Lenders listed on the signature pages hereof and each
Eligible Assignee that shall become a party hereto pursuant to Section 9.07 and shall include the
Swing Loan Lender and the Issuing Banks.
“Letter of Credit” has the meaning specified in Section 2.04.
“Letter of Credit Commitment” means, as to any Issuing Bank, (i) the Dollar
amount set forth opposite its name on Schedule I hereto or (ii) such other amount as agreed to by
the Issuing Bank and the U.S. Borrower.
“Letter of Credit Loan” means a payment by an Issuing Bank of a draft drawn
under any Letter of Credit pursuant to Section 3.04 or, without duplication, a payment by a
Lender in respect thereof pursuant to Section 3.04.
“Letter of Credit Obligations” means, at any time, the aggregate of all liabilities
at such time of the U.S. Borrower and the Euro Borrowers to all Issuing Banks with respect to
Letters of Credit, whether or not any such liability is contingent, including, without duplication,
the sum of (a) the Reimbursement Obligations in respect of the Letters of Credit at such time and
(b) the Letter of Credit Undrawn Amounts at such time.
“Letter of Credit Reimbursement Agreement” has the meaning specified in
Section 3.04(d).
“Letter of Credit Request” has the meaning specified in Section 3.04(b).
“Letter of Credit Sub-Facility” has the meaning specified in Section 2.04.
“Letter of Credit Sublimit” means $300,000,000.
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“Letter of Credit Undrawn Amounts” means, at any time, the aggregate undrawn
amount of all Letters of Credit outstanding at such time.
“Leverage Ratio” means, with respect to the U.S. Borrower and its Subsidiaries
on a Consolidated basis as of any date, the ratio of Financial Covenant Debt as of such date to
EBITDA for the last four Fiscal Quarters ending on or before such date.
“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment,
charge, deposit arrangement, encumbrance, lien (statutory or other), security interest or
preference, priority or other security agreement or preferential arrangement of any kind or nature
whatsoever intended to assure payment of any Indebtedness or the performance of any other
obligation, including any conditional sale or other title retention agreement, the interest of a lessor
under a Capital Lease and any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the UCC or comparable law
of any jurisdiction naming the owner of the asset to which such Lien relates as debtor.
“Loan Documents” means this Agreement, the Notes, each Letter of Credit and
each certificate, agreement or document executed by a Borrower and delivered to the
Administrative Agent or any Lender in connection with or pursuant to any of the foregoing.
“Loans” means all Revolving Loans, all Swing Loans and all Letter of Credit
Loans.
“Local Time” means, with respect to any Loan denominated, or any payment to
be made, in Dollars, New York City time, and with respect to any Loan denominated, or any
payment to be made, in an Alternate Currency, the local time in the Principal Financial Center for
such Alternate Currency.
“Margin Regulations” means, collectively, Regulations T, U and X, as from time
to time in effect, and any regulation replacing the same, of the Board of Governors of the Federal
Reserve System, or any successor thereto.
“Material Adverse Change” means a material adverse change in any of (a) the
business, condition (financial or otherwise), operations or properties of the U.S. Borrower and its
Subsidiaries taken as a whole, (b) the legality, validity or enforceability of any Loan Document,
(c) the ability of the Borrowers to repay the Obligations or to perform their respective obligations
under the Loan Documents or (d) the rights and remedies of the Administrative Agent or the
Lenders under the Loan Documents.
“Material Adverse Effect” means an effect that results in or causes, or could
reasonably be expected to result in or cause, a Material Adverse Change.
“Material Subsidiary” means (i) any Subsidiary of the U.S. Borrower that is a
Borrower or (ii) any Subsidiary of the U.S. Borrower from time to time in which the U.S.
Borrower has an Investment, direct or indirect, of at least $50,000,000 (excluding Investments by
such Subsidiary in other Subsidiaries in the form of Stock or Stock Equivalents), which
Subsidiaries on the Effective Date are listed on Schedule II hereto.
“Merrill” means ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, a
Delaware corporation (or any other registered broker-dealer wholly-owned by Bank of America
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
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Corporation to which all or substantially all of Bank of America Corporation’s or any of its
subsidiaries’ investment banking, commercial lending services or related businesses may be
transferred following the date hereof).
“Moody’s” means ▇▇▇▇▇’▇ Investors Service, Inc., or any successor by merger
or consolidation to its business.
“Multiemployer Plan” of any Person means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, and which is a defined benefit plan, to which such Person or any of
its ERISA Affiliates is making or accruing an obligation to make contributions, or has within any
of the preceding five plan years made or accrued an obligation to make contributions.
“Multiple Employer Plan” of any Person means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of such Person or
any of its ERISA Affiliates and at least one Person other than such Person and its ERISA
Affiliates or (b) was so maintained and in respect of which such Person or any of its ERISA
Affiliates could have liability under Section 4064 or Section 4069 of ERISA in the event such
plan has been or were to be terminated.
“Net Consolidated Interest Expense” means, for any period, Consolidated interest
expense for such period less the sum of (x) amortization of debt discount and premium for such
period and (y) Interest Income for such period.
“New Commitment Acceptance” means a New Commitment Acceptance
executed and delivered by a New Lender, and accepted by the Administrative Agent, in
accordance with Section 9.07 and in substantially the form of Exhibit C-3 hereto.
“New Lender” means, for purposes of Sections 2.06(b), 2.15(c) and 9.07(c), an
Eligible Assignee, approved by the Administrative Agent and the Issuing Banks (which approval
shall not be unreasonably withheld), that the U.S. Borrower has requested to become a Lender
hereunder pursuant to said Section 2.06(b) or 2.15(c).
“Non-Consenting Lender” means any Lender that does not approve any consent,
waiver or amendment that (i) requires the approval of all affected Lenders in accordance with the
terms of Section 9.01 and (ii) has been approved by the Required Lenders.
“Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting
Lender.
“Non-Recurring Items” means, to the extent reflected in the determination of 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).
“Note” means a Revolving Loan Note.
“Notice of Issuance” has the meaning specified in Section 3.04(a).
“Notice of Revolving Loan Borrowing” has the meaning specified in
Section 3.01(a).
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“Obligations” means principal of and interest on the Loans made by each Lender
to, and the Notes held by each Lender of, each Borrower or Swing Loan Borrower and all other
amounts from time to time owing (including without limitation with respect to any Letters of
Credit) to the Lenders or the Administrative Agent by any Borrower or any Swing Loan
Borrower under this Agreement pursuant hereto, to its Euro Borrower Designation or its Swing
Loan Borrower Designation, as applicable, and under the Notes, in each case strictly in
accordance with the terms hereof.
“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets
Control.
“Other Taxes” has the meaning specified in Section 2.12(b).
“Overdraft Advance Interest Rate” means the rate of interest applicable to
Overdraft Advances as set forth in the Overdraft Documents.
“Overdraft Advances” has the meaning specified in Section 3.03(f).
“Overdraft Documents” means the documents, agreements and instruments from
time to time governing the Overdraft Facility, as the same may be amended, supplemented or
otherwise modified from time to time.
“Overdraft Facility” has the meaning specified in Section 3.03(f).
“Parent Company” means, with respect to a Lender, the bank holding company
(as defined in Federal Reserve Board Regulation Y), if any, that is the direct or indirect parent of
such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a
majority of the Stock of such Lender.
“Participant Register” has the meaning specified in Section 9.07(f).
“Participating Member State” means each state so described in any EMU
Legislation.
“Participation Agreement” means a loan participation agreement in substantially
the form of Exhibit C-2 hereto.
“Patriot Act” has the meaning specified in Section 9.16.
“PBGC” means the Pension Benefit Guaranty Corporation or any successor.
“Permit” means any permit, approval, authorization, license, variance or
permission required from a Governmental Authority under an applicable Requirement of Law.
“Person” means an individual, partnership, corporation (including a business
trust), joint stock company, trust, unincorporated association, limited liability company, joint
venture or other entity, or a government or any political subdivision or agency thereof.
“Plan” means a Single Employer Plan or a Multiple Employer Plan.
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“Portfolio Interest Eligible Non-Bank” has the meaning specified in Section
2.12(e).
“Principal Financial Center” means, in the case of any Currency, the principal
financial center of the country of issue of such Currency, as determined by the Administrative
Agent.
“property” or “properties” means any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or intangible.
“Public Debt Rating” means, as of any date, the lowest rating that has been most
recently announced by either S&P or Moody’s, as the case may be, for any class of long-term
senior unsecured, non-credit enhanced debt issued by the U.S Borrower. For purposes of the
foregoing:
(a) if no Public Debt Rating shall be available from either S&P or Moody’s,
the Applicable Margin and the Applicable Percentage will be set in accordance with Level 6
under the definition of “Applicable Margin” or “Applicable Percentage”, as the case may be;
(b) if only one of S&P and Moody’s shall have in effect a Public Debt
Rating, the Applicable Margin and the Applicable Percentage shall be determined by reference to
the available rating;
(c) for purposes of the definition of “Applicable Margin” or “Applicable
Percentage”, in the event the Facility receives, at any time, (a) Public Debt Ratings that are one
ratings grade apart, for purposes of determining a rating level defined by an “or”, the applicable
rating to determine the rates or margins above shall be the higher of such Public Debt Ratings, or
(b) Public Debt Ratings that are equal to or greater than two ratings grades apart, the applicable
Public Debt Rating to determine the rates or margins above shall be the Public Debt Rating that is
one grade higher than the lowest Public Debt Rating of the Public Debt Ratings obtained for that
period of determination; and
(d) if any rating established by S&P or Moody’s shall be changed, such
change shall be effective as of the date on which such change is first announced publicly by the
rating agency making such change.
“Quarterly Dates” means the first Business Day of each April, July, October and
January, commencing on the first such date to occur after the Effective Date.
“Receivable” means a right to receive payment arising from the sale or lease of
goods or services by a Person to another Person.
“Receivables Transaction” means any transaction or series of transactions that
may be entered into by the U.S. Borrower or any of its Subsidiaries pursuant to which the U.S.
Borrower or any of its Subsidiaries may directly or indirectly sell, convey or otherwise transfer
Receivables to another Person, or may grant a security interest in, any Receivables of the U.S.
Borrower or any of its Subsidiaries, and any assets related thereto including, without limitation,
all collateral securing such Receivables, proceeds of such Receivables and other assets which are
customarily transferred or in respect of which security interests are customarily granted in
connection with asset securitization transactions involving Receivables.
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“Register” has the meaning specified in Section 9.07(d).
“Reimbursement Date” has the meaning specified in Section 3.04(g).
“Reimbursement Obligations” means all matured reimbursement or repayment
obligations of the Borrowers to any Issuing Bank with respect to amounts drawn under Letters of
Credit.
“Related Party” has the meaning set forth in Section 9.04(b).
“Release” means, with respect to any Person, any release, spill, emission,
leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration, in each
case, of any Contaminant into the indoor or outdoor environment or into or out of any property
owned by such Person, including the movement of Contaminants through or in the air, soil,
surface water, ground water or property.
“Remedial Action” means all actions required to (a) clean up, remove, treat or in
any other way address any Contaminant in the indoor or outdoor environment, (b) prevent the
Release or threat of Release or minimize the further Release so that a Contaminant does not
migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor
environment or (c) perform pre-remedial studies and investigations and post-remedial monitoring
and care.
“Required Lenders” means Lenders having more than 50% of the aggregate
amount of the Commitments or, if the Commitments shall have terminated, Lenders holding more
than 50% of the sum of (a) the aggregate unpaid principal amount of the Loans plus (b) the
aggregate Available Amount of all Letters of Credit (computed, in the case of Loans denominated
in an Alternate Currency and Letters of Credit denominated in Euros, as the Dollar Equivalent
thereof, as determined by the Administrative Agent); provided that, for purposes hereof, neither
any Borrower, nor any of its Affiliates, if a Lender, shall be included in (i) the Lenders holding
such amount of the Loans or Available Amount of Letters of Credit or having such amount of the
Commitments or (ii) determining the aggregate unpaid principal amount of the Loans or
Available Amount of Letters of Credit or the total Commitments. For purposes of this definition,
(i) the Available Amount of each Letter of Credit and the outstanding amount of each Swing
Loan and Letter of Credit Loan shall be considered to be owed to the Lenders ratably according
to the amounts of their respective Revolving Loan Notes and Commitments (less, in the case of
any Lender which is a Defaulting Lender as a result of a breach of its obligations under Section
3.03(c) or 3.04(b), the amount in respect of which such Lender is in default) and (ii) the unused
Commitment of any Defaulting Lender shall be disregarded in determining Required Lenders at
any time in accordance with the second paragraph of Section 9.01.
“Requirement of Law” means, with respect to any Person, the common law and
all federal, state, local and foreign laws, rules and regulations, orders, judgments, decrees and
other determinations of any Governmental Authority or arbitrator, applicable to or binding upon
such Person or any of its property or to which such Person or any of its property is subject.
“Revolving Loan” means a Dollar Revolving Loan or a Euro Revolving Loan.
“Revolving Loan Borrowing” means a borrowing consisting of simultaneous
Revolving Loans of the same Type made by each of the Lenders pursuant to Section 2.01(a).
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“Revolving Loan Note” means a promissory note of a Borrower payable to the
order of any Lender, in substantially the form of Exhibit A-1 hereto, evidencing the aggregate
indebtedness of such Borrower to such Lender resulting from the Revolving Loans made by such
Lender to such Borrower.
“Revolving Loan Outstandings” means, at any time, the then aggregate
outstanding principal amount of all Revolving Loans (which shall be, in the case of Revolving
Loans denominated in a Currency other than Dollars, the Dollar Equivalent thereof at such time).
“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P
Global Inc., or any successor by merger or consolidation to its business.
“Sanctioned Country” means a country that is the target of a sanctions program
administered or enforced by OFAC, the European Union, Her Majesty’s Treasury of the United
Kingdom or the United Nations Security Council.
“Sanctioned Person” means a Person that is the target of Sanctions, including (A)
an agency of the government of a Sanctioned Country, (B) an organization owned or controlled
by a Sanctioned Country, (C) a Person located, organized or resident in a Sanctioned Country, to
the extent the target of Sanctions, or (D) any Person listed in any Sanctions-related list of
designated Persons maintained by OFAC, the U.S. Department of State, the European Union, Her
Majesty’s Treasury of the United Kingdom or the United Nations Security Council, or any Person
owned 50 percent or more directly or indirectly by any such Person or Persons.
“Sanctions” means economic sanctions administered or enforced by OFAC, the
U.S. Department of State, the European Union, Her Majesty’s Treasury of the United Kingdom or
the United Nations Security Council.
“SEC” means the United States Securities and Exchange Commission.
“Seller” means E. I. du Pont de Nemours and Company, a Delaware corporation.
“Single Employer Plan” of any Person means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of such Person or any of
its ERISA Affiliates and no Person other than such Person and its ERISA Affiliates or (b) was so
maintained and in respect of which such Person or any of its ERISA Affiliates could have liability
under Section 4069 of ERISA in the event such plan has been or were to be terminated.
“SPC” has the meaning specified in Section 9.07(a).
“Standby Letter of Credit” means any Letter of Credit that is not a Documentary
Letter of Credit.
“Stock” means shares of capital stock (whether denominated as common stock or
preferred stock), beneficial, partnership or membership interests, participations or other
equivalents (regardless of how designated) of or in a corporation, partnership, limited liability
company or equivalent entity, whether voting or non-voting.
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“Stock Equivalent” means all securities convertible into or exchangeable for
Stock and all warrants, options or other rights to purchase or subscribe for any Stock, whether or
not presently convertible, exchangeable or exercisable.
“Subsidiary” of any Person means any corporation, partnership, limited liability
company, joint venture, trust or estate of which more than 50% of (a) the issued and outstanding
capital stock having ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such partnership, limited liability company or joint venture or
(c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or
more of such Person’s other Subsidiaries.
“Swing Loan” shall have the meaning assigned to such term in Section 2.03.
“Swing Loan Base Rate” means, for any amount in an Alternate Currency, for
any day the rate of interest per annum equal to the higher of (i) the rate of interest per annum at
which overnight deposits in the Alternate Currency, in an amount approximately equal to the
amount with respect to which such rate is being determined, would be offered for such day by the
Swing Loan Lender's local branch to major banks in the local market or other applicable offshore
interbank market, and (ii) the cost of funds to the Swing Loan Lender's local branch with respect
to such amount for such day, expressed as a rate of interest per annum.
“Swing Loan Borrower” means each of the U.S. Borrower, FMC Finance B.V.,
FMC ▇▇▇▇▇, ▇.▇. and any Foreign Subsidiary (i) designated a “Swing Loan Borrower” for
purposes of this Agreement by the U.S. Borrower in a written notice in substantially the form of
Exhibit D-2 hereto (each, a “Swing Loan Borrower Designation” and each Swing Loan Borrower
designated thereby, a “Designated Borrower”), (ii) accepted as same by the Administrative
Agent, the Swing Loan Lender and each other Lender and (iii) joining this Agreement and the
other Loan Documents pursuant to documentation satisfactory to the Administrative Agent and
the Swing Loan Lender.
“Swing Loan Borrower Designation” has the meaning specified in the definition
of “Swing Loan Borrower”.
“Swing Loan Borrowing” means a borrowing consisting of a Swing Loan made
by the Swing Loan Lender.
“Swing Loan Commitment” means (i) the Dollar Equivalent of the amount set
forth opposite each Swing Loan Lender’s name on Schedule I hereto or (ii) if such Lender has
entered into one or more Acceptances, the Dollar Equivalent of the amount set forth for such
Lender in the Register as being its Swing Loan Commitment; and the Swing Loan Commitments
shall, in the aggregate, not exceed the Swing Loan Sublimit, as such amount may be increased or
reduced as provided in Section 2.06 or as otherwise expressly provided in this Agreement.
“Swing Loan Lender” means BofA, Citibank or one or more of its Affiliates, and
any other Lender that agrees, with the approval of the Administrative Agent and the U.S.
Borrower, to act as the Swing Loan Lender hereunder, in each case, in its capacity as the Swing
Loan Lender hereunder. Swing Loans shall be made, and payments in respect of any Swing Loan
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
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shall be made, to each applicable Swing Loan Lender based on such Swing Loan Lender’s Swing
Loan Commitment.
“Swing Loan Request” shall have the meaning assigned to such term in Section
3.03(a).
“Swing Loan Sublimit” means $50,000,000.
“Syndication Agent” means BofA, as Syndication Agent.
“Taxes” has the meaning specified in Section 2.12(a).
“Termination Date” of any Lender means the date five (5) years after the
Effective Date (as the same may be extended or changed pursuant to Section 2.06(b) or 2.15) or,
if earlier, the date of termination in whole of the Commitments pursuant to the second sentence of
Section 2.06(a), pursuant to Section 2.10(b) or pursuant to Section 7.01.
“Total Commitments” means $1,500,000,000, as such amount may be increased
or reduced as provided in Section 2.06 or as otherwise expressly provided in this Agreement.
“Total Outstandings” means, at any time, the sum of (i) the Revolving Loan
Outstandings, (ii) the Dollar Equivalent of the principal amount of the Swing Loans outstanding
at such time and (iii) the Letter of Credit Obligations outstanding at such time, provided,
however, that for purposes of determining Total Outstandings at any time, the outstanding
principal amount of Swing Loans shall be deemed to be $50,000,000 unless the Administrative
Agent has received a certificate from the Swing Loan Borrowers and the Swing Loan Lender (A)
certifying the aggregate Dollar Equivalent amount of currently outstanding Swing Loans and the
maximum amount (but less than $50,000,000) that may be borrowed as Swing Loans and (B)
undertaking that (1) no future Swing Loans will be requested or made in excess of such maximum
amount without the provision to the Administrative Agent by the Swing Loan Borrowers and the
Swing Loan Lender of a bring-down certification of the aggregate amount of outstanding Swing
Loans and a different maximum amount (but less than $50,000,000) that may be borrowed as
Swing Loans, in which case the outstanding principal amount of the Swing Loans shall be
deemed to be the amount set forth in the foregoing certificate or bring-down certificate, as
applicable, and (2) the Swing Loan Lender shall not change its conversion rates with respect to
the Alternate Currencies on which the Swing Loans are denominated without providing written
notice to the Administrative Agent.
“Transactions” means the Acquisition, the execution, delivery and performance
of any debt documents (including amendments) entered into in connection therewith and the
borrowings of the loans contemplated thereunder, the use of the proceeds thereof, the payment of
taxes, fees and expenses incurred in connection with the Acquisition and the other transactions
contemplated by or related to the foregoing.
“Treaty on European Union” means the Treaty of Rome of March 25, 1957, as
amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty (which was signed at
Maastricht on February 7, 1992, and came into force on November 1, 1993), as amended from
time to time.
“Type” means a Base Rate Loan or a Eurocurrency Rate Loan.
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“UCC” has the meaning specified in Section 7.02(e)(ii).
“Unused Commitments” means, at any time, the aggregate amount of the
Commitments then unused and outstanding after deducting the Total Outstandings.
“U.S. Borrower” has the meaning specified in the recital of parties to this
Agreement.
“Voting Stock” means capital stock issued by a corporation or equivalent
interests in any other Person, the holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing similar functions) of such
Person, even though the right to so vote has been suspended by the happening of such
contingency.
“Wholly-Owned Subsidiary” of any Person means any Subsidiary of such Person
100% of the Voting Stock of which (other than directors’ qualifying shares or other shares held to
satisfy legal or regulatory requirements) are directly or indirectly owned by such Person, or by
one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or more
Wholly-Owned Subsidiaries of such Person.
“Withdrawal Liability” has the meaning specified in Part 1 of Subtitle E of
Title IV of ERISA.
“Write-Down and Conversion Powers” means, with respect to any EEA
Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority
from time to time under the Bail-In Legislation for the applicable EEA Member Country, which
write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date, the word “from”
means “from and including” and the words “to” and “until” each means “to but excluding” and
the word “through” means “to and including.”
SECTION 1.03. Accounting Terms and Principles.
(a) Except as set forth below, all accounting terms not specifically defined
herein shall be construed in conformity with GAAP and all accounting determinations required to
be made pursuant hereto (including for purpose of measuring compliance with Section 6.01 shall,
unless expressly otherwise provided herein, be made in conformity with GAAP.
(b) If any change in the accounting principles used in the preparation of the
most recent Financial Statements referred to in Section 6.02(a) is hereafter required or permitted
by the rules, regulations, pronouncements and opinions of the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or any successors thereto) and
such change is adopted by the U.S. Borrower with the agreement of the Borrowers’ Accountants
and results in a change in any of the calculations required by Article V (Representations and
Warranties or Section 6.01 had such accounting change not occurred, for purposes of the
calculation of such covenants and the definitions related thereto, such calculation shall be made
using GAAP as used by the U.S. Borrower in its December 31, 2016 financial statements.
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(c) Notwithstanding any other provision contained herein, all terms of an
accounting or financial nature used herein shall be construed and all computations of amounts and
ratios referred to in Article VI (Covenants of the Company) shall be made, without giving effect
to any election under Accounting Standards Codification 825-10 (or any other Financial
Accounting Standard having a similar result or effect) to value any Indebtedness or other
liabilities of any Borrower or any Subsidiary of any Borrower at “fair value”.
SECTION 1.04. Certain Terms.
(a) The terms “herein,” “hereof” and “hereunder” and similar terms refer to
this Agreement as a whole, and not to any particular Article, Section, subsection or clause in, this
Agreement.
(b) Unless otherwise expressly indicated herein, (i) references in this
Agreement to an Exhibit, Schedule, Article, Section, clause or sub-clause refer to the appropriate
Exhibit or Schedule to, or Article, Section, clause or sub-clause in this Agreement and (ii) the
words “above” and “below”, when following a reference to a clause or a sub-clause of any Loan
Document, refer to a clause or sub-clause within, respectively, the same Section or clause.
(c) Each agreement defined in this Article I shall include all appendices,
exhibits and schedules thereto. Unless the prior written consent of the Required Lenders is
required hereunder for an amendment, restatement, supplement or other modification to any such
agreement and such consent is not obtained, references in this Agreement to such agreement shall
be to such agreement as so amended, restated, supplemented or modified.
(d) References in this Agreement to any statute shall be to such statute as
amended or modified from time to time and to any successor legislation thereto, in each case as in
effect at the time any such reference is operative.
(e) The term “including” when used in any Loan Document means
“including without limitation” except when used in the computation of time periods.
(f) The terms “Lender,” “Issuing Bank” and “Administrative Agent”
include, without limitation, their respective successors.
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
SECTION 2.01. The Revolving Loans.
(a) Each Lender severally agrees, on the terms and conditions hereinafter set
forth, to make Revolving Loans (i) denominated in Dollars to the U.S. Borrower (each, a “Dollar
Revolving Loan”) and (ii) denominated in Dollars or Euros to the Euro Borrowers (each a “Euro
Revolving Loan”, and collectively with any Dollar Revolving Loans, the “Revolving Loans”)
from time to time on any Business Day during the period from the Effective Date until the
Termination Date of such Lender in an aggregate amount as to all Borrowers not to exceed at any
time outstanding the amount of such Lender’s Commitment.
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(b) Anything in this Agreement to the contrary notwithstanding, the Total
Outstandings shall (1) not on the date of any extension of credit under this Agreement nor on the
last day of an Interest Period for any outstanding Borrowing exceed the Total Commitments or
(2) not on the last Business Day of any week exceed 103% of the Total Commitments.
(c) Each Revolving Loan Borrowing shall be in an aggregate amount of not
less than the Dollar Equivalent of $1,000,000 and integral multiples of the Dollar Equivalent of
$500,000 in excess thereof or, in the case of Eurocurrency Rate Loans denominated in Euros, the
Dollar Equivalent thereof (or, if less, an aggregate amount equal to the then remaining Unused
Commitments of the Lenders participating in such Borrowing, as applicable).
(d) Each Revolving Loan Borrowing shall (subject to Section 2.09(d))
consist of Revolving Loans of the same Type in the same Currency made on the same day by the
Lenders ratably according to their respective Commitments.
(e) Within the limits set forth above and subject to Section 2.16, each
Borrower may from time to time borrow, repay pursuant to Section 2.07 or prepay pursuant to
Section 2.10 and reborrow under this Section 2.01.
(f) Each Lender may, at its option, make any Revolving Loan available to
any Euro Borrower by causing any foreign or domestic branch or Affiliate of such Lender to
make such Revolving Loan; provided that any exercise of such option shall not affect the
obligation of such Euro Borrower to repay such Revolving Loan in accordance with the terms of
this Agreement. Each reference to any Lender shall be deemed to include any of such Lender’s
Affiliates which make Revolving Loans; provided that no such Lender shall be relieved of its
obligations hereunder until such Lender’s Affiliates have actually performed such Lender’s
obligations. Notwithstanding the foregoing, the Euro Borrowers and the Administrative Agent
shall be permitted to deal solely and directly with, and may rely conclusively on, such Lender in
connection with such Lender’s rights and obligations under this Agreement
(g) Any Borrowing in relation to a Loan to any Dutch Borrower shall at all
times be provided by a Lender that is a Dutch Non-Public Lender.
SECTION 2.02. [Intentionally Deleted].
SECTION 2.03. The Swing Loans.
On the terms and subject to the conditions contained in this Agreement, each
Swing Loan Lender may, in its sole discretion, make loans (each, a “Swing Loan”) to a Swing
Loan Borrower from time to time on any Business Day during the period from the date hereof
until the Termination Date. Such Swing Loans shall be denominated in any Alternate Currency
(to the extent acceptable to each Swing Loan Lender) and in an aggregate principal amount as to
all Borrowers not to exceed at any time outstanding the lesser of the Dollar Equivalent of (i) the
Swing Loan Commitments and (ii) the then Unused Commitments of Lenders having
Termination Dates falling on or after the proposed maturity date of such Swing Loan. Each
Swing Loan must be paid in full upon any Revolving Loan Borrowing by a Swing Loan Borrower
hereunder and shall in any event mature no later than the Termination Date. Within the limits set
forth in the first sentence of this Section 2.03, amounts of Swing Loans repaid may be reborrowed
under this Section 2.03. Each Swing Loan Lender may, at its option, make any Swing Loan
available to any Swing Loan Borrower by causing any foreign or domestic branch or Affiliate of
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such Swing Loan Lender to make such Swing Loan; provided that any exercise of such option
shall not affect the obligation of such Swing Loan Borrower to repay such Swing Loan in
accordance with the terms of this Agreement.
SECTION 2.04. The Letters of Credit.
On the terms and subject to the conditions contained in this Agreement,
$300,000,000 of the Facility is available (the “Letter of Credit Sublimit”) for the issuance of
letters of credit, in Dollars or Euros, for the account of the U.S. Borrower or a Euro Borrower (the
“Letter of Credit Sub-Facility”), and each Issuing Bank agrees to Issue at the request of one or
more Borrowers one or more letters of credit (each a “Letter of Credit”) from time to time on any
Business Day during the period commencing on the Effective Date and ending on or before the
day that is 30 days prior to the Termination Date in an amount not to exceed at any time
outstanding the amount of such Issuing Bank’s Letter of Credit Commitment; provided, however,
that no Letter of Credit will have a termination date that is later than 30 days prior to the
Termination Date, nor will any such Letter of Credit have a term longer than one calendar year
after the date of issuance thereof other than those letters of credit separately identified on
Schedule 2.04 (Existing Letters of Credit) issued to support IRB Obligations (which letters of
credit may have a term of up to 13 months or up to 18 months as required by such IRB
Obligation), provided, further, that any Letter of Credit may provide for the renewal thereof for
additional one calendar year periods, subject to the immediately preceding proviso.
SECTION 2.05. Fees.
(a) Facility Fees. The U.S. Borrower agrees to pay to the Administrative
Agent for the account of each Lender a facility fee on the average daily amount (whether used or
unused) of such Lender’s Commitment from the Effective Date (in the case of each Lender), and
from the effective date specified in the Acceptance pursuant to which it became a Lender (in the
case of each other Lender), until the Termination Date of such Lender, payable in Dollars in
arrears on each Quarterly Date during the term of such Lender’s Commitment, and on the
Termination Date of such Lender, at a rate per annum equal to the Applicable Percentage in effect
from time to time for facility fees.
(b) Letter of Credit Compensation.
(i) The U.S. Borrower agrees to pay to the Administrative Agent for
the account of each Lender a commission on such Lender’s pro rata share of the average
daily aggregate Available Amount of (A) all Standby Letters of Credit outstanding from
time to time and (B) all Documentary Letters of Credit outstanding from time to time, in
each case at the Applicable Margin in effect from time to time for Eurocurrency Rate
Loans, payable in Dollars (the amount of which commission shall be determined, in the
case of the Available Amount of Letters of Credit denominated in Euros on the basis of
the Dollar Equivalent of such amount on the date payable) in arrears quarterly on each
Quarterly Date and on the Termination Date of such Lender, commencing on the first
Quarterly Date after the date hereof.
(ii) The U.S. Borrower agrees to pay to each Issuing Bank, for its
own account, (x) a fronting fee with respect to each Letter of Credit issued by such
Issuing Bank, payable quarterly in arrears on each Quarterly Date during which such
Issuing Bank has acted in such capacity, and on the scheduled Termination Date of such
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Issuing Bank (if such Issuing Bank acted in such capacity up to such date), in an amount
equal to the product of fifteen (15) basis points per annum of the average daily Available
Amount of such Letter of Credit multiplied by the actual number of days such Letter of
Credit was outstanding in such period, divided by 360, as applicable, which amount shall
be payable in Dollars and calculated based on the Dollar Equivalent of any amount
otherwise calculated in Euros on the date when such amount is payable, and (y) such
customary fees and charges in connection with the issuance or administration of each
Letter of Credit as may be agreed in writing between the U.S. Borrower and such Issuing
Bank from time to time.
(c) Defaulting Lender Fees. Notwithstanding anything in this Agreement to
the contrary, if any Lender is a Defaulting Lender, such Defaulting Lender will not be entitled to
any fees accruing pursuant to clauses (a) and (b) above, in each case with respect to the entire
accrual period with respect to such fees (without prejudice to the rights of the Non-Defaulting
Lenders in respect of such fees); provided, that (i) to the extent that a ratable portion of the Letter
of Credit Obligations or Swing Loans of such Defaulting Lender has been reallocated in
accordance with Section 2.16(a)(i) to the Non-Defaulting Lenders, the fees that would have
accrued for the benefit of such Defaulting Lender will instead accrue for the benefit of and be
payable to such Non-Defaulting Lenders, pro rata in accordance with their respective
Commitments, and (ii) to the extent any portion of such Letter of Credit Obligations or Swing
Loans cannot be so reallocated to such Non-Defaulting Lenders, such fees will instead accrue for
the benefit of and be payable to the Issuing Bank and the Swing Loan Lender as their interests
appear (and the pro rata payment provisions of Section 2.11 will automatically be deemed
adjusted to reflect the provisions of this Section 2.05(c)).
(d) Other Fees. The U.S. Borrower agrees to pay to the Administrative
Agent such fees as from time to time may be separately agreed between the U.S. Borrower and
the Administrative Agent, including as set forth in the Fee Letter.
SECTION 2.06. Reductions and Increases of the Commitments.
(a) Commitment Reductions, Etc.
(i) The Commitment of each Lender shall be automatically reduced
to zero on the Termination Date of such Lender. In addition, the U.S. Borrower shall
have the right, upon at least three Business Days’ notice to the Administrative Agent, to
terminate in whole or reduce ratably in part the unused portions of the respective
Commitments of the Lenders, provided that (x) the Total Commitments shall not be
reduced pursuant to this sentence to an amount which is less than the Total Outstandings,
(y) each partial reduction shall be in an aggregate amount of at least $10,000,000 or any
integral multiple of $1,000,000 in excess thereof and (z) a reduction in the Commitments
shall not be allowed if, as a result thereof, the Commitments would be reduced to an
amount which is less than the sum of the Swing Loan Commitments plus the Letter of
Credit Sub-Facility. Each Commitment reduction pursuant to this Section 2.06(a)(i) shall
be permanent (subject, however, to the rights of the U.S. Borrower under
Section 2.06(b)).
(ii) The Swing Loan Commitment of the Swing Loan Lender shall
be automatically reduced to zero on the Termination Date of the Swing Loan Lender. In
addition, a Swing Loan Borrower shall have the right, upon at least three Business Days’
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notice to the Administrative Agent, to terminate in whole or reduce in part the unused
portion of the Swing Loan Commitment of the Swing Loan Lender, provided that each
partial reduction shall be in an aggregate amount of at least the Dollar Equivalent
$10,000,000. Each Swing Loan Commitment reduction pursuant to this
Section 2.06(a)(ii) shall be permanent (subject, however, to the rights of the U.S.
Borrower under Section 2.06(b)).
(b) Optional Increases of Commitments.
(i) Not more than twice in any calendar year, the U.S. Borrower
may propose to increase the Total Commitments by an aggregate amount of not less than
$25,000,000 or an integral multiple of $10,000,000 in excess thereof (a “Proposed
Aggregate Commitment Increase”) in the manner set forth below, provided that:
(A) no Default or Event of Default shall have occurred and
be continuing either as of the date on which the U.S. Borrower shall notify the
Administrative Agent of its request to increase the Total Commitments or as of the
related Increase Date (as hereinafter defined);
(B) the representations and warranties contained in Article V
(Representations and Warranties) shall be correct in all material respects (except any
representations and warranties that are qualified by materiality, which shall be true
and correct in all respects) either as of the date on which the U.S. Borrower shall
notify the Administrative Agent of its request to increase the Total Commitments or
as of the related Increase Date, as though made on and as of such date, other than
any such representations or warranties that, by their terms, refer to a different date,
which shall be true and correct as of such earlier date; and
(C) after giving effect to any such increase, the Total
Commitments shall not exceed $2,250,000,000 less the amount of any reductions of
the Total Commitments under Section 2.06(a)(i).
(ii) The U.S. Borrower may request an increase in the aggregate
amount of the Commitments by delivering to the Administrative Agent a notice (an
“Increase Notice”, the date of delivery thereof to the Administrative Agent being the
“Increase Notice Date”) specifying (1) the Proposed Aggregate Commitment Increase,
(2) the proposed date (the “Increase Date”) on which the Commitments would be so
increased (which Increase Date may not be fewer than 30 nor more than 60 days after the
Increase Notice Date) and (3) the New Lenders, if any, to whom the U.S. Borrower
desires to offer the opportunity to commit to all or a portion of the Proposed Aggregate
Commitment Increase and which New Lenders, if any, the U.S. Borrower desires the
opportunity to commit to all or a portion of the Proposed Aggregate Commitment
Increase that would increase the Swing Loan Commitments. The Administrative Agent
shall in turn promptly notify each Lender of the U.S. Borrower’s request by sending each
Lender a copy of such notice.
(iii) Not later than the date that is five days after the Increase Notice
Date, the Administrative Agent shall notify each New Lender, if any, identified in the
related Increase Notice of the opportunity to commit to all or any portion of the Proposed
Aggregate Commitment Increase. Each such New Lender may irrevocably commit to all
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or a portion of the Proposed Aggregate Commitment Increase, representing Revolving
Commitments, and Swing Loan Commitments, as applicable (such New Lender’s
“Proposed New Commitment”) by notifying the Administrative Agent (which shall give
prompt notice thereof to the U.S. Borrower) before 11:00 A.M. (New York City time) on
the date that is 10 days after the Increase Notice Date; provided that:
(A) the Proposed New Commitment of each New Lender
shall be in an aggregate amount not less than $10,000,000; and
(B) each New Lender that submits a Proposed New
Commitment shall execute and deliver to the Administrative Agent (for its
acceptance and recording in the Register) a New Commitment Acceptance in
accordance with the provisions of Section 9.07 hereof.
(iv) If the aggregate Proposed New Commitments of all of the New
Lenders shall be less than the Proposed Aggregate Commitment Increase, then (unless
the U.S. Borrower otherwise requests) the Administrative Agent shall, on or prior to the
date that is 15 days after the Increase Notice Date, notify each Lender of (x) the
opportunity to so commit to all or any portion of the Proposed Aggregate Commitment
Increase not committed to by New Lenders pursuant to Section 2.06(b)(iii) and (y) the
then-current Final Termination Date. Each Lender may, if, in its sole discretion, it elects
to do so, irrevocably offer to commit to all or a portion of such remainder, representing
Revolving Commitments and Swing Loan Commitments, as applicable (such Lender’s
“Proposed Increased Commitment”), by notifying the Administrative Agent (which shall
give prompt notice thereof to the U.S. Borrower) no later than 11:00 A.M. (New York
City time) on the date five days before the Increase Date. In no event shall any Lender be
obligated to increase its Commitments hereunder.
(v) If the aggregate amount of Proposed New Commitments and
Proposed Increased Commitments (such aggregate amount, the “Total Committed
Increase”) equals or exceeds $25,000,000, then, subject to the conditions set forth in
Section 2.06(b)(i):
(A) effective on and as of the Increase Date, the Total
Commitments shall be increased by the Total Committed Increase (provided that the
aggregate amount of the Commitments shall in no event be increased pursuant to
this Section 2.06(b) to more than $2,250,000,000 less the amount of any reductions
of the Total Commitments under Section 2.06(a)(i)) and shall be allocated among
the New Lenders and the Lenders as provided in Section 2.06(b)(vi);
(B) effective on and as of the Increase Date, the Termination
Date of each New Lender that offers a Proposed New Commitment and of each
Increasing Lender shall be changed to the Final Termination Date (notwithstanding
any earlier Termination Date for such Lender which may then be in effect pursuant
to Section 2.15); and
(C) on the Increase Date, if any Revolving Loans are then
outstanding, the Borrowers shall borrow Revolving Loans from all or certain of the
Lenders and/or (subject to compliance by the U.S. Borrower with Section 9.04(c))
prepay Revolving Loans of all or certain of the Lenders (other than any Defaulting
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Lender) such that, after giving effect thereto, the Revolving Loans (including,
without limitation, the Types, Currencies and Interest Periods thereof) shall be held
by the Lenders (including for such purposes New Lenders) ratably in accordance
with their respective Commitments (subject, however, to Section 2.09(d)).
If the Total Committed Increase is less than $25,000,000, then the Total Commitments
shall not be changed.
(vi) The Total Committed Increase shall be allocated among New
Lenders having Proposed New Commitments and Lenders having Proposed Increased
Commitments as follows:
(A) If the Total Committed Increase shall be at least
$25,000,000 and less than or equal to the Proposed Aggregate Commitment
Increase, then (x) the initial Commitment of each New Lender shall be such New
Lender’s Proposed New Commitment and (y) the Commitment of each Lender shall
be increased by such Lender’s Proposed Increased Commitment.
(B) If the Total Committed Increase shall be greater than the
Proposed Aggregate Commitment Increase, then the Total Committed Increase shall
be allocated:
(1) first to New Lenders (to the extent of their
respective Proposed New Commitments) in such a manner as the U.S.
Borrower and the Administrative Agent shall agree; and
(2) then to Lenders (to the extent of their respective
Proposed Increased Commitments, if any) in such a manner as the U.S.
Borrower shall determine in its sole discretion upon consultation with the
Administrative Agent and the Syndication Agent.
(vii) No increase in the Commitments contemplated hereby shall
become effective until the Administrative Agent shall have received (x) Revolving Loan
Notes payable by each of the Borrowers to each New Lender and each Increasing Lender
and (y) evidence satisfactory to the Administrative Agent (including an update of
paragraphs 2 and 4 of the opinion of counsel provided pursuant to Section 4.01(a)(v) that
such increases in the Commitments, and Borrowings thereunder, have been duly
authorized.
SECTION 2.07. Repayment.
(a) Revolving Loans. Subject to Section 2.16(a), each Borrower shall repay
to the Administrative Agent for the account of each Lender the principal amount of each
Revolving Loan made by such Lender to such Borrower, and each Revolving Loan made by such
Lender shall mature on the Termination Date of such Lender.
(b) [Intentionally Deleted].
(c) Swing Loans. Each Swing Loan Borrower shall repay to the
Administrative Agent for the account of the Swing Loan Lender, the Dollar Equivalent of the
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outstanding principal amount of each Swing Loan to such Swing Loan Borrower on the earlier of
(i) the maturity date specified in the applicable Swing Loan Request (which maturity shall be no
later than the tenth Business Day after the requested date of such Borrowing) and (ii) the
Termination Date of the Swing Loan Lender.
(d) Letter of Credit Loans. The Letters of Credit shall be repaid as set forth
in Section 3.04.
(e) Certain Prepayments.
(i) If, as of the last Business Day of any week during the period
from the Effective Date until the Final Termination Date, (1) the sum of (x) the aggregate
amount of all Loans (for which purpose the amount of any Loan that is denominated in an
Alternate Currency shall be deemed to be the Dollar Equivalent thereof) plus (y) the
Available Amount of all Letters of Credit (for which purpose the Available Amount of
any Letter of Credit denominated in an Alternate Currency shall be deemed to be the
Dollar Equivalent thereof as of the date of determination) exceeds (2) 103% of the then
Total Commitments, the Administrative Agent shall use all reasonable efforts to give
prompt written notice thereof to the U.S. Borrower, specifying the amount to be prepaid
under this clause (i), and the Borrowers shall, within two Business Days of the date of
such notice, prepay the Loans in an amount so that after giving effect thereto the
aggregate outstanding principal amount of the Loans (determined as aforesaid) plus the
Available Amount of all Letters of Credit (determined as aforesaid) does not exceed the
Total Commitments; provided that any such payment shall be accompanied by any
amounts payable under Section 9.04(c).
(ii) If, as of the last Business Day of any week during the period
from the Effective Date until the Final Termination Date, (1) the Dollar Equivalent of the
aggregate outstanding principal balance of Swing Loans exceeds (2) 103% of the Swing
Loan Commitment, the Administrative Agent shall use all reasonable efforts to give
prompt written notice thereof to the Swing Loan Borrowers, specifying the amount to be
prepaid under this clause (ii), and the Swing Loan Borrowers shall, within two Business
Days of the date of such notice, prepay the Swing Loans in an amount so that after giving
effect thereto the aggregate outstanding principal balance of Swing Loans (determined as
aforesaid) does not exceed the Swing Loan Commitments.
(iii) In addition, if on the last day of any Interest Period the aggregate
outstanding principal amount of the Loans (after giving effect to any Loans being made
to repay Loans maturing on that date) plus the Available Amount of all Letters of Credit
would exceed 100% of the aggregate amount of the Commitments, the Administrative
Agent shall use all reasonable efforts to give prompt written notice thereof to the U.S.
Borrower, specifying the amount to be prepaid under this clause (iii), and the Borrowers
shall, within two Business Days of the date of such notice, prepay the Loans, or cause
Loans to be prepaid, or reduce the requested Loans in such amounts that after giving
effect to such action the aggregate outstanding principal amount of the Loans (after
giving effect to any Loans being made to repay Loans maturing on that date) plus the
Available Amount of all Letters of Credit does not exceed the aggregate amount of the
Commitments; provided that any such payment shall be accompanied by any amounts
payable under Section 9.04(c).
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(iv) The determinations of the Administrative Agent under this
Section 2.07(e) shall be conclusive and binding on the U.S. Borrower and the other
Borrowers in the absence of manifest error.
(f) If any Lender is a Defaulting Lender, such Defaulting Lender shall be
deemed to have assigned any and all payments in respect of the Obligations due to it from or for
the benefit of any Borrower pursuant to this Section 2.07 to the Non-Defaulting Lenders for
application to, and reduction of, their ratable portion of all Obligations until such Non-Defaulting
Lenders have been repaid in full. Such Defaulting Lender hereby authorizes the Administrative
Agent to distribute such payments in accordance with Section 2.16(a)(iii). This Section 2.07 shall
(i) apply and be effective regardless of whether an Event of Default has occurred and is
continuing and notwithstanding (1) any other provision of this Agreement to the contrary or (2)
any instruction of the U.S. Borrower as to its desired application of payments and (ii) not be
deemed to relieve or otherwise release any Borrower from any of its Obligations due or owing to
any Lender, including a Defaulting Lender.
SECTION 2.08. Interest.
(a) Ordinary Interest. Each Borrower shall pay interest on the unpaid
principal amount of each Loan made by each Lender to such Borrower, from the date of such
Loan until such principal amount shall be paid in full, at the following rates per annum and in
each case subject to Section 2.16(a)(iii):
(i) Base Rate Loans and Letter of Credit Loans. If such Loan is
either a Revolving Loan or a Letter of Credit Loan which, in each case, bears interest at
the Base Rate, a rate per annum equal at all times to the Base Rate in effect from time to
time plus the Applicable Margin, payable on (A) each Quarterly Date while such Base
Rate Loan is outstanding or (B) the last day of each month during which such Letter of
Credit Loan is outstanding, and in each case, on the date such Base Rate Loan or Letter
of Credit Loan shall be paid in full.
(ii) Swing Loans. If such Loan is a Swing Loan (other than an
Overdraft Advance, for which the rate shall be equal to the Overdraft Advance Interest
Rate), a rate per annum equal at all times to the Swing Loan Base Rate plus the
Applicable Margin (applicable to Eurocurrency Rate Loans) in effect from time to time,
payable (A) on the first Business Day of each calendar quarter, commencing on the first
such day following the making of such Swing Loan, (B) upon each payment or
prepayment thereof in full or in part and (C) if not previously paid in full, at maturity
(whether by acceleration or otherwise) of such Swing Loan.
(iii) Eurocurrency Rate Loans. If such Loan is a Eurocurrency Rate
Loan, a rate per annum equal at all times during each Interest Period for such Loan to the
sum of the Eurocurrency Rate for such Interest Period plus the Applicable Margin,
payable on the last day of such Interest Period and, if such Interest Period has a duration
of more than three months, at three-month intervals following the first day of such
Interest Period.
(b) Default Interest. Upon the occurrence and during the continuance of an
Event of Default that has not been waived, the Administrative Agent may, and upon the request
of the Required Lenders shall, require the Borrowers to pay to the fullest extent permitted by law
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interest (“Default Interest”) on all outstanding Obligations at the rate then applicable to Base Rate
Loans plus two percentage points (2%) per annum; provided, however, that following the
acceleration of the Loans and other Obligations pursuant to Section 7.01, Default Interest shall
accrue and be payable hereunder whether or not previously required by the Administrative Agent.
SECTION 2.09. Interest Rate Determinations.
(a) [Intentionally Deleted].
(b) The Administrative Agent shall give prompt notice to the U.S. Borrower
and the Lenders of the applicable interest rate determined by the Administrative Agent for
purposes of Section 2.08(a)(i), (ii) and (iii).
(c) If prior to 10:00 A.M. (New York City time) on any date on which an
interest rate is to be determined pursuant to the definition of “Eurocurrency Rate”, (i) the
Administrative Agent shall have determined (which determination shall be conclusive and
binding on the U.S. Borrower) that adequate and reasonable means do not exist for determining
the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency
Rate Loan, or (ii) the Administrative Agent shall have received notice from the Required Lenders
in respect of the relevant facility that the Eurocurrency Rate for any requested Interest Period
with respect to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost
to such Lenders of funding such Eurocurrency Rate Loan for such Interest Period, then the
Administrative Agent shall promptly notify the U.S. Borrower and each Lender of such
circumstances, whereupon the right of the Borrowers to select Eurocurrency Rate Loans for any
requested Revolving Loan Borrowing or any subsequent Revolving Loan Borrowing shall be
suspended until the first date on which the circumstances causing such suspension cease to exist.
If the Borrowers shall not, in turn, before 11:00 A.M. (New York City time) on such date notify
the Administrative Agent that a Notice of Revolving Loan Borrowing with respect to such
Eurocurrency Rate shall be converted to a Notice of Revolving Loan Borrowing for a
Eurocurrency Rate Loan in a different Currency or a Base Rate Loan, such Notice of Revolving
Loan Borrowing shall be deemed to be canceled and of no force or effect, and the U.S. Borrower
shall not be liable to the Administrative Agent or any Lender with respect thereto except as set
forth in Section 3.01(c). In the event of such a suspension, the Administrative Agent shall review
the circumstances giving rise to such suspension at least weekly and shall notify the U.S.
Borrower and the Lenders promptly of the end of such suspension, and thereafter the Borrowers
shall be entitled, on the terms and subject to the conditions set forth herein, to borrow
Eurocurrency Rate Loans and Swing Loans in such Currency.
(d) Notwithstanding anything in this Agreement to the contrary, no Lender
whose Termination Date falls prior to the last day of any Interest Period for any Eurocurrency
Rate Loan (a “Relevant Lender”) shall participate in such Loan. Without limiting the generality
of the foregoing, no Relevant Lender shall (i) participate in a Borrowing of any Eurocurrency
Rate Loan having an initial Interest Period ending after such Lender’s Termination Date, (ii) have
any outstanding Eurocurrency Rate Loan continued for a subsequent Interest Period if such
subsequent Interest Period would end after such Lender’s Termination Date or (iii) have any
outstanding Base Rate Loan Converted into a Eurocurrency Rate Loan if such Eurocurrency Rate
Loan would have an initial Interest Period ending after such Lender’s Termination Date. If any
Relevant Lender has outstanding a Eurocurrency Rate Loan that cannot be continued for a
subsequent Interest Period pursuant to clause (ii) above or has outstanding a Base Rate Loan that
cannot be Converted into a Eurocurrency Rate Loan pursuant to clause (iii) above, such Lender’s
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ratable share of such Eurocurrency Rate Loan (in the case of said clause (ii)) shall be repaid by
the relevant Borrower on the last day of its then current Interest Period and such Lender’s ratable
share of such Base Rate Loan (in the case of said clause (iii)) shall be repaid by the relevant
Borrower on the day on which the Loans of Lenders unaffected by said clause (iii) are so
Converted. Subject to the terms and conditions of this Agreement, the Borrowers may fund the
repayment of the Relevant Lenders’ ratable shares of such Eurocurrency Rate Loans and Base
Rate Loans by borrowing from Lenders hereunder that are not Relevant Lenders.
SECTION 2.10. Prepayments.
(a) The Borrowers shall have no right to prepay any principal amount of any
Revolving Loan or Swing Loan other than as provided in subsection (b) below.
(b) Each Borrower may without premium or penalty, (i) upon at least the
number of Business Days’ prior notice specified in the first sentence of Section 3.01(a) with
respect to any Revolving Loan of the same Type, (ii) upon notice by no later than 11:00 AM
(London time) one Business Day prior to the date of prepayment of any Swing Loan in any case
given to the Administrative Agent stating the proposed date and aggregate principal amount of
the prepayment, and if such notice is given, such Borrower shall, prepay the outstanding principal
amounts of the Loans made to such Borrower comprising part of the same Revolving Loan
Borrowing or Swing Loan Borrowing, as the case may be, in whole or ratably in part, together
with accrued interest to the date of such prepayment on the principal amount prepaid; provided,
however, that (x) each partial prepayment (other than any prepayment of any Swing Loan) shall
be in an aggregate principal amount not less than $1,000,000 or an integral multiple of $500,000
in excess thereof (or the Foreign Currency Equivalent of such respective amounts in the case of
Loans denominated in an Alternate Currency) and (y) if any prepayment of any Eurocurrency
Rate Loans shall be made on a date which is not the last day of an Interest Period for such Loans
(or on a date which is not the maturity date of such Swing Loans), such Borrower shall also pay
any amounts owing to each Lender pursuant to Section 9.04(c) so long as such Lender makes
written demand upon such Borrower therefor (with a copy of such demand to the Administrative
Agent) within 20 Business Days after such prepayment.
SECTION 2.11. Payments and Computations.
(a) All payments of principal of and interest on each Loan in a particular
Currency shall be made in such Currency.
(b) (i) All payments of principal of and interest on the Loans and all
other amounts whatsoever payable by a Borrower under this Agreement and the Notes shall be
made in immediately available funds, without deduction, setoff or counterclaim, to the
Administrative Agent’s Account for the relevant Currency, not later than 11:00 A.M. (New York
City time) (in the case of amounts payable in Dollars) or 11:00 A.M. Local Time in the location
of the Administrative Agent’s Account (in the case of amounts payable in an Alternate Currency),
on the day when due.
(ii) The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or fees ratably (other
than amounts payable pursuant to Section 2.09(d), 2.12, 2.15(c) or 3.05 or as
contemplated by Section 2.05(c) or 2.16) to the Lenders entitled thereto for the account of
their respective Applicable Lending Offices, and like funds relating to the payment of any
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other amount payable to any Lender to such Lender for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement.
(iii) Upon its acceptance of an Acceptance and recording of the
information contained therein in the Register pursuant to Section 9.07(d), from and after
the effective date specified in such Acceptance the Administrative Agent shall make all
payments hereunder and under the Notes in respect of the interest assigned or assumed
thereby to the Lender assignee or New Lender thereunder (as the case may be). The
parties to each Assignment and Acceptance shall make all appropriate adjustments in
such payments for periods prior to such effective date directly between themselves.
(c) All computations of interest based on the Base Rate (other than if the
Base Rate is computed on the basis of the Federal Funds Rate) and of facility fees and letter of
credit commission shall be made by the Administrative Agent on the basis of a year of 365 or
366 days, as the case may be, and all computations of interest based on the Eurocurrency Rate,
the Swing Loan Rate or the Base Rate based on the Federal Funds Rate shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the period for which such
interest or fees are payable. Each determination by the Administrative Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated to
be due on a day other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the computation of
payment of interest, facility fee or, letter of credit commission, as the case may be; provided,
however, if such extension would cause payment of interest on or principal of Eurocurrency Rate
Loans to be made in the next following calendar month, such payment shall be made on the next
preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from a
Borrower prior to the date on which any payment is due to the Lenders hereunder that such
Borrower will not make such payment in full, the Administrative Agent may assume that such
Borrower has made such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be distributed to each
relevant Lender on such due date an amount equal to the amount then due such Lender. If and to
the extent that such Borrower shall not have so made such payment in full to the Administrative
Agent, each such Lender shall repay to the Administrative Agent forthwith on demand such
amount distributed to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
(f) Anything in Section 2.07 or 2.08 to the contrary notwithstanding, and
without prejudice to Section 2.08(b) or 7.01(a), if any Borrower shall fail to pay any principal or
interest denominated in an Alternate Currency within one Business Day after the due date
therefor in the case of principal and three Business Days after the due date therefor in the case of
interest (without giving effect to any acceleration of maturity under Article VII (Events of
Default)), the amount so in default shall automatically be redenominated in Dollars on the day
one Business Day after the due date therefor in the case of a principal payment and three Business
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Days after the due date therefor in the case of an interest payment in an amount equal to the
Dollar Equivalent of such principal or interest.
(g) If any Lender is a Defaulting Lender, such Defaulting Lender shall be
deemed to have assigned any and all payments in respect of the Obligations subject to this
Section 2.11 due to it from and for the benefit of the Borrowers to the Non-Defaulting Lenders
for application to, and reduction of, the Non-Defaulting Lenders’ ratable portion of all
Obligations until such Non-Defaulting Lenders have been repaid in full. Each Defaulting Lender
hereby authorizes the Administrative Agent to distribute such payments in accordance with
Section 2.16(a)(iii). This Section 2.11(g) shall (i) apply at any time such Lender is a Defaulting
Lender and be effective regardless of whether an Event of Default has occurred or is continuing
and notwithstanding (1) any other provision of this Agreement to the contrary or (2) any
instruction of the U.S. Borrower as to its desired application of payments and (ii) not be deemed
to relieve or otherwise release any Borrower from any of its Obligations due or owing to any
Lender, including a Defaulting Lender.
SECTION 2.12. Taxes.
(a) Any and all payments by each Borrower under the Loan Documents shall
be made free and clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in
the case of each Lender and the Administrative Agent, taxes imposed on or measured by its net
income (including alternative minimum taxable income), franchise taxes imposed on it, by any
jurisdiction under the laws of which such Person is organized or in which such Person is resident
or doing business, or any political subdivision thereof and any U.S. federal withholding taxes
imposed under FATCA (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as “Taxes”). For purposes of determining
withholding taxes imposed under FATCA, from and after the effective date of the Agreement, the
U.S. Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the
Administrative Agent to treat) the Agreement as not qualifying as a “grandfathered obligation”
within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i). If any Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable under the Loan
Documents to any such Person, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to additional sums payable
under this Section 2.12) such Person receives an amount equal to the sum it would have received
had no such deductions been made, (ii) such Borrower shall make such deductions and (iii) such
Borrower shall pay the full amount deducted to the relevant Governmental Authority or other
authority in accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar levies which arise
from any payment made hereunder or under the Notes or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement, the Notes or the other Loan
Documents (hereinafter referred to as “Other Taxes”).
(c) Each Borrower will indemnify each Lender and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section 2.12) paid by
such Lender or the Administrative Agent (as the case may be) with respect to Loans to such
Borrower and any liability (including, without limitation, penalties, additions to tax, interest and
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expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted; provided, however, that (i) no Borrower shall be liable to any
Person, as the case may be, for any liability arising from or with respect to Taxes or Other Taxes,
which results from the gross negligence or willful misconduct of such Lender or the
Administrative Agent, as the case may be, (ii) so long as no Event of Default has occurred and is
continuing, such Lender or the Administrative Agent, as applicable, shall use its reasonable best
efforts (all at the expense of such Borrower) to cooperate with each Borrower in contesting any
Taxes or Other Taxes which such Borrower reasonably deems to be not correctly or legally
asserted or otherwise not due and owing and (iii) no Borrower shall be liable to such Lender or
the Administrative Agent, as the case may be, for any such liability if such Person fails to make
written demand for indemnification therefor within 120 days of receiving notice of the existence
of such liability. This indemnification shall be made within 30 days from the date such Lender or
the Administrative Agent (as the case may be) makes written demand therefor. This subsection
shall not be construed to require the Administrative Agent or any Lender to make available its tax
returns (or any other information relating to its taxes that it deems confidential) to any Borrower
or any Person.
(d) Within 30 days after the date of any payment of Taxes by a Borrower,
such Borrower will furnish to the Administrative Agent, at its address referred to in Section 9.02,
the original or a certified copy of a receipt evidencing payment thereof.
(e) (i) 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 and on the date of the Acceptance pursuant to which it becomes a Lender in
the case of each other Lender, on or before the date that such form expires or becomes obsolete or
after the occurrence of any event within the control of such Lender (including a change in
Applicable Lending Office but not including a change in law) requiring a change in the most
recent form so delivered by it, and from time to time thereafter if reasonably requested in writing
by the U.S. Borrower or the Administrative Agent, shall provide (but only to the extent such
Lender is lawfully able to provide) the U.S. Borrower and the Administrative Agent with
either Internal Revenue Service form W-8BEN, W-8BEN-E or W-8ECI, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying in the case of form W-
8BEN or W-8BEN-E that such Lender is either (i) entitled to benefits under an income tax treaty
to which the United States is a party that reduces the rate of withholding tax on payments under
this Agreement or (ii) a Portfolio Interest Eligible Non-Bank (as defined below) or certifying in
the case of form W-8ECI that the income receivable pursuant to this Agreement is effectively
connected with the conduct of a trade or business in the United States. If the form provided by a
Lender at the time such Lender first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero (or if such Lender cannot provide at such time such
form because it is not entitled to reduced withholding under a treaty and the payments are not
effectively connected income), withholding tax at such rate (or at the then existing U.S. statutory
rate if the Lender cannot provide such a form) shall be considered excluded from “Taxes” as
defined in Section 2.12(a) unless and until such Lender provides the appropriate form certifying
that a zero rate applies, whereupon withholding tax at such zero rate only shall be considered
excluded from Taxes for periods governed by such form; provided, however, that, if at the date of
the Assignment and Acceptance pursuant to which a Lender assignee becomes a party to this
Agreement, the Lender assignor was in compliance with the provisions of Section 9.07(h) and
was entitled to payments under Section 2.12(a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term “Taxes” shall include (in
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addition to withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States interest withholding tax, if any, applicable with respect to the
Lender assignee on such date. If any form or document referred to in this Section 2.12(e)
requires the disclosure of information, other than information necessary to compute the tax
payable and information required on the date hereof by Internal Revenue Service form W-8BEN,
W-8BEN-E or W-8ECI, that the relevant Lender reasonably considers to be confidential, such
Lender shall give notice thereof to the U.S. Borrower and the Administrative Agent and shall not
be obligated to include in such form or document such confidential information. For purposes of
this paragraph (e) the term “Portfolio Interest Eligible Non-Bank” means a Lender that certifies in
form and substance reasonably satisfactory to the U.S. Borrower and the Administrative Agent
that (i) it is not a bank within the meaning of Code section 881(c)(3)(A), (ii) it is not a 10%
shareholder of any Borrower within the meaning of Code section 881(c)(3)(B) and (iii) it is not a
controlled foreign corporation related to any Borrower within the meaning of Code
section 881(c)(3)(C).
(ii) To the extent a Lender is not the beneficial owner, such Lender
shall provide executed originals of Internal Revenue Service form W-8IMY,
accompanied by Internal Revenue Service form W-8ECI, W-8EXP, W-8BEN or W-
8BEN-E, as appropriate, a certificate in form and substance reasonably satisfactory to the
U.S. Borrower and the Administrative Agent that the beneficial owner meets the
requirements to be treated as a Portfolio Interest Eligible Non-Bank (if such beneficial
owner were a Lender), and/or other certification documents from each beneficial owner,
as applicable; provided that if the Lender is a partnership and one or more direct or
indirect partners of such Lender are claiming the portfolio interest exemption, such
Lender may provide a certificate from each partner in form and substance reasonably
satisfactory to the U.S. Borrower that such partner meets the requirements to be treated as
a Portfolio Interest Eligible Non-Bank (if such partner were a Lender).
(iii) If any payment made to a Lender under any Loan Document
would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements of FATCA (including
those contained in Code section 1471(b) or 1472(b), as applicable), such Lender shall
deliver to the U.S. Borrower and the Administrative Agent at the time or times prescribed
by law and at such time or times reasonably requested by the U.S. Borrower or the
Administrative Agent such documentation prescribed by applicable law (including as
prescribed by Code section 1471(b)(3)(C)(i)) and such additional documentation
reasonably requested by the U.S. Borrower or the Administrative Agent as may be
necessary for the U.S. Borrower and the Administrative Agent to comply with their
obligations under FATCA and to determine whether such Lender has complied with such
Lender’s obligations under FATCA or to determine the amount, if any, to deduct and
withhold from such payment. Solely for purposes of this clause (iii), “FATCA” shall
include any amendments made to FATCA after the date of this Agreement.
(iv) In addition, upon the reasonable request of the U.S. Borrower
(through the Administrative Agent) on behalf of any Borrower that is not a U.S.
Borrower, each Lender will use all reasonable efforts to provide to such Borrower (if it
can do so without material cost to such Lender) such forms, certifications of tax
residency or other documentation as may be requested by such Borrower in order to
cause interest on Loans to such Borrower, to the fullest extent permitted by applicable
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law, to be subject to a reduced rate of withholding under the laws of the jurisdiction of
organization of such Borrower or under any income tax treaty to which the jurisdiction of
the Borrower is a party; and if any such form, certification of tax residency or document
requires the disclosure of information, other than information necessary to compute the
tax payable and information required on the date hereof, that the relevant Lender
considers to be confidential, such Lender shall give notice thereof to the U.S. Borrower
and shall not be obligated to include in such form or document such confidential
information.
Such forms, certifications of tax residency or other documentation delivered
pursuant to this Section 2.12(e) as requested by any Borrower shall be periodically renewed if it
is required under the law of the jurisdiction of organization of such Borrower.
(f) For any period with respect to which a Person that is required pursuant to
Section 2.12(e) to provide a Borrower with any documentation described therein but has failed to
provide a Borrower with such documentation or notice that it cannot provide such form,
certification of tax residency or other documentation (other than if such failure is due to a change
in law occurring subsequent to the date on which a form or other documentation originally was
required to be provided, or if such form or other documentation otherwise is not required under
the first sentence of subsection (e) above), such Person shall not be entitled to indemnification
under Section 2.12(a) with respect to Taxes to the extent such forms, certifications of tax
residency or other documents would prevent the imposition thereof; provided, however, that
should a Lender become subject to Taxes because of its failure to deliver a form, certification of
tax residency or other documentation required hereunder, the relevant Borrower shall take such
steps as the Lender shall reasonably request to assist the Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant to this
Section 2.12 shall use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Applicable Lending Office if the making
of such a change would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender.
(h) Notwithstanding any contrary provisions of this Agreement, in the event
that a Lender that originally provided such form, certification of tax residency or other
documentation as may be required under Section 2.12(e) thereafter ceases to qualify for complete
exemption from withholding tax, such Lender may assign its interest under this Agreement to any
Eligible Assignee and such assignee shall be entitled to the same benefits under this Section 2.12
as the assignor provided that the rate of withholding tax applicable to such assignee shall not
exceed the rate then applicable to the assignor.
(i) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained in this
Section 2.12 shall survive the payment in full of principal and interest hereunder and under the
Notes and the termination of the Commitments.
(j) If a Borrower is required to pay any Lender any Taxes under
Section 2.12(c), such Lender shall be an “Affected Person”, and the U.S. Borrower shall have the
rights set forth in Section 3.08 to replace such Affected Person.
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(k) Each Lender shall severally indemnify the Administrative Agent, within
10 days after demand therefor, for (i) any Taxes or Other Taxes attributable to such Lender (but
only to the extent that the Borrowers have not already indemnified the Administrative Agent for
such Taxes and without limiting the obligation of the Borrowers to do so), (ii) any taxes
attributable to such Lender’s failure to comply with the provisions of Section 9.07(f) relating to
the maintenance of a Participant Register and (iii) any other taxes attributable to such Lender, in
each case, that are payable or paid by the Administrative Agent in connection with any Loan
Document, and any reasonable and documented expenses arising thereform or with respect
thereto, whether or not such taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to
any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender
hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time
owing to such Lender under any Loan Document or otherwise payable by the Administrative
Agent to the Lender from any other source against any amount due to the Administrative Agent
under this paragraph (k).
SECTION 2.13. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) on account of the Revolving Loans, the Swing Loans or the Letter of Credit Loans
made by it (other than as expressly provided herein) in excess of its ratable share of payments on
account of the Revolving Loans, the Swing Loans or the Letter of Credit Loans obtained by all
such Lenders, such Lender shall forthwith purchase from such other Lenders such participations
in the Revolving Loans, the Swing Loans or the Letter of Credit Loans made by them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably with each of
them, provided, however, that, if all or any portion of such excess payment is thereafter recovered
from such purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such Lender’s ratable share (according to the proportion of (i)
the amount of such 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. Each Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 2.13 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of set-off) with respect to
such participation as fully as if such Lender were the direct creditor of such Borrower in the
amount of such participation.
SECTION 2.14. Conversion or Continuation of Revolving Loans.
(a) Each Borrower may elect (i) at any time on any Business Day to Convert
Base Rate Loans or any portion thereof to Eurocurrency Rate Loans or (ii) at the end of any
applicable Interest Period, to Convert Eurocurrency Rate Loans denominated in Dollars or any
portion thereof into Base Rate Loans or to Continue Eurocurrency Rate Loans or any portion
thereof for an additional Interest Period; provided, however, that the aggregate amount of the
Eurocurrency Rate Loans Converted or Continued for each Interest Period must be in the amount
of at least $5,000,000 or an integral multiple of $1,000,000 in excess thereof. Each Conversion
or Continuation shall be allocated among the Revolving Loans of each Lender in accordance with
such Lender’s pro rata share. Subject to clause (b) below, each such election shall be in
substantially the form of Exhibit B-2 (Form of Notice of Conversion or Continuation) (a “Notice
of Conversion or Continuation”) and shall be made by giving the Administrative Agent (x) in the
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case of a Continuation or Conversion into Eurocurrency Rate Loans, at least three Business Days’
prior written notice, and (y) in the case of a Conversion into Base Rate Loans, at least one
Business Day’s prior written notice, in each case, specifying (A) the amount and Type of
Revolving Loan being Converted or Continued, (B) in the case of a Conversion to or a
Continuation of Eurocurrency Rate Loans, the applicable Interest Period and (C) in the case of a
Conversion, the date of Conversion (which date shall be a Business Day and, if a Conversion
from Eurocurrency Rate Loans, shall also be the last day of the applicable Interest Period).
(b) The Administrative Agent shall promptly notify each Lender of its
receipt of a Notice of Conversion or Continuation and of the options selected therein.
Notwithstanding the foregoing, no Conversion in whole or in part of Base Rate Loans to
Eurocurrency Rate Loans, and no Continuation in whole or in part of Eurocurrency Rate Loans
upon the expiration of any applicable Interest Period, shall be permitted at any time at which (A)
a Default or an Event of Default shall have occurred and be continuing or (B) the Continuation of,
or Conversion into, a Eurocurrency Rate Loan would violate any provision of Section 2.09, 3.05
or 3.06. If, within the time period required under the terms of this Section 2.14, the
Administrative Agent does not receive a Notice of Conversion or Continuation from the
applicable Borrower containing a permitted election to Continue any Eurocurrency Rate Loans
for an additional Interest Period or to Convert any such Revolving Loans, then, upon the
expiration of the applicable Interest Period, such Revolving Loans, if denominated in Dollars,
shall be automatically Converted to Base Rate Loans and such Revolving Loans, if denominated
in Euros, shall be automatically Continued as Eurocurrency Rate Loans with an interest period of
one month (or if consented by all Lenders, seven days). Each Notice of Conversion or
Continuation shall be irrevocable.
(c) Notwithstanding the foregoing, upon the occurrence and during the
continuance of any Event of Default, each Eurocurrency Rate Loan shall, upon the expiration of
the applicable Interest Period, be automatically Converted to a Base Rate Loan.
SECTION 2.15. Extension of Termination Date.
(a) The U.S. Borrower may, by notice to the Administrative Agent (which
shall promptly notify the Lenders) not less than 40 days and not more than 60 days prior to each
of the first and second anniversaries of the Effective Date (each anniversary, an “Anniversary
Date”), request that each Lender extend such Lender’s Termination Date to the date (the “New
Termination Date”) that is one year after the then Final Termination Date; provided that the
representations and warranties contained in Article V (Representations and Warranties) shall be
correct in all material respects (except any representations and warranties that are qualified by
materiality, which shall be true and correct in all respects) as of the date of such request, as
though made on and as of such date, other than any such representations or warranties that, by
their terms, refer to a different date, which shall be true and correct as of such earlier date. Each
Lender, acting in its sole discretion, shall, by written notice to the Administrative Agent given no
later than the date (the “Consent Date”) that is 20 days prior to the relevant Anniversary Date
(provided that, if such date is not a Business Day, the Consent Date shall be the next succeeding
Business Day), advise the Administrative Agent as to:
(i) whether or not such Lender agrees to such extension of its
Termination Date (each Lender so agreeing to such extension being an “Extending
Lender”); and
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(ii) only if such Lender is an Extending Lender, whether or not such
Lender also irrevocably offers to increase the amount of its Commitment (each Lender so
offering to increase its Commitment being an “Increasing Lender” as well as an
Extending Lender) and, if so, the amount of the additional Commitment such Lender so
irrevocably offers to assume hereunder (such Lender’s “Proposed Additional
Commitment”).
Each Lender that determines not to extend its Termination Date (a “Non-Extending Lender”)
shall notify the Administrative Agent (which shall notify the Lenders) of such fact promptly after
such determination but in any event no later than the Consent Date, and any Lender that does not
advise the Administrative Agent in writing on or before the Consent Date shall be deemed to be a
Non-Extending Lender and (without limiting the U.S. Borrower’s rights under Section 2.15(c))
shall have no liability to the U.S. Borrower in connection therewith. The election of any Lender
to agree to such extension shall not obligate any other Lender to so agree. The Administrative
Agent shall notify the U.S. Borrower of each Lender’s determination under this Section 2.15(a)
no later than the date 15 days prior to the relevant Anniversary Date (or, if such date is not a
Business Day, on the next preceding Business Day).
(b) (i) If all of the Lenders are Extending Lenders, then, effective as of
the Consent Date, the Termination Date of each Lender shall be extended to the New Termination
Date, and the respective Commitments of the Lenders will not be subject to change at such
Consent Date pursuant to this Section 2.15.
(ii) If and only if the sum of (x) the aggregate amount of the
Commitments of the Extending Lenders plus (y) the aggregate amount of the Proposed
Additional Commitments of the Increasing Lenders (such sum, the “Extending
Commitments”) shall be equal to at least 50% of the then Total Commitments, then:
(A) effective as of the Consent Date, the Termination Date
of each Extending Lender shall be extended to the New Termination Date;
(B) the U.S. Borrower shall (so long as no Default shall have
occurred and be continuing) have the right, but not the obligation, to take either of
the following actions with respect to each Non-Extending Lender during the period
commencing on the Consent Date and ending on the immediately succeeding
Anniversary Date:
(1) the U.S. Borrower may elect by notice to the
Administrative Agent and such Non-Extending Lender that the
Termination Date of such Non-Extending Lender be changed to a date
(which date shall be specified in such notice) on or prior to such
immediately succeeding Anniversary Date (and, upon the giving of such
notice, the Termination Date of such Non-Extending Lender shall be so
changed); or
(2) the U.S. Borrower may replace such Non-
Extending Lender as a party to this Agreement in accordance with
Section 2.15(c); and
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(C) the Administrative Agent shall notify the Issuing Banks
and the Swing Loan Lender of the New Termination Date and the Lenders whose
Termination Dates are the New Termination Date and each Issuing Bank and the
Swing Loan Lender shall determine whether or not, acting in its sole discretion, it
shall elect to extend its Termination Date to the New Termination Date and shall so
notify the Administrative Agent. If such Issuing Bank or the Swing Loan Lender, as
the case may be, has elected to so extend its Termination Date, then such Issuing
Bank’s obligation to issue Letters of Credit pursuant to Sections 2.04 and 3.04 shall
be extended to the date that is 30 days prior to the New Termination Date and/or the
Swing Loan Lender’s obligation to make Swing Loans to the Borrowers pursuant to
Sections 2.03 and 3.03 shall be extended to the date that is 15 Business Days prior to
the New Termination Date.
(iii) If neither of the conditions specified in clause (i) or clause (ii) of
this Section 2.15(b) is satisfied, then neither the Termination Date nor the Commitment
of any Lender will change pursuant to this Section 2.15 on such Consent Date, and the
U.S. Borrower will not have the right to take any of the actions specified in
Section 2.15(b)(ii)(B)(2).
(c) Replacement by the U.S. Borrower of Non-Extending Lenders pursuant
to Section 2.15(b)(ii)(B)(2) shall be effected as follows (certain terms being used in this
Section 2.15(c) having the meanings assigned to them in Section 2.15(d)) on the relevant
Assignment Date:
(i) the Assignors shall severally assign and transfer to the
Assignees, and the Assignees shall severally purchase and assume from the Assignors, all
of the Assignors’ rights and obligations (including, without limitation, the Assignors’
respective Commitments) hereunder and under the Notes;
(ii) each Assignee shall pay to the Administrative Agent, for account
of the Assignors, an amount equal to such Assignee’s Share of the aggregate outstanding
principal amount of the Loans then held by the Assignors;
(iii) the U.S. Borrower shall pay to the Administrative Agent, for
account of the Assignors, all accrued interest, fees and other amounts (other than
principal of outstanding Loans) then due and owing to the Assignors by the U.S.
Borrower hereunder (including, without limitation, payments due such Assignors, if any,
under Sections 2.12, 3.05 and 9.04(c)); and
(iv) the U.S. Borrower shall pay to the Administrative Agent for
account of the Administrative Agent the $3,500 processing and recordation fee for each
assignment effected pursuant to this Section 2.15(c).
The assignments provided for in this Section 2.15(c) shall be effected on the relevant Assignment
Date in accordance with Section 9.07 and pursuant to one or more Assignments and Acceptances.
After giving effect to such assignments, each Assignee shall have a Commitment hereunder
(which, if such Assignee was a Lender hereunder immediately prior to giving effect to such
assignment, shall be in addition to such Assignee’s existing Commitment) in an amount equal to
the amount of its Assumed Commitment representing a Commitment. Upon any such termination
or assignment, such Assignor shall cease to be a party hereto but shall continue to be obligated
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under Section 8.05 and be entitled to the benefits of Section 9.04, as well as to any fees and other
amounts accrued for its account under Section 2.05, 2.12 or 3.05 and not yet paid.
(d) For purposes of this Section 2.15, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular and plural forms
of the terms defined):
“Assigned Commitments” means the Commitments of Non-Extending Lenders to
be replaced pursuant to Section 2.15(b)(ii)(B)(2).
“Assignees” means, at any time, Increasing Lenders and, if the Assigned
Commitments exceed the aggregate amount of the Proposed Additional Commitments, one or
more New Lenders.
“Assignment Date” means the Anniversary Date or such earlier date as shall be
acceptable to the U.S. Borrower, the relevant Assignors, the relevant Assignees and the
Administrative Agent.
“Assignors” means, at any time, the Lenders to be replaced by the U.S. Borrower
pursuant to Section 2.15(b)(ii)(B)(2).
The “Assumed Commitment” of each Assignee shall be determined as follows:
(a) If the aggregate amount of the Proposed Additional
Commitments of all of the Increasing Lenders shall exceed the aggregate amount
of the Assigned Commitments, then (i) the amount of the Assumed Commitment
of each Increasing Lender shall be equal to (x) the aggregate amount of the
Assigned Commitments multiplied by (y) a fraction, the numerator of which is
equal to such Increasing Lender’s Commitment as then in effect and the
denominator of which is the aggregate amount of the Commitments of all
Increasing Lenders as then in effect; and (ii) no New Lender shall become a
Lender hereunder pursuant to Section 2.15(c).
(b) If the aggregate amount of the Proposed Additional
Commitments of all of the Increasing Lenders shall be less than or equal to the
aggregate amount of the Assigned Commitments, then: (i) the amount of the
Assumed Commitment of each Increasing Lender shall be equal to such
Increasing Lender’s Proposed Additional Commitment; and (ii) the excess, if
any, of the aggregate amount of the Assigned Commitments over the aggregate
amount of the Proposed Additional Commitments shall be allocated among New
Lenders in such a manner as the U.S. Borrower and the Administrative Agent
may agree.
“Share” means, as to any Assignee, a fraction the numerator of which is equal to
such Assignee’s Assumed Commitment and the denominator of which is the aggregate amount of
the Assumed Commitments of all the Assignees.
SECTION 2.16. Defaulting Lender.
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(a) Reallocation of Defaulting Lender Commitments. If a Lender becomes,
and during the period it remains, a Defaulting Lender, the following provisions shall apply:
(i) in the case of each Defaulting Lender, the ratable portion of such
Defaulting Lender with respect to any such outstanding Obligations will, subject to the
limitation in the first proviso below, automatically be reallocated (effective on the date
such Lender becomes a Defaulting Lender) among the Lenders that are Non-Defaulting
Lenders pro rata in accordance with such Non-Defaulting Lenders’ respective
Commitments; provided, that (A) the sum of each Non-Defaulting Lender’s ratable
portion of the Total Outstandings may not in any event exceed the Commitment of such
Non-Defaulting Lender as in effect at the time of such reallocation and (B) neither such
reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute
a waiver or release of any claim any Borrower, the Administrative Agent, any Issuing
Bank, any Swing Loan Lender or any other Lender may have against such Defaulting
Lender, or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) in the case of each Defaulting Lender, to the extent that any
portion (the “unreallocated portion”) of the ratable portion of such Defaulting Lender
with respect to any such outstanding and future Letter of Credit Obligations and Swing
Loans cannot be so reallocated, whether by reason of the first proviso in clause (i) above
or otherwise, the U.S. Borrower will, not later than 5 Business Days after demand by the
Administrative Agent (at the direction of the Issuing Banks and/or the Swing Loan
Lender, as the case may be), (A) Cash Collateralize (pursuant to procedures similar to
those detailed in Section 7.02 and reasonably acceptable to the Administrative Agent) the
Obligations of the Borrowers to the Issuing Banks and the Swing Loan Lender in respect
of such Obligations or (B) make other arrangements reasonably satisfactory to the
Administrative Agent, and to the Issuing Banks and the Swing Loan Lender, as the case
may be, in their reasonable discretion, to protect them against the risk of non-payment by
such Defaulting Lender; and
(iii) in the case of each Defaulting Lender, any amount paid by the
U.S. Borrower for the account of such Defaulting Lender under this Agreement (whether
on account of principal, interest, fees, indemnity payments or other amounts) will not be
paid or distributed to such Defaulting Lender, but will instead be retained by the
Administrative Agent in a segregated, non-interest bearing account until (subject to
Section 2.05(c)) the termination of the Commitments and payment in full of all the
Obligations and will be applied by the Administrative Agent, to the fullest extent
permitted by law, to the making of payments from time to time in the following order of
priority: first to the payment of any amounts owing by such Defaulting Lender to the
Administrative Agent under this Agreement, second to the payment of any amounts
owing by such Defaulting Lender to any Issuing Bank or any Swing Loan Lender (pro
rata as to the respective amounts owing to each of them) under this Agreement, third to
the payment of post-default interest and then current interest due and payable to the
Lenders hereunder other than Defaulting Lenders as a result of such Defaulting Lender’s
breach of its obligations under this Agreement as determined in any judgment of a court
of competent jurisdiction obtained by any Lender, the Issuing Banks or Swing Loan
Lender against such Defaulting Lender, ratably among them in accordance with the
amounts of such interest then due and payable to them, fourth to the payment of fees then
due and payable to the Non-Defaulting Lenders hereunder as a result of such Defaulting
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Lender’s breach of its obligations under this Agreement as determined in any judgment
of a court of competent jurisdiction obtained by any Lender, the Issuing Banks or Swing
Loan Lender against such Defaulting Lender, ratably among them in accordance with the
amounts of such fees then due and payable to them, fifth to pay principal and
Reimbursement Obligations in respect of the Letters of Credit at such time then due and
payable to the Non-Defaulting Lenders hereunder ratably in accordance with the amounts
thereof then due and payable to them, sixth to the ratable payment of other amounts then
due and payable to the Non-Defaulting Lenders as a result of such Defaulting Lender’s
breach of its obligations under this Agreement as determined in any judgment of a court
of competent jurisdiction obtained by any Lender, the Issuing Banks or Swing Loan
Lender against such Defaulting Lender, seventh after the termination of the Commitments
and payment in full of all the Obligations, to pay amounts owing under this Agreement to
such Defaulting Lender or as a court of competent jurisdiction may otherwise direct.
(b) Cash Collateral Call. If any Lender becomes, and during the period it
remains, a Defaulting Lender, if any Letter of Credit is at the time outstanding, the Issuing Banks
may (except, in the case of a Defaulting Lender, to the extent the Commitments have been fully
reallocated pursuant to Section 2.16(a)), by notice to the Borrowers and such Defaulting Lender
through the Administrative Agent, require any Borrower (i) to deposit in a cash collateral account
maintained by the Administrative Agent an amount at least equal to 105% of the aggregate
amount of the unreallocated obligations (contingent or otherwise) of such Defaulting Lender to be
applied pro rata in respect thereof, or (ii) to make other arrangements satisfactory to the
Administrative Agent, and to the Issuing Banks, as the case may be, in their sole discretion to
protect them against the risk of non-payment by such Defaulting Lender.
(c) Right to Give Drawdown Notices. In furtherance of the foregoing, if any
Lender becomes, and during the period it remains, a Defaulting Lender, and the applicable
Borrower fails to Cash Collateralize (pursuant to procedures similar to those detailed in Section
7.02 and reasonably acceptable to the Administrative Agent) or prepay its obligations in respect
of Letter of Credit Obligations or Swing Loans within 5 Business Days after demand by the
Administrative Agent pursuant to this Section 2.16, any Issuing Bank or Swing Loan Lender is
hereby authorized by the Borrowers (which authorization is irrevocable and coupled with an
interest) to give, in its discretion, through the Administrative Agent, Notices of Borrowing
pursuant to Section 3.01 in such amounts and in such times as may be required to (i) pay matured
Reimbursement Obligations, (ii) repay an outstanding Swing Loan, and/or (iii) Cash Collateralize
(pursuant to procedures similar to those detailed in Section 7.02 and reasonably acceptable to the
Administrative Agent) the Obligations of the applicable Borrower in respect of Letters of Credit
Obligations or Swing Loans in an amount at least equal to the aggregate amount of the
obligations (contingent or otherwise) of such Defaulting Lender in respect of such Letter of
Credit or Swing Loan.
(d) Termination of Defaulting Lender Commitments. The U.S. Borrower
may terminate the unused amount of the Commitment of a Defaulting Lender upon not less than
10 Business Days’ prior notice to the Administrative Agent (who will promptly notify the
Lenders thereof), and in such event the provisions of Section 2.11 will apply to all amounts
thereafter paid by the U.S. Borrower for the account of such Defaulting Lender under this
Agreement (whether on account of principal, interest, fees, indemnity or other amounts);
provided, that such termination will not be deemed to be a waiver or release of any claim any
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Borrower, the Administrative Agent, the Issuing Banks, the Swing Loan Lenders or any Lender
may have against such Defaulting Lender.
(e) Cure. If the U.S. Borrower, Administrative Agent, the Issuing Banks and
the Swing Loan Lenders, as applicable, agree in writing in their discretion that a Lender that is a
Defaulting Lender should no longer be deemed to be a Defaulting Lender, as the case may be, the
Administrative Agent will so notify the parties hereto, whereupon as of the effective date
specified in such notice and subject to any conditions set forth therein (which may include
arrangements with respect to any amounts then held in the segregated account referred to in
Section 2.16(a)), such Lender will, to the extent applicable, purchase such portion of outstanding
Loans of the other Lenders and/or make such other adjustments as the Administrative Agent may
determine to be necessary to cause such Lender’s ratable portion to be on a pro rata basis in
accordance with their respective Commitment, whereupon such Lender will cease to be a
Defaulting Lender and will become a Non-Defaulting Lender; provided, that no adjustments will
be made retroactively with respect to fees accrued or payments made by or on behalf of the
Borrowers while such Lender was a Defaulting Lender; and provided, further, that except to the
extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting
Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party
hereunder arising from such Lender having been a Defaulting Lender.
(f) Non-Defaulting Lender. Notwithstanding the foregoing, the occurrence
of any Lender becoming a Defaulting Lender shall not relieve any other Lender of its obligations
to make such Loan or payment on any date required under this Agreement and no other Lender
shall be responsible for the failure of any Defaulting Lender to make any Loan or payment
required under this Agreement.
SECTION 2.17. Acknowledgement and Consent to Bail-In of EEA Financial
Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other
agreement, arrangement or understanding among any such parties, each party hereto
acknowledges that any liability of any EEA Financial Institution arising under any Loan
Document, to the extent such liability is unsecured, may be subject to the write-down and
conversion powers of an EEA Resolution Authority and agrees and consents to, and
acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA
Resolution Authority to any such liabilities arising hereunder which may be payable to it by any
party hereto that is an EEA Financial Institution; and
(b) the effects of any Bail-in Action on any such liability, including, if
applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or
other instruments of ownership in such EEA Financial Institution, its parent undertaking,
or a bridge institution that may be issued to it or otherwise conferred on it, and that such
shares or other instruments of ownership will be accepted by it in lieu of any rights with
respect to any such liability under this Agreement or any other Loan Document; or
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(iii) the variation of the terms of such liability in connection with the
exercise of the write-down and conversion powers of any EEA Resolution Authority.
ARTICLE III
MAKING THE LOANS AND ISSUING THE LETTERS OF CREDIT
SECTION 3.01. Making the Revolving Loans.
(a) Each Revolving Loan Borrowing shall be made on notice, given not later
than (x) 12:00 noon (New York City time) on the third Business Day prior to the date of a
Eurocurrency Rate Loan Borrowing, and (y) 11:00 A.M. (New York City time) on the day of a
Base Rate Loan Borrowing, by the U.S. Borrower (on its own behalf and on behalf of any Euro
Borrower) to the Administrative Agent, which shall give to each Lender prompt notice thereof by
telecopier. Each notice of a Revolving Loan Borrowing (a “Notice of Revolving Loan
Borrowing”) shall be made in writing, or verbally and confirmed immediately in writing, by
telecopier, electronic mail, telex or cable, in substantially the form of Exhibit B-1 hereto,
specifying therein the requested (i) date of such Revolving Loan Borrowing (which shall be a
Business Day), (ii) Currency and Type of Revolving Loan comprising such Revolving Loan
Borrowing, (iii) aggregate amount of such Revolving Loan Borrowing, (iv) in the case of a
Revolving Loan Borrowing comprised of Eurocurrency Rate Loans, the Interest Period for each
such Revolving Loan, and (v) the name of the Borrower (which shall be the U.S. Borrower or a
Euro Borrower). Each Lender shall (A) before 11:00 A.M. Local Time on the date of such
Borrowing (in the case of a Eurocurrency Rate Loan Borrowing) and (B) before 1:00 P.M. (New
York City time) on the date of such Borrowing (in the case of a Base Rate Loan Borrowing),
make available for the account of its Applicable Lending Office to the Administrative Agent at
the Administrative Agent’s Account for the relevant Currency in same day funds, such Lender’s
ratable portion of such Borrowing. After the Administrative Agent’s receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article IV (Conditions of Lending), the
Administrative Agent will make such funds available to the relevant Borrower in such manner as
the Administrative Agent and the U.S. Borrower may agree; provided, however, that the
Administrative Agent shall first make a portion of such funds equal to the aggregate principal
amount of any Swing Loan and Letter of Credit Loans as to which a Borrower has received
timely notice made by the Swing Loan Lender or the Issuing Banks, as the case may be, and by
any other Lender and outstanding on the date of such Revolving Loan Borrowing, plus interest
accrued and unpaid thereon to and as of such date, available to the Swing Loan Lender or the
relevant Issuing Banks, as the case may be, and such other Lenders for repayment of such Swing
Loans and Letter of Credit Loans.
(b) Anything in subsection (a) above to the contrary notwithstanding, the
U.S. Borrower may not select Eurocurrency Rate Loans for any Revolving Loan Borrowing if the
aggregate amount of such Revolving Loan Borrowing is less than $1,000,000 or the Foreign
Currency Equivalent thereof.
(c) Subject to Sections 2.09(c) and 3.06, each Notice of Revolving Loan
Borrowing shall be irrevocable and binding on the U.S. Borrower and the relevant Borrower. In
the case of any Revolving Loan Borrowing by a Borrower which the related Notice of Revolving
Loan Borrowing specifies is to be comprised of Eurocurrency Rate Loans, such Borrower shall
indemnify each relevant Lender against any loss, cost or expense incurred by such Lender as a
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result of any failure to fulfill on or before the date specified in such Notice of Revolving Loan
Borrowing for such Revolving Loan Borrowing the applicable conditions set forth in Article IV
(Conditions of Lending), including, without limitation, any loss (excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund the Revolving Loan to be made by such Lender as
part of such Revolving Loan Borrowing when such Revolving Loan, as a result of such failure, is
not made on such date.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the time any Revolving Loan Borrowing is required to be made that such Lender
will not make available to the Administrative Agent such Lender’s ratable portion of such
Revolving Loan Borrowing, the Administrative Agent may assume that such Lender has made
such portion available to the Administrative Agent on the date of such Revolving Loan
Borrowing in accordance with subsection (a) of this Section 3.01 and the Administrative Agent
may, in reliance upon such assumption, make available to the relevant Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so made such ratable
portion available to the Administrative Agent, such Lender and the relevant Borrower severally
agree to repay to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made available to such
Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of
such Borrower, the interest rate applicable at the time to Revolving Loans comprising such
Revolving Loan Borrowing and (ii) in the case of such Lender, the Federal Funds Rate, provided
that such Borrower retains its rights against such Lender with respect to any damages it may incur
as a result of such Lender’s failure to fund, and notwithstanding anything herein to the contrary,
in no event shall such Borrower be liable to such Lender or any other Person for the interest
payable by such Lender to the Administrative Agent pursuant to this sentence. If such Lender
shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender’s Revolving Loan as part of such Revolving Loan Borrowing for purposes
of this Agreement.
(e) The failure of any Lender to make the Revolving Loan to be made by it
as part of any Revolving Loan Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Revolving Loan on the date of such Revolving Loan Borrowing, but
no Lender shall be responsible for the failure of any other Lender to make the Revolving Loan to
be made by such other Lender on the date of any Revolving Loan Borrowing.
SECTION 3.02. [Intentionally Deleted].
SECTION 3.03. Making the Swing Loans, Etc.
(a) In order to request a Swing Loan, a Swing Loan Borrower shall telecopy
(or forward by electronic mail or similar means) to the Swing Loan Lender a duly completed
request in substantially the form of Exhibit E (Form of Swing Loan Request), setting forth the
requested amount, currency and date of such Swing Loan (a “Swing Loan Request”), to be
received by the Swing Loan Lender not later than 12:00 p.m. (London time) on the day of the
proposed borrowing. Subject to the terms of this Agreement, the Swing Loan Lender agrees to
make, on the date of the relevant Swing Loan Request, a Swing Loan available to the Swing Loan
Borrower specified in such Swing Loan Request. The Swing Loan Lender shall not be required
to determine that, or take notice whether, the conditions precedent set forth in Section 4.02 have
been satisfied in connection with the making of any Swing Loan.
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(b) The Swing Loan Lender may demand at any time that each Lender pay
in Dollars to the Administrative Agent, for the account of the Swing Loan Lender, in the manner
provided in clause (c) below, such Lender’s pro rata share of all or a portion of the Dollar
Equivalent of the outstanding Swing Loans, which demand shall be made through the
Administrative Agent, shall be in writing and shall specify the outstanding principal amount of
the Swing Loans demanded to be paid and the Dollar Equivalent (as determined by the Swing
Loan Lender) of such outstanding principal amount if such Swing Loans are denominated in an
Alternate Currency; provided, however, the Swing Loan Lender shall not make any Swing Loan
in the period commencing on the first Business Day after it receives written notice from any
Lender that one or more of the conditions precedent contained in Section 4.02 shall not on such
date be satisfied or duly waived and ending when such conditions are satisfied or duly waived.
(c) The Administrative Agent shall forward each demand referred to in
clause (b) above to each Lender on the day such demand is received by the Administrative Agent
(except that any such demand received by the Administrative Agent after 2:00 p.m. (New York
time) on any Business Day or on a day that is not a Business Day shall not be required to be
forwarded to the Lenders by the Administrative Agent until the next succeeding Business Day),
together with a statement prepared by the Administrative Agent specifying the amount in Dollars
of each Lender’s pro rata share of the Dollar Equivalent of the aggregate principal amount of the
Swing Loans demanded to be paid pursuant to such demand, and, notwithstanding whether or not
the conditions precedent set forth in Section 4.02 shall have been satisfied (which conditions
precedent the Lenders hereby irrevocably waive), each Lender shall, before 11:00 a.m. (New
York time) on the Business Day next succeeding the date of such Lender’s receipt of such
demand, make available to the Administrative Agent, in immediately available funds in Dollars,
for the account of the Swing Loan Lender, the amount specified in such statement. Upon such
payment by a Lender, such Lender shall, except as provided in clause (d) below, be deemed to
have made a Base Rate Loan in Dollars in an amount equal to such payment to the relevant Swing
Loan Borrower (and the U.S. Borrower and the Swing Loan Borrowers hereby authorizes the
making of such Loan). The Administrative Agent shall use such funds to repay the Swing Loans
to the Swing Loan Lender. To the extent that any Lender fails to make such payment available to
the Administrative Agent for the account of the Swing Loan Lender, the Swing Loan Borrowers
shall repay such Swing Loan or Swing Loans, as the case may be, on demand.
(d) If for any reason the Swing Loans cannot be refinanced by such Loans in
accordance with clause (c) above, each Lender shall acquire, without recourse or warranty, an
undivided participation in each Swing Loan otherwise required to be repaid by such Lender
pursuant to clause (c) above, which participation shall be in a principal amount equal to such
Lender’s pro rata share of the Dollar Equivalent of such Swing Loan, by paying in Dollars to the
Swing Loan Lender on the date on which such Lender would otherwise have been required to
make a payment in respect of such Swing Loan pursuant to clause (c) above, in immediately
available funds, an amount equal to the Dollar Equivalent of such Lender’s pro rata share of such
Swing Loan (and, concurrently with such acquisition, such Swing Loan shall be automatically
converted to Dollars equal to the Dollar Equivalent of such Swing Loan bearing interest at the
Base Rate). If all or part of such amount is not in fact made available by such Lender to the
Swing Loan Lender on such date, the Swing Loan Lender shall be entitled to recover any such
unpaid amount on demand from such Lender together with interest accrued from such date at the
Federal Funds Rate for the first Business Day after such payment was due and thereafter at the
rate of interest then applicable to Base Rate Loans.
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(e) From and after the date on which any Lender (i) is deemed to have made
a Loan pursuant to clause (c) above with respect to any Swing Loan or (ii) purchases an
undivided participation interest in a Swing Loan pursuant to clause (d) above, the Administrative
Agent shall promptly distribute to such Lender such Lender’s pro rata share of all payments of
principal of and interest received by the Administrative Agent on behalf of the Swing Loan
Lender on account of such Swing Loan (all of which such payments shall be made in Dollars,
regardless of the currency in which such Swing Loan was originally made) other than those
received from a Lender pursuant to clause (c) or (d) above and subject to Section 2.16 with regard
to any Defaulting Lender. If any payment received and so distributed by the Swing Loan Lender
in respect of principal or interest on any Swing Loan is required to be returned by the Swing Loan
Lender under any of the circumstances described in Section 9.05 (including pursuant to any
settlement entered into by the Swing Loan Lender in its discretion), each Lender shall pay to the
Swing Loan Lender 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, at a rate per
annum equal to the Federal Funds Rate. The Administrative Agent shall make such demand upon
the request of the Swing Loan Lender. The obligations of the Lenders under this clause shall
survive the payment in full of the Obligations and the termination of this Agreement.
(f) The parties hereto acknowledge that the Swing Loan Lender may from
time to time make loans to any Swing Loan Borrower pursuant to an overdraft, autoborrow or
similar arrangement (the “Overdraft Facility”). The loans made pursuant to the Overdraft Facility
(the “Overdraft Advances”) shall be deemed Swing Loans for all purposes hereof and shall be
subject to all of the provisions hereof; provided, that (1) provisions relating to the fact that the
Overdraft Facility is an uncommitted facility shall prevail; (2) the borrowing procedures set forth
in the Overdraft Documents shall prevail in the event of any conflict between such borrowing
procedures and clause (a) above; (3) the optional prepayment provisions set forth in the Overdraft
Documents shall prevail in the event of any conflict between such provisions and Section 2.07;
(4) any mandatory prepayment provisions set forth in the Overdraft Documents shall be in
addition to, and not in lieu of or replacement of, the mandatory prepayment provisions set forth in
Section 2.07; and (5) interest on each Overdraft Advance shall be due and payable in arrears on
each date set forth in the Overdraft Documents in the event of any conflict between such interest
payment dates and the interest payment dates set forth herein.
(g) Each Lender’s obligation to make Loans or to purchase and fund risk
participations in Swing Loans pursuant to this Section 3.03 shall be absolute and unconditional,
and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the Swing Loan Lender, any
Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a
Default, or (iii) any other occurrence, event or condition, whether or not similar to any of the
foregoing. No such funding of risk participations shall relieve or otherwise impair the obligation
of any Swing Loan Borrower to repay any Swing Loans made to it, together with interest as
provided herein.
(h) The Swing Loan Lender may resign at any time upon not less than 90
days’ prior written notice to the U.S. Borrower and the Administrative Agent, during which
period the Swing Loan Lender shall cooperate with the U.S. Borrower in putting in place a new
Swing Loan Lender designated by the U.S. Borrower and acceptable to the Administrative Agent;
provided, that the Swing Loan Lender shall retain all the rights and obligations of the Swing Loan
Lender provided for hereunder with respect to Swing Loans made by it and outstanding as of the
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effective date of such resignation, including the right to require the Lenders to make Loans or
fund risk participations in outstanding Swing Loans pursuant to this Section 3.03. If no such
Swing Loan Lender is appointed prior to the effectiveness of such resignation, no Swing Loan
Borrower shall be entitled to request Swing Loans until such a Swing Loan Lender is appointed.
SECTION 3.04. Issuance of Letters of Credit.
(a) No Issuing Bank shall be under any obligation to Issue any Letter of
Credit upon the occurrence of any of the following:
(i) any order, judgment or decree of any Governmental Authority or
arbitrator shall purport by its terms to enjoin or restrain such Issuing Bank from Issuing
such Letter of Credit or any Requirement of Law applicable to such Issuing Bank or any
request or directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such
Issuing Bank refrain from, the Issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of
Credit any restriction or reserve or capital requirement (for which such Issuing Bank is
not otherwise compensated) not in effect on the date of this Agreement or that would
result in any unreimbursed loss, cost or expense that was not applicable, in effect or
known to such Issuing Bank as of the date of this Agreement and that such Issuing Bank
in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) such Issuing Bank shall have received any written notice of the
type described in clause (c) below;
(iii) after giving effect to the Issuance of such Letter of Credit, (A)
the aggregate Total Outstandings would exceed the aggregate of the Commitments in
effect at such time or (B) the Letter of Credit Obligations at such time would exceed the
Letter of Credit Sublimit;
(iv) any fees due in connection with any Issuance have not been paid;
(v) such Letter of Credit is requested to be Issued in a form that is
not acceptable to such Issuing Bank;
(vi) such Letter of Credit is requested to be denominated in any
currency other than Dollars or (if requested by a Euro Borrower) Euros.
None of the Lenders (other than the Issuing Banks in their capacity as such) shall have any
obligation to Issue any Letter of Credit.
(b) In connection with the Issuance of each Letter of Credit, the U.S.
Borrower or a Euro Borrower, as applicable and appropriate, shall give the relevant Issuing Bank
and the Administrative Agent at least two Business Days’ prior written notice, in form and
substance acceptable to the applicable Issuing Bank, of the requested Issuance of such Letter of
Credit (a “Letter of Credit Request”). Such notice shall be irrevocable and shall specify the
Issuing Bank of such Letter of Credit, the Currency of Issuance (Dollars or Euros) and face
amount of the Letter of Credit requested, the date of Issuance of such requested Letter of Credit,
the date on which such Letter of Credit is to expire (which date shall be a Business Day) and the
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Person for whose benefit the requested Letter of Credit is to be issued. Such notice, to be
effective, must be received by the relevant Issuing Bank and the Administrative Agent not later
than 11:00 a.m. (New York time) on the second Business Day prior to the date of the requested
Issuance of such Letter of Credit.
(c) Subject to the satisfaction of the conditions set forth in this Section 3.04
and in Section 2.04, the relevant Issuing Bank shall, on the requested date, Issue a Letter of Credit
for the account of the applicable Borrower in accordance with such Issuing Bank’s usual and
customary business practices. No Issuing Bank shall Issue any Letter of Credit in the period
commencing on the first Business Day after it receives written notice from any Lender that one or
more of the conditions precedent contained in Section 4.02 shall not on such date be satisfied or
duly waived and ending when such conditions are satisfied or duly waived. The relevant Issuing
Bank shall not otherwise be required to determine that, or take notice whether, the conditions
precedent set forth in Section 4.02 have been satisfied in connection with the Issuance of any
Letter of Credit.
(d) If requested by the relevant Issuing Bank, prior to the issuance of each
Letter of Credit by such Issuing Bank, and as a condition of such Issuance and of the participation
of each Lender in the Letter of Credit Obligations arising with respect thereto in accordance with
clause (f) below, the applicable Borrower shall have delivered to such Issuing Bank a letter of
credit reimbursement agreement, in such form as the Issuing Bank may employ in its ordinary
course of business for its own account (a “Letter of Credit Reimbursement Agreement”), signed
by such Borrower, and such other documents or items as may be required pursuant to the terms
thereof. In the event of any conflict between the terms of any Letter of Credit Reimbursement
Agreement and this Agreement, the terms of this Agreement shall govern.
(e) Each Issuing Bank shall:
(i) give the Administrative Agent written notice (or telephonic
notice confirmed promptly thereafter in writing, which writing may be a telecopy or
electronic mail) of the Issuance of a Letter of Credit Issued by it, of all drawings under a
Letter of Credit Issued by it and the payment (or the failure to pay when due) by the
applicable Borrower of any Reimbursement Obligation when due, other than drawings
under Letters of Credit issued to support the IRB Obligations and reimbursement
payments in respect thereof that are made when due (which notice, the Administrative
Agent shall promptly transmit by telecopy, electronic mail or similar transmission to each
Lender);
(ii) upon the request of any Lender, furnish to such Lender, copies of
any Letter of Credit Reimbursement Agreement to which such Issuing Bank is a party
and such other documentation as may reasonably be requested by such Lender; and
(iii) no later than 10 Business Days following the last day of each
calendar month, provide to the Administrative Agent (and the Administrative Agent shall
provide a copy to each Lender requesting the same) and the U.S. Borrower separate
schedules for Documentary Letters of Credit and Standby Letters of Credit issued by it
under the Letter of Credit Sub-Facility, in form and substance reasonably satisfactory to
the Administrative Agent, setting forth the aggregate Letter of Credit Obligations
outstanding at the end of each month and any information requested by the U.S.
Borrower or the Administrative Agent relating thereto.
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(f) Immediately upon the issuance by an Issuing Bank of a Letter of Credit
in accordance with the terms and conditions of this Agreement, such Issuing Bank shall be
deemed to have sold and transferred to each Lender, and each Lender shall be deemed irrevocably
and unconditionally to have purchased and received from such Issuing Bank, without recourse or
warranty, an undivided interest and participation, to the extent of such Lender’s pro rata share of
the Commitments, in such Letter of Credit and the obligations of the applicable Borrower with
respect thereto (including all Letter of Credit Obligations with respect thereto) and any security
therefor and guaranty pertaining thereto.
(g) Each Borrower agrees to pay to the Issuing Bank of any Letter of Credit
the Dollar Equivalent of the amount of all Reimbursement Obligations owing to such Issuing
Bank under any Letter of Credit issued for its account no later than the date that is the next
succeeding Business Day after such Borrower receives written notice from such Issuing Bank that
payment has been made under such Letter of Credit (the “Reimbursement Date”), irrespective of
any claim, set-off, defense or other right that such Borrower may have at any time against such
Issuing Bank or any other Person.
(h) In the event that any Issuing Bank makes any payment under any Letter
of Credit and the applicable Borrower shall not have repaid the Dollar Equivalent of such amount
to such Issuing Bank pursuant to clause (g) or any such payment by such Borrower is rescinded
or set aside for any reason, such Reimbursement Obligation shall be payable on demand with
interest thereon computed (i) from the date on which such Reimbursement Obligation arose to the
Reimbursement Date, at the rate of interest applicable during such period to Revolving Loans that
are Base Rate Loans and (ii) from the Reimbursement Date until the date of repayment in full, at
the rate of interest applicable during such period to past due Revolving Loans that are Base Rate
Loans, and such Issuing Bank shall promptly notify the Administrative Agent, which shall
promptly notify each Lender of such failure, and each Lender shall promptly and unconditionally
pay to the Administrative Agent for the account of such Issuing Bank the amount of such
Lender’s pro rata share of such payment in Dollars (based upon the Dollar Equivalent of such
amount on the date of such payment) and in immediately available funds. If the Administrative
Agent so notifies such Lender prior to 11:00 a.m. (New York time) on any Business Day, such
Lender shall make available to the Administrative Agent for the account of such Issuing Bank its
pro rata share of the amount of such payment on such Business Day in immediately available
funds. Upon such payment by a Lender, such Lender shall, except during the continuance of a
Default or Event of Default under Section 7.01(e) and notwithstanding whether or not the
conditions precedent set forth in Section 4.02 shall have been satisfied (which conditions
precedent the Lenders hereby irrevocably waive), be deemed to have made a Revolving Loan to
applicable Borrower in the principal amount of such payment. Whenever any Issuing Bank
receives from the U.S. Borrower a payment of a Reimbursement Obligation as to which the
Administrative Agent has received for the account of such Issuing Bank any payment from a
Lender pursuant to this clause (h), such Issuing Bank shall pay to the Administrative Agent and
the Administrative Agent shall promptly pay to each Lender, in immediately available funds, an
amount equal to such Lender’s pro rata share of the amount of such payment adjusted, if
necessary, to reflect the respective amounts the Lenders have paid in respect of such
Reimbursement Obligation.
(i) If and to the extent such Lender shall not have so made its pro rata share
of the amount of the payment required by clause (h) above, as applicable, available to the
Administrative Agent for the account of such Issuing Bank, such Lender agrees to pay to the
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Administrative Agent for the account of such Issuing Bank forthwith on demand any such unpaid
amount together with interest thereon, for the first Business Day after payment was first due at
the Federal Funds Rate and, thereafter until such amount is repaid to the Administrative Agent for
the account of such Issuing Bank, at the rate per annum applicable to Base Rate Loans under the
Facility.
(j) Each Borrower’s obligation to pay each Reimbursement Obligation and
the obligations of the Lenders to make payments to the Administrative Agent for the account of
the Issuing Banks with respect to Letters of Credit shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of this Agreement, under
any and all circumstances whatsoever, including the occurrence of any Default or Event of
Default, and irrespective of any of the following:
(i) any lack of validity or enforceability of any Letter of Credit or
any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all
or any of the provisions of any Letter of Credit or any Loan Document;
(iii) the existence of any claim, set off, defense or other right that
such Borrower, any other party guaranteeing, or otherwise obligated with, such
Borrower, any Subsidiary or other Affiliate thereof or any other Person may at any time
have against the beneficiary under any Letter of Credit, any Issuing Bank, the
Administrative Agent or any other Lender or any other Person, whether in connection
with this Agreement, any other Loan Document or any other related or unrelated
agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(v) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the terms of such
Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of the
Issuing Bank, the other Lenders, the Administrative Agent or any other Person or any
other event or circumstance whatsoever, whether or not similar to any of the foregoing,
that might, but for the provisions of this Section 3.04 or Section 2.04, constitute a legal or
equitable discharge of such Borrower’s obligations hereunder.
Any action taken or omitted to be taken by the relevant Issuing Bank under or in connection with
any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct,
shall not put such Issuing Bank under any resulting liability to the applicable Borrower or any
Lender. In determining whether drafts and other documents presented under a Letter of Credit
comply with the terms thereof, the Issuing Bank may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of any notice or
information to the contrary and, in making any payment under any Letter of Credit, the Issuing
Bank may rely exclusively on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including reliance on the amount of any draft presented under
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such Letter of Credit, whether or not the amount due to the beneficiary thereunder equals the
amount of such draft and whether or not any document presented pursuant to such Letter of
Credit proves to be insufficient in any respect, if such document on its face appears to be in order,
and whether or not any other statement or any other document presented pursuant to such Letter
of Credit proves to be forged or invalid or any statement therein proves to be inaccurate or untrue
in any respect whatsoever and any noncompliance in any immaterial respect of the documents
presented under such Letter of Credit with the terms thereof shall, in each case, be deemed not to
constitute willful misconduct or gross negligence of the Issuing Bank.
(k) Schedule 2.04 (Existing Letters of Credit) contains a schedule of
Existing Letters of Credit issued for the account of the U.S. Borrower. On the Effective Date (i)
such letters of credit, to the extent outstanding, shall be automatically and without further action
by the parties thereto converted to Letters of Credit issued pursuant to this Section 3.04 and
Section 2.04 for the account of the U.S. Borrower and subject to the provisions hereof, and for
this purpose the fees specified in Section 2.05(b) shall be payable (in substitution for any fees set
forth in the applicable letter of credit reimbursement agreements or applications relating to such
letters of credit) as if such letters of credit had been issued on the Effective Date, other than fees
with respect to issuance, amendment or transfer that might otherwise apply as the result of such
letters of credit being treated as if issued on the Effective Date, (ii) the amount of such letters of
credit shall be included in the calculation of Letter of Credit Obligations and (iii) all liabilities of
the U.S. Borrower with respect to such letters of credit shall constitute Reimbursement
Obligations and/or obligations under the Facility.
SECTION 3.05. Increased Costs.
(a) If, due to either (i) the introduction of or any change (other than any
change by way of imposition or increase of reserve requirements included in the Eurocurrency
Rate Reserve Percentage, in each case as of the date of determination thereof) in or in the
interpretation of any law or regulation, in each case after the date hereof or (ii) the compliance
with any guideline or request from any central bank or other governmental authority (whether or
not having the force of law) which implements any introduction or change specified in clause (i)
above, there shall be any increase in the cost to any Lender of agreeing to make or making,
funding or maintaining Eurocurrency Rate Loans or Swing Loans then the Borrowers shall from
time to time, within ten Business Days after written demand by such Lender (with a copy of such
demand to the Administrative Agent), pay to the Administrative Agent for the account of such
Lender additional amounts sufficient to compensate such Lender for such increased cost incurred
during the 90-day period prior to the date of such demand. A certificate as to the amount of such
increased cost, submitted to the U.S. Borrower and the Administrative Agent by such Lender and
showing in reasonable detail the basis for the calculation thereof, shall be prima facie evidence of
such costs.
(b) If any Lender determines that compliance with (i) the introduction of or
any change in or in the interpretation of, any law or regulation, in each case after the date hereof,
or (ii) any guideline or request from any central bank or other governmental authority (whether or
not having the force of law) which implements any introduction or change specified in clause (i)
above, affects or would affect the amount of capital or liquidity required or expected to be
maintained by such Lender or any corporation controlling such Lender and that the amount of
such capital or liquidity is increased by or based upon the existence of such Lender’s commitment
to lend or to issue or participate in Letters of Credit hereunder and other commitments of this
type, then, within ten Business Days after written demand by such Lender (with a copy of such
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demand to the Administrative Agent), the Borrowers shall from time to time pay to the
Administrative Agent for the account of such Lender, additional amounts sufficient to
compensate such Lender or such corporation in the light of such circumstances for such increase
in capital or liquidity incurred during the six-month period prior to the date of such demand, to
the extent that such Lender reasonably determines such increase in capital or liquidity to be
allocable to the existence of such Lender’s commitment to lend or to issue or participate in
Letters of Credit hereunder. A certificate as to such amounts submitted to the U.S. Borrower and
the Administrative Agent by such Lender and showing in reasonable detail the basis for the
calculation thereof shall be prima facie evidence of such costs.
(c) Failure or delay on the part of any Lender to demand compensation
pursuant to the foregoing provisions of this Section 3.05 shall not constitute a waiver of such
Lender’s right to demand such compensation, provided that no Borrower shall be required to
compensate a Lender pursuant to the foregoing provisions of this Section for any increased costs
incurred or reductions suffered more than six months prior to the date that such Lender notifies
the U.S. Borrower of the circumstances giving rise to such increased costs or reductions and of
such Lender’s intention to claim compensation therefor (except that, if the circumstances giving
rise to such increased costs or reductions is retroactive, then the six-month period referred to
above shall be extended to include the period of retroactive effect thereof).
(d) Without limiting the effect of the foregoing, the Borrowers shall pay to
each Lender on the last day of each Interest Period so long as such Lender is maintaining reserves
against Eurocurrency Liabilities (or so long as such Lender is maintaining reserves against any
other category of liabilities that includes deposits by reference to which the interest rate on
Eurocurrency Rate Loans is determined as provided in this Agreement or against any category of
extensions of credit or other assets of such Lender that includes any Eurocurrency Rate Loans) an
additional amount (determined by such Lender and notified to the U.S. Borrower through the
Administrative Agent) equal to the product of the following for each Eurocurrency Rate Loan for
each day during such Interest Period:
(i) the principal amount of such Eurocurrency Rate Loan
outstanding on such day; and
(ii) the remainder of (x) a fraction the numerator of which is the rate
(expressed as a decimal) at which interest accrues on such Eurocurrency Rate Loan for
such Interest Period as provided in this Agreement (less the Applicable Margin) and the
denominator of which is one minus the Eurocurrency Rate Reserve Percentage in effect
on such day minus (y) such numerator; and
(iii) 1/360.
(e) If the U.S. Borrower is required to pay any Lender any amounts under
this Section 3.05, the applicable Lender shall be an “Affected Person”, and the U.S. Borrower
shall have the rights set forth in Section 3.08 to replace such Affected Person.
Notwithstanding anything to the contrary, for purposes of this Section 3.05, each of (i) the ▇▇▇▇-
▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act, and all requests, rules, guidelines and
directives promulgated thereunder and (ii) all requests, rules, guidelines or directives concerning
capital adequacy or liquidity effective after the date hereof promulgated by the Bank for
International Settlements, the Basel Committee on Banking Regulations and Supervisory
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Practices (or any successor or similar authority) or the United States or foreign regulatory
authorities are deemed to have been introduced or adopted after the date hereof, regardless of the
date enacted or adopted.
SECTION 3.06. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender or the Swing Loan Lender, as the case may be, shall notify the
Administrative Agent that the introduction of or any change in or in the interpretation of any law
or regulation makes it unlawful, or any central bank or other governmental authority asserts that it
is unlawful, for such Lender or the Swing Loan Lender, as the case may be, or its Eurocurrency
Lending Office to perform its obligations hereunder to make Eurocurrency Rate Loans or Swing
Loans, as the case may be, or to fund or maintain Eurocurrency Rate Loans or Swing Loans
hereunder, as the case may be, then, subject to the provisions of Section 3.08, (i) the obligation of
such Lender to make Eurocurrency Rate Loans hereunder or the obligations of the Swing Loan
Lender to make Swing Loans hereunder (including, without limitation, to any Borrower who is
also a Foreign Subsidiary), as the case may be, shall be suspended until the first date on which the
circumstances causing such suspension cease to exist (and, to the extent required by applicable
Law, cancelled), (ii) any Eurocurrency Rate Loans made or to be made by such Lender shall be
converted automatically to Base Rate Loans and any Swing Loans made or to be made by the
Swing Loan Lender shall be converted to Dollar Swing Loans and (iii) such Lender or the Swing
Loan Lender, as the case may be, shall be an “Affected Person”, and the U.S. Borrower shall have
the right set forth in Section 3.08 to replace such Affected Person. In the event of such a
suspension, such Lender or the Swing Loan Lender, as the case may be, shall review the
circumstances giving rise to such suspension at least weekly and shall notify the U.S. Borrower,
the Administrative Agent, the Swing Loan Lender and the Lenders promptly of the end of such
suspension, and thereafter the applicable Borrower shall be entitled to borrow Eurocurrency Rate
Loans from such Lender or any Swing Loan Borrower shall be entitled to borrow Swing Loans
from the Swing Loan Lender, as the case may be.
Notwithstanding anything to the contrary, for purposes of this Section 3.06, each of (i) the ▇▇▇▇-
▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act, and all requests, rules, guidelines and
directives promulgated thereunder and (ii) all requests, rules, guidelines or directives concerning
capital adequacy or liquidity effective after the date hereof promulgated by the Bank for
International Settlements, the Basel Committee on Banking Regulations and Supervisory
Practices (or any successor or similar authority) or the United States or foreign regulatory
authorities are deemed to have been introduced or adopted after the date hereof, regardless of the
date enacted or adopted.
SECTION 3.07. Reasonable Efforts to Mitigate. Each Lender and the Swing
Loan Lender shall use its reasonable best efforts (consistent with its internal policy and legal and
regulatory restrictions) to minimize any amounts payable by the Borrowers under Section 3.05
and to minimize any period of illegality described in Section 3.06. Without limiting the
generality of the foregoing, each Lender and the Swing Loan Lender agrees that, to the extent
reasonably possible to such Lender or the Swing Loan Lender, as the case may be, it will change
its Eurocurrency Lending Office if such change would eliminate or reduce amounts payable to it
under Section 3.05 or eliminate any illegality of the type described in Section 3.06, as the case
may be. Each Lender and the Swing Loan Lender further agrees to notify the U.S. Borrower
promptly, but in any event within five Business Days, after such Lender or the Swing Loan
Lender, as the case may be, learns of the circumstances giving rise to such a right to payment or
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such illegality have changed such that such right to payment or such illegality, as the case may
be, no longer exists.
SECTION 3.08. Right to Replace Affected Person or Lender.
(a) Replacement by the U.S. Borrower. In the event (i) the Borrowers are
required to pay any Taxes with respect to an Affected Person pursuant to Section 2.12(c) or any
amounts with respect to an Affected Person pursuant to Section 3.05, (ii) the U.S. Borrower
receives a notice from an Affected Person pursuant to Section 3.06, or (iii) any Lender is a
Defaulting Lender or Non-Consenting Lender (treating such Lender as an “Affected Person” for
purposes of this Section 3.08), the U.S. Borrower may elect, if such amounts continue to be
charged or such notice is still effective, to replace such Affected Person as a party to this
Agreement, provided that, concurrently therewith, (i) another financial institution which is an
Eligible Assignee and is reasonably satisfactory to the U.S. Borrower and the Administrative
Agent (or if the Lender then serving as Administrative Agent is the Person to be replaced and the
Administrative Agent has resigned its position, the Lender becoming the successor
Administrative Agent) and satisfactory to the Issuing Banks and the Swing Loan Lender (unless it
is the Swing Loan Lender that is being replaced), shall agree, as of such date, to purchase for cash
and at par the Loans and participation in Letters of Credit of the Affected Person, pursuant to an
Assignment and Acceptance and to become a Lender or the Swing Loan Lender, as the case may
be, for all purposes under this Agreement and to assume all obligations (including all outstanding
Loans) of the Affected Person to be terminated as of such date and to comply with the
requirements of Section 9.07 applicable to assignments and (ii) the U.S. Borrower shall pay to
such Affected Person in same day funds on the day of such replacement all interest, fees and
other amounts then due and owing to such Affected Person by any Borrower hereunder to and
including the date of termination, including without limitation payments due such Affected
Person under Section 2.12, costs incurred under Section 3.05 or 9.15 and payments owing under
Section 9.04(c).
(b) Replacement by the Issuing Banks. In the event that S&P and ▇▇▇▇▇’▇
shall, after the date that any Person becomes a Lender, downgrade the long-term certificate of
deposit ratings of such Lender, and the resulting ratings shall be below BBB- and Baa3,
respectively, or the equivalent, then the Issuing Banks shall in consultation with the U.S.
Borrower have the right, but not the obligation, at their own expense, upon notice to such Lender
and the Administrative Agent, to replace such Lender with an Eligible Assignee, and such Lender
hereby agrees to transfer and assign without recourse (in accordance with and subject to the
restrictions contained in Section 9.07 (other than clause (a)(iv) thereof)) all the interests, rights
and obligations in respect of its Commitment to an Eligible Assignee; provided, however, that
(x) no such assignment shall conflict with any law, rule or regulation or order of any
governmental authority and (y) the Issuing Banks or such Eligible Assignee, as the case may be,
shall pay to such Lender in same day funds on the date of such assignment the principal of and
interest accrued to the date of payment on the Loans made by such Lender and such Lender’s
participation in any Letters of Credit hereunder and all other amounts accrued for such Lender’s
account or owed to it hereunder. Upon any such termination or assignment, such Lender shall
cease to be a party hereto but shall continue to be obligated under Section 8.05 and be entitled to
the benefits of Section 9.04, as well as to any fees and other amounts accrued for its account
under Section 2.05, 2.12 or 3.05 and not yet paid.
SECTION 3.09. Use of Proceeds. The Letters of Credit and the proceeds of the
Loans shall be available (and each Borrower agrees that it shall use such proceeds) for general
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corporate purposes of the U.S. Borrower and its Subsidiaries; provided that neither any Lender
nor the Administrative Agent shall have any responsibility for the use of any of the Letters of
Credit or the proceeds of Loans.
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01. Conditions Precedent to Initial Borrowing. The obligation of
each Lender to make a Loan on the occasion of the initial Borrowing and of an Issuing Bank to
issue the initial Letter of Credit, whichever shall first occur, shall be subject to the conditions
precedent that, on a date (the “Effective Date”) not later than May 15, 2017, the Administrative
Agent shall have received the following:
(a) Each of the following documents, which shall be dated the Effective
Date and in form and substance satisfactory to the Administrative Agent:
(i) This Agreement, duly executed and delivered by each of the
Borrowers and the Guarantor.
(ii) Upon request of any Lender, the Revolving Loan Notes payable
by the U.S. Borrower and any Euro Borrower to the order of each such Lender.
(iii) Certified copies of (w) the charter and by-laws of each
Borrower, (x) the resolutions of the board of directors (or equivalent governing body) of
each Borrower authorizing and approving this Agreement, the Guaranty and the Notes
and the transactions contemplated by the Loan Documents, (y) all documents evidencing
other necessary corporate action and governmental approvals, if any, with respect to the
Loan Documents and (z) a long form good standing certificate (or its equivalent) for each
such Borrower from its jurisdiction of organization.
(iv) A certificate of the secretary or an assistant secretary (or
equivalent officer) of each Borrower certifying the names and true signatures of the
officers of each Borrower authorized to sign this Agreement, the Guaranty and the Notes
and the other documents to be delivered hereunder.
(v) A favorable opinion of (x) ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP U.S.,
counsel to the Borrowers and (y) certain local counsel to each of the Euro Borrowers, in
each case, in form and substance reasonably accepted to the Administrative Agent and
Lenders and covering such customary matters relating hereto as any Lender, through the
Administrative Agent, may reasonably request.
(vi) A certificate of a senior officer of the U.S. Borrower to the effect
that (x) the representations and warranties contained in Article V (Representations and
Warranties) are correct (other than any such representations or warranties which, by their
terms, refer to a prior date) and (y) no event has occurred and is continuing which
constitutes a Default.
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(vii) Such other certificates, documents, agreements and information
respecting any Borrower as any Lender through the Administrative Agent may
reasonably request, including without limitation, at least five Business Days prior to the
Effective Date, all documentation and other information relating to the Borrowers
required by bank regulatory authorities under applicable “know-your-customer” and anti-
money laundering rules and regulations, including the Patriot Act, as reasonably
requested by any of the Administrative Agent and the Lenders at least 10 Business Days
prior to the Effective Date.
(b) Confirmation that the U.S. Borrower has paid all accrued fees and
expenses of the Administrative Agent (including, without limitation, amounts then payable under
the Fee Letter) and the Lenders hereunder (including the fees and expenses of counsel to the
Administrative Agent to the extent then payable), together with all accrued but unpaid fees
(including, without limitation, facility fees) and expenses under the Existing Credit Agreement.
SECTION 4.02. Conditions Precedent to Each Revolving Loan Borrowing,
Swing Loan Borrowing and Letter of Credit Issuance. The obligation of each Lender to make a
Loan (other than a Swing Loan or a Letter of Credit Loan made by a Lender pursuant to
Section 3.03 or 3.04(b)) on the occasion of each Borrowing (including the initial Borrowing), and
the right of the Borrowers to request a Swing Loan Borrowing or the issuance of a Letter of
Credit, shall be subject to the further conditions precedent that:
(a) in the case of the first Borrowing by a Euro Borrower (other than FMC
Finance B.V., FMC Chemicals Netherlands B.V., FMC ▇▇▇▇▇, ▇.▇., FMC Luxembourg Holdings
S.à ▇.▇. (previously named “SHCO 91 S.à ▇.▇.”), a private limited liability company (société à
responsabilité limitée) having its registered office at ▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇-▇▇▇▇▇ of Luxembourg, registered with the Luxembourg Trade and Companies Register
under number B 189601, FMC Luxembourg S.à ▇.▇. (previously named “SHCO 92 S.à ▇.▇.”), a
private limited liability company (société à responsabilité limitée) having its registered office at ▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇▇ of Luxembourg, registered with the
Luxembourg Trade and Companies Register under number B 189617 and Surety International
Ltd.), the U.S. Borrower shall have furnished to the Administrative Agent and the Lenders such
Revolving Loan Notes, corporate documents, resolutions, certifications, legal opinions and other
items relating to such Euro Borrower as the Administrative Agent or the Lenders may reasonably
require, including without limitation, all documentation and other information relating to such
Euro Borrower required by bank regulatory authorities under applicable “know-your-customer”
and anti-money laundering rules and regulations, including the Patriot Act, as reasonably
requested by any of the Administrative Agent and the Lenders, and
(b) on the date of such Borrowing or issuance of a Letter of Credit the
following statements shall be true (and the acceptance by a Borrower of the proceeds of such
Borrowing or of such Letter of Credit shall constitute a representation and warranty by such
Borrower that on the date of such Borrowing or issuance such statements are true):
(i) The representations and warranties contained in Article V
(Representations and Warranties) (except the Excluded Representations) are correct in all
material respects (except any representations and warranties that are qualified by
materiality, which shall be true and correct in all respects) on and as of the date of such
Borrowing or issuance, before and after giving effect to such Borrowing or issuance and
to the application of the proceeds therefrom, as though made on and as of such date, other
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than any such representations or warranties that, by their terms, refer to a date other than
the date of such Borrowing or issuance, which are true and correct as of such earlier date;
and
(ii) No event has occurred and is continuing, or would result from
such Borrowing or issuance or from the application of the proceeds therefrom, which
constitutes a Default.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The U.S. Borrower and the Guarantor, as applicable, each represents and
warrants as follows:
SECTION 5.01. Corporate Existence; Compliance with Law.
Each of the U.S. Borrower and its Material Subsidiaries (a) is duly organized,
validly existing and in good standing (where such concept is legally relevant) under the laws of
the jurisdiction of its organization, (b) is duly qualified to do business as a foreign corporation
and in good standing (where such concept is legally relevant) under the laws of each jurisdiction
where such qualification is necessary, except where the failure to be so qualified or in good
standing (where such concept is legally relevant) would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect, (c) has all requisite power and authority and the legal
right to own, pledge, mortgage and operate its properties, to lease the property it operates under
lease and to conduct its business as now or currently proposed to be conducted, (d) with respect
to the U.S. Borrower and its Material Subsidiaries that are Domestic Subsidiaries, is in
compliance with its Constituent Documents, (e) is in compliance with all applicable
Requirements of Law except where the failure to be in compliance would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect and (f) has all necessary licenses,
permits, consents or approvals from or by, has made all necessary filings with, and has given all
necessary notices to, each Governmental Authority having jurisdiction, to the extent required for
such ownership, operation and conduct, except for licenses, permits, consents, approvals or
filings that can be obtained or made by the taking of ministerial action to secure the grant or
transfer thereof or the failure to obtain or make would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
SECTION 5.02. Corporate Power; Authorization; Enforceable Obligations.
(a) The execution, delivery and performance by each Borrower of the Loan
Documents to which it is a party and the consummation of the transactions contemplated thereby:
(i) are within such Borrower’s corporate, limited liability company,
partnership or other powers;
(ii) have been or, at the time of delivery thereof pursuant to Article
IV (Conditions of Lending) will have been, duly authorized by all necessary action,
including the consent of shareholders, partners and members where required;
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(iii) do not and will not (A) contravene such Borrower’s or any of its
Subsidiaries’ respective Constituent Documents, (B) violate any other Requirement of
Law applicable to such Borrower (including Regulations T, U and X of the Federal
Reserve Board), or any order or decree of any Governmental Authority or arbitrator
applicable to such Borrower, (C) conflict with or result in the breach of, or constitute a
default under, or result in or permit the termination or acceleration of, any Contractual
Obligation of such Borrower or any of its Subsidiaries, or (D) result in the creation or
imposition of any Lien upon any property of such Borrower or any of its Material
Subsidiaries;
(iv) do not require the consent of, authorization by, approval of,
notice to, or filing or registration with, any Governmental Authority or any other Person,
other than those listed on Schedule 5.02 (Consents) and that have been or will be, prior to
the Effective Date, obtained or made, copies of which have been or will be delivered to
the Administrative Agent pursuant to Section 4.01(a)(iii)(y), and each of which on the
Effective Date will be in full force and effect.
(b) This Agreement has been, and each of the other Loan Documents will
have been upon delivery thereof pursuant to the terms of this Agreement, duly executed and
delivered by each Borrower and the Guarantor party thereto. This Agreement is, and the other
Loan Documents will be, when delivered hereunder, the legal, valid and binding obligation of
each Borrower and the Guarantor party thereto, enforceable against such Borrower and the
Guarantor in accordance with its terms.
SECTION 5.03. Financial Statements.
The Consolidated balance sheet of the U.S. Borrower and its Subsidiaries as at
December 31, 2016, and the related Consolidated statements of income, changes in stockholders’
equity and cash flows of the U.S. Borrower and its Subsidiaries for the fiscal year then ended,
certified by the Borrowers’ Accountants, copies of which have been furnished to each Lender,
fairly present the Consolidated financial condition of the U.S. Borrower and its Subsidiaries as at
such dates and the Consolidated results of the operations of the U.S. Borrower and its
Subsidiaries for the period ended on such date, all in conformity with GAAP.
SECTION 5.04. Material Adverse Change.
Since December 31, 2016, there has been no Material Adverse Change and there
have been no events or developments that, in the aggregate, have had a Material Adverse Effect.
SECTION 5.05. Litigation.
Except as set forth on Schedule 5.05 (Litigation), there are no pending or, to the
knowledge of the U.S. Borrower, threatened actions, investigations or proceedings affecting the
U.S. Borrower or any of its Material Subsidiaries before any court, Governmental Authority or
arbitrator other than those that, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. The performance of any action by any Borrower required or
contemplated by any Loan Document is not restrained or enjoined (either temporarily,
preliminarily or permanently).
SECTION 5.06. Taxes.
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(a) The U.S. Borrower and each of its Material Subsidiaries have filed, have
caused to be filed or have been included in all tax returns (federal, state, local and foreign)
required to be filed, all such tax returns are true and correct in all material respects and have paid
(or have accrued any taxes shown that are not due with the filing of such returns) all taxes shown
thereon to be due, together with applicable interest and penalties, except in any case where the
failure to file any such return or pay any such tax is not in any respect material to the U.S.
Borrower or the U.S. Borrower and its Subsidiaries taken as a whole.
SECTION 5.07. Full Disclosure.
The information prepared or furnished by or on behalf of the U.S. Borrower in
connection with this Agreement or the consummation of the transactions contemplated hereunder
taken as a whole, including the information contained in the Disclosure Documents, does not
contain any untrue statement of a material fact or omit to state a material fact necessary to make
the statements contained therein or herein in light of the time and circumstances under which they
were made, not misleading.
SECTION 5.08. Investment Company Act.
Neither the U.S. Borrower nor any of its Material Subsidiaries is an “investment
company” or an “affiliated Person” of, or “promoter” or “principal underwriter” for, an
“investment company,” as such terms are defined in the Investment Company Act of 1940, as
amended.
SECTION 5.09. ERISA.
(a) No ERISA Event with respect to the U.S. Borrower has occurred or is
reasonably expected to occur with respect to any Plan that has resulted or would reasonably be
expected to result in a Material Adverse Effect.
(b) Neither the U.S. Borrower nor any of its ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan that it has incurred any Withdrawal Liability, and
neither the U.S. Borrower nor any of its ERISA Affiliates, to the best of the U.S. Borrower’s
knowledge and belief, is reasonably expected to incur any Withdrawal Liability to any
Multiemployer Plan, in each case other than any Withdrawal Liability that would not have a
Material Adverse Effect.
(c) Neither the U.S. Borrower nor any of its ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent or in
endangered or critical status or has been terminated, within the meaning of Title IV of ERISA,
except where such event would not reasonably be expected to have a Material Adverse Effect.
SECTION 5.10. Environmental Matters.
Except as disclosed in the U.S. Borrower’s SEC filings filed with respect to
period ending on or prior to December 31, 2016:
(a) The operations of the U.S. Borrower and each of its Material
Subsidiaries have been and are in compliance with all Environmental Laws, including obtaining
and complying with all required Permits required under or by Environmental Laws (collectively,
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“Environmental Permits”), other than non-compliances that, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.
(b) None of the U.S. Borrower or any of its Material Subsidiaries or any real
property currently or, to the knowledge of the U.S. Borrower, previously owned, operated or
leased by or for the U.S. Borrower or any of its Material Subsidiaries is subject to any pending or,
to the knowledge of the U.S. Borrower, threatened, claim, order, agreement, notice of potential
liability or is the subject of any pending or threatened proceeding or governmental investigation
under or pursuant to Environmental Laws other than those that, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.
(c) Except as disclosed on Schedule 5.10 (Environmental Matters), none of
the real property owned or operated by the U.S. Borrower or any of its Material Subsidiaries that
is a Domestic Subsidiary is a treatment, storage or disposal facility requiring a Permit under the
Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. and the regulations
thereunder.
(d) There are no facts, circumstances or conditions arising out of or relating
to the operations or ownership of the U.S. Borrower or of real property owned, operated or leased
by the U.S. Borrower or any of its Material Subsidiaries that are not specifically included in the
financial information furnished to the Lenders other than those that, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect.
(e) As of the date hereof, no Environmental Lien has attached to any
property of the U.S. Borrower or any of its Material Subsidiaries and, to the knowledge of the
U.S. Borrower, no facts, circumstances or conditions exist that could reasonably be expected to
result in any such Lien attaching to any such property.
SECTION 5.11. Ownership of Properties; Liens.
Each of the U.S. Borrower and its Material Subsidiaries has good title to, a valid
leasehold interest in, or other valid legal rights to use, all of the real and personal property used in
the ordinary course of its business, and none of such property is subject to any Lien (other than as
permitted by Section 6.04(a)), except to the extent that the absence of such title, leasehold interest
or legal right, in the aggregate, would reasonably be expected to have a Material Adverse Effect.
SECTION 5.12. Sanctions.
Each of the Borrowers and their Subsidiaries are in compliance with applicable
Sanctions. None of the Borrowers, their Subsidiaries or any of their respective directors, officers,
employees, agents, or affiliates is a Sanctioned Person. The Letters of Credit and the proceeds of
any Loan will not be used and have not been used, directly or indirectly, (A) to fund any
operations in or with, finance any investments or activities in or with, or make any payments to, a
Sanctioned Person or a Sanctioned Country, except to the extent permissible for a Person required
to comply with Sanctions or (B) in any other manner that would result in a violation by any
Person of any Sanctions.
SECTION 5.13. Anti-Corruption Laws; Anti-Money Laundering Laws.
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Each of the Borrowers has implemented and maintains in effect policies and
procedures designed to ensure compliance by such Borrower, its Subsidiaries and their respective
directors, officers, employees, brokers and agents with Anti-Corruption Laws and Anti-Money
Laundering Laws and applicable Sanctions, and the Borrowers, their Subsidiaries and their
respective officers and employees and to the knowledge of the Borrowers, their and their
Subsidiaries’ respective directors, brokers and agents, are in compliance with Anti-Corruption
Laws and Anti-Money Laundering Laws in all material respects. No part of any Letter of Credit,
Borrowing, the use of proceeds therefrom or any other transaction contemplated by this
Agreement will violate Anti-Corruption Laws or Anti-Money Laundering Laws.
ARTICLE VI
COVENANTS OF THE COMPANY
SECTION 6.01. Financial Covenants. So long as any obligations under this
Agreement or any Note shall remain unpaid, any Letter of Credit shall be outstanding or any
Lender shall have any Commitment hereunder, the U.S. Borrower agrees with the Administrative
Agent to each of the following, unless the Required Lenders shall otherwise consent in writing:
(a) Maximum Leverage Ratio. Subject to the immediately succeeding
sentence, the U.S. Borrower shall maintain on the last day of each Fiscal Quarter a Leverage
Ratio of not more than the applicable level set forth below adjacent to such Fiscal Quarter:
Fiscal Quarter Maximum Leverage Ratio
March 31, 2017 4.00 to 1.00
June 30, 2017 3.75 to 1.00
September 30, 2017 and thereafter 3.50 to 1.00
If the Acquisition Closing Date occurs, the U.S. Borrower shall maintain, on the
last day of each Fiscal Quarter ending on or following the Acquisition Closing Date, a Leverage
Ratio of not more than the applicable level set forth below adjacent to such Fiscal Quarter:
Fiscal Quarter Ending Maximum Leverage Ratio
On or after the Acquisition Closing
Date but before the last day of the
first full fiscal quarter after the
Acquisition Closing Date
4.75:1.00
On the last day of the first full
fiscal quarter after the Acquisition
Closing Date
4.75:1.00
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Fiscal Quarter Ending Maximum Leverage Ratio
On the last day of the second full
fiscal quarter after the Acquisition
Closing Date
4.75:1.00
On the last day of the third full
fiscal quarter after the Acquisition
Closing Date
4.50:1.00
On the last day of the fourth full
fiscal quarter after the Acquisition
Closing Date
4.50:1.00
On the last day of the fifth full
fiscal quarter after the Acquisition
Closing Date
4.50:1.00
On the last day of the sixth full
fiscal quarter after the Acquisition
Closing Date
4.25:1.00
On the last day of the seventh full
fiscal quarter after the Acquisition
Closing Date
4.25:1.00
On the last day of the eighth full
fiscal quarter after the Acquisition
Closing Date
4.00:1.00
On the last day of the ninth full
fiscal quarter after the Acquisition
Closing Date
4.00:1.00
On the last day of the tenth full
fiscal quarter after the Acquisition
Closing Date and thereafter
3.50:1.00
(b) Minimum Interest Coverage Ratio. The U.S. Borrower shall maintain an
Interest Coverage Ratio, as determined as of the last day of each Fiscal Quarter, for the four
Fiscal Quarters ending on such day, of at least a minimum ratio of 3.50 to 1.00.
SECTION 6.02. Reporting Covenants. So long as any obligations under this
Agreement or any Note shall remain unpaid, any Letter of Credit shall be outstanding or any
Lender shall have any Commitment hereunder, the U.S. Borrower agrees with the Administrative
Agent to each of the following, unless the Required Lenders shall otherwise consent in writing:
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(a) Financial Statements. The U.S. Borrower shall furnish to the
Administrative Agent (with sufficient copies for each of the Lenders or in electronic, readable
and duplicable form) each of the following:
(i) Quarterly Reports. Within 45 days after the end of each Fiscal
Quarter of each Fiscal Year, other than the fourth Fiscal Quarter of such Fiscal Year,
financial information regarding the U.S. Borrower and its Subsidiaries consisting of
Consolidated unaudited balance sheets as of the close of such quarter and the related
statements of income and cash flows for such quarter and that portion of the Fiscal Year
ending as of the close of such quarter, setting forth in comparative form the figures for
the corresponding period in the prior year, in each case certified by a Responsible Officer
of the U.S. Borrower as fairly presenting the Consolidated financial position of the U.S.
Borrower and its Subsidiaries as at the dates indicated and the results of their operations
and cash flow for the periods indicated in accordance with GAAP (subject to the absence
of footnote disclosure and normal year-end audit adjustments).
(ii) Annual Reports. Within 90 days after the end of each Fiscal
Year, financial information regarding the U.S. Borrower and its Subsidiaries consisting of
Consolidated balance sheets of the U.S. Borrower and its Subsidiaries as of the end of
such year and related statements of income, changes in stockholders’ equity and cash
flows of the U.S. Borrower and its Subsidiaries for such Fiscal Year, all prepared in
conformity with GAAP and certified without qualification as to the scope of the audit by
the Borrowers’ Accountants, together with the report of such accounting firm stating that
(A) such Financial Statements fairly present the Consolidated financial position of the
U.S. Borrower and its Subsidiaries as at the dates indicated and the results of their
operations and cash flow for the periods indicated in conformity with GAAP applied on a
basis consistent with prior years (except for changes with which the Borrower’s
Accountants shall concur and that shall have been disclosed in the notes to the Financial
Statements) and (B) the examination by the Borrower’s Accountants in connection with
such Consolidated Financial Statements has been made in accordance with generally
accepted auditing standards.
(iii) Compliance Certificate. Together with each delivery of any
financial statement pursuant to clause (i) or (ii) above, a certificate of a Responsible
Officer of the U.S. Borrower (each, a “Compliance Certificate”) (A) showing in
reasonable detail the calculations used in determining the Leverage Ratio and
demonstrating compliance with each of the financial covenants contained in Section 6.01
that is tested on a quarterly basis, and (B) stating that no Default or Event of Default has
occurred and is continuing or, if a Default or an Event of Default has occurred and is
continuing, stating the nature thereof and the action that the U.S. Borrower proposes to
take with respect thereto.
(b) Default Notices.
(i) As soon as practicable, and in any event within five Business
Days after a Responsible Officer of any Borrower has actual knowledge of the existence
of any Default, Event of Default or other event having had a Material Adverse Effect or
having any reasonable likelihood of causing or resulting in a Material Adverse Change,
the U.S. Borrower shall give the Administrative Agent notice specifying the nature of
such Default or Event of Default or other event, including the anticipated effect thereof,
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which notice, if given by telephone, shall be promptly confirmed in writing on the next
Business Day; and
(ii) As soon as practicable, and in any event within five Business
Days after a Responsible Officer of any of the U.S. Borrower or any of its Material
Subsidiaries has actual knowledge of the existence of any default under any Indebtedness
of the U.S. Borrower or any such Subsidiary which is outstanding in a principal amount
of at least $50,000,000 in the aggregate (but excluding Indebtedness evidenced by the
Notes), the U.S. Borrower shall give the Administrative Agent notice specifying the
nature of such default, including the anticipated effect thereof, which notice, if given by
telephone, shall be promptly confirmed in writing on the next Business Day.
(c) Litigation. Promptly after the commencement thereof, the U.S.
Borrower shall give the Administrative Agent written notice of the commencement of all actions,
suits and proceedings before any domestic or foreign Governmental Authority or arbitrator,
affecting the U.S. Borrower or any of its Material Subsidiaries that (i) seeks injunctive or similar
relief that, if granted, would reasonably be expected to have a Material Adverse Effect or (ii) in
the reasonable judgment of the U.S. Borrower or such Material Subsidiary, exposes the U.S.
Borrower or such Material Subsidiary to liability that, if adversely determined, would reasonably
be expected to have a Material Adverse Effect.
(d) SEC Filings; Press Releases. Promptly after the sending or filing
thereof, the U.S. Borrower shall send the Administrative Agent copies, electronic or otherwise, of
(i) all reports that the U.S. Borrower sends to its security holders generally, (ii) all reports and
registration statements that the U.S. Borrower or any of its Material Subsidiaries files with the
SEC or any national or foreign securities exchange or the National Association of Securities
Dealers, Inc., (iii) all financial and other material press releases and (iv) all other statements
concerning material changes or developments in the business of any Borrower made available by
any Borrower to the public or any other creditor.
(e) ERISA Matters. The U.S. Borrower shall furnish the Administrative
Agent (with sufficient copies for each of the Lenders or in electronic, readable and duplicable
form) each of the following:
(i) promptly and in any event within 30 days after the U.S.
Borrower or any ERISA Affiliate knows or should reasonably know that any ERISA
Event with respect to the U.S. Borrower has occurred, a statement of a principal financial
officer of the U.S. Borrower describing such ERISA Event and the action, if any, which
the U.S. Borrower or such ERISA Affiliate proposes to take with respect thereto;
(ii) promptly and in any event within 10 Business Days after receipt
thereof by the U.S. Borrower or any ERISA Affiliate, copies of each notice from the
PBGC stating its intention to terminate any Plan or to have a trustee appointed to
administer any Plan where such action would have a Material Adverse Effect;
(iii) promptly and in any event within 20 Business Days after receipt
thereof by the U.S. Borrower or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, a copy of each notice received by the U.S. Borrower or any ERISA
Affiliate (1) that it has incurred a Withdrawal Liability to a Multiemployer Plan, (2) of
being insolvent or in endangered or critical status or termination, within the meaning of
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Title IV of ERISA, of any Multiemployer Plan or (3) the amount of liability incurred, or
which may be incurred, by the U.S. Borrower or any ERISA Affiliate in connection with
any event described in clause (1) or (2) above.
(f) Other Information. The U.S. Borrower shall provide the Administrative
Agent and each requesting Lender with such other information respecting the business,
properties, condition, financial or otherwise, or operations of the U.S. Borrower or any of its
Subsidiaries as the Administrative Agent or such Lender through the Administrative Agent may
from time to time reasonably request.
(g) Deemed Delivery. Information required to be delivered pursuant to
Section 6.02(a) or (d) above shall be deemed to have been delivered if such information, or one or
more annual or quarterly reports containing such information, shall have been posted by the
Administrative Agent on DebtDomain or a similar site to which the Lenders have been granted
access or such reports shall be available on the website of the SEC at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇ or on
the U.S. Borrower’s website at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇.
SECTION 6.03. Affirmative Covenants. So long as any obligations under this
Agreement or any Note shall remain unpaid, any Letter of Credit shall be outstanding or any
Lender shall have any Commitment hereunder, the U.S. Borrower agrees with the Administrative
Agent to each of the following, unless the Required Lenders shall otherwise consent in writing:
(a) Preservation of Corporate Existence, Etc. The U.S. Borrower shall, and
shall cause each of its Material Subsidiaries to, preserve and maintain its legal existence, rights
(charter and statutory) and franchises, except as permitted by Section 6.04(b).
(b) Compliance with Laws, Etc. The U.S. Borrower shall, and shall cause
each of its Subsidiaries to, comply with all applicable Requirements of Law, Contractual
Obligations and Permits, including ERISA and Environmental Laws, except where the failure so
to comply would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(c) Conduct of Business. The U.S. Borrower shall, and shall cause each of
its Subsidiaries to, (a) conduct its business in the ordinary course consistent with past practice and
(b) use its reasonable efforts, in the ordinary course and consistent with past practice, to preserve
its business and the goodwill and business of the customers, advertisers, suppliers and others
having business relations with the U.S. Borrower or any of its Subsidiaries, except in each case
where the failure to comply with the covenants in each of clauses (a) and (b) above would not, in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) Payment of Taxes, Etc. The U.S. Borrower shall, and shall cause each of
its Material Subsidiaries to, pay and discharge before the same shall become delinquent, all U.S.
federal taxes and all other material and lawful governmental claims, taxes, assessments, charges
and levies, except where contested in good faith, by proper proceedings and adequate reserves
therefor have been established on the books of the U.S. Borrower or the appropriate Subsidiary in
conformity with GAAP or locally applicable accounting principles.
(e) Maintenance of Insurance. The U.S. Borrower shall maintain for itself,
and cause to be maintained for each of its Material Subsidiaries, insurance with responsible and
reputable insurance companies or associations in such amounts (subject to customary retentions
and deductibles) and covering such risks as is usually carried by companies engaged in similar
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businesses and owning similar properties in the same general areas in which the U.S. Borrower or
such Subsidiary operates.
(f) Access. The U.S. Borrower shall from time to time permit the
Administrative Agent and the Lenders, or any agents or representatives thereof, within two
Business Days after written notification of the same (except that during the continuance of an
Event of Default, no such notice shall be required) to (i) examine and make copies of and
abstracts from the records and books of account of the U.S. Borrower and each of its Material
Subsidiaries, (ii) visit the properties of the U.S. Borrower and each of its Material Subsidiaries,
(iii) discuss the affairs, finances and accounts of the U.S. Borrower and each of its Material
Subsidiaries with any of their respective officers or directors and (iv) communicate directly with
any of its certified public accountants (including the Borrowers’ Accountants). The U.S.
Borrower shall authorize its certified public accountants (including the Borrowers’ Accountants)
to disclose to the Administrative Agent or any Lender any and all financial statements and other
information of any kind, as the Administrative Agent or any Lender reasonably requests from the
U.S. Borrower and that such accountants may have with respect to the business, financial
condition, results of operations or other affairs of the U.S. Borrower or any of its Material
Subsidiaries; provided that any such disclosures shall be considered Confidential Information
governed by Section 9.11 hereof.
(g) Keeping of Books. The U.S. Borrower shall, and shall cause each of its
Material Subsidiaries to, keep proper books of record and account, in which full and correct
entries shall be made in conformity with GAAP of all financial transactions and the assets and
business of the U.S. Borrower and each such Material Subsidiary.
(h) Maintenance of Properties, Etc. The U.S. Borrower shall, and shall
cause each of its Material Subsidiaries to, maintain and preserve (a) in good working order and
condition all of its properties necessary in the conduct of its business, (b) all rights, permits,
licenses, approvals and privileges (including all Permits) used or useful or necessary in the
conduct of its business and (c) all registered patents, trademarks, trade names, copyrights and
service marks with respect to its business, except where failure to so maintain and preserve the
items set forth in clauses (a), (b) and (c) above would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(i) Application of Proceeds. The entire amount of the Letters of Credit or
the proceeds of the Loans shall be used by the Borrowers for general corporate purposes.
(j) Environmental. The U.S. Borrower shall, and shall cause all of its
Material Subsidiaries to, comply in all material respects with Environmental Laws and, without
limiting the foregoing, the U.S. Borrower shall, at its sole cost and expense, upon receipt of any
notification or otherwise obtaining knowledge of any Release or other event that has any
reasonable likelihood of the U.S. Borrower and its Material Subsidiaries incurring material
Environmental Liabilities and Costs, (a) conduct or pay for consultants to conduct, such tests or
assessments of environmental conditions at such operations or properties as the U.S. Borrower
deems appropriate under the circumstances and (b) take such Remedial Action and undertake
such investigation or other action as required by Environmental Laws or as any Governmental
Authority requires or as is appropriate and consistent with good business practice to address the
Release or event and otherwise ensure compliance with Environmental Laws.
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(k) Sanctions, etc. Each Borrower will maintain in effect and enforce
policies and procedures designed to ensure compliance by such Borrower, its Subsidiaries and
their respective directors, officers, employees, brokers and agents with Anti-Corruption Laws,
Anti-Money Laundering Laws and applicable Sanctions.
SECTION 6.04. Negative Covenants. So long as any obligations under
this Agreement or any Note shall remain unpaid, any Letter of Credit shall be outstanding or any
Lender shall have any Commitment hereunder, the U.S. Borrower agrees with the Administrative
Agent to each of the following, unless the Required Lenders shall otherwise consent in writing:
(a) Liens, Etc. The U.S. Borrower shall not, and shall not permit any of its
Material Subsidiaries to, create or suffer to exist, any Lien upon or with respect to any of their
respective properties or assets, whether now owned or hereafter acquired, or assign, or permit any
of its Subsidiaries to assign, any right to receive income, except for the following:
(i) Liens existing on the date of this Agreement and disclosed on
Schedule 6.04(a) (Existing Liens);
(ii) Customary Permitted Liens of the U.S. Borrower and the U.S.
Borrower’s Material Subsidiaries;
(iii) purchase money Liens granted by the U.S. Borrower or any
Material Subsidiary of the U.S. Borrower (including Liens arising pursuant to Capital
Leases and purchase money mortgages or security interests securing Indebtedness
representing or financing the purchase price of equipment (or improvements to existing
equipment) acquired by the U.S. Borrower or any Material Subsidiary of the U.S.
Borrower) and limited in each case to the property purchased with the proceeds of such
purchase money Indebtedness or subject to such Capital Lease;
(iv) any Lien securing the renewal, extension, refinancing or
refunding of any Indebtedness secured by any Lien permitted by clause (i) or (iii) above
or this clause (iv) without any change in the assets subject to such Lien;
(v) Liens in favor of lessors securing operating leases permitted
hereunder;
(vi) Liens on any tangible or intangible asset or property of a Foreign
Subsidiary securing the Foreign Credit Lines of such Foreign Subsidiary or a refinancing
thereof;
(vii) Liens created in connection with a Receivables Transaction;
provided, however, that the aggregate outstanding amount of all Indebtedness secured by
such Liens created pursuant to this clause (vii) does not exceed $500,000,000;
(viii) any Liens on the Acquired Business existing as of the
Acquisition Closing Date (and any Liens on the proceeds or products of the foregoing);
provided that such Liens were not incurred in contemplation of the Transactions; and
(ix) Liens that are not otherwise permitted by the foregoing clauses
of this Section 6.04(a) securing obligations or other liabilities of any Subsidiary;
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provided, however, that the aggregate outstanding amount of all such obligations and
liabilities shall not exceed $100,000,000 at any time.
(b) Restriction on Fundamental Changes. The U.S. Borrower shall not, and
shall not permit any of its Material Subsidiaries to:
(i) merge or consolidate with, or
(ii) convey, transfer, lease or otherwise dispose of (whether in one
transaction or a series of transactions) all or substantially all of the property (whether now
owned or hereafter acquired) of the U.S. Borrower and its Subsidiaries, taken as a whole,
to, or
(iii) convey, transfer, lease or otherwise dispose of (whether in one
transaction or a series of transactions, and whether by or pursuant to merger,
consolidation or any other arrangement), any property (whether now owned or hereafter
acquired) essential to the conduct of the business of the U.S. Borrower and its
Subsidiaries, taken as a whole, to,
any Person; provided, however, that so long as no Default shall have occurred and then
be continuing or would result therefrom, any Person may merge or consolidate with (A)
any Borrower, so long as such Borrower is the surviving entity and (B) any Material
Subsidiary; provided, further, that in the case of clauses (A) and (B), such merger or
consolidation is not otherwise prohibited by this Agreement. Subject to the foregoing,
and except to the extent otherwise prohibited by this Agreement, the U.S. Borrower may,
directly or indirectly, sell all or a portion of the capital stock or other equity interests of
any Subsidiary (including by way of a merger or consolidation) for fair market value, as
determined in good faith by the U.S. Borrower’s board of directors; provided, however,
that if such Subsidiary is also a Euro Borrower or Swing Loan Borrower, such Subsidiary
ceases to be a Euro Borrower or Swing Loan Borrower, as applicable, immediately prior
to such sale and all Obligations of such Subsidiary in its capacity as a Euro Borrower or
Swing Loan Borrower, as applicable are paid in full prior to the date of such sale.
Notwithstanding the foregoing, nothing in this Section 6.04(b) shall prohibit the U.S.
Borrower and its Subsidiaries from consummating the Transactions.
(c) Change in Nature of Business. The U.S. Borrower shall not, and shall
not permit any of its Subsidiaries to, make any material change in the nature or conduct of FMC’s
Business, whether in connection with a transaction permitted by Section 6.04(b) or otherwise;
provided, however, that nothing in this Section 6.04(c) shall prohibit the U.S. Borrower and its
Subsidiaries from consummating the Transactions.
(d) Modification of Constituent Documents. The U.S. Borrower shall not,
nor shall it permit any of its Subsidiaries to, amend its Constituent Documents, except for
changes and amendments that would not reasonably be expected to have a Material Adverse
Effect.
(e) Accounting Changes; Fiscal Year. The U.S. Borrower shall not change
its (a) accounting treatment and reporting practices or tax reporting treatment, except as required
or permitted by GAAP, or (b) Fiscal Year.
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(f) Margin Regulations. The U.S. Borrower shall not, and shall not permit
any of its Material Subsidiaries to, use all or any portion of the proceeds of any credit extended
hereunder to purchase or carry margin stock (within the meaning of Regulation U of the Federal
Reserve Board) in contravention of Regulation U of the Federal Reserve Board.
(g) No Speculative Transactions. The U.S. Borrower shall not, and shall not
permit any of its Subsidiaries to, enter into any Hedging Contract solely for speculative purposes
or other than for the purpose of hedging risks associated with the businesses of the U.S. Borrower
and its Material Subsidiaries, as done in the ordinary course of such businesses.
(h) Compliance with ERISA. The U.S. Borrower shall not cause or permit
to occur, and shall not permit any of its ERISA Affiliates to cause or permit to occur, (a) an event
that could result in the imposition of a Lien under Section 412 of the Code or Section 302 or 4068
of ERISA or (b) ERISA Events that would have a Material Adverse Effect in the aggregate.
(i) Sanctions, etc. No Borrower will request any Borrowing or Letter of
Credit, and no Borrower shall use (and such Borrower shall procure that its Subsidiaries and its or
their respective directors, officers, employees, brokers and agents shall not use) the proceeds of
any Borrowing or Letter of Credit (A) in furtherance of an offer, payment, promise to pay, or
authorization of the payment or giving of money, or anything else of value, to any Person in
violation of any Anti-Corruption Laws or Anti-Money Laundering Laws, (B) for the purpose of
funding, financing or facilitating any activities, business or transaction of or with any Sanctioned
Person, or in any Sanctioned Country, except to the extent permissible for a Person required to
comply with Sanctions, or (C) in any other manner that would result in the violation by any
Person of any Sanctions.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Events of Default. If any of the following events (“Events of
Default”) shall occur and be continuing:
(a) (i) Any Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when the same becomes due and payable; or (ii) any Borrower shall
fail to pay any interest on any Loan or Reimbursement Obligation, or any other payment under
any Loan Document, for a period of three Business Days after the same becomes due and
payable; or
(b) Any representation or warranty made or deemed made by any Borrower
herein or by any Borrower (or any of its officers) under or in connection with any Loan
Document shall prove to have been incorrect in any material respect when made or deemed made;
or
(c) The U.S. Borrower shall fail to perform or observe (i) any term, covenant
or agreement contained in Section 6.01, Section 6.02(a) or (b), Section 6.03(a) or (i) or
Section 6.04, or (ii) any other term, covenant or agreement contained in this Agreement on its
part to be performed or observed if the failure to perform or observe such other term, covenant or
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agreement shall remain unremedied for 30 days after written notice thereof shall have been given
to the U.S. Borrower by the Administrative Agent or the Required Lenders; or
(d) (i) The U.S. Borrower or any of its Material Subsidiaries shall fail to pay
any principal of or premium or interest on any Indebtedness which is outstanding in a principal
amount of at least $50,000,000 in the aggregate (but excluding Indebtedness evidenced by the
Notes) of the U.S. Borrower or such Subsidiary (as the case may be), when the same becomes due
and payable (whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Indebtedness, (ii) any such Indebtedness shall
become or be declared to be due and payable, or be required to be prepaid or repurchased (other
than by a regularly scheduled required prepayment), prior to the stated maturity thereof and the
U.S. Borrower or such Subsidiary shall have failed to make such payment or effect such
repurchase, and such failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Indebtedness, or (iii) any other event shall occur or
condition shall exist under any agreement or instrument relating to any such Indebtedness, if the
effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of
such Indebtedness, provided that any required notice of such event or condition shall have been
given or any applicable grace period shall have expired; provided, however, that if there is
acceleration of any Indebtedness which is included under this clause (d) solely because of a
Guarantee by the U.S. Borrower or one of its Material Subsidiaries, an Event of Default will not
exist under this clause (d) so long as the U.S. Borrower or such Material Subsidiary, as the case
may be, fully performs its obligations in a timely manner under such Guarantee upon demand
therefor by the beneficiary thereof; or
(e) The U.S. Borrower or any of its Material Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall
be instituted by or against the U.S. Borrower or any of its Material Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, custodian or other similar official for it
or for any substantial part of its property and, in the case of any such proceeding instituted against
it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a
period of 60 days, or any of the actions sought in such proceeding (including, without limitation,
the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its property) shall occur; or the U.S. Borrower
or any of its Material Subsidiaries shall take any corporate action to authorize any of the actions
set forth above in this subsection (e); or
(f) One or more judgments or orders for the payment of money in excess of
$50,000,000 in the aggregate and not covered by insurance shall be rendered against the U.S.
Borrower or any of its Material Subsidiaries and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order or (ii) there shall be any period of
30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
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(g) Any ERISA Event with respect to the U.S. Borrower shall have occurred
and the amount of all liabilities and deficiencies resulting therefrom, whether or not assessed,
would reasonably be expected to have a Material Adverse Effect; or
(h) The U.S. Borrower or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such
Multiemployer Plan which would reasonably be expected to have a Material Adverse Effect;
(i) The U.S. Borrower or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent or in endangered
or critical status or is being terminated, within the meaning of Title IV of ERISA, and such
reorganization or termination would reasonably be expected to have a Material Adverse Effect;
(j) The Guaranty set forth in Article X hereof shall cease to be valid and
binding on, or enforceable against, the U.S. Borrower or the U.S. Borrower shall so state in
writing; or
(k) there shall occur any Change of Control;
then, and in any such event, the Administrative Agent (i) shall at the request, or may with the
express consent, of the Required Lenders, by notice to the U.S. Borrower, declare the obligation
of each Lender to make Loans and of the Issuing Banks to issue Letters of Credit to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or may
with the express consent, of the Required Lenders, by notice to the U.S. Borrower, declare the
Loans and other Obligations to be forthwith due and payable, whereupon the Loans and other
Obligations shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived by each Borrower;
provided, however, that upon the occurrence of any Event of Default specified in Section 7.01(e),
(A) the obligation of each Lender to make Loans and of each Issuing Bank to issue Letters of
Credit shall automatically be terminated and (B) the Loans and other Obligations shall
automatically become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by each Borrower.
SECTION 7.02. Actions in Respect of the Letters of Credit Upon Event of
Default; L/C Cash Collateral Account; Investing of Amounts in the L/C Cash Collateral Account;
Release.
(a) Upon (i) the occurrence and during the continuance of any Event of
Default and (ii) the making of the request or the granting of the consent specified by Section 7.01
to authorize the Administrative Agent to declare the Loans due and payable pursuant to the
provisions of Section 7.01, the Administrative Agent may, and at the request of the Required
Lenders shall, irrespective of whether it is taking any of the actions described in Section 7.01 or
otherwise, make demand upon the U.S. Borrower to, and forthwith upon such demand the U.S.
Borrower will, pay to the Administrative Agent on behalf of the Lenders in same day funds at the
Administrative Agent’s office designated in such demand, for deposit in the L/C Cash Collateral
Account, an amount equal to the aggregate Available Amount of all Letters of Credit then
outstanding in the Currency of such Letters of Credit; provided, however, that upon the
occurrence of any Event of Default specified in Section 7.01(e), such payments by the U.S.
Borrower pursuant to this Section 7.02(a) shall automatically be required to be made. If at any
time the Administrative Agent determines that any funds held in the L/C Cash Collateral Account
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are subject to any equal or prior right or claim of any Person other than any Agent and the
Lenders pursuant to this Agreement or that the total amount of such funds is less than the
aggregate Available Amount of all Letters of Credit, the U.S. Borrower will, forthwith upon
demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be
deposited and held in the L/C Cash Collateral Account, an amount equal to the excess of (1) such
aggregate Available Amount over (2) the total amount of funds, if any, then held in the L/C Cash
Collateral Account that the Administrative Agent determines to be free and clear of any such
equal or prior right and claim.
(b) The U.S. Borrower hereby authorizes the Administrative Agent to open
at any time upon the occurrence and during the continuance of an Event of Default a non-interest
bearing account with the Administrative Agent at its address designated in Section 9.02 in the
name of the U.S. Borrower but in connection with which the Administrative Agent shall be the
sole entitlement holder or customer (the “L/C Cash Collateral Account”), and hereby pledges and
assigns and grants to the Administrative Agent on behalf of the Lenders a security interest in the
following collateral (the “L/C Cash Collateral Account Collateral”):
(i) the L/C Cash Collateral Account, all funds held therein and all
certificates and instruments, if any, from time to time representing or evidencing the
investment of funds held therein,
(ii) all L/C Cash Collateral Account Investments from time to time,
and all certificates and instruments, if any, from time to time representing or evidencing
the L/C Cash Collateral Account Investments,
(iii) all notes, certificates of deposit, deposit accounts, checks and
other instruments from time to time delivered to or otherwise possessed by the
Administrative Agent for or on behalf of the U.S. Borrower in substitution for or in
addition to any or all of the then existing L/C Cash Collateral Account Collateral,
(iv) all interest, dividends, cash, instruments and other property from
time to time received, receivable or otherwise distributed in respect of or in exchange for
any or all of the then existing L/C Cash Collateral Account Collateral, and
(v) all proceeds of any and all of the foregoing L/C Cash Collateral
Account Collateral.
(c) If requested by the U.S. Borrower, the Administrative Agent will, subject
to the provisions of clause (e) below, from time to time (i) invest amounts on deposit in the L/C
Cash Collateral Account in such notes, certificates of deposit and other debt instruments as the
U.S. Borrower may select and the Administrative Agent may approve and (ii) invest interest paid
on the notes, certificates of deposit and other instruments referred to in clause (i) above, and
reinvest other proceeds of any such notes, certificates of deposit and other instruments which may
mature or be sold, in each case in such notes, certificates of deposit and other debt instruments as
the U.S. Borrower may select and the Administrative Agent may approve (the notes, certificates
of deposit and other instruments referred to in clauses (i) and (ii) above being collectively “L/C
Cash Collateral Account Investments”). Interest and proceeds that are not invested or reinvested
in L/C Cash Collateral Account Investments as provided above shall be deposited and held in the
L/C Cash Collateral Account.
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(d) Upon such time as (i) the aggregate Available Amount of all Letters of
Credit is reduced to zero and such Letters of Credit are expired or terminated by their terms and
all amounts payable in respect thereof, including but not limited to principal, interest,
commissions, fees and expenses, have been paid in full in cash, and (ii) no Event of Default has
occurred and is continuing under this Agreement, the Administrative Agent will pay and release
to the U.S. Borrower or at its order (a) accrued interest due and payable on the L/C Cash
Collateral Account Investments and in the L/C Cash Collateral Account, and (b) the balance
remaining in the L/C Cash Collateral Account after the application, if any, by the Administrative
Agent of funds in the L/C Cash Collateral Account to the payment of amounts described in
clause (i) of this subsection (d).
(e) (i) The Administrative Agent may, without notice to the U.S.
Borrower or any other Person except as required by law and at any time or from time to time,
charge, set-off and otherwise apply all or any part of the L/C Cash Collateral Account against the
obligations of the Borrowers in respect of Letters of Credit (collectively, the “L/C Cash Collateral
Account Obligations”) or any part thereof. The Administrative Agent agrees to notify the U.S.
Borrower promptly after any such set-off and application, provided that the failure of the
Administrative Agent to give such notice shall not affect the validity of such set-off and
application.
(ii) The Administrative Agent may also exercise in respect of the
L/C Cash Collateral Account Collateral, in addition to other rights and remedies provided
for herein or otherwise available to it, all the rights and remedies of a secured party on
default under the Uniform Commercial Code in effect in the State of New York at that
time (the “UCC”) (whether or not the UCC applies to the affected L/C Cash Collateral
Account Collateral), and may also, without notice except as specified below, sell the L/C
Cash Collateral Account Collateral or any part thereof in one or more parcels at public or
private sale, at any of the Administrative Agent’s offices or elsewhere, for cash, on credit
or for future delivery, and upon such other terms as the Administrative Agent may deem
commercially reasonable. Each Borrower agrees that, to the extent notice of sale shall be
required by law, at least ten days’ notice to the U.S. Borrower of the time and place of
any public sale or the time after which any private sale is to be made shall constitute
reasonable notification. The Administrative Agent shall not be obligated to make any
sale of L/C Cash Collateral Account Collateral regardless of notice of sale having been
given. The Administrative Agent may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
(iii) Any cash held by the Administrative Agent as L/C Cash
Collateral Account Collateral and all cash proceeds received by the Administrative Agent
in respect of any sale of, collection from, or other realization upon all or any part of the
L/C Cash Collateral Account Collateral may, in the discretion of the Administrative
Agent, be held by the Administrative Agent as collateral for, and/or then or at any time
thereafter be applied in whole or in part by the Administrative Agent against, all or any
part of the L/C Cash Collateral Account Obligations in such order as the Administrative
Agent shall elect. Any surplus of such cash or cash proceeds held by the Administrative
Agent and remaining after payment in full of all the L/C Cash Collateral Account
Obligations shall be paid over to the U.S. Borrower or to whomsoever may be lawfully
entitled to receive such surplus.
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(f) Upon the permanent reduction from time to time of the aggregate
Available Amount of all Letters of Credit in accordance with the terms thereof, the
Administrative Agent shall release to the U.S. Borrower amounts from the L/C Cash Collateral
Account in an amount equal to each such permanent reduction; provided that the Administrative
Agent shall not be obligated to reduce the funds or other L/C Cash Collateral Account Collateral
then held in the L/C Cash Collateral Account below that level that the Administrative Agent
reasonably determines is required to be maintained after taking into consideration any rights or
claims of any Persons other than the Administrative Agent and the Lenders.
(g) In furtherance of the grant of the pledge and security interest pursuant to
this Section 7.02, the U.S. Borrower hereby agrees with each Lender and the Administrative
Agent that the U.S. Borrower shall give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that may be necessary or
desirable (in the reasonable judgment of the Administrative Agent) to create, preserve, perfect or
validate the security interest granted pursuant hereto or to enable the Administrative Agent to
exercise and enforce its rights hereunder with respect to such pledge and security interests.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. Authorization and Action. Each Lender hereby appoints and
authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such
powers under this Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto. As to any matters not expressly
provided for by this Agreement (including, without limitation, enforcement or collection of the
Notes), the Administrative Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders (or such other
number or percentage of the Lenders as shall be expressly provided for herein or in the other
Loan Documents), and such instructions shall be binding upon all Lenders and all holders of
Notes; provided that the Administrative Agent shall not be required to take any action which
exposes the Administrative Agent to personal liability or which is contrary to this Agreement or
applicable law. The Administrative Agent agrees to give to each Lender prompt notice of each
notice given to it by any Borrower pursuant to the terms of this Agreement.
SECTION 8.02. Reliance, Etc.
(a) None of the Agents nor any of their respective directors, officers, agents
or employees shall be liable for any action taken or omitted to be taken by it or them under or in
connection with the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the Administrative Agent: (i)
may treat the payee of any Note as the holder thereof until the Administrative Agent receives and
accepts an Assignment and Acceptance entered into by the Lender which is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07; (ii) may
consult with legal counsel (including counsel for any Borrower), independent public accountants
and other experts selected by it and shall not be liable for any action taken or omitted to be taken
in good faith by it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible to any Lender for
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any statements, warranties or representations (whether written or oral) made in or in connection
with this Agreement; (iv) shall not have any duty to ascertain or to inquire as to the performance
or observance of any of the terms, covenants or conditions of this Agreement on the part of any
Borrower or to inspect the property (including the books and records) of any Borrower; (v) shall
not be responsible to any Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in respect of this Agreement
by acting upon any notice, consent, certificate or other instrument or writing (which may be by
telecopier, telegram, cable or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
(b) The Arrangers, as such, the Co-Documentation Agents, as such, and the
Syndication Agent, as such, each referred to on the cover page hereto, shall have no duties or
obligations whatsoever to the Lenders under or with respect to this Agreement, the Notes or any
other document or any matter related thereto.
SECTION 8.03. The Agents and their Affiliates as Lenders. With respect to its
respective Commitment as a Lender, the Loans made by it as a Lender, the Letters of Credit
issued by it as an Issuing Bank and the Notes issued to it as a Lender, each of the Agents party to
this Agreement as Lender and/or Issuing Bank shall have the same rights and powers under this
Agreement as any other Lender in its capacity as a Lender and/or any other Issuing Bank in its
capacity as Issuing Bank and may exercise the same as though it were not an Agent; and the term
“Lender” or “Lenders” shall, unless otherwise expressly indicated, include each Agent in its
individual capacity as a Lender and/or an Issuing Bank. Each Agent, in its individual capacity as
a Lender and/or an Issuing Bank, and its affiliates may accept deposits from, lend money to, act
as trustee under indentures of, and generally engage in any kind of business with, any Borrower,
any of its Subsidiaries and any Person who may do business with or own securities of any
Borrower or any such Subsidiary, all as if the such Agent were not an Agent under this
Agreement and without any duty to account therefor to the Lenders.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon any Agent or any other Lender and based on the
financial statements referred to in Section 5.03 and such other documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.
Each Lender also acknowledges that it will, independently and without reliance upon any Agent
or any other Lender and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking action under this
Agreement.
SECTION 8.05. Indemnification. The Lenders severally agree to indemnify the
Administrative Agent, each Issuing Bank and the Swing Loan Lender (in each case to the extent
the U.S. Borrower fails to pay the same pursuant to Section 9.04(b) or otherwise), ratably
according to their respective pro rata share, from and against any and all claims, damages, losses,
liabilities and expenses of any kind or nature whatsoever which may be imposed on, incurred by,
or asserted against such Person in any way relating to or arising out of this Agreement or any
action taken or omitted by such Person under this Agreement in its respective capacity as an agent
hereunder, provided that no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, actions, judgments, suits, costs, expenses or disbursements resulting from the
gross negligence or willful misconduct of the Administrative Agent, such Issuing Bank or the
Swing Loan Lender, as applicable. Without limitation of the foregoing, each Lender agrees to
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reimburse the Administrative Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees but excluding normal administrative expenses
expressly excluded under Section 9.04(a)) 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, to the extent that the Administrative
Agent is not reimbursed for such expenses by the U.S. Borrower as required under
Section 9.04(a).
SECTION 8.06. Successor Administrative Agent. The Administrative
Agent may resign at any time by giving written notice thereof to the Lenders and the U.S.
Borrower and may be removed at any time with or without cause by the Required Lenders. Upon
any such resignation or removal, the Required Lenders shall have the right to appoint a successor
Administrative Agent with the consent of the U.S. Borrower, which consent shall not be
unreasonably withheld. If no successor Administrative Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after the retiring
Administrative Agent’s giving of notice of resignation or the Required Lenders’ removal of the
retiring Administrative Agent, then the retiring Administrative Agent may, on behalf of the
Lenders appoint a successor Administrative Agent, which shall be an Eligible Assignee and a
commercial bank organized under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $50,000,000. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor Administrative Agent,
such successor Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Administrative Agent’s resignation or removal hereunder as Administrative
Agent, the provisions of this Article VIII (The Administrative Agent) 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.
SECTION 8.07. No Other Duties, Etc. Anything herein to the contrary
notwithstanding, none of the Arrangers, the Co-Documentation Agents or the Syndication Agent
listed on the cover page hereof shall have any powers, duties or responsibilities under this
Agreement or any of the other Loan Documents, except in its capacity, as applicable, as a Lender
hereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes, nor consent to any departure by any Borrower therefrom, shall in
any event be effective unless the same shall be in writing and signed by the Required Lenders,
and then such waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all the Lenders, do any of the following: (a) waive any of
the conditions specified in Section 4.01 or 4.02, (b) reduce any fees or other amounts payable
hereunder, (c) postpone any date fixed for any payment of any fees or other amounts payable
hereunder, (d) change the percentage of the Commitments or of the aggregate unpaid principal
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amount of the Loans, or the number of Lenders, which shall be required for the Lenders or any of
them to take any action hereunder, (e) release the Guaranty set forth in Article X (Guaranty) or (f)
amend this Section 9.01 or any other Section of this Agreement, the effect of which amendment is
to alter the pro rata sharing of payments or pro rata funding required thereby; and provided
further that (1) no amendment, waiver or consent shall affect the rights or duties of the
Administrative Agent, and any Issuing Bank or the Swing Loan Lender, as the case may be,
under this Agreement or any Note, unless such amendment, waiver or consent is in writing and
signed by the Administrative Agent, such Issuing Bank or the Swing Loan Lender, as the case
may be, in addition to the Lenders required above to take such action, (2) subject to the
provisions of Sections 2.06 and 2.15, no amendment, waiver or consent shall reduce the principal
of, or interest on, the Revolving Loans or Notes or postpone any date fixed for any payment of
principal of, or interest on, the Revolving Loans or Notes, unless in each case signed by all of the
Lenders, (3) no amendment, waiver or consent shall reduce the principal of, or interest on, the
Swing Loans or postpone any date fixed for any payment of principal of, or interest on, the Swing
Loans, unless in each case signed by all of the affected Swing Loan Lenders, (4) no amendment,
waiver or consent shall reduce the principal of, or interest on, the Letter of Credit Loans or
postpone any date fixed for any payment of principal of, or interest on, the Letter of Credit Loans,
unless in each case signed by each affected Lender, (5) subject to the provisions of Sections 2.06
and 2.15, no amendment, waiver or consent shall extend the Termination Date of the
Commitment or increase the Commitment of any Lender or subject any Lender to any additional
obligations, unless signed by such Lender and (6) no amendment, waiver or consent shall be
made to Section 2.04, unless signed by each Lender affected by such amendment, waiver or
consent.
Anything herein to the contrary notwithstanding, during such period as a Lender
is a Defaulting Lender, to the fullest extent permitted by applicable law, such Defaulting Lender
will not be entitled to vote in respect of amendments and waivers hereunder and the Commitment
and the outstanding Loans or other extensions of credit of such Lender hereunder will not be
taken into account in determining whether the Required Lenders or all of the Lenders, as
required, have approved any such amendment or waiver (and the definition of “Required
Lenders” will automatically be deemed modified accordingly for the duration of such period);
provided, that any such amendment or waiver that would increase or extend the term of the
Commitment of such Defaulting Lender, extend the date fixed for the payment of principal or
interest owing to such Defaulting Lender hereunder, reduce the principal amount of any
obligation owing to such Defaulting Lender, reduce the amount of or the rate or amount of
interest on any amount owing to such Defaulting Lender or of any fee payable to such Defaulting
Lender hereunder, or alter the terms of this proviso, will require the consent of such Defaulting
Lender.
SECTION 9.02. Notices, Etc.
(a) All notices and other communications provided for hereunder shall be in
writing (including telecopy communication) and mailed, telegraphed, telecopied, telexed, cabled
or delivered as follows:
(i) if to the U.S. Borrower:
FMC Corporation
FMC Tower at ▇▇▇▇ Centre South
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Vice President and Treasurer
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail Address: ▇▇▇_▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail Address: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
E-Mail Address: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
(ii) if to the Administrative Agent:
Citibank, N.A.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, OPS 3
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Bank Loan Syndications Department
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
E-Mail Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ (for materials required to
be delivered pursuant to Section 6.02(a))
with a copy to:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇
(iii) if to a Lender, to it at its address (or email or telecopy number)
set forth in the applicable administrative questionnaire or in the applicable Acceptance.
Any party may subsequently change its notice address by a
written notice to the other parties as herein provided. All such notices and
communications shall, (a) when mailed, be effective three Business Days after the same
is deposited in the mails, (b) when mailed for next day delivery by a reputable freight
company or reputable overnight courier service, be effective one Business Day thereafter,
and (c) when sent by telegraph, telecopy, telex or cable, be effective when the same is
telegraphed, telecopied and receipt thereof is confirmed by telephone or return telecopy,
confirmed by telex answerback or delivered to the cable company, respectively, except
that notices and communications to the Administrative Agent pursuant to Article II
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(Amounts and Terms of Loans), III (Making the Loans and Issuing the Letters of Credit)
or VIII (The Administrative Agent) shall not be effective until received by the
Administrative Agent.
(b) Electronic Communications.
(i) Delivery of Communications by the U.S. Borrower. The U.S.
Borrower (on behalf of itself and on behalf of each Borrower) agrees that, unless
otherwise requested by the Administrative Agent, it will provide to the Administrative
Agent all information, documents and other materials that it is obligated to furnish to the
Administrative Agent pursuant to this Agreement and the other Loan Documents,
including, without limitation, all notices, requests, financial statements, financial and
other reports, certificates and other information materials, but excluding any such
communication that (A) relates to a request for a new, or a Conversion of an existing,
Borrowing (including any election of an interest rate or Interest Period relating thereto),
(B) relates to the payment of any principal or other amount due under this Agreement
prior to the scheduled date therefor, (C) provides notice of any Default or Event of
Default under this Agreement, (D) is required to be delivered to satisfy any condition
precedent in Article IV (Conditions of Lending) relating to the effectiveness of this
Agreement and/or any Borrowing or (E) initiates or responds to legal process (all such
non-excluded information being referred to herein collectively as the
“Communications”), by transmitting the Communications in an electronic/soft medium
(provided such Communications contain any required signatures) in a format acceptable
to the Administrative Agent to the email address specified in Section 9.02(a) above or
such other e-mail address designated by the Administrative Agent from time to time.
(ii) Use of Web Platforms. Each party hereto agrees that the
Administrative Agent may make the Communications available to the Lenders by posting
the Communications on DebtDomain, IntraLinks, SyndTrak or another similar website, if
any, to which each Lender and the Administrative Agent have access (the “Platform”).
Nothing in this Section 9.02 shall prejudice the right of the Administrative Agent to make
the Communications available to the Lenders in any other manner specified in this
Agreement.
(iii) E-mail Notification to Lenders. Each Lender agrees that e-mail
notice to it (at the address provided pursuant to the next sentence and deemed delivered
as provided in the next paragraph) specifying that Communications have been posted to
the Platform shall constitute effective delivery of such Communications to such Lender
for purposes of this Agreement. Each Lender agrees (i) to notify the Administrative
Agent in writing (including by electronic communication) from time to time to ensure
that the Administrative Agent has on record an effective e-mail address for such Lender
to which the foregoing notice may be sent by electronic transmission, and (ii) that the
foregoing notice may be sent to such e-mail address.
(iv) Presumption as to Delivery of E-Mail. Each party agrees that
any electronic communication referred to in this Section 9.02 shall be deemed delivered
upon the posting of a record of such communication as “received” in the e-mail system of
the recipient; provided that if such communication is not so received during normal
business hours, such communication shall be deemed delivered at the opening of business
on the next Business Day.
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(v) Waiver of Responsibility. Each party acknowledges that (A) the
distribution of material through an electronic medium is not necessarily secure and that
there are confidentiality and other risks associated with such distribution, (B) the
Communications and the Platform are provided “as is” and “as available,” (C) none of
the Administrative Agent, its affiliates nor any of their respective officers, directors,
employees, agents, advisors or representatives (collectively, the “Citigroup Parties”)
warrants the adequacy, accuracy or completeness of the Communications or the Platform,
and each Citigroup Party expressly disclaims liability for errors or omissions in any
Communications or the Platform, and (D) no warranty of any kind, express, implied or
statutory, including, without limitation, any warranty of merchantability, fitness for a
particular purpose, non-infringement of third party rights or freedom from viruses or
other code defects, is made by any Citigroup Party in connection with any
Communications or the Platform.
(vi) Limitation on use of Platform. Notwithstanding the foregoing, if
the U.S. Borrower has any reason to believe that either the confidentiality of the
Platform, the confidentiality of electronic transmissions to the Administrative Agent, or
the integrity of Communications posted on the Platform has, may have or may in the
future be compromised, then the U.S. Borrower may upon notice to the Administrative
Agent delivered in any manner permitted under this Agreement, either (1) suspend its
obligation hereunder to transmit Communications to the Administrative Agent by
electronic/soft medium, (2) instruct the Administrative Agent not to transmit to the
Platform any as yet un-posted Communications, and/or (3) instruct the Administrative
Agent to take commercially reasonable steps to remove any currently posted
Communications from the Platform. In the event that the use of the Platform should be
suspended due to any of the circumstances described in this paragraph, the U.S. Borrower
agrees to deliver the Communications to each Lender via e-mail. The Lenders agree that
the delivery of the Communications via e-mail shall be deemed effective upon the
posting of a record of such electronic transmission as “sent” in the e-mail system of the
U.S. Borrower. The Administrative Agent agrees to immediately inform the U.S.
Borrower of any security issue or Communications integrity issue that comes to its
attention and relates to the Platform or the Administrative Agent’s receipt of electronic
Communications.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any Lender the
Administrative Agent to exercise, and no delay in exercising, any right hereunder or under any
Note shall operate as a waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses.
(a) The U.S. Borrower agrees to pay, whether or not any of the transactions
contemplated hereby are consummated, on demand (x) all reasonable costs and expenses in
connection with the preparation (excluding normal travel and related expenses incurred by the
personnel of the Administrative Agent), execution, delivery, administration (excluding those
which are customarily borne by the Administrative Agent), modification and amendment of this
Agreement, the Notes and the other documents to be delivered hereunder, and (y) the reasonable
fees and expenses of counsel to the Administrative Agent and with respect to advising the
Administrative Agent as to its rights and responsibilities under this Agreement. The U.S.
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Borrower further agrees to pay on demand all reasonable expenses of the Lenders (including,
without limitation, reasonable counsel (including, without duplication, internal counsel) fees and
expenses) in connection with the enforcement (whether through negotiations, legal proceedings or
otherwise) of this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable counsel fees and expenses in connection with the
enforcement of rights under this Section 9.04(a).
(b) Each Borrower agrees to indemnify and hold harmless the
Administrative Agent, each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an “Indemnified Party”) from and against any and all
claims, damages, penalties, losses, liabilities and expenses (including, without limitation,
reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against
any Indemnified Party in its agent or lending capacity under, or otherwise in connection with, the
Loan Documents, in each case arising out of or in connection with or by reason of, or in
connection with the preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with the Loan Documents, the proposed or actual use of
the proceeds therefrom or any of the other transactions contemplated thereby, whether or not such
investigation, litigation or proceeding is brought by a Borrower, its shareholders or creditors or an
Indemnified Party or any other person or an Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated, except to the extent such
claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court
of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such
Indemnified Party or any of its Related Parties. Each Borrower also agrees not to assert any
claim against the Administrative Agent, any Lender, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys and agents, on any theory of liability, for
consequential, indirect, special or punitive damages arising out of or otherwise relating to any of
the Loan Documents or any of the transactions contemplated hereby or thereby or the actual or
proposed use of the proceeds of the Loans; provided that such waiver of consequential, indirect,
special or punitive damages shall not limit the indemnification obligations of the Borrowers under
this Section 9.04(b). Each of the Lenders and the Administrative Agent agrees not to assert any
claim against the U.S. Borrower, its Affiliates or any of their directors, officers, employees,
attorneys and agents, on any theory of liability, for consequential, indirect, special or punitive
damages arising out of or otherwise relating to any of the Loan Documents or any of the
transactions contemplated hereby or thereby or the actual or proposed use of the proceeds of the
Loans or the Letters of Credit. For purposes of this Section 9.04(b), a “Related Party” of an
Indemnified Party means (i) any controlling Person, controlled Affiliate or Subsidiary of such
Indemnified Party and (ii) the respective directors, officers or employees of such Indemnified
Party or any of its Subsidiaries, controlled Affiliates or controlling Persons; provided that each
reference to a controlling Person, controlled Affiliate, director, officer or employee in this
sentence pertains to a controlling Person, controlled Affiliate, director, officer or employee
involved in the preparation of the Loan Documents or the other transactions contemplated
thereby.
(c) If (i) any payment of principal of any Eurocurrency Rate Loan is made
other than on the last day of the Interest Period for such Loan, as a result of a payment pursuant to
Section 2.15(c) or 3.05 or acceleration of the maturity of the Loans pursuant to Section 7.01 or for
any other reason, (ii) the U.S. Borrower gives notice of a Loan conversion pursuant to
Section 2.09(c), or (iii) a Eurocurrency Loan is assigned other than on the last day of the Interest
Period for such Loan as a result of a request of the Borrower pursuant to Section 3.08, then the
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U.S. Borrower shall, upon demand by any Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such Lender any
amounts required to compensate such Lender for any additional losses, costs or expenses which it
may reasonably incur as a result of such payment, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or maintain such Loan.
(d) Without prejudice to the survival of any other agreement of the U.S.
Borrower or the Lenders hereunder, the agreements and obligations of the U.S. Borrower
contained in Sections 2.12, 3.05 and 9.04, and the agreements and obligations of each Lender
under Section 9.11, shall survive the payment in full of principal, interest and all other amounts
payable hereunder and under the Notes.
SECTION 9.05. Rights of Set-off; Payments Set Aside.
(a) Upon the occurrence and during the continuance of any Event of Default
each Lender and each Affiliate of a Lender is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other indebtedness at any time
owing by such Lender or its Affiliates to or for the credit or the account of the U.S. Borrower
against any and all of its obligations under the Loan Documents, of a Euro Borrower against any
and all of such Euro Borrower’s obligations under the Loan Documents or of a Swing Loan
Borrower against any and all of such Swing Loan Borrower’s obligations under the Loan
Documents, in each case, now or hereafter existing whether or not such Lender shall have made
any demand under this Agreement or any other Loan Document and even though such
Obligations may be unmatured; provided that in the event that any Defaulting Lender shall
exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the
Administrative Agent for further application in accordance with the provisions of Section
2.16(a)(iii) and, pending such payment, shall be segregated by such Defaulting Lender from its
other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders,
and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement
describing in reasonable detail the obligations owing to such Defaulting Lender as to which it
exercised such right of setoff. Each Lender agrees promptly to notify the U.S. Borrower after any
such set-off and application made by such Lender or its Affiliates; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and application. The rights
of each Lender under this Section 9.05 are in addition to the other rights and remedies (including
other rights of set-off) that such Lender may have.
(b) To the extent that the U.S. Borrower makes a payment or payments to
the Administrative Agent or the Lenders or any such Person exercise their rights of setoff, and
such payment or payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be
repaid to a trustee, receiver or any other party, then to the extent of such recovery, the obligation
or part thereof originally intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or setoff had not occurred.
SECTION 9.06. Binding Effect. This Agreement shall become effective when it
shall have been executed by the U.S. Borrower, the Administrative Agent and each Lender and
thereafter shall be binding upon and inure to the benefit of the Borrowers, the Administrative
Agent and each Lender and their respective successors and assigns, except that no Borrower or
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the Guarantor shall have the right to assign its rights or obligations hereunder or any interest
herein without the prior written consent of each Lender.
SECTION 9.07. Assignments and Participations.
(a) Each Lender may assign to one or more banks or other entities all or a
portion of its rights and obligations under this Agreement (including, without limitation, all or a
portion of its Commitments, the Loans owing to it and the Note or Notes held by it); provided,
however, that:
(i) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement (other than any Swing
Loans),
(ii) the amount of the Commitments and/or Loans of the assigning
Lender being assigned pursuant to each such assignment other than an assignment to
another Lender (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000 and shall be an
integral multiple of $1,000,000 in excess thereof,
(iii) each such assignment shall be to an Eligible Assignee, and
(unless such assignment shall be to a Lender, an Affiliate of such Lender, a Subsidiary of
the assigning Lender, or to the bank holding company or a Subsidiary of the bank holding
company of which the assigning Lender is a Subsidiary) the U.S. Borrower, the
Administrative Agent, the Issuing Banks and the Swing Loan Lender shall have
consented to such assignment (which consents shall not be unreasonably withheld or
delayed); provided, that no consent of the U.S. Borrower shall be required if an Event of
Default under Section 7.01(a) or (e) has occurred and is continuing, and
(iv) the parties to each such assignment shall execute and deliver to
the Administrative Agent, for its acceptance and recording in the Register, an Assignment
and Acceptance, together with any Note or Notes subject to such assignment and a
processing and recordation fee of $3,500 paid by either the assigning Lender or the
assignee; provided that the Administrative Agent may, in its sole discretion, elect to
waive such recordation fee in the case of any such assignment.
Upon such execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall relinquish its rights and be released from its obligations under
this Agreement, to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance.
Notwithstanding anything to the contrary contained herein except for the
conditions set for in clause (iv) of this Section 9.07(a), any Lender (a “Granting Lender”) may
grant to a special purpose funding vehicle (a “SPC”), identified as such in writing from time to
time by the Granting Lender to the Administrative Agent and the U.S. Borrower, the option to
provide to a Borrower all or any part of a Loan that such Granting Lender would otherwise be
obligated to make to such Borrower pursuant to this Agreement; provided that (i) nothing herein
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shall constitute a commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise
such option or otherwise fails to provide all or any part of such Advance, the Granting Lender
shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an
SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC
shall be liable for any indemnity or similar payment obligation under this Agreement (all liability
for which shall remain with the Granting Lender). In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any
other person in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section 9.07 except for the
conditions set forth in clause (iii) of this Section 9.07(a), any SPC may (i) with notice to, but
without the prior written consent of, the U.S. Borrower and the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests in any Loans to the
Granting Lender or to any Eligible Assignee (consented to by the U.S. Borrower and the
Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC
to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-
public information relating to its Loans to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancement to such SPC. This paragraph may not
be amended without the written consent of the SPC.
(b) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each other and the
other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance,
such assigning Lender makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished pursuant hereto; (ii) such
assigning Lender makes no representation or warranty and assumes no responsibility with respect
to the financial condition of any Borrower or the performance or observance by any Borrower of
any of its obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in Section 5.03 and such other
documents and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently
and without reliance upon any Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement; (v) such assignee
confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise such powers under
this Agreement as are delegated to the Administrative Agent by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(c) Each New Lender shall submit a New Commitment Acceptance in
accordance with the provisions of Section 2.06(b). Upon the execution, delivery, acceptance and
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recording of a New Commitment Acceptance, from and after the Increase Date related thereto
such New Lender shall be a party hereto and have the rights and obligations of a Lender
hereunder having the Commitment specified therein (or such lesser Commitment as shall be
allocated to such New Lender in accordance with Section 2.06(b)(vi) or 2.15(d)). By executing
and delivering a New Commitment Acceptance, the New Lender thereunder confirms to and
agrees with the other parties hereto as follows: (i) such New Lender hereby agrees that no Lender
has made any representation or warranty, or assumes any responsibility with respect to, (x) any
statements, warranties or representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement
or any other instrument or document furnished pursuant hereto or (y) the financial condition of
any Borrower or the performance or observance by any Borrower of any of its obligations under
this Agreement or any other instrument or document furnished pursuant hereto; (ii) such New
Lender confirms that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 5.03 and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter into such New
Commitment Acceptance; (iii) such New Lender will, independently and without reliance upon
any Agent or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (iv) such New Lender confirms that it is an Eligible Assignee; (v) such
New Lender appoints and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the Administrative
Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and
(vi) such New Lender agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at its address referred to in
Section 9.02 a copy of each Assignment and Acceptance and each New Commitment Acceptance
delivered to and accepted by it and a register for the recordation of the names and addresses of the
Lenders and the Commitments of, and principal and interest amounts of the Loans owing to, each
Lender from time to time (the “Register”). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and each Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for inspection by the U.S.
Borrower or any Lender at any reasonable time and from time to time upon reasonable prior
notice. The Administrative Agent shall provide the U.S. Borrower with a copy of the Register
upon reasonable request.
(e) (i) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any
Revolving Loan Note or Notes subject to such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the form of Exhibit C-1
hereto, (1) accept such Assignment and Acceptance, (2) record the information contained therein
in the Register and (3) give prompt notice thereof to the U.S. Borrower. Within five Business
Days after its receipt of such notice, the relevant Borrower, at its own expense, shall execute and
deliver to the Administrative Agent in exchange for the surrendered Revolving Loan Note or
Notes a new Revolving Loan Note to the order of such Eligible Assignee in an amount equal to
the Commitments and/or Loans assumed by it pursuant to such Assignment and Acceptance and a
new Revolving Loan Note to the order of the assigning Lender in an amount equal to the
Commitments and/or Loans retained by it hereunder. Such new Revolving Loan Notes shall be in
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an aggregate principal amount equal to the aggregate principal amount of such surrendered
Revolving Loan Note or Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit A-l hereto. Such
surrendered Revolving Loan Note or Notes shall be marked “canceled” and shall be returned
promptly to the U.S. Borrower.
(ii) Upon its receipt of a New Commitment Acceptance executed by
a New Lender representing that it is an Eligible Assignee, the Administrative Agent shall,
if such New Commitment Acceptance has been completed and is in substantially the
form of Exhibit C-3 hereto, (1) accept such New Commitment Acceptance, (2) record the
information contained therein in the Register and (3) give prompt notice thereof to the
U.S. Borrower. Within five Business Days after its receipt of such notice, the relevant
Borrower, at its own expense, shall execute and deliver to the Administrative Agent a
new Revolving Loan Note to the order of such New Lender in an amount equal to the
Commitments assumed by it pursuant to such New Commitment Acceptance. Such new
Revolving Loan Note shall be dated the relevant Increase Date and shall otherwise be in
substantially the form of Exhibit A-l hereto.
(f) Each Lender may sell participations to one or more banks or other
entities (other than (x) any natural person (or a holding company, investment vehicle or trust for,
or owned and operated for the primary benefit of, a natural person), (y) any Borrower or any
Affiliates of such Borrower or (z) any Defaulting Lender) in or to a portion of its rights and
obligations under this Agreement (including, without limitation, a portion of its Commitments,
the Loans owing to it and the Note or Notes held by it); provided, however, that (i) such Lender’s
obligations under this Agreement (including, without limitation, its Commitments hereunder)
shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any
such Note for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent, the
Issuing Banks 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, (v) except in the case
of a participation involving a Lender and one of its Affiliates (and this exception shall apply only
so long as the participant remains an Affiliate of such Lender), the parties to each such
participation shall execute a participation agreement in substantially the form of the Participation
Agreement, and (vi) no participant under any such participation shall have any right to approve
any amendment to or waiver of any provision of any Loan Document, or any consent to any
departure by any Borrower therefrom, except to the extent that such amendment, waiver or
consent would alter the principal of, or interest on, the Loan or Loans in which such participant is
participating or any fees or other amounts payable to the Lenders hereunder, or postpone any date
fixed for any payment of principal of, or interest on, the Loans or any fees or other amounts
payable hereunder. Each Lender shall provide the U.S. Borrower with a list of entities party to all
Participation Agreements with such Lender upon request. Notwithstanding anything in this
paragraph to the contrary, any bank that is a member of the Farm Credit System that (a) has
purchased a participation of at least $10,000,000 on or after the Effective Date, (b) is, by written
notice to the U.S. Borrower and the Administrative Agent (“Voting Participant Notification”),
designated by the selling Lender as being entitled to be accorded the rights of a Voting Participant
hereunder (any bank that is a member of the Farm Credit System so designated being called a
“Voting Participant”) and (c) receives the prior written consent of the U.S. Borrower and the
Administrative Agent to become a Voting Participant, shall be entitled to vote (and the voting
rights of the selling Lender shall be correspondingly reduced), on a dollar-for-dollar basis, as if
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such participant were a Lender, on any matter requiring or allowing a Lender to provide or
withhold its consent, or to otherwise vote on any proposed action. To be effective, each Voting
Participant Notification shall, with respect to any Voting Participant, (i) state the full name, as
well as all contact information required of an assignee as set forth in Exhibit C-1 hereto and (ii)
state the dollar amount of the participation purchased. The U.S. Borrower and the Administrative
Agent shall be entitled to conclusively rely on information contained in notices delivered
pursuant to this paragraph. Each Lender that sells a participation shall, acting solely for this
purpose as a non-fiduciary agent of the U.S. Borrower, maintain a register on which it enters the
name and address of each participant and the principal and interest amounts of each participant’s
interest in the Loans or other obligations hereunder (the “Participant Register”); provided that no
Lender shall have any obligation to disclose all or any portion of the Participant Register to any
Person (including the identity of any participant or any information relating to a participant’s
interest in any Loan or other obligation hereunder) except to the extent that such disclosure is
necessary to establish that such Loan or other obligation is in registered form under ▇▇▇▇▇▇▇
▇▇.▇▇▇▇▇(▇) ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Treasury Regulations. The entries in the Participant Register
shall be conclusive and binding for all purposes, absent manifest error, and such Lender shall
treat each Person whose name is recorded in the Participant Register as the owner of such
participation for all purposes of this Agreement notwithstanding any notice to the contrary. For
the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall
have no responsibility for maintaining a Participant Register.
(g) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or
participant or proposed assignee or participant, any information, including Confidential
Information, relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers;
provided that, prior to any such disclosure of Confidential Information, the assignee or participant
or proposed assignee or participant shall be informed of the confidential nature of such
Confidential Information and shall agree to (i) preserve the confidentiality of any Confidential
Information relating to the Borrowers received by it from such Lender and (ii) be bound by the
provisions of Section 9.11.
(h) Notwithstanding any other provision in this Agreement, an Eligible
Assignee shall not be entitled to receive any greater payment under Section 2.12 or 3.05 than the
assigning Lender would have been entitled to receive, except to the extent such entitlement to
receive a greater payment results from a change in law that occurs after the effective date of such
assignment.
(i) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time and without the consent of the Administrative Agent or any Borrower
create a security interest in all or any portion of its rights under this Agreement (including,
without limitation, the Loans owing to it and the Notes held by it), including in favor of any
Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System or any other central banking authority.
SECTION 9.08. No Liability of the Issuing Banks. Each Borrower assumes all
risks of the acts or omissions of any beneficiary or transferee of any Letter of Credit with respect
to its use of such Letter of Credit. Neither any Issuing Bank nor any of their respective officers or
directors shall be liable or responsible for: (a) the use that may be made of any Letter of Credit or
any acts or omissions of any beneficiary or transferee in connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if such documents
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should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment by
any Issuing Bank against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate reference to the
Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment
under any Letter of Credit, except that each Borrower shall have a claim against an Issuing Bank,
and such Issuing Bank shall be liable to such Borrower, to the extent of any direct, but not
consequential, damages suffered by such Borrower that were caused by (i) such Issuing Bank’s
willful misconduct or gross negligence in determining whether documents presented under any
Letter of Credit comply with the terms of the Letter of Credit or (ii) such Issuing Bank’s willful
failure to make lawful payment under a Letter of Credit after the presentation to it of a draft and
certificates strictly complying with the terms and conditions of the Letter of Credit. In
furtherance and not in limitation of the foregoing, each Issuing Bank acting in good faith 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.
SECTION 9.09. Governing Law. THIS AGREEMENT, AND ALL CLAIMS
OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) THAT
MAY BE BASED UPON, ARISE OUT OF OR RELATE IN ANY WAY TO THIS
AGREEMENT, THE EXECUTION OR PERFORMANCE OF THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO ANY PRINCIPLE OF CONFLICTS OF LAW THAT COULD
REQUIRE THE APPLICATION OF ANY OTHER LAW.
SECTION 9.10. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of this Agreement
by telecopier shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.11. Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Confidential Information (as defined below),
except that Confidential Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective managers, administrators, trustees, partners, directors, officers, employees,
agents, advisors and other representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Confidential Information
and instructed to keep such Confidential Information confidential), (b) to the extent requested by
any regulatory authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any
other party hereto, (e) in connection with the exercise of any remedies hereunder or under any
other Loan Document or any action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section 9.11, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective party (or its managers, administrators,
trustees, partners, directors, officers, employees, agents, advisors and other representatives) to
any swap or derivative or similar transaction under which payments are to be made by reference
to the U.S. Borrower and its obligations, this Agreement or payments hereunder, (iii) any rating
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agency, or (iv) the CUSIP Service Bureau or any similar organization, (g) with the consent of the
U.S. Borrower, (h) any credit insurance provider or (i) to the extent such Confidential
Information (x) becomes publicly available other than as a result of a breach of this Section 9.11
or (y) becomes available to the Administrative Agent, any Lender or any of their respective
Affiliates on a nonconfidential basis from a source other than the U.S. Borrower.
For purposes of this Section 9.11, “Confidential Information” means all information received
from the U.S. Borrower or any of its Subsidiaries or any of their respective certified public
accountants (including the Borrowers’ Accountants) relating to the U.S. Borrower or any of its
Subsidiaries or any of their respective businesses, other than any such information that is
available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure
by the U.S. Borrower or any of its Subsidiaries, provided that, in the case of information received
from the U.S. Borrower or any of its Subsidiaries after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Confidential Information as provided in this Section 9.11 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 Confidential Information as such Person would accord to its
own confidential information.
SECTION 9.12. Submission to Jurisdiction; Service of Process.
(a) Any legal action or proceeding brought by any Borrower or any of its
respective Affiliates with respect to this Agreement or any other Loan Document shall be brought
exclusively in the courts of the State of New York located in the City of New York, borough of
Manhattan, or of the United States of America for the Southern District of New York. By
execution and delivery of this Agreement, each Borrower hereby accepts for itself and in respect
of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. The parties
hereto hereby irrevocably waive any objection, including any objection to the laying of venue or
based on the grounds of forum non conveniens, that any of them may now or hereafter have to the
bringing of any such action or proceeding in such respective jurisdictions.
(b) Each Borrower hereby irrevocably consents to the service of any and all
legal process, summons, notices and documents in any suit, action or proceeding brought in the
United States of America arising out of or in connection with this Agreement or any other Loan
Document by the mailing (by registered or certified mail, postage prepaid) or delivering of a copy
of such process to the U.S. Borrower at its address specified in Section 9.02. Each Borrower
agrees that a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(c) Nothing contained in this Section 9.12 shall affect the right of the
Administrative Agent or any Lender to serve process in any other manner permitted by law or
commence legal proceedings or otherwise proceed against the Borrowers in any other
jurisdiction.
SECTION 9.13. WAIVER OF JURY TRIAL. EACH BORROWER, THE
ADMINISTRATIVE AGENT, EACH ISSUING BANK AND EACH OF THE LENDERS
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS,
THE LOANS, THE LETTERS OF CREDIT OR THE ACTIONS OF THE ADMINISTRATIVE
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AGENT, ANY ISSUING BANK OR ANY LENDER IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
SECTION 9.14. Judgment Currency. This is an international loan transaction in
which the specification of Dollars or an Alternate Currency, as the case may be (the “Specified
Currency”), any payment in New York City or the country of the Specified Currency, as the case
may be (the “Specified Place”), is of the essence, and the Specified Currency shall be the
currency of account in all events relating to Loans denominated in the Specified Currency. The
payment obligations of the Borrowers under this Agreement and the Notes shall not be discharged
by an amount paid in another currency or in another place, whether pursuant to a judgment or
otherwise, to the extent that the amount so paid on conversion to the Specified Currency and
transfer to the Specified Place under normal banking procedures does not yield the amount of the
Specified Currency at the Specified Place due hereunder. If for the purpose of obtaining
judgment in any court it is necessary to convert a sum due hereunder in the Specified Currency
into another currency (the “Second Currency”), the rate of exchange which shall be applied shall
be that at which in accordance with normal banking procedures the Administrative Agent could
purchase the Specified Currency with the Second Currency on the Business Day next preceding
that on which such judgment is rendered. The obligation of each Borrower in respect of any such
sum due from it to the Administrative Agent or any Lender hereunder (an “Entitled Person”)
shall, notwithstanding the rate of exchange actually applied in rendering such judgment, be
discharged only to the extent that on the Business Day following receipt by such Entitled Person
of any sum adjudged to be due hereunder or under the Notes in the Second Currency such
Entitled Person may in accordance with normal banking procedures purchase and transfer to the
Specified Place the Specified Currency with the amount of the Second Currency so adjudged to
be due; and each Borrower hereby, as a separate obligation and notwithstanding any such
judgment, agrees to indemnify such Entitled Person against, and to pay such Entitled Person on
demand in the Specified Currency, any difference between the sum originally due to such Entitled
Person in the Specified Currency and the amount of the Specified Currency so purchased and
transferred.
SECTION 9.15. European Monetary Union.
(a) Payments by the Administrative Agent Generally. With respect to the
payment of any amount denominated in Euro, the Administrative Agent shall not be liable to any
of the Borrowers, the Swing Loan Lender or any of the Lenders in any way whatsoever for any
delay, or the consequences of any delay, in the crediting to any account of any amount required
by this Agreement to be paid by the Administrative Agent if the Administrative Agent shall have
taken all relevant steps to achieve, on the date required by this Agreement, the payment of such
amount in immediately available, freely transferable, cleared funds (in Euro) to the account of
any Borrower, the Swing Loan Lender or any Lender in the Principal Financial Center in the
Participating Member State which such Borrower, the Swing Loan Lender or such Lender, as the
case may be, shall have specified for such purpose. For the purposes of this paragraph, “all
relevant steps” means all such steps as may be prescribed from time to time by the regulations or
operating procedures of such clearing or settlement system as the Administrative Agent may from
time to time determine for the purpose of clearing or settling payments in Euro.
(b) Other Consequential Changes. Without prejudice to the respective
liabilities of the Borrowers to the Lenders and the Swing Loan Lender and the Lenders and the
Swing Loan Lender to the Borrowers under or pursuant to this Agreement, except as expressly
provided in this Section 9.15, each provision of this Agreement shall be subject to such
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reasonable changes of construction as the Administrative Agent may from time to time
reasonably specify to be necessary or appropriate to reflect the introduction of or changeover to
Euros in Participating Member States.
SECTION 9.16. USA PATRIOT Act. Each Lender subject to the Patriot Act
hereby notifies each Borrower that, pursuant to Section 326 of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain,
verify and record information that identifies the Borrower, including the name and address of
such Borrower and other information that will allow such Lender to identify each Borrower in
accordance with the Patriot Act.
SECTION 9.17. Continued Effectiveness. Notwithstanding anything to the
contrary contained herein, this Agreement is not intended to and shall not serve to affect a
novation of the obligations under the Existing Credit Agreement, as continued hereunder.
Instead, it is the express intention of the parties hereto to reaffirm the indebtedness created under
the Existing Credit Agreement. The Existing Credit Agreement and all agreements, instruments
and documents executed or delivered in connection with the Existing Credit Agreement shall
each be deemed to be amended as of the Effective Date to the extent necessary to give effect to
the provisions of this Agreement.
SECTION 9.18. Entire Agreement. This Agreement, the other Loan Documents,
and any separate letter agreements with respect to fees payable to the Administrative Agent or
any Issuing Bank, constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof.
SECTION 9.19. No Fiduciary Duty. Each Agent, each Lender, each Issuing
Bank, each Swing Loan Lender and their respective Affiliates (collectively, solely for purposes of
this paragraph, the “Lenders”), may have economic interests that conflict with those of any
Borrowers, its stockholders and/or its Affiliates. Each Borrower agrees that nothing in the Loan
Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or
fiduciary or other implied duty between any Lender, on the one hand, and any Borrower, its
stockholders or its Affiliates, on the other. Each Borrower acknowledges and agrees that (i) the
transactions contemplated by the Loan Documents (including the exercise of rights and remedies
hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the
one hand, and the Borrowers, on the other, and (ii) in connection therewith and with the process
leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any
Borrower, its stockholders or its Affiliates with respect to the transactions contemplated hereby
(or the exercise of rights or remedies with respect thereto) or the process leading thereto
(irrespective of whether any Lender has advised, is currently advising or will advise any
Borrower, its stockholders or its Affiliates on other matters) or any other obligation to any
Borrower except the obligations expressly set forth in the Loan Documents and (y) each Lender is
acting solely as principal and not as the agent or fiduciary of any Borrower, its management,
stockholders, creditors or any other Person. Each Borrower acknowledges and agrees that it has
consulted its own legal and financial advisors to the extent it deemed appropriate and that it is
responsible for making its own independent judgment with respect to such transactions and the
process leading thereto. Each Borrower agrees that it will not claim that any Lender has rendered
advisory services of any nature or respect, or owes a fiduciary or similar duty to such Borrower,
in connection with such transaction or the process leading thereto.
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ARTICLE X
GUARANTY
SECTION 10.01. Guaranty.
(a) To induce the Lenders to make the Loans to the Euro Borrowers and the
Swing Loan Borrowers, as the case may be, and the Issuing Banks to Issue Letters of Credit for
the account of the Euro Borrowers, the U.S. Borrower hereby absolutely, unconditionally and
irrevocably guarantees, as primary obligor and not merely as surety (in such capacity, the
“Guarantor”), the full and punctual payment when due, whether at stated maturity or earlier, by
reason of acceleration, mandatory prepayment or otherwise in accordance herewith or any other
Loan Document, of the principal of and interest on the Loans made by each Lender to, and the
Notes held by each Lender of, each Euro Borrower or Swing Loan Borrower and all other
amounts from time to time owing (including without limitation with respect to any Letters of
Credit) to the Lenders or the Administrative Agent by any Euro Borrower or any Swing Loan
Borrower under this Agreement pursuant hereto, to its Euro Borrower Designation or its Swing
Loan Borrower Designation, as applicable, and under the Notes, in each case strictly in
accordance with the terms hereof or thereof (such obligations being herein collectively called, the
“Guarantied Obligations”), whether or not from time to time reduced or extinguished or hereafter
increased or incurred, whether or not recovery may be or hereafter may become barred by any
statute of limitations, and whether enforceable or unenforceable as against any Euro Borrower or
Swing Loan Borrower, now or hereafter existing, or due or to become due, including principal,
interest (including interest at the contract rate applicable upon default accrued or accruing after
the commencement of any proceeding under the Bankruptcy Code, whether or not such interest is
an allowed claim in such proceeding), fees and costs of collection. This guaranty constitutes a
guaranty of payment and not of collection.
(b) The U.S. Borrower further agrees that, (i) if any payment made by any of
the Euro Borrowers or any other person and applied to the Guarantied Obligations is at any time
annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or
otherwise required to be refunded or repaid, or (ii) if any payment is made by any Lender or any
other holder of Guarantied Obligations (the “Guarantied Parties”) to any Euro Borrower, its
estate, trustee, receiver or any other party, including the U.S. Borrower, under any bankruptcy
law, state or federal law, common law or equitable cause, then, in each case, to the extent of such
payment or repayment, the U.S. Borrower’s liability under this Section 10.01 shall be and remain
in full force and effect, as fully as if such payment had never been made or, if prior thereto this
guaranty set forth in this Section 10.01 shall have been cancelled or surrendered, the guaranty set
forth in this Section 10.01 shall be reinstated in full force and effect, and such prior cancellation
or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of
the U.S. Borrower in respect of the amount of such payment.
SECTION 10.02. Authorization; Other Agreements. The Guarantied
Parties are hereby authorized, without notice to or demand upon the U.S. Borrower, which notice
or demand is expressly waived hereby, and without discharging or otherwise affecting the
obligations of the U.S. Borrower hereunder (which shall remain absolute and unconditional
notwithstanding any such action or omission to act), from time to time, to:
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(a) supplement, renew, extend, accelerate or otherwise change the time for
payment of, or other terms relating to, the Guarantied Obligations, or any part of them, or
otherwise modify, amend or change the terms of any promissory note or other agreement,
document or instrument (including, without limitation, this Agreement and the other Loan
Documents) now or hereafter executed by any Euro Borrower and delivered to the Guarantied
Parties or any of them, including, without limitation, any increase or decrease of principal or the
rate of interest thereon;
(b) waive or otherwise consent to noncompliance with any provision of any
instrument evidencing the Guarantied Obligations, or any part thereof, or any other instrument or
agreement in respect of the Guarantied Obligations (including, without limitation, this Agreement
and the other Loan Documents) now or hereafter executed by any Euro Borrower and delivered to
the Guarantied Parties or any of them;
(c) accept partial payments on the Guarantied Obligations;
(d) receive, take and hold additional security or collateral for the payment of
the Guarantied Obligations or any part of them and exchange, enforce, waive, substitute,
liquidate, terminate, abandon, fail to perfect, subordinate, transfer, otherwise alter and release any
such additional security or collateral;
(e) settle, release, compromise, collect or otherwise liquidate the Guarantied
Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any
security or collateral for the Guarantied Obligations or any part of them or any other guaranty
therefor, in any manner;
(f) add, release or substitute any one or more other guarantors, makers or
endorsers of the Guarantied Obligations or any part of them and otherwise deal with any Euro
Borrower or any other guarantor, maker or endorser;
(g) apply to the Guarantied Obligations any and all payments or recoveries
from any Euro Borrower, from any other guarantor, maker or endorser of the Guarantied
Obligations or any part of them to the Guarantied Obligations in such order as provided herein
whether such Guarantied Obligations are secured or unsecured or guaranteed or not guaranteed
by others; and
(h) refund at any time any payment received by any Guarantied Party in
respect of any of the Guarantied Obligations, and payment to such Person of the amount so
refunded shall be fully guaranteed hereby even though prior thereto this Guaranty shall have been
cancelled or surrendered, and such prior cancellation or surrender shall not diminish, release,
discharge, impair or otherwise affect the obligations of the U.S. Borrower hereunder in respect of
the amount so refunded; even if any right of reimbursement or subrogation or other right or
remedy of the U.S. Borrower is extinguished, affected or impaired by any of the foregoing
(including, without limitation, any election of remedies by reason of any judicial, non-judicial or
other proceeding in respect of the Guarantied Obligations which impairs any subrogation,
reimbursement or other right of the U.S. Borrower).
SECTION 10.03. Guaranty Absolute and Unconditional. The U.S.
Borrower hereby waives any defense of a surety or guarantor or any other obligor on any
obligations arising in connection with or in respect of any of the following and hereby agrees that
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its obligations under this Article X (Guaranty) are absolute and unconditional and shall not be
discharged or otherwise affected as a result of:
(a) the invalidity or unenforceability of any of any Euro Borrower’s
obligations under this Agreement or any other Loan Document or any other agreement or
instrument relating thereto, or any security for, or other guaranty of the Guarantied Obligations or
any part of them, or the lack of perfection or continuing perfection or failure of priority of any
security for the Guarantied Obligations or any part of them;
(b) the absence of any attempt to collect the Guarantied Obligations or any
part of them from any Euro Borrower or other action to enforce the same;
(c) any Guarantied Parties’ election, in any proceeding instituted under
chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy
Code;
(d) any borrowing or grant of a Lien by any Euro Borrower, as
debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code;
(e) the disallowance, under Section 502 of the Bankruptcy Code, of all or
any portion of the Administrative Agent’s or Lender’s claim (or claims) for repayment of the
Guarantied Obligations;
(f) any use of cash collateral under Section 363 of the Bankruptcy Code;
(g) any agreement or stipulation as to the provision of adequate protection in
any bankruptcy proceeding;
(h) the avoidance of any Lien in favor of the Guarantied Parties or any of
them for any reason;
(i) any bankruptcy, insolvency, reorganization, arrangement, readjustment
of debt, liquidation or dissolution proceeding commenced by or against any Euro Borrower, the
U.S. Borrower or any of any Euro Borrower’s other Subsidiaries, including without limitation,
any discharge of, or bar or stay against collecting, all or any of the Guarantied Obligations (or any
part of them or interest thereon) in or as a result of any such proceeding;
(j) failure by any Guarantied Party to file or enforce a claim against any
Euro Borrower or its estate in any bankruptcy or insolvency case or proceeding;
(k) any action taken by any Guarantied Party that is authorized hereby; or
(l) any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor or any other obligor on any obligations,
other than the payment in full of the Guarantied Obligations.
SECTION 10.04. Waivers. The U.S. Borrower hereby waives diligence,
promptness, presentment, demand for payment or performance and protest and notice of protest,
notice of acceptance and any other notice in respect of the Guarantied Obligations or any part of
them, and any defense arising by reason of any disability or other defense of the Euro Borrower.
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The U.S. Borrower shall not, until the Guarantied Obligations are irrevocably paid in full and the
Commitments have been terminated, assert any claim or counterclaim it may have against any
Euro Borrower or set off any of its obligations to any Euro Borrower against any obligations of
any Euro Borrower to it. In connection with the foregoing, the U.S. Borrower covenants that its
obligations hereunder shall not be discharged, except by complete performance.
SECTION 10.05. Reliance. The U.S. Borrower hereby assumes
responsibility for keeping itself informed of the financial condition of the Euro Borrowers and
any and all endorsers and/or other guarantors of all or any part of the Guarantied Obligations, and
of all other circumstances bearing upon the risk of nonpayment of the Guarantied Obligations, or
any part thereof, that diligent inquiry would reveal, and the U.S. Borrower hereby agrees that no
Guarantied Party shall have any duty to advise it of information known to it regarding such
condition or any such circumstances. In the event any Guarantied Party, in its sole discretion,
undertakes at any time or from time to time to provide any such information to the U.S.
Borrower, such Guarantied Party shall be under no obligation (i) to undertake any investigation
not a part of its regular business routine, (ii) to disclose any information which such Guarantied
Party, pursuant to accepted or reasonable commercial finance or banking practices, wishes to
maintain confidential or (iii) to make any other or future disclosures of such information or any
other information to any Guarantied Party.
SECTION 10.06. Waiver of Subrogation and Contribution Rights. Until
the Guarantied Obligations have been irrevocably paid in full and the Commitments have been
terminated, the U.S. Borrower shall not enforce or otherwise exercise any right of subrogation to
any of the rights of the Guarantied Parties or any part of them against any Euro Borrower or any
right of reimbursement or contribution or similar right against any Euro Borrower by reason of
this Agreement or by any payment made by the U.S. Borrower in respect of the obligations under
this Agreement or the Notes.
SECTION 10.07. Subordination. The U.S. Borrower hereby agrees that
upon the occurrence of any Event of Default described in Section 7.01(e), any Indebtedness of
any Euro Borrower now or hereafter owing to it, whether heretofore, now or hereafter created
(the “Guaranty Subordinated Debt”), is hereby subordinated to all of the obligations under this
Agreement and the Notes, and that, except as expressly permitted by this agreement, the Guaranty
Subordinated Debt shall not be paid in whole or in part until such obligations have been paid in
full and this Guaranty is terminated and of no further force or effect. The U.S. Borrower shall not
accept any payment of or on account of any Guaranty Subordinated Debt at any time in
contravention of the foregoing. Upon the occurrence and during the continuance of an Event of
Default described in Section 7.01(e), each Euro Borrower shall pay to the Administrative Agent
any payment of all or any part of the Guaranty Subordinated Debt and any amount so paid to the
Administrative Agent shall be applied to payment of the obligations under this Agreement and the
Notes as provided herein. Each payment on the Guaranty Subordinated Debt received in
violation of any of the provisions hereof shall be deemed to have been received by the U.S.
Borrower as trustee for the Administrative Agent and the Lenders and shall be paid over to the
Administrative Agent immediately on account of the Guarantied Obligations, but without
otherwise affecting in any manner the U.S. Borrower’s liability under this Article X (Guaranty).
The U.S. Borrower agrees to file all claims against the Euro Borrowers in any bankruptcy or other
proceeding in which the filing of claims is required by law in respect of any Guaranty
Subordinated Debt, and the Administrative Agent shall be entitled to all of U.S. Borrower’s rights
thereunder. If for any reason the U.S. Borrower fails to file such claim at least ten Business Days
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prior to the last date on which such claim should be filed, the U.S. Borrower hereby irrevocably
appoints the Administrative Agent as its true and lawful attorney-in-fact and is hereby authorized
to act as attorney-in-fact in the U.S. Borrower’s name to file such claim or, in the Administrative
Agent’s discretion, to assign such claim to and cause proof of claim to be filed in the name of the
Administrative Agent or its nominee. In all such cases, whether in administration, bankruptcy or
otherwise, the person or persons authorized to pay such claim shall pay to the Administrative
Agent the full amount payable on the claim in the proceeding, and, to the full extent necessary for
that purpose, the U.S. Borrower hereby assigns to the Administrative Agent all of the U.S.
Borrower’s rights to any payments or distributions to which the U.S. Borrower otherwise would
be entitled. If the amount so paid is greater than the U.S. Borrower’s liability hereunder, the
Administrative Agent shall pay the excess amount to the party entitled thereto.
SECTION 10.08. Default; Remedies. The obligations of the U.S.
Borrower hereunder are independent of and separate from the Guarantied Obligations. Upon any
Event of Default, the Administrative Agent may, at its sole election, proceed directly and at once,
without notice, against the U.S. Borrower to collect and recover the full amount or any portion of
the Guarantied Obligations then due, without first proceeding against the defaulting Euro
Borrower or Euro Borrowers or any other guarantor of the Guarantied Obligations, or joining the
defaulting Euro Borrower or Euro Borrowers or any other guarantor in any proceeding against the
U.S. Borrower. At any time after maturity of the Guarantied Obligations, the Administrative
Agent may (unless the Guarantied Obligations have been irrevocably paid in full), without notice
to the U.S. Borrower, appropriate and apply toward the payment of the Guarantied Obligations
(i) any indebtedness due or to become due from any Guarantied Party to the U.S. Borrower and
(ii) any moneys, credits or other property belonging to the U.S. Borrower at any time held by or
coming into the possession of any Guarantied Party or any of its respective Affiliates.
SECTION 10.09. Irrevocability. This Guaranty set forth in this Article X
(Guaranty) shall be irrevocable as to any and all of the Guarantied Obligations until the
Commitments have been terminated and all monetary Guarantied Obligations then outstanding
have been irrevocably repaid in cash.
SECTION 10.10. Setoff. Upon the occurrence and during the continuance
of an Event of Default, each Guarantied Party and each Affiliate thereof may, without notice to
the U.S. Borrower and regardless of the acceptance of any security or collateral for the payment
hereof, appropriate and apply toward the payment of all or any part of the Guarantied Obligations
then due and payable (i) any indebtedness due or to become due from such Guarantied Party or
Affiliate thereof to the U.S. Borrower or any Euro Borrower or Swing Loan Borrower, and
(ii) any moneys, credits or other property belonging to the U.S. Borrower or any Euro Borrower
or Swing Loan Borrower, at any time held by or coming into the possession of such Guarantied
Party or Affiliate thereof (other than trust accounts).
SECTION 10.11. No Marshaling. The U.S. Borrower consents and agrees
that no Guarantied Party or Person acting for or on behalf thereof shall be under any obligation to
marshal any assets in favor of the U.S. Borrower or against or in payment of any or all of the
Guarantied Obligations.
SECTION 10.12. Enforcement; Amendments; Waivers. No delay on the
part of any Guarantied Party in the exercise of any right or remedy arising under this Agreement,
any of the other Loan Documents or otherwise with respect to all or any part of the Guarantied
Obligations or any other guaranty of or security for all or any part of the Guarantied Obligations
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shall operate as a waiver thereof, and no single or partial exercise by any such Person of any such
right or remedy shall preclude any further exercise thereof. Failure by any Guarantied Party at
any time or times hereafter to require strict performance by the U.S. Borrower, any other
guarantor of all or any part of the Guarantied Obligations or any other Person of any of the
provisions, warranties, terms and conditions contained in any of the Loan Documents now or at
any time or times hereafter executed by such Persons and delivered to any Guarantied Party shall
not waive, affect or diminish any right of such person at any time or times hereafter to demand
strict performance thereof and such right shall not be deemed to have been waived by any act or
knowledge of any Guarantied Party, or its Affiliates, unless such waiver is contained in an
instrument in writing, directed and delivered to such Euro Borrower or the U.S. Borrower, as
applicable, specifying such waiver, and is signed by the party or parties necessary to give such
waiver under this Agreement. No waiver of any Event of Default shall operate as a waiver of any
other Event of Default or the same Event of Default on a future occasion, and no action by any
Guarantied Party permitted hereunder shall in any way affect or impair any its rights and
remedies or the obligations of the U.S. Borrower under this Article X (Guaranty). Any
determination by a court of competent jurisdiction of the amount of any principal and/or interest
owing by any Euro Borrower to any Guarantied Party shall be conclusive and binding on the U.S.
Borrower irrespective of whether the U.S. Borrower was a party to the suit or action in which
such determination was made.
[SIGNATURE PAGES FOLLOW]
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date first above written.
The U.S. Borrower
FMC CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
The Euro Borrowers
FMC FINANCE B.V.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory, as
Attorney-in-Fact
FMC CHEMICALS NETHERLANDS
B.V.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory, as
Attorney-in-Fact
FMC ▇▇▇▇▇, ▇.▇.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory, as
Attorney-in-Fact
[SIGNATURE PAGE TO A&R FMC CREDIT AGREEMENT]
#89536643v10
SURETY INTERNATIONAL LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory, as
Attorney-in-Fact
FMC LUXEMBOURG HOLDINGS
S.À ▇.▇.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory, as
Attorney-in-Fact
FMC LUXEMBOURG S.À ▇.▇.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory, as
Attorney-in-Fact
[SIGNATURE PAGE TO A&R FMC CREDIT AGREEMENT]
CITIBANK, N.A.,
as Administrative Agent, Lender, Issuing
Bank and Swing Loan Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
BANK OF AMERICA, N.A.,
as Syndication Agent, Lender, Issuing Bank
and Swing Loan Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
BNP Paribas, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇-Bouvet
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇-Bouvet
Title: Vice President
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
JPMORGAN CHASE BANK, N.A., as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Director
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
Sumitomo Mitsui Banking Corporation, as a
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
TD Bank, N.A., as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
CoBank, ACB, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
Branch Banking and Trust Company, as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Banking Officer
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
Citizens Bank of Pennsylvania, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
COÖPERATIVE RABOBANK U.A., NEW
YORK BRANCH, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
KBC Bank N.V., New York, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
MIZUHO BANK, LTD., as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
PNC BANK, National Association, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
THE BANK OF NEW YORK MELLON,
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Associate
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
▇▇▇▇▇ Fargo Bank, National Association, as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
Lloyds Bank plc, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
Transaction Execution
Category A
P003
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
Transaction Execution
Category A
M004
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
Santander Bank, N.A., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
Bank of China, New York Branch, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
[SIGNATURE PAGE TO SECOND A&R FMC CREDIT AGREEMENT]
THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Director