EXECUTION VERSION #89514481v17 ═══════════════════════════════════════ $1,500,000,000 TERM LOAN 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...
EXECUTION VERSION
#89514481v17
═══════════════════════════════════════
$1,500,000,000
TERM LOAN 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 PARTY HERETO
and
CITIBANK, N.A.,
as Administrative Agent,
* * *
CITIGROUP GLOBAL MARKETS INC.
and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX 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
═══════════════════════════════════════
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS ......................................................... 1
SECTION 1.01 Certain Defined Terms ........................................................................... 1
SECTION 1.02 Computation of Time Periods .............................................................. 22
SECTION 1.03 Accounting Terms and Principles ........................................................ 22
SECTION 1.04 Certain Terms ....................................................................................... 23
ARTICLE II AMOUNTS AND TERMS OF THE LOANS ......................................................... 24
SECTION 2.01 The Loans ............................................................................................. 24
SECTION 2.02 [Intentionally Deleted] ......................................................................... 24
SECTION 2.03 [Intentionally Deleted] ......................................................................... 24
SECTION 2.04 [Intentionally Deleted] ......................................................................... 24
SECTION 2.05 Fees ...................................................................................................... 24
SECTION 2.06 Termination and Reductions of the Commitments .............................. 25
SECTION 2.07 Repayment ........................................................................................... 25
SECTION 2.08 Interest .................................................................................................. 26
SECTION 2.09 Interest Rate Determinations ................................................................ 26
SECTION 2.10 Prepayments ......................................................................................... 27
SECTION 2.11 Payments and Computations ................................................................ 27
SECTION 2.12 Taxes .................................................................................................... 29
SECTION 2.13 Sharing of Payments, Etc ..................................................................... 33
SECTION 2.14 Conversion or Continuation of Loans .................................................. 33
SECTION 2.15 [Intentionally Deleted] ......................................................................... 34
SECTION 2.16 Defaulting Lender ................................................................................ 34
SECTION 2.17 Acknowledgment and Consent to Bail-In of EEA Financial
Institutions ............................................................................................ 35
ARTICLE III MAKING THE LOANS ......................................................................................... 36
SECTION 3.01 Making the Loans................................................................................. 36
SECTION 3.02 [Intentionally Deleted] ......................................................................... 37
SECTION 3.03 [Intentionally Deleted] ......................................................................... 37
SECTION 3.04 [Intentionally Deleted] ......................................................................... 37
SECTION 3.05 Increased Costs .................................................................................... 38
SECTION 3.06 Illegality ............................................................................................... 39
SECTION 3.07 Reasonable Efforts to Mitigate ............................................................ 40
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SECTION 3.08 Right to Replace Affected Person or Lender ....................................... 40
SECTION 3.09 Use of Proceeds .................................................................................... 40
ARTICLE IV CONDITIONS OF LENDING ............................................................................... 40
SECTION 4.01 Conditions Precedent to Effective Date ............................................... 41
SECTION 4.02 Conditions Precedent to Closing Date ................................................. 41
SECTION 4.03 Availability .......................................................................................... 43
ARTICLE V REPRESENTATIONS AND WARRANTIES ....................................................... 43
SECTION 5.01 Corporate Existence; Compliance with Law ........................................ 43
SECTION 5.02 Corporate Power; Authorization; Enforceable Obligations ................. 44
SECTION 5.03 Financial Statements ............................................................................ 45
SECTION 5.04 Material Adverse Change ..................................................................... 45
SECTION 5.05 Litigation .............................................................................................. 45
SECTION 5.06 Taxes .................................................................................................... 45
SECTION 5.07 Full Disclosure ..................................................................................... 45
SECTION 5.08 Investment Company Act ..................................................................... 46
SECTION 5.09 ERISA .................................................................................................. 46
SECTION 5.10 Environmental Matters ......................................................................... 46
SECTION 5.11 Ownership of Properties; Liens ............................................................ 47
SECTION 5.12 Sanctions .............................................................................................. 47
SECTION 5.13 Anti-Corruption Laws; Anti-Money Laundering Laws ....................... 47
SECTION 5.14 Solvency ............................................................................................... 47
ARTICLE VI COVENANTS OF THE COMPANY .................................................................... 48
SECTION 6.01 Financial Covenants ............................................................................. 48
SECTION 6.02 Reporting Covenants ............................................................................ 49
SECTION 6.03 Affirmative Covenants ......................................................................... 52
SECTION 6.04 Negative Covenants ............................................................................. 53
ARTICLE VII EVENTS OF DEFAULT ...................................................................................... 56
SECTION 7.01 Events of Default ................................................................................. 56
ARTICLE VIII THE ADMINISTRATIVE AGENT .................................................................... 58
SECTION 8.01 Authorization and Action ..................................................................... 58
SECTION 8.02 Reliance, Etc ........................................................................................ 58
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SECTION 8.03 The Agents and their Affiliates as Lenders .......................................... 59
SECTION 8.04 Lender Credit Decision ........................................................................ 59
SECTION 8.05 Indemnification .................................................................................... 59
SECTION 8.06 Successor Administrative Agent .......................................................... 59
SECTION 8.07 No Other Duties, Etc ............................................................................ 60
ARTICLE IX MISCELLANEOUS ............................................................................................... 60
SECTION 9.01 Amendments, Etc ................................................................................. 60
SECTION 9.02 Notices, Etc .......................................................................................... 61
SECTION 9.03 No Waiver; Remedies .......................................................................... 64
SECTION 9.04 Costs and Expenses .............................................................................. 64
SECTION 9.05 Rights of Set-off; Payments Set Aside ................................................. 65
SECTION 9.06 Binding Effect ...................................................................................... 66
SECTION 9.07 Assignments and Participations ........................................................... 66
SECTION 9.08 [Intentionally Deleted] ......................................................................... 70
SECTION 9.09 Governing Law .................................................................................... 70
SECTION 9.10 Execution in Counterparts .................................................................... 70
SECTION 9.11 Confidentiality ..................................................................................... 71
SECTION 9.12 Submission to Jurisdiction; Service of Process .................................... 71
SECTION 9.13 WAIVER OF JURY TRIAL ................................................................ 72
SECTION 9.14 USA PATRIOT Act ............................................................................. 72
SECTION 9.15 Entire Agreement ................................................................................. 72
SECTION 9.16 No Fiduciary Duty ............................................................................... 72
ARTICLE X GUARANTY ........................................................................................................... 73
SECTION 10.01 Guaranty ............................................................................................... 73
SECTION 10.02 Authorization; Other Agreements ........................................................ 74
SECTION 10.03 Guaranty Absolute and Unconditional ................................................. 75
SECTION 10.04 Waivers ................................................................................................ 76
SECTION 10.05 Reliance ................................................................................................ 76
SECTION 10.06 Waiver of Subrogation and Contribution Rights ................................. 76
SECTION 10.07 Subordination ....................................................................................... 76
SECTION 10.08 Default; Remedies ................................................................................ 77
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SECTION 10.09 Irrevocability ........................................................................................ 77
SECTION 10.10 Setoff .................................................................................................... 77
SECTION 10.11 No Marshaling ..................................................................................... 78
SECTION 10.12 Enforcement; Amendments; Waivers .................................................. 78
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SCHEDULES AND EXHIBITS
SCHEDULES
Schedule I - Commitments
Schedule II - Material Subsidiaries
Schedule 5.02 - Consents
Schedule 5.05 - Litigation
Schedule 5.10 - Environmental Matters
Schedule 6.04(a) - Existing Liens
EXHIBITS
Exhibit A - Form of Note
Exhibit B-1 - Form of Notice of 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 D - Form of Euro Borrower Designation
Exhibit E - Form of Solvency Certificate
TERM LOAN AGREEMENT
FMC CORPORATION
#89514481v17
TERM LOAN AGREEMENT
TERM LOAN AGREEMENT (this “Agreement”), dated as of May 2, 2017,
among FMC CORPORATION, a Delaware corporation (“U.S. Borrower”) and the Euro
Borrowers (as defined below), in each case, party hereto from time to time (the Euro Borrowers
together with the U.S. Borrower, collectively the “Borrowers”), the lenders 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, the Borrowers have requested that the Lenders make available to the
Borrowers a senior unsecured term loan facility in order to consummate the Acquisition (as
defined below) and to fund related taxes, fees and expenses pursuant to the Acquisition
Agreement (as defined below);
WHEREAS, the Borrowers shall concurrently with the execution of this
Agreement by the parties hereto on the Effective Date (as defined below) amend and restate the
Borrowers’ existing senior unsecured revolving credit facility; and
WHEREAS, the Lenders are willing to make available to the Borrowers such
senior unsecured term loan facility upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties hereto agree 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.
“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.
“Acquisition Agreement” means that certain Transaction Agreement, dated as of
March 31, 2017, by and between the U.S. Borrower and the Seller.
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“Acquisition Agreement Representations” means representations made by the
Seller with respect to the Acquired Business in the Acquisition Agreement as are material to the
interests of the Lenders, but only to the extent that the U.S. Borrower has (or its Subsidiary has)
the right to terminate its (or such Subsidiary’s) obligations under the Acquisition Agreement, or
to decline to consummate the Acquisition pursuant to the Acquisition Agreement, as a result of a
breach of such representations in the Acquisition Agreement.
“Administrative Agent” has the meaning specified in the recital of parties to this
Agreement.
“Administrative Agent’s Account” means 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.
“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.
“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 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:
PUBLIC DEBT RATING
S&P/XXXXX’X
EUROCURRENCY
RATE
BASE RATE
Level 1
A- / A3 or higher
1.000% 0.000%
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PUBLIC DEBT RATING
S&P/XXXXX’X
EUROCURRENCY
RATE
BASE RATE
Xxxxx 0
XXXx / Xxx0
1.125% 0.125%
Xxxxx 0
XXX / Xxx0
1.250% 0.250%
Xxxxx 0
XXX- / Xxx0
1.500% 0.500%
Xxxxx 0
Xxxxx xxxx Xxxxx 0
1.750% 0.750%
“Applicable Percentage” means, as of any date, the applicable percentage set
forth below under the Commitment Fee column based upon the Public Debt Rating in effect on
such date:
PUBLIC DEBT RATING
S&P/XXXXX’X
COMMITMENT
FEE
Level 1
A- / A3 or higher
0.090%
Xxxxx 0
XXXx / Xxx0
0.125%
Xxxxx 0
XXX / Xxx0
0.150%
Xxxxx 0
XXX- / Xxx0
0.200%
Xxxxx 0
Xxxxx xxxx Xxxxx 0
0.250%
“Arrangers” means CGMI and Merrill, in their respective capacities as joint lead
arrangers.
“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.
“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
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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 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 borrowing consisting of simultaneous Loans of the same
Type made by each of the Lenders pursuant to Section 2.01(a).
“Bridge Commitment Letter” means the commitment letter in respect of the
unsecured bridge term loan facility described therein, dated as of March 31, 2017, between the
U.S. Borrower and CGMI.
“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.
“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.
“CGMI” means Citigroup Global Markets Inc.
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“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.
“Closing Date” has the meaning set forth in Section 4.02.
“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 reduced as
expressly provided herein (including, without limitation, pursuant to Sections 2.06, 3.08 and
9.07). As of the date hereof, the initial amount of the total Commitment is $1,500,000,000.
“Commitment Termination Date” means 11:59 p.m., New York City time, on
December 31, 2017 if the Closing Date shall not have occurred on or prior thereto; provided,
however, that if the “Outside Date” (as defined in the Acquisition Agreement as of the date
thereof) is extended to a later date pursuant to the definition thereof), the Commitment
Termination Date shall be automatically extended to 11:59 p.m., New York City time, on such
extended “Outside Date” (and the U.S. Borrower shall provide prompt written notice of such
extension to the Administrative Agent, which shall promptly notify the Lenders); provided,
further, that the Commitment Termination Date shall not extend beyond 11:59 p.m., New York
City time, on the one year anniversary of March 31, 2017.
“Confidential Information” has the meaning set forth in Section 9.11 hereto.
“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
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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 Loans of
one Type into 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.
“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;
(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
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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
(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.
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“Default Interest” has the meaning specified in Section 2.08(b).
“Defaulting Lender” means at any time on or prior to the Closing Date, subject to
Section 2.16(e), (i) any Lender that has failed to comply with its obligations under this
Agreement to make a 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 or the U.S. Borrower 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 and the Lenders.
“Designated Borrower” means any Euro Borrower designated pursuant to a Euro
Borrower Designation.
“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.
“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.
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“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
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.
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“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 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) prior to the Closing Date, any Defaulting Lender.
“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
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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
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 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 Luxembourg Holdings S.à x.x.
(previously named “SHCO 91 S.à x.x.”), a private limited liability company (société à
responsabilité limitée) having its registered office at 0, xxx Xxxxxx Xxxxxxx, X-0000 Xxxxxxxxxx,
Xxxxx-Xxxxx of Luxembourg, registered with the Luxembourg Trade and Companies Register
under number B 189601, FMC Luxembourg S.à x.x. (previously named “SHCO 92 S.à x.x.”), a
private limited liability company (société à responsabilité limitée) having its registered office at 0,
xxx Xxxxxx Xxxxxxx, X-0000 Xxxxxxxxxx, Xxxxx-Xxxxx of Luxembourg, registered with the
Luxembourg Trade and Companies Register under number B 189617 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”.
“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 which bears interest as provided in
Section 2.08(a)(ii).
“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.
“Facility” means the Commitments and the provisions herein relating to the
Loans.
“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
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
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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.
“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 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.
“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 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.
“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).
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“Guaranty” means the U.S. Borrower’s guaranty of the Guarantied Obligations of
the Euro 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.
“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.
“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
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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:
(i) the U.S. Borrower may not select any Interest Period that ends
after the Maturity Date;
(ii) Interest Periods commencing on the same date for Loans
comprising part of the same 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
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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.
“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.
“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 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 the term loans made by the Lenders to the Borrowers pursuant to
this Agreement.
“Local Time” means New York City time.
“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.
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“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.
“Maturity Date” means the date that is the five year anniversary of the Closing
Date (or if such day is not a Business Day, the next preceding Business Day) or, if earlier, the
date of termination in whole of the Commitments pursuant to the first sentence of Section 2.06 or
pursuant to Section 7.01.
“Merrill” means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, a
Delaware corporation (or any other registered broker-dealer wholly-owned by Bank of America
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 Xxxxx’x 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.
“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.
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“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 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 Loans made by such Lender to such Borrower.
“Notice of Borrowing” has the meaning specified in Section 3.01(a).
“Obligations” means principal of and interest on the Loans made by each Lender
to, and the Notes held by each Lender of, each Borrower and all other amounts from time to time
owing to the Lenders or the Administrative Agent by any Borrower under this Agreement
pursuant hereto, to its Euro Borrower Designation, 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).
“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.
“Participation Agreement” means a loan participation agreement in substantially
the form of Exhibit C-2 hereto.
“Patriot Act” has the meaning specified in Section 9.14.
“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.
“Portfolio Interest Eligible Non-Bank” has the meaning specified in Section
2.12(e).
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“Principal Repayment Date” means the first Business Day of each April, July,
October and January following the Closing Date.
“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 5
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.
“Qualifying Bank Financing” means a bank facility which is subject to
conditions to availability that are not materially more restrictive than the conditions to availability
of the unsecured bridge term facility described in the Bridge Commitment Letter.
“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).
“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, at any time (a) if there are Loans outstanding,
Lenders holding Loans representing more than 50% of the aggregate amount of all Loans at such
time or (b) if there are no Loans outstanding, Lenders holding more than 50% of the sum of the
aggregate amount of the Commitments; 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 having such amount of the Commitments or (ii) determining the aggregate unpaid
principal amount of the Loans or the total Commitments.
“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.
“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.
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“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.
“Solvent” means with respect to the Borrowers and their Subsidiaries, (i) the sum
of the debt (including contingent liabilities) of the Borrowers and their Subsidiaries, taken as a
whole, does not exceed the fair value of the present assets of the Borrowers and their
Subsidiaries, taken as a whole, (ii) the present fair saleable value of the assets of the Borrowers
and their Subsidiaries, taken as a whole, is not less than the amount that will be required to pay
the probable liabilities (including contingent liabilities) of the Borrowers and their Subsidiaries,
taken as a whole, on their debts as they become absolute and matured, (iii) the capital of the
Borrowers and their Subsidiaries, taken as a whole, is not unreasonably small in relation to the
business of the Borrowers or their Subsidiaries, taken as a whole, and (iv) the Borrowers and their
Subsidiaries, taken as a whole, do not intend to incur, or believe that they will incur, debts
(including current obligations and contingent liabilities) beyond their ability to pay such debts as
they mature in the ordinary course of business. For the purposes hereof, the amount of any
contingent liability at any time shall be computed as the amount that, in light of all of the facts
and circumstances existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
“SPC” has the meaning specified in Section 9.07(a).
“Specified Default” means any Event of Default under Sections 7.01(a), 7.01(c)
(solely with respect to breaches of Section 6.03(a) (as to the U.S. Borrower) and Sections 6.04 (b)
and (c) thereto), 7.01(e) (with respect to any Borrower) and 7.01(j).
“Specified Representations” means the representations and warranties in Sections
5.02(a)(i), 5.02(a)(ii), 5.02(a)(iii)(A), 5.02(a)(iii)(B) (solely in respect of Regulations T, U and X
of the Federal Reserve Board), 5.02(a)(iii)(C) (limited to any agreement or instrument with
respect to Indebtedness in a principal amount in excess of $50,000,000 (tested pro forma for the
Transactions)), 5.02(b), 5.08, 5.12 (with respect to the use of proceeds of the Facility), 5.13 (other
than in respect of compliance with the Patriot Act, with respect to the use of proceeds of the
Facility) and 5.14.
“Stock” means shares of capital stock (whether denominated as common stock or
preferred stock), beneficial, partnership or membership interests, participations or other
equivalents (regardless of how designated) of or in a corporation, partnership, limited liability
company or equivalent entity, whether voting or non-voting.
“Stock 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
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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.
“Syndication Agent” means BofA, as Syndication Agent.
“Taxes” has the meaning specified in Section 2.12(a).
“Transactions” means the Acquisition, the execution, delivery and performance
by the Borrowers of this Agreement and the other Loan Documents to which they are party, the
borrowing of Loans, the use of the proceeds thereof, the payment of the taxes, fees and expenses
incurred in connection with the Acquisition and the other transactions contemplated by or related
to the foregoing.
“Type” means a Base Rate Loan or a Eurocurrency Rate Loan.
“UCC” means the Uniform Commercial Code in effect in the State of New York.
“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.
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(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.
(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” and “Administrative Agent” include, without
limitation, their respective successors.
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ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
SECTION 2.01 The Loans.
(a) Each Lender severally agrees, on the terms and conditions hereinafter set
forth, to make Loans on the Closing Date to the applicable Borrowers in an amount equal to such
Lender’s Commitment in effect immediately prior to making such Loan. All Loans shall be
denominated in Dollars.
(b) Each Borrowing shall be in an aggregate amount of not less than
$1,000,000 and integral multiples of $500,000 in excess thereof.
(c) Each Borrowing shall consist of Loans of the same Type made on the
same day by the Lenders ratably according to their respective Commitments.
(d) Any amount borrowed under Section 2.01(a) and subsequently repaid or
prepaid may not be reborrowed.
(e) Each Lender may, at its option, make any Loan available to any Euro
Borrower by causing any foreign or domestic branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation of such Euro
Borrower to repay such 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 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
(f) 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 [Intentionally Deleted].
SECTION 2.04 [Intentionally Deleted].
SECTION 2.05 Fees.
(a) Commitment Fees. The U.S. Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee on the average daily
unused amount of such Lender’s Commitment from the later of (i) the Effective Date and (ii)
May 30, 2017, until the date on which all Commitments are terminated (including, without
limitation, by way of funding of the Loans on the Closing Date), payable in Dollars in arrears on
each Quarterly Date during the term of such Lender’s Commitment, and on the date on which all
Commitments are terminated (including, without limitation, by way of funding of the Loans on
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the Closing Date), at a rate per annum equal to the Applicable Percentage in effect from time to
time for commitment fees.
(b) 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 clause (a) above 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).
(c) 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 Termination and Reductions of the
Commitments.
(a) Optional Termination and Reduction of the Commitments. The U.S.
Borrower shall have the right at any time prior to the Closing Date, upon written notice to the
Administrative Agent, to terminate in whole or reduce ratably in part the respective Commitments
of the Lenders, provided 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. Any termination or
reduction of the Commitments pursuant to this Section 2.06 shall be permanent.
(b) Mandatory Termination and Reduction of the Commitments. Unless
previously terminated pursuant to this Agreement, all undrawn Commitments then outstanding
shall terminate immediately and without any further action on the earliest to occur (as applicable)
of (i) the Closing Date (after giving effect to the funding, if any, of the Loans on the Closing
Date), (ii) unless the Closing Date shall have occurred at or before such time, 11:59 p.m., New
York City time, on the Commitment Termination Date, (iii) the consummation of the Acquisition
without the use of the Loans and (iv) the date of termination of the U.S. Borrower’s (or its
applicable Subsidiary’s) obligation to consummate the Acquisition pursuant to the Acquisition
Agreement or the announcement by the U.S. Borrower of its abandonment of the Acquisition.
The U.S. Borrower shall deliver prompt written notice of any mandatory
termination or reduction of the Commitments.
SECTION 2.07 Repayment.
(a) Subject to Section 2.16(a), each Borrower shall repay to the
Administrative Agent for the account of each Lender the outstanding Loans made to such
Borrower as follows: (i) on each Principal Repayment Date occurring after the third anniversary
of the Closing Date and through the fourth anniversary of the Closing Date, 5.0% of the aggregate
principal amount of the Loans made on the Closing Date, (ii) on each Principal Repayment Date
occurring after the fourth anniversary of the Closing Date and through the fifth anniversary of the
Closing Date, 7.5% of the aggregate principal amount of the Loans made on the Closing Date and
(iii) on the Maturity Date, 100% of principal amount of the Loans outstanding on the Maturity
Date.
(b) 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
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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)(ii). 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)(ii):
(i) Base Rate Loans. If such Loan is a Loan which 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 each Quarterly Date while such Base Rate
Loan is outstanding, and on the date such Base Rate Loan shall be paid in full.
(ii) 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
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) and (ii).
(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
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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 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 Borrowing with respect
to such Eurocurrency Rate shall be converted to a Base Rate Loan, such Notice of 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.
SECTION 2.10 Prepayments.
(a) The Borrowers shall have no right to prepay any principal amount of any
Loan other than as provided in subsection (b) below.
(b) Each Borrower may without premium or penalty, upon at least three
Business Days’ prior notice 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
Borrowing 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
shall be in an aggregate principal amount not less than $10,000,000 or an integral multiple of
$1,000,000 in excess thereof 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, 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. Each prepayment
pursuant to this Section 2.10(b) shall be applied to scheduled repayments of the Loans as directed
by the Borrower.
SECTION 2.11 Payments and Computations.
(a) All payments of principal of and interest on each Loan shall be made in
Dollars.
(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, not later than 11:00 A.M. (New York City time), on the day
when due.
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(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 2.12 or 3.05 or as contemplated by Section
2.05(b) 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 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. 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 commitment fees 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 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 or commitment fees, 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) [Intentionally Deleted].
(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
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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)(ii). 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”). 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
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
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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
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
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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
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.
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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.
(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
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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 Loans made by it (other than as expressly provided herein) in
excess of its ratable share of payments on account of the Loans obtained by all such Lenders,
such Lender shall forthwith purchase from such other Lenders such participations in the 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 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 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 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 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 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
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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 Loans, then, upon the expiration of the
applicable Interest Period, such Loans shall be automatically Converted to Base Rate Loans.
Each Notice of Conversion or Continuation shall be irrevocable.
(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 [Intentionally Deleted].
SECTION 2.16 Defaulting Lender.
(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’s Commitment 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 amount
which a Non-Defaulting Lender will be required to advance 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 or any other Lender may have against such Defaulting Lender,
or cause such Defaulting Lender to be a Non-Defaulting Lender; and
(ii) 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(b)) 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 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 against such Defaulting Lender, ratably among them in
accordance with the amounts of such interest then due and payable to them, third to the
payment of fees then due and payable to the Non-Defaulting Lenders hereunder as a
result of such Defaulting Lender’s breach of its obligations under this Agreement as
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determined in any judgment of a court of competent jurisdiction obtained by any Lender
against such Defaulting Lender, ratably among them in accordance with the amounts of
such fees then due and payable to them, fourth 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 against such Defaulting
Lender, fifth 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) [Intentionally Deleted].
(c) [Intentionally Deleted].
(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
Borrower, the Administrative Agent or any Lender may have against such Defaulting Lender.
(e) Cure. If the U.S. Borrower and Administrative Agent 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 Acknowledgment 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
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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
(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
SECTION 3.01 Making the Loans.
(a) Each 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
Borrowing, and (y) 11:00 A.M. (New York City time) on the day of a Base Rate 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
Borrowing (a “Notice of 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 Borrowing (which shall be a
Business Day), (ii) Type of Loan comprising such Borrowing, (iii) aggregate amount of such
Borrowing, (iv) in the case of a Borrowing comprised of Eurocurrency Rate Loans, the Interest
Period for each such 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 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 Borrowing), make available
for the account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent’s Account 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.
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(b) Anything in subsection (a) above to the contrary notwithstanding, the
U.S. Borrower may not select Eurocurrency Rate Loans for any Borrowing if the aggregate
amount of such Borrowing is less than $1,000,000.
(c) Subject to Sections 2.09(c) and 3.06, each Notice of Borrowing shall be
irrevocable and binding on the U.S. Borrower and the relevant Borrower; provided that each
Notice of Borrowing may be conditioned upon the substantially concurrent consummation of the
Acquisition, subject to the immediately following sentence. In the case of any Borrowing by a
Borrower which the related Notice of 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 result of any failure to fulfill on or before the date specified
in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article IV
(Conditions of Lending) (including, in the case of a conditional Notice of Borrowing, the failure
of the Acquisition to be consummated substantially concurrently), 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 Loan
to be made by such Lender as part of such Borrowing when such 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 Borrowing is required to be made that such Lender will not make
available to the Administrative Agent such Lender’s ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available to the
Administrative Agent on the date of such 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 Loans comprising such 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 Loan as part of such Borrowing for
purposes of this Agreement.
(e) The failure of any Lender to make the Loan to be made by it as part of
any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its
Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any
other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
SECTION 3.02 [Intentionally Deleted].
SECTION 3.03 [Intentionally Deleted].
SECTION 3.04 [Intentionally Deleted].
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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 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 hereunder and other commitments of this type, then, within ten Business Days after
written demand by such Lender (with a copy of such 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 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
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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 Xxxx-Xxxxx Xxxx 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 3.06 Illegality. Notwithstanding any other provision
of this Agreement, if any Lender 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 its
Eurocurrency Lending Office to perform its obligations hereunder to make Eurocurrency Rate
Loans or to fund or maintain Eurocurrency Rate Loans, then, subject to the provisions of Section
3.08, (i) the obligation of such Lender to make Eurocurrency Rate Loans hereunder (including,
without limitation, to any Borrower who is also a Foreign Subsidiary) 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 (iii) such Lender 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 shall review the
circumstances giving rise to such suspension at least weekly and shall notify the U.S. Borrower,
the Administrative Agent 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.
Notwithstanding anything to the contrary, for purposes of this Section 3.06, each
of (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, and all requests, rules,
guidelines and directives promulgated thereunder and (ii) all requests, rules, guidelines or
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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
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 agrees that, to the extent reasonably possible to such Lender, 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 further agrees to notify the U.S. Borrower promptly, but in any
event within five Business Days, after such Lender learns of the circumstances giving rise to such
a right to payment or 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. 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), shall agree, as of such date, to purchase for cash and at par the
Loans of the Affected Person, pursuant to an Assignment and Acceptance and to become a
Lender 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 and payments owing under Section
9.04(c).
SECTION 3.09 Use of Proceeds. The proceeds of the Loans
shall be available (and each Borrower agrees that it shall use such proceeds) to finance the
Acquisition and the other Transactions; provided that neither any Lender nor the Administrative
Agent shall have any responsibility for the use of any of the proceeds of Loans.
ARTICLE IV
CONDITIONS OF LENDING
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SECTION 4.01 Conditions Precedent to Effective Date. The
Lenders’ Commitments shall not become effective hereunder until the date (the “Effective Date”)
on which each of the following conditions shall be satisfied (or waived in accordance with
Section 9.01) on or prior to the Commitment Termination Date:
(a) The Administrative Agent shall have received 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) 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.
(iii) 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.
(b) The Lenders, the Administrative Agent and the Arrangers shall have
received all fees required to be paid and due on the Effective Date and all expenses for which
invoices have been presented at least three Business Days prior to the Effective Date (or such
later date as the U.S. Borrower may agree), on or prior to the Effective Date (including, without
limitation, amounts then payable under the Fee Letter).
(c) The lead arranger under the Bridge Commitment Letter shall have
received a certificate of an officer of the U.S. Borrower confirming that this Agreement
constitutes a Qualifying Bank Financing for the purposes of the Bridge Commitment Letter.
SECTION 4.02 Conditions Precedent to Closing Date. The
obligation of each Lender to make a Loan shall not become effective until the date (the “Closing
Date”) on which each of the following conditions shall be satisfied (or waived in accordance with
Section 9.01) on or prior to the Commitment Termination Date:
(a) (A) Except (i) as disclosed in the Descartes Disclosure Schedule (as
defined in the Acquisition Agreement) (provided that the disclosure of any matter in any section
in the Descartes Disclosure Schedule shall be deemed to have been disclosed in any other section
in the Descartes Disclosure Schedule to which the applicability of such disclosure is reasonably
apparent on its face) and (ii) in connection with or in preparation for the Acquisition and the other
transactions contemplated by the Acquisition Agreement, from and after December 31, 2016 until
the date of the Acquisition Agreement, there has not been, nor has there occurred, any event,
circumstance, change, development or effect that constitutes an Ag Business Material Adverse
Effect (as defined in the Acquisition Agreement as in effect on the date thereof) and (B) between
the date of the Acquisition Agreement and the Closing Date, no change or event shall have
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occurred that has had or would constitute an Ag Business Material Adverse Effect (as defined in
the Acquisition Agreement as in effect on the date thereof).
(b) The Effective Date shall have occurred.
(c) The Administrative Agent shall have received copies of any Notes
requested by any Lender and the other Loan Documents, in each case, executed by each party
thereto.
(d) (i) The Acquisition shall have been, or substantially concurrently with
the Closing Date shall be, consummated in accordance with the terms of the Acquisition
Agreement without giving effect to any amendment, supplement or other modification by the
U.S. Borrower or any of its Subsidiaries or any consent or waiver by the U.S. Borrower or any of
its Subsidiaries, in each case that is materially adverse to the interests of the Lenders without the
Administrative Agent’s prior written consent (such consent not to be unreasonably withheld or
delayed) (provided that any increase or reduction of the purchase price for the Acquisition of (x)
greater than 10% shall, without limitation, be deemed materially adverse to the interests of the
Lenders and (y) equal to or less than 10% shall, without limitation, be deemed not materially
adverse to the interests of the Lenders).
(e) The Arrangers shall have received audited consolidated balance sheets
and related statements of income, stockholders’ equity and cash flows of the U.S. Borrower for
the last three full fiscal years ended at least 90 days prior to the Closing Date, and unaudited
consolidated balance sheets and related statements of income, stockholders’ equity and cash
flows of the U.S. Borrower for each subsequent fiscal quarterly interim period or periods (other
than the fourth quarter of any fiscal year) ended at least 45 days prior to the Closing Date (it
being understood that, with respect to such financial information for each such fiscal year and
subsequent interim period, such condition shall be deemed satisfied through the filing by the U.S.
Borrower of its annual report on Form 10-K or quarterly report on Form 10-Q with respect to
such fiscal year or interim period). The Arrangers hereby acknowledge receipt of all financial
statements that have been publicly filed prior to the date hereof by the U.S. Borrower in its annual
reports on Form 10-K or quarterly reports on Form 10-Q.
(f) The Lenders, the Administrative Agent and the Arrangers shall have
received, or substantially simultaneously with the Closing Date shall receive, all fees and
expenses required to be paid and due on or before the Closing Date for which invoices have been
presented at least two Business Days prior to the Closing Date (including, without limitation,
amounts then payable pursuant to Section 2.05(a)).
(g) The Administrative Agent shall have received (in each case dated as of
the Closing Date): (i) a Borrowing Notice in accordance with Section 3.01(a), (ii) an officer’s
certificate signed by a senior officer of the U.S. Borrower that (x) there has been no change to the
matters previously certified pursuant to Section 4.01(a)(ii)- (iii) (or otherwise providing updates to
such certifications) and (y) that each of the conditions specified in this Section 4.02 have been
satisfied as of the Closing Date, (iii) a certificate signed by the chief financial officer or other
senior executive officer of the U.S. Borrower certifying the solvency, after giving effect to the
Transactions, of the U.S. Borrower and its Subsidiaries on a consolidated basis, which shall be
substantially in the form attached hereto as Exhibit E and (iv) a favorable opinion of (x) Xxxxxx,
Xxxxx & Bockius LLP, U.S., counsel to the Borrowers and (y) as applicable, certain local counsel
to each of the Euro Borrowers, in each case, addressed to the Administrative Agent and the
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Lenders 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.
(h) The Administrative Agent shall have received at least three Business
Days prior to the Closing 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 in writing by
any of the Administrative Agent and the Arrangers at least 10 Business Days prior to the Closing
Date.
(i) (i) There shall exist no Specified Default and (ii) each of the Acquisition
Agreement Representations shall be true and correct and each of the Specified Representations
shall be true and correct in all material respects (except any Specified Representations that are
qualified by materiality, which shall be true and correct in all respects), in each case, at the time
of, and after giving effect to, the making of the Loans on the Closing Date.
SECTION 4.03 Availability. During the period from and
including the Effective Date and to and including the earlier of the termination of the
Commitments and the funding of the Loans hereunder on the Closing Date, and notwithstanding
(a) that any representation given as a condition to the Effective Date (excluding, for the avoidance
of doubt, the Specified Representations and Acquisition Agreement Representations solely as of
the Closing Date) was incorrect, (b) any failure by any Borrower to comply with Sections 6.01,
6.03 and 6.04, (c) any provision to the contrary in any Loan Documents, (d) that any condition to
the Effective Date may subsequently be determined not to have been satisfied or (e) the
occurrence of any Event of Default (other than the occurrence of a Specified Default solely as of
the Closing Date), neither the Administrative Agent nor any Lender shall be entitled to (i) cancel
any of its Commitments under this Agreement, (ii) rescind, terminate or cancel this Agreement or
any other Loan Documents or any of its Commitments under this Agreement or exercise any right
or remedy under this Agreement, to the extent to do so would prevent, limit or delay the making
of its Loan hereunder, (iii) refuse to participate in making its Loan or (iv) exercise any right of
set-off or counterclaim in respect of its Loan to the extent to do so would prevent, limit or delay
the making of such Loan; provided that the applicable conditions set forth in Section 4.02 are
satisfied, provided, further, that with respect to items (i) through (iv) above, the foregoing shall
not apply if an Event of Default under Section 7.01(e) (with respect to the Borrower) has
occurred and is continuing. For the avoidance of doubt, (a) the rights and remedies of the Lenders
and the Administrative Agent shall not be limited in the event that any such condition to the
closing set forth in Section 4.02 is not satisfied on the Closing Date and (b) from the Closing Date
after giving effect to the funding of the Loans on such date, all of the rights, remedies and
entitlements of the Administrative Agent and the Lenders shall be available notwithstanding that
such rights were not available prior to such time as a result of the foregoing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The U.S. Borrower and the Guarantor, as applicable, each represents and
warrants to the Lenders that as of the Effective Date and the Closing Date:
SECTION 5.01 Corporate Existence; Compliance with Law.
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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;
(iii) do not and will not (A) contravene such Borrower’s or any of its
Subsidiaries’ respective Constituent Documents, (B) violate (x) any other Requirement of
Law applicable to such Borrower (including Regulations T, U and X of the Federal
Reserve Board), or (y) 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)(ii)(y), and each of which on the
Effective Date will be in full force and effect.
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(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.
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.
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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,
“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.
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(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 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.
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 Borrowing, the
use of proceeds therefrom or any other transaction contemplated by this Agreement will violate
Anti-Corruption Laws or Anti-Money Laundering Laws.
SECTION 5.14 Solvency.
The U.S. Borrower and its Subsidiaries are, upon giving effect to the
Transactions, on a consolidated basis, Solvent.
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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 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. The U.S. Borrower shall maintain, on the
last day of each Fiscal Quarter ending on or following the 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 Closing Date but
before the last day of the first full
fiscal quarter after the Closing
Date
4.75:1.00
On the last day of the first full
fiscal quarter after the Closing
Date
4.75:1.00
On the last day of the second full
fiscal quarter after the Closing
Date
4.75:1.00
On the last day of the third full
fiscal quarter after the Closing
Date
4.50:1.00
On the last day of the fourth full
fiscal quarter after the Closing
Date
4.50:1.00
On the last day of the fifth full
fiscal quarter after the Closing
Date
4.50:1.00
On the last day of the sixth full
fiscal quarter after the Closing
Date
4.25:1.00
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Fiscal Quarter Ending Maximum Leverage Ratio
On the last day of the seventh full
fiscal quarter after the Closing
Date
4.25:1.00
On the last day of the eighth full
fiscal quarter after the Closing
Date
4.00:1.00
On the last day of the ninth full
fiscal quarter after the Closing
Date
4.00:1.00
On the last day of the tenth full
fiscal quarter after the 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 ending on or
following the Closing Date, 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 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) 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
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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,
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.
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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
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 xxxx://xxx.xxx.xxx or on
the U.S. Borrower’s website at xxxx://xxx.xxx.xxx.
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SECTION 6.03 Affirmative Covenants. So long as any
obligations under this Agreement or any Note shall remain unpaid 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
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
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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 proceeds of the Loans
shall be used by the Borrowers (i) to finance the Acquisition and the other Transactions and (ii) to
pay any related transaction costs, fees, taxes and expenses.
(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.
(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 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);
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(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 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;
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,
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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, such Subsidiary ceases to be a Euro Borrower immediately prior to such sale and all
Obligations of such Subsidiary in its capacity as a Euro Borrower 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.
(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 Loan, 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 Loan (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,
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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 when the
same becomes due and payable; or (ii) any Borrower shall fail to pay any interest on any Loan 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
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
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(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
(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; or
(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; or
(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 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
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Default specified in Section 7.01(e), (A) the obligation of each Lender to make Loans 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.
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
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
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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 and the
Notes issued to it as a Lender, each of the Agents party to this Agreement as Lender shall have
the same rights and powers under this Agreement as any other Lender in its capacity as a Lender
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. Each Agent, in its individual capacity as a Lender, 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 ratably according to their respective pro rata shares 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. Without limitation of the foregoing, each Lender agrees to 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
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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)
reduce any fees or other amounts payable hereunder, (b) postpone any date fixed for any payment
of any fees or other amounts payable hereunder, (c) change the percentage of the Commitments
or of the aggregate unpaid principal 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, (d) release the Guaranty
set forth in Article X (Guaranty) or (e) 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 under this Agreement or any Note, unless
such amendment, waiver or consent is in writing and signed by the Administrative Agent in
addition to the Lenders required above to take such action, (2) subject to the provisions of Section
2.06, no amendment, waiver or consent shall reduce the principal of, or interest on, the Loans or
Notes or postpone any date fixed for any payment of principal of, or interest on, the Loans or
Notes, unless in each case signed by all of the Lenders and (3) no amendment, waiver or consent
shall extend the Maturity Date of the Loans or increase the Commitment or Loans of any Lender
or subject any Lender to any additional obligations or extend the Commitment of such Lender (by
extending the Commitment Termination Date or otherwise), unless signed by such Lender.
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
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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 Xxxx Centre South
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000,
Attention: Xxxxxx X. Xxxxxxxx,
Vice President and Treasurer
Fax Number: (000) 000-0000
E-Mail Address: xxx_xxxxxxxxx@xxx.xxx
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxxx
Fax Number: (000) 000-0000
E-Mail Address: xxxxxxx.xxxxxxx@xxxxxxxxxxx.xxx
E-Mail Address: xxxxxx.xxxxxxxx@xxxxxxxxxxx.xxx
(ii) if to the Administrative Agent:
Citibank, N.A.
0000 Xxxxx Xxxx, OPS 3
Xxx Xxxxxx, XX 00000
Attention: Bank Loan Syndications Department
Fax Number: (000) 000-0000
E-Mail Address: XXXxxxxXxxxxxXxx@xxxx.xxx
E-Mail Address: xxxxxxxxxxxxxxx@xxxx.xxx (for materials required to
be delivered pursuant to Section 6.02(a))
with a copy to:
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000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxx.xxxxx@xxxx.xxx
(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.
(b) 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 (Amounts and Terms of Loans), III (Making the Loans) or VIII (The Administrative
Agent) shall not be effective until received by the Administrative Agent.
(c) 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.
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(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.
(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
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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.
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,
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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. 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 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 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 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)(ii) 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
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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 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,
(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 $5,000,000 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 and the
Administrative Agent 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; provided, further, that the consent of the U.S. Borrower shall be deemed to
have been provided unless the U.S. Borrower has notified the Administrative Agent of its
refusal to give such consent within 10 Business Days of receiving written request for its
consent to such assignment, 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
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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
shall constitute a commitment by any SPC to make any Loan and (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
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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) [Intentionally Deleted].
(d) The Administrative Agent shall maintain at its address referred to in
Section 9.02 a copy of each Assignment and 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) 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
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 Note or Notes a new 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 Note to the order of the assigning Lender
in an amount equal to the Commitments and/or Loans retained by it hereunder. Such new Notes
shall be in an aggregate principal amount equal to the aggregate principal amount of such
surrendered 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 Note or
Notes shall be marked “canceled” and shall be returned promptly to the U.S. Borrower.
(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
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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 and
the 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
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
Xxxxxxx 0x.000x0(x) xx xxx Xxxxxx Xxxxxx 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
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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 [Intentionally Deleted].
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; PROVIDED THAT THE
LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY CHOICE OR
CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE
OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE, SHALL
APPLY IN DETERMINING (I) THE INTERPRETATION OF AN AG BUSINESS MATERIAL
ADVERSE EFFECT (AS DEFINED IN THE ACQUISITION AGREEMENT AS IN EFFECT
ON THE DATE THEREOF) AND WHETHER AN AG BUSINESS MATERIAL ADVERSE
EFFECT HAS OCCURRED, (II) THE ACCURACY OF ANY ACQUISITION AGREEMENT
REPRESENTATION AND WHETHER AS A RESULT OF ANY INACCURACY THEREOF
THE U.S. BORROWER OR ITS APPLICABLE AFFILIATE HAS THE RIGHT OR WOULD
HAVE THE RIGHT TO TERMINATE ITS OBLIGATIONS (OR TO REFUSE TO
CONSUMMATE THE ACQUISITION) UNDER THE ACQUISITION AGREEMENT AND
(III) WHETHER THE ACQUISITION HAS BEEN CONSUMMATED IN ACCORDANCE
WITH THE TERMS OF THE ACQUISITION AGREEMENT.
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
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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
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
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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 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 OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY LENDER
IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT
THEREOF.
SECTION 9.14 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 9.15 Entire Agreement. This Agreement, the other
Loan Documents and any separate letter agreements with respect to fees payable to the
Administrative Agent 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 9.16 No Fiduciary Duty. Each Agent and each
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
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(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.
ARTICLE X
GUARANTY
SECTION 10.01 Guaranty.
(a) To induce the Lenders to make the Loans to 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, 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 and all other
amounts from time to time owing to the Lenders or the Administrative Agent by any Euro
Borrower under this Agreement pursuant hereto, to its Euro Borrower Designation, 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, 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.
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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:
(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
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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
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
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(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. 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
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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 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, and
(ii) any moneys, credits or other property belonging to the U.S. Borrower or any Euro Borrower,
at any time held by or coming into the possession of such Guarantied Party or Affiliate thereof
(other than trust accounts).
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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 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 FMC TERM LOAN 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/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
The Euro Borrowers
FMC FINANCE B.V.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Signatory, as
Attorney-in-Fact
FMC CHEMICALS NETHERLANDS
B.V.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Signatory, as
Attorney-in-Fact
FMC LUXEMBOURG HOLDINGS
S.À X.X.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Signatory, as
Attorney-in-Fact
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
FMC LUXEMBOURG S.À X.X.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Signatory, as
Attorney-in-Fact
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
CITIBANK, N.A.,
as Administrative Agent and Lender
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
BANK OF AMERICA, N.A.,
as Syndication Agent and Lender
By: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Assistant Vice President
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
BNP Paribas, as a Lender
By: /s/ Xxxxxxxxxxx Xxxx
Name: Xxxxxxxxxxx Xxxx
Title: Managing Director
By: /s/ Xxxxxx Xxxxxx-Bouvet
Name: Xxxxxx Xxxxxx-Bouvet
Title: Vice President
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
JPMORGAN CHASE BANK, N.A., as a Lender
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Executive Director
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
Sumitomo Mitsui Banking Corporation, as a
Lender
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
TD Bank, N.A., as a Lender
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Senior Vice President
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
CoBank, ACB, as a Lender
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Vice President
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
Branch Banking and Trust Company, as a
Lender
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Banking Officer
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
Citizens Bank of Pennsylvania, as a Lender
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
COÖPERATIVE RABOBANK U.A., NEW
YORK BRANCH, as a Lender
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Executive Director
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Managing Director
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
KBC Bank N.V., New York, as a Lender
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Director
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Managing Director
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
MIZUHO BANK, LTD., as a Lender
By: /s/ Xxxxx XxXxxxxxxxx
Name: Xxxxx XxXxxxxxxxx
Title: Authorized Signatory
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
PNC BANK, National Association, as a Lender
By: /s/ Xxxxxx XxXxxxxx
Name: Xxxxxx XxXxxxxx
Title: Senior Vice President
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
THE BANK OF NEW YORK MELLON,
as a Lender
By: /s/ Xxxxxxxxxxx Xxxxx
Name: Xxxxxxxxxxx Xxxxx
Title: Senior Associate
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: Vice President
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
Xxxxx Fargo Bank, National Association, as a
Lender
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Director
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
Santander Bank, N.A., as a Lender
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Executive Director
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
Lloyds Bank plc, as a
Lender
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Senior Vice President
Transaction Execution
Category A
P003
By: /s/ Xxxxxx XxXxxxxxx
Name: Xxxxxx XxXxxxxxx
Title: Assistant Vice President
M040
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
Bank of China, New York Branch, as a Lender
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Managing Director
[SIGNATURE PAGE TO FMC TERM LOAN AGREEMENT]
THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD, as a Lender
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Director
