UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 24, 2016
FMC CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware | 1-2376 | 94-0479804 | ||
|
(State or other jurisdiction of incorporation or organization) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
|
1735 Market Street Philadelphia, Pennsylvania |
19103 | |
| (Address of principal executive offices) | (Zip Code) | |
Registrant’s telephone number, including area code: 215-299-6000
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act |
| ¨ | Soliciting material pursuant to Rule 14a-2 under the Exchange Act |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act |
| Item 1.01. | Entry into a Material Definitive Agreement. |
Revolving Credit Agreement Amendment
On March 24, 2016, FMC Corporation (the “ Company ”) entered into Amendment No. 2 (“ Revolving Credit Amendment ”) to that certain Amended and Restated Credit Agreement, dated as of October 10, 2014, among the Company, as U.S. Borrower, certain foreign subsidiaries of the Company party thereto, as Euro Borrowers, the lenders (the “ Revolving Credit Lenders ”) and issuing banks party thereto, Citibank, N.A., as administrative agent, Citigroup Global Markets Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arrangers, Bank of America, N.A., as syndication agent, and certain other financial institutions party thereto as co-documentation agents (as previously amended, the “ Revolving Credit Agreement ”). Among other things, the Revolving Credit Amendment amends the maximum leverage ratio financial covenant and the definition of “EBITDA” in the Revolving Credit Agreement and adds certain European Union Bail-In contractual recognition provisions, in each case as set forth in the Revolving Credit Amendment.
The foregoing description of the Revolving Credit Amendment does not purport to be complete and is qualified in its entirety by reference to the Revolving Credit Amendment, which is filed as Exhibit 10.1 to this Current Report on Form 8-K.
Some of the Revolving Credit Lenders and their affiliates have various relationships with the Company involving the provision of financial services, including cash management, investment banking and trust and leasing services. In addition, the Company has entered into interest rate, foreign exchange and energy derivative arrangements with some of the Revolving Credit Lenders and their affiliates.
Term Loan Agreement Amendment
On March 24, 2016, the Company entered into Amendment No. 2 (“ Term Loan Amendment ”) to that certain Term Loan Agreement, dated as of October 10, 2014, among the Company, as U.S. Borrower, certain foreign subsidiaries of the Company party thereto, as Euro Borrowers, the lenders party thereto (the “ Term Loan Lenders ”), Citibank, N.A., as administrative agent, Citigroup Global Markets Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arrangers, Bank of America, N.A., as syndication agent, and certain other financial institutions party thereto as co-documentation agents (as previously amended, the “ Term Loan Agreement ”). Among other things, the Term Loan Amendment amends the maximum leverage ratio financial covenant and the definition of “EBITDA” in the Revolving Credit Agreement and adds certain European Union Bail-In contractual recognition provisions, in each case as set forth in the Term Loan Amendment.
The foregoing description of the Term Loan Amendment does not purport to be complete and is qualified in its entirety by reference to the Term Loan Amendment, which is filed as Exhibit 10.2 to this Current Report on Form 8-K.
Some of the Term Loan Lenders and their affiliates have various relationships with the Company involving the provision of financial services, including cash management, investment banking and trust and leasing services. In addition, the Company has entered into interest rate, foreign exchange and energy derivative arrangements with some of the Term Loan Lenders and their affiliates.
| Item 2.03. | Creation of a Direct Financial Obligation of a Registrant. |
The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
|
Exhibit
|
Description |
|
| 10.1 | Amendment No. 2, dated as of March 24, 2016, to the Amended and Restated Credit Agreement, dated as of October 10, 2014, among FMC Corporation, certain subsidiaries of FMC Corporation party thereto, the lenders and issuing banks party thereto, and Citibank, N.A., as Administrative Agent for such lenders. | |
| 10.2 | Amendment No. 2, dated as of March 24, 2016, to the Term Loan Agreement, dated as of October 10, 2014, among FMC Corporation, certain subsidiaries of FMC Corporation party thereto, the lenders party thereto, and Citibank, N.A., as Administrative Agent for such lenders. | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
|
FMC CORPORATION (Registrant) |
||||||
| Date: March 28, 2016 | By: |
/s/ Andrew D. Sandifer |
||||
| Andrew D. Sandifer | ||||||
|
Vice President and Treasurer |
||||||
EXHIBIT INDEX
|
Exhibit
|
Description |
|
| 10.1 | Amendment No. 2, dated as of March 24, 2016, to the Amended and Restated Credit Agreement, dated as of October 10, 2014, among FMC Corporation, certain subsidiaries of FMC Corporation party thereto, the lenders and issuing banks party thereto, and Citibank, N.A., as Administrative Agent for such lenders. | |
| 10.2 | Amendment No. 2, dated as of March 24, 2016, to the Term Loan Agreement, dated as of October 10, 2014, among FMC Corporation, certain subsidiaries of FMC Corporation party thereto, the lenders party thereto, and Citibank, N.A., as Administrative Agent for such lenders. | |
Exhibit 10.1
EXECUTION VERSION
AMENDMENT NO. 2
AMENDMENT NO. 2 , dated as of March 24, 2016 (this “ Amendment ”), to the Amended and Restated Credit Agreement, dated as of October 10, 2014 (as amended by that certain Amendment No. 1, dated as of August 26, 2015, and as the same may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among FMC Corporation, a Delaware corporation (the “ Company ”), certain of the Company’s subsidiaries from time to time party thereto as borrowers (together with the Company, the “ Borrowers ”), Citibank, N.A., as Administrative Agent (as such term is defined in the Credit Agreement), and each lender and issuing bank from time to time party thereto (collectively, the “ Lenders ” and individually, a “ Lender ”).
WHEREAS, the Company has requested certain changes to the Credit Agreement as described herein (the “ Proposed Amendments ”);
WHEREAS, Section 9.01 of the Credit Agreement provides that the Company and the Required Lenders may amend the Loan Documents;
WHEREAS, the Lenders party hereto have agreed to approve the Proposed Amendments; and
WHEREAS, in order to effect the foregoing, the Company and the other parties hereto desire to amend the Credit Agreement, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I
Amendment
SECTION 1.01. Defined Terms . Capitalized terms used herein (including in the recitals hereto) and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. The rules of construction specified in Section 1.04 of the Credit Agreement also apply to this Amendment.
SECTION 1.02. Amendment of Credit Agreement . Effective as of the Amendment Effective Date (as defined below):
(a) Section 1.01 of the Credit Agreement is hereby amended to add the following new defined terms in their correct alphabetical order:
“ Bail-In Action ” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“ Bail-In Legislation ” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“ EEA Financial Institution ” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“ EEA Member Country ” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“ EEA Resolution Authority ” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“ EU Bail-In Legislation Schedule ” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“ Write-Down and Conversion Powers ” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
(b) The definition of “Defaulting Lender” in Section 1.01 of the Credit Agreement is hereby amended by deleting the word “or” before clause (v) thereof and adding the following new clause (vi) before the first proviso thereof:
“or (vi) any Lender that has, or has a Parent Company that has, become the subject of a Bail-in Action.”
(c) The definition of “EBITDA” in Section 1.01 of the Credit Agreement is amended as of the Effective Date by (i) deleting the word “and” before clause (e) thereof and adding the following new clause (f): “and (f) all fees, expenses and charges incurred in connection with or arising as a result of any proposed or actual acquisitions, investments, asset sales or divestitures”; and (ii) adding the following parenthetical at the end of clause (ii) thereof, but before the word “and”: “(excluding any item under clause (f) above)”.
(d) Article II of the Credit Agreement is hereby amended to add the following new Section 2.17 :
“SECTION 2.17. Acknowledgement and Consent to Bail-In of EEA Financial Institutions . Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
2
(b) the effects of any Bail-in Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.”
(e) Section 6.01(a) of the Credit Agreement is hereby amended and restated in its entirety as follows:
The U.S. Borrower shall maintain, on the last day of each Fiscal Quarter ending on or following the Closing Date, a Leverage Ratio of not more than the applicable level set forth below adjacent to such Fiscal Quarter:
|
Fiscal Quarter |
Maximum Leverage Ratio | |
|
March 31, 2016 |
4.50 to 1.00 | |
|
June 30, 2016 |
4.50 to 1.00 | |
|
September 30, 2016 |
4.25 to 1.00 | |
|
December 31, 2016 |
4.25 to 1.00 | |
|
March 31, 2017 |
4.00 to 1.00 | |
|
June 30, 2017 |
3.75 to 1.00 | |
|
September 30, 2017 and thereafter |
3.50 to 1.00 |
SECTION 1.03. Effectiveness . Section 1.02 of this Amendment shall become effective as of the first date (the “ Amendment Effective Date ”) on which the following conditions have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received from the Company and the Required Lenders either (x) counterparts of this Amendment signed on behalf of such parties or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile or other electronic transmissions of signed signature pages) that such parties have signed counterparts of this Amendment.
(b) The Administrative Agent shall have received, in immediately available funds, payment or reimbursement of all costs, fees, out-of-pocket expenses, compensation and other amounts then due and payable in connection with this Amendment, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent.
3
The Administrative Agent shall notify the Company and the Lenders of the Amendment Effective Date and such notice shall be conclusive and binding.
ARTICLE II
Miscellaneous
SECTION 2.01. Representations and Warranties . (a) To induce the other parties hereto to enter into this Amendment, the Company represents and warrants to each of the Lenders and the Administrative Agent that, as of the Amendment Effective Date and after giving effect to the transactions and amendments to occur on the Amendment Effective Date, this Amendment has been duly authorized, executed and delivered by the Company and constitutes, and the Credit Agreement, as amended hereby on the Amendment Effective Date, will constitute, legal, valid and binding obligations of the Borrowers, enforceable against each of the Borrowers in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors’ rights generally and by general principles of equity and the implied covenant of good faith and fair dealing.
(b) Each of the representations and warranties made by each party to each Loan Document in or pursuant to this Amendment or any other Loan Document, or contained in any certificate or financial statement (other than estimates and projections which are (x) identified as such and (y) contained in any financial statement) furnished at any time under or in connection with this Amendment or any other Loan Document shall be true and correct in all material respects on and as of the Amendment Effective Date as if made on and as of such date (except to the extent that such representations and warranties relate to a particular date, in which case such representations and warranties shall be true and correct in all material respects on and as of such date), both before and after giving effect to the this Amendment.
(c) After giving effect to this Amendment and the transactions contemplated hereby on the relevant date, no Default or Event of Default has occurred and is continuing on the Amendment Effective Date.
SECTION 2.02. Effect of Amendment . (a) Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of, the Administrative Agent, the Lenders, any other Agent and any of their respective Affiliates under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to establish a precedent for purposes of interpreting the provisions of the Credit Agreement or entitle any Borrower to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances. This Amendment shall apply to and be effective only with respect to the provisions of the Credit Agreement and the other Loan Documents specifically referred to herein.
(b) On and after the Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import, and each reference to the Credit Agreement, “thereunder”, “thereof”, “therein” or words of like import in any other Loan Document, shall be deemed a reference to the Credit Agreement, as amended hereby. This Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.
4
SECTION 2.03. Governing Law . THIS AMENDMENT SHALL BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK . The other provisions of Article IX of the Credit Agreement shall apply to this Amendment to the same extent as if fully set forth herein.
SECTION 2.04. Headings . The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
[ SIGNATURE PAGES FOLLOW ]
5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their officers as of the date first above written.
| The U.S. Borrower | ||||
| FMC CORPORATION | ||||
| By: |
/s/ Andrew D. Sandifer |
|||
| Name: | Andrew D. Sandifer | |||
| Title: | Vice President and Treasurer | |||
| The Euro Borrowers | ||||
| FMC FINANCE B.V. | ||||
| By: |
/s/ Andrew D. Sandifer |
|||
| Name: | Andrew D. Sandifer | |||
| Title: |
Authorized Signatory, as Attorney-in-Fact |
|||
| FMC CHEMICALS NETHERLANDS B.V. | ||||
| By: |
/s/ Andrew D. Sandifer |
|||
| Name: | Andrew D. Sandifer | |||
| Title: |
Authorized Signatory, as Attorney-in-Fact |
|||
| FMC FORET, S.A. | ||||
| By: |
/s/ Andrew D. Sandifer |
|||
| Name: | Andrew D. Sandifer | |||
| Title: |
Authorized Signatory, as Attorney-in-Fact |
|||
| SURETY INTERNATIONAL LTD. | ||||
| By: |
/s/ Andrew D. Sandifer |
|||
| Name: | Andrew D. Sandifer | |||
| Title: |
Authorized Signatory, as Attorney-in-Fact |
|||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| FMC LUXEMBOURG HOLDINGS S.À R.L. | ||||
| By: |
/s/ Andrew D. Sandifer |
|||
| Name: | Andrew D. Sandifer | |||
| Title: |
Authorized Signatory, as Attorney-in-Fact |
|||
| FMC LUXEMBOURG S.À R.L. | ||||
| By: |
/s/ Andrew D. Sandifer |
|||
| Name: | Andrew D. Sandifer | |||
| Title: |
Authorized Signatory, as Attorney-in-Fact |
|||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| CITIBANK, N.A., | ||||
| as Administrative Agent, Lender, Issuing Bank and Swing Loan Lender | ||||
| By: |
/s/ Michael Vondriska |
|||
| Name: | Michael Vondriska | |||
| Title: | Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| BANK OF AMERICA, N.A., | ||||
| as Syndication Agent, Lender, Issuing Bank and Swing Loan Lender | ||||
| By: |
/s/ Christopher DiBiase |
|||
| Name: | Christopher DiBiase | |||
| Title: | Director | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| Australia and New Zealand Banking Group | ||||
| Limited, as a Lender | ||||
| By: |
/s/ Robert Grillo |
|||
| Name: | Robert Grillo | |||
| Title: | Director | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| BANK OF CHINA, NEW YORK BRANCH, | ||||
| as a Lender | ||||
| By: |
/s/ Chen Xu |
|||
| Name: | Chen Xu | |||
| Title: | President & CEO | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| BNP Paribas, | ||||
| as a Lender | ||||
| By: |
/s/ Michael Hoffman |
|||
| Name: | Michael Hoffman | |||
| Title: | Director | |||
| By: |
/s/ Todd Grossnickle |
|||
| Name: | Todd Grossnickle | |||
| Title: | Director | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| Branch Banking and Trust Company, | ||||
| as a Lender | ||||
| By: |
/s/ Steven Thompson |
|||
| Name: | Steven Thompson | |||
| Title: | Assistant Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| Citizens Bank of Pennsylvania, | ||||
| as a Lender | ||||
| By: |
/s/ Leslie D. Broderick |
|||
| Name: | Leslie D. Broderick | |||
| Title: | Senior Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| CoBank, ACB, | ||||
| as a Lender | ||||
| By: |
/s/ Hal Nelson |
|||
| Name: | Hal Nelson | |||
| Title: | Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| DNB CAPITAL LLC, | ||||
| as a Lender | ||||
| By: |
/s/ Phillip F. Kurplewski |
|||
| Name: | Phillip F. Kurplewski | |||
| Title: | Senior Vice President | |||
| By: |
/s/ Rune Nilsen, Jr. |
|||
| Name: | Rune Nilsen, Jr. | |||
| Title: | Senior Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| HSBC Bank USA, National Association, | ||||
| as a Lender | ||||
| By: |
/s/ David A. Mandell |
|||
| Name: | David A. Mandell | |||
| Title: | Managing Director | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| JPMORGAN CHASE BANK, N.A., | ||||
| as a Lender | ||||
| By: |
/s/ James A. Knight |
|||
| Name: | James A. Knight | |||
| Title: | Executive Director | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| KBC Bank N.V., New York Branch, | ||||
| as a Lender | ||||
| By: |
/s/ Sheila Bermejo |
|||
| Name: | Sheila Bermejo | |||
| Title: | Vice President | |||
| By: |
/s/ Thomas R. Lalli |
|||
| Name: | Thomas R. Lalli | |||
| Title: | Managing Director | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| Lloyds Bank, plc, | ||||
| as a Lender | ||||
| By: |
/s/ Erin Doherty |
|||
| Name: | Erin Doherty | |||
| Title: | Assistant Vice President | |||
| Transaction Execution | ||||
| Category A | ||||
| D006 | ||||
| By: |
/s/ Daven Popat |
|||
| Name: | Daven Poopat | |||
| Title: | Senior Vice President | |||
| Transaction Execution | ||||
| Category A | ||||
| P003 | ||||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| Sumitomo Mitsui Banking Corporation, | ||||
| as a Lender | ||||
| By: |
/s/ James D. Weinstein |
|||
| Name: | James D. Weinstein | |||
| Title: | Managing Director | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| TD BANK, N.A., | ||||
| as a Lender | ||||
| By: |
/s/ Craig Welch |
|||
| Name: | Craig Welch | |||
| Title: | Senior Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| The Bank of New York Mellon, | ||||
| as a Lender | ||||
| By: |
/s/ Mark W. Rogers |
|||
| Name: | Mark W. Rogers | |||
| Title: | Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| THE BANK OF TOKYO-MITSUBISHI UFJ, | ||||
| LTD., as a Lender | ||||
| By: |
/s/ Mustafa I. A. Khan |
|||
| Name: | Mustafa I. A. Kahn | |||
| Title: | Director | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| U.S. BANK NATIONAL ASSOCIATION, | ||||
| as a Lender | ||||
| By: |
/s/ Mark Irey |
|||
| Name: | Mark Irey | |||
| Title: | Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
| WELLS FARGO BANK, N.A., | ||||
| as a Lender | ||||
| By: |
/s/ Joseph Gricco |
|||
| Name: | Joseph Gricco | |||
| Title: | Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
A MENDED AND R ESTATED C REDIT A GREEMENT ]
Exhibit 10.2
EXECUTION VERSION
AMENDMENT NO. 2
AMENDMENT NO. 2 , dated as of March 24, 2016 (this “ Amendment ”), to the Term Loan Agreement, dated as of October 10, 2014 (as amended by that certain Amendment No. 1, dated as of August 26, 2015, and as the same may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Term Loan Agreement ”), among FMC Corporation, a Delaware corporation (the “ Company ”), certain of the Company’s subsidiaries from time to time party thereto as borrowers (together with the Company, the “ Borrowers ”), Citibank, N.A., as Administrative Agent (as such term is defined in the Term Loan Agreement), and each lender from time to time party thereto (collectively, the “ Lenders ” and individually, a “ Lender ”).
WHEREAS, the Company has requested certain changes to the Term Loan Agreement as described herein (the “ Proposed Amendments ”);
WHEREAS, Section 9.01 of the Term Loan Agreement provides that the Company and the Required Lenders may amend the Loan Documents;
WHEREAS, the Lenders party hereto have agreed to approve the Proposed Amendments; and
WHEREAS, in order to effect the foregoing, the Company and the other parties hereto desire to amend the Term Loan Agreement, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I
Amendment
SECTION 1.01. Defined Terms . Capitalized terms used herein (including in the recitals hereto) and not otherwise defined herein shall have the meanings assigned to such terms in the Term Loan Agreement. The rules of construction specified in Section 1.04 of the Term Loan Agreement also apply to this Amendment.
SECTION 1.02. Amendment of Term Loan Agreement . Effective as of the Amendment Effective Date (as defined below):
(a) Section 1.01 of the Term Loan Agreement is hereby amended to add the following new defined terms in their correct alphabetical order:
“ Bail-In Action ” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“ Bail-In Legislation ” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“ EEA Financial Institution ” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“ EEA Member Country ” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“ EEA Resolution Authority ” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“ EU Bail-In Legislation Schedule ” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“ Write-Down and Conversion Powers ” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
(b) The definition of “Defaulting Lender” in Section 1.01 of the Term Loan Agreement is hereby amended by deleting the word “or” before clause (v) thereof and adding the following new clause (vi) before the first proviso thereof:
“or (vi) any Lender that has, or has a Parent Company that has, become the subject of a Bail-in Action.”
(c) The definition of “EBITDA” in Section 1.01 of the Term Loan Agreement is amended as of the Effective Date by (i) deleting the word “and” before clause (e) thereof and adding the following new clause (f): “and (f) all fees, expenses and charges incurred in connection with or arising as a result of any proposed or actual acquisitions, investments, asset sales or divestitures”; and (ii) adding the following parenthetical at the end of clause (ii) thereof, but before the word “and”: “(excluding any item under clause (f) above)”.
(d) Article II of the Term Loan Agreement is hereby amended to add the following new Section 2.17 :
“SECTION 2.17. Acknowledgement and Consent to Bail-In of EEA Financial Institutions . Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
2
(b) the effects of any Bail-in Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.”
(e) Section 6.01(a) of the Term Loan Agreement is hereby amended and restated in its entirety as follows:
The U.S. Borrower shall maintain, on the last day of each Fiscal Quarter ending on or following the Closing Date, a Leverage Ratio of not more than the applicable level set forth below adjacent to such Fiscal Quarter:
|
Fiscal Quarter |
Maximum Leverage Ratio | |
|
March 31, 2016 |
4.50 to 1.00 | |
|
June 30, 2016 |
4.50 to 1.00 | |
|
September 30, 2016 |
4.25 to 1.00 | |
|
December 31, 2016 |
4.25 to 1.00 | |
|
March 31, 2017 |
4.00 to 1.00 | |
|
June 30, 2017 |
3.75 to 1.00 | |
|
September 30, 2017 and thereafter |
3.50 to 1.00 |
SECTION 1.03. Effectiveness . Section 1.02 of this Amendment shall become effective as of the first date (the “ Amendment Effective Date ”) on which the following conditions have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received from the Company and the Required Lenders either (x) counterparts of this Amendment signed on behalf of such parties or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile or other electronic transmissions of signed signature pages) that such parties have signed counterparts of this Amendment.
(b) The Administrative Agent shall have received, in immediately available funds, payment or reimbursement of all costs, fees, out-of-pocket expenses, compensation and other amounts then due and payable in connection with this Amendment, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent.
3
The Administrative Agent shall notify the Company and the Lenders of the Amendment Effective Date and such notice shall be conclusive and binding.
ARTICLE II
Miscellaneous
SECTION 2.01. Representations and Warranties . (a) To induce the other parties hereto to enter into this Amendment, the Company represents and warrants to each of the Lenders and the Administrative Agent that, as of the Amendment Effective Date and after giving effect to the transactions and amendments to occur on the Amendment Effective Date, this Amendment has been duly authorized, executed and delivered by the Company and constitutes, and the Term Loan Agreement, as amended hereby on the Amendment Effective Date, will constitute, legal, valid and binding obligations of the Borrowers, enforceable against each of the Borrowers in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors’ rights generally and by general principles of equity and the implied covenant of good faith and fair dealing.
(b) Each of the representations and warranties made by each party to each Loan Document in or pursuant to this Amendment or any other Loan Document, or contained in any certificate or financial statement (other than estimates and projections which are (x) identified as such and (y) contained in any financial statement) furnished at any time under or in connection with this Amendment or any other Loan Document shall be true and correct in all material respects on and as of the Amendment Effective Date as if made on and as of such date (except to the extent that such representations and warranties relate to a particular date, in which case such representations and warranties shall be true and correct in all material respects on and as of such date), both before and after giving effect to the this Amendment.
(c) After giving effect to this Amendment and the transactions contemplated hereby on the relevant date, no Default or Event of Default has occurred and is continuing on the Amendment Effective Date.
SECTION 2.02. Effect of Amendment . (a) Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of, the Administrative Agent, the Lenders, any other Agent and any of their respective Affiliates under the Term Loan Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Term Loan Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to establish a precedent for purposes of interpreting the provisions of the Term Loan Agreement or entitle any Borrower to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Term Loan Agreement or any other Loan Document in similar or different circumstances. This Amendment shall apply to and be effective only with respect to the provisions of the Term Loan Agreement and the other Loan Documents specifically referred to herein.
(b) On and after the Amendment Effective Date, each reference in the Term Loan Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import, and each reference to the Term Loan Agreement, “thereunder”, “thereof”, “therein” or words of like import in any other Loan Document, shall be deemed a reference to the Term Loan Agreement, as amended hereby. This Amendment shall constitute a “Loan Document” for all purposes of the Term Loan Agreement and the other Loan Documents.
4
SECTION 2.03. Governing Law . THIS AMENDMENT SHALL BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK . The other provisions of Article IX of the Term Loan Agreement shall apply to this Amendment to the same extent as if fully set forth herein.
SECTION 2.04. Headings . The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
[ SIGNATURE PAGES FOLLOW ]
5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their officers as of the date first above written.
| The U.S. Borrower | ||||
| FMC CORPORATION | ||||
| By: |
/s/ Andrew D. Sandifer |
|||
| Name: | Andrew D. Sandifer | |||
| Title: | Vice President and Treasurer | |||
| The Euro Borrowers | ||||
| FMC FINANCE B.V. | ||||
| By: |
/s/ Andrew D. Sandifer |
|||
| Name: | Andrew D. Sandifer | |||
| Title: |
Authorized Signatory, as Attorney-in-Fact |
|||
| FMC CHEMICALS NETHERLANDS B.V. | ||||
| By: |
/s/ Andrew D. Sandifer |
|||
| Name: | Andrew D. Sandifer | |||
| Title: |
Authorized Signatory, as Attorney-in-Fact |
|||
| FMC LUXEMBOURG HOLDINGS S.À R.L. | ||||
| By: |
/s/ Andrew D. Sandifer |
|||
| Name: | Andrew D. Sandifer | |||
| Title: |
Authorized Signatory, as Attorney-in-Fact |
|||
| FMC LUXEMBOURG S.À R.L. | ||||
| By: |
/s/ Andrew D. Sandifer |
|||
| Name: | Andrew D. Sandifer | |||
| Title: |
Authorized Signatory, as Attorney-in-Fact |
|||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| CITIBANK, N.A., | ||||
| as Administrative Agent and Lender | ||||
| By: |
/s/ Michael Vondriska |
|||
| Name: | Michael Vondriska | |||
| Title: | Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| BANK OF AMERICA, N.A., | ||||
| as Syndication Agent and Lender | ||||
| By: |
/s/ Christopher DiBiase |
|||
| Name: | Christopher DiBiase | |||
| Title: | Director | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| Australia and New Zealand Banking Group | ||||
|
Limited, as Lender |
||||
| By: |
/s/ Robert Grillo |
|||
| Name: | Robert Grillo | |||
| Title: | Director | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| BANK OF CHINA, NEW YORK, | ||||
| as a Lender | ||||
| By: |
/s/ Chen Xu |
|||
| Name: | Chen Xu | |||
| Title: | President & CEO | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| Bayerische Landesbank New York Branch, | ||||
| as a Lender | ||||
| By: |
/s/ Matthew DeCarlo |
|||
| Name: | Matthew DeCarlo | |||
| Title: | Senior Director | |||
| By: |
/s/ Elke Videgain |
|||
| Name: | Elke Videgain | |||
| Title: | Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| BNP Paribas, | ||||
| as a Lender | ||||
| By: |
/s/ Michael Hoffman |
|||
| Name: | Michael Hoffman | |||
| Title: | Director | |||
| By: |
/s/ Todd Grossnickle |
|||
| Name: | Todd Grossnickle | |||
| Title: | Director | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| Branch Banking and Trust Company, | ||||||
| as a Lender | ||||||
| By: |
/s/ Steven Thompson |
|||||
| Name: | Steven Thompson | |||||
| Title: | Assistant Vice President | |||||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| Citizens Bank of Pennsylvania, | ||||||
| as a Lender | ||||||
| By: |
/s/ Jeffrey Mills |
|||||
| Name: | Jeffrey Mills | |||||
| Title: | Vice President | |||||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| CoBank, ACB, | ||||||
| as a Lender | ||||||
| By: |
/s/ Hal Nelson |
|||||
| Name: | Hal Nelson | |||||
| Title: | Vice President | |||||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| Compass Bank D/B/A BBVA Compass, | ||||
| as a Lender | ||||
| By: |
/s/ Raj Nambiar |
|||
| Name: | Raj Nambiar | |||
| Title: | Senior Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH fka COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH, | ||||
| as a Lender | ||||
| By: |
/s/ Peter Duncan |
|||
| Name: | Peter Duncan | |||
| Title: | Managing Director | |||
| By: |
/s/ Erin Thomas-Walker |
|||
| Name: | Erin Thomas-Walker | |||
| Title: | Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| DNB CAPITAL LLC, | ||||
| as a Lender | ||||
| By: |
/s/ Phillip Kurpiewski |
|||
| Name: | Phillip Kurpiewski | |||
| Title: | Senior Vice President | |||
| By: |
/s/ Rune Nilsen |
|||
| Name: | Rune Nilsen | |||
| Title: | Senior Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| FARM CREDIT BANK OF TEXAS, | ||||
| as a Lender | ||||
| By: |
/s/ Chris M. Levine |
|||
| Name: | Chris M. Levine | |||
| Title: | Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| HSBC Bank USA, National Association, | ||||
| as a Lender | ||||
| By: |
/s/ David A. Mandell |
|||
| Name: | David A. Mandell | |||
| Title: | Managing Director | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| JPMORGAN CHASE BANK, N.A., | ||||
| as a Lender | ||||
| By: |
/s/ James A. Knight |
|||
| Name: | James A. Knight | |||
| Title: | Executive Director | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| KBC Bank N.V., New York Branch, | ||||
| as a Lender | ||||
| By: |
/s/ Sheila Bermejo |
|||
| Name: | Shelia Bermejo | |||
| Title: | Vice President | |||
| By: |
/s/ Thomas R. Lalli |
|||
| Name: | Thomas R. Lalli | |||
| Title: | Managing Director | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| Lloyds Bank plc, | ||||
| as a Lender | ||||
| By: |
/s/ Erin Doherty |
|||
| Name: | Erin Doherty | |||
| Title: | Assistant Vice President | |||
| Transaction Execution | ||||
| Category A | ||||
| D006 | ||||
| By: |
/s/ Daven Popat |
|||
| Name: | Daven Popat | |||
| Title: | Senior Vice President | |||
| Transaction Execution | ||||
| Category A | ||||
| P003 | ||||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| Nordea Bank Finland Plc, New York Branch, | ||||
| as a Lender | ||||
| By: |
/s/ Ulrik Berg Andersen |
|||
| Name: | Ulrik Berg Andersen | |||
| Title: | Vice President | |||
| By: |
/s/ Rolf Rosan |
|||
| Name: | Rolf Rosan | |||
| Title: | Senior Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| Santander Bank, N.A., | ||||
| as a Lender | ||||
| By: |
/s/ John W. Deegan |
|||
| Name: | John W. Deegan | |||
| Title: | Executive Director | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| Sumitomo Mitsui Banking Corporation, | ||||
| as a Lender | ||||
| By: |
/s/ James D. Weinstein |
|||
| Name: | James D. Weinstein | |||
| Title: | Managing Director | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| SunTrust Bank, | ||||
| as a Lender | ||||
| By: |
/s/ Chris Hursey |
|||
| Name: | Chris Hursey | |||
| Title: | Director | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| TD BANK, N.A., | ||||
| as a Lender | ||||
| By: |
/s/ Craig Welch |
|||
| Name: | Craig Welch | |||
| Title: | Senior Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| The Bank of New York Mellon, | ||||
| as a Lender | ||||
| By: |
/s/ Mark W. Rogers |
|||
| Name: | Mark W. Rogers | |||
| Title: | Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| THE BANK OF TOKYO-MITSUBISHI UFJ, | ||||
| LTD., as a Lender | ||||
| By: |
/s/ Mustafa Khan |
|||
| Name: | Mustafa Kahn | |||
| Title: | Director | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| U.S. BANK NATIONAL ASSOCIATION, | ||||
| as a Lender | ||||
| By: |
/s/ Mark Irey |
|||
| Name: | Mark Irey | |||
| Title: | Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]
| WELLS FARGO BANK, N.A., | ||||
| as a Lender | ||||
| By: |
/s/ Joseph Gricco |
|||
| Name: | Joseph Gricco | |||
| Title: | Vice President | |||
[S IGNATURE P AGE TO A MENDMENT N O . 2 TO
T ERM L OAN A GREEMENT ]