Exhibit 10.1
SUCCESSION AGREEMENT
DATED AS OF AUGUST 6, 2002
AMONG
FMC CORPORATION
AND
BNY MIDWEST TRUST COMPANY
as Trustee,
AND
WACHOVIA BANK, NATIONAL ASSOCIATION
as Successor Trustee
THIS SUCCESSION AGREEMENT, dated as of August 6, 2002, but not effective until
the date of execution and delivery hereof by all parties hereto, among FMC
Corporation, a Delaware corporation ("Company"), BNY Midwest Trust Company, an
Illinois trust company ("Trustee"), and Wachovia Bank, National Association, a
national banking association ("Successor Trustee"),
WITNESSETH:
WHEREAS, the Company and Trustee are parties to an Indenture dated as of April
1, 1992 ("1992 "Indenture"), under which the Company has issued debt securities,
of which one series with an aggregate principal amount of $160,490,000 is
currently outstanding; and
WHEREAS, the Company and Trustee are parties to an Indenture dated as of July 1,
1996 ("1996 "Indenture"; together with the 1992 Indenture, "Indentures"), under
which the Company has issued debt securities, of which three series with an
aggregate outstanding principal amount of $342,500,000 are currently
outstanding; and
WHEREAS, Exhibit A hereto lists all the series of debt securities outstanding
under the 1992 Indenture or the 1996 Indenture; and
WHEREAS, the Company and Trustee are parties to an Exchange Rate Agent Agreement
dated as of January 24, 1997 ("1997 Exchange Rate Agreement"), pursuant to which
the Company has appointed the Trustee to serve as exchange rate agent for the
Company's Medium-Term Notes, Series A, issued under the 1996 Indenture; and
WHEREAS, the Company and Trustee are parties to an Exchange Rate Agent Agreement
dated as of November 12, 1998 ("1998 Exchange Rate Agreement"; together with the
1997 Exchange Rate Agreement, "Exchange Rate Agreements"), pursuant to which the
Company has appointed the Trustee to serve as exchange rate agent for the
Company's Medium-Term Notes, Series B, issued under the 1996 Indenture; and
WHEREAS, the Company and Trustee are parties to a Calculation Agent Agreement
dated as of January 24, 1997 ("1997 Calculation Agreement"), pursuant to which
the Company has appointed the Trustee to serve as calculation agent for the
Company's Medium-Term Notes, Series A, issued under the 1996 Indenture; and
WHEREAS, the Company and Trustee are parties to a Calculation Agent Agreement
dated as of November 12, 1998 ("1998 Calculation Agreement"; together with the
1997 Calculation Agreement, "Calculation Agreements"), pursuant to which the
Company has appointed the Trustee to serve as calculation agent for the
Company's Medium-Term Notes, Series B, issued under the 1996 Indenture; and
WHEREAS, each of the above-referenced indentures and agreements provides that in
certain circumstances the Trustee may resign or be removed from its position
thereunder; and
WHEREAS, the Trustee has given written notice to the Company of the Trustee's
resignation as trustee under the Indentures, as exchange rate agent under the
Exchange Rate Agreements, and as calculation agent under the Calculation
Agreements; such notice made pursuant to Section 6.8 of the Indentures, Section
7(a) of the Exchange Rate Agreements, and Section 6(a) of the Calculation
Agreements; and
WHEREAS, the Company desires to appoint the Successor Trustee to serve as
successor trustee under the Indentures, to serve as successor exchange rate
agent under the Exchange Rate Agreements, and to serve as successor calculation
agent under the Calculation Agreements; such appointments to be made pursuant to
Section 6.8 of the Indenture, Section 7(b) of the Exchange Rate Agreements, and
Section 6(b) of the Calculation Agreements; and
WHEREAS, such appointments by the Company shall not be effective until their
acceptance hereunder by the Successor Trustee;
NOW THEREFORE, pursuant to Section 6.8 of the Indentures, Section 7 of the
Exchange Rate Agreements and Section 6 of the Calculation Agreements, and in
consideration of the covenants herein contained, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. All capitalized terms and phrases used in this Agreement and not defined
herein shall have the meanings ascribed to them in the Indentures.
2. (a) The Company hereby acknowledges receipt of the Trustee's notice of
resignation as trustee, exchange rate agent and calculation agent, and waives
the 60-day notice requirement in Section 7(a) of the Exchange Rate Agreements
and Section 6(a) of the Calculation Agreements, and accepts such resignation,
which shall become effective at the close of business on the effective date of
this Agreement.
(b) The Company hereby appoints the Successor Trustee to serve as trustee
under the Indentures, as exchange rate agent under the Exchange Rate Agreements,
and as calculation agent under the Calculation Agreements, such appointments to
become effective at the close of business on the effective date of this
Agreement.
(c) With respect to its appointments in Section 2(b), the Company hereby
represents and warrants that its appointment of Successor Trustee as trustee is
authorized by resolution of the Board of Directors of Company, as required by
Section 6.8 of the Indentures.
3. The Successor Trustee hereby accepts, effective at the close of business on
the effective date of this Agreement, its appointment as trustee under the
Indentures, as exchange rate agent under the Exchange Rate Agreements, and as
calculation agent under the Calculation Agreements.
(a) Pursuant to Section 6.8 of the Indentures, the Successor Trustee hereby
assumes all the rights, powers and duties of the trustee under the Indentures,
and agrees to perform said rights, powers and duties upon the terms and
conditions set forth in the Indentures. The Successor Trustee accepts the
transfer hereby from the Trustee of all the rights, powers, trusts, properties,
claims, demands, causes of action, immunities, estates, titles, and liens which
the Trustee now holds under and by virtue of the Indentures. The Successor
Trustee expressly undertakes to mail a notice of its succession to all Holders
of Securities affected. The Successor Trustee represents that it is qualified
and eligible to serve as successor trustee under the provisions of Section 6.10
of the Indentures.
(b) Pursuant to Section 7(c) of the Exchange Rate Agreements, the Successor
Trustee hereby assumes and is vested with all the authority, rights, powers,
trusts, immunities, duties and obligations of the Trustee as exchange rate agent
under said agreements. The Successor Trustee shall give notice of its succession
as exchange rate agent to all Holders of Securities affected.
(c) Pursuant to Section 6(c) of the Calculation Agreements, the Successor
Trustee hereby assumes and is vested with all the authority, rights, powers,
trusts, immunities, duties and obligations of the Trustee as
calculation agent under said agreements. The Successor Trustee shall give notice
of its succession as calculation agent to all Holders of Securities affected.
4. At the request of the Company and the Successor Trustee hereby made, the
Trustee hereby transfers to the Successor Trustee all the rights, powers,
trusts, properties, claims, demands, causes of action, immunities, estates,
titles, and liens which the Trustee now holds under and by virtue of the
Indentures, and all the authority, rights, powers, trusts, immunities, duties
and obligations which the Trustee holds or to which it is subject under and by
virtue of either the Exchange Rate Agreements or the Calculation Rate
Agreements. The Trustee expressly undertakes to transfer and deliver to the
Successor Trustee as exchange rate agent, copies of any relevant records
maintained by the Trustee as predecessor exchange rate agent, and to the
Successor Trustee as calculation agent, copies of any relevant records
maintained by the Trustee as predecessor calculation agent.
5. The Trustee hereby acknowledges payment or provision for payment in full by
the Company of all amounts due to the Trustee as compensation for services or as
reimbursement of expenses incurred by the Trustee as trustee under the
Indentures, as exchange rate agent under the Exchange Rate Agreements, or as
calculation agent under the Calculation Agreements.
6. At the request of the Company for the purposes of more fully and certainly
vesting in and confirming to the Successor Trustee, the rights and powers which
the Trustee now holds under and by virtue of the Indentures, the Trustee hereby
joins in the execution hereof and agrees upon the prior written notice of the
Company and the Successor Trustee to execute, acknowledge and deliver such
further instruments of conveyance and further assurance and to so such other
things as may reasonably be required for more certainly vesting and confirming
in the Successor Trustee such rights and powers.
7. The Trustee will provide the Successor Trustee, for each of the 1992
Indenture and 1996 Indenture, with a certified list of Holders on or prior to
the conversion date. The Trustee hereby agrees to maintain all official bank
records in connection with its prior duties as Trustee including, but not
limited to, transfer records, payment records, certificate records, cremation
records, issuance records, stop payments, tax reporting and correspondence
records, all to be maintained in accordance with standard industry practice. The
Trustee will reasonably cooperate with the Successor Trustee in responding to
any inquiries received by the Successor Trustee that relate to transactions that
occurred prior to the execution and delivery date hereof. When requesting the
Trustee's assistance in responding to any such inquiry, the Successor Trustee
shall deliver said inquiry to the Trustee. The Trustee shall use reasonable
efforts to comply with all reasonable written requests made by the Successor
Trustee that are necessary or required to investigate and resolve such
inquiries.
8. On or prior to the effective date hereof the Trustee shall deliver (or
cooperate in transferring) to the Successor Trustee all monies and investments
then held (whether physically or in book-entry or similar form) by the Trustee
in any fund maintained by the Trustee under either of the Indentures, together
with a list of such funds and accounts and the monies and investments held
therein, which information shall be true and accurate in all material respects
as of the effective date hereof. The Trustee shall promptly transfer to the
Successor Trustee any other monies or investments in its possession, or received
by the Trustee, after the effective date hereof which properly relate to its
prior capacity as Trustee.
9. Upon request by the Successor Trustee, the Trustee shall execute any and all
terminations, amendments, supplements or assignments to uniform commercial code
financing statements and any other instruments necessary in order to acknowledge
the transfer to the Successor Trustee of all rights as secured party with
respect to any collateral in which the Trustee has been granted a security
interest under the relevant documents.
10. This Agreement shall be construed in accordance with and governed by the
laws of the Commonwealth of Pennsylvania.
11. This Agreement may be executed in any number of counterparts each of which
shall be an original but which together shall constitute a single instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the close of business on the day and year first above written.
BNY Midwest Trust Company, Wachovia Bank, National Association,
as Trustee, Exchange Rate Agent, as Successor Trustee, Successor Exchange
and Calculation Agent Rate Agent, and Successor Calculation
Agent
By: /s/ Judith Bartolini By: /s/ Alan Finn
------------------------------ ---------------------------
Title: Vice President Title: Vice President
FMC Corporation
By: /s/ Thomas C. Deas, Jr.
------------------------------
Title: Vice President & Treasurer
Date of Execution and Delivery: 8/9/2002
Exhibit A
Debt Securities Issued under 1992 Indenture
6.375% Senior Bonds, Due 2003 $160,490,000
Debt Securities Issued under 1996 Indenture
7.75% Senior Debentures, Due 2011 $45,500,000
7.32% Medium Term Notes, Series A, Due 2007 40,000,000
7.00% Medium Term Notes, Series A, Due 2008 77,500,000
6.75% Medium Term Notes, Series A, Due 2005 60,000,000
7.125% Medium Term Notes, Series B, Due 2002 99,500,000
6.53% Medium Term Notes, Series B, Due 2003 20,000,000