EXHIBIT 4.4
FIRST AMENDMENT TO FIVE-YEAR CREDIT AGREEMENT
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THIS AMENDMENT (herein so called) is entered into as of May 30, 2001, among
FMC CORPORATION, a Delaware corporation ("FMC"), FMC TECHNOLOGIES, INC., a
Delaware corporation ("Technologies"), the Lenders (herein so called) party to
the Credit Agreement (hereinafter defined) and BANK OF AMERICA, N.A., as
Administrative Agent (as defined in the Credit Agreement) for the Lenders and as
L/C Issuer (as defined in the Credit Agreement).
FMC, Technologies, the Lenders, the Administrative Agent and the L/C Issuer
are party to the Five-Year Credit Agreement dated as of April 26, 2001 (the
"Credit Agreement"), and have agreed, upon the following terms and conditions,
to amend the Credit Agreement in certain respects. Accordingly, for valuable and
acknowledged consideration, FMC, Technologies, the Lenders, the Administrative
Agent and the L/C Issuer agree as follows:
1. Terms and References. Unless otherwise stated in this Amendment, (a)
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terms defined in the Credit Agreement have the same meanings when used in this
Amendment and (b) references to "Sections," "Articles" and "Exhibits" are to the
Credit Agreement's sections, articles and exhibits.
2. Amendments. The Credit Agreement is amended as follows:
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(a) Section 2.04(c) is entirely amended as follows:
"(c) [Intentionally deleted]"
(b) Section 4.01(a)(v) is entirely amended as follows:
"(v) a certificate signed by a Principal Officer of
Technologies (A) certifying that the conditions specified in
Sections 4.03(a) and (b) have been satisfied, (B) certifying that
there has been no event or circumstance since December 31, 2000,
which has had or could be reasonably expected to have a Material
Adverse Effect, and (c) showing the Debt Ratings of FMC on the
Closing Date;"
(c) A new Section 4.01(e) is added as follows:
"(e) The Assumption Date shall have occurred."
(d) Section 4.02 is entirely amended as follows:
"4.02 Conditions to the Assumption. The Assumption shall
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become effective on the date (the "Assumption Date") when, but
only when, the following conditions precedent have been
satisfied:
(a) The transfer of substantially all of the assets by
FMC to Technologies, and the assumption of the liabilities
of FMC by
Technologies, each as described in the Registration
Statement, shall have occurred.
(b) No Default or Event of Default shall exist or would
result from the Assumption.
(c) The representations and warranties of the Borrower
contained in Article V shall be true and correct in all
material respects on the Assumption Date after giving effect
to the Assumption, except to the extent that such
representations and warranties specifically refer to an
earlier date, in which case they shall have been true and
correct in all material respects as of such earlier date.
(d) The Administrative Agent shall have received each
of the following, in form and substance satisfactory to it:
(i) the Guaranty executed by FMC;
(ii) a certificate of a Principal Officer of
Technologies certifying that the conditions specified
in Sections 4.02(a), (b) and (c) have been satisfied;
(iii) executed copies of the Separation and
Distribution Agreement, the Tax Sharing Agreement, the
Transition Services Agreement (and any related
agreements requested by the Administrative Agent), and
a list of Subsidiaries of Technologies, each as
described in, and substantially in the form filed as
exhibits to, the Registration Statement and each having
terms and conditions reasonably acceptable to the
Administrative Agent;
(iv) evidence that the obligation of Technologies
to assume all of the obligations of FMC under the
Bridge Credit Agreement has been released and
discharged and that Technologies has no further
obligations or liabilities under the Bridge Credit
Agreement; and
(v) such other documents, instruments or materials
as the Administrative Agent or the Required Lenders may
reasonably request."
(e) Section 4.04(e) is entirely amended as follows:
"(e) [Intentionally deleted]"
(f) In Section 4.04(f), the reference to Section 4.02(e)(ix) is
amended to be a reference to Section 4.02(d)(iii).
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(g) In Section 4.04(g), the reference to Section 4.02(e)(vii) is
amended to be a reference to Section 4.02(d)(iii).
(h) Section 6.06 is entirely amended as follows:
"6.06 [Intentionally deleted]"
(i) The last sentence of Section 7.03 is deleted.
(j) Exhibit C is entirely amended in the form of, and all references
in the Credit Agreement to Exhibit C are changed to, the attached Amended
Exhibit C.
(k) Exhibit D is entirely amended in the form of, and all references
in the Credit Agreement to Exhibit D are changed to, the attached Amended
Exhibit D.
3. Conditions Precedent. This Amendment shall not be effective until the
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Administrative Agent receives (a) counterparts of this Amendment executed by
FMC, Technologies, the Lenders, the Administrative Agent and the L/C Issuer and
(b) such other documents, instruments and certificates as the Administrative
Agent may reasonably request.
4. Representations. FMC represents and warrants to the Lenders that as of
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the date of this Amendment (a) the representations and warranties contained in
Article V are true and correct in all material respects except to the extent
that such representations and warranties refer to an earlier date, in which case
they were true and correct in all material respects as of such earlier date and
(b) no Default or Event of Default has occurred and is continuing.
5. Effect of Amendment. This Amendment is a Loan Document. Except as
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expressly modified and amended by this Amendment, all of the terms, provisions
and conditions of the Loan Documents shall remain unchanged and in full force
and effect. The Loan Documents and any and all other documents heretofore, now
or hereafter executed and delivered pursuant to the terms of the Credit
Agreement are hereby amended so that any reference to the Credit Agreement shall
mean a reference to the Credit Agreement as amended hereby.
6. Counterparts. This Amendment may be executed in any number of
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counterparts and by the parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed to be an original and all of
which taken together shall constitute one and the same instrument.
7. Governing Law. This Amendment shall be governed by and construed in
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accordance with the laws of the State of New York.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.]
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EXECUTED as of the date first stated above.
FMC CORPORATION
By /s/ X. X. Xxxxxxx
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Name: X. X. Xxxxxxx
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Title: VP & Treasurer
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By /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Manager Banking &
Cash Management
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FMC TECHNOLOGIES, INC.
By /s/ X. X. Xxxxxxx
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Name: X. X. Xxxxxxx
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Title: VP & Treasurer
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By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Secretary
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Signature Page to First Amendment to Five-year Credit Agreement
EXECUTED as of the date first stated above.
BANK OF AMERICA, N.A., as Administrative Agent
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Managing Director
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BANK OF AMERICA, N.A., as a Lender and L/C Issuer
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Managing Director
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Signature Page to First Amendment to Five-year Credit
EXECUTED as of the date first stated above.
CITIBANK, N.A., as a Lender
By /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Managing Director
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Signature Page to First Amendment to Five-year Credit Agreement
EXECUTED as of the date first stated above.
COOPERATIVE CENTRALE
RAIFFEINSEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND" NEW YORK
BRANCH, as a Lender
By /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Executive Director
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By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Managing Director
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Signature Page to First Amendment to Five-year Credit Agreement
EXECUTED as of the date first stated above.
DEN NORSKE BANK ASA, as a Lender
By /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: First Vice President
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By /s/ Hans Jorgen Ormar
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Name: Hans Jorgen Ormar
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Title: Vice President
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Signature Page to First Amendment to Five-year Credit Agreement
EXECUTED as of the date first stated above.
THE ROYAL BANK OF SCOTLAND PLC, as a
Lender
By /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: Vice President
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Signature Page to First Amendment to Five-year Credit Agreement
EXECUTED as of the date first stated above.
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH, as a
Lender
By /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Associate Director
By /s/ Xxxxxxxxx Xxxxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxxxx
Title: Managing Director/Credit
Department
Signature Page to First Amendment to Five-year Credit Agreement
EXECUTED as of the date first stated above.
XXXXX FARGO BANK TEXAS, NATIONAL
ASSOCIATION, as a Lender
By /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: Vice President
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Signature Page to First Amendment to Five-year Credit Agreement
EXECUTED as of the date first stated above.
THE BANK OF NOVA SCOTIA, as a Lender
By /s/ F.C.H. Xxxxx
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Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operation
Signature Page to First Amendment to Five-year Credit Agreement
EXECUTED as of the date first stated above.
THE BANK OF NEW YORK, as a Lender
By /s/ Xxxx X'Xxxxxx
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Name: Xxxx X'Xxxxxx
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Title: Vice President
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Signature Page to First Amendment to Five-year Credit Agreement
EXECUTED as of the date first stated above.
CREDIT SUISSE FIRST BOSTON, as a Lender
By /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Director
By /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: Director
Signature Page to First Amendment to Five-Year Credit Agreement
EXECUTED as of the date first stated above.
DANSKE BANK, as a Lender
By /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
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Title: Vice President
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By /s/ Xxxx X'Xxxxx
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Name: Xxxx X'Xxxxx
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Title: Assistant General Manager
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Signature Page to First Amendment to Five-Year Credit Agreement
EXECUTED as of the date first stated above.
WACHOVIA BANK, N.A., as a Lender
By /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Senior Vice President
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Signature Page to First Amendment to Five-Year Credit Agreement
EXECUTED as of the date first stated above.
THE NORTHERN TRUST COMPANY, as a Lender
By /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Second Vice President
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Signature Page to First Amendment to Five-Year Credit Agreement
EXECUTED as of the date first stated above.
THE FUJI BANK, LIMITED, as a Lender
By /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President
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Signature Page to First Amendment to Five-Year Credit Agreement
EXECUTED as of the date first stated above.
THE DAI-ICHI KANGYO BANK, LTD., as a Lender
By /s/ Xxxx X. Xxxxx, Xx.
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Name: Xxxx X. Xxxxx, Xx.
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Title: Senior Vice President
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Signature Page to First Amendment to Five-Year Credit Agreement
EXECUTED as of the date first stated above.
THE INDUSTRIAL BANK OF JAPAN, LTD., as a Lender
By /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Joint General Manager & Group Head
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Signature Page to First Amendment to Five-Year Credit Agreement
