Exhibit 4.7
SECOND AMENDMENT TO 364-DAY CREDIT AGREEMENT
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THIS AMENDMENT (herein so called) is entered into as of April 25, 2002,
among FMC TECHNOLOGIES, INC., a Delaware corporation ("Borrower"), the Lenders
(herein so called) party to the Credit Agreement (hereinafter defined) and BANK
OF AMERICA, N.A., as Administrative Agent (as defined in the Credit Agreement)
for the Lenders.
Borrower, the Lenders and the Administrative Agent are party to the 364-Day
Credit Agreement dated as of April 26, 2001, as amended by that certain First
Amendment to 364-Day Credit Agreement dated as of May 30, 2001 (as amended, the
"Credit Agreement"), and have agreed, upon the following terms and conditions,
to further amend the Credit Agreement in certain respects. Accordingly, for
valuable and acknowledged consideration, Borrower, the Lenders and the
Administrative Agent agree as follows:
1. Terms and References. Unless otherwise stated in this Amendment, (a)
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terms defined in the Credit Agreement have the same meanings when used in this
Amendment, and (b) references to "Sections", "Articles" and "Exhibits" are to
the Credit Agreement's sections, articles and exhibits.
2. Amendments. The Credit Agreement is amended as follows:
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(a) Section 1.01 is amended to delete the definition of "Maturity
Date" in its entirety and substitute the following definition in lieu
thereof:
"Maturity Date means (a) subject to extension pursuant to Section
2.03, April 24, 2003 or (b) such earlier date upon which the
Commitments may be terminated in accordance with the terms hereof;
provided that, if the Loans are converted to a term loan pursuant to
Section 2.03(d), from and after such conversion, "Maturity Date" shall
mean the first anniversary of the date on which such conversion
occurs."
(b) Section 1.01 is amended to delete the definition of "364-Day
Credit Agreement" in its entirety.
(c) Section 2.03(d) is amended to add the following sentence at the
end thereof:
"If Borrower makes such election to convert the outstanding principal
amount of the Loans on the Maturity Date then in effect to a term
loan, on such date Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share, a
fee equal to 0.25% times the outstanding principal amount of the Loans
so converted."
(d) Schedule 2.01 is entirely amended in the form of, and all
references in the Credit Agreement to Schedule 2.01 are changed to, Amended
Schedule 2.01 attached hereto.
Second Amendment to Credit Agreement - Page 1
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(e) Section 2.08 is entirely amended as follows:
"2.08 Fees. (a) Facility Fee. The Borrower shall pay to the
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Administrative Agent for the account of each Lender in accordance with
its Pro Rata Share, a Facility Fee (herein so called) equal to (i)
prior to the conversion of the outstanding principal amount of the
Loans to a term loan pursuant to Section 2.03(d), the amount set forth
in the definition of Applicable Rate times the actual daily amount of
the Aggregate Commitments, regardless of usage, and (ii) after
conversion of the outstanding principal amount of the Loans to a term
loan pursuant to Section 2.03(d), the amount set forth in the
definition of Applicable Rate times the daily Outstanding Amount. The
Facility Fee shall accrue at all times from the date hereof until the
Outstanding Amount is paid in full and shall be due and payable
quarterly in arrears on the last Business Day of each March, June,
September and December, commencing with the first such date to occur
after the date hereof, and on the date the Outstanding Amount is paid
in full. The Facility Fee shall be calculated quarterly in arrears,
and if there is any change in the Applicable Rate during any quarter,
the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that
such Applicable Rate was in effect. The Facility Fee shall accrue at
all times, including at any time during which one or more of the
conditions in Article IV is not met.
(b) Utilization Fee. The Borrower shall pay to the Administrative
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Agent for the account of each Lender in accordance with its Pro Rata
Share, a Utilization Fee (herein so called) equal to (i) prior to the
conversion of the outstanding principal amount of the Loans to a term
loan pursuant to Section 2.03(d), the amount set forth in the
definition of Applicable Rate times the actual daily Outstanding
Amount of Loans for each day that such Outstanding Amount exceeds 33%
of the Aggregate Commitments, and (ii) after conversion of the
outstanding principal amount of the Loans to a term loan pursuant to
Section 2.03(d), the amount set forth in the definition of Applicable
Rate times the actual daily Outstanding Amount of Loans for each day
that such Outstanding Amount exceeds 33% of the Aggregate Commitments
(assuming that the Aggregate Commitments were still in effect on such
day). The Utilization Fee shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the
Closing Date, and on the date the Outstanding Amount is paid in full.
The Utilization Fee shall be calculated quarterly in arrears, and if
there is any change in the Applicable Rate during any quarter, the
actual daily amount shall be computed and multiplied by the Applicable
Rate separately for each period during such quarter that such
Applicable Rate was in effect. The Utilization Fee shall accrue at all
times, including at any time during which one or more of the
conditions in Article IV is not met."
Second Amendment to Credit Agreement - Page 2
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(f) Section 2.14, reading in its entirety as follows, is added to the
Credit Agreement:
"2.14 Increases of Commitments. The Borrower may from time to
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time request any one or more of the Lenders to increase their
respective Commitments or request other Persons that would be Eligible
Assignees to agree to a Commitment; provided that the Aggregate
Commitments may not exceed $200,000,000. Each increase in the
Aggregate Commitments shall be effected by a Commitment increase
agreement substantially in the form of Exhibit H or a joinder
agreement substantially in the form of Exhibit I, as applicable,
executed by the Borrower, the Administrative Agent and the existing
Lender that has agreed to increase its Commitment or the new Lender
that has agreed to a new Commitment, as the case may be. None of the
Lenders shall be obligated to increase its Commitment. Promptly
following each increase of the Aggregate Commitments pursuant to this
Section, the Administrative Agent shall deliver to the Borrower and
the Lenders an amended Schedule 2.01 that gives effect to such
increase."
(g) Exhibits H and I, reading in their entirety as set forth in
Exhibits H and I attached hereto, are added to the Credit Agreement.
(h) Clause (a) of Section 10.01 is entirely amended as follows:
"(a) except as expressly contemplated by Section 2.03 or Section
2.14, extend or increase the Commitment of any Lender (or reinstate
any Commitment terminated pursuant to Article VIII);"
(i) Clause (e) of Section 10.01 is entirely amended as follows:
"(e) except as expressly contemplated by Section 2.14, change the
Pro Rata Share or Voting Percentage of any Lender;"
3. Conditions Precedent to Effectiveness. This Amendment shall not be
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effective until the Administrative Agent receives (a) counterparts of this
Amendment executed by Borrower, the Lenders and the Administrative Agent, (b)
such evidence as the Administrative Agent may reasonably request to verify that
Borrower is duly incorporated, validly existing and in good standing in its
jurisdiction of incorporation, (c) a certificate signed by a Principal Officer
of Borrower (i) certifying that there has been no event or circumstance since
December 31, 2001, which has had or could reasonably be expected to have a
Material Adverse Effect, (ii) showing the Debt Ratings of Borrower on the date
hereof, and (iii) stating that no amendments have been made or proposed to the
certificate of incorporation or bylaws of Borrower since April 30, 2001 or, if
any such amendments have been made or proposed, attaching true and correct
copies of the certificate of incorporation or bylaws of Borrower, as so amended
or proposed to be amended, and (d) such other documents, instruments and
certificates as the Administrative Agent may reasonably request.
4. Conditions Precedent to Further Borrowing. The obligation of each Lender
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to make any further Loan under the Credit Agreement, after giving effect to this
Amendment, is subject to the satisfaction of the following conditions precedent:
Second Amendment to Credit Agreement - Page 3
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(a) The receipt by the Administrative Agent of a certificate signed by
a Principal Officer of Borrower certifying as to the incumbency of the Principal
Officer of Borrower executing this Amendment, and attaching true and correct
copies of resolutions adopted by the Board of Directors of Borrower authorizing
Borrower to enter into this Amendment and verifying the authority and capacity
of such Principal Officer to execute this Amendment.
(b) The receipt by the Administrative Agent of an opinion of Xxxxxx X.
Xxxxxxx, Deputy General Counsel of Borrower, substantially in the form of
Exhibit A attached hereto.
(c) The receipt by the Administrative Agent of an opinion of Mayer,
Brown, Xxxx & Maw, special New York counsel to Borrower, substantially in the
form of Exhibit B attached hereto.
(d) Upon request of any Lender made through the Administrative Agent,
the receipt by the Administrative Agent of a Note executed by Borrower and
payable to such Lender in a principal amount equal to such Lender's Commitment
(after giving effect to this Amendment), which Note shall be in substitution and
replacement of the Note, if any, executed by Borrower and payable to such Lender
pursuant to Section 4.01(a)(ii) of the Credit Agreement.
5. Representations. Borrower represents and warrants to the Lenders that as
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of the date of this Amendment, (a) the representations and warranties contained
in Article V are true and correct in all material respects except to the extent
that such representations and warranties refer to an earlier date, in which case
they were true and correct in all material respects as of such earlier date, and
(b) no Default or Event of Default has occurred and is continuing.
6. Effect of Amendment. This Amendment is a Loan Document. Except as
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expressly modified and amended by this Amendment, all of the terms, provisions
and conditions of the Loan Documents shall remain unchanged and in full force
and effect. The Loan Documents and any and all other documents heretofore, now
or hereafter executed and delivered pursuant to the terms of the Credit
Agreement are hereby amended so that any reference to the Credit Agreement shall
mean a reference to the Credit Agreement as amended hereby.
7. Counterparts. This Amendment may be executed in any number of
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counterparts and by the parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed to be an original and all of
which taken together shall constitute one and the same instrument.
8. Governing Law. This Amendment shall be governed by and construed in
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accordance with the laws of the State of New York.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.]
Second Amendment to Credit Agreement - Page 4
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EXECUTED as of the date first stated above.
FMC TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Director, Treasury Operations
EXECUTED as of the date first stated above.
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Principal
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Principal
EXECUTED as of the date first stated above.
CREDIT SUISSE FIRST BOSTON, as a Lender
By: /s/ Xxxxx X. Xxxxx /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxx Xxxxx X. Xxxxxx
Title: Director Associate
EXECUTED as of the date first stated above.
COOPERATIVE CENTRALE RAIFFEINSEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND" NEW YORK BRANCH, as a Lender
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: Managing Director
EXECUTED as of the date first stated above.
DEN NORSKE BANK ASA, as a Lender
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: First Vice President
By: /s/ Hans Jorgen Ormar
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Name: Hans Jorgen Ormar
Title: Vice President
EXECUTED as of the date first stated above.
THE ROYAL BANK OF SCOTLAND PLC,
as a Lender
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Senior Vice President
EXECUTED as of the date first stated above.
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH,
as a Lender
By: /s/ Xxxxxx X. Xxxxx III
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Name: Xxxxxx X. Xxxxx III
Title: Associate Director
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Associate Director
EXECUTED as of the date first stated above.
XXXXX FARGO BANK TEXAS, NATIONAL
ASSOCIATION, as a Lender
By: /s/ Xxxx X. Xxxxxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxxxxx
Title: Vice President
EXECUTED as of the date first stated above.
THE BANK OF NEW YORK, as a Lender
By: /s/ Xxxx X'Xxxxxx
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Name: Xxxx X'Xxxxxx
Title: Vice President
EXECUTED as of the date first stated above.
DANSKE BANK, as a Lender
By: /s/ X. X. Xxxxxxxx
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Name: X. X. Xxxxxxxx
Title: Vice President
By: /s/ Xxxx X. X'Xxxxx
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Name: Xxxx X. X'Xxxxx
Title: Assistant General Manager
EXECUTED as of the date first stated above.
WACHOVIA BANK, N.A., as a Lender
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Director
EXECUTED as of the date first stated above.
THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Second Vice President
EXECUTED as of the date first stated above.
MIZUHO CORPORATE BANK LTD., as a Lender
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Joint General Manager and Group Head
EXECUTED as of the date first stated above.
NATIONAL CITY BANK,
as a Lender
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
Title: Senior Vice President
EXECUTED as of the date first stated above.
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ R. Xxxxxxx Xxxxxx
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Name: R. Xxxxxxx Xxxxxx
Title: Vice President
