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Letter of Credit Agreement

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Title:

Letter of Credit Agreement

Entities:

Citibank, NA; Citicorp North America, Inc.; Citicorp USA, Inc.; FMC Corp.; FMC Technologies, Inc.; Solutia Inc.; Wachovia Bank, NA; Bank of America, NA; Bank of New York; Morgan, Lewis & Bockius; Weil, Gotshal & Manges LLP; Fmc Corp

Date:

2004

Size:

Preview shows 103KB of 292KB total

Price:

$85

ID:

#202527

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Start of Preview

$40,000,000

LETTER OF CREDIT AGREEMENT

Dated as of October 21, 2002

among

FMC CORPORATION

as Borrower

and

THE ISSUERS PARTY HERETO

and

CITICORP USA, INC.

as Administrative Agent

WEIL, GOTSHAL & MANGES LLP

767 FIFTH AVENUE

NEW YORK, NEW YORK 10153-0119

TABLE OF CONTENTS


Article I	Definitions, Interpretation And Accounting Terms	1

Section 1.1	Defined Terms	1

Section 1.2	Computation of Time Periods	25

Section 1.3	Accounting Terms and Principles	25

Section 1.4	Certain Terms	25

Article II	The L/C Facility	26

Section 2.1	Letters of Credit	26

Section 2.2	Reduction and Termination of the L/C Commitments	30

Section 2.3	Mandatory Cash Collateralization/Prepayments	31

Section 2.4	Interest	32

Section 2.5	Fees	32

Section 2.6	Payments and Computations	33

Section 2.7	Capital Adequacy	35

Section 2.8	Taxes	35

Section 2.9	Substitution of Issuers	36

Article III	Conditions To Letters Of Credit	37

Section 3.1	Conditions Precedent to Initial Letters of Credit	37

Section 3.2	Conditions Precedent to Each Letter of Credit	38

Section 3.3	Determinations of Initial Issuing Conditions	38

Article IV	Representations and Warranties	39

Section 4.1	Corporate Existence; Compliance with Law	39

Section 4.2	Corporate Power; Authorization; Enforceable Obligations	39

Section 4.3	Ownership of Borrower; Subsidiaries	40

Section 4.4	Financial Statements	40

Section 4.5	Material Adverse Change	41

Section 4.6	Solvency	41

Section 4.7	Litigation	41

Section 4.8	Taxes	41

Section 4.9	Full Disclosure	42

Section 4.10	Margin Regulations	42

Section 4.11	No Burdensome Restrictions; No Defaults	42

Section 4.12	Investment Company Act; Public Utility Holding Company Act	42

Section 4.13	Use of Proceeds	43

TABLE OF CONTENTS

(CONTINUED)



Section 4.14	Insurance	43

Section 4.15	Labor Matters	43

Section 4.16	ERISA	43

Section 4.17	Environmental Matters Except as disclosed in the Borrowers SEC filings filed on or prior to September 30, 2002:	44

Section 4.18	Intellectual Property	44

Section 4.19	Title; Real Property	45

Section 4.20	Credit Agreement, Indenture and Senior Secured Notes	45

Section 4.21	Deposit Accounts; Securities Accounts	46

Article V	Financial Covenants	46

Section 5.1	Maximum Leverage Ratio	46

Section 5.2	Minimum Interest Coverage Ratio	46

Section 5.3	Maintenance of Net Worth	47

Section 5.4	Capital Expenditures	47

Article VI	Reporting Covenants	47

Section 6.1	Financial Statements	47

Section 6.2	Default Notices	49

Section 6.3	Litigation	50

Section 6.4	Asset Sales	50

Section 6.5	Notices under Credit Agreement, Indentures and Senior Secured Notes	50

Section 6.6	SEC Filings; Press Releases	50

Section 6.7	Labor Relations	50

Section 6.8	Tax Returns	50

Section 6.9	Insurance	51

Section 6.10	ERISA Matters	51

Section 6.11	Environmental Matters	51

Section 6.12	Other Information	52

Article VII	Affirmative Covenants	52

Section 7.1	Preservation of Corporate Existence, Etc.	52

Section 7.2	Compliance with Laws, Etc.	52

Section 7.3	Conduct of Business	53

Section 7.4	Payment of Taxes, Etc.	53

Section 7.5	Maintenance of Insurance	53

TABLE OF CONTENTS

(CONTINUED)



Section 7.6	Access	53

Section 7.7	Keeping of Books	53

Section 7.8	Maintenance of Properties, Etc.	54

Section 7.9	Application of Proceeds	54

Section 7.10	Environmental	54

Section 7.11	Additional Collateral and Guaranties	54

Section 7.12	Non-Guarantor Subsidiaries	55

Section 7.13	Real Property	55

Section 7.14	Restricted Cash Collateral Account	56

Section 7.15	Letters of Credit	56

Article VIII	Negative Covenants	56

Section 8.1	Indebtedness	56

Section 8.2	Liens, Etc.	57

Section 8.3	Investments	58

Section 8.4	Sale of Assets	59

Section 8.5	Restricted Payments	60

Section 8.6	Prepayment and Cancellation of Indebtedness	61

Section 8.7	Restriction on Fundamental Changes; Permitted Acquisitions	61

Section 8.8	Change in Nature of Business	61

Section 8.9	Transactions with Affiliates	61

Section 8.10	Limitations on Restrictions on Subsidiary Distributions; No New Negative Pledge	62

Section 8.11	Modification of Constituent Documents	62

Section 8.12	Accounting Changes; Fiscal Year	62

Section 8.13	Margin Regulations	62

Section 8.14	Operating Leases; Sale/Leasebacks	62

Section 8.15	No Speculative Transactions	63

Section 8.16	Compliance with ERISA	63

Section 8.17	Transfer of Principal Properties	63

Section 8.18	Debt Reserve Collateral Account and Restricted Cash Collateral Account	63

Article IX	Events of Default	63

Section 9.1	Events of Default	63

Section 9.2	Remedies	65

iii

TABLE OF CONTENTS

(CONTINUED)



Section 9.3	Actions in Respect of Letters of Credit	65

Section 9.4	Rescission	66

Article X	The Administrative Agent	66

Section 10.1	Authorization and Action	66

Section 10.2	Administrative Agents Reliance, Etc.	67

Section 10.3	The Administrative Agent Individually	67

Section 10.4	Issuer Credit Decision	67

Section 10.5	Indemnification	68

Section 10.6	Successor Administrative Agent	68

Section 10.7	Concerning the Collateral and the Collateral Documents	68

Article XI	Miscellaneous	69

Section 11.1	Amendments, Waivers, Etc.	69

Section 11.2	Assignments and Participations	71

Section 11.3	Costs and Expenses	72

Section 11.4	Indemnities	73

Section 11.5	Limitation of Liability	75

Section 11.6	Right of Set-off	75

Section 11.7	Sharing of Payments, Etc.	75

Section 11.8	Notices, Etc.	76

Section 11.9	No Waiver; Remedies	76

Section 11.10	Binding Effect	77

Section 11.11	Governing Law	77

Section 11.12	Submission to Jurisdiction; Service of Process	77

Section 11.13	Waiver of Jury Trial	78

Section 11.14	Marshaling; Payments Set Aside	78

Section 11.15	Section Titles	78

Section 11.16	Execution in Counterparts	78

Section 11.17	Entire Agreement	78

Section 11.18	Confidentiality	79

TABLE OF CONTENTS

(CONTINUED)

Schedules


Schedule I	-	L/C Commitments and L/C Exposures
Schedule II	-	Addresses for Notices
Schedule III	-	Non-Guarantor Subsidiaries
Schedule VI	-	Permitted Vendor Indebtedness
Schedule VII	-	Existing Public Debt
Schedule VIII	-	Material Subsidiaries
Schedule IX	-	Outstanding Reserves
Schedule 4.2	-	Consents
Schedule 4.3	-	Ownership of Subsidiaries
Schedule 4.7	-	Litigation
Schedule 4.15	-	Labor Matters
Schedule 4.16	-	List of Plans
Schedule 4.17	-	Environmental Matters
Schedule 4.21	-	Deposit Accounts; Securities Accounts
Schedule 8.1	-	Existing Indebtedness
Schedule 8.2	-	Existing Liens
Schedule 8.3	-	Existing Investments
Schedule 8.10	-	Exceptions to Negative Pledge

EXHIBITS

Exhibit A	-	Form of Assignment and Acceptance
Exhibit B	-	Form of Letter of Credit Request

LETTER OF CREDIT AGREEMENT dated as of October 21, 2002, among FMC CORPORATION, a Delaware corporation (the Borrower), the Issuers (as defined below), and CITICORP USA, INC. (CUSA), as agent for the Issuers and as agent for the Secured Parties (as defined below) under the Collateral Documents (as defined below) (in such capacity, the Administrative Agent).

W I T N E S S E T H:

WHEREAS, the Borrower has requested that the Issuers make available for the purposes specified in this Agreement a performance letter of credit facility; and

WHEREAS, the Issuers are willing to make available to the Borrower such performance letter of credit facility upon the terms and subject to the conditions set forth herein;

NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, the parties hereto hereby agree as follows:

ARTICLE I

DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS

Section 1.1 Defined Terms

As used in this Agreement, the following terms have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

Administrative Agent has the meaning specified in the preamble to this Agreement.

Affected Issuer has the meaning specified in Section 2.9 (Substitution of Issuers).

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.

Agreement means this Letter of Credit Agreement.

Alternate Currency means any lawful currency other than Dollars which is freely transferable into Dollars.