Exhibit 10.7
Execution Copy
COLLATERAL TRUST AGREEMENT
Dated as of October 21, 2002
among
FMC CORPORATION,
and Each Other Grantor From Time to Time Party Hereto,
CITICORP USA, INC.,
as the Bank Administrative Agent,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as 1992 Indenture Trustee,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as 1996 Indenture Trustee,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Senior Note Indenture Trustee
and
CITIBANK, N.A.,
as the Collateral Trustee
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153-0119
TABLE OF CONTENTS
Page
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ARTICLE I. Defined Terms....................................................................3
Section 1.1 Definitions..................................................................3
Section 1.2 Certain Other Terms..........................................................6
ARTICLE II. Certain Obligations and Duties of the Collateral Trustee.........................7
Section 2.1 Authorization to Execute Certain Documents...................................7
Section 2.2 Certain Representations and Warranties.......................................7
Section 2.3 Actions......................................................................7
Section 2.4 Limitation on Duties.........................................................8
ARTICLE III. Actionable Defaults; Remedies....................................................8
Section 3.1 Control by the Bank Administrative Agent and the Indenture Trustee...........8
Section 3.2 Notice of Actionable Default.................................................9
Section 3.3 Remedies....................................................................10
Section 3.4 Right to Initiate Judicial Proceedings, etc.................................11
Section 3.5 Appointment of a Receiver...................................................11
Section 3.6 Exercise of Powers..........................................................12
Section 3.7 Remedies Not Exclusive......................................................12
Section 3.8 Limitation by Law...........................................................12
Section 3.9 Absolute Rights of Secured Parties..........................................13
Section 3.10 Restatement of Rights.......................................................13
ARTICLE IV. Priority; Collateral Account; Application of Moneys.............................13
Section 4.1 Priority of Security Interests..............................................13
Section 4.2 The Collateral Account......................................................13
Section 4.3 Control of Collateral Account...............................................14
Section 4.4 Investment of Funds Deposited in Collateral Account.........................14
Section 4.5 Application of Moneys.......................................................14
ARTICLE V. Agreement with Collateral Trustee...............................................15
Section 5.1 Delivery of Secured Debt Instruments........................................15
Section 5.2 Compensation and Expenses...................................................15
Section 5.3 Stamp and Other Similar Taxes...............................................16
Section 5.4 Filing Fees, Excise Taxes, etc..............................................16
Section 5.5 Indemnification.............................................................16
Section 5.6 Further Assurances..........................................................17
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TABLE OF CONTENTS
(continued)
Page
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ARTICLE VI. Collateral Trustee..............................................................17
Section 6.1 Appointment of Collateral Trustee and Acceptance of Trust...................17
Section 6.2 Exculpatory Provisions......................................................17
Section 6.3 Delegation of Duties........................................................18
Section 6.4 Reliance by Collateral Trustee..............................................18
Section 6.5 Limitations on Duties of Collateral Trustee.................................19
Section 6.6 Moneys to be Held in Trust..................................................20
Section 6.7 Resignation and Removal of the Collateral Trustee...........................20
Section 6.8 Status of Successors to the Collateral Trustee..............................21
Section 6.9 Merger of the Collateral Trustee............................................21
Section 6.10 Additional Co-Trustees; Separate Trustees...................................21
ARTICLE VII. Release of Collateral...........................................................23
Section 7.1 Conditions to Release.......................................................23
Section 7.2 Effective Time of Release...................................................23
ARTICLE VIII. Miscellaneous...................................................................24
Section 8.1 Amendments, Supplements and Waivers.........................................24
Section 8.2 Notices.....................................................................25
Section 8.3 Dealings with Grantors......................................................26
Section 8.4 Claims Against the Collateral Trustee.......................................27
Section 8.5 Successors and Assigns......................................................27
Section 8.6 Counterparts................................................................27
Section 8.7 Severability................................................................27
Section 8.8 Section Headings............................................................27
Section 8.9 Conflict with other Agreements..............................................27
Section 8.10 Governing Law...............................................................27
Section 8.11 Consent to Jurisdiction; Waiver of Jury Trial...............................28
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COLLATERAL TRUST AGREEMENT
COLLATERAL TRUST AGREEMENT, dated as of October 21, 2002 (this
"Agreement"), by FMC CORPORATION ("FMC"), and each of the other entities which
becomes a party hereto pursuant to Section 6.10 of the Shared Collateral
Security Agreement (as defined below) (together with FMC, the "Grantors"),
CITICORP USA, INC., acting in its capacity as administrative agent to the Senior
Lenders (as defined below) (in such capacity, the "Bank Administrative Agent"),
WACHOVIA BANK, NATIONAL ASSOCIATION, successor to Harris Trust and Savings Bank,
acting in its capacity as trustee under the 1992 Indenture (as defined below)
(in such capacity, the "1992 Indenture Trustee"), WACHOVIA BANK, NATIONAL
ASSOCIATION, successor to Harris Trust and Savings Bank, acting in its capacity
as trustee under the 1996 Indenture (as defined below) (in such capacity, the
"1996 Indenture Trustee"), WACHOVIA BANK, NATIONAL ASSOCIATION, acting in its
capacity as trustee under the Senior Note Indenture (as defined below) (in such
capacity, the "Senior Note Indenture Trustee"), and CITIBANK, N.A., a national
banking association organized under the laws of the United States of America,
acting, except to the extent expressly stated otherwise in Section 2.2 and
Section 6.2, not in its individual capacity but solely as Collateral Trustee
under this Agreement 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 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 the Administrative Agent for the Lenders and Issuers,
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 a letter of credit agreement, dated as of October
21, 2002 (as amended, restated, supplemented or otherwise modified from time to
time, the "L/C Agreement" and 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 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 (the "Foreign Facilities" and together with
the 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, FMC entered into the Parent Guaranty dated as of October 21,
2002, pursuant to which FMC has guaranteed the Foreign Loans (the "Parent
Guaranty");
WHEREAS, FMC has issued and may issue the Senior Notes pursuant to the
Indenture dated as of October 21, 2002 (as amended, restated, supplemented or
otherwise modified from time to time, the "Senior Note Indenture"), between FMC
and the Senior Note Indenture Trustee;
WHEREAS, to induce the Senior Lenders to enter into the Credit
Facilities and/or extend financial accommodations to FMC, and to induce the
holders to purchase the Senior Notes, FMC entered into the Shared Collateral
Pledge and Security Agreement, dated as of October 21, 2002 (as amended,
restated, supplemented or otherwise modified from time to time, the "Shared
Collateral Security Agreement"), in favor of the Collateral Trustee, granting to
the Collateral Trustee liens and security interests in the Shared Collateral;
WHEREAS, in connection with the grant of security interests and liens
by FMC to the Collateral Trustee in all its title, rights and interest in and to
the Principal Properties owned by FMC, FMC executed and delivered to the
Collateral Trustee the Principal Property Mortgages;
WHEREAS, to comply with certain covenants in the 1992 Indenture and
the 1996 Indenture pursuant to which FMC issued the 1992 Notes and the 1996
Notes, respectively, FMC is granting to the Collateral Trustee for the benefit
of the 1992 Indenture Trustee a security interest in the Shared Collateral to
secure the 1992 Note Obligations, and to the 1996 Indenture Trustee a security
interest in the Shared Collateral to secure the 1996 Note Obligations, equally
and ratably with the Secured Obligations and the Senior Note Obligations for so
long as the Secured Obligations are secured; and
DECLARATION OF TRUST:
NOW, THEREFORE, to secure the payment, observance and performance of
the Secured Debt, in accordance with the provisions of the Secured Debt
Instruments and the Shared Collateral Documents, and in consideration of the
premises and the mutual agreements set forth herein, the Collateral Trustee does
hereby declare that it will hold as the Collateral Trustee in trust under this
Agreement to the extent granted and delivered to it all of its right, title and
interest in, to and under all the following (and each Grantor hereby consents
thereto) for the benefit of the Secured Parties:
(A) each Shared Collateral Document and the Shared Collateral
granted to the Collateral Trustee thereunder;
(B) the Pledged Collateral delivered to, and accepted in writing
by, the Collateral Trustee and the accompanying endorsements or instruments
of transfer duly executed in blank;
(C) each agreement or other document entered into and/or
delivered, from time to time, pursuant to Section 5.6, Section 8.1(a),
Section 8.1(b) or Section 8.1(c) of this Agreement or pursuant to the terms
of the Credit Facilities or the Shared Collateral Documents, and in each
case accepted by the Collateral Trustee in writing, and the Shared
Collateral granted and delivered to the Collateral Trustee thereunder; and
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(D) the Proceeds of each of the foregoing (collectively with
clauses (A), (B) and (C) above, the "Trust Estate");
TO HAVE AND TO HOLD the Trust Estate unto the Collateral Trustee and
its successors in trust under this Agreement and its assigns and the assigns of
its successors in trust forever;
IN TRUST NEVERTHELESS, under and subject to the terms and conditions
set forth herein and in the other Shared Collateral Documents, and for the
benefit of the Secured Parties and for the enforcement of the payment of all
Secured Debt, and for the performance of and compliance with the covenants and
conditions of the Secured Debt Instruments and each of the Shared Collateral
Documents;
PROVIDED, HOWEVER, that these presents are upon the condition that if
all of the conditions set forth in Article VII of this Agreement are satisfied
with respect to all of the Shared Collateral, then this Agreement, and the
estates and rights assigned in the Shared Collateral Documents, shall cease,
terminate and be void; otherwise they shall remain and be in full force and
effect.
IT IS HEREBY FURTHER COVENANTED AND DECLARED that the Trust Estate is
to be held and applied by the Collateral Trustee, subject to the further
covenants, conditions and trust hereinafter set forth.
ARTICLE I. Defined Terms
Section 1.1 Definitions.
-----------
(a) Unless otherwise defined herein, capitalized terms defined in the
Credit Agreement or the Shared Collateral Security Agreement and used herein
have the meanings given to them in the Credit Agreement or the Shared Collateral
Security Agreement, as the case may be; 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). The Grantor agrees to provide
prompt notice to the Collateral Trustee of any change to the definitions
contained in the Credit Agreement.
(b) The following terms shall have the following meanings:
"Actionable Default" means the occurrence and continuation of (i) a
Credit Event of Default or (ii) an Indenture Event of Default.
"Additional Grantor" means each entity which becomes a party hereto
pursuant to Section 6.10 of the Shared Collateral Security Agreement by
executing a joinder agreement.
"Astaris Agreement" has the meaning given in the recitals to this
Agreement.
"Astaris Lenders" has the meaning given in the recitals to this
Agreement.
"Astaris Secured Payments" means, the keepwell payments required to be
made by FMC to Astaris LLC pursuant to the Astaris Agreement, as in effect on
the date hereof, by FMC in favor of Astaris LLC and the lenders under a credit
agreement in connection therewith.
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"Bank Administrative Agent" has the meaning given in the introduction
to this Agreement.
"Bankruptcy Code" means Title 11 of the United States Code, 11 U.S.C.
et seq., as the same may be amended from time to time, and any successor statute
thereto.
"Business Day" means a day which is not a Saturday, Sunday or any
other day on which the Collateral Trustee, the Bank Administrative Agent, the
1992 Indenture Trustee, the 1996 Indenture Trustee, or the Senior Note Indenture
Trustee is not open for business.
"Cash Equivalents" means (a) securities issued or fully guaranteed or
insured by the United States government or any agency thereof, (b) certificates
of deposit, U.S. dollar time deposits, overnight bank deposits and bankers'
acceptances of any commercial bank organized under the laws of the United
States, any state thereof, the District of Columbia, or its branches or agencies
(fully protected against currency fluctuations) that, at the time of
acquisition, are rated at least "A-1" by Standard & Poor's Rating Services
("S&P") or "P-1" by Moody's Investors Services, Inc. ("Moody's"), (c) commercial
paper of an issuer rated at least "A-1" by S&P or "P-1" by Moody's and (d)
shares of any money market fund that (i) has at least 95% of its assets invested
continuously in the types of investments referred to in clauses (a), (b) and (c)
above, (ii) has net assets of not less than $500,000,000 and (iii) is rated at
least "A-1" by S&P or "P-1" by Moody's Investors Services, Inc.; provided,
however, that the maturities of all obligations of the type specified in clauses
(a), (b) and (c) above shall not exceed 180 days, including any fund for which
the Collateral Trustee or an affiliate of the Collateral Trustee serves as an
investment advisor, administrator, shareholder servicing agent, custodian or
subcustodian, notwithstanding that (A) the Collateral Trustee or an affiliate of
the Collateral Trustee charges and collects fees and expenses from such funds
for services rendered (provided that such charges, fees and expenses are on
terms consistent with terms negotiated at arm's length) and (B) the Collateral
Trustee charges and collects fees and expenses for services rendered, pursuant
to this Agreement.
"Cash Management Obligations" means, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of such Person in respect
of cash management services (including treasury, depository, overdraft, credit
or debit card, electronic funds transfer and other cash management arrangements)
provided by the Bank Administrative Agent, any Lender or any affiliate of any of
them, including obligations for the payment of fees, interest, charges,
expenses, attorneys' fees and disbursements in connection therewith.
"Collateral Account" has the meaning specified in Section 4.2 to this
Agreement.
"Collateral Trustee" has the meaning given in the introduction to this
Agreement.
"Collateral Trustee Fees" means all fees, costs, expenses and other
claims of the Collateral Trustee of the types described in Sections 5.2, 5.3,
5.4 and 5.5 of this Agreement.
"Collateral Trustee's Fee Agreement" means the Collateral Trustee Fee
Agreement, dated as of October 21, 2002, among the Collateral Trustee and FMC.
"Credit Agreement" has the meaning given in the recitals to this
Agreement.
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"Credit Agreement Termination Date" means the date on which all
Obligations under the Credit Agreement have been paid in full and all
Commitments and Letters of Credit thereunder have been terminated.
"Credit Documents" has the meaning given in the recitals to this
Agreement.
"Credit Event of Default" means an "Event of Default" as defined in
the Credit Agreement or the L/C Agreement.
"Credit Facilities" has the meaning given in the recitals to this
Agreement.
"Distribution Dates" means the Business Days fixed by the Bank
Administrative Agent for the distribution of all moneys held by the Collateral
Trustee in the Collateral Account, the first of which shall occur within thirty
(30) days after the giving of a Notice of Actionable Default which has not
theretofore been withdrawn and the balance of which shall, so long as such
Notice of Actionable Default shall not have been withdrawn, be on the
corresponding day in each calendar week thereafter.
"Foreign Credit Lines" means a credit facility or similar credit
arrangement (including any arrangement in connection with Permitted Vendor
Indebtedness) made available by a financial institution to Foreign Subsidiaries
or their customers, as applicable.
"Foreign Credit Obligations" means any principal, interest and all
other obligations and liabilities of FMC and any Guarantors, 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 Indebtedness guaranteed by the
Parent Guaranty 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.
"Foreign Lenders" has the meaning given in the Parent Guaranty.
"Foreign Loans" has the meaning given in the recitals to this
Agreement.
"Governmental Authority" means any nation, sovereign or government,
any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, including any central bank.
"Hedging Contracts" means all interest rate swap agreements, interest
rate cap agreements, interest rate collar agreements and interest rate
insurance, 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..
"Indenture Event of Default" means a payment or bankruptcy event of
default under Section 5.1(a), 5.1(b) or 5.1(e) of the 1992 Indenture, Section
5.1(a), 5.1(b) or 5.1(e) of the 1996 Indenture and/or Section 6.01(1), 6.01(2)
or 6.01(7) of the Senior Note Indenture.
"L/C Agreement" has the meaning given in the recitals to this
Agreement.
"L/C Issuers" has the meaning given in the recitals to this Agreement.
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"Loan Documents" has the meaning given in the Credit Agreement.
"Notice of Actionable Default" means a written certification from the
Bank Administrative Agent, the 1992 Indenture Trustee, the 1996 Indenture
Trustee, or the Senior Note Indenture Trustee, as the case may be, addressed to
the Collateral Trustee certifying that an Actionable Default has occurred with
respect to the Secured Debt.
"Parent Guaranty" has the meaning given in the recitals to this
Agreement.
"Permitted Vendor Indebtedness" means Indebtedness incurred by
Subsidiaries of FMC organized in Brazil (and the guarantees by FMC thereof)
consisting of (a) import financing Indebtedness incurred directly by any such
Subsidiary for the purpose of conducting vendor financing programs in South
America and (b) guarantees by any such Subsidiary or FMC of Indebtedness
incurred by customers in order to finance the purchase of products of FMC and
its Subsidiaries or the purchase of third-party agricultural products, in an
aggregate principal amount not to exceed the amount incurred and available to be
incurred at the Closing Date as set forth on Schedule VI to the Credit
Agreement.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, estate, trust, limited liability company,
unincorporated association, joint venture or other entity, or a Governmental
Authority.
"Pledged Collateral" has the meaning given in the Shared Collateral
Security Agreement.
"Principal Property" has the meaning given in the Shared Collateral
Security Agreement.
"Principal Property Mortgages" means the mortgages, deeds of trust and
other real estate security documents made or required to be made by the Grantors
or any of their affiliates in favor of the Collateral Trustee for the benefit of
the Secured Parties with respect to the Principal Properties.
"Responsible Officer" means the chief executive officer, president or
chief financial officer.
"Required Holders of Secured Debt" has the meaning set forth in
Section 3.1(b).
"Requisite Obligees" means the holders of more than 50% of the
aggregate principal amount of the then outstanding Secured Debt.
"Secured Debt" means, collectively, the Senior Secured Obligations,
the Senior Note Obligations, the 1992 Note Obligations, the 1996 Note
Obligations and the Collateral Trustee's Fees.
"Secured Debt Instruments" means, collectively, (i) the Credit
Documents, (ii) the Senior Note Indenture, the Senior Notes and all other
documents and instruments executed in connection therewith, (iii) the 1992
Indenture and the 1992 Notes, (iv) the 1996 Indenture and the 1996 Notes and (v)
the Collateral Trustee's Fee Agreement.
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"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, and (iv) the
Collateral Trustee, for its own account.
"Securities Account" has the meaning given in the Uniform Commercial
Code as from time to time in effect in the State of New York.
"Senior Lenders" means the Lenders, the Issuers and the Administrative
Agent under the Credit Agreement and any other holder of any Senior Secured
Obligation.
"Senior Note Indenture" has the meaning given in the recitals to this
Agreement.
"Senior Note Indenture Trustee" has the meaning given 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 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" means, the senior notes of FMC due 2009 issued from
time to time pursuant to the Senior Note Indenture.
"Senior Priority Collateral" means the Shared Collateral up to a
maximum amount equal to 10% of Consolidated Net Tangible Assets (as such term is
defined in the 1996 Indenture), such amount being equal to approximately $139.7
million as of June 30, 2002 as such amount may increase from time to time (and
not thereafter decrease) as of any date on which any Senior Secured Obligations
are incurred.
"Senior Secured Obligations" means (i) in the case of FMC, (A) the
Obligations, (B) the "Obligations" as defined under 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 each other Guarantor, the obligations of such
Guarantors under the Guaranties and the other Loan Documents to which it is a
party.
"Shared Collateral" means, collectively, "Shared Collateral" as
defined in the Shared Collateral Security Agreement, the "Mortgaged Property" as
defined in the Principal Property Mortgages and any other property in which the
Collateral Trustee has, or purportedly has, an interest (including, without
limitation, a Lien) from time to time under this Agreement or one or more of the
other Shared Collateral Documents.
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"Shared Collateral Documents" means this Agreement, the Shared
Collateral Security Agreement, the Principal Property Mortgages and all other
security agreements, pledge agreements, guaranties and other collateral or
related documents executed and/or delivered by the Grantors and executed and/or
delivered by the Collateral Trustee or accepted by the Collateral Trustee in
writing, as the same may be amended, supplemented or otherwise modified in
accordance with their respective terms and with the terms hereof.
"Shared Collateral Security Agreement" has the meaning given in the
recitals to this Agreement.
"Trust Estate" has the meaning given in the Declaration of Trust to
this Agreement.
"UCC" has the meaning given in the Shared Collateral Security
Agreement.
"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" has the meaning given in the recitals to this
Agreement.
"1992 Notes" means the existing public debt issued pursuant to the
1992 Indenture.
"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 commencement of
any insolvency, reorganization or like proceeding, relating to FMC, whether or
not a claim for post-filing or post-petition interest in 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 Documents 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 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" has the meaning given in the recitals to this
Agreement.
"1996 Notes" means the existing public debt issued pursuant to the
1996 Indenture.
"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
8
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
Documents 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.
Section 1.2 Certain Other Terms.
(a) The words "herein," "hereof," "hereto" and "hereunder" and similar
words refer to this Agreement as a whole and not to any particular Article,
Section, subsection or clause in this Agreement.
(b) 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.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(d) Where the context requires, provisions relating to the Shared
Collateral or any part thereof, when used in relation to a Grantor, shall refer
to such Grantor's Shared Collateral or the relevant part thereof.
(e) Any reference in this Agreement to a Secured Debt Instrument or
Shared Collateral 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 and all times such reference becomes operative.
(f) The term "including" means "including without limitation" except
when used in the computation of time periods.
(g) The terms "Bank Administrative Agent," "Collateral Trustee,"
"Secured Party," "Senior Note Indenture Trustee," "Grantor," "FMC," "1992
Indenture Trustee," and "1996 Indenture Trustee," include their respective
successors.
(h) 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. CERTAIN OBLIGATIONS AND DUTIES OF THE COLLATERAL TRUSTEE
Section 2.1 Authorization to Execute Certain Documents. Each Secured
Party hereby authorizes the Collateral Trustee to, and the Collateral Trustee
shall, execute and deliver each of the Shared Collateral Documents described on
Schedule A hereto requiring execution and delivery by it, and the Collateral
Trustee shall accept delivery from the Grantors of those Shared Collateral
Documents which do not require the Collateral Trustee's execution; provided,
however, that the Collateral Trustee shall have no duty to execute and deliver,
or to accept delivery of, any Shared Collateral Document that is not
satisfactory to it.
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Section 2.2 Certain Representations and Warranties. The Collateral
Trustee represents and warrants to the Secured Parties as follows:
(a) The Collateral Trustee is a national banking association organized
under the laws of the United States and has all required corporate power and
authority to enter into and perform its obligations under this Agreement and any
other Shared Collateral Document to which it is or may become a party.
(b) The execution, delivery and performance by the Collateral Trustee
of this Agreement and any other Shared Collateral Document to which it (i) is a
party have been duly authorized by all necessary corporate action on the part of
the Collateral Trustee and (ii) becomes a party will be duly authorized by all
necessary corporate action on the part of the Collateral Trustee.
(c) There are no actions or proceedings pending or, to its knowledge,
threatened against it before any Governmental Authority (i) which question the
validity or enforceability of this Agreement or any other Shared Collateral
Document to which it is a party; or (ii) which relate to the banking or trust
powers of the Collateral Trustee and which, if determined adversely to the
position of the Collateral Trustee, would materially and adversely affect the
ability of the Collateral Trustee to perform its obligations under this
Agreement or any of the other Shared Collateral Documents to which it is a
party.
(d) This Agreement and all of the other Shared Collateral Documents to
which the Collateral Trustee is a party have been duly executed and delivered by
it.
Section 2.3 Actions.
Until the payment in full of the Senior Secured Obligations
as notified to the Collateral Trustee in writing by the Bank Administrative
Agent and (i) prior to the Collateral Trustee's receipt of a Notice of
Actionable Default or (ii) after the withdrawal of all pending Notices of
Actionable Default in accordance with the terms of Section 3.2(b) and prior to
the Collateral Trustee's receipt of any additional Notice of Actionable Default,
the Collateral Trustee shall take any action with respect to the Shared
Collateral and the Shared Collateral Documents requested in writing by the Bank
Administrative Agent or, after the Credit Agreement Termination Date, the
Requisite Obligees; provided, however, that the Collateral Trustee shall not be
obligated to take any such action which is in conflict with provisions of law or
the Shared Collateral Documents, is prohibited by order of any court or
Governmental Authority or with respect to which the Collateral Trustee has not
received adequate security or indemnity as provided in Section 6.4(d).
Section 2.4 Limitation on Duties. The Collateral Trustee's sole duty
with respect to the custody, safekeeping and physical preservation of the Shared
Collateral in its possession shall be to deal with it in the same manner as the
Collateral Trustee deals with similar property for its own account. Neither the
Collateral Trustee, any other Secured Party nor any of their respective
officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Shared Collateral or for any delay in doing
so or shall be under any obligation to sell or otherwise dispose of any Shared
Collateral upon the request of any Grantor or any other Person (except pursuant
to Section 2.3, Article III or Article VII) or to take any other action
whatsoever with regard to the Shared Collateral or any part thereof. The powers
conferred on the Collateral Trustee hereunder are solely to protect the
Collateral Trustee's interest in the Shared Collateral and shall not impose any
duty upon the Collateral Trustee or any other
10
Secured Party to exercise any such powers. The Collateral Trustee and the other
Secured Parties shall be accountable only for amounts that they actually receive
as a result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to any Grantor for
any act or failure to act hereunder, except for their own gross negligence or
willful misconduct.
ARTICLE III. Actionable Defaults; Remedies
Section 3.1 Control.
(a) Subject to Section 3.1(c), if the Collateral Trustee shall have
received a Notice of Actionable Default based on a Credit Event of Default from
the Bank Administrative Agent and so long as (i) such Notice of Actionable
Default has not been withdrawn in accordance with the provisions of Section
3.2(b) and (ii) no Notice of Actionable Default based on an Indenture Event of
Default has been received from the 1992 Indenture Trustee, the 1996 Indenture
Trustee, or the Senior Note Indenture Trustee, the Bank Administrative Agent
shall have the right, by an instrument in writing executed and delivered to the
Collateral Trustee, to direct the Collateral Trustee to exercise, or to refrain
from exercising, any right, remedy, trust or power available to or conferred
upon the Collateral Trustee hereunder or under any Shared Collateral Document
and in connection therewith, to direct the time, method and place of conducting
any proceeding for any right or remedy available to the Collateral Trustee, or
of exercising any trust or power conferred on the Collateral Trustee, or for the
appointment of a receiver, or for the taking of any other action authorized by
this Agreement or any Shared Collateral Document; provided, however, that the
Collateral Trustee shall have received adequate security or indemnity as
provided in Section 6.4(d) of this Agreement.
(b) Subject to Section 3.1(c), if the Collateral Trustee shall have
received a Notice of Actionable Default based on an Indenture Event of Default
from the 1992 Indenture Trustee, the 1996 Indenture Trustee, or the Senior Note
Indenture Trustee, irrespective of whether the Bank Administrative Agent has
submitted a Notice of Actionable Default, and so long as such Notice of
Actionable Default has not been withdrawn in accordance with the provisions of
Section 3.2(b), the representatives of more than 50% of the aggregate principal
amount of the Secured Debt (collectively, the "Required Holders of Secured
Debt") shall, by an instrument in writing executed and delivered to the
Collateral Trustee, direct the Collateral Trustee to exercise, or to refrain
from exercising, any right, remedy, trust or power available to or conferred
upon the Collateral Trustee hereunder or under any Shared Collateral Document
and in connection therewith, to direct the time, method and place of conducting
any proceeding for any right or remedy available to the Collateral Trustee, or
of exercising any trust or power conferred on the Collateral Trustee, or for the
appointment of a receiver, or for the taking of any other action authorized by
this Agreement or any Shared Collateral Document; provided, however, that the
Collateral Trustee shall have received adequate security or indemnity as
provided in Section 6.4(d) of this Agreement.
(c) The Collateral Trustee shall not be obligated to follow any
written directions received pursuant to Section 3.1(a), Section 3.1(b) or
Section 3.4 of this Agreement to the extent the Collateral Trustee has received
a written opinion of its counsel, which counsel shall be reasonably satisfactory
to the Bank Administrative Agent, the 1992 Indenture Trustee, the 1996 Indenture
Trustee, and the Senior Note Indenture Trustee to the effect that such
directions are in conflict with any provisions of law or any applicable Shared
Collateral Document or any order of any court or Governmental Authority;
provided, however, under no circumstances shall the Collateral Trustee be liable
for following such written directions of the Bank Administrative
11
Agent, the 1992 Indenture Trustee, the 1996 Indenture Trustee, or the Senior
Note Indenture Trustee, as the case may be.
Nothing in this Section 3.1 shall impair the right of the Collateral
Trustee in its discretion to take or omit to take any action which is deemed
proper by the Collateral Trustee and which it believes in good faith is not
inconsistent with any direction of the Bank Administrative Agent or the Required
Holders of Secured Debt delivered pursuant to this Section 3.1; provided,
however, the Collateral Trustee shall not be under any obligation, as a result
of this Section 3.1 or any other provision of this Agreement, to take any action
which is discretionary with the Collateral Trustee under the provisions hereof
or under any other Shared Collateral Document unless so directed by the Bank
Administrative Agent or the Required Holders of Secured Debt, as applicable.
Section 3.2 Notice of Actionable Default.
(a) Upon receipt of a Notice of Actionable Default, the Collateral
Trustee shall, within five (5) Business Days thereafter, notify each Secured
Party and each Grantor in the manner provided in Section 8.2 of this Agreement
that a Notice of Actionable Default has been received. Upon receipt of any
written directions pursuant to Section 3.1(a) or Section 3.1(b) of this
Agreement, the Collateral Trustee shall, within five (5) Business Days
thereafter, send a copy thereof to each Secured Party and each Grantor in the
manner provided in Section 8.2 of this Agreement; provided, however, that the
failures of the Collateral Trustee to send such copy shall not impair any of the
rights, powers and remedies of the Collateral Trustee under any Shared
Collateral Documents.
(b) The party (or successors in interest thereto) giving a Notice of
Actionable Default shall be entitled, or required if the Actionable Default
shall no longer be continuing, to withdraw it by delivering written notice of
withdrawal to the Collateral Trustee (i) before the Collateral Trustee takes any
action to exercise any remedy with respect to the Shared Collateral or (ii)
thereafter if the Grantors otherwise indemnify the Collateral Trustee and the
Secured Parties (in a manner satisfactory to the Collateral Trustee and the
Secured Parties in their sole discretion) with respect to all costs and expenses
incurred by the Collateral Trustee and the Secured Parties in connection with
reversing all actions the Collateral Trustee or any Secured Party has taken to
exercise any remedy or remedies with respect to the Shared Collateral. The
Collateral Trustee shall immediately notify each Grantor as to the receipt and
contents of any such notice of withdrawal and shall promptly notify each Secured
Party, in the manner provided in Section 8.2 of this Agreement, of the
withdrawal of any Notice of Actionable Default. The failure of the Collateral
Trustee to send a copy or notice required pursuant to this Section 3.2 shall not
impair any of the rights, powers and remedies of the Collateral Trustee under
any Shared Collateral Document.
(c) To the extent that any Notice of Actionable Default shall give
rise to any of the rights and remedies provided in this Agreement or any other
Shared Collateral Document or shall prohibit any Grantor from taking certain
actions as specified herein or therein, such rights and remedies shall be
suspended, any exercise thereof by the Collateral Trustee shall cease, and such
prohibition on the Grantors shall not remain in effect upon receipt by the
Collateral Trustee of written notice of withdrawal of such Notice of Actionable
Default pursuant to the terms and provisions of Section 3.2(b); provided,
however, that such rights and remedies, and such prohibitions, shall be
reinstated upon the giving of any later Notice of Actionable Default.
Section 3.3 Remedies.
12
(a) If and only if the Collateral Trustee shall have received a Notice
of Actionable Default and during such time as such Notice of Actionable Default
shall not have been withdrawn in accordance with the provisions of Section
3.2(b), the Collateral Trustee may, and upon the written direction of the Bank
Administrative Agent or the Required Holders of Secured Debt, as the case may
be, pursuant to Section 3.1(a) and Section 3.1(b) shall, exercise the rights and
remedies provided in this Agreement and in any other Shared Collateral Document
or under the UCC or other applicable law.
(b) Each Grantor hereby waives presentment, demand, protest or any
notice (to the extent permitted by applicable law and except as otherwise
expressly provided in this Agreement or any other Shared Collateral Document) of
any kind in connection with this Agreement, any other Shared Collateral
Document, any Secured Debt Instrument or any Shared Collateral.
(c) Each Grantor hereby irrevocably constitutes and appoints the
Collateral Trustee and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Grantor and in the name of
such Grantor or in its own name, for the purpose of carrying out the terms of
this Agreement or other Shared Collateral Documents, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Agreement and
other Shared Collateral Documents, and, without limiting the generality of the
foregoing, each Grantor hereby gives the Collateral Trustee the power and right,
on behalf of such Grantor, without notice to or assent by such Grantor, to do
any or all of the following:
(i) in the name of such Grantor or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due with respect
to any Shared Collateral and file any claim or take any other action or
proceeding in any court of law or equity or otherwise deemed appropriate by
the Collateral Trustee for the purpose of collecting any and all such
moneys due with respect to any other Shared Collateral whenever payable;
(ii) pay or discharge taxes and Liens levied or placed on or
threatened against the Shared Collateral, effect any repairs or any
insurance called for by the terms of this Agreement and pay all or any part
of the premiums therefor and the costs thereof;
(iii) execute, in connection with any sale permitted by any Shared
Collateral Document any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Shared Collateral; and
(iv) (A) direct any party liable for any payment under any of the
Shared Collateral to make payment of any and all moneys due or to become
due thereunder directly to the Collateral Trustee or as the Collateral
Trustee shall direct; (B) ask or demand for, collect, and receive payment
of and receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Shared
Collateral; (C) sign and indorse any invoices, freight or express bills,
bills of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications, notices and other documents in connection with
any of the Shared Collateral; (D) commence and prosecute any suits, actions
or proceedings at law or in equity in any court of competent jurisdiction
to collect the Shared Collateral or any portion thereof and to enforce any
other right in respect of any Shared Collateral; (E) defend any suit,
action
13
or proceeding brought against such Grantor with respect to any Shared
Collateral; (F) settle, compromise or adjust any such suit, action or
proceeding and, in connection therewith, give such discharges or releases
as the Collateral Trustee may deem appropriate; (G) generally, sell,
transfer, pledge and make any agreement with respect to or otherwise deal
with any of the Shared Collateral as fully and completely as though the
Collateral Trustee were the absolute owner thereof for all purposes, and
do, at the Collateral Trustee's option and such Grantor's expense, at any
time, or from time to time, all acts and things which the Collateral
Trustee deems necessary to protect, preserve or realize upon the Shared
Collateral and the Collateral Trustee's and the other Secured Parties'
security interests therein and to effect the intent of this Agreement, all
as fully and effectively as such Grantor might do.
Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. Anything in this Section 3.3(c) to the contrary
notwithstanding, the Collateral Trustee agrees that it will not exercise any
rights under the power of attorney provided for in this Section 3.3(c) unless
the Collateral Trustee has received a Notice of Actionable Default and such
Notice of Actionable Default has not been withdrawn in accordance with the
provisions of Section 3.2(b).
(d) If any Grantor fails to perform or comply with any of its
agreements contained herein or any Shared Collateral Document, the Collateral
Trustee, at its option, but without any obligation so to do, may perform or
comply, or otherwise cause performance or compliance, with such agreement.
(e) All powers, authorizations and agencies contained in this
Agreement are coupled with an interest and are irrevocable until this Agreement
is terminated and the security interests created by the Shared Collateral
Documents are released.
Section 3.4 Right to Initiate Judicial Proceedings, etc. If and only
if the Collateral Trustee shall have received a Notice of Actionable Default and
during such time as such Notice of Actionable Default shall not have been
withdrawn in accordance with the provisions of Section 3.2(b), (i) the
Collateral Trustee shall have the right and power to institute and maintain such
suits and proceedings as it may be directed in writing pursuant to Section
3.1(a) and Section 3.1(b) and (ii) the Collateral Trustee may, either after
entry or without entry, proceed by suit or suits at law or in equity to enforce
such rights to foreclose upon the Shared Collateral and to sell all or, from
time to time, any of the Trust Estate under the judgment or decree of a court of
competent jurisdiction.
Section 3.5 Appointment of a Receiver. If a receiver of the Trust
Estate shall be appointed in judicial proceedings, the Bank Administrative
Agent, the 1992 Indenture Trustee, the 1996 Indenture Trustee, or the Senior
Note Indenture Trustee may be appointed as such receiver. Notwithstanding the
appointment of a receiver, the Collateral Trustee shall, to the extent permitted
by law, be entitled to retain possession and control of all cash held by or
deposited with it or its agents or co-trustees pursuant to any provision of any
Shared Collateral Document.
Section 3.6 Exercise of Powers. All of the powers, remedies and rights
of the Collateral Trustee as set forth in this Agreement may be exercised by the
Collateral Trustee in respect of any Shared Collateral Document as though set
forth at length therein and all the powers, remedies and rights of the
Collateral Trustee as set forth in any Shared Collateral Document may be
exercised from time to time as herein and therein provided and the indemnities
14
and protections in favor of the Collateral Trustee provided for herein shall
apply to the Collateral Trustee acting pursuant to any such Shared Collateral
Document as if set forth in full therein.
Section 3.7 Remedies Not Exclusive.
(a) No remedy conferred upon or reserved to the Collateral Trustee
herein or in the other Shared Collateral Documents is intended to be exclusive
of any other remedy or remedies of the Collateral Trustee, the Bank
Administrative Agent, the 1992 Indenture Trustee, the 1996 Indenture Trustee,
the Senior Note Indenture Trustee, the holders of the 1992 Notes, the holder of
the 1996 Notes, the holders of the Senior Notes, or any other Secured Party, but
every such remedy shall be cumulative and shall be in addition to every other
remedy conferred in any of the Shared Collateral Documents or now or hereafter
existing at law or in equity or by statute.
(b) No delay or omission by the Collateral Trustee in the exercise of
any right, remedy or power accruing upon an Actionable Default shall impair any
such right, remedy or power or shall be construed to be a waiver of any
Actionable Default or an acquiescence therein; and every right, power and remedy
given by any Shared Collateral Document to the Collateral Trustee may be
exercised from time to time and as often as may be deemed expedient by the
Collateral Trustee.
(c) In case the Collateral Trustee shall have proceeded to enforce any
right, remedy or power under any Shared Collateral Document and the proceeding
for the enforcement thereof shall have been discontinued or abandoned for any
reason or shall have been determined adversely to the Collateral Trustee, then
and in every such case the Grantors, the Collateral Trustee and the Secured
Parties shall, subject to any effect of or determination in such proceeding,
severally and respectively be restored to their former positions and rights
under the Shared Collateral Documents with respect to the Trust Estate and in
all other respects, and thereafter all rights, remedies and powers of the
Collateral Trustee shall continue as though no such proceeding had been taken.
(d) All rights of action and rights to assert claims upon or under the
Shared Collateral Documents may be enforced by the Collateral Trustee without
the possession of any Secured Debt Instrument or the production thereof in any
trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Collateral Trustee shall be brought in its name as the
Collateral Trustee and any recovery of judgment shall be held as part of the
Trust Estate.
Section 3.8 Limitation by Law. All the provisions of this Article III
are intended to be subject to all applicable mandatory provisions of law which
may be controlling in the premises and to be limited to the extent necessary so
that they will not render this Agreement invalid or unenforceable in whole or in
part.
Section 3.9 Absolute Rights of Secured Parties. Notwithstanding any
other provision of any Shared Collateral Document, but subject in all cases to
the rights of the Bank Administrative Agent and the Required Holders of Secured
Debt under Section 3.1, neither (i) the right of each Secured Party, which is
absolute and unconditional, to receive payments of the Secured Debt held by such
Secured Party on or after the due date thereof as expressed in the Secured Debt
Instruments, to institute suit for the enforcement of such payment on or after
such due date, or to assert its position and views as a secured creditor in, and
to otherwise exercise any right (other than the right to enforce any Lien on the
Shared Collateral, which shall in all circumstances be exercisable only by the
Collateral Trustee) it may have in connection with, a
15
case under the Bankruptcy Code in which a Grantor is a debtor, nor (ii) the
obligation of each Grantor, which is also absolute and unconditional, to pay the
Secured Debt owing by such Grantor to each Secured Party at the time and place
expressed in the Secured Debt Instruments, shall be impaired or affected without
the written consent of such Secured Party.
Section 3.10 Restatement of Rights. The provisions of this Agreement
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment of Secured Debt is rescinded or must otherwise be returned by
the Collateral Trustee or any Secured Party upon the insolvency, bankruptcy or
reorganization of a Grantor or otherwise, all as though such payment had not
been made.
ARTICLE IV. PRIORITY; COLLATERAL ACCOUNT; APPLICATION OF MONEYS
Section 4.1 Priority of Security Interests. Notwithstanding (i) the
time, order, manner or method of creation, attachment or perfection of the
respective security interests and/or liens granted to any Secured Party in or on
any or all of the property or assets of the Grantors, (ii) the time or manner of
the filing of the financing statements reflecting such security interests, (iii)
whether any Secured Party or any bailee or agent thereof holds possession of any
or all of the property or assets of the Grantors, (iv) the dating, execution or
delivery of any agreement, document or instrument granting any Secured Party
security interests and/or liens in or on any or all of the property or assets of
the Grantors and (v) any provision of the UCC or any other applicable law to the
contrary, the Collateral Trustee on behalf of itself and on behalf of the Senior
Lenders and the Bank Administrative Agent shall have a first priority security
interest in the Senior Priority Collateral. Any and all security interests,
liens, rights and interests of the 1992 Indenture Trustee, the 1996 Indenture
Trustee, the Senior Note Indenture Trustee, the holders of the 1992 Notes, the
holders of the 1996 Notes and/or holders of the Senior Notes, whether now or
hereafter arising and howsoever existing, in or on any or all of the Shared
Collateral, shall be and hereby are subordinated to any and all security
interests, liens, rights and interests of the Senior Lenders, the Collateral
Trustee and the Bank Administrative Agent in and to the Senior Priority
Collateral. For purposes of the foregoing allocation of priorities, any claim of
a right of setoff shall be treated in all respects as a security interest and no
claimed right of setoff shall be asserted to defeat or diminish the rights or
priorities provided for herein.
Section 4.2 The Collateral Account. There has been established by the
Collateral Trustee and, at all times hereafter until the trusts created by this
Agreement shall have terminated, there shall be maintained with the Collateral
Trustee a non-interest bearing trust account which is entitled the "FMC
Collateral Account" (herein called the "Collateral Account"). During the
continuance of an Actionable Default, all moneys received by the Collateral
Trustee with respect to all or any part of the Shared Collateral shall be
deposited in the Collateral Account and thereafter shall be held, applied and/or
disbursed by the Collateral Trustee in accordance with the terms of Section 4.5
of this Agreement.
Section 4.3 Control of Collateral Account. All right, title and
interest in and to the Collateral Account shall vest in the Collateral Trustee,
and funds on deposit in the Collateral Account shall constitute part of the
Trust Estate. The Collateral Account shall be subject to the exclusive dominion
and control of the Collateral Trustee.
Section 4.4 Investment of Funds Deposited in Collateral Account. The
Collateral Trustee shall invest and reinvest moneys on deposit in the Collateral
Account at any time in one or more Cash Equivalents and, so long as no
Actionable Default has occurred, as
16
directed in writing by FMC and, during an Actionable Default, as directed in
writing by the Bank Administrative Agent; provided, however, that in order to
provide the Secured Parties with a perfected security interest therein:
(a) each such investment shall be evidenced, or deemed under
applicable federal regulations to be evidenced, by negotiable certificates or
instruments or nonnegotiable certificates or instruments issued in the name of
the Collateral Trustee or its nominee, which (together with any appropriate
instruments of transfer) are delivered to, and held by, the Collateral Trustee
or an agent thereof (which shall not be any Grantor or any of its affiliates);
or
(b) each such investment shall be held in the Collateral Account or
other Securities Accounts in the name of the Collateral Trustee or its nominee,
with respect to which accounts the Collateral Trustee shall be the sole
entitlement holder and the only person authorized to give entitlement orders.
All such investments and the interest and income received thereon and therefrom
and the net proceeds realized on the sale hereof shall be held in the Collateral
Account as part of the Trust Estate. Neither the Collateral Trustee nor the Bank
Administrative Agent shall be liable for losses with respect to investments made
hereunder.
Section 4.5 Application of Moneys.
(a) Subject to Section 4.2, all moneys held by the Collateral Trustee
in the Collateral Account shall, to the extent available for distribution, be
distributed by the Collateral Trustee on the first and each succeeding
Distribution Date until the payment in full of the Senior Secured Obligations as
follows:
FIRST: To the Collateral Trustee in an amount equal to the Collateral
Trustee's Fees which are unpaid as of such Distribution Date, then to any
Secured Party which has theretofore advanced or paid any such Collateral
Trustee's Fees in an amount equal to the amount thereof so advanced or paid by
such Secured Party prior to such Distribution Date; provided, however, that
nothing herein is intended to relieve any Grantor of its obligation to pay such
costs, fees, expenses and liabilities from funds outside of the Collateral
Account;
SECOND: To the Bank Administrative Agent, for the benefit of itself
and the Senior Lenders, up to an amount equal to any outstanding Senior Secured
Obligations; provided, that such aggregate amounts distributed on a
first-priority basis pursuant to this clause to the Bank Administrative Agent
shall not exceed the amount of the Senior Priority Collateral; and
THIRD: To the Secured Parties up to an amount equal to any
outstanding, Senior Secured Obligations, 1992 Note Obligations, 1996 Note
Obligations and Senior Note Obligations, and, if such moneys shall be
insufficient to pay such amounts, in full, then ratably to the Secured Parties
in proportion to the unpaid amounts of the Senior Secured Obligations, 1992 Note
Obligations, the 1996 Note Obligations and the Senior Note Obligations; and
FOURTH: Any surplus then remaining shall be paid to the Grantors or
their successors or assigns, or to whomever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may direct; provided, however,
that if any Secured Party with rights in the Shared Collateral shall have
notified the Collateral Trustee in writing that such Secured Party is entitled
to the benefits of an indemnification, reimbursement or similar provision under
which amounts are not yet due but with respect to which any Grantor continues to
be contingently liable,
17
and amounts payable by such Grantor with respect thereto are secured by the
Trust Estate, the Collateral Trustee shall continue to hold the amount specified
in such notice in the Collateral Account until such Grantor's liability with
respect thereto is discharged or released to the satisfaction of such Secured
Party.
(b) The Secured Parties have agreed and acknowledged that the
provisions of this Section 4.5 are for their benefit and that if any Secured
Party shall receive any moneys contrary to the provisions of this Agreement,
such Secured Party shall forthwith turn such moneys over to the Collateral
Trustee to be distributed in accordance with the provisions of this Agreement.
ARTICLE V. AGREEMENT WITH COLLATERAL TRUSTEE
Section 5.1 Delivery of Secured Debt Instruments. On the date of this
Agreement, the Grantors shall deliver to the Collateral Trustee a true and
complete copy of the Secured Debt Instruments, an executed counterpart of any
Shared Collateral Documents and any Pledged Collateral and other Shared
Collateral to be delivered pursuant thereto, all of which shall be identified on
Schedule B hereto. Each Grantor agrees that it will deliver to the Collateral
Trustee (i) promptly upon the execution thereof, a true and complete copy of any
and all amendments, modifications or supplements to any Secured Debt Instrument
or Shared Collateral Documents entered into by such Grantor subsequent to the
date of this Agreement and (ii) when required by the Shared Collateral
Documents, any Pledged Collateral or other Shared Collateral to be delivered
pursuant thereto.
Section 5.2 Compensation and Expenses. The Grantors jointly and
severally agree to pay to the Collateral Trustee (i) the Collateral Trustee's
Fees as compensation for the Collateral Trustee's services hereunder and under
the other Shared Collateral Documents and for accepting and administering the
Trust Estate as shall be mutually agreed by the Grantors and the Collateral
Trustee and (ii) from time to time, upon demand, all of the fees, costs and
expenses of the Collateral Trustee (including, without limitation, the
reasonable fees and disbursements of its counsel and such special counsel as the
Collateral Trustee elects to retain) (A) arising in connection with the
preparation, execution, delivery, modification, restatement, amendment or
termination of this Agreement and each other Shared Collateral Document or the
enforcement (whether in the context of a civil action, adversary proceeding,
workout or otherwise) of any of the provisions hereof or thereof, or (B)
incurred or required to be advanced in connection with the administration of the
Trust Estate, the sale or other disposition or the custody, preservation or
protection of Shared Collateral pursuant to any Shared Collateral Document
(including, without limitation, in connection with actions taken by the
Collateral Trustee pursuant to Section 3.3) and the exercise or enforcement of
the Collateral Trustee's rights under any Shared Collateral Document and in and
to the Shared Collateral and the Trust Estate. As security for such payment and
the payment of the obligations set forth in Sections 5.3 and 5.4, the Collateral
Trustee shall have a Lien prior to the Secured Debt upon all Shared Collateral
and other property and funds held or collected by the Collateral Trustee as part
of the Trust Estate. The obligations of the Grantors to pay amounts due under
this Section 5.2 shall survive the termination of this Agreement and the
resignation or removal of the Collateral Trustee.
Section 5.3 Stamp and Other Similar Taxes. The Grantors jointly and
severally agree to upon demand indemnify and hold harmless the Collateral
Trustee and each Secured Party from, and shall reimburse the Collateral Trustee
and each Secured Party for, any present or future claim for liability for any
stamp or other similar tax and any penalties or interest with respect thereto
which may be assessed, levied or collected by any jurisdiction in connection
18
with any Shared Collateral Document, the Trust Estate or the attachment or
perfection of the security interest granted to the Collateral Trustee in any
Shared Collateral. The obligations of the Grantors under this Section 5.3 shall
survive the termination of the other provisions of this Agreement and the
resignation or removal of the Collateral Trustee.
Section 5.4 Filing Fees, Excise Taxes, etc. The Grantors agree to pay
or to reimburse the Collateral Trustee and each Secured Party for any and all
amounts in respect of all search, filing, recording and registration fees,
taxes, excise taxes and other similar imposts which may be payable or determined
to be payable in respect of the execution, delivery, performance and enforcement
of each Shared Collateral Document and agree to save the Collateral Trustee and
each Secured Party harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes
and fees. The obligations of the Grantors under this Section 5.4 shall survive
the termination of the other provisions of this Agreement and the resignation or
removal of the Collateral Trustee.
Section 5.5 Indemnification.
(a) The Grantors jointly and severally agree to pay, and indemnify and
hold harmless the Collateral Trustee and each of its employees and agents from
and against, any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, amounts paid in settlements, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of the Shared Collateral
Documents, the Shared Collateral and the Trust Estate, except to the extent
arising from the gross negligence, willful misconduct or willful breach of this
Agreement of such Persons as are seeking indemnification. As security for such
payment, the Collateral Trustee shall have a Lien prior to the Secured Debt upon
all Shared Collateral and other property and funds held or collected by the
Collateral Trustee as part of the Trust Estate.
(b) In any suit, proceeding or action brought by the Collateral
Trustee under or with respect to the Shared Collateral for any sum owing
thereunder, or to enforce any provisions thereof, or of any of the Shared
Collateral Documents, the Grantors will jointly and severally save, indemnify
and keep the Collateral Trustee harmless from and against all expense, loss or
damage suffered by reason of any defense, set-off, counterclaim, recoupment or
reduction of liability whatsoever of the obligee thereunder, arising out of a
breach by any Grantor of any of its obligations thereunder or arising out of any
other agreement, indebtedness or liability at any time owing to or in favor of
such obligee or its successors from the Grantors, and all such obligations of
the Grantors shall be and remain enforceable against and only against the
Grantors and shall not be enforceable against the Collateral Trustee.
(c) If and to the extent that the obligations of the Grantors under
this Section 5.5 are unenforceable for any reason, each Grantor hereby agrees to
make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
(d) The agreements in this Section 5.5 shall survive the termination
of the other provisions of this Agreement and the resignation or removal of the
Collateral Trustee.
Section 5.6 Further Assurances. At any time and from time to time,
upon the written request of the Collateral Trustee or when necessary, and at the
expense of the Grantors, each Grantor will promptly execute and deliver any and
all such further instruments and documents and take such further action as may
be necessary or as the Collateral Trustee may
19
reasonably request to obtain the full benefits of the Shared Collateral
Documents and the rights and powers therein granted, including, without
limitation, the filing of any financing or continuation statements or other
instruments to perfect the Liens and security interests granted thereby. Each
Grantor shall, not later than thirty (30) days after the Collateral Trustee's
request therefor, deliver to the Collateral Trustee an opinion of counsel, which
counsel shall be reasonably satisfactory to the Bank Administrative Agent, the
1992 Indenture Trustee, the 1996 Indenture Trustee, and the Senior Note
Indenture Trustee, addressed to the Collateral Trustee for the benefit of the
Secured Parties, concerning the continued perfection of the Liens and security
interests created by the Shared Collateral Documents (excluding, however, those
Liens and security interests which, in accordance with the terms of the Shared
Collateral Documents, have been released); provided, however, that (a) the
Collateral Trustee may not request such opinion from any Grantor more than one
(1) time during any calendar year, and (b) the Collateral Trustee shall have no
obligation at any time to request such opinion from any Grantor. Each Grantor
shall, in all of its published financial statements customarily prepared with
footnotes or filed with the Securities and Exchange Commission, indicate by
footnote or otherwise that the Secured Debt is secured pursuant to the Shared
Collateral Documents.
ARTICLE VI. COLLATERAL TRUSTEE
Section 6.1 Appointment of Collateral Trustee and Acceptance of Trust.
Each of the Bank Administrative Agent, on behalf of the Senior Lenders, the 1992
Indenture Trustee on behalf of the holders of the 1992 Notes, the 1996 Indenture
Trustee on behalf of the 1996 Notes, and the Senior Note Indenture Trustee on
behalf of the Senior Notes, hereby appoint the Collateral Trustee under the
terms and conditions of this Agreement, and the Collateral Trustee, for itself
and its successors, hereby accepts the trusts created by this Agreement upon the
terms and conditions hereof, including those contained in this Article VI.
Section 6.2 Exculpatory Provisions.
(a) The Collateral Trustee shall not be responsible in any manner
whatsoever for the correctness of any recitals, statements, representations or
warranties contained in any of the Shared Collateral Documents, except for those
made by the Collateral Trustee. The Collateral Trustee makes no representations
as to the value or condition of the Trust Estate or any part thereof, or as to
the title of any of the Grantors thereto or as to the security afforded by the
Shared Collateral Documents or, except as expressly set forth in Section 2.2 of
this Agreement, as to the validity, execution, enforceability, legality,
perfection, priority or sufficiency of any Shared Collateral Document or of the
Secured Debt secured thereby, and the Collateral Trustee shall incur no
liability or responsibility in respect of any such matters. The Collateral
Trustee shall not be responsible for insuring, or monitoring or maintaining the
insurance on, the Trust Estate or for the payment of taxes, charges, assessments
or Liens upon the Trust Estate or otherwise as to the maintenance of the Trust
Estate, except that (i) in the event the Collateral Trustee enters into
possession of a part or all of the Trust Estate, the Collateral Trustee shall
preserve the part in its possession, and (ii) the Collateral Trustee will
promptly take such action as the Bank Administrative Agent shall request to
remove and discharge (by bonding or otherwise) any Lien on any part of the Trust
Estate resulting from claims against it (whether individually or as Collateral
Trustee) not related to the administration of the Trust Estate or (if so
related) resulting from gross negligence or willful misconduct on its part.
Notwithstanding anything to the contrary contained in this Agreement and in
furtherance of the immediately preceding sentence, the Collateral Trustee shall
not be responsible for the attachment, perfection, priority or enforceability of
any Lien created or purported to be created by any Shared Collateral Document,
the adequacy, sufficiency or effectiveness of any Shared Collateral Document or
the value of any
20
Shared Collateral granted pursuant to any Shared Collateral Document from time
to time. The Collateral Trustee shall not be responsible for the filing or
recording of any financing statement, mortgage, security agreement or any other
Shared Collateral Document in any public office or for the maintaining of any
records of any such filings or recordings, nor shall the Collateral Trustee have
any duty to file or record, or to advise the Secured Parties of the need to file
or record, any continuation statements or other public notices relating to the
perfection or continued perfection of any Shared Collateral.
(b) The Collateral Trustee shall not be required to ascertain or
inquire as to the performance by any Grantor of any of the covenants or
agreements contained in any Shared Collateral Document or in any Secured Debt
Instrument. Without limiting the foregoing, the Collateral Trustee shall have no
duty to (i) enforce any obligations of the Grantors to deliver any agreement,
instrument, document, certificate, schedule, list, opinion of counsel or other
items required to be delivered to the Collateral Trustee hereunder, (ii) advise
any Secured Party of the failure of any Grantor to deliver the same or (iii) to
monitor compliance by the Grantors of any requirement to maintain insurance on
any of the Shared Collateral. Whenever it is necessary, or in the opinion of the
Collateral Trustee advisable, for the Collateral Trustee to ascertain the
identity of any Secured Party or the amount of Secured Debt then held by a
Secured Party, the Collateral Trustee may rely on a certificate of such Secured
Party.
(c) Subject to the provisions of applicable law concerning the
Collateral Trustee's duty of care with respect to certificates and notes
evidencing the Pledged Collateral in the Collateral Trustee's possession, the
Collateral Trustee shall not be personally liable for any acts, omissions,
errors of judgment or mistakes of fact or law made, taken or omitted to be made
or taken by it in accordance with any Shared Collateral Document (including,
without limitation, acts, omissions, errors or mistakes with respect to the
Shared Collateral), except for those arising out of or in connection with the
Collateral Trustee's gross negligence or willful misconduct.
Section 6.3 Delegation of Duties. The Collateral Trustee may execute
any of the trusts or powers hereof and perform any duty hereunder either
directly or by or through agents, nominees or attorneys-in-fact of its
selection, which may include employees or officers of any Grantor, provided,
that the Collateral Trustee shall obtain a written acknowledgment from such
agents, nominees or attorneys-in-fact that they shall be liable to the Secured
Parties for losses or damages incurred by any Secured Party as a result of such
agent's nominee's or attorneys-in-fact gross negligence or willful misconduct as
and to the extent the Collateral Trustee would be liable for such losses or
damages if the actions or omissions of such agents, nominees or
attorneys-in-fact constituting such gross negligence or willful misconduct had
been actions or omissions of the Collateral Trustee. The Collateral Trustee
shall be entitled to rely on advice of counsel concerning all matters pertaining
to such trusts, powers and duties. The Collateral Trustee shall not be
responsible for any negligence or misconduct of any agents, nominees or
attorneys-in-fact selected by it without gross negligence or willful misconduct.
Section 6.4 Reliance by Collateral Trustee.
(a) Whenever in the administration of the trusts of this Agreement the
Collateral Trustee shall deem it necessary or desirable that a matter be proved
or established with respect to any Grantor or any Person in connection with the
taking, suffering or omitting of any action hereunder by the Collateral Trustee,
such matter (unless other evidence in respect thereof is herein specifically
prescribed) may be deemed to be conclusively proved or established by a
certificate of a Responsible Officer of such Grantor or Person delivered to the
Collateral Trustee, and such certificate shall be full warranty to the
Collateral Trustee for any action taken, suffered
21
or omitted in reliance thereon; subject, however, to the provisions of Section
6.5(b) of this Agreement.
(b) The Collateral Trustee may consult with its counsel, accountants
or other experts of its choice in connection with the fulfillment of its duties
hereunder, and the Collateral Trustee shall be entitled to rely on, and shall be
fully protected in acting upon, the opinion of such counsel, accountants or
other experts in connection with any action taken, omitted to be taken or
suffered by the Collateral Trustee in fulfillment of its duties hereunder. The
Collateral Trustee shall have the right at any time to seek instructions
concerning the administration of the Trust Estate from any court of competent
jurisdiction.
(c) The Collateral Trustee may conclusively rely, and shall be fully
protected in acting, upon any resolution, statement, certificate, instrument,
opinion, report, notice, request consent, order, bond or other paper or document
which it does not in good faith believe to be other than genuine and to have
been signed or presented by the proper party or parties or, in the case of
cables, telecopies and telexes, to have been sent by the proper party or
parties. In the absence of its gross negligence or willful misconduct, the
Collateral Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Collateral Trustee and conforming to the requirements
of any Shared Collateral Document.
(d) If the Collateral Trustee has been requested or is otherwise
required hereby to take any action pursuant to this Agreement, the Collateral
Trustee shall not be under any obligation to exercise any of the rights or
powers vested in the Collateral Trustee by this Agreement or any Shared
Collateral Document or to otherwise take such action unless the Collateral
Trustee shall have been provided adequate security and indemnity satisfactory to
it against the costs, expenses and liabilities which may be incurred by it in
compliance with such request or direction or in taking such action, including
such reasonable advances as may be requested by the Collateral Trustee.
Section 6.5 Limitations on Duties of Collateral Trustee.
(a) No provision of this Agreement shall require the Collateral
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers. The Collateral Trustee shall be obliged to
perform only such duties as are specifically set forth in this Agreement or any
Shared Collateral Document to which it is a party, and no implied covenants or
obligations shall be read into any Shared Collateral Document against the
Collateral Trustee. The Collateral Trustee shall, upon receipt of a Notice of
Actionable Default and during such time as such Notice of Actionable Default
shall not have been withdrawn in accordance with the provisions of Section
3.2(b) and unless prevented from doing so by applicable law or by order of a
court or other Governmental Authority, exercise the rights and powers vested in
it by any Shared Collateral Document, and the Collateral Trustee shall not be
liable with respect to any action taken or omitted by it in accordance with the
direction of the Bank Administrative Agent or the Required Holders of Secured
Debt pursuant to Section 3.1 of this Agreement. If at any time the Collateral
Trustee shall in accordance with the provisions hereof seek directions of the
Bank Administrative Agent or the Required Holders of Secured Debt with respect
to any such action to be taken or omitted by it under any of the Shared
Collateral Documents, the Collateral Trustee shall not be required to take or
omit such action until it shall have received such direction.
22
(b) Except as herein otherwise expressly provided, including, without
limitation, upon the written direction of the Bank Administrative Agent pursuant
to Section 3.1 of this Agreement, the Collateral Trustee shall not be under any
obligation to take any action which is discretionary with the Collateral Trustee
under the provisions of any Shared Collateral Document. The Collateral Trustee
shall furnish to the Bank Administrative Agent or the Required Holders of
Secured Debt, promptly upon receipt thereof a copy of each certificate or other
paper furnished to the Collateral Trustee by any Grantor under or in respect of
any Shared Collateral Document or any of the Trust Estate, unless by the express
terms of any Shared Collateral Document a copy of the same is required to be
furnished by some other Person directly to the Bank Administrative Agent and the
Required Holders of Secured Debt, or the Collateral Trustee shall have
determined that the same has already been so furnished; provided, however, that
the Collateral Trustee shall have no liability for its inadvertent failure to
furnish any such Person with any such copies.
Section 6.6 Moneys to be Held in Trust. All moneys received by the
Collateral Trustee under or pursuant to any provision of any Shared Collateral
Document shall be held in trust for the purposes for which they were paid or are
held.
Section 6.7 Resignation and Removal of the Collateral Trustee.
(a) The Collateral Trustee may at any time by giving sixty (60) days'
prior written notice to the Grantors and the Secured Parties, resign and be
discharged of the responsibilities hereby created, such resignation to become
effective upon the appointment of a successor Collateral Trustee. The Collateral
Trustee may be removed at any time and a successor Collateral Trustee appointed
by the Bank Administrative Agent or, after the Credit Agreement Termination
Date, the Requisite Obligees; provided, however, that the Collateral Trustee
shall be entitled to its fees and expenses to the date of removal; and,
provided, further, that the Collateral Trustee's rights pursuant to Section 8.5
shall survive with respect to any transaction or occurrence prior to the
effective date of such resignation or removal. If no successor Collateral
Trustee shall be appointed and approved within sixty (60) days from the date of
the giving of the aforesaid notice of resignation or within sixty (60) days from
the date of such removal, the Collateral Trustee shall, or any Secured Party
may, apply to any court of competent jurisdiction to appoint a successor
Collateral Trustee to act until such time, if any, as a successor Collateral
Trustee shall have been appointed as above provided. Any successor Collateral
Trustee so appointed by such court shall immediately and without further act be
superseded by any successor Collateral Trustee approved by the Bank
Administrative Agent, the 1992 Indenture Trustee, the 1996 Indenture Trustee and
the Senior Note Indenture Trustee as above provided.
(b) If at any time the Collateral Trustee shall resign, be removed or
otherwise become incapable of acting, or if at any time a vacancy shall occur in
the office of the Collateral Trustee for any other cause, a successor Collateral
Trustee may be appointed by the Bank Administrative Agent or, after the Credit
Agreement Termination Date, the Requisite Obligees, and the powers, duties,
authority and title of the predecessor Collateral Trustee terminated and
canceled without procuring the resignation of such predecessor Collateral
Trustee, and without any other formality (except as may be required by
applicable law) than the appointment and designation of a successor Collateral
Trustee in writing, duly acknowledged, delivered to the predecessor Collateral
Trustee and the Grantors, and filed for record in each applicable office, if
any, in which this Agreement is required to be filed. Any successor Collateral
Trustee appointed pursuant to this Section 6.7(b) must be reasonably acceptable
to the Grantors unless at the time of such appointment an Actionable Event of
Default exists.
23
(c) The appointment and designation referred to in Section 6.7(b) of
this Agreement shall, after any required filing, be full evidence of the right
and authority to make the same and all of the facts therein recited, and this
Agreement shall vest in such successor Collateral Trustee, without any further
act, deed or conveyance, all of the estate and title of its predecessors, and,
upon any required filing for record, the successor Collateral Trustee shall
become fully vested with all the estates, properties, rights, powers, trusts,
duties, authority and title of its predecessors; but any of such predecessors
shall, nevertheless, on the written request of the Bank Administrative Agent,
the 1992 Indenture Trustee, the 1996 Indenture Trustee, the Senior Note
Indenture Trustee, any Grantor or any successor Collateral Trustee, execute and
deliver an instrument transferring to such successor Collateral Trustee all the
estates, properties, rights, powers, trusts, duties, authority and title of such
predecessor hereunder and shall deliver all securities and moneys held by it to
such successor Collateral Trustee. Should any deed, conveyance or other
instrument in writing from any Grantor be required by any successor Collateral
Trustee for more fully and certainly vesting in such successor Collateral
Trustee the estates, properties, rights, powers, trusts, duties, authority and
title vested or intended to be vested in the predecessor Collateral Trustee, any
and all such deeds, conveyances and other instruments in writing shall, on
request of such successor Collateral Trustee, be so executed, acknowledged and
delivered.
(d) Any required filing for record of the instrument appointing a
successor Collateral Trustee as hereinabove provided shall be at the expense of
the Grantors. The resignation of any Collateral Trustee and the instrument or
instruments removing any Collateral Trustee, together with all other
instruments, deeds and conveyances provided for in this Agreement shall, if
required by law, be forthwith recorded, registered and filed by and at the
expense of the Grantors, wherever this Agreement is recorded, registered and
filed.
Section 6.8 Status of Successors to the Collateral Trustee. Every
successor to the Collateral Trustee appointed pursuant to Section 6.7 of this
Agreement and every corporation resulting from a merger or consolidation
referred to in Section 6.9 of this Agreement shall be a bank or trust company in
good standing and having power so to act, incorporated under the laws of the
United States or any state thereof or the District of Columbia, and having its
principal corporate trust office within the forty-eight (48) contiguous States,
and shall also have capital, surplus and undivided profits of not less than
$100,000,000.
Section 6.9 Merger of the Collateral Trustee. Any corporation into
which the Collateral Trustee shall be merged, or with which it shall be
consolidated, or any corporation resulting from any merger or consolidation to
which the Collateral Trustee shall be a party, shall be the Collateral Trustee
under this Agreement without the execution or filing of any paper or any further
act on the part of the parties hereto.
Section 6.10 Additional Co-Trustees; Separate Trustees.
(a) If at any time or times it shall be necessary or prudent in order
to conform to any law of any jurisdiction in which any of the Shared Collateral
shall be located, or the Collateral Trustee shall be advised by counsel
satisfactory to it that it is so necessary or prudent in the interest of the
Secured Parties, or the Bank Administrative Agent shall in writing so request,
or the Collateral Trustee shall deem it desirable for its own protection in the
performance of its duties hereunder, then the Collateral Trustee and the
Grantors shall execute and deliver all instruments and agreements necessary or
proper to constitute another bank or trust company, or one or more Persons
approved by the Collateral Trustee and the Grantors either to act as co-trustee
or co-trustees of all or any of the Shared Collateral, jointly with the
Collateral
24
Trustee originally named herein or any successor or successors, or to
act as separate trustee or trustees of any such property. Notwithstanding the
foregoing sentence, the Collateral Trustee shall not be responsible for
ascertaining whether or not it is at any time necessary or prudent to constitute
another bank or trust company or any other Person(s) to act as co-trustee or a
separate trustee. In the event the Grantors shall not have joined in the
execution of such instruments and agreements within ten (10) days after the
receipt of a written request from the Collateral Trustee so to do, or in case a
Notice of Actionable Default shall have been given and not withdrawn, the
Collateral Trustee may act under the foregoing provisions of this Section 6.10
without the concurrence of the Grantors and each Grantor hereby irrevocably
appoints the Collateral Trustee as its agent and attorney to act for it under
the foregoing provisions of this Section 6.10 in either of such contingencies.
(b) Every separate trustee and every co-trustee, other than any
trustee which may be appointed as successor to Citibank, N.A., as Collateral
Trustee, shall, to the extent permitted by law, be appointed and act and be
such, subject to the following provisions and conditions, namely:
(i) all rights, powers, duties and obligations conferred upon the
Collateral Trustee in respect of the custody, control and management of
moneys, papers or securities shall be exercised solely by Citibank, N.A, as
Collateral Trustee, or its successors as the Collateral Trustee hereunder,
(ii) all rights, powers, duties and obligations conferred or imposed
upon the Collateral Trustee hereunder shall be conferred or imposed and
exercised or performed by the Collateral Trustee and such separate trustee
or separate trustees or co-trustee or co-trustees, except to the extent
that under any law of any jurisdiction in which any particular act or acts
are to be performed the Collateral Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations shall be exercised and performed by such
separate trustee or separate trustees or co-trustee or co-trustees;
(iii) no power (i) given hereby to any co-trustee, co-trustees or
separate trustees, or (ii) which is provided hereby to any co-trustee,
co-trustees or separate trustees, may be exercised by any such co-trustee
or co-trustees or separate trustees, except jointly with, or with the
consent in writing of, the Collateral Trustee, anything herein contained in
the contrary notwithstanding;
(iv) no trustee or co-trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee or co-trustee hereunder;
and
(v) the Grantors and the Collateral Trustee, at any time by an
instrument in writing, executed by them jointly, may accept the resignation
of or remove any such separate trustee or co-trustee, and in that case, by
an instrument in writing executed by the Grantors and the Collateral
Trustee jointly, may appoint a successor to such separate trustee or
co-trustee, as the case may be, anything herein contained to the contrary
notwithstanding. In the event that the Grantors shall not have joined in
the execution of any such instrument within ten (10) days after the receipt
of a written request from the Collateral Trustee so to do, or in case a
Notice of Actionable Default shall have been given and not withdrawn, the
Collateral Trustee shall have the power to accept the resignation of or
remove any such separate trustee or co-trustee and to appoint a successor
without the concurrence of the Grantors, each of the Grantors hereby
25
irrevocably appointing the Collateral Trustee, its agent and attorney to
act for it in such connection in either of such contingencies. In the event
that the Collateral Trustee shall have appointed a separate trustee or
separate trustees or co-trustee or co-trustees as above provided, it may at
any time, by an instrument in writing, accept the resignation of or remove
any such separate trustee or co-trustee, the successor to any such separate
trustee or co-trustee to be appointed by the Grantors and the Collateral
Trustee, or by the Collateral Trustee alone, as hereinabove provided in
this Section 6.10.
Section 6.11 Assignment of Rights, Not Assumption of Duties.
Anything herein contained to the contrary notwithstanding, (a) the
Grantors shall remain liable under each of the other Shared Collateral Documents
to which they are a party to the extent set forth therein to perform all of
their duties and obligations thereunder to the same extent as if this Agreement
had not been executed, (b) the exercise by the Collateral Trustee of any of its
rights, remedies or powers hereunder shall not release the Grantors from any of
their duties or obligations under each of the other Shared Collateral Documents
to which they are a party and (c) the Collateral Trustee shall not have any
obligation or liability under any of the other Shared Collateral Documents to
which the Grantors are a party by reason of or arising out of this Agreement.
Section 6.12 No Liability.
Anything in this Agreement to the contrary notwithstanding, in no
event shall the Collateral Trustee be liable under or in connection with this
Agreement for indirect, special, incidental, punitive or consequential losses or
damages of any kind whatsoever, including but not limited to lost profits,
whether or not foreseeable, even if the Collateral Trustee has been advised of
the possibility thereof and regardless of the form of action in which such
damages are sought.
ARTICLE VII. RELEASE OF COLLATERAL
Section 7.1 Conditions to Release
(a) So long as no Actionable Default has occurred and is continuing,
all of the Shared Collateral shall be released upon the receipt by the
Collateral Trustee from the Bank Administrative Agent of (A) a written direction
to cause the liens on the Shared Collateral to be released and discharged, or
(B) written notice stating that the Credit Agreement and the L/C Agreement have
terminated in accordance with the terms thereof, and there has been payment in
full of all Senior Secured Obligations thereunder and all accrued and unpaid
Collateral Trustee Fees; provided, that if any amounts are then due and payable
under the Astaris Agreement as communicated to the Collateral Trustee by the
Bank Administrative Agent, the written consent of the majority in interest of
the Astaris Lenders shall also be required to release all or substantially all
of the Shared Collateral. Upon release of the Shared Collateral in accordance
with this Section 7.1(a), the security interests created by the Shared
Collateral Documents shall terminate forthwith and all right, title and interest
of the Collateral Trustee in and to the Shared Collateral shall revert to the
Grantors and their successors and assigns; provided, however, that if (but only
if) an Actionable Default based on an Indenture Event of Default exists on the
date of such release and such date is also the Credit Agreement Termination
Date, any proceeds of any Shared Collateral sold or otherwise disposed of on
such date and not used to repay in full the Senior Secured Obligations shall
remain subject to the pledge hereunder (and continue to constitute Shared
Collateral) until such Actionable Default shall have been cured or otherwise
waived by the
26
Requisite Obligees (determined after giving effect to the Credit Agreement
Termination Date), at which time any continuing right or interest in such Shared
Collateral shall terminate.
(b) So long as no Actionable Default has occurred and is continuing,
any portion of the Shared Collateral shall be released upon the receipt by the
Collateral Trustee from the Bank Administrative Agent of written directions
instructing the Collateral Trustee to release any portion of the Shared
Collateral (the "Released Collateral"); provided, that if any amounts are then
due and payable under the Astaris Agreement as communicated to the Collateral
Trustee by the Bank Administrative Agent, the written consent of the majority in
interest of the Astaris Lenders shall also be required to release any part of
the Shared Collateral. Upon the partial release of the Shared Collateral in
accordance with this Section 7.1(b), the security interests created by the
Shared Collateral Documents in the Released Collateral shall terminate forthwith
and all right, title and interest of the Collateral Trustee in and to the
Released Collateral shall revert to the Grantors and their successors and
assigns.
(c) Upon the termination of the Collateral Trustee's security interest
and the release of the Shared Collateral in accordance with Section 7.1(a) or
the Released Collateral in accordance with Section 7.1(b), the Collateral
Trustee will promptly, at FMC's written request and expense, (i) execute and
deliver to FMC such documents as FMC shall reasonably request to evidence the
termination of such security interest or the release of the Shared Collateral or
the Released Collateral, as the case may be and (ii) deliver or cause to be
delivered to the Grantors all property of the Grantors or the Released
Collateral, as the case may be, then held by the Collateral Trustee or any agent
thereof.
(d) Notwithstanding anything to the contrary contained herein, the
Collateral Trustee shall take any action, including the release of all or any
portion of the Shared Collateral, required pursuant to Section 2.3.
Section 7.2 Effective Time of Release.
(a) The release of Shared Collateral shall be effective upon the
receipt by the Collateral Trustee of written confirmation from the Bank
Administrative Agent. The Collateral Trustee shall promptly notify the Grantors
and the Secured Parties, in the manner specified in Section 8.2 of this
Agreement, when the release of the Shared Collateral is effective.
(b) When the release of all of the Shared Collateral is effective, all
right, title and interest of the Collateral Trustee in, to and under the Trust
Estate shall terminate and shall revert to the Grantors or their respective
successors and assigns, and the estate, right, title and interest of the
Collateral Trustee therein shall thereupon cease, terminate and become void
except with respect to those provisions of this Agreement that expressly
survive. In such case, each Grantor at its sole cost and expense shall deliver
to the Collateral Trustee one or more instruments of discharge, satisfaction and
release in form reasonably satisfactory to the Collateral Trustee, and, upon the
written request of a Grantor or its successors or assigns, and at the cost and
expense of such Grantor or its successors or assigns, the Collateral Trustee
shall execute a satisfaction of the Shared Collateral Documents and such
instruments as the Grantors may request to terminate and remove of record any
documents constituting public notice of the Shared Collateral Documents and the
Liens and assignments granted thereunder and shall assign and transfer, or cause
to be assigned and transferred, and shall deliver or cause to be delivered to
the Grantors, all property, including all moneys, instruments and securities of
the Grantors, then held by the Collateral Trustee. The cancellation and
satisfaction of the Shared Collateral Documents shall be without prejudice to
the rights of the Collateral Trustee or any successor Collateral Trustee to
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charge and be reimbursed for any expenditures which it may thereafter incur in
connection therewith.
ARTICLE VIII. MISCELLANEOUS
Section 8.1 Amendments, Supplements and Waivers.
(a) Subject to Sections 8.1(b) and 8.1(c), with the prior written
consent of the Bank Administrative Agent, the Collateral Trustee and the
Grantors may, from time to time, enter into written agreements supplemental
hereto for the purpose of adding to or modifying or waiving any provisions of
any of the Shared Collateral Documents or amending the definition of any
capitalized term used herein or therein, as such capitalized term is used herein
or therein, or changing in any manner the rights of the Collateral Trustee, the
Secured Parties or the Grantor hereunder or thereunder; provided, however, that
no such supplemental agreement shall:
(i) amend, modify or waive any provision of this Section 8.1 without
the prior written consent of the Bank Administrative Agent, the 1992
Indenture Trustee, the 1996 Indenture Trustee, and the Senior Note
Indenture Trustee;
(ii) amend, modify or waive any provision of Section 2.3, Article III,
Article IV, Article VII or the definition of the terms "Actionable
Default," "Principal Property," "Principal Property Mortgages," "Secured
Debt," "Secured Debt Instruments," "Secured Obligations," "Secured Party,"
"Senior Notes," "Shared Collateral," "Shared Collateral Documents," or
"Senior Priority Collateral," and any component definition of the
foregoing, without the prior written consent of any Secured Party whose
rights would be adversely affected thereby;
(iii) amend, modify or waive any provision of any Shared Collateral
Document so as to adversely affect any of the Collateral Trustee's rights,
immunities or indemnities hereunder or thereunder or enlarge its duties
hereunder or thereunder, without the prior written consent of the
Collateral Trustee; or
(iv) amend, modify or waive any provision of any Shared Collateral
Document so as to adversely affect the relative rights of any Secured Party
as against any other Secured Party without the prior written consent of
such adversely affected Secured Party.
Any such supplemental agreement shall be binding upon the Grantors,
the Secured Parties and the Collateral Trustee and their respective successors
and assigns. The Collateral Trustee shall not enter into any such supplemental
agreement unless it shall have received a certificate signed by a Responsible
Officer of the Grantors to the effect that such supplemental agreement will not
result in a breach of any provision or covenant contained in the Credit
Agreement, the L/C Agreement, the Senior Note Indenture, the 1992 Indenture, or
the 1996 Indenture. Prior to executing any amendment or waiver pursuant to the
terms of this Section 8.1(a), the Collateral Trustee shall be entitled to
receive an opinion of counsel to the effect that the execution of such document
is authorized hereunder.
(b) Without the consent of the Bank Administrative Agent, the 1992
Indenture Trustee, the 1996 Indenture Trustee, the Senior Note Indenture
Trustee, or any Secured Party, the Grantors and the Collateral Trustee, at any
time and from time to time, may enter into
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additional Shared Collateral Documents or one or more agreements supplemental
hereto or to any other Shared Collateral Document, in form satisfactory to the
Collateral Trustee:
(i) to add to the covenants of the Grantors for the benefit of the
Secured Parties;
(ii) to mortgage, pledge or grant a security interest in favor of the
Collateral Trustee, for itself hereunder and for the ratable benefit of the
Secured Parties, as additional security for the Secured Debt pursuant to
any Shared Collateral Document; or
(iii) to cure any ambiguity, or to correct or supplement any provision
herein or in any other Shared Collateral Document which may be defective or
inconsistent with any other provision herein or therein; provided, however,
that any such action contemplated in this clause (iii) shall not adversely
affect the interests of the Secured Parties in any manner whatsoever.
(c) Without the consent of the Bank Administrative Agent, the 1992
Indenture Trustee, the 1996 Indenture Trustee, the Senior Note Indenture
Trustee, or any Secured Party, the Grantors and the Collateral Trustee may, at
any time and from time to time add Additional Grantors or other Persons as
Grantors to this Agreement or any of the other Shared Collateral Documents, and
such additional provisions hereto and thereto as may be necessary or appropriate
to effect the grant by such Additional Grantors and Persons of Liens on any
assets of such Additional Grantors or Persons as additional security for the
Secured Debt.
(d) All such amendments, supplemental agreements, modifications and
waivers shall be in writing and executed by the parties required to consent
thereto. Any such amendment, supplemental agreement, modification or waiver
shall be effective only in the specific instance and for the specific purpose
for which made or given.
(e) Notwithstanding anything in this Agreement to the contrary, no
provisions of this Agreement and no other Shared Collateral Documents may be
modified, amended, supplemented or waived if such modification, amendment
supplement or waiver shall result in the release of any Shared Collateral,
except in accordance with Section 2.3 and Article VII of this Agreement.
Section 8.2 Notices.
(a) All notices, requests, demands and other communications provided
for or permitted hereunder shall be in English and in writing (including
telecopy communication), shall be sent by first class mail, telecopier or hand
delivery and, except as otherwise provided in this Agreement the cost thereof
shall be for the sole account of the Grantors and shall be added to the Secured
Debt:
(i) if to the Grantors, at:
FMC Corporation
1735 Market Street
Philadelphia, Pennsylvania 19103
Attention: Thomas C. Deas, Jr.
Telecopy: (215) 299-6557
29
(ii) if to the Collateral Trustee, at:
Citibank, N.A.
111 Wall Street- 14th Floor
New York, New York 10005
Attention: Jenny Chang
Telecopy: (212) 657-3862
(iii) if to the Bank Administrative Agent, at:
Citicorp USA, Inc.
Two Penns Way
New Castle, Delaware 19720
Attention: Bank Loan Syndications Dept.
Telecopy: (302) 894-6102
(iv) if to the 1992 Indenture Trustee, at:
First Union National Bank/Wachovia Bank, National Association
Corporate Trust Administration
123 South Broad Street., PA 1249
Philadelphia, PA 19109
Attention: Alan Finn, RM
Telecopy: (215) 670-6340
(v) if to the 1996 Indenture Trustee, at:
First Union National Bank/Wachovia Bank, National Association
Corporate Trust Administration
123 South Broad Street., PA 1249
Philadelphia, PA 19109
Attention: Alan Finn, RM
Telecopy: (215) 670-6340
(vi) if to the Senior Note Indenture Trustee, at:
First Union National Bank/Wachovia Bank, National Association
Corporate Trust Administration
123 South Broad Street., PA 1249
Philadelphia, PA 19109
Attention: Alan Finn, RM
Telecopy: (215) 670-6340
(b) All such notices, requests, demands and communications, shall, to
be effective hereunder, be in writing or by a telecommunications device capable
of creating a written record and shall be deemed to have been given or made when
delivered by hand or five (5) days after its deposit in the mail, first class or
air postage prepaid (except that any notice to the Grantors by mail that an
Actionable Default has occurred or given by the Grantors pursuant to Article III
shall be sent by registered or certified mail) or in the case of notice by such
a telecommunications device, when properly transmitted; provided, however, that
any notice,
30
request, demand or other communication to the Collateral Trustee shall not be
effective until received.
Section 8.3 Dealings with Grantors.
(a) Upon any application or demand by any Grantor to the Collateral
Trustee to take or permit any action under any of the provisions of any Shared
Collateral Document, such Grantor shall furnish to the Collateral Trustee a
certificate signed by a Responsible Officer of such Grantor and, if requested by
the Collateral Trustee, an opinion of counsel to the Grantor stating that all
conditions precedent, if any, provided for in any Shared Collateral Document and
each Secured Debt Instrument relating to the proposed action have been complied
with, except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of any
Shared Collateral Document, relating to such particular application or demand no
additional certificate or opinion need be furnished.
(b) Any opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate of Responsible Officers of any Grantor
delivered to the Collateral Trustee.
Section 8.4 Claims Against the Collateral Trustee. Subject to any
applicable statute of limitations period, any claims or causes of action which
the Secured Parties or the Grantors shall have against the Collateral Trustee
relating solely to this Agreement shall survive the termination of this
Agreement and the release of the Shared Collateral hereunder.
Section 8.5 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 Secured Party and their successors and
assigns, and nothing herein or in any other Shared Collateral Document is
intended or shall be construed to give any other Person any right, remedy or
claim under, to or in respect of any Shared Collateral Documents, the Shared
Collateral or the Trust Estate; 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.
Section 8.6 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), and all of said counterparts taken together shall be
deemed to constitute one and the same agreement.
Section 8.7 Severability. Any provision of this Agreement which 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 8.8 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 8.9 Conflict with other Agreements. The parties agree that in
the event of any conflict between the provisions of this Agreement and the
provisions of any of the other Shared Collateral Documents the provisions of
this Agreement shall control.
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Section 8.10 Governing Law. THE PROVISIONS OF THIS AGREEMENT CREATING
A TRUST FOR THE BENEFIT OF THE SECURED PARTIES AND SETTING FORTH THE RIGHTS,
DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE COLLATERAL TRUSTEE HEREUNDER AND
ALL OTHER PROVISIONS HEREOF SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK, EXCEPT WITH RESPECT TO THE PERFECTION AND
ENFORCEMENT OF SECURITY INTERESTS AND LIENS IN OTHER JURISDICTIONS, WHICH SHALL
BE GOVERNED BY THE LAWS OF THOSE JURISDICTIONS.
Section 8.11 Consent to Jurisdiction; Waiver of Jury Trial. Each
Grantor hereby irrevocably submits to the nonexclusive jurisdiction of any
United States Federal or New York State court sitting in New York City in any
action or proceeding arising out of or relating to this Agreement or any other
Shared Collateral Document, and each Grantor hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard and determined in
any such United States Federal or New York State court and each Grantor
irrevocably waives any objection, including, without limitation, any objection
to the laying of venue or based on the grounds of forum non conveniens which it
may now or hereafter have to the bringing of any such action or proceeding in
such respective jurisdictions. As a method of service, each Grantor also
irrevocably consents to the service of any and all process in any such actions
or proceeding brought in any court in or of the State of New York by the
delivery of copies of such process to such Grantor, at its address specified in
Section 8.2 or by certified mail direct to such address, such service to be
effective upon such delivery or 5 days after such mailing. EACH GRANTOR AND THE
COLLATERAL TRUSTEE HEREBY WAIVES ALL RIGHT TO A JURY TRIAL IN ANY PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER SHARED COLLATERAL
DOCUMENT OR ANY MATTER ARISING HEREUNDER OR THEREUNDER.
32
IN WITNESS WHEREOF, each of the undersigned has caused this Collateral Trust
Agreement to be duly executed and delivered as of the date first above written.
FMC Corporation
By:
-------------------------------------
Name:
Title:
Citicorp USA, Inc., as the Bank
Administrative Agent
By:
-------------------------------------
Name:
Title:
Wachovia Bank, National Association,
as the 1992 Indenture Trustee
By:
-------------------------------------
Name:
Title:
Wachovia Bank, National Association,
as the 1996 Indenture Trustee
By:
-------------------------------------
Name:
Title:
Wachovia Bank, National Association,
as the Senior Note Indenture Trustee
By:
-------------------------------------
Name:
Title:
Citibank N.A., as the Collateral Trustee
By:
-------------------------------------
Name:
Title