fmc-2022rcfxfiftharrevol






        ═══════════════════════════════════════  $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  ═══════════════════════════════════════     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  “Agreement”), dated as of June 17, 2022, among FMC CORPORATION, a Delaware corporation  (“U.S. Borrower”) and the Euro Borrowers (as defined below), in each case, party hereto from  time to time (the Euro Borrowers together with the U.S. Borrower, collectively the “Borrowers”),  the lenders and issuing banks listed on the signature pages hereof under the heading “Lenders”  and the other Lenders (as defined below) party hereto from time to time, BANK OF AMERICA,  N.A., as syndication agent (the “Syndication Agent”), BNP PARIBAS, 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 “Administrative Agent”) 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. Borrower’s 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 “Existing Credit Agreement”); 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):  “Acceptance” means an Assignment and Acceptance or a New Commitment  Acceptance.  “Adjusted Term SOFR” 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.  “Administrative Agent” has the meaning specified in the recital of parties to this  Agreement.  “Administrative Agent’s Account” 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    “Affected Financial Institution” means (a) any EEA Financial Institution or (b)  any UK Financial Institution.  “Affected Person” has the meaning specified in Sections 2.12(j), 3.05(e), 3.06  and Section 3.08(a).  “Affiliate” means, with respect to any Person, any other Person directly or  indirectly controlling or that is controlled by or is under common control with such Person, each  officer, director, general partner or joint-venturer of such Person, and each Person that is the  beneficial owner of 5% or more of any class of Voting Stock of such Person.  For the purposes of  this definition, “control” means the possession of the power to direct or cause the direction of the  management and policies of such Person, whether through the ownership of voting securities, by  contract or otherwise.  “Agents” means, collectively, the Administrative Agent and the Syndication  Agent.  “Alternate Currency” means Euros and any other lawful currency other than  Dollars (approved by the Administrative Agent and each Lender) which is freely transferable into  Dollars.  “Anniversary Date” has the meaning specified in Section 2.15(a).  “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction  applicable to any Borrower or its Subsidiaries from time to time concerning or relating to bribery  or corruption, including without limitation the Foreign Corrupt Practices Act of 1977, 15 U.S.C.  §§ 78dd-1, et seq.  “Anti-Money Laundering Laws” means all laws, rules, and regulations of any  jurisdiction applicable to any Borrower or its Subsidiaries from time to time concerning or  relating to money laundering, including without limitation the Patriot Act.  “Applicable Law” means, as to any Person, all applicable Laws binding upon  such Person or to which such a Person is subject.  “Applicable Lending Office” means, with respect to each Lender, and for each  Type and Currency of Loan, such Lender’s Domestic Lending Office in the case of a Base Rate  Loan or a SOFR Loan and such Lender’s EURIBOR Lending Office in the case of a EURIBOR  Loan.  “Applicable Margin” 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/MOODY’S  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/MOODY’S  ADJUSTED TERM  SOFR/EURIBOR  BASE RATE  Level 2  A- / A3  0.910% 0.000%  Level 3  BBB+ / Baa1  1.025% 0.025%  Level 4  BBB / Baa2  1.125% 0.125%  Level 5  BBB- / Baa3  1.200% 0.200%  Level 6  BB+ / Ba1 or lower  1.375% 0.375%  “Applicable Percentage” 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/MOODY’S  FACILITY  FEE  Level 1  A / A2 or higher  0.070%  Level 2  A- / A3  0.090%  Level 3  BBB+ / Baa1  0.100%  Level 4  BBB / Baa2  0.125%  Level 5  BBB- / Baa3  0.175%  Level 6  BB+ / Ba1 or lower  0.250%  “Arrangers” means Citibank and BofA Securities, Inc., in their respective  capacities as joint lead arrangers.  “Assignment and Acceptance” means an assignment and acceptance entered into  by a Lender and an Eligible Assignee, and accepted by the Administrative Agent, in accordance  with Section 9.07 and in substantially the form of Exhibit C-1 hereto.  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   4    “Available Amount” 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 “Available Amount” 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.  “Available Tenor” 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  “Interest Period” pursuant to Section 2.18(d).  “Bail-In Action” 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.  “Bail-In Legislation” 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).  “Base Rate” means, for any period, a fluctuating interest rate per annum as shall  be in effect from time to time which rate per annum shall at all times be equal to the highest of:  (a) the rate of interest announced publicly by Citibank in New York, New  York, from time to time, as its “base rate”;   (b) the Federal Funds Rate plus 1/2 of 1%; and  (c) 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.  “Base Rate Loan” means a Loan denominated in Dollars which bears interest as  provided in Section 2.08(a)(i).  “Base Rate Term SOFR Determination Day” has the meaning specified in the  definition of “Term SOFR”.   FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   5    “Benchmark” 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  “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark  Replacement has replaced such prior benchmark rate pursuant to Section 2.18(a).  “Benchmark Replacement” 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.  “Benchmark Replacement Adjustment” 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 “Benchmark Replacement,” 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.   “Benchmark Replacement Date” 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 “Benchmark Transition  Event,” 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 “Benchmark Transition  Event,” 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 “Benchmark Replacement Date” 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).  “Benchmark Transition Event” 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 “Benchmark Transition Event” 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).  “Benchmark Transition Start Date” 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).  “Benchmark Unavailability Period” 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.  “Beneficial Ownership Certificate” has the meaning specified in  Section 4.01(a)(vii).  “Beneficial Ownership Regulation” has the meaning specified in Section  4.01(a)(vii).  “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in  ERISA) that is subject to Title I of ERISA, (b) a “plan” 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  “employee benefit plan” or “plan”.   “BofA” means Bank of America, N.A., a national banking association.  “Borrowers” has the meaning specified in the recital of parties to this Agreement.  “Borrowers’ Accountants” means KPMG LLP or other independent nationally- recognized public accountants acceptable to the Administrative Agent.  “Borrowing” means a Revolving Loan Borrowing or a Swing Loan Borrowing.  “Business Day” means a day of the year on which banks are not required or  authorized by law to close in New York City and, if the applicable Business Day relates to any  EURIBOR Loans, on which the Trans-European Automated Real-Time Gross Settlement Express  Transfer System (“TARGET2”) is open.  “Capital Lease” means, with respect to any Person, any lease of, or other  arrangement conveying the right to use, property by such Person as lessee that would be  accounted for as a capital lease, 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.  “Capital Lease Obligations” means, with respect to any Person, the capitalized  amount of all Consolidated obligations of such Person or any of its Subsidiaries under Capital  Leases.  “Cash Collateralize” 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 “Cash Collateralization” has a  corresponding meaning).  “CGMI” means Citigroup Global Markets Inc.  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   8    “Change in Law” 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 Dodd-Frank Wall 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 “Change in Law”, regardless of the date enacted, adopted or issued.   “Change of Control” means the occurrence of any of the following:  (a) any  Person or group of Persons (within the meaning of the Securities Exchange Act of 1934, as  amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the SEC  under the Securities Exchange Act of 1934, as amended) of 30% or more of the issued and  outstanding Voting Stock of the U.S. Borrower or (b) during any period of twenty-four (24)  consecutive calendar months, individuals who at the beginning of such period constituted the  board of directors of the U.S. Borrower (together with any new directors whose election by the  board of directors of the U.S. Borrower or whose nomination for election by the stockholders of  the U.S. Borrower was approved by a vote of at least two-thirds of the directors then still in office  who either were directors at the beginning of such period or whose elections or nomination for  election was previously so approved) cease for any reason other than death or disability to  constitute a majority of the directors then in office.  “Citibank” means Citibank, N.A., a national banking association, and its  successors.  “Code” means the Internal Revenue Code of 1986, as amended from time to  time, and the regulations promulgated and rulings issued thereunder.  “Co-Documentation Agents” has the meaning specified in the recital of parties to  this Agreement.  “Commitment” means, as to any Lender, (i) the Dollar amount set forth opposite  its name on Schedule I hereto or (ii) if such Lender has entered into one or more Acceptances, the  amount set forth for such Lender in the Register, in each case as the same may be increased or  reduced as expressly provided herein (including, without limitation, pursuant to Sections 2.06,  2.15(c), 3.08 and 9.07).  “Confidential Information” has the meaning set forth in Section 9.11 hereto.  “Conforming Changes” 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 “Base Rate” (if applicable), the definition of “Business Day,” the definition of “U.S.  Government Securities Business Day,” the definition of “Interest Period” or any similar or  analogous definition (or the addition of a concept of “interest period”), 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).  “Connection Income Taxes” means Other Connection Taxes that are imposed on  or measured by net income (however denominated) or that are franchise Taxes or branch profits  Taxes.  “Consolidated” refers to the consolidation of accounts of the U.S. Borrower and  its Subsidiaries in accordance with GAAP.  “Constituent Documents” means, with respect to any Person, (a) the articles of  incorporation and/or organization, certificate of incorporation or certificate of formation (or the  equivalent organizational documents) of such Person, (b) the by-laws 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 Person’s Stock.  “Contaminant” means any material, substance or waste that is classified,  regulated or otherwise characterized under any Environmental Law as hazardous, toxic, a  contaminant or a pollutant or by other words of similar meaning or regulatory effect, including  any greenhouse gas, petroleum or petroleum-derived substance or waste, asbestos and  polychlorinated biphenyls.  “Continuation”, “Continue” and “Continued” each refer to a continuation of  SOFR Loans or EURIBOR Loans for an additional Interest Period pursuant to Section 2.14.  “Contractual Obligation” means, as to any Person, any agreement, instrument or  other undertaking to which such Person is a party or by which it or any of its property is bound.   “Conversion”, “Convert” and “Converted” each refer to a conversion of  Revolving Loans of one Type into Revolving Loans of the other Type pursuant to Section 2.14.  “Corresponding Tenor” 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.  “CRR” means the Council Regulation (EU) No 575/2013 of the European  Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions  and investment firms and amending Regulation (EU) No 648/2012.  “Currency” means Dollars or any Alternate Currency.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   10    “Customary Permitted Liens” means, with respect to any Person, any of the  following Liens:  (a) Liens for taxes, assessments, governmental charges, claims or levies in  each case that are not yet due or that are being contested in good faith by appropriate proceedings  and with respect to which adequate reserves (in the good faith judgment of the management of the  respective Person) have been established;  (b) Liens of landlords, liens in favor of utilities and liens of suppliers,  mechanics, carriers, materialmen, warehousemen or workmen and other liens imposed by law or  contract which were incurred in the ordinary course of business and (i) which secure amounts not  yet due or (ii)(A) which do not in the aggregate materially detract from the value of such property  (other than immaterial property) or materially impair the use thereof in the operation of the  business of any Person or (B) which Liens (or the amounts secured thereby) are being contested  in good faith by appropriate proceedings, which proceedings have the effect of preventing the  forfeiture or sale of the property subject to such Lien and with respect to which adequate reserves  (in the good faith judgment of the management of the respective Person) have been established;  (c) Liens incurred or deposits made in the ordinary course of business in  connection with workers’ compensation, unemployment insurance or other types of social  security benefits or to secure the performance of trade contracts, bids, tenders, statutory and  regulatory obligations, sales, contracts (other than for the repayment of borrowed money), appeal  bonds, leases, government contracts or customs bonds and other similar obligations incurred in  the ordinary course of business;  (d) encumbrances arising by reason of zoning restrictions, easements,  licenses, reservations, covenants, rights-of-way, utility easements, building restrictions and other  similar encumbrances on the use of real property not materially detracting from the value of such  real property or not materially interfering with the ordinary conduct of the business conducted  and proposed to be conducted at such real property;  (e) encumbrances, easements, rights-of-way, restrictions, minor defects or  irregularities in title and other similar charges or encumbrances not interfering in any material  respect with the ordinary conduct of the business of any Person;  (f) encumbrances arising under leases or subleases of real property that do  not, in the aggregate, materially detract from the value of such real property or interfere with the  ordinary conduct of the business conducted at such real property;   (g) financing statements with respect to a lessor’s rights in and to personal  property leased to such Person in the ordinary course of such Person’s business;  (h) Liens arising from judgments, decrees or attachments and Liens securing  appeal bonds arising from judgments, in each case in circumstances not constituting an Event of  Default, provided that no cash or property is deposited or delivered to secure any such judgment  or award;  (i) Liens on property of a Person or a business that are existing at the time  such Person or business is acquired pursuant to an acquisition not prohibited by Section 6.04(b),  provided that such Liens were not placed on such property in contemplation of the consummation  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) banker’s liens, (ii) liens in favor of securities intermediaries and (iii) rights of set off  or similar rights and remedies as to deposit accounts or securities accounts or other funds  maintained with depository institutions or securities intermediaries, including Liens arising under  Article 24 of the general terms and conditions  of any member of the Dutch Bankers' Association  or any similar term applied by a financial institution in the Netherlands pursuant to its general  terms and conditions.  “Default” means any Event of Default or any event that would constitute an  Event of Default but for the requirement that notice be given or time elapse or both.  “Default Interest” has the meaning specified in Section 2.08(b).  “Defaulting Lender” 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 “Funding Obligation”) within two  Business Days of the date such Funding Obligation was required to be funded hereunder unless  such Lender notifies the Administrative Agent and the U.S. Borrower in writing that such failure  is the result of such Lender’s good faith determination that one or more conditions precedent to  funding (each of which conditions precedent, together with any applicable default, shall be  specifically identified in such writing) has not been satisfied, (ii) any Lender that has notified the  Administrative Agent, 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 Lender’s obligation to fund a  Loan hereunder and states that such position is based on such Lender’s good faith determination  that a condition precedent to funding (which condition precedent, together with any applicable  default, shall be specifically identified in such writing or public statement) cannot be satisfied),  (iii) any Lender that has defaulted on its funding obligations under any other loan agreements or  credit agreements generally, (iv) any Lender that has, for three or more Business Days after  written request of the Administrative Agent or the U.S. Borrower, failed to confirm in writing to  the Administrative Agent and the U.S. Borrower that it will comply with its prospective funding  





 






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 Agent’s and the U.S. Borrower’s receipt of such written  confirmation), (v) any Lender with respect to which a Lender Insolvency Event has occurred and  is continuing with respect to such Lender or its Parent Company or (vi) any Lender that has, or  has a Parent Company that has, become the subject of a Bail-in Action (provided, in each case,  that neither the reallocation of Funding Obligations provided for in Section 2.16 as a result of a  Lender's being a Defaulting Lender nor the performance by Non-Defaulting Lenders of such  reallocated Funding Obligations will by themselves cause the relevant Defaulting Lender to  become a Non-Defaulting Lender).  Notwithstanding anything to the contrary above, any  determination by the Administrative Agent that a Lender is a Defaulting Lender under any of  clauses (i) through (v) above will be conclusive and binding absent manifest error, and such  Lender will be deemed to be a Defaulting Lender (subject to Section 2.16(e)) upon notification of  such determination by the Administrative Agent to the U.S. Borrower, the Issuing Banks, the  Swing Loan Lenders and the Lenders.  “Designated Borrower” means any Euro Borrower designated pursuant to a Euro  Borrower Designation.  “Disclosure Documents” means the U.S. Borrower’s annual report on Form 10-K  for December 31, 2021 and any amendments thereto filed by the U.S. Borrower with the SEC.  “Documentary Letter of Credit” 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.  “Dollar Equivalent” 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, “Dollar Equivalent” 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.  “Dollar Revolving Loan” has the meaning specified in Section 2.01(a).  “Dollars” and “$” mean lawful money of the United States of America.  “Domestic Lending Office” means, with respect to any Lender, the office of such  Lender specified as its “Domestic Lending Office” in its administrative questionnaire delivered to  the Administrative Agent or in the Acceptance pursuant to which it became a Lender, or such  other office of such Lender as such Lender may from time to time specify to the U.S. Borrower  and the Administrative Agent.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   13    “Domestic Subsidiary” means any Subsidiary of the U.S. Borrower organized  under the laws of any state of the United States of America or the District of Columbia or any  entity disregarded for U.S. tax purposes wholly owned by the U.S. Borrower or a Domestic  Subsidiary.  “Dutch Borrower” means any Borrower that is organized under the laws of the  Netherlands.  “Dutch Non-Public Lender” means:  (i) until the publication of an interpretation of “public” as referred to in the CRR  by the competent authority/ies: an entity which (x) assumes rights and/or obligations vis-à-vis a  Dutch Borrower, the value of which is at least EUR 100,000 (or its equivalent in another  currency), (y) which provides repayable funds for an initial amount of at least EUR 100,000 (or  its equivalent in another currency) or (z) otherwise qualifies as not forming part of the public),  and  (ii) as soon as the interpretation of the term “public” as referred to in the CRR  has been published by the competent authority/ies: an entity which is considered not to form part  of the public on the basis of such interpretation.  “EBITDA” means, for any period, net income for such period, plus, without  duplication and to the extent deducted from revenues in determining net income for such period,  the sum of (a) the aggregate amount of interest expense for such period, (b) the aggregate amount  of income and franchise tax expense for such period, (c) all amounts attributable to depreciation  and amortization for such period, (d) all other non-cash charges and non-cash losses for such  period, (e) all Non-Recurring Items for such period and (f) all fees, expenses and charges incurred  in connection with or arising as a result of any proposed or actual acquisitions, investments, asset  sales or divestitures, minus, without duplication and to the extent added to revenues in  determining net income for such period, the sum of (i) all non-recurring non-cash gains during  such period, (ii) the amount of cash used during such period to the extent charged against net  income in a different period (excluding any item under clause (f) above) and (iii) the amount of  cash used during such period relating to a Non-Recurring Item, all as determined on a  consolidated basis with respect to the U.S. Borrower and its Subsidiaries in accordance with  GAAP.  For the purposes of calculating EBITDA for any period, if during such period the U.S.  Borrower or any Subsidiary shall have made an acquisition, EBITDA for such period shall be  calculated after giving pro forma effect thereto as if such acquisition occurred on the first day of  such period.  “EEA Financial Institution” means (a) any credit institution or investment firm  established in any EEA Member Country (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    “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.  “Effective Date” has the meaning set forth in Section 4.01.  “Eligible Assignee” 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.  “EMU” means economic and monetary union as contemplated in the Treaty on  European Union.  “EMU Legislation” 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.  “Environmental Law” means any federal, state or local law, rule, regulation,  order, writ, judgment, injunction, decree, determination or award relating to the environment,  health, safety or hazardous materials, including, without limitation, CERCLA, the Resource  Conservation and Recovery Act, the Hazardous Materials Transportation Act, the Clean Water  Act, the Toxic Substances Control Act, the Clean Air Act, the Safe Drinking Water Act, the  Atomic Energy Act, the Federal Insecticide, Fungicide and Rodenticide Act and the Occupational  Safety and Health Act.  “Environmental Liabilities and Costs” means, with respect to any Person, all  liabilities, obligations, responsibilities, Remedial Actions, losses, damages, punitive damages,  consequential damages, treble damages, costs and expenses (including all fees, disbursements and  expenses of counsel, experts and consultants and costs of investigation and feasibility studies),  fines, penalties, sanctions and interest, whether based in contract, tort, implied or express  warranty, strict liability, criminal or civil statute and whether arising under any Environmental  Law, Permit, order or agreement with any Governmental Authority or other Person, in each case  relating to any environmental, health or safety condition or to any Release or threatened Release  and resulting from the past, present or future operations of, or ownership of property by, such  Person or any of its Subsidiaries.  “Environmental Lien” means any Lien in favor of any Governmental Authority  for Environmental Liabilities and Costs.  “ERISA” means the Employee Retirement Income Security Act of 1974, as  amended from time to time, and the regulations promulgated and rulings issued thereunder.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   15    “ERISA Affiliate” 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. Borrower’s  controlled group, or is treated as a “single employer” 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.  “ERISA Event” means, with respect to any Person, (a) the occurrence of a  reportable event, within the meaning of Section 4043 of ERISA, with respect to any Plan of such  Person or any of its ERISA Affiliates unless the 30-day notice requirement with respect to such  event has been waived by the PBGC; (b) the provision by the administrator of any Plan of such  Person or any of its ERISA Affiliates of a notice of intent to terminate such Plan pursuant to  Section 4041(a)(2) of ERISA with respect to a termination described in Section 4041(c)(2) of  ERISA (including any such notice with respect to a plan amendment referred to in  Section 4041(e) of ERISA); (c) the cessation of operations at a facility of such Person or any of  its ERISA Affiliates in the circumstances described in Section 4062(e) of ERISA; (d) the  withdrawal by such Person or any of its ERISA Affiliates from a Multiple Employer Plan during  a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA;  (e) the failure by such Person or any of its ERISA Affiliates to make a payment to a Plan required  under the minimum funding standards of ERISA; (f) a determination that any Plan is in “at risk”  status (within the meaning of Section 303 of ERISA or Section 430 of the Code); or (g) the  institution by the PBGC of proceedings to terminate a Plan of such Person or any of its ERISA  Affiliates, pursuant to Section 4042 of ERISA.  “Erroneous Payment” has the meaning specified in Section 8.08(a).  “Erroneous Payment Deficiency Assignment” has the meaning specified in  Section 8.08(d)(i).  “Erroneous Payment Impacted Class” has the meaning specified in  Section 8.08(d)(i).  “Erroneous Payment Return Deficiency” has the meaning specified in  Section 8.08(d)(i).  “Erroneous Payment Subrogation Rights” has the meaning specified in  Section 8.08(e).  “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.  “EURIBOR” 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 “Screen Rate”) 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 “Impacted Interest Period”)  with respect to the relevant currency, then EURIBOR shall be the Interpolated Rate at such time.  “EURIBOR Lending Office” means, with respect to any Lender, the office of  such Lender specified as its “EURIBOR Lending Office” in its administrative questionnaire  delivered to the Administrative Agent or in the Acceptance pursuant to which it became a Lender  (or, if no such office is specified, its Domestic Lending Office), or such other office of such  Lender as such Lender may from time to time specify to the U.S. Borrower and the  Administrative Agent.  “EURIBOR Loan” means a Loan denominated in Euros which bears interest as  provided in Section 2.08(a)(iv).  “EURIBOR Reserve Percentage” 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.  “Euro” means the single currency of Participating Member States of the  European Union.  “Euro Borrower” 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 “Euro Borrower” for purposes of  this Agreement by the U.S. Borrower in a written notice in substantially the form of Exhibit D  hereto (each, a “Euro Borrower Designation” and each Euro Borrower designated thereby, a  “Designated Borrower”), (ii) is approved as a Euro Borrower by the Administrative Agent and  each Lender and (iii) joins this Agreement and the other Loan Documents pursuant to  documentation satisfactory to the Administrative Agent (including such guaranties as the  Administrative Agent may require).  “Euro Borrower Designation” has the meaning specified in the definition of  “Euro Borrower”.  “Euro Revolving Loan” has the meaning specified in Section 2.01(a).  “Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D  of the Board of Governors of the Federal Reserve System, as in effect from time to time.  “Events of Default” has the meaning specified in Section 7.01.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   17    “Excluded Representations” means the representations and warranties set forth in  Sections 5.04 and 5.05.  “Excluded Taxes” 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 Recipient’s  failure to comply with Section 2.12(g) and (d) any withholding Taxes imposed under FATCA.  “Existing Credit Agreement” has the meaning specified in the recitals hereto.  “Existing Letters of Credit” means each “Letter of Credit” 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.  “Facility” means the Commitments and the provisions herein relating to the  Revolving Loans, Swing Loans and Letters of Credit.  “Farm Credit System” means a federally chartered network of borrower-owned  lending institutions comprised of cooperatives and related service organizations regulated by the  Farm Credit Administration.  “FATCA” 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.  “FDIC” means the Federal Deposit Insurance Corporation or any successor.  “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum  equal for each day during such period to the weighted average of the rates on overnight federal  funds transactions with members of the Federal Reserve System, as published for such day (or, if  such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve  Bank of New York, or, if such rate is not so published for any day that is a Business Day, the  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    “Fee Letter” means that certain Fee Letter in respect of the Facility, dated as of  May [24], 2022, between the U.S. Borrower and CGMI.  “Final Termination Date” means, at any time, the latest occurring Termination  Date in effect at such time.  “Financial Covenant Debt” of any Person means Indebtedness of the type  specified in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of the definition of “Indebtedness”;  provided however, that (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.  “Fiscal Quarter” means each of the three month periods ending on March 31,  June 30, September 30 and December 31.  “Fiscal Year” means the twelve month period ending on December 31.  “Floor” means a rate of interest equal to 0.0%.  “FMC’s Business” means the business of developing, manufacturing and/or  selling, and providing research and development, marketing and/or other services and support for,  chemical-based and formulated products and related organic and inorganic materials and any  business reasonably related, incidental, complementary or ancillary thereto.  “Foreign Currency Equivalent” 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 “Dollar Equivalent”,  as determined by the Administrative Agent.  “Foreign Credit Line” means a credit facility or similar credit arrangement  (including any arrangement in connection with vendor financing) made available by a financial  institution to Foreign Subsidiaries or their customers, as applicable.  “Foreign Lender” 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.    “Foreign Subsidiary” means any Subsidiary of the U.S. Borrower that is not a  Domestic Subsidiary.  “GAAP” means generally accepted accounting principles in the United States of  America as in effect from time to time, except that, with respect to the determination of  compliance by the U.S. Borrower with the covenant set forth in Section 6.01, “GAAP” shall  mean such principles in the United States of America as in effect as of the date of, and used in,  the preparation of the audited financial statements of the U.S. Borrower referred to in  Section 5.03.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   19    “Governmental Authority” means any nation, sovereign or government, any state  or other political subdivision thereof and any entity exercising executive, legislative, judicial,  regulatory, taxing or administrative functions of or pertaining to government, including any  central bank and any supra-national bodies (such as the European Union or the European Central  Bank).  “Granting Lender” has the meaning specified in Section 9.07(a).  “Guarantied Obligations” has the meaning specified in Section 10.01(a).  “Guarantor” has the meaning specified in Section 10.01(a).  “Guaranty” means the U.S. Borrower’s 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.  “Guaranty Obligation” means, as applied to any Person, any direct or indirect  liability, contingent or otherwise, of such Person with respect to any Indebtedness of another  Person, if the purpose or intent of such Person in incurring the Guaranty Obligation is to provide  assurance to the obligee of such Indebtedness that such Indebtedness will be paid or discharged,  or that any agreement relating thereto will be complied with, or that any holder of such  Indebtedness will be protected (in whole or in part) against loss in respect thereof, including  (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the  ordinary course of business), co-making, discounting with recourse or sale with recourse by such  Person of Indebtedness of another Person and (b) any liability of such Person for Indebtedness of  another Person through any agreement (contingent or otherwise) (i) to purchase, repurchase or  otherwise acquire such Indebtedness or any security therefor, or to provide funds for the payment  or discharge of such Indebtedness (whether in the form of a loan, advance, stock purchase, capital  contribution or otherwise), (ii) to maintain the solvency or any balance sheet item, level of  income or financial condition of another Person, (iii) to make take-or-pay or similar payments  outside of the ordinary course of business, if required, regardless of non-performance by any  other party or parties to an agreement, (iv) to purchase, sell or lease (as lessor or lessee) property,  or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment  of such Indebtedness or to assure the holder of such Indebtedness against loss or (v) to supply  funds to, or in any other manner invest in, such other Person (including to pay for property or  services irrespective of whether such property is received or such services are rendered), if in the  case of any agreement described under clause (b)(i), (ii), (iii), (iv) or (v) above the primary  purpose or intent thereof is to provide assurance that Indebtedness of another Person will be paid  or discharged, that any agreement relating thereto will be complied with or that any holder of  such Indebtedness will be protected (in whole or in part) against loss in respect thereof.  The  amount of any Guaranty Obligation shall be equal to the amount of the Indebtedness so  guaranteed or otherwise supported.  “Hedging Contracts” means all Interest Rate Contracts, foreign exchange  contracts, currency swap or option agreements, forward contracts, commodity swap, purchase or  option agreements, other commodity price hedging arrangements, and all other similar  agreements or arrangements designed to alter the risks of any Person arising from fluctuations in  interest rates, currency values or commodity prices.  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   20    “Increasing Lender” 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).  “Indebtedness” of any Person means, as of any date of determination, without  duplication (a) all indebtedness of such Person for borrowed money, (b) all obligations of such  Person evidenced by notes, bonds (other than surety and performance bonds, which are covered  in clause (c) below), debentures or similar instruments or that bear interest, (c) all reimbursement  and other obligations with respect to letters of credit, bankers’ acceptances, surety bonds and  performance bonds, whether or not matured, (d) all indebtedness for the deferred purchase price  of property or services, other than trade payables incurred in the ordinary course of business that  are not overdue, (e) all indebtedness of such Person created or arising under any conditional sale  or other title retention agreement with respect to property acquired by such Person (even though  the rights and remedies of the seller or lender under such agreement in the event of default are  limited to repossession or sale of such property), (f) all Capital Lease Obligations of such Person  and the present value of future rental payments under all synthetic leases, (g) all Guaranty  Obligations of such Person, (h) all obligations of such Person to purchase, redeem, retire, defease  or otherwise acquire for value any Stock or Stock Equivalents of such Person, valued, in the case  of redeemable preferred stock, at the greater of its voluntary liquidation preference and its  involuntary liquidation preference plus accrued and unpaid dividends, (i) all net obligations  payable by such Person in respect of Hedging Contracts of such Person and (j) all Indebtedness of  the type referred to above secured by (or for which the holder of such Indebtedness has an  existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including  accounts and general intangibles) owned by such Person, even though such Person has not  assumed or become liable for the payment of such Indebtedness.  “Indemnified Party” has the meaning specified in Section 9.04(b).  “Indemnified Taxes” 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.   “Interest Coverage Ratio” means, with respect to the U.S. Borrower and its  Subsidiaries on a Consolidated basis for any period, the ratio of EBITDA for such period to Net  Consolidated Interest Expense for such period.  “Interest Income” means, for the U.S. Borrower and its Subsidiaries on a  Consolidated basis for any period, total interest income for such period on a Consolidated basis in  conformity with GAAP.  “Interest Period” means, with respect to each 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.  “Interest Rate Contracts” means all interest rate swap agreements, interest rate  cap agreements, interest rate collar agreements and interest rate insurance.  “Interpolated Rate” means, at any time, the rate per annum determined by the  Administrative Agent (which determination shall be conclusive and binding absent manifest  error) to be equal to the rate that results from interpolating on a linear basis between: (a) the  applicable Screen Rate for the longest period (for which that Screen Rate is available in the  relevant currency) that is shorter than the Impacted Interest Period and (b) the 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.  “Investment” means, with respect to any Person, (a) any purchase or other  acquisition by such Person of (i) any security issued by, (ii) a beneficial interest in any security  issued by, or (iii) any other equity ownership interest in, any other Person, (b) any purchase by  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.  “IRB Obligations” 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    “Issue” 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 “Issued” and  “Issuance” shall have a corresponding meaning  “Issuing Bank” means each Lender or Affiliate of a Lender that (a) is listed on  the signature pages hereof as an “Issuing Bank” 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.  “L/C Cash Collateral Account” has the meaning specified in Section 7.02(b).  “L/C Cash Collateral Account Collateral” has the meaning specified in Section  7.02(b).  “L/C Cash Collateral Account Investments” has the meaning specified in Section  7.02(c).  “L/C Cash Collateral Account Obligations” has the meaning specified in  Section 7.02(e)(i).  “Laws” 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.  “Lender Insolvency Event” shall mean that (i) a Lender or its Parent Company is  insolvent, or is generally unable to pay its debts as they become due, or admits in writing its  inability to pay its debts as they become due, or makes a general assignment for the benefit of its  creditors, or (ii) such Lender or its Parent Company is the subject of a bankruptcy, insolvency,  reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or  sequestrator or the like has been appointed for such Lender or its Parent Company.   Notwithstanding anything to the contrary above, a Lender will not be a Defaulting Lender solely  by virtue of the ownership or acquisition of any Stock in such Lender or its Parent Company by  any Governmental Authority.  “Lenders” means the Lenders listed on the signature pages hereof and each  Eligible Assignee that shall become a party hereto pursuant to Section 9.07 and shall include the  Swing Loan Lenders and the Issuing Banks.  “Letter of Credit” has the meaning specified in Section 2.04.  “Letter of Credit Commitment” 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    “Letter of Credit Loan” 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.  “Letter of Credit Obligations” 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.  “Letter of Credit Reimbursement Agreement” has the meaning specified in  Section 3.04(d).  “Letter of Credit Request” has the meaning specified in Section 3.04(b).  “Letter of Credit Sub-Facility” has the meaning specified in Section 2.04.  “Letter of Credit Sublimit” means $400,000,000.  “Letter of Credit Undrawn Amounts” means, at any time, the aggregate undrawn  amount of all Letters of Credit outstanding at such time.  “Leverage Ratio” 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.  “Lien” 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.  “Loan Documents” 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.  “Loans” means all Revolving Loans, all Swing Loans and all Letter of Credit  Loans.  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   24    “Local Time” 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.  “Margin Regulations” means, collectively, Regulations T, U and X, as from time  to time in effect, and any regulation replacing the same, of the Board of Governors of the Federal  Reserve System, or any successor thereto.   “Material Adverse Change” means a material adverse change in any of (a) the  business, condition (financial or otherwise), operations or properties of the U.S. Borrower and its  Subsidiaries taken as a whole, (b) the legality, validity or enforceability of any Loan Document,  (c) the ability of the Borrowers to repay the Obligations or to perform their respective obligations  under the Loan Documents or (d) the rights and remedies of the Administrative Agent or the  Lenders under the Loan Documents.  “Material Adverse Effect” means an effect that results in or causes, or could  reasonably be expected to result in or cause, a Material Adverse Change.  “Material Subsidiary” means (i) any Subsidiary of the U.S. Borrower that is a  Borrower 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.  “Moody’s” means Moody’s Investors Service, Inc., or any successor by merger  or consolidation to its business.  “Multiemployer Plan” of any Person means a multiemployer plan, as defined in  Section 4001(a)(3) of ERISA, and which is a defined benefit plan, to which such Person or any of  its ERISA Affiliates is making or accruing an obligation to make contributions.  “Multiple Employer Plan” of any Person means a single employer plan, as  defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of such Person or  any of its ERISA Affiliates and at least one Person other than such Person and its ERISA  Affiliates or (b) was so maintained and in respect of which such Person or any of its ERISA  Affiliates could have liability under Section 4064 or Section 4069 of ERISA in the event such  plan has been or were to be terminated.  “Net Consolidated Interest Expense” means, for any period, Consolidated interest  expense for such period less the sum of (x) amortization of debt discount and premium for such  period and (y) Interest Income for such period.  “New Commitment Acceptance” 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.  “New Lender” 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).  “Non-Consenting Lender” means any Lender that does not approve any consent,  waiver or amendment that (i) requires the approval of all affected Lenders in accordance with the  terms of Section 9.01 and (ii) has been approved by the Required Lenders.  “Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting  Lender.  “Non-Recurring Items” means, to the extent reflected in the determination of net  income for any period, provisions for restructuring, discontinued operations, special reserves or  other similar charges, including write-downs or write-offs of assets (other than write-downs  resulting from foreign currency translations).  “Note” means a Revolving Loan Note.  “Notice of Revolving Loan Borrowing” has the meaning specified in  Section 3.01(a).  “Obligations” 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.  “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets  Control.  “Other Connection Taxes” 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).  “Other Taxes” 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).  “Overdraft Advance Interest Rate” means the rate of interest applicable to  Overdraft Advances as set forth in the Overdraft Documents.  “Overdraft Advances” has the meaning specified in Section 3.03(f).  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   26    “Overdraft Documents” 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.  “Overdraft Facility” has the meaning specified in Section 3.03(f).  “Parent Company” means, with respect to a Lender, the bank holding company  (as defined in Federal Reserve Board Regulation Y), if any, that is the direct or indirect parent of  such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a  majority of the Stock of such Lender.  “Participant Register” has the meaning specified in Section 9.07(f).  “Participating Member State” means each state so described in any EMU  Legislation.  “Participation Agreement” means a loan participation agreement in substantially  the form of Exhibit C-2 hereto.  “Patriot Act” has the meaning specified in Section 9.16.  “Payment Recipient” has the meaning specified in Section 8.08(a).  “PBGC” means the Pension Benefit Guaranty Corporation or any successor.  “Periodic Term SOFR Determination Day” has the meaning specified in the  definition of “Term SOFR”.  “Permit” means any permit, approval, authorization, license, variance or  permission required from a Governmental Authority under an applicable Requirement of Law.  “Person” means an individual, partnership, corporation (including a business  trust), joint stock company, trust, unincorporated association, limited liability company, joint  venture or other entity, or a government or any political subdivision or agency thereof.  “Plan” means a Single Employer Plan or a Multiple Employer Plan.  “Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by  Section 3(42) of ERISA, as amended from time to time.   “Platform” has the meaning specified in Section 9.02(b)(ii).  “Principal Financial Center” 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.  “property” or “properties” means any right or interest in or to property of any  kind whatsoever, whether real, personal or mixed and whether tangible or intangible.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   27    “PTE” 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.  “Public Debt Rating” means, as of any date, the lowest rating that has been most  recently announced by either S&P or Moody’s, as the case may be, for any class of long-term  senior unsecured, non-credit enhanced debt issued by the U.S Borrower.  For purposes of the  foregoing:  (a) if no Public Debt Rating shall be available from either S&P or Moody’s,  the Applicable Margin and the Applicable Percentage will be set in accordance with Level 6  under the definition of “Applicable Margin” or “Applicable Percentage”, as the case may be;   (b) if only one of S&P and Moody’s shall have in effect a Public Debt  Rating, the Applicable Margin and the Applicable Percentage shall be determined by reference to  the available rating;   (c) for purposes of the definition of “Applicable Margin” or “Applicable  Percentage”, in the event the 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 “or”, the  applicable rating to determine the rates or margins above shall be the higher of such Public Debt  Ratings, or (b) Public Debt Ratings that are equal to or greater than two ratings 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 Moody’s shall be changed, such  change shall be effective as of the date on which such change is first announced publicly by the  rating agency making such change.  “Quarterly Dates” means the first Business Day of each April, July, October and  January, commencing on the first such date to occur after the Effective Date.  “Receivable” means a right to receive payment arising from the sale or lease of  goods or services by a Person to another Person.  “Receivables Transaction” means any transaction or series of transactions that  may be entered into by the U.S. Borrower or any of its Subsidiaries pursuant to which the U.S.  Borrower or any of its Subsidiaries may directly or indirectly sell, convey or otherwise transfer  Receivables to another Person, or may grant a security interest in, any Receivables of the U.S.  Borrower or any of its Subsidiaries, and any assets related thereto including, without limitation,  all collateral securing such Receivables, proceeds of such Receivables and other assets which are  customarily transferred or in respect of which security interests are customarily granted in  connection with asset securitization transactions involving Receivables.  “Recipient” means (a) the Administrative Agent, (b) any Lender or (c) any  Issuing Bank, as applicable.  “Register” has the meaning specified in Section 9.07(d).  “Reimbursement Date” has the meaning specified in Section 3.04(g).  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   28    “Reimbursement Obligations” means all matured reimbursement or repayment  obligations of the Borrowers to any Issuing Bank with respect to amounts drawn under Letters of  Credit.  “Related Party” has the meaning set forth in Section 9.04(b).  “Release” means, with respect to any Person, any release, spill, emission,  leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration, in each  case, of any Contaminant into the indoor or outdoor environment or into or out of any property  owned by such Person, including the movement of Contaminants through or in the air, soil,  surface water, ground water or property.  “Relevant Governmental Body” 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.  “Remedial Action” means all actions required to (a) clean up, remove, treat or in  any other way address any Contaminant in the indoor or outdoor environment, (b) prevent the  Release or threat of Release or minimize the further Release so that a Contaminant does not  migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor  environment or (c) perform pre-remedial studies and investigations and post-remedial monitoring  and care.  “Required Lenders” means 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.  “Requirement of Law” means, with respect to any Person, the common law and  all federal, state, local and foreign laws, rules and regulations, orders, judgments, decrees and  other determinations of any Governmental Authority or arbitrator, applicable to or binding upon  such Person or any of its property or to which such Person or any of its property is subject.  “Resolution Authority” means an EEA Resolution Authority or, with respect to  any UK Financial Institution, a UK Resolution Authority.  “Revolving Loan” means a Dollar Revolving Loan or a Euro Revolving Loan.  “Revolving Loan Borrowing” 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).  “Revolving Loan Note” means a promissory note of a Borrower payable to the  order of any Lender, in substantially the form of Exhibit A-1 hereto, evidencing the aggregate  indebtedness of such Borrower to such Lender resulting from the Revolving Loans made by such  Lender to such Borrower.  “Revolving Loan Outstandings” 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).  “S&P” means S&P Global Ratings, a subsidiary of S&P Global Inc., or any  successor by merger or consolidation to its business.  “Sanctioned Country” means a country or territory that is subject or the target of  a sanctions program administered or enforced by OFAC, the European Union, Her Majesty’s  Treasury of the United Kingdom or the United Nations Security Council.  “Sanctioned Person” means a Person that is the target of Sanctions, including (A)  an agency of the government of a Sanctioned Country, (B) an organization owned or controlled  by a Sanctioned Country, (C) a Person located, organized or resident in a Sanctioned Country, to  the extent the target of Sanctions, or (D) any Person listed in any Sanctions-related list of  designated Persons maintained by OFAC, the U.S. Department of State, the European Union, Her  Majesty’s Treasury of the United Kingdom or the United Nations Security Council, or any Person  owned 50 percent or more directly or indirectly by any such Person or Persons.  “Sanctions” means economic sanctions administered or enforced by OFAC, the  U.S. Department of State, the European Union, Her Majesty’s Treasury of the United Kingdom or  the United Nations Security Council.  “Screen Rate” has the meaning specified in the definition of “EURIBOR”.  “SEC” means the United States Securities and Exchange Commission.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   30    “Single Employer Plan” of any Person means a single employer plan, as defined  in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of such Person or any of  its ERISA Affiliates and no Person other than such Person and its ERISA Affiliates or (b) was so  maintained and in respect of which such Person or any of its ERISA Affiliates could have liability  under Section 4069 of ERISA in the event such plan has been or were to be terminated.  “SOFR” means a rate equal to the secured overnight financing rate as  administered by the SOFR Administrator.  “SOFR Administrator” means the Federal Reserve Bank of New York (or a  successor administrator of the secured overnight financing rate).  “SOFR Borrowing” means, as to any Borrowing, the SOFR Loans comprising  such Borrowing.  “SOFR Loan” means a Loan that bears interest at a rate based on Adjusted Term  SOFR, other than pursuant to clause (c) of the definition of “Base Rate”.   “SPC” has the meaning specified in Section 9.07(a).  “Standby Letter of Credit” means any Letter of Credit that is not a Documentary  Letter of Credit.  “Stock” means shares of capital stock (whether denominated as common stock or  preferred stock), beneficial, partnership or membership interests, participations or other  equivalents (regardless of how designated) of or in a corporation, partnership, limited liability  company or equivalent entity, whether voting or non-voting.  “Stock Equivalent” means all securities convertible into or exchangeable for  Stock and all warrants, options or other rights to purchase or subscribe for any Stock, whether or  not presently convertible, exchangeable or exercisable.  “Subsidiary” of any Person means any corporation, partnership, limited liability  company, joint venture, trust or estate of which more than 50% of (a) the issued and outstanding  capital stock having ordinary voting power to elect a majority of the board of directors of such  corporation (irrespective of whether at the time capital stock of any other class or classes of such  corporation shall or might have voting power upon the occurrence of any contingency), (b) the  interest in the capital or profits of such partnership, limited liability company or joint venture or  (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or  controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or  more of such Person’s other Subsidiaries.    “Swing Loan” shall have the meaning assigned to such term in Section 2.03.  “Swing Loan Borrower” means the U.S. Borrower.  “Swing Loan Borrowing” means a borrowing consisting of a Swing Loan made  by any Swing Loan Lender.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   31    “Swing Loan Commitment” means (i) the amount in Dollars set forth opposite  each Swing Loan Lender’s 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.  “Swing Loan Lender” 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 Lender’s Swing Loan Commitment.  “Swing Loan Request” shall have the meaning assigned to such term in Section  3.03(a).  “Swing Loan Sublimit” means $50,000,000.  “Syndication Agent” means BofA, as Syndication Agent.  “TARGET Day” 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.  “TARGET2” has the meaning specified in the definition of “Business Day”.  “Taxes” 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.  “Termination Date” 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.  “Term SOFR” 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  “Periodic Term SOFR Determination Day”) 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   32    U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities  Business Days prior to such Periodic Term SOFR Determination Day, and  (b) for any calculation with respect to an Base Rate Loans on any day, the  Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term  SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to  such day, 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 Base Rate 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 U.S. Government Securities Business  Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate  Term SOFR Determination Day.  “Term SOFR Adjustment” means a percentage rate equal to 0.10% per annum.  “Term SOFR Administrator” means CME Group Benchmark Administration  Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the  Administrative Agent in its reasonable discretion).  “Term SOFR Reference Rate” means the forward-looking term rate based on  SOFR.  “Total Commitments” means $2,000,000,000, as such amount may be increased  or reduced as provided in Section 2.06 or as otherwise expressly provided in this Agreement.  “Total Outstandings” means, at any time, the sum of (i) the Revolving Loan  Outstandings, (ii) the Dollar Equivalent of the principal amount of the Swing Loans outstanding  at such time and (iii) the Letter of Credit Obligations outstanding at such time.  “Treaty on European Union” means the Treaty of Rome of March 25, 1957, as  amended by the Single European Act 1986 and the Maastricht Treaty (which was signed at  Maastricht on February 7, 1992, and came into force on November 1, 1993), as amended from  time to time.  “Type” means a Base Rate Loan, a SOFR Loan or a EURIBOR Loan.  “UCC” has the meaning specified in Section 7.02(e)(ii).  “UK Financial Institution” means any BRRD Undertaking (as such term is  defined under the PRA Rulebook (as amended from time to time) promulgated by the United  Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA  Handbook (as amended from time to time) promulgated by the United Kingdom Financial  Conduct Authority, which includes certain credit institutions and investment firms, and certain  affiliates of such credit institutions or investment firms.   FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   33    “UK Resolution Authority” means the Bank of England or any other public  administrative authority having responsibility for the resolution of any UK Financial Institution.  “Unadjusted Benchmark Replacement” means the applicable Benchmark  Replacement excluding the related Benchmark Replacement Adjustment.  “Unused Commitments” means, at any time, the aggregate amount of the  Commitments then unused and outstanding after deducting the Total Outstandings.  “U.S. Borrower” has the meaning specified in the recital of parties to this  Agreement.  “U.S. Government Securities Business Day” means any day except for (a) a  Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets  Association recommends that the fixed income departments of its members be closed for the  entire day for purposes of trading in United States government securities.   “U.S. Person” means any Person that is a “United States Person” as defined in  Section 7701(a)(30) of the Code.  “Voting Stock” means capital stock issued by a corporation or equivalent  interests in any other Person, the holders of which are ordinarily, in the absence of contingencies,  entitled to vote for the election of directors (or persons performing similar functions) of such  Person, even though the right to so vote has been suspended by the happening of such  contingency.  “Wholly-Owned Subsidiary” of any Person means any Subsidiary of such Person  100% of the Voting Stock of which (other than directors’ qualifying shares or other shares held to  satisfy legal or regulatory requirements) are directly or indirectly owned by such Person, or by  one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or more  Wholly-Owned Subsidiaries of such Person.  “Withdrawal Liability” has the meaning specified in Part 1 of Subtitle E of  Title IV of ERISA.  “Withholding Agent” means the Borrowers and the Administrative Agent.  “Write-Down and Conversion Powers” means (a) 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 and (b)  with respect to the United Kingdom, any powers of the applicable Resolution Authority under the  Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK  Financial Institution or any contract or instrument under which that liability arises, to convert all  or part of that liability into shares, securities or obligations of that person or any other person, to  provide that any such contract or instrument is to have effect as if a right had been exercised  under it or to suspend any obligation in respect of that liability or any of the powers under that  Bail-In Legislation that are related to or ancillary to any of those powers.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   34    SECTION 1.02.  Computation of Time Periods.  In this Agreement in the  computation of periods of time from a specified date to a later specified date, the word “from”  means “from and including” and the words “to” and “until” each means “to but excluding” and  the word “through” means “to and including.”  SECTION 1.03.  Accounting Terms and Principles.    (a) Except as set forth below, all accounting terms not specifically defined  herein shall be construed in conformity with GAAP and all accounting determinations required to  be made pursuant hereto (including for purpose of measuring compliance with Section 6.01 shall,  unless expressly otherwise provided herein, be made in conformity with GAAP.  (b) If any change in the accounting principles used in the preparation of the  most recent Financial Statements referred to in Section 6.02(a) is hereafter required or permitted  by the rules, regulations, pronouncements and opinions of the Financial Accounting Standards  Board or the American Institute of Certified Public Accountants (or any successors thereto) and  such change is adopted by the U.S. Borrower with the agreement of the Borrowers’ Accountants  and results in a change in any of the calculations required by Article V (Representations and  Warranties) or Section 6.01 had such accounting change not occurred, for purposes of the  calculation of such covenants and the definitions related thereto, such calculation shall be made  using GAAP as used by the U.S. Borrower in its December 31, 2021 financial statements.   (c) Notwithstanding any other provision contained herein, all terms of an  accounting or financial nature used herein shall be construed and all computations of amounts and  ratios referred to in Article VI (Covenants of the Company) shall be made, without giving effect  to any election under Accounting Standards Codification 825-10 (or any other Financial  Accounting Standard having a similar result or effect) to value any Indebtedness or other  liabilities of any Borrower or any Subsidiary of any Borrower at “fair value”.  SECTION 1.04.  Certain Terms.    (a) The terms “herein,” “hereof” and “hereunder” and similar terms refer to  this Agreement as a whole, and not to any particular Article, Section, subsection or clause in, this  Agreement.  (b) Unless otherwise expressly indicated herein, (i) references in this  Agreement to an Exhibit, Schedule, Article, Section, clause or sub-clause refer to the appropriate  Exhibit or Schedule to, or Article, Section, clause or sub-clause in this Agreement and (ii) the  words “above” and “below”, when following a reference to a clause or a sub-clause of any Loan  Document, refer to a clause or sub-clause within, respectively, the same Section or clause.  (c) Each agreement defined in this Article I shall include all appendices,  exhibits and schedules thereto.  Unless the prior written consent of the Required Lenders is  required hereunder for an amendment, restatement, supplement or other modification to any such  agreement and such consent is not obtained, references in this Agreement to such agreement shall  be to such agreement as so amended, restated, supplemented or modified.  (d) References in this Agreement to any statute shall be to such statute as  amended or modified from time to time and to any successor legislation thereto, in each case as in  effect at the time any such reference is operative.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   35    (e) The term “including” when used in any Loan Document means  “including without limitation” except when used in the computation of time periods.  (f) The terms “Lender,” “Issuing Bank” and “Administrative Agent”  include, without limitation, their respective successors.  SECTION 1.05.  Divisions.  For all purposes under the Loan Documents  (including Section 6.04), in connection with any division or plan of division under Delaware  law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right,  obligation or liability of any Person becomes the asset, right, obligation or liability of a  different Person, then it shall be deemed to have been transferred from the original Person to  the subsequent Person, and (b) if any new Person comes into existence, such new Person  shall be deemed to have been organized on the first date of its existence by the holders of its  equity interests at such time.  ARTICLE II  AMOUNTS AND TERMS OF THE LOANS  SECTION 2.01.  The Revolving Loans.  (a) Each Lender severally agrees, on the terms and conditions hereinafter set  forth, to make Revolving Loans (i) denominated in Dollars to the U.S. Borrower (each, a “Dollar  Revolving Loan”) and (ii) denominated in Dollars or Euros to the Euro Borrowers (each a “Euro  Revolving Loan”, and collectively with any Dollar Revolving Loans, the “Revolving Loans”)  from time to time on any Business Day during the period from the Effective Date until the  Termination Date of such Lender in an aggregate amount as to all Borrowers not to exceed at any  time outstanding the amount of such Lender’s Commitment.  (b) Anything in this Agreement to the contrary notwithstanding, the Total  Outstandings shall (1) not on the date of any extension of credit under this Agreement nor on the  last day of an Interest Period for any outstanding Borrowing exceed the Total Commitments or  (2) not on the last Business Day of any week exceed 103% of the Total Commitments.  (c) Each Revolving Loan Borrowing shall be in an aggregate amount of not  less than the Dollar Equivalent of $1,000,000 and integral multiples of the Dollar Equivalent of  $500,000 in excess thereof (or, if less, an aggregate amount equal to the then remaining Unused  Commitments of the Lenders participating in such Borrowing, as applicable).  (d) Each Revolving Loan Borrowing shall (subject to Section 2.09(d))  consist of Revolving Loans of the same Type in the same Currency made on the same day by the  Lenders ratably according to their respective Commitments.  (e) Within the limits set forth above and subject to Section 2.16, each  Borrower may from time to time borrow, repay pursuant to Section 2.07 or prepay pursuant to  Section 2.10 and reborrow under this Section 2.01.  (f) Each Lender may, at its option, make any Revolving Loan available to  any Euro Borrower by causing any foreign or domestic branch or Affiliate of such Lender to  make such Revolving Loan; provided that any exercise of such option shall not affect the  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   36    obligation of such Euro Borrower to repay such Revolving Loan in accordance with the terms of  this Agreement.  Each reference to any Lender shall be deemed to include any of such Lender’s  Affiliates which make Revolving Loans; provided that no such Lender shall be relieved of its  obligations hereunder until such Lender’s Affiliates have actually performed such Lender’s  obligations.  Notwithstanding the foregoing, the Euro Borrowers and the Administrative Agent  shall be permitted to deal solely and directly with, and may rely conclusively on, such Lender in  connection with such Lender’s rights and obligations under this Agreement  (g) Any Borrowing in relation to a Loan to any Dutch Borrower shall at all  times be provided by a Lender that is a Dutch Non-Public Lender.  SECTION 2.02.  [Intentionally Deleted].  SECTION 2.03.  The Swing Loans.  On the terms and subject to the conditions contained in this Agreement, each  Swing Loan Lender may, in its sole discretion, make loans (each, a “Swing Loan”) to the Swing  Loan Borrower from time to time on any Business Day during the period from the date hereof  until the Termination Date.  Such Swing Loans shall be denominated in Dollars and in an  aggregate principal amount not to exceed at any time outstanding the lesser of (i) the Swing Loan  Commitments and (ii) the then Unused Commitments of Lenders having Termination Dates  falling on or after the proposed maturity date of such Swing Loan.  Each Swing Loan must be  paid in full upon any Revolving Loan Borrowing by the Swing Loan Borrower hereunder and  shall in any event mature no later than the Termination Date.  Within the limits set forth in the  first sentence of this Section 2.03, amounts of Swing Loans repaid may be reborrowed under this  Section 2.03.  Each Swing Loan Lender may, at its option, make any Swing Loan available to the  Swing Loan Borrower by causing any domestic branch or Affiliate of such Swing Loan Lender to  make such Swing Loan; provided that any exercise of such option shall not affect the obligation  of the Swing Loan Borrower to repay such Swing Loan in accordance with the terms of this  Agreement.  SECTION 2.04.  The Letters of Credit.  On the terms and subject to the conditions contained in this Agreement,  $400,000,000 of the Facility is available (the “Letter of Credit Sublimit”) for the issuance of  letters of credit, in Dollars or Euros, for the account of the U.S. Borrower or a Euro Borrower (the  “Letter of Credit Sub-Facility”), and each Issuing Bank agrees to Issue at the request of one or  more Borrowers one or more letters of credit (each a “Letter of Credit”) from time to time on any  Business Day during the period commencing on the Effective Date and ending on or before the  day that is 30 days prior to the Termination Date in an amount not to exceed at any time  outstanding the amount of such Issuing Bank’s Letter of Credit Commitment; provided, however,  that no Letter of Credit will have a termination date that is later than 30 days prior to the  Termination Date, nor will any such Letter of Credit have a term longer than one calendar year  after the date of issuance thereof other than those letters of credit separately identified on  Schedule 2.04 (Existing Letters of Credit) issued to support IRB Obligations (which letters of  credit may have a term of up to 13 months or up to 18 months as required by such IRB  Obligation), provided, further, that any Letter of Credit may provide for the renewal thereof for  additional one calendar year periods, subject to the immediately preceding proviso.  SECTION 2.05.  Fees.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   37    (a) Facility Fees.  The U.S. Borrower agrees to pay to the Administrative  Agent for the account of each Lender a facility fee on the average daily amount (whether used or  unused) of such Lender’s Commitment from the Effective Date (in the case of each Lender on the  Effective Date), and from the effective date specified in the Acceptance pursuant to which it  became a Lender (in the case of each other Lender), until the Termination Date of such Lender,  payable in Dollars in arrears on each Quarterly Date during the term of such Lender’s  Commitment, and on the Termination Date of such Lender, at a rate per annum equal to the  Applicable Percentage in effect from time to time for facility fees.  (b) Letter of Credit Compensation.  (i) The U.S. Borrower agrees to pay to the Administrative Agent for  the account of each Lender a commission on such Lender’s pro rata share of the average  daily aggregate Available Amount of (A) all Standby Letters of Credit outstanding from  time to time and (B) all Documentary Letters of Credit outstanding from time to time, in  each case at the Applicable Margin in effect from time to time for SOFR Loans, payable  in Dollars (the amount of which commission shall be determined, in the case of the  Available Amount of Letters of Credit denominated in Euros on the basis of the Dollar  Equivalent of such amount on the date payable) in arrears quarterly on each Quarterly  Date and on the Termination Date of such Lender, commencing on the first Quarterly  Date after the date hereof.   (ii) The U.S. Borrower agrees to pay to each Issuing Bank, for its  own account, (x) a fronting fee with respect to each Letter of Credit issued by such  Issuing Bank, payable quarterly in arrears on each Quarterly Date during which such  Issuing Bank has acted in such capacity, and on the scheduled Termination Date of such  Issuing Bank (if such Issuing Bank acted in such capacity up to such date), in an amount  equal to the product of fifteen (15) basis points per annum of the average daily Available  Amount of such Letter of Credit multiplied by the actual number of days such Letter of  Credit was outstanding in such period, divided by 360, as applicable, which amount shall  be payable in Dollars and calculated based on the Dollar Equivalent of any amount  otherwise calculated in Euros on the date when such amount is payable, and (y) such  customary fees and charges in connection with the issuance or administration of each  Letter of Credit as may be agreed in writing between the U.S. Borrower and such Issuing  Bank from time to time.   (c) Defaulting Lender Fees.  Notwithstanding anything in this Agreement to  the contrary, if any Lender is a Defaulting Lender, such Defaulting Lender will not be entitled to  any fees accruing pursuant to clauses (a) and (b) above, in each case with respect to the entire  accrual period with respect to such fees (without prejudice to the rights of the Non-Defaulting  Lenders in respect of such fees); provided that (i) to the extent that a ratable portion of the Letter  of Credit Obligations or Swing Loans of such Defaulting Lender has been reallocated in  accordance with Section 2.16(a)(i) to the Non-Defaulting Lenders, the fees that would have  accrued for the benefit of such Defaulting Lender will instead accrue for the benefit of and be  payable to such Non-Defaulting Lenders, pro rata in accordance with their respective  Commitments after giving effect to such reallocation, and (ii) to the extent any portion of such  Letter of Credit Obligations or Swing Loans cannot be so reallocated to such Non-Defaulting  Lenders, such fees will instead accrue for the benefit of and be payable to the Issuing Banks and  the Swing Loan Lenders as their interests appear (and the pro rata payment provisions of Section  2.11 will automatically be deemed adjusted to reflect the provisions of this Section 2.05(c)).  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   38    (d) Other Fees.  The U.S. Borrower agrees to pay to the Administrative  Agent such fees as from time to time may be separately agreed between the U.S. Borrower and  the Administrative Agent, including as set forth in the Fee Letter.  SECTION 2.06.  Reductions and Increases of the Commitments.    (a) Commitment Reductions, Etc.  (i) The Commitment of each Lender shall be automatically reduced  to zero on the Termination Date of such Lender.  In addition, the U.S. Borrower shall  have the right, upon at least three Business Days’ notice to the Administrative Agent, to  terminate in whole or reduce ratably in part the unused portions of the respective  Commitments of the Lenders, provided that (x) the Total Commitments shall not be  reduced pursuant to this sentence to an amount which is less than the Total Outstandings,  (y) each partial reduction shall be in an aggregate amount of at least $10,000,000 or any  integral multiple of $1,000,000 in excess thereof and (z) a reduction in the Commitments  shall not be allowed if, as a result thereof, the Commitments would be reduced to an  amount which is less than the sum of the Swing Loan Commitments plus the Letter of  Credit Sublimit.  Each Commitment reduction pursuant to this Section 2.06(a)(i) shall be  permanent (subject, however, to the rights of the U.S. Borrower under Section 2.06(b)).   (ii) The Swing Loan Commitment of each Swing Loan Lender shall  be automatically reduced to zero on the Termination Date of such Swing Loan Lender.   In addition, the Swing Loan Borrower shall have the right, upon at least three Business  Days’ notice to the Administrative Agent, to terminate in whole or reduce ratably in part  the unused portion of the Swing Loan Commitment of the Swing Loan Lenders, provided  that each partial reduction shall be in an aggregate amount of at least the Dollar  Equivalent $10,000,000.  Each Swing Loan Commitment reduction pursuant to this  Section 2.06(a)(ii) shall be permanent (subject, however, to the rights of the U.S.  Borrower under Section 2.06(b)).  (b) Optional Increases of Commitments.    (i) Not more than twice in any calendar year, the U.S. Borrower  may propose to increase the Total Commitments by an aggregate amount of not less than  $25,000,000 or an integral multiple of $10,000,000 in excess thereof (a “Proposed  Aggregate Commitment Increase”) in the manner set forth below, provided that:  (A) no Default or Event of Default shall have occurred and  be continuing either as of the date on which the U.S. Borrower shall notify the  Administrative Agent of its request to increase the Total Commitments or as of the  related Increase Date (as hereinafter defined);  (B) the representations and warranties contained in Article V  (Representations and Warranties) shall be correct in all material respects (except any  representations and warranties that are qualified by materiality, which shall be true  and correct in all respects) either as of the date on which the U.S. Borrower shall  notify the Administrative Agent of its request to increase the Total Commitments or  as of the related Increase Date, as though made on and as of such date, other than  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   39    any such representations or warranties that, by their terms, refer to a different date,  which shall be true and correct as of such earlier date; and  (C) after giving effect to any such increase, the Total  Commitments shall not exceed $2,750,000,000 less the amount of any reductions of  the Total Commitments under Section 2.06(a)(i).   (ii) The U.S. Borrower may request an increase in the aggregate  amount of the Commitments by delivering to the Administrative Agent a notice (an  “Increase Notice”, the date of delivery thereof to the Administrative Agent being the  “Increase Notice Date”) specifying (1) the Proposed Aggregate Commitment Increase,  (2) the proposed date (the “Increase Date”) on which the Commitments would be so  increased (which Increase Date may not be fewer than 30 nor more than 60 days after the  Increase Notice Date) and (3) the New Lenders, if any, to whom the U.S. Borrower  desires to offer the opportunity to commit to all or a portion of the Proposed Aggregate  Commitment Increase and which New Lenders, if any, the U.S. Borrower desires the  opportunity to commit to all or a portion of the Proposed Aggregate Commitment  Increase that would increase the Swing Loan Commitments.  The Administrative Agent  shall in turn promptly notify each Lender of the U.S. Borrower’s request by sending each  Lender a copy of such notice.   (iii) Not later than the date that is five days after the Increase Notice  Date, the Administrative Agent shall notify each New Lender, if any, identified in the  related Increase Notice of the opportunity to commit to all or any portion of the Proposed  Aggregate Commitment Increase.  Each such New Lender may irrevocably commit to all  or a portion of the Proposed Aggregate Commitment Increase, representing Revolving  Commitments, and Swing Loan Commitments, as applicable (such New Lender’s  “Proposed New Commitment”) by notifying the Administrative Agent (which shall give  prompt notice thereof to the U.S. Borrower) before 11:00 A.M. (New York City time) on  the date that is 10 days after the Increase Notice Date; provided that:  (A) the Proposed New Commitment of each New Lender  shall be in an aggregate amount not less than $10,000,000; and  (B) each New Lender that submits a Proposed New  Commitment shall execute and deliver to the Administrative Agent (for its  acceptance and recording in the Register) a New Commitment Acceptance in  accordance with the provisions of Section 9.07 hereof.  (iv) If the aggregate Proposed New Commitments of all of the New  Lenders shall be less than the Proposed Aggregate Commitment Increase, then (unless  the U.S. Borrower otherwise requests) the Administrative Agent shall, on or prior to the  date that is 15 days after the Increase Notice Date, notify each Lender of (x) the  opportunity to so commit to all or any portion of the Proposed Aggregate Commitment  Increase not committed to by New Lenders pursuant to Section 2.06(b)(iii) and (y) the  then-current Final Termination Date.  Each Lender may, if, in its sole discretion, it elects  to do so, irrevocably offer to commit to all or a portion of such remainder, representing  Revolving Commitments and Swing Loan Commitments, as applicable (such Lender’s  “Proposed Increased Commitment”), by notifying the Administrative Agent (which shall  give prompt notice thereof to the U.S. Borrower) no later than 11:00 A.M. (New York  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   40    City time) on the date five days before the Increase Date.  In no event shall any Lender be  obligated to increase its Commitments hereunder.  (v) If the aggregate amount of Proposed New Commitments and  Proposed Increased Commitments (such aggregate amount, the “Total Committed  Increase”) equals or exceeds $25,000,000, then, subject to the conditions set forth in  Section 2.06(b)(i):  (A) effective on and as of the Increase Date, the Total  Commitments shall be increased by the Total Committed Increase (provided that the  aggregate amount of the Commitments shall in no event be increased pursuant to  this Section 2.06(b) to more than $2,750,000,000 less the amount of any reductions  of the Total Commitments under Section 2.06(a)(i)) and shall be allocated among  the New Lenders and the Lenders as provided in Section 2.06(b)(vi);  (B) effective on and as of the Increase Date, the Termination  Date of each New Lender that offers a Proposed New Commitment and of each  Increasing Lender shall be changed to the Final Termination Date (notwithstanding  any earlier Termination Date for such Lender which may then be in effect pursuant  to Section 2.15); and  (C) on the Increase Date, if any Revolving Loans are then  outstanding, the Borrowers shall borrow Revolving Loans from all or certain of the  Lenders and/or (subject to compliance by the U.S. Borrower with Section 9.04(c))  prepay Revolving Loans of all or certain of the Lenders (other than any Defaulting  Lender) such that, after giving effect thereto, the Revolving Loans (including,  without limitation, the Types, Currencies and Interest Periods thereof) shall be held  by the Lenders (including for such purposes New Lenders) ratably in accordance  with their respective Commitments (subject, however, to Section 2.09(d)).   If the Total Committed Increase is less than $25,000,000, then the Total Commitments  shall not be changed.   (vi) The Total Committed Increase shall be allocated among New  Lenders having Proposed New Commitments and Lenders having Proposed Increased  Commitments as follows:  (A) If the Total Committed Increase shall be at least  $25,000,000 and less than or equal to the Proposed Aggregate Commitment  Increase, then (x) the initial Commitment of each New Lender shall be such New  Lender’s Proposed New Commitment and (y) the Commitment of each Lender shall  be increased by such Lender’s Proposed Increased Commitment.  (B) If the Total Committed Increase shall be greater than the  Proposed Aggregate Commitment Increase, then the Total Committed Increase shall  be allocated:   (1) first to New Lenders (to the extent of their  respective Proposed New Commitments) in such a manner as the U.S.  Borrower and the Administrative Agent shall agree; and  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   41    (2) then to Lenders (to the extent of their respective  Proposed Increased Commitments, if any) in such a manner as the U.S.  Borrower shall determine in its sole discretion upon consultation with the  Administrative Agent and the Syndication Agent.   (vii) No increase in the Commitments contemplated hereby shall  become effective until the Administrative Agent shall have received (x) Revolving Loan  Notes payable by each of the Borrowers to each New Lender and each Increasing Lender,  to the extent requested, and (y) evidence satisfactory to the Administrative Agent  (including an update of paragraphs 2 and 4 of the opinion of counsel provided pursuant to  Section 4.01(a)(v) that such increases in the Commitments, and Borrowings thereunder,  have been duly authorized.    SECTION 2.07.  Repayment.  (a) Revolving Loans.  Subject to Section 2.16(a), each Borrower shall repay  to the Administrative Agent for the account of each Lender the principal amount of each  Revolving Loan made by such Lender to such Borrower, and each Revolving Loan made by such  Lender shall mature on the Termination Date of such Lender.  (b) [Intentionally Deleted].  (c) Swing Loans.  The Swing Loan Borrower shall repay to the  Administrative Agent for the account of each Swing Loan Lender, the outstanding principal  amount of each Swing Loan to the Swing Loan Borrower on the earlier of (i) the maturity date  specified in the applicable Swing Loan Request (which maturity shall be no later than the tenth  Business Day after the requested date of such Borrowing) and (ii) the Termination Date of such  Swing Loan Lender.  (d) Letter of Credit Loans.  The Letters of Credit shall be repaid as set forth  in Section 3.04.  (e) Certain Prepayments.    (i) If, as of the last Business Day of any week during the period  from the Effective Date until the Final Termination Date, (1) the sum of (x) the aggregate  amount of all Loans (for which purpose the amount of any Loan that is denominated in an  Alternate Currency shall be deemed to be the Dollar Equivalent thereof) plus (y) the  Available Amount of all Letters of Credit (for which purpose the Available Amount of  any Letter of Credit denominated in an Alternate Currency shall be deemed to be the  Dollar Equivalent thereof as of the date of determination) exceeds (2) 103% of the then  Total Commitments, the Administrative Agent shall use all reasonable efforts to give  prompt written notice thereof to the U.S. Borrower, specifying the amount to be prepaid  under this clause (i), and the Borrowers shall, within two Business Days of the date of  such notice, prepay the Loans in an amount so that after giving effect thereto the  aggregate outstanding principal amount of the Loans (determined as aforesaid) plus the  Available Amount of all Letters of Credit (determined as aforesaid) does not exceed the  Total Commitments; provided that any such payment shall be accompanied by any  amounts payable under Section 9.04(c).  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   42    (ii) [Reserved].   (iii) In addition, if on the last day of any Interest Period the aggregate  outstanding principal amount of the Loans (after giving effect to any Loans being made  to repay Loans maturing on that date) (for which purpose the amount of any Loan that is  denominated in an Alternate Currency shall be deemed to be the Dollar Equivalent  thereof) plus the Available Amount of all Letters of Credit (for which purpose the  Available Amount of any Letter of Credit denominated in an Alternate Currency shall be  deemed to be the Dollar Equivalent thereof as of the date of determination) would exceed  100% of the then Total Commitments, the Administrative Agent shall use all reasonable  efforts to give prompt written notice thereof to the U.S. Borrower, specifying the amount  to be prepaid under this clause (iii), and the Borrowers shall, within two Business Days of  the date of such notice, prepay the Loans, or cause Loans to be prepaid, or reduce the  requested Loans in such amounts that after giving effect to such action the aggregate  outstanding principal amount of the Loans (after giving effect to any Loans being made  to repay Loans maturing on that date) (determined as aforesaid) plus the Available  Amount of all Letters of Credit (determined as aforesaid) does not exceed the Total  Commitments; provided that any such payment shall be accompanied by any amounts  payable under Section 9.04(c).    (iv) The determinations of the Administrative Agent under this  Section 2.07(e) shall be conclusive and binding on the U.S. Borrower and the other  Borrowers in the absence of manifest error.   (f) If any Lender is a Defaulting Lender, such Defaulting Lender shall be  deemed to have assigned any and all payments in respect of the Obligations due to it from or for  the benefit of any Borrower pursuant to this Section 2.07 to the Non-Defaulting Lenders for  application to, and reduction of, their ratable portion of all Obligations until such Non-Defaulting  Lenders have been repaid in full.  Such Defaulting Lender hereby authorizes the Administrative  Agent to distribute such payments in accordance with Section 2.16(a)(iii).  This Section 2.07 shall  (i) apply and be effective regardless of whether an Event of Default has occurred and is  continuing and notwithstanding (1) any other provision of this Agreement to the contrary or (2)  any instruction of the U.S. Borrower as to its desired application of payments and (ii) not be  deemed to relieve or otherwise release any Borrower from any of its Obligations due or owing to  any Lender, including a Defaulting Lender.  SECTION 2.08.  Interest.    (a) Ordinary Interest.  Each Borrower shall pay interest on the unpaid  principal amount of each Loan made by each Lender to such Borrower, from the date of such  Loan until such principal amount shall be paid in full, at the following rates per annum and in  each case subject to Section 2.16(a)(iii):  (i) Base Rate Loans and Letter of Credit Loans.  If such Loan is  either a Revolving Loan or a Letter of Credit Loan which, in each case, bears interest at  the Base Rate, a rate per annum equal at all times to the Base Rate in effect from time to  time plus the Applicable Margin, payable on (A) each Quarterly Date while such Base  Rate Loan is outstanding or (B) the last day of each month during which such Letter of  Credit Loan is outstanding, and in each case, on the date such Base Rate Loan or Letter  of Credit Loan shall be paid in full.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   43    (ii) Swing Loans.  If such Loan is a Swing Loan (other than an  Overdraft Advance, for which the rate shall be equal to the Overdraft Advance Interest  Rate), a rate per annum equal at all times to the Base Rate plus the Applicable Margin  (applicable to Base Rate Loans) in effect from time to time, payable (A) on the first  Business Day of each calendar quarter, commencing on the first such day following the  making of such Swing Loan, (B) upon each payment or prepayment thereof in full or in  part and (C) if not previously paid in full, at maturity (whether by acceleration or  otherwise) of such Swing Loan.  (iii) SOFR Loans.  If such Loan is a SOFR Loan, a rate per annum  equal at all times during each Interest Period for such Loan to the sum of the applicable  Adjusted Term SOFR with respect to such Loan for such Interest Period plus the  Applicable Margin, payable on the last day of such Interest Period and, if such Interest  Period has a duration of more than three months, at three-month intervals following the  first day of such Interest Period.  (iv) EURIBOR Loans.  If such Loan is a EURIBOR Loan, a rate per  annum equal at all times during each Interest Period for such Loan to the sum of the  applicable EURIBOR with respect to such Loan for such Interest Period plus the  Applicable Margin, payable on the last day of such Interest Period and, if such Interest  Period has a duration of more than three months, at three-month intervals following the  first day of such Interest Period.  (b) Default Interest.  Upon the occurrence and during the continuance of an  Event of Default that has not been waived, the Administrative Agent may, and upon the request  of the Required Lenders shall, require the Borrowers to pay to the fullest extent permitted by law  interest (“Default Interest”) on all outstanding Obligations at the rate then applicable to Base Rate  Loans plus two percentage points (2%) per annum; provided however, that following the  acceleration of the Loans and other Obligations pursuant to Section 7.01, Default Interest shall  accrue and be payable hereunder whether or not previously required by the Administrative Agent.  SECTION 2.09.  Interest Rate Determinations.  (a) [Intentionally Deleted].  (b) The Administrative Agent shall give prompt notice to the U.S. Borrower  and the Lenders of the applicable interest rate determined by the Administrative Agent for  purposes of Section 2.08(a)(i), (ii), (iii) and (iv).  (c) (i) Subject to Section 2.18, if prior to 10:00 A.M. (New York City time)  on any date on which an interest rate is to be determined pursuant to the definition of Adjusted  Term SOFR, (i) the Administrative Agent shall have determined (which determination shall be  conclusive and binding absent manifest error) that Adjusted Term SOFR for any requested  Interest Period with respect to a proposed SOFR Loan does not adequately and fairly reflect the  cost to such Lenders of funding such Loan, or the Required Lenders have provided notice of such  determination to the Administrative Agent, then the Administrative Agent shall promptly notify  the U.S. Borrower and each Lender of such circumstances. Upon notice thereof by the  Administrative Agent to the U.S. Borrower, any right of the U.S. Borrower to select SOFR Loans  for any requested Revolving Loan Borrowing or any subsequent Revolving Loan Borrowing shall  be suspended (to the extent of the affected SOFR Loans or affected Interest Periods) until the  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   44    Administrative Agent revokes such notice.  Upon receipt of such notice, (i) the U.S. Borrower  may revoke any pending request for a borrowing of, conversion to or continuation of SOFR  Loans (to the extent of the affected SOFR Loans or affected Interest Periods) or, failing that, the  U.S. Borrower will be deemed to have converted any such request into a request for a Borrowing  of or conversion to Base Rate Loans in the amount specified therein and (ii) any outstanding  affected SOFR Loans will be deemed to have been converted into Base Rate Loans at the end of  the applicable Interest Period.  Upon any such conversion, the Borrowers shall also pay accrued  interest on the amount so converted, together with any additional amounts required pursuant to  Section 9.04(c). Subject to Section 2.18, if the Administrative Agent determines (which  determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR”  cannot be determined pursuant to the definition thereof on any given day, the interest rate on Base  Rate Loans shall be determined by the Administrative Agent without reference to clause (c) of the  definition of “Base Rate” until the Administrative Agent revokes such determination.  (ii) Subject to Section 2.18, if prior to 10:00 A.M. (New York City  time) on any date on which an interest rate is to be determined pursuant to the definition  of “EURIBOR”, (i) the Administrative Agent shall have determined (which  determination shall be conclusive and binding on the U.S. Borrower) that adequate and  reasonable means do not exist for determining EURIBOR for any requested Interest  Period with respect to a proposed EURIBOR Loan, or (ii) the Administrative Agent shall  have received notice from the Required Lenders in respect of the relevant facility that  EURIBOR for any requested Interest Period with respect to a proposed EURIBOR Loan  does not adequately and fairly reflect the cost to such Lenders of funding such EURIBOR  Loan for such Interest Period, then the Administrative Agent shall promptly notify the  U.S. Borrower and each Lender of such circumstances, whereupon the right of the  Borrowers to select EURIBOR Loans for any requested Revolving Loan Borrowing or  any subsequent Revolving Loan Borrowing shall be suspended until the first date on  which the circumstances causing such suspension cease to exist. If the Borrowers shall  not, in turn, before 11:00 A.M. (New York City time) on such date notify the  Administrative Agent that a Notice of Revolving Loan Borrowing with respect to  EURIBOR shall be converted to a Notice of Revolving Loan Borrowing for a Base Rate  Loan, such Notice of Revolving Loan Borrowing shall be deemed to be canceled and of  no force or effect, and the U.S. Borrower shall not be liable to the Administrative Agent  or any Lender with respect thereto except as set forth in Section 3.01(c). Any outstanding  affected EURIBOR Loans will be deemed to have been converted into Base Rate Loans  (in an amount that is then equal to the Dollar Equivalent of such EURIBOR Loans) at the  end of the applicable Interest Period. In the event of such a suspension, the  Administrative Agent shall review the circumstances giving rise to such suspension at  least weekly and shall notify the U.S. Borrower and the Lenders promptly of the end of  such suspension, and thereafter the Borrowers shall be entitled, on the terms and subject  to the conditions set forth herein, to borrow EURIBOR Loans.  (d) Notwithstanding anything in this Agreement to the contrary, no Lender  whose Termination Date falls prior to the last day of any Interest Period for any SOFR Loan or  EURIBOR Loan (a “Relevant Lender”) shall participate in such Loan.  Without limiting the  generality of the foregoing, no Relevant Lender shall (i) participate in a Borrowing of any SOFR  Loan or EURIBOR Loan having an initial Interest Period ending after such Lender’s Termination  Date, (ii) have any outstanding SOFR Loan or EURIBOR Loan continued for a subsequent  Interest Period if such subsequent Interest Period would end after such Lender’s Termination  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   45    Date or (iii) have any outstanding Base Rate Loan Converted into a SOFR Loan if such SOFR  Loan would have an initial Interest Period ending after such Lender’s Termination Date.  If any  Relevant Lender has outstanding a SOFR Loan or a EURIBOR Loan that cannot be continued for  a subsequent Interest Period pursuant to clause (ii) above or has outstanding a Base Rate Loan  that cannot be Converted into a SOFR Loan pursuant to clause (iii) above, such Lender’s ratable  share of such SOFR Loan or EURIBOR Loan (in the case of said clause (ii)) shall be repaid by  the relevant Borrower on the last day of its then current Interest Period and such Lender’s ratable  share of such Base Rate Loan (in the case of said clause (iii)) shall be repaid by the relevant  Borrower on the day on which the Loans of Lenders unaffected by said clause (iii) are so  Converted.  Subject to the terms and conditions of this Agreement, the Borrowers may fund the  repayment of the Relevant Lenders’ ratable shares of such SOFR Loans, EURIBOR Loans and  Base Rate Loans by borrowing from Lenders hereunder that are not Relevant Lenders.  SECTION 2.10.  Prepayments.  (a) The Borrowers shall have no right to prepay any principal amount of any  Revolving Loan or Swing Loan other than as provided in subsection (b) below.  (b) Each Borrower may without premium or penalty, (i) upon at least the  number of U.S. Government Securities Business Days’ or Business Days’, as applicable, prior  notice specified in the first sentence of Section 3.01(a) with respect to any Revolving Loan of the  same Type, (ii) upon notice by no later than 1:00 p.m. (New York City time) one Business Day  prior to the date of prepayment of any Swing Loan in any case given to the Administrative Agent  stating the proposed date and aggregate principal amount of the prepayment, and if such notice is  given, such Borrower shall, prepay the outstanding principal amounts of the Loans made to such  Borrower comprising part of the same Revolving Loan Borrowing or Swing Loan Borrowing, as  the case may be, in whole or ratably in part, together with accrued interest to the date of such  prepayment on the principal amount prepaid; provided however, that (x) each partial prepayment  (other than any prepayment of any Swing Loan) shall be in an aggregate principal amount not less  than $1,000,000 or an integral multiple of $500,000 in excess thereof (or the Foreign Currency  Equivalent of such respective amounts in the case of Loans denominated in an Alternate  Currency) and (y) if any prepayment of any SOFR Loans or any EURIBOR Loans shall be made  on a date which is not the last day of an Interest Period for such Loans (or on a date which is not  the maturity date of such Swing Loans), such Borrower shall also pay any amounts owing to each  Lender pursuant to Section 9.04(c) so long as such Lender makes written demand upon such  Borrower therefor (with a copy of such demand to the Administrative Agent) within 20 Business  Days after such prepayment.  SECTION 2.11.  Payments and Computations.  (a) All payments of principal of and interest on each Loan in a particular  Currency shall be made in such Currency.  (b) (i) All payments of principal of and interest on the Loans and all  other amounts whatsoever payable by a Borrower under this Agreement and the Notes shall be  made in immediately available funds, without deduction, setoff or counterclaim, to the  Administrative Agent’s Account for the relevant Currency, not later than 11:00 A.M. (New York  City time) (in the case of amounts payable in Dollars) or 11:00 A.M. Local Time in the location  of the Administrative Agent’s Account (in the case of amounts payable in an Alternate Currency),  on the day when due.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   46    (ii) The Administrative Agent will promptly thereafter cause to be  distributed like funds relating to the payment of principal or interest or fees ratably (other  than amounts payable pursuant to Section 2.09(d), 2.12, 2.15(c) or 3.05 or as  contemplated by Section 2.05(c) or 2.16) to the Lenders entitled thereto for the account of  their respective Applicable Lending Offices, and like funds relating to the payment of any  other amount payable to any Lender to such Lender for the account of its Applicable  Lending Office, in each case to be applied in accordance with the terms of this  Agreement.  (iii) Upon its acceptance of an Acceptance and recording of the  information contained therein in the Register pursuant to Section 9.07(d), from and after  the effective date specified in such Acceptance the Administrative Agent shall make all  payments hereunder and under the Notes in respect of the interest assigned or assumed  thereby to the Lender assignee or New Lender thereunder (as the case may be).  The  parties to each Assignment and Acceptance shall make all appropriate adjustments in  such payments for periods prior to such effective date directly between themselves.   (c) All computations of interest based on the Base Rate (other than if the  Base Rate is computed on the basis of the Federal Funds Rate) and of facility fees and letter of  credit commission shall be made by the Administrative Agent on the basis of a year of 365 or  366 days, as the case may be, and all computations of interest based on Term SOFR, EURIBOR  or the Base Rate based on the Federal Funds Rate shall be made by the Administrative Agent on  the basis of a year of 360 days, in each case for the actual number of days (including the first day  but excluding the last day) occurring in the period for which such interest or fees are payable. All  interest hereunder on any Loan shall be computed on a daily basis based upon the outstanding  principal amount of such Loan as of the applicable date of determination. Each determination by  the Administrative Agent of an interest rate hereunder shall be conclusive and binding for all  purposes, absent manifest error.  (d) Whenever any payment hereunder or under the Notes shall be stated to  be due on a day other than a Business Day, such payment shall be made on the next succeeding  Business Day, and such extension of time shall in such case be included in the computation of  payment of interest, facility fee or, letter of credit commission, as the case may be; provided  however, if such extension would cause payment of interest on or principal of SOFR Loans or  EURIBOR Loans to be made in the next following calendar month, such payment shall be made  on the next preceding U.S. Government Securities Business Day or Business Day, as applicable.  (e) Unless the Administrative Agent shall have received notice from a  Borrower prior to the date on which any payment is due to the Lenders hereunder that such  Borrower will not make such payment in full, the Administrative Agent may assume that such  Borrower has made such payment in full to the Administrative Agent on such date and the  Administrative Agent may, in reliance upon such assumption, cause to be distributed to each  relevant Lender on such due date an amount equal to the amount then due such Lender.  If and to  the extent that such Borrower shall not have so made such payment in full to the Administrative  Agent, each such Lender shall repay to the Administrative Agent forthwith on demand such  amount distributed to such Lender together with interest thereon, for each day from the date such  amount is distributed to such Lender until the date such Lender repays such amount to the  Administrative Agent, at the Federal Funds Rate.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   47    (f) Anything in Section 2.11(a) to the contrary notwithstanding, and without  prejudice to Section 2.08(b) or 7.01(a), if any Borrower shall fail to pay any principal or interest  denominated in an Alternate Currency within one Business Day after the due date therefor in the  case of principal and three Business Days after the due date therefor in the case of interest  (without giving effect to any acceleration of maturity under Article VII (Events of Default)), the  amount so in default shall automatically be redenominated in Dollars on the day one Business  Day after the due date therefor in the case of a principal payment and three Business Days after  the due date therefor in the case of an interest payment in an amount equal to the Dollar  Equivalent of such principal or interest.  (g) If any Lender is a Defaulting Lender, such Defaulting Lender shall be  deemed to have assigned any and all payments in respect of the Obligations subject to this  Section 2.11 due to it from and for the benefit of the Borrowers to the Non-Defaulting Lenders  for application to, and reduction of, the Non-Defaulting Lenders’ ratable portion of all  Obligations until such Non-Defaulting Lenders have been repaid in full.  Each Defaulting Lender  hereby authorizes the Administrative Agent to distribute such payments in accordance with  Section 2.16(a)(iii).  This Section 2.11(g) shall (i) apply at any time such Lender is a Defaulting  Lender and be effective regardless of whether an Event of Default has occurred or is continuing  and notwithstanding (1) any other provision of this Agreement to the contrary or (2) any  instruction of the U.S. Borrower as to its desired application of payments and (ii) not be deemed  to relieve or otherwise release any Borrower from any of its Obligations due or owing to any  Lender, including a Defaulting Lender.  (h) In connection with the use or administration of Term SOFR or  EURIBOR, the Administrative Agent will have the right to make Conforming Changes from time  to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any  amendments implementing such Conforming Changes will become effective without any further  action or consent of any other party to this Agreement or any other Loan Document.  The  Administrative Agent will promptly notify the U.S. Borrower and the Lenders of the  effectiveness of any Conforming Changes in connection with the use or administration of Term  SOFR or EURIBOR.  SECTION 2.12.  Taxes.  (a) Defined Terms.  For purposes of this Section, the term “Lender” includes  any Issuing Bank and the term “Applicable Law” includes FATCA.  (b) Payments Free of Taxes.  Any and all payments by or on account of any  obligation of the Borrowers under any Loan Document shall be made without deduction or  withholding for any Taxes, except as required by Applicable Law.  If any Applicable Law (as  determined in the good faith discretion of an applicable Withholding Agent) requires the  deduction or withholding of any Tax from any such payment by a Withholding Agent, then the  applicable Withholding Agent shall be entitled to make such deduction or withholding and shall  timely pay the full amount deducted or withheld to the relevant Governmental Authority in  accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by  the Borrowers shall be increased as necessary so that after such deduction or withholding has  been made (including such deductions and withholdings applicable to additional sums payable  under this Section) the applicable Recipient receives an amount equal to the sum it would have  received had no such deduction or withholding been made.  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   48    (c) Payment of Other Taxes by Borrower.  The Borrowers shall timely pay  to the relevant Governmental Authority in accordance with Applicable Law, or at the option of  the Administrative Agent timely reimburse it for the payment of, any Other Taxes.  (d) Indemnification by Borrower.  The Borrowers shall indemnify each  Recipient for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or  asserted on or attributable to amounts payable under this Section) payable or paid by such  Recipient or required to be withheld or deducted from a payment to such Recipient and any  reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified  Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority,  provided, however, that (i) no Borrower shall be liable to any Person, as the case may be, for any  liability arising from or with respect to Indemnified Taxes, which results from the gross  negligence or willful misconduct of such Recipient, (ii) so long as no Event of Default has  occurred and is continuing, such Recipient shall use its reasonable best efforts (all at the expense  of such Borrower) to cooperate with each Borrower in contesting any Taxes or Other Taxes  which such Borrower reasonably deems to be not correctly or legally asserted or otherwise not  due and owing and (iii) no Borrower shall be liable to such Recipient for any such liability if such  Person fails to make written demand for indemnification therefor within 120 days of receiving  notice of the existence of such liability.  This indemnification shall be made within 30 days from  the date such Recipient makes written demand therefor.  This subsection shall not be construed to  require the Recipient to make available its tax returns (or any other information relating to its  taxes that it deems confidential) to any Borrower or any Person.    (e) Indemnification by the Lenders.  Each Lender shall severally indemnify  the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes  attributable to such Lender (but only to the extent that the Borrowers have not already  indemnified the Administrative Agent for such Indemnified Taxes and without limiting the  obligation of the Borrowers to do so), (ii) any Taxes attributable to such Lender’s failure to  comply with the provisions of Section 9.07(f) relating to the maintenance of a Participant  Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable  or paid by the Administrative Agent in connection with any Loan Document, and any reasonable  expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or  legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the  amount of such payment or liability delivered to any Lender by the Administrative Agent shall be  conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set  off and apply any and all amounts at any time owing to such Lender under any Loan Document or  otherwise payable by the Administrative Agent to the Lender from any other source against any  amount due to the Administrative Agent under this paragraph (e).  (f) Evidence of Payments.  As soon as practicable after any payment of  Taxes by the Borrowers to a Governmental Authority pursuant to this Section, the Borrowers  shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by  such Governmental Authority evidencing such payment, a copy of the return reporting such  payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.  (g) Status of Lenders.  (i) Any Lender that is entitled to an exemption from  or reduction of withholding Tax with respect to payments made under any Loan Document shall  deliver to any relevant Borrower and the Administrative Agent, at the time or times reasonably  requested by such Borrower or the Administrative Agent, such properly completed and executed  documentation reasonably requested by such Borrower or the Administrative Agent as will permit  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   49    such payments to be made without withholding or at a reduced rate of withholding.  In addition,  any Lender, if reasonably requested by the relevant Borrower or the Administrative Agent, shall  deliver such other documentation prescribed by Applicable Law or reasonably requested by such  Borrower or the Administrative Agent as will enable such Borrower or the Administrative Agent  to determine whether or not such Lender is subject to backup withholding or information  reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences,  the completion, execution and submission of such documentation (other than such documentation  set forth in paragraphs (g)(ii)(A), (ii)(B) and (ii)(D) of this Section) shall not be required if in the  Lender’s reasonable judgment such completion, execution or submission would subject such  Lender to any material unreimbursed cost or expense or would materially prejudice the legal or  commercial position of such Lender.  (ii) Without limiting the generality of the foregoing, with respect to  the U.S. Borrower,  (A) any Lender that is a U.S. Person shall deliver to the U.S.  Borrower and the Administrative Agent on or about the date on which such Lender  becomes a Lender under this Agreement (and from time to time thereafter upon the  reasonable request of the U.S. Borrower or the Administrative Agent), executed  copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal  backup withholding tax;  (B) any Foreign Lender shall, to the extent it is legally  entitled to do so, deliver to the U.S. Borrower and the Administrative Agent (in such  number of copies as shall be requested by the recipient) on or about the date on  which such Foreign Lender becomes a Lender under this Agreement (and from time  to time thereafter upon the reasonable request of the U.S. Borrower or the  Administrative Agent), whichever of the following is applicable:  (1) in the case of a Foreign Lender claiming the  benefits of an income tax treaty to which the United States is a party  (x) with respect to payments of interest under any Loan Document,  executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E  establishing an exemption from, or reduction of, U.S. federal  withholding Tax pursuant to the “interest” article of such tax treaty and  (y) with respect to any other applicable payments under any Loan  Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an  exemption from, or reduction of, U.S. federal withholding Tax pursuant  to the “business profits” or “other income” article of such tax treaty;  (2) executed copies of IRS Form W-8ECI;  (3) in the case of a Foreign Lender claiming the  benefits of the exemption for portfolio interest under Section 881(c) of  the Code, (x) a certificate substantially in the form of Exhibit F-1 to the  effect that such Foreign Lender is not a “bank” within the meaning of  Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the U.S.  Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a  “controlled foreign corporation” related to the U.S. Borrower as  described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   50    Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS  Form W-8BEN-E; or  (4) to the extent a Foreign Lender is not the  beneficial owner, executed copies of IRS Form W-8IMY, accompanied  by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a  U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2  or Exhibit F-3, IRS Form W-9, and/or other certification documents from  each beneficial owner, as applicable; provided that if the Foreign Lender  is a partnership and one or more direct or indirect partners of such  Foreign Lender are claiming the portfolio interest exemption, such  Foreign Lender may provide a U.S. Tax Compliance Certificate  substantially in the form of Exhibit F-4 on behalf of each such direct and  indirect partner;  (C) any Foreign Lender shall, to the extent it is legally  entitled to do so, deliver to the U.S. Borrower and the Administrative Agent (in such  number of copies as shall be requested by the recipient) on or about the date on  which such Foreign Lender becomes a Lender under this Agreement (and from time  to time thereafter upon the reasonable request of such Borrower or the  Administrative Agent), executed copies of any other form prescribed by Applicable  Law as a basis for claiming exemption from or a reduction in U.S. federal  withholding Tax, duly completed, together with such supplementary documentation  as may be prescribed by Applicable Law to permit the U.S. Borrower or the  Administrative Agent to determine the withholding or deduction required to be  made; and  (D) if a payment made to a Lender under any Loan  Document would be subject to U.S. federal withholding Tax imposed by FATCA if  such Lender were to fail to comply with the applicable reporting requirements of  FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as  applicable), such Lender shall deliver to the U.S. Borrower and the Administrative  Agent at the time or times prescribed by law and at such time or times reasonably  requested by the U.S. Borrower or the Administrative Agent such documentation  prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i)  of the Code) and such additional documentation reasonably requested by the U.S.  Borrower or the Administrative Agent as may be necessary for the U.S. Borrower  and the Administrative Agent to comply with their obligations under FATCA and to  determine that such Lender has complied with such Lender’s obligations under  FATCA or to determine the amount, if any, to deduct and withhold from such  payment.  Solely for purposes of this clause (D), “FATCA” shall include any  amendments made to FATCA after the date of this Agreement.  (iii) Without limiting the generality of the foregoing, with respect to  any Borrower that is not a U.S. Person, any Foreign Lender shall, to the extent it is  legally entitled to do so, deliver to the applicable Borrower and the Administrative Agent  (in such number of copies as shall be requested by the recipient) on or about the date on  which such Foreign Lender becomes a Lender under this Agreement (and from time to  time thereafter upon the reasonable request of such Borrower or the Administrative  Agent), executed copies of any other form prescribed by Applicable Law as a basis for  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   51    claiming exemption from or a reduction in applicable withholding Tax, duly completed,  together with such supplementary documentation as may be prescribed by Applicable  Law to permit the applicable Borrower or the Administrative Agent to determine the  withholding or deduction required to be made.  Each Lender agrees that if any form or certification it previously delivered  expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification  or promptly notify the applicable Borrower and the Administrative Agent in writing of its legal  inability to do so.  For purposes of determining withholding taxes imposed under FATCA, the U.S.  Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the  Administrative Agent to treat) the Agreement as not qualifying as a “grandfathered obligation”  within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i)(A).    (h) Treatment of Certain Refunds.  If any party determines, in its sole  discretion exercised in good faith, that it has received a refund of any Taxes as to which it has  been indemnified pursuant to this Section (including by the payment of additional amounts  pursuant to this Section), it shall pay to the indemnifying party an amount equal to such refund  (but only to the extent of indemnity payments made under this Section with respect to the Taxes  giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such  indemnified party and without interest (other than any interest paid by the relevant Governmental  Authority with respect to such refund).  Such indemnifying party, upon the request of such  indemnified party, shall repay to such indemnified party the amount paid over pursuant to this  paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental  Authority) in the event that such indemnified party is required to repay such refund to such  Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (h), in no  event will the indemnified party be required to pay any amount to an indemnifying party pursuant  to this paragraph (h) the payment of which would place the indemnified party in a less favorable  net after-Tax position than the indemnified party would have been in if the Tax subject to  indemnification and giving rise to such refund had not been deducted, withheld or otherwise  imposed and the indemnification payments or additional amounts with respect to such Tax had  never been paid.  This paragraph shall not be construed to require any indemnified party to make  available its Tax returns (or any other information relating to its Taxes that it deems confidential)  to the indemnifying party or any other Person.  (i) Any Lender claiming any additional amounts payable pursuant to this  Section 2.12 shall use reasonable efforts (consistent with its internal policy and legal and  regulatory restrictions) to change the jurisdiction of its Applicable Lending Office if the making  of such a change would avoid the need for, or reduce the amount of, any such additional amounts  that may thereafter accrue and would not, in the reasonable judgment of such Lender, be  otherwise disadvantageous to such Lender.  (j) If a Borrower is required to pay any Lender any Taxes under Section  2.12(b) or (d), such Lender shall be an “Affected Person”, and the U.S. Borrower shall have the  rights set forth in Section 3.08 to replace such Affected Person.  (k) Survival.  Each party’s obligations under this Section shall survive the  resignation or replacement of the Administrative Agent or any assignment of rights by, or the  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   52    replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or  discharge of all obligations under any Loan Document.  SECTION 2.13.  Sharing of Payments, Etc.  If any Lender shall obtain any  payment (whether voluntary, involuntary, through the exercise of any right of set-off, or  otherwise) on account of the Revolving Loans, the Swing Loans or the Letter of Credit Loans  made by it (other than as expressly provided herein) in excess of its ratable share of payments on  account of the Revolving Loans, the Swing Loans or the Letter of Credit Loans obtained by all  such Lenders, such Lender shall forthwith purchase from such other Lenders such participations  in the Revolving Loans, the Swing Loans or the Letter of Credit Loans made by them as shall be  necessary to cause such purchasing Lender to share the excess payment ratably with each of  them, provided however, that, if all or any portion of such excess payment is thereafter recovered  from such purchasing Lender, such purchase from each Lender shall be rescinded and each  Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery  together with an amount equal to such Lender’s ratable share (according to the proportion of (i)  the amount of such Lender’s required repayment to (ii) the total amount so recovered from the  purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in  respect of the total amount so recovered.  Each Borrower agrees that any Lender so purchasing a  participation from another Lender pursuant to this Section 2.13 may, to the fullest extent  permitted by law, exercise all its rights of payment (including the right of set-off) with respect to  such participation as fully as if such Lender were the direct creditor of such Borrower in the  amount of such participation.  SECTION 2.14.  Conversion or Continuation of Revolving Loans.    (a) Each Borrower may elect (i) at any time on any Business Day to Convert  Base Rate Loans or any portion thereof to SOFR Loans or (ii) at the end of any applicable Interest  Period, to Convert SOFR Loans or any portion thereof into Base Rate Loans or to Continue  SOFR Loans or EURIBOR Loans or any portion thereof for an additional Interest Period;  provided however, that the aggregate amount of the SOFR Loans Converted or SOFR Loans or  EURIBOR Loans Continued for each Interest Period must be in the amount of at least $5,000,000  or an integral multiple of $1,000,000 in excess thereof.  Each Conversion or Continuation shall be  allocated among the Revolving Loans of each Lender in accordance with such Lender’s pro rata  share.  Subject to clause (b) below, each such election shall be in substantially the form of Exhibit  B-2 (Form of Notice of Conversion or Continuation) (a “Notice of Conversion or Continuation”)  and shall be made by giving the Administrative Agent (x) in the case of a Continuation or  Conversion into SOFR Loans, at least three U.S. Government Securities Business Days’ prior  written notice, (y) in the case of a Continuation of EURIBOR Loans, at least three Business  Days’ prior written notice, and (z) in the case of a Conversion into Base Rate Loans, at least one  Business Day’s prior written notice, in each case, specifying (A) the amount and Type of  Revolving Loan being Converted or Continued, (B) in the case of a Conversion to SOFR Loans  or a Continuation of SOFR Loans or EURIBOR Loans, the applicable Interest Period and (C) in  the case of a Conversion, the date of Conversion (which date shall be a Business Day and, if a  Conversion from SOFR Loans, shall also be the last day of the applicable Interest Period).  (b) The Administrative Agent shall promptly notify each Lender of its  receipt of a Notice of Conversion or Continuation and of the options selected therein.   Notwithstanding the foregoing, no Conversion in whole or in part of Base Rate Loans to SOFR  Loans, and no Continuation in whole or in part of SOFR Loans or EURIBOR Loans upon the  expiration of any applicable Interest Period, shall be permitted at any time at which (A) a Default  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   53    or an Event of Default shall have occurred and be continuing or (B) the Continuation of a SOFR  Loan or a EURIBOR Loan, or Conversion into, a SOFR Loan would violate any provision of  Section 2.09, 3.05 or 3.06.  If, within the time period required under the terms of this Section  2.14, the Administrative Agent does not receive a Notice of Conversion or Continuation from the  applicable Borrower containing a permitted election to Continue any SOFR Loans or EURIBOR  Loans for an additional Interest Period or to Convert any such Revolving Loans, then, upon the  expiration of the applicable Interest Period, such Revolving Loans, if denominated in Dollars,  shall be automatically Converted to Base Rate Loans and such Revolving Loans, if denominated  in Euros, shall be automatically Continued as EURIBOR Loans with an interest period of one  month (or if consented to by all Lenders, seven days).  Each Notice of Conversion or  Continuation shall be irrevocable.  (c) Notwithstanding the foregoing, upon the occurrence and during the  continuance of any Event of Default, each SOFR Loan and each EURIBOR Loan shall, upon the  expiration of the applicable Interest Period, be automatically Converted to a Base Rate Loan.  SECTION 2.15.  Extension of Termination Date.  (a) The U.S. Borrower may, by notice to the Administrative Agent (which  shall promptly notify the Lenders) not less than 40 days and not more than 60 days prior to each  of the first and second anniversaries of the Effective Date (each anniversary, an “Anniversary  Date”), request that each Lender extend such Lender’s Termination Date to the date (the “New  Termination Date”) that is one year after the then Final Termination Date; provided that the  representations and warranties contained in Article V (Representations and Warranties) shall be  correct in all material respects (except any representations and warranties that are qualified by  materiality, which shall be true and correct in all respects) as of the date of such request, as  though made on and as of such date, other than any such representations or warranties that, by  their terms, refer to a different date, which shall be true and correct as of such earlier date.  Each  Lender, acting in its sole discretion, shall, by written notice to the Administrative Agent given no  later than the date (the “Consent Date”) that is 20 days prior to the relevant Anniversary Date  (provided that, if such date is not a Business Day, the Consent Date shall be the next succeeding  Business Day), advise the Administrative Agent as to:  (i) whether or not such Lender agrees to such extension of its  Termination Date (each Lender so agreeing to such extension being an “Extending  Lender”); and  (ii) only if such Lender is an Extending Lender, whether or not such  Lender also irrevocably offers to increase the amount of its Commitment (each Lender so  offering to increase its Commitment being an “Increasing Lender” as well as an  Extending Lender) and, if so, the amount of the additional Commitment such Lender so  irrevocably offers to assume hereunder (such Lender’s “Proposed Additional  Commitment”).   Each Lender that determines not to extend its Termination Date (a “Non-Extending Lender”)  shall notify the Administrative Agent (which shall notify the Lenders) of such fact promptly after  such determination but in any event no later than the Consent Date, and any Lender that does not  advise the Administrative Agent in writing on or before the Consent Date shall be deemed to be a  Non-Extending Lender and (without limiting the U.S. Borrower’s rights under Section 2.15(c))  shall have no liability to the U.S. Borrower in connection therewith.  The election of any Lender  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   54    to agree to such extension shall not obligate any other Lender to so agree.  The Administrative  Agent shall notify the U.S. Borrower of each Lender’s determination under this Section 2.15(a)  no later than the date 15 days prior to the relevant Anniversary Date (or, if such date is not a  Business Day, on the next preceding Business Day).  (b) (i) If all of the Lenders are Extending Lenders, then, effective as of  the Consent Date, the Termination Date of each Lender shall be extended to the New Termination  Date, and the respective Commitments of the Lenders will not be subject to change at such  Consent Date pursuant to this Section 2.15.  (ii) If and only if the sum of (x) the aggregate amount of the  Commitments of the Extending Lenders plus (y) the aggregate amount of the Proposed  Additional Commitments of the Increasing Lenders (such sum, the “Extending  Commitments”) shall be equal to at least 50% of the then Total Commitments, then:  (A) effective as of the Consent Date, the Termination Date  of each Extending Lender shall be extended to the New Termination Date;   (B) the U.S. Borrower shall (so long as no Default shall have  occurred and be continuing) have the right, but not the obligation, to take either of  the following actions with respect to each Non-Extending Lender during the period  commencing on the Consent Date and ending on the immediately succeeding  Anniversary Date:   (1) the U.S. Borrower may elect by notice to the  Administrative Agent and such Non-Extending Lender that the  Termination Date of such Non-Extending Lender be changed to a date  (which date shall be specified in such notice) on or prior to such  immediately succeeding Anniversary Date (and, upon the giving of such  notice, the Termination Date of such Non-Extending Lender shall be so  changed); or  (2) the U.S. Borrower may replace such Non- Extending Lender as a party to this Agreement in accordance with  Section 2.15(c); and  (C) the Administrative Agent shall notify the Issuing Banks  and the Swing Loan Lenders of the New Termination Date and the Lenders whose  Termination Dates are the New Termination Date and each Issuing Bank and each  Swing Loan Lender shall determine whether or not, acting in its sole discretion, it  shall elect to extend its Termination Date to the New Termination Date and shall so  notify the Administrative Agent.  If such Issuing Bank or such Swing Loan Lender,  as the case may be, has elected to so extend its Termination Date, then such Issuing  Bank’s obligation to issue Letters of Credit pursuant to Sections 2.04 and 3.04 shall  be extended to the date that is 30 days prior to the New Termination Date and/or  such Swing Loan Lender’s obligation to make Swing Loans to the Borrowers  pursuant to Sections 2.03 and 3.03 shall be extended to the date that is 15 Business  Days prior to the New Termination Date.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   55    (iii) If neither of the conditions specified in clause (i) or clause (ii) of  this Section 2.15(b) is satisfied, then neither the Termination Date nor the Commitment  of any Lender will change pursuant to this Section 2.15 on such Consent Date, and the  U.S. Borrower will not have the right to take any of the actions specified in  Section 2.06(b)(ii).   (c) Replacement by the U.S. Borrower of Non-Extending Lenders pursuant  to Section 2.15(b)(ii)(B)(2) shall be effected as follows (certain terms being used in this  Section 2.15(c) having the meanings assigned to them in Section 2.15(d)) on the relevant  Assignment Date:  (i) the Assignors shall severally assign and transfer to the  Assignees, and the Assignees shall severally purchase and assume from the Assignors, all  of the Assignors’ rights and obligations (including, without limitation, the Assignors’  respective Commitments) hereunder and under the Notes;  (ii) each Assignee shall pay to the Administrative Agent, for account  of the Assignors, an amount equal to such Assignee’s Share of the aggregate outstanding  principal amount of the Loans then held by the Assignors;   (iii) the U.S. Borrower shall pay to the Administrative Agent, for  account of the Assignors, all accrued interest, fees and other amounts (other than  principal of outstanding Loans) then due and owing to the Assignors by the U.S.  Borrower hereunder (including, without limitation, payments due such Assignors, if any,  under Sections 2.12, 3.05 and 9.04(c)); and  (iv) the U.S. Borrower shall pay to the Administrative Agent for  account of the Administrative Agent the $3,500 processing and recordation fee for each  assignment effected pursuant to this Section 2.15(c).   The assignments provided for in this Section 2.15(c) shall be effected on the relevant Assignment  Date in accordance with Section 9.07 and pursuant to one or more Assignments and Acceptances.   After giving effect to such assignments, each Assignee shall have a Commitment hereunder  (which, if such Assignee was a Lender hereunder immediately prior to giving effect to such  assignment, shall be in addition to such Assignee’s existing Commitment) in an amount equal to  the amount of its Assumed Commitment representing a Commitment.  Upon any such termination  or assignment, such Assignor shall cease to be a party hereto but shall continue to be obligated  under Section 8.05 and be entitled to the benefits of Section 9.04, as well as to any fees and other  amounts accrued for its account under Section 2.05, 2.12 or 3.05 and not yet paid.  (d) For purposes of this Section 2.15, 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):  “Assigned Commitments” means the Commitments of Non-Extending Lenders to  be replaced pursuant to Section 2.15(b)(ii)(B)(2).  “Assignees” means, at any time, Increasing Lenders and, if the Assigned  Commitments exceed the aggregate amount of the Proposed Additional Commitments, one or  more New Lenders.  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   56    “Assignment Date” means the Anniversary Date or such earlier date as shall be  acceptable to the U.S. Borrower, the relevant Assignors, the relevant Assignees and the  Administrative Agent.  “Assignors” means, at any time, the Lenders to be replaced by the U.S. Borrower  pursuant to Section 2.15(b)(ii)(B)(2).   The “Assumed Commitment” of each Assignee shall be determined as follows:  (a) If the aggregate amount of the Proposed Additional  Commitments of all of the Increasing Lenders shall exceed the aggregate amount  of the Assigned Commitments, then (i) the amount of the Assumed Commitment  of each Increasing Lender shall be equal to (x) the aggregate amount of the  Assigned Commitments multiplied by (y) a fraction, the numerator of which is  equal to such Increasing Lender’s Commitment as then in effect and the  denominator of which is the aggregate amount of the Commitments of all  Increasing Lenders as then in effect; and (ii) no New Lender shall become a  Lender hereunder pursuant to Section 2.15(c).  (b) If the aggregate amount of the Proposed Additional  Commitments of all of the Increasing Lenders shall be less than or equal to the  aggregate amount of the Assigned Commitments, then:  (i) the amount of the  Assumed Commitment of each Increasing Lender shall be equal to such  Increasing Lender’s Proposed Additional Commitment; and (ii) the excess, if  any, of the aggregate amount of the Assigned Commitments over the aggregate  amount of the Proposed Additional Commitments shall be allocated among New  Lenders in such a manner as the U.S. Borrower and the Administrative Agent  may agree.   “Share” means, as to any Assignee, a fraction the numerator of which is equal to  such Assignee’s Assumed Commitment and the denominator of which is the aggregate amount of  the Assumed Commitments of all the Assignees.  SECTION 2.16.  Defaulting Lender.  (a) Reallocation of Defaulting Lender Commitments.  If a Lender becomes,  and during the period it remains, a Defaulting Lender, the following provisions shall apply:  (i) in the case of each Defaulting Lender, the ratable portion of such  Defaulting Lender with respect to any such outstanding Obligations will, subject to the  limitation in the first proviso below, automatically be reallocated (effective on the date  such Lender becomes a Defaulting Lender) among the Lenders that are Non-Defaulting  Lenders pro rata in accordance with such Non-Defaulting Lenders’ respective  Commitments; provided that (A) the sum of each Non-Defaulting Lender’s ratable  portion of the Total Outstandings may not in any event exceed the Commitment of such  Non-Defaulting Lender as in effect at the time of such reallocation and (B) neither such  reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute  a waiver or release of any claim any Borrower, the Administrative Agent, any Issuing  Bank, any Swing Loan Lender or any other Lender may have against such Defaulting  Lender, or cause such Defaulting Lender to be a Non-Defaulting Lender;  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   57    (ii) in the case of each Defaulting Lender, to the extent that any  portion (the “unreallocated portion”) of the ratable portion of such Defaulting Lender  with respect to any such outstanding and future Letter of Credit Obligations and Swing  Loans cannot be so reallocated, whether by reason of clause (A) of the proviso in clause  (i) above or otherwise, the U.S. Borrower will, not later than 5 Business Days after  demand by the Administrative Agent (at the direction of the Issuing Banks and/or the  Swing Loan Lenders, as the case may be), (A) Cash Collateralize (pursuant to procedures  similar to those detailed in Section 7.02 and reasonably acceptable to the Administrative  Agent) the Obligations of the Borrowers to the Issuing Banks and the Swing Loan  Lenders in respect of such Obligations or (B) make other arrangements reasonably  satisfactory to the Administrative Agent, and to the Issuing Banks and the Swing Loan  Lenders, as the case may be, in their reasonable discretion, to protect them against the  risk of non-payment by such Defaulting Lender; and  (iii) in the case of each Defaulting Lender, any amount paid by the  U.S. Borrower for the account of such Defaulting Lender under this Agreement (whether  on account of principal, interest, fees, indemnity payments or other amounts) will not be  paid or distributed to such Defaulting Lender, but will instead be retained by the  Administrative Agent in a segregated, non-interest bearing account until (subject to  Section 2.05(c)) the termination of the Commitments and payment in full of all the  Obligations and will be applied by the Administrative Agent, to the fullest extent  permitted by law, to the making of payments from time to time in the following order of  priority: first to the payment of any amounts owing by such Defaulting Lender to the  Administrative Agent under this Agreement, second to the payment of any amounts  owing by such Defaulting Lender to any Issuing Bank or any Swing Loan Lender (pro  rata as to the respective amounts owing to each of them) under this Agreement, third to  the payment of post-default interest and then current interest due and payable to the  Lenders hereunder other than Defaulting Lenders as a result of such Defaulting Lender’s  breach of its obligations under this Agreement as determined in any judgment of a court  of competent jurisdiction obtained by any Lender, any Issuing Bank or any Swing Loan  Lender against such Defaulting Lender, ratably among them in accordance with the  amounts of such interest then due and payable to them, fourth to the payment of fees then  due and payable to the Non-Defaulting Lenders hereunder as a result of such Defaulting  Lender’s breach of its obligations under this Agreement as determined in any judgment  of a court of competent jurisdiction obtained by any Lender, any Issuing Bank or any   Swing Loan Lender against such Defaulting Lender, ratably among them in accordance  with the amounts of such fees then due and payable to them, fifth to pay principal and  Reimbursement Obligations in respect of the Letters of Credit at such time then due and  payable to the Non-Defaulting Lenders hereunder ratably in accordance with the amounts  thereof then due and payable to them, sixth to the ratable payment of other amounts then  due and payable to the Non-Defaulting Lenders as a result of such Defaulting Lender’s  breach of its obligations under this Agreement as determined in any judgment of a court  of competent jurisdiction obtained by any Lender, any Issuing Bank or any Swing Loan  Lender against such Defaulting Lender, seventh after the termination of the Commitments  and payment in full of all the Obligations, to pay amounts owing under this Agreement to  such Defaulting Lender or as a court of competent jurisdiction may otherwise direct.  (b) Cash Collateral Call.  If any Lender becomes, and during the period it  remains, a Defaulting Lender, if any Letter of Credit is at the time outstanding, the Issuing Banks  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   58    may (except, in the case of a Defaulting Lender, to the extent the Commitments have been fully  reallocated pursuant to Section 2.16(a)), by notice to the Borrowers and such Defaulting Lender  through the Administrative Agent, require any Borrower (i) to deposit in a cash collateral account  maintained by the Administrative Agent an amount at least equal to 105% of the aggregate  amount of the unreallocated obligations (contingent or otherwise) of such Defaulting Lender to be  applied pro rata in respect thereof, or (ii) to make other arrangements satisfactory to the  Administrative Agent, and to the Issuing Banks, as the case may be, in their sole discretion to  protect them against the risk of non-payment by such Defaulting Lender.  (c) Right to Give Drawdown Notices.  In furtherance of the foregoing, if any  Lender becomes, and during the period it remains, a Defaulting Lender, and the applicable  Borrower fails to Cash Collateralize (pursuant to procedures similar to those detailed in Section  7.02 and reasonably acceptable to the Administrative Agent) or prepay its obligations in respect  of Letter of Credit Obligations or Swing Loans within 5 Business Days after demand by the  Administrative Agent pursuant to this Section 2.16, any Issuing Bank or Swing Loan Lender is  hereby authorized by the Borrowers (which authorization is irrevocable and coupled with an  interest) to give, in its discretion, through the Administrative Agent, Notices of Borrowing  pursuant to Section 3.01 in such amounts and in such times as may be required to (i) pay matured  Reimbursement Obligations, (ii) repay an outstanding Swing Loan, and/or (iii) Cash Collateralize  (pursuant to procedures similar to those detailed in Section 7.02 and reasonably acceptable to the  Administrative Agent) the Obligations of the applicable Borrower in respect of Letters of Credit  Obligations or Swing Loans in an amount at least equal to the aggregate amount of the  obligations (contingent or otherwise) of such Defaulting Lender in respect of such Letter of  Credit or Swing Loan.  (d) Termination of Defaulting Lender Commitments.  The U.S. Borrower  may terminate the unused amount of the Commitment of a Defaulting Lender upon not less than  10 Business Days’ prior notice to the Administrative Agent (who will promptly notify the  Lenders thereof), and in such event the provisions of Section 2.11 will apply to all amounts  thereafter paid by the U.S. Borrower for the account of such Defaulting Lender under this  Agreement (whether on account of principal, interest, fees, indemnity or other amounts);  provided that such termination will not be deemed to be a waiver or release of any claim any  Borrower, the Administrative Agent, the Issuing Banks, the Swing Loan Lenders or any Lender  may have against such Defaulting Lender.  (e) Cure.  If the U.S. Borrower, Administrative Agent, the Issuing Banks and  the Swing Loan Lenders, as applicable, agree in writing in their discretion that a Lender that is a  Defaulting Lender should no longer be deemed to be a Defaulting Lender, as the case may be, the  Administrative Agent will so notify the parties hereto, whereupon as of the effective date  specified in such notice and subject to any conditions set forth therein (which may include  arrangements with respect to any amounts then held in the segregated account referred to in  Section 2.16(a)), such Lender will, to the extent applicable, purchase such portion of outstanding  Loans of the other Lenders and/or make such other adjustments as the Administrative Agent may  determine to be necessary to cause such Lender’s ratable portion to be on a pro rata basis in  accordance with their respective Commitment, whereupon such Lender will cease to be a  Defaulting Lender and will become a Non-Defaulting Lender; provided that no adjustments will  be made retroactively with respect to fees accrued or payments made by or on behalf of the  Borrowers while such Lender was a Defaulting Lender; and provided further, that except to the  extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   59    Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party  hereunder arising from such Lender having been a Defaulting Lender.  (f) Non-Defaulting Lender.  Notwithstanding the foregoing, the occurrence  of any Lender becoming a Defaulting Lender shall not relieve any other Lender of its obligations  to make such Loan or payment on any date required under this Agreement and no other Lender  shall be responsible for the failure of any Defaulting Lender to make any Loan or payment  required under this Agreement.  SECTION 2.17.  Acknowledgement and Consent to Bail-In of Affected Financial  Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other  agreement, arrangement or understanding of the parties hereto, each such party acknowledges that  any liability of any Affected 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 the  applicable 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 the  applicable Resolution Authority to any such liabilities arising hereunder which may be payable to  it by any party hereto that is an Affected Financial Institution; and  (b) the effects of any Bail-in Action on any such liability, including, if  applicable:  (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or  other instruments of ownership in such Affected Financial Institution, its parent entity, 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 the applicable Resolution  Authority.  SECTION 2.18.  Benchmark Replacement Setting.  (a) Benchmark Replacement. Notwithstanding anything to the contrary  herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event  with respect to any Benchmark, the Administrative Agent and the Borrower may amend this  Agreement to replace such Benchmark with a Benchmark Replacement.  Any such amendment  with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City  time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed  amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not  received, by such time, written notice of objection to such amendment from Lenders comprising  the Required Lenders.  No replacement of a Benchmark with a Benchmark Replacement pursuant  to this Section 2.18(a) will occur prior to the applicable Benchmark Transition Start Date.  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   60    (b) Benchmark Replacement Conforming Changes. In connection with the  use, administration, adoption or implementation of a Benchmark Replacement, the  Administrative Agent will have the right to make Conforming Changes from time to time and,  notwithstanding anything to the contrary herein or in any other Loan Document, any amendments  implementing such Conforming Changes will become effective without any further action or  consent of any other party to this Agreement or any other Loan Document.  (c) Notices; Standards for Decisions and Determinations. The  Administrative Agent will promptly notify the U.S. Borrower and the Lenders of (i) the  implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming  Changes in connection with the use, administration, adoption or implementation of a Benchmark  Replacement.  The Administrative Agent will notify the U.S. Borrower of (x) the removal or  reinstatement of any tenor of a Benchmark pursuant to Section 2.18(d) and (y) the  commencement of any Benchmark Unavailability Period.  Any notice required to be delivered by  the Administrative Agent as set forth in this Section 2.18 may be provided, at the option of the  Administrative Agent (in its sole discretion), in one or more notices and may be delivered  together with, or as part of any amendment which implements any Benchmark Replacement or  Conforming Changes.  Any determination, decision or election that may be made by the  Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section  2.18, including any determination with respect to a tenor, rate or adjustment or of the occurrence  or non-occurrence of an event, circumstance or date and any decision to take or refrain from  taking any action or any selection, will be conclusive and binding absent manifest error and may  be made in its or their sole discretion and without consent from any other party to this Agreement  or any other Loan Document, except, in each case, as expressly required pursuant to this Section  2.18.  (d) Unavailability of Tenor of Benchmark. Notwithstanding anything to the  contrary herein or in any other Loan Document, at any time (including in connection with the  implementation of a Benchmark Replacement), (i) if any then-current Benchmark is a term rate  (including the Term SOFR Reference Rate or EURIBOR) and either (A) any tenor for such  Benchmark is not displayed on a screen or other information service that publishes such rate from  time to time as selected by the Administrative Agent in its reasonable discretion or (B) the  regulatory supervisor for the administrator of such Benchmark has provided a public statement or  publication of information announcing that any tenor for such Benchmark is not or will not be  representative, then the Administrative Agent may modify the definition of “Interest Period” (or  any similar or analogous definition) for any Benchmark settings at or after such time to remove  such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to  clause (i) above either (A) is subsequently displayed on a screen or information service for a  Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an  announcement that it is not or will not be representative for a Benchmark (including a Benchmark  Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or  any similar or analogous definition) for all Benchmark settings at or after such time to reinstate  such previously removed tenor  (e) Benchmark Unavailability Period. Upon the U.S. Borrower’s receipt of  notice of the commencement of a Benchmark Unavailability Period, the U.S. Borrower may  revoke any pending request for a SOFR Borrowing of, conversion to or continuation of SOFR  Loans, or a EURIBOR Borrowing of, or continuation of EURIBOR Loans, in each case, to be  made, converted or continued during any Benchmark Unavailability Period denominated in the  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   61    applicable Currency and, failing that, (A) in the case of any request for any affected SOFR Loan,  the U.S. Borrower will be deemed to have converted any such request into a request for a  Borrowing of or conversion to Base Rate Loans and (B) in the case of any request for any  affected EURIBOR Loan, if applicable, then such request shall be ineffective and shall, at the  U.S. Borrower’s election, (I) be converted into Base Rate Loans denominated in Dollars (in an  amount that is then equal to the Dollar Equivalent of such EURIBOR Loans) at the end of the  applicable Interest Period or (II) be prepaid in full at the end of the applicable Interest Period;  provided that, with respect to any EURIBOR Loan, if no election is made by the U.S. Borrower  by the earlier of (x) that date this is three Business Days after receipt by the U.S. Borrower of  such notice and (y) the last day of the current Interest Period for the applicable EURIBOR Loan,  the U.S. Borrower shall be deemed to have elected clause (I) above. Upon any such prepayment  or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or  converted, together with any additional amounts required pursuant to Section 9.04(c). During a  Benchmark Unavailability Period with respect to any Benchmark or at any time that a tenor for  any then-current Benchmark is not an Available Tenor, the component of Base Rate based upon  the then-current Benchmark that is the subject of such Benchmark Unavailability Period or such  tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.  During such Benchmark Unavailability Period, any outstanding SOFR Loans or EURIBOR  Loans, as applicable, shall be deemed to have been converted into Base Rate Loans (in the case of  such EURIBOR Loans, in an amount that is then equal to the Dollar Equivalent of such  EURIBOR Loans) at the end of the applicable Interest Period.  (f) Disclaimer. The Administrative Agent does not warrant or accept  responsibility for, and shall not have any liability with respect to (a) the continuation of,  administration of, submission of, calculation of or any other matter related to Base Rate, the Term  SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or EURIBOR, or any component  definition thereof or rates referred to in the definition thereof, or any alternative, successor or  replacement rate thereto (including any Benchmark Replacement), including whether the  composition or characteristics of any such alternative, successor or replacement rate (including  any Benchmark Replacement) will be similar to, or produce the same value or economic  equivalence of, or have the same volume or liquidity as, Base Rate, the Term SOFR Reference  Rate, Adjusted Term SOFR, Term SOFR, EURIBOR or any other Benchmark prior to its  discontinuance or unavailability, or (b) the effect, implementation or composition of any  Conforming Changes.  The Administrative Agent and its affiliates or other related entities may  engage in transactions that affect the calculation of Base Rate, the Term SOFR Reference Rate,  Term SOFR, Adjusted Term SOFR, EURIBOR, any alternative, successor or replacement rate  (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a  manner adverse to the Borrowers.  The Administrative Agent may select information sources or  services in its reasonable discretion to ascertain Base Rate, the Term SOFR Reference Rate, Term  SOFR, Adjusted Term SOFR, EURIBOR or any other Benchmark, in each case pursuant to the  terms of this Agreement, and shall have no liability to the Borrowers, any Lender or any other  person or entity for damages of any kind, including direct or indirect, special, punitive, incidental  or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and  whether at law or in equity), for any error or calculation of any such rate (or component thereof)  provided by any such information source or service.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   62    ARTICLE III  MAKING THE LOANS AND ISSUING THE LETTERS OF CREDIT  SECTION 3.01.  Making the Revolving Loans.  (a) Each Revolving Loan Borrowing shall be made on notice, given not later  than (x) 12:00 noon (New York City time) on the third Business Day prior to the date of a  EURIBOR Loan Borrowing, (y) 12:00 noon (New York City time) on the third U.S. Government  Securities Business Day prior to the date of a SOFR Loan Borrowing, and (z) 11:00 A.M. (New  York City time) on the day of a Base Rate Loan Borrowing, by the U.S. Borrower (on its own  behalf and on behalf of any Euro Borrower) to the Administrative Agent, which shall give to each  Lender prompt notice thereof.  Each notice of a Revolving Loan Borrowing (a “Notice of  Revolving Loan Borrowing”) shall be made in writing by telecopier, electronic mail, telex or  cable, in substantially the form of Exhibit B-1 hereto, specifying therein the requested (i) date of  such Revolving Loan Borrowing (which shall be a Business Day), (ii) Currency and Type of  Revolving Loan comprising such Revolving Loan Borrowing, (iii) aggregate amount of such  Revolving Loan Borrowing, (iv) in the case of a Revolving Loan Borrowing comprised of SOFR  Loans or EURIBOR Loans, the Interest Period for each such Revolving Loan; provided that if no  Interest Period is specified with respect to any requested SOFR Loan or EURIBOR Loan, the  applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration,  and (v) the name of the Borrower (which shall be the U.S. Borrower or a Euro Borrower).  Each  Lender shall (A) before 11:00 A.M. Local Time on the date of such Borrowing (in the case of  either a SOFR Loan Borrowing or a EURIBOR Loan Borrowing) and (B) before 1:00 P.M. (New  York City time) on the date of such Borrowing (in the case of a Base Rate Loan Borrowing),  make available for the account of its Applicable Lending Office to the Administrative Agent at  the Administrative Agent’s Account for the relevant Currency in same day funds, such Lender’s  ratable portion of such Borrowing.  After the Administrative Agent’s receipt of such funds and  upon fulfillment of the applicable conditions set forth in Article IV (Conditions of Lending), the  Administrative Agent will make such funds available to the relevant Borrower in such manner as  the Administrative Agent and the U.S. Borrower may agree; provided however, that the  Administrative Agent shall first make a portion of such funds equal to the aggregate principal  amount of any Swing Loan and Letter of Credit Loans as to which a Borrower has received  timely notice made by the Swing Loan Lenders or the Issuing Banks, as the case may be, or by  any other Lender and outstanding on the date of such Revolving Loan Borrowing, plus interest  accrued and unpaid thereon to and as of such date, available to the relevant Swing Loan Lenders  or the relevant Issuing Banks, as the case may be, and such other Lenders for repayment of such  Swing Loans and Letter of Credit Loans.  (b) Anything in subsection (a) above to the contrary notwithstanding, the  U.S. Borrower may not select SOFR Loans or EURIBOR Loans for any Revolving Loan  Borrowing if the aggregate amount of such Revolving Loan Borrowing is less than $1,000,000 or  the Foreign Currency Equivalent thereof.  (c) Subject to Sections 2.09(c) and 3.06, each Notice of Revolving Loan  Borrowing shall be irrevocable and binding on the U.S. Borrower and the relevant Borrower.  In  the case of any Revolving Loan Borrowing by a Borrower which the related Notice of Revolving  Loan Borrowing specifies is to be comprised of SOFR Loans or EURIBOR Loans, such  Borrower shall indemnify each relevant Lender against any loss, cost or expense incurred by such  Lender as a result of any failure to fulfill on or before the date specified in such Notice of  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   63    Revolving Loan Borrowing for such Revolving Loan Borrowing the applicable conditions set  forth in Article IV (Conditions of Lending), including, without limitation, any loss (excluding  loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment  of deposits or other funds acquired by such Lender to fund the Revolving Loan to be made by  such Lender as part of such Revolving Loan Borrowing when such Revolving Loan, as a result of  such failure, is not made on such date.  (d) Unless the Administrative Agent shall have received notice from a  Lender prior to the time any Revolving Loan Borrowing is required to be made that such Lender  will not make available to the Administrative Agent such Lender’s ratable portion of such  Revolving Loan Borrowing, the Administrative Agent may assume that such Lender has made  such portion available to the Administrative Agent on the date of such Revolving Loan  Borrowing in accordance with subsection (a) of this Section 3.01 and the Administrative Agent  may, in reliance upon such assumption, make available to the relevant Borrower on such date a  corresponding amount.  If and to the extent that such Lender shall not have so made such ratable  portion available to the Administrative Agent, such Lender and the relevant Borrower severally  agree to repay to the Administrative Agent forthwith on demand such corresponding amount  together with interest thereon, for each day from the date such amount is made available to such  Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of  such Borrower, the interest rate applicable at the time to Revolving Loans comprising such  Revolving Loan Borrowing and (ii) in the case of such Lender, the Federal Funds Rate, provided  that such Borrower retains its rights against such Lender with respect to any damages it may incur  as a result of such Lender’s failure to fund, and notwithstanding anything herein to the contrary,  in no event shall such Borrower be liable to such Lender or any other Person for the interest  payable by such Lender to the Administrative Agent pursuant to this sentence.  If such Lender  shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall  constitute such Lender’s Revolving Loan as part of such Revolving Loan Borrowing for purposes  of this Agreement.  (e) The failure of any Lender to make the Revolving Loan to be made by it  as part of any Revolving Loan Borrowing shall not relieve any other Lender of its obligation, if  any, hereunder to make its Revolving Loan on the date of such Revolving Loan Borrowing, but  no Lender shall be responsible for the failure of any other Lender to make the Revolving Loan to  be made by such other Lender on the date of any Revolving Loan Borrowing.    SECTION 3.02.  [Intentionally Deleted].  SECTION 3.03.  Making the Swing Loans, Etc.  (a) In order to request a Swing Loan, the Swing Loan Borrower shall  telecopy (or forward by electronic mail or similar means) to the applicable Swing Loan Lender,  with a copy to the Administrative Agent, a duly completed request in substantially the form of  Exhibit E (Form of Swing Loan Request), setting forth the requested amount, currency and date  of such Swing Loan (a “Swing Loan Request”), to be received by the Swing Loan Lender not  later than 2:00 p.m. (New York City time) on the day of the proposed borrowing.  Subject to the  terms of this Agreement, the Swing Loan Lender agrees to make, on the date of the relevant  Swing Loan Request, the Swing Loan specified in such Swing Loan Request available to the  Swing Loan Borrower.  The Swing Loan Lender shall not be required to determine that, or take  notice whether, the conditions precedent set forth in Section 4.02 have been satisfied in  connection with the making of any Swing Loan.  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   64    (b) Any Swing Loan Lender may demand at any time that each Lender pay  in Dollars to the Administrative Agent, for the account of such Swing Loan Lender, in the manner  provided in clause (c) below, such Lender’s pro rata share of all or a portion of its outstanding  Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing  and shall specify the outstanding principal amount of the Swing Loans demanded to be paid;  provided however, the Swing Loan Lenders shall not make any Swing Loan in the period  commencing on the first Business Day after it receives written notice from any Lender that one or  more of the conditions precedent contained in Section 4.02 shall not on such date be satisfied or  duly waived and ending when such conditions are satisfied or duly waived.  (c) The Administrative Agent shall forward each demand referred to in  clause (b) above to each Lender on the day such demand is received by the Administrative Agent  (except that any such demand received by the Administrative Agent after 2:00 p.m. (New York  time) on any Business Day or on a day that is not a Business Day shall not be required to be  forwarded to the Lenders by the Administrative Agent until the next succeeding Business Day),  together with a statement prepared by the Administrative Agent specifying the amount in Dollars  of each Lender’s pro rata share of the aggregate principal amount of the Swing Loans demanded  to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent  set forth in Section 4.02 shall have been satisfied (which conditions precedent the Lenders hereby  irrevocably waive), each Lender shall, before 11:00 a.m. (New York time) on the Business Day  next succeeding the date of such Lender’s receipt of such demand, make available to the  Administrative Agent, in immediately available funds in Dollars, for the account of the applicable  Swing Loan Lender, the amount specified in such statement.  Upon such payment by a Lender,  such Lender shall, except as provided in clause (d) below, be deemed to have made a Base Rate  Loan in Dollars in an amount equal to such payment to the Swing Loan Borrower (and the Swing  Loan Borrower hereby authorizes the making of such Loan).  The Administrative Agent shall use  such funds to repay the Swing Loans to such Swing Loan Lender.  To the extent that any Lender  fails to make such payment available to the Administrative Agent for the account of such Swing  Loan Lender, the Swing Loan Borrower shall repay such Swing Loan or Swing Loans, as the case  may be, on demand.  (d) If for any reason the Swing Loans cannot be refinanced by such Loans in  accordance with clause (c) above, each Lender shall acquire, without recourse or warranty, an  undivided participation in each Swing Loan otherwise required to be repaid by such Lender  pursuant to clause (c) above, which participation shall be in a principal amount equal to such  Lender’s pro rata share of such Swing Loan, by paying in Dollars to the applicable Swing Loan  Lender on the date on which such Lender would otherwise have been required to make a payment  in respect of such Swing Loan pursuant to clause (c) above, in immediately available funds, an  amount equal to such Lender’s pro rata share of such Swing Loan.  If all or part of such amount is  not in fact made available by such Lender to such Swing Loan Lender on such date, such Swing  Loan Lender shall be entitled to recover any such unpaid amount on demand from such Lender  together with interest accrued from such date at the Federal Funds Rate for the first Business Day  after such payment was due and thereafter at the rate of interest then applicable to Base Rate  Loans.  (e) From and after the date on which any Lender (i) is deemed to have made  a Loan pursuant to clause (c) above with respect to any Swing Loan or (ii) purchases an  undivided participation interest in a Swing Loan pursuant to clause (d) above, the Administrative  Agent shall promptly distribute to such Lender such Lender’s pro rata share of all payments of  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   65    principal of and interest received by the Administrative Agent on behalf of the applicable Swing  Loan Lender on account of such Swing Loan (all of which such payments shall be made in  Dollars) other than those received from a Lender pursuant to clause (c) or (d) above and subject  to Section 2.16 with regard to any Defaulting Lender.  If any payment received and so distributed  by any Swing Loan Lender in respect of principal or interest on any Swing Loan is required to be  returned by the Swing Loan Lender under any of the circumstances described in Section 9.05  (including pursuant to any settlement entered into by the Swing Loan Lender in its discretion),  each Lender shall pay to such Swing Loan Lender its pro rata share thereof on demand of the  Administrative Agent, plus interest thereon from the date of such demand to the date such amount  is returned, at a rate per annum equal to the Federal Funds Rate.  The Administrative Agent shall  make such demand upon the request of such Swing Loan Lender.  The obligations of the Lenders  under this clause shall survive the payment in full of the Obligations and the termination of this  Agreement.  (f) The parties hereto acknowledge that the Swing Loan Lenders may from  time to time make loans to the Swing Loan Borrower pursuant to an overdraft, autoborrow or  similar arrangement (the “Overdraft Facility”).  The loans made pursuant to the Overdraft Facility  (the “Overdraft Advances”) shall be deemed Swing Loans for all purposes hereof and shall be  subject to all of the provisions hereof; provided that (1) provisions relating to the fact that the  Overdraft Facility is an uncommitted facility shall prevail; (2) the borrowing procedures set forth  in the Overdraft Documents shall prevail in the event of any conflict between such borrowing  procedures and clause (a) above; (3) the optional prepayment provisions set forth in the Overdraft  Documents shall prevail in the event of any conflict between such provisions and Section 2.07;  (4) any mandatory prepayment provisions set forth in the Overdraft Documents shall be in  addition to, and not in lieu of or replacement of, the mandatory prepayment provisions set forth in  Section 2.07; and (5) interest on each Overdraft Advance shall be due and payable in arrears on  each date set forth in the Overdraft Documents in the event of any conflict between such interest  payment dates and the interest payment dates set forth herein.  (g) Each Lender’s obligation to make Loans or to purchase and fund risk  participations in Swing Loans pursuant to this Section 3.03 shall be absolute and unconditional,  and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment,  defense or other right which such Lender may have against any Swing Loan Lender, any  Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a  Default, or (iii) any other occurrence, event or condition, whether or not similar to any of the  foregoing.  No such funding of risk participations shall relieve or otherwise impair the obligation  of the Swing Loan Borrower to repay any Swing Loans made to it, together with interest as  provided herein.  (h) Any Swing Loan Lender may resign at any time upon not less than 90  days’ prior written notice to the U.S. Borrower and the Administrative Agent, during which  period such Swing Loan Lender shall cooperate with the U.S. Borrower in putting in place a new  Swing Loan Lender designated by the U.S. Borrower and acceptable to the Administrative Agent;  provided, that such resigning Swing Loan Lender shall retain all the rights and obligations of a  Swing Loan Lender provided for hereunder with respect to Swing Loans made by it and  outstanding as of the effective date of such resignation, including the right to require the Lenders  to make Loans or fund risk participations in outstanding Swing Loans pursuant to this Section  3.03.  If there are no other Swing Loan Lenders, and no such Swing Loan Lender is appointed, in  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   66    each case prior to the effectiveness of such resignation, the Swing Loan Borrower shall not be  entitled to request Swing Loans until such a Swing Loan Lender is appointed.  SECTION 3.04.  Issuance of Letters of Credit.  (a) No Issuing Bank shall be under any obligation to Issue any Letter of  Credit upon the occurrence of any of the following:    (i) any order, judgment or decree of any Governmental Authority or  arbitrator shall purport by its terms to enjoin or restrain such Issuing Bank from Issuing  such Letter of Credit or any Requirement of Law applicable to such Issuing Bank or any  request or directive (whether or not having the force of law) from any Governmental  Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such  Issuing Bank refrain from, the Issuance of letters of credit generally or such Letter of  Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of  Credit any restriction or reserve or capital requirement (for which such Issuing Bank is  not otherwise compensated) not in effect on the date of this Agreement or that would  result in any unreimbursed loss, cost or expense that was not applicable, in effect or  known to such Issuing Bank as of the date of this Agreement and that such Issuing Bank  in good faith deems material to it;  (ii) such Issuing Bank shall have received any written notice of the  type described in clause (c) below;  (iii) after giving effect to the Issuance of such Letter of Credit, (A)  the aggregate Total Outstandings would exceed the aggregate of the Commitments in  effect at such time or (B) the Letter of Credit Obligations at such time would exceed the  Letter of Credit Sublimit;  (iv) any fees due in connection with any Issuance have not been paid;  (v) such Letter of Credit is requested to be Issued in a form that is  not acceptable to such Issuing Bank; or  (vi) such Letter of Credit is requested to be denominated in any  currency other than Dollars or (if requested by a Euro Borrower) Euros.  None of the Lenders (other than the Issuing Banks in their capacity as such) shall have any  obligation to Issue any Letter of Credit.  (b) In connection with the Issuance of each Letter of Credit, the U.S.  Borrower or a Euro Borrower, as applicable and appropriate, shall give the relevant Issuing Bank  and the Administrative Agent at least two Business Days’ prior written notice, in form and  substance acceptable to the applicable Issuing Bank, of the requested Issuance of such Letter of  Credit (a “Letter of Credit Request”).  Such notice shall be irrevocable and shall specify the  Issuing Bank of such Letter of Credit, the Currency of Issuance (Dollars or Euros) and face  amount of the Letter of Credit requested, the date of Issuance of such requested Letter of Credit,  the date on which such Letter of Credit is to expire (which date shall be a Business Day) and the  Person for whose benefit the requested Letter of Credit is to be issued.  Such notice, to be  effective, must be received by the relevant Issuing Bank and the Administrative Agent not later  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   67    than 11:00 a.m. (New York time) on the second Business Day prior to the date of the requested  Issuance of such Letter of Credit.  (c) Subject to the satisfaction of the conditions set forth in this Section 3.04  and in Section 2.04, the relevant Issuing Bank shall, on the requested date, Issue a Letter of Credit  for the account of the applicable Borrower in accordance with such Issuing Bank’s usual and  customary business practices.  No Issuing Bank shall Issue any Letter of Credit in the period  commencing on the first Business Day after it receives written notice from any Lender that one or  more of the conditions precedent contained in Section 4.02 shall not on such date be satisfied or  duly waived and ending when such conditions are satisfied or duly waived.  The relevant Issuing  Bank shall not otherwise be required to determine that, or take notice whether, the conditions  precedent set forth in Section 4.02 have been satisfied in connection with the Issuance of any  Letter of Credit.  (d) If requested by the relevant Issuing Bank, prior to the issuance of each  Letter of Credit by such Issuing Bank, and as a condition of such Issuance and of the participation  of each Lender in the Letter of Credit Obligations arising with respect thereto in accordance with  clause (f) below, the applicable Borrower shall have delivered to such Issuing Bank a letter of  credit reimbursement agreement, in such form as the Issuing Bank may employ in its ordinary  course of business for its own account (a “Letter of Credit Reimbursement Agreement”), signed  by such Borrower, and such other documents or items as may be required pursuant to the terms  thereof.  In the event of any conflict between the terms of any Letter of Credit Reimbursement  Agreement and this Agreement, the terms of this Agreement shall govern.  (e) Each Issuing Bank shall:  (i) give the Administrative Agent written notice (which writing may  be a telecopy or electronic mail) of the Issuance of a Letter of Credit Issued by it, of all  drawings under a Letter of Credit Issued by it and the payment (or the failure to pay when  due) by the applicable Borrower of any Reimbursement Obligation when due, other than  drawings under Letters of Credit issued to support the IRB Obligations and  reimbursement payments in respect thereof that are made when due (which notice, the  Administrative Agent shall promptly transmit by telecopy, electronic mail or similar  transmission to each Lender);  (ii) upon the request of any Lender, furnish to such Lender, copies of  any Letter of Credit Reimbursement Agreement to which such Issuing Bank is a party  and such other documentation as may reasonably be requested by such Lender; and  (iii) no later than 10 Business Days following the last day of each  calendar month, provide to the Administrative Agent (and the Administrative Agent shall  provide a copy to each Lender requesting the same) and the U.S. Borrower separate  schedules for Documentary Letters of Credit and Standby Letters of Credit issued by it  under the Letter of Credit Sub-Facility, in form and substance reasonably satisfactory to  the Administrative Agent, setting forth the aggregate Letter of Credit Obligations  outstanding at the end of each month and any information requested by the U.S.  Borrower or the Administrative Agent relating thereto.  (f) Immediately upon the issuance by an Issuing Bank of a Letter of Credit  in accordance with the terms and conditions of this Agreement, such Issuing Bank shall be  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   68    deemed to have sold and transferred to each Lender, and each Lender shall be deemed irrevocably  and unconditionally to have purchased and received from such Issuing Bank, without recourse or  warranty, an undivided interest and participation, to the extent of such Lender’s pro rata share of  the Commitments, in such Letter of Credit and the obligations of the applicable Borrower with  respect thereto (including all Letter of Credit Obligations with respect thereto) and any security  therefor and guaranty pertaining thereto.  (g) Each Borrower agrees to pay to the Issuing Bank of any Letter of Credit  the Dollar Equivalent of the amount of all Reimbursement Obligations owing to such Issuing  Bank under any Letter of Credit issued for its account no later than the date that is the next  succeeding Business Day after such Borrower receives written notice from such Issuing Bank that  payment has been made under such Letter of Credit (the “Reimbursement Date”), irrespective of  any claim, set-off, defense or other right that such Borrower may have at any time against such  Issuing Bank or any other Person.  (h) In the event that any Issuing Bank makes any payment under any Letter  of Credit and the applicable Borrower shall not have repaid the Dollar Equivalent of such amount  to such Issuing Bank pursuant to clause (g) or any such payment by such Borrower is rescinded  or set aside for any reason, such Reimbursement Obligation shall be payable on demand with  interest thereon computed (i) from the date on which such Reimbursement Obligation arose to the  Reimbursement Date, at the rate of interest applicable during such period to Revolving Loans that  are Base Rate Loans and (ii) from the Reimbursement Date until the date of repayment in full, at  the rate of interest applicable during such period to past due Revolving Loans that are Base Rate  Loans, and such Issuing Bank shall promptly notify the Administrative Agent, which shall  promptly notify each Lender of such failure, and each Lender shall promptly and unconditionally  pay to the Administrative Agent for the account of such Issuing Bank the amount of such  Lender’s pro rata share of such payment in Dollars (based upon the Dollar Equivalent of such  amount on the date of such payment) and in immediately available funds.  If the Administrative  Agent so notifies such Lender prior to 11:00 a.m. (New York time) on any Business Day, such  Lender shall make available to the Administrative Agent for the account of such Issuing Bank its  pro rata share of the amount of such payment on such Business Day in immediately available  funds.  Upon such payment by a Lender, such Lender shall, except during the continuance of a  Default or Event of Default under Section 7.01(e) and notwithstanding whether or not the  conditions precedent set forth in Section 4.02 shall have been satisfied (which conditions  precedent the Lenders hereby irrevocably waive), be deemed to have made a Revolving Loan to  applicable Borrower in the principal amount of such payment.  Whenever any Issuing Bank  receives from the U.S. Borrower a payment of a Reimbursement Obligation as to which the  Administrative Agent has received for the account of such Issuing Bank any payment from a  Lender pursuant to this clause (h), such Issuing Bank shall pay to the Administrative Agent and  the Administrative Agent shall promptly pay to each Lender, in immediately available funds, an  amount equal to such Lender’s pro rata share of the amount of such payment adjusted, if  necessary, to reflect the respective amounts the Lenders have paid in respect of such  Reimbursement Obligation.  (i) If and to the extent such Lender shall not have so made its pro rata share  of the amount of the payment required by clause (h) above, as applicable, available to the  Administrative Agent for the account of such Issuing Bank, such Lender agrees to pay to the  Administrative Agent for the account of such Issuing Bank forthwith on demand any such unpaid  amount together with interest thereon, for the first Business Day after payment was first due at  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   69    the Federal Funds Rate and, thereafter until such amount is repaid to the Administrative Agent for  the account of such Issuing Bank, at the rate per annum applicable to Base Rate Loans under the  Facility.  (j) Each Borrower’s obligation to pay each Reimbursement Obligation and  the obligations of the Lenders to make payments to the Administrative Agent for the account of  the Issuing Banks with respect to Letters of Credit shall be absolute, unconditional and  irrevocable, and shall be performed strictly in accordance with the terms of this Agreement, under  any and all circumstances whatsoever, including the occurrence of any Default or Event of  Default, and irrespective of any of the following:  (i) any lack of validity or enforceability of any Letter of Credit or  any Loan Document, or any term or provision therein;  (ii) any amendment or waiver of or any consent to departure from all  or any of the provisions of any Letter of Credit or any Loan Document;  (iii) the existence of any claim, set off, defense or other right that  such Borrower, any other party guaranteeing, or otherwise obligated with, such  Borrower, any Subsidiary or other Affiliate thereof or any other Person may at any time  have against the beneficiary under any Letter of Credit, any Issuing Bank, the  Administrative Agent or any other Lender or any other Person, whether in connection  with this Agreement, any other Loan Document or any other related or unrelated  agreement or transaction;  (iv) any draft or other document presented under a Letter of Credit  proving to be forged, fraudulent, invalid or insufficient in any respect or any statement  therein being untrue or inaccurate in any respect;  (v) payment by the Issuing Bank under a Letter of Credit against  presentation of a draft or other document that does not comply with the terms of such  Letter of Credit; and  (vi) any other act or omission to act or delay of any kind of the  Issuing Bank, the other Lenders, the Administrative Agent or any other Person or any  other event or circumstance whatsoever, whether or not similar to any of the foregoing,  that might, but for the provisions of this Section 3.04 or Section 2.04, constitute a legal or  equitable discharge of such Borrower’s obligations hereunder.  Any action taken or omitted to be taken by the relevant Issuing Bank under or in connection with  any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct,  shall not put such Issuing Bank under any resulting liability to the applicable Borrower or any  Lender.  In determining whether drafts and other documents presented under a Letter of Credit  comply with the terms thereof, the Issuing Bank may accept documents that appear on their face  to be in order, without responsibility for further investigation, regardless of any notice or  information to the contrary and, in making any payment under any Letter of Credit, the Issuing  Bank may rely exclusively on the documents presented to it under such Letter of Credit as to any  and all matters set forth therein, including reliance on the amount of any draft presented under  such Letter of Credit, whether or not the amount due to the beneficiary thereunder equals the  amount of such draft and whether or not any document presented pursuant to such Letter of  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   70    Credit proves to be insufficient in any respect, if such document on its face appears to be in order,  and whether or not any other statement or any other document presented pursuant to such Letter  of Credit proves to be forged or invalid or any statement therein proves to be inaccurate or untrue  in any respect whatsoever and any noncompliance in any immaterial respect of the documents  presented under such Letter of Credit with the terms thereof shall, in each case, be deemed not to  constitute willful misconduct or gross negligence of the Issuing Bank.  (k) Schedule 2.04 (Existing Letters of Credit) contains a schedule of  Existing Letters of Credit issued for the account of the U.S. Borrower.  On the Effective Date (i)  such letters of credit, to the extent outstanding, shall be automatically and without further action  by the parties thereto converted to Letters of Credit issued pursuant to this Section 3.04 and  Section 2.04 for the account of the U.S. Borrower and subject to the provisions hereof, and for  this purpose the fees specified in Section 2.05(b) shall be payable (in substitution for any fees set  forth in the applicable letter of credit reimbursement agreements or applications relating to such  letters of credit) as if such letters of credit had been issued on the Effective Date, other than fees  with respect to issuance, amendment or transfer that might otherwise apply as the result of such  letters of credit being treated as if issued on the Effective Date, (ii) the amount of such letters of  credit shall be included in the calculation of Letter of Credit Obligations and (iii) all liabilities of  the U.S. Borrower with respect to such letters of credit shall constitute Reimbursement  Obligations and/or obligations under the Facility.  SECTION 3.05.  Increased Costs.  (a) If, due to either (i) the introduction of or any change in or in the  interpretation of any law or regulation, in each case after the date hereof or (ii) the compliance  with any guideline or request from any central bank or other governmental authority (whether or  not having the force of law) which implements any introduction or change specified in clause (i)  above, there shall be (x) any increase in the cost to any Lender of agreeing to make or making,  funding or maintaining SOFR Loans, EURIBOR Loans or Swing Loans or (y) subject any  Recipient to any Taxes (other than (A) Indemnified Taxes, or (B) Taxes described in clauses (b)  through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans,  loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves  (including pursuant to regulations issued from time to time by the Board of Governors of the  Federal Reserve System (or any successor) for determining the maximum reserve requirement  (including, without limitation, any emergency, supplemental or other marginal reserve  requirement) for such Lender with respect to liabilities or assets which are Eurocurrency  Liabilities), other liabilities or capital attributable thereto,  then the Borrowers shall from time to  time, within ten Business Days after written demand by such Lender (with a copy of such demand  to the Administrative Agent), pay to the Administrative Agent for the account of such Lender  additional amounts sufficient to compensate such Lender for such increased cost incurred during  the 90-day period prior to the date of such demand.  A certificate as to the amount of such  increased cost, submitted to the U.S. Borrower and the Administrative Agent by such Lender and  showing in reasonable detail the basis for the calculation thereof, shall be prima facie evidence of  such costs.  (b) If any Lender determines that compliance with (i) the introduction of or  any change in or in the interpretation of, any law or regulation, in each case after the date hereof,  or (ii) any guideline or request from any central bank or other governmental authority (whether or  not having the force of law) which implements any introduction or change specified in clause (i)  above, affects or would affect the amount of capital or liquidity required or expected to be  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   71    maintained by such Lender or any corporation controlling such Lender and that the amount of  such capital or liquidity is increased by or based upon the existence of such Lender’s commitment  to lend or to issue or participate in Letters of Credit hereunder and other commitments of this  type, then, within ten Business Days after written demand by such Lender (with a copy of such  demand to the Administrative Agent), the Borrowers shall from time to time pay to the  Administrative Agent for the account of such Lender, additional amounts sufficient to  compensate such Lender or such corporation in the light of such circumstances for such increase  in capital or liquidity incurred during the six-month period prior to the date of such demand, to  the extent that such Lender reasonably determines such increase in capital or liquidity to be  allocable to the existence of such Lender’s commitment to lend or to issue or participate in  Letters of Credit hereunder.  A certificate as to such amounts submitted to the U.S. Borrower and  the Administrative Agent by such Lender and showing in reasonable detail the basis for the  calculation thereof shall be prima facie evidence of such costs.  (c) Failure or delay on the part of any Lender to demand compensation  pursuant to the foregoing provisions of this Section 3.05 shall not constitute a waiver of such  Lender’s right to demand such compensation, provided that no Borrower shall be required to  compensate a Lender pursuant to the foregoing provisions of this Section for any increased costs  incurred or reductions suffered more than six months prior to the date that such Lender notifies  the U.S. Borrower of the circumstances giving rise to such increased costs or reductions and of  such Lender’s intention to claim compensation therefor (except that, if the circumstances giving  rise to such increased costs or reductions is retroactive, then the six-month period referred to  above shall be extended to include the period of retroactive effect thereof).  (d) Without limiting the effect of the foregoing, the Borrowers shall pay to  each Lender on the last day of each Interest Period so long as such Lender is maintaining reserves  against Eurocurrency Liabilities (or so long as such Lender is maintaining reserves against any  other category of liabilities that includes deposits by reference to which the interest rate on  EURIBOR Loans is determined as provided in this Agreement or against any category of  extensions of credit or other assets of such Lender that includes any EURIBOR Loans) an  additional amount (determined by such Lender and notified to the U.S. Borrower through the  Administrative Agent) equal to the product of the following for each EURIBOR Loan for each  day during such Interest Period:  (i) the principal amount of such EURIBOR Loan outstanding on  such day; and  (ii) the remainder of (x) a fraction the numerator of which is the rate  (expressed as a decimal) at which interest accrues on such EURIBOR Loan for such  Interest Period as provided in this Agreement (less the Applicable Margin) and the  denominator of which is one minus the EURIBOR Reserve Percentage in effect on such  day minus (y) such numerator; and  (iii) 1/360.  (e) If the U.S. Borrower is required to pay any Lender any amounts under  this Section 3.05, the applicable Lender shall be an “Affected Person”, and the U.S. Borrower  shall have the rights set forth in Section 3.08 to replace such Affected Person.  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   72    Notwithstanding anything to the contrary, for purposes of this Section 3.05, each of (i) the Dodd- Frank Wall Street Reform and Consumer Protection Act, and all requests, rules, guidelines and  directives promulgated thereunder and (ii) all requests, rules, guidelines or directives concerning  capital adequacy or liquidity effective after the date hereof promulgated by the Bank for  International Settlements, the Basel Committee on Banking Regulations and Supervisory  Practices (or any successor or similar authority) or the United States or foreign regulatory  authorities are deemed to have been introduced or adopted after the date hereof, regardless of the  date enacted or adopted.  SECTION 3.06.  Illegality.  Notwithstanding any other provision of this  Agreement, if any Lender or any Swing Loan Lender, as the case may be, shall notify the  Administrative Agent that the introduction of or any change in or in the interpretation of any law  or regulation makes it unlawful, or any central bank or other governmental authority asserts that it  is unlawful, for such Lender or such Swing Loan Lender, as the case may be, or its Applicable  Lending Office to perform its obligations hereunder to make SOFR Loans, EURIBOR Loans or  Swing Loans, as the case may be, or to fund or maintain SOFR Loans, EURIBOR Loans or  Swing Loans hereunder, as the case may be, then, subject to the provisions of Section 3.08, (i) the  obligation of such Lender to make SOFR Loans or EURIBOR Loans hereunder or the obligations  of such Swing Loan Lender to make Swing Loans hereunder (including, without limitation, to  any Borrower who is also a Foreign Subsidiary), as the case may be, shall be suspended until the  first date on which the circumstances causing such suspension cease to exist (and, to the extent  required by applicable Law, cancelled), (ii) any SOFR Loans or EURIBOR Loans made or to be  made by such Lender shall be converted automatically to Base Rate Loans (in the case of such  EURIBOR Loans, in an amount that is then equal to the Dollar Equivalent of such EURIBOR  Loans) and (iii) such Lender or such Swing Loan Lender, as the case may be, shall be an  “Affected Person”, and the U.S. Borrower shall have the right set forth in Section 3.08 to replace  such Affected Person.  In the event of such a suspension, such Lender or such Swing Loan  Lender, as the case may be, shall review the circumstances giving rise to such suspension at least  weekly and shall notify the U.S. Borrower, the Administrative Agent, the Swing Loan Lenders  and the Lenders promptly of the end of such suspension, and thereafter the applicable Borrower  shall be entitled to borrow SOFR Loans or EURIBOR Loans from such Lender or the Swing  Loan Borrower shall be entitled to borrow Swing Loans from such Swing Loan Lender, as the  case may be. During such suspension period, the Borrowers shall, if necessary to avoid such  illegality, upon demand from any Lender (with a copy to the Administrative Agent), prepay or, if  applicable, (i) convert all affected SOFR Loans to Base Rate Loans or (ii) convert all EURIBOR  Loans to Base Rate Loans denominated in Dollars (in an amount that is then equal to the Dollar  Equivalent of such EURIBOR Loans) (in each case, if necessary to avoid such illegality, the  Administrative Agent shall compute the Base Rate without reference to clause (c) of the  definition of “Base Rate”), (A) with respect to SOFR Loans, on the Interest Payment Date  therefor, if all affected Lenders may lawfully continue to maintain such SOFR Loans to such day,  or immediately, if any Lender may not lawfully continue to maintain such SOFR Loans to such  day or (B) with respect to EURIBOR Loans, on the last day of the Interest Period therefor, if all  affected Lenders may lawfully continue to maintain such EURIBOR Loans, to such day, or  immediately, if any Lender may not lawfully continue to maintain such EURIBOR Loans, as  applicable, to such day.  Upon any such prepayment or conversion, the Borrower shall also pay  accrued interest on the amount so prepaid or converted, together with any additional amounts  required pursuant to Section 9.04(c).  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   73    Notwithstanding anything to the contrary, for purposes of this Section 3.06, each of (i) the Dodd- Frank Wall Street Reform and Consumer Protection Act, and all requests, rules, guidelines and  directives promulgated thereunder and (ii) all requests, rules, guidelines or directives concerning  capital adequacy or liquidity effective after the date hereof promulgated by the Bank for  International Settlements, the Basel Committee on Banking Regulations and Supervisory  Practices (or any successor or similar authority) or the United States or foreign regulatory  authorities are deemed to have been introduced or adopted after the date hereof, regardless of the  date enacted or adopted.  SECTION 3.07.  Reasonable Efforts to Mitigate.  Each Lender and each Swing  Loan Lender shall use its reasonable best efforts (consistent with its internal policy and legal and  regulatory restrictions) to minimize any amounts payable by the Borrowers under Section 3.05  and to minimize any period of illegality described in Section 3.06.  Without limiting the  generality of the foregoing, each Lender and each Swing Loan Lender agrees that, to the extent  reasonably possible to such Lender or such Swing Loan Lender, as the case may be, it will  change its Applicable Lending Office if such change would eliminate or reduce amounts payable  to it under Section 3.05 or eliminate any illegality of the type described in Section 3.06, as the  case may be.  Each Lender and each Swing Loan Lender further agrees to notify the U.S.  Borrower promptly, but in any event within five Business Days, after such Lender or such Swing  Loan Lender, as the case may be, learns of the circumstances giving rise to such a right to  payment or such illegality have changed such that such right to payment or such illegality, as the  case may be, no longer exists.  SECTION 3.08.  Right to Replace Affected Person or Lender.  (a) Replacement by the U.S. Borrower.  In the event (i) the Borrowers are  required to pay any Taxes with respect to an Affected Person pursuant to Section 2.12(b) or (d) or  any amounts with respect to an Affected Person pursuant to Section 3.05, (ii) the U.S. Borrower  receives a notice from an Affected Person pursuant to Section 3.06, or (iii) any Lender is a  Defaulting Lender or Non-Consenting Lender (treating such Lender as an “Affected Person” for  purposes of this Section 3.08), the U.S. Borrower may elect, if such amounts continue to be  charged or such notice is still effective, to replace such Affected Person as a party to this  Agreement, provided that, concurrently therewith, (i) another financial institution which is an  Eligible Assignee and is reasonably satisfactory to the U.S. Borrower and the Administrative  Agent (or if the Lender then serving as Administrative Agent is the Person to be replaced and the  Administrative Agent has resigned its position, the Lender becoming the successor  Administrative Agent) and satisfactory to the Issuing Banks and the Swing Loan Lenders (unless  it is such Swing Loan Lender that is being replaced), shall agree, as of such date, to purchase for  cash and at par the Loans and participation in Letters of Credit of the Affected Person, pursuant to  an Assignment and Acceptance and to become a Lender or a Swing Loan Lender, as the case may  be, for all purposes under this Agreement and to assume all obligations (including all outstanding  Loans) of the Affected Person to be replaced as of such date and to comply with the requirements  of Section 9.07 applicable to assignments and (ii) the U.S. Borrower shall pay to such Affected  Person in same day funds on the day of such replacement all interest, fees and other amounts then  due and owing to such Affected Person by any Borrower hereunder to and including the date of  termination, including without limitation payments due such Affected Person under Section 2.12,  costs incurred under Section 3.05 and payments owing under Section 9.04(c).  (b) Replacement by the Issuing Banks.  In the event that S&P and Moody’s  shall, after the date that any Person becomes a Lender, downgrade the long-term certificate of  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   74    deposit ratings of such Lender, and the resulting ratings shall be below BBB- and Baa3,  respectively, or the equivalent, then the Issuing Banks shall in consultation with the U.S.  Borrower have the right, but not the obligation, at their own expense, upon notice to such Lender  and the Administrative Agent, to replace such Lender with an Eligible Assignee, and such Lender  hereby agrees to transfer and assign without recourse (in accordance with and subject to the  restrictions contained in Section 9.07 (other than clause (a)(iv) thereof)) all the interests, rights  and obligations in respect of its Commitment to an Eligible Assignee; provided however, that  (x) no such assignment shall conflict with any law, rule or regulation or order of any  governmental authority and (y) the Issuing Banks or such Eligible Assignee, as the case may be,  shall pay to such Lender in same day funds on the date of such assignment the principal of and  interest accrued to the date of payment on the Loans made by such Lender and such Lender’s  participation in any Letters of Credit hereunder and all other amounts accrued for such Lender’s  account or owed to it hereunder.  Upon any such termination or assignment, such Lender shall  cease to be a party hereto but shall continue to be obligated under Section 8.05 and be entitled to  the benefits of Section 9.04, as well as to any fees and other amounts accrued for its account  under Section 2.05, 2.12 or 3.05 and not yet paid.  SECTION 3.09.  Use of Proceeds.  The Letters of Credit and the proceeds of the  Loans shall be available (and each Borrower agrees that it shall use such proceeds) for general  corporate purposes of the U.S. Borrower and its Subsidiaries; provided that neither any Lender  nor the Administrative Agent shall have any responsibility for the use of any of the Letters of  Credit or the proceeds of Loans.  ARTICLE IV  CONDITIONS OF LENDING  SECTION 4.01.  Conditions Precedent to Initial Borrowing.  The obligation of  each Lender to make a Loan on the occasion of the initial Borrowing and of an Issuing Bank to  issue the initial Letter of Credit, whichever shall first occur, shall be subject to the conditions  precedent that, on a date (the “Effective Date”) not later than June 30, 2022, the Administrative  Agent shall have received the following:  (a) Each of the following documents, which shall be dated the Effective  Date and in form and substance satisfactory to the Administrative Agent:  (i) This Agreement, duly executed and delivered by each of the  Borrowers and the Guarantor.  (ii) Upon request of any Lender, the Revolving Loan Notes payable  by the U.S. Borrower and any Euro Borrower to the order of each such Lender.  (iii) Certified copies of (w) the charter and by-laws of each  Borrower, (x) the resolutions of the board of directors (or equivalent governing body) of  each Borrower authorizing and approving this Agreement, the Guaranty and the Notes  and the transactions contemplated by the Loan Documents, (y) all documents evidencing  other necessary corporate action and governmental approvals, if any, with respect to the  Loan Documents and (z) a long form good standing certificate (or its equivalent) for each  such Borrower from its jurisdiction of organization.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   75    (iv) A certificate of the secretary or an assistant secretary (or  equivalent officer) of each Borrower certifying the names and true signatures of the  officers of each Borrower authorized to sign this Agreement, the Guaranty and the Notes  and the other documents to be delivered hereunder.   (v) A favorable opinion of (x) Morgan, Lewis & Bockius LLP U.S.,  counsel to the Borrowers and (y) certain local counsel to each of the Euro Borrowers, in  each case, in form and substance reasonably acceptable to the Administrative Agent and  Lenders and covering such customary matters relating hereto as any Lender, through the  Administrative Agent, may reasonably request.   (vi) A certificate of a senior officer of the U.S. Borrower to the effect  that (x) the representations and warranties contained in Article V (Representations and  Warranties) are correct (other than any such representations or warranties which, by their  terms, refer to a prior date) and (y) no event has occurred and is continuing which  constitutes a Default.  (vii) Such other certificates, documents, agreements and information  respecting any Borrower as any Lender through the Administrative Agent may  reasonably request, including without limitation, at least five Business Days prior to the  Effective Date, all documentation and other information relating to the Borrowers  required by bank regulatory authorities under applicable “know-your-customer” and anti- money laundering rules and regulations, including the Patriot Act and to the extent  applicable to any Borrower that constitutes a “legal entity customer” under 31 C.F.R.  §1010.230 (the “Beneficial Ownership Regulation”), a certification regarding beneficial  ownership as required by the Beneficial Ownership Regulation (each, a “Beneficial  Ownership Certificate”), in each case, as reasonably requested by any of the  Administrative Agent and the Lenders at least 10 Business Days prior to the Effective  Date.   (b) Confirmation that the U.S. Borrower has paid all accrued fees and  expenses of the Administrative Agent (including, without limitation, amounts then payable under  the Fee Letter) and the Lenders hereunder (including the fees and expenses of counsel to the  Administrative Agent to the extent then payable), together with all accrued but unpaid fees  (including, without limitation, facility fees) and expenses under the Existing Credit Agreement.  SECTION 4.02.  Conditions Precedent to Each Revolving Loan Borrowing,  Swing Loan Borrowing and Letter of Credit Issuance.  The obligation of each Lender to make a  Loan (other than a Swing Loan or a Letter of Credit Loan made by a Lender pursuant to  Section 3.03 or 3.04(b)) on the occasion of each Borrowing (including the initial Borrowing), and  the right of the Borrowers to request a Swing Loan Borrowing or the Issuance of a Letter of  Credit, shall be subject to the further conditions precedent that:  (a) in the case of the first Borrowing by a Euro Borrower (other than FMC  Finance B.V. and FMC Chemicals Netherlands B.V.), the U.S. Borrower shall have furnished to  the Administrative Agent and the Lenders such Revolving Loan Notes, corporate documents,  resolutions, certifications, legal opinions and other items relating to such Euro Borrower as the  Administrative Agent or the Lenders may reasonably require, including without limitation, all  documentation and other information relating to such Euro Borrower required by bank regulatory  authorities under applicable “know-your-customer” and anti-money laundering rules and  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   76    regulations, including the Patriot Act and to the extent applicable to any such Euro Borrower that  constitutes a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial  Ownership Certificate, in each case, as reasonably requested by any of the Administrative Agent  and the Lenders, and   (b) on the date of such Borrowing or Issuance of a Letter of Credit the  following statements shall be true (and the acceptance by a Borrower of the proceeds of such  Borrowing or of such Letter of Credit shall constitute a representation and warranty by such  Borrower that on the date of such Borrowing or Issuance such statements are true):  (i) The representations and warranties contained in Article V  (Representations and Warranties) (except the Excluded Representations) are correct in all  material respects (except any representations and warranties that are qualified by  materiality, which shall be true and correct in all respects) on and as of the date of such  Borrowing or issuance, before and after giving effect to such Borrowing or issuance and  to the application of the proceeds therefrom, as though made on and as of such date, other  than any such representations or warranties that, by their terms, refer to a date other than  the date of such Borrowing or issuance, which are true and correct as of such earlier date;  and  (ii) No event has occurred and is continuing, or would result from  such Borrowing or issuance or from the application of the proceeds therefrom, which  constitutes a Default.  ARTICLE V  REPRESENTATIONS AND WARRANTIES  The U.S. Borrower and the Guarantor, as applicable, each represents and  warrants as follows:  SECTION 5.01.  Corporate Existence; Compliance with Law.  Each of the U.S. Borrower and its Material Subsidiaries (a) is duly organized,  validly existing and in good standing (where such concept is legally relevant) under the laws of  the jurisdiction of its organization, (b) is duly qualified to do business as a foreign corporation  and in good standing (where such concept is legally relevant) under the laws of each jurisdiction  where such qualification is necessary, except where the failure to be so qualified or in good  standing (where such concept is legally relevant) would not, in the aggregate, reasonably be  expected to have a Material Adverse Effect, (c) has all requisite power and authority and the legal  right to own, pledge, mortgage and operate its properties, to lease the property it operates under  lease and to conduct its business as now or currently proposed to be conducted, (d) with respect to  the U.S. Borrower and its Material Subsidiaries that are Domestic Subsidiaries, is in compliance  with its Constituent Documents, (e) is in compliance with all applicable Requirements of Law  except where the failure to be in compliance would not, in the aggregate, reasonably be expected  to have a Material Adverse Effect and (f) has all necessary licenses, permits, consents or  approvals from or by, has made all necessary filings with, and has given all necessary notices to,  each Governmental Authority having jurisdiction, to the extent required for such ownership,  operation and conduct, except for licenses, permits, consents, approvals or filings that can be  obtained or made by the taking of ministerial action to secure the grant or transfer thereof or the  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   77    failure to obtain or make would not, in the aggregate, reasonably be expected to have a Material  Adverse Effect.  SECTION 5.02.  Corporate Power; Authorization; Enforceable Obligations.  (a) The execution, delivery and performance by each Borrower of the Loan  Documents to which it is a party and the consummation of the transactions contemplated thereby:  (i) are within such Borrower’s corporate, limited liability company,  partnership or other organizational powers;  (ii) have been or, at the time of delivery thereof pursuant to Article  IV (Conditions of Lending) will have been, duly authorized by all necessary action,  including the consent of shareholders, partners and members where required;  (iii) do not and will not (A) contravene such Borrower’s or any of its  Subsidiaries’ respective Constituent Documents, (B) violate any other Requirement of  Law applicable to such Borrower (including Regulations T, U and X of the Federal  Reserve Board), or any order or decree of any Governmental Authority or arbitrator  applicable to such Borrower, (C) conflict with or result in the breach of, or constitute a  default under, or result in or permit the termination or acceleration of, any Contractual  Obligation of such Borrower or any of its Subsidiaries, or (D) result in the creation or  imposition of any Lien upon any property of such Borrower or any of its Material  Subsidiaries;  (iv) do not require the consent of, authorization by, approval of,  notice to, or filing or registration with, any Governmental Authority or any other Person,  other than those listed on Schedule 5.02 (Consents) or that have been or will be, prior to  the Effective Date, obtained or made, copies of which have been or will be delivered to  the Administrative Agent pursuant to Section 4.01(a)(iii)(y), and each of which on the  Effective Date will be in full force and effect.  (b) This Agreement has been, and each of the other Loan Documents will  have been, upon delivery thereof pursuant to the terms of this Agreement, duly executed and  delivered by each Borrower and the Guarantor party thereto.  This Agreement is, and the other  Loan Documents will be, when delivered hereunder, the legal, valid and binding obligation of  each Borrower and the Guarantor party thereto, enforceable against such Borrower and the  Guarantor in accordance with its terms.  SECTION 5.03.  Financial Statements.  The Consolidated balance sheet of the U.S. Borrower and its Subsidiaries as at  December 31, 2021, and the related Consolidated statements of income, changes in equity and  cash flows of the U.S. Borrower and its Subsidiaries for the fiscal year then ended, certified by  the Borrowers’ Accountants, copies of which have been furnished to each Lender, fairly present  the Consolidated financial condition of the U.S. Borrower and its Subsidiaries as at such dates  and the Consolidated results of the operations of the U.S. Borrower and its Subsidiaries for the  period ended on such date, all in conformity with GAAP.  SECTION 5.04.  Material Adverse Change.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   78    Since December 31, 2021, there has been no Material Adverse Change and there  have been no events or developments that, in the aggregate, have had a Material Adverse Effect.  SECTION 5.05.  Litigation.  Except as set forth on Schedule 5.05 (Litigation), there are no pending or, to the  knowledge of the U.S. Borrower, threatened, actions, investigations or proceedings affecting the  U.S. Borrower or any of its Material Subsidiaries before any court, Governmental Authority or  arbitrator other than those that, in the aggregate, could not reasonably be expected to have a  Material Adverse Effect.  The performance of any action by any Borrower required or  contemplated by any Loan Document is not restrained or enjoined (either temporarily,  preliminarily or permanently).  SECTION 5.06.  Taxes.  The U.S. Borrower and each of its Material Subsidiaries (i) have filed, have  caused to be filed or have been included in all tax returns (federal, state, local and foreign)  required to be filed and all such tax returns are true and correct in all material respects and (ii)  have paid (or have accrued any taxes shown that are not due with the filing of such returns) all  taxes shown thereon to be due, together with applicable interest and penalties, except in any case  where the failure to file any such return or pay any such tax is not in any respect material to the  U.S. Borrower or the U.S. Borrower and its Subsidiaries taken as a whole.  SECTION 5.07.  Full Disclosure.  The information prepared or furnished by or on behalf of the U.S. Borrower in  connection with this Agreement or the consummation of the transactions contemplated hereunder  taken as a whole, including the information contained in the Disclosure Documents, does not  contain any untrue statement of a material fact or omit to state a material fact necessary to make  the statements contained therein or herein in light of the time and circumstances under which they  were made, not misleading. As of the date of its first delivery hereunder, each Beneficial  Ownership Certificate delivered hereunder is true and correct in all respects.  SECTION 5.08.  Investment Company Act.  Neither the U.S. Borrower nor any of its Material Subsidiaries is an “investment  company” or an “affiliated Person” of, or “promoter” or “principal underwriter” for, an  “investment company,” as such terms are defined in the Investment Company Act of 1940, as  amended.  SECTION 5.09.  ERISA.  (a) No ERISA Event with respect to the U.S. Borrower has occurred or is  reasonably expected to occur with respect to any Plan that, when taken individually or together  with all such other ERISA Events, has resulted or would reasonably be expected to result in a  Material Adverse Effect.  (b) Neither the U.S. Borrower nor any of its ERISA Affiliates has been  notified by the sponsor of a Multiemployer Plan that it has incurred any Withdrawal Liability, and  neither the U.S. Borrower nor any of its ERISA Affiliates, to the best of the U.S. Borrower’s  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   79    knowledge and belief, is reasonably expected to incur any Withdrawal Liability to any  Multiemployer Plan, in each case other than any Withdrawal Liability that would not have a  Material Adverse Effect.  (c) Neither the U.S. Borrower nor any of its ERISA Affiliates has been  notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent or in  endangered or critical status within the meaning of Title IV of ERISA, or has been terminated,  within the meaning of Title IV of ERISA, except where such event would not reasonably be  expected to have a Material Adverse Effect.  (d) Subject to the accuracy of the representations of the Lenders in Section  9.20, no Person who for purposes of Title IV of ERISA is a member of the U.S. Borrower is an  entity deemed to hold “plan assets” (within the meaning of the Plan Asset Regulations).   SECTION 5.10.  Environmental Matters.  Except as disclosed in the U.S. Borrower’s SEC filings filed with respect to  period ending on or prior to December 31, 2021:  (a) The operations of the U.S. Borrower and each of its Material  Subsidiaries have been and are in compliance with all Environmental Laws, including obtaining  and complying with all required Permits required under or by Environmental Laws (collectively,  “Environmental Permits”), other than non-compliances that, individually or in the aggregate,  would not reasonably be expected to have a Material Adverse Effect.  (b) None of the U.S. Borrower or any of its Material Subsidiaries or any real  property currently or, to the knowledge of the U.S. Borrower, previously owned, operated or  leased by or for the U.S. Borrower or any of its Material Subsidiaries is subject to any pending or,  to the knowledge of the U.S. Borrower, threatened, claim, order, agreement, notice of potential  liability or is the subject of any pending or threatened proceeding or governmental investigation  under or pursuant to Environmental Laws other than those that, individually or in the aggregate,  would not reasonably be expected to have a Material Adverse Effect.  (c) Except as disclosed on Schedule 5.10 (Environmental Matters), none of  the real property owned or operated by the U.S. Borrower or any of its Material Subsidiaries that  is a Domestic Subsidiary is a treatment, storage or disposal facility requiring a Permit under the  Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. and the regulations  thereunder.  (d) There are no facts, circumstances or conditions arising out of or relating  to the operations or ownership of the U.S. Borrower or of real property owned, operated or leased  by the U.S. Borrower or any of its Material Subsidiaries that are not specifically included in the  financial information furnished to the Lenders other than those that, individually or in the  aggregate, would not reasonably be expected to have a Material Adverse Effect.  (e) As of the date hereof, no Environmental Lien has attached to any  property of the U.S. Borrower or any of its Material Subsidiaries and, to the knowledge of the  U.S. Borrower, no facts, circumstances or conditions exist that could reasonably be expected to  result in any such Lien attaching to any such property.  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   80    SECTION 5.11.  Ownership of Properties; Liens.  Each of the U.S. Borrower and its Material Subsidiaries has good title to, a valid  leasehold interest in, or other valid legal rights to use, all of the real and personal property used in  the ordinary course of its business, and none of such property is subject to any Lien (other than as  permitted by Section 6.04(a)), except to the extent that the absence of such good title, valid  leasehold interest or valid legal right, in the aggregate, would not reasonably be expected to have  a Material Adverse Effect.  SECTION 5.12.  Sanctions.  Each of the Borrowers and their Subsidiaries are in compliance with applicable  Sanctions.  None of the Borrowers, their Subsidiaries or any of their respective directors, officers,  employees, agents, or affiliates is a Sanctioned Person.  The Letters of Credit and the proceeds of  any Loan will not be used and have not been used, directly or indirectly, (A) to fund any  operations in or with, finance any investments or activities in or with, or make any payments to, a  Sanctioned Person or a Sanctioned Country, except to the extent permissible for a Person required  to comply with Sanctions or (B) in any other manner that would result in a violation by any  Person of any Sanctions.  SECTION 5.13.  Anti-Corruption Laws; Anti-Money Laundering Laws.  Each of the Borrowers has implemented and maintains in effect policies and  procedures designed to ensure compliance by such Borrower, its Subsidiaries and their respective  directors, officers, employees, brokers and agents with Anti-Corruption Laws and Anti-Money  Laundering Laws and applicable Sanctions, and the Borrowers, their Subsidiaries and their  respective officers and employees and to the knowledge of the Borrowers, their and their  Subsidiaries’ respective directors, brokers and agents, are in compliance with Anti-Corruption  Laws and Anti-Money Laundering Laws in all material respects.  No part of any Letter of Credit,  Borrowing, the use of proceeds therefrom or any other transaction contemplated by this  Agreement will violate Anti-Corruption Laws or Anti-Money Laundering Laws.  ARTICLE VI  COVENANTS OF THE COMPANY  SECTION 6.01.  Financial Covenants.  So long as any obligations under this  Agreement or any Note shall remain unpaid, any Letter of Credit shall be outstanding or any  Lender shall have any Commitment hereunder, the U.S. Borrower agrees with the Administrative  Agent to each of the following, unless the Required Lenders shall otherwise consent in writing:  (a) Maximum Leverage Ratio.  The U.S. Borrower shall maintain as of the  last day of each Fiscal Quarter a Leverage Ratio of not more than 3.50:1.00.  (b) Minimum Interest Coverage Ratio.  The U.S. Borrower shall maintain an  Interest Coverage Ratio, as determined as of the last day of each Fiscal Quarter, for the four  consecutive Fiscal Quarters ending on such day, of not less than 3.50 to 1.00.   SECTION 6.02.  Reporting Covenants.  So long as any obligations under this  Agreement or any Note shall remain unpaid, any Letter of Credit shall be outstanding or any  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   81    Lender shall have any Commitment hereunder, the U.S. Borrower agrees with the Administrative  Agent to each of the following, unless the Required Lenders shall otherwise consent in writing:  (a) Financial Statements.  The U.S. Borrower shall furnish to the  Administrative Agent (with sufficient copies for each of the Lenders or in electronic, readable  and duplicable form) each of the following:  (i) Quarterly Reports.  Within 45 days after the end of each Fiscal  Quarter of each Fiscal Year, other than the fourth Fiscal Quarter of such Fiscal Year,  financial information regarding the U.S. Borrower and its Subsidiaries consisting of  Consolidated unaudited balance sheets as of the close of such quarter and the related  statements of income and cash flows for such quarter and that portion of the Fiscal Year  ending as of the close of such quarter, setting forth in comparative form the figures for  the corresponding period in the prior year, in each case certified by a Responsible Officer  of the U.S. Borrower as fairly presenting the Consolidated financial position of the U.S.  Borrower and its Subsidiaries as at the dates indicated and the results of their operations  and cash flow for the periods indicated in accordance with GAAP (subject to the absence  of footnote disclosure and normal year-end audit adjustments).  (ii) Annual Reports.  Within 90 days after the end of each Fiscal  Year, financial information regarding the U.S. Borrower and its Subsidiaries consisting of  Consolidated balance sheets of the U.S. Borrower and its Subsidiaries as of the end of  such year and related statements of income, changes in equity and cash flows of the U.S.  Borrower and its Subsidiaries for such Fiscal Year, all prepared in conformity with  GAAP and certified without qualification as to the scope of the audit by the Borrowers’  Accountants, together with the report of such accounting firm stating that (A) such  Financial Statements fairly present the Consolidated financial position of the U.S.  Borrower and its Subsidiaries as at the dates indicated and the results of their operations  and cash flow for the periods indicated in conformity with GAAP applied on a basis  consistent with prior years (except for changes with which the Borrower’s Accountants  shall concur and that shall have been disclosed in the notes to the Financial Statements)  and (B) the examination by the  Borrower’s Accountants in connection with such  Consolidated Financial Statements has been made in accordance with generally accepted  auditing standards.  (iii) Compliance Certificate. Together with each delivery of any  financial statement pursuant to clause (i) or (ii) above, a certificate of a Responsible  Officer of the U.S. Borrower (each, a “Compliance Certificate”) (A) showing in  reasonable detail the calculations used in determining the Leverage Ratio and Interest  Coverage Ratio and demonstrating compliance with each of the financial covenants  contained in Section 6.01 that is tested on a quarterly basis, and (B) stating that no  Default or Event of Default has occurred and is continuing or, if a Default or an Event of  Default has occurred and is continuing, stating the nature thereof and the action that the  U.S. Borrower proposes to take with respect thereto.  (b) Default Notices.    (i) As soon as practicable, and in any event within five Business  Days after a Responsible Officer of any Borrower has actual knowledge of the existence  of any Default, Event of Default or other event having had a Material Adverse Effect or  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   82    having any reasonable likelihood of causing or resulting in a Material Adverse Change,  the U.S. Borrower shall give the Administrative Agent notice specifying the nature of  such Default or Event of Default or other event, including the anticipated effect thereof,  which notice shall be in writing ; and  (ii) As soon as practicable, and in any event within five Business  Days after a Responsible Officer of any of the U.S. Borrower or any of its Material  Subsidiaries has actual knowledge of the existence of any default under any Indebtedness  of the U.S. Borrower or any such Subsidiary which is outstanding in a principal amount  of at least $50,000,000 in the aggregate (but excluding Indebtedness evidenced by the  Notes), the U.S. Borrower shall give the Administrative Agent notice specifying the  nature of such default, including the anticipated effect thereof, which notice shall be in  writing.  (c) Litigation.  Promptly after the commencement thereof, the U.S.  Borrower shall give the Administrative Agent written notice of the commencement of all actions,  suits and proceedings before any domestic or foreign Governmental Authority or arbitrator,  affecting the U.S. Borrower or any of its Material Subsidiaries that (i) seeks injunctive or similar  relief that, if granted, would reasonably be expected to have a Material Adverse Effect or (ii) in  the reasonable judgment of the U.S. Borrower or such Material Subsidiary, exposes the U.S.  Borrower or such Material Subsidiary to liability that, if adversely determined, would reasonably  be expected to have a Material Adverse Effect.  (d) SEC Filings; Press Releases.  Promptly after the sending or filing  thereof, the U.S. Borrower shall send the Administrative Agent copies, electronic or otherwise, of  (i) all reports that the U.S. Borrower sends to its security holders generally, (ii) all reports and  registration statements that the U.S. Borrower or any of its Material Subsidiaries files with the  SEC or any national or foreign securities exchange or the National Association of Securities  Dealers, Inc., (iii) all financial and other material press releases and (iv) all other statements  concerning material changes or developments in the business of any Borrower made available by  any Borrower to the public or any other creditor.  (e) ERISA Matters.  The U.S. Borrower shall furnish the Administrative  Agent (with sufficient copies for each of the Lenders or in electronic, readable and duplicable  form) each of the following:  (i) promptly and in any event within 30 days after the U.S.  Borrower or any ERISA Affiliate knows or should reasonably know that any ERISA  Event with respect to the U.S. Borrower has occurred, a statement of a principal financial  officer of the U.S. Borrower describing such ERISA Event and the action, if any, which  the U.S. Borrower or such ERISA Affiliate proposes to take with respect thereto;   (ii) promptly and in any event within 10 Business Days after receipt  thereof by the U.S. Borrower or any ERISA Affiliate, copies of each notice from the  PBGC stating its intention to terminate any Plan or to have a trustee appointed to  administer any Plan where such action would have a Material Adverse Effect;   (iii) promptly and in any event within 20 Business Days after receipt  thereof by the U.S. Borrower or any ERISA Affiliate from the sponsor of a  Multiemployer Plan, a copy of each notice received by the U.S. Borrower or any ERISA  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   83    Affiliate (1) that it has incurred a Withdrawal Liability to a Multiemployer Plan, (2) of  being insolvent or in endangered or critical status or termination, within the meaning of  Title IV of ERISA, of any Multiemployer Plan or (3) the amount of liability incurred, or  which may be incurred, by the U.S. Borrower or any ERISA Affiliate in connection with  any event described in clause (1) or (2) above.  (f) Other Information.  The U.S. Borrower shall provide the Administrative  Agent and each requesting Lender with such other information with respect to the business,  properties, condition, financial or otherwise, or operations of the U.S. Borrower or any of its  Subsidiaries as the Administrative Agent or such Lender through the Administrative Agent may  from time to time reasonably request.  (g) Deemed Delivery. Information required to be delivered pursuant to  Section 6.02(a) or (d) above shall be deemed to have been delivered if such information, or one or  more annual or quarterly reports containing such information, shall have been posted by the  Administrative Agent on DebtDomain, IntraLinks, SyndTrak or a similar site to which the  Lenders have been granted access or such reports shall be available on the website of the SEC at  http://www.sec.gov or on the U.S. Borrower’s website at http://www.fmc.com.  SECTION 6.03.  Affirmative Covenants.  So long as any obligations under this  Agreement or any Note shall remain unpaid, any Letter of Credit shall be outstanding or any  Lender shall have any Commitment hereunder, the U.S. Borrower agrees with the Administrative  Agent to each of the following, unless the Required Lenders shall otherwise consent in writing:  (a) Preservation of Corporate Existence, Etc.  The U.S. Borrower shall, and  shall cause each of its Material Subsidiaries to, preserve and maintain its legal existence, rights  (charter and statutory) and franchises, except as permitted by Section 6.04(b).  (b) Compliance with Laws, Etc.  The U.S. Borrower shall, and shall cause  each of its Subsidiaries to, comply with all applicable Requirements of Law, Contractual  Obligations and Permits, including ERISA and Environmental Laws, except where the failure so  to comply would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.  (c) Conduct of Business.  The U.S. Borrower shall, and shall cause each of  its Subsidiaries to, (a) conduct its business in the ordinary course consistent with past practice and  (b) use its reasonable efforts, in the ordinary course and consistent with past practice, to preserve  its business and the goodwill and business of the customers, advertisers, suppliers and others  having business relations with the U.S. Borrower or any of its Subsidiaries, except in each case  where the failure to comply with the covenants in each of clauses (a) and (b) above would not, in  the aggregate, reasonably be expected to have a Material Adverse Effect.  (d) Payment of Taxes, Etc.  The U.S. Borrower shall, and shall cause each of  its Material Subsidiaries to, pay and discharge before the same shall become delinquent, all U.S.  federal taxes and all other material and lawful governmental claims, taxes, assessments, charges  and levies, except where contested in good faith, by proper proceedings and adequate reserves  therefor have been established on the books of the U.S. Borrower or the appropriate Subsidiary in  conformity with GAAP or locally applicable accounting principles.  (e) Maintenance of Insurance.  The U.S. Borrower shall maintain for itself,  and cause to be maintained for each of its Material Subsidiaries, insurance with responsible and  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   84    reputable insurance companies or associations in such amounts (subject to customary retentions  and deductibles) and covering such risks as is usually carried by companies engaged in similar  businesses and owning similar properties in the same general areas in which the U.S. Borrower or  such Subsidiary operates.  (f) Access.  The U.S. Borrower shall from time to time permit the  Administrative Agent and the Lenders, or any agents or representatives thereof, within two  Business Days after written notification of the same (except that during the continuance of an  Event of Default, no such notice shall be required) to (i) examine and make copies of and  abstracts from the records and books of account of the U.S. Borrower and each of its Material  Subsidiaries, (ii) visit the properties of the U.S. Borrower and each of its Material Subsidiaries,  (iii) discuss the affairs, finances and accounts of the U.S. Borrower and each of its Material  Subsidiaries with any of their respective officers or directors and (iv) communicate directly with  any of its certified public accountants (including the Borrowers’ Accountants).  The U.S.  Borrower shall authorize its certified public accountants (including the Borrowers’ Accountants)  to disclose to the Administrative Agent or any Lender any and all financial statements and other  information of any kind, as the Administrative Agent or any Lender reasonably requests from the  U.S. Borrower and that such accountants may have with respect to the business, financial  condition, results of operations or other affairs of the U.S. Borrower or any of its Material  Subsidiaries; provided that any such disclosures shall be considered Confidential Information  governed by Section 9.11 hereof.  (g) Keeping of Books.  The U.S. Borrower shall, and shall cause each of its  Material Subsidiaries to, keep proper books of record and account, in which full and correct  entries shall be made in conformity with GAAP of all financial transactions and the assets and  business of the U.S. Borrower and each such Material Subsidiary.  (h) Maintenance of Properties, Etc.  The U.S. Borrower shall, and shall  cause each of its Material Subsidiaries to, maintain and preserve (a) in good working order and  condition all of its properties necessary in the conduct of its business, (b) all rights, permits,  licenses, approvals and privileges (including all Permits) used or useful or necessary in the  conduct of its business and (c) all registered patents, trademarks, trade names, copyrights and  service marks with respect to its business, except where failure to so maintain and preserve the  items set forth in clauses (a), (b) and (c) above would not, in the aggregate, reasonably be  expected to have a Material Adverse Effect.  (i) Application of Proceeds.  The entire amount of the Letters of Credit or  the proceeds of the Loans shall be used by the Borrowers for general corporate purposes.  (j) Environmental.  The U.S. Borrower shall, and shall cause all of its  Material Subsidiaries to, comply in all material respects with Environmental Laws and, without  limiting the foregoing, the U.S. Borrower shall, at its sole cost and expense, upon receipt of any  notification or otherwise obtaining knowledge of any Release or other event that has any  reasonable likelihood of the U.S. Borrower and its Material Subsidiaries incurring material  Environmental Liabilities and Costs, (a) conduct or pay for consultants to conduct, such tests or  assessments of environmental conditions at such operations or properties as the U.S. Borrower  deems appropriate under the circumstances and (b) take such Remedial Action and undertake  such investigation or other action as required by Environmental Laws or as any Governmental  Authority requires or as is appropriate and consistent with good business practice to address the  Release or event and otherwise ensure compliance with Environmental Laws.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   85    (k) Sanctions, etc.  Each Borrower will maintain in effect and enforce  policies and procedures designed to ensure compliance by such Borrower, its Subsidiaries and  their respective directors, officers, employees, brokers and agents with Anti-Corruption Laws,  Anti-Money Laundering Laws and applicable Sanctions.  SECTION 6.04.   Negative Covenants.  So long as any obligations under  this Agreement or any Note shall remain unpaid, any Letter of Credit shall be outstanding or any  Lender shall have any Commitment hereunder, the U.S. Borrower agrees with the Administrative  Agent to each of the following, unless the Required Lenders shall otherwise consent in writing:  (a) Liens, Etc.  The U.S. Borrower shall not, and shall not permit any of its  Material Subsidiaries to, create or suffer to exist, any Lien upon or with respect to any of their  respective properties or assets, whether now owned or hereafter acquired, or assign, or permit any  of its Subsidiaries to assign, any right to receive income, except for the following:  (i) Liens existing on the date of this Agreement and disclosed on  Schedule 6.04(a) (Existing Liens);  (ii) Customary Permitted Liens of the U.S. Borrower and the U.S.  Borrower’s Material Subsidiaries;  (iii) purchase money Liens granted by the U.S. Borrower or any  Material Subsidiary of the U.S. Borrower (including Liens arising pursuant to Capital  Leases and purchase money mortgages or security interests securing Indebtedness  representing or financing the purchase price of equipment (or improvements to existing  equipment) acquired by the U.S. Borrower or any Material Subsidiary of the U.S.  Borrower) and limited in each case to the property purchased with the proceeds of such  purchase money Indebtedness or subject to such Capital Lease;  (iv) any Lien securing the renewal, extension, refinancing or  refunding of any Indebtedness secured by any Lien permitted by clause (i) or (iii) above  or this clause (iv) without any change in the assets subject to such Lien;  (v) Liens in favor of lessors securing operating leases permitted  hereunder;  (vi) Liens on any tangible or intangible asset or property of a Foreign  Subsidiary securing the Foreign Credit Lines of such Foreign Subsidiary or a refinancing  thereof;   (vii) Liens created in connection with a Receivables Transaction;  provided however, that the aggregate outstanding amount of all Indebtedness secured by  such Liens created pursuant to this clause (vii) does not exceed $750,000,000;   (viii) [reserved]; and   (ix) Liens that are not otherwise permitted by the foregoing clauses  of this Section 6.04(a) securing obligations or other liabilities of any Subsidiary; provided  however, that the aggregate outstanding amount of all such obligations and liabilities  shall not exceed $100,000,000 at any time.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   86    (b) Restriction on Fundamental Changes.  The U.S. Borrower shall not, and  shall not permit any of its Material Subsidiaries to:  (i) merge or consolidate with, or  (ii) convey, transfer, lease or otherwise dispose of (whether in one  transaction or a series of transactions) all or substantially all of the property (whether now  owned or hereafter acquired) of the U.S. Borrower and its Subsidiaries, taken as a whole,  to, or  (iii) convey, transfer, lease or otherwise dispose of (whether in one  transaction or a series of transactions, and whether by or pursuant to merger,  consolidation or any other arrangement), any property (whether now owned or hereafter  acquired) essential to the conduct of the business of the U.S. Borrower and its  Subsidiaries, taken as a whole, to,  any Person; provided however, that so long as no Default shall have occurred and then be  continuing or would result therefrom, any Person may merge or consolidate with (A) the  U.S. Borrower, so long as such Borrower is the surviving entity, (B) any other Borrower,  so long as such other Borrower is the surviving entity and (C) any other Material  Subsidiary; provided further, that in the case of clauses (A), (B) and (C), such merger or  consolidation is not otherwise prohibited by this Agreement.  Subject to the foregoing,  and except to the extent otherwise prohibited by this Agreement, the U.S. Borrower may,  directly or indirectly, sell all or a portion of the capital stock or other equity interests of  any Subsidiary (including by way of a merger or consolidation) for fair market value, as  determined in good faith by the U.S. Borrower’s board of directors; provided however,  that if such Subsidiary is also a Euro Borrower, such Subsidiary ceases to be a Euro  Borrower, as applicable, immediately prior to such sale and all Obligations of such  Subsidiary in its capacity as a Euro Borrower are paid in full prior to the date of such  sale.  (c) Change in Nature of Business.  The U.S. Borrower shall not, and shall  not permit any of its Subsidiaries to, make any material change in the nature or conduct of FMC’s  Business, whether in connection with a transaction permitted by Section 6.04(b) or otherwise.  (d) Modification of Constituent Documents.  The U.S. Borrower shall not,  nor shall it permit any of its Subsidiaries to, amend its Constituent Documents, except for  changes and amendments that would not reasonably be expected to have a Material Adverse  Effect.  (e) Accounting Changes; Fiscal Year.  The U.S. Borrower shall not change  its (a) accounting treatment and reporting practices or tax reporting treatment, except as required  or permitted by GAAP, or (b) Fiscal Year.  (f) Margin Regulations.  The U.S. Borrower shall not, and shall not permit  any of its Material Subsidiaries to, use all or any portion of the proceeds of any credit extended  hereunder to purchase or carry margin stock (within the meaning of Regulation U of the Federal  Reserve Board) in contravention of Regulation U of the Federal Reserve Board.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   87    (g) No Speculative Transactions.  The U.S. Borrower shall not, and shall not  permit any of its Subsidiaries to, enter into any Hedging Contract solely for speculative purposes  or other than for the purpose of hedging risks associated with the businesses of the U.S. Borrower  and its Material Subsidiaries, as done in the ordinary course of such businesses.  (h) Compliance with ERISA.  The U.S. Borrower shall not cause or permit  to occur, and shall not permit any of its ERISA Affiliates to cause or permit to occur, (a) an event  that could result in the imposition of a Lien under Section 412 of the Code or Section 302 or 4068  of ERISA or (b) ERISA Events that would have a Material Adverse Effect in the aggregate.  (i) Sanctions, etc.  No Borrower will request any Borrowing or Letter of  Credit, and no Borrower shall use (and such Borrower shall procure that its Subsidiaries and its or  their respective directors, officers, employees, brokers and agents shall not use) the proceeds of  any Borrowing or Letter of Credit (A) in furtherance of an offer, payment, promise to pay, or  authorization of the payment or giving of money, or anything else of value, to any Person in  violation of any Anti-Corruption Laws or Anti-Money Laundering Laws, (B) for the purpose of  funding, financing or facilitating any activities, business or transaction of or with any Sanctioned  Person, or in any Sanctioned Country, except to the extent permissible for a Person required to  comply with Sanctions, or (C) in any other manner that would result in the violation by any  Person of any Sanctions.   ARTICLE VII  EVENTS OF DEFAULT  SECTION 7.01.  Events of Default.  If any of the following events (“Events of  Default”) shall occur and be continuing:  (a) (i) Any Borrower shall fail to pay any principal of any Loan or  Reimbursement Obligation when the same becomes due and payable; or (ii) any Borrower shall  fail to pay any interest on any Loan or Reimbursement Obligation, or any other payment under  any Loan Document, for a period of three Business Days after the same becomes due and  payable; or  (b) Any representation or warranty made or deemed made by any Borrower  herein or by any Borrower (or any of its officers) under or in connection with any Loan  Document shall prove to have been incorrect in any material respect when made or deemed made;  or  (c) The U.S. Borrower shall fail to perform or observe (i) any term, covenant  or agreement contained in Section 6.01, Section 6.02(a) or (b), Section 6.03(a) or (i) or  Section 6.04, or (ii) any other term, covenant or agreement contained in this Agreement on its  part to be performed or observed if the failure to perform or observe such other term, covenant or  agreement shall remain unremedied for 30 days after written notice thereof shall have been given  to the U.S. Borrower by the Administrative Agent or the Required Lenders; or  (d) (i) The U.S. Borrower or any of its Material Subsidiaries shall fail to pay  any principal of or premium or interest on any Indebtedness which is outstanding in a principal  amount of at least $100,000,000 in the aggregate (but excluding Indebtedness evidenced by the  Notes) of the U.S. Borrower or such Subsidiary (as the case may be), when the same becomes due  





 






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 Agent’s 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 “L/C Cash Collateral Account”), and hereby pledges and  assigns and grants to the Administrative Agent on behalf of the Lenders a security interest in the  following collateral (the “L/C Cash Collateral Account Collateral”):  (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 “L/C  Cash Collateral Account Investments”).  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 “L/C Cash Collateral  Account Obligations”) 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 “UCC”) (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 Agent’s 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 days’ 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.  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   92    (g) In furtherance of the grant of the pledge and security interest pursuant to  this Section 7.02, the U.S. Borrower hereby agrees with each Lender and the Administrative  Agent that the U.S. Borrower shall give, execute, deliver, file and/or record any financing  statement, notice, instrument, document, agreement or other papers that may be necessary or  desirable (in the reasonable judgment of the Administrative Agent) to create, preserve, perfect or  validate the security interest granted pursuant hereto or to enable the Administrative Agent to  exercise and enforce its rights hereunder with respect to such pledge and security interests.  ARTICLE VIII  THE ADMINISTRATIVE AGENT  SECTION 8.01.  Authorization and Action.  Each Lender hereby appoints and  authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such  powers under this Agreement as are delegated to the Administrative Agent by the terms hereof,  together with such powers as are reasonably incidental thereto.  As to any matters not expressly  provided for by this Agreement (including, without limitation, enforcement or collection of the  Notes), the Administrative Agent shall not be required to exercise any discretion or take any  action, but shall be required to act or to refrain from acting (and shall be fully protected in so  acting or refraining from acting) upon the instructions of the Required Lenders (or such other  number or percentage of the Lenders as shall be expressly provided for herein or in the other  Loan Documents), and such instructions shall be binding upon all Lenders and all holders of  Notes; provided that the Administrative Agent shall not be required to take any action which  exposes the Administrative Agent to personal liability or which is contrary to this Agreement or  applicable law.  The Administrative Agent agrees to give to each Lender prompt notice of each  notice given to it by any Borrower pursuant to the terms of this Agreement.  SECTION 8.02.  Reliance, Etc.  (a) None of the Agents nor any of their respective directors, officers, agents  or employees shall be liable for any action taken or omitted to be taken by it or them under or in  connection with the Loan Documents, except for its or their own gross negligence or willful  misconduct.  Without limitation of the generality of the foregoing, the Administrative Agent:  (i)  may treat the payee of any Note as the holder thereof until the Administrative Agent receives and  accepts an Assignment and Acceptance entered into by the Lender which is the payee of such  Note, as assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07; (ii) may  consult with legal counsel (including counsel for any Borrower), independent public accountants  and other experts selected by it and shall not be liable for any action taken or omitted to be taken  in good faith by it in accordance with the advice of such counsel, accountants or experts; (iii)  makes no warranty or representation to any Lender and shall not be responsible to any Lender for  any statements, warranties or representations (whether written or oral) made in or in connection  with this Agreement; (iv) shall not have any duty to ascertain or to inquire as to the performance  or observance of any of the terms, covenants or conditions of this Agreement on the part of any  Borrower or to inspect the property (including the books and records) of any Borrower; (v) shall  not be responsible to any Lender for the due execution, legality, validity, enforceability,  genuineness, sufficiency or value of this Agreement or any other instrument or document  furnished pursuant hereto; and (vi) shall incur no liability under or in respect of this Agreement  by acting upon any notice, consent, certificate or other instrument or writing (which may be by  electronic mail, telecopier, telegram, cable or telex) believed by it to be genuine and signed or  sent by the proper party or parties.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   93    (b) The Arrangers, as such, the Co-Documentation Agents, as such, and the  Syndication Agent, as such, each referred to on the cover page hereto, shall have no duties or  obligations whatsoever to the Lenders under or with respect to this Agreement, the Notes or any  other document or any matter related thereto.  SECTION 8.03.  The Agents and their Affiliates as Lenders.  With respect to its  respective Commitment as a Lender, the Loans made by it as a Lender, the Letters of Credit  issued by it as an Issuing Bank and the Notes issued to it as a Lender, each of the Agents party to  this Agreement as Lender and/or Issuing Bank shall have the same rights and powers under this  Agreement as any other Lender in its capacity as a Lender and/or any other Issuing Bank in its  capacity as Issuing Bank and may exercise the same as though it were not an Agent; and the term  “Lender” or “Lenders” shall, unless otherwise expressly indicated, include each Agent in its  individual capacity as a Lender and/or an Issuing Bank.  Each Agent, in its individual capacity as  a Lender and/or an Issuing Bank, and its affiliates may accept deposits from, lend money to, act  as trustee under indentures of, and generally engage in any kind of business with, any Borrower,  any of its Subsidiaries and any Person who may do business with or own securities of any  Borrower or any such Subsidiary, all as if the such Agent were not an Agent under this  Agreement and without any duty to account therefor to the Lenders.  SECTION 8.04.  Lender Credit Decision.  Each Lender acknowledges that it has,  independently and without reliance upon any Agent, any Arranger or any other Lender and based  on the financial statements referred to in Section 5.03 and such other documents and information  as it has deemed appropriate, made its own credit analysis and decision to enter into this  Agreement.  Each Lender also acknowledges that it will, independently and without reliance upon  any Agent, any Arranger or any other Lender and based on such documents and information as it  shall deem appropriate at the time, continue to make its own credit decisions in taking or not  taking action under this Agreement.  SECTION 8.05.  Indemnification.  The Lenders severally agree to indemnify the  Administrative Agent, each Issuing Bank and each Swing Loan Lender (in each case to the extent  the U.S. Borrower fails to pay the same pursuant to Section 9.04(b) or otherwise), ratably  according to their respective pro rata  share, from and against any and all claims, damages, losses,  liabilities and expenses of any kind or nature whatsoever which may be imposed on, incurred by,  or asserted against such Person in any way relating to or arising out of this Agreement or any  action taken or omitted by such Person under this Agreement in its respective capacity as an agent  hereunder, provided that no Lender shall be liable for any portion of such liabilities, obligations,  losses, damages, actions, judgments, suits, costs, expenses or disbursements resulting from the  gross negligence or willful misconduct of the Administrative Agent, such Issuing Bank or such  Swing Loan Lender, as applicable.  Without limitation of the foregoing, each Lender agrees to  reimburse the Administrative Agent promptly upon demand for its ratable share of any  out-of-pocket expenses (including fees and expenses of counsel but excluding normal  administrative expenses expressly excluded under Section 9.04(a)) incurred by the Administrative  Agent in connection with the preparation, execution, delivery, administration, modification,  amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or  legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the  Administrative Agent is not reimbursed for such expenses by the U.S. Borrower as required under  Section 9.04(a).  SECTION 8.06.   Successor Administrative Agent.  The Administrative  Agent may resign at any time by giving written notice thereof to the Lenders and the U.S.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   94    Borrower and may be removed at any time with or without cause by the Required Lenders.  Upon  any such resignation or removal, the Required Lenders shall have the right to appoint a successor  Administrative Agent with the consent of the U.S. Borrower, which consent shall not be  unreasonably withheld.  If no successor Administrative Agent shall have been so appointed by the  Required Lenders, and shall have accepted such appointment, within 30 days after the retiring  Administrative Agent’s giving of notice of resignation or the Required Lenders’ removal of the  retiring Administrative Agent, then the retiring Administrative Agent may, on behalf of the  Lenders appoint a successor Administrative Agent, which shall be an Eligible Assignee and a  commercial bank organized under the laws of the United States of America or of any State  thereof and having a combined capital and surplus of at least $50,000,000.  Upon the acceptance  of any appointment as Administrative Agent hereunder by a successor Administrative Agent,  such successor Administrative Agent shall thereupon succeed to and become vested with all the  rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring  Administrative Agent shall be discharged from its duties and obligations under this Agreement.   After any retiring Administrative Agent’s resignation or removal hereunder as Administrative  Agent, the provisions of this Article VIII (The Administrative Agent) shall inure to its benefit as  to any actions taken or omitted to be taken by it while it was Administrative Agent under this  Agreement.  SECTION 8.07.  No Other Duties, Etc.  Anything herein to the contrary  notwithstanding, none of the Arrangers, the Co-Documentation Agents or the Syndication Agent  listed on the cover page hereof shall have any powers, duties or responsibilities under this  Agreement or any of the other Loan Documents, except in its capacity, as applicable, as a Lender  hereunder.  SECTION 8.08.  Incorrect Payment.  (a) If the Administrative Agent (x) notifies a Lender or any Person who has  received funds on behalf of a Lender (any such Lender or other recipient, a “Payment Recipient”)  that the Administrative Agent has determined in its sole discretion (whether or not after receipt of  any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice  from the Administrative Agent) received by such Payment Recipient from the Administrative  Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise  erroneously or mistakenly received by, such Payment Recipient (whether or not known to such  Lender or other Payment Recipient on its behalf) (any such funds, whether  transmitted or  received as a payment, prepayment or repayment of principal, interest, fees, distribution or  otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the  return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all  times remain the property of the Administrative Agent pending its return or repayment as  contemplated below in this Section 8.08 and held in trust for the benefit of the Administrative  Agent, and such Lender shall (or, with respect to any Payment Recipient who received such funds  on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two  Business Days thereafter (or such later date as the Administrative Agent may, in its sole  discretion, specify in writing), return to the Administrative Agent the amount of any such  Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds  (in the currency so received), together with interest thereon (except to the extent waived in  writing by the Administrative Agent) in respect of each day from and including the date such  Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such  amount is repaid to the Administrative Agent in same day funds at the greater of the Federal  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   95    Funds Rate and a rate determined by the Administrative Agent in accordance with banking  industry rules on interbank compensation from time to time in effect. A notice of the  Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent  manifest error.  (b) Without limiting immediately preceding clause (a), each Lender or any  Person who has received funds on behalf of a Lender, agrees that if it receives a payment,  prepayment or repayment (whether received as a payment, prepayment or repayment of principal,  interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates)  (x) that is in a different amount than, or on a different date from, that specified in this Agreement  or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of  its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded  or accompanied by a notice of payment, prepayment or repayment sent by the Administrative  Agent (or any of its Affiliates), or (z) that such Lender or other such recipient, otherwise becomes  aware was transmitted, or received, in error or by mistake (in whole or in part), then in each such  case:  (i) it acknowledges and agrees that (A) in the case of immediately  preceding clauses (x) or (y), an error and mistake shall be presumed to have been made  (absent written confirmation from the Administrative Agent to the contrary) or (B) an  error and mistake has been made (in the case of immediately preceding clause (z)), in  each case, with respect to such payment, prepayment or repayment; and  (ii) such Lender shall (and shall cause any other recipient that  receives funds on its respective behalf to) promptly (and, in all events, within one  Business Day of its knowledge of the occurrence of any of the circumstances described in  immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its  receipt of such payment, prepayment or repayment, the details thereof (in reasonable  detail) and that it is so notifying the Administrative Agent pursuant to this Section  8.08(b).  For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent  pursuant to this Section 8.08(b) shall not have any effect on a Payment Recipient’s  obligations pursuant to Section 8.08(a) or on whether or not an Erroneous Payment has  been made.  (c) Each Lender hereby authorizes the Administrative Agent to set off, net  and apply any and all amounts at any time owing to such Lender under any Loan Document, or  otherwise payable or distributable by the Administrative Agent to such Lender under any Loan  Document with respect to any payment of principal, interest, fees or other amounts, against any  amount that the Administrative Agent has demanded to be returned under immediately preceding  clause (a).  (d) (i) In the event that an Erroneous Payment (or portion thereof) is not  recovered by the Administrative Agent for any reason, after demand therefor in accordance with  immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or  portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or  portion thereof) on its respective behalf)  (such unrecovered amount, an “Erroneous Payment  Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time, then  effective immediately (with the consideration therefor being acknowledged by the parties hereto),  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   96    (A) such Lender shall be deemed to have assigned its Loans (but not its Commitments) with  respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”)  in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the  Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the  Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a  cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the  assignment fee to be waived by the Administrative Agent in such instance)), and is hereby  (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or,  to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference  pursuant to a Platform as to which the Administrative Agent and such parties are participants)  with respect to such Erroneous Payment Deficiency Assignment, and such Lender  shall deliver  any Notes evidencing such Loans to the U.S. Borrower or the Administrative Agent (but the  failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing  assignment), (B) the Administrative Agent as the assignee Lender shall be deemed to have  acquired the Erroneous Payment Deficiency Assignment, (C) upon such deemed acquisition, the  Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder  with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall  cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment  Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the  indemnification provisions of this Agreement and its applicable Commitments which shall  survive as to such assigning Lender, (D) the Administrative Agent and the Borrowers shall each  be deemed to have waived any consents required under this Agreement to any such Erroneous  Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its  ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. For the  avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments  of any Lender and such Commitments shall remain available in accordance with the terms of this  Agreement.  (ii) Subject to Section 9.07 (but excluding, in all events, any  assignment consent or approval requirements (whether from the U.S. Borrower or  otherwise)), the Administrative Agent may, in its discretion, sell any Loans acquired  pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the  proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable  Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof),  and the Administrative Agent shall retain all other rights, remedies and claims against  such Lender (and/or against any recipient that receives funds on its respective behalf). In  addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x)  shall be reduced by the proceeds of prepayments or repayments of principal and interest,  or other distribution in respect of principal and interest, received by the Administrative  Agent on or with respect to any such Loans acquired from such Lender pursuant to an  Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then  owned by the Administrative Agent) and (y) may, in the sole discretion of the  Administrative Agent, be reduced by any amount specified by the Administrative Agent  in writing to the applicable Lender from time to time.  (e) The parties hereto agree that (x) irrespective of whether the  Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or  portion thereof) is not recovered from any Payment Recipient that has received such Erroneous  Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   97    the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient  who has received funds on behalf of a Lender to the rights and interests of such Lender) under the  Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”)  (provided that any Borrower’s Obligations under the Loan Documents in respect of the Erroneous  Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that  have been assigned to the Administrative Agent under an Erroneous Payment Deficiency  Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise  satisfy any Obligations owed by any Borrower; provided that this Section 8.08(e) shall not be  interpreted to increase (or accelerate the due date for), or have the effect of increasing (or  accelerating the due date for), the Obligations of any Borrower relative to the amount (and/or  timing for payment) of the Obligations that would have been payable had such Erroneous  Payment not been made by the Administrative Agent; provided, further, that for the avoidance of  doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous  Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised  of funds received by the Administrative Agent from the Borrowers for the purpose of making  such Erroneous Payment.   (f) To the extent permitted by applicable law, no Payment Recipient shall  assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive,  any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand,  claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment  received, including, without limitation, any defense based on “discharge for value” or any similar  doctrine.  (g) Each party’s obligations, agreements and waivers under this Section 8.08  shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or  obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the  repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan  Document.  ARTICLE IX  MISCELLANEOUS  SECTION 9.01.  Amendments, Etc.  Except as otherwise expressly set forth in  this Agreement (including Section 2.18), no amendment or waiver of any provision of this  Agreement or the Notes, nor consent to any departure by any Borrower therefrom, shall in any  event be effective unless the same shall be in writing and signed by the Required Lenders, and  then such waiver or consent shall be effective only in the specific instance and for the specific  purpose for which given; provided however, that no amendment, waiver or consent shall, unless  in writing and signed by all the Lenders, do any of the following:  (a) waive any of the conditions  specified in Section 4.01 or 4.02, (b) reduce any fees or other amounts payable hereunder, (c)  postpone any date fixed for any payment of any fees or other amounts payable hereunder, (d)  change the percentage of the Commitments or of the aggregate unpaid principal amount of the  Loans, or the number of Lenders, which shall be required for the Lenders or any of them to take  any action hereunder, (e) release the Guaranty set forth in Article X (Guaranty) or (f) amend this  Section 9.01 or any other Section of this Agreement, the effect of which amendment is to alter the  pro rata sharing of payments or pro rata funding required thereby; and provided further that (1) no  amendment, waiver or consent shall affect the rights or duties of the Administrative Agent, and  any Issuing Bank or any Swing Loan Lender, as the case may be, under this Agreement or any  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   98    Note, unless such amendment, waiver or consent is in writing and signed by the Administrative  Agent, such Issuing Bank or such Swing Loan Lender, as the case may be, in addition to the  Lenders required above to take such action, (2) subject to the provisions of Sections 2.06 and  2.15, no amendment, waiver or consent shall reduce the principal of, or interest on, the Revolving  Loans or Notes or postpone any date fixed for any payment of principal of, or interest on, the  Revolving Loans or Notes, unless in each case signed by all of the Lenders, (3) no amendment,  waiver or consent shall reduce the principal of, or interest on, the Swing Loans or postpone any  date fixed for any payment of principal of, or interest on, the Swing Loans, unless in each case  signed by all of the affected Swing Loan Lenders, (4)  no amendment, waiver or consent shall  reduce the principal of, or interest on, the Letter of Credit Loans or postpone any date fixed for  any payment of principal of, or interest on, the Letter of Credit Loans, unless in each case signed  by each affected Lender, (5) subject to the provisions of Sections 2.06 and 2.15, no amendment,  waiver or consent shall extend the Termination Date of the Commitment or increase the  Commitment of any Lender or subject any Lender to any additional obligations, unless signed by  such Lender and (6) no amendment, waiver or consent shall be made to Section 2.04, unless  signed by each Lender affected by such amendment, waiver or consent.  Anything herein to the contrary notwithstanding, during such period as a Lender  is a Defaulting Lender, to the fullest extent permitted by applicable law, such Defaulting Lender  will not be entitled to vote in respect of amendments and waivers hereunder and the Commitment  and the outstanding Loans or other extensions of credit of such Lender hereunder will not be  taken into account in determining whether the Required Lenders or all of the Lenders, as  required, have approved any such amendment or waiver (and the definition of “Required  Lenders” will automatically be deemed modified accordingly for the duration of such period);  provided that any such amendment or waiver that would increase or extend the term of the  Commitment of such Defaulting Lender, extend the date fixed for the payment of principal or  interest owing to such Defaulting Lender hereunder, reduce the principal amount of any  obligation owing to such Defaulting Lender, reduce the amount of or the rate or amount of  interest on any amount owing to such Defaulting Lender or of any fee payable to such Defaulting  Lender hereunder, or alter the terms of this proviso, will require the consent of such Defaulting  Lender.  SECTION 9.02.  Notices, Etc.    (a) All notices and other communications provided for hereunder shall be in  writing (including telecopy communication) and mailed, telegraphed, telecopied, telexed, cabled  or delivered as follows:  (i) if to the U.S. Borrower:   FMC Corporation  FMC Tower at Cira Centre South  2929 Walnut Street  Philadelphia, PA 19104,   Attention: Brian Blair                   Vice President and Treasurer  E-Mail Address: fmc_treasurer@fmc.com     with a copy to:    FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   99    Morgan, Lewis & Bockius LLP  1701 Market Street  Philadelphia, Pennsylvania 19103  Attention: Andrew T. Budreika  Fax Number: (215) 963-5001  E-Mail Address: andrew.budreika@morganlewis.com     (ii)  if to the Administrative Agent:  Citibank, N.A.  One Penns Way  Ops II, Floor 2  New Castle, DE 19720  Attention: Bank Loan Syndications Department  Fax Number: (646) 274-5080  E-Mail Address: AgencyABTFSupport@citi.com with a copy to  GLAgentOfficeOps@citi.com   E-Mail Address: oploanswebadmin@citi.com (for materials required to  be delivered pursuant to Section 6.02(a))    with a copy to:    388 Greenwich Street  New York, NY 10013  Attention: David Jaffe   Telephone: (212) 816-4880   Facsimile: (646) 291-1029   Email: david.jaffe@citi.com      (iii) if to a Swing Loan Lender, at the applicable address set forth  below and with a copy to the Administrative Agent:  Citibank, N.A.  One Penns Way  Ops II, Floor 2  New Castle, DE 19720   Attention: Bank Loan Syndications Department  Fax Number: (646) 274-5080  E-Mail Address: AgencyABTFSupport@citi.com with a copy to  GLAgentOfficeOps@citi.com     or    Bank of America, N.A.   One Bryant Park  New York, NY 20036  Fax Number: (312) 453-6948  Email Address: Bank_of_America_As_Lender_3@bofa.com   





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   100    (iv) if to a Lender, to it at its address (or email or telecopy number)  set forth in the applicable administrative questionnaire or in the applicable Acceptance.  Any party may subsequently change its notice address by a  written notice to the other parties as herein provided.  All such notices and  communications shall, (a) when mailed, be effective three Business Days after the same  is deposited in the mails, (b) when mailed for next day delivery by a reputable freight  company or reputable overnight courier service, be effective one Business Day thereafter,  and (c) when sent by telegraph, telecopy, telex or cable, be effective when the same is  telegraphed, telecopied and receipt thereof is confirmed by telephone or return telecopy,  confirmed by telex answerback or delivered to the cable company, respectively, except  that notices and communications to the Administrative Agent pursuant to Article II  (Amounts and Terms of Loans), III (Making the Loans and Issuing the Letters of Credit)  or VIII (The Administrative Agent) shall not be effective until received by the  Administrative Agent.  (b) Electronic Communications.  (i) Delivery of Communications by the U.S. Borrower.  The U.S.  Borrower (on behalf of itself and on behalf of each Borrower) agrees that, unless  otherwise requested by the Administrative Agent, it will provide to the Administrative  Agent all information, documents and other materials that it is obligated to furnish to the  Administrative Agent pursuant to this Agreement and the other Loan Documents,  including, without limitation, all notices, requests, financial statements, financial and  other reports, certificates and other information materials, but excluding any such  communication that (A) relates to a request for a new, or a Conversion of an existing,  Borrowing (including any election of an interest rate or Interest Period relating thereto),  (B) relates to the payment of any principal or other amount due under this Agreement  prior to the scheduled date therefor, (C) provides notice of any Default or Event of  Default under this Agreement, (D) is required to be delivered to satisfy any condition  precedent in Article IV (Conditions of Lending) relating to the effectiveness of this  Agreement and/or any Borrowing or (E) initiates or responds to legal process (all such  non-excluded information being referred to herein collectively as the  “Communications”), by transmitting the Communications in an electronic/soft medium  (provided such Communications contain any required signatures) in a format acceptable  to the Administrative Agent to the email address specified in Section 9.02(a) above or  such other e-mail address designated by the Administrative Agent from time to time.  (ii) Use of Web Platforms.  Each party hereto agrees that the  Administrative Agent may make the Communications available to the Lenders by posting  the Communications on DebtDomain, IntraLinks, SyndTrak or another similar website, if  any, to which each Lender and the Administrative Agent have access (the “Platform”).   Nothing in this Section 9.02 shall prejudice the right of the Administrative Agent to make  the Communications available to the Lenders in any other manner specified in this  Agreement.  (iii) E-mail Notification to Lenders.  Each Lender agrees that e-mail  notice to it (at the address provided pursuant to the next sentence and deemed delivered  as provided in the next paragraph) specifying that Communications have been posted to  the Platform shall constitute effective delivery of such Communications to such Lender  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   101    for purposes of this Agreement.  Each Lender agrees (i) to notify the Administrative  Agent in writing (including by electronic communication) from time to time to ensure  that the Administrative Agent has on record an effective e-mail address for such Lender  to which the foregoing notice may be sent by electronic transmission, and (ii) that the  foregoing notice may be sent to such e-mail address.  (iv) Presumption as to Delivery of E-Mail.  Each party agrees that  any electronic communication referred to in this Section 9.02 shall be deemed delivered  upon the posting of a record of such communication as “received” in the e-mail system of  the recipient; provided that if such communication is not so received during normal  business hours, such communication shall be deemed delivered at the opening of business  on the next Business Day.  (v) Waiver of Responsibility.  Each party acknowledges that (A) the  distribution of material through an electronic medium is not necessarily secure and that  there are confidentiality and other risks associated with such distribution, (B) the  Communications and the Platform are provided “as is” and “as available,” (C) none of  the Administrative Agent, its affiliates or any of their respective officers, directors,  employees, agents, advisors or representatives (collectively, the “Citigroup Parties”)  warrants the adequacy, accuracy or completeness of the Communications or the Platform,  and each Citigroup Party expressly disclaims liability for errors or omissions in any  Communications or the Platform, and (D) no warranty of any kind, express, implied or  statutory, including, without limitation, any warranty of merchantability, fitness for a  particular purpose, non-infringement of third party rights or freedom from viruses or  other code defects, is made by any Citigroup Party in connection with any  Communications or the Platform.  (vi) Limitation on use of Platform.  Notwithstanding the foregoing, if  the U.S. Borrower has any reason to believe that either the confidentiality of the  Platform, the confidentiality of electronic transmissions to the Administrative Agent, or  the integrity of Communications posted on the Platform has, may have or may in the  future be compromised, then the U.S. Borrower may upon notice to the Administrative  Agent delivered in any manner permitted under this Agreement, either (1) suspend its  obligation hereunder to transmit Communications to the Administrative Agent by  electronic/soft medium, (2) instruct the Administrative Agent not to transmit to the  Platform any as yet un-posted Communications, and/or (3) instruct the Administrative  Agent to take commercially reasonable steps to remove any currently posted  Communications from the Platform.  In the event that the use of the Platform should be  suspended due to any of the circumstances described in this paragraph, the U.S. Borrower  agrees to deliver the Communications to each Lender via e-mail.  The Lenders agree that  the delivery of the Communications via e-mail shall be deemed effective upon the  posting of a record of such electronic transmission as “sent” in the e-mail system of the  U.S. Borrower.  The Administrative Agent agrees to immediately inform the U.S.  Borrower of any security issue or Communications integrity issue that comes to its  attention and relates to the Platform or the Administrative Agent’s receipt of electronic  Communications.  SECTION 9.03.  No Waiver; Remedies.  No failure on the part of any Lender the  Administrative Agent to exercise, and no delay in exercising, any right hereunder or under any  Note shall operate as a waiver thereof; nor shall any single or partial exercise of any such right  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   102    preclude any other or further exercise thereof or the exercise of any other right.  The remedies  herein provided are cumulative and not exclusive of any remedies provided by law.  SECTION 9.04.  Costs and Expenses.    (a) The U.S. Borrower agrees to pay, whether or not any of the transactions  contemplated hereby are consummated, on demand (x) all reasonable costs and expenses in  connection with the preparation (excluding normal travel and related expenses incurred by the  personnel of the Administrative Agent), execution, delivery, administration (excluding those  which are customarily borne by the Administrative Agent), modification and amendment of this  Agreement, the Notes and the other documents to be delivered hereunder, and (y) the reasonable  fees and expenses of counsel to the Administrative Agent and with respect to advising the  Administrative Agent as to its rights and responsibilities under this Agreement.  The U.S.  Borrower further agrees to pay on demand all reasonable expenses of the Lenders (including,  without limitation, reasonable fees and expenses of counsel (including, without duplication,  internal counsel)) in connection with the enforcement (whether through negotiations, legal  proceedings or otherwise) of this Agreement, the Notes and the other documents to be delivered  hereunder, including, without limitation, reasonable counsel fees and expenses in connection with  the enforcement of rights under this Section 9.04(a).  (b) Each Borrower agrees to indemnify and hold harmless the  Administrative Agent, each Lender and each of their Affiliates and their officers, directors,  employees, agents and advisors (each, an “Indemnified Party”) from and against any and all  claims, damages, penalties, losses, liabilities and expenses (including, without limitation,  reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against  any Indemnified Party in its agent or lending capacity under, or otherwise in connection with, the  Loan Documents, in each case arising out of or in connection with or by reason of, or in  connection with the preparation for a defense of, any investigation, litigation or proceeding  arising out of, related to or in connection with the Loan Documents, the proposed or actual use of  the proceeds therefrom or any of the other transactions contemplated thereby, whether or not such  investigation, litigation or proceeding is brought by a Borrower, its shareholders or creditors or an  Indemnified Party or any other person or an Indemnified Party is otherwise a party thereto and  whether or not the transactions contemplated hereby are consummated, except to the extent such  claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court  of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such  Indemnified Party or any of its Related Parties.  Each Borrower also agrees not to assert any  claim against the Administrative Agent, any Lender, any of their Affiliates, or any of their  respective directors, officers, employees, attorneys and agents, on any theory of liability, for  consequential, indirect, special or punitive damages arising out of or otherwise relating to any of  the Loan Documents or any of the transactions contemplated hereby or thereby or the actual or  proposed use of the proceeds of the Loans.  Each of the Lenders and the Administrative Agent  agrees not to assert any claim against the U.S. Borrower, its Affiliates or any of their directors,  officers, employees, attorneys and agents, on any theory of liability, for consequential, indirect,  special or punitive damages arising out of or otherwise relating to any of the Loan Documents or  any of the transactions contemplated hereby or thereby or the actual or proposed use of the  proceeds of the Loans or the Letters of Credit; provided, that such waiver of consequential,  indirect, special or punitive damages shall not limit the indemnification obligations of the  Borrowers under this Section 9.04(b). For purposes of this Section 9.04(b), a “Related Party” of  an Indemnified Party means (i) any controlling Person, controlled Affiliate or Subsidiary of such  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   103    Indemnified Party and (ii) the respective directors, officers or employees of such Indemnified  Party or any of its Subsidiaries, controlled Affiliates or controlling Persons; provided that each  reference to a controlling Person, controlled Affiliate, director, officer or employee in this  sentence pertains to a controlling Person, controlled Affiliate, director, officer or employee  involved in the preparation of the Loan Documents or the other transactions contemplated  thereby.    (c) If (i) any payment of principal of any SOFR Loan or EURIBOR Loan is  made other than on the last day of the Interest Period for such Loan, as a result of a payment  pursuant to Section 2.15(c) or 3.05 or acceleration of the maturity of the Loans pursuant to  Section 7.01 or for any other reason (including as a result of an Event of Default), (ii) the U.S.  Borrower gives notice of a Loan conversion pursuant to Section 2.09(c), or (iii) a SOFR Loan or  EURIBOR Loan is assigned other than on the last day of the Interest Period for such Loan as a  result of a request of a Borrower pursuant to Section 3.08, then the U.S. Borrower shall, upon  demand by any Lender (with a copy of such demand to the Administrative Agent), pay to the  Administrative Agent for the account of such Lender any amounts required to compensate such  Lender for any additional losses, costs or expenses which it may reasonably incur as a result of  such payment, including, without limitation, any loss (excluding loss of anticipated profits), cost  or expense incurred by reason of the liquidation or reemployment of deposits or other funds  acquired (or from any fees payable) by any Lender to fund or maintain such Loan.  (d) Without prejudice to the survival of any other agreement of the U.S.  Borrower or the Lenders hereunder, the agreements and obligations of the U.S. Borrower  contained in Sections 2.12, 3.05 and 9.04, and the agreements and obligations of each Lender  under Section 9.11, and the agreements and obligations of each party hereto under Sections 9.09,  9.12 and 9.13 shall survive the payment in full of principal, interest and all other amounts payable  hereunder and under the Notes.  SECTION 9.05.  Rights of Set-off; Payments Set Aside.    (a) Upon the occurrence and during the continuance of any Event of Default  each Lender and each Affiliate of a Lender is hereby authorized at any time and from time to  time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or  special, time or demand, provisional or final) at any time held and other indebtedness at any time  owing by such Lender or its Affiliates to or for the credit or the account of the U.S. Borrower  against any and all of its obligations under the Loan Documents, of a Euro Borrower against any  and all of such Euro Borrower’s obligations under the Loan Documents or of the Swing Loan  Borrower against any and all of the Swing Loan Borrower’s obligations under the Loan  Documents, in each case, now or hereafter existing whether or not such Lender shall have made  any demand under this Agreement or any other Loan Document and even though such  Obligations may be unmatured; provided that in the event that any Defaulting Lender shall  exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the  Administrative Agent for further application in accordance with the provisions of Section  2.16(a)(iii) and, pending such payment, shall be segregated by such Defaulting Lender from its  other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders,  and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement  describing in reasonable detail the obligations owing to such Defaulting Lender as to which it  exercised such right of setoff. Each Lender agrees promptly to notify the U.S. Borrower after any  such set-off and application made by such Lender or its Affiliates; provided however, that the  failure to give such notice shall not affect the validity of such set-off and application.  The rights  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   104    of each Lender under this Section 9.05 are in addition to the other rights and remedies (including  other rights of set-off) that such Lender may have.  (b) To the extent that the U.S. Borrower makes a payment or payments to  the Administrative Agent or the Lenders or any such Person exercise their rights of setoff, and  such payment or payments or the proceeds of such enforcement or setoff or any part thereof are  subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be  repaid to a trustee, receiver or any other party, then to the extent of such recovery, the obligation  or part thereof originally intended to be satisfied shall be revived and continued in full force and  effect as if such payment had not been made or such enforcement or setoff had not occurred.  SECTION 9.06.  Binding Effect.  This Agreement shall become effective when it  shall have been executed by the U.S. Borrower, the Administrative Agent and each Lender and  thereafter shall be binding upon and inure to the benefit of the Borrowers, the Administrative  Agent and each Lender and their respective successors and assigns, except that no Borrower or  the Guarantor shall have the right to assign its rights or obligations hereunder or any interest  herein without the prior written consent of each Lender.  SECTION 9.07.  Assignments and Participations.   (a) Each Lender may assign to one or more banks or other entities all or a  portion of its rights and obligations under this Agreement (including, without limitation, all or a  portion of its Commitments, the Loans owing to it and the Note or Notes held by it); provided  however, that:  (i) each such assignment shall be of a constant, and not a varying,  percentage of all rights and obligations under this Agreement (other than any Swing  Loans),  (ii) the amount of the Commitments and/or Loans of the assigning  Lender being assigned pursuant to each such assignment other than an assignment to  another Lender (determined as of the date of the Assignment and Acceptance with  respect to such assignment) shall in no event be less than $10,000,000 and shall be an  integral multiple of $1,000,000 in excess thereof,   (iii) each such assignment shall be to an Eligible Assignee, and  (unless such assignment shall be to a Lender, an Affiliate of such Lender, a Subsidiary of  the assigning Lender, or to the bank holding company or a Subsidiary of the bank holding  company of which the assigning Lender is a Subsidiary) the U.S. Borrower, the  Administrative Agent, the Issuing Banks and the Swing Loan Lenders shall have been  notified by the Administrative Agent prior to such assignment and shall have consented  to such assignment (which consents shall not be unreasonably withheld or delayed);  provided that no consent of the U.S. Borrower shall be required if an Event of Default  under Section 7.01(a) or (e) has occurred and is continuing; provided further, that the  consent of the U.S. Borrower shall be deemed to have been received with respect to any  such proposed assignment unless the U.S. Borrower has notified the Administrative  Agent in writing of its objection thereto within 10 Business Days of the U.S. Borrower’s  receipt of written notice thereof, and   FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   105    (iv) the parties to each such assignment shall execute and deliver to  the Administrative Agent, for its acceptance and recording in the Register, an Assignment  and Acceptance, together with any Note or Notes subject to such assignment and a  processing and recordation fee of $3,500 paid by either the assigning Lender or the  assignee; provided that the Administrative Agent may, in its sole discretion, elect to  waive such recordation fee in the case of any such assignment.  Upon such execution, delivery, acceptance and recording, from and after the effective date  specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto  and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such  Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) the  Lender assignor thereunder shall relinquish its rights and be released from its obligations under  this Agreement, to the extent that rights and obligations hereunder have been assigned by it  pursuant to such Assignment and Acceptance.  Notwithstanding anything to the contrary contained herein except for the  conditions set for in clause (iv) of this Section 9.07(a), any Lender (a “Granting Lender”) may  grant to a special purpose funding vehicle (a “SPC”), identified as such in writing from time to  time by the Granting Lender to the Administrative Agent and the U.S. Borrower, the option to  provide to a Borrower all or any part of a Loan that such Granting Lender would otherwise be  obligated to make to such Borrower pursuant to this Agreement; provided that (i) nothing herein  shall constitute a commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise  such option or otherwise fails to provide all or any part of such Advance, the Granting Lender  shall be obligated to make such Loan pursuant to the terms hereof.  The making of a Loan by an  SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if,  such Loan were made by such Granting Lender.  Each party hereto hereby agrees that no SPC  shall be liable for any indemnity or similar payment obligation under this Agreement (all liability  for which shall remain with the Granting Lender).  In furtherance of the foregoing, each party  hereto hereby agrees (which agreement shall survive the termination of this Agreement) that,  prior to the date that is one year and one day after the payment in full of all outstanding  commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any  other person in instituting against, such SPC any bankruptcy, reorganization, arrangement,  insolvency or liquidation proceedings under the laws of the United States or any State thereof.  In  addition, notwithstanding anything to the contrary contained in this Section 9.07 except for the  conditions set forth in clause (iii) of this Section 9.07(a), any SPC may (i) with notice to, but  without the prior written consent of, the U.S. Borrower and the Administrative Agent and without  paying any processing fee therefor, assign all or a portion of its interests in any Loans to the  Granting Lender or to any Eligible Assignee (consented to by the U.S. Borrower and the  Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC  to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non- public information relating to its Loans to any rating agency, commercial paper dealer or provider  of any surety, guarantee or credit or liquidity enhancement to such SPC.  This paragraph may not  be amended without the written consent of the SPC.  (b) By executing and delivering an Assignment and Acceptance, the Lender  assignor thereunder and the assignee thereunder confirm to and agree with each other and the  other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance,  such assigning Lender makes no representation or warranty and assumes no responsibility with  respect to any statements, warranties or representations made in or in connection with this  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   106    Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of  this Agreement or any other instrument or document furnished pursuant hereto; (ii) such  assigning Lender makes no representation or warranty and assumes no responsibility with respect  to the financial condition of any Borrower or the performance or observance by any Borrower of  any of its obligations under this Agreement or any other instrument or document furnished  pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement,  together with copies of the financial statements referred to in Section 5.03 and such other  documents and information as it has deemed appropriate to make its own credit analysis and  decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently  and without reliance upon any Agent, such assigning Lender or any other Lender and based on  such documents and information as it shall deem appropriate at the time, continue to make its  own credit decisions in taking or not taking action under this Agreement; (v) such assignee  confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the  Administrative Agent to take such action as agent on its behalf and to exercise such powers under  this Agreement as are delegated to the Administrative Agent by the terms hereof, together with  such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will  perform in accordance with their terms all of the obligations which by the terms of this  Agreement are required to be performed by it as a Lender.  (c) Each New Lender shall submit a New Commitment Acceptance in  accordance with the provisions of Section 2.06(b).  Upon the execution, delivery, acceptance and  recording of a New Commitment Acceptance, from and after the Increase Date related thereto  such New Lender shall be a party hereto and have the rights and obligations of a Lender  hereunder having the Commitment specified therein (or such lesser Commitment as shall be  allocated to such New Lender in accordance with Section 2.06(b)(vi) or 2.15(d)).  By executing  and delivering a New Commitment Acceptance, the New Lender thereunder confirms to and  agrees with the other parties hereto as follows:  (i) such New Lender hereby agrees that no Lender  has made any representation or warranty, or assumes any responsibility with respect to, (x) any  statements, warranties or representations made in or in connection with this Agreement or the  execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement  or any other instrument or document furnished pursuant hereto or (y) the financial condition of  any Borrower or the performance or observance by any Borrower of any of its obligations under  this Agreement or any other instrument or document furnished pursuant hereto; (ii) such New  Lender confirms that it has received a copy of this Agreement, together with copies of the  financial statements referred to in Section 5.03 and such other documents and information as it  has deemed appropriate to make its own credit analysis and decision to enter into such New  Commitment Acceptance; (iii) such New Lender will, independently and without reliance upon  any Agent or any other Lender and based on such documents and information as it shall deem  appropriate at the time, continue to make its own credit decisions in taking or not taking action  under this Agreement; (iv) such New Lender confirms that it is an Eligible Assignee; (v) such  New Lender appoints and authorizes the Administrative Agent to take such action as agent on its  behalf and to exercise such powers under this Agreement as are delegated to the Administrative  Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and  (vi) such New Lender agrees that it will perform in accordance with their terms all of the  obligations which by the terms of this Agreement are required to be performed by it as a Lender.  (d) The Administrative Agent, acting solely for this purpose as a non- fiduciary agent of the Borrowers, shall maintain at its address referred to in Section 9.02 a copy  of each Assignment and Acceptance and each New Commitment Acceptance delivered to and  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   107    accepted by it and a register for the recordation of the names and addresses of the Lenders and the  Commitments of, and principal and interest amounts of the Loans owing to, each Lender from  time to time (the “Register”).  The entries in the Register shall be conclusive and binding for all  purposes, absent manifest error, and each Borrower, the Administrative Agent and the Lenders  may treat each Person whose name is recorded in the Register as a Lender hereunder for all  purposes of this Agreement.  The Register shall be available for inspection by the U.S. Borrower  or any Lender at any reasonable time and from time to time upon reasonable prior notice.  The  Administrative Agent shall provide the U.S. Borrower with a copy of the Register upon  reasonable request.  (e) (i) Upon its receipt of an Assignment and Acceptance executed by  an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any  Revolving Loan Note or Notes subject to such assignment, the Administrative Agent shall, if such  Assignment and Acceptance has been completed and is in substantially the form of Exhibit C-1  hereto, (1) accept such Assignment and Acceptance, (2) record the information contained therein  in the Register and (3) give prompt notice thereof to the U.S. Borrower.  Within five Business  Days after its receipt of such notice, the relevant Borrower, at its own expense, shall execute and  deliver to the Administrative Agent in exchange for the surrendered Revolving Loan Note or  Notes a new Revolving Loan Note to the order of such Eligible Assignee in an amount equal to  the Commitments and/or Loans assumed by it pursuant to such Assignment and Acceptance and a  new Revolving Loan Note to the order of the assigning Lender in an amount equal to the  Commitments and/or Loans retained by it hereunder.  Such new Revolving Loan Notes shall be in  an aggregate principal amount equal to the aggregate principal amount of such surrendered  Revolving Loan Note or Notes, shall be dated the effective date of such Assignment and  Acceptance and shall otherwise be in substantially the form of Exhibit A-l hereto.  Such  surrendered Revolving Loan Note or Notes shall be marked “canceled” and shall be returned  promptly to the U.S. Borrower.  (ii) Upon its receipt of a New Commitment Acceptance executed by  a New Lender representing that it is an Eligible Assignee, the Administrative Agent shall,  if such New Commitment Acceptance has been completed and is in substantially the  form of Exhibit C-3 hereto, (1) accept such New Commitment Acceptance, (2) record the  information contained therein in the Register and (3) give prompt notice thereof to the  U.S. Borrower.  Within five Business Days after its receipt of such notice, the relevant  Borrower, at its own expense, shall execute and deliver to the Administrative Agent a  new Revolving Loan Note to the order of such New Lender in an amount equal to the  Commitments assumed by it pursuant to such New Commitment Acceptance.  Such new  Revolving Loan Note shall be dated the relevant Increase Date and shall otherwise be in  substantially the form of Exhibit A-l hereto.    (f) Each Lender may, without the consent of, or notice to, any Borrower, the  Administrative Agent or any other Person, sell participations to one or more banks or other  entities (other than (x) any natural person (or a holding company, investment vehicle or trust for,  or owned and operated for the primary benefit of, a natural person), (y) any Borrower or any  Affiliates of such Borrower or (z) any Defaulting Lender) in or to a portion of its rights and  obligations under this Agreement (including, without limitation, a portion of its Commitments,  the Loans owing to it and the Note or Notes held by it); provided however, that (i) such Lender’s  obligations under this Agreement (including, without limitation, its Commitments hereunder)  shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   108    hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any  such Note for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent, the  Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in  connection with such Lender’s rights and obligations under this Agreement, (v) except in the case  of a participation involving a Lender and one of its Affiliates (and this exception shall apply only  so long as the participant remains an Affiliate of such Lender), the parties to each such  participation shall execute a participation agreement in substantially the form of the Participation  Agreement, and (vi) no participant under any such participation shall have any right to approve  any amendment to or waiver of any provision of any Loan Document, or any consent to any  departure by any Borrower therefrom, except to the extent that such amendment, waiver or  consent would alter the principal of, or interest on, the Loan or Loans in which such participant is  participating or any fees or other amounts payable to the Lenders hereunder, or postpone any date  fixed for any payment of principal of, or interest on, the Loans or any fees or other amounts  payable hereunder.  Each Lender shall provide the U.S. Borrower with a list of entities party to all  Participation Agreements with such Lender upon request.  Notwithstanding anything in this  paragraph to the contrary, any bank that is a member of the Farm Credit System that (a) has  purchased a participation of at least $10,000,000 on or after the Effective Date, (b) is, by written  notice to the U.S. Borrower and the Administrative Agent (“Voting Participant Notification”),  designated by the selling Lender as being entitled to be accorded the rights of a Voting Participant  hereunder (any bank that is a member of the Farm Credit System so designated being called a  “Voting Participant”) and (c) receives the prior written consent of the U.S. Borrower and the  Administrative Agent to become a Voting Participant, shall be entitled to vote (and the voting  rights of the selling Lender shall be correspondingly reduced), on a dollar-for-dollar basis, as if  such participant were a Lender, on any matter requiring or allowing a Lender to provide or  withhold its consent, or to otherwise vote on any proposed action. To be effective, each Voting  Participant Notification shall, with respect to any Voting Participant, (i) state the full name, as  well as all contact information required of an assignee as set forth in Exhibit C-1 hereto and (ii)  state the dollar amount of the participation purchased. The U.S. Borrower and the Administrative  Agent shall be entitled to conclusively rely on information contained in notices delivered  pursuant to this paragraph.  The Borrowers agree that each Participant shall be entitled to the  benefits of Sections 2.12 and 3.05 (subject to the requirements and limitations therein, including  the requirements under Section 2.12(g) (it being understood that the documentation required  under Section 2.12(g) shall be delivered to the participating Lender)) to the same extent as if it  were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this  Section; provided that such Participant (A) agrees to be subject to the provisions of Section 3.07  as if it were an assignee under paragraph (a) of this Section; and (B) shall not be entitled to  receive any greater payment under Section 2.12 or 3.05, with respect to any participation, than its  participating Lender would have been entitled to receive, except to the extent such entitlement to  receive a greater payment results from a Change in Law that occurs after the Participant acquired  the applicable participation. To the extent permitted by law, each Participant also shall be entitled  to the benefits of Section 9.05 as though it were a Lender; provided that such Participant agrees to  be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall,  acting solely for this purpose as a non-fiduciary agent of the U.S. Borrower, maintain a register  on which it enters the name and address of each participant and the principal and interest amounts  of each participant’s interest in the Loans or other obligations hereunder (the “Participant  Register”); provided that no Lender shall have any obligation to disclose all or any portion of the  Participant Register to any Person (including the identity of any participant or any information  relating to a participant’s interest in any Loan or other obligation hereunder) except to the extent  that such disclosure is necessary to establish that such Loan or other obligation is in registered  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   109    form under Section 5f.103−1(c) of the United States Treasury Regulations.  The entries in the  Participant Register shall be conclusive and binding for all purposes, absent manifest error, and  such Lender shall treat each Person whose name is recorded in the Participant Register as the  owner of such participation for all purposes of this Agreement notwithstanding any notice to the  contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative  Agent) shall have no responsibility for maintaining a Participant Register.  (g) Any Lender may, in connection with any assignment or participation or  proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or  participant or proposed assignee or participant, any information, including Confidential  Information, relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers;  provided that, prior to any such disclosure of Confidential Information, the assignee or participant  or proposed assignee or participant shall be informed of the confidential nature of such  Confidential Information and shall agree to (i) preserve the confidentiality of any Confidential  Information relating to the Borrowers received by it from such Lender and (ii) be bound by the  provisions of Section 9.11.  (h) Notwithstanding any other provision in this Agreement, an Eligible  Assignee shall not be entitled to receive any greater payment under Section 2.12 or 3.05 than the  assigning Lender would have been entitled to receive, except to the extent such entitlement to  receive a greater payment results from a change in law that occurs after the effective date of such  assignment.  (i) Notwithstanding any other provision set forth in this Agreement, any  Lender may at any time and without the consent of the Administrative Agent or any Borrower  create a security interest in all or any portion of its rights under this Agreement (including,  without limitation, the Loans owing to it and the Notes held by it), including in favor of any  Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal  Reserve System or any other central banking authority.  SECTION 9.08.  No Liability of the Issuing Banks.  Each Borrower assumes all  risks of the acts or omissions of any beneficiary or transferee of any Letter of Credit with respect  to its use of such Letter of Credit.  Neither any Issuing Bank nor any of their respective officers or  directors shall be liable or responsible for:  (a) the use that may be made of any Letter of Credit or  any acts or omissions of any beneficiary or transferee in connection therewith; (b) the validity,  sufficiency or genuineness of documents, or of any endorsement thereon, even if such documents  should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment by  any Issuing Bank against presentation of documents that do not comply with the terms of a Letter  of Credit, including failure of any documents to bear any reference or adequate reference to the  Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment  under any Letter of Credit, except that each Borrower shall have a claim against an Issuing Bank,  and such Issuing Bank shall be liable to such Borrower, to the extent of any direct, but not  consequential, damages suffered by such Borrower that were caused by (i) such Issuing Bank’s  willful misconduct or gross negligence in determining whether documents presented under any  Letter of Credit comply with the terms of the Letter of Credit or (ii) such Issuing Bank’s willful  failure to make lawful payment under a Letter of Credit after the presentation to it of a draft and  certificates strictly complying with the terms and conditions of the Letter of Credit.  In  furtherance and not in limitation of the foregoing, each Issuing Bank acting in good faith may  accept documents that appear on their face to be in order, without responsibility for further  investigation, regardless of any notice or information to the contrary.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   110    SECTION 9.09.  Governing Law.  THIS AGREEMENT, AND ALL CLAIMS  OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) THAT  MAY BE BASED UPON, ARISE OUT OF OR RELATE IN ANY WAY TO THIS  AGREEMENT, THE EXECUTION OR PERFORMANCE OF THIS AGREEMENT OR THE  TRANSACTIONS CONTEMPLATED HEREBY, SHALL BE GOVERNED BY, AND  CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,  WITHOUT REGARD TO ANY PRINCIPLE OF CONFLICTS OF LAW THAT COULD  REQUIRE THE APPLICATION OF ANY OTHER LAW.    SECTION 9.10.  Execution in Counterparts.  This Agreement may be executed in  any number of counterparts and by different parties hereto in separate counterparts, each of which  when so executed shall be deemed to be an original and all of which taken together shall  constitute one and the same agreement.  Delivery of an executed counterpart of this Agreement  by telecopier shall be effective as delivery of a manually executed counterpart of this Agreement.  The words “execution,” “executed,” “signed,” “signature,” and words of like import in this  Agreement shall be deemed to include electronic signatures or the keeping of records in  electronic form each of which shall be of the same legal effect, validity or enforceability as a  manually executed signature or the use of a paper-based recordkeeping system, as the case may  be, to the extent and as provided for in any applicable law, including the Federal Electronic  Signatures in Global and National Commerce Act, the New York State Electronic Signatures and  Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act;  provided, that, without limiting the foregoing, upon the request of the Administrative Agent, any  electronic signature shall be promptly followed by such manually executed counterpart.  SECTION 9.11.  Confidentiality.  Each of the Administrative Agent and the  Lenders agrees to maintain the confidentiality of the Confidential Information (as defined below),  except that Confidential Information may be disclosed (a) to its Affiliates and to its and its  Affiliates’ respective managers, administrators, trustees, partners, directors, officers, employees,  agents, advisors and other representatives (it being understood that the Persons to whom such  disclosure is made will be informed of the confidential nature of such Confidential Information  and instructed to keep such Confidential Information confidential), (b) to the extent requested by  any regulatory authority purporting to have jurisdiction over it (including any self-regulatory  authority, such as the National Association of Insurance Commissioners), (c) to the extent  required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any  other party hereto, (e) in connection with the exercise of any remedies hereunder or under any  other Loan Document or any action or proceeding relating to this Agreement or any other Loan  Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement  containing provisions substantially the same as those of this Section 9.11, to (i) any assignee of or  Participant in, or any prospective assignee of or Participant in, any of its rights or obligations  under this Agreement, (ii) any actual or prospective party (or its managers, administrators,  trustees, partners, directors, officers, employees, agents, advisors and other representatives) to  any swap or derivative or similar transaction under which payments are to be made by reference   to the U.S. Borrower and its obligations, this Agreement or payments hereunder, (iii) any rating  agency or (iv) the CUSIP Service Bureau or any similar organization, (g) with the consent of the  U.S. Borrower, (h) to any credit insurance provider or (i) to the extent such Confidential  Information (x) becomes publicly available other than as a result of a breach of this Section 9.11  or (y) becomes available to the Administrative Agent, any Lender or any of their respective  Affiliates on a nonconfidential basis from a source other than the U.S. Borrower.  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   111    For purposes of this Section 9.11, “Confidential Information” means all information received  from the U.S. Borrower or any of its Subsidiaries or any of their respective certified public  accountants (including the Borrowers’ Accountants) relating to the U.S. Borrower or any of its  Subsidiaries or any of their respective businesses, other than any such information that is  available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure  by the U.S. Borrower or any of its Subsidiaries, provided that, in the case of information received  from the U.S. Borrower or any of its Subsidiaries after the date hereof, such information is clearly  identified at the time of delivery as confidential.  Any Person required to maintain the  confidentiality of Confidential Information as provided in this Section 9.11 shall be considered to  have complied with its obligation to do so if such Person has exercised the same degree of care to  maintain the confidentiality of such Confidential Information as such Person would accord to its  own confidential information.  SECTION 9.12.  Submission to Jurisdiction; Service of Process.    (a) Any legal action or proceeding brought by any Borrower or any of its  respective Affiliates with respect to this Agreement or any other Loan Document shall be brought  exclusively in the courts of the State of New York located in the City of New York, borough of  Manhattan, or of the United States of America for the Southern District of New York.  By  execution and delivery of this Agreement, each Borrower hereby accepts for itself and in respect  of its property, generally and unconditionally, the jurisdiction of the aforesaid courts.  The parties  hereto hereby irrevocably waive any objection, including any objection to the laying of venue or  based on the grounds of forum non conveniens, that any of them may now or hereafter have to the  bringing of any such action or proceeding in such respective jurisdictions.  (b) Each Borrower hereby irrevocably consents to the service of any and all  legal process, summons, notices and documents in any suit, action or proceeding brought in the  United States of America arising out of or in connection with this Agreement or any other Loan  Document by the mailing (by registered or certified mail, postage prepaid) or delivering of a copy  of such process to the U.S. Borrower at its address specified in Section 9.02.  Each Borrower  agrees that a final judgment in any such action or proceeding shall be conclusive and may be  enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  (c) Nothing contained in this Section 9.12 shall affect the right of the  Administrative Agent or any Lender to serve process in any other manner permitted by law or  commence legal proceedings or otherwise proceed against the Borrowers in any other  jurisdiction.  SECTION 9.13.  WAIVER OF JURY TRIAL.  EACH BORROWER, THE  ADMINISTRATIVE AGENT, EACH ISSUING BANK AND EACH OF THE LENDERS  HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,  PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR  OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS,  THE LOANS, THE LETTERS OF CREDIT OR THE ACTIONS OF THE ADMINISTRATIVE  AGENT, ANY ISSUING BANK OR ANY LENDER IN THE NEGOTIATION,  ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.  SECTION 9.14.  Judgment Currency.  This is an international loan transaction in  which the specification of Dollars or an Alternate Currency, as the case may be (the “Specified  Currency”), any payment in New York City or the country of the Specified Currency, as the case  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   112    may be (the “Specified Place”), is of the essence, and the Specified Currency shall be the  currency of account in all events relating to Loans denominated in the Specified Currency.  The  payment obligations of the Borrowers under this Agreement and the Notes shall not be discharged  by an amount paid in another currency or in another place, whether pursuant to a judgment or  otherwise, to the extent that the amount so paid on conversion to the Specified Currency and  transfer to the Specified Place under normal banking procedures does not yield the amount of the  Specified Currency at the Specified Place due hereunder.  If for the purpose of obtaining  judgment in any court it is necessary to convert a sum due hereunder in the Specified Currency  into another currency (the “Second Currency”), the rate of exchange which shall be applied shall  be that at which in accordance with normal banking procedures the Administrative Agent could  purchase the Specified Currency with the Second Currency on the Business Day next preceding  that on which such judgment is rendered.  The obligation of each Borrower in respect of any such  sum due from it to the Administrative Agent or any Lender hereunder (an “Entitled Person”)  shall, notwithstanding the rate of exchange actually applied in rendering such judgment, be  discharged only to the extent that on the Business Day following receipt by such Entitled Person  of any sum adjudged to be due hereunder or under the Notes in the Second Currency such  Entitled Person may in accordance with normal banking procedures purchase and transfer to the  Specified Place the Specified Currency with the amount of the Second Currency so adjudged to  be due; and each Borrower hereby, as a separate obligation and notwithstanding any such  judgment, agrees to indemnify such Entitled Person against, and to pay such Entitled Person on  demand in the Specified Currency, any difference between the sum originally due to such Entitled  Person in the Specified Currency and the amount of the Specified Currency so purchased and  transferred.  SECTION 9.15.  European Monetary Union.  (a) Payments by the Administrative Agent Generally.  With respect to the  payment of any amount denominated in Euro, the Administrative Agent shall not be liable to any  of the Borrowers, the Swing Loan Lenders or any of the Lenders in any way whatsoever for any  delay, or the consequences of any delay, in the crediting to any account of any amount required  by this Agreement to be paid by the Administrative Agent if the Administrative Agent shall have  taken all relevant steps to achieve, on the date required by this Agreement, the payment of such  amount in immediately available, freely transferable, cleared funds (in Euro) to the account of  any Borrower, any Swing Loan Lender or any Lender in the Principal Financial Center in the  Participating Member State which such Borrower, such Swing Loan Lender or such Lender, as  the case may be, shall have specified for such purpose.  For the purposes of this paragraph, “all  relevant steps” means all such steps as may be prescribed from time to time by the regulations or  operating procedures of such clearing or settlement system as the Administrative Agent may from  time to time determine for the purpose of clearing or settling payments in Euro.  (b) Other Consequential Changes.  Without prejudice to the respective  liabilities of the Borrowers to the Lenders and the Swing Loan Lenders, and the Lenders and the  Swing Loan Lenders to the Borrowers, under or pursuant to this Agreement, except as expressly  provided in this Section 9.15, each provision of this Agreement shall be subject to such  reasonable changes of construction as the Administrative Agent may from time to time  reasonably specify to be necessary or appropriate to reflect the introduction of or changeover to  Euros in Participating Member States.  SECTION 9.16.  USA PATRIOT Act.  Each Lender subject to the Patriot Act  hereby notifies each Borrower that, pursuant to Section 326 of the USA Patriot Act (Title III of  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   113    Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”) and the Beneficial  Ownership Regulation, it is required to obtain, verify and record information that identifies the  Borrower, including the name and address of such Borrower and other information that will allow  such Lender to identify each Borrower in accordance with the Patriot Act and the Beneficial  Ownership Regulation.  SECTION 9.17.  Continued Effectiveness.  Notwithstanding anything to the  contrary contained herein, this Agreement is not intended to and shall not serve to affect a  novation of the obligations under the Existing Credit Agreement, as continued hereunder.   Instead, it is the express intention of the parties hereto to reaffirm the indebtedness created under  the Existing Credit Agreement.  The Existing Credit Agreement and all agreements, instruments  and documents executed or delivered in connection with the Existing Credit Agreement shall  each be deemed to be amended as of the Effective Date to the extent necessary to give effect to  the provisions of this Agreement.  SECTION 9.18.  Entire Agreement.  This Agreement, the other Loan Documents,  and any separate letter agreements with respect to fees payable to the Administrative Agent or  any Issuing Bank, constitute the entire contract among the parties relating to the subject matter  hereof and supersede any and all previous agreements and understandings, oral or written,  relating to the subject matter hereof.  SECTION 9.19.  No Fiduciary Duty.  Each Agent, each Lender, each Issuing  Bank, each Swing Loan Lender and their respective Affiliates (collectively, solely for purposes of  this paragraph, the “Lenders”), may have economic interests that conflict with those of any  Borrowers, its stockholders and/or its Affiliates.  Each Borrower agrees that nothing in the Loan  Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or  fiduciary or other implied duty between any Lender, on the one hand, and any Borrower, its  stockholders or its Affiliates, on the other.  Each Borrower acknowledges and agrees that (i) the  transactions contemplated by the Loan Documents (including the exercise of rights and remedies  hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the  one hand, and the Borrowers, on the other, and (ii) in connection therewith and with the process  leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any  Borrower, its stockholders or its Affiliates with respect to the transactions contemplated hereby  (or the exercise of rights or remedies with respect thereto) or the process leading thereto  (irrespective of whether any Lender has advised, is currently advising or will advise any  Borrower, its stockholders or its Affiliates on other matters) or any other obligation to any  Borrower except the obligations expressly set forth in the Loan Documents and (y) each Lender is  acting solely as principal and not as the agent or fiduciary of any Borrower, its management,  stockholders, creditors or any other Person.  Each Borrower acknowledges and agrees that it has  consulted its own legal and financial advisors to the extent it deemed appropriate and that it is  responsible for making its own independent judgment with respect to such transactions and the  process leading thereto.  Each Borrower agrees that it will not claim that any Lender has rendered  advisory services of any nature or respect, or owes a fiduciary or similar duty to such Borrower,  in connection with such transaction or the process leading thereto.  SECTION 9.20.  Certain ERISA Matters.   (a) Each Lender (x) represents and warrants, as of the date such Person  became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender  party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   114    Agents, and not, for the avoidance of doubt, to or for the benefit of any Borrowers or any other  Subsidiary of the Borrowers, that at least one of the following is and will be true:  (i) such Lender is not using “plan assets” (within the meaning of  Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such  Lender’s entrance into, participation in, administration of and performance of the Loans,  the Letters of Credit, the Commitments or this Agreement,  (ii) the transaction exemption set forth in one or more PTEs, such as  PTE 84-14 (a class exemption for certain transactions determined by independent qualified  professional asset managers), PTE 95-60 (a class exemption for certain transactions  involving insurance company general accounts), PTE 90-1 (a class exemption for certain  transactions involving insurance company pooled separate accounts), PTE 91-38 (a class  exemption for certain transactions involving bank collective investment funds) or PTE 96- 23 (a class exemption for certain transactions determined by in-house asset managers), is  applicable with respect to such Lender’s entrance into, participation in, administration of  and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,  (iii) (A) such Lender is an investment fund managed by a “Qualified  Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such  Qualified Professional Asset Manager made the investment decision on behalf of such  Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit,  the Commitments and this Agreement, (C) the entrance into, participation in,  administration of and performance of the Loans, the Letters of Credit, the Commitments  and this Agreement satisfies the requirements of subsections (b) through (g) of Part I of  PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection  (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into,  participation in, administration of and performance of the Loans, the Letters of Credit, the  Commitments and this Agreement, or  (iv) such other representation, warranty and covenant as may be  agreed in writing between the Agent, in its sole discretion, and such Lender.  (b) In addition, unless either (1) sub-clause (i) in the immediately preceding  clause (a) is true with respect to a Lender or (2) a Lender has provided another representation,  warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a),  such Lender further (x) represents and warrants, as of the date such Person became a Lender party  hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date  such Person ceases being a Lender party hereto, for the benefit of, the Agents, and not, for the  avoidance of doubt, to or for the benefit of any Borrower, or any other Subsidiary of the Borrowers,  that the Agents are not a fiduciary with respect to the assets of such Lender involved in such  Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters  of Credit, the Commitments and this Agreement (including in connection with the reservation or  exercise of any rights by any Agent under this Agreement, any Loan Document or any documents  related hereto or thereto).  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   115    ARTICLE X  GUARANTY  SECTION 10.01.  Guaranty.    (a) To induce the Lenders to make the Loans to the Euro Borrowers and the  Swing Loan Borrower, as the case may be, and the Issuing Banks to Issue Letters of Credit for the  account of the Euro Borrowers, the U.S. Borrower hereby absolutely, unconditionally and  irrevocably guarantees, as primary obligor and not merely as surety (in such capacity, the  “Guarantor”), the full and punctual payment when due, whether at stated maturity or earlier, by  reason of acceleration, mandatory prepayment or otherwise in accordance herewith or any other  Loan Document, of the principal of and interest on the Loans made by each Lender to, and the  Notes held by each Lender of, each Euro Borrower or the Swing Loan Borrower and 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 Euro Borrower or the Swing Loan  Borrower under this Agreement pursuant hereto or to its Euro Borrower Designation, as  applicable, and under the Notes, in each case strictly in accordance with the terms hereof or  thereof (such obligations being herein collectively called, the “Guarantied Obligations”), whether  or not from time to time reduced or extinguished or hereafter increased or incurred, whether or  not recovery may be or hereafter may become barred by any statute of limitations, and whether  enforceable or unenforceable as against any Euro Borrower or the Swing Loan Borrower, now or  hereafter existing, or due or to become due, including principal, interest (including interest at the  contract rate applicable upon default accrued or accruing after the commencement of any  proceeding under the Bankruptcy Code, whether or not such interest is an allowed claim in such  proceeding), fees and costs of collection.  This guaranty constitutes a guaranty of payment and  not of collection.  (b) The U.S. Borrower further agrees that, (i) if any payment made by any of  the Euro Borrowers or any other person and applied to the Guarantied Obligations is at any time  annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or  otherwise required to be refunded or repaid, or (ii) if any payment is made by any Lender or any  other holder of Guarantied Obligations (the “Guarantied Parties”) to any Euro Borrower, its  estate, trustee, receiver or any other party, including the U.S. Borrower, under any bankruptcy  law, state or federal law, common law or equitable cause, then, in each case, to the extent of such  payment or repayment, the U.S. Borrower’s liability under this Section 10.01 shall be and remain  in full force and effect, as fully as if such payment had never been made or, if prior thereto this  guaranty set forth in this Section 10.01 shall have been cancelled or surrendered, the guaranty set  forth in this Section 10.01 shall be reinstated in full force and effect, and such prior cancellation  or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of  the U.S. Borrower in respect of the amount of such payment.  SECTION 10.02.  Authorization; Other Agreements.  The Guarantied Parties are  hereby authorized, without notice to or demand upon the U.S. Borrower, which notice or demand  is expressly waived hereby, and without discharging or otherwise affecting the obligations of the  U.S. Borrower hereunder (which shall remain absolute and unconditional notwithstanding any  such action or omission to act), from time to time, to:  (a) supplement, renew, extend, accelerate or otherwise change the time for  payment of, or other terms relating to, the Guarantied Obligations, or any part of them, or  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   116    otherwise modify, amend or change the terms of any promissory note or other agreement,  document or instrument (including, without limitation, this Agreement and the other Loan  Documents) now or hereafter executed by any Euro Borrower and delivered to the Guarantied  Parties or any of them, including, without limitation, any increase or decrease of principal or the  rate of interest thereon;  (b) waive or otherwise consent to noncompliance with any provision of any  instrument evidencing the Guarantied Obligations, or any part thereof, or any other instrument or  agreement in respect of the Guarantied Obligations (including, without limitation, this Agreement  and the other Loan Documents) now or hereafter executed by any Euro Borrower and delivered to  the Guarantied Parties or any of them;  (c) accept partial payments on the Guarantied Obligations;  (d) receive, take and hold additional security or collateral for the payment of  the Guarantied Obligations or any part of them and exchange, enforce, waive, substitute,  liquidate, terminate, abandon, fail to perfect, subordinate, transfer, otherwise alter and release any  such additional security or collateral;  (e) settle, release, compromise, collect or otherwise liquidate the Guarantied  Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any  security or collateral for the Guarantied Obligations or any part of them or any other guaranty  therefor, in any manner;  (f) add, release or substitute any one or more other guarantors, makers or  endorsers of the Guarantied Obligations or any part of them and otherwise deal with any Euro  Borrower or any other guarantor, maker or endorser;  (g) apply to the Guarantied Obligations any and all payments or recoveries  from any Euro Borrower, from any other guarantor, maker or endorser of the Guarantied  Obligations or any part of them to the Guarantied Obligations in such order as provided herein  whether such Guarantied Obligations are secured or unsecured or guaranteed or not guaranteed  by others; and  (h) refund at any time any payment received by any Guarantied Party in  respect of any of the Guarantied Obligations, and payment to such Person of the amount so  refunded shall be fully guaranteed hereby even though prior thereto this Guaranty shall have been  cancelled or surrendered, and such prior cancellation or surrender shall not diminish, release,  discharge, impair or otherwise affect the obligations of the U.S. Borrower hereunder in respect of  the amount so refunded; even if any right of reimbursement or subrogation or other right or  remedy of the U.S. Borrower is extinguished, affected or impaired by any of the foregoing  (including, without limitation, any election of remedies by reason of any judicial, non-judicial or  other proceeding in respect of the Guarantied Obligations which impairs any subrogation,  reimbursement or other right of the U.S. Borrower).  SECTION 10.03.  Guaranty Absolute and Unconditional.  The U.S. Borrower  hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising  in connection with or in respect of any of the following and hereby agrees that its obligations  under this Article X (Guaranty) are absolute and unconditional and shall not be discharged or  otherwise affected as a result of:  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   117    (a) the invalidity or unenforceability of any of any Euro Borrower’s  obligations under this Agreement or any other Loan Document or any other agreement or  instrument relating thereto, or any security for, or other guaranty of the Guarantied Obligations or  any part of them, or the lack of perfection or continuing perfection or failure of priority of any  security for the Guarantied Obligations or any part of them;  (b) the absence of any attempt to collect the Guarantied Obligations or any  part of them from any Euro Borrower or other action to enforce the same;  (c) any Guarantied Parties’ election, in any proceeding instituted under  chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy  Code;  (d) any borrowing or grant of a Lien by any Euro Borrower, as  debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code;  (e) the disallowance, under Section 502 of the Bankruptcy Code, of all or  any portion of the Administrative Agent’s or Lender’s claim (or claims) for repayment of the  Guarantied Obligations;  (f) any use of cash collateral under Section 363 of the Bankruptcy Code;  (g) any agreement or stipulation as to the provision of adequate protection in  any bankruptcy proceeding;  (h) the avoidance of any Lien in favor of the Guarantied Parties or any of  them for any reason;  (i) any bankruptcy, insolvency, reorganization, arrangement, readjustment  of debt, liquidation or dissolution proceeding commenced by or against any Euro Borrower, the  U.S. Borrower or any of any Euro Borrower’s other Subsidiaries, including without limitation,  any discharge of, or bar or stay against collecting, all or any of the Guarantied Obligations (or any  part of them or interest thereon) in or as a result of any such proceeding;  (j) failure by any Guarantied Party to file or enforce a claim against any  Euro Borrower or its estate in any bankruptcy or insolvency case or proceeding;  (k) any action taken by any Guarantied Party that is authorized hereby;   (l) any rescission, waiver, amendment or modification of, or any release  from any of the terms or provisions of, this Agreement, any other Loan Document or any other  agreement; or  (m) any (x) laws, regulations or acts of any legislative body or Governmental  Authority or (y) any economic, political, regulatory or other events, including but not limited to,  any restrictions on the conversion of currency or repatriation or control of funds or any total or  partial expropriation of the Borrowers’ property, that would otherwise constitute a defense  available to any obligor or guarantor of, or a discharge of, or otherwise affect, the obligations  hereunder; or  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   118    (n) any other circumstance which might otherwise constitute a legal or  equitable discharge or defense of a surety or guarantor or any other obligor on any obligations,  other than the payment in full of the Guarantied Obligations.  SECTION 10.04.  Waivers.  The U.S. Borrower hereby waives diligence,  promptness, presentment, demand for payment or performance and protest and notice of protest,  notice of acceptance and any other notice in respect of the Guarantied Obligations or any part of  them, and any defense arising by reason of any disability or other defense of the Euro Borrower.   The U.S. Borrower shall not, until the Guarantied Obligations are irrevocably paid in full and the  Commitments have been terminated, assert any claim or counterclaim it may have against any  Euro Borrower or set off any of its obligations to any Euro Borrower against any obligations of  any Euro Borrower to it.  In connection with the foregoing, the U.S. Borrower covenants that its  obligations hereunder shall not be discharged, except by complete performance.  SECTION 10.05.  Reliance.  The U.S. Borrower hereby assumes responsibility  for keeping itself informed of the financial condition of the Euro Borrowers and any and all  endorsers and/or other guarantors of all or any part of the Guarantied Obligations, and of all other  circumstances bearing upon the risk of nonpayment of the Guarantied Obligations, or any part  thereof, that diligent inquiry would reveal, and the U.S. Borrower hereby agrees that no  Guarantied Party shall have any duty to advise it of information known to it regarding such  condition or any such circumstances.  In the event any Guarantied Party, in its sole discretion,  undertakes at any time or from time to time to provide any such information to the U.S.  Borrower, such Guarantied Party shall be under no obligation (i) to undertake any investigation  not a part of its regular business routine, (ii) to disclose any information which such Guarantied  Party, pursuant to accepted or reasonable commercial finance or banking practices, wishes to  maintain confidential or (iii) to make any other or future disclosures of such information or any  other information to any Guarantied Party.  SECTION 10.06.  Waiver of Subrogation and Contribution Rights.  Until the  Guarantied Obligations have been irrevocably paid in full and the Commitments have been  terminated, the U.S. Borrower shall not enforce or otherwise exercise any right of subrogation to  any of the rights of the Guarantied Parties or any part of them against any Euro Borrower or any  right of reimbursement or contribution or similar right against any Euro Borrower by reason of  this Agreement or by any payment made by the U.S. Borrower in respect of the obligations under  this Agreement or the Notes.  SECTION 10.07.  Subordination.  The U.S. Borrower hereby agrees that upon  the occurrence of any Event of Default described in Section 7.01(e), any Indebtedness of any  Euro Borrower now or hereafter owing to it, whether heretofore, now or hereafter created (the  “Guaranty Subordinated Debt”), is hereby subordinated to all of the obligations under this  Agreement and the Notes, and that, except as expressly permitted by this agreement, the Guaranty  Subordinated Debt shall not be paid in whole or in part until such obligations have been  indefeasibly paid in full in cash and this Guaranty is terminated and of no further force or effect.   The U.S. Borrower shall not accept any payment of or on account of any Guaranty Subordinated  Debt at any time in contravention of the foregoing.  Upon the occurrence and during the  continuance of an Event of Default described in Section 7.01(e), each Euro Borrower shall pay to  the Administrative Agent any payment of all or any part of the Guaranty Subordinated Debt and  any amount so paid to the Administrative Agent shall be applied to payment of the obligations  under this Agreement and the Notes as provided herein.  Each payment on the Guaranty  Subordinated Debt received in violation of any of the provisions hereof shall be deemed to have  FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   119    been received by the U.S. Borrower as trustee for the Administrative Agent and the Lenders and  shall be paid over to the Administrative Agent immediately on account of the Guarantied  Obligations, but without otherwise affecting in any manner the U.S. Borrower’s liability under  this Article X (Guaranty).  The U.S. Borrower agrees to file all claims against the Euro Borrowers  in any bankruptcy or other proceeding in which the filing of claims is required by law in respect  of any Guaranty Subordinated Debt, and the Administrative Agent shall be entitled to all of U.S.  Borrower’s rights thereunder.  If for any reason the U.S. Borrower fails to file such claim at least  ten Business Days prior to the last date on which such claim should be filed, the U.S. Borrower  hereby irrevocably appoints the Administrative Agent as its true and lawful attorney-in-fact and is  hereby authorized to act as attorney-in-fact in the U.S. Borrower’s name to file such claim or, in  the Administrative Agent’s discretion, to assign such claim to and cause proof of claim to be filed  in the name of the Administrative Agent or its nominee.  In all such cases, whether in  administration, bankruptcy or otherwise, the person or persons authorized to pay such claim shall  pay to the Administrative Agent the full amount payable on the claim in the proceeding, and, to  the full extent necessary for that purpose, the U.S. Borrower hereby assigns to the Administrative  Agent all of the U.S. Borrower’s rights to any payments or distributions to which the U.S.  Borrower otherwise would be entitled.  If the amount so paid is greater than the U.S. Borrower’s  liability hereunder, the Administrative Agent shall pay the excess amount to the party entitled  thereto.  SECTION 10.08.  Default; Remedies.  The obligations of the U.S. Borrower  hereunder are independent of and separate from the Guarantied Obligations.  Upon any Event of  Default, the Administrative Agent may, at its sole election, proceed directly and at once, without  notice, against the U.S. Borrower to collect and recover the full amount or any portion of the  Guarantied Obligations then due, without first proceeding against the defaulting Euro Borrower  or Euro Borrowers or any other guarantor of the Guarantied Obligations, or joining the defaulting  Euro Borrower or Euro Borrowers or any other guarantor in any proceeding against the U.S.  Borrower.  At any time after maturity of the Guarantied Obligations, the Administrative Agent  may (unless the Guarantied Obligations have been indefeasibly paid in full in cash), without  notice to the U.S. Borrower, appropriate and apply toward the payment of the Guarantied  Obligations (i) any indebtedness due or to become due from any Guarantied Party to the U.S.  Borrower and (ii) any moneys, credits or other property belonging to the U.S. Borrower at any  time held by or coming into the possession of any Guarantied Party or any of its respective  Affiliates.  SECTION 10.09.  Irrevocability.  This Guaranty set forth in this Article X  (Guaranty) shall be irrevocable as to any and all of the Guarantied Obligations until the  Commitments have been terminated and all monetary Guarantied Obligations then outstanding  have been indefeasibly repaid in full in cash.  SECTION 10.10.  Setoff.  Upon the occurrence and during the continuance of an  Event of Default, each Guarantied Party and each Affiliate thereof may, without notice to the  U.S. Borrower and regardless of the acceptance of any security or collateral for the payment  hereof, appropriate and apply toward the payment of all or any part of the Guarantied Obligations  then due and payable (i) any indebtedness due or to become due from such Guarantied Party or  Affiliate thereof to the U.S. Borrower or any Euro Borrower or the Swing Loan Borrower, and  (ii) any moneys, credits or other property belonging to the U.S. Borrower or any Euro Borrower  or the Swing Loan Borrower, at any time held by or coming into the possession of such  Guarantied Party or Affiliate thereof (other than trust accounts).  





 






FIFTH AMENDED AND RESTATED CREDIT AGREEMENT  FMC CORPORATION   120    SECTION 10.11.  No Marshaling.  The U.S. Borrower consents and agrees that  no Guarantied Party or Person acting for or on behalf thereof shall be under any obligation to  marshal any assets in favor of the U.S. Borrower or against or in payment of any or all of the  Guarantied Obligations.  SECTION 10.12.  Enforcement; Amendments; Waivers.  No delay on the part of  any Guarantied Party in the exercise of any right or remedy arising under this Agreement, any of  the other Loan Documents or otherwise with respect to all or any part of the Guarantied  Obligations or any other guaranty of or security for all or any part of the Guarantied Obligations  shall operate as a waiver thereof, and no single or partial exercise by any such Person of any such  right or remedy shall preclude any further exercise thereof.  Failure by any Guarantied Party at  any time or times hereafter to require strict performance by the U.S. Borrower, any other  guarantor of all or any part of the Guarantied Obligations or any other Person of any of the  provisions, warranties, terms and conditions contained in any of the Loan Documents now or at  any time or times hereafter executed by such Persons and delivered to any Guarantied Party shall  not waive, affect or diminish any right of such person at any time or times hereafter to demand  strict performance thereof and such right shall not be deemed to have been waived by any act or  knowledge of any Guarantied Party, or its Affiliates, unless such waiver is contained in an  instrument in writing, directed and delivered to such Euro Borrower or the U.S. Borrower, as  applicable, specifying such waiver, and is signed by the party or parties necessary to give such  waiver under this Agreement.  No waiver of any Event of Default shall operate as a waiver of any  other Event of Default or the same Event of Default on a future occasion, and no action by any  Guarantied Party permitted hereunder shall in any way affect or impair any its rights and  remedies or the obligations of the U.S. Borrower under this Article X (Guaranty).  Any  determination by a court of competent jurisdiction of the amount of any principal and/or interest  owing by any Euro Borrower to any Guarantied Party shall be conclusive and binding on the U.S.  Borrower irrespective of whether the U.S. Borrower was a party to the suit or action in which  such determination was made.  [SIGNATURE PAGES FOLLOW]    [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT]    IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be  executed by their respective officers thereunto duly authorized, as of the date first above written.  The U.S. Borrower    FMC CORPORATION      By: /s/ Brian J. Blair   Name: Brian J. Blair  Title:   Vice President and Treasurer      The Euro Borrowers    FMC FINANCE B.V.      By: /s/ Brian J. Blair   Name: Brian J. Blair  Title:   Authorised Signatory    FMC CHEMICALS NETHERLANDS B.V.      By: /s/ Brian J. Blair   Name: Brian J. Blair  Title:   Authorised Signatory          [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT]      CITIBANK, N.A.,   as Administrative Agent, Lender, Issuing Bank  and Swing Loan Lender        By: /s/ Michael Vondriska   Name: Michael Vondriska  Title:   Vice President        [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT]    BANK OF AMERICA, N.A.,  as Syndication Agent, Lender, Issuing Bank and  Swing Loan Lender        By: /s/ Pace Doherty   Name: Pace Doherty  Title:   Director       





 






  [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT]    BNP PARIBAS, as a Lender        By: /s/ Denis O’Meara   Name: Denis O’Meara  Title:   Managing Director        By: /s/ Victor Padilla   Name: Victor Padilla  Title:   Vice President      [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT]      CoBank, ACB, as a Lender        By: /s/ Chuck Castles   Name: Chuck Castles  Title:   Vice President      [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT]      JPMorgan Chase Bank, N.A., as a Lender        By: /s/ Peter S. Predun   Name: Peter S. Predun  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/ Steve Levi   Name: Steve Levi  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/ Andres Barbosa   Name: Andres Barbosa  Title:   Managing Director    [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT]      TRUIST BANK, as a Lender        By: /s/ Troy Weaver   Name: Troy Weaver  Title:   Managing Director        [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT]      U.S. Bank National Association, as a Lender        By: /s/ Adam J. Kultgen   Name: Adam J. Kultgen  Title:   Vice President         





 






  [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT]      BANK OF CHINA, NEW YORK BRANCH, as  a Lender        By: /s/ Raymond Qiao   Name: Raymond Qiao  Title:   Executive Vice President          [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT]      Citizens Bank, N.A., as a Lender        By: /s/ Leslie D. Broderick   Name: Leslie D. Broderick  Title:   Senior Vice President            [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT]      COÖPERATIEVE RABOBANK U.A., NEW  YORK BRANCH, as a Lender        By: /s/ Elizabeth Halfin   Name: Elizabeth Halfin  Title:   Vice President        By: /s/ Robert Graff   Name: Robert Graff  Title:   Managing Director     [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT]      PNC Bank, National Association, as a Lender        By: /s/ Michael P. Dungan   Name: Michael P. Dungan  Title:   SVP        





 






  [SIGNATURE PAGE TO FIFTH A&R FMC CREDIT AGREEMENT]      Wells Fargo Bank, N.A., as a Lender        By: /s/ Daniel K. Kinasz   Name: Daniel K. Kinasz  Title:   Vice President