Exhibit 10.6
Execution Copy
SHARED COLLATERAL PLEDGE AND SECURITY AGREEMENT
Dated as of October 21, 2002
among
FMC Corporation
as a Grantor
and
Each Other Grantor
From Time to Time Party Hereto
and
Citibank N.A.
as Collateral Trustee
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
TABLE OF CONTENTS
Page
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ARTICLE I. Defined Terms............................................................2
Section 1.1 Definitions...........................................................2
Section 1.2 Certain Other Terms...................................................6
ARTICLE II. Grant of Security Interest...............................................7
Section 2.1 Shared Collateral.....................................................7
Section 2.2 Grant of Security Interest in Shared Collateral.......................7
Section 2.3 Collateral Account....................................................7
ARTICLE III. Representations and Warranties...........................................8
Section 3.1 Title; No Other Liens.................................................8
Section 3.2 Perfection and Priority...............................................8
Section 3.3 Name; Jurisdiction of Organization; Chief Executive Office............8
Section 3.4 Pledged Collateral....................................................9
ARTICLE IV. Covenants................................................................9
Section 4.1 Generally.............................................................9
Section 4.2 Maintenance of Perfected Security Interest; Further
Documentation........................................................10
Section 4.3 Changes in Locations, Name, Etc......................................10
Section 4.4 Pledged Collateral...................................................11
Section 4.5 Payment of Obligations...............................................12
Section 4.6 Delivery of Instruments..............................................12
Section 4.7 Insurance............................................................12
ARTICLE V. Remedial Provisions.....................................................13
Section 5.1 Code and Other Remedies..............................................13
Section 5.2 Pledged Collateral...................................................13
Section 5.3 Proceeds to be Turned Over To Collateral Trustee.....................14
Section 5.4 Deficiency...........................................................14
Section 5.5 Execution of Financing Statements....................................15
ARTICLE VI. Miscellaneous...........................................................15
Section 6.1 Amendments in Writing................................................15
Section 6.2 Notices..............................................................15
Section 6.3 No Waiver by Course of Conduct; Cumulative Remedies..................15
Section 6.4 Successors and Assigns...............................................15
Section 6.5 Counterparts.........................................................16
Section 6.6 Severability.........................................................16
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TABLE OF CONTENTS
(continued)
Page
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Section 6.7 Section Headings.....................................................16
Section 6.8 Entire Agreement.....................................................16
Section 6.9 Governing Law........................................................16
Section 6.10 Additional Grantors..................................................16
Section 6.11 Reinstatement........................................................16
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TABLE OF CONTENTS
(continued)
Annexes and Schedules
Annex 1 Form of Pledge Amendment
Annex 2 Form of Joinder Agreement
Schedule 1 State of Incorporation; Principal Executive Office
Schedule 2 Pledged Collateral
Schedule 3 Filings
Schedule 4 Principal Properties
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Shared Collateral Pledge and Security Agreement, dated as of October
21, 2002, by FMC Corporation ("FMC") and each of the other entities that becomes
a party hereto pursuant to Section 6.10 (Additional Grantors) (each a "Grantor"
and, collectively, the "Grantors"), in favor of CITIBANK N.A., as collateral
trustee for the Secured Parties (as defined below) (in such capacity, the
"Collateral Trustee").
W i t n e s s e t h:
Whereas, pursuant to the Credit Agreement, dated as of October 21,
2002 (as the same may be amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among FMC, the Lenders and Issuers
party thereto and Citicorp USA, Inc., as Administrative Agent for the Lenders
and Issuers under the Credit Agreement and administrative agent for the Senior
Lenders (in such capacity, the "Bank Administrative Agent"), the Lenders and
Issuers have severally agreed to make extensions of credit to FMC upon the terms
and subject to the conditions set forth therein;
Whereas, pursuant to the letter of credit agreement, dated as of
October 21, 2002 (the "L/C Agreement", together with the Credit Agreement, the
"Credit Facilities"), among FMC, Citibank, N.A. and Bank of America, N.A.
(collectively, the "L/C Issuers"), the L/C Issuers have severally agreed to
issue letters of credit for the account of FMC upon the terms and subject to the
conditions set forth therein;
Whereas, pursuant to the respective terms of (i) each of the Foreign
Credit Lines and (ii) certain Hedging Contracts and Cash Management Obligations
that are otherwise guaranteed by FMC ("Foreign Facilities" together with Foreign
Credit Lines, the "Foreign Loans") each of the Foreign Lenders has agreed to
make extensions of credit to the applicable Foreign Borrowers upon the terms and
subject to the conditions set forth in the documentation with respect to each
applicable Foreign Loan (together with all appendices, exhibits and schedules
thereto and as the same may be amended, restated, supplemented or otherwise
modified from time to time, collectively, the "Foreign Loan Documents");
Whereas, pursuant to the Guaranty Agreement dated as of September 14,
2000, by FMC in favor of Astaris LLC, each of the financial institutions party
thereto as lenders (the "Astaris Lenders") and Bank of America, N.A. (the
"Astaris Agreement" and, together with the Loan Documents, the Foreign Loan
Documents and the L/C Agreement, the "Credit Documents"), FMC has agreed to make
the Astaris Secured Payments for the benefit of the Astaris Lenders and Bank of
America, N.A.;
Whereas, pursuant to the Parent Guaranty dated as of October 21, 2002,
FMC has guaranteed the Foreign Loans (the "Parent Guaranty");
Whereas, pursuant to an Indenture dated as of October 21, 2002 (as the
same may be amended, restated, supplemented or otherwise modified from time to
time, the "Senior Note Indenture") between FMC and Wachovia Bank, National
Association, (in such capacity, the "Senior Note Indenture Trustee") FMC has
issued from time to time and may issue Senior Notes (as defined below);
Whereas, it is a requirement under each of the Existing Indentures (as
defined below) that the assets in which a security interest is created hereunder
must secure the Existing Notes issued thereunder equally and ratably with all
other obligations secured hereby;
Shared Collateral Pledge and Security Agreement
FMC Corporation
Whereas, as a condition precedent to the obligation of the Senior
Lenders, to make their respective extensions of credit to FMC under the Credit
Facilities and to induce the holders to purchase the Senior Notes and to satisfy
the requirement referred to in the preceding paragraph, the Grantors agree to
execute and deliver this Agreement to the Collateral Trustee granting a security
interest in the Shared Collateral (as defined below) to the Collateral Trustee,
for the benefit of the Secured Parties;
Now, Therefore, in consideration of the premises and to induce the
Senior Lenders and the Bank Administrative Agent to enter into the Credit
Facilities to make their respective extensions of credit to FMC thereunder, to
induce the holders to purchase the Senior Notes and to satisfy the conditions in
the Existing Indentures, each Grantor hereby agrees with the Collateral Trustee
as follows:
Article I. Defined Terms
Section 1.1 Definitions
(a) Unless otherwise defined herein, terms defined in the Collateral
Trust Agreement or the Credit Agreement and used herein have the meanings given
to them in the Collateral Trust Agreement or the Credit Agreement; provided,
that on or after the Credit Agreement Termination Date all references to the
Credit Agreement including terms defined in the Credit Agreement shall be deemed
a reference to the applicable provisions of the Credit Agreement as in effect on
such date (immediately prior to the termination thereof).
(b) Terms used herein that are defined in the UCC have the meanings
given to them in the UCC, including the following terms (which are capitalized
herein):
"Documents"
"Entitlement Holder"
"Entitlement Order"
"Equipment"
"Financial Asset"
"General Intangibles"
"Instruments"
"Investment Property"
"Proceeds"
"Securities Account"
"Securities Intermediary"
"Security"
"Security Entitlement"
(c) The following terms shall have the following meanings:
"Actionable Default" has the meaning specified in the Collateral Trust
Agreement.
"Additional Pledged Collateral" means all shares of, limited or
general partnership interests in, and limited liability company interests in,
and all securities convertible into, and warrants, options and other rights to
purchase or otherwise acquire, stock of, any Person that, after the date of this
Agreement, as a result of any occurrence, becomes a direct Principal
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Shared Collateral Pledge and Security Agreement
FMC Corporation
Subsidiary and all certificates or other instruments representing any of the
foregoing; all Security Entitlements of any Grantor in respect of any of the
foregoing; all additional indebtedness from time to time owed to any Grantor by
any obligor on the Pledged Notes and the instruments evidencing such
indebtedness; and all interest, cash, instruments and other property or Proceeds
from time to time received, receivable or otherwise distributed in respect of or
in exchange for any of the foregoing. Additional Pledged Collateral may be
General Intangibles or Investment Property.
"Agreement" means this Shared Collateral Pledge and Security
Agreement.
"Collateral Account" has the meaning specified in the Collateral Trust
Agreement.
"Collateral Trust Agreement" means that certain collateral trust
agreement dated as of October 21, 2002, among the Company, the Collateral
Trustee, the Senior Note Indenture Trustee, the 1992 Indenture Trustee, the 1996
Indenture Trustee and the Bank Administrative Agent.
"Collateral Trustee" has the meaning set forth in the recitals.
"Credit Agreement Termination Date" has the meaning specified in the
Collateral Trust Agreement.
"Customary Permitted Liens" has the meaning specified in the Credit
Agreement.
"Existing Indentures" means, collectively, the 1992 Indenture and the
1996 Indenture.
"Foreign Loans" has the meaning set forth in the recitals.
"FMC Wyoming" means FMC Wyoming Corporation, a Delaware corporation.
"FMC Wyoming Agreement" has the meaning set forth in the Credit
Agreement.
"Lien" has the meaning set forth in the Credit Agreement.
"LLC" means each limited liability company which is a Principal
Subsidiary and in which a Grantor has an interest, including those set forth on
Schedule 2 (Pledged Collateral).
"LLC Agreement" means each operating agreement with respect to an LLC,
as each agreement has heretofore been, and may hereafter be, amended, restated,
supplemented or otherwise modified from time to time.
"Material Adverse Effect" has the meaning specified in the Credit
Agreement.
"Partnership" means each partnership which is a Principal Subsidiary
and in which a Grantor has an interest, including those set forth on Schedule 2
(Pledged Collateral).
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Shared Collateral Pledge and Security Agreement
FMC Corporation
"Partnership Agreement" means each partnership agreement governing a
Partnership, as each such agreement has heretofore been, and may hereafter be,
amended, restated, supplemented or otherwise modified.
"Person" has the meaning specified in the Credit Agreement.
"Pledged Collateral" means, collectively, the Pledged Notes, the
Pledged Stock, the Pledged Partnership Interests, the Pledged LLC Interests, all
certificates or other instruments representing any of the foregoing and all
Security Entitlements of any Grantor in respect of any of the foregoing. Pledged
Collateral may be General Intangibles or Investment Property.
"Pledged LLC Interests" means all right, title and interest of any
Grantor as a member of any LLC which is a Principal Subsidiary of FMC and all
right, title and interest of any Grantor in, to and under any LLC Agreement
related to such LLC to which it is a party, including those listed on Schedule 2
(Pledged Collateral) hereto.
"Pledged Notes" means all right, title and interest of any Grantor in
the Instruments evidencing all Indebtedness owed to such Grantor by a Principal
Subsidiary, including all Indebtedness described on Schedule 2 (Pledged
Collateral), issued by the obligors named therein.
"Pledged Partnership Interests" means all right, title and interest of
any Grantor as a limited or general partner in all Partnerships which are
Principal Subsidiaries of FMC and all right, title and interest of any Grantor
in, to and under any Partnership Agreements related to such Partnership which it
is a party, including those listed on Schedule 2 (Pledged Collateral) hereto.
"Pledged Stock" means the shares of capital stock of the Principal
Subsidiaries owned by each Grantor, including all shares of capital stock listed
on Schedule 2 (Pledged Collateral).
"Principal Property" has the meaning specified in the Existing
Indentures and as of the date hereof are the properties listed on Schedule 4
(Principal Property) hereto.
"Principal Property Equipment" has the meaning specified in Section
2.1 (Shared Collateral).
"Principal Subsidiary" means any Subsidiary of FMC which owns a
Principal Property.
"Secured Debt Instruments" has the meaning specified in the Collateral
Trust Agreement.
"Secured Obligations" means, collectively (i) the Senior Secured
Obligations, (ii) the Senior Note Obligations, (iii) the 1992 Note Obligations,
and (iv) the 1996 Note Obligations.
"Secured Party" means each of (i) the Bank Administrative Agent, for
its own account and on behalf of the Senior Lenders, (ii) the Senior Note
Indenture Trustee, for its own account and on behalf of each holder of the
Senior Notes, (iii) the 1992 Indenture Trustee, for its own account and on
behalf of each holder of the 1992 Notes, and (iv) the 1996 Indenture Trustee,
for its own account and on behalf of each holder of the 1996 Notes.
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Shared Collateral Pledge and Security Agreement
FMC Corporation
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Lenders" has the meaning specified in the Collateral Trust
Agreement.
"Senior Note Indenture Trustee" has the meaning specified in the
recitals to this Agreement.
"Senior Note Obligations" means all principal, interest and all other
obligations and liabilities of FMC and each Guarantor (including interest
accruing at the then applicable rate provided in the Senior Note Indenture after
the maturity of the Senior Notes and interest accruing at the then applicable
rate provided in the Senior Note Indenture after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to FMC or any Guarantor, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding), whether
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with the Senior Note
Indenture, the Senior Notes, the Shared Collateral Documents, this Agreement or
any other document made, delivered or given in connection therewith, in each
case whether on account of principal, interest, guarantee obligations, fees,
indemnities, costs, expenses or otherwise.
"Senior Notes" has the meaning specified in the Collateral Trust
Agreement.
"Senior Secured Obligations" means (i) in the case of FMC, (A) the
Obligations, (B) the "Obligations" as defined in the L/C Agreement, (C) the
"Obligations" as defined in the Parent Guaranty and (D) the Astaris Secured
Payments, and (ii) in the case of any other Loan Party or Guarantor, the
obligations of such Loan Party or Guarantor under the Guaranties and the other
Loan Documents to which it is a party.
"Shared Collateral" has the meaning specified in Section 2.1 (Shared
Collateral).
"UCC" means the Uniform Commercial Code as from time to time in effect
in the State of New York; provided, however, that, in the event that, by reason
of mandatory provisions of law, any of the attachment, perfection or priority of
the Collateral Trustee's and the Secured Parties' security interest in any
Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, the term "UCC" shall mean the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of
the provisions hereof relating to such attachment, perfection or priority and
for purposes of definitions related to such provisions.
"1992 Indenture" means the Indenture, dated as of April 19, 1992,
between FMC and the 1992 Indenture Trustee, as amended, restated, supplemented
or otherwise modified from time to time.
"1992 Indenture Trustee" means Wachovia Bank, National Association, as
successor to ▇▇▇▇▇▇ Trust and Savings Bank.
"1992 Note Obligations" means any principal, interest and all other
obligations and liabilities of FMC (including interest accruing at the then
applicable rate provided in the 1992 Indenture after the maturity of the 1992
Notes and interest accruing at the then applicable rate provided in the 1992
Indenture after the filing of any petition in bankruptcy, or the
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Shared Collateral Pledge and Security Agreement
FMC Corporation
commencement of any insolvency, reorganization or like proceeding, relating to
FMC, whether or not a claim for post-filing or post-petition interest is allowed
in such proceeding), whether absolute or contingent, due or to become due, or
now existing or hereafter incurred, which may arise under, out of, or in
connection with the 1992 Indenture, the 1992 Notes, the Shared Collateral
Security Agreement or any other document made, delivered or given in connection
therewith, in each case whether on account of principal, interest, guarantee
obligations, fees, indemnities, costs, expenses or otherwise.
"1992 Notes" means the existing public debt issued pursuant to the
1992 Indenture.
"1996 Indenture" means the Indenture, dated as of July 1, 1996,
between FMC and the 1996 Indenture Trustee, as amended, restated, supplemented
or otherwise modified from time to time.
"1996 Indenture Trustee" means Wachovia Bank, National Association, as
successor to ▇▇▇▇▇▇ Trust and Savings Bank.
"1996 Note Obligations" means any principal, interest and all other
obligations and liabilities of FMC (including interest accruing at the then
applicable rate provided in the 1996 Indenture after the maturity of the 1996
Notes and interest accruing at the then applicable rate provided in the 1996
Indenture after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to FMC, whether or
not a claim for post-filing or post-petition interest is allowed in such
proceeding), whether absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with the 1996 Indenture, the 1996 Notes, the Shared Collateral Security
Agreement or any other document made, delivered or given in connection
therewith, in each case whether on account of principal, interest, guarantee
obligations, fees, indemnities, costs, expenses or otherwise.
"1996 Notes" means the existing public debt issued pursuant to the
1996 Indenture.
Section 1.2 Certain Other Terms
(a) 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 mean "to but excluding" and the
word "through" means "to and including."
(b) The terms "herein," "hereof," "hereto" 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.
(c) References herein to an Annex, Schedule, Article, Section,
subsection or clause refer to the appropriate Annex or Schedule to, or Article,
Section, subsection or clause in this Agreement.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
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Shared Collateral Pledge and Security Agreement
FMC Corporation
(e) Where the context requires, provisions relating to any Shared
Collateral, when used in relation to a Grantor, shall refer to such Grantor's
Collateral or any relevant part thereof.
(f) Any reference in this Agreement to a Loan Document shall include
all appendices, exhibits and schedules thereto, and, unless specifically stated
otherwise all amendments, restatements, supplements or other modifications
thereto, and as the same may be in effect at any time such reference becomes
operative.
(g) The term "including" means "including without limitation" except
when used in the computation of time periods.
(h) The terms "Lender," "Issuer," "Bank Administrative Agent,"
"Collateral Trustee" and "Secured Party" "1992 Indenture Trustee," "1996
Indenture Trustee," "Senior Notes Indenture Trustee" include their respective
successors.
(i) References in this Agreement to any statute shall be to such
statute as amended or modified and in effect from time to time.
Article II. Grant of Security Interest
Section 2.1 Shared Collateral
For the purposes of this Agreement, all of the following property now
owned or at any time hereafter acquired by a Grantor or in which a Grantor now
has or at any time in the future may acquire any right, title or interests is
collectively referred to as the "Shared Collateral":
(a) Pledged Stock;
(b) Pledged LLC Interests;
(c) Pledged Partnership Interests;
(d) Pledged Notes;
(e) all the Equipment located at any Principal Property ("Principal
Property Equipment");
(f) all books and records pertaining to the property described in this
Section 2.1; and
(g) to the extent not otherwise included, all Proceeds.
Section 2.2 Grant of Security Interest in Shared Collateral
(a) FMC, as collateral security for the full, prompt and complete
payment and performance when due (whether at stated maturity, by acceleration or
otherwise) of the Secured Obligations, hereby collaterally assigns, mortgages,
pledges and hypothecates to the Collateral Trustee for the benefit of the
Secured Parties, and grants to the Collateral Trustee for the benefit
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Shared Collateral Pledge and Security Agreement
FMC Corporation
of the Secured Parties a lien on and security interest in, all of its right,
title and interest in, to and under the Shared Collateral of FMC.
(b) Each Grantor, other than FMC, as collateral security for the full,
prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of the Secured Obligations, hereby
collaterally assigns, mortgages, pledges and hypothecates to the Collateral
Trustee for the benefit of the Secured Parties a lien on and security interest
in, all of its rights title and interest in, to and under the Shared Collateral
of such Grantor.
(c) Notwithstanding anything contained in this Agreement to the
contrary, the parties hereto acknowledge and agree that the rights, powers and
remedies of the Collateral Trustee or the Secured Parties with respect to the
Pledged Stock of FMC Wyoming shall be subject to the provisions of the FMC
Wyoming Agreement as if such parties were acting in place of FMC under the terms
of the FMC Wyoming Agreement.
Section 2.3 Collateral Account
The Collateral Trustee shall establish a Collateral Account as set
forth in the Collateral Trust Agreement. FMC agrees that such Collateral Account
shall be under the sole dominion and control of the Collateral Trustee. The
Collateral Trustee shall be the Entitlement Holder with respect to each
Securities Account and the only Person authorized to give Entitlement Orders
with respect thereto. Without limiting the foregoing, funds on deposit in the
Collateral Account may be invested as set forth in the Collateral Trust
Agreement. Neither FMC nor any other Person claiming on behalf of or through FMC
shall have any right to demand payment of any funds held in the Collateral
Account at any time prior to the termination of all outstanding Secured
Obligations. The Collateral Trustee shall apply all funds on deposit in the
Collateral Account as provided in the Collateral Trust Agreement.
Article III. Representations and Warranties
Each Grantor hereby represents and warrants to the Collateral Trustee
and the other Secured Parties that:
Section 3.1 Title; No Other Liens
Except for the Lien granted to the Collateral Trustee pursuant to this
Agreement and Customary Permitted Liens, such Grantor is the record and
beneficial owner of the Pledged Collateral pledged by it hereunder constituting
Instruments or certificated securities and has rights in or the power to
transfer each other item of Shared Collateral in which a Lien is granted by it
hereunder, free and clear of any Lien.
Section 3.2 Perfection and Priority
The security interest granted pursuant to this Agreement shall
constitute a valid and continuing perfected security interest in favor of the
Collateral Trustee in the Shared Collateral for which perfection is governed by
the UCC upon (i) the completion of the filings and other actions specified on
Schedule 3 (Filings) (which, in the case of all filings and other documents
referred to on such schedule, have been delivered to the Collateral Trustee in
completed and duly executed form), and (ii) the delivery to the Collateral
Trustee of all Shared Collateral consisting of Instruments and certificated
securities, in each case properly endorsed for
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Shared Collateral Pledge and Security Agreement
FMC Corporation
transfer to the Collateral Trustee or in blank. Such security interest shall be
prior to all other Liens on the Shared Collateral except for Customary Permitted
Liens having priority over the Collateral Trustee's Lien by operation of law or
otherwise as permitted under the Credit Agreement and the other Secured Debt
Instruments.
Section 3.3 Name; Jurisdiction of Organization; Chief Executive Office
(a) Except as set forth on Schedule 1 (State of Incorporation;
Principal Executive Office), within the five-year period preceding the date
hereof such Grantor has not had, or operated in any jurisdiction, under any
trade name, fictitious name or other name other than its legal name.
(b) On the date hereof such Grantor's jurisdiction of organization,
organizational identification number, if any, and the location of such Grantor's
chief executive office or sole place of business is specified on Schedule 1
(State of Incorporation; Principal Executive Office).
Section 3.4 Pledged Collateral
(a) The Pledged Stock, Pledged Partnership Interests and Pledged LLC
Interests pledged hereunder by such Grantor are listed on Schedule 2 (Pledged
Collateral) and constitute that percentage of the issued and outstanding equity
of all classes of each issuer thereof as set forth on Schedule 2 (Pledged
Collateral).
(b) All of the Pledged Stock, Pledged Partnership Interests and
Pledged LLC Interests have been duly and validly issued and are fully paid and
nonassessable.
(c) Each of the Pledged Notes constitutes the legal, valid and binding
obligation of the obligor with respect thereto, enforceable in accordance with
its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, and general equitable principles (whether
considered in a proceeding in equity or at law).
(d) All Pledged Collateral and, if applicable, any Additional Pledged
Collateral, consisting of certificated securities or Instruments has been
delivered to the Collateral Trustee in accordance with Section 4.4(a) (Pledged
Collateral).
(e) Other than the Pledged Partnership Interests and the Pledged LLC
Interests that constitute General Intangibles, there is no Pledged Collateral
other than that represented by certificated securities or Instruments in the
possession of the Collateral Trustee.
Article IV. Covenants
Each Grantor agrees with the Collateral Trustee to the following, as
long as any Secured Obligations remain outstanding:
Section 4.1 Generally
Except for the Lien granted to the Collateral Trustee pursuant to this
Agreement and the other Liens permitted to exist on the Shared Collateral under
the Credit Agreement and the other Secured Debt Instruments, such Grantor shall
(a) not create or suffer to exist any Lien
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Shared Collateral Pledge and Security Agreement
FMC Corporation
upon or with respect to any Shared Collateral, (b) not use or permit any Shared
Collateral to be used unlawfully or in violation of any provision of this
Agreement, the Credit Agreement, any other Secured Debt Instrument, any
Requirement of Law or any policy of insurance covering the Shared Collateral,
(c) not sell, transfer or assign (by operation of law or otherwise) any Shared
Collateral except as permitted under the Credit Agreement and any other Secured
Debt Instrument, (d) not enter into any agreement or undertaking restricting the
right or ability of such Grantor or the Collateral Trustee to sell, assign or
transfer any Shared Collateral if such restriction would have a Material Adverse
Effect and (e) promptly notify the Collateral Trustee in writing of its entry
into any agreement or assumption or undertaking that restricts the ability to
sell, assign or transfer any Shared Collateral regardless of whether or not it
has a Material Adverse Effect.
Section 4.2 Maintenance of Perfected Security Interest; Further
Documentation
(a) Such Grantor shall maintain the security interest created by this
Agreement as a perfected security interest having at least the priority
described in Section 3.2 (Perfection and Priority) and shall defend such
security interest against the claims and demands of all Persons.
(b) Such Grantor shall furnish to the Collateral Trustee from time to
time statements and schedules further identifying and describing the Shared
Collateral and such other reports in connection with the Shared Collateral as
the Collateral Trustee may reasonably request, all in reasonable detail.
(c) At any time and from time to time, upon the written request of the
Collateral Trustee, and at the sole expense of such Grantor, such Grantor shall
promptly and duly execute and deliver, and have recorded, such further
instruments and documents and take such further action as the Collateral Trustee
may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
including the filing of any financing or continuation statement under the UCC
(or other similar laws) in effect in any jurisdiction with respect to the
security interest created hereby.
Section 4.3 Changes in Locations, Name, Etc.
(a) Except upon 15 days' prior written notice to the Collateral
Trustee and delivery to the Collateral Trustee of all additional executed
financing statements and other documents reasonably requested by the Collateral
Trustee to maintain the validity, perfection and priority of the security
interests provided for herein, such Grantor shall not do any of the following:
(i) permit any Principal Property Equipment to be kept at a location
other than the Principal Properties;
(ii) change its jurisdiction of organization or the location of its
chief executive office or sole place of business from that referred to in
Section 3.3 (Name; Jurisdiction of Organization; Chief Executive Office);
or
(iii) change its name, identity or corporate structure to such an
extent that any financing statement filed in connection with this Agreement
would become misleading.
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FMC Corporation
(b) Such Grantor shall keep and maintain at its own cost and expense
satisfactory and complete records of the Shared Collateral, including a record
of all payments received and all credits granted with respect to the Shared
Collateral and all other dealings with the Shared Collateral.
Section 4.4 Pledged Collateral
(a) Such Grantor shall deliver to the Collateral Trustee, all
certificates and Instruments representing or evidencing any Pledged Collateral
(including Additional Pledged Collateral), whether now existing or hereafter
acquired, in suitable form for transfer by delivery or, as applicable,
accompanied by such Grantor's endorsement, where necessary, or duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to the Collateral Trustee, together, in respect of any Additional
Pledged Collateral, with a Pledge Amendment, duly executed by the Grantor, in
substantially the form of Annex I (Form of Pledge Amendment) or such other
documentation acceptable to the Collateral Trustee. Such Grantor authorizes the
Collateral Trustee to attach each Pledge Amendment to this Agreement. During the
continuance of an Actionable Default, the Collateral Trustee shall have the
right subject to the provisions of the Collateral Trust Agreement, at any time
in its discretion and without notice to the Grantor, to transfer to or to
register in its name or in the name of its nominees any Pledged Collateral.
During the continuance of an Actionable Default, the Collateral Trustee shall
have the right subject to the provisions of the Collateral Trust Agreement at
any time to exchange any certificate or instrument representing or evidencing
any Pledged Collateral for certificates or instruments of smaller or larger
denominations.
(b) Except as provided in Article V (), such Grantor shall be entitled
to receive all cash dividends paid in respect of the Pledged Collateral. Any
sums paid upon or in respect of any Pledged Collateral upon the liquidation or
dissolution of any issuer of any Pledged Collateral, any distribution of capital
made on or in respect of any Pledged Collateral or any property distributed upon
or with respect to any Pledged Collateral pursuant to the recapitalization or
reclassification of the capital of any issuer of Pledged Collateral or pursuant
to the reorganization thereof shall during the continuance of an Actionable
Default, unless otherwise subject to a perfected security interest in favor of
the Collateral Trustee, be delivered to the Collateral Trustee to be held by it
hereunder as additional collateral security for the Secured Obligations. If any
sum of money or property so paid or distributed in respect of any Pledged
Collateral shall be received by such Grantor, such Grantor shall, until such
money or property is paid or delivered to the Collateral Trustee, hold such
money or property in trust for the Collateral Trustee, segregated from other
funds of such Grantor, as additional security for the Secured Obligations.
(c) Except as provided in Article V (), such Grantor shall be entitled
to exercise all voting, consent and corporate rights with respect to the Pledged
Collateral; provided, however, that no vote shall be cast, consent given or
right exercised or other action taken by such Grantor that would impair the
Shared Collateral, be inconsistent with or result in any violation of any
provision of the Credit Agreement, this Agreement or any other Secured Debt
Instrument or, without prior notice to the Collateral Trustee, enable or permit
any issuer of Pledged Collateral to issue to such Grantor any stock or other
equity securities of any nature or to issue to such Grantor any other securities
convertible into or granting the right to purchase or exchange for any stock or
other equity securities of any nature of any issuer of Pledged Collateral.
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Shared Collateral Pledge and Security Agreement
FMC Corporation
(d) In the case of each Grantor that is an issuer of Pledged
Collateral, such Grantor agrees to be bound by the terms of this Agreement
relating to the Pledged Collateral issued by it and shall comply with such terms
insofar as such terms are applicable to it. In the case of each Grantor that is
a partner in a Partnership, such Grantor hereby consents to the extent required
by the applicable Partnership Agreement to the pledge by each other Grantor,
pursuant to the terms hereof, of the Pledged Partnership Interests in such
Partnership and to the transfer of such Pledged Partnership Interests to the
Collateral Trustee or its nominee and, during the continuance of an Actionable
Default, to the substitution of the Collateral Trustee or its nominee as a
substituted partner in such Partnership with all the rights, powers and duties
of a general partner or a limited partner, as the case may be. In the case of
each Grantor member of an LLC, such Grantor hereby consents to the extent
required by the applicable LLC Agreement to the pledge by each other Grantor,
pursuant to the terms hereof, of the Pledged LLC Interests in such LLC and,
during the continuance of an Actionable Default, to the transfer of such Pledged
LLC Interests to the Collateral Trustee or its nominee and to the substitution
of the Collateral Trustee or its nominee as a substituted member of the LLC with
all the rights, powers and duties of a member of the LLC in question.
(e) Such Grantor shall not agree to any amendment of an LLC Agreement
or Partnership Agreement that in any way adversely affects the perfection of the
security interest of the Collateral Trustee in the Pledged Partnership Interests
or Pledged LLC Interests pledged by such Grantor hereunder, including any
amendment electing to treat the membership interest or partnership interest of
such Grantor as a security under Section 8-103 of the UCC.
Section 4.5 Payment of Obligations
Such Grantor shall pay and discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all taxes,
assessments and governmental charges or levies imposed upon the Shared
Collateral or in respect of income or profits therefrom, as well as all claims
of any kind (including claims for labor, materials and supplies) against or with
respect to the Shared Collateral, except that no such charge need be paid if the
amount or validity thereof is currently being contested in good faith by
appropriate proceedings, reserves in conformity with GAAP with respect thereto
have been provided on the books of such Grantor and such proceedings could not
reasonably be expected to result in the sale, forfeiture or loss of any material
portion of the Shared Collateral or any interest therein.
Section 4.6 Delivery of Instruments.
If any amount payable under or in connection with any of the Shared
Collateral owned by such Grantor shall be or become evidenced by an Instrument,
such Grantor shall immediately deliver such Instrument to the Collateral
Trustee, duly indorsed in a manner satisfactory to the Collateral Trustee, or,
if consented to by the Collateral Trustee, shall ▇▇▇▇ all such Instruments and
with the following legend: "This writing and the obligations evidenced or
secured hereby are subject to the security interest of Citibank N.A., as
Collateral Trustee".
Section 4.7 Insurance
Such Grantor shall (i) maintain, and cause to be maintained for each
of its Subsidiaries all insurance required by the Credit Agreement, the Shared
Collateral Documents or any other Secured Debt Document and (ii) cause all such
insurance to name the Collateral Trustee on behalf of the Secured Parties as
additional insured or loss payee, as appropriate, and to provide
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Shared Collateral Pledge and Security Agreement
FMC Corporation
that no cancellation, material addition in amount or material change in coverage
shall be effective until after 30 days' written notice thereof to the Collateral
Trustee. All insurance proceeds with respect to the Shared Collateral shall be
applied as set forth in the Credit Agreement; provided, that if required by the
Bank Administrative Agent or the Required Holders of Secured Debt, as
applicable, after receipt of a Notice of Actionable Default, all insurance
proceeds shall be held by the Collateral Trustee and deposited into the
Collateral Account.
Article V. Remedial Provisions
Section 5.1 Code and Other Remedies
During the continuance of an Actionable Default, the Collateral
Trustee may (subject to the terms of the Collateral Trust Agreement) exercise,
in addition to all other rights and remedies granted to it in this Agreement and
in any other instrument or agreement securing, evidencing or relating to the
Secured Obligations, all rights and remedies of a secured party under the UCC or
any other applicable law. Without limiting the generality of the foregoing, the
Collateral Trustee, without demand of performance or other demand, presentment,
protest, advertisement or notice of any kind (except any notice required by law
referred to below) to or upon any Grantor or any other Person (all and each of
which demands, defenses, advertisements and notices are hereby waived), may
(subject to the terms of the Collateral Trust Agreement) in such circumstances
forthwith collect, receive, appropriate and realize upon any Shared Collateral,
and may forthwith sell, lease, assign, give option or options to purchase, or
otherwise dispose of and deliver any Shared Collateral (or contract to do any of
the foregoing), in one or more parcels at public or private sale or sales, at
any exchange, broker's board or office of the Collateral Trustee or any Lender
or elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Collateral Trustee shall have the right upon
any such public sale or sales, and, to the extent permitted by law, upon any
such private sale or sales, to purchase the whole or any part of the Shared
Collateral so sold, free of any right or equity of redemption in any Grantor,
which right or equity is hereby waived and released. Each Grantor further
agrees, at the Collateral Trustee's request, during the continuance of an
Actionable Default, to assemble the Shared Collateral and make it available to
the Collateral Trustee at places that the Collateral Trustee shall reasonably
select, whether at such Grantor's premises or elsewhere. The Collateral Trustee
shall apply the net proceeds of any action taken by it pursuant to this Section
5.1, after deducting all reasonable costs and expenses of every kind incurred in
connection therewith or incidental to the care or safekeeping of any Shared
Collateral or in any way relating to the Shared Collateral or the rights of the
Collateral Trustee and any other Secured Party hereunder, including reasonable
attorneys' fees and disbursements, to the payment in whole or in part of the
Secured Obligations, in such order as the Collateral Trust Agreement shall
prescribe, and only after such application and after the payment by the
Collateral Trustee of any other amount required by any provision of law, need
the Collateral Trustee account for the surplus, if any, to any Grantor. To the
extent permitted by applicable law, each Grantor waives all claims, damages and
demands it may acquire against the Collateral Trustee or any other Secured Party
arising out of the exercise by them of any rights hereunder. If any notice of a
proposed sale or other disposition of Shared Collateral shall be required by
law, such notice shall be deemed reasonable and proper if given at least 10 days
before such sale or other disposition.
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Shared Collateral Pledge and Security Agreement
FMC Corporation
Section 5.2 Pledged Collateral
(a) During the continuance of an Actionable Default, upon notice by
the Collateral Trustee to the relevant Grantor or Grantors, (i) the Collateral
Trustee shall have the right to receive any Proceeds of the Pledged Collateral
and make application thereof to the Obligations in the order set forth in the
Collateral Trust Agreement and (ii) the Collateral Trustee or its nominee may
(subject to the terms of the Collateral Trust Agreement) exercise (A) any
voting, consent, corporate and other right pertaining to the Pledged Collateral
at any meeting of shareholders, partners or members, as the case may be, of the
relevant issuer or issuers of Pledged Collateral or otherwise and (B) any right
of conversion, exchange and subscription and any other right, privilege or
option pertaining to the Pledged Collateral as if it were the absolute owner
thereof (including the right to exchange at its discretion any of the Pledged
Collateral upon the merger, consolidation, reorganization, recapitalization or
other fundamental change in the corporate structure of any issuer of Pledged
Securities, the right to deposit and deliver any Pledged Collateral with any
committee, depositary, transfer agent, registrar or other designated agency upon
such terms and conditions as the Collateral Trustee may determine), all without
liability except to account for property actually received by it; provided,
however, that the Collateral Trustee shall have no duty to any Grantor to
exercise any such right, privilege or option and shall not be responsible for
any failure to do so or delay in so doing.
(b) In order to permit the Collateral Trustee to exercise the voting
and other consensual rights that it may be entitled to exercise pursuant hereto
and to receive all dividends and other distributions that it may be entitled to
receive hereunder, (i) each Grantor shall promptly execute and deliver (or cause
to be executed and delivered) to the Collateral Trustee all such proxies,
dividend payment orders and other instruments as the Collateral Trustee may from
time to time reasonably request and (ii) without limiting the effect of clause
(i) above, such Grantor hereby grants to the Collateral Trustee an irrevocable
proxy to vote all or any part of the Pledged Collateral and to exercise all
other rights, powers, privileges and remedies to which a holder of the Pledged
Collateral would be entitled (including giving or withholding written consents
of shareholders, partners or members, as the case may be, calling special
meetings of shareholders, partners or members, as the case may be, and voting at
such meetings), which proxy shall only become effective, automatically and
without the necessity of any action (including any transfer of any Pledged
Collateral on the record books of the issuer thereof) by any other person
(including the issuer of such Pledged Collateral or any officer or agent
thereof) during the continuance of an Actionable Default and which proxy shall
only terminate upon the payment in full of the Secured Obligations.
(c) Each Grantor hereby expressly authorizes and instructs each issuer
of any Pledged Collateral pledged hereunder by such Grantor to (i) comply with
any instruction received by it from the Collateral Trustee in writing that (A)
states that an Actionable Default has occurred and is continuing and (B) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees that such issuer
shall be fully protected in so complying and (ii) unless otherwise expressly
permitted hereby, pay any dividend or other payment with respect to the Pledged
Collateral directly to the Collateral Trustee.
Section 5.3 Proceeds to be Turned Over To Collateral Trustee
During the continuance of an Actionable Default, all Proceeds received
by the Collateral Trustee hereunder shall be held by the Collateral Trustee in a
Collateral Account. All
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Shared Collateral Pledge and Security Agreement
FMC Corporation
Proceeds while held by the Collateral Trustee in a Collateral Account (or by
such Grantor in trust for the Collateral Trustee) shall continue to be held as
collateral security for the Secured Obligations and shall not constitute payment
thereof until applied as provided in the Collateral Trust Agreement.
Section 5.4 Deficiency
Each Grantor shall remain liable for any deficiency, if the proceeds
of any sale or other disposition of the Shared Collateral are insufficient to
pay the Secured Obligations, and the fees and disbursements of any attorney
employed by the Collateral Trustee or any other Secured Party to collect such
deficiency.
Section 5.5 Execution of Financing Statements
Each Grantor authorizes the Collateral Trustee to file or record
financing statements and other filing or recording documents or instruments with
respect to the Shared Collateral without the signature of such Grantor in such
form and in such offices as the Collateral Trustee reasonably determines
appropriate to perfect the security interests of the Collateral Trustee under
this Agreement. A photographic or other reproduction of this Agreement shall be
sufficient as a financing statement or other filing or recording document or
instrument for filing or recording in any jurisdiction.
Article VI. Miscellaneous
Section 6.1 Amendments in Writing
None of the terms or provisions of this Agreement may be waived,
amended, supplemented or otherwise modified except in accordance with Section
8.1 (Amendments, Waivers, Etc.) of the Collateral Trust Agreement.
Section 6.2 Notices
All notices, requests and demands to or upon the Collateral Trustee or
any Grantor hereunder shall be effected in the manner provided for in Section
8.2 of the Collateral Trust Agreement.
Section 6.3 No Waiver by Course of Conduct; Cumulative Remedies
Neither the Collateral Trustee nor any other Secured Party shall by
any act (except by a written instrument pursuant to Section 6.1 (Amendments in
Writing)), delay, indulgence, omission or otherwise be deemed to have waived any
right or remedy hereunder or to have acquiesced in any default or event of
default under any Secured Debt Instrument. No failure to exercise, nor any delay
in exercising, on the part of the Collateral Trustee or any other Secured Party,
any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Collateral Trustee or any other
Secured Party of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy that the Collateral Trustee or such
other Secured Party would otherwise have on any future occasion. The rights and
remedies herein provided are
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Shared Collateral Pledge and Security Agreement
FMC Corporation
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
Section 6.4 Successors and Assigns
This Agreement shall be binding upon the successors and assigns of
each Grantor and shall inure to the benefit of the Collateral Trustee and each
other Secured Party and their successors and assigns; provided, however, that no
Grantor may assign, transfer or delegate any of its rights or obligations under
this Agreement without the prior written consent of the Collateral Trustee
except as otherwise permitted under the Credit Agreement and the other Secured
Debt Instruments.
Section 6.5 Counterparts
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by telecopy), 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. Signature pages may
be detached from multiple counterparts and attached to a single counterpart so
that all signature pages are attached to the same document. Delivery of an
executed counterpart by telecopy shall be effective as delivery of a manually
executed counterpart.
Section 6.6 Severability
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 6.7 Section Headings
The Article and Section titles contained in this Agreement are, and
shall be, without substantive meaning or content of any kind whatsoever and are
not part of the agreement of the parties hereto.
Section 6.8 Entire Agreement
This Agreement together with the other Secured Debt Instruments and
the Collateral Trust Agreement represents the entire agreement of the parties
and supersedes all prior agreements and understandings relating to the subject
matter hereof.
Section 6.9 Governing Law
This Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York.
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Shared Collateral Pledge and Security Agreement
FMC Corporation
Section 6.10 Additional Grantors
If, pursuant to Section 7.11 (Additional Collateral and Guaranties) of
the Credit Agreement, FMC shall be required to cause any Subsidiary that is not
a Grantor to become a Grantor hereunder, such Subsidiary shall execute and
deliver to the Collateral Trustee a Joinder Agreement in the form of Annex 2
(Form of Joinder Agreement) and shall thereafter for all purposes be a party
hereto and have the same rights, benefits and obligations as a Grantor party
hereto on the date hereof.
Section 6.11 Reinstatement
Each Grantor further agrees that, if any payment made by any Grantor
or other Person and applied to the Secured 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 the proceeds of
the Shared Collateral are required to be returned by any Secured Party to such
Grantor, its estate, trustee, receiver or any other party, including any
Grantor, under any bankruptcy law, state or federal law, common law or equitable
cause, then, to the extent of such payment or repayment, any Lien or other
Shared Collateral securing such liability shall be and remain in full force and
effect, as fully as if such payment had never been made or, if prior thereto the
Lien granted hereby or other Shared Collateral securing such liability hereunder
shall have been released or terminated by virtue of such cancellation or
surrender, such Lien or other Shared Collateral shall be reinstated in full
force and effect, and such prior cancellation or surrender shall not diminish,
release, discharge, impair or otherwise affect any Lien or other Shared
Collateral securing the obligations of any Grantor in respect of the amount of
such payment.
Section 6.12 Concerning the Collateral Trustee.
The rights, privileges, protections and immunities afforded the
Collateral Trustee pursuant to the Collateral Trust Agreement are hereby
incorporated herein as if set forth herein in full.
[Signature Pages Follow]
17
In witness whereof, each of the undersigned has caused this Shared
Collateral Pledge and Security Agreement to be duly executed and delivered as of
the date first above written.
FMC Corporation,
as Grantor
By:
-----------------------------------
Name:
Title:
Accepted and Agreed
as of the date first above written:
CITIBANK, N.A.,
as Collateral Trustee
By:
----------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement for FMC
Corporation's Credit Agreement]
Annex 1
TO
Shared Collateral Pledge and Security Agreement
Form of Pledge Amendment
This Pledge Amendment, dated as of , 20 , is delivered
---------- -- --
pursuant to Section 4.4(a) (Pledged Collateral) of the Shared Collateral Pledge
and Security Agreement, dated as of October 21, 2002, by FMC CORPORATION (the
"FMC"), the undersigned Grantor and the other Subsidiaries of FMC from time to
time party thereto as Grantors in favor of Citibank, N.A., as Collateral Trustee
for the Secured Parties referred to therein (the "Shared Collateral Security
Agreement") and the undersigned hereby agrees that this Pledge Amendment may be
attached to the Shared Collateral Security Agreement and that the Pledged
Collateral listed on this Pledge Amendment shall be and become part of the
Shared Collateral referred to in the Shared Collateral Security Agreement and
shall secure all Secured Obligations of the undersigned. Capitalized terms used
herein but not defined herein are used herein with the meaning given them in the
Shared Collateral Security Agreement.
[Grantor]
By:
-----------------------------------
Name:
Title:
Pledged Stock
Number of
Shares,
Units or
Issuer Class Certificate No(s). Par Value Interests
------ ----- ------------------ --------- ---------
Pledged Note
Principal
Issuer Description of Debt Certificate No(s). Final Maturity Amount
------ ------------------- ------------------ -------------- ---------
A1-1
Acknowledged and Agreed
as of the date first above written:
CITIBANK, N.A.,
as Collateral Trustee
By:
---------------------------------
Name:
Title:
A1-2
Annex 2
TO
Shared Collateral Pledge and Security Agreement
Form of Joinder Agreement
This Joinder Agreement, dated as of , 20 , is delivered
--------- -- --
pursuant to Section 6.10 (Additional Grantors) of the Shared Collateral Pledge
and Security Agreement, dated as of October 21, 2002, by FMC CORPORATION (the
"FMC") and the Subsidiaries of FMC party thereto from time to time as Grantors
in favor of the Citibank, N.A., as Collateral Trustee for the Secured Parties
referred to therein (the "Shared Collateral Security Agreement"). Capitalized
terms used herein but not defined herein are used with the meanings given them
in the Shared Collateral Security Agreement.
By executing and delivering this Joinder Agreement, the undersigned,
as provided in Section 6.10 (Additional Grantors) of the Shared Collateral
Security Agreement, hereby becomes a party to each of the Shared Collateral
Security Agreement and the Collateral Trust Agreement as a Grantor thereunder
with the same force and effect as if originally named as a Grantor therein and
agrees to be bound by the provisions thereof and, without limiting the
generality of the foregoing, hereby grants to the Collateral Trustee for the
benefit of the Secured Parties, as collateral security for the full, prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the Secured Obligations of the undersigned, hereby
collaterally assigns, conveys, mortgages, pledges, hypothecates and transfers to
the Collateral Trustee for the benefit of the Secured Parties and grants to the
Collateral Trustee for the benefit of the Secured Parties a Lien on and security
interest in, all of its right, title and interest in, to and under the Shared
Collateral and expressly assumes all obligations and liabilities of a Grantor
under the Shared Collateral Security Agreement.
The information set forth in Annex 1-A is hereby added to the
information set forth in Schedules 1 through 4 to the Shared Collateral Security
Agreement.
The undersigned hereby represents and warrants that each of the
representations and warranties contained in Article III (Representations and
Warranties) of the Shared Collateral Security Agreement applicable to it is true
and correct on and as the date hereof as if made on and as of such date.
In Witness Whereof, the undersigned has caused this Joinder Agreement
to be duly executed and delivered as of the date first above written.
[Additional Grantor]
By:
---------------------------------
Name:
Title:
A2-1
Acknowledged and Agreed
as of the date first above written:
CITIBANK, N.A.,
as Collateral Trustee
By:
---------------------------------
Name:
Title:
A2-2