Exhibit 10.2
Execution Copy
Second Amendment to Credit Agreement
This Second Amendment to Credit Agreement dated as of August 30, 2002
(this "Amendment"), is entered into among FMC Corporation, a Delaware
corporation (the "Borrower"), each of the Lenders (as defined in the Credit
Agreement referred to below) party hereto and Citibank, N.A., as Administrative
Agent (as defined below), and amends the Credit Agreement dated as of January
31, 2002 (as amended hereby and as the same may be further amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the Lenders and Citibank, N.A., as administrative agent for the
Lenders (in such capacity, and together with any successor agent, the
"Administrative Agent").
W i t n e s s e t h:
Whereas, the Lenders have agreed to amend certain provisions of the
Credit Agreement on the terms set forth herein.
Now, Therefore, the parties hereto hereby agree as follows:
SECTION 1. Definitions. All capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to them in the Credit
Agreement.
SECTION 2. Amendment. Effective as of the Second Amendment Effective
Date (as defined below), the Credit Agreement is hereby amended as follows:
(a) The following definitions for the following terms are hereby
inserted in Section 1.01 of the Credit Agreement in the appropriate place to
preserve the alphabetical order of the definitions in such section:
"Inventory" has the meaning ascribed to such term in the Uniform
Commercial Code of the State of New York.
"Medium Term Notes" means, collectively, the following notes
issued by the Borrower under the Indenture dated as of July 6, 1996, between the
Borrower and Xxxxxx Trust and Savings Bank, as trustee: (i) the 7.125% Fixed
Rate Series B Medium Term Note in the original principal amount of $100,000,000
(of which $99,500,000 in principal amount is outstanding) and maturing on
November 25, 2002, (ii) the 6.530% Fixed Rate Medium Term Note in the original
principal amount of $25,000,000 and maturing on December 22, 2003, and (iii) the
7.00% Fixed Rate Series A Medium Term Note and maturing on May 15, 2008.
"Securitization Agreement" means the Receivables Purchase
Agreement dated as of November 24, 1999 among the Borrower, FMC Funding
Corporation, Corporate Asset Funding Company, Inc., Citibank and Citibank North
America, Inc.
"Security Agreement" means an agreement, in form and substance
satisfactory to the Administrative Agent, executed by the Borrower and each
other grantor, if any, and granting to the Administrative Agent, for the benefit
of the Lenders, a security interest in certain collateral acceptable to the
Administrative Agent and the Lenders.
"Senior Notes" means, collectively, (i) the 6-3/8% Debentures
issued by the Borrower under the Indenture dated as of April 1, 1992 between the
Borrower and Xxxxxx Trust and Savings Bank, as trustee, in the original
principal amount of $150,000,000 and maturing on September 1,
2003 and (ii) the 7-3/4% Senior Notes issued by the Borrower under the Indenture
dated as of July 1, 1996 between the Borrower and Xxxxxx Trust and Savings Bank,
as trustee, in the original principal amount of $100,000,000 and maturing on
July 1, 2011.
(b) The defined term "Status" is hereby deleted in its entirety from
Section 1.01 of the Credit Agreement.
(c) The definition of "Commitment Termination Date" is hereby amended
and restated in its entirety to read as follows:
"Commitment Termination Date" means the earlier to occur of (i)
October 31, 2002, (ii) the termination of the commitments under the Existing
Credit Agreement, or (iii) the date on which the Commitments shall have been
reduced to zero pursuant to Section 2.10 or 6.01."
(d) The definition of "Euro-Dollar Margin" is hereby amended and
restated in its entirety to read as follows:
"Euro-Dollar Margin" means as of any date of determination, a
rate equal to 2% per annum.
(e) The definition of "Facility Fee Rate" is hereby amended and
restated in its entirety to read as follows:
"Facility Fee Rate" means, as of any date of determination, a
rate equal to 0.50% per annum.
(f) Section 1.04 of the Credit Agreement is hereby deleted in its
entirety.
(g) Section 3.02(b), clause (i) of the Credit Agreement is hereby
amended by deleting the text "Section 4.04(c) and" in the proviso at the end of
the paragraph.
(h) Section 3.02(b), clause (iv) of the Credit Agreement is hereby
amended by inserting the text "or the Securitization Agreement" at the end of
the paragraph.
(i) Section 3.02 of the Credit Agreement is hereby amended by deleting
the "and" at the end of clause (a) thereof, replacing the period at the end of
clause (b) thereof with the text "; and" and inserting a new clause (c) at the
end thereof to read in its entirety as follows:
"(c) the Administrative Agent shall have received the Security
Agreement executed by the Borrower and each other grantor named therein,
together with evidence satisfactory to the Administrative Agent that, upon the
filing and recording of a financing statement, the Administrative Agent (for the
benefit of the Lenders) shall have a valid and perfected first priority security
interest in the Collateral (as defined in the Security Agreement)."
(j) The following Section 4.14 is hereby added at the end of Article
IV of the Credit Agreement:
"SECTION 4.14. Minimum Inventory. The fair market value of the
Inventory pledged to the Administrative Agent, for the benefit of the Lenders,
under the Security Agreement is not less than the aggregate Borrowings under
this Agreement."
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(k) Section 5.09 of the Credit Agreement is hereby amended by
inserting at the end of the first sentence the following proviso:
"provided that the Borrower shall not use proceeds of any Borrowing
under this Agreement to repay the Medium Term Notes, the Senior Notes or any
amounts outstanding under the Existing Credit Agreement."
(l) A following Section 5.13 is hereby added at the end of Article V
to the Credit Agreement:
"SECTION 5.13. Minimum Inventory. The Borrower and its Subsidiaries
shall maintain a minimum level of Inventory such that the fair market value of
the Inventory pledged to the Administrative Agent, for the benefit of the
Lenders, under the Security Agreement is not less than the aggregate Borrowings
under this Agreement."
(m) Section 6.01 of the Credit Agreement is hereby amended by deleting
the "or" at the end of clause (j) thereof, replacing the period at the end of
clause (k) thereof with the text "; or" and inserting a new clause (l) at the
end thereof to read in its entirety as follows:
"(l) the Administrative Agent, for the benefit of the Lenders, shall
not have received a perfected, first priority security interest in all Inventory
of the Borrower at its facility located at 0000 X. Xxxxxxxx Xxxxxx, Xxxxxxxxx XX
00000, prior to September 13, 2002;"
SECTION 3. Condition Precedent to Effectiveness. This Amendment shall
become effective as of the date (the "Second Amendment Effective Date") the
Administrative Agent shall have received this Amendment executed by the Borrower
and the Lenders.
SECTION 4. Representations and Warranties. The Borrower hereby
represents and warrants to the Lenders that (a) as of the date hereof and after
giving effect to the terms of this Amendment, no Event of Default or Default has
occurred and is continuing and (b) all of the representations and warranties of
the Borrower contained in Article IV of the Credit Agreement, continue to be
true and correct as of the date of execution hereof in all material respects, as
though made on and as of such date (other than representations and warranties
which expressly speak as of a different date).
SECTION 5. Reference to and Effect On the Credit Agreement or the
Notes.
(a) Upon the effectiveness of this Amendment, on and after the date
hereof, each reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof" or words of like import, and each reference in the Notes, shall mean
and be a reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, all of the terms of the
Credit Agreement and the Notes shall remain unchanged and in full force and
effect.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Administrative Agent under the Credit
Agreement or any of the Notes, nor constitute a waiver of any provision of the
Credit Agreement or any of the Notes.
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SECTION 6. Fees, Costs and Expenses. The Borrower agrees to pay on
demand in accordance with the terms of Section 9.03 of the Credit Agreement, all
costs and expenses of the Administrative Agent in connection with the
preparation, reproduction, execution and delivery of this Amendment, including
the reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent with respect thereto.
SECTION 7. Execution in Counterparts. This Amendment may be executed
and delivered in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original and all of which taken together shall constitute one and the
same original agreement.
SECTION 8. Governing Law. This Amendment shall be interpreted, and the
rights and liabilities of the parties determined, in accordance with the laws of
the State of New York.
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In Witness Whereof, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
FMC Corporation,
as Borrower
By: /s/ Xxxxxx X. Xxxx, Xx.
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Name: Xxxxxx X. Xxxx, Xx.
Title: Vice President and Treasurer
Citibank N.A.,
as Administrative Agent and as a Lender
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Vice President
Bank of America, N.A.,
as Lender
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Principal
