Exhibit 10.5
Execution Copy
PLEDGE AND SECURITY AGREEMENT
Dated as of October 21, 2002
among
FMC Corporation
as a Grantor
and
Each Other Grantor
From Time to Time Party Hereto
and
Citicorp USA, Inc.
as Bank Administrative Agent
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
TABLE OF CONTENTS
Page
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Article I. Defined Terms.....................................................................1
Section 1.1 Definitions..................................................................1
Section 1.2 Certain Other Terms..........................................................5
Article II. Grant of Security Interest........................................................6
Section 2.1 Bank Collateral..............................................................6
Section 2.2 Grant of Security Interest in Bank Collateral................................7
Section 2.3 Cash Collateral Accounts.....................................................7
Article III. Representations and Warranties....................................................8
Section 3.1 Title; No Other Liens........................................................8
Section 3.2 Perfection and Priority......................................................8
Section 3.3 Name; Jurisdiction of Organization; Chief Executive Office...................8
Section 3.4 Inventory and Equipment......................................................9
Section 3.5 Pledged Collateral...........................................................9
Section 3.6 Accounts.....................................................................9
Section 3.7 Intellectual Property.......................................................10
Section 3.8 Deposit Accounts; Control Accounts..........................................10
Article IV. Covenants........................................................................10
Section 4.1 Generally...................................................................10
Section 4.2 Maintenance of Perfected Security Interest; Further Documentation...........11
Section 4.3 Changes in Locations, Name, Etc.............................................11
Section 4.4 Pledged Collateral..........................................................12
Section 4.5 Control Accounts; Approved Deposit Accounts.................................13
Section 4.6 Accounts....................................................................14
Section 4.7 Delivery of Instruments and Chattel Paper...................................14
Section 4.8 Intellectual Property.......................................................14
Section 4.9 Vehicles....................................................................16
Section 4.10 Payment of Secured Obligations..............................................16
Section 4.11 Insurance...................................................................16
Article V. Remedial Provisions..............................................................17
Section 5.1 Code and Other Remedies.....................................................17
Section 5.2 Accounts and Payments in Respect of General Intangibles.....................18
Section 5.3 Pledged Collateral..........................................................19
Section 5.4 Proceeds to be Turned Over To Bank Administrative Agent.....................20
Section 5.5 Registration Rights.........................................................20
Section 5.6 Deficiency..................................................................21
Article VI. The Bank Administrative Agent....................................................21
Section6.1 Bank Administrative Agent's Appointment as Attorney-in-Fact.................21
Section6.2 Duty of Bank Administrative Agent...........................................23
Section6.3 Execution of Financing Statements...........................................23
Section6.4 Authority of Bank Administrative Agent......................................23
Article VII. Miscellaneous....................................................................23
Section 7.1 Amendments in Writing.......................................................23
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TABLE OF CONTENTS
(continued)
Page
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Section 7.2 Notices.....................................................................24
Section 7.3 No Waiver by Course of Conduct; Cumulative Remedies.........................24
Section 7.4 Successors and Assigns......................................................24
Section 7.5 Counterparts................................................................24
Section 7.6 Severability................................................................24
Section 7.7 Section Headings............................................................25
Section 7.8 Entire Agreement............................................................25
Section 7.9 Governing Law...............................................................25
Section 7.10 Additional Grantors.........................................................25
Section 7.11 Release of Collateral.......................................................25
Section 7.12 Reinstatement...............................................................26
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TABLE OF CONTENTS
(continued)
Annexes and Schedules
Annex 1 Form of Deposit Account Control Agreement
Annex 2 Form of Control Account Agreement
Annex 3 Form of Pledge Amendment
Annex 4 Form of Joinder Agreement
Annex 5 Form of Short Form Copyright Security Agreement
Annex 6 Form of Short Form Patent Security Agreement
Annex 7 Form of Short Form Trademark Security Agreement
Schedule 1 State of Incorporation; Principal Executive Office
Schedule 2 Pledged Collateral
Schedule 3 Filings
Schedule 4 Location of Inventory and Equipment
Schedule 5 Intellectual Property
Schedule 6 Bank Accounts; Control Accounts
Schedule 7 Commercial Tort Claims
Schedule 8 Existing Letters of Credit
Schedule 9 Principal Properties
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Pledge and Security Agreement, dated as of October 21, 2002, by FMC
Corporation (the "Borrower") and each of the other entities listed on the
signature pages hereof or that becomes a party hereto pursuant to Section 7.10
(Additional Grantors) (each a "Grantor" and, collectively, the "Grantors"), in
favor of Citicorp USA, Inc. ("CUSA"), as collateral agent for the Secured
Parties (as defined below) (in such capacity, the "Bank Administrative Agent").
W i t n e s s e t h:
Whereas, pursuant to the Credit Agreement, dated as of October 21,
2002 (as the same may be amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among the Borrower, the Lenders and
Issuers party thereto and CUSA, as administrative agent for the Lenders and
Issuers, the Lenders and the Issuers have severally agreed to make extensions of
credit to the Borrower upon the terms and subject to the conditions set forth
therein;
Whereas, pursuant to the letter of credit agreement dated as of
October 21, 2002 (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "L/C Agreement", together with the
Credit Agreement, the "Credit Facilities"), among the Borrower, 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 the Borrower
upon the terms and subject to the conditions set forth therein;
Whereas, pursuant to the respective terms of (i) each of the Foreign
Credit Lines and (ii) certain Hedging Contracts and Cash Management Obligations
that are otherwise guaranteed by FMC (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 the Borrower in favor of Astaris LLC, each of the financial institutions
party thereto as lenders (the "Astaris Lenders") and the 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"), the Borrower has
agreed to make the Astaris Secured Payments for the benefit of the Astaris
Lenders and Bank of America, N.A.;
Whereas, pursuant to the Parent Guaranty dated as of October 21, 2002,
the Borrower has guaranteed the Foreign Loans (the "Parent Guaranty");
Whereas, the Grantors other than the Borrower are party to the U.S.
Subsidiary Guaranty dated as of October 21, 2002 (the "U.S. Subsidiary
Guaranty") pursuant to which they have guaranteed the Guaranteed Obligations (as
defined in the U.S. Subsidiary Guaranty);
Whereas, the Existing L/C Issuers (as defined below) have issued for
the benefit of the Borrower and its Subsidiaries the letters of credit described
on Schedule 8 (Existing Letters of Credit) (collectively, the "Existing L/Cs"),
and the Borrower has agreed to grant the Existing L/C Issuers a first priority
security interest in the Restricted Cash Collateral Account (as defined below);
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FMC Corporation
Whereas, a condition precedent to the obligation of the Lenders, the
Issuers and the L/C Issuers to make their respective extensions of credit to the
Borrower under the Credit Facilities is that the Grantors shall have executed
and delivered this Agreement to the Bank Administrative Agent;
Now, Therefore, in consideration of the premises and to induce the
Lenders, the Issuers and the L/C Issuers to enter into the Credit Facilities and
to make their respective extensions of credit to the Borrower thereunder, each
Grantor hereby agrees with the Bank Administrative Agent as follows:
ARTICLE I. Defined Terms
Section 1.1 Definitions
(a) Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein have the meanings given to them in the Credit
Agreement.
(b) Terms used herein that are defined in the UCC have the meanings
given to them in the UCC, including the following terms (which are capitalized
herein):
"Account Debtor"
"Accounts"
"Chattel Paper"
"Commercial Tort Claim"
"Commodity Account"
"Commodity Intermediary"
"Deposit Account"
"Documents"
"Entitlement Holder"
"Entitlement Order"
"Equipment"
"Financial Asset"
"General Intangibles"
"Instruments"
"Inventory"
"Investment Property"
"Letter-of-Credit Right"
"Proceeds"
"Securities Account"
"Securities Intermediary"
"Security"
"Security Entitlement"
(c) The following terms shall have the following meanings:
"Additional Pledged Collateral" means all shares of, limited or
general partnership interests in, and limited liability company interests in,
and all securities convertible into, and warrants, options and other rights to
purchase or otherwise acquire, stock of, either (i) any Person that, after the
date of this Agreement, as a result of any occurrence, becomes a direct
Subsidiary of any Grantor or (ii) any issuer of Pledged Stock, any Partnership
or any LLC
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that are acquired by any Grantor after the date hereof; all certificates or
other instruments representing any of the foregoing; all Security Entitlements
of any Grantor in respect of any of the foregoing; all additional indebtedness
from time to time owed to any Grantor by any obligor on the Pledged Notes and
the instruments evidencing such indebtedness; and all interest, cash,
instruments and other property or Proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any of the
foregoing in each case other than the stock or membership interests in any
Restricted Subsidiary (as defined in the Existing Indentures) that owns any
Principal Property. Additional Pledged Collateral may be General Intangibles or
Investment Property .
"Agreement" means this Pledge and Security Agreement.
"Approved Deposit Account" means a Deposit Account that is the subject
of an effective Deposit Account Control Agreement and that is maintained by any
Grantor with a Deposit Account Bank. "Approved Deposit Account" includes all
monies on deposit in a Deposit Account and all certificates and instruments, if
any, representing or evidencing such Deposit Account.
"Approved Securities Intermediary" means a Securities Intermediary or
Commodity Intermediary selected or approved by the Bank Administrative Agent and
with respect to which a Grantor has delivered to the Bank Administrative Agent
an executed Control Account Agreement.
"Astaris Agreement" has the meaning specified in the recitals to this
Agreement.
"Bank Collateral" has the meaning specified in Section 2.1 (Bank
Collateral).
"Cash Collateral Account" means any Deposit Account or Securities
Account established by the Bank Administrative Agent as provided in Section 2.3
(Cash Collateral Accounts) in which cash and Cash Equivalents may from time to
time be on deposit or held therein as provided in Section 5.2 (Accounts and
Payments in Respect of General Intangibles) or 5.4 (Proceeds to be Turned Over
To Bank Administrative Agent) or the Credit 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.
"Control Account" means a Securities Account or Commodity Account that
is subject of an effective Control Account Agreement and that is maintained by
any Grantor with an Approved Securities Intermediary. "Control Account" includes
all Financial Assets held in a Securities Account or a Commodity Account and all
certificates and instruments, if any, representing or evidencing the Financial
Assets contained therein.
"Control Account Agreement" means a letter agreement, substantially in
the form of Annex 2 (Form of Control Account Agreement) (with such changes as
may be agreed to by the Bank Administrative Agent), executed by the relevant
Grantor, the Bank Administrative Agent and the relevant Approved Securities
Intermediary.
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"Copyright Licenses" means any written agreement naming any Grantor as
licensor or licensee granting any right under any Copyright, including the grant
of any right to copy, publicly perform, create derivative works, manufacture,
distribute, exploit or sell materials derived from any Copyright.
"Copyrights" means (a) all copyrights arising under the laws of the
United States, any other country or any political subdivision thereof, whether
registered or unregistered and whether published or unpublished, all
registrations and recordings thereof and all applications in connection
therewith, including all registrations, recordings and applications in the
United States Copyright Office or in any foreign counterparts thereof, and (b)
the right to obtain all renewals thereof.
"Credit Documents" has the meaning specified in the recitals to this
Agreement.
"Credit Facilities" has the meaning specified in the recitals to this
Agreement.
"Deposit Account Bank" means a financial institution selected or
approved by the Bank Administrative Agent and with respect to which a Grantor
has delivered to the Bank Administrative Agent an executed Deposit Account
Control Agreement.
"Deposit Account Control Agreement" means a letter agreement,
substantially in the form of Annex 1 (Form of Deposit Account Control Agreement)
(with such changes as may be agreed to by the Bank Administrative Agent), or in
such other form acceptable to the Bank Administrative Agent, executed by the
Grantor, the Bank Administrative Agent and the relevant Deposit Account Bank.
"Excluded Equipment" means all equipment of the Borrower located on a
Principal Property.
"Existing Indentures" means, collectively, the 1992 Indenture and the
1996 Indenture.
"Existing L/C Issuers" means, collectively, the issuers under the
Existing L/Cs.
"Existing L/C Obligations" means, at any time, the aggregate of all
liabilities at such time of the Borrower and its Subsidiaries to the Existing
L/C Issuers with respect to the Existing L/Cs, whether or not such liability is
contingent.
"Existing L/Cs" has the meaning specified in the recitals to this
Agreement.
"Foreign Facilities" has the meaning specified in the recitals to this
Agreement.
"Foreign Lenders" has the meaning specified in the Parent Guaranty.
"Foreign Loans" has the meaning specified in the recitals to this
Agreement.
"Foreign Loan Documents" has the meaning specified in the recitals to
this Agreement.
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"Intellectual Property" means, collectively, all rights, priorities
and privileges of any Grantor, whether arising under United States,
multinational or foreign laws or otherwise, relating to all Copyrights,
Copyright Licenses, Patents, Patent Licenses, Trademarks, Trademark Licenses and
trade secrets of such Grantor, and all rights to xxx at law or in equity for any
infringement or other impairment thereof, including the right to receive all
proceeds and damages therefrom.
"Intercompany Note" means any promissory note evidencing loans made by
any Grantor to any of its Subsidiaries or another Grantor.
"L/C Agreement" has the meaning specified in the recitals to this
Agreement.
"L/C Issuer" has the meaning specified in the recitals to this
Agreement.
"LLC" means each limited liability company in which a Grantor has an
interest (other than a Principal Subsidiary), including those set forth on
Schedule 2 (Pledged Collateral).
"LLC Agreement" means each operating agreement with respect to an LLC,
as each agreement has heretofore been, and may hereafter be, amended, restated,
supplemented or otherwise modified from time to time.
"Material Intellectual Property" means Intellectual Property owned by
or licensed to a Grantor and which an outside investor would deem, in its
reasonable judgment, material to the business of the Borrower and its
Subsidiaries taken as a whole.
"Parent Guaranty" has the meaning specified in the recitals to this
Agreement.
"Partnership" means each partnership in which a Grantor has an
interest (other than a Principal Subsidiary), including those set forth on
Schedule 2 (Pledged Collateral).
"Partnership Agreement" means each partnership agreement governing a
Partnership, as each such agreement has heretofore been, and may hereafter be,
amended, restated, supplemented or otherwise modified.
"Patents" means (a) all letters patent of the United States, any other
country or any political subdivision thereof and all reissues and extensions
thereof, (b) all applications for letters patent of the United States or any
other country and all divisions, continuations and continuations-in-part thereof
and (c) all rights to obtain any reissues or extensions of the foregoing.
"Patent License" means all agreements providing for the grant by or to
any Grantor of any right to manufacture, use, import, sell or offer for sale any
invention covered in whole or in part by a Patent.
"Pledged Collateral" means, collectively, the Pledged Notes, the
Pledged Stock, the Pledged Partnership Interests, the Pledged LLC Interests, any
other Investment Property of any Grantor in excess of $1,000,000, all
certificates or other instruments representing any of the foregoing and all
Security Entitlements of any Grantor in respect of any of the foregoing. Pledged
Collateral may be General Intangibles or Investment Property.
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"Pledged LLC Interests" means all right, title and interest of any
Grantor as a member of any LLC and all right, title and interest of any Grantor
in, to and under any LLC Agreement related to such LLC to which it is a party,
including those listed on Schedule 2 (Pledged Collateral).
"Pledged Notes" means all right, title and interest of any Grantor in
the Instruments evidencing all Indebtedness owed to such Grantor (other than a
Principal Subsidiary), including all Indebtedness described on Schedule 2
(Pledged Collateral), issued by the obligors named therein.
"Pledged Partnership Interests" means all right, title and interest of
any Grantor as a limited or general partner in all Partnerships and all right,
title and interest of any Grantor in, to and under any Partnership Agreements to
which such Partnership is a party, including those listed on Schedule 2 (Pledged
Collateral).
"Pledged Stock" means the shares of capital stock owned by each
Grantor (other than capital stock of Principal Subsidiaries), including all
shares of capital stock listed on Schedule 2 (Pledged Collateral); provided,
however, that only the outstanding capital stock of a subsidiary that is a
controlled foreign corporation possessing up to but not exceeding 65% of the
voting power of all classes of capital stock of such controlled foreign
corporation entitled to vote shall be deemed to be pledged hereunder to secure
the Secured Obligations (other than the Borrower's obligations under the Parent
Guaranty which will be secured by a pledge of 100% of the capital stock of such
controlled foreign corporation).
"Principal Property" has the meaning specified in the Existing
Indentures and as of the date hereof are the properties listed on Schedule 9
(Principal Property) hereto.
"Principal Subsidiary" means any Subsidiary of the Borrower which owns
Principal Property.
"Securities Act" means the Securities Act of 1933, as amended.
"Sharing Agreement" means the Sharing Agreement dated as of October
21, 2002, among each Lender, each Issuer, L/C Issuer, Bank of America, N.A., as
agent for the Astaris Lenders, and each Foreign Lender under the Foreign Credit
Lines from time to time party thereto.
"Trademark License" means any agreement providing for the grant by or
to any Grantor of any right to use any Trademark.
"Trademarks" means (a) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
marks, logos and other source or business identifiers, and, in each case, all
goodwill associated therewith, whether now existing or hereafter adopted or
acquired, all registrations and recordings thereof and all applications in
connection therewith, in each case whether in the United States Patent and
Trademark Office or in any similar office or agency of the United States, any
State thereof or any other country or any political subdivision thereof, or
otherwise, and all common-law rights related thereto, and (b) the right to
obtain all renewals thereof.
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"UCC" means the Uniform Commercial Code as from time to time in effect
in the State of New York; provided, however, that, in the event that, by reason
of mandatory provisions of law, any of the attachment, perfection or priority of
the Bank Administrative Agent's and the Secured Parties' security interest in
any Bank Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, the term "UCC" shall mean the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of
the provisions hereof relating to such attachment, perfection or priority and
for purposes of definitions related to such provisions.
"U.S. Subsidiary Guaranty" has the meaning specified in the recitals
to this 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" means Wachovia Bank, National Association, as
successor to Xxxxxx Trust and Savings Bank.
"1996 Indenture" means the Indenture, dated as of July 1, 1996,
between FMC and the 1996 Indenture Trustee, as amended, restated, supplemented
or otherwise modified from time to time.
"1996 Indenture Trustee" means Wachovia Bank, National Association, as
successor to Xxxxxx Trust and Savings Bank.
"Vehicles" means all vehicles covered by a certificate of title law of
any state.
Section 1.2 Certain Other Terms
(a) In this Agreement, in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding" and the
word "through" means "to and including."
(b) The terms "herein," "hereof," "hereto" and "hereunder" and similar
terms refer to this Agreement as a whole and not to any particular Article,
Section, subsection or clause in this Agreement.
(c) References herein to an Annex, Schedule, Article, Section,
subsection or clause refer to the appropriate Annex or Schedule to, or Article,
Section, subsection or clause in this Agreement.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) Where the context requires, provisions relating to any Bank
Collateral, when used in relation to a Grantor, shall refer to such Grantor's
Bank Collateral or any relevant part thereof.
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(f) Any reference in this Agreement to a Loan Document shall include
all appendices, exhibits and schedules thereto, and, unless specifically stated
otherwise all amendments, restatements, supplements or other modifications
thereto, and as the same may be in effect at any time such reference becomes
operative.
(g) The term "including" means "including without limitation" except
when used in the computation of time periods.
(h) The terms "Lender," "Issuer," "Bank Administrative Agent" and
"Secured Party" include their respective successors.
(i) References in this Agreement to any statute shall be to such
statute as amended or modified and in effect from time to time.
ARTICLE II. Grant of Security Interest
Section 2.1 Bank Collateral
For the purposes of this Agreement, all of the following property now
owned or at any time hereafter acquired by a Grantor or in which a Grantor now
has or at any time in the future may acquire any right, title or interests is
collectively referred to as the "Bank Collateral":
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts, including the Restricted Cash Collateral
Account and the Debt Reserve Account;
(d) all Documents;
(e) all Equipment, other than the Excluded Equipment;
(f) all General Intangibles;
(g) all Instruments, other than any Instruments issued by FMC Wyoming
Corporation or any other Principal Subsidiary;
(h) all Inventory;
(i) all Investment Property, other than the stock of FMC Wyoming
Corporation or any other Principal Subsidiary;
(j) all Letter-of-Credit Rights;
(k) all Vehicles;
(l) the Commercial Tort Claims described on Schedule 7 (Commercial
Tort Claims) and on any supplement thereto received by the Bank Administrative
Agent pursuant to Section 4.12 (Notice of Commercial Tort Claims);
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(m) all books and records pertaining to the other property described
in this Section 2.1;
(n) all other goods and personal property of such Grantor, whether
tangible or intangible and wherever located;
(o) all property of any Grantor held by the Bank Administrative Agent
or any other Secured Party, including all property of every description, in the
possession or custody of or in transit to the Bank Administrative Agent or such
Secured Party for any purpose, including safekeeping, collection or pledge, for
the account of such Grantor or as to which such Grantor may have any right or
power; and
(p) to the extent not otherwise included, all Proceeds.
Section 2.2 Grant of Security Interest in Bank Collateral
(a) The Borrower, as collateral security for the full, prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the Existing L/C Obligations, hereby collaterally
assigns, mortgages, pledges and hypothecates to the Bank Administrative Agent
for the benefit of the Existing L/C Issuers, and grants to the Bank
Administrative Agent for the benefit of the Existing L/C Issuers a lien on and
security interest in, all of its rights, title and interest in, to and under the
Restricted Cash Collateral Account. Such security interest shall be prior to the
security interest in the Restricted Cash Collateral Account granted to the
Secured Parties under clause (b) below until such time as the Existing L/Cs have
been cancelled and/or cash collateralized.
(b) Each Grantor, as collateral security for the full, prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the Secured Obligations of such Grantor, hereby
collaterally assigns, mortgages, pledges and hypothecates to the Bank
Administrative Agent for the benefit of the Secured Parties, and grants to the
Bank Administrative Agent for the benefit of the Secured Parties a lien on and
security interest in, all of its right, title and interest in, to and under the
Bank Collateral of such Grantor.
Section 2.3 Cash Collateral Accounts
The Bank Administrative Agent has established a Deposit Account at
Citibank, N.A., designated as "Citicorp USA, Inc. - FMC Concentration Account".
The Bank Administrative Agent may establish one or more other Deposit Accounts
and one or more Securities Accounts with such depositaries and Securities
Intermediaries as it in its sole discretion shall determine. Each such account
shall be in the name of the Bank Administrative Agent (but may also have words
referring to the Borrower and the account's purpose). The Borrower agrees that
each such account shall be under the sole dominion and control of the Bank
Administrative Agent. The Bank Administrative Agent shall be the Entitlement
Holder with respect to each such Securities Account and the only Person
authorized to give Entitlement Orders with respect thereto. Without limiting the
foregoing, funds on deposit in any Cash Collateral Account may be invested in
Cash Equivalents at the direction of the Bank Administrative Agent and, except
during the continuance of an Event of Default, the Bank Administrative Agent
agrees with the Borrower to issue Entitlement Orders for such investments in
Cash Equivalents as requested by the Borrower; provided, however, that the Bank
Administrative Agent shall not have any responsibility for, or bear any risk of
loss of, any such investment or income thereon. Neither the
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Borrower nor any other Loan Party or Person claiming on behalf of or through the
Borrower or any other Loan Party shall have any right to demand payment of any
funds held in any Cash Collateral Account at any time prior to the termination
of all outstanding Letters of Credit and the payment in full of all then
outstanding and payable monetary Secured Obligations. The Bank Administrative
Agent shall apply all funds on deposit in a Cash Collateral Account as provided
in Section 5.5 and, except during the continuance of an Event of Default, agrees
to cause any funds remaining on deposit therein after all Secured Obligations
then due and payable have been satisfied and all Letter of Credit Obligations
and all letter of credit obligations under the L/C Agreement have been cash
collateralized at 105% to be paid at the written direction of the Borrower.
ARTICLE III. Representations and Warranties
Each Grantor hereby represents and warrants each of the following to
the Bank Administrative Agent and the other Secured Parties:
Section 3.1 Title; No Other Liens
Except for the Lien granted to the Bank Administrative Agent pursuant
to this Agreement and the other Liens permitted to exist on the Bank Collateral
under the Credit Agreement, such Grantor is the record and beneficial owner of
the Pledged Collateral pledged by it hereunder constituting Instruments or
certificated securities, is the Entitlement Holder of all such Pledged
Collateral constituting Investment Property held in a Securities Account and has
rights in or the power to transfer each other item of Bank Collateral in which a
Lien is granted by it hereunder, free and clear of any Lien.
Section 3.2 Perfection and Priority
The security interest granted pursuant to this Agreement shall
constitute a valid and continuing perfected security interest in favor of the
Bank Administrative Agent in the Bank Collateral for which perfection is
governed by the UCC or filing with the United States Copyright Office upon (i)
the completion of the filings and other actions specified on Schedule 3
(Filings) (which, in the case of all filings and other documents referred to on
such schedule, have been delivered to the Bank Administrative Agent in completed
and duly executed form), (ii) the delivery to the Bank Administrative Agent of
all Bank Collateral consisting of Instruments and certificated securities, in
each case properly endorsed for transfer to the Bank Administrative Agent or in
blank, (iii) the execution of Control Account Agreements with respect to
Investment Property not in certificated form, (iv) the execution of Deposit
Account Control Agreements with respect to all Deposit Accounts (other than the
Cash Collateral Account) and (v) all appropriate filings having been made with
the United States Copyright Office. Such security interest shall be prior to all
other Liens on the Bank Collateral except for Customary Permitted Liens having
priority over the Bank Administrative Agent's Lien by operation of law or
otherwise as permitted under the Credit Agreement.
Section 3.3 Name; Jurisdiction of Organization; Chief Executive Office
(a) Except as set forth on Schedule 1 (State of Incorporation;
Principal Executive Office), within the five-year period preceding the date
hereof such Grantor has not had, or operated in any jurisdiction, under any
trade name, fictitious name or other name other than its legal name.
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(b) On the date hereof such Grantor's jurisdiction of organization,
organizational identification number, if any, and the location of such Grantor's
chief executive office or sole place of business is specified on Schedule 1
(State of Incorporation; Principal Executive Office).
Section 3.4 Inventory and Equipment
On the date hereof, such Grantor's Inventory and Equipment (other than
Excluded Equipment, mobile goods and Inventory or Equipment in transit) are kept
at the locations listed on Schedule 4 (Location of Inventory and Equipment).
Section 3.5 Pledged Collateral
(a) The Pledged Stock, Pledged Partnership Interests and Pledged LLC
Interests pledged hereunder by such Grantor are listed on Schedule 2 (Pledged
Collateral) and constitute that percentage of the issued and outstanding equity
of all classes of each issuer thereof as set forth on Schedule 2 (Pledged
Collateral).
(b) All of the Pledged Stock, Pledged Partnership Interests and
Pledged LLC Interests have been duly and validly issued and are fully paid and
nonassessable.
(c) Each of the Pledged Notes constitutes the legal, valid and binding
obligation of the obligor with respect thereto, enforceable in accordance with
its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, and general equitable principles (whether
considered in a proceeding in equity or at law).
(d) All Pledged Collateral and, if applicable, any Additional Pledged
Collateral, consisting of certificated securities or Instruments has been
delivered to the Bank Administrative Agent in accordance with Section 4.4(a)
(Pledged Collateral).
(e) All Pledged Collateral held by a Securities Intermediary in a
Securities Account is in a Control Account.
(f) Other than the Pledged Partnership Interests and the Pledged LLC
Interests that constitute General Intangibles, there is no Pledged Collateral
other than that represented by certificated securities or Instruments in the
possession of the Bank Administrative Agent or that consisting of Financial
Assets held in a Control Account.
Section 3.6 Accounts
No amount payable to such Grantor under or in connection with any
Account is evidenced by any Instrument or Chattel Paper that has not been
delivered to the Bank Administrative Agent, properly endorsed for transfer, to
the extent delivery is required by Section 4.4 (Pledged Collateral).
Section 3.7 Intellectual Property
(a) On the date hereof, all Material Intellectual Property owned by
such Grantor is valid, subsisting, unexpired and enforceable, has not been
adjudged invalid and has not
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been abandoned and the use thereof in the business of such Grantor does not
infringe the intellectual property rights of any other Person.
(b) Except as set forth in Schedule 5 (Intellectual Property), on the
date hereof, none of the Material Intellectual Property owned by such Grantor is
the subject of any licensing or franchise agreement pursuant to which such
Grantor is the licensor or franchisor, except for licenses granted by such
Grantor to its affiliates, customers, formulators, re-packagers and distributors
in the ordinary course of such Grantor's business.
(c) No holding, decision or judgment has been rendered by any
Governmental Authority that would limit, cancel or question the validity of, or
such Grantor's rights in, any Material Intellectual Property.
(d) No action or proceeding seeking to limit, cancel or question the
validity of any Material Intellectual Property owned by such Grantor or such
Grantor's ownership interest therein is on the date hereof pending or, to the
knowledge of such Grantor, threatened. There are no claims, judgments or
settlements to be paid by such Grantor relating to the Material Intellectual
Property.
Section 3.8 Deposit Accounts; Control Accounts
The only Deposit Accounts or Securities Accounts maintained by any
Grantor on the date hereof are those listed on Schedule 6 (Bank Accounts;
Control Accounts), which sets forth such information separately for each
Grantor.
Section 3.9 Commercial Tort Claims
The only existing or potential Commercial Tort Claims of any Grantor
existing on the date hereof (regardless of whether the amount, defendant or
other material facts can be determined and regardless of whether such Commercial
Tort Claim has been asserted, threatened or has otherwise been made known to the
obligee thereof or whether litigation has been commenced for such claims) are
those listed on Schedule 6 (Commercial Tort Claims)), which sets forth such
information separately for each Grantor.
ARTICLE IV. Covenants
Each Grantor agrees with the Bank Administrative Agent to the
following, as long as any Obligation or Commitment remains outstanding and, in
each case, unless the Requisite Lenders otherwise consent in writing:
Section 4.1 Generally
Such Grantor shall (a) except for the security interest created by
this Agreement, not create or suffer to exist any Lien upon or with respect to
any Bank Collateral, except Liens permitted under the Credit Agreement, (b) not
use or permit any Bank Collateral to be used unlawfully or in violation of any
provision of this Agreement, any other Credit Document, any Requirement of Law
or any policy of insurance covering the Bank Collateral, (c) not sell, transfer
or assign (by operation of law or otherwise) any Bank Collateral except as
permitted under the Credit Agreement, (d) not enter into any agreement or
undertaking restricting the right or ability of such Grantor or the Bank
Administrative Agent to sell, assign or transfer any Bank Collateral
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if such restriction would have a Material Adverse Effect and (e) promptly notify
the Bank Administrative Agent of its entry into any agreement or assumption of
undertaking that restricts the ability to sell, assign or transfer any Bank
Collateral regardless of whether or not it has a Material Adverse Effect.
Section 4.2 Maintenance of Perfected Security Interest; Further
Documentation
(a) Such Grantor shall maintain the security interest created by this
Agreement as a perfected security interest having at least the priority
described in Section 3.2 (Perfection and Priority) and shall defend such
security interest against the claims and demands of all Persons.
(b) Such Grantor shall furnish to the Bank Administrative Agent from
time to time statements and schedules further identifying and describing the
Bank Collateral and such other reports in connection with the Bank Collateral as
the Bank Administrative Agent may reasonably request, all in reasonable detail.
(c) At any time and from time to time, upon the written request of the
Bank Administrative Agent, and at the sole expense of such Grantor, such Grantor
shall promptly and duly execute and deliver, and have recorded, such further
instruments and documents and take such further action as the Bank
Administrative Agent may reasonably request for the purpose of obtaining or
preserving the full benefits of this Agreement and of the rights and powers
herein granted, including the filing of any financing or continuation statement
under the UCC (or other similar laws) in effect in any jurisdiction with respect
to the security interest created hereby and the execution and delivery of
Deposit Account Control Agreements and Control Account Agreements.
Section 4.3 Changes in Locations, Name, Etc.
(a) Except upon 15 days' prior written notice to the Bank
Administrative Agent and delivery to the Bank Administrative Agent of (i) all
additional executed financing statements and other documents reasonably
requested by the Bank Administrative Agent to maintain the validity, perfection
and priority of the security interests provided for herein and (ii) if
applicable, a written supplement to Schedule 4 (Location of Inventory and
Equipment) showing any additional location at which Inventory or Equipment,
other than Excluded Equipment, shall be kept, such Grantor shall not do any of
the following:
(i) permit any Inventory or Equipment, other than Excluded Equipment,
to be kept at a location other than those listed on Schedule 4 (Location of
Inventory and Equipment);
(ii) change its jurisdiction of organization or the location of its
chief executive office or sole place of business from that referred to in
Section 3.3 (Name; Jurisdiction of Organization; Chief Executive Office);
or
(iii) change its name, identity or corporate structure to such an
extent that any financing statement filed in connection with this Agreement
would become misleading.
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(b) Such Grantor shall keep and maintain at its own cost and expense
satisfactory and complete records of the Bank Collateral, including a record of
all payments received and all credits granted with respect to the Bank
Collateral and all other dealings with the Bank Collateral. If requested by the
Bank Administrative Agent in accordance with Section 4.9 of this Agreement, the
security interest of the Bank Administrative Agent shall be noted on the
certificate of title of each Vehicle.
Section 4.4 Pledged Collateral
(a) Such Grantor shall (i) deliver to the Bank Administrative Agent,
all certificates representing or evidencing any Pledged Collateral (including
Additional Pledged Collateral), and, at the Bank Administrative Agent's request,
all Instruments, whether now existing or hereafter acquired, in suitable form
for transfer by delivery or, as applicable, accompanied by such Grantor's
endorsement, where necessary, or duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to the Bank
Administrative Agent, together, in respect of any Additional Pledged Collateral,
with a Pledge Amendment, duly executed by the Grantor, in substantially the form
of Annex 3 (Form of Pledge Amendment) or such other documentation acceptable to
the Bank Administrative Agent and (ii) maintain all other Pledged Collateral
constituting Investment Property in a Control Account. Such Grantor authorizes
the Bank Administrative Agent to attach each Pledge Amendment to this Agreement.
The Bank Administrative Agent shall have the right, at any time in its
discretion and without notice to the Grantor, to transfer to or to register in
its name or in the name of its nominees any Pledged Collateral. The Bank
Administrative Agent shall have the right at any time to exchange any
certificate or instrument representing or evidencing any Pledged Collateral for
certificates or instruments of smaller or larger denominations.
(b) Except as provided in ARTICLE V (), such Grantor shall be entitled
to receive all cash dividends paid (other than liquidating or distributing
dividends) with respect to the Pledged Collateral. Any sums paid upon or in
respect of any Pledged Collateral upon the liquidation or dissolution of any
issuer of any Pledged Collateral, any distribution of capital made on or in
respect of any Pledged Collateral or any property distributed upon or with
respect to any Pledged Collateral pursuant to the recapitalization or
reclassification of the capital of any issuer of Pledged Collateral or pursuant
to the reorganization thereof shall during the continuance of an Event of
Default, unless otherwise subject to a perfected security interest in favor of
the Bank Administrative Agent, be delivered to the Bank Administrative Agent to
be held by it hereunder as additional collateral security for the Secured
Obligations. If any sum of money or property so paid or distributed in respect
of any Pledged Collateral shall be received by such Grantor during the
continuance of an Event of Default, such Grantor shall, until such money or
property is paid or delivered to the Bank Administrative Agent, hold such money
or property in trust for the Bank Administrative Agent, segregated from other
funds of such Grantor, as additional security for the Secured Obligations.
(c) Except as provided in ARTICLE V (), such Grantor shall be entitled
to exercise all voting, consent and corporate rights with respect to the Pledged
Collateral; provided, however, that no vote shall be cast, consent given or
right exercised or other action taken by such Grantor that would impair the Bank
Collateral, be inconsistent with or result in any violation of any provision of
the Credit Agreement, this Agreement or any other Credit Document or, without
prior notice to the Bank Administrative Agent, enable or permit any issuer of
Pledged Collateral to issue any stock or other equity securities of any nature
or to issue any
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other securities convertible into or granting the right to purchase or exchange
for any stock or other equity securities of any nature of any issuer of Pledged
Collateral.
(d) Such Grantor shall not grant control over any Investment Property
(except for stock of any Principal Subsidiary) to any Person other than the Bank
Administrative Agent.
(e) In the case of each Grantor that is an issuer of Pledged
Collateral, such Grantor agrees to be bound by the terms of this Agreement
relating to the Pledged Collateral issued by it and shall comply with such terms
insofar as such terms are applicable to it. In the case of each Grantor that is
a partner in a Partnership, such Grantor hereby consents to the extent required
by the applicable Partnership Agreement to the pledge by each other Grantor,
pursuant to the terms hereof, of the Pledged Partnership Interests in such
Partnership and to the transfer of such Pledged Partnership Interests to the
Bank Administrative Agent or its nominee and, during the continuance of an Event
of Default, to the substitution of the Bank Administrative Agent or its nominee
as a substituted partner in such Partnership with all the rights, powers and
duties of a general partner or a limited partner, as the case may be. In the
case of each Grantor member of an LLC, such Grantor hereby consents to the
extent required by the applicable LLC Agreement to the pledge by each other
Grantor, pursuant to the terms hereof, of the Pledged LLC Interests in such LLC
and, during the continuance of an Event of Default, to the transfer of such
Pledged LLC Interests to the Bank Administrative Agent or its nominee and to the
substitution of the Bank Administrative Agent or its nominee as a substituted
member of the LLC with all the rights, powers and duties of a member of the LLC
in question.
(f) Such Grantor shall not agree to any amendment of an LLC Agreement
or Partnership Agreement that in any way adversely affects the perfection of the
security interest of the Bank Administrative Agent in the Pledged Partnership
Interests or Pledged LLC Interests pledged by such Grantor hereunder, including
any amendment electing to treat the membership interest or partnership interest
of such Grantor as a security under Section 8-103 of the UCC.
Section 4.5 Control Accounts; Approved Deposit Accounts
(a) Such Grantor shall (i) deposit in an Approved Deposit Account all
cash received by such Grantor, (ii) not establish or maintain any Securities
Account that is not a Control Account and (iii) not establish or maintain any
Deposit Account other than with a Deposit Account Bank, a Lender or an Affiliate
of a Lender; provided, however, that any Grantor may (i) maintain payroll,
withholding tax and other fiduciary accounts, (ii) maintain other accounts so
long as the aggregate balance in all such accounts does not exceed $1,000,000
and (iii) establish accounts in connection with use of amounts in the Restricted
Cash Collateral Account.
(b) Such Grantor shall instruct each Account Debtor or other Person
obligated to make a payment to such Grantor under a General Intangible to make
payment, or to continue to make payment, as the case may be, to an Approved
Deposit Account and shall deposit in an Approved Deposit Account all Proceeds of
such Accounts and General Intangibles received by such Grantor from any other
Person immediately upon receipt.
(c) In the event (i) such Grantor or any Approved Securities
Intermediary or Deposit Account Bank shall, after the date hereof, terminate an
agreement with respect to the maintenance of a Control Account or Approved
Deposit Account for any reason, (ii) the Bank
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Administrative Agent shall demand such termination as a result of the failure of
an Approved Securities Intermediary or Deposit Account Bank to comply with the
terms of the applicable Control Account Agreement or Deposit Account Control
Agreement, or (iii) the Bank Administrative Agent determines in its sole
discretion that the financial condition of an Approved Securities Intermediary
or Deposit Account Bank, as the case may be, has materially deteriorated, such
Grantor agrees to notify all of its obligors that were making payments to such
terminated Control Account or Approved Deposit Account, as the case may be, to
make all future payments to another Control Account or Approved Deposit Account,
as the case may be.
Section 4.6 Accounts
(a) Such Grantor shall not, other than in the ordinary course of
business consistent with its past practice, (i) grant any extension of the time
of payment of any Account, (ii) compromise or settle any Account for less than
the full amount thereof, (iii) release, wholly or partially, any Person liable
for the payment of any Account, (iv) allow any credit or discount on any Account
or (v) amend, supplement or modify any Account in any manner that could
adversely affect the value thereof.
(b) The Bank Administrative Agent shall have the right to make test
verifications of the Accounts in any manner and through any medium that it
reasonably considers advisable, and such Grantor shall furnish all such
assistance and information as the Bank Administrative Agent may reasonably
require in connection therewith. At any time and from time to time, upon the
Bank Administrative Agent's request and at the expense of the relevant Grantor,
such Grantor shall cause independent public accountants or others satisfactory
to the Bank Administrative Agent to furnish to the Bank Administrative Agent
reports showing reconciliations, aging and test verifications of, and trial
balances for, the Accounts; provided, however, that unless a Default or Event of
Default shall be continuing, the Bank Administrative Agent shall request no more
than four such reports during any calendar year.
Section 4.7 Delivery of Instruments and Chattel Paper
If any amount in excess of $1,000,000 payable under or in connection
with any Bank Collateral owned by such Grantor shall be or become evidenced by
an Instrument or Chattel Paper, such Grantor shall immediately deliver such
Instrument or Chattel Paper to the Bank Administrative Agent, duly indorsed in a
manner satisfactory to the Bank Administrative Agent, or, if consented to by the
Bank Administrative Agent, shall xxxx all such Instruments and Chattel Paper
with the following legend: "This writing and the obligations evidenced or
secured hereby are subject to the security interest of Citicorp USA, Inc., as
Bank Administrative Agent".
Section 4.8 Intellectual Property
(a) Such Grantor (either itself or through licensees) shall (i)
continue to use each Trademark that is Material Intellectual Property in order
to maintain such Trademark in full force and effect with respect to each class
of goods for which such Trademark is currently used, free from any claim of
abandonment for non-use, (ii) maintain the quality of products and services
offered under such Trademark, (iii) use such Trademark with the appropriate
notice of registration and all other notices and legends required by applicable
Requirements of Law, (iv) not adopt or use any Trademark unless the Bank
Administrative Agent shall obtain a perfected security interest in such
Trademark (provided that the security interest in foreign Trademarks may be
unperfected) pursuant to this Agreement and (v) not (and not permit any
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licensee or sublicensee thereof to) do any act or knowingly omit to do any act
whereby such Trademark may become invalidated or materially impaired in any way.
(b) Such Grantor (either itself or through licensees) shall not do any
act, or omit to do any act, whereby any Patent that is Material Intellectual
Property may become forfeited, abandoned or dedicated to the public.
(c) Such Grantor (either itself or through licensees) (i) shall not
(and shall not permit any licensee or sublicensee thereof to) do any act or omit
to do any act whereby any portion of the Copyrights that is Material
Intellectual Property may become invalidated or otherwise impaired and (ii)
shall not (either itself or through licensees) do any act whereby any portion of
the Copyrights that is Material Intellectual Property may fall into the public
domain.
(d) Such Grantor (either itself or through licensees) shall not do any
act, or omit to do any act, whereby any trade secret that is Material
Intellectual Property may become publicly available or otherwise unprotectable;
provided, however that with respect to clauses (a), (b), (c) and this clause
(d), the Grantor may take such actions if such Grantor has given prior written
notice to the Bank Administrative Agent of its intention to act or omission to
act and the Bank Administrative Agent has failed to respond with a written
request that such Grantor take or not take such action within 45 days of receipt
of such written notice.
(e) Such Grantor (either itself or through licensees) shall not do any
act that knowingly uses any Material Intellectual Property to infringe the
intellectual property rights of any other Person.
(f) Such Grantor shall notify the Bank Administrative Agent if it
knows, or has reason to know, that any Material Intellectual Property may become
forfeited, abandoned or dedicated to the public, (including the institution of
any proceeding in any court or tribunal in any country).
(g) Whenever such Grantor, shall file an application for the
registration of any Intellectual Property with the United States Patent and
Trademark Office or the United States Copyright Office, such Grantor shall
report such filing to the Bank Administrative Agent within five Business Days
after the last day of the fiscal quarter in which such filing occurs. Upon
request of the Bank Administrative Agent, such Grantor shall execute and
deliver, and have recorded, all agreements, instruments, documents and papers as
the Bank Administrative Agent may reasonably request to evidence the Bank
Administrative Agent's security interest in any Copyright, Patent or Trademark
and the goodwill and general intangibles of such Grantor relating thereto or
represented thereby.
(h) Such Grantor shall take all reasonable actions necessary or
requested by the Bank Administrative Agent, including in any proceeding before
the United States Patent and Trademark Office, the United States Copyright
Office or any similar office or agency, to maintain and pursue each application
(and to obtain the relevant registration) and to maintain each registration of
any Copyright, Trademark or Patent that is Material Intellectual Property,
including filing of applications for renewal, affidavits of use and affidavits
of incontestability.
(i) In the event that any Grantor becomes aware that any Material
Intellectual Property is infringed upon or misappropriated by a third party,
such Grantor shall notify the Bank Administrative Agent promptly after such
Grantor learns thereof. Such Grantor
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shall take actions appropriate in its reasonable judgment in response to such
infringement or misappropriation, including, promptly bringing suit for
infringement or misappropriation and to recover all damages for such
infringement or misappropriation, and shall take such other actions as may be
appropriate in its reasonable judgment under the circumstances to protect such
Material Intellectual Property.
(j) Unless otherwise agreed to by the Bank Administrative Agent, such
Grantor shall execute and deliver to the Bank Administrative Agent for filing in
(i) the United States Copyright Office a short-form copyright security agreement
in the form attached hereto as Annex 5 (Form of Short Form Copyright Security
Agreement), (ii) in the United States Patent and Trademark Office a short-form
patent security agreement in the form attached hereto as Annex 6 (Form of Short
Form Patent Security Agreement) and (iii) the United States Patent and Trademark
Office a short-form trademark security agreement in form attached hereto as
Annex 7 (Form of Short Form Trademark Security Agreement).
Section 4.9 Vehicles
Upon the request of the Bank Administrative Agent, within 30 days
after the date of such request and, with respect to any Vehicle acquired by such
Grantor subsequent to the date of any such request, within 30 days after the
date of acquisition thereof, such Grantor shall file all applications for
certificates of title or ownership indicating the Bank Administrative Agent's
first priority security interest in the Vehicle covered by such certificate and
any other necessary documentation, in each office in each jurisdiction that the
Bank Administrative Agent shall deem advisable to perfect its security interests
in the Vehicles.
Section 4.10 Payment of Secured Obligations
Such Grantor shall pay and discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all taxes,
assessments and governmental charges or levies imposed upon the Bank Collateral
or in respect of income or profits therefrom, as well as all claims of any kind
(including claims for labor, materials and supplies) against or with respect to
the Bank Collateral, except that no such charge need be paid if the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings, reserves in conformity with GAAP with respect thereto have been
provided on the books of such Grantor and such proceedings could not reasonably
be expected to result in the sale, forfeiture or loss of any material portion of
the Bank Collateral or any interest therein.
Section 4.11 Insurance
Such Grantor shall (i) maintain, and cause to be maintained for each
of its Subsidiaries, all insurance required by the Credit Agreement or the
Collateral Documents and (ii) cause all such insurance to name the Bank
Administrative Agent on behalf of the Secured Parties as additional insured or
loss payee, as appropriate, and to provide that no cancellation, material
addition in amount or material change in coverage shall be effective until after
30 days' written notice thereof to the Bank Administrative Agent. All insurance
proceeds (other than insurance proceeds with respect to the Principal
Properties) shall be applied as set forth in the Credit Agreement; provided,
that, if required by the Bank Administrative Agent, during an Event of Default
all insurance proceeds shall be held by the Bank Administrative Agent and
deposited into a Cash Collateral Account.
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Section 4.12 Notice of Commercial Tort Claims
Such Grantor agrees that, if it shall acquire any interest in any
Commercial Tort Claim (whether from another Person or because such Commercial
Tort Claim shall have come into existence), (i) such Grantor shall, immediately
upon such acquisition, deliver to the Bank Administrative Agent, in each case in
form and substance satisfactory to the Bank Administrative Agent, a notice of
the existence and nature of such Commercial Tort Claim and deliver a supplement
to Schedule 7 (Commercial Tort Claims) containing a specific description of such
Commercial Tort Claim, certified by such Grantor as true, correct and complete,
(ii) the provision of Section 2.1 (Bank Collateral) shall apply to such
Commercial Tort Claim (and the Grantor authorizes the Bank Administrative Agent
to supplement such schedule with a description of such Commercial Tort Claim if
such Grantor fails to deliver the supplement described in clause (i)) and (iii)
such Grantor shall execute and deliver to the Bank Administrative Agent, in each
case in form and substance satisfactory to the Bank Administrative Agent, any
certificate, agreement and other document, and take all other action, deemed by
the Bank Administrative Agent to be reasonably necessary or appropriate for the
Bank Administrative Agent to obtain, on behalf of the Lenders, a first-priority,
perfected security interest in all such Commercial Tort Claims. Any supplement
to Schedule 7 (Commercial Tort Claims) delivered pursuant to this Section 4.12
(Notice of Commercial Tort Claims) shall become part of Schedule 7 (Commercial
Tort Claims) for all purposes hereunder other than, absent a written consent of
the Bank Administrative Agent, for purpose of the representations and warranties
set forth in Section 3.9 (Commercial Tort Claims).
ARTICLE V. Remedial Provisions
Section 5.1 Code and Other Remedies
During the continuance of an Event of Default, the Bank Administrative
Agent may exercise, in addition to all other rights and remedies granted to it
in this Agreement and in any other instrument or agreement securing, evidencing
or relating to the Secured Obligations, all rights and remedies of a secured
party under the UCC or any other applicable law. Without limiting the generality
of the foregoing, the Bank Administrative Agent, without demand of performance
or other demand, presentment, protest, advertisement or notice of any kind
(except any notice required by law referred to below) to or upon any Grantor or
any other Person (all and each of which demands, defenses, advertisements and
notices are hereby waived), may in such circumstances forthwith collect,
receive, appropriate and realize upon any Bank Collateral, and may forthwith
sell, lease, assign, give option or options to purchase, or otherwise dispose of
and deliver any Bank Collateral (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, at any exchange, broker's
board or office of the Bank Administrative Agent or any Lender or elsewhere upon
such terms and conditions as it may deem advisable and at such prices as it may
deem best, for cash or on credit or for future delivery without assumption of
any credit risk. The Bank Administrative Agent shall have the right upon any
such public sale or sales, and, to the extent permitted by law, upon any such
private sale or sales, to purchase the whole or any part of the Bank Collateral
so sold, free of any right or equity of redemption in any Grantor, which right
or equity is hereby waived and released. Each Grantor further agrees, at the
Bank Administrative Agent's request during the continuance of an Event of
Default, to assemble the Bank Collateral and make it available to the Bank
Administrative Agent at places that the Bank Administrative Agent shall
reasonably select, whether at such Grantor's premises or elsewhere. The Bank
Administrative Agent shall apply the net proceeds of any
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action taken by it pursuant to this Section 5.1, after deducting all reasonable
costs and expenses of every kind incurred in connection therewith or incidental
to the care or safekeeping of any Bank Collateral or in any way relating to the
Bank Collateral or the rights of the Bank Administrative Agent and any other
Secured Party hereunder, including reasonable attorneys' fees and disbursements,
to the payment in whole or in part of the Secured Obligations, in such order as
set forth in Section 5.5 shall prescribe, and only after such application and
after the payment by the Bank Administrative Agent of any other amount required
by any provision of law, need the Bank Administrative Agent account for the
surplus, if any, to any Grantor. To the extent permitted by applicable law, each
Grantor waives all claims, damages and demands it may acquire against the Bank
Administrative Agent or any other Secured Party arising out of the exercise by
them of any rights hereunder. If any notice of a proposed sale or other
disposition of Bank Collateral shall be required by law, such notice shall be
deemed reasonable and proper if given at least 10 days before such sale or other
disposition.
Section 5.2 Accounts and Payments in Respect of General Intangibles
(a) If required by the Bank Administrative Agent at any time during
the continuance of an Event of Default, any payment of Accounts or payment in
respect of General Intangibles, when collected by any Grantor, shall be
forthwith (and, in any event, within two Business Days) deposited by such
Grantor in the exact form received, duly indorsed by such Grantor to the Bank
Administrative Agent if required, in a Cash Collateral Account, subject to
withdrawal by the Bank Administrative Agent as provided in Section 5.4 (Proceeds
to be Turned Over To Bank Administrative Agent). Until so turned over, such
payment shall be held by such Grantor in trust for the Bank Administrative
Agent, segregated from other funds of such Grantor. Each such deposit of
Proceeds of Accounts and payments in respect of General Intangibles shall be
accompanied by a report identifying in reasonable detail the nature and source
of the payments included in the deposit.
(b) At the Bank Administrative Agent's request, during the continuance
of an Event of Default, each Grantor shall deliver to the Bank Administrative
Agent all original and other documents evidencing, and relating to, the
agreements and transactions that gave rise to the Accounts or payments in
respect of General Intangibles, including all original orders, invoices and
shipping receipts.
(c) The Bank Administrative Agent may, without notice, at any time
during the continuance of an Event of Default, limit or terminate the authority
of a Grantor to collect its Accounts or amounts due under General Intangibles or
any thereof.
(d) The Bank Administrative Agent in its own name or in the name of
others may at any time during the continuance of an Event of Default communicate
with Account Debtors to verify with them to the Bank Administrative Agent's
satisfaction the existence, amount and terms of any Account or amounts due under
any General Intangible.
(e) Upon the request of the Bank Administrative Agent at any time
during the continuance of an Event of Default, each Grantor shall notify Account
Debtors that the Accounts or General Intangibles have been collaterally assigned
to the Bank Administrative Agent and that payments in respect thereof shall be
made directly to the Bank Administrative Agent. In addition, the Bank
Administrative Agent may at any time during the continuance of an Event of
Default enforce such Grantor's rights against such Account Debtors and obligors
of General Intangibles.
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Pledge and Security Agreement
FMC Corporation
(f) Anything herein to the contrary notwithstanding, each Grantor
shall remain liable under each of the Accounts and payments in respect of
General Intangibles to observe and perform all the conditions and obligations to
be observed and performed by it thereunder, all in accordance with the terms of
any agreement giving rise thereto. Neither the Bank Administrative Agent nor any
other Secured Party shall have any obligation or liability under any agreement
giving rise to an Account or a payment in respect of a General Intangible by
reason of or arising out of this Agreement or the receipt by the Bank
Administrative Agent nor any other Secured Party of any payment relating
thereto, nor shall the Bank Administrative Agent nor any other Secured Party be
obligated in any manner to perform any obligation of any Grantor under or
pursuant to any agreement giving rise to an Account or a payment in respect of a
General Intangible, to make any payment, to make any inquiry as to the nature or
the sufficiency of any payment received by it or as to the sufficiency of any
performance by any party thereunder, to present or file any claim, to take any
action to enforce any performance or to collect the payment of any amounts that
may have been assigned to it or to which it may be entitled at any time or
times.
Section 5.3 Pledged Collateral
(a) During the continuance of an Event of Default, upon notice by the
Bank Administrative Agent to the relevant Grantor or Grantors, (i) the Bank
Administrative Agent shall have the right to receive any Proceeds of the Pledged
Collateral and make application thereof to the Secured Obligations in the order
set forth in Section 5.5 and (ii) the Bank Administrative Agent or its nominee
may exercise (A) any voting, consent, corporate and other right pertaining to
the Pledged Collateral at any meeting of shareholders, partners or members, as
the case may be, of the relevant issuer or issuers of Pledged Collateral or
otherwise and (B) any right of conversion, exchange and subscription and any
other right, privilege or option pertaining to the Pledged Collateral as if it
were the absolute owner thereof (including the right to exchange at its
discretion any of the Pledged Collateral upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the corporate
structure of any issuer of Pledged Securities, the right to deposit and deliver
any Pledged Collateral with any committee, depositary, transfer agent, registrar
or other designated agency upon such terms and conditions as the Bank
Administrative Agent may determine), all without liability except to account for
property actually received by it; provided, however, that the Bank
Administrative Agent shall have no duty to any Grantor to exercise any such
right, privilege or option and shall not be responsible for any failure to do so
or delay in so doing.
(b) In order to permit the Bank Administrative Agent to exercise the
voting and other consensual rights that it may be entitled to exercise pursuant
hereto and to receive all dividends and other distributions that it may be
entitled to receive hereunder, (i) each Grantor shall promptly execute and
deliver (or cause to be executed and delivered) to the Bank Administrative Agent
all such proxies, dividend payment orders and other instruments as the Bank
Administrative Agent may from time to time reasonably request and (ii) without
limiting the effect of clause (i) above, such Grantor hereby grants to the Bank
Administrative Agent an irrevocable proxy to vote all or any part of the Pledged
Collateral and to exercise all other rights, powers, privileges and remedies to
which a holder of the Pledged Collateral would be entitled (including giving or
withholding written consents of shareholders, partners or members, as the case
may be, calling special meetings of shareholders, partners or members, as the
case may be, and voting at such meetings), which proxy shall only become
effective, automatically and without the necessity of any action (including any
transfer of any Pledged Collateral on the record books
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Pledge and Security Agreement
FMC Corporation
of the issuer thereof) by any other person (including the issuer of such Pledged
Collateral or any officer or agent thereof) during the continuance of an Event
of Default and which proxy shall only terminate upon the payment in full of the
Secured Obligations.
(c) Each Grantor hereby expressly authorizes and instructs each issuer
of any Pledged Collateral pledged hereunder by such Grantor to (i) comply with
any instruction received by it from the Bank Administrative Agent in writing
that (A) states that an Event of Default has occurred and is continuing and (B)
is otherwise in accordance with the terms of this Agreement, without any other
or further instructions from such Grantor, and each Grantor agrees that such
issuer shall be fully protected in so complying and (ii) unless otherwise
expressly permitted hereby, pay any dividend or other payment with respect to
the Pledged Collateral directly to the Bank Administrative Agent.
Section 5.4 Proceeds to be Turned Over To Bank Administrative Agent
All Proceeds received by the Bank Administrative Agent hereunder shall
be held by the Bank Administrative Agent in a Cash Collateral Account. All
Proceeds while held by the Bank Administrative Agent in a Cash Collateral
Account (or by such Grantor in trust for the Bank Administrative Agent) shall
continue to be held as collateral security for the Secured Obligations and shall
not constitute payment thereof until applied as provided in Section 5.5.
Section 5.5 Application of Moneys
(a) All moneys held by the Bank Administrative Agent in a Cash
Collateral Account shall, to the extent available for distribution, be
distributed by the Bank Administrative Agent until the payment in full of the
Secured Obligations as follows:
FIRST: To the Bank Administrative Agent in an amount equal to the Bank
Administrative Agent's fees which are unpaid, and to any Secured Party which has
theretofore advanced or paid any such fees in an amount equal to the amount
thereof so advanced or paid by such Secured Party prior thereto; 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 such Cash Collateral Account;
SECOND: To the Secured Parties up to an amount equal to any
outstanding, Secured 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 Secured Obligations; and
THIRD: 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 Bank Collateral shall have notified
the Bank Administrative Agent 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, and amounts payable by such Grantor with respect thereto
are secured by the Bank Collateral, the Bank Administrative Agent shall continue
to hold the amount specified in such notice in the Cash Collateral Account until
such Grantor's liability with respect thereto is discharged or released to the
satisfaction of such Secured Party.
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Pledge and Security Agreement
FMC Corporation
(b) The Secured Parties have agreed and acknowledged that the
provisions of this Section 5.5 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 Bank
Administrative Agent to be distributed in accordance with the provisions of this
Agreement and the Sharing Agreement.
Section 5.6 Deficiency
Each Grantor shall remain liable for any deficiency if the proceeds of
any sale or other disposition of the Bank Collateral are insufficient to pay the
Secured Obligations and the fees and disbursements of any attorney employed by
the Bank Administrative Agent or any other Secured Party to collect such
deficiency.
ARTICLE VI. The Bank Administrative Agent
Section 6.1 Bank Administrative Agent's Appointment as
Attorney-in-Fact
(a) Each Grantor hereby irrevocably constitutes and appoints the Bank
Administrative Agent 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, to take any appropriate action and to execute any document or
instrument that may be necessary or desirable to accomplish the purposes of this
Agreement, and, without limiting the generality of the foregoing, each Grantor
hereby gives the Bank Administrative Agent the power and right, on behalf of
such Grantor, without notice to or assent by such Grantor, to do any of the
following:
(i) in the name of such Grantor or its own name, or otherwise, take
possession of and indorse and collect any check, draft, note, acceptance or
other instrument for the payment of moneys due under any Account or General
Intangible or with respect to any other Bank 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 Bank Administrative Agent for the
purpose of collecting any such moneys due under any Account or General
Intangible or with respect to any other Bank Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute and deliver,
and have recorded, any agreement, instrument, document or paper as the Bank
Administrative Agent may request to evidence the Bank Administrative
Agent's security interest in such Intellectual Property and the goodwill
and General Intangibles of such Grantor relating thereto or represented
thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Bank Collateral, effect any repair or pay or
discharge any insurance called for by the terms of this Agreement
(including all or any part of the premiums therefor and the costs thereof);
23
Pledge and Security Agreement
FMC Corporation
(iv) execute, in connection with any sale provided for in Section 5.1
(Code and Other Remedies), any endorsement, assignment or other instrument
of conveyance or transfer with respect to the Bank Collateral; or
(v) (A) direct any party liable for any payment under any Bank
Collateral to make payment of any moneys due or to become due thereunder
directly to the Bank Administrative Agent or as the Bank Administrative
Agent shall direct, (B) ask or demand for, collect, and receive payment of
and receipt for, any moneys, claims and other amounts due or to become due
at any time in respect of or arising out of any Bank Collateral, (C) sign
and indorse any invoice, freight or express xxxx, xxxx of lading, storage
or warehouse receipt, draft against debtors, assignment, verification,
notice and other document in connection with any Bank Collateral, (D)
commence and prosecute any suit, action or proceeding at law or in equity
in any court of competent jurisdiction to collect any Bank Collateral and
to enforce any other right in respect of any Bank Collateral, (E) defend
any suit, action or proceeding brought against such Grantor with respect to
any Bank Collateral, (F) settle, compromise or adjust any such suit, action
or proceeding and, in connection therewith, give such discharges or
releases as the Bank Administrative Agent may deem appropriate, (G) assign
any Copyright, Patent or Trademark (along with the goodwill of the business
to which any such Trademark pertains) throughout the world for such term or
terms, on such conditions, and in such manner as the Bank Administrative
Agent shall in its sole discretion determine, including the execution and
filing of any document necessary to effectuate or record such assignment
and (H) generally, sell, transfer, pledge and make any agreement with
respect to or otherwise deal with any Bank Collateral as fully and
completely as though the Bank Administrative Agent were the absolute owner
thereof for all purposes, and do, at the Bank Administrative Agent's option
and such Grantor's expense, at any time, or from time to time, all acts and
things that the Bank Administrative Agent deems necessary to protect,
preserve or realize upon the Bank Collateral and the Bank Administrative
Agent'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.
Anything in this clause (a) to the contrary notwithstanding, the Bank
Administrative Agent agrees that it shall not exercise any right under the power
of attorney provided for in this clause (a) unless an Event of Default shall be
continuing.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Bank Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the Bank Administrative Agent incurred in
connection with actions undertaken as provided in this Section 6.1, together
with interest thereon at a rate per annum equal to the rate per annum at which
interest would then be payable on past due Revolving Loans that are Base Rate
Loans under the Credit Agreement, from the date of payment by the Bank
Administrative Agent to the date reimbursed by the relevant Grantor, shall be
payable by such Grantor to the Bank Administrative Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. 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 hereby are released.
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Pledge and Security Agreement
FMC Corporation
Section 6.2 Duty of Bank Administrative Agent
The Bank Administrative Agent's sole duty with respect to the custody,
safekeeping and physical preservation of the Bank Collateral in its possession
shall be to deal with it in the same manner as the Bank Administrative Agent
deals with similar property for its own account. Neither the Bank Administrative
Agent, 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 Bank Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Bank Collateral upon the request
of any Grantor or any other Person or to take any other action whatsoever with
regard to any Bank Collateral. The powers conferred on the Bank Administrative
Agent hereunder are solely to protect the Bank Administrative Agent's interest
in the Bank Collateral and shall not impose any duty upon the Bank
Administrative Agent or any other Secured Party to exercise any such powers. The
Bank Administrative Agent 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 respective 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.
Section 6.3 Execution of Financing Statements
Each Grantor authorizes the Bank Administrative Agent to file or
record financing statements and other filing or recording documents or
instruments with respect to the Bank Collateral without the signature of such
Grantor in such form and in such offices as the Bank Administrative Agent
reasonably determines appropriate to perfect the security interests of the Bank
Administrative Agent under this Agreement. A photographic or other reproduction
of this Agreement shall be sufficient as a financing statement or other filing
or recording document or instrument for filing or recording in any jurisdiction.
Section 6.4 Authority of Bank Administrative Agent
Each Grantor acknowledges that the rights and responsibilities of the
Bank Administrative Agent under this Agreement with respect to any action taken
by the Bank Administrative Agent or the exercise or non-exercise by the Bank
Administrative Agent of any option, voting right, request, judgment or other
right or remedy provided for herein or resulting or arising out of this
Agreement shall, as between the Bank Administrative Agent and the other Secured
Parties, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Bank Administrative Agent and the Grantors, the Bank Administrative Agent shall
be conclusively presumed to be acting as agent for the Bank Administrative Agent
and the other Secured Parties with full and valid authority so to act or refrain
from acting, and no Grantor shall be under any obligation, or entitlement, to
make any inquiry respecting such authority.
ARTICLE VII. Miscellaneous
Section 7.1 Amendments in Writing
None of the terms or provisions of this Agreement may be waived,
amended, supplemented or otherwise modified except in accordance with Section
11.1 (Amendments, Waivers, Etc.) of the Credit Agreement.
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Pledge and Security Agreement
FMC Corporation
Section 7.2 Notices
All notices, requests and demands to or upon the Bank Administrative
Agent or any Grantor hereunder shall be effected in the manner provided for in
Section 11.8 (Notices, Etc.) of the Credit Agreement; provided, however, that
any such notice, request or demand to or upon any Grantor shall be addressed in
case of the Borrower at the Borrower's notice address set forth in such Section
11.8.
Section 7.3 No Waiver by Course of Conduct; Cumulative Remedies
Neither the Bank Administrative Agent nor any other Secured Party
shall by any act (except by a written instrument pursuant to Section 7.1
(Amendments in Writing)), delay, indulgence, omission or otherwise be deemed to
have waived any right or remedy hereunder or to have acquiesced in any Default
or Event of Default. No failure to exercise, nor any delay in exercising, on the
part of the Bank Administrative Agent or any other Secured Party, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Bank Administrative Agent or any other Secured Party
of any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy that the Bank Administrative Agent or such other
Secured Party would otherwise have on any future occasion. The rights and
remedies herein provided are cumulative, may be exercised singly or concurrently
and are not exclusive of any other rights or remedies provided by law.
Section 7.4 Successors and Assigns
This Agreement shall be binding upon the successors and assigns of
each Grantor and shall inure to the benefit of the Bank Administrative Agent and
each other Secured Party and their successors and assigns; provided, however,
that no Grantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the Bank
Administrative Agent.
Section 7.5 Counterparts
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by telecopy), each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Signature pages may
be detached from multiple counterparts and attached to a single counterpart so
that all signature pages are attached to the same document. Delivery of an
executed counterpart by telecopy shall be effective as delivery of a manually
executed counterpart.
Section 7.6 Severability
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
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Pledge and Security Agreement
FMC Corporation
Section 7.7 Section Headings
The Article and Section titles contained in this Agreement are, and
shall be, without substantive meaning or content of any kind whatsoever and are
not part of the agreement of the parties hereto.
Section 7.8 Entire Agreement; Hierarchy of Agreements
(a) This Agreement together with the other Loan Documents represents
the entire agreement of the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof.
(b) In the event of conflict or discrepancy between this Agreement and
the terms of any Foreign Pledge Agreement, the terms this Agreement shall
prevail.
Section 7.9 Governing Law
This agreement and the rights and obligations of the parties hereto
shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York.
Section 7.10 Additional Grantors
If, pursuant to Section 7.11 (Additional Collateral and Guaranties) of
the Credit Agreement, the Borrower shall be required to cause any Subsidiary
that is not a Grantor to become a Grantor hereunder, such Subsidiary shall
execute and deliver to the Bank Administrative Agent a Joinder Agreement in the
form of Annex 4 (Form of Joinder Agreement) and shall thereafter for all
purposes be a party hereto and have the same rights, benefits and obligations as
a Grantor party hereto on the Closing Date.
Section 7.11 Release of Bank Collateral
(a) So long as no Event of Default has occurred and is continuing, the
Bank Collateral shall be released as provided in Section 10.7(b)(i) (Concerning
the Bank Collateral and the Bank Collateral Documents) of the Credit Agreement
and Section 5 of the Sharing Agreement and this Agreement and all obligations
(other than those expressly stated to survive such termination) of the Bank
Administrative Agent and each Grantor hereunder shall terminate, all without
delivery of any instrument or performance of any act by any party, and all
rights to the Bank Collateral shall revert to the Grantors; provided, that if
any amounts are then due and payable under the Astaris Agreement, the written
consent of the majority in interest of the Astaris Lenders shall also be
required to release all or substantially all of the Bank Collateral. At the
request and sole expense of any Grantor following any such termination, the Bank
Administrative Agent shall deliver to such Grantor any Bank Collateral of such
Grantor held by the Bank Administrative Agent hereunder and execute and deliver
to such Grantor such documents as such Grantor shall reasonably request to
evidence such termination.
(b) So long as no Event of Default has occurred and is continuing, any
portion of the Bank Collateral shall be released to the extent provided, and
subject to the terms and conditions set forth, in Section 10.7(b)(ii)
(Concerning the Bank Collateral and the Bank Collateral Documents) of the Credit
Agreement and Section 5 of the Sharing Agreement. In connection therewith, the
Bank Administrative Agent, at the request and sole expense of the
27
Pledge and Security Agreement
FMC Corporation
Borrower, shall execute and deliver to the Borrower all releases or other
documents reasonably necessary or desirable for the release of the Lien created
hereby on such Bank Collateral. At the request and sole expense of the Borrower,
a Grantor shall be released from its obligations hereunder in the event that all
the capital stock of such Grantor shall be so sold or disposed; provided,
however, that the Borrower shall have delivered to the Bank Administrative
Agent, at least ten Business Days prior to the date of the proposed release, a
written request for release identifying the relevant Grantor and the terms of
the sale or other disposition in reasonable detail, including the price thereof
and any expenses in connection therewith, together with a certification by the
Borrower in form and substance satisfactory to the Bank Administrative Agent
stating that such transaction is in compliance with the Credit Agreement and the
other Loan Documents. Upon the partial release of the Bank Collateral in
accordance with this Section 7.11, the security interests created by this
Agreement in the released Bank Collateral shall revert to the Grantors and their
successors and assigns; provided, that if any amounts are then due and payable
under the Astaris Agreement, 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.
Section 7.12 Reinstatement
(a) Each Grantor further agrees that, if any payment made by any Loan
Party or other Person and applied to the Secured Obligations is at any time
annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent
or preferential or otherwise required to be refunded or repaid, or the proceeds
of Bank Collateral are required to be returned by any Secured Party to such Loan
Party, its estate, trustee, receiver or any other party, including any Grantor,
under any bankruptcy law, state or federal law, common law or equitable cause,
then, to the extent of such payment or repayment, any Lien or other Bank
Collateral securing such liability shall be and remain in full force and effect,
as fully as if such payment had never been made or, if prior thereto the Lien
granted hereby or other Bank Collateral securing such liability hereunder shall
have been released or terminated by virtue of such cancellation or surrender),
such Lien or other Bank Collateral shall be reinstated in full force and effect,
and such prior cancellation or surrender shall not diminish, release, discharge,
impair or otherwise affect any Lien or other Bank Collateral securing the
obligations of any Grantor in respect of the amount of such payment.
Section 7.13 Matters Relating to Canadian Collateral
With respect to the pledge by the Borrower of the Canadian Pledged
Stock, the Borrower shall forthwith xxxx on its record books that the Canadian
Pledged Stock has been pledged to the Bank Administrative Agent. All Canadian
Pledged Stock shall, at the option of the Bank Administrative Agent, be
registered in the name of the Bank Administrative Agent or its nominee following
receipt of a written request for the same from the Bank Administrative Agent.
For purposes hereof, the term "Canadian Pledged Stock" means, collectively, the
capital stock of FMC of Canada Ltd. and the capital stock of Mid Atlantic
Investments Ltd. pledged to the Bank Administrative Agent by the terms of this
Agreement, as listed on Schedule 2 (Pledged Collateral).
Section 7.14 Matters relating to the Swiss Collateral
(a) Subject to the provisions of Section 4.4(c), no vote shall be
cast, consent given or right exercised or other action taken by such Grantor
that would without prior written consent by the Bank Administrative Agent,
enable or permit to restrict the transferability (Vinkulierung) of any Swiss
Shares by providing in the articles of incorporation of the issuer of
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Pledge and Security Agreement
FMC Corporation
the Swiss Shares that registered shares may be transferred only with the consent
of the issuer. For purposes hereof the term "Swiss Shares" means the shares in
FMC Agricultural Products International AG pledged to the Bank Administrative
Agent by the terms of this Agreement, as listed on Schedule 2 (Pledged
Collateral).
(b) Each Grantor agrees, that to the extent any Bank Collateral shall
be enforced and realized in Switzerland, such realization may be effected by
private sale (Private Verwertung) without regard to the formalities provided in
the Swiss Federal Code on Debt Collection and Bankruptcy; instead of selling the
Bank Collateral to a third party, the Bank Administrative Agent or any Secured
Party shall have the right to acquire any and all of the Bank Collateral on its
own behalf (Selbsteintritt) for the fair market value. In case of enforcement
proceedings in Switzerland pursuant to the Swiss Federal Code on Debt Collection
and Bankruptcy (Bundesgesetz uber Schuldbetreibung und Konkurs), each Grantor
agrees in advance that Art. 41 of the Swiss Federal Code on Debt Collection and
Bankruptcy shall not apply and that a sale pursuant to Art 130 of the Swiss
Federal Code on Debt Collection and Bankruptcy (Freihandverkauf) shall be
admissible.
29
IN WITNESS WHEREOF, each of the undersigned has caused this Pledge and
Security Agreement to be duly executed and delivered as of the date first above
written.
Borrower:
FMC Corporation,
as Grantor
By:
----------------------------
Name:
Title:
Subsidiary Guarantors:
Intermountain Research And
Development Corporation,
as Grantor
By:
----------------------------
Name:
Title:
FMC Asia-pacific, Inc.,
as Grantor
By:
----------------------------
Name:
Title:
FMC Overseas Ltd.
as Grantor
By:
----------------------------
Name:
Title:
FMC Funding Corporation
as Grantor
By:
----------------------------
Name:
Title:
[SIGNATURE PAGE TO PLEDGE AND SECURITY AGREEMENT FOR FMC CORPORATION'S
CREDIT AGREEMENT]
FMC WFC I, Inc.
as Grantor
By:
----------------------------
Name:
Title:
FMC WFC II, Inc.,
as Grantor
By:
----------------------------
Name:
Title:
FMC Defense Corporation
as Grantor
By:
----------------------------
Name:
Title:
FMC Properties, LLC
as Grantor
By:
----------------------------
Name:
Title:
FMC Defense Nl, LLC,
as Grantor
By:
----------------------------
Name:
Title:
FMC WFC I NL, LLC,
as Grantor
By:
----------------------------
Name:
Title:
[SIGNATURE PAGE TO PLEDGE AND SECURITY AGREEMENT FOR FMC CORPORATION'S
CREDIT AGREEMENT]
FMC Idaho LLC,
as Grantor
By:
----------------------------
Name:
Title:
Accepted and Agreed
as of the date first above written:
Citicorp USA, Inc.,
as Bank Administrative Agent
By:
-------------------------------
Name:
Title:
[SIGNATURE PAGE TO PLEDGE AND SECURITY AGREEMENT FOR FMC CORPORATION'S
CREDIT AGREEMENT]
Annex 1
to
Pledge and Security Agreement
Form of Deposit Account Control AgreemenT
This ACCOUNT CONTROL AGREEMENT ("Agreement") is made and entered into
as of this day of October, 2002, by and among
---------
[_________________________________] ("Depository Bank"), FMC Corporation, a
Delaware corporation ("Company"), and Citicorp USA, Inc. ("Citicorp"), as Bank
Administrative Agent as defined in the Pledge and Security Agreement dated as of
October 21, 2002 (the "Pledge Agreement"), among Citicorp, in such capacity
("Secured Party"), the Company and certain of its subsidiaries.
.Statement of Facts
The Depository Bank acknowledges that as of this date it maintains in
the name of the Company certain deposit accounts. One or more of these deposit
accounts may be served by lockboxes operated by the Depository Bank. Such
deposit accounts and the lockboxes, if applicable, are governed by the terms and
conditions of the Company's signature card and Deposit Agreement and Disclosures
for Non-Personal Accounts or other comparable deposit account agreement
published by the Depository Bank from time to time and may also be governed by a
Wholesale Lockbox Service Agreement between the Depository Bank and the Company
(collectively, the "Deposit Agreement"). In consideration of certain financing
provided to the Company by the Secured Party, the Company hereby informs the
Depository Bank that it has granted to the Secured Party a security interest in,
among other things, the following (collectively, the "Account Collateral"): the
accounts listed on Exhibit "A" hereto (each an "Account" and collectively, the
"Accounts"), the checks, drafts, instruments and other items at any time
received in any lockbox listed on Exhibit "A" hereto (individually or
collectively as the context shall required referred to as the "Lockbox") or
received directly by the Depository Bank for deposit in any Account (subject to
the specific Lockbox instructions for processing the contents of mail received
in the Lockbox), and electronic funds transfers, cash or other funds deposited
in, credited to, or held for deposit in or credit to, any Account. The checks,
drafts, instruments, cash, and any other items at any time received in the
Lockbox and the checks, drafts, instruments and any other items as well as any
automated clearing house ("ACH") entry, credit from a merchant card transaction
and other electronic funds transfers directed for deposit to or credited to any
Account shall be referred to collectively as "Items Collateral".
The parties desire to enter into this Agreement in order to set forth
their relative rights and duties with respect to the Account Collateral. To the
extent that any conflict may exist between the provisions of any other agreement
between the Company and the Depository Bank and this Agreement, then this
Agreement shall control.
NOW, THEREFORE, in consideration of the mutual covenants herein, as
well as other good and valuable consideration, the parties agree as follows:
.Statement of Terms
A1-1
Pledge and Security Agreement
FMC Corporation
1. The parties agree that the foregoing Statement of Facts is true and
correct, and is incorporated herein by reference.
2. Company hereby authorizes and directs the Depository Bank to
comply, and the Depository Bank agrees to comply, with instructions originated
by the Secured Party in accordance with this Agreement directing the disposition
of funds from time to time in any Account or as to any other matters relating to
any Account or any of the other Account Collateral without further consent by
the Company, but subject to the terms of this Agreement.
(a) The Company and the Secured Party hereby authorize and direct the
Depository Bank to continue to act upon the instructions of the officers, agents
or other representatives of the Company concerning the Lockbox, if applicable,
and the Accounts, including, but not limited to, the right to direct the
disposition of funds in the Accounts, withdraw any amounts from the Accounts, or
to draw upon or otherwise exercise any authority or powers with respect to the
Lockbox, the Accounts and all Account Collateral related thereto until the
effectiveness of any unilateral written notification from the Secured Party to
the Depository Bank substantially in the form of Exhibit "B" hereto (the
"Notice"). After the effectiveness of such Notice, the Company and the Secured
Party hereby authorize and direct the Depository Bank and the Depository Bank
agrees that all Items Collateral received in a Lockbox, subject to the specific
Lockbox instructions for processing the contents of mail received in the
Lockbox, shall be deposited to the Account listed opposite such Lockbox on
Exhibit "A", and all other Items Collateral received directly by the Depository
Bank for credit to an Account shall be credited to such Account. Furthermore,
after the effectiveness of any Notice from the Secured Party, all available
funds in an Account shall only be withdrawn or transferred based on instructions
originated by the Secured Party in accordance with this Agreement. Such
instructions shall be honored by the Depository Bank without further consent of
the Company. All defenses of the Depository Bank under the Depository Agreement
and Articles 3, 4, and 4A of the Uniform Commercial Code, as adopted in the
applicable state, as to payment and collection of items shall also be applicable
to and enforceable against the Secured Party. The Company and the Secured Party
hereby authorize and direct the Depository Bank to supply the Company's or the
Secured Party's endorsement, as appropriate, to any Items Collateral which the
Depository Bank receives and deposits for collection to any Account.
(b) At the Secured Party's request, the Depository Bank will furnish
in accordance with its standard practices copies of all correspondence, notices,
and account statements (but not canceled checks) or other information which the
Depository Bank is otherwise obligated to send to the Company (by law, agreement
or otherwise) to the Secured Party by regular U.S. mail at the address specified
below. The Depository Bank also agrees to provide copies of account statements
and operating account balance information and other account information to the
Company, including account balances by telephone and by computer to the extent
practicable and as requested by Company. The Depository Bank's liability for
failure to comply with this paragraph shall not exceed the cost of providing
such information.
3. The Depository Bank has not entered into and will not enter into
any agreement with any person other than the Secured Party by which the
Depository Bank is obligated for any reason to comply with instructions from
such other person as to the disposition of funds in or from the Accounts other
than those approved in writing by the Secured Party. The Depository Bank will
not agree that any person other than the Company or the Secured Party is the
Depository Bank's customer with respect to any Account.
[Signature Page to Pledge and Security Agreement for Fmc Corporation's
Credit Agreement]
Pledge and Security Agreement
FMC Corporation
4. The Depository Bank will not exercise or claim any security
interest, lien, right of set-off, deduction, recoupment or banker's lien or any
other interest in or against any Account or any other Account Collateral and the
Depository Bank hereby waives any such interest, right or lien which it may have
against any Account or any of the other Account Collateral, except that the
Depository Bank may offset and charge any Account for the face amount of each
Returned Item (as that term is hereinafter defined), and may offset and charge
such Accounts for all service charges, fees, expenses, adjustments or correction
of posting or encoding errors and other items normally chargeable to any
Account, whether incurred before or after the date of this Agreement. As used in
this Agreement, "Returned Item" means (i) any Items Collateral deposited to any
Account either before or after the date of this Agreement and returned unpaid,
or otherwise uncollected, whether for insufficient funds or for any other
reason, and without regard to the timeliness of such return or the occurrence or
timeliness of any drawee's notice of non-payment; (ii) any Items Collateral
subject to a claim against Depository Bank of breach of transfer or presentment
warranty under the Uniform Commercial Code, as adopted in the applicable state;
(iii) any ACH entry credited to any Account and returned unpaid or subject to an
adjustment entry under applicable clearing house rules, whether for insufficient
funds or for any other reason, and without regard to the timeliness of such
return or adjustment; (iv) any credit to any Account from a merchant card
transaction, against which a contractual demand for chargeback has been made;
and (v) any credit to any Account made in error.
(a) If there are insufficient funds in the Accounts or Accounts
designated to pay such amounts, or if the Depository Bank in good faith believes
that any legal process or applicable law prohibits contact with the Company
and/or such charges or offsets against such Account or Accounts, or the Account
or Accounts are closed, then the Depository Bank may charge any of the other
Accounts and/or the Depository Bank, if the Depository Bank has received a
Notice, may demand that the Secured Party pay and the Secured Party agrees to
pay the Depository Bank within five (5) business days of written notice of
demand the following: (i) all service charges, fees, expenses, adjustments or
correction of posting or encoding errors (including reasonable attorney fees
actually incurred in connection with enforcement by the Depository Bank of the
obligations of the Secured Party hereunder) and other items normally chargeable
to the Accounts, (ii) the face amount of each Returned Item received after the
receipt of a Notice, and (iii) any overdrafts in the Accounts.
(b) The Company agrees to reimburse the Secured Party for any monies
that the Secured Party forwards to the Depository Bank in settlement and
satisfaction of any charges and amounts as detailed above and the Secured Party
may, at its option, charge the loan account of the Company any such amounts. In
the absence of gross negligence or willful misconduct on the part of the
Depository Bank, the Company shall bear all risk of loss associated with any
Account. This paragraph does not limit any liabilities or obligations of the
Secured Party to the Depository Bank as specifically set forth in this
Agreement. The Depository Bank reserves the right to charge any Account
regardless of any agreement to be compensated by means of balances.
5. (a) This Agreement may be terminated by the Company but only with
the express prior written consent of the Secured Party, and in that case the
Secured Party and the Company shall jointly notify the Depository Bank of such
termination. This Agreement may be terminated by the Secured Party at any time
upon its delivery of written notice of such termination to the Depository Bank.
This Agreement may be terminated by the Company at any time after the Secured
Party ceases to have a security interest in all of the Account Collateral,
[Signature Page to Pledge and Security Agreement for Fmc Corporation's
Credit Agreement]
Pledge and Security Agreement
FMC Corporation
provided, that, no such termination by the Company shall be effective unless the
Depository Bank shall have received a written notice from the Secured Party
confirming that such security interest no longer exists.
(b) This Agreement may be terminated by the Depository Bank at any
time on not less than thirty (30) days' prior written notice of such intention
delivered by it to each of the Company and the Secured Party. The Secured Party
acknowledges that the Depository Bank shall not be liable for the closure of any
Lockbox or Accounts by the Company and the remittance of any funds therein
directly to the Company prior to the receipt of any Notice. The Company shall
notify the Secured Party of its closure of any Lockbox or Account.
(c) The Depository Bank's reimbursement and indemnity rights against
the Company under paragraph 4 above and paragraph 7 below shall survive the
expiration or any termination of this Agreement. In addition, the Depository
Bank's reimbursement and indemnity rights against the Secured Party under
paragraph 4 above and paragraph 7 below shall survive any termination of this
Agreement for a period of one hundred eighty (180) days after such termination.
(d) Upon any termination of this Agreement, all funds remaining in the
Accounts, shall be forwarded by the Depository Bank directly to the Company,
unless written notification in accordance with paragraph 9 is received by the
Depository Bank from the Secured Party prior to the expiration of the thirty
(30) day period set forth in paragraph 5(b) above directing that such funds
should be sent to Secured Party or another depository institution approved by
the Secured Party and the Company.
6. The Depository Bank shall be entitled to rely conclusively upon any
notice or instruction it receives from the Secured Party and the Depository Bank
shall have no obligation to investigate or verify the authenticity or
correctness of any such notice or instruction. The Depository Bank shall have no
liability to the Company for the Depository Bank's honoring of any instructions
or directions regarding any Account or other Account Collateral which the
Depository Bank receives from the Secured Party, and the Depository Bank shall
be fully discharged from liability with respect to any funds on deposit in any
Account to the extent it honors such instructions and transfers same to or at
the direction of the Secured Party. The Depository Bank will use due care in
performing its duties and responsibilities and shall only be responsible for any
loss which the Company or the Secured Party sustains to the extent that such
loss is proximately caused by the Depository Bank's willful misconduct or gross
negligence. The Depository Bank shall have no liability to any party for failure
of, or delay in its performance under this Agreement as a result of any act of
God, fire, other catastrophe, electrical or computer failure, any events beyond
the control of the Depository Bank or fraud committed by third parties. In no
event shall the Depository Bank be construed as a fiduciary for any party.
Except as specifically required under the Depository Agreement, the Depository
Bank has no duty whatsoever to monitor the items deposited into the Accounts,
nor except as set forth in the Depository Agreement does the Depository Bank
have any responsibility for notifying the Secured Party or the Company if any
items are returned for any reason.
7. The Company hereby agrees to indemnify the Depository Bank and hold
it harmless against any loss, damage or expense, including but not limited to
unpaid charges, fees, and Returned Items for which the Secured Party and/or the
Company originally received the benefit (including reasonable attorney's fees,
court costs and other litigation expenses), which it may suffer as a direct
result of the Depository Bank's entering into this Agreement, honoring any
[Signature Page to Pledge and Security Agreement for Fmc Corporation's
Credit Agreement]
Pledge and Security Agreement
FMC Corporation
instructions or directions it receives from the Secured Party with respect to
the Lockbox, any Account and the Account Collateral during the term of this
Agreement or, to the extent required by this Agreement, not honoring any
instructions it receives from the Company with respect to the Lockbox, any
Account and the Account Collateral during the term of this Agreement, except in
the event of the Depository Bank's gross negligence or willful misconduct.
Without limiting in any way the Secured Party's obligation to pay or reimburse
Depository Bank as specified herein, the Secured Party hereby agrees to
indemnify the Depository Bank and hold it harmless against any loss, damage or
expense (including reasonable attorney's fees, court costs and other litigation
expenses) which it may suffer as a direct result of the Depository Bank's
honoring any instructions or directions it receives from the Secured Party with
respect to the Lockbox, any Account and the Account Collateral during the term
of this Agreement or, to the extent required by this Agreement, not honoring any
instructions it receives from the Company with respect to the Lockbox, any
Account and the Account Collateral during the term of this Agreement, except in
the event of the Depository Bank's gross negligence or willful misconduct. In no
event shall any party be liable to any other party for lost profits or special,
indirect, exemplary, consequential or punitive damages, even if it shall have
been advised of the possibility of such damages.
8. In the event that any third party should assert an adverse claim
against any of the Accounts or any sums on deposit therein, whether such a claim
arises by tax lien, execution, attachment, garnishment, levy, the claim of a
trustee in bankruptcy or debtor-in-possession, or a competing lien creditor or
otherwise, the Depository Bank in addition to any other remedies the Depository
Bank may possess under this Agreement or at law or in equity, may suspend
disbursements from such Account without any liability until such time as the
Depository Bank shall receive an appropriate court order or other assurances
satisfactory to the Depository Bank establishing that the funds may continue to
be disbursed according to instructions then applicable to such Account, and/or
are authorized to immediately interplead all such funds in such Account into the
registry of the appropriate courts located in the State where such Account is
maintained, and all of the Depository Bank's costs, expenses and attorney's fees
shall be paid by the Company, or if a Notice has been received by the Depository
Bank, by the Secured Party. In addition, in the event a bankruptcy or insolvency
proceeding shall be instituted by or against the Company, the Depository Bank
shall be entitled to refuse to permit any deposits, withdrawals and/or transfers
from the Accounts without any liability until satisfactory documentation is
provided to the Depository Bank that continued deposits, withdrawals and/or
transfers from the Accounts will be authorized and not in violation of any laws,
regulations, or orders of any court.
9. All notices or other communications required or provided under this
Agreement shall be in writing and shall be sent to each party at its respective
address and be issued by or directed to the designated officer (the "Designated
Officer") set forth beneath its signature below (or at such other address and to
or by such other Designated Officer as such party may designate in writing to
the other parties). Such notices or communications that are instructions of the
Company or the Agent, as the case may be, to the Depository Bank shall be deemed
to have been effected by the Depository Bank within two (2) banking days
(exclusive of the date actually received) after receipt by the Designated
Officer of the Depository Bank.
10. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
[Signature Page to Pledge and Security Agreement for Fmc Corporation's
Credit Agreement]
Pledge and Security Agreement
FMC Corporation
11. This Agreement shall be governed by the laws of the State where
the Accounts are maintained (without giving effect to its conflicts of law
rules), which shall also be the jurisdiction of the Depository Bank for purposes
of the applicable Uniform Commercial Code.
12. This Agreement may be executed in any number of several
counterparts.
13. This Agreement shall only be modified or amended by written
agreement of the parties evidencing such modification or amendment.
14. EXCEPT AS MAY BE PROHIBITED BY APPLICABLE LAW, EACH OF THE SECURED
PARTY, THE DEPOSITORY BANK AND THE COMPANY IRREVOCABLY WAIVES THE RIGHT TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING (INCLUDING ANY COUNTERCLAIM) OF ANY TYPE IN
WHICH THE SECURED PARTY, THE DEPOSITORY BANK OR THE COMPANY ARE PARTIES AS TO
ALL MATTERS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT.
(Remainder of the page intentionally left blank)
[Signature Page to Pledge and Security Agreement for Fmc Corporation's
Credit Agreement]
Pledge and Security Agreement
FMC Corporation
IN WITNESS WHEREOF, each of the parties has executed and delivered
this Agreement as of the day and year first above set forth.
DEPOSITORY BANK:
[______________________________________________]
By:
--------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
Address:
----------------------------------------
----------------------------------------
Attn:
----------------------------------
Designated Officer
COMPANY:
FMC Corporation
By:
--------------------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Vice President and Treasurer
Address: FMC Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Treasurer
SECURED PARTY:
Citicorp U.S.A., Inc., as Bank Administrative
Agent under the Pledge Agreement referred to
herein
By:
--------------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
Address: 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
[Signature Page to Pledge and Security Agreement for Fmc Corporation's
Credit Agreement]
Pledge and Security Agreement
FMC Corporation
EXHIBIT "A"
ACCOUNTS OF COMPANY
[Signature Page to Pledge and Security Agreement for Fmc Corporation's
Credit Agreement]
Pledge and Security Agreement
FMC Corporation
EXHIBIT "B"
FORM OF NOTICE OF EXERCISE OF RIGHTS
PURSUANT TO ACCOUNT CONTROL AGREEMENT
[DEPOSITORY BANK] [DATE]
------------------------------
------------------------------
------------------------------
RE: FMC Corporation
Ladies and Gentlemen:
We hereby notify you that, pursuant to the Account Control Agreement
among FMC Corporation ("Company"), you and us, dated as of October 21, 2002 (the
"Agreement"), a copy of which is attached hereto, we are exercising our rights
(i) subject to your rights set forth in paragraph 4 of the Agreement, to have
all available funds now or hereafter existing in the account number(s)
(the "Account(s)") maintained by you, remitted to us
------------------------
each business day to: or pursuant
--------------------------------------------
to our instructions in accordance with the terms of the Agreement, and (ii) none
of the officers, agents or other representatives of the Company or any of its
affiliates shall at any time thereafter have any authority to direct the
disposition of funds in the Accounts, or to draw upon or otherwise exercise any
authority or powers with respect to the Lockbox (as that terms is defined in the
Agreement), the Accounts and all Account Collateral related thereto (as that
term is defined in the Agreement) except as specified in the Agreement.
We appreciate your cooperation in this matter.
Very truly yours,
Citicorp USA, Inc., as Bank Administrative Agent
under the Pledge Agreement referred to in the
Agreement
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Enclosure
cc: FMC Corporation
[Signature Page to Pledge and Security Agreement for Fmc Corporation's
Credit Agreement]
Annex 2
to
Pledge and Security Agreement
Form of Control Account Agreement
[Name and Address
of Approved Securities
Intermediary]
, 20
------------- -- --
Ladies and Gentlemen:
The undersigned (the "Pledgor") together with
-------------------
certain of its affiliates are party to a Pledge and Security Agreement dated
October 21, 2002 in favor of Citicorp USA, Inc., as agent for the Secured
Parties referred to therein (the "Pledgee" and such agreement the "Pledge and
Security Agreement") pursuant to which a security interest is granted by the
Pledgor in all present and future Assets (hereinafter defined) in Account No.
of the Pledgor (the "Pledge").
-------
In connection therewith, the Pledgor hereby instructs you (the
"Approved Securities Intermediary") to do all of the following:
1. maintain the Account, as " - Citicorp USA Control Account";
----------
2. hold in the Account the assets, including, without limitation, all
financial assets, securities, security entitlements and all other property
and rights now or hereafter received in such Account (collectively the
"Assets"), including, without limitation, those assets listed on Schedule A
(List of Assets) attached hereto and made a part hereof;
3. provide to the Pledgee, with a duplicate copy to the Pledgor, a monthly
statement of Assets and a confirmation statement of each transaction
effected in the Account after such transaction is effected; and
4. honor only the instructions or Entitlement Orders in regard to or in
connection with the Account given by an Authorized Officer of the Pledgee,
except that until such time as the Pledgee gives a written notice to the
Approved Securities Intermediary that the Pledgor's rights under this
sentence have been terminated (on which notice the Approved Securities
Intermediary may rely exclusively), the Pledgor acting through an
Authorized Officer may (a) exercise any voting right that it may have with
respect to any Asset, (b) give instructions to enter into purchase or sale
transactions in the Account and (c) withdraw and receive for its own use
all regularly scheduled interest [and dividends] paid with respect to the
Assets [and all cash proceeds of any sale of Assets] ("Permitted
Withdrawals"); provided, however, that, unless the Pledgee has consented to
the specific transaction, the Pledgor shall not instruct the Approved
Securities Intermediary to deliver and, except as may be required by law or
by court order, the Approved Securities Intermediary shall not deliver,
cash, securities, or proceeds from the sale of, or
A2-1
distributions on, such securities out of the Account to the Pledgor or to
any other person orentity other than Permitted Withdrawals.
By its signature below, the Approved Securities Intermediary agrees to
comply with the Entitlement Orders and instructions of an Authorized Officer of
the Pledgee (including, without limitation, any instruction with respect to
sales, trades, transfers and withdrawals of cash or other of the Assets) without
the consent of the Pledgor or any other person (it being understood and agreed
by the Pledgor that the Approved Securities Intermediary shall have no duty or
obligation whatsoever of any kind or character to have knowledge of the terms of
the Pledge and Security Agreement or to determine whether or not an event of
default exists thereunder). The Pledgor hereby agrees to indemnify and hold
harmless the Approved Securities Intermediary, its affiliates, officers and
employees from and against all claims, causes of action, liabilities, lawsuits,
demands and damages, including, without limitation, all court costs and
reasonable attorney's fees, that may result by reason of the Approved Securities
Intermediary complying with such instructions of the Pledgee.
The Authorized Officer of the Pledgee who shall give oral instructions
hereunder shall confirm the same in writing to the Approved Securities
Intermediary within five days after such oral instructions are given.
For the purpose of this Agreement, the term "Authorized Officer of the
Pledgor" shall refer in the singular to or
-------------------
(each of whom is, on the date hereof, an officer or director
-------------------
of the Pledgor) and "Authorized Officer of the Pledgee" shall refer in the
singular to any person who is a vice president or managing director of the
Pledgee. In the event that the Pledgor shall find it advisable to designate a
replacement for any of its Authorized Officers, written notice of any such
replacement shall be given to the Approved Securities Intermediary and the
Pledgee.
Except with respect to the obligations and duties as set forth herein,
this Agreement shall not impose or create any obligation or duty upon the
Approved Securities Intermediary greater than or in addition to the customary
and usual obligations and duties of the Approved Securities Intermediary to the
Pledgor.
As long as the Assets are pledged to the Pledgee, (i) the Approved
Securities Intermediary shall not invade the Assets to cover margin debits or
calls in any other account of the Pledgor and (ii) the Approved Securities
Intermediary agrees that, except for liens resulting from customary commissions,
fees, or charges based upon transactions in the Account, it subordinates in
favor of the Pledgee any security interest, lien or right of setoff the Approved
Securities Intermediary may have. The Approved Securities Intermediary
acknowledges that it has not received notice of any other security interest in
the Account or the Assets. In the event any such notice is received, the
Approved Securities Intermediary shall promptly notify the Pledgee. The Pledgor
herein represents that the Assets are free and clear of any lien or encumbrance
and agrees that, with the exception of the security interest granted to the
Pledgee, no lien or encumbrance shall be placed by it on the Assets without the
express written consent of both the Pledgee and the Approved Securities
Intermediary.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns and it and the rights
and obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, and the law of the Approved Securities
Intermediary's jurisdiction for the purposes of Section 8-110 of the
A2-2
Uniform Commercial Code in effect in the State of New York (the "UCC") shall be,
the law of the State of New York.
The Approved Securities Intermediary shall treat all property at any
time held by the Approved Securities Intermediary in the Account as financial
assets within the meaning of the UCC. The Approved Securities Intermediary
acknowledges that this Agreement constitutes written notification to the
Approved Securities Intermediary, pursuant to the UCC and any applicable federal
regulation for the Federal Reserve Book Entry System, of the Pledgee's security
interest in the Assets. The Pledgor, Pledgee and Approved Securities
Intermediary are entering into this Agreement to provide for the Pledgee's
control of the Assets and to confirm the first priority of the Pledgee's
security interest in the Assets. [The Approved Securities Intermediary agrees to
promptly make and thereafter maintain all necessary entries or notations in its
books and records to reflect the Pledgee's security interest in the Assets.]
If any term or provision of this Agreement is determined to be invalid
or unenforceable, the remainder of this Agreement shall be construed in all
respects as if the invalid or unenforceable term or provision were omitted. This
Agreement may not be altered or amended in any manner without the express
written consent of the Pledgor, the Pledgee and the Approved Securities
Intermediary. This Agreement may be executed in any number of counterparts, all
of which shall constitute one original agreement.
This Agreement may be terminated by the Approved Securities
Intermediary upon 30 day's prior written notice to the Pledgor and the Pledgee.
Upon expiration of such 30-day period, the Approved Securities Intermediary
shall be under no further obligation except to hold the Assets in accordance
with the terms of this Agreement, pending receipt of written instructions from
the Pledgor and the Pledgee, jointly, regarding the further disposition of the
pledged Assets.
The Pledgor acknowledges that this Agreement supplements any existing
agreement of the Pledgor with the Approved Securities Intermediary and, except
as expressly provided herein, is in no way intended to abridge any right that
the Approved Securities Intermediary might otherwise have.
A2-3
In Witness Whereof, the Pledgor and the Pledgee have caused this
Agreement to be executed by their duly authorized officers all as of the date
first above written.
[Name of Pledgor]
By:
------------------------------
Name:
Title:
Citicorp Usa, Inc.,
as Administrative Agent
By:
------------------------------
Name:
Title:
Accepted and Agreed
as of the date first above written:
[Approved Financial Intermediary]
By:
---------------------------------
Name:
Title:
[Signature Page to Control Account Agreement]
Schedule A
To
Control Agreement
List of Assets for Pledged Collateral Account Number:
------------
A2-5
Annex 3
To
Pledge and Security Agreement
Form of Pledge Amendment
This Pledge Amendment, dated as of , 20 , is delivered
---------- -- --
pursuant to Section 4.4(a) (Pledged Collateral) of the Pledge and Security
Agreement, dated as of October 21, 2002, by FMC CORPORATION (the "Borrower"),
the undersigned Grantor and the other Subsidiaries of the Borrower from time to
time party thereto as Grantors in favor of Citicorp USA, Inc., as agent for the
Secured Parties referred to therein (the "Pledge and Security Agreement") and
the undersigned hereby agrees that this Pledge Amendment may be attached to the
Pledge and Security Agreement and that the Pledged Collateral listed on this
Pledge Amendment shall be and become part of the Bank Collateral referred to in
the Pledge and Security Agreement and shall secure all Secured Obligations of
the undersigned. Capitalized terms used herein but not defined herein are used
herein with the meaning given them in the Pledge and Security Agreement.
[Grantor]
By:
-----------------------------------------
Name:
Title:
Pledged Stock
Number of
Shares,
Units or
Issuer Class Certificate No(s). Par Value Interests
------ ----- ------------------ --------- ---------
Pledged Debt
Principal
Issuer Description of Debt Certificate No(s). Final Maturity Amount
------ ------------------- ------------------ -------------- ---------
A3-1
Acknowledged and Agreed
as of the date first above written:
Citicorp Usa, Inc.,
as Administrative Agent
By:
---------------------------------
Name:
Title:
A3-2
Annex 4
to
Pledge and Security Agreement
Form of Joinder Agreement
This Joinder Agreement, dated as of , 20 , is delivered
--------- -- --
pursuant to Section 7.10 (Additional Grantors) of the Pledge and Security
Agreement, dated as of October 21, 2002, by FMC CORPORATION (the "Borrower") and
the Subsidiaries of the Borrower listed on the signature pages thereof in favor
of Citicorp USA, Inc., as agent for the Secured Parties referred to therein (the
"Pledge and Security Agreement"). Capitalized terms used herein but not defined
herein are used with the meanings given them in the Pledge and Security
Agreement.
By executing and delivering this Joinder Agreement, the undersigned,
as provided in Section 7.10 (Additional Grantors) of the Pledge and Security
Agreement, hereby becomes a party to the Pledge and Security Agreement as a
Grantor thereunder with the same force and effect as if originally named as a
Grantor therein and, without limiting the generality of the foregoing, hereby
grants to the Bank Administrative Agent, as collateral security for the full,
prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of the Secured Obligations of the
undersigned, hereby collaterally assigns, conveys, mortgages, pledges,
hypothecates and transfers to the Bank Administrative Agent and grants to the
Bank Administrative Agent a Lien on and security interest in, all of its right,
title and interest in, to and under the Bank Collateral and expressly assumes
all obligations and liabilities of a Grantor thereunder.
The information set forth in Annex 1-A is hereby added to the
information set forth in Schedules 1 through 6 to the Pledge and Security
Agreement.
The undersigned hereby represents and warrants that each of the
representations and warranties contained in Article III (Representations and
Warranties) of the Pledge and Security Agreement applicable to it is true and
correct on and as the date hereof as if made on and as of such date.
IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement
to be duly executed and delivered as of the date first above written.
[Additional Grantor]
By:
------------------------------
Name:
Title:
A4-1
Acknowledged and Agreed
as of the date first above written:
Citicorp Usa, Inc.,
as Administrative Agent
By:
-----------------------------------
Name:
Title:
A5-2
Annex 5
to
Pledge and Security Agreement
Form of Short Form Copyright Security Agreement
Copyright Security Agreement, dated as of , 20 , by FMC
--------- -- --
Corporation (the "Borrower") and each of the other entities listed on the
signature pages hereof or that becomes a party hereto pursuant to Section 7.10
(Additional Grantors) of the Security Agreement referred to below (each a
"Grantor" and, collectively, the "Grantors"), in favor of Citicorp USA, Inc.
("CUSA"), as agent for the Secured Parties (as defined in the Credit Agreement
referred to below) (in such capacity, the "Administrative Agent").
W i t n e s s e t h:
Whereas, pursuant to the Credit Agreement, dated as of October 21,
2002 (as the same may be amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among the Borrower, the Lenders and
Issuers party thereto and CUSA, as agent for the Lenders and Issuers, the
Lenders and the Issuers have severally agreed to make extensions of credit to
the Borrower upon the terms and subject to the conditions set forth therein;
Whereas, the Grantors other than the Borrower are party to the U.S.
Subsidiary Guaranty pursuant to which they have guaranteed the Secured
Obligations; and
Whereas, all the Grantors are party to a Pledge and Security Agreement
of even date herewith in favor of the Bank Administrative Agent (the "Security
Agreement") pursuant to which the Grantors are required to execute and deliver
this Copyright Security Agreement;
Now, Therefore, in consideration of the premises and to induce the
Lenders, the Issuers and the Bank Administrative Agent to enter into the Credit
Agreement and to induce the Lenders and the Issuers to make their respective
extensions of credit to the Borrower thereunder, each Grantor hereby agrees with
the Bank Administrative Agent as follows:
Section 2. Defined Terms
Unless otherwise defined herein, terms defined in the Credit Agreement
or in the Security Agreement and used herein have the meaning given to them in
the Credit Agreement or the Security Agreement.
Section 3. Grant of Security Interest in Copyright Collateral
Each Grantor, as collateral security for the full, prompt and complete
payment and performance when due (whether at stated maturity, by acceleration or
otherwise) of the Secured Obligations of such Grantor, hereby mortgages, pledges
and hypothecates to the Bank Administrative Agent for the benefit of the Secured
Parties, and grants to the Bank Administrative Agent for the benefit of the
Secured Parties a lien on and security interest in, all of its right, title and
interest in, to and under the following Collateral of such Grantor (the
"Copyright Collateral"):
A5-1
(a) all of its Copyrights and Copyright Licenses to which it is a
party, including, without limitation, those referred to on Schedule I hereto;
(b) all reissues, continuations or extensions of the foregoing; and
(c) all Proceeds of the foregoing, including, without limitation, any
claim by Grantor against third parties for past, present, future infringement or
dilution of any Copyright or Copyright licensed under any Copyright License.
Section 4. Security Agreement
The security interest granted pursuant to this Copyright Security
Agreement is granted in conjunction with the security interest granted to the
Bank Administrative Agent pursuant to the Security Agreement and each Grantor
hereby acknowledges and affirms that the rights and remedies of the Bank
Administrative Agent with respect to the security interest in the Copyright
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
[Signature Pages Follow]
A5-2
In Witness Whereof, each Grantor has caused this Copyright Security
Agreement to be executed and delivered by its duly authorized offer as of the
date first set forth above.
Very truly yours,
FMC Corporation,
as Borrower and Grantor
By:
---------------------------------------
Name:
Title:
[Grantor],
as Grantor
By:
---------------------------------------
Name:
Title:
Accepted and Agreed
as of the date first above written:
Citicorp Usa, Inc.,
as Administrative Agent
By:
--------------------------------
Name:
Title:
[Signature Page to Copyright Security Agreement]
Acknowledgment of Grantor
State of ________________)
) ss.
County of _______________)
On this day of , 20 before me personally appeared
--- -------- -- --
, proved to me on the basis of satisfactory evidence to be
----------------------
the person who executed the foregoing instrument on behalf of ,
----------------
who being by me duly sworn did depose and say that he is an authorized officer
of said corporation, that the said instrument was signed on behalf of said
corporation as authorized by its Board of Directors and that he acknowledged
said instrument to be the free act and deed of said corporation.
----------------------------
Notary Public
[Acknowledgement of Grantor for Copyright Security Agreement]
Schedule I
to
Copyright Security Agreement
Copyright Registrations
A. REGISTERED COPYRIGHTS
[Include Copyright Registration Number and Date]
B. COPYRIGHT APPLICATIONS
C. COPYRIGHT LICENSES
[Include complete legal description of agreement (name of agreement,
parties and date)]
A5-5
Annex 6
to
Pledge and Security Agreement
Form of Short Form Patent Security Agreement
Patent Security Agreement, dated as of , 20 , by FMC
--------- -- --
Corporation (the "Borrower") and each of the other entities listed on the
signature pages hereof or which becomes a party hereto pursuant to Section 7.10
(Additional Grantors) of the Security Agreement referred to below (each a
"Grantor" and, collectively, the "Grantors"), in favor of Citicorp USA, Inc.
("CUSA"), as agent for the Secured Parties (as defined in the Credit Agreement
referred to below) (in such capacity, the "Administrative Agent").
W i t n e s s e t h:
Whereas, pursuant to the Credit Agreement, dated as of October 21,
2002 (as the same may be amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among the Borrower, the Lenders and
Issuers party thereto and CUSA, as agent for the Lenders and Issuers, the
Lenders and the Issuers have severally agreed to make extensions of credit to
the Borrower upon the terms and subject to the conditions set forth therein;
Whereas, the Grantors other than the Borrower are party to the U.S.
Subsidiary Guaranty pursuant to which they have guaranteed the Secured
Obligations; and
Whereas, all the Grantors are party to a Pledge and Security Agreement
of even date herewith in favor of the Bank Administrative Agent (the "Security
Agreement") pursuant to which the Grantors are required to execute and deliver
this Patent Security Agreement;
Now, Therefore, in consideration of the premises and to induce the
Lenders, the Issuers and the Bank Administrative Agent to enter into the Credit
Agreement and to induce the Lenders and the Issuers to make their respective
extensions of credit to the Borrower thereunder, each Grantor hereby agrees with
the Bank Administrative Agent as follows:
Section 5. Defined Terms
Unless otherwise defined herein, terms defined in the Credit Agreement
or in the Security Agreement and used herein have the meaning given to them in
the Credit Agreement or the Security Agreement.
Section 6. Grant of Security Interest in Patent Collateral
Each Grantor, as collateral security for the full, prompt and complete
payment and performance when due (whether at stated maturity, by acceleration or
otherwise) of the Secured Obligations of such Grantor, hereby mortgages, pledges
and hypothecates to the Bank Administrative Agent for the benefit of the Secured
Parties, and grants to the Bank Administrative Agent for the benefit of the
Secured Parties a lien on and security interest in, all of its right, title and
interest in, to and under the following Collateral of such Grantor (the "Patent
Collateral"):
A6-1
(a) all of its Patents and Patent Licenses to which it is a party,
including, without limitation, those referred to on Schedule I hereto;
(b) all reissues, continuations or extensions of the foregoing; and
(c) all Proceeds of the foregoing, including, without limitation, any
claim by Grantor against third parties for past, present or future infringement
or dilution of any Patent or any Patent licensed under any Patent License.
Section 7. Security Agreement
The security interest granted pursuant to this Patent Security
Agreement is granted in conjunction with the security interest granted to the
Bank Administrative Agent pursuant to the Security Agreement and each Grantor
hereby acknowledges and affirms that the rights and remedies of the Bank
Administrative Agent with respect to the security interest in the Patent
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
[Signature Pages Follow]
A6-2
In Witness Whereof, each Grantor has caused this Patent Security
Agreement to be executed and delivered by its duly authorized offer as of the
date first set forth above.
Very truly yours,
FMC Corporation,
as Borrower and Grantor
By:
---------------------------------------
Name:
Title:
[Grantor],
as Grantor
By:
---------------------------------------
Name:
Title:
Accepted and Agreed
as of the date first above written:
Citicorp Usa, Inc.,
as Administrative Agent
By:
--------------------------------
Name:
Title:
[Signature Page to Patent Security Agreement]
Acknowledgement of Grantor
State of ________________)
) ss.
County of _______________)
On this day of , 20 before me personally appeared
--- -------- --
, proved to me on the basis of satisfactory evidence to be
----------------------
the person who executed the foregoing instrument on behalf of ,
----------------
who being by me duly sworn did depose and say that he is an authorized officer
of said corporation, that the said instrument was signed on behalf of said
corporation as authorized by its Board of Directors and that he acknowledged
said instrument to be the free act and deed of said corporation.
----------------------------
Notary Public
[Acknowledgement of Grantor for Patent Security Agreement]
Schedule I
to
Patent Security Agreement
Patent Registrations
A. REGISTERED PATENTS
[Include Patent Registration Number and Date]
B. PATENT APPLICATIONS
C. PATENT LICENSES
[Include complete legal description of agreement (name of agreement,
parties and date)]
A6-5
Annex 7
to
Pledge and Security Agreement
Form of Short Form Trademark Security Agreement
Trademark Security Agreement, dated as of , 20 , by FMC
--------- -- --
CORPORATION (the "Borrower") and each of the other entities listed on the
signature pages hereof or which becomes a party hereto pursuant to Section 7.10
(Additional Grantors) of the Security Agreement referred to below (each a
"Grantor" and, collectively, the "Grantors"), in favor of Citicorp USA, Inc.
("CUSA"), as agent for the Secured Parties (as defined in the Credit Agreement
referred to below) (in such capacity, the "Administrative Agent").
W i t n e s s e t h:
Whereas, pursuant to the Credit Agreement, dated as of October 21,
2002 (as the same may be amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among the Borrower, the Lenders and
Issuers party thereto and CUSA, as agent for the Lenders and Issuers, the
Lenders and the Issuers have severally agreed to make extensions of credit to
the Borrower upon the terms and subject to the conditions set forth therein;
Whereas, the Grantors other than the Borrower are party to the U.S.
Subsidiary Guaranty pursuant to which they have guaranteed the Secured
Obligations; and
Whereas, all the Grantors are party to a Pledge and Security Agreement
of even date herewith in favor of the Bank Administrative Agent (the "Security
Agreement") pursuant to which the Grantors are required to execute and deliver
this Trademark Security Agreement;
Now, Therefore, in consideration of the premises and to induce the
Lenders, the Issuers and the Bank Administrative Agent to enter into the Credit
Agreement and to induce the Lenders and the Issuers to make their respective
extensions of credit to the Borrower thereunder, each Grantor hereby agrees with
the Bank Administrative Agent as follows:
Section 8. Defined Terms
Unless otherwise defined herein, terms defined in the Credit Agreement
or in the Security Agreement and used herein have the meaning given to them in
the Credit Agreement or the Security Agreement.
Section 9. Grant of Security Interest in Trademark Collateral
Each Grantor, as collateral security for the full, prompt and complete
payment and performance when due (whether at stated maturity, by acceleration or
otherwise) of the Secured Obligations of such Grantor, hereby mortgages, pledges
and hypothecates to the Bank Administrative Agent for the benefit of the Secured
Parties, and grants to the Bank Administrative Agent for the benefit of the
Secured Parties a lien on and security interest in, all of its right, title and
interest in, to and under the following Collateral of such Grantor (the
"Trademark Collateral"):
A7-1
(a) all of its Trademarks and Trademark Licenses to which it is a
party, including, without limitation, those referred to on Schedule I hereto;
(b) all reissues, continuations or extensions of the foregoing;
(c) all goodwill of the business connected with the use of, and
symbolized by, each Trademark and each Trademark License; and
(d) all Proceeds of the foregoing, including, without limitation, any
claim by Grantor against third parties for past, present, future (i)
infringement or dilution of any Trademark or Trademark licensed under any
Trademark License or (ii) injury to the goodwill associated with any Trademark
or any Trademark licensed under any Trademark License.
ARTICLE VIII. Security Agreement
The security interest granted pursuant to this Trademark Security
Agreement is granted in conjunction with the security interest granted to the
Bank Administrative Agent pursuant to the Security Agreement and each Grantor
hereby acknowledges and affirms that the rights and remedies of the Bank
Administrative Agent with respect to the security interest in the Trademark
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
[Signature Pages Follow]
A7-2
IN WITNESS WHEREOF, each Grantor has caused this Trademark Security
Agreement to be executed and delivered by its duly authorized offer as of the
date first set forth above.
Very truly yours,
FMC Corporation,
as Borrower and Grantor
By:
---------------------------------------
Name:
Title:
[Grantor],
as Grantor
By:
---------------------------------------
Name:
Title:
Accepted and Agreed
as of the date first above written:
Citicorp Usa, Inc.,
as Administrative Agent
By:
--------------------------------
Name:
Title:
[Signature Page to Trademark Security Agreement]
Acknowledgement of Grantor
State of ________________)
) ss.
County of _______________)
On this day of , 20 before me personally appeared
--- -------- --
, proved to me on the basis of satisfactory evidence to be
----------------------
the person who executed the foregoing instrument on behalf of ,
----------------
who being by me duly sworn did depose and say that he is an authorized officer
of said corporation, that the said instrument was signed on behalf of said
corporation as authorized by its Board of Directors and that he acknowledged
said instrument to be the free act and deed of said corporation.
----------------------------
Notary Public
[Acknowledgement of Grantor for Trademark Security Agreement]
Schedule I
to
Trademark Security Agreement
Trademark Registrations
A. REGISTERED TRADEMARKS
[Include trademark registration number and date of registration]
B. TRADEMARK APPLICATIONS
C. TRADEMARK LICENSES
[Include complete legal description of agreement (name of agreement,
parties and date)]
A7-5
