Contract
βββββββββββββββββββββββββββββββββββββββ $2,000,000,000 FIFTH AMENDED AND RESTATED CREDIT AGREEMENT Dated as of June 17, 2022 among FMC CORPORATION, as U.S. Borrower, and THE FOREIGN SUBSIDIARIES PARTY HERETO FROM TIME TO TIME, as Euro Borrowers, THE LENDERS AND ISSUING BANKS PARTY HERETO and CITIBANK, N.A., as Administrative Agent, * * * CITIBANK, N.A. and BOFA SECURITIES, INC., as Joint Lead Arrangers, BANK OF AMERICA, N.A., as Syndication Agent, and BNP PARIBAS COBANK, ACB JPMORGAN CHASE BANK, N.A. SUMITOMO MITSUI BANKING CORPORATION and TD BANK, N.A., as Co-Documentation Agents βββββββββββββββββββββββββββββββββββββββ i TABLE OF CONTENTS PAGE ARTICLE I DEFINITIONS AND ACCOUNTING TERMS .................................................. 1 SECTION 1.01. Certain Defined Terms ............................................................... 1 SECTION 1.02. Computation of Time Periods .................................................. 34 SECTION 1.03. Accounting Terms and Principles ............................................ 34 SECTION 1.04. Certain Terms ........................................................................... 34 SECTION 1.05. Divisions .................................................................................. 35 ARTICLE II AMOUNTS AND TERMS OF THE LOANS ................................................... 35 SECTION 2.01. The Revolving Loans ............................................................... 35 SECTION 2.02. [Intentionally Deleted] ............................................................. 36 SECTION 2.03. The Swing Loans ...................................................................... 36 SECTION 2.04. The Letters of Credit ................................................................ 36 SECTION 2.05. Fees .......................................................................................... 36 SECTION 2.06. Reductions and Increases of the Commitments ....................... 38 SECTION 2.07. Repayment ................................................................................ 41 SECTION 2.08. Interest ...................................................................................... 42 SECTION 2.09. Interest Rate Determinations .................................................... 43 SECTION 2.10. Prepayments ............................................................................. 45 SECTION 2.11. Payments and Computations .................................................... 45 SECTION 2.12. Taxes ........................................................................................ 47 SECTION 2.13. Sharing of Payments, Etc ......................................................... 52 SECTION 2.14. Conversion or Continuation of Revolving Loans ..................... 52 SECTION 2.15. Extension of Termination Date ................................................ 53 SECTION 2.16. Defaulting Lender .................................................................... 56 SECTION 2.17. Acknowledgement and Consent to Bail-In of Affected Financial Institutions ................................................................ 59 SECTION 2.18. Benchmark Replacement Setting ............................................. 59 ARTICLE III MAKING THE LOANS AND ISSUING THE LETTERS OF CREDIT .......... 62 SECTION 3.01. Making the Revolving Loans ................................................... 62 SECTION 3.02. [Intentionally Deleted] ............................................................. 63 SECTION 3.03. Making the Swing Loans, Etc .................................................. 63 SECTION 3.04. Issuance of Letters of Credit .................................................... 66 SECTION 3.05. Increased Costs ......................................................................... 70 ii SECTION 3.06. Illegality ................................................................................... 72 SECTION 3.07. Reasonable Efforts to Mitigate ................................................. 73 SECTION 3.08. Right to Replace Affected Person or Lender ............................ 73 SECTION 3.09. Use of Proceeds ........................................................................ 74 ARTICLE IV CONDITIONS OF LENDING ........................................................................... 74 SECTION 4.01. Conditions Precedent to Initial Borrowing ............................... 74 SECTION 4.02. Conditions Precedent to Each Revolving Loan Borrowing, Swing Loan Borrowing and Letter of Credit Issuance .................................................................................... 75 ARTICLE V REPRESENTATIONS AND WARRANTIES .................................................. 76 SECTION 5.01. Corporate Existence; Compliance with Law ............................ 76 SECTION 5.02. Corporate Power; Authorization; Enforceable Obligations ............................................................................... 77 SECTION 5.03. Financial Statements ................................................................ 77 SECTION 5.04. Material Adverse Change ......................................................... 77 SECTION 5.05. Litigation .................................................................................. 78 SECTION 5.06. Taxes ........................................................................................ 78 SECTION 5.07. Full Disclosure ......................................................................... 78 SECTION 5.08. Investment Company Act ......................................................... 78 SECTION 5.09. ERISA ...................................................................................... 78 SECTION 5.10. Environmental Matters ............................................................. 79 SECTION 5.11. Ownership of Properties; Liens ................................................ 80 SECTION 5.12. Sanctions .................................................................................. 80 SECTION 5.13. Anti-Corruption Laws; Anti-Money Laundering Laws ........... 80 ARTICLE VI COVENANTS OF THE COMPANY ................................................................ 80 SECTION 6.01. Financial Covenants ................................................................. 80 SECTION 6.02. Reporting Covenants ................................................................ 80 SECTION 6.03. Affirmative Covenants ............................................................. 83 SECTION 6.04. Negative Covenants.................................................................. 85 ARTICLE VII EVENTS OF DEFAULT ................................................................................... 87 SECTION 7.01. Events of Default ...................................................................... 87 SECTION 7.02. Actions in Respect of the Letters of Credit Upon Event of Default; L/C Cash Collateral Account; Investing of Amounts in the L/C Cash Collateral Account; Release ........... 89 iii ARTICLE VIII THE ADMINISTRATIVE AGENT .................................................................. 92 SECTION 8.01. Authorization and Action ......................................................... 92 SECTION 8.02. Reliance, Etc ............................................................................ 92 SECTION 8.03. The Agents and their Affiliates as Lenders .............................. 93 SECTION 8.04. Lender Credit Decision ............................................................ 93 SECTION 8.05. Indemnification ........................................................................ 93 SECTION 8.06. Successor Administrative Agent .............................................. 93 SECTION 8.07. No Other Duties, Etc ................................................................ 94 SECTION 8.08. Incorrect Payment .................................................................... 94 ARTICLE IX MISCELLANEOUS ........................................................................................... 97 SECTION 9.01. Amendments, Etc ..................................................................... 97 SECTION 9.02. Notices, Etc .............................................................................. 98 SECTION 9.03. No Waiver; Remedies ............................................................ 101 SECTION 9.04. Costs and Expenses ................................................................ 102 SECTION 9.05. Rights of Set-off; Payments Set Aside ................................... 103 SECTION 9.06. Binding Effect ........................................................................ 104 SECTION 9.07. Assignments and Participations ............................................. 104 SECTION 9.08. No Liability of the Issuing Banks .......................................... 109 SECTION 9.09. Governing Law ....................................................................... 110 SECTION 9.10. Execution in Counterparts ...................................................... 110 SECTION 9.11. Confidentiality ........................................................................ 110 SECTION 9.12. Submission to Jurisdiction; Service of Process ...................... 111 SECTION 9.13. WAIVER OF JURY TRIAL .................................................. 111 SECTION 9.14. Judgment Currency ................................................................ 111 SECTION 9.15. European Monetary Union ..................................................... 112 SECTION 9.16. USA PATRIOT Act ............................................................... 112 SECTION 9.17. Continued Effectiveness ......................................................... 113 SECTION 9.18. Entire Agreement ................................................................... 113 SECTION 9.19. No Fiduciary Duty .................................................................. 113 SECTION 9.20. Certain ERISA Matters .......................................................... 113 ARTICLE X GUARANTY ................................................................................................... 115 SECTION 10.01. Guaranty ................................................................................. 115 SECTION 10.02. Authorization; Other Agreements .......................................... 115 SECTION 10.03. Guaranty Absolute and Unconditional ................................... 116
iv SECTION 10.04. Waivers .................................................................................. 118 SECTION 10.05. Reliance .................................................................................. 118 SECTION 10.06. Waiver of Subrogation and Contribution Rights .................... 118 SECTION 10.07. Subordination ......................................................................... 118 SECTION 10.08. Default; Remedies .................................................................. 119 SECTION 10.09. Irrevocability .......................................................................... 119 SECTION 10.10. Setoff ...................................................................................... 119 SECTION 10.11. No Marshaling ........................................................................ 120 SECTION 10.12. Enforcement; Amendments; Waivers .................................... 120 SCHEDULES AND EXHIBITS SCHEDULES Schedule I - Commitments Schedule II - Material Subsidiaries Schedule 2.04 - Existing Letters of Credit Schedule 5.02 - Consents Schedule 5.05 - Litigation Schedule 5.10 - Environmental Matters Schedule 6.04(a) - Existing Liens EXHIBITS Exhibit A - Form of Revolving Loan Note Exhibit B-1 - Form of Notice of Revolving Loan Borrowing Exhibit B-2 - Form of Notice of Conversion or Continuation Exhibit C-1 - Form of Assignment and Acceptance Exhibit C-2 - Form of Participation Agreement Exhibit C-3 - Form of New Commitment Acceptance Exhibit D - Form of Euro Borrower Designation Exhibit E - Form of Swing Loan Request Exhibit F - Form of U.S. Tax Compliance Certificate FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FIFTH AMENDED AND RESTATED CREDIT AGREEMENT (this βAgreementβ), dated as of June 17, 2022, among FMC CORPORATION, a Delaware corporation (βU.S. Borrowerβ) 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 βBorrowersβ), the lenders and issuing banks listed on the signature pages hereof under the heading βLendersβ and the other Lenders (as defined below) party hereto from time to time, BANK OF AMERICA, N.A., as syndication agent (the βSyndication Agentβ), BNP PARIBAS, COBANK, ACB, 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 βAdministrative Agentβ) for the Lenders hereunder. WHEREAS, certain of the Borrowers are party to the Fourth Amended and Restated Credit Agreement, dated as of May 26, 2021, among the U.S. Borrower, as borrower, the U.S. Borrowerβs foreign subsidiaries party thereto, Citibank, N.A., as administrative agent, and the lenders, issuing banks and other parties party thereto (as amended, supplemented or otherwise modified prior to the date hereof, the βExisting Credit Agreementβ); and WHEREAS, the Borrowers have requested, among other things, that the Lenders make certain changes to the Existing Credit Agreement as contained herein and amend and restate the Existing Credit Agreement in whole, without constituting a novation. NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties hereto agree to amend and restate the Existing Credit Agreement in its entirety without constituting a novation, effective on the Effective Date, as follows: ARTICLE I DEFINITIONS AND ACCOUNTING TERMS SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined): βAcceptanceβ means an Assignment and Acceptance or a New Commitment Acceptance. βAdjusted Term SOFRβ means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor. βAdministrative Agentβ has the meaning specified in the recital of parties to this Agreement. βAdministrative Agentβs Accountβ means, in respect of any Currency, such account as the Administrative Agent shall designate in a notice to the U.S. Borrower and the Lenders. FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 2 βAffected Financial Institutionβ means (a) any EEA Financial Institution or (b) any UK Financial Institution. βAffected Personβ has the meaning specified in Sections 2.12(j), 3.05(e), 3.06 and Section 3.08(a). βAffiliateβ 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, βcontrolβ 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. βAgentsβ means, collectively, the Administrative Agent and the Syndication Agent. βAlternate Currencyβ means Euros and any other lawful currency other than Dollars (approved by the Administrative Agent and each Lender) which is freely transferable into Dollars. βAnniversary Dateβ has the meaning specified in Section 2.15(a). βAnti-Corruption Lawsβ 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. βAnti-Money Laundering Lawsβ 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. βApplicable Lawβ means, as to any Person, all applicable Laws binding upon such Person or to which such a Person is subject. βApplicable Lending Officeβ means, with respect to each Lender, and for each Type and Currency of Loan, such Lenderβs Domestic Lending Office in the case of a Base Rate Loan or a SOFR Loan and such Lenderβs EURIBOR Lending Office in the case of a EURIBOR Loan. βApplicable Marginβ means, as of any date, the applicable margin set forth under the Adjusted Term SOFR/EURIBOR 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/MOODYβS ADJUSTED TERM SOFR/EURIBOR BASE RATE Level 1 A / A2 or higher 0.805% 0.000% FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 3 PUBLIC DEBT RATING S&P/MOODYβS ADJUSTED TERM XXXX/XXXXXXX XXXX XXXX Xxxxx 0 X- / X0 0.910% 0.000% Xxxxx 0 XXXx / Xxx0 1.025% 0.025% Xxxxx 0 XXX / Xxx0 1.125% 0.125% Xxxxx 0 XXX- / Xxx0 1.200% 0.200% Xxxxx 0 XXx / Xx0 xx lower 1.375% 0.375% βApplicable Percentageβ means, as of any date, the applicable percentage set forth below under the Facility Fee column based upon the Public Debt Rating in effect on such date: PUBLIC DEBT RATING S&P/MOODYβS FACILITY FEE Level 1 A / A2 or higher 0.070% Xxxxx 0 X- / X0 0.000% Xxxxx 0 XXXx / Xxx0 0.100% Xxxxx 0 XXX / Xxx0 0.125% Xxxxx 0 XXX- / Xxx0 0.175% Xxxxx 0 XXx / Xx0 xx lower 0.250% βArrangersβ means Citibank and BofA Securities, Inc., in their respective capacities as joint lead arrangers. βAssignment and Acceptanceβ 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.
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 4 βAvailable Amountβ means, at any time, with respect to any Letter of Credit, the maximum amount available to be drawn under such Letter of Credit at such time (assuming compliance at such time with all conditions to drawing), provided that if any Letter of Credit provides for future increases in the maximum amount available to be drawn under such Letter of Credit, then the βAvailable Amountβ of such Letter of Credit shall mean, at any time, the maximum amount available to be drawn under such Letter of Credit after taking into account all increases in the availability thereunder. βAvailable Tenorβ means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an Interest Period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of βInterest Periodβ pursuant to Section 2.18(d). βBail-In Actionβ means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution. βBail-In Legislationβ means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliate (other than through liquidation, administration or other insolvency proceedings). βBase Rateβ 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 βbase rateβ; (b) the Federal Funds Rate plus 1/2 of 1%; and (c) Adjusted Term SOFR for a one-month tenor in effect on such day (including the interest rate floors set forth therein) plus 1%; provided that the Base Rate shall not be less than zero. βBase Rate Loanβ means a Loan denominated in Dollars which bears interest as provided in Section 2.08(a)(i). βBase Rate Term SOFR Determination Dayβ has the meaning specified in the definition of βTerm SOFRβ. FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 5 βBenchmarkβ means, initially (i) with respect to any amounts denominated in USD, the Term SOFR Reference Rate and (ii) with respect to any amounts denominated in Euros, EURIBOR; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate, EURIBOR or the then-current Benchmark for such Currency, then βBenchmarkβ means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.18(a). βBenchmark Replacementβ means, with respect to any Benchmark Transition Event for any then-current Benchmark, the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for such Benchmark giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for such Benchmark for syndicated credit facilities denominated in the applicable Currency at such time and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents. βBenchmark Replacement Adjustmentβ means, with respect to any replacement of any then current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, for purposes of clause (a)(ii) or (b) of the definition of βBenchmark Replacement,β the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the U.S. Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Currency at such time. βBenchmark Replacement Dateβ means the earliest to occur of the following events with respect to the then-current Benchmark for any Currency: (a) in the case of clause (a) or (b) of the definition of βBenchmark Transition Event,β the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or (b) in the case of clause (c) of the definition of βBenchmark Transition Event,β the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date. FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 6 For the avoidance of doubt, the βBenchmark Replacement Dateβ will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof). βBenchmark Transition Eventβ means, with respect to the then-current Benchmark for any Currency, the occurrence of one or more of the following events with respect to such Benchmark: (a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); (b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, the central bank for the Currency applicable to such Benchmark, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or (c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative. For the avoidance of doubt, a βBenchmark Transition Eventβ will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof). βBenchmark Transition Start Dateβ means, with respect to any Benchmark, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication). βBenchmark Unavailability Periodβ means, with respect to any then-current Benchmark for any Currency, the period (if any) (a) beginning at the time that a Benchmark FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 7 Replacement Date with respect to such Benchmark has occurred if, at such time, no Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.18 and (b) ending at the time that a Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.18. βBeneficial Ownership Certificateβ has the meaning specified in Section 4.01(a)(vii). βBeneficial Ownership Regulationβ has the meaning specified in Section 4.01(a)(vii). βBenefit Planβ means any of (a) an βemployee benefit planβ (as defined in ERISA) that is subject to Title I of ERISA, (b) a βplanβ as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such βemployee benefit planβ or βplanβ. βBofAβ means Bank of America, N.A., a national banking association. βBorrowersβ has the meaning specified in the recital of parties to this Agreement. βBorrowersβ Accountantsβ means KPMG LLP or other independent nationally- recognized public accountants acceptable to the Administrative Agent. βBorrowingβ means a Revolving Loan Borrowing or a Swing Loan Borrowing. βBusiness Dayβ 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 EURIBOR Loans, on which the Trans-European Automated Real-Time Gross Settlement Express Transfer System (βTARGET2β) is open. βCapital Leaseβ 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, or, after giving effect to FASB ASC Topic 842, as a finance lease, on a balance sheet of such Person prepared in conformity with GAAP. βCapital Lease Obligationsβ means, with respect to any Person, the capitalized amount of all Consolidated obligations of such Person or any of its Subsidiaries under Capital Leases. βCash Collateralizeβ means, in respect of an obligation, to provide and pledge (as a first priority perfected security interest) cash collateral in Dollars or in an Alternate Currency specified by the Administrative Agent, at a location and pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent (and βCash Collateralizationβ has a corresponding meaning). βCGMIβ means Citigroup Global Markets Inc.
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 8 βChange in Lawβ means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a βChange in Lawβ, regardless of the date enacted, adopted or issued. βChange of Controlβ 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. βCitibankβ means Citibank, N.A., a national banking association, and its successors. βCodeβ means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. βCo-Documentation Agentsβ has the meaning specified in the recital of parties to this Agreement. βCommitmentβ means, as to any Lender, (i) the Dollar amount set forth opposite its name on Schedule I hereto or (ii) if such Lender has entered into one or more Acceptances, the amount set forth for such Lender in the Register, in each case as the same may be increased or reduced as expressly provided herein (including, without limitation, pursuant to Sections 2.06, 2.15(c), 3.08 and 9.07). βConfidential Informationβ has the meaning set forth in Section 9.11 hereto. βConforming Changesβ means, with respect to either the use or administration of an initial Benchmark or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of βBase Rateβ (if applicable), the definition of βBusiness Day,β the definition of βU.S. Government Securities Business Day,β the definition of βInterest Periodβ or any similar or analogous definition (or the addition of a concept of βinterest periodβ), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 9 conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 9.04(c) and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents). βConnection Income Taxesβ means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes. βConsolidatedβ refers to the consolidation of accounts of the U.S. Borrower and its Subsidiaries in accordance with GAAP. βConstituent Documentsβ 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 or operating agreement (or the equivalent governing documents) of such Person and (c) any document setting forth the manner of election and duties of the directors or managing members of such Person (if any) and the designation, amount or relative rights, limitations and preferences of any class or series of such Personβs Stock. βContaminantβ 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 greenhouse gas, petroleum or petroleum-derived substance or waste, asbestos and polychlorinated biphenyls. βContinuationβ, βContinueβ and βContinuedβ each refer to a continuation of SOFR Loans or EURIBOR Loans for an additional Interest Period pursuant to Section 2.14. βContractual Obligationβ 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. βConversionβ, βConvertβ and βConvertedβ each refer to a conversion of Revolving Loans of one Type into Revolving Loans of the other Type pursuant to Section 2.14. βCorresponding Tenorβ with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor. βCRRβ 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. βCurrencyβ means Dollars or any Alternate Currency. FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 10 βCustomary Permitted Liensβ 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 workersβ compensation, unemployment insurance or other types of social security benefits or to secure the performance of trade contracts, bids, tenders, statutory and regulatory obligations, sales, contracts (other than for the repayment of borrowed money), appeal bonds, leases, government contracts or customs bonds and other similar obligations incurred in the ordinary course of business; (d) encumbrances arising by reason of zoning restrictions, easements, licenses, reservations, covenants, rights-of-way, utility easements, building restrictions and other similar encumbrances on the use of real property not materially detracting from the value of such real property or not materially interfering with the ordinary conduct of the business conducted and proposed to be conducted at such real property; (e) encumbrances, easements, rights-of-way, restrictions, minor defects or irregularities in title and other similar charges or encumbrances not interfering in any material respect with the ordinary conduct of the business of any Person; (f) encumbrances arising under leases or subleases of real property that do not, in the aggregate, materially detract from the value of such real property or interfere with the ordinary conduct of the business conducted at such real property; (g) financing statements with respect to a lessorβs rights in and to personal property leased to such Person in the ordinary course of such Personβs 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 FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 11 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) bankerβs 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. βDefaultβ 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. βDefault Interestβ has the meaning specified in Section 2.08(b). βDefaulting Lenderβ means at any time, subject to Section 2.16(e), (i) any Lender that has failed to comply with its obligations under this Agreement to make a Loan, make a payment to any Issuing Bank in respect of a Letter of Credit, make a payment to any Swing Loan Lender in respect of a Swing Loan or pay to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder (each a βFunding Obligationβ) 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 Lenderβs good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, (ii) any Lender that has notified the Administrative Agent, the U.S. Borrower, the Issuing Banks or the Swing Loan Lenders 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 Lenderβs obligation to fund a Loan hereunder and states that such position is based on such Lenderβs 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
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 12 obligations hereunder (provided that such Lender will cease to be a Defaulting Lender pursuant to this clause (iv) upon the Administrative Agentβs and the U.S. Borrowerβs receipt of such written confirmation), (v) any Lender with respect to which a Lender Insolvency Event has occurred and is continuing with respect to such Lender or its Parent Company or (vi) any Lender that has, or has a Parent Company that has, become the subject of a Bail-in Action (provided, in each case, that neither the reallocation of Funding Obligations provided for in Section 2.16 as a result of a Lender's being a Defaulting Lender nor the performance by Non-Defaulting Lenders of such reallocated Funding Obligations will by themselves cause the relevant Defaulting Lender to become a Non-Defaulting Lender). Notwithstanding anything to the contrary above, any determination by the Administrative Agent that a Lender is a Defaulting Lender under any of clauses (i) through (v) above will be conclusive and binding absent manifest error, and such Lender will be deemed to be a Defaulting Lender (subject to Section 2.16(e)) upon notification of such determination by the Administrative Agent to the U.S. Borrower, the Issuing Banks, the Swing Loan Lenders and the Lenders. βDesignated Borrowerβ means any Euro Borrower designated pursuant to a Euro Borrower Designation. βDisclosure Documentsβ means the U.S. Borrowerβs annual report on Form 10-K for December 31, 2021 and any amendments thereto filed by the U.S. Borrower with the SEC. βDocumentary Letter of Creditβ means any Letter of Credit that is drawable upon presentation of documents evidencing the sale or shipment of goods purchased by the U.S. Borrower or any of its Subsidiaries in the ordinary course of its business. βDollar Equivalentβ means, with respect to any amount denominated in an Alternate Currency, the amount of Dollars that would be required to purchase such amount of such Alternate Currency, based upon the rate at which such Alternate Currency may be exchanged for Dollars (x) in the case of an amount denominated in any Alternate Currency other than Euros, in the London foreign exchange market at approximately 11:00 A.M. London time or (y) in the case of an amount denominated in Euros, in the London foreign exchange market at approximately 10:00 A.M. London time or, at the request of the Borrower, 11:00 A.M., Brussels time, in each case for delivery two Business Days thereafter; provided that, solely for purposes of calculating the amount of any fronting fee payable to any Issuing Bank pursuant to Section 2.05(b) that is otherwise calculated in Euros or the amount of any Reimbursement Obligations owing to any Issuing Bank pursuant to Section 3.04(g) or 3.04(h) in respect of any Letter of Credit denominated in Euros, βDollar Equivalentβ shall be the amount of Dollars that would be required to purchase such amount of Euros, based upon the rate determined by such Issuing Bank through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made. βDollar Revolving Loanβ has the meaning specified in Section 2.01(a). βDollarsβ and β$β mean lawful money of the United States of America. βDomestic Lending Officeβ means, with respect to any Lender, the office of such Lender specified as its βDomestic Lending Officeβ 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. FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 13 βDomestic Subsidiaryβ 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. βDutch Borrowerβ means any Borrower that is organized under the laws of the Netherlands. βDutch Non-Public Lenderβ means: (i) until the publication of an interpretation of βpublicβ as referred to in the CRR by the competent authority/ies: an entity which (x) assumes rights and/or obligations vis-Γ -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 βpublicβ 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. βEBITDAβ 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, 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. βEEA Financial Institutionβ means (a) any credit institution or investment firm established in any EEA Member Country (or, to the extent that the United Kingdom is not an EEA Member Country, the United Kingdom), which is subject to the supervision of a Resolution Authority, (b) any entity established in an EEA Member Country (or, to the extent that the United Kingdom is not an EEA Member Country, the United Kingdom), 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 (or, to the extent that the United Kingdom is not an EEA Member Country, the United Kingdom), 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. FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 14 βEEA Member Countryβ means any of the member states of the European Union, Iceland, Liechtenstein, and Norway. βEEA Resolution Authorityβ 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. βEffective Dateβ has the meaning set forth in Section 4.01. βEligible Assigneeβ means a Lender, any Affiliate of such Lender and any other Person approved in writing by the Administrative Agent, the Issuing Banks, the Swing Loan Lenders and the U.S. Borrower, to the extent such written approval is required under Section 9.07(a); provided that for the purposes of any Loan owed by a Dutch Borrower, each Eligible Assignee shall be a Dutch Non-Public Lender; provided further, that none of the following shall be an Eligible Assignee: (i) any natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person), (ii) any Borrower or any Affiliates of such Borrower or (iii) any Defaulting Lender. βEMUβ means economic and monetary union as contemplated in the Treaty on European Union. βEMU Legislationβ means legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency (whether known as the euro or otherwise), being in part the implementation of the third stage of EMU. βEnvironmental Lawβ 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. βEnvironmental Liabilities and Costsβ 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. βEnvironmental Lienβ means any Lien in favor of any Governmental Authority for Environmental Liabilities and Costs. βERISAβ means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 15 βERISA Affiliateβ means any Person, trade or business (whether or not incorporated) that, for purposes of Title IV of ERISA is a member of the U.S. Borrowerβs controlled group, or is treated as a βsingle employerβ within the meaning of Section 414(b) or 414(c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code. βERISA Eventβ means, with respect to any Person, (a) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, with respect to any Plan of such Person or any of its ERISA Affiliates unless the 30-day notice requirement with respect to such event has been waived by the PBGC; (b) the provision by the administrator of any Plan of such Person or any of its ERISA Affiliates of a notice of intent to terminate such Plan pursuant to Section 4041(a)(2) of ERISA with respect to a termination described in Section 4041(c)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (c) the cessation of operations at a facility of such Person or any of its ERISA Affiliates in the circumstances described in Section 4062(e) of ERISA; (d) the withdrawal by such Person or any of its ERISA Affiliates from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (e) the failure by such Person or any of its ERISA Affiliates to make a payment to a Plan required under the minimum funding standards of ERISA; (f) a determination that any Plan is in βat riskβ 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. βErroneous Paymentβ has the meaning specified in Section 8.08(a). βErroneous Payment Deficiency Assignmentβ has the meaning specified in Section 8.08(d)(i). βErroneous Payment Impacted Classβ has the meaning specified in Section 8.08(d)(i). βErroneous Payment Return Deficiencyβ has the meaning specified in Section 8.08(d)(i). βErroneous Payment Subrogation Rightsβ has the meaning specified in Section 8.08(e). βEU Bail-In Legislation Scheduleβ means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time. βEURIBORβ means, for any Interest Period, the rate per annum appearing on the applicable Bloomberg screen (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 providing quotations of interest rates applicable to dollar deposits in the Euro interbank market, the βScreen Rateβ) as the Euro interbank offered rate administered by the European Money Markets Institute (or any other Person which takes over administration of that rate) for deposits in Euros at approximately 11:00 A.M. (Brussels time) on the second TARGET Day immediately preceding the first day of such Interest Period, for a term comparable to such
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 16 Interest Period; provided that if EURIBOR as so determined shall ever be less than the Floor, then EURIBOR shall be deemed to be the Floor; provided further, that if the applicable Screen Rate shall not be available at such time for such Interest Period (an βImpacted Interest Periodβ) with respect to the relevant currency, then EURIBOR shall be the Interpolated Rate at such time. βEURIBOR Lending Officeβ means, with respect to any Lender, the office of such Lender specified as its βEURIBOR Lending Officeβ 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. βEURIBOR Loanβ means a Loan denominated in Euros which bears interest as provided in Section 2.08(a)(iv). βEURIBOR Reserve Percentageβ of any Lender for any Interest Period for any EURIBOR 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 the Federal Reserve Board (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. βEuroβ means the single currency of Participating Member States of the European Union. βEuro Borrowerβ means each of FMC Finance B.V., a company organized and existing under the laws of the Netherlands, and FMC Chemicals Netherlands B.V., a company organized and existing under the laws of the Netherlands, and any other Foreign Subsidiary; provided that such other Foreign Subsidiary (i) is designated a βEuro Borrowerβ for purposes of this Agreement by the U.S. Borrower in a written notice in substantially the form of Exhibit D hereto (each, a βEuro Borrower Designationβ and each Euro Borrower designated thereby, a βDesignated Borrowerβ), (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). βEuro Borrower Designationβ has the meaning specified in the definition of βEuro Borrowerβ. βEuro Revolving Loanβ has the meaning specified in Section 2.01(a). βEurocurrency Liabilitiesβ 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. βEvents of Defaultβ has the meaning specified in Section 7.01. FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 17 βExcluded Representationsβ means the representations and warranties set forth in Sections 5.04 and 5.05. βExcluded Taxesβ means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrowers under Section 3.08) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.12, amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipientβs failure to comply with Section 2.12(g) and (d) any withholding Taxes imposed under FATCA. βExisting Credit Agreementβ has the meaning specified in the recitals hereto. βExisting Letters of Creditβ means each βLetter of Creditβ issued pursuant to the terms of, and as defined in, the Existing Credit Agreement and outstanding on the Effective Date and listed on Schedule 2.04. βFacilityβ means the Commitments and the provisions herein relating to the Revolving Loans, Swing Loans and Letters of Credit. βFarm Credit Systemβ means a federally chartered network of borrower-owned lending institutions comprised of cooperatives and related service organizations regulated by the Farm Credit Administration. βFATCAβ means 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, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code. βFDICβ means the Federal Deposit Insurance Corporation or any successor. βFederal Funds Rateβ means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it; provided that the Federal Funds Rate shall not be less than zero. FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 18 βFee Letterβ means that certain Fee Letter in respect of the Facility, dated as of May [24], 2022, between the U.S. Borrower and CGMI. βFinal Termination Dateβ means, at any time, the latest occurring Termination Date in effect at such time. βFinancial Covenant Debtβ of any Person means Indebtedness of the type specified in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of the definition of βIndebtednessβ; provided however, that (i) in the case of clause (c), such obligations shall be included in this definition of Financial Covenant Debt only to the extent such obligations are in respect of unreimbursed drawings under letters of credit, and (ii) that Guaranty Obligations supported by a Letter of Credit shall not, to the extent so supported, be included in this definition of Financial Covenant Debt. βFiscal Quarterβ means each of the three month periods ending on March 31, June 30, September 30 and December 31. βFiscal Yearβ means the twelve month period ending on December 31. βFloorβ means a rate of interest equal to 0.0%. βFMCβs Businessβ 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. βForeign Currency Equivalentβ means, with respect to any amount in Dollars, the amount of an Alternate Currency that could be purchased with such amount of Dollars using the reciprocal of foreign exchange rate(s) specified in the definition of the term βDollar Equivalentβ, as determined by the Administrative Agent. βForeign Credit Lineβ 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. βForeign Lenderβ means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes. βForeign Subsidiaryβ means any Subsidiary of the U.S. Borrower that is not a Domestic Subsidiary. βGAAPβ 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, βGAAPβ 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. FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 19 βGovernmental Authorityβ 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). βGranting Lenderβ has the meaning specified in Section 9.07(a). βGuarantied Obligationsβ has the meaning specified in Section 10.01(a). βGuarantorβ has the meaning specified in Section 10.01(a). βGuarantyβ means the U.S. Borrowerβs guaranty of the Guarantied Obligations of the Euro Borrowers and the Swing Loan Borrower under this Agreement as set forth in Article X (Guaranty) hereof. βGuaranty Obligationβ 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. βHedging Contractsβ 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.
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 20 βIncreasing Lenderβ means, in connection with any increase in the aggregate amount of the Commitments pursuant to Section 2.06(b), a Lender whose Commitment is increased pursuant to Section 2.06(b)(vi). βIndebtednessβ 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, bankersβ acceptances, surety bonds and performance bonds, whether or not matured, (d) all indebtedness for the deferred purchase price of property or services, other than trade payables incurred in the ordinary course of business that are not overdue, (e) all indebtedness of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (f) all Capital Lease Obligations of such Person and the present value of future rental payments under all synthetic leases, (g) all Guaranty Obligations of such Person, (h) all obligations of such Person to purchase, redeem, retire, defease or otherwise acquire for value any Stock or Stock Equivalents of such Person, valued, in the case of redeemable preferred stock, at the greater of its voluntary liquidation preference and its involuntary liquidation preference plus accrued and unpaid dividends, (i) all net obligations payable by such Person in respect of Hedging Contracts of such Person and (j) all Indebtedness of the type referred to above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and general intangibles) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness. βIndemnified Partyβ has the meaning specified in Section 9.04(b). βIndemnified Taxesβ means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrowers under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes. βInterest Coverage Ratioβ 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. βInterest Incomeβ 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. βInterest Periodβ means, with respect to each SOFR Loan and EURIBOR Loan, the period commencing on the date of such SOFR Loan or EURIBOR Loan and ending one, three or six calendar months thereafter (in each case, subject to the availability for the interest rate applicable to the relevant Currency), 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 U.S. Government Securities Business Day or third Business Day, as applicable, 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 Final Termination Date; FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 21 (ii) Interest Periods commencing on the same date for Revolving Loans comprising part of the same Revolving Loan Borrowing shall be of the same duration; (iii) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided in the case of any Interest Period for a SOFR Loan or a EURIBOR 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; (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; and (v) no tenor that has been removed from this definition pursuant to Section 2.18(d) shall be available for specification in such Notice of Revolving Loan Borrowing or Notice of Conversion or Continuation. βInterest Rate Contractsβ means all interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and interest rate insurance. βInterpolated Rateβ 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 applicable 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; provided, that, if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. βInvestmentβ means, with respect to any Person, (a) any purchase or other acquisition by such Person of (i) any security issued by, (ii) a beneficial interest in any security issued by, or (iii) any other equity ownership interest in, any other Person, (b) any purchase by such Person of all or a significant part of the assets of a business conducted by any other Person, or all or substantially all of the assets constituting the business of a division, branch or other unit operation of any other Person, (c) any loan, advance (other than deposits with financial institutions available for withdrawal on demand, prepaid expenses, accounts receivable and similar items made or incurred in the ordinary course of business as presently conducted) or capital contribution by such Person to any other Person, including all Indebtedness of any other Person to such Person arising from a sale of property by such Person other than in the ordinary course of its business, and (d) any Guaranty Obligation incurred by such Person in respect of Indebtedness of any other Person. βIRB Obligationsβ means the variable rate industrial and pollution control revenue bonds of the U.S. Borrower that are supported by letters of credit set forth on Schedule 2.04 (Existing Letters of Credit). FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 22 βIssueβ means, with respect to any Letter of Credit, to issue, extend the expiry of, renew or increase the maximum face amount (including by deleting or reducing any scheduled decrease in such maximum face amount) of, such Letter of Credit. The terms βIssuedβ and βIssuanceβ shall have a corresponding meaning βIssuing Bankβ means each Lender or Affiliate of a Lender that (a) is listed on the signature pages hereof as an βIssuing Bankβ or (b) hereafter becomes an Issuing Bank with the approval of the Administrative Agent and the U.S. Borrower by agreeing pursuant to an agreement with and in form and substance satisfactory to the Administrative Agent and the U.S. Borrower to be bound by the terms hereof applicable to Issuing Banks. βL/C Cash Collateral Accountβ has the meaning specified in Section 7.02(b). βL/C Cash Collateral Account Collateralβ has the meaning specified in Section 7.02(b). βL/C Cash Collateral Account Investmentsβ has the meaning specified in Section 7.02(c). βL/C Cash Collateral Account Obligationsβ has the meaning specified in Section 7.02(e)(i). βLawsβ means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law. βLender Insolvency Eventβ 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. βLendersβ means the Lenders listed on the signature pages hereof and each Eligible Assignee that shall become a party hereto pursuant to Section 9.07 and shall include the Swing Loan Lenders and the Issuing Banks. βLetter of Creditβ has the meaning specified in Section 2.04. βLetter of Credit Commitmentβ means, as to any Issuing Bank, (i) the Dollar amount set forth opposite its name on Schedule I hereto or (ii) such other amount as agreed to by the Issuing Bank and the U.S. Borrower. FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 23 βLetter of Credit Loanβ means a payment by an Issuing Bank of a draft drawn under any Letter of Credit pursuant to Section 3.04 or, without duplication, a payment by a Lender in respect thereof pursuant to Section 3.04. βLetter of Credit Obligationsβ means, at any time, the aggregate of all liabilities at such time of the U.S. Borrower and the Euro Borrowers to all Issuing Banks with respect to Letters of Credit, whether or not any such liability is contingent, including, without duplication, the sum of (a) the Reimbursement Obligations in respect of the Letters of Credit at such time and (b) the Letter of Credit Undrawn Amounts at such time. βLetter of Credit Reimbursement Agreementβ has the meaning specified in Section 3.04(d). βLetter of Credit Requestβ has the meaning specified in Section 3.04(b). βLetter of Credit Sub-Facilityβ has the meaning specified in Section 2.04. βLetter of Credit Sublimitβ means $400,000,000. βLetter of Credit Undrawn Amountsβ means, at any time, the aggregate undrawn amount of all Letters of Credit outstanding at such time. βLeverage Ratioβ means, with respect to the U.S. Borrower and its Subsidiaries on a Consolidated basis as of any date, the ratio of (a) Financial Covenant Debt as of such date minus the aggregate amount of unrestricted cash and cash equivalents (as each such term is defined in accordance with GAAP) of the U.S. Borrower and its Subsidiaries as of such date in excess of $150,000,000 (it being understood and agreed that any proceeds of any issuance by the U.S. Borrower and its Subsidiaries of unsecured debt securities, other debt securities or borrowing of term loans, in each case, in connection with financing an acquisition, investment, refinancing or other transaction (to the extent such proceeds are held or placed into escrow prior to being applied to consummate such transaction) shall be deemed to be unrestricted for purposes of this definition) to (b) EBITDA for the last four Fiscal Quarters ending on or before such date. βLienβ means any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, lien (statutory or other), intellectual property license, 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. βLoan Documentsβ means this Agreement, the Notes, each Letter of Credit and each certificate, agreement or document executed by a Borrower and delivered to the Administrative Agent or any Lender in connection with or pursuant to any of the foregoing. βLoansβ means all Revolving Loans, all Swing Loans and all Letter of Credit Loans.
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 24 βLocal Timeβ means, with respect to any Loan denominated, or any payment to be made, in Dollars, New York City time, and with respect to any Loan denominated, or any payment to be made, in an Alternate Currency, the local time in the Principal Financial Center for such Alternate Currency. βMargin Regulationsβ 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. βMaterial Adverse Changeβ 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. βMaterial Adverse Effectβ means an effect that results in or causes, or could reasonably be expected to result in or cause, a Material Adverse Change. βMaterial Subsidiaryβ means (i) any Subsidiary of the U.S. Borrower that is a Borrower and (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. βMoodyβsβ means Xxxxxβx Investors Service, Inc., or any successor by merger or consolidation to its business. βMultiemployer Planβ 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. βMultiple Employer Planβ 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. βNet Consolidated Interest Expenseβ 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. βNew Commitment Acceptanceβ means a New Commitment Acceptance executed and delivered by a New Lender, and accepted by the Administrative Agent, in accordance with Section 9.07 and in substantially the form of Exhibit C-3 hereto. βNew Lenderβ means, for purposes of Sections 2.06(b), 2.15(c) and 9.07(c), an Eligible Assignee, approved by the Administrative Agent and the Issuing Banks and Swing Loan FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 25 Lenders (which approval shall not be unreasonably withheld), that the U.S. Borrower has requested to become a Lender hereunder pursuant to said Section 2.06(b) or 2.15(c). βNon-Consenting Lenderβ 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. βNon-Defaulting Lenderβ means, at any time, a Lender that is not a Defaulting Lender. βNon-Recurring Itemsβ 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). βNoteβ means a Revolving Loan Note. βNotice of Revolving Loan Borrowingβ has the meaning specified in Section 3.01(a). βObligationsβ means (a) principal of and interest on the Loans made by each Lender to, and the Notes held by each Lender of, each Borrower or the Swing Loan Borrower, (b) all other amounts from time to time owing (including without limitation with respect to any Letters of Credit) to the Lenders or the Administrative Agent by any Borrower or the Swing Loan Borrower under this Agreement pursuant hereto or to its Euro Borrower Designation, as applicable, and under the Notes and (c) any Erroneous Payment Subrogation Rights, in each case strictly in accordance with the terms hereof. βOFACβ means the U.S. Department of the Treasuryβs Office of Foreign Assets Control. βOther Connection Taxesβ means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document). βOther Taxesβ means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.08). βOverdraft Advance Interest Rateβ means the rate of interest applicable to Overdraft Advances as set forth in the Overdraft Documents. βOverdraft Advancesβ has the meaning specified in Section 3.03(f). FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 26 βOverdraft Documentsβ means the documents, agreements and instruments from time to time governing the Overdraft Facility, as the same may be amended, supplemented or otherwise modified from time to time. βOverdraft Facilityβ has the meaning specified in Section 3.03(f). βParent Companyβ 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. βParticipant Registerβ has the meaning specified in Section 9.07(f). βParticipating Member Stateβ means each state so described in any EMU Legislation. βParticipation Agreementβ means a loan participation agreement in substantially the form of Exhibit C-2 hereto. βPatriot Actβ has the meaning specified in Section 9.16. βPayment Recipientβ has the meaning specified in Section 8.08(a). βPBGCβ means the Pension Benefit Guaranty Corporation or any successor. βPeriodic Term SOFR Determination Dayβ has the meaning specified in the definition of βTerm SOFRβ. βPermitβ means any permit, approval, authorization, license, variance or permission required from a Governmental Authority under an applicable Requirement of Law. βPersonβ 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. βPlanβ means a Single Employer Plan or a Multiple Employer Plan. βPlan Asset Regulationsβ means 29 CFR Β§ 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time. βPlatformβ has the meaning specified in Section 9.02(b)(ii). βPrincipal Financial Centerβ means, in the case of any Currency, the principal financial center of the country of issue of such Currency, as determined by the Administrative Agent. βpropertyβ or βpropertiesβ means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible. FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 27 βPTEβ means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time. βPublic Debt Ratingβ means, as of any date, the lowest rating that has been most recently announced by either S&P or Moodyβs, 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 Moodyβs, the Applicable Margin and the Applicable Percentage will be set in accordance with Level 6 under the definition of βApplicable Marginβ or βApplicable Percentageβ, as the case may be; (b) if only one of S&P and Moodyβs 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 βApplicable Marginβ or βApplicable Percentageβ, in the event the U.S. Borrower receives, at any time, (a) Public Debt Ratings that are one ratings level apart, for purposes of determining a rating level defined by an βorβ, 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 levels apart, the applicable Public Debt Rating to determine the rates or margins above shall be the Public Debt Rating that is one level 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 Moodyβs 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. βQuarterly Datesβ means the first Business Day of each April, July, October and January, commencing on the first such date to occur after the Effective Date. βReceivableβ means a right to receive payment arising from the sale or lease of goods or services by a Person to another Person. βReceivables Transactionβ 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. βRecipientβ means (a) the Administrative Agent, (b) any Lender or (c) any Issuing Bank, as applicable. βRegisterβ has the meaning specified in Section 9.07(d). βReimbursement Dateβ has the meaning specified in Section 3.04(g).
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 28 βReimbursement Obligationsβ means all matured reimbursement or repayment obligations of the Borrowers to any Issuing Bank with respect to amounts drawn under Letters of Credit. βRelated Partyβ has the meaning set forth in Section 9.04(b). βReleaseβ 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. βRelevant Governmental Bodyβ means (i) with respect to a Benchmark or Benchmark Replacement in respect of any Benchmark applicable to Dollars, the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto, and (ii) with respect to a Benchmark Replacement for any Benchmark applicable to a currency other than Dollars, (a) the central bank for the applicable currency or any central bank or other supervisor which is responsible for supervising (1) such Benchmark or Benchmark Replacement for such currency or (2) the administrator of such Benchmark or Benchmark Replacement for such currency or (b) any working group or committee officially endorsed or convened by: (1) the central bank for such currency, (2) any central bank or other supervisor that is responsible for supervising either (x) such Benchmark or Benchmark Replacement for such currency or (y) the administrator of such Benchmark or Benchmark Replacement for such currency, or (3) the Financial Stability Board, or a committee officially endorsed or convened by the Financial Stability Board, or any successor thereto. βRemedial Actionβ 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. βRequired Lendersβ means Lenders having more than 50% of the aggregate amount of the Commitments or, if the Commitments shall have terminated, Lenders holding more than 50% of the sum of (a) the aggregate unpaid principal amount of the Loans plus (b) the aggregate Available Amount of all Letters of Credit (computed, in the case of Loans denominated in an Alternate Currency and Letters of Credit denominated in Euros, as the Dollar Equivalent thereof, as determined by the Administrative Agent); provided that, for purposes hereof, neither any Borrower, nor any of its Affiliates, if a Lender, shall be included in (i) the Lenders holding such amount of the Loans or Available Amount of Letters of Credit or having such amount of the Commitments or (ii) determining the aggregate unpaid principal amount of the Loans or Available Amount of Letters of Credit or the total Commitments. For purposes of this definition, (i) the Available Amount of each Letter of Credit and the outstanding amount of each Swing Loan and Letter of Credit Loan shall be considered to be owed to the Lenders ratably according to the amounts of their respective Commitments (less, in the case of any Lender which is a Defaulting Lender as a result of a breach of its obligations under Section 3.03(c) or 3.04(b), the amount in respect of which such Lender is in default) and (ii) the unused Commitment of any FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 29 Defaulting Lender shall be disregarded in determining Required Lenders at any time in accordance with the second paragraph of Section 9.01. βRequirement of Lawβ 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. βResolution Authorityβ means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority. βRevolving Loanβ means a Dollar Revolving Loan or a Euro Revolving Loan. βRevolving Loan Borrowingβ means a borrowing consisting of simultaneous Revolving Loans of the same Type and, in the case of a SOFR Borrowing or a EURIBOR Borrowing, having the same Interest Period, made by each of the Lenders pursuant to Section 2.01(a). βRevolving Loan Noteβ means a promissory note of a Borrower payable to the order of any Lender, in substantially the form of Exhibit A-1 hereto, evidencing the aggregate indebtedness of such Borrower to such Lender resulting from the Revolving Loans made by such Lender to such Borrower. βRevolving Loan Outstandingsβ means, at any time, the then aggregate outstanding principal amount of all Revolving Loans (which shall be, in the case of Revolving Loans denominated in a Currency other than Dollars, the Dollar Equivalent thereof at such time). βS&Pβ means S&P Global Ratings, a subsidiary of S&P Global Inc., or any successor by merger or consolidation to its business. βSanctioned Countryβ means a country or territory that is subject or the target of a sanctions program administered or enforced by OFAC, the European Union, Her Majestyβs Treasury of the United Kingdom or the United Nations Security Council. βSanctioned Personβ 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 Majestyβs 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. βSanctionsβ means economic sanctions administered or enforced by OFAC, the U.S. Department of State, the European Union, Her Majestyβs Treasury of the United Kingdom or the United Nations Security Council. βScreen Rateβ has the meaning specified in the definition of βEURIBORβ. βSECβ means the United States Securities and Exchange Commission. FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 30 βSingle Employer Planβ 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. βSOFRβ means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator. βSOFR Administratorβ means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate). βSOFR Borrowingβ means, as to any Borrowing, the SOFR Loans comprising such Borrowing. βSOFR Loanβ means a Loan that bears interest at a rate based on Adjusted Term SOFR, other than pursuant to clause (c) of the definition of βBase Rateβ. βSPCβ has the meaning specified in Section 9.07(a). βStandby Letter of Creditβ means any Letter of Credit that is not a Documentary Letter of Credit. βStockβ 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. βStock Equivalentβ 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. βSubsidiaryβ of any Person means any corporation, partnership, limited liability company, joint venture, trust or estate of which more than 50% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such partnership, limited liability company or joint venture or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Personβs other Subsidiaries. βSwing Loanβ shall have the meaning assigned to such term in Section 2.03. βSwing Loan Borrowerβ means the U.S. Borrower. βSwing Loan Borrowingβ means a borrowing consisting of a Swing Loan made by any Swing Loan Lender. FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 31 βSwing Loan Commitmentβ means (i) the amount in Dollars set forth opposite each Swing Loan Lenderβs name on Schedule I hereto or (ii) if such Lender has entered into one or more Acceptances, the Dollar Equivalent of the amount set forth for such Lender in the Register as being its Swing Loan Commitment; and the Swing Loan Commitments shall, in the aggregate, not exceed the Swing Loan Sublimit, as such amount may be increased or reduced as provided in Section 2.06 or as otherwise expressly provided in this Agreement. βSwing Loan Lenderβ means each of BofA, Citibank or one or more of their respective Affiliates, and any other Lender that agrees, with the approval of the Administrative Agent and the U.S. Borrower, to act as a Swing Loan Lender hereunder, in each case, in its capacity as a Swing Loan Lender hereunder. Swing Loans shall be made by, and payments in respect of any Swing Loan shall be made to, each applicable Swing Loan Lender ratably based on such Swing Loan Lenderβs Swing Loan Commitment. βSwing Loan Requestβ shall have the meaning assigned to such term in Section 3.03(a). βSwing Loan Sublimitβ means $50,000,000. βSyndication Agentβ means BofA, as Syndication Agent. βTARGET Dayβ means any day on which TARGET2 (or, if such payment system ceases to be operative, such other payment system, if any, reasonably determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euros. βTARGET2β has the meaning specified in the definition of βBusiness Dayβ. βTaxesβ means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. βTermination Dateβ of any Lender means the date five (5) years after the Effective Date (as the same may be extended or changed pursuant to Section 2.06(b) or 2.15) or, if earlier, the date of termination in whole of the Commitments pursuant to the second sentence of Section 2.06(a)(i) or pursuant to Section 7.01. βTerm SOFRβ means, (a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the βPeriodic Term SOFR Determination Dayβ) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 88 and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness, (ii) any such Indebtedness shall become or be declared to be due and payable, or be required to be prepaid or repurchased (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof and the U.S. Borrower or such Subsidiary shall have failed to make such payment or effect such repurchase, and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness, or (iii) any other event shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness, provided that any required notice of such event or condition shall have been given or any applicable grace period shall have expired; provided however, that if there is acceleration of any Indebtedness which is included under this clause (d) solely because of a Guarantee by the U.S. Borrower or one of its Material Subsidiaries, an Event of Default will not exist under this clause (d) so long as the U.S. Borrower or such Material Subsidiary, as the case may be, fully performs its obligations in a timely manner under such Guarantee upon demand therefor by the beneficiary thereof; or (e) The U.S. Borrower or any of its Material Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the U.S. Borrower or any of its Material Subsidiaries seeking to adjudicate it as 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 $100,000,000 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; FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 89 (i) The U.S. Borrower or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent or in endangered or critical status or is being terminated, within the meaning of Title IV of ERISA, and such reorganization or termination would reasonably be expected to have a Material Adverse Effect; (j) The Guaranty set forth in Article X hereof shall cease to be valid and binding on, or enforceable against, the U.S. Borrower or the U.S. Borrower shall so state in writing; or (k) there shall occur any Change of Control; then, and in any such event, the Administrative Agent (i) shall at the request, or may with the express consent, of the Required Lenders, by notice to the U.S. Borrower, declare the obligation of each Lender to make Loans and of the Issuing Banks to issue Letters of Credit to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or may with the express consent, of the Required Lenders, by notice to the U.S. Borrower, declare the Loans and other Obligations to be forthwith due and payable, whereupon the Loans and other Obligations shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by each Borrower; provided however, that upon the occurrence of any Event of Default specified in Section 7.01(e), (A) the obligation of each Lender to make Loans and of each Issuing Bank to issue Letters of Credit shall automatically be terminated and (B) the Loans and other Obligations shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by each Borrower. SECTION 7.02. Actions in Respect of the Letters of Credit Upon Event of Default; L/C Cash Collateral Account; Investing of Amounts in the L/C Cash Collateral Account; Release. (a) Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the making of the request or the granting of the consent specified by Section 7.01 to authorize the Administrative Agent to declare the Loans due and payable pursuant to the provisions of Section 7.01, the Administrative Agent may, and at the request of the Required Lenders shall, irrespective of whether it is taking any of the actions described in Section 7.01 or otherwise, make demand upon the U.S. Borrower to, and forthwith upon such demand the U.S. Borrower will, pay to the Administrative Agent on behalf of the Lenders in same day funds at the Administrative Agentβs office designated in such demand, for deposit in the L/C Cash Collateral Account, an amount equal to the aggregate Available Amount of all Letters of Credit then outstanding in the Currency of such Letters of Credit; provided however, that upon the occurrence of any Event of Default specified in Section 7.01(e), such payments by the U.S. Borrower pursuant to this Section 7.02(a) shall automatically be required to be made. If at any time the Administrative Agent determines that any funds held in the L/C Cash Collateral Account are subject to any equal or prior right or claim of any Person other than any Agent and the Lenders pursuant to this Agreement or that the total amount of such funds is less than the aggregate Available Amount of all Letters of Credit, the U.S. Borrower will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited and held in the L/C Cash Collateral Account, an amount equal to the excess of (1) such aggregate Available Amount over (2) the total amount of funds, if any, then held in the L/C Cash Collateral Account that the Administrative Agent determines to be free and clear of any such equal or prior right and claim. FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 90 (b) The U.S. Borrower hereby authorizes the Administrative Agent to open at any time upon the occurrence and during the continuance of an Event of Default a non-interest bearing account with the Administrative Agent at its address designated in Section 9.02 in the name of the U.S. Borrower but in connection with which the Administrative Agent shall be the sole entitlement holder or customer (the βL/C Cash Collateral Accountβ), and hereby pledges and assigns and grants to the Administrative Agent on behalf of the Lenders a security interest in the following collateral (the βL/C Cash Collateral Account Collateralβ): (i) the L/C Cash Collateral Account, all funds held therein and all certificates and instruments, if any, from time to time representing or evidencing the investment of funds held therein, (ii) all L/C Cash Collateral Account Investments from time to time, and all certificates and instruments, if any, from time to time representing or evidencing the L/C Cash Collateral Account Investments, (iii) all notes, certificates of deposit, deposit accounts, checks and other instruments from time to time delivered to or otherwise possessed by the Administrative Agent for or on behalf of the U.S. Borrower in substitution for or in addition to any or all of the then existing L/C Cash Collateral Account Collateral, (iv) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the then existing L/C Cash Collateral Account Collateral, and (v) all proceeds of any and all of the foregoing L/C Cash Collateral Account Collateral. (c) If requested by the U.S. Borrower, the Administrative Agent will, subject to the provisions of clause (e) below, from time to time (i) invest amounts on deposit in the L/C Cash Collateral Account in such notes, certificates of deposit and other debt instruments as the U.S. Borrower may select and the Administrative Agent may approve and (ii) invest interest paid on the notes, certificates of deposit and other instruments referred to in clause (i) above, and reinvest other proceeds of any such notes, certificates of deposit and other instruments which may mature or be sold, in each case in such notes, certificates of deposit and other debt instruments as the U.S. Borrower may select and the Administrative Agent may approve (the notes, certificates of deposit and other instruments referred to in clauses (i) and (ii) above being collectively βL/C Cash Collateral Account Investmentsβ). Interest and proceeds that are not invested or reinvested in L/C Cash Collateral Account Investments as provided above shall be deposited and held in the L/C Cash Collateral Account. (d) Upon such time as (i) the aggregate Available Amount of all Letters of Credit is reduced to zero and such Letters of Credit are expired or terminated by their terms and all amounts payable in respect thereof, including but not limited to principal, interest, commissions, fees and expenses, have been paid in full in cash, and (ii) no Event of Default has occurred and is continuing under this Agreement, the Administrative Agent will pay and release to the U.S. Borrower or at its order (a) accrued interest due and payable on the L/C Cash Collateral Account Investments and in the L/C Cash Collateral Account, and (b) the balance remaining in the L/C Cash Collateral Account after the application, if any, by the Administrative FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 91 Agent of funds in the L/C Cash Collateral Account to the payment of amounts described in clause (i) of this subsection (d). (e) (i) The Administrative Agent may, without notice to the U.S. Borrower or any other Person except as required by law and at any time or from time to time, charge, set-off and otherwise apply all or any part of the L/C Cash Collateral Account against the obligations of the Borrowers in respect of Letters of Credit (collectively, the βL/C Cash Collateral Account Obligationsβ) or any part thereof. The Administrative Agent agrees to notify the U.S. Borrower promptly after any such set-off and application, provided that the failure of the Administrative Agent to give such notice shall not affect the validity of such set-off and application. (ii) The Administrative Agent may also exercise in respect of the L/C Cash Collateral Account Collateral, in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party on default under the Uniform Commercial Code in effect in the State of New York at that time (the βUCCβ) (whether or not the UCC applies to the affected L/C Cash Collateral Account Collateral), and may also, without notice except as specified below, sell the L/C Cash Collateral Account Collateral or any part thereof in one or more parcels at public or private sale, at any of the Administrative Agentβs offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Administrative Agent may deem commercially reasonable. Each Borrower agrees that, to the extent notice of sale shall be required by law, at least ten daysβ notice to the U.S. Borrower of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Administrative Agent shall not be obligated to make any sale of L/C Cash Collateral Account Collateral regardless of notice of sale having been given. The Administrative Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. (iii) Any cash held by the Administrative Agent as L/C Cash Collateral Account Collateral and all cash proceeds received by the Administrative Agent in respect of any sale of, collection from, or other realization upon all or any part of the L/C Cash Collateral Account Collateral may, in the discretion of the Administrative Agent, be held by the Administrative Agent as collateral for, and/or then or at any time thereafter be applied in whole or in part by the Administrative Agent against, all or any part of the L/C Cash Collateral Account Obligations in such order as the Administrative Agent shall elect. Any surplus of such cash or cash proceeds held by the Administrative Agent and remaining after payment in full of all the L/C Cash Collateral Account Obligations shall be paid over to the U.S. Borrower or to whomsoever may be lawfully entitled to receive such surplus. (f) Upon the permanent reduction from time to time of the aggregate Available Amount of all Letters of Credit in accordance with the terms thereof, the Administrative Agent shall release to the U.S. Borrower amounts from the L/C Cash Collateral Account in an amount equal to each such permanent reduction; provided that the Administrative Agent shall not be obligated to reduce the funds or other L/C Cash Collateral Account Collateral then held in the L/C Cash Collateral Account below that level that the Administrative Agent reasonably determines is required to be maintained after taking into consideration any rights or claims of any Persons other than the Administrative Agent and the Lenders.
[SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT] BNP PARIBAS, as a Lender By: /s/ Xxxxx XβXxxxx Name: Xxxxx XβXxxxx Title: Managing Director By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx Title: Vice President [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT] CoBank, ACB, as a Lender By: /s/ Xxxxx Castles Name: Xxxxx Castles Title: Vice President [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT] JPMorgan Chase Bank, N.A., as a Lender By: /s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: Executive Director [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT] Sumitomo Mitsui Banking Corporation, as a Lender By: /s/ Jun Ashley Name: Jun Ashley Title: Director
[SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT] TD Bank, N.A., as a Lender By: /s/ Xxxxx Xxxx Name: Xxxxx Xxxx Title: Senior Vice President [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT] Banco Santander, S.A., New York Branch, as a Lender By: /s/ Pablo Urgoiti Name: Pablo Urgoiti Title: Managing Director By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx Title: Managing Director [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT] TRUIST BANK, as a Lender By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx Title: Managing Director [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT] U.S. Bank National Association, as a Lender By: /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Vice President
[SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT] BANK OF CHINA, NEW YORK BRANCH, as a Lender By: /s/ Xxxxxxx Xxxx Name: Xxxxxxx Xxxx Title: Executive Vice President [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT] Citizens Bank, N.A., as a Lender By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxxxxx Title: Senior Vice President [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT] COΓPERATIEVE RABOBANK U.A., NEW YORK BRANCH, as a Lender By: /s/ Xxxxxxxxx Xxxxxx Name: Xxxxxxxxx Xxxxxx Title: Vice President By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Managing Director [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT] PNC Bank, National Association, as a Lender By: /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: SVP
[SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT] Xxxxx Fargo Bank, N.A., as a Lender By: /s/ Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx Title: Vice President
