UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 10-K

 

(Mark One)

x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE

ACT OF 1934

For the fiscal year ended December 31, 2003

OR

¨ TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES

EXCHANGE ACT OF 1934

For the transition period from              to             

 

Commission file number 1-2376

 

FMC CORPORATION

(Exact name of registrant as specified in its charter)

 

Delaware   94-0479804

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

1735 Market Street

Philadelphia, Pennsylvania

  19103
(Address of principal executive offices)   (Zip Code)

 

Registrant’s telephone number, including area code: 215/299-6000

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class


   Name of each exchange
on which registered


Common Stock, $0.10 par value

   New York Stock Exchange
Chicago Stock Exchange
Pacific Stock Exchange

Preferred Share Purchase Rights

   New York Stock Exchange

 

Securities registered pursuant to Section 12(g) of the Act: None

 

INDICATE BY CHECK MARK WHETHER THE REGISTRANT (1) HAS FILED ALL REPORTS REQUIRED TO BE FILED BY SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 DURING THE PRECEDING 12 MONTHS (OR FOR SUCH SHORTER PERIOD THAT THE REGISTRANT WAS REQUIRED TO FILE SUCH REPORTS), AND (2) HAS BEEN SUBJECT TO SUCH FILING REQUIREMENTS FOR THE PAST 90 DAYS.    YES x     NO ¨

INDICATE BY CHECK MARK IF DISCLOSURE OF DELINQUENT FILERS PURSUANT TO ITEM 405 OF REGULATION S-K IS NOT CONTAINED HEREIN AND WILL NOT BE CONTAINED, TO THE BEST OF REGISTRANT’S KNOWLEDGE, IN DEFINITIVE PROXY OR INFORMATION STATEMENTS INCORPORATED BY REFERENCE IN PART III OF THIS FORM 10-K OR ANY AMENDMENT TO THIS FORM 10-K. ¨

INDICATE BY CHECK MARK WHETHER THE REGISTRANT IS AN ACCELERATED FILER (AS DEFINED IN RULE 12B-2 OF THE ACT.)    YES x     NO ¨

THE AGGREGATE MARKET VALUE OF VOTING STOCK HELD BY NON-AFFILIATES OF THE REGISTRANT AS OF JUNE 30, 2003, THE REGISTRANT’S SECOND FISCAL QUARTER WAS $793,810,886. THE NUMBER OF SHARES OF THE REGISTRANT’S COMMON STOCK, $0.10 PAR VALUE, OUTSTANDING AS OF THAT DATE WAS 35,197,418. THE MARKET VALUE OF VOTING STOCK HELD BY NON-AFFILIATES EXCLUDES THE VALUE OF THOSE SHARES HELD BY EXECUTIVE OFFICERS AND DIRECTORS OF THE REGISTRANT.

 

DOCUMENTS INCORPORATED BY REFERENCE

 

DOCUMENT


   FORM 10-K REFERENCE

Portions of Proxy Statement for

2004 Annual Meeting of Stockholders

   Part III

 



PART I

 

FMC Corporation (“FMC”) was incorporated in 1928 under Delaware law and has its principal executive offices at 1735 Market Street, Philadelphia, Pennsylvania 19103. As used in this report, except where otherwise stated or indicated by the context, FMC or the company means FMC Corporation and its consolidated subsidiaries and their predecessors.

 

ITEM 1.    BUSINESS

 

General

 

We are a diversified, global chemical company providing innovative solutions, applications and market-leading products to a wide variety of end markets. We operate in three distinct business segments: Agricultural Products, Specialty Chemicals and Industrial Chemicals. Agricultural Products’ focus is on insecticides, which are used to enhance crop yield and quality by controlling a wide spectrum of pests, and on herbicides, which are used to reduce the need for manual or mechanical weeding by inhibiting or preventing weed growth. Specialty Chemicals consists of our BioPolymer and lithium businesses and focuses on food ingredients that are used to enhance texture, structure and physical stability, pharmaceutical additives for binding and disintegrant use and lithium specialties for pharmaceutical synthesis and energy storage. Our Industrial Chemicals segment manufactures a wide range of inorganic materials, including soda ash, hydrogen peroxide, specialty peroxygens and phosphorus chemicals.

 

The following table shows the principal products produced by our three business segments and their raw materials and uses:

 

Segment


  

Product


  

Raw Materials


    

Uses


Agricultural Products   

Insecticides

  

Synthetic chemical intermediates

    

Protection of row crops, rice, sugarcane, cereals, fruits and vegetables from insects and for non-agricultural structural pest control

    

Herbicides

  

Synthetic chemical intermediates

    

Protection of row crops, rice, sugarcane, cereals, vegetables, turf and roadsides from weed growth

Specialty Chemicals   

Microcrystalline Cellulose

  

Specialty pulp

    

Drug tablet binder and disintegrant, food ingredient

    

Carrageenan

  

Refined seaweed

    

Food ingredient for thickening and stabilizing

    

Alginates

  

Refined seaweed

    

Food ingredients, pharmaceutical excipient, wound care, and industrial uses

    

Lithium

  

Mined lithium

    

Pharmaceutical, batteries, polymers

Industrial Chemicals   

Soda Ash

  

Mined trona ore

    

Glass, chemicals, detergents

    

Peroxygens

  

Hydrogen

    

Pulp, paper, textiles, electronics

    

Phosphorus Chemicals

  

Mined phosphate rock

    

Food, cleaning compounds, detergents, agriculture

 

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We have operations in many areas around the world. North America represents our single largest geographic market, generating approximately 44 percent of revenue in 2003, with our second largest market, Europe, Middle East and Africa representing 29 percent and Latin America, our third largest, representing 16 percent of 2003 revenue. With a worldwide manufacturing and distribution infrastructure, we are able to respond rapidly to global customer needs, offset downward economic trends in one region with positive trends in another and better match revenues to local costs to mitigate the impact of currency volatility. The charts below detail our sales and long-term assets by major geographic region.

 

LOGO

 

Recent History

 

Effective December 31, 2001, we completed our split into two companies. FMC retained the three chemical segments. A separate company, FMC Technologies, Inc. (“Technologies”), operates the businesses that comprised the former Energy Systems and Food and Transportation Systems segments. Our plan of separation was first announced on October 31, 2000. On May 31, 2001, we contributed the two non-chemical business segments to Technologies, which at the time was a wholly-owned subsidiary of FMC. We completed an initial public offering of approximately 17 percent of Technologies’ stock in June 2001 and completed the separation on December 31, 2001 by distributing all remaining shares of Technologies owned by FMC as a tax-free dividend to stockholders.

 

Our Strategy

 

Our corporate strategy is balanced between driving growth and innovation within our Specialty Chemicals and Agricultural Products segments and generating strong cash flow in our Industrial Chemicals segment. Our long-term objectives are as follows:

 

Realize the operating leverage inherent in our businesses.     We intend to maximize the benefits of an economic recovery by maintaining our market positions, reducing costs and prudently managing our asset base. In soda ash, we continually strive to optimize our proprietary and low-cost solution mining and longwall mining techniques, thereby reducing our production costs, which we believe are already among the lowest in the industry. In hydrogen peroxide, we have mothballed higher cost production capacity to improve profitability. In the phosphorous chemicals joint venture with Solutia, Inc. (“Solutia”), Astaris, LLC (“Astaris”), a restructuring is now underway which should result in the elimination of $40 million to $50 million of total annual costs for the venture once fully implemented. All of these initiatives will position our Industrial Chemicals business for a significant rebound in earnings as volumes increase with an economic recovery, capacity utilizations improve and selling prices continue to move higher. Additionally, in Agricultural Products, we continue to reduce manufacturing costs by outsourcing production to third parties in Mexico, China and India and expect additional savings from our efforts to streamline our supply chain and reduce logistics costs.

 

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Create greater financial flexibility.     We are committed to the goal of re-establishing our investment-grade rating through improvements to our liquidity and a significant reduction in our indebtedness. In 2002, we set a target of $300 million of debt reduction by 2006, which we plan to achieve through several strategies. First, we expect a strong, sustained rebound in our operating profit and resulting cash flow from operations. Second, we expect capital expenditures to remain below depreciation and amortization as our businesses will meet future expected demand growth through a combination of debottlenecking current production, restarting mothballed plants and outsourcing production to third parties. Third, in connection with Astaris’ recent restructuring, we believe we have effectively capped future keepwell obligations and eliminated any further obligations going forward into 2005. Fourth, we believe that 2004 will be the last year of significant cash spending for the shutdown and remediation of the former elemental phosphorus facility in Pocatello, Idaho. Lastly, we continue to explore asset divestiture opportunities.

 

Focus the portfolio on higher growth businesses.     Our goal is to achieve the highest overall growth while continuing to generate returns above the cost of capital. In this regard, we will invest in Specialty Chemicals for growth; focus our investment in Agricultural Products; and manage Industrial Chemicals for cash. Within Specialty Chemicals, we continue to invest in our leading biopolymer and lithium market positions in the pharmaceutical, food ingredient and energy storage markets. Key strategies include developing new technologies, leveraging our strategic supply position with branded multinational companies, enhancing our technical support capabilities and acquiring new technologies. In Agricultural Products, we have focused our efforts on developing new applications for higher margin, patented products, acquiring complementary chemistries from other pesticide companies and on discovering novel insecticide compounds through our target-based research program.

 

Financial Information About Our Business Segments

 

See Note 19 to our consolidated financial statements included in this Form 10-K. Also see below for selected financial information related to our segments.

 

Agricultural Products

 

Financial Information (In Millions)

 

LOGO

 

Overview

 

Our Agricultural Products segment, which represents approximately 33 percent of our 2003 consolidated revenues, discovers, develops, manufactures and sells a portfolio of crop protection, structural pest control and turf and ornamental products around the world. Our product development efforts focus on developing environmentally compatible solutions that can effectively increase farmers’ yields and provide more cost-effective alternatives to older chemistries to which insects may have developed resistance. We believe that our focused, state-of-the-art discovery strategy will identify novel insecticides that enable farmers to enhance their crop yields.

 

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Products and Markets

 

LOGO

 

Agricultural Products provides a wide range of proprietary, branded products—based on both patented and off-patent technologies—for global agricultural markets. Product branding is a prevalent industry practice used to help maintain and grow market share by promoting consumer recognition and the reputation of the product and the supplier. While we enjoy a relatively strong position in North America, we derived more than half of our Agricultural Products’ revenue from outside North America in 2003.

 

In contrast to most other major crop protection companies, insecticides dominate our Agricultural Products segment, particularly pyrethroid and carbamate chemistries in which we maintain leading market positions, based on revenues. Pyrethroids are a major class of insecticides whose low use rates are unique compared to other classes of insecticides. They are most effective against worm pests. Carbamates are a broad spectrum of insecticides used to control a wide variety of pests in both soil and foliage. We also maintain niche positions in select herbicide markets. We differentiate ourselves through a highly focused strategy in selected crops and regions and leverage our proprietary chemistries and pest-specific Research and development (“R&D”) to develop and market new insecticides and new applications of our existing products. The following table summarizes the principal product chemistries in Agricultural Products and the principal uses of each chemistry:

 

            Cotton   Corn   Rice   Cereals   Fruits,
Vegetables
  Soybeans  

Sugar

Cane

  Tobacco  

Prof.Pest

Control

Home &
Garden


Insecticides

 

Pyrethroids

  permethrin   X   X           X   X           X
   
    cypermethrin   X   X       X   X   X           X
   
    bifenthrin   X   X           X   X   X       X
   
    alpha-cypermethrin   X               X   X            
   
   

zeta-

cypermethrin

  X   X   X   X   X   X   X       X
 
  Carbamates   carbofuran   X   X   X   X   X   X   X   X    
   
    carbosulfan   X       X                        
 
  Other   cadusafos                   X           X    
   
    sulfluramid                                   X

Herbicides   carfentrazone-ethyl   X   X   X   X   X   X           X

  clomazone   X       X       X   X   X   X    
 
  sulfentrazone                   X   X   X   X    

 

5


We have several agreements with Ishihara Sangyo Kaisha, Ltd. (“ISK”), a leading Japanese crop protection company, under which we work together to market and distribute existing and new insecticide and herbicide chemistries in various markets. With the ISK alliance, we have expanded our distribution capabilities in Japan and in Europe by jointly investing with ISK in the Belgian-based pesticide distribution company, Belchim Benelux N.V. Through these alliances and our own targeted marketing efforts, we expect to enhance our access to markets and develop new products that will help us continue to compete effectively.

 

Research and Development

 

We plan to grow by obtaining new and approved uses for existing product lines as well as complementary chemistries from other pesticide companies. Our new labels for zeta-cypermethrin for use on corn, rice, alfalfa, sugar cane and leafy vegetables bode well for the continued growth of this compound. In addition our carfentrazone-ethyl herbicide has received registrations for key potato and vine markets in Europe and we anticipate profitable growth from these new labels.

 

In the intermediate term, we believe the flonicamid insecticide we are developing exclusively in the Americas in conjunction with ISK is a significant opportunity because of its novel mode of action in addressing sucking pests as well as its favorable environmental profile. It has already received approval for greenhouse use in the U.S. and additional uses are under fast track review with the Environmental Protection Agency (“EPA”).

 

Our research program is capitalizing on a focused insecticide discovery strategy that combines direct insect screening with biochemical, target-based testing. Both approaches use state-of-the-art technologies, including genomics, robotics, and advanced computational software. This enables us to successfully identify chemistries that control key agricultural pests, while providing an early understanding of modes of action and safety. Multidisciplinary project teams have quickly moved these promising chemistries from initial discovery to global field-testing.

 

Industry Overview

 

The three principal categories of agricultural chemicals are herbicides, representing approximately half of global industry revenue, insecticides, representing approximately a quarter of global industry revenue, and fungicides representing the remaining portion of global industry revenue. We do not currently participate in the fungicide category.

 

Insecticides are used to control a wide range of insects, including chewing pests (such as caterpillars) and sucking pests (such as aphids). Insecticides are applied as sprays, dusts or granules and are used on a wide variety of crops such as fruits, vegetables, cotton, soybean, corn and cereals. There are several major classes of insecticide chemistries, including organophosphates, carbamates and pyrethroids.

 

Herbicides prevent or inhibit weed growth, thereby reducing or eliminating the need for manual or mechanical weeding. Herbicides can be selective (killing only specific unwanted foliage) or non-selective (killing all foliage), and are also segmented by their time of application: pre-planting, pre-emergent and post-emergent.

 

The agrochemicals industry has undergone significant consolidation over the past several years. The top crop protection companies, Syngenta AG, Bayer AG, Monsanto Company, BASF AG, The Dow Chemical Company and E. I. du Pont de Nemours and Company (“DuPont”), currently represent more than three quarters of global sales, while in 1996, the top six companies represented approximately 60 percent of global sales. Four of these companies, Syngenta, Bayer, BASF and Dow, have all made significant acquisitions of other crop protection companies over the past few years. A significant driver for this consolidation has been the advent of biotechnology, particularly in herbicides employed in row crops, and the resulting escalation of research and development costs.

 

6


The next tier agrochemical producers, including Makteshim-Agan Industries Ltd., Sumitomo Chemical Company Limited, FMC, ISK and Nufarm Limited, generally employ strategies focusing on niche markets. Additionally, there is an emerging trend among these producers to partner with one another to gain economies of scale and competitive market access more comparable to larger competitors.

 

Specialty Chemicals

 

Financial Information (In Millions)

 

LOGO

 

Overview

 

Our Specialty Chemicals segment, which represents 27 percent of our 2003 consolidated revenues, is focused on high-performance food ingredients, pharmaceutical excipients and intermediates and lithium specialty products all of which enjoy solid customer bases and consistent, growing demand. The majority of Specialty Chemicals revenues are to customers in non-cyclical end markets. We believe that our future growth in this segment will continue to be based on the performance capabilities of these products and our research and development capabilities, as well as on the alliances and the close working relationships we have developed with key global customers.

 

Products and Markets

 

LOGO

 

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BioPolymer is a supplier of microcrystalline cellulose (“MCC”), carrageenan and alginates—ingredients that have high value-added applications in the production of food, pharmaceutical and other specialty consumer and industrial products. MCC, processed from specialty grades of wood pulp, provides binding and disintegrant properties for tablets and capsules and has unique functionality that improves the texture and stability of many food products. Carrageenan and alginates, both processed from seaweed, are used in a wide variety of food, pharmaceutical and specialty areas. NovaMatrix is a newly created business unit of BioPolymer that produces and supplies specialty formulated alginates and serves the biomedical and advanced wound treatment markets.

 

BioPolymer is organized around three major markets—food, pharmaceutical and personal care—and is a key supplier to many companies in these markets. Many of BioPolymer’s customers have come to rely on us for the majority of their supply requirements for these product lines. We believe that such reliance is based on our innovative solutions and operational quality. The following chart summarizes the major markets for BioPolymer’s products and our chemistries in each market:

 

        
Microcrystalline
cellulose
  Carrageenan   Alginates   Other

Food

  

Beverage

  X   X   X    
 
  

Convenience foods

  X   X   X   X
 
  

Meat and poultry

      X        
 
  

Pet food and other

  X       X    

Pharmaceutical

  

Tablet binding and coating

  X           X
 
  

Anti-reflux

          X    
   
    

Liquid suspension

  X   X        

Personal Care

  

Biomedical

          X    
 
  

Oral Care

      X        
 
  

Cosmetic care

  X   X   X   X

 

Lithium

 

Lithium is a vertically-integrated, technology business, based on both inorganic and organic lithium chemistries. While lithium is sold into a variety of end-markets, we have focused our efforts on selected growth niches such as fine chemicals for pharmaceutical synthesis, specialty polymers and energy storage.

 

The electrochemical properties of lithium make it an ideal material for portable energy storage in high performance applications, including heart pacemakers, cell phones, camcorders, personal computers and next-generation technologies that combine cellular and wireless capabilities into a single device. Lithium is also being developed as the enabling element in advanced batteries for use in hybrid electric vehicles.

 

Organolithium products are sold to fine chemical and pharmaceutical customers who use lithium’s unique chemical properties to synthesize high value-added products. Organolithiums are also highly valued in the specialty polymer markets as polymer initiators in the production of synthetic rubbers and elastomers. Based on our proprietary technology, the lithium business is developing new, highly specialized polymers for a variety of end uses, such as rocket fuels, industrial applications and automotive coatings.

 

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The following chart summarizes the major markets for various lithium products:

 

   

Primary

Inorganics

 

Specialty

Inorganics

 

Lithium

Metal/Cathodic

Materials

  Organometallics   Intermediates

Fine Chemicals

Pharmaceuticals,

agricultural products

  X       X   X   X

Polymers

Elastomers, rocket

fuels, synthetic

rubbers, industrial

coatings

          X   X   X

Energy Storage

Non-rechargeable

batteries, lithium ion

batteries
(rechargeable)

  X   X   X        

Other

Glass & ceramics,

construction, greases

& lubricants, air
treatment,

pool water
treatment

  X   X            

 

Industry Overview

 

Food Ingredients

 

Our BioPolymer business serves the texture, structure and physical stability (“TSPS”) ingredients market. TSPS ingredients impart physical properties to thicken and stabilize foods. There are many types of TSPS ingredients and a wide range of food groups served, including bakery, meats, dairy and convenience products. The industry is dispersed geographically, with the majority of the sales in Europe, North America and Asia.

 

The industry has experienced steady revenue growth in recent years. Trends driving growth include increasing consumer interest in healthier foods, greater convenience and growth in per capita consumption of processed foods in emerging markets. The trend toward health and convenience drives the need for more functional ingredients to impart desired food tastes and textures. We believe carrageenan and MCC, which address this need, are growing faster than the overall TSPS market. The global customer base for TSPS is relatively fragmented and includes large and small food processors. Consolidation among these customers has been a significant trend. Over the past several years, mergers of large food companies have included Slimfast Foods Company/Bestfoods/Unilever PLC, Nabisco Group Holdings Corp./Kraft Foods Inc., The Pillsbury Company/General Mills, Inc., Suiza Foods Corporation/Dean Foods Company. We believe that such large consolidated companies tend to grow at twice the rate of smaller firms. In light of these conditions, TSPS ingredient suppliers such as FMC have focused on establishing strategic alliances with market leaders with the goal of reducing costs, leveraging technology and expanding product offerings with key accounts.

 

Within the entire food ingredients market, there are a relatively large number of suppliers, due principally to the broad spectrum of chemistries employed. Segment leadership, global position and investment in technology are key factors to sustaining profitability. In addition, larger suppliers may often provide a broader product line and a range of services to food companies including functional systems or blends. The top suppliers of TSPS

 

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ingredients include Danisco A/S, DuPont, CP Kelco ApS, Imperial Chemical Industries PLC, Cargill Incorporated, Sobel N.V., DGF Stoess AG, FMC, Degussa AG, and Tate & Lyle PLC.

 

Pharmaceutical Chemicals

 

Our BioPolymer business sells into the formulation chemicals segment of the pharmaceutical market. The major end markets for formulation chemicals include coatings and colors, fillers, binders, sweeteners and flavors, disintegrants and others.

 

Competitors tend to be grouped by chemistry. Our principal MCC competitors in pharmaceuticals include J. Rettenmaier & Sôhne GmbH, Ming Tai Chemical Co., Ltd., Asahi Kasei Corporation and Blanver Farmoquimica Ltda. While pricing pressures from low cost producers is a common competitive dynamic, companies like FMC offset that pressure by providing the most reliable and broadest range of products and services. Customers of excipients are pharmaceutical firms who depend upon reliable therapeutic performance of their drug products.

 

We also supply alginates into food and health care markets. Highly refined extracts from selected seaweeds provide a broad range of alginate functionality, including uses in anti-reflux disorders, dental impressions, control release of drugs and wound dressings.

 

Lithium Specialties

 

Lithium is a highly versatile metal with diverse end-use markets including glass/ceramics, aluminum production, pharmaceuticals, polymers and both rechargeable and disposable batteries.

 

We market a wide variety of lithium-based products ranging from upstream, commodity lithium carbonate to highly specialized downstream products such as organolithium compounds and cathodic materials for batteries. In past years, lithium carbonate experienced a significant price decline due largely to industry oversupply. During 2003, market pricing stabilized as a result of a better balance of supply and demand for lithium carbonate.

 

There are only three integrated producers of lithium: FMC, Chemetall SA and Sociedad Quimica y Minera de Chile S.A., all of which produce lithium carbonate. Only two, FMC and Chemetell, produce specialty grades of lithium. New entry into the specialty lithium markets is difficult due to the level of proprietary processes and product technology involved. The markets for specialty lithium products tend to be concentrated in more developed regions, including North America, Europe and Asia.

 

Industrial Chemicals

 

Financial Information (In millions)

 

LOGO

 

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Overview

 

Our Industrial Chemicals segment, which represents 40 percent of our 2003 consolidated revenues, has low-cost positions in high-volume inorganic chemicals including soda ash and hydrogen peroxide, complemented by high-value niche positions in specialty alkali, phosphorus and peroxygen products.

 

Products and Markets

 

LOGO

 

Industrial Chemicals serves a diverse group of markets, from economically sensitive industrial sectors to technology-intensive specialty markets. We process and sell refined inorganic products that are sought by customers for their critical reactivity or specific functionality in markets such as paper, pulp, glass and detergents. In addition, we produce, purify and market higher-value downstream derivatives into specialized and customer-specific applications. These applications include dialysis, rocket propulsion, animal nutrition, biocides, semiconductors and even baking.

 

Alkali

 

Our alkali chemical division produces natural soda ash. Soda ash is used by manufacturers in the glass, chemical processing and detergent industries. To a lesser degree, we also produce sodium bicarbonate, caustic soda and sodium sesquicarbonate. Our products are manufactured and sold through FMC Wyoming Corporation, which we manage as an integral part of our alkali business in which we own shares representing an 87.5 percent economic interest, with the remaining shares held by two Japanese companies.

 

We mine and produce natural soda ash using proprietary, low-cost mining technologies, such as long-wall and solution mining, which, we believe, gives us the lowest cost versus other suppliers. Our two production sites in Green River, Wyoming have the capacity to produce approximately 4.9 million tons of soda ash annually, though the business over the last several years has mothballed 1.3 million tons of capacity to improve cost structure and to respond to market conditions.

 

Peroxygens

 

We produce hydrogen peroxide worldwide, with production facilities in the United States, Canada and Mexico, and in Spain and the Netherlands, through Foret, as described below. We also participate in a joint venture company in Thailand. We sell hydrogen peroxide into the pulp and paper industry, and to a lesser extent, in the electronics, chemical processing, food and textiles industries. We believe we are a leading North American producer of hydrogen peroxide due in part to our broad product line, geographically-advantaged plant locations, and our state-of-the-art processing technology. Hydrogen peroxide represents approximately 70 percent of our peroxygens sales.

 

Our specialty peroxygens business supplies persulfate products primarily to polymer and printed circuit board markets and peracetic acid predominately to the food industry for biocidal applications. Typically, we compete as a specialty player where we believe that we are differentiated by our strong technical expertise, unique process technology and geographic location.

 

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Foret

 

Our European subsidiary, FMC Foret, S.A. (“Foret”), headquartered just outside of Barcelona, Spain, is a leader in providing chemical products to the detergent, paper, textile, tanning and chemical industries. Foret is a large and diverse operation with seven manufacturing locations in Europe. Foret has positions in phosphates, hydrogen peroxides, perborates, sulfur derivatives, silicates and zeolites. Foret’s sales efforts are focused in Southern Europe, Africa and the Middle East.

 

Astaris

 

Astaris, our 50 percent-owned unconsolidated joint venture with Solutia, is one of two large diversified phosphorus chemical suppliers in the Americas. Astaris was formed as a separate company in 2000 with headquarters in St. Louis, Missouri. Astaris’ products are used in chemical processing, baking, beverage, food processing, detergent applications and fire suppressants. Astaris has diversified its raw material inputs to use both elemental phosphorus and purified phosphoric acid (“PPA”).

 

In 2003, Astaris announced the approval of a restructuring plan to improve their financial performance. The restructuring, which includes the exit of the commodity sodium tripolyphosphate market, is expected to reduce fixed costs through facility shut downs and the elimination of certain low-contribution products. In addition, the restructuring is expected to result in improvement in the venture’s position in food and technical phosphates.

 

Industry Overview

 

We primarily participate in three markets: soda ash, peroxygens and phosphorus chemicals. These products are generally inorganic-based, produced from minerals or air, and are generally commodities, which, in many cases, have few cost effective substitutes. Growth is typically a function of GDP or the rate of industrialization in key export markets. Pricing tends to reflect short-term supply and demand as producers add or reduce capacity and/or demand changes.

 

Soda Ash

 

Soda ash is a highly alkaline inorganic chemical essential in the production of glass and widely used in the production of chemicals, soaps and detergents and many other products. Natural soda ash is generally produced from trona, a natural form of sodium sesquicarbonate, through mining and chemical processing. Soda ash may also be produced synthetically, but this process requires a significant amount of energy and produces large quantities of waste by-products, making it much less cost-effective than natural soda ash production.

 

Because of the processing cost advantages of trona and the large natural reserves of trona in the U.S., particularly in Green River, Wyoming, all U.S. soda ash production is natural. By contrast, due to a lack of trona, a large percentage of the soda ash that is manufactured in the rest of the world is produced synthetically. Other U.S. producers are OCI Chemical Corporation, Solvay S.A., The General Chemical Group Inc., and IMC Global Inc.

 

Approximately 40 percent of U.S. natural soda ash production will serve export markets in 2004 with approximately 25 percent of U.S. natural soda ash production exported through the American Natural Soda Ash Association (“ANSAC”). ANSAC is the foreign sales association of the significant U.S. producers of soda ash and was established in 1983 under the Webb-Pomerene Act and subsequent legislation. Since its creation, ANSAC has been successful in coordinating soda ash exports, exploiting the natural cost benefits of U.S.—produced natural soda ash and leveraging its large scale of operations to the benefit of its member companies. U.S. exports of soda ash have risen significantly over the last twenty years.

 

Peroxygens

 

Hydrogen peroxide is typically sold in aqueous solutions for use as a bleach or oxidizer. As such, it often competes with other chemicals capable of performing similar functions. Some of our specialty peroxygen

 

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derivatives (e.g., persulfates, perborates, percarbonates) also function as bleaching or oxidizing agents. Environmental regulations, regional cost differences (often due to transportation costs) and technical differences in product performance enter into the decision to use hydrogen peroxide or one of its derivatives rather than another product. Since these considerations vary by region, the consumption patterns vary in different parts of the world. Hydrogen peroxide is sold in aqueous solutions, usually 35 percent, 50 percent or 70 percent by weight.

 

The U.S. pulp and paper industry represents approximately 67 percent of domestic demand for hydrogen peroxide. In this market, hydrogen peroxide is used as an environmentally friendly bleaching agent to brighten chemical, mechanical and recycled pulps, as well as treat a wide range of mill pollutants in the waste stream. During the 1990s the hydrogen peroxide market became increasingly cyclical, dependent on the pulp industry, which has recently experienced a general slowdown. In addition, demand growth for hydrogen peroxide has slowed as the conversion from elemental chlorine by the U.S. pulp industry is largely complete. In recent years these trends have had a negative effect on pricing, but modest improvement in demand along with a reduction in effective capacity have resulted in slightly higher prices. The other North American hydrogen peroxide producers are Akzo Nobel, N.V., Total, SA, Degussa AG, Keminra Oyj and Solvay S.A.

 

Phosphorous Chemicals

 

Phosphorous chemicals are used in many industrial applications in a wide array of chemical compounds. Overall growth in demand for phosphorous chemicals tends to correlate with GDP. Phosphoric acid and phosphate salts (e.g., sodium phosphates, calcium phosphates, potassium phosphates) are sold into many markets including food, beverage, water treatment, automotive, metal cleaning, detergents and fire suppressants.

 

The basic feed for making phosphates is now produced using two processes. Most industrial applications use the cost-effective process that involves making PPA by the purification of fertilizer-grade phosphoric acid. Thermal phosphoric acid, long the industry standard, is produced from elemental phosphorus but is more costly due to energy and environmental compliance costs, and is now used mainly in limited applications. While Astaris, our phosphorus joint venture, ceased the production of elemental phosphorus in 2001, it is still produced by Monsanto in the United States, Thermphos in the Netherlands, and in several other countries, principally China.

 

Worldwide demand for phosphorous chemicals declined in the early 1990s as detergents containing phosphates for home-laundry use were banned in North America and parts of Europe. Over the next few years, industrial demand for phosphorous chemicals is expected to improve, driven by growing demand in the detergents and food and beverage industries in newly industrializing nations, and by the growth of food and beverage applications in the United States and Europe.

 

Beginning in the late 1990s, reduced demand, the shift in growth toward developing regions, and the advent of new technology resulted in a significant restructuring of the phosphorus chemicals industry as producers consolidated or exited the business.

 

In North America, we participate in the phosphorus chemicals business through Astaris. In Europe, we participate in this business through Foret. Both Astaris and Foret use the PPA process. Major competitors include Rhodia, S.A., Prayon Rupel, S.A. and the Potash Corporation of Saskachewan, Inc.

 

Source and Availability of Raw Materials

 

Our raw material requirements vary by business segment and include mineral-related natural resources (trona ore, lithium brines and phosphate rock), processed chemicals, seaweed, specialty wood pulp and energy sources such as oil, gas, coal and electricity. Raw materials represented approximately 30 percent of our 2003 cost of sales and services, and no one raw material represented more than 7 percent of our total raw material purchases.

 

13


Ores used in Industrial Chemicals manufacturing processes, such as trona, are extracted from mines in the U.S. on property held by FMC under long-term leases subject to periodic adjustment of royalty rates. Raw materials used by Specialty Chemicals include lithium carbonate, which is currently obtained from a South American manufacturer under a long-term sourcing agreement, various types of seaweed that are sourced on a global basis and wood pulp, which is purchased from several North American producers. Raw materials used by Agricultural Products, primarily processed chemicals, are obtained from a variety of suppliers worldwide.

 

Patents

 

FMC owns a number of U.S. and foreign patents, trademarks and licenses that are cumulatively important to its business. We do not believe that the loss of any one or group of related patents, trademarks or licenses would have a material adverse effect on the overall business of FMC. The duration of our patents depends on their respective jurisdictions. Their expiration dates range through 2021.

 

Seasonality

 

The seasonal nature of the crop protection market and the geographic spread of the Agricultural Products business generally produce weaker earnings in the first quarter of the year. Agricultural products sold into the northern hemisphere (North America, Europe and parts of Asia) serve seasonal agricultural markets from March through September, while markets in the southern hemisphere (Latin America and parts of the Asia Pacific region, including Australia) are served from July through February. The remainder of our businesses are generally not subject to significant seasonal fluctuations.

 

Competition

 

We have a number one or number two market position in many of our product lines, based on revenue, either globally or in North America, largely as a result of our proprietary technologies and, with respect to Industrial Chemicals, our position as a low-cost producer. The following product lines accounted for the majority of our 2003 consolidated revenue. Market positions are based on the most recently available revenue data.

 

Agricultural Products


 

Specialty Chemicals


 

Industrial Chemicals


Product Line


 

Market Position


 

Product Line


 

Market Position


 

Product Line


 

Market Position


Pyrethroids

 

#2 in North America

 

Microcrystalline
cellouse

     

Soda ash

 

#1 in North America

Carbofuran

 

#1 globally

   

#1 globally

 

Hydrogen peroxide

 

#1 in North America

       

Carrageenan

 

#1 globally

 

Persulfates

 

#1 in North America

       

Alginates

 

#2 globally

 

Phosphorous

 

#1 in North America (1)

       

Lithium specialties

 

#1 globally (1)

 

chemicals (2)

   

(1)   Shared.

 

(2)   The market position in phosphorus chemicals is held by Astaris, our 50%-owned joint venture. Its revenue is not included in our consolidated revenue.

 

Competitive Conditions

 

We encounter substantial competition in each of our three business segments. This competition is expected to continue in both the United States and markets outside of the United States. We market our products through our own sales organization and through independent distributors and sales representatives. The number of our principal competitors varies from segment to segment. In general, we compete by operating in a cost-efficient manner and by leveraging our industry experience to provide advanced technology, high product quality and reliability and quality customer and technical service.

 

Our Agricultural Products segment competes in the global crop protection market for insecticides and herbicides. The industry is characterized by a small number of large competitors and a large number of smaller,

 

14


often regional competitors such as FMC. Industry products include crop protection chemicals and, for major competitors, genetically engineered (crop biotechnology) products. Competition from generic producers has increased as a significant number of product patents have expired in the last decade. In general, we compete as a product innovator by focusing on insecticide discovery and development and by licensing products from alliances when the products complement our product portfolio. We also differentiate ourselves by reacting quickly in key markets, establishing effective product stewardship programs, and developing strategic alliances, which strengthen market access in key countries.

 

With significant positions in markets that include alginate, carrageenan, microcrystalline cellulose and lithium-based products, Specialty Chemicals competes on the basis of product differentiation, customer service and price. BioPolymer competes with both direct suppliers of cellulose and seaweed extract as well as suppliers of other hydrocolloids, which may provide similar functionality in specific applications. In microcrystalline cellulose, competitors are typically smaller than FMC, while in seaweed extracts (alginates), we compete with other broad-based chemical companies. FMC and each of its two most significant competitors in lithium, extract the element from naturally occurring lithium-rich brines located in the Andes mountains of Argentina and Chile which are believed to be the world’s most significant and lowest cost sources of lithium.

 

Industrial Chemicals serves the alkali, peroxygens and phosphorus markets predominantly in the United States and to a lesser extent, Europe. In North America, the soda ash business competes with four domestic producers of natural soda ash, three of which operate in the vicinity of our mine and processing facility in Green River, Wyoming. Outside of North America and Europe, FMC sells soda ash through ANSAC. Internationally, our natural soda ash competes with synthetic soda ash manufactured by numerous producers, ranging from integrated multinational companies to smaller regional companies. We maintain a leading position in the North American market for hydrogen peroxide. There are currently five firms competing in the hydrogen peroxide market in North America. The primary competitive factor affecting the sales of soda ash and hydrogen peroxide is price. We seek to maintain our competitive position by employing low cost processing technology. At Foret, we possess a strong cost and market position in phosphates, perborates, peroxygens, zeolites and sulfur derivatives. In each of these markets we face significant competition from a range of multinational and regional chemical producers. We participate in the phosphorus chemicals business in the United States through the Astaris joint venture. Competition in phosphorus chemicals is based primarily on price and to a lesser degree product differentiation.

 

Research and Development Expense

 

We perform product research and development in all of our segments with the majority of our efforts focused in our Agricultural Products segment. The product development efforts in our Agricultural Products segment focus on developing more environmentally compatible solutions that can cost-effectively increase farmers’ yields and provide alternatives to insect-resistant chemistries. Our research and development expenses in the last three years are set forth below:

 

    

Year Ended

December 31,


     2003

   2002

   2001

     (in Millions)

Agricultural Products

   $ 65.1    $ 58.8    $ 72.5

Specialty Chemicals

     16.1      16.6      15.9

Industrial Chemicals

     6.2      6.6      11.4
    

  

  

Total

   $ 87.4    $ 82.0    $ 99.8
    

  

  

 

Environmental Laws and Regulations

 

We are subject to various federal, state, local and foreign environmental laws and regulations that govern emissions of air pollutants, discharges of water pollutants, and the manufacture, storage, handling and disposal of

 

15


hazardous substances, hazardous wastes and other toxic materials and remediation of contaminated sites. We are also subject to liabilities arising under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) and similar state laws that impose responsibility on persons who arranged for the disposal of hazardous substances, and on current and previous owners and operators of a facility for the clean-up of hazardous substances released from the facility into the environment. In addition, we are subject to liabilities under the Resource Conservation and Recovery Act (“RCRA”) and analogous state laws that require owners and operators of facilities that treat, store or dispose of hazardous waste to follow certain waste management practices and to clean up releases of hazardous waste into the environment associated with past or present practices.

 

We have been named a potentially responsible party, or PRP, at 26 sites on the federal government’s National Priority List. In addition, we also have received notice from the EPA or other regulatory agencies that we may be a Potentially Responsible Party (“PRP”), or PRP equivalent, at other sites, including 48 sites at which we have determined that it is reasonably possible that we have an environmental liability. In cooperation with appropriate government agencies, we are currently participating in, or have participated in, a Remedial Investigation/Feasibility Study (“RI/FS”) or its equivalent at most of the identified sites, with the status of each investigation varying from site to site. At certain sites, a RI/FS has only recently begun, providing limited information, if any, relating to cost estimates, timing, or the involvement of other PRPs; whereas, at other sites, the studies are complete, remedial action plans have been chosen, or a Record of Decision has (“ROD”) been issued.

 

Environmental liabilities include obligations relating to waste handling and the remediation and/or study of sites at which we are alleged to have disposed of regulated materials. These sites include current operations, previously operated sites, and sites associated with discontinued operations. We have provided reserves for potential environmental obligations that we consider probable and for which a reasonable estimate of the obligation could be made. As of December 31, 2003, our total environmental reserve (after accounting for any potential recoveries from third parties, which we estimate at $17.0 million) was $186.1 million compared to $195.7 million at December 31, 2002 (after accounting for recoveries of $27.7 million). In addition, we have estimated that reasonably possible environmental loss contingencies may exceed this reserve by as much as $75 million at December 31, 2003.

 

Employees

 

We employ approximately 5,300 people, with approximately 2,900 people in our domestic operations and 2,400 people in our foreign operations. Approximately 30 percent of our U.S.-based employees and 45 percent of our foreign-based employees are represented by collective bargaining agreements. We have successfully concluded virtually all of our recent contract negotiations without a work stoppage. In those rare instances where a work stoppage has occurred, there has been no material effect on consolidated sales and earnings. We cannot predict, however, the outcome of future contract negotiations. In 2004, we have three collective-bargaining agreements expiring. These contracts affect approximately two percent of U.S.-based employees and 22 percent of foreign-based employees.

 

Securities and Exchange Commission Filings

 

Securities and Exchange Commission (“SEC”) filings are available free of charge on our website, www.fmc.com. Our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to those reports are posted as soon as practicable after we furnish such materials to the SEC.

 

ITEM 2.    PROPERTIES

 

FMC leases executive offices in Philadelphia and operates 37 manufacturing facilities and mines in 19 countries. Our major research and development facility is in Princeton, New Jersey.

 

16


Trona ore, used for soda ash production in Green River, Wyoming, is mined primarily from property held under long-term leases. We own the land and mineral rights to the Salar del Hombre Muerto lithium reserves in Argentina. A number of our chemical plants require the basic raw materials, which are provided by these FMC-owned or leased mines, without which other sources would have to be obtained. With regard to our mining properties operated under long-term leases, no single lease or related group of leases is material to our businesses or to our company as a whole.

 

Most of our plant sites are owned, with some under lease. We believe our properties and facilities meet present requirements and are in good operating condition and that each of our significant manufacturing facilities is operating at a level consistent with capacity utilization prevalent in the industries in which it operates. The number and location of our production properties for continuing operations are:

 

     United
States


   Latin
America
and
Canada


   Western
Europe


   Asia-
Pacific


   Total

Agricultural Products

   5    1       3    9

Specialty Chemicals

   3    2    5    4    14

Industrial Chemicals

   5    1    8       14
    
  
  
  
  

Total

   13    4    13    7    37
    
  
  
  
  

 

ITEM 3.    LEGAL PROCEEDINGS

 

Like hundreds of other industrial companies, we have been named as one of many defendants in asbestos-related personal injury litigation. These cases (most cases involve between 50 and 350 defendants) allege personal injury or death resulting from exposure to asbestos in premises of FMC or to asbestos-containing components installed in machinery or equipment manufactured or sold by discontinued operations. The machinery and equipment businesses we owned or operated did not fabricate the asbestos-containing component parts at issue in the litigation, and to this day, neither the U.S. Occupational Safety and Health Administration nor the EPA has banned the use of these components. Further, the asbestos-containing materials were housed inside of machinery and equipment and accessible only at the time of infrequent repair and maintenance. Therefore, we believe that, overall, the claims against FMC are without merit and consider ourselves to be a peripheral defendant in these matters. Indeed, the bulk of the claims against us to date have been dismissed without payment.

 

As of December 31, 2003, there were approximately 37,000 premises and product claims pending against FMC in several jurisdictions. To date, we have had discharged, all before trial, approximately 52,500 claims against FMC, the overwhelming majority of which have been dismissed without any payment to the plaintiff. The costs of all settlements to date have totaled approximately $4 million.

 

We intend to continue managing these cases in accordance with our historical experience. We have established a reserve for this litigation and believe that the outcome of these cases will not have a material adverse effect on our consolidated cash flows or financial condition.

 

We are party to various other lawsuits, both as defendant and plaintiff, arising in the normal course of business. We believe that the disposition of these lawsuits will not, individually or in the aggregate, have a material adverse effect on our consolidated cash flows or financial condition.

 

See Note 1 “Principal Accounting Policies and Related Financial Information—Environmental Obligations,” Note 11 “Environmental” and Note 18 “Commitments, Guarantees and Contingent Liabilities” in notes to consolidated financial statements beginning on page 58, page 77 and page 93, respectively, included in this Form 10-K.

 

17


ITEM 4.    SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS

 

None.

 

ITEM 4A.    EXECUTIVE OFFICERS OF THE REGISTRANT

 

The executive officers of FMC Corporation, the offices currently held by them, their business experience since January 1, 1999 and earlier and their ages as of March 1, 2004, are as follows:

 

Name


   Age on
3/1/2004


  

Office, year of election and other
information


William G. Walter    58   

Chairman, Chief Executive Officer and President (01-present); Executive Vice President (00); Vice President and General Manager—Specialty Chemicals Group (97); General Manager—Alkali Chemicals Division (92); General Manager, Defense Systems International (86)

W. Kim Foster    55   

Senior Vice President and Chief Financial Officer (01-present); Vice President and General Manager—Agricultural Products Group (98); Director, International, Agricultural Products Group (96); General Manager, Airport Products and Systems Division (91)

Andrea E. Utecht    55   

Vice President, General Counsel and Secretary (01-present); Senior Vice President, Secretary and General Counsel, AtoFina Chemicals, Inc. (96)

Theodore H. Butz    45   

Vice President and General Manager—Specialty Chemicals Group (03); General Manager, BioPolymer Division (99); General Manager, Food Ingredients Division (96); Director BioProducts and Group Development, Specialty Chemicals (95)

Milton Steele    55   

Vice President and General Manager—Agricultural Products Group (01-present); International Director, Agricultural Products (99); General Manager Bio Product Division (98); General Manager, Asia Pacific (96); Area Manager, Asia Pacific (92)

D. Michael Wilson    41   

Vice President and General Manager—Industrial Chemicals Group (03); General Manager Lithium Division (97); Vice President and General Manager, Technical Specialty Papers Division, Wausau Paper Corporation (96); Vice President Sales and Marketing, Rexam, Inc. (93)

Thomas C. Deas, Jr.    53   

Vice President and Treasurer (01-present); Vice President, Treasurer and CFO, Applied Tech Products Corp. (98); Vice President, Treasurer and CFO, Airgas, Inc. (97); Vice President, Treasurer and CFO, Maritrans, Inc. (96); Vice President—Treasury and Assistant Treasurer, Scott Paper Company (88)

Graham R. Wood    50   

Vice President, Corporate Controller (01-Present); Group Controller—Agricultural Products Group (99); Chief Financial Officer—European Region (97); Group Controller—FMC Foodtech (93)

 

No family relationships exist among any of the above-listed officers, and there are no arrangements or understandings between any of the above-listed officers and any other person pursuant to which they serve as an officer. All officers are elected to hold office for one year or until their successors are elected and qualified.

 

18


PART II

 

ITEM 5.   MARKET FOR THE REGISTRANT’S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS

 

FMC common stock of $0.10 par value is traded on the New York Stock Exchange, the Pacific Stock Exchange and the Chicago Stock Exchange (Symbol: FMC). There were 7,616 registered common stockholders as of December 31, 2003. The 2003 and 2002 quarterly summaries of the high and low prices of the company’s common stock are represented herein under Item 8 (see Note 20 to our consolidated financial statements included in this Form 10-K) and such summaries are incorporated into this Item 5 by reference. No cash dividends were paid in 2003, 2002 or 2001.

 

FMC’s annual meeting of stockholders will be held at 2:00 p.m. on Tuesday, April 27, 2004, at the Top of the Tower, 1717 Arch Street, 50 th Floor, Philadelphia, Pennsylvania 19103. Notice of the meeting, together with proxy materials, will be mailed approximately 30 days prior to the meeting to stockholders of record as of March 1, 2004.

 

Transfer Agent and Registrar of Stock:    National City Bank
     Corporate Trust Operations
     P.O. Box 92301
     Cleveland, Ohio 44193-0900

 

19


ITEM 6.    SELECTED FINANCIAL DATA

 

SELECTED CONSOLIDATED FINANCIAL DATA

 

The selected consolidated financial and other data presented below for, and as of the end of, each of the years in the five-year period ended December 31, 2003, are derived from our consolidated financial statements. The consolidated financial statements as of December 31, 2003 and 2002, and for each of the years in the three-year period ended December 31, 2003, and the independent auditor’s report thereon, are included elsewhere in this Form 10-K. The selected consolidated financial data should be read in conjunction with our consolidated financial statements for the year ended December 31, 2003, the related notes, and the independent auditor’s report, which refers to the adoption of Statement of Financial Accounting Standards No. 142 “Goodwill and Other Intangible Assets” on January 1, 2002 and Statement of Financial Accounting Standards No. 133 “Accounting for Derivative Instruments and Hedging Activities” on January 1, 2001, included elsewhere in this Form 10-K.

 

     Year Ended December 31,

 
     2003

    2002

    2001

    2000(2)

    1999(3)

 
     (in Millions, Except Per Share Data and Ratios)  

Income Statement Data (1):

                                        

Revenue

   $ 1,921.4     $ 1,852.9     $ 1,943.0     $ 2,050.3     $ 2,320.5  

Costs of sales and services

     1,400.5       1,359.9       1,417.3       1,469.4       1,695.6  

Selling, general and administrative expenses

     236.9       224.1       243.3       231.3       273.0  

Research and development expenses

     87.4       82.0       99.8       97.8       100.6  

Gains on divestitures of businesses

     —         —         —         —         (55.5 )

Asset impairments

     —         —         323.1       10.1       23.1  

Restructuring and other charges (gains)

     (5.1 )     30.1       280.4       35.2       11.1  
    


 


 


 


 


Total costs and expenses

     1,719.7       1,696.1       2,363.9       1,843.8       2,047.9  

Income (loss) from continuing operations before equity in (earnings) loss of affiliates, minority interests, interest expense, net, income taxes and cumulative effect of change in accounting principle

     201.7       156.8       (420.9 )     206.5       272.6  

Equity in (earnings) loss of affiliates

     68.6       (4.7 )     (8.6 )     (18.5 )     (4.0 )

Minority interests

     2.9       3.4       2.3       4.6       5.1  

Interest expense, net

     92.2       71.6       58.3       61.8       76.4  
    


 


 


 


 


Income (loss) from continuing operations before income taxes and cumulative effect of change in accounting principle

     38.0       86.5       (472.9 )     158.6       195.1  

Provision (benefit) for income taxes

     (1.8 )     17.4       (166.6 )     33.0       36.4  
    


 


 


 


 


Income (loss) from continuing operations before cumulative effect of change in accounting principle

     39.8       69.1       (306.3 )     125.6       158.7  

Discontinued operations, net of income taxes (4)

     (13.3 )     (3.3 )     (30.5 )     (15.0 )     53.9  

Cumulative effect of change in accounting principle, net of income taxes

     —         —         (0.9 )     —         —    
    


 


 


 


 


Net income (loss)

   $ 26.5     $ 65.8     $ (337.7 )   $ 110.6     $ 212.6  
    


 


 


 


 


Basic earnings (loss) per common share:

                                        

Continuing operations

   $ 1.13     $ 2.06     $ (9.85 )   $ 4.13     $ 5.04  

Discontinued operations

     (0.38 )     (0.10 )     (0.98 )     (0.49 )     1.71  

Cumulative effect of change in accounting principle

     —         —         (0.03 )     —         —    
    


 


 


 


 


Net earnings (loss) per common share

   $ 0.75     $ 1.96     $ (10.86 )   $ 3.64     $ 6.75  
    


 


 


 


 


Diluted earnings (loss) per common share:

                                        

Continuing operations

   $ 1.12     $ 2.01     $ (9.85 )   $ 3.97     $ 4.90  

Discontinued operations

     (0.37 )     (0.09 )     (0.98 )     (0.47 )     1.67  

Cumulative effect of change in accounting principle

     —         —         (0.03 )     —         —    
    


 


 


 


 


Net earnings (loss) per common share

   $ 0.75     $ 1.92     $ (10.86 )   $ 3.50     $ 6.57  
    


 


 


 


 


Balance Sheet Data (5):

                                        

Total assets

   $ 2,828.8     $ 2,872.0     $ 2,477.2                  

Long-term debt

   $ 1,036.4     $ 1,202.7     $ 787.0                  

Other Data:

                                        

Ratio of earnings to fixed charges (6)

     2.0x       2.0x       —         2.7x       3.1x  

 

20



(1)   In 2001 we spun off FMC Technologies, Inc. (“Technologies”). This business has been accounted for as a discontinued business. Accordingly, the consolidated statements of income for the years ended December 31, 2001, 2000 and 1999 have been reclassified to reflect Technologies as a discontinued operation.

 

(2)   Effective April 1, 2000, we and Solutia Inc. formed Astaris, LLC, (“Astaris”) a joint venture that includes the North American and Brazilian phosphorus chemicals operations of both companies. We have accounted for our investment in Astaris under the equity method. Prior to the formation of Astaris, revenue from our phosphorus chemicals business was $327.0 million for the year ended December 31, 1999 and $79.2 million for the three months ended March 31, 2000.

 

(3)   In 1999, we completed the following transactions relating to our Specialty Chemicals segment: (i) sold our Bioproducts business which had 1999 revenue of $13.3 million; (ii) sold our process additives business which had 1999 revenue of $98.5 million; and acquired the assets of Pronova Biopolymer AS. Additionally, in 1999 we acquired the assets of Tg Soda Ash, Inc. which are now included in our Industrial Chemicals Segment.

 

(4)   Discontinued operations, net of income taxes includes the following items related to our discontinued businesses: gains and losses, increased estimates of our liabilities for general liability, workers’ compensation, postretirement benefit obligations, legal defense, property maintenance and other costs, losses for the settlement of litigation and increases in environmental reserves.

 

(5)   Balance sheet data is not presented for periods prior to December 31, 2001 because these balance sheets would not be comparable due to the spin-off of Technologies that became effective on December 31, 2001.

 

(6)   In calculating this ratio, earnings consist of income (loss) from continuing operations before income taxes and cumulative effect of change in accounting principle less minority interests, less interest expense, net, less amortization expense related to debt discounts, fees and expenses, less amortization of capitalized interest, less interest included in rental expenses (assumed to be one third of rent) and plus undistributed (earnings) loss of affiliates. Fixed charges consists of interest expense, net, amortization of debt discounts, fees and expenses, interest capitalized as part of fixed assets and interest included in rental expenses. For the year ended December 31, 2001 earnings did not cover fixed charges with deficiencies of $331.4 million. The ratio of earnings to fixed charges would have been a negative 5.4x at December 31, 2001.

 

21


FORWARD-LOOKING INFORMATION

 

Statement under the Safe Harbor Provisions of the Private Securities Litigation Reform Act of 1995: FMC Corporation (“FMC,” “we,” “our company” or the “company”) and its representatives may from time to time make written or oral statements that are “forward-looking” and provide other than historical information, including statements contained in Management’s Discussion and Analysis of Financial Condition and Results of Operations within, in the company’s other filings with the Securities and Exchange Commission, or in reports to its stockholders. These statements involve known and unknown risks, uncertainties and other factors that may cause actual results to be materially different from any results, levels of activity, performance or achievements expressed or implied by any forward-looking statement. These factors include, among other things, the risk factors listed under “Risks” below.

 

In some cases, we have identified forward-looking statements by such words or phrases as “will likely result,” “is confident that,” “expect,” “expects,” “should,” “could,” “may,” “will continue to,” “believe,” “believes,” “anticipates,” “predicts,” “forecasts,” “estimates,” “projects,” “potential,” “intends” or similar expressions identifying “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, including the negative of those words and phrases. Such forward-looking statements are based on our current views and assumptions regarding future events, future business conditions and the outlook for the company based on currently available information. These forward-looking statements are subject to certain risks and uncertainties that could cause actual results to differ materially from those expressed in, or implied by, these statements. We wish to caution readers not to place undue reliance on any such forward-looking statements, which speak only as of the date made.

 

In connection with the Safe Harbor Provisions of the Private Securities Litigation Reform Act of 1995, we are hereby identifying forward-looking information that could affect our financial performance and could cause actual results for future periods to differ materially from any opinions or statements expressed with respect to future periods in any current statements. Such forward-looking statements include, among other things, statements about the following:

 

    The projected 2004 increase in revenue in our Specialty Chemicals and Industrial Chemicals segments as well as flat sales performance in the Agricultural Products segment;

 

    That the Astaris joint venture’s 2003 restructuring activities will be completed in 2004 and result in approximately $40 million to $50 million of annual cost savings;

 

    That, following its restructuring, Astaris will improve its position in food and technical phosphates;

 

    Our remaining 2003 FMC-related restructuring reserves expected to be spent in 2004 and thereafter;

 

    Our expected improvement in net income in 2004 compared with 2003 due to lower interest expense and better performance from our Astaris joint venture resulting from their restructuring efforts;

 

    The ability of our Agricultural Products segment to successfully continue executing its refocusing strategy in 2004 and realize additional cost savings from efforts to streamline its supply chain;

 

    The expected continued improvements in operating profit and middle single digit growth in sales for BioPolymer following its 2003 actions to reduce costs within the business and exit certain end markets;

 

    That our Industrials Chemicals segment will benefit from an economic recovery;

 

    The ability of Astaris to meet certain earnings levels in 2004;

 

    That our expected equity contribution (so-called “keepwell” payments) to Astaris will be approximately $40 million in 2004 and that we will defer approximately $30 million of payments expected from Astaris between October 2003 and September 2005;

 

    Our expected spending on environmental remediation in 2004 of $50 million and that expected reasonably possible loss contingencies may exceed amounts accrued by as much as $75.0 million;

 

22


    That we will meet our 2002 goal of reducing debt by $300 million by 2006 through various strategies;

 

    Our expected payments related to committed contracts over the next five years and beyond;

 

    Our expectation that no cash dividends will be paid in 2004;

 

    The outcome of outstanding litigation not having a material adverse effect on our business.

 

We undertake no obligation to update forward-looking statements.

 

RISKS

 

We wish to caution that the preceding list may not be all-inclusive and specifically decline to undertake any obligation to publicly revise any forward-looking statements that have been made to reflect events or circumstances after the date of such statements or to reflect the occurrence of anticipated or unanticipated events.

 

Among the factors that could have an impact on our ability to achieve operating results and meet our other goals are:

 

Industry Risks :

 

Pricing and volumes in our markets are sensitive to a number of industry specific and global issues and events including:

 

    Capacity utilization—Our Industrial Chemicals businesses are sensitive to industry capacity utilization. As a result, pricing tends to fluctuate when capacity utilization changes occur within our industry.

 

    Competition—All of our segments face competition, which could affect our ability to raise prices or successfully enter certain markets or retain our market position.

 

    Changes in our customer base—Our customer base has the potential to change, especially when long-term supply contracts are renegotiated. Our Industrial Chemicals and Specialty Chemicals businesses are most sensitive to this risk.

 

    Climatic conditions—Our Agricultural Products markets are affected by climatic conditions, which could adversely affect crop pricing and pest infestations. The nature of these events makes them difficult to predict.

 

    Changing regulatory environment—Changes in the regulatory environment, particularly in the United States, could adversely impact our ability to continue selling certain products in our domestic and foreign markets.

 

    Energy costs—Energy costs represent a significant portion of our manufacturing costs and dramatic increases in such costs could have an adverse affect on our results of operations.

 

    Unforeseen economic and political change—Our business could be adversely affected by unforeseen economic and political changes in the international markets where we compete including: war, terrorism, civil unrest, inflation rates, recessions, trade restrictions, foreign ownership restrictions and economic embargoes imposed by the United States or any of the foreign countries in which FMC does business; change in governmental laws and regulations and the level of enforcement of these laws and regulations; other governmental actions; and other external factors over which we have no control.

 

    Litigation and environmental risks—Current reserves relating to FMC’s ongoing litigation and environmental liabilities may prove inadequate.

 

    Production hazards—Our facilities are subject to operating hazards, which may disrupt our business.

 

23


Technology Risks:

 

    Failure to make continued improvements in our product technology and new product introductions could impede our competitive position, particularly in Agricultural Products and Specialty Chemicals.

 

    Failure to continue to make process improvements to reduce costs could impede our competitive position.

 

Financial Risks:

 

    We have certain commitments, guarantees and outstanding litigation, which could adversely affect our liquidity and financial condition including those related to Astaris, our joint venture.

 

    We are an international company and therefore face foreign exchange rate risks. We are particularly sensitive to the euro and the Brazilian real. To a lesser extent, we are sensitive to Asian currencies, particularly the Japanese yen.

 

    We have significant deferred income tax assets. The carrying value of these assets is dependent upon, among other things, our future performance and our ability to successfully implement our tax planning strategies.

 

    We have significant investments in long-lived assets and continually review the carrying value of these assets for recoverability in light of changing market conditions and alternative product sourcing opportunities.

 

    Our results incorporate the financial performance of our equity affiliates. As such, our influence, though significant, is exercised in concert with our partners; accordingly, the performance of these investments is not under our direct control.

 

    Obligations related to our pension and postretirement plans reflect certain assumptions. To the extent our plans’ actual experience differs from these assumptions, our costs and funding obligations could increase or decrease significantly.

 

    We have a number of agreements with our former subsidiary, Technologies, dealing with matters such as tax sharing and insurance. Under certain circumstances, we may incur liabilities under these agreements and become entitled to be indemnified by Technologies. Our ability to be indemnified will depend on the ability of Technologies to pay us.

 

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ITEM 7.    MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

Our Company

 

We are a diversified, global chemical company providing innovative solutions and applications to a wide variety of end markets. We operate in three business segments: Agricultural Products, Specialty Chemicals and Industrial Chemicals. Agricultural Products’ principal focus is on insecticides, which are used to enhance crop yield and quality by controlling a wide spectrum of pests, and on herbicides, which are used to reduce the need for manual or mechanical weeding by inhibiting or preventing weed growth. Specialty Chemicals consists of our BioPolymer and lithium businesses and focuses on food ingredients that are used to enhance texture, structure and physical stability, pharmaceutical additives for binding and disintegrant use and lithium specialties for pharmaceutical synthesis and energy storage. Our Industrial Chemicals segment manufactures a wide range of inorganic materials, including soda ash, peroxygens and phosphorus chemicals.

 

Agricultural Products

 

Our Agricultural Products segment manufactures and sells proprietary, branded insecticides and herbicides. We have a strong position in two widely-used classes of insecticides, pyrethroids and carbamates, and possess a niche portfolio of proprietary herbicides. These products are used for the protection of cotton, corn, rice, cereals, vegetables and other crops. In addition, in North America we sell into the professional pest control and home and garden markets. We differentiate ourselves through a highly-focused strategy in selected crops and regions, and by leveraging proprietary chemistries and pest-specific research and development (“R&D”) to develop and market new insecticides and new applications of our existing products. We have also developed strategic alliances with companies such as Ishihara Sangyo Kaisha, Ltd. (“ISK”), a Japanese crop protection company, to access new markets and develop new insecticides.

 

Specialty Chemicals

 

Our Specialty Chemicals segment is comprised of our BioPolymer and lithium businesses. BioPolymer manufactures and sells microcrystalline cellulose, carrageenan and alginates, products that add texture, structure and physical stability to a wide range of beverage, dairy, meat and bakery products and/or that act as binders and disintegrants for tablets and capsules. Our lithium business is a technology-based business in which mined lithium is processed and sold for use in a broad array of specialty products, including pharmaceuticals, specialty polymers and energy storage devices. The majority of Specialty Chemicals’ sales are to customers engaged in non-cyclical end markets, such as food and pharmaceuticals.

 

Industrial Chemicals

 

Our Industrial Chemicals segment manufactures soda ash, peroxygens and phosphorus chemicals. Through our manufacturing facility in Green River, Wyoming, we process naturally occurring soda ash, a commonly used ingredient in detergents and chemical processing and an essential ingredient in glass. We produce hydrogen peroxide, leveraging our geographically advantaged plant locations throughout North America to reach our customers. We also market specialty grades of hydrogen peroxide and specialty peroxygens to the electronics, polymers and food processing industries. Our European subsidiary, FMC Foret, S.A. (“Foret”), leverages its low production costs and strong brand name to manufacture and sell phosphorus chemicals, peroxygens, sulfur derivatives, silicates, zeolites and other products in Europe, Africa and the Middle East. We are also a 50 percent owner with Solutia Inc. (“Solutia”) of Astaris LLC (“Astaris”), a North American producer of phosphorus chemicals used in a wide array of markets, including the detergent, food, agricultural and industrial markets. We account for Astaris as an equity investment. The majority of Industrial Chemicals’ sales are to customers engaged in relatively cyclical end markets.

 

25


The Reorganization of Our Company

 

We implemented our plan to split FMC into separate chemical and machinery companies in 2001 through a two-step process. The first step included an initial public offering (“IPO”) of 17 percent of FMC Technologies, Inc. (“Technologies”), which took place in the second quarter of 2001. Technologies consists of our former Energy Systems and Food and Transportation Systems business segments. Subsequent to the IPO, Technologies made net payments of $430.7 million to FMC in exchange for the net assets distributed to Technologies on June 1, 2001, which we used to retire short-term and long-term debt. The second step, the distribution of our remaining 83 percent ownership in Technologies (the “spin-off”) occurred on December 31, 2001. Total net assets distributed on December 31, 2001 were $509.5 million.

 

We believe that the spin-off of Technologies has allowed us to focus our efforts in the chemical industry through improved customer orientation, increased innovation and overall growth in certain businesses. In an effort to align our business with our future growth plans, we took various strategic measures in 2003, 2002 and 2001, including the restructuring of businesses, reduction of staff, plant shut downs, plant mothballing and the impairment of certain underperforming assets. We believe these steps have increased our financial flexibility, particularly as operating conditions change.

 

Critical Accounting Policies

 

Our consolidated financial statements are prepared in conformity with accounting principles generally accepted in the United States. The preparation of these financial statements requires us to make estimates and judgments that affect the reported amounts of asset, liabilities, revenues and expenses. We have described our accounting policies in Note 1 to our consolidated financial statements included in this Form 10-K. We have reviewed these accounting policies, identifying those that we believe to be critical to the preparation and understanding of our consolidated financial statements. We have reviewed with the Audit Committee those accounting policies that we have deemed critical. These policies are central to our presentation of results of operations and financial condition and require management to make estimates and judgments on certain matters. We base our estimates and judgments on historical experience, current conditions and other reasonable factors.

 

Environmental

 

We provide for environmental-related obligations when they are probable and amounts can be reasonably estimated. Where the available information is sufficient to estimate the amount of liability, that estimate has been used. Where the information is only sufficient to establish a range of probable liability and no point within the range is more likely than any other, the lower end of the range has been used.

 

Estimated obligations to remediate sites that involve oversight by the EPA, or similar government agencies, are generally accrued no later than when a ROD, or equivalent, is issued, or upon completion of a RI/FS that is accepted by us and the appropriate government agency or agencies. Estimates are reviewed quarterly by our environmental remediation management, as well as by financial and legal management and, if necessary, adjusted as additional information becomes available. The estimates can change substantially as additional information becomes available regarding the nature or extent of site contamination, required remediation methods, and other actions by or against governmental agencies or private parties.

 

Our environmental liabilities for continuing and discontinued operations are principally for costs associated with the remediation and/or study of sites at which we are alleged to have disposed of hazardous substances. Such costs principally include, among other items, RI/FS, site remediation, costs of operation and maintenance of the remediation plan, fees to outside law firms and consultants for work related to the environmental effort, and future monitoring costs. Estimated site liabilities are determined based upon existing remediation laws and technologies, specific site consultants’ engineering studies or by extrapolating experience with environmental issues at comparable sites.

 

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Provisions for environmental costs are reflected in income, net of probable and estimable recoveries from named PRPs or other third parties. Such provisions incorporate inflation and are not discounted to their present values.

 

In calculating and evaluating the adequacy of our environmental reserves, we have taken into account the joint and several liability imposed by CERCLA and the analogous state laws on all PRPs and have considered the identity and financial condition of each of the other PRPs at each site to the extent possible. We have also considered the identity and financial condition of other third parties from whom recovery is anticipated, as well as the status of our claims against such parties. Although we are unable to forecast the ultimate contributions of PRPs and other third parties with absolute certainty, the degree of uncertainty with respect to each party is taken into account when determining the environmental reserve by adjusting the reserve to reflect the facts and circumstances on a site-by-site basis. Our liability includes management’s best estimate of the costs expected to be paid before the consideration of any potential recoveries from third parties. We believe that any recorded recoveries related to PRPs are realizable in all material respects. We have recorded recoveries representing probable realization of claims against insurance companies, U.S. government agencies and other third parties, of $17.0 million and $27.7 million, respectively, at December 31, 2003 and 2002. These recoveries are recorded as an offset to “Environmental liabilities, continuing and discontinued.” Cash recoveries for the years 2003, 2002 and 2001 were $10.7 million, $16.2 million and $12.5 million, respectively. In addition, at December 31, 2003 we have estimated that reasonably possible environmental loss contingencies may exceed amounts accrued by as much as $75.0 million. We recorded total environmental provisions related to both operating and discontinued sites of $24.9 million, $10.2 million and $68.8 million in 2003, 2002 and 2001, respectively.

 

Impairments and valuation of long-lived assets

 

Our long-lived assets include property, plant and equipment and long-term investments, goodwill and intangible assets. We test for impairment whenever events or circumstances indicate that the net book value of these assets may not be recoverable from the estimated undiscounted expected future cash flows expected to result from their use and eventual disposition. In cases where the estimated undiscounted expected future cash flows are less than net book value, an impairment loss is recognized equal to the amount by which the net book value exceeds the estimated fair value of assets, which is based on discounted cash flows at the lowest level determinable. The estimated cash flows reflect our assumptions about selling prices, volumes, costs and market conditions over a reasonable period of time. We recognized $323.1 million in asset impairments in 2001 related to our Industrial Chemicals segment. No such impairments were recognized in either 2002 or 2003.

 

We prepare an annual impairment test of goodwill and intangible assets based on estimated discounted cash flows. The assumptions used to estimate fair value include our best estimate of future growth rates, discount rates and market conditions over a reasonable period. We performed this test in 2003 and determined that no impairment charge was required. Total goodwill as of December 31, 2003 and 2002 was $156.3 million and $129.7 million, respectively and is related to our Specialty Chemicals segment. The change in goodwill is due to the effects of currency exchange.

 

Depreciation for financial reporting is reported on a straight-line basis over the estimated useful lives of the fixed asset. Estimated useful lives are based on historical useful-life trends as well as common industry practice. Useful lives are as follows: 20 years—land improvements, 20 to 50 years—buildings (depending on location and use), 3 to 18 years machinery and equipment (depending on type and use). Depreciation expense totaled $112.5 million, $105.2 million and $112.2 million in 2003, 2002 and 2001, respectively.

 

Pensions and other postretirement benefits

 

We provide qualified and nonqualified defined benefit and defined contribution pension plans, as well as postretirement health care and life insurance benefit plans to our employees. The costs (or benefits) and obligations related to these benefits reflect key assumptions related to general economic conditions, including

 

27


interest (discount) rates, healthcare cost trend rates, expected rates of return on plan assets and the rates of compensation increases for employees. The costs (or benefits) and obligations for these benefit programs are also affected by other assumptions, such as average retirement age, mortality, employee turnover, and plan participation. To the extent our plans’ actual experience, as influenced by changing economic and financial market conditions or by changes to our own plans’ demographics, differs from these assumptions, the costs and obligations for providing these benefits, as well as the plans’ funding requirements, could increase or decrease. When actual results differ from our assumptions, the difference is typically recognized over future periods. In addition, the unrealized gains and losses related to our pension and postretirement benefit obligations may also affect periodic benefit costs in future periods.

 

We use certain calculated values of assets under methods both to estimate the expected rate of return on assets component of pension cost and to calculate our plans’ funding requirements. The expected rate of return on plan assets is based on a market-related value of assets that recognizes investment gains and losses over a five-year period. We use an actuarial value of assets to determine our plans’ funding requirements. The actuarial value of assets must be within a certain range, high or low, of the actual market value of assets, and is adjusted accordingly.

 

We recorded $7.7 million, $4.9 million and $4.0 million of pension and other postretirement benefit cost in 2003, 2002 and 2001, respectively. At December 31, 2003 and 2002, $97.7 million and $106.6 million, respectively, was recorded for pension and other postretirement benefit obligations. The recorded amounts for pension benefit obligations include additional minimum pension liabilities of $43.2 million and $84.8 million at December 31, 2003 and 2002, respectively, which were recorded in the accumulated other comprehensive income section in stockholders’ equity.

 

We made voluntary cash contributions to our U.S. qualified pension plan of $7.0 million and $2.8 million, respectively, for 2003 and 2002. In addition, we paid nonqualified pension benefits from company assets of $2.4 million and $4.1 million, for 2003 and 2002, respectively. We paid postretirement benefits, net of participant contributions, of $6.6 million and $7.5 million for 2003 and 2002, respectively. Our estimated cash contributions for 2004 include approximately $4 million in nonqualified pension benefits, approximately $7 million in postretirement benefits, and we are considering making voluntary cash contributions to our U.S. qualified pension plan of approximately $8 million.

 

We select the discount rate used to calculate pension and other postretirement obligations based on a review of high-quality corporate bonds (with particular focus on the Moody’s Investors Service, Inc. (“Moody’s”) Aa-rated Corporate and Industrial bond indices) towards the end of each respective year. Bonds in these indices have remaining maturities of at least 20 years and the indices are constructed to have an average remaining maturity of approximately 30 years. We selected a discount rate of 6.25 percent at December 31, 2003 for pension and other postretirement benefit obligations.

 

The expected rate of return on plan assets is viewed as a long-term, average rate of return to be earned on the assets invested or to be invested to provide for the benefits included in the projected benefit obligation. In developing the expected long-term rate of return on asset assumption for our plan, we take into consideration the technical analysis performed by our outside actuaries, including historical market returns, information on long-term real return expectations by asset class, inflation assumptions, and expectations for standard deviation related to these best estimates. We also consider the historical performance of our own plan’s trust, which has earned a compound annual rate of return of 12.5 percent over the last 10 years (which is in excess of comparable market indices for the same period) as well as other factors. The current asset allocation for our plan is approximately 70 percent equities (U.S. and non-U.S.) and 30 percent fixed-income investments. Given an actively managed investment portfolio, the expected returns by asset class for our portfolio, using geometric averaging, and after being adjusted for an estimated inflation rate of approximately three percent, is between nine percent and eleven percent for both U.S. and non-U.S. equities, and between five percent and seven percent for fixed-income

 

28


investments, which generates a total expected portfolio return that is in line with our rate of return assumption. We continually monitor the appropriateness of this rate in light of current market conditions. For the sensitivity of our pension costs to incremental changes in this assumption see our discussion below.

 

The other postretirement benefit obligations and net periodic other postretirement benefit costs noted above do not reflect the effects of the Medicare, Prescription Drug, Improvement and Modernization Act of 2003 (“Medicare Act”). Specific authoritative guidance on accounting for the subsidy included in the Medicare Act is still pending and once issued may require us to change previously reported information. We have elected to defer the accounting for the effects of the Medicare Act.

 

Sensitivity analysis related to key pension and postretirement benefit assumptions .     A one-half percent increase in the assumed discount rate would have decreased pension and other postretirement benefit obligations by $47.7 million at December 31, 2003 and $47.6 million at December 31, 2002, and decreased pension and other postretirement benefit costs by $0.9 million, $1.2 million and $1.2 million for 2003, 2002 and 2001, respectively. A one-half percent decrease in the assumed discount rate would have increased pension and other postretirement benefit obligations by $52.5 million at December 31, 2003 and $50.5 million at December 31, 2002, and increased pension and other postretirement benefit net periodic benefit cost by $4.0 million, $1.0 million and $1.1 million for 2003, 2002 and 2001, respectively.

 

A one-half percent increase in the assumed expected long-term rate of return on plan assets would have decreased pension costs by $3.2 million, $3.0 million and $2.9 million for 2003, 2002 and 2001, respectively. A one-half percent decrease in the assumed long-term rate of return on plan assets would have increased pension costs by $3.2 million, $3.0 million and $2.9 million for 2003, 2002 and 2001, respectively.

 

Further details on our pension and other postretirement benefit obligations and net periodic benefit costs are found in Note 12 to our consolidated financial statements.

 

Income taxes

 

We have recorded a valuation allowance to reduce deferred tax assets to the amount that we believe is more likely than not to be realized. In assessing the need for this allowance, we have considered a number of factors including future taxable income, the jurisdictions in which such income is earned and our ongoing tax planning strategies. In the event that we determined that we would not be able to realize all or part of our net deferred tax assets in the future, an adjustment to the deferred tax assets would be charged to income in the period such determination was made. Similarly, should we conclude that we would be able to realize certain deferred tax assets in the future in excess of the net recorded amount, an adjustment to the deferred tax assets would increase income in the period such determination was made. At December 31, 2003 and 2002, the valuation allowance was $39.0 million and $22.4 million, respectively.

 

29


Results of Operations—2003, 2002 and 2001

 

Overview

 

All results discussed in this analysis address the continuing results of our chemical businesses. The results of Technologies, which was spun-off on December 31, 2001, have been reclassified to discontinued operations within our consolidated statement of income for the year ended December 31, 2001 and consolidated statement of cash flows for the year ended December 31, 2001. (See “The Reorganization of Our Company” for an overview of our spin-off of Technologies.)

 

    Year Ended December 31,

 
    2003

    2002

  2001

 
         

Per Share

(Diluted)

       

Per Share

(Diluted)

       

Per Share

(Basic) (1)

 
   


 

 


    (In Millions, Except Per Share Data)  

Consolidated Revenue

  $ 1,921.4             $ 1,852.9         $ 1,943.0          
   


         

       


       

Net income (loss)

  $ 26.5     $ 0.75     $ 65.8   $ 1.92   $ (337.7 )   $ (10.86 )
   


 


 

 

 


 


Net income included the following after-tax charges:

                                           

Restructuring and other charges (gains)

  $ (4.8 )   $ (0.13 )   $ 18.4   $ 0.54   $ 172.1     $ 5.53  

Astaris restructuring (2)

    32.5       0.91       —       —       —         —    

Asset impairments

    —         —         —       —       233.8       7.52  

Discontinued operations

    13.3       0.37       3.3     0.09     30.5       0.98  

Cumulative effect of change in accounting principle

    —         —         —       —       0.9       0.03  
   


 


 

 

 


 


Total after-tax charges included in net income (loss)

  $ 41.0     $ 1.15     $ 21.7   $ 0.63   $ 437.3     $ 14.06  

(1)   In 2001, we did not use the diluted average shares outstanding, as they would be anti-dilutive. We used basic average shares outstanding for this table.

 

(2)   Our share of charges recorded by Astaris, the phosphorous joint venture is included in “Equity in (earnings) loss of affiliates.”

 

See “Segment Results” for a detailed discussion of events affecting our results for 2003, 2002 and 2001.

 

Results of Operations—2003 compared to 2002

 

In the following discussion, “year” refers to the year ending December 31, 2003 and “prior year” refers to the year ending December 31, 2002. All comparisons are between these periods unless otherwise noted.

 

Revenue for the year ended December 31, 2003 was $1,921.4 million up 4 percent compared with $1,852.9 million in the prior year. This increase was due to a stronger Euro, growth in Specialty Chemicals sales in the pharmaceutical market and increased Agricultural Products sales in Latin America and Europe.

 

Restructuring and other charges (gains) totaled $(5.1) million ($(4.8) million after tax) in 2003 compared with $30.1 million ($18.4 million after tax) in 2002.

 

The before tax gain of $5.1 million we recorded in 2003 was the result of a gain on the sale of an office building in Foret, our Spanish subsidiary, offset by charges in all segments. The gain on the building was $11.9 million, net of related costs, including severance. Severance costs were recorded in Industrial Chemicals and in both our Agricultural Products and Specialty Chemicals segments. Total 2003 severance charges, including amounts recorded at Foret, were $5.7 million and related to approximately 80 people most of whom separated from FMC in late 2003. The remaining charges in the year included non-cash charges totaling $2.8 million primarily for the abandonment of an asset in the Specialty Chemicals segment, offset by the reversal of certain workforce related and facility shutdown reserves in Corporate (as shown in the table in Note 6 to our consolidated financial statements in this Form 10-K) resulting from our ability to meet certain obligations on more favorable terms than expected when the reserves were established. The remaining other charges of $2.2 million, were related to environmental costs at operating sites, largely in our Industrial Chemicals segment.

 

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In 2002, restructuring and other charges of $30.1 million, before tax, consisted of charges related to each of our segments. The details, by segment, are discussed below.

 

In an effort to mitigate the effects of the continued economic weakness in the markets served by our Industrial Chemicals business we undertook several cost saving initiatives that resulted in $12.4 million of restructuring charges. Included in this amount was a $5.7 million restructuring charge for the mothballing of the basic production line at our hydrogen peroxide facility in Spring Hill, West Virginia. We also mothballed our Granger facility, in Green River, Wyoming resulting in a $3.4 million restructuring charge. The majority of this charge was for facility shutdown activities and severance, all of which occurred in 2002. In addition we recorded a $3.3 million restructuring charge for costs related to reorganization efforts to reduce costs in our U.S. phosphorus chemicals business, alkali, peroxygens and at Foret. There were 150 severances related to these restructurings, all of which occurred in 2002.

 

In Agricultural Products we incurred $4.7 million of restructuring charges in 2002 of which $3.7 million related to the idling and reorganization of our sulfentrazone plant in Baltimore in connection with our new herbicides strategy (See “Segment Results—2002 compared to 2001”). A $1.0 million restructuring charge was recorded for reorganization costs to implement a new distribution strategy in Europe, which allows us to rely on certain strategic alliances to further penetrate and expand our European markets. Of the 108 severances related to these restructurings 57 occurred in 2002.

 

We recorded $1.3 million of restructuring charges in our Specialty Chemicals segment in 2002 in an effort to realign product divisions within BioPolymer, both domestically and internationally. The majority of these costs resulted from the severance of 24 people, which occurred in the first half of 2003.

 

Reorganization costs of $3.0 million and other charges of $8.7 million were also recorded in 2002. These charges are discussed in Note 6 to our consolidated financial statements included in this Form 10-K. Also, of the $30.1 million of restructuring charges recorded in 2002 $11.9 million was spent in 2002.

 

Equity in (earnings) loss of affiliates was a loss of $68.6 million in 2003 versus earnings of $4.7 million in 2002. The loss in 2003 included charges totaling $53.3 million related to the previously announced restructuring program at Astaris, LLP (“Astaris”) our 50/50 joint venture. Weaker affiliate earnings were primarily the result of the absence of a power resale contract, which had a prior year pre-tax benefit of approximately $12 million and decreases in selling prices resulting from competitive pressure. (See Note 4 to our consolidated financial statements in this Form 10-K for further details.)

 

Interest expense, net increased by 29 percent to $92.2 million in 2003 compared to $71.6 million in 2002 reflecting higher interest costs in 2003 from our refinancing in the fourth quarter of 2002. (See Note 10 to our consolidated financial statements in this Form 10-K for further details on our refinancing and related 2003 amendment.)

 

Provisions (benefit) for income taxes were a benefit of $1.8 million in 2003 compared with a provision of $17.4 million for 2002 reflecting tax rates of (4.7)% and 20.1%, respectively. The tax rate in 2003 was affected by a change in the mix of domestic income compared to income earned outside of the U.S. Income we earn outside of the U.S. is typically taxed at rates lower than income earned domestically. In addition, dividends received from our foreign operations and a change in the valuation allowance, further contributed to the change in the provision (benefit) for income taxes from 2002 to 2003. In 2002, the tax rate resulted primarily from the effect of depletion and differing foreign tax rates. (See Note 9 to our consolidated financial statements in this Form 10-K for further details.)

 

Discontinued operations .     We recorded after-tax charges of $13.3 million and $3.3 million in 2003 and 2002, respectively, for environmental remediation costs at sites of discontinued businesses for which we are

 

31


responsible for environmental compliance. (See “Discontinued Operations” Note 3 to our consolidated financial statements included in this Form 10-K for further details.)

 

Net income decreased to $26.5 million in 2003 compared with $65.8 million in 2002 reflecting increased interest expense, net, and lower earnings from our Industrial Chemicals segment somewhat offset by higher earnings in our other segments. In addition, net income for 2003 included restructuring and other charges (gains), Astaris restructuring and charges in our discontinued operations totaling $41.0 million after-tax or $1.15 per share on a diluted basis. As noted in the table under “Overview” above, these charges related primarily to restructuring programs, particularly at our Astaris affiliate, reported in “Equity in (earnings) loss of affiliates”, but also included a gain on the sale of an office building and an after-tax environmental charge to discontinued operations of $13.3 million. Prior year net income included after-tax restructuring and other charges of $18.4 million also related to primarily to restructuring in Industrial Chemicals, and an after-tax environmental charge to discontinued operations of $3.3 million.

 

We expect net income to improve in 2004 compared to 2003 mostly through improvement in Industrial Chemicals particularly due to better performance from Astaris as a result of their restructuring efforts, continued growth in Specialty Chemicals and lower interest expense.

 

Other Financial Data

 

Capital expenditures totaled $87.0 million in 2003 compared with $83.9 million in 2002.

 

The following are line items from our segment profit and loss statement used to reconcile segment operating profit to consolidated income from continuing operations before income taxes and the cumulative effect of a change in accounting principle (see Note 19 to our consolidated financial statements included in this Form 10-K).

 

Corporate expenses increased to $37.3 million from $35.6 million in 2002 primarily due to higher insurance costs.

 

Other income and expense, net is comprised primarily of realized foreign currency gains and losses, LIFO inventory adjustments and pension income or expense. Net other income was $4.3 million higher than the 2002 loss of $0.4 million. This variance is largely attributable to a LIFO adjustment and the impact of foreign currency.

 

Segment Results 2003 compared to 2002

 

Segment operating profit is presented before taxes, asset impairments, restructuring and other charges (gains), interest expense, net and other income and expense, net. Information about how each of these items relates to our businesses at the segment level and results by segment are discussed below and in Note 19 to our consolidated financial statements included in this Form 10-K.

 

Agricultural Products

 

     Year Ended
December 31,


   Increase/
(Decrease)


 
     2003

   2002

   $

   %

 
     (in Millions)  

Revenue

   $ 640.1    $ 615.1    $ 25.0    4 %

Operating Profit

     82.0      69.5      12.5    18  

 

The increase in sales was driven by growth in all regions, except North America, and was largely achieved in the fourth quarter of the year. Latin America and Europe showed the most significant growth as the year

 

32


closed. Sales in Latin America, particularly Brazil, were driven by improved market conditions, and higher sales of proprietary herbicides and insecticides used on such crops as cotton and sugar cane. Stronger European sales resulted from a number of factors, including a stronger euro, new approved uses for propriety herbicides referred to as “new labels,” and our overall efforts to focus on higher-value, proprietary products. These increases more than offset the decrease in North American insecticide sales into the crop protection market due to lower-than-average pest pressures. Our professional pest control and home and garden business also saw continued growth during 2003. Because of this regional sales mix, insecticides were essentially flat for the year, while higher sales of herbicides resulted in most of the revenue increase versus 2002. For 2003, our Agricultural Products revenues are made up of 76 percent insecticides and 24 percent herbicides.

 

The segment earnings improvement was a result of higher sales, improved product mix related to our focus on higher-value proprietary products and lower production costs, some of which was related to our outsourcing strategy in some product lines. Also contributing to the improvement was lower selling, general and administrative expenses.

 

We believe that Agricultural Products will continue to successfully execute its strategies in 2004, but expect revenue growth to be essentially flat. This expectation is dependent on normal pest pressures in North America during 2004.

 

Specialty Chemicals

 

     Year Ended
December 31,


   Increase/
(Decrease)


 
     2003

   2002

   $

   %

 
     (in Millions)  

Revenue

   $ 515.8    $ 488.2    $ 27.6    6 %

Operating Profit

     102.1      89.8      12.3    14  

 

BioPolymer, which generated 71 percent of 2003 segment revenues, had sales increases of 4 percent while sales in our lithium business, which represents 29 percent of the segment, increased by more than 10 percent compared with 2002.

 

Segment sales increases were driven by U.S. and European growth in BioPolymer’s MCC products in the pharmaceuticals market, where MCC is used as a binder and disintegrant in tablets. These increases were partially offset by lower BioPolymer sales in our food business, largely as a result of lower demand in the nutritional beverage market. Also contributing were strong lithium sales in the pharmaceutical synthesis market and in the energy storage market from military demand for rechargeable batteries. In addition, the favorable impact of foreign currency translation, primarily the Euro, further contributed to the increase in revenue.

 

Segment earnings increased due to higher sales, favorable foreign currency translation, improved productivity and sales mix.

 

In 2003, responding to changes in the food business, BioPolymer took actions to reduce costs within the business and exited certain end markets. For 2004, we expect continued improvements in operating profit and middle single digit growth in sales.

 

Industrial Chemicals

 

     Year Ended
December 31,


   Increase/
(Decrease)


 
     2003

   2002

   $

    %

 
     (in Millions)  

Revenue

   $ 770.6    $ 753.4    $ 17.2     2 %

Operating Profit

     34.0      71.6      (37.6 )   (53 )

 

33


Industrial Chemicals sales increased due almost entirely to Foret, our European Industrial Chemicals business, where favorable currency translation and higher peroxygen selling prices resulted in a 16 percent increase in sales compared with 2002. European prices for peroxygens were driven by higher capacity utilization levels coupled with strong demand. The increased sales at Foret were partially offset by decreased revenues in our largely North American-based Alkali and peroxygens (hydrogen peroxides and active oxidants) businesses, where sales in 2003 decreased 2 percent and 4 percent, respectively, compared with the prior year. The decrease in Alkali was largely a result of lower export prices for soda ash, Alkali’s primary product, due in part to recent capacity additions in China. Our international sales of soda ash are through the ANSAC, a foreign sales corporation. Despite successful implementation of some selling price increases, peroxygen sales decreased due to weaker North American hydrogen peroxide volumes to the pulp market. For 2003, our Industrial Chemicals segment revenue is made up of 46 percent Alkali, 34 percent Foret and 19 percent peroxygens.

 

Lower segment earnings in 2003 were largely the result of significantly lower affiliate earnings from Astaris and lower sales in our Alkali and domestic peroxygen businesses. Weaker affiliate earnings from Astaris were primarily the result of the absence of a power resale contract, which had a prior year pre-tax benefit of approximately $12 million, and decreases in selling prices resulting from competitive pressure.

 

In 2003, Astaris began a restructuring plan to improve its financial performance. The restructuring, which includes the exit of the commodity sodium tripolyphosphate (“STPP”) market, is expected to reduce fixed costs through facility and selective product rationalizations and result in improvement in the venture’s position in food and technical phosphates. The restructuring is expected to be completed over the next six months and will include four facility closures and the consolidation of operations into the remaining three Astaris sites. Our portion of Astaris’ 2003 restructuring charges, which totaled $53.3 million, before tax, were recorded in “Equity in (earnings) loss of affiliates”.

 

Results of Operations—2002 compared to 2001

 

Revenue for the year ended December 31, 2002 was $1,852.9 million compared to $1,943.0 million in 2001, down 5 percent. Lower revenue in 2002 compared to 2001 was principally attributable to lower revenue in our Industrial Chemicals and Agricultural Products segments. Our Industrial Chemicals segment saw generally lower selling prices and lower sales volumes due to unfavorable market conditions. Also affecting revenue were decreased Agricultural Products sales resulting from lower herbicide sales and unfavorable weather conditions in Asia.

 

Asset impairments.     There were no asset impairments in 2002. Asset impairments totaled $323.1 million ($233.8 million after tax) in 2001.

 

Based upon a comprehensive review of our long-lived assets, we recorded asset impairment charges in our Industrial Chemicals and Specialty Chemicals segments in 2001. Industrial Chemicals recorded impairment charges of $224.2 million of which $12.3 million related to the impairment of assets in our sodium cyanide operations while $211.9 million was for the impairments in our U.S.-based phosphorus chemicals business.

 

A weakening market in our sodium cyanide business led us to impair the assets of this business in the second quarter of 2001. We subsequently exited this business in 2002.

 

Our U.S.-based phosphorus chemicals business is comprised of our 50 percent interest in Astaris and the activities of our corporate phosphorus business, which manages remediation and other environmental projects associated with the former Astaris elemental phosphorus plant in Pocatello, Idaho.

 

Based upon a comprehensive review of our long-lived assets, we recorded asset impairment charges of $211.9 million related to our U.S.-based phosphorus business in the second quarter of 2001. The components of asset impairments related to this business include a $171.0 million impairment of environmental assets built to

 

34


comply with a Resource Conservation and Recovery Act (“RCRA”) Consent Decree (the “Consent Decree”) at the Pocatello, Idaho facility, a further $4.4 million of other non-environmental phosphorus related fixed assets and a $36.5 million impairment charge for our investment in Astaris. Driving these charges were a decline in market conditions, the loss of a potential site on which to develop an economically viable second PPA plant and our agreement to pay into a fund for the Shoshone-Bannock Tribes (the “Tribal Fund”) resulting from an agreement to support a proposal to amend the Consent Decree, which permitted the earlier closure of the largest remaining waste disposal pond at Pocatello.

 

In addition, we recorded an impairment charge of $98.9 million related to our Specialty Chemicals segment’s lithium operations in Argentina. We established this operation, which includes a lithium mine and processing facilities, approximately six years ago in a remote area of the Andes Mountains. The entry of a South American manufacturer into this business resulted in decreased revenues. In addition, market conditions continued to be unfavorable. As a result, our lithium assets in Argentina became impaired, as the total capital invested was not expected to be recovered.

 

Restructuring and other charges totaled $30.1 million ($18.4 million after tax) in 2002 compared to $280.4 million ($172.1 million after tax) in 2001.

 

In 2002, restructuring and other charges of $30.1 million, before tax, consisted of charges related to each of our segments. The details, by segment, are discussed below.

 

In an effort to mitigate the effects of the continued economic weakness in the markets served by our Industrial Chemicals business we undertook several cost saving initiatives that resulted in $12.4 million of restructuring charges. Included in this amount was a $5.7 million restructuring charge for the mothballing of the basic production line at our hydrogen peroxide facility in Spring Hill, West Virginia. We also mothballed our Granger facility, in Green River, Wyoming resulting in a $3.4 million restructuring charge. The majority of this charge was for facility shutdown activities and severance, all of which occurred in 2002. In addition we recorded a $3.3 million restructuring charge for costs related to reorganization efforts to reduce costs in our U.S. phosphorus chemicals business, alkali, peroxygens and at Foret. There were 150 severances related to these restructurings, all of which occurred in 2002.

 

In Agricultural Products we incurred $4.7 million of restructuring charges in 2002, of which $3.7 million related to the idling and reorganization of our sulfentrazone plant in Baltimore in connection with our new herbicides strategy (See “Segment Results—2002 compared to 2001”). A $1.0 million restructuring charge was recorded for reorganization costs to implement a new distribution strategy in Europe, which allows us to rely on certain strategic alliances to further penetrate and expand our European markets. Of the 108 severances related to these restructurings 57 occurred in 2002.

 

We recorded $1.3 million of restructuring charges in our Specialty Chemicals segment in 2002 in an effort to realign product divisions within BioPolymer, both domestically and internationally. The majority of these costs resulted in the severance of 24 people. These severances occurred in 2003.

 

Reorganization costs of $3.0 million and other charges of $8.7 million were also recorded in the period. These charges are discussed in Note 6 to our consolidated financial statements included in this Form 10-K. Also, of the $30.1 million of restructuring charges recorded in 2002, $11.9 million was spent in 2002.

 

35


In 2001 a change in market conditions and the implementation of our overall corporate strategy resulted in restructuring and other charges of $280.4 million, detailed as follows:

 

     Gross

   Recoveries

    Net (3)

     (in Millions)

U.S. Phosphorus Chemicals Business:

                     

Consent Decree obligation

   $ 68.7    $ (34.5 )(1)   $ 34.2

Financing commitments to Astaris

                    42.7

Tribal Fund

                    40.0

Other Phosphorus restructuring

                    12.0

Pocatello shutdown:

                     

Shutdown activities

     58.7      (29.6 )(2)     29.1

Remediation

     54.3      (6.9 )(2)     47.4

FMC’s share of Astaris shutdown obligations

                    36.3
                   

Total U.S. Phosphorus Chemicals Business

                    241.7

Workforce-related/facility shutdown

                    21.2

FMC’s reorganization

                    17.5
                   

Total 2001 Restructuring and other charges

                  $ 280.4
                   


(1)   Partial reversal of Consent Decree obligations.
(2)   Commitment from Astaris related to shutdown and remediation.
(3)   See Note 6 to our consolidated financial statements included in this Form 10-K.

 

Industrial Chemicals recorded restructuring and other charges of $247.9 million in 2001 of which $6.2 million was for restructuring at several sites, including $5.7 million for the mothballing of our Granger, Wyoming soda ash facility, and $241.7 million was for our U.S.-based phosphorus business. There were 130 severances from the restructuring of Industrial Chemicals, the majority of which occurred in 2001, with the remainder occurring in 2002.

 

In connection with the impairment of our U.S.-based phosphorus chemicals business in the second quarter of 2001 we recorded other charges for a $68.7 million reserve for further required Consent Decree spending at the Pocatello site related to environmental capital projects required to complete the construction of facilities to treat the sites waste streams, $42.7 million for financing obligations to the Astaris joint venture (“keepwell” payments) and a $40.0 million payment to the Tribal Fund for various tribe activities in order to permit capping of a specific waste disposal pond at Pocatello.

 

Subsequent to the recording of these charges in the second quarter of 2001, the Astaris joint venture announced its plans, in October 2001, to cease production at the Pocatello, Idaho elemental phosphorus facility in December 2001. This decision reflected the shift in Astaris’ sourcing strategy away from production of high cost elemental phosphorus to lower cost PPA, and also reflected the availability of low-cost alternative feedstock materials, projected higher future environmental compliance costs at Pocatello and our desire to avoid additional capital spending on environmental compliance assets required under the Consent Decree. In connection with the decision to shut down Pocatello we recorded restructuring charges of $76.5 million in the fourth quarter of 2001. We spent $32.3 million and $0.9 million of these reserves in 2002 and 2001, respectively, with the remaining reserves to be spent over the next 5 to 7 years as we manage the site’s decommissioning and environmental issues. These charges included reserves for decontamination, demolition, and other shut down costs of $58.7 million; environmental remediation requirements resulting from the decision to shut down the facility of $54.3 million and our 50 percent share of costs recorded by Astaris for its obligations associated with the shutdown, or $36.3 million. Offsetting these charges was a reversal in the amount of $34.5 million representing the unspent portion of the reserve recorded in the second quarter of 2001 for required Consent Decree spending at the Pocatello site to build environmental compliance assets because the decision to shut down the site eliminated the need for further spending. We also recorded as an offset to these charges a commitment from Astaris to pay us

 

36


$36.5 million over the next 5 years, reflecting the joint venture’s obligation to contribute to our costs for the shutdown and remediation of the site. We received $3.7 million from Astaris in 2002 related to this commitment.

 

Also included in the $241.7 million of restructuring and other charges related to the U.S.-based phosphorus business was a charge of $12.0 million for other restructuring activities which were not directly related to the shutdown of Pocatello. Included in this charge were restructuring activities related to severance and decommissioning of a coke facility as well as charges related to the shutdown of two furnaces at Pocatello.

 

The decision to shut down Pocatello was consistent with Astaris’ plan to shift raw material supply for most products from high cost elemental phosphorus to lower cost PPA. High energy, operating and environmental costs of producing elemental phosphorus have reinforced the relative cost advantage of PPA. The decision to shut down Pocatello in the fourth quarter of 2001 has allowed us to avoid spending of $34.5 million for the remaining capital costs associated with completing the construction of environmental compliance assets and any start-up costs for this plant, which could have been significant. Further, there also had been a concern that environmental compliance costs could escalate in future years and add further costs. In addition, estimated future costs at Astaris were expected to include a need to refurbish furnaces at Pocatello in 2004 at an estimated cost of $10.0 million.

 

In 2001 we recorded $12.5 million of severance and other costs related to our Agricultural Products segment as a result of our strategic refocusing on key geographic markets and crops and the realignment of our R&D resources to our core strength in insecticides. The majority of the spending related to these charges occurred in 2002. These charges have resulted in savings in both selling and administrative expenses and research and development costs. The annualized savings from these restructurings were approximately $20.0 million. There were 163 severances related to these charges, the majority of which occurred in 2002.

 

Of the remaining 2001 restructuring and other charges of $20.0 million, approximately $17.5 million related to corporate reorganization costs due to the spin-off of Technologies with remaining charges of $2.5 million related to restructuring in Specialty Chemicals. The majority of the spending associated with these charges occurred in 2001 and in the first half of 2002. The benefit of the restructuring and other charges from our corporate reorganization and spin-off are not subject to reasonable estimation. The benefits were directly related to improving stockholder value through creating a focused chemical company. There were approximately 45 severances related to these charges, the majority occurring in 2001.

 

Net Interest expense in 2002 was $71.6 million compared to $58.3 million in 2001. The increase in interest expense can largely be attributed to higher average debt levels and higher interest rates from our 2002 refinancing. (See “Liquidity and Capital Resources” and Note 10 to our consolidated financial statements included in this Form 10-K for further details on the refinancing and its effects on our results.)

 

Provision/benefit for income taxes .     We recorded an income tax provision of $17.4 million in 2002 compared to a benefit of $166.6 million in 2001 resulting in effective tax rates of 20 percent and 35 percent, respectively. The 2001 tax benefit is a direct result of the significant restructuring and other charges and impairments recorded in 2001. The differences between the effective tax rates for these periods and the statutory U.S. Federal income tax rate relate primarily to differing foreign tax rates, depletion, the impairment of certain assets, foreign sales corporation benefits and incremental state taxes.

 

Discontinued Operations .     We recorded a loss from discontinued operations of $5.3 million ($3.3 million after tax) in 2002 for environmental remediation costs at sites of discontinued businesses for which we are responsible for environmental compliance. (See “Environmental Obligations” below and Note 11 to our consolidated financial statements included in this Form 10-K for further details.)

 

We recorded a loss from discontinued operations of $42.5 million ($30.5 million after tax) in 2001. Included in this amount are earnings of Technologies, including interest expense of $11.2 million, which was allocated to discontinued operations in accordance with Accounting Principles Board Statement No. 30 (“APB 30”) and later

 

37


relevant accounting guidance, costs related to the spin-off and an additional income tax provision related to the reorganization of our worldwide entities in anticipation of the separation of Technologies from FMC. In addition, we recorded a charge of $18.0 million for updated estimates of environmental remediation costs related to our other discontinued businesses.

 

Net income/loss .     We recorded net income of $65.8 million in 2002 compared to a net loss of $337.7 million for 2001. This variance reflects $323.1 million of asset impairments and $280.4 million of restructuring and other charges recorded in 2001. Net income in 2002 compared to 2001, excluding asset impairments and restructuring and other charges, was lower due to lower sales in Agricultural Products and Industrial Chemicals, somewhat offset at the earnings level by lower costs through savings from our recent restructuring activities.

 

Other Financial Data

 

Capital Expenditures totaled $83.9 million in 2002 compared to $145.6 million in 2001. Lower capital expenditures are the result of the lack of requirements for capital expansions and our continued focus on essential value-creating projects. Also reducing capital expenditures was the lack of spending related to environmental assets at Pocatello. The need for continued spending on these environmental assets was eliminated in the fourth quarter of 2001 with the shutdown of Pocatello.

 

The following are line items from our segment profit and loss statement used to reconcile segment-operating profit to consolidated income from continuing operations before income taxes and the cumulative effect of a change in accounting principle (see Note 19 to our consolidated financial statements included in this Form 10-K).

 

Corporate expenses were $35.6 million in 2002 and $36.3 million in 2001. Corporate expense represents shared costs that cannot be reasonably allocated among the segments.

 

Other income and expense , net is comprised primarily of LIFO inventory adjustments and pension income or expense. Net other loss for the year was $0.4 million compared to a net other loss of $1.6 million in 2001. This variance is largely attributable to a LIFO reserve adjustment offset by additional pension and postretirement expenses.

 

Segment Results—2002 compared to 2001

 

Agricultural Products

 

     Year Ended
December 31,


   Increase/
(Decrease)


 
     2002

   2001

   $

    %

 
     (in Millions)        

Revenue

   $ 615.1    $ 653.1    $ (38.0 )   (6 )%

Operating Profit

     69.5      72.8      (3.3 )   (5 )

 

Herbicide sales decreased to $135.0 million in 2002 compared to $163.6 million in 2001 mainly due to a planned reduction in sulfentrazone sales, as we shifted our focus from soybeans to higher value crops, and poor weather conditions in North America. Insecticide sales were down slightly at $480.1 million in 2002 compared to $489.5 million in 2001 mostly due to weaker insecticide demand in Asia from drought conditions in Australia and channel inventory reductions, somewhat offset by the development of new labels and higher pest infestation levels on cotton in North America. A stronger demand and new applications in our non-agricultural markets such as turf ornamental and household pests also favorably affected sales in 2002.

 

Lower herbicide sales and the absence of a $20.0 million profit protection payment from E.I. du Pont de Nemours and Company (“DuPont”) were more than offset by lower selling, administrative and research costs. In 1998, we entered into an exclusive agreement with DuPont to provide them sulfentrazone in North America for use in soybeans. However, the sale of formulated products incorporating sulfentrazone did not reach expectations

 

38


and the contract purchases were cancelled in 2001. Therefore, DuPont no longer has the exclusive rights to the product in North America.

 

Earnings also reflected Agricultural Products’ continuing strategic refocusing on key geographic markets and crops and realignment of our R&D resources to our core strengths in insecticides. Related to these refocusing efforts were restructuring charges in both 2002 and 2001. In 2002 we recorded $4.7 million of restructuring charges for the idling and reorganization of our sulfentrazone plant in Baltimore and to implement our new distribution strategy in Europe. In the fourth quarter of 2001, we recorded a $12.5 million charge to eliminate all herbicide discovery research as well to reduce our direct sales and support staff to align resources to key geographic markets and crops. Restructuring charges are not included in the results of our business segments. See Restructuring and other charges under “Results of Operations—2002 compared to 2001” for further details.

 

Specialty Chemicals

 

     Year Ended
December 31,


   Increase/
(Decrease)


 
     2002

   2001

   $

   %

 
     (in Millions)  

Revenue

   $ 488.2    $ 472.0    $ 16.2    3 %

Operating Profit

     89.8      87.5      2.3    3  

 

BioPolymer revenue increased to $355.2 million from $341.2 million in 2001 reflecting a stronger pharmaceutical demand for microcrystalline cellulose, for its use in binders, and steady demand for carrageenan and microcrystalline cellulose in the food ingredients market. Partially offsetting increased revenue were lower alginate sales due to weaker industrial markets and an unfavorable carrageenan mix in food ingredients. In lithium, revenue performance was $133.0 million in 2002 compared to $130.8 million in 2001. A stronger organolithium performance in the pharmaceutical and specialty polymer markets and increased demand for energy storage materials for both rechargeable and non-rechargeable batteries were offset by lower exports of lithium salts to Japan, due to a weaker economy, and the absence of a sale into the pharmaceutical markets which occurred in the fourth quarter of 2001.

 

Higher earnings can be attributed to higher sales from overall BioPolymer growth, a decrease in manufacturing costs in lithium, due largely to the devaluation of the Argentine peso, and the absence of a $4.2 million ($2.8 million after tax) charge from the required change in accounting for amortization related to goodwill. Specialty Chemicals’ goodwill was the direct result of BioPolymer’s 1999 acquisition of Pronova Biopolymer AS. Lithium’s earnings were also favorably impacted by higher butyllithium sales. In addition, the large pharmaceutical sale in lithium, discussed above, delivered a high margin sale in 2001 that was not repeated in 2002.

 

During 2002, our BioPolymer business experienced profit pressures within the industrial markets it serves, principally with its alginate product line. As a result, in 2002 we initiated a restructuring to reduce headcount and streamline production costs. We believe that this action will further focus BioPolymer’s commercial efforts on core, high value markets, including pharmaceutical formulation, food ingredients and personal care.

 

Industrial Chemicals

 

     Year Ended
December 31,


   Increase/
(Decrease)


 
     2002

   2001

   $

    %

 
     (in Millions)        

Revenue

   $ 753.4    $ 822.0    $ (68.6 )   (8 )%

Operating Profit

     71.6      72.6      (1.0 )   (1 )

 

39


Alkali revenue decreased to $368.0 million in 2002 from $402.5 million in 2001 due to lower overall volumes, lower soda ash export prices and the first quarter 2002 sale of our sodium cyanide business. A portion of the decline in soda ash revenues was attributable to the substitution by some of our industrial customers of caustic soda for soda ash, which occurs when caustic prices decline substantially as they did in the first quarter of 2002. Furthermore, we experienced lower international sales volumes through ANSAC. Foret saw a decrease in revenue to $222.5 million in 2002 compared to $243.8 million in 2001, reflecting lower phosphate sales, due in part to the loss of a major European detergent customer and generally lower volumes and lower prices throughout its product lines. Somewhat offsetting decreased revenue at Foret was the favorable translation effect of a stronger euro. Peroxygens revenue decreased to $162.9 million in 2002 from $175.7 million in 2001 due to generally lower selling prices and lower persulfate volumes, reflecting a depressed printed circuit board market. Increased hydrogen peroxide volumes in non-pulp markets along with stronger sales into the pulp markets in the second half of 2002, somewhat offset lower average selling prices and lower persulfate volumes.

 

Overall earnings levels of $71.6 million in 2002 compared to $72.6 in the prior year. Relatively flat earnings on lower sales reflected lower material costs, significant cost savings from our 2002 and 2001 restructuring efforts and lower operating costs related to reduced environmental compliance spending at Pocatello.

 

Reacting to market weakness in Industrial Chemicals in 2002 we recorded restructuring charges of $12.4 million to improve our cost position through reorganization changes and mothballing significant parts of our Granger caustic facility and Spring Hill, West Virginia hydrogen peroxide facility. During 2001 we recorded significant charges to impair and subsequently restructure our U.S.-based phosphorus chemicals business. Total charges for 2001 included an impairment charge of $224.2 million and restructuring and other charges of $247.9 million. Segment earnings do not include these charges. Asset impairments and restructuring and other charges are not included in our business segment results. See “Asset Impairments” and “Restructuring and other charges” above and Notes 5 and 6 to our consolidated financial statements included in this Form 10-K.

 

The restructuring of our U.S.-based phosphorus chemicals business in late 2001 has allowed us to continue to improve our cost structure and competitive position as we move away from the production and sourcing of elemental phosphorus. Our U.S.-based phosphorus chemicals business’s cost position has improved as its PPA sourcing has increased. The shutdown of Pocatello also allowed FMC to eliminate capital spending on the environmental projects in 2002 and avoid significant start-up and certain on-going operating costs for environmental compliance issues at the site. The restructuring activities in 2002 should improve our cost and competitive position in hydrogen peroxide from the mothballing at Spring Hill.

 

Lower joint venture earnings at Astaris and lower volumes and price throughout the segment offset the cost savings from our restructuring activities. Lower earnings from Astaris were due to a 8 percent decrease in sales to $445.7 million in 2002 from $486.2 million in the prior year. A decreased benefit from the former power resale contract with Idaho Power and higher than expected startup costs at Astaris’ PPA plant were somewhat offset by lower sourcing costs. The total resale power benefit to Astaris in 2002 was approximately $12 million compared to approximately $34 million in 2001. This benefit did not continue in 2003.

 

Recently adopted accounting standards

 

In December 2003 the SEC issued Staff Accounting Bulletin No. 104 “Revenue Recognition” (“SAB No. 104”) effective December 17, 2003. SAB 104 updates portions of the interpretive guidance included in Topic 13 of the codification of SABs to make this interpretive guidance consistent with current authoritative accounting and auditing guidance and SEC rules and regulations related to revenue recognition. We believe our revenue recognition policies are in compliance with SAB 104.

 

In December of 2003 we adopted the Financial Accounting Standards Board (“FASB”) Statement of Financial Accounting Standard No. 132 (revised), “Employers’ Disclosures about Pensions and Other Postretirement Benefits” (“SFAS No. 132”) as amended. This standard retains the existing disclosures and

 

40


requires additional disclosures to provide more detail about pension plan assets, benefit obligations, cash flows, benefit costs and related information. We have included the required disclosure in Note 12 in this Form 10-K.

 

In May 2003, FASB issued Statement No. 150, “Accounting for Certain Financial Instruments with Characteristics of Both Liabilities and Equity” (“SFAS 150”) which provides guidance on how an entity classifies and measures certain financial instruments with characteristics of both liabilities and equity. This statement is effective for financial instruments entered into or modified after May 31, 2003, and otherwise is effective at the beginning of the first interim period beginning after June 15, 2003. The adoption of SFAS No. 150 effective July 1, 2003 did not have an effect on our results of operations or financial condition.

 

In April 2003, the FASB issued SFAS No. 149, “Amendment of Statement 133 on Derivative Instruments and Hedging Activities” (“SFAS No. 149”), which amends and clarifies financial accounting and reporting for derivative instruments, including certain derivative instruments embedded in other contracts, and for hedging activities under SFAS No. 133. SFAS No. 149 is effective for contracts entered into or modified after September 30, 2003, and for hedging relationships designated after September 30, 2003. The adoption of SFAS No. 149 effective July 1, 2003 did not have an effect on our results of operations or financial condition.

 

We adopted SFAS No. 143, “Accounting for Asset Retirement Obligations,” (“SFAS No. 143”) on January 1, 2003. SFAS No. 143 addresses financial accounting and reporting for obligations associated with the retirement of tangible long-lived assets and the associated asset retirement costs by recording a liability at discounted fair value. The liability is then adjusted to its present value in subsequent periods as accretion expense is recorded. The corresponding asset retirement costs are capitalized as part of the carrying amount of the related long-lived asset and depreciated over the asset’s useful life. The adoption of SFAS No. 143 had no impact on our consolidated financial statements following a review of our consolidated assets in light of SFAS No. 143. We will continue to review our assets for related retirement obligations and assess any possible future obligations that could arise through acquisitions, capital expenditures, changes in environmental law or changes in the business environment in which a particular business operates.

 

We adopted SFAS No. 146, “Accounting for Costs Associated with Exit or Disposal Activities,” (“SFAS No. 146”), as amended, on January 1, 2003. This standard addresses the accounting and reporting for costs of so-called “exit activities” (including restructuring) and for the disposal of long-lived assets. The standard changes some of the criteria for recognizing a liability for these activities. We applied the provisions of SFAS No. 146 and other relevant accounting guidance to the restructuring activities recorded in 2003. The effect of the standard largely related to the timing of liability recognition during the year.

 

In 2002, the FASB issued SFAS No. 148, “Accounting for Stock-Based Compensation—Transition and Disclosure—An amendment of FASB Statement No. 123” (“SFAS No. 148”). This statement amends SFAS No. 123 to provide alternative methods of transition for a voluntary change to the fair value based method of accounting for stock-based employee compensation and amends the disclosure requirements of SFAS No. 123 to require prominent disclosures in both annual and interim financial statements about the method of accounting for stock-based employee compensation and the effect of the method used on reported results. Effective January 1, 2003, we adopted the disclosure requirements of SFAS No. 148 but have determined that we will not make the voluntary change to the fair value based method of accounting for stock-based employee compensation.

 

In 2002, the FASB issued Interpretation No. 45, “Guarantor’s Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others” (“FIN 45”) as amended by FASB Staff Positions (“FSPs”) FIN 45-1 and FIN 45-2. FIN 45 requires that the guarantor recognize, at the inception of certain guarantees, a liability for the fair value of the obligation undertaken in issuing such guarantees. FIN 45 also requires additional disclosure about the guarantor’s obligations under certain guarantees that it has issued. The initial recognition and measurement provisions of this interpretation are applicable on a prospective basis to guarantees issued or modified after December 31, 2002. We have included the required disclosure in Notes 16 and 18 in this Form 10-K.

 

41


In 2002, the FASB issued SFAS No. 145 “Rescission of FASB Statements Nos. 4, 44 and 64, Amendment of FASB No. 14, and Technical Corrections.” The Statement rescinds or amends a number of existing authoritative pronouncements to make various technical corrections, clarify definitions, or describe their applicability under changed conditions. In 2002, with the retirement of our Meridian Gold debentures, we elected to adopt SFAS No. 145 early and recorded a $3.1 million loss ($1.9 million after-tax) in 2002 related to the early retirement of these debentures in selling, general and administrative expenses in accordance with the Statement.

 

On January 1, 2002 we adopted SFAS No. 142, “Goodwill and Other Intangible Assets.” For further discussion of the effect of this recently adopted standard see “Goodwill and intangible assets” above.

 

On January 1, 2001, we implemented SFAS No. 133, “Accounting for Derivative Instruments and Hedging Activities,” as amended by SFAS No. 137 and SFAS No. 138 (collectively, the “Statement”). The Statement requires recognition of all derivatives in the consolidated balance sheets at fair value, with changes in the fair value of derivative instruments to be recorded in current earnings or deferred in other comprehensive income, depending on the type of hedging transaction and whether a derivative is designated as an effective hedge.

 

New Accounting Standards

 

In December 2003, the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (“Medicare Act”) became law in the United States. The Medicare Act introduces a prescription drug benefit under Medicare as well as a federal subsidy to sponsors of retiree health care benefit plans that provide a benefit that is at least actuarially equivalent to the Medicare benefit. In accordance with FASB Staff Position FAS 106-1, “Accounting and Disclosure Requirements Related to the Medicare Prescription Drug, Improvement and Modernization Act of 2003,” we have elected to defer recognition of the effects of the Medicare Act in any measures of the benefit obligation or cost. Specific authoritative guidance on the accounting for federal subsidy is pending and that guidance, when issued, could require us to change previously reported information. The measurement date used to determine pension and other postretirement benefit measures for the pension plan and the postretirement benefit plan is December 31.

 

In January 2003, the FASB issued Interpretation No. 46, “Consolidation of Variable Interest Entities,” (“FIN 46R”). During July 2003, the FASB issued several FSPs that have amended the original provisions of the Interpretation. In December 2003, the FASB revised FIN 46 which clarifies the application of Accounting Research Bulletin No. 51, “Consolidated Financial Statements,” for certain entities in which equity investors do not have the characteristics of a controlling financial interest or do not have sufficient equity at risk for the entity to finance its activities without additional subordinated financial support from other parties. The Interpretation establishes standards under which a variable interest entity should be consolidated by the primary beneficiary. This standard is not expected to have a significant effect on our financial condition or results of operations.

 

Environmental Obligations

 

Our company, like other industrial manufacturers, is involved with a variety of environmental matters in the ordinary course of conducting its business and is subject to federal, state and local environmental laws. We believe strongly that we have a responsibility to protect the environment, public health and employee safety. This responsibility includes cooperating with other parties to resolve issues created by past and present handling of wastes.

 

When issues arise, including notices from the EPA or other government agencies identifying our company as a PRP, our environmental remediation management assesses and manages the issues. When necessary, we use multifunctional teams composed of environmental, legal, financial, and communications personnel to ensure that our actions are consistent with our responsibilities to the environment and public health, as well as to our employees and shareholders.

 

42


We provided environmental provisions totaling $24.9 million in 2003, of which $2.2 million related to operating sites and $22.7 million related to discontinued sites. We provided environmental provisions totaling $10.2 million in 2002. This included charges related to environmental sites of discontinued businesses and continuing operating sites. In 2001 we provided $68.8 million of environmental provisions related to operating and discontinued sites, of which $47.4 million was for additional remediation related to the shutdown of Pocatello.

 

Additional information regarding our environmental accounting policies and environmental liabilities is included in “Application of Critical Accounting Policies” and Notes 1 and 11, respectively to our consolidated financial statements included in this Form 10-K. Information regarding environmental obligations associated with our discontinued operations is included in Note 11 to our consolidated financial statements included in this Form 10-K. Estimates of 2004 environmental spending are included in “Liquidity and Capital Resources.”

 

Liquidity and Capital Resources

 

During 2003, we paid $163.6 million, including a premium of $0.3 million, plus accrued interest, to redeem all of the outstanding 6.375 percent senior notes due September 2003 and all of the 6.53 percent series-B medium-term notes due December 2003. The redemption of the notes was largely funded from “Restricted cash,” which was $136.9 million and $274.6 million at December 31, 2003 and 2002, respectively. Restricted cash shown on the consolidated balance sheets was set aside as a part of the 2002 financing transactions (discussed below) to provide substantial cash for collateral assuring the payment of certain self-insurance obligations, environmental remediation activities, future business commitments, cash to collateralize letters of credit supporting variable-rate pollution control and industrial revenue bonds, and cash to redeem long-term debt maturing before December 31, 2003.

 

Among other restrictions, our Credit Facilities (which are described in detail in Note 10 to our consolidated financial statements) contain financial covenants related to leverage (measured as the ratio of adjusted earnings to debt), interest coverage (measured as the ratio of interest expense to adjusted earnings), consolidated net worth and capital spending. We were in compliance with all covenants at December 31, 2003 and December 31, 2002.

 

In October 2003, the Astaris affiliate began implementation of a restructuring plan and in connection with this plan, we expect to make additional payments recorded as capital contributions to Astaris of approximately $40 million in 2004 and to defer until September 2005 a total of approximately $30 million of payments anticipated from Astaris.

 

In December 2003, to accommodate the financial effects on us of the Astaris restructuring plan, we were successful in achieving favorable amendments in our Credit Facilities. Among these amendments were favorable changes in the maximum leverage covenant (defined as the ratio of debt to adjusted earnings) and the maintenance of net worth covenant. Along with the favorable covenant amendments, we obtained the agreement of the lenders under our Credit Facilities to reduce the applicable margin under the term loan facility by 2.25 percent per annum. We expect net interest expense in 2004 to be approximately $10 million below net interest expense in 2003 primarily from lower rates for borrowings under the term loan facility, lower outstanding total debt, and lower average cash balances.

 

Under our Credit Facilities we had term loan facility borrowings of $247.5 million and $250.0 million at December 31, 2003 and 2002, respectively. The $250.0 million revolving credit facility had no outstanding borrowings at December 31, 2003. Letters of credit outstanding under the revolving credit facility totaled $2.6 million at December 31, 2003, which together with the lack of outstanding borrowings, resulted in $247.4 million of remaining availability. There were no outstanding letters of credit and no outstanding borrowings under the revolving credit facility at December 31, 2002.

 

Cash and cash equivalents, excluding restricted cash, at December 31, 2003 compared to December 31, 2002 were $57.0 million and $89.6 million, respectively. The majority of cash and cash equivalents at December 31, 2003, was held by our foreign subsidiaries. We had total debt of $1,050.2 million and $1,267.0 million at

 

43


December 31, 2003 and 2002, respectively. This included $1,033.4 million and $1,035.9 million of long-term debt (excluding current portions of $3.0 million and $166.8 million) at December 31, 2003 and 2002, respectively. Short-term debt, which consists primarily of foreign borrowings, decreased to $13.8 million at December 31, 2003 compared to $64.3 million at December 31, 2002. The $166.3 million decrease in total long-term debt at December 31, 2003 from December 31, 2002 was largely the result of the redemption and repayment of our 6.375 percent senior notes due September 2003 and 6.53 percent series-B medium-term notes due December 2003. In 2003, we paid $144.3 million, including a premium of $0.3 million, to redeem the entire outstanding balance of our 6.375 percent senior notes, plus accrued interest. In December 2003, we paid $20.0 million plus accrued interest to redeem at par all of the outstanding 6.53 percent series-B medium-term notes.

 

Cash provided by operating activities was $194.6 million for 2003 compared to $136.2 million for 2002 and cash required by operating activities of $52.9 million in 2001, primarily reflecting improved working capital management. Also contributing to higher cash provided by operating activities during 2003 is lower restructuring spending of $19.3 million compared to $63.8 million in 2002 and $86.5 million in 2001. Included in our operating cash activities in 2002 is $63.8 million for spending on restructuring and other activities, including $32.3 million for the shutdown of Pocatello. In 2003 the spending against restructuring reserves related to the Pocatello shutdown was $6.0 million. Spending against restructuring reserves related to the Pocatello shutdown is expected to be approximately $35 million in 2004 and is then expected to drop significantly in 2005 through its completion. Accounts payable and accrued liabilities decreased significantly in 2002 compared to 2001 reflecting lower business activity, including lower inventory, in 2002 than in 2001. Also in 2002, cash provided by operating activities improved as a result of collections of accounts receivable especially within Agricultural Products, particularly in Latin America. Because we are a global company with significant investment in the Euro-zone, the 2003 increase in the Euro versus the U.S. dollar had a significant effect on the amounts of our operating assets and liabilities as presented on the balance sheets. For better comparability, we exclude this effect in the section of the statement of cash flows entitled “change in operating assets and liabilities.”

 

Cash required by discontinued operations for the years ended December 31, 2003, 2002 and 2001 was $26.1 million, $29.6 million and $111.9 million, respectively. The majority of the spending for our discontinued operations is for environmental remediation on discontinued sites and post-employment benefits for former employees of discontinued businesses. Discontinued environmental spending was $21.7 million in 2003 compared to $16.8 million in 2002 and $23.3 million in 2001. Also contributing to the decline in 2003 was the absence of certain spending included in 2002 related to the spin-off of Technologies. In the first quarter of 2001 we made an $80.0 million payment for the settlement of litigation related to our discontinued defense systems business.

 

Cash required by investing activities was $157.8 million, $110.8 million and $169.6 million for the years ended December 31, 2003, 2002 and 2001, respectively. The increase in 2003 reflects an increase in financing commitments to Astaris and to a lesser extent higher capital expenditures in 2003 compared to 2002. Cash contributions to Astaris were $62.8 million, $29.6 million and $31.3 million in 2003, 2002 and 2001, respectively. A planned reduction in capital spending in 2002 compared to 2001 contributed to the decline in cash required by investing activities in 2002. Additionally, 2001 included approximately $43 million for spending on environmental remediation assets at Pocatello. Pocatello was shut down in the fourth quarter of 2001, which curtailed this spending.

 

Cash required by financing activities for 2003 was $53.2 million compared to cash provided by financing activities of $65.8 million for 2002 and $346.7 million in 2001. In 2003, we paid $163.6 million, including a premium of $0.3 million, to redeem the entire outstanding balance of our 6.375 percent senior notes due September 2003, plus accrued interest, and to redeem at par all of the outstanding 6.53 percent series-B medium-term notes. The redemption of these notes was funded with $144.3 million of restricted cash. Also contributing to the decrease in cash provided by financing activities as compared to 2002 was the completion of an equity offering in the second quarter of 2002 resulting in net proceeds of $101.3 million, which was not repeated in 2003.

 

44


Cash provided by financing activities for 2002 of $65.8 million decreased by $280.9 million when compared to cash provided by financing activities of $346.7 million in 2001. Our 2002 financing activities included a net increase in long-term debt of $384.1 million from net proceeds of our refinancing of $595.5 million. Activity in 2002 also reflected $181.2 million paid to redeem long-term debt, a $37.8 million decrease in our vendor financing program and $65.0 million paid to terminate our accounts receivable securitization program in October 2002. This program had an outstanding balance of $79.0 million at December 31, 2001. Our long-term debt repayments in 2002 included payment of $134.9 million for scheduled maturities, the redemption of $17.1 million aggregate principal amount of our 6.375 percent senior notes due September 2003 and several other minor maturities. In 2002, we also made payments of $32.5 million to redeem all outstanding 6.75 percent exchangeable senior subordinated debentures. Financing sources included $101.3 million, net of issuance costs, from the issuance of 3.25 million shares of common stock in the second quarter of 2002, which was used to reduce outstanding borrowings under our former $240.0 million revolving credit facility, which was terminated upon the completion of our refinancing in October 2002. Our 2001 financing activities included $430.7 million from the IPO of Technologies, net of contributions to Technologies to support their operating cash needs.

 

2002 Financing Transactions

 

During 2002, we strengthened our liquidity position and obtained adequate capital resources for planned business operations by completing a series of financing transactions. In June 2002, we issued 3.25 million shares of common stock and used the net proceeds of $101.3 million to reduce amounts borrowed under our $240.0 million senior unsecured revolving credit facility. Following this offering, Moody’s lowered its rating of our long-term debt from Baa3 to Ba1. Moody’s rating of Baa3 is the tenth level from the top of its ratings scale comprised of twenty long-term debt ratings. Moody’s also lowered its rating of our short-term debt from P-3 to NP, the fourth level from the top of its five-level short-term debt ratings scale. Subsequent to these actions we ceased offerings under our commercial paper program and repaid maturities through borrowings under our $240.0 million senior unsecured revolving credit facility.

 

In October 2002, we completed a significant refinancing in which we issued $355.0 million aggregate principal amount of 10.25 percent senior secured notes due 2009. Simultaneously, we entered into a new $500.0 million senior secured credit agreement, which provided for a $250.0 million revolving credit facility and a $250.0 million term loan facility, and obtained a $40.0 million supplemental secured standby letter of credit facility.

 

Further details on the 2002 refinancing are found in Note 10 to our consolidated financial statements.

 

Commitments and other potential liquidity needs

 

Our cash needs for 2004 include operating cash requirements, capital expenditures, scheduled maturities of long-term debt, keepwell payments supporting Astaris as described below, environmental spending, and restructuring spending. We plan to meet our liquidity needs through cash generated from operations and borrowings under our $250.0 million committed revolving credit facility.

 

In connection with the finalization of Astaris’ external financing arrangements during the third quarter of 2000, we entered into an agreement with Astaris’ lenders under which we agreed to make payments (“keepwell payments”) sufficient to make up one-half of the shortfall in Astaris’ earnings below certain levels. Solutia, which owns the other 50 percent of Astaris, provided a parallel agreement under which it makes up the other half of any shortfall. Astaris’ earnings did not meet the agreed levels for 2003, 2002 and 2001, and we do not expect that such earnings will meet the levels agreed for 2004. We made keepwell payments of $62.8 million under this arrangement in 2003 compared to keepwell payments of $29.6 million in 2002 and $31.3 million in 2001. We expect our total keepwell payments for 2004 depending on the financial performance of Astaris to be approximately $40 million.

 

45


Astaris’ credit facility and our agreement under which we make keepwell payments incorporate financial covenants contained in our principal credit facility, and Astaris’ credit facility contains customary default provisions related to our financial condition, results, and solvency. In the fourth quarter of 2003, Astaris’ lenders agreed to accept a bank letter of credit furnished on behalf of Solutia in the amount of $67 million in exchange for a release of a security interest held by the lenders in certain of Solutia’s assets and removal of Solutia’s financial covenants and solvency as grounds for default under Astaris’ credit facility.

 

At December 31, 2003, Astaris’ credit facility obligations, which FMC’s and Solutia’s keepwell payments are intended to support, included outstanding borrowings of $70.9 million and letters of credit of $9.2 million, compared to $167.9 million of outstanding borrowings and $9.1 million of letters of credit at December 31, 2002.

 

We provide guarantees to financial institutions on behalf of certain Agricultural Products customers, principally in Brazil, for their seasonal borrowing. A significant portion of the customers’ obligations to repay us for any amounts paid under the guarantees is secured by liens on their crops. Past losses under this program have been minimal. Amounts recorded as guarantees of vendor financing for December 31, 2003 and 2002 were $44.3 million and $18.2 million at December 31, 2003 and 2002, respectively. In 2002, we also provided guarantees to financial institutions on behalf of certain Agricultural Product customers in Brazil to support their importation of third-party agricultural products. These guarantees totaled $4.5 million at December 31, 2002.

 

On June 30, 1999, we acquired the assets of Tg Soda Ash, Inc. from Elf Atochem North America, Inc. (“Elf Atochem”) for approximately $51.0 million in cash and a contingent payment due at year-end 2003 based on the financial performance of the combined soda ash operations between 2001 and 2003. On December 31, 2003, we made the required contingent payment in the amount of $32.4 million, subject to a 90-day review period. We do not expect this review to result in any additional material payments.

 

Projected 2004 spending also includes approximately $50 million of environmental remediation spending, of which approximately $20 million relates to Pocatello and $30 million relates to other operating and discontinued business sites. This spending does not include expected spending of approximately $12 million and $9 million in 2004 and 2005, respectively, on capital projects relating to environmental control facilities. Also, we expect to spend in the range of approximately $23 million to $22 million annually in 2004 and in 2005 for environmental compliance costs, which are an operating cost of the company and are not covered by established reserves.

 

Other commitments that could affect our liquidity include the following:

 

We agreed to guarantee the performance by Technologies of certain obligations under several contracts, debt instruments, and reimbursement agreements associated with letters of credit. (See Note 2 and Note 17 to the consolidated financial statements in this Form 10-K.) As of December 31, 2003, these guaranteed obligations totaled $6.8 million compared to $14.5 million at December 31, 2002.

 

At December 31, 2003 and 2002, there was $41.0 million principal amount outstanding of variable-rate industrial and pollution control revenue bonds supported by $43.3 million in bank letters of credit, which are fully collateralized with cash, which is a component of “restricted cash” as shown on the consolidated balance sheets of this Form 10-K.

 

We provide parent-company guarantees to lending institutions providing credit to our foreign subsidiaries. The outstanding amounts of guaranteed debt included in “short-term debt” on our consolidated balance sheets of this Form 10-K were $13.8 million and $64.3 million, respectively, at December 31, 2003 and 2002.

 

46


Our total significant committed contracts that we believe will affect cash over the next five years and beyond are as follows:

 

     Expected Cash Payments by Year

 

Contractual Commitments


   2004

    2005

    2006

   2007

   2008 & beyond

   Total

 
     (in Millions)  

Short-term debt

   $ 13.8       —         —        —        —      $ 13.8  

Long-term debt maturities (1)

     3.0       63.3       3.4      292.5      682.5      1,044.7  

Lease obligations (2)

     27.5       26.4       19.5      15.8      90.7      179.9  

Forward energy and foreign exchange contracts

     (1.5 )     (0.2 )     —        —        —        (1.7 )

Astaris keepwells (3)

     40.0       —         —        —        —        40.0  
    


 


 

  

  

  


Total

   $ 82.8     $ 89.5     $ 22.9    $ 308.3    $ 773.2    $ 1,276.7  
    


 


 

  

  

  



(1)   Before discounts.
(2)   Before recoveries.
(3)   Astaris keepwell payments are based on our current estimate of keepwell payments likely to be paid in 2004.

 

Dividends

 

On November 29, 2001, our Board of Directors approved the spin-off of the remaining 83 percent of Technologies making it an independent publicly traded company. The spin-off qualified as a tax-free distribution to U.S. stockholders. Stockholders of record as of December 31, 2001 received approximately 1.72 shares of common stock of the new company for every 1.0 share of our stock. Fractional shares were paid in cash to stockholders in lieu of fractional shares on December 31, 2001.

 

We paid no cash dividends in 2003 or 2002 and we do not expect to pay dividends in 2004. We paid no cash dividends in 2001 other than amounts paid in lieu of fractional shares as discussed above.

 

ITEM 7A.    QUANTITATIVE   AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

 

Our earnings, cash flows, and financial position are exposed to market risks relating to fluctuations in commodity prices, interest rates and foreign currency exchange rates. Our policy is to minimize exposure to our cash flow over time caused by changes in currency, interest and exchange rates. To accomplish this we have implemented a controlled program of risk management consisting of appropriate derivative contracts entered into with major financial institutions.

 

The analysis below presents the sensitivity of the market value of our financial instruments to selected changes in market rates and prices. The range of changes chosen reflects our view of changes that are reasonably possible over a one-year period. Market-value estimates are based on the present value of projected future cash flows considering the market rates and prices chosen. We calculate the market value foreign currency risk using third-party software incorporating standard pricing models to determine the present value of the instruments based on market conditions (spot and forward foreign exchange rates) as of the valuation date. We obtain estimates of the market value energy price risk from calculations performed internally and by a third party.

 

At December 31, 2003 our net financial instrument position of interest rate swaps and currency and energy hedges was a net asset of $1.1 million compared to a net liability of $4.7 million at December 31, 2002. The change in the net financial instrument position was due to larger unrealized gains in our energy hedges.

 

Commodity Price Risk

 

Energy costs are approximately 9 percent of our cost of sales and services and are well balanced among coal, electricity and natural gas. We attempt to mitigate our exposure to increasing energy costs by hedging the

 

47


cost of natural gas. To analyze the effect of changing energy prices, we have performed a sensitivity analysis in which we assume an instantaneous 10 percent change in energy market prices from their levels at December 31, 2003 and December 31, 2002 with all other variables (including interest rates) held constant. A 10 percent increase in energy market prices would result in an increase of the net asset position of $9.0 million at December 31, 2003 and a decrease of $6.2 million in the net liability position of the relevant financial instruments into a net asset position at December 31, 2002. A 10 percent decrease in energy market prices would result in a decrease of $8.5 million in the net asset position into a net liability position at December 31, 2003. At December 31, 2002 a 10 percent decrease in energy market prices would have resulted in an increase of $4.3 million in the net liability position.

 

Foreign Currency Exchange Rate Risk

 

The primary currencies for which we have exchange rate exposure are the U.S. dollar versus the euro, the euro versus the Norwegian krone, the U.S. dollar versus the Japanese yen and the U.S. dollar versus the Brazilian real. Foreign currency debt and foreign exchange forward contracts are used in countries where we do business, thereby reducing our net asset exposure. Foreign exchange forward contracts are also used to hedge firm and highly anticipated foreign currency cash flows.

 

To analyze the effects of changing foreign currency rates, we have performed a sensitivity analysis in which we assume an instantaneous 10 percent change in the foreign currency exchange rates from their levels at December 31, 2003 and December 31, 2002, with all other variables (including interest rates) held constant. A 10 percent strengthening of hedged currencies versus our functional currencies would result in an increase of $16.2 million and $12.8 million in the net liability position at December 31, 2003 and 2002, respectively. A 10 percent weakening of hedged currencies versus our functional currencies would result in a decrease of $15.6 million and $11.6 million in the net liability position into a net asset position of the relevant financial instruments at December 31, 2003 and 2002, respectively.

 

Interest Rate Risk

 

One of the strategies that we use to manage interest rate exposure is to enter into interest rate swap agreements. In the agreements, we agree to exchange, at specified intervals, the difference between fixed and variable interest amounts calculated on an agreed-upon notional principal amount. In the first quarter of 2003, we entered into swaps with an aggregate notional value of $100.0 million. These swaps, in which we exchange net amounts based on making payments derived from a floating-rate index and receiving payments on a fixed-rate basis, are used to hedge our 10.25 percent senior secured notes due 2009.

 

Interest rate swaps that meet specific conditions under SFAS No. 133 are accounted for as fair-value hedges. The net position of these interest rate swap agreements is not material at December 31, 2003. All existing fair-value hedges are 100 percent effective. As a result, there is no effect on earnings from hedge ineffectiveness.

 

Our debt portfolio, including interest rate swap agreements, at December 31, 2003 is composed of 62 percent fixed-rate debt and 38 percent variable-rate debt compared to 72 percent fixed-rate debt and 28 percent variable-rate debt at December 31, 2002. The variable-rate component of our debt portfolio principally consists of bank borrowings, variable-rate industrial and pollution control revenue bonds and interest rate swap agreements entered into in the first quarter of 2003 with an aggregate notional principal amount of $100.0 million. Changes in interest rates affect different portions of our variable-rate debt portfolio in different ways.

 

Based on the variable-rate debt, including interest rate swap agreements, in our debt portfolio at December 31, 2003 and 2002, a one percentage point increase or decrease in interest rates in 2003 and 2002 would increase or decrease net income by $1.0 million and $0.7 million, respectively.

 

48


ITEM 8.   FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

 

The following are included herein:

 

(1)   Consolidated Statements of Income for the years ended December 31, 2003, 2002 and 2001

 

(2)   Consolidated Balance Sheets as of December 31, 2003 and 2002

 

(3)   Consolidated Statements of Cash Flows for the years ended December 31, 2003, 2002 and 2001

 

(4)   Consolidated Statements of Changes in Stockholders’ Equity for the years ended December 31, 2003, 2002 and 2001

 

(5)   Notes to Consolidated Financial Statements

 

(6)   Independent Auditors’ Report

 

49


FMC CORPORATION

 

CONSOLIDATED STATEMENTS OF INCOME

 

     Year Ended December 31,

 
     2003

    2002

    2001

 
     (in Millions, Except Per Share Data)  

Revenue

   $ 1,921.4     $ 1,852.9     $ 1,943.0  

Costs and expenses

                        

Costs of sales and services

     1,400.5       1,359.9       1,417.3  

Selling, general and administrative expenses

     236.9       224.1       243.3  

Research and development expenses

     87.4       82.0       99.8  

Asset impairment (Note 5)

     —         —         323.1  

Restructuring and other charges (gains) (Note 6)

     (5.1 )     30.1       280.4  
    


 


 


Total costs and expenses

     1,719.7       1,696.1       2,363.9  
    


 


 


Income (loss) from continuing operations before equity in (earnings) loss of affiliates, minority interests, interest income and expense, income taxes and cumulative effect of change in accounting principle

     201.7       156.8       (420.9 )

Equity in (earnings) loss of affiliates (Note 4)

     68.6       (4.7 )     (8.6 )

Minority interests

     2.9       3.4       2.3  

Interest income

     3.9       1.4       4.7  

Interest expense

     96.1       73.0       63.0  
    


 


 


Income (loss) from continuing operations before income taxes and cumulative effect of change in accounting principle

     38.0       86.5       (472.9 )

Provision (benefit) for income taxes (Note 9)

     (1.8 )     17.4       (166.6 )

Income (loss) from continuing operations before cumulative effect of change in accounting principle

     39.8       69.1       (306.3 )

Discontinued operations, net of income taxes (Notes 2, 3 and 11)

     (13.3 )     (3.3 )     (30.5 )
    


 


 


Income (loss) before cumulative effect of change in accounting principle

     26.5       65.8       (336.8 )

Cumulative effect of change in accounting principle, net of income taxes
(Note 1)

     —         —         (0.9 )
    


 


 


Net income (loss)

   $ 26.5     $ 65.8     $ (337.7 )
    


 


 


Basic earnings (loss) per common share (Notes 1 and 15)

                        

Continuing operations

   $ 1.13     $ 2.06     $ (9.85 )

Discontinued operations (Notes 2, 3 and 11)

     (0.38 )     (0.10 )     (0.98 )

Cumulative effect of change in accounting principle (Note 1)

     —         —         (0.03 )
    


 


 


Net income (loss)

   $ 0.75     $ 1.96     $ (10.86 )
    


 


 


Diluted earnings (loss) per common share (Notes 1 and 15)

                        

Continuing operations

   $ 1.12     $ 2.01     $ (9.85 )

Discontinued operations (Notes 2, 3 and 11)

     (0.37 )     (0.09 )     (0.98 )

Cumulative effect of change in accounting principle (Note 1)

     —         —         (0.03 )
    


 


 


Net income (loss)

   $ 0.75     $ 1.92     $ (10.86 )
    


 


 


 

The accompanying notes are an integral part of the consolidated financial statements.

 

50


FMC CORPORATION

 

CONSOLIDATED BALANCE SHEETS

 

     December 31,

 
     2003

     2002

 
     (in Millions, Except Share
and Par Value Data)
 
ASSETS                  

Current assets

                 

Cash and cash equivalents

   $ 57.0      $ 89.6  

Restricted cash (Note 10)

     136.9        274.6  

Trade receivables, net of allowance of $6.9 in 2003 and $6.7 in 2002

     478.2        462.2  

Inventories (Notes 1 and 7)

     192.6        178.8  

Other current assets

     112.1        112.5  

Deferred income taxes (Note 9)

     32.9        58.0  
    


  


Total current assets

     1,009.7        1,175.7  

Investments (Note 4)

     68.8        39.7  

Property, plant and equipment, net (Note 8)

     1,128.1        1,075.5  

Goodwill (Note 1)

     156.3        129.7  

Other assets

     143.7        153.5  

Deferred income taxes (Note 9)

     322.2        297.9  
    


  


Total assets

   $ 2,828.8      $ 2,872.0  
    


  


LIABILITIES AND STOCKHOLDERS’ EQUITY                  

Current liabilities

                 

Short-term debt (Note 10)

   $ 13.8      $ 64.3  

Current portion of long-term debt (Note 10)

     3.0        166.8  

Accounts payable, trade and other

     299.5        286.5  

Accrued and other liabilities

     250.8        247.1  

Accrued payroll

     53.5        52.7  

Guarantees of vendor financing (Note 18)

     44.3        18.2  

Accrued pension and other postretirement benefits, current (Note 12)

     13.7        14.8  

Income taxes

     48.9        24.2  
    


  


Total current liabilities

     727.5        874.6  

Long-term debt, less current portion (Note 10)

     1,033.4        1,035.9  

Accrued pension and other postretirement benefits, long-term (Note 12)

     132.1        182.2  

Environmental liabilities, continuing and discontinued (Note 11)

     156.0        171.0  

Reserve for discontinued operations (Note 3)

     65.6        72.8  

Other long-term liabilities

     77.6        84.7  

Minority interests in consolidated companies

     48.3        44.8  

Commitments and contingent liabilities (Note 18)

                 

Stockholders’ equity (Notes 13, 14 and 15)

                 

Preferred stock, no par value, authorized 5,000,000 shares; no shares issued in 2003 or 2002

     —          —    

Common stock, $0.10 par value, authorized 130,000,000 shares in 2003 and 2002; 43,203,561 issued shares in 2003 and 43,003,994 issued shares in 2002

     4.3        4.3  

Capital in excess of par value of common stock

     338.8        334.1  

Retained earnings

     774.6        748.1  

Accumulated other comprehensive loss

     (21.8 )      (172.9 )

Treasury stock, common, at cost; 7,942,161 shares in 2003 and 7,931,951 shares in 2002

     (507.6 )      (507.6 )
    


  


Total stockholders’ equity

     588.3        406.0  
    


  


Total liabilities and stockholders’ equity

   $ 2,828.8      $ 2,872.0  
    


  


 

The accompanying notes are an integral part of the consolidated financial statements.

 

51


FMC CORPORATION

 

CONSOLIDATED STATEMENTS OF CASH FLOWS

 

    Year Ended December 31,

 
    2003

    2002

    2001

 
    (in Millions)  

Cash provided (required) by operating activities of continuing operations:

                       

Income (loss) from continuing operations before cumulative effect of change in accounting principle

  $ 39.8     $ 69.1     $ (306.3 )

Adjustments to reconcile income from continuing operations before cumulative effect of change in accounting principle to cash

                       

Depreciation and amortization (Notes 1 and 8)

    124.6       118.8       131.6  

Asset impairment (Note 5)

    —         —         323.1  

Restructuring and other charges (gains) (Note 6)

    (5.1 )     30.1       280.4  

Equity in (earnings) loss of affiliates (Note 4)

    68.6       (4.7 )     (8.6 )

Deferred income taxes (Note 9)

    (17.3 )     7.2       (200.3 )

Minority interests

    2.9       3.4       2.3  

Other

    3.7       (2.3 )     10.9  

Changes in operating assets and liabilities:

                       

Trade receivables, net

    4.9       69.1       (48.7 )

Inventories (Note 7)

    11.6       37.4       (40.9 )

Other current assets and other assets

    (2.7 )     (23.5 )     (54.8 )

Accounts payable, accrued payroll, other current liabilities and other liabilities

    (19.0 )     (83.8 )     (11.6 )

Income taxes payable (Note 9)

    24.7       (3.6 )     (4.5 )

Accrued pension and other postretirement benefits, net (Note 12)

    (16.9 )     (8.7 )     (31.6 )

Environmental spending, continuing (Note 11)

    (5.9 )     (8.5 )     (7.4 )

Restructuring and other spending (Note 6)

    (19.3 )     (63.8 )     (86.5 )
   


 


 


Cash provided (required) by operating activities

    194.6       136.2       (52.9 )
   


 


 


Cash required by discontinued operations:

                       

Environmental spending, discontinued (Note 11)

    (21.7 )     (16.8 )     (23.3 )

Other discontinued reserves (Note 3)

    (4.4 )     (12.8 )     (88.6 )
   


 


 


Cash required by discontinued operations

    (26.1 )     (29.6 )     (111.9 )
   


 


 


Cash required by investing activities:

                       

Capital expenditures

    (87.0 )     (83.9 )     (145.6 )

Financing commitments to Astaris (Notes 4, 6 and 18)

    (62.8 )     (29.6 )     (31.3 )

Tg Soda Ash, Inc., contingent payment (Note 18)

    (32.4 )     —         —    

Proceeds from disposal of property, plant and equipment

    21.2       11.4       10.3  

(Increase) decrease in investments

    3.2       (8.7 )     (3.0 )
   


 


 


Cash required by investing activities

    (157.8 )     (110.8 )     (169.6 )
   


 


 


Cash provided (required) by financing activities:

                       

Net increase (decrease) under uncommitted credit facilities and commercial paper (Note 10)

    —         (101.8 )     26.0  

Net increase (decrease) in other short-term debt (Note 10)

    (50.5 )     29.2       (8.5 )

Net decrease (increase) in restricted cash (Note 10)

    137.7       (274.2 )     —    

Increase in long-term debt (Note 10)

    —         596.4       20.0  

Guarantees of vendor financing (Note 18)

    26.1       (37.8 )     4.2  

Contribution from Technologies, net (Note 2)

    —         —         430.7  

Repayment of long-term debt (Note 10)

    (168.2 )     (181.2 )     (128.3 )

Accounts receivable sold (Notes 1 and 17)

    —         (79.0 )     (34.0 )

Distributions to minority partners

    (3.0 )     (2.8 )     (3.2 )

Proceeds from equity offering (Note 14)

    —         101.3       —    

Issuances of common stock, net (Notes 13 and 14)

    4.7       15.7       39.8  
   


 


 


Cash provided (required) by financing activities

    (53.2 )     65.8       346.7  
   


 


 


Effect of exchange rate changes on cash and cash equivalents

    9.9       4.6       3.8  
   


 


 


Increase (decrease) in cash and cash equivalents

    (32.6 )     66.2       16.1  

Cash and cash equivalents, beginning of year

    89.6       23.4       7.3  
   


 


 


Cash and cash equivalents, end of year

  $ 57.0     $ 89.6     $ 23.4  
   


 


 


Cash paid for taxes, net of refunds was a refund of $13.1 million and taxes paid of $13.2 million and $18.0 million in 2003, 2002 and 2001, respectively. Cash paid for interest was $97.9 million, $67.1 million and $79.1 million in 2003, 2002 and 2001, respectively.

The accompanying notes are an integral part of the consolidated financial statements.

 

52


FMC CORPORATION

 

CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY

 

    

Common

Stock,

$0.10
Par

Value


  

Capital

In Excess

of Par


  

Retained

Earnings


   

Accumulated

Other

Comprehensive

Income (loss)


   

Treasury

Stock


    Comprehensive
Income (loss)


 
     (in Millions, Except Par Value)  

Balance December 31, 2000

   $ 3.9    $ 181.6    $ 1,398.9     $ (272.6 )   $ (511.4 )   $ 41.5  
                                          


Net loss

                   (337.7 )                     (337.7 )

Stock options and awards exercised (Note 13)

            35.9                                 

Net purchases of shares for benefit plan trust (Note 13)

                                   3.8          

Gain from sale of Technologies Stock (Note 2)

                   140.1                          

Equity distribution related to spin-off of Technologies (Note 2)

                   (509.5 )     115.0                  

Net deferred loss on derivative contracts (Notes 1, 14 and 16)

                           (16.6 )             (16.6 )

Foreign currency translation adjustments (Notes 14 and 16)

                           (12.5 )             (12.5 )

Minimum pension liability adjustment (Note 12)

                           (0.1 )             (0.1 )
    

  

  


 


 


 


Balance December 31, 2001

     3.9      217.5      691.8       (186.8 )     (507.6 )   $ (366.9 )
                                          


Net income

                   65.8                       65.8  

Stock options and awards exercised (Note 13)

     0.1      15.6                      (0.5 )        

Net purchases of shares for benefit plan trust (Note 13)

                   (9.5 )             0.5          

Final distribution related to 2001 spin-off of Technologies Equity offering (Note 14)

     0.3      101.0                                 

Net deferred gain on derivative contracts (Notes 1, 14 and 16)

                           13.9               13.9  

Foreign currency translation adjustments (Notes 14 and 16)

                           47.2               47.2  

Minimum pension liability adjustment (Note 12)

                           (47.2 )             (47.2 )
    

  

  


 


 


 


Balance December 31, 2002

     4.3      334.1      748.1       (172.9 )     (507.6 )   $ 79.7  
                                          


Net income

                   26.5                       26.5  

Stock options and awards exercised (Note 13)

            4.7                      (0.1 )        

Net purchases of shares for benefit plan trust (Note 13)

                                   0.1          

Net deferred gain on derivative contracts (Notes 1, 14 and 16)

                           3.0               3.0  

Foreign currency translation adjustments (Notes 14 and 16)

                           122.4               122.4  

Minimum pension liability adjustment (Note 12)

                           25.7               25.7  
    

  

  


 


 


 


Balance December 31, 2003

   $ 4.3    $ 338.8    $ 774.6     $ (21.8 )   $ (507.6 )   $ 177.6  
    

  

  


 


 


 


 

The accompanying notes are an integral part of the consolidated financial statements.

 

53


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

NOTE 1    PRINCIPAL ACCOUNTING POLICIES AND RELATED FINANCIAL INFORMATION

 

Nature of operations .     FMC Corporation (“FMC”) is a diversified chemical company serving agricultural, industrial and consumer markets globally with innovative solutions, applications and quality products. We increased our focus on the chemical industry in 2001 by spinning off our non-chemical business segments, Energy Systems and Food and Transportation Systems, into a separately owned public company, FMC Technologies, Inc. (“Technologies”) (Note 2). We operate in three business segments: Agricultural Products, Specialty Chemicals and Industrial Chemicals. Agricultural Products provides crop protection and pest control products for worldwide markets. Specialty Chemicals includes food ingredients that are used to enhance structure, texture and taste; pharmaceutical additives for binding and disintegrant use; and lithium specialties for pharmaceutical synthesis and energy storage. Industrial Chemicals encompasses a wide range of inorganic materials in which we possess market and technology leadership, including soda ash, phosphorus and peroxygens (hydrogen peroxide and active oxidants) in both North America and in Europe through our subsidiary, FMC Foret, S.A (“Foret”).

 

Consolidation .     Our consolidated financial statements include the accounts of FMC and all significant majority-owned subsidiaries and ventures. All material intercompany accounts and transactions are eliminated in consolidation.

 

Basis of presentation .    In 2001 we spun off a significant portion of our business into Technologies, a separately-owned public company (Note 2). The spin-off, which was completed on December 31, 2001 as a tax-free dividend, was accounted for in accordance with Accounting Principles Board Statement No. 30 (“APB 30”). The Consolidated Statements of Income and Consolidated Statements of Cash Flows for all periods presented reflect Technologies as a discontinued operation.

 

Interest expense .    As a result of the spin-off of Technologies we allocated interest expense, net, to discontinued operations for the year ended December 31, 2001 based on net assets in accordance with APB 30 and later relevant accounting guidance. The amount of net interest expense allocated was $6.8 million (net of an income tax benefit of $4.4 million) for 2001.

 

Use of estimates .    In preparing the financial statements in conformity with accounting principles generally accepted in the United States of America we are required to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. Actual results are likely to differ from those estimates, but we do not believe such differences will materially affect our financial position, results of operations or cash flows.

 

Investments .    Investments in companies in which our ownership interest is 50 percent or less and in which we exercise significant influence over operating and financial policies are accounted for using the equity method. In addition, majority owned investments in which our control is restricted or temporary in nature are also accounted for using this method. All other investments are carried at their fair values or at cost, as appropriate.

 

Cash equivalents and restricted cash .    We consider investments in all liquid debt instruments with original maturities of three months or less to be cash equivalents. For restricted cash, which is discussed in Note 10, the carrying value approximates fair value.

 

Accounts receivable .     Through October of 2002, we sold trade receivables without recourse through our wholly owned bankruptcy-remote subsidiary, FMC Funding Corporation (FMC Funding). The subsidiary then sold the receivables to a securitization company under an accounts receivable financing facility on an ongoing

 

54


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

basis. The accounting for our former accounts receivable securitization program was in accordance with the requirements of Statement of Financial Accounting Standards (“SFAS”) No. 140 (“SFAS No. 140”) “Accounting for Transfers and Servicing of Financial Assets and Extinguishment of Liabilities,” which we adopted in 2001. Under this standard the transfer of accounts receivable qualified as a sale as a result of our surrender of control of these financial assets, without recourse, in exchange for cash. Accordingly, we recorded a reduction of accounts receivable equal to the total amount of cash received from FMC Funding in connection with the transaction. These transactions resulted in a reduction of accounts receivable of $79.0 million at December 31, 2001. The agreement for the sale of accounts receivable provided for continuation of the program on a revolving basis through November 2002. Upon the completion of its refinancing on October 21, 2002, as discussed in Note 10, we terminated our accounts receivable securitization program.

 

Inventories .    Inventories are stated at the lower of cost or market value. Inventory costs include those costs directly attributable to products before sale, including all manufacturing overhead but excluding distribution costs. All domestic inventories, excluding materials and supplies, are determined on a last-in, first-out (“LIFO”) basis. See Note 7.

 

Property, plant and equipment .    We record property, plant and equipment, including capitalized interest, at cost. Depreciation for financial reporting purposes is provided principally on the straight-line basis over the estimated useful lives of the assets (land improvements—20 years, buildings—20 to 50 years, and machinery and equipment—3 to 18 years). Gains and losses are reflected in income upon sale or retirement of assets. Expenditures that extend the useful lives of property, plant and equipment or increase productivity are capitalized. Ordinary repairs and maintenance are expensed as incurred through operating expense.

 

Asset impairments .    We review the recovery of the net book value of long-lived assets in accordance with SFAS No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets” whenever events and circumstances indicate that the net book value of an asset may not be recoverable from the estimated undiscounted future cash flows expected to result from its use and eventual disposition. In cases where undiscounted expected future cash flows are less than the net book value, we recognize an impairment loss equal to an amount by which the net book value exceeds the fair value of the asset.

 

Restructuring and other charges .    We continually perform strategic reviews and assess the return on our businesses. This sometimes results in a plan to restructure the operations of a business. When a plan is final we record an accrual for severance and other exit costs under the provisions of the relevant accounting guidance including SFAS No. 146 “Accounting for Costs Associated with Exit or Disposal Activities,” which we adopted on January 1, 2003.

 

Capitalized interest .    We capitalized interest costs of $7.6 million in 2003, $7.1 million in 2002 and $9.4 million in 2001. These costs were associated with the construction of certain long-lived assets and have been capitalized as part of the cost of those assets. We amortize capitalized interest over the assets’ estimated useful lives.

 

Deferred costs and other assets .    Unamortized capitalized software costs totaling $25.7 million and $29.2 million at December 31, 2003 and 2002, respectively, are components of other assets, which also include bond discounts and other deferred charges. We capitalize the costs of internal use software in accordance with the American Institute of Certified Public Accountants’ Statement of Position 98-1, “Accounting for the Costs of Computer Software Developed or Obtained for Internal Use,” which generally permits the capitalization of certain costs incurred to develop or obtain internal use software. We assess the recoverability of deferred software costs on an ongoing basis and record write-downs to fair value necessary. We amortize capitalized software costs over expected useful lives ranging from three to ten years.

 

55


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

Goodwill and intangible assets .    On January 1, 2002 we adopted SFAS No. 142, “Goodwill and Other Intangible Assets” (“SFAS No. 142”). With the adoption of this standard, goodwill and other indefinite intangible assets (“intangibles”) are no longer subject to amortization. Instead, they are subject to at least an annual assessment for impairment by applying a fair value based test. Prior to 2002 we amortized goodwill and identifiable intangible assets (such as trademarks) on a straight-line basis over their estimated useful lives not to exceed 40 years. In 2002 we completed the transitional goodwill and indefinite life intangibles impairment tests and the annual test required by SFAS No. 142 and recorded no impairments of our goodwill and indefinite life intangibles based on these fair value tests. We test goodwill for impairment annually using the fair value criteria prescribed by SFAS No. 142. Should the net book value exceed the undiscounted expected future cash flows, we would recognize an impairment loss equal to the amount by which the net book value exceeds the fair value of assets.

 

We recorded no goodwill amortization in 2003 and 2002. Goodwill amortization was $2.8 million, after tax, or $0.09 per diluted share in 2001. Goodwill at December 31, 2003 and 2002 was $156.3 million and $129.7 million, respectively. Goodwill is related to an acquisition in the Specialty Chemicals segment. There are no other material indefinite life intangibles, other than goodwill in any of the years presented. The increase in goodwill in 2003 is due to currency effects.

 

Our definite life intangibles totaled $14.8 million and $12.1 million as of December 31, 2003 and 2002, respectively and are recorded in “other assets” in our consolidated balance sheet. At December 31, 2003 these definite life intangibles were allocated among our business segments as follows: $9.3 million in Agricultural Products, $3.4 million in Specialty Chemicals and $2.1 million in Industrial Chemicals. Definite life intangible assets consist primarily of patents, industry licenses and other intangibles and are being amortized over periods of 2 to 15 years. Amortization was not significant in the years presented.

 

Revenue recognition .     We recognize revenue when the earnings process is complete, which is generally upon transfer of title. This transfer typically occurs upon shipment to the customer. In all cases, we apply the following criteria in recognizing revenue: persuasive evidence of an arrangement exists, delivery has occurred, the selling price is fixed or determinable and collection is reasonably assured. Rebates due to customers are provided in the same period that the related sales are recorded based on the contract terms. We record provisions for estimated returns and allowances at the time of the sale based on historical rates of return as a percentage of sales.

 

Income taxes .     We provide current income taxes on income reported for financial statement purposes adjusted for transactions that do not enter into the computation of income taxes payable and recognize deferred tax liabilities and assets for the expected future tax consequences of temporary differences between the carrying amounts and the tax bases of assets and liabilities. We do not provide income taxes on the equity in undistributed earnings of foreign subsidiaries or affiliates when it is our intention that such earnings will remain invested in those companies. Income taxes are provided in the year in which we decide to repatriate the earnings.

 

Foreign currency translation .    We translate the assets and liabilities of most of our foreign operations at exchange rates in effect at the balance sheet date. The foreign operations’ income statements are translated at the monthly exchange rates for the period. For operations where the local currency is the functional currency we record translation gains and losses as a component of accumulated other comprehensive income or loss in stockholders’ equity until the foreign entity is sold or liquidated. We did not have significant operations in any highly inflationary countries during 2003, 2002 and 2001. In countries where the local currency is not the functional currency, inventories, property, plant and equipment, and other non-current assets are converted to U.S. dollars at historical exchange rates, and all gains or losses from conversion are included in net income.

 

56


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

The value of the U.S. dollar and other currencies in which we operate continually fluctuate. Results of operations and financial position for all the years presented have been affected by such fluctuations. We enter into certain foreign exchange contracts to mitigate the financial risk associated with this fluctuation as discussed in Note 16. These contracts typically qualify for hedge accounting under SFAS No. 133 “Accounting for Derivative Instruments and Hedging Activities” (“SFAS No. 133”). See “Derivative financial instruments” below and Note 16. Net income (loss) for 2003, 2002 and 2001 included aggregate transactional foreign currency gains and losses. These net losses totaled $7.4 million, $2.2 million and $0.1 million in 2003, 2002 and 2001, respectively. Other comprehensive income or loss for 2003, 2002 and 2001 included translation gains of $122.4 million, $47.2 million and a translation loss of $12.5 million, respectively.

 

Derivative financial instruments .    We mitigate certain financial exposures, including currency risk and energy purchase exposures, through a controlled program of risk management that includes the use of derivative financial instruments. We enter into foreign exchange contracts, including forward and purchased option contracts, to reduce the effects of fluctuating foreign currency exchange rates.

 

We adopted SFAS No. 133 (as amended by SFAS No. 138) on January 1, 2001. These Statements establish accounting and reporting standards that require every derivative instrument to be recorded on the consolidated balance sheet as either an asset or a liability measured at its fair value. SFAS No. 133 requires the transition adjustment resulting from adopting these Statements to be reported in net income or accumulated other comprehensive income, as appropriate, as the cumulative effect of a change in accounting principle. Accordingly, we recorded the fair value of all outstanding derivative instruments as assets or liabilities on the consolidated balance sheet beginning in 2001, recording a transition loss of $0.9 million after tax to earnings and a gain of $16.4 million after-tax to accumulated other comprehensive income. We recorded the loss as a cumulative effect of a change in accounting principle.

 

In accordance with the provisions of SFAS No. 133, as amended, we recognize all derivatives on the balance sheet at fair value. On the date the derivative instrument is entered into, we generally designate the derivative as a hedge of a forecasted transaction (cash flow hedge) or of the variability of cash flows to be received or paid related to a recognized asset or liability. We record in accumulated other comprehensive income or loss changes in the fair value of derivatives that are designated as and meet all the required criteria for a cash flow hedge. We then reclassify these amounts into earnings as the underlying hedged item affects earnings. We record immediately in earnings changes in the fair value of derivatives that are not designated as hedges.

 

We formally document all relationships between hedging instruments and hedged items, as well as its risk management objective and strategy for undertaking various hedge transactions. This process includes relating all derivatives that are designated cash flow hedges to specific forecasted transactions. We also formally assess, both at the inception of the hedge and on an ongoing basis, whether each derivative is highly effective in offsetting changes in fair values or cash flows of the hedged item. If we determine that a derivative is not highly effective as a hedge, or if a derivative ceases to be a highly effective hedge, we discontinue hedge accounting with respect to that derivative prospectively. The gains and losses we recorded for the ineffective portion of its cash flow hedges were not significant in 2003, 2002 and 2001.

 

In the Consolidated Statements of Cash Flows, we report the cash flows from hedging contract settlements in the same categories as the cash flows from the transactions being hedged.

 

Treasury stock .     We discontinued our stock repurchases, except as needed to administer our employee benefit plans. We record the shares of common stock repurchased under our stock repurchase plans at cost as treasury stock, resulting in a reduction of stockholders’ equity in the Consolidated Balance Sheets. When the treasury shares are reissued under our employee benefit plans, we use a first-in, first-out (“FIFO”) method for

 

57


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

determining cost. The difference between the cost of the shares and the reissuance price is added to or deducted from capital in excess of par value of common stock.

 

Earnings or loss per common share (“EPS”) .    We compute basic EPS by dividing net income by the weighted average number of shares of common stock outstanding during the year. We compute diluted EPS by dividing net income or loss by the weighted average number of shares of common stock outstanding during the year plus the weighted average number of additional common shares that would have been outstanding during the year if potentially dilutive common shares had been issued under our stock compensation plans. In periods such as 2001, when we recorded a net loss from continuing operations, we used basic shares outstanding to compute both basic and diluted EPS, as the use of diluted shares would have been anti-dilutive. We used the following weighted average numbers of shares outstanding to calculate our annual EPS:

 

     Year Ended December 31,

     2003

   2002

   2001

     (in Thousands)

Basic

   35,193    33,468    31,052

Diluted

   35,591    34,343    31,052

 

Segment information .     We determined our reportable segments based on our strategic business units, the commonalities among the products and services within each segment and the manner in which we review and evaluate operating performance.

 

We have identified Agricultural Products, Specialty Chemicals and Industrial Chemicals as our reportable segments. Segment disclosures are included in Note 19. Segment operating profit is defined as segment revenue less operating expenses. We have excluded the following items from segment operating profit: corporate staff expense, interest income and expense associated with corporate debt facilities and investments, income taxes, gains (or losses) on divestitures of businesses, restructuring and other charges (gains), asset impairments, LIFO inventory adjustments, and other income and expense items. Information about how asset impairments, restructuring and other charges relate to our businesses at the segment level is discussed in Notes 5 and 6.

 

Segment assets and liabilities are those assets and liabilities that are recorded and reported by segment operations. Segment operating capital employed represents segment assets less segment liabilities. Segment assets exclude corporate and other assets, which are principally cash equivalents, LIFO reserves, deferred income tax benefits, eliminations of intercompany receivables and property and equipment not attributable to a specific segment. Segment liabilities exclude substantially all debt, income taxes, pension and other postretirement benefit liabilities, environmental reserves, restructuring reserves, deferred gains on sale and leaseback of equipment, fair value of currency contracts, intercompany eliminations, and reserves for discontinued operations.

 

Geographic segment revenue is based on the location of our customers. Geographic segment long-lived assets include investments, net property, plant and equipment, and other non-current assets. Geographic segment data are included in Note 19.

 

Stock compensation plans .     We have adopted the disclosure-only provisions of SFAS No. 148, “Accounting for Stock-Based Compensation—Transition and Disclosure—An amendment of FASB Statement No. 123” (“SFAS No. 148”). Accordingly, as discussed in Note 13, we have not recognized in earnings compensation cost for stock options issued under our plans.

 

Environmental obligations .     We provide for environmental-related obligations when they are probable and amounts can be reasonably estimated. Where the available information is sufficient to estimate the amount of

 

58


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

liability, that estimate has been used. Where the information is only sufficient to establish a range of probable liability and no point within the range is more likely than any other, the lower end of the range has been used.

 

Estimated obligations to remediate sites that involve oversight by the EPA, or similar government agencies, are generally accrued no later than when a ROD, or equivalent, is issued, or upon completion of a RI/FS that is accepted by us and the appropriate government agency or agencies. Estimates are reviewed quarterly by our environmental remediation management, as well as by financial and legal management and, if necessary, adjusted as additional information becomes available. The estimates can change substantially as additional information becomes available regarding the nature or extent of site contamination, required remediation methods, and other actions by or against governmental agencies or private parties.

 

Our environmental liabilities for continuing and discontinued operations are principally for costs associated with the remediation and/or study of sites at which we are alleged to have disposed of hazardous substances. Such costs principally include, among other items, RI/FS, site remediation, costs of operation and maintenance of the remediation plan, fees to outside law firms and consultants for work related to the environmental effort, and future monitoring costs. Estimated site liabilities are determined based upon existing remediation laws and technologies, specific site consultants’ engineering studies or by extrapolating experience with environmental issues at comparable sites. Total reserves of $203.1 million and $223.4 million, respectively, before recoveries, were recorded at December 31, 2003 and 2002. In addition, we believe that it is reasonably possible loss contingencies may exceed amounts accrued by as much as $75 million at December 31, 2003.

 

Provisions for environmental costs are reflected in income, net of probable and estimable recoveries from named PRPs or other third parties. Such provisions incorporate inflation and are not discounted to their present values.

 

In calculating and evaluating the adequacy of our environmental reserves, we have taken into account the joint and several liability imposed by CERCLA and the analogous state laws on all PRPs and have considered the identity and financial condition of each of the other PRPs at each site to the extent possible. We have also considered the identity and financial condition of other third parties from whom recovery is anticipated, as well as the status of our claims against such parties. Although we are unable to forecast the ultimate contributions of PRPs and other third parties with absolute certainty, the degree of uncertainty with respect to each party is taken into account when determining the environmental reserve by adjusting the reserve to reflect the facts and circumstances on a site-by-site basis. Our liability includes our best estimate of the costs expected to be paid before the consideration of any potential recoveries from third parties. We believe that any recorded recoveries related to PRPs are realizable in all material respects. Recoveries are recorded in “Environmental liabilities, continuing and discontinued.”

 

Recently adopted accounting standards

 

In December 2003 the SEC issued Staff Accounting Bulletin No. 104 “Revenue Recognition” (“SAB No. 104”) effective December 17, 2003. SAB 104 updates portions of the interpretive guidance included in Topic 13 of the codification of SABs to make this interpretive guidance consistent with current authoritative accounting and auditing guidance and SEC rules and regulations related to revenue recognition. We believe our revenue recognition policies are in compliance with SAB 104.

 

In December of 2003 we adopted the Financial Accounting Standards Board (“FASB”) Statement of Financial Accounting Standard No. 132 (revised), “Employers’ Disclosures about Pensions and Other Postretirement Benefits” (“SFAS No. 132”) as amended. This standard retains the existing disclosures and

 

59


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

requires additional disclosures to provide detail about pension plan assets, benefit obligations, cash flows, benefit costs and related information. We have included the required disclosure in Note 12 in this Form 10-K.

 

In May 2003, FASB issued Statement No. 150, “Accounting for Certain Financial Instruments with Characteristics of Both Liabilities and Equity” (“SFAS 150”) which provides guidance on how an entity classifies and measures certain financial instruments with characteristics of both liabilities and equity. This statement is effective for financial instruments entered into or modified after May 31, 2003, and otherwise is effective at the beginning of the first interim period beginning after June 15, 2003. The adoption of SFAS No. 150 effective July 1, 2003 did not have an effect on our results of operations or financial condition for the year ended December 31, 2003.

 

In April 2003, the FASB issued SFAS No. 149, “Amendment of Statement 133 on Derivative Instruments and Hedging Activities” (“SFAS No. 149”), which amends and clarifies financial accounting and reporting for derivative instruments, including certain derivative instruments embedded in other contracts, and for hedging activities under SFAS No. 133. SFAS No. 149 is effective for contracts entered into or modified after September 30, 2003, and for hedging relationships designated after September 30, 2003. The adoption of SFAS No. 149 effective July 1, 2003 did not have an effect on our results of operations or financial condition.

 

We adopted SFAS No. 143, “Accounting for Asset Retirement Obligations,” (“SFAS No. 143”) on January 1, 2003. SFAS No. 143 addresses financial accounting and reporting for obligations associated with the retirement of tangible long-lived assets and the associated asset retirement costs by recording a liability at discounted fair value. The liability is then adjusted to its present value in subsequent periods as accretion expense is recorded. The corresponding asset retirement costs are capitalized as part of the carrying amount of the related long-lived asset and depreciated over the asset’s useful life. The adoption of SFAS No. 143 had no impact on our consolidated financial statements following a review of our consolidated assets in light of SFAS No. 143. We will continue to review our assets for related retirement obligations and assess any possible future obligations that could arise through acquisitions, capital expenditures, changes in environmental law or changes in the business environment in which a particular business operates.

 

We adopted SFAS No. 146, “Accounting for Costs Associated with Exit or Disposal Activities,” (“SFAS No. 146”), as amended, on January 1, 2003. This standard addresses the accounting and reporting for costs of so-called “exit activities” (including restructuring) and for the disposal of long-lived assets. The standard changes some of the criteria for recognizing a liability for these activities. We applied the provisions of SFAS No. 146 and other relevant accounting guidance to the restructuring activities recorded in 2003. The effect of the standard largely related to the timing of liability recognition during the year.

 

In 2002, the FASB issued SFAS No. 148, “Accounting for Stock-Based Compensation-Transition and Disclosure—An amendment of FASB Statement No. 123” (“SFAS No. 148”). This statement amends SFAS No. 123 to provide alternative methods of transition for a voluntary change to the fair value based method of accounting for stock-based employee compensation and amends the disclosure requirements of SFAS No. 123 to require prominent disclosures in both annual and interim financial statements about the method of accounting for stock-based employee compensation and the effect of the method used on reported results. Effective January 1, 2003, we adopted the disclosure requirements of SFAS No. 148 but have determined that we will not make the voluntary change to the fair value based method of accounting for stock-based employee compensation.

 

In 2002, the FASB issued Interpretation No. 45, “Guarantor’s Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others” (“FIN 45”) as amended by FASB Staff Positions (“FSPs”) FIN 45-1 and FIN 45-2. FIN 45 requires that the guarantor recognize, at the inception of

 

60


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

certain guarantees, a liability for the fair value of the obligation undertaken in issuing such guarantees. FIN 45 also requires additional disclosure about the guarantor’s obligations under certain guarantees that it has issued. The initial recognition and measurement provisions of this interpretation are applicable on a prospective basis to guarantees issued or modified after December 31, 2002. We have included the required disclosure in Notes 16 and 18 in this Form 10-K.

 

In 2002, the FASB issued SFAS No. 145 “Rescission of FASB Statements Nos. 4, 44 and 64, Amendment of FASB No. 14, and Technical Corrections.” The Statement rescinds or amends a number of existing authoritative pronouncements to make various technical corrections, clarify definitions, or describe their applicability under changed conditions. In 2002, with the retirement of our Meridian Gold debentures, we elected to adopt SFAS No. 145 early and recorded a $3.1 million loss ($1.9 million after-tax) in 2002 related to the early retirement of these debentures in selling, general and administrative expenses in accordance with the Statement.

 

On January 1, 2002 we adopted SFAS No. 142, “Goodwill and Other Intangible Assets.” For further discussion of the effect of this recently adopted standard see “Goodwill and intangible assets” above.

 

On January 1, 2001, we implemented SFAS No. 133, “Accounting for Derivative Instruments and Hedging Activities,” as amended by SFAS No. 137 and SFAS No. 138 (collectively, the “Statement”). The Statement requires recognition of all derivatives in the consolidated balance sheets at fair value, with changes in the fair value of derivative instruments to be recorded in current earnings or deferred in other comprehensive income, depending on the type of hedging transaction and whether a derivative is designated as an effective hedge. (See “Derivative financial instruments” above for further details.)

 

New accounting standards

 

In December 2003, the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (“Medicare Act”) became law in the United States. The Medicare Act introduces a prescription drug benefit under Medicare as well as a federal subsidy to sponsors of retiree health care benefit plans that provide a benefit that is at least actuarially equivalent to the Medicare benefit. In accordance with FASB Staff Position FAS 106-1, “Accounting and Disclosure Requirements Related to the Medicare Prescription Drug, Improvement and Modernization Act of 2003,” we have elected to defer recognition of the effects of the Medicare Act in any measures of the benefit obligation or cost. Specific authoritative guidance on the accounting for the federal subsidy is pending and that guidance, when issued, could require us to change previously reported information. The measurement date used to determine pension and other postretirement benefit measures for the pension plan and the postretirement benefit plan is December 31.

 

In January 2003, the FASB issued Interpretation No. 46, “Consolidation of Variable Interest Entities,” (“FIN 46R”). During July 2003, the FASB issued several FSPs that have amended the original provisions of the Interpretation. In December 2003, the FASB revised FIN 46 which clarifies the application of Accounting Research Bulletin No. 51, “Consolidated Financial Statements,” for certain entities in which equity investors do not have the characteristics of a controlling financial interest or do not have sufficient equity at risk for the entity to finance its activities without additional subordinated financial support from other parties. The Interpretation establishes standards under which a variable interest entity should be consolidated by the primary beneficiary. This standard is not expected to have a significant effect on our financial condition or results of operations.

 

Reclassifications .     Certain prior year amounts have been reclassified to conform to the current year’s presentation.

 

61


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

NOTE 2    FMC’S REORGANIZATION

 

In October 2000, we announced we were initiating a strategic reorganization (the “reorganization” or “separation”) that ultimately would split the company into two independent publicly held companies—a chemical company and a machinery company. The remaining chemical company, which continues to operate as FMC Corporation, includes the Agricultural Products, Specialty Chemicals and Industrial Chemicals business segments. The new machinery company, Technologies, includes FMC’s former Energy Systems and Food and Transportation Systems business segments. On June 1, 2001, in accordance with the Separation and Distribution Agreement (the “Agreement”) between the two companies, FMC distributed substantially all of the net assets comprising its energy and machinery businesses to Technologies. On June 19, 2001, Technologies completed an initial public offering (“IPO”) of 17 percent of its equity through the issuance of common stock. We continued to own the remaining 83 percent of Technologies until December 31, 2001.

 

Subsequent to the IPO, Technologies made payments of $430.7 million to FMC, net of contributions from us, in exchange for the net assets distributed to Technologies on June 1, 2001. Under the terms of the Agreement, Technologies remitted $480.1 million to us in June 2001. The cash payment consisted of $280.9 million of proceeds from Technologies’ borrowings and $207.2 million of proceeds from Technologies’ initial public offering, less an agreed-upon sum of $8.0 million retained by Technologies to cover certain costs incurred by Technologies in conjunction with the initial public offering. The payments contributed to Technologies by us were to supplement Technologies’ operating cash needs prior to the spin-off. The payments we received were used to retire short-term and long-term debt. During the second quarter of 2001, we recognized a $140.1 million gain in stockholders’ equity on the sale of Technologies’ stock.

 

On November 29, 2001, FMC’s Board of Directors approved the spin-off of our remaining 83 percent ownership in Technologies through a tax-free distribution to our stockholders (“the spin off”). Effective December 31, 2001, we distributed approximately 1.72 shares of Technologies common stock for every share of FMC common stock based on the number of FMC shares outstanding on the record date, December 12, 2001. The distribution resulted in a reduction of stockholders’ equity of $509.5 million.

 

We recorded after tax losses from discontinued operations of $19.6 million for the year ended December 31, 2001 related to the spun-off Technologies business, including after tax interest expense of $6.8 million, which was allocated to discontinued operations in accordance with APB 30 and later relevant accounting guidance (Note 1), and an additional income tax provision of $28.8 million in 2001 related to the reorganization of FMC’s worldwide entities in anticipation of the separation of Technologies from FMC.

 

The total after tax costs related to the spin-off were $31.6 million at December 31, 2001, of which $15.1 million was classified as discontinued operations.

 

NOTE 3    DISCONTINUED OPERATIONS

 

Our results of discontinued operations comprised the following:

 

     Year Ended December 31,

 
     2003

    2002

    2001

 
     (in Millions)  

Losses of discontinued operations of Energy Systems and Food and Transportation Systems (net of income taxes of $19.1 million)

   $ —       $ —       $ (19.6 )

Provision for liabilities related to previously discontinued operations (net of income tax benefits of $8.5 million, $2.1 million, $7.1 million in 2003, 2002 and 2001, respectively)

     (13.3 )     (3.3 )     (10.9 )
    


 


 


Discontinued operations, net of income taxes

   $ (13.3 )   $ (3.3 )   $ (30.5 )
    


 


 


 

62


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

During 2003, we recorded an environmental charge to discontinued operations of $22.7 million ($13.8 million after tax) and an offsetting credit of $0.9 million ($0.5 million after-tax) to discontinued operations for other post-retirement workers compensation product liability and other reserves. In 2002, we recorded a charge to discontinued operations of $5.4 million ($3.3 million after tax) related to environmental obligations. See Note 11.

 

Effective December 31, 2001 we completed the spin-off of Technologies (Note 2). We recorded a loss from discontinued operations of $42.5 million ($30.5 million after tax). Included in this before tax amount was a loss from Technologies of $19.6 million, which included interest expense of $11.2 million, which was allocated to discontinued operations in accordance with APB 30 and later relevant accounting guidance, costs related to the spin-off and additional income tax provision related to the reorganization of FMC’s worldwide entities in anticipation of the separation of Technologies from FMC. In addition, we recorded a before tax charge of $18.0 million for updated estimates of environmental remediation costs related to our other discontinued businesses.

 

Reserve for Discontinued Operations .    The reserve for discontinued operations totaled $65.6 million and $72.8 million at December 31, 2003 and 2002, respectively. The liability at December 31, 2003 was comprised of $17.7 million for worker’s compensation, product liability and other reserves; $45.9 million for retiree medical and life insurance benefits provided to employees of discontinued businesses and $2.0 million of other discontinued operations reserves.

 

We use actuarial methods, to the extent practicable, to monitor the adequacy of product liability, workers’ compensation and postretirement benefit reserves on an ongoing basis. While the amounts required to settle our liabilities for discontinued operations could ultimately differ materially from the estimates used as a basis for recording these liabilities, we believe that changes in estimates or required expenditures for any individual cost component will not have a material adverse effect on our liquidity or financial condition in any single year and that, in any event, such costs will be satisfied over many years.

 

Spending in 2003, 2002 and 2001 was $2.1 million, $1.5 million and $7.9 million, respectively, for general and product liability and other claims; $2.7 million, $2.1 million and $3.3 million, respectively, for retiree benefits; and $0.8 million, $9.2 million and $4.3 million, respectively, related to other discontinued operations services including, in 2002 and 2001, net settlements of obligations related to our former Defense Systems business.

 

NOTE 4    INVESTMENT IN JOINT VENTURES

 

Effective April 1, 2000, FMC and Solutia formed a joint venture that includes the North American and Brazilian phosphorus chemical operations of both companies. The joint venture, Astaris, is a limited liability company owned equally by FMC and Solutia. Solutia’s equity interest in the Fosbrasil joint venture, which is engaged in the production of PPA, was also transferred and became part of Astaris. Astaris also assumed all FMC/NuWest agreements relating to a PPA facility near Soda Springs, Idaho, and purchased all of the PPA output from that facility as part of those agreements. The phosphate operations of Foret were retained by us and were not transferred to the joint venture. Following its formation, Astaris divested certain operations in Lawrence, Kansas, and plant assets located in Augusta, Georgia.

 

On October 9, 2003, the Board of Managers of Astaris announced the approval of a restructuring plan to improve Astaris’ financial performance. The restructuring, which includes the exit of the commodity STPP market, is expected to reduce fixed costs through facility and selective product rationalizations and result in improvement in the venture’s position in food and technical phosphates. The restructuring is expected to be completed over the next six months and will include four facility closures and the consolidation of operations

 

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FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

into the remaining three Astaris sites. Among the facility closures will be several former FMC facilities including the Bedford Park, Illinois, distribution facility and the Green River, Wyoming STPP plant. The remaining other FMC Green River plants, primarily serving the Alkali business, will continue operating. As a result of the Green River STPP closure, the Conda, Idaho PPA plant, which has been solely dedicated to supplying Green River’s raw material requirements, will also be shut down.

 

Our portion of Astaris’ 2003 restructuring charges, which totaled $53.3 million, before tax, were recorded in “Equity in (earnings) loss of affiliates.”

 

Effective April 1, 2000, we accounted for our investment in Astaris under the equity method. At December 31, 2003 our investment in Astaris was $15.4 million compared to a negative $10.2 million at December 31, 2002. The investment account at December 31, 2003 includes $40 million of expected keepwells, representing our current estimate of amounts to be paid in 2004. The restructuring plan mentioned above, the current level of Astaris debt and the 2003 changes to the Astaris credit facility (described in Note 18) have increased the likelihood that these payments will be made in 2004. These amounts are recorded in accrued and other liabilities as of December 31, 2003. At December 31, 2002 accrued and other liabilities included $7.3 million related to fourth quarter of 2002 keepwells.

 

The formation of the Astaris joint venture and several key changes in the operating processes of the joint venture, including a shift to the PPA process from the more costly elemental phosphorus process, have from time to time resulted in the recording of assets and liabilities exclusive of our initial equity investment in Astaris. Among these liabilities are our commitments to make payments in support of earnings shortfalls under the joint venture’s debt agreement (see Note 18). Assets related to Astaris include a receivable for $24.8 million at December 31, 2003 for their contribution to the shutdown costs related to the closure of the joint venture’s elemental phosphorus plant in Pocatello, Idaho, a receivable of $16.7 million due to Astaris’ agreement to fund an equal portion of FMC’s and Solutia’s future other post retirement benefit obligations to former employees of the companies’ phosphorus chemicals businesses and a receivable of $2.1 million for certain restructuring costs incurred by Astaris expected to be repaid in 2005.

 

We are party to a number of smaller joint venture investments throughout the world, which individually and in the aggregate are not significant to our financial results. Our equity in (earnings) loss of affiliates, which included our share of Astaris’ earnings and losses, were a loss of $68.6 million for the year ended December 31, 2003 and income of $4.7 million and $8.6 million for the years ended December 31, 2002 and 2001, respectively.

 

NOTE 5    ASSET IMPAIRMENTS

 

There were no material impairments in 2003 and 2002. In 2001, asset impairments totaled $323.1 million ($233.8 million after tax).

 

The 2001 impairment was recorded in our Industrial Chemicals and Specialty Chemicals segments. Industrial Chemicals recorded impairment charges of $224.2 million of which $12.3 million related to the impairment of assets in our sodium cyanide operations, while $211.9 million was for an impairment of our U.S.-based phosphorus chemicals business.

 

A weakening market in the sodium cyanide business led to an impairment of the assets of this business in the second quarter of 2001 and ultimately an exit of the business in 2002.

 

64


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

Our U.S.-based phosphorus chemicals business is comprised of our 50 percent interest in Astaris for the manufacture and sale of phosphorus chemicals, and the activities of our corporate phosphorus chemicals business, which manages remediation and other environmental projects associated with the former Astaris elemental phosphorus plant in Pocatello, Idaho.

 

Based upon a comprehensive review of our long-lived assets, we recorded asset impairment charges of $211.9 million related to our U.S.-based phosphorus chemicals business in the second quarter of 2001. The components of asset impairments related to this business include a $171.0 million impairment of environmental assets built to comply with a RCRA Consent Decree (the “Consent Decree”) at the Pocatello, Idaho facility, a further $4.4 million of other non-environmental phosphorus chemical related fixed assets and a $36.5 million impairment charge for its investment in Astaris. Driving these charges were a decline in market conditions, the loss of a potential site on which to develop an economically viable second PPA plant and the company’s agreement to pay into a fund for the Shoshone Bannock Tribes (the “Tribal Fund”) resulting from an agreement to support a proposal to amend the Consent Decree, which permitted the earlier closure of the largest remaining waste disposal pond at Pocatello.

 

In addition, we recorded an impairment charge of $98.9 million related to our Specialty Chemicals segment’s lithium operations in Argentina. We established this operation, which includes a lithium mine and processing facilities, in 1994 in a remote area of the Andes Mountains. The entry of a South American manufacturer into this business resulted in decreased revenues. In addition, market conditions continued to be unfavorable. As a result, our lithium assets in Argentina became impaired, as the total capital invested was not expected to be recovered.

 

NOTE 6    RESTRUCTURING AND OTHER CHARGES (GAINS)

 

Restructuring and other charges (gains) totaled a gain of $5.1 million ($4.8 million after tax), a charge of $30.1 million ($18.4 million after tax), and a charge of $280.4 million ($172.1 million after tax) for the years ended December 31, 2003, 2002 and 2001, respectively.

 

The before tax gain of $5.1 million we recorded in 2003 was the result of a gain on the sale of an office building in Foret, our Spanish subsidiary, offset by charges in all segments. The gain on the building was $11.9 million, net of related costs, including severance. Severance costs were recorded in Industrial Chemicals and in both our Agricultural Products and Specialty Chemicals segments. Total 2003 severance charges, including amounts recorded at Foret, were $5.7 million and related to approximately 80 people most of whom separated from FMC in late 2003. The remaining charges in the year included non-cash charges totaling $2.8 million primarily for the abandonment of an asset in the Specialty Chemicals segment, offset by the reversal of certain workforce related and facility shutdown reserves in Corporate (as shown in the table below) resulting from our ability to meet certain obligations on more favorable terms than expected when the reserves were established. The remaining other charges of $2.2 million, were related to environmental costs at operating sites, largely in our Industrial Chemicals segment.

 

Of the $5.1 million gain recorded in restructuring and other charges (gains) in 2003, most of the spending, or income in the case of the building sale, was received or paid in 2003. Approximately $1.4 million of the severance costs are expected to be paid in the first quarter of 2004.

 

In 2002, restructuring and other charges of $30.1 million, before tax, consisted of charges related to each of our segments. The details, by segment, are discussed below.

 

65


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

In an effort to mitigate the effects of the continued economic weakness in the markets served by our Industrial Chemicals business we undertook several cost saving initiatives that resulted in $12.4 million of restructuring charges. Included in this amount was a $5.7 million restructuring charge for the mothballing of the basic production line at our hydrogen peroxide facility in Spring Hill, West Virginia. We also mothballed our Granger facility, in Green River, Wyoming resulting in a $3.4 million restructuring charge. The majority of this charge was for facility shutdown activities and severance, all of which occurred in 2002. In addition we recorded a $3.3 million restructuring charge for costs related to reorganization efforts to reduce costs in our U.S. phosphorus chemicals business, alkali, peroxygens and at Foret. There were 150 severances related to these restructurings, all of which occurred in 2002. In addition, we recorded $2.6 million of other charges to increase reserves for environmental obligations at several Industrial Chemicals operating sites.

 

We incurred $4.7 million of restructuring charges related to our Agricultural Products business segment in 2002 of which $3.7 million related to the idling and reorganization of our sulfentrazone plant in Baltimore in connection with our new herbicides strategy. A $1.0 million restructuring charge was recorded for reorganization costs to implement a new distribution strategy in Europe, which will allow us to rely on certain strategic alliances to further penetrate and expand our European markets. Of the 108 severances related to these restructurings 57 occurred in 2002.

 

We recorded $1.3 million of restructuring charges in the Specialty Chemicals segment in 2002 in an effort to realign product divisions within BioPolymer, both domestically and internationally. The majority of these costs resulted in 24 severances, which occurred in the first half of 2003. In addition we recorded $0.6 million of other charges to increase reserves for environmental obligations at several Specialty Chemicals operating sites.

 

Restructuring and other charges in 2002 also included a $3.1 million charge for an early extinguishment of debt. The majority of this cost related to the redemption of 6.75 percent exchangeable senior subordinated debentures related to Meridian Gold completed on June 3, 2002. An additional $3.7 million of charges were recorded for reorganization costs related to the spin-off and distribution of Technologies stock and transition costs related to a change in benefits administrator associated with the spin-off. In addition, we recorded $1.7 million of other charges to increase reserves for environmental obligations related to a multi-segment research and development facility.

 

Of the $30.1 million of restructuring charges recorded in 2002 $11.9 million was spent in 2002, $14.8 million in 2003 and the remaining $3.4 million is expected to be spent in 2004.

 

66


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

The following table shows a rollforward of restructuring and other reserves and the related spending and other changes:

 

     U.S. Phosphorus Chemicals Business (1)

   

FMC’s

Reorganization


   

Workforce
Related

and

Facility

Shutdown

(2)


   

Total


 
     Pocatello Shutdown

   

Tribal

Fund


   

Financing
Commitments

to Astaris


       
(in Millions)    Shutdown

    Remediation

           

Balance at 12/31/2001

   $ 28.9     $ 46.7     $ 10.0     $ 28.0     $ 8.6     $ 13.7     $ 135.9  

Increase in reserves (3)

     —         —         —         —         3.7       18.4       22.1  

Astaris keepwells

     —         —         —         (28.0 )     —         —         (28.0 )

Cash payments (4)

     (24.2 )     (8.1 )     (2.0 )     —         (10.0 )     (19.5 )     (63.8 )

Non-cash

     1.7       —         —         —         (0.7 )     (1.4 )     (0.4 )
    


 


 


 


 


 


 


Balance at 12/31/2002 (6)

   $ 6.4     $ 38.6     $ 8.0     $ —       $ 1.6     $ 11.2     $ 65.8  

Increase in reserves (3)

     —         —         —         —         —         5.7       5.7  

Cash payments (4)

     (4.1 )     (1.9 )     (2.0 )     —         (0.8 )     (10.5 )     (19.3 )

Non-cash (5)

     4.0       (5.0 )     —         —         (0.2 )     (1.9 )     (3.1 )
    


 


 


 


 


 


 


Balance at 12/31/2003
(6) (7)

   $ 6.3     $ 31.7     $ 6.0     $ —       $ 0.6     $ 4.5     $ 49.1  
    


 


 


 


 


 


 



(1)   All phosphorus restructuring and other charges were recorded in 2001.
(2)   Of the spending in 2002 from reserves for Workforce Related and Facility Shutdown activities, $9.2 million and $10.3 million were related to 2002 and 2001 reserves, respectively. Of the 2003 spending from these reserves $4.2 million and $6.3 million were related to 2003 and 2002 reserves, respectively. At December 31, 2003, reserves recorded in 2003 and 2002 totaled $1.1 million and $3.4 million, respectively.
(3)   Primarily severance costs.
(4)   Cash payments are net of recoveries of $8.0 million and $3.0 million in 2003 and 2002, respectively, from Astaris for its share of shutdown and remediation costs.
(5)   Net non-cash reserve changes resulted from our ability to meet certain obligations on more favorable terms than expected when the reserves were established and because some planned actions were ultimately not undertaken. The $5.0 million reclassification within “Pocatello Shutdown” is discussed in Note 11 “Environmental.”
(6)   Included in “Accrued and other liabilities” and “Other long-term liabilities” on the Consolidated Balance Sheets.
(7)   Shutdown and remediation reserve balances are recorded net of recoveries from Astaris of $20.1 million and $4.7 million, respectively.

 

In 2001 a change in market conditions and the implementation of our overall corporate strategy resulted in restructuring and other charges of $280.4 million.

 

Industrial Chemicals recorded restructuring and other charges of $247.9 million in 2001, of which $6.2 million was for restructuring at several sites, including $5.7 million for the mothballing of the Granger, Wyoming soda ash facility and $241.7 million for the U.S.-based phosphorus business. There were 130 severances resulting from the restructuring of Industrial Chemicals, the majority of which occurred in 2001.

 

In connection with the impairment of the U.S.-based phosphorus business in the second quarter of 2001, we recorded other charges for a $68.7 million reserve for further required Consent Decree spending at the Pocatello site related to environmental capital projects, $42.7 million for financing obligations to the Astaris joint venture

 

67


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

(“keepwell” payments) and a $40.0 million payment to the Tribal Fund for various tribe activities to permit capping of a specific waste disposal pond at Pocatello.

 

Subsequent to the recording of these charges in the second quarter of 2001, Astaris announced its plans, in October 2001, to cease production at the Pocatello, Idaho elemental phosphorus facility in December 2001. This decision reflected the shift in Astaris’ sourcing strategy away from production of high cost elemental phosphorus to lower cost PPA, and also reflected the availability of low-cost alternative feedstock materials, projected higher future environmental compliance costs at Pocatello and our desire to avoid additional capital spending on environmental compliance assets required under the Consent Decree. In connection with the decision to shut down Pocatello, we recorded restructuring charges of $76.5 million in the fourth quarter of 2001 and spent $6.0 million, $32.3 million and $0.9 million of these reserves in 2003, 2002 and 2001, respectively, with the remaining reserves to be spent over the next six years as we manage the site’s decommissioning and environmental issues. These charges included reserves for decontamination, demolition, and other shutdown costs of $58.7 million, environmental remediation requirements resulting from the decision to shut down the facility of $54.3 million and our 50 percent share of costs recorded by Astaris for its obligations associated with the shutdown, or $36.3 million. Offsetting these charges was a reversal in the amount of $34.5 million representing the unspent portion of the reserve recorded in the second quarter of 2001 for required Consent Decree spending at the Pocatello site to build environmental compliance assets because the decision to shut down the site eliminated the need for further spending. We also recorded as an offset to these charges a commitment from Astaris to pay us $36.5 million over the next five years, reflecting the joint venture’s obligation to contribute to the costs for the shutdown and remediation of the site. We received $8.0 million and $3.7 million from Astaris in 2003 and 2002, respectively, related to this commitment.

 

Also included in the $241.7 million of restructuring and other charges related to the U.S.-based phosphorus business was a charge of $12.0 million for other restructuring activities which were not directly related to the shutdown of Pocatello. Included in this charge were restructuring activities related to severance and decommissioning of a coke facility as well as charges related to the shutdown of two furnaces at Pocatello.

 

In 2001 we recorded $12.5 million of severance and other costs related to our Agricultural Products segment as a result of our strategic refocusing on key geographic markets and crops and the realignment of our R&D resources to its core strength in insecticides. The majority of the spending related to these charges occurred in 2002. There were 163 severances related to these charges, the majority of which occurred in 2002.

 

Of the remaining 2001 restructuring and other charges of $20.0 million, approximately $17.5 million related to corporate reorganization costs due to the spin-off of Technologies with remaining charges of $2.5 million related to restructuring in Specialty Chemicals. The majority of the spending associated with these charges occurred in 2001 and in the first half of 2002. The benefit of the restructuring and other charges related to FMC’s corporate reorganization and spin-off are not subject to reasonable estimation. The benefits were directly related to improving stockholder value through creating a focused chemical company. There were approximately 45 severances related to the spin-off of Technologies, the majority occurring in 2001.

 

68


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

NOTE 7    INVENTORIES

 

The current replacement cost of inventories exceeded their recorded values by $186.6 million at December 31, 2003 and $193.4 million at December 31, 2002. During 2003 inventory quantities were reduced in the U.S. resulting in a LIFO gain in “costs of sales and services” due to liquidation of inventory quantities carried at lower costs as compared with the cost of 2003 purchases. The effect of reducing certain LIFO quantities carried at lower than prevailing costs was not material to cost of sales or services in 2002 and 2001. Approximately 56 percent of inventories in 2003 and approximately 62 percent of inventories in 2002 are recorded on the LIFO basis.

 

Inventories consisted of the following:

 

     December 31,

     2003

   2002

     (in Millions)

Finished goods and work in process

   $ 122.3    $ 125.1

Raw materials

     70.3      53.7
    

  

Net inventory

   $ 192.6    $ 178.8
    

  

 

NOTE 8    PROPERTY, PLANT AND EQUIPMENT

 

Property, plant and equipment consisted of the following:

 

     December 31,

     2003

   2002

     (in Millions)

Land and land improvements

   $ 216.9    $ 140.3

Buildings

     340.3      317.4

Machinery and equipment

     2,232.7      2,131.5

Construction in progress

     69.9      57.6
    

  

Total cost

     2,859.8      2,646.8

Accumulated depreciation

     1,731.7      1,571.3
    

  

Property, plant and equipment, net

   $ 1,128.1    $ 1,075.5
    

  

 

Depreciation expense was $112.5 million, $105.2 million, $112.2 million in 2003, 2002 and 2001, respectively.

 

NOTE 9    INCOME TAXES

 

Domestic and foreign components of income from continuing operations before income taxes and cumulative effect of change in accounting principle are shown below:

 

     Year Ended December 31,

 
     2003

    2002

   2001

 
     (in Millions)  

Domestic

   $ (89.9 )   $ 38.8    $ (537.3 )

Foreign

     127.9       47.7      64.4  
    


 

  


Total

   $ 38.0     $ 86.5    $ (472.9 )
    


 

  


 

69


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

The provision (benefit) for income taxes attributable to income (loss) from continuing operations before cumulative effect of change in accounting principle consisted of:

 

     Year Ended December 31,

 
     2003

    2002

   2001

 
     (in Millions)  

Current:

                       

Federal

   $ —       $ 3.8    $ 10.5  

Foreign

     15.6       5.9      22.0  

State

     (0.3 )     0.5      1.2  
    


 

  


Total current

     15.3       10.2      33.7  

Deferred

     (17.1 )     7.2      (200.3 )
    


 

  


Total

   $ (1.8 )   $ 17.4    $ (166.6 )
    


 

  


 

Total income tax provisions (benefits) were allocated as follows:

 

     Year Ended December 31,

 
     2003

    2002

    2001

 
     (in Millions)  

Continuing operations before cumulative effect of change in accounting principle

   $ (1.8 )   $ 17.4     $ (166.6 )

Discontinued operations

     (8.5 )     (2.1 )     12.0  

Cumulative effect of change in accounting principle

     —         —         (0.9 )

Items charged directly to stockholders’ equity

     17.9       (22.0 )     (7.1 )
    


 


 


Total

   $ 7.6     $ (6.7 )   $ (162.6 )
    


 


 


 

Significant components of the deferred income tax provision (benefit) attributable to income (loss) from continuing operations before income taxes and cumulative effect of change in accounting principle are as follows:

 

     Year Ended December 31,

 
     2003

    2002

   2001

 
     (in Millions)  

Deferred tax (exclusive of valuation allowance)

   $ (33.7 )   $ 2.8    $ (204.3 )

Increase in the valuation allowance for deferred tax assets

     16.6       4.4      4.0  
    


 

  


Deferred income tax provision (benefit)

   $ (17.1 )   $ 7.2    $ (200.3 )
    


 

  


 

70


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

Significant components of our deferred tax assets and liabilities were attributable to:

 

     Year Ended December 31,

 
     2003

       2002

 
     (in Millions)  

Reserves for discontinued operations, environmental and restructuring

   $ 308.5        $ 321.1  

Accrued pension and other postretirement benefits

     43.0          62.7  

Other reserves

     45.3          56.0  

Alternative minimum and foreign tax credit carryforwards

     75.4          89.6  

Net operating loss carryforwards

     84.3          48.4  

Other

     27.5          14.9  
    


    


Deferred tax assets

     584.0          592.7  

Valuation allowance

     (39.0 )        (22.4 )
    


    


Deferred tax assets, net of valuation allowance

   $ 545.0        $ 570.3  
    


    


Property, plant and equipment, net

   $ 164.4        $ 177.0  

Other

     25.5          37.4  
    


    


Deferred tax liabilities

   $ 189.9        $ 214.4  
    


    


Net deferred tax assets

   $ 355.1        $ 355.9  
    


    


 

We have recognized that it is more likely than not that certain future tax benefits may not be realized as a result of current and future income. Accordingly, the valuation allowance has been increased in the current year to reflect lower than anticipated net deferred tax asset utilization.

 

At December 31, 2003, we have net operating loss and tax credit carryforwards as follows: U.S. net operating loss carryforwards of $199.6 million available for use through 2023, state net operating loss carryforwards of $66.5 million expiring in various amounts and years through 2023, foreign net operating loss carryforwards of $37.4 million expiring in various years, U.S. foreign tax credit carry forwards of $18.3 million expiring in varying amounts per year through 2007, and alternative minimum tax credit carryforwards of $57.1 million with no expiration date.

 

71


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

The effective income tax rate applicable to income from continuing operations before income taxes and cumulative effect of change in accounting principle was different from the statutory U.S. Federal income tax rate due to the factors listed in the following table:

 

     Year Ended December 31,

 
     2003

    2002

    2001

 

Statutory U.S. tax rate

   35 %   35 %   (35 )%
    

 

 

Net difference:

                  

U.S. export sales benefit

   (8 )   (4 )   (2 )

Percentage depletion

   (11 )   (8 )   (1 )

State and local income taxes, less federal income tax benefit

   (12 )   (1 )   (5 )

Foreign earnings subject to different tax rates

   (63 )   (5 )   (2 )

Net operating loss carryforwards benefited

   (22 )   (2 )   —    

Impact of Argentine asset impairment

   (2 )   (1 )   8  

Tax on intercompany dividends and deemed dividend for tax purposes

   32     1     1  

Nondeductible expenses

   3     1     1  

Minority interests

   1     2     1  

Equity in earnings of affiliates not taxed

   (2 )   (1 )   (1 )

Change in valuation allowance

   44     3     0  
    

 

 

Total difference

   (40 )   (15 )   0  
    

 

 

Effective tax rate

   (5 )%   20 %   (35 )%
    

 

 

 

Our federal income tax returns for years through 1999 have been examined by the Internal Revenue Service (“IRS”) and substantially all issues have been settled. We believe that adequate provision for income taxes has been made for the open years 2000 and after. Income taxes have not been provided for the equity in undistributed earnings of foreign consolidated subsidiaries of $527.8 million or for foreign unconsolidated subsidiaries and affiliates of $16.7 million at December 31, 2003. Restrictions on the distribution of these earnings are not significant. It is not practical to estimate the amount of taxes that might be payable upon the remittance of such earnings. Foreign earnings taxable as dividends were $48.0 million, $8.9 million and $94.3 million in 2003, 2002 and 2001, respectively.

 

NOTE 10    DEBT

 

Debt maturing within one year:

 

Debt maturing within one year consists of the following:

 

     December 31,

 
     2003

    2002

 
     (in Millions)  

Short-term debt

   $ 13.8     $ 64.3  

Current portion of long-term debt

     3.0       166.8  
    


 


Total debt maturing within one year

   $ 16.8     $ 231.1  
    


 


Weighted average interest rates for short-term debt outstanding at year-end

     6.8 %     5.6 %

 

Short-term debt consisted primarily of foreign credit lines at December 31, 2003 and December 31, 2002. We provide parent-company guarantees to lending institutions providing credit to our foreign subsidiaries.

 

72


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

During 2003, we paid $163.6 million, including a premium of $0.3 million, plus accrued interest, to redeem all of the outstanding 6.375 percent senior notes due September 2003 and all of the 6.53 percent series-B medium-term notes due December 2003. The redemption of the notes was funded with $144.3 million from restricted cash.

 

Restricted cash shown on the consolidated balance sheets provides collateral assuring the payment of certain self-insurance obligations, environmental remediation activities, future business commitments, cash to collateralize letters of credit supporting variable-rate pollution control and industrial revenue bonds, and cash to redeem long-term debt maturing before December 31, 2003. Restricted cash was $136.9 million and $274.6 million, respectively, at December 31, 2003 and 2002.

 

Long-term debt:

 

Long-term debt consists of the following:

 

     December 31, 2003

  

December 31,


     Interest Rate
Percentage


   Maturity
Date


  
           2003

   2002

               (in Millions)

Pollution control and industrial revenue bonds (less unamortized discounts of $0.3 million and $0.3 million, respectively)

   1.1 - 7.1    2007-2032    $ 218.7    $ 220.9

Senior notes, (less unamortized discount of $0.1 million)

   6.375    2003      —        143.3

Debentures (less unamortized discounts of $0.2 million and $0.3 million, respectively)

   7.75    2011      45.3      45.2

Medium-term notes (less unamortized discounts of $0.3 million and $0.5 million, respectively)

   6.75-7.32    2005-2008      177.1      197.1

Senior secured notes (less unamortized discounts of $3.6 million and $4.3 million, respectively)

   10.25    2009      351.4      350.7

Senior secured term loan (less unamortized discounts of $3.9 million and $4.9 million, respectively)

   3.64    2007      243.6      245.1

Senior secured revolving credit facility

   —      2005      —        —  

Other

   2.5    2007      0.3      0.4
              

  

Total debt

               1,036.4      1,202.7

Less: debt maturing within one year

               3.0      166.8
              

  

Total long-term debt

             $ 1,033.4    $ 1,035.9
              

  

 

Under our Credit Facilities we had term loan facility borrowings of $247.5 million and $250.0 million at December 31, 2003 and 2002, respectively. The $250.0 million revolving credit facility had no outstanding borrowings at December 31, 2003. Letters of credit outstanding under the revolving credit facility totaled $2.6 million at December 31, 2003, which together with the lack of outstanding borrowings, resulted in $247.4 million of remaining availability. There were no outstanding letters of credit and no outstanding borrowings under the revolving credit facility at December 31, 2002, resulting in $250.0 million of availability.

 

At December 31, 2003 and December 31, 2002, there was $41.0 million of principal amount outstanding of variable-rate industrial and pollution control revenue bonds supported by $43.3 million in bank letters of credit, which are fully collateralized with cash included as part of “restricted cash” on the consolidated balance sheets.

 

73


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

On May 3, 2002, we published notice of a mandatory call for redemption on June 3, 2002 of our 6.75 percent exchangeable senior subordinated debentures, outstanding in the principal amount of $28.8 million. From May 21, 2002 to May 31, 2002, holders of $26.0 million of these debentures exercised their right to forego accrued but unpaid interest and exchange their debentures for common shares of Meridian Gold, Inc., a Canadian company trading on the New York Stock Exchange (NYSE: MDG) and successor to our former subsidiary, at a price of $15.125 per share, subject to certain adjustments. Because we did not hold any shares of Meridian Gold, Inc. we exercised our right to pay the fair market value, subject to certain adjustments, of the Meridian Gold common shares in cash. Because the price of Meridian Gold common shares rose substantially above the exchange price of $15.125, we were required to pay an amount above the principal amount of the debentures exchanged, which resulted in a net charge of approximately $3.1 million ($1.9 million after tax) in the second quarter of 2002. The remaining $2.8 million of debentures were redeemed on June 3, 2002 at the principal amount thereof plus accrued interest.

 

In 2002, we redeemed $17.1 million of our 6.375 percent senior notes due September 2003 at a premium of $0.2 million.

 

Maturities of long-term debt

 

Maturities of long-term debt outstanding at December 31, 2003 are $3.0 million in 2004, $63.3 million in 2005, $3.4 million in 2006, $292.5 million in 2007, $77.7 million in 2008 and $604.8 million thereafter.

 

Refinancing

 

On October 21, 2002, we issued $355.0 million aggregate principal amount of our 10.25 percent senior secured notes due 2009 (the “Notes”). Simultaneously, we executed a new $500.0 million senior secured credit, which provides for a $250.0 million revolving credit facility and a $250.0 million senior secured term loan, and obtained a $40.0 million supplemental secured standby letter of credit facility (the “Supplemental Letter of Credit Facility” and together with the Credit Agreement, the “Credit Facilities”). The net proceeds from the sale of the Notes and the initial borrowings under the Credit Agreement were used to:

 

    Fund $260.0 million into a debt reserve account (the “Debt Reserve Account”), included in restricted cash, to redeem $99.5 million in aggregate principal amount of our 7.125 percent medium-term notes due November 2002 and $160.5 million aggregate principal amount of 6.375 percent senior notes due September 2003.

 

    Repay all borrowings under and terminate the former $240.0 million revolving credit facility and accounts receivable securitization facility, which had outstanding amounts of $136.1 million and $65.0 million, respectively, both of which were terminated on October 21, 2002;

 

    Fund into a restricted cash account (the “Restricted Cash Collateral Account”), included in restricted cash, $130.8 million to refinance and replace with cash collateral certain surety bonds and letters of credit supporting self-insurance programs, environmental obligations and future business commitments and provide $43.4 million of cash to collateralize letters of credit supporting variable rate industrial and pollution control revenue bonds; and

 

    Pay fees and expenses of approximately $21 million, which included bank fees and various other costs.

 

“Restricted cash” shown on the consolidated balance sheets is comprised of amounts held in the Debt Reserve Account and the Restricted Cash Collateral Account, as described above.

 

74


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

Summary of Terms of the Notes

 

The Notes bear interest at the rate of 10.25 percent per year. Interest on the Notes is payable on May 1 and November 1 of each year, beginning on May 1, 2003. The Notes mature on November 1, 2009.

 

We may redeem all or part of the Notes on or prior to November 1, 2006 at a price of 100 percent of their principal amount, plus a make-whole premium, plus accrued and unpaid interest, if any. At any time after November 1, 2006, we may redeem all or part of the Notes at fixed redemption prices plus accrued and unpaid interest, if any. At any time on or prior to November 1, 2005, we may redeem up to 35 percent of the Notes from the proceeds of one or more public equity offerings at a fixed redemption price plus accrued and unpaid interest, if any.

 

The Notes are senior obligations and are guaranteed on a senior basis by our wholly-owned domestic subsidiaries that guarantee indebtedness under the Credit Facilities, which was entered into concurrently with the issuance of the Notes. As of December 31, 2003 and December 31, 2002, our subsidiaries that are not guarantors had approximately $216.0 million and $227.5 million of liabilities to which the Notes are structurally subordinated, respectively.

 

The Notes are secured on a second-priority basis by collateral consisting of certain of our domestic manufacturing or processing facilities and our shares of FMC Wyoming Corporation, our non-wholly-owned principal domestic subsidiary. The second-priority liens are shared on an equal and ratable basis with the holders of indebtedness (“Existing Public Debt”) issued under our existing indentures dated April, 1992 and July 1, 1996 (the “Existing Public Indentures”) and with (i) the lenders and other credit providers under the Credit Facilities, (ii) certain other lenders and credit providers to us and our foreign subsidiaries and (iii) lenders to Astaris LLC as beneficiaries of our obligations under the support agreement relating to Astaris. This lien is subject and subordinate to the first-priority lien granted to such lenders and other credit providers in an amount not exceeding 10.0 percent of our consolidated net tangible assets from time to time. In addition, those lenders and credit providers are secured by liens on substantially all of our other domestic assets that are not included in the collateral securing the notes and on 65 percent of the stock of certain of our foreign subsidiaries.

 

Summary Terms of the Credit Facility

 

The Credit Facilities replaced the $240.0 million 364-day non-amortizing revolving credit facility which was due to expire in December of 2002 and a $25.0 million supplemental revolving credit facility due to expire on October 31, 2002. Under the Credit Agreement, 0.25 percent of the original principal amount of the $250.0 million term loan is due and payable at the end of each quarter, commencing March 31, 2003, with the balance maturing on October 21, 2007. Amounts under the $250.0 million revolving credit facility may be borrowed, repaid and reborrowed from time to time until the maturity of the revolving credit facility on October 21, 2005. Up to $50.0 million of the revolving credit facility is available for issuance of letters of credit. Voluntary prepayments and commitment reductions under the Credit Facilities are permitted at any time without fee upon proper notice and subject to minimum dollar amounts. Subject to certain exceptions, mandatory prepayments are required with cash proceeds of asset sales, casualty events and condemnation proceeds, equity issuances and excess cash flow.

 

Subject to the availability of additional commitments by lenders, the aggregate commitment under the revolving credit facility can be increased by up to $90.0 million to a total of $340.0 million. To the extent the commitments are increased to an amount in excess of $300.0 million, the excess is required to reduce the Supplemental Letter of Credit Facility, and the amount available for letters of credit under the revolving credit facility will increase from $50.0 million to $75.0 million.

 

75


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

The Supplemental Letter of Credit Facility makes available prior to its maturity on October 21, 2005 up to $40.0 million for the issuance of standby letters of credit.

 

Obligations under the Credit Agreement bear interest at a floating rate, which is, at our option, either a base rate or a London InterBank Offered Rate (“LIBOR”), in each case plus an applicable margin. The base rate is Citibank N.A.’s base rate. Following an amendment in December 2003, the applicable margins for the term loan are 1.50 percent per annum over the base rate and 2.50 percent per annum over LIBOR. The initial applicable margins for borrowings under the revolving credit facility were 2.50 percent over the base rate and 3.50 percent over LIBOR. After March 31, 2003 the applicable margins under the revolving credit facility became subject to adjustment based on our ratio of consolidated debt to earnings before interest, taxes, depreciation and amortization. At December 31, 2003, the applicable margins for borrowings under the revolving credit facility were 2.50 percent over the base rate and 3.50 percent over LIBOR.

 

Under the Credit Agreement, we are required to pay a commitment fee on the difference between the total amount of the revolving credit facility and the amount we borrow, or for which letters of credit were issued on our behalf, under the Credit Agreement. The initial commitment fee was 0.50 percent of the unused commitment per year. The commitment fee is subject to adjustment based on our leverage ratio and remained 0.50 percent at December 31, 2003 and 2002.

 

We pay fees under the Supplemental Letter of Credit Facility on the face amount of letters of credit issued thereunder at a rate per year equal to the applicable margin for LIBOR loans under the revolving credit facility under the Credit Agreement, plus 0.25 percent. We also pay a commitment fee on the unused portion of the Supplemental Letter of Credit Facility at the same rate applicable to our revolving credit facility.

 

Our obligations under these facilities are guaranteed by each of our existing and subsequently acquired direct and indirect material wholly-owned domestic subsidiaries subject to certain exceptions for subsidiaries that are insignificant to our operations. Our obligations under the Credit Facilities are secured on a first-priority basis by substantially all of our domestic tangible and intangible assets and our domestic wholly-owned subsidiaries, including a pledge of 100.0 percent of the stock of domestic subsidiaries and at least 65.0 percent of the stock of first-tier foreign subsidiaries. Our pledge of the collateral that secures the Notes and the Existing Public Debt is limited on a first-lien basis to an aggregate amount not to exceed 10.0 percent of consolidated net tangible assets as noted above and thereafter is shared on an equal ratable basis with the existing public debt and notes. The Credit Facilities are also secured by all of our cash including cash held in the Debt Reserve Account and the Restricted Cash Collateral Account to the extent the latter is available. The Credit Facilities are secured equally and ratably with obligations owed to certain of our other lenders and lenders to our foreign subsidiaries and obligations owed under our support agreement with respect to Astaris.

 

Covenants

 

Among other restrictions, the Credit Facilities contain financial covenants related to leverage (measured as the ratio of adjusted earnings to debt), interest coverage (measured as the ratio of interest expense to adjusted earnings), consolidated net worth and capital spending. In December 2003, to accommodate the financial effects on us of the Astaris restructuring plan, we were successful in achieving favorable amendments to the covenants in our Credit Facilities. Along with the favorable covenant amendments, we obtained the agreement of the lenders under our Credit Facilities to reduce the applicable margin under the term loan facility by 2.25 percent per annum. We were in compliance with all debt covenants at December 31, 2003 and 2002.

 

76


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

Compensating Balance Agreements

 

We maintain informal credit arrangements in many foreign countries. Foreign lines of credit, which include overdraft facilities, typically do not require the maintenance of compensating balances, as credit extension is not guaranteed but is subject to the availability of funds.

 

NOTE 11    ENVIRONMENTAL

 

We are subject to various federal, state, local and foreign environmental laws and regulations that govern emissions of air pollutants, discharges of water pollutants, and the manufacture, storage, handling and disposal of hazardous substances, hazardous wastes and other toxic materials and remediation of contaminated sites. We are also subject to liabilities arising under CERCLA and similar state laws that impose responsibility on persons who arranged for the disposal of hazardous substances, and on current and previous owners and operators of a facility for the clean-up of hazardous substances released from the facility into the environment. We are also subject to liabilities under RCRA and analogous state laws that require owners and operators of facilities that treat, store or dispose of hazardous waste to follow certain waste management practices and to clean up releases of hazardous waste into the environment associated with past or present practices. In addition, when deemed appropriate, we enter certain sites with potential liability into voluntary remediation compliance programs, which are also subject to guidelines that require owners and operators, current and previous, to clean up releases of hazardous waste into the environment associated with past or present practices.

 

We have been named a potentially responsible party, or PRP, at 26 sites on the federal government’s National Priority List. In addition, we received notice from the EPA or other regulatory agencies that we may be a PRP, or PRP equivalent, at other sites, including 48 sites at which we have determined that it is reasonably possible that we have an environmental liability. In cooperation with appropriate government agencies, we are currently participating in, or have participated in, a RI/FS or its equivalent at most of the identified sites, with the status of each investigation varying from site to site. At certain sites, a RI/FS has only recently begun, providing limited information, if any, relating to cost estimates, timing, or the involvement of other PRPs; whereas, at other sites, the studies are complete, remedial action plans have been chosen, or a ROD has been issued.

 

Environmental liabilities consist of obligations relating to waste handling and the remediation and/or study of sites at which we are alleged to have disposed of hazardous substances. These sites include current operations, previously operated sites, and sites associated with discontinued operations. We have provided reserves for potential environmental obligations that we consider probable and for which a reasonable estimate of the obligation could be made. Accordingly, total reserves of $203.1 million and $223.4 million, respectively, before recoveries, were recorded at December 31, 2003 and 2002. The long-term portion of these reserves is included in “Environmental liabilities, continuing and discontinued” on the consolidated balance sheets, net of recoveries, and amounted to $156.0 million and $171.0 million at December 31, 2003 and 2002, respectively. The short-term portion of these obligations is recorded in accrued and other liabilities. In addition, we have estimated that reasonably possible environmental loss contingencies may exceed amounts accrued by as much as $75.0 million at December 31, 2003.

 

To ensure we are held responsible only for our equitable share of site remediation costs, we have initiated, and will continue to initiate, legal proceedings for contributions from other PRPs. We have recorded recoveries, representing probable realization of claims against insurance companies, U.S. government agencies and other third parties, of $17.0 million and $27.7 million, respectively, at December 31, 2003 and 2002. These recoveries are recorded as an offset to the “Environmental liabilities, continuing and discontinued.” Cash recoveries for the years 2003, 2002 and 2001 were $10.7 million, $16.2 million and $12.5 million, respectively.

 

77


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

The table below is a roll forward of our environmental reserves, continuing and discontinued from December 31, 2001 to December 31, 2003.

 

     Operating
and
Discontinued
Sites (1)


    Pocatello

    Total

 
(in Millions)     

Pre-existing

(3)


   

Shutdown

(4)


   

2001

                                

Environmental reserves, current, net of recoveries

   $ 5.9     $ 1.3     $ 8.2     $ 15.4  

Environmental reserves, long-term continuing and discontinued, net of recoveries

     132.0       33.0       38.5       203.5  
    


 


 


 


Total environmental reserves, net of recoveries at December 31, 2001 (2)

   $ 137.9     $ 34.3     $ 46.7     $ 218.9  

2002

                                

Provision

     10.2       —         —         10.2  

Spending, net of recoveries

     (21.8 )     (3.5 )     (8.1 )     (33.4 )
    


 


 


 


Net Change

     (11.6 )     (3.5 )     (8.1 )     (23.2 )
    


 


 


 


Total environmental reserves, net of recoveries at December 31, 2002

   $ 126.3     $ 30.8     $ 38.6     $ 195.7  
    


 


 


 


Environmental reserves, current, net of recoveries

   $ 6.5     $ 13.9     $ 4.3     $ 24.7  

Environmental reserves, long-term continuing and discontinued, net of recoveries

     119.8       16.9       34.3       171.0  
    


 


 


 


Total environmental reserves, net of recoveries at December 31, 2002 (2)

   $ 126.3     $ 30.8     $ 38.6     $ 195.7  

2003

                                

Provision

     24.9       —         —         24.9  

Spending, net of recoveries

     (25.4 )     (2.2 )     (1.9 )     (29.5 )

Reclassifications

     0.5       (0.5 )     (5.0 )     (5.0 )
    


 


 


 


Net Change

     —         (2.7 )     (6.9 )     (9.6 )
    


 


 


 


Total environmental reserves, net of recoveries at December 31, 2003

   $ 126.3     $ 28.1     $ 31.7     $ 186.1  
    


 


 


 


Environmental reserves, current, net of recoveries

   $ 12.5     $ 15.7     $ 1.9     $ 30.1  

Environmental reserves, long-term continuing and discontinued, net of recoveries

     113.8       12.4       29.8       156.0  
    


 


 


 


Total environmental reserves, net of recoveries at December 31, 2003

   $ 126.3     $ 28.1     $ 31.7     $ 186.1  
    


 


 


 



(1)   “Current” includes only those reserves related to continuing operations.
(2)   Balance includes environmental remediation reserves related to the shutdown of Pocatello recorded as part of Pocatello shutdown, remediation and other costs reserve in 2001. (See rollforward of restructuring and other charges table in Note 6.)
(3)   Pocatello remediation reserve created prior to the decision to shut down the facility in 2001.
(4)   Additional remediation reserves recorded at the time of the Pocatello shutdown (Note 6).

 

78


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

Our total environmental reserves, before recoveries, include $193.0 million and $212.4 million for remediation activities and $10.1 million and $11.0 million for RI/FS costs at December 31, 2003 and 2002, respectively. For the years 2003, 2002 and 2001, we charged $26.0 million, $41.3 million, and $31.3 million, respectively, against established reserves for remediation spending, and $14.2 million, $8.3 million and $12.1 million, respectively, against reserves for spending on RI/FS. We anticipate that the remediation and RI/FS expenditures for current operating, previously operated and other sites will continue to be significant for the foreseeable future.

 

In December of 2001, Astaris ceased production at the Pocatello, Idaho elemental phosphorus facility. We are responsible for decommissioning of the plant and remediation of the site at an estimated cost (net of expected recoveries of $6.9 million from Astaris) of $46.7 million, which was reserved at December 31, 2001. To manage decommissioning and remediation more effectively, we reacquired the facility from Astaris in February 2002. The estimated closure and remediation costs include the remaining costs of compliance with a June 1999 Consent Decree settling outstanding violations under RCRA at the Pocatello facility, costs expected under a July 2002 Consent Order with the Idaho Department of Environmental Quality (“Idaho Consent Order”) and costs to be incurred under a 1998 ROD under CERCLA which addresses previously closed ponds on the Pocatello facility portion of the Eastern Michaud Flats Superfund Site. We had previously signed a Consent Decree under CERCLA to implement this ROD, which was lodged in court on July 21, 1999. On August 3, 2000, the Department of Justice (“DOJ”) withdrew the CERCLA Consent Decree and announced that it needed to review the administrative record supporting the EPA’s remedy selection decision.

 

In 2003 we reviewed our estimates for environmental costs related to shutdown remediation at Pocatello and concluded that through efficiencies and project scope revisions approximately $5.0 million of reserves were no longer necessary and therefore were adjusted. In addition, upon review of the non-environmental shutdown portion of the project we concluded that an additional $4.0 million of costs would be incurred due to changes in project scope. We believe that our reserves for environmental costs adequately provide for the estimated costs of the existing ROD for the site, the expenses previously described related to the RCRA Consent Decree, the Idaho Consent Order and the incremental costs associated with the decommissioning and remediation of the facility associated with the cessation of production. We cannot predict the potential changes in the scope of the ROD, if any, resulting from the EPA’s remedy review, nor estimate the potential incremental costs, if any, of changes to the existing remedy.

 

In 2003 and 2002, we recorded environmental provisions totaling $24.9 million ($15.1 million after tax) and $10.2 million ($6.2 million after tax), respectively. These provisions related to costs for the continued cleanup of both operating sites and for certain discontinued manufacturing operations from previous years. In 2001, environmental provisions totaling $68.8 million ($42.0 million after tax) were recorded largely related to the remediation of the Pocatello site. Also included in the 2001 provision were costs related to continued cleanup of certain discontinued manufacturing operations from previous years.

 

At our facility in Middleport, New York, we completed remediation of soil and groundwater at properties adjacent to the site under a RCRA Corrective Action Order. We continue to investigate levels of potential contaminants in the soil at various properties in other areas near and around the site. We believe that the current reserve is sufficient to address the existing onsite remediation project and clean-up of soil, if necessary, at properties adjacent to the site. However, additional costs could result if more extensive off-site remediation is required than is currently anticipated. Costs are included in the estimate of reasonably possible environmental loss contingencies noted above.

 

79


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

On October 21, 1999, the Federal District Court for the Western District of Virginia approved a consent decree signed by FMC, the EPA (Region III) and the DOJ regarding past response costs and future clean-up work at the discontinued fiber-manufacturing site in Front Royal, Virginia. As part of a prior settlement, government agencies are expected to reimburse us for approximately one-third of the clean-up costs due to the government’s role at the site. Our $70 million portion of the settlement was charged to earnings in 1998 and prior years. The amount of the reserve for anticipated expenditures at our former site in Front Royal, Virginia, is $37.0 million.

 

Although potential environmental remediation expenditures in excess of the reserves and estimated loss contingencies could be significant, the impact on our future consolidated financial results is not subject to reasonable estimation due to numerous uncertainties concerning the nature and scope of possible contamination at many sites, identification of remediation alternatives under constantly changing requirements, selection of new and diverse clean-up technologies to meet compliance standards, the timing of potential expenditures and the allocation of costs among PRPs as well as other third parties.

 

The liabilities arising from potential environmental obligations that have not been reserved for at this time may be material to any one quarter or year’s results of operations in the future. However, we believe any liability arising from potential environmental obligations is not likely to have a material adverse effect on our liquidity or financial condition and may be satisfied over the next 20 years or longer.

 

Regarding current operating sites, we spent $4.5 million, $9.7 million and $87.4 million for the years 2003, 2002 and 2001, respectively, on capital projects relating to environmental control facilities. Additionally, in 2003, 2002 and 2001, we spent $23.9 million, $24.5 million and $35.9 million, respectively, for environmental compliance costs, which are operating costs not covered by established reserves. A significant majority of the 2001 spending was associated with the Consent Decree for our U.S.-based phosphorus chemicals business.

 

80


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

NOTE 12    PENSIONS AND OTHER POSTRETIREMENT BENEFITS

 

The funded status of our domestic qualified and nonqualified pension plans, our United Kingdom pension plan, the defined benefit portion of our Canadian retirement plan and our domestic postretirement healthcare and life insurance benefit plans for continuing operations, together with the associated balances recognized in our consolidated financial statements as of December 31, are shown in the tables below.

 

The following tables reflect a measurement date of December 31:

 

     Pensions

    Other Benefits

 
     December 31,

 
     2003

    2002

    2003

    2002

 
     (in Millions)  

Accumulated benefit obligation:

                                

Plans with unfunded accumulated benefit obligation

   $ 746.1     $ 706.3     $ —       $ —    
    


 


 


 


Change in projected benefit obligation

                                

Projected benefit obligation at January 1

   $ 755.1     $ 687.1     $ 89.1     $ 87.4  

Service cost

     13.1       13.0       0.4       0.7  

Interest cost

     47.4       47.2       4.9       5.8  

Actuarial (gain) or loss

     20.3       48.7       (1.2 )     2.7  

Amendments

     0.9       (0.1 )     (7.1 )     —    

Foreign currency exchange rate changes

     1.8       0.8       —         —    

Plan participants’ contributions

     0.2       0.2       4.4       4.7  

Benefits paid

     (42.4 )     (41.8 )     (11.0 )     (12.2 )
    


 


 


 


Projected benefit obligation at December 31

     796.4       755.1       79.5       89.1  
    


 


 


 


Change in fair value of plan assets

                                

Fair value of plan assets at January 1

     601.9       631.5       —         —    

Actual return on plan assets

     115.7       3.9       —         —    

Foreign currency exchange rate changes

     1.5       0.7       —         —    

Company contributions

     9.9       7.4       6.6       7.5  

Plan participants’ contributions

     0.2       0.2       4.4       4.7  

Benefits paid

     (42.4 )     (41.8 )     (11.0 )     (12.2 )
    


 


 


 


Fair value of plan assets at December 31

     686.8       601.9       —         —    
    


 


 


 


Funded status of the plan (liability)

     (109.6 )     (153.2 )     (79.5 )     (89.1 )

Unrecognized actuarial loss (gain)

     85.5       123.6       12.6       14.5  

Unrecognized prior service cost (income)

     4.9       5.7       (10.8 )     (7.2 )

Unrecognized transition asset

     (0.8 )     (0.9 )     —         —    
    


 


 


 


Net amount recognized in the balance sheet at December 31

   $ (20.0 )   $ (24.8 )   $ (77.7 )   $ (81.8 )
    


 


 


 


Prepaid benefit cost

   $ 1.1     $ 1.3     $ —       $ —    

Accrued benefit liability

     (69.2 )     (116.5 )     (77.7 )     (81.8 )

Intangible asset

     4.9       5.6       —         —    

Accumulated other comprehensive income

     43.2       84.8       —         —    
    


 


 


 


Net amount recognized in the balance sheet at December 31

   $ (20.0 )   $ (24.8 )   $ (77.7 )   $ (81.8 )
    


 


 


 


Following are the weighted average assumptions used to determine the benefit obligations at December 31:  

Discount Rate

     6.25 %     6.50 %     6.25 %     6.50 %

Rate of compensation increase

     4.00 %     4.00 %     —         —    

 

81


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

The Accumulated Benefit Obligation of the pension plans was $746.1 and $706.3 at December 31, 2003 and December 31, 2002, respectively.

 

The following table summarizes the weighted-average assumptions used for and the components of net annual benefit cost (income) for the years ended December 31:

 

     Year Ended December 31

 
     Pensions

    Other Benefits

 
     2003

    2002

    2001

    2003

    2002

    2001

 

Discount rate

     6.50 %     7.00 %     7.50 %     6.50 %     7.00 %     7.50 %

Expected return on plan assets

     9.00 %     9.25 %     9.25 %     —         —         —    

Rate of compensation increase

     4.00 %     4.25 %     4.25 %     —         —         —    

Components of net annual benefit cost
(in millions):

                                                

Service cost

   $ 13.1     $ 13.0     $ 12.0     $ 0.4     $ 0.7     $ 0.9  

Interest cost

     47.4       47.2       46.8       4.9       5.8       5.6  

Expected return on plan assets

     (56.7 )     (57.1 )     (55.1 )     —         —         —    

Amortization of transition asset

     (0.1 )     (0.1 )     (4.9 )     0.7       —         —    

Amortization of prior service cost

     1.6       1.7       2.0       (3.5 )     (6.0 )     (6.0 )

Recognized net actuarial (gain) loss

     (0.1 )     (0.9 )     (1.2 )     —         0.6       (0.3 )

Curtailment and settlement

     —         —         4.2       —         —         —    
    


 


 


 


 


 


Net annual benefit cost from continuing operations

   $ 5.2     $ 3.8     $ 3.8     $ 2.5     $ 1.1     $ 0.2  
    


 


 


 


 


 


 

The asset allocation for our U.S. pension plan, and the target asset allocation for 2004, by asset category, is shown in the table below. The fair value of plan assets for the U.S. qualified pension plan was $674.3 million and $593.2 million, at December 21, 2003 and December 31, 2002, respectively. The expected long-term rate of return on these plan assets was 9.00% for 2003 and 9.25% for 2002. In developing the assumption for the long-term rate of return on assets for our plan, we take into consideration the technical analysis performed by our outside actuaries, including historical market returns, information on the assumption for long-term real returns by asset class, inflation assumptions, and expectations for standard deviation related to these best estimates. We also consider the historical performance of our own plan’s trust, which has earned a compound annual rate of return of 12.5 percent over the last 10 years (which is in excess of comparable market indices for the same period) as well as other factors. The current asset allocation for our plan is approximately 70 percent equities (U.S. and non-U.S.) and 30 percent fixed-income investments. Given an actively managed investment portfolio, the expected annual rates of return by asset class for our portfolio, using geometric averaging, and after being adjusted for an estimated inflation rate of approximately three percent, is between nine percent and eleven percent for both U.S. and non-U.S. equities, and between five percent and seven percent for fixed-income investments, which generates a total expected portfolio return that is in line with our assumption for the rate of return on assets.

 

Asset Category


  Target Asset Allocation

 

Percentage of Plan Assets

December 31,


 
    2003

    2002

 

Equity securities

  70 – 75%   73.6 %   69.3 %

Fixed income
investments

  25 – 30%   26.1 %   30.2 %

Other investments

  0 – 1%   0.3 %   0.5 %
       

 

Total

      100.0 %   100.0 %
       

 

 

82


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

Our U.S. qualified pension plan’s investment strategy consists of a total return investment management approach using a portfolio mix of equities and fixed income investments to maximize the long-term return of plan assets for an appropriate level of risk. The goal of this strategy is to minimize plan expenses by matching asset growth to the plan’s liabilities over the long run. Furthermore, equity investments are weighted towards value equities and diversified across U.S and non-U.S. stocks. Derivatives and hedging instruments may be used to effectively manage and balance risks associated with the plan’s investments. Investment performance and related risks are measured and monitored on an ongoing basis through annual liability measurements, periodic asset and liability studies, and quarterly investment portfolio reviews.

 

We made voluntary cash contributions to our U.S. qualified pension plan of $7.0 million and $2.8 million, respectively, for 2003 and 2002. In addition, we paid nonqualified pension benefits from company assets of $2.4 million and $4.1 million, for 2003 and 2002, respectively. We paid other postretirement benefits, net of participant contributions, of $6.6 million and $7.5 million for 2003 and 2002, respectively.

 

The change in the discount rate used in determining domestic pension and other postretirement benefit obligations from 6.50 percent to 6.25 percent increased the projected pension and other postretirement benefit obligations by $25.4 million at December 31, 2003.

 

We recorded a $42.0 million reduction in the additional minimum pension liability for the year ended December 31, 2003. The after-tax effect of this adjustment, $25.7 million, is reflected in accumulated other comprehensive income at December 31, 2003.

 

At December 31, 2002, the change in the rate of compensation increase used in determining U.S. pension plan obligations from 4.25 percent to 4.00 percent decreased the projected benefit obligation by $3.2 million.

 

We implemented plan changes to the postretirement medical and life insurance plans, which together reduced our other postretirement benefit obligations by $7.1 million at January 1, 2003 and reduced our other postretirement net periodic benefit cost by $1.7 million for the year ended December 31, 2003. Specifically, for salaried and nonunion hourly employees, we eliminated the subsidy for post-65 medical coverage and reduced life insurance benefits by 50 percent for those who retire on or after July 1, 2003. In addition, we froze the amount of company subsidy at the 2002 levels. Also, employees hired on or after January 1, 2003 will no longer be eligible for any retiree medical or retiree life insurance coverage.

 

The postretirement benefit obligations shown in the above table under ‘Other Benefits’ reflect a change in the assumed ultimate healthcare cost trend rate effective December 31, 2003. For measurement purposes, 8.5 percent and 10 percent increases in the per capita cost of health care benefits for pre-65 and post-65 retirees, respectively, were assumed for the coming year, grading down to an ultimate healthcare cost trend rate of 5.25 percent in 2010 and later years. Prior to the change the ultimate healthcare cost trend rate recognized was 6.0 percent in 2009. The change in the ultimate healthcare cost trend rate from 6.0 percent to 5.25 percent decreased the projected postretirement benefit obligations by $0.5 million at December 31, 2003.

 

83


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

Assumed health care cost trend rates have an effect on the other postretirement benefit obligations and net periodic other postretirement benefit costs reported for the health care portion of the other postretirement plan. A one-percentage point change in the assumed health care cost trend rates would have the following effects at December 31, 2003:

 

     One
Percentage Point
Increase


   One
Percentage Point
Decrease


 
     (in Millions)  

Effect on total of service and interest cost components of net annual benefit cost (income)

   $ 0.1    $ (0.1 )

Effect on postretirement benefit obligation

   $ 1.7    $ (1.6 )

 

The other postretirement benefit obligations and net periodic other postretirement benefit costs shown in the above tables under ‘Other Benefits’ do not reflect the effects of the Medicare Act. Specific authoritative guidance on accounting for the subsidy included in the Medicare Act is still pending and once issued may require us to change previously reported information. We have elected to defer the accounting for the effects of the Medicare Act.

 

We adopted SFAS No. 87, “Employers’ Accounting for Pensions,” for our defined benefit plans for substantially all employees in the United Kingdom and Canada. The financial impact of compliance with SFAS No. 87 for other non-U.S. pension plans is not materially different from the locally reported pension expense. The cost of providing pension benefits for foreign employees covered by the other non-U.S. plans, was $2.3 million in 2003, $2.6 million in 2002 and $1.6 million in 2001.

 

In April 2000, we formed Astaris, a joint venture (Note 4). As a result, the former Phosphorus Chemical Business’s active employees began receiving benefits under Astaris’ plans and are not accruing further benefit in the FMC plan, the effect of which was a reduction in annual service cost of approximately $2.0 million. Under the joint venture agreement, Astaris agreed to fund an equal portion of FMC’s and Solutia’s future postretirement benefit payments. Our receivable from Astaris, representing the minimum amount of cash to be received under this portion of the agreement, amounted to $16.7 million at December 31, 2003 and $18.6 million at December 31, 2002.

 

FMC Corporation Savings and Investment Plan .    The FMC Corporation Savings and Investment Plan is a qualified salary-reduction plan under Section 401(k) of the Internal Revenue Code in which substantially all of our U.S. employees may participate by contributing a portion of their compensation. We match contributions up to specified percentages of each employee’s compensation depending on how the employee allocates his or her contributions. Charges against income for the matching contributions, net of forfeitures were $6.2 million in 2003, $6.5 million in 2002, and $7.3 million in 2001.

 

NOTE 13    STOCK COMPENSATION PLANS

 

The FMC 1995 Management Incentive Plan and the FMC 1995 Stock Option Plan, approved by the stockholders on April 21, 1995, provided certain incentives and awards to key employees. In 2000, the Compensation and Organization Committee of the Board of Directors (the “Committee”), which, subject to the provisions of the plans, reviews and approves financial targets, and the times and conditions for payment, adopted the FMC Corporation Stock Appreciation Rights and Phantom Stock Plan to provide equity-based cash compensation to foreign employees. Effective February 16, 2001, the FMC 1995 Management Incentive Plans and the FMC Corporation Stock Appreciation Rights and Phantom Stock Plans were merged with, and into,

 

84


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

the FMC 1995 Stock Option Plan. The merged plan was restated and renamed the FMC Corporation Incentive Compensation and Stock Plan (the “Plan”) and was approved by the stockholders on April 20, 2001. The provisions for incentives under the Plan provide for the grant of multi-year incentive awards payable partly in cash and partly in common stock.

 

The provisions under the Plan and its predecessor plans for stock options provide for regular grants of common stock options, which may be incentive and/or nonqualified stock options. The exercise price for stock options is not less than the fair market value of the stock at the date of grant. Options are exercisable at the time designated by the Committee in the option (four years for grants prior to 1995 and approximately three years for grants during 1995 and thereafter). Incentive and nonqualified options expire not later than 10 years from the grant date (15 years for grants prior to 1996).

 

Under the plans adopted in 1995, three million shares became available for awards and options granted in 1995 and later years. These shares are in addition to the shares available from the predecessor plans. Cancellation (through expiration, forfeiture or otherwise) of outstanding awards and options granted after 1989 increases the shares available for future awards or grants. On February 16, 2001, the Committee approved an additional 800,000 shares for use under the Plan. At December 31, 2001, 2.3 million shares were available for future use under these plans. On February 14, 2002, the Committee approved an adjustment to the share allocation, increasing it to 4.4 million, based on a conversion factor of approximately 1.9, to reflect the change in the value of the stock options and restricted shares following the spin-off of Technologies. In connection with the adjustment to the share allocation, the plan was also amended to change the total number of shares under the Plan from 3.8 million to 7.2 million.

 

We adopted the disclosure-only provisions of SFAS No. 148 and, as permitted, have chosen not to adopt the fair value based method of accounting for stock-based employee compensation. Accordingly, no compensation cost has been recognized for the Plan. Had compensation cost for options under the Plan been determined based on the fair value at the grant date for awards in 2003, 2002 and 2001, consistent with the provisions of SFAS No. 148, our net income and diluted earnings per share for the three years ended December 31, 2003 would have been reduced to the pro forma amounts indicated below:

 

     2003

   2002

   2001

 
     (in Millions Except Per
Share Data)
 

Net income (loss)—as reported

   $ 26.5    $ 65.8    $ (337.7 )

Net income (loss)—pro forma

   $ 22.8    $ 61.7    $ (339.6 )

Diluted earnings (loss) per share—as reported

   $ 0.75    $ 1.92    $ (10.86 )

Diluted earnings (loss) per share—pro forma

   $ 0.64    $ 1.80    $ (10.92 )

 

The fair value of each option grant is estimated on the date of grant using the Black-Scholes option-pricing model with the following weighted-average assumptions used for grants in 2003, 2002 and 2001, respectively: dividend yield of zero for all years; expected volatility of 32 percent, 36 percent and 33 percent; risk-free interest rates of 2.4 percent, 4.5 percent and 4.8 percent; and expected lives of five years for all grants. The weighted average fair value of stock options, calculated using the Black-Scholes option-pricing model, granted during the years ended December 31, 2003, 2002 and 2001 was $5.07, $13.29 and $27.75, respectively.

 

85


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

The tables and discussion below reflect revised share amounts and prices, using a conversion factor of 1.9 established for periods up to December 31, 2001, based on a ratio of FMC and Technologies closing stock prices on that date, following the spin-off of Technologies (Note 2).

 

The following summary shows stock option activity for the three years ended December 31, 2003:

 

     Number of Shares
Optioned But Not Exercised


    Weighted-Average
Exercise Price Per Share


     (Number of Shares in Thousands)

December 31, 2000 (4,118 shares exercisable)

   5,860     $ 28.65

Granted

   793     $ 38.65

Exercised

   (971 )   $ 24.69

Forfeited

   (128 )   $ 31.38

Cancelled due to spin-off of technologies

   (1,699 )   $ 38.85
    

 

December 31, 2001 (2,716 shares exercisable)

   3,855     $ 30.84

Granted

   708     $ 34.00

Exercised

   (409 )   $ 26.89

Forfeited

   (75 )   $ 36.27
    

 

December 31, 2002 (2,594 shares exercisable)

   4,079     $ 31.69

Granted

   693     $ 15.83

Exercised

   (32 )   $ 16.33

Forfeited

   (184 )   $ 30.04
    

 

December 31, 2003 (2,650 shares exercisable)

   4,556     $ 29.41
    

 

 

The following tables summarize information about fixed-priced stock options outstanding at December 31, 2003:

 

     Options Outstanding

Range of Exercise Prices


   Number Outstanding
at December 31, 2003


  

Weighted-

Average Remaining
Contractual Life
(in Years)


  

Weighted-Average
Exercise Price

Per Share


$15.47 – $24.33

   1,526    4.6    $ 19.47

$25.18 – $31.28

   566    8.9    $ 27.76

$32.13 – $36.65

   1,425    6.6    $ 34.29

$37.24 – $43.28

   1,039    6.7    $ 38.23
    
  
  

Total

   4,556    6.2    $ 29.41
    
  
  

 

     Options Exercisable

Range of Exercise Prices


   Number Exercisable
at December 31, 2003


  

Weighted-Average
Exercise Price

Per Share


$15.47 – $24.33

   877    $ 22.16

$25.18 – $31.28

   560    $ 27.78

$32.13 – $36.65

   765    $ 34.46

$37.24 – $43.28

   448    $ 37.42
    
  

Total

   2,650    $ 29.48
    
  

 

86


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

On January 2, 2004, an additional 623,442 shares became exercisable at a weighted-average exercise price of $38.60 with an expiration date of February 15, 2011.

 

Under the Plan, discretionary awards of restricted stock may be made to selected employees. The awards vest over periods designated by the Committee, with payment conditional upon continued employment. Compensation cost is recognized over the vesting period based on the market value of the stock on the date of the award. At December 31, 2003, 231,271 shares of restricted stock were outstanding under the plan.

 

Under the FMC Deferred Stock Plan for Non-Employee Directors, a portion of the annual retainer for these directors was deferred and paid in the form of shares of our common stock upon retirement or other termination of their directorships. Effective January 1, 1997, the Board of Directors approved a comprehensive compensation plan that terminated the retirement plan for directors and increased the proportion of director compensation paid in common stock. Benefits provided for and earned under the former plan were converted into stock units payable in shares of common stock upon retirement from the Board based on the fair market value of the common stock on December 31, 1996. The plan was amended and restated May 1, 2000 and renamed the FMC Corporation Compensation Plan for Non-Employee Directors. At December 31, 2003, stock units representing an aggregate of 46,260 shares of stock were credited to the non-employee directors’ accounts. In 1998 and 1999, non-employee directors were also granted options to purchase shares of stock at the fair market value of the stock at the date of grant. At December 31, 2003, options for 46,040 shares were outstanding at prices ranging from $33.76 to $40.56. These grants vested one year from the grant date and expire after ten years. Beginning in 2000, non-employee directors were paid in restricted stock units in lieu of stock options. The shares, however, will not be paid out until retirement from the Board. At December 31, 2003 and December 31, 2002 units representing 37,390 and 23,442 shares of stock were outstanding, respectively.

 

NOTE 14    STOCKHOLDERS’ EQUITY

 

On June 6, 2002 we issued 3,250,000 shares of common stock at a net price per share of $31.25. Net proceeds from the issuance of these shares were $101.3 million. The proceeds were used to reduce outstanding borrowings under our then existing $240.0 million revolving credit facility. On December 31, 2001 we distributed our remaining 83 percent ownership in Technologies (Note 2). The distribution was tax free. Each stockholder of record as of December 12, 2001 received approximately 1.72 shares of Technologies stock for every share of FMC stock. Total shares of Technologies stock distributed were 53,950,000. We recorded the distribution through a $509.5 million decrease in retained earnings and a $115.0 million decrease in the cumulative translation loss. In 2002 we made a distribution adjustment of $9.5 million for the final true-up of our 2001 distribution of Technologies assets.

 

87


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

The following is a summary of our capital stock activity over the past three years:

 

    

Common

Stock


  

Treasury

Stock


 
     (Number of Shares
in Thousands)
 

December 31, 2000

   38,622    7,978  

Stock options and awards

   612    —    

Stock for employee benefit trust, net

   —      (70 )

Stock repurchase

   —      21  
    
  

December 31, 2001

   39,234    7,929  

Equity offering

   3,250    —    

Stock options and awards

   520    —    

Stock for employee benefit trust, net

   —      (10 )

Stock repurchase

   —      13  
    
  

December 31, 2002

   43,004    7,932  

Stock options and awards

   200    —    

Stock for employee benefit trust, net

   —      10  
    
  

December 31, 2003

   43,204    7,942  
    
  

 

We discontinued our repurchase of stock in 2002, except for repurchases to administer our employee benefit plans. Shares of common stock repurchased and contributed to a trust for an employee benefit program (net of shares resold as needed to administer the plan) were 10,210 shares, (9,900) shares and (69,656) shares in 2003, 2002 and 2001, respectively, at a cost of approximately $0.1 million, ($0.5) million, ($5.5) million.

 

At December 31, 2003, 8.3 million shares of unissued FMC common stock were reserved for stock options and awards.

 

Accumulated other comprehensive loss consisted of the following:

 

     December 31,

 
     2003

    2002

 
     (in Millions)  

Deferred gain on derivative contracts

   $ 0.2     $ (2.8 )

Minimum pension liability adjustment

     (26.4 )     (52.1 )
    


 


Other comprehensive income (loss), net

     (26.2 )     (54.9 )

Foreign currency translation adjustments

     4.4       (118.0 )
    


 


Accumulated other comprehensive loss

   $ (21.8 )   $ (172.9 )
    


 


 

Covenants under our credit facility and debt agreements (Note 10) contain consolidated net worth and other requirements with which we were in compliance as of December 31, 2003.

 

On February 22, 1986, the Board of Directors of FMC declared a dividend distribution to each holder of record of common stock as of March 7, 1986, of one Preferred Share Purchase Right for each share of common stock outstanding on that date. Each right entitles the holder to purchase, under certain circumstances related to a change in control of the company, one one-hundredth of a share of Junior Participating Preferred Stock, Series A,

 

88


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

without par value, at a price of $300 per share (subject to adjustment), subject to the terms and conditions of a Rights Agreement dated February 22, 1986 as amended through February 9, 1996. The rights expire on March 7, 2006, unless redeemed by us at an earlier date. The redemption price of $.05 per right is subject to adjustment to reflect stock splits, stock dividends or similar transactions. We have reserved 400,000 shares of Junior Participating Preferred Stock for possible issuance under the agreement.

 

NOTE 15:    CAPITAL STOCK AND EARNINGS PER SHARE

 

Earnings applicable to common stock and common stock shares used in the calculation of basic and diluted earnings per share are as follows:

 

     Year Ended December 31,

 
     2003

    2002

    2001

 
    

(in Millions, Except Share

and Per Share Data)

 

Earnings:

                        

Income (loss) from continuing operations before cumulative effect of change in accounting principle

   $ 39.8     $ 69.1     $ (306.3 )

Discontinued operations, net of income taxes

     (13.3 )     (3.3 )     (30.5 )
    


 


 


Income (loss) before cumulative change in accounting principle

     26.5       65.8       (336.8 )

Cumulative effect of change in accounting principal, net of income taxes

     —         —         (0.9 )
    


 


 


Net income (loss)

   $ 26.5     $ 65.8     $ (337.7 )
    


 


 


Basic earnings (loss) per common share

                        

Continuing operations

   $ 1.13     $ 2.06     $ (9.85 )

Discontinued operations

     (0.38 )     (0.10 )     (0.98 )

Cumulative effect of change in accounting principle

     —         —         (0.03 )
    


 


 


Net income (loss)

   $ 0.75     $ 1.96     $ (10.86 )
    


 


 


Diluted earnings (loss) per common share

                        

Continuing operations

   $ 1.12     $ 2.01     $ (9.85 )

Discontinued operations

     (0.37 )     (0.09 )     (0.98 )

Cumulative effect of change in accounting principle

     —         —         (0.03 )
    


 


 


Net income (loss)

   $ 0.75     $ 1.92     $ (10.86 )
    


 


 


Shares (in thousands):

                        

Weighted average number of shares of common stock outstanding

     35,193       33,468       31,052  

Weighted average additional shares assuming conversion of stock options

     398       875       —    

Shares—diluted basis

     35,591       34,343       31,052  

 

The weighted average additional shares, assuming conversion of stock options, would have been 77,000 shares for the year ended December 31, 2001. These additional shares were not included in the computation of diluted earnings per share because their inclusion would have had an antidilutive effect on the computation.

 

NOTE 16:    FINANCIAL INSTRUMENTS AND RISK MANAGEMENT

 

Fair Value of Financial Instruments

 

Our financial instruments include cash and cash equivalents, restricted cash, trade receivables, other current assets, accounts payable, and amounts included in investments and accruals meeting the definition of financial instruments. These financial instruments are stated at their carrying value, which is a reasonable estimate of fair value.

 

89


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

Financial Instrument


 

Valuation Method


Forward Foreign Exchange Contracts

  Estimated amounts that would be received or paid to terminate the contracts at the reporting date based on quoted market prices of comparable contracts.

Energy Forward Contracts

  Estimated amounts that would be received or paid to terminate the contracts at the reporting date based on quoted market prices of comparable contracts.

Debt

  Our estimates and information obtained from independent third parties using market data, such as bid/ask spreads for the last business day of the year.

 

The following table of the estimated fair value of financial instruments is based on estimated fair-value amounts that have been determined using available market information and appropriate valuation methods. Accordingly, the estimates presented may not be indicative of the amounts that we would realize in a current market exchange and do not represent potential gains or losses on these agreements.

 

Assets (liabilities)


   December 31, 2003

    December 31, 2002

 
   Carrying
Amount


    Estimated
Fair Value


    Carrying
Amount


    Estimated
Fair Value


 
     (in Millions)  

Foreign Exchange Forward Contracts

   $ (6.7 )   $ (6.7 )   $ (4.2 )   $ (4.2 )

Energy Forward Contracts

     8.4       8.4       (0.5 )     (0.5 )

Debt

     (1,050.2 )     (1,120.1 )     (1,267.0 )     (1,254.3 )

 

Use of Derivative Financial Instruments to Manage Risk

 

We record foreign currency and energy contracts at fair value as assets or liabilities and the related gains or losses are deferred in stockholders’ equity as a component of other comprehensive income or loss. At December 31, 2003 the net deferred after-tax hedging gain in accumulated other comprehensive income was $0.2 million. At December 31, 2002, we recorded a loss of $2.8 million. We expect approximately $0.1 million of the 2003 gains to be realized in earnings over the twelve months ending December 31, 2004, as the underlying hedging transactions are realized. At various times, subsequent to December 31, 2004 we expect gains from cash flow hedge transactions to total, in the aggregate, approximately, $0.1 million. We recognize derivative gains and losses in the “costs of sales or services” line in the consolidated statements of income.

 

Foreign Currency Exchange Risk Management

 

We conduct business in many foreign countries, exposing earnings, cash flows, and our financial position to foreign currency risks. The majority of these risks arise as a result of foreign currency transactions. Our policy is to minimize exposure to adverse changes in currency exchange rates. This is accomplished through a controlled program of risk management that includes the use of foreign currency debt and forward foreign exchange contracts. We also use forward foreign exchange contracts to hedge firm and highly anticipated foreign currency cash flows, with an objective of balancing currency risk to provide adequate protection from significant fluctuations in the currency markets.

 

The primary currency movements for which we have exchange-rate exposure are the U.S. dollar versus the euro, the euro versus the Norwegian krone, the U.S. dollar versus the Japanese yen, and the U.S. dollar versus the Brazilian real.

 

90


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

Hedge ineffectiveness and the portion of derivative gains or losses excluded from assessments of hedge effectiveness, related to our outstanding cash flow hedges and which were recorded to earnings during the years ended December 31, 2003, 2002 and 2001 were less than $0.1 million.

 

We hold certain forward contracts that have not been designated as hedging instruments. Contracts used to hedge the exposure to foreign currency fluctuations associated with certain monetary assets and liabilities are not designated as hedging instruments, and changes in the fair value of these items are recorded in earnings. The net loss recorded in earnings for contracts not designated as hedging instruments in 2003 was $1.1 million. In 2002, we recognized a net gain of $9.0 million.

 

Commodity Price Risk

 

We are exposed to risks in energy costs due to fluctuations in energy prices, particularly natural gas, which we attempt to mitigate by hedging the cost of natural gas with futures contracts.

 

Interest Rate Risk

 

We manage interest rate exposure by using interest rate swap agreements to achieve a targeted mix of fixed- and variable-rate debt. In the agreements, we exchange, at specified intervals, the difference between fixed- and variable-interest amounts calculated on an agreed-upon notional principal amount. In 2003, we entered into interest rate swaps with an aggregate notional principal amount of $100.0 million. These swaps, in which we exchange net amounts based on making payments derived from a floating-rate index and receiving payments on a fixed-rate basis, are used to hedge the 10.25 percent senior secured notes due 2009.

 

Interest rate swaps that meet specific conditions under SFAS No. 133 are accounted for as fair-value hedges. The net position of these interest rate swap agreements was not material at December 31, 2003 and 2002. All fair value hedges were 100 percent effective at December 31, 2003 and 2002. As a result there was no effect on earnings from interest hedge ineffectiveness for 2003 and 2002.

 

Concentration of Credit Risk

 

Financial instruments that subject us to concentration of credit risk consist primarily of temporary cash investments, trade receivables and derivative contracts. Our policy is to place temporary cash investments with major, highly creditworthy financial institutions. Counterparties to derivative contracts are also limited to major financial institutions and organized exchanges. We limit the dollar amount of contracts entered into with any one financial institution and monitor counterparties’ credit ratings. While we may be exposed to credit losses due to the nonperformance of counterparties, we consider this risk remote.

 

Financial guarantees and letter-of-credit commitments

 

We enter into various financial instruments with off-balance-sheet risk as part of the normal course of business. These off-balance sheet instruments include financial guarantees and contractual commitments to extend financial guarantees under letters of credit, and other assistance to customers (Notes 1 and 18). Decisions to extend financial guarantees to customers, and the amount of collateral required under these guarantees, is based on our evaluation of creditworthiness on a case-by-case basis.

 

91


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

NOTE 17    RELATED-PARTY TRANSACTIONS

 

FMC’s chemical and machinery businesses became two independent companies in 2001 through the spin-off of Technologies (Note 2). Prior to Technologies’ IPO, FMC and Technologies entered into certain agreements, which are described below, for purposes of governing the ongoing relationship between the two companies at and after the date of the Technologies separation from us.

 

After the reorganization and spin-off, FMC and Technologies continued to be related in several general and administrative areas. The Separation and Distribution Agreement (the “SDA”) includes provisions intended to govern this ongoing relationship by establishing indemnity responsibilities, allocating responsibility for costs of the IPO and distribution, and establishing a process for the assignment of certain operating costs both prior to and after the IPO. The SDA also identified the assets to be transferred and the liabilities to be assumed by Technologies prior to the IPO.

 

According to the SDA, costs related to the IPO were the responsibility of Technologies and costs related to the distribution of Technologies shares were our responsibility. These distribution costs, which were borne by us, were immaterial. The two companies also agreed to equally share most general and administrative costs prior to the distribution, with our share of these expenses totaling $31.3 million in 2001.

 

The SDA provided for FMC and Technologies to enter into arrangements to govern the various interim relationships between the two companies.

 

A transition services agreement was entered into on December 31, 2001 between FMC and Technologies, which contemplated the provision of certain support services by one company to the other, such as cash management, accounting, tax, payroll, legal and other corporate, general and administrative functions. These services, with the exception of certain benefit-related services, terminated on December 31, 2002. Our costs related to these services totaled approximately $6 million in 2002.

 

FMC and Technologies entered into a tax sharing agreement wherein each company is obligated for those taxes associated with their respective businesses, generally determined as if each company filed its own consolidated, combined or unitary tax returns for any period where Technologies is included in the consolidated, combined or unitary tax return of FMC or its subsidiaries. If, within thirty months following the spin-off, Technologies breaches any representations in the tax sharing agreement relating to the favorable ruling FMC received from the IRS regarding the tax-free nature of the spin-off; takes or fails to take any action that causes such representations to be untrue; engages in a sale of substantially all of its assets; undergoes a change of control; or, discontinues the conduct of its business, the spin-off may be taxable to us. In the event the spin-off is determined to be taxable to us as a result of any of the foregoing, Technologies will be required to indemnify us for any resulting taxes, which would likely be material to our liquidity, results of operations and financial condition.

 

FMC and Technologies agreed that they would share insurance coverage under FMC’s comprehensive general liability and property policies through the 2002 and 2001 renewals. The 2002 policy for general liability expired in September 2003 and a separate program was established. The 2002 policy for property will expire in March 2004, at which time FMC and Technologies will establish a separate program. FMC and Technologies will also share, on an equal basis, past insurance policies, subject to reservation of disproportionate coverage in our favor for all prior policy periods up to 1985. This is to recognize certain legacy liabilities we retained. If either company uses more than its share of the policy coverage, it must indemnify the other company to ensure that the indemnified company’s share of policy coverage is unaffected.

 

92


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

FMC agreed to guaranty the performance by Technologies of certain obligations under a number of contracts, debt instruments, and reimbursement agreements. The latter agreements are associated with certain letters of credit. Prior to the spin-off, these obligations related to the businesses of Technologies. As of December 31, 2003, these guaranteed obligations totaled $6.8 million compared to $14.5 million at December 31, 2002. Under the SDA, Technologies agreed to indemnify FMC for these obligations.

 

FMC and Technologies generally did not engage in any inter-company commercial transactions; accordingly, there were no significant intercompany purchases, sales, receivables or payables in 2003, 2002, or 2001 from transactions of a commercial nature.

 

During 2003, FMC’s Board of Directors included several members who served on Technologies’ Board of Directors. They include: B.A. Bridgewater Jr., James R. Thompson and Edward J. Mooney.

 

The company sold trade receivables without recourse through its wholly owned, bankruptcy-remote subsidiary, FMC Funding Corporation. These transactions resulted in reductions of accounts receivable of $79.0 million at December 31, 2001. The company terminated this securitization program as part of its financing program (Note 10). Using proceeds from the refinancing the company made a final payment of $65.0 million to terminate its accounts receivable securitization on October 21, 2002.

 

NOTE 18    COMMITMENTS, GUARANTEES AND CONTINGENT LIABILITIES

 

We lease office space, plants and facilities, and various types of manufacturing, data processing and transportation equipment. Leases of real estate generally provide for our payment of property taxes, insurance and repairs. Capital leases are not significant. Rent expense under operating leases amounted to $16.4 million, $15.3 million and $13.0 million in 2003, 2002 and 2001, respectively. Rent expense is net of credits (received for the use of leased transportation assets) of $22.3 million, $21.2 million and $20.6 million in 2003, 2002 and 2001, respectively.

 

Minimum future rentals under noncancelable leases aggregated approximately $179.9 million, before recoveries, as of December 31, 2003 and are estimated to be payable as follows: $27.5 million in 2004, $26.4 million in 2005, $19.5 million in 2006, $15.8 million in 2007, $14.7 million in 2008 and $76.0 million thereafter. Minimum future rentals for transportation assets included above aggregated approximately $85.0 million, against which we expect to continue to receive credits to substantially defray our rental expense.

 

We adopted the provisions of FIN 45, “Guarantor’s Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others.” The Interpretation requires that we recognize the fair value of guarantee and indemnification arrangements issued or modified by us after December 31, 2002, if the arrangements are within the scope of that Interpretation. In addition, under accounting principles generally accepted in the United States of America, we continue to monitor the conditions that are subject to the guarantees and indemnifications to identify whether it is probable that a loss has occurred, and would recognize any such losses under the guarantees and indemnifications when those losses are estimable.

 

93


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

The following table provides the estimated undiscounted amount of potential future payments for each major group of guarantees and indemnifications:

 

     December 31, 2003

     (in Millions)

Guarantees:

      

–  Astaris debt

   $ 35.4

–  Astaris letters of credit

     4.6

–  Technologies performance guarantees

     6.8

–  Guarantees of vendor financing

     44.3
    

Total

   $ 91.1
    

 

In connection with the finalization of Astaris’ external financing agreement during the third quarter of 2000, FMC provided an agreement to lenders of Astaris under which we agreed to make “keepwell payments” in favor of Astaris sufficient to make up one half of any short-fall in Astaris’ earnings below certain levels. Astaris’ earnings did not meet the agreed levels for 2003, 2002 and 2001 and we do not expect that such earnings will meet the levels agreed for 2004. We contributed $62.8 million, $29.6 million and $31.3 million to Astaris under this arrangement in 2003, 2002 and 2001, respectively, and expect to contribute approximately $40 million in 2004 depending on Astaris’ performance and on Astaris’ ability to complete successfully the restructuring plan announced in the third quarter of 2003. (See Note 4.) The proportional amount of outstanding Astaris obligations subject to this agreement from FMC at December 31, 2003 was $40.0 million as compared to $88.5 million at December 31, 2002.

 

Astaris’ credit facility and our agreement under which FMC makes keepwell payments incorporate financial covenants contained in our principal credit facility, and Astaris’ credit facility contains customary default provisions related to our financial condition, results and solvency. In the fourth quarter of 2003, Astaris’ lenders agreed to accept a bank letter of credit furnished on behalf of Solutia in the amount of $67.0 million in exchange for a release of a security interest held by the lenders in certain of Solutia’s assets and the removal of Solutia’s financial covenants and solvency as grounds for default under Astaris’ credit facility.

 

At December 31, 2003, Astaris’ credit facility obligations, which FMC’s and Solutia’s keepwell payments are intended to support, included outstanding borrowings of $70.9 million and letters of credit of $9.2 million, compared to $167.9 million of outstanding borrowings and $9.1 million of letters of credit at December 31, 2002.

 

We provide guarantees to financial institutions on behalf of certain Agricultural Products customers, principally in Brazil, for their seasonal borrowing. A significant portion of the customers’ obligations to repay us for any amounts paid under the guarantees is secured by liens on their crops. Past losses under this program have been minimal. The totals of these guarantees secured by liens were $44.3 million and $18.2 million recorded on the consolidated balance sheets as “guarantees of vendor financing” at December 31, 2003 and 2002, respectively. At December 31, 2002, we also provided guarantees to financial institutions on behalf of certain Agricultural Products customers in Brazil to support their importation of third-party agricultural products totaling $4.5 million.

 

As discussed, in Note 17 “Related-Party Transactions” an indemnification was issued in connection with the divestiture of Technologies. The maximum amount of potential future payments cannot be determined because the indemnification is an unlimited obligation; however, based on the information available as of December 31, 2003, we do not expect these obligations to be material.

 

94


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

In October 2000, we announced an agreement to settle a lawsuit related to its discontinued Defense Systems business. As a result, we recorded $65.7 million (net of income taxes of $14.3 million) in the results of discontinued operations during the quarter ended September 30, 2000. After receiving approval from the Department of Justice and the U.S. District Court, we paid approximately $80.0 million to settle the lawsuit in January 2001.

 

Other Commitments

 

On June 30, 1999, we acquired the assets of Tg Soda Ash, Inc. from Elf Atochem North America, Inc. (“Elf Atochem”) for approximately $51.0 million in cash and a contingent payment due at year-end 2003 based on the financial performance of the combined soda ash operations between 2001 and 2003. On December 31, 2003, we made a payment of $32.4 million based upon contract requirements. The final payment is subject to a 90-day review period and can be disputed by Elf Atochem during this period. We do not expect this review to result in any additional material payments.

 

On October 14, 2003, Solutia, our joint venture partner in Astaris (see Note 4), filed a lawsuit against us with the Circuit Court of St. Louis County, Missouri claiming that, among other things, we had breached our joint venture agreement due to the alleged failure of the PPA technology we contributed to Astaris. Solutia dismissed this Missouri lawsuit in February of 2004, having filed a virtually identical lawsuit in the U.S. Bankruptcy Court in the Southern District of New York. Solutia had filed for Chapter 11 bankruptcy protection in that same court on December 17, 2003.

 

We also have certain other contingent liabilities arising from litigation, claims, performance guarantees and other commitments incident to the ordinary course of business. We believe that the ultimate resolution of these contingencies will not materially affect our consolidated financial position, results of operations or cash flows.

 

95


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

NOTE 19    BUSINESS SEGMENT AND GEOGRAPHIC DATA

 

     Year Ended December 31,

 
     2003

    2002

    2001

    2000

    1999

 
     (in Millions)  

Revenue

                                        

Agricultural Products

   $ 640.1     $ 615.1     $ 653.1     $ 664.7     $ 632.4  

Specialty Chemicals

     515.8       488.2       472.0       488.8       564.5  

Industrial Chemicals

     770.6       753.4       822.0       905.6       1,141.3  

Eliminations

     (5.1 )     (3.8 )     (4.1 )     (8.8 )     (17.7 )
    


 


 


 


 


Total

   $ 1,921.4     $ 1,852.9     $ 1,943.0     $ 2,050.3     $ 2,320.5  
    


 


 


 


 


Income (loss) from continuing operations before income taxes and cumulative effect of change in accounting principle

                                        

Agricultural Products

     82.0       69.5       72.8       87.8       64.3  

Specialty Chemicals

     102.1       89.8       87.5       92.4       73.5  

Industrial Chemicals

     34.0       71.6       72.6       114.5       144.4  
    


 


 


 


 


Segment operating profit (1)

     218.1       230.9       232.9       294.7       282.2  

Corporate

     (37.3 )     (35.6 )     (36.3 )     (36.2 )     (41.3 )

Other income and (expense), net

     3.9       (0.4 )     (1.6 )     9.6       9.3  
    


 


 


 


 


Operating profit before gains on divestitures of businesses, asset impairments, restructuring and other charges, interest expense, net and affiliate interest expense

     184.7       194.9       195.0       268.1       250.2  

Gains on divestitures of businesses (2)

     —         —         —         —         55.5  

Asset impairments (3)

     —         —         (323.1 )     (10.1 )     (23.1 )

Restructuring and other charges (4)

     (48.2 )     (30.1 )     (280.4 )     (35.2 )     (11.1 )

Interest expense, net

     (92.2 )     (71.6 )     (58.3 )     (61.8 )     (76.4 )

Affiliate interest expense (5)

     (6.3 )     (6.7 )     (6.1 )     (2.4 )     —    
    


 


 


 


 


Total

   $ 38.0     $ 86.5     $ (472.9 )   $ 158.6     $ 195.1  
    


 


 


 


 


 

Business segment results are presented net of minority interests, reflecting only FMC’s share of earnings. The corporate line primarily includes staff expenses while other income and expense, net consists of all other corporate items, including LIFO inventory adjustments and pension income or expense.


(1)   Results for all segments are net of minority interests in 2003, 2002, 2001, 2000 and 1999 of $2.9 million, $3.4 million, $2.3 million, $4.6 million, and $5.1 million, respectively, the majority of which pertain to Industrial Chemicals.

 

(2)   Gains on divestitures of businesses in 1999 relate to the process additives ($35.4 million) and Bioproducts ($20.1 million) operations, both of which are attributable to Specialty Chemicals.

 

(3)   Asset impairments in 2001 related to Industrial Chemicals ($224.2 million) and Specialty Chemicals ($98.9 million). See Note 5. Asset impairments in 2000 are related to Specialty Chemicals ($1.1 million) and Industrial Chemicals ($9.0 million). Asset impairments in 1999 are related to Specialty Chemicals ($14.7 million) and Industrial Chemicals ($8.4 million).

 

(4)  

Restructuring and other charges in 2003 related to Industrial Chemicals ($42.9 million), Specialty Chemicals ($6.2 million), Agricultural Products ($1.0 million) and Corporate ($1.9 million, gain). The Industrial Chemicals amount includes our share of charges recorded by Astaris, which are included in “equity in (earnings) loss of affiliates” in our consolidated statements of income and were $53.3 million,

 

96


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

 

before tax, for the year ended December 31, 2003. Restructuring and other charges in 2002 are related to Industrial Chemicals ($15.0 million), Agricultural Products ($4.7 million), Specialty Chemicals ($1.9 million) and Corporate ($8.5 million). Restructuring and other charges in 2001 are related to Industrial Chemicals ($247.9 million), Corporate ($17.5 million), Agricultural Products ($12.5 million) and Specialty Chemicals ($2.5 million). See Note 6. Restructuring and other charges in 2000 are related to Specialty Chemicals ($1.8 million), Industrial Chemicals ($33.1 million) and Corporate ($0.3 million). Restructuring and other charges in 1999 are related to Agricultural Products ($5.1 million), Specialty Chemicals ($1.3 million), Industrial Chemicals ($0.6 million) and Corporate ($4.1 million).

 

(5)   FMC’s share of interest expense of Astaris. The equity in (earnings) loss of Astaris, is included in Industrial Chemicals.

 

     December 31,

 
     2003

   2002

   2001

   2000

    1999

 
     (in Millions)  

Operating capital employed (1)

                                     

Agricultural Products

   $ 567.3    $ 583.7    $ 565.5    $ 490.3     $ 552.0  

Specialty Chemicals

     628.6      560.5      561.4      661.2       652.9  

Industrial Chemicals

     594.6      547.6      477.9      715.2       818.0  
    

  

  

  


 


Total operating capital employed

     1,790.5      1,691.8      1,604.8      1,866.7       2,022.9  

Segment liabilities included in total operating capital employed

     544.8      510.7      669.5      580.9       559.3  

Corporate items

     493.5      669.5      202.9      (23.6 )     (65.6 )
    

  

  

  


 


Assets of continuing operations

     2,828.8      2,872.0      2,477.2      2,424.0       2,516.6  

Net assets of Technologies (2)

     —        —        —        637.7       722.2  
    

  

  

  


 


Total assets

   $ 2,828.8    $ 2,872.0    $ 2,477.2    $ 3,061.7     $ 3,238.8  
    

  

  

  


 


Segment assets (3)

                                     

Agricultural Products

   $ 754.5    $ 777.0    $ 865.5    $ 738.9     $ 735.1  

Specialty Chemicals

     697.2      628.4      619.4      724.3       732.6  

Industrial Chemicals

     883.6      797.1      789.4      984.4       1,114.5  
    

  

  

  


 


Total segment assets

     2,335.3      2,202.5      2,274.3      2,447.6       2,582.2  

Corporate items

     493.5      669.5      202.9      (23.6 )     (65.6 )
    

  

  

  


 


Assets of continuing operations

     2,828.8      2,872.0      2,477.2      2,424.0       2,516.6  

Net assets of Technologies (2)

     —        —        —        637.7       722.2  
    

  

  

  


 


Total assets

   $ 2,828.8    $ 2,872.0    $ 2,477.2    $ 3,061.7     $ 3,238.8  
    

  

  

  


 



(1)   We view operating capital employed, which consists of assets, net of liabilities, reported by the company’s operations and excluding corporate items such as cash equivalents, debt, pension liabilities, income taxes and LIFO reserves as our primary measure of segment capital.

 

(2)   See Note 2.

 

(3)   Segment assets are assets recorded and reported by the segments and are equal to segment operating capital employed plus segment liabilities. See Note 1.

 

97


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

     Year Ended December 31,

     Capital Expenditures

   Depreciation and
Amortization


   Research and
Development Expense


     2003

   2002

   2001

   2003

   2002

   2001

   2003

   2002

   2001

     (in Millions)

Agricultural Products

   $ 15.8    $ 20.7    $ 21.6    $ 29.3    $ 29.5    $ 28.0    $ 65.1    $ 58.8    $ 72.5

Specialty Chemicals

     24.0      24.1      28.1      30.1      26.5      34.6      16.1      16.6      15.9

Industrial Chemicals

     39.1      28.4      87.3      59.9      58.7      60.5      6.2      6.6      11.4

Corporate

     8.1      10.7      8.6      5.3      4.1      8.5      —        —        —  
    

  

  

  

  

  

  

  

  

Total

   $ 87.0    $ 83.9    $ 145.6    $ 124.6    $ 118.8    $ 131.6    $ 87.4    $ 82.0    $ 99.8
    

  

  

  

  

  

  

  

  

 

Geographic Segment Information

 

     Year Ended December 31,

     2003

   2002

   2001

     (in Millions)
Revenue (by location of customer):                     

North America (1)

   $ 834.8    $ 895.2    $ 926.8

Europe/Middle East/Africa

     559.9      469.6      479.0

Latin America

     308.9      284.2      319.7

Asia Pacific

     217.8      203.9      217.5
    

  

  

Total

   $ 1,921.4    $ 1,852.9    $ 1,943.0
    

  

  


(1)   The only country with sales in excess of 10 percent of consolidated revenue is the U.S., totaling $796.4 million, $853.7 million and $882.1 million for the years ended December 31, 2003, 2002 and 2001, respectively.

 

     December 31,

     2003

   2002

     (in Millions)
Long-lived assets:              

North America (1)

   $ 964.9    $ 946.2

Europe/Middle East/Africa

     492.7      420.5

Latin America

     23.1      21.5

Asia Pacific

     16.2      10.2
    

  

Total

   $ 1,496.9    $ 1,398.4
    

  


(1)   The only country with long-lived assets in excess of 10 percent of consolidated long-lived assets is the U.S., which totaled $940.5 million and $899.2 million at December 31, 2003 and 2002, respectively.

 

98


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

NOTE 20    QUARTERLY FINANCIAL INFORMATION (UNAUDITED)

 

     2003

    2002

 
     1Q

   2Q

   3Q

    4Q

    1Q

   2Q

   3Q

   4Q

 
     (in Millions, Except Share and Per Share Data and Common Stock Prices)  

Revenue

   $ 434.0    $ 510.0    $ 470.5     $ 506.9     $ 434.2    $ 482.4    $ 476.6    $ 459.7  

Income (loss) from continuing operations before equity in (earnings) loss of affiliates, minority interests, net interest expense and income taxes

     31.9      57.0      57.7       55.1       21.8      43.8      51.4      39.8  

Income (loss) from continuing operations

     1.9      21.7      (3.4 )     19.6       9.0      19.2      28.2      12.7  

Income (loss) from discontinued operations, net of income taxes

     —        —        —         (13.3 )     —        —        —        (3.3 )
    

  

  


 


 

  

  

  


Net income (loss)

   $ 1.9    $ 21.7    $ (3.4 )   $ 6.3     $ 9.0    $ 19.2    $ 28.2    $ 9.4  
    

  

  


 


 

  

  

  


Basic net income (loss) per common
share (1)

   $ 0.05    $ 0.62    $ (0.10 )   $ 0.18     $ 0.29    $ 0.59    $ 0.80    $ 0.27  
    

  

  


 


 

  

  

  


Diluted net income (loss) per common
share (1)

   $ 0.05    $ 0.61    $ (0.10 )   $ 0.18     $ 0.28    $ 0.57    $ 0.79    $ 0.26  
    

  

  


 


 

  

  

  


Weighted average shares outstanding:

                                                           

Basic

     35.2      35.2      35.2       35.2       31.5      32.6      35.1      35.1  

Diluted

     35.7      35.5      35.2       35.6       32.4      33.6      35.9      35.8  
    

  

  


 


 

  

  

  


Common stock prices:

                                                           

High

   $ 28.19    $ 23.00    $ 27.60     $ 34.86     $ 42.30    $ 41.93    $ 30.43    $ 32.11  

Low

   $ 14.22    $ 15.37    $ 22.41     $ 25.15     $ 30.31    $ 27.82    $ 22.90    $ 24.83  
    

  

  


 


 

  

  

  


 

Significant transactions that affected quarterly results in 2003 and 2002 are described in Notes 1, 4 and 6.


(1)   The sum of quarterly earnings per common share may differ from the full-year amount due to changes in the number of shares outstanding during the year.

 

NOTE 21    GUARANTORS

 

In accordance with the completion of our refinancing on October 21, 2002, condensed consolidated financial statements are being disclosed. The following entities: InterMountain Research and Development Corporation, FMC Asia-Pacific, Inc., FMC Overseas, Ltd., FMC WFC I, Inc., FMC WFC II, Inc., FMC WFC I NL, L.L.C., FMC Defense Corp., FMC Defense NL, L.L.C., FMC Properties, LLC, FMC Funding Corporation, FMC Idaho, LLC, wholly-owned direct and indirect domestic subsidiaries of FMC Corporation (“Guarantors”), fully and unconditionally guarantee the obligations under the refinancing program on a joint and several basis. The following consolidating condensed financial statements present, in separate columns, financial information for: FMC Corporation on a parent-only basis carrying its investment in subsidiaries under the equity method; Guarantors on a combined, or where appropriate, consolidated basis, carrying investments in subsidiaries which do not guarantee the debt (the “Non-Guarantors”) under the equity method; Non-Guarantors on a combined, or where appropriate, consolidated basis; eliminating adjustments; and consolidated totals as of December 31, 2003 and December 31, 2002, and for each of the years ended December 31, 2003, 2002 and 2001. The eliminating adjustments primarily reflect inter-company transactions, such as interest income and expense, accounts receivable and payable, advances, short- and long-term debt, royalties and profit in inventory eliminations. We have not presented separate notes and other disclosures concerning the Guarantors as we have determined that such material information is available in the notes to FMC’s consolidated financial statements.

 

99


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

CONDENSED CONSOLIDATING STATEMENT OF INCOME

 

Year Ended December 31, 2003

 

     Parent FMC
Corporation


    Guarantors

    Non-Guarantors

    Eliminations

    Consolidated

 
     (in Millions)  

Revenues

   $ 1,076.4     $ 335.6     $ 936.9     $ (427.5 )   $ 1,921.4  

Costs of sales and services

     732.3       243.2       803.4       (378.4 )     1,400.5  

Selling and general administrative expenses

     168.1       27.8       41.0       —         236.9  

Research and development expenses

     78.4       4.5       4.5       —         87.4  

Restructuring and other charges (gains)

     (5.1 )     —         —         —         (5.1 )
    


 


 


 


 


Total costs and expenses

     973.7       275.5       848.9       (378.4 )     1,719.7  
    


 


 


 


 


Income (loss) from continuing operations before equity in (earnings) loss of affiliates, minority interest, interest expense, net, and income taxes

     102.7       60.1       88.0       (49.1 )     201.7  

Equity in (earnings) loss of affiliates

     69.3       —         (1.7 )     1.0       68.6  

Minority interests

     —         0.3       3.6       (1.0 )     2.9  

Interest expense, net

     136.5       (42.5 )     (1.8 )     —         92.2  
    


 


 


 


 


Income (loss) from continuing operations before income taxes

     (103.1 )     102.3       87.9       (49.1 )     38.0  

Provision (benefit) for income taxes

     (35.5 )     23.5       10.2       —         (1.8 )
    


 


 


 


 


Income (loss) from continuing operations

     (67.6 )     78.8       77.7       (49.1 )     39.8  

Discontinued operations, net of income taxes

     (13.3 )     —         —         —         (13.3 )
    


 


 


 


 


Net income (loss)

   $ (80.9 )   $ 78.8     $ 77.7     $ (49.1 )   $ 26.5  
    


 


 


 


 


 

100


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

CONDENSED CONSOLIDATING STATEMENT OF INCOME

 

Year Ended December 31, 2002

 

     Parent FMC
Corporation


    Guarantors

    Non-Guarantors

    Eliminations

    Consolidated

 
     (in Millions)  

Revenues

   $ 1,057.2     $ 287.8     $ 888.6     $ (380.7 )   $ 1,852.9  

Costs of sales and services

     709.9       237.9       761.0       (348.9 )     1,359.9  

Selling and general administrative expenses

     159.6       23.8       40.7       —         224.1  

Research and development expenses

     72.8       4.5       4.7       —         82.0  

Restructuring and other charges

     29.5       —         0.6       —         30.1  
    


 


 


 


 


Total costs and expenses

     971.8       266.2       807.0       (348.9 )     1,696.1  
    


 


 


 


 


Income (loss) from continuing operations before equity in (earnings) loss of affiliates, minority interest, interest expense, net, and income taxes

     85.4       21.6       81.6       (31.8 )     156.8  

Equity in (earnings) loss of affiliates

     (2.8 )     —         (2.0 )     0.1       (4.7 )

Minority interests

     0.1       (0.3 )     3.7       (0.1 )     3.4  

Interest expense, net

     115.2       (44.8 )     1.2       —         71.6  
    


 


 


 


 


Income (loss) from continuing operations before income taxes

     (27.1 )     66.7       78.7       (31.8 )     86.5  

Provision (benefit) for income taxes

     (19.3 )     27.0       9.7       —         17.4  
    


 


 


 


 


Income (loss) from continuing operations

     (7.8 )     39.7       69.0       (31.8 )     69.1  

Discontinued operations, net of income taxes

     (3.3 )     —         —         —         (3.3 )
    


 


 


 


 


Net income (loss)

   $ (11.1 )   $ 39.7     $ 69.0     $ (31.8 )   $ 65.8  
    


 


 


 


 


 

101


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

CONDENSED CONSOLIDATING STATEMENT OF INCOME

 

Year Ended December 31, 2001

 

     Parent FMC
Corporation


    Guarantors

    Non-Guarantors

    Eliminations

    Consolidated

 
     (in Millions)  

Revenues

   $ 1,179.2     $ 306.3     $ 901.2     $ (443.7 )   $ 1,943.0  

Costs of sales and services

     731.5       281.2       751.4       (346.8 )     1,417.3  

Selling and general administrative expenses

     226.8       (20.8 )     39.2       (1.9 )     243.3  

Research and development expenses

     86.8       5.2       7.8       —         99.8  

Asset impairments, restructuring and other charges

     263.2       333.1       7.2       —         603.5  
    


 


 


 


 


Total costs and expenses

     1,308.3       598.7       805.6       (348.7 )     2,363.9  
    


 


 


 


 


Income (loss) from continuing operations before equity in (earnings) loss of affiliates, minority interest, interest expense, net, and income taxes

     (129.1 )     (292.4 )     95.6       (95.0 )     (420.9 )

Equity in (earnings) loss of affiliates

     (6.8 )     —         (1.8 )     —         (8.6 )

Minority interests

     0.4       —         1.6       0.3       2.3  

Interest expense, net

     106.0       (46.2 )     (1.5 )     —         58.3  
    


 


 


 


 


Income (loss) from continuing operations before income taxes and cumulative effect of change in
accounting principle

     (228.7 )     (246.2 )     97.3       (95.3 )     (472.9 )

Provision (benefit) for income taxes

     (90.7 )     (91.1 )     15.2       —         (166.6 )
    


 


 


 


 


Income (loss) from continuing operations before cumulative effect of change in accounting principle

     (138.0 )     (155.1 )     82.1       (95.3 )     (306.3 )

Discontinued operations, net of income taxes

     (30.5 )     —         —         —         (30.5 )
    


 


 


 


 


Income (loss) before cumulative effect of change in accounting principle

     (168.5 )     (155.1 )     82.1       (95.3 )     (336.8 )

Cumulative effect of change in accounting principle, net of income taxes

     (0.9 )     —         —         —         (0.9 )
    


 


 


 


 


Net income (loss)

   $ (169.4 )   $ (155.1 )   $ 82.1     $ (95.3 )   $ (337.7 )
    


 


 


 


 


 

102


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

CONDENSED CONSOLIDATING BALANCE SHEET

 

December 31, 2003

 

    Parent FMC
Corporation


    Guarantors

    Non-Guarantors

    Eliminations

    Consolidated

 
    (in Millions)  
ASSETS                                        

Current assets:

                                       

Cash and cash equivalents and restricted
cash

  $ 142.1     $ 4.8     $ 47.0     $ —       $ 193.9  

Trade receivables, net of allowance

    175.0       194.4       108.8       —         478.2  

Inventories

    70.9       65.0       98.2       (41.5 )     192.6  

Intercompany receivables

    148.1       13.7       127.5       (289.3 )     —    

Other assets

    62.1       13.8       36.2       —         112.1  

Deferred income taxes

    32.9       —         —         —         32.9  
   


 


 


 


 


Total current assets

    631.1       291.7       417.7       (330.8 )     1,009.7  

Investments

    1,853.0       11.5       15.2       (1,810.9 )     68.8  

Property, plant and equipment, net

    586.5       97.1       444.5       —         1,128.1  

Goodwill

    4.8       146.1       5.4       —         156.3  

Other assets

    110.7       7.2       25.8       —         143.7  

Deferred income taxes

    322.2       —         —         —         322.2  
   


 


 


 


 


Total assets

  $ 3,508.3     $ 553.6     $ 908.6     $ (2,141.7 )   $ 2,828.8  
   


 


 


 


 


LIABILITIES AND STOCKHOLDERS’

EQUITY (DEFICIT)

                                       

Current liabilities:

                                       

Short-term debt

  $ —       $ 1.7     $ 12.1     $ —       $ 13.8  

Current portion of long-term debt

    3.0       —         —         —         3.0  

Accounts payable, trade and other

    147.2       31.7       120.6       —         299.5  

Inter-company payable

    61.4       132.3       95.6       (289.3 )     —    

Accrued and other current liabilities

    217.7       88.1       42.8       —         348.6  

Accrued pension and other postretirement benefits, current

    13.7       —         —         —         13.7  

Income taxes payable

    (222.5 )     246.2       25.2       —         48.9  
   


 


 


 


 


Total current liabilities

    220.5       500.0       296.3       (289.3 )     727.5  

Long-term debt, less current portion

    1,033.4       —         —         —         1,033.4  

Accrued pension and other postretirement benefits, long-term

    132.1       —         —         —         132.1  

Intercompany long-term debt

    1,222.5       (1,156.6 )     (65.9 )     —         —    

Intercompany investments

    (28.3 )     —         (15.6 )     43.9       —    

Reserve for discontinued operations, environmental reserves and other long-term liabilities

    221.6       —         —         —         221.6  

Other long-term liabilities

    21.2       55.2       1.2       —         77.6  

Minority interests in consolidated companies

    11.5       (0.3 )     46.0       (8.9 )     48.3  

Stockholders’ equity (deficit):

                                       

Common stock and retained earnings

    1,203.2       1,155.3       646.6       (1,887.4 )     1,117.7  

Accumulated other comprehensive
loss

    (21.8 )     —         —         —         (21.8 )

Treasury stock, common, at cost

    (507.6 )     —         —         —         (507.6 )
   


 


 


 


 


Total stockholders’ equity

    673.8       1,155.3       646.6       (1,887.4 )     588.3  
   


 


 


 


 


Total liabilities and stockholders’ equity

  $ 3,508.3     $ 553.6     $ 908.6     $ (2,141.7 )   $ 2,828.8  
   


 


 


 


 


 

103


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

CONDENSED CONSOLIDATING BALANCE SHEET

 

December 31, 2002

 

    Parent FMC
Corporation


    Guarantors

    Non-Guarantors

    Eliminations

    Consolidated

 
    (in Millions)  
ASSETS                                        

Current assets:

                                       

Cash and cash equivalents and restricted
cash

  $ 321.0     $ 1.2     $ 42.0     $ —       $ 364.2  

Trade receivables, net of allowance

    171.9       186.7       103.6       —         462.2  

Inventories

    76.8       57.7       85.4       (41.1 )     178.8  

Intercompany receivables

    172.9       18.4       87.1       (278.4 )     —    

Other assets

    59.6       15.8       37.1       —         112.5  

Deferred income taxes

    58.0       —         —         —         58.0  
   


 


 


 


 


Total current assets

    860.2       279.8       355.2       (319.5 )     1,175.7  

Investments

    1,536.1       11.6       14.8       (1,522.8 )     39.7  

Property, plant and equipment, net

    596.0       86.0       393.5       —         1,075.5  

Goodwill

    4.7       120.4       4.6       —         129.7  

Other assets

    131.2       0.1       22.2       —         153.5  

Deferred income taxes

    297.9       —         —         —         297.9  
   


 


 


 


 


Total assets

  $ 3,426.1     $ 497.9     $ 790.3     $ (1,842.3 )   $ 2,872.0  
   


 


 


 


 


LIABILITIES AND STOCKHOLDERS’

EQUITY (DEFICIT)

                                       

Current liabilities:

                                       

Short-term debt

  $ —       $ 45.5     $ 18.8     $ —       $ 64.3  

Current portion of long-term debt

    166.8       —         —         —         166.8  

Accounts payable, trade and other

    148.8       29.5       108.2       —         286.5  

Inter-company payable

    50.0       161.0       67.4       (278.4 )     —    

Accrued and other current liabilities

    215.6       60.4       42.0       —         318.0  

Accrued pension and other postretirement benefits, current

    14.8       —         —         —         14.8  

Income taxes payable

    (222.5 )     233.5       13.2       —         24.2  
   


 


 


 


 


Total current liabilities

    373.5       529.9       249.6       (278.4 )     874.6  

Long-term debt, less current portion

    1,035.5       —         0.4       —         1,035.9  

Accrued pension and other postretirement benefits, long-term

    182.2       —         —         —         182.2  

Inter-company long-term debt

    1,113.9       (1,086.6 )     (27.3 )     —         —    

Inter-company investments

    (640.2 )     —         —         640.2       —    

Reserve for discontinued operations, environmental reserves and other long-term liabilities

    243.8       —         —         —         243.8  

Other long-term liabilities

    19.3       60.6       4.8       —         84.7  

Minority interests in consolidated companies

    10.7       0.3       43.3       (9.5 )     44.8  

Stockholders’ equity (deficit):

                                       

Common stock and retained earnings

    1,767.9       993.7       519.5       (2,194.6 )     1,086.5  

Accumulated other comprehensive
loss

    (172.9 )     —         —         —         (172.9 )

Treasury stock, common, at cost

    (507.6 )     —         —         —         (507.6 )
   


 


 


 


 


Total stockholders’ equity

    1,087.4       993.7       519.5       (2,194.6 )     406.0  
   


 


 


 


 


Total liabilities and stockholders’ equity

  $ 3,426.1     $ 497.9     $ 790.3     $ (1,842.3 )   $ 2,872.0  
   


 


 


 


 


 

104


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

CONDENSED CONSOLIDATING STATEMENT OF CASH FLOW

 

Year Ended December 31, 2003

 

     Parent FMC
Corporation


    Guarantors

    Non-Guarantors

    Eliminations

    Consolidated

 
     (in Millions)  

Cash provided (required) by operating activities

   $ 298.7     $ 100.4     $ 100.0     $ (294.6 )   $ 204.5  

Cash required by discontinued operations

     (26.1 )     —         —         —         (26.1 )

Cash provided (required) by investing activities:

                                        

Capital expenditures

     (37.2 )     (8.8 )     (41.0 )     —         (87.0 )

Other investing activities

     (359.4 )     (0.3 )     (8.3 )     297.2       (70.8 )
    


 


 


 


 


Cash provided (required) by investing activities

     (396.6 )     (9.1 )     (49.3 )     297.2       (157.8 )

Cash provided (required) by financing activities:

                                        

Change in short-term debt obligations, net

     —         (43.8 )     (6.7 )     —         (50.5 )

Repayment of long-term debt, net of increased borrowings

     (168.2 )     —         —         —         (168.2 )

Other financing activities

     251.0       (43.9 )     (39.0 )     (2.6 )     165.5  
    


 


 


 


 


Cash provided (required) by financing activities

     82.8       (87.7 )     (45.7 )     (2.6 )     (53.2 )
    


 


 


 


 


Increase (decrease) in cash and cash equivalents

     (41.2 )     3.6       5.0       —         (32.6 )

Beginning of year

     46.4       1.2       42.0       —         89.6  
    


 


 


 


 


End of period

   $ 5.2     $ 4.8     $ 47.0     $ —       $ 57.0  
    


 


 


 


 


 

105


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

CONDENSED CONSOLIDATING STATEMENT OF CASH FLOW

 

Year Ended December 31, 2002

 

     Parent FMC
Corporation


    Guarantors

    Non-Guarantors

    Eliminations

    Consolidated

 
     (in Millions)  

Cash provided (required) by operating activities

   $ 260.9     $ 25.7     $ (116.6 )   $ (29.2 )   $ 140.8  

Cash required by discontinued operations

     (29.6 )     —         —         —         (29.6 )

Cash provided (required) by investing activities:

                                        

Capital expenditures

     (42.7 )     (10.7 )     (30.5 )     —         (83.9 )

Other investing activities

     (286.8 )     0.1       192.2       67.6       (26.9 )
    


 


 


 


 


Cash provided (required) by investing activities

     (329.5 )     (10.6 )     161.7       67.6       (110.8 )

Cash provided (required) by financing activities:

                                        

Change in short-term debt obligations, net

     (103.9 )     32.0       (0.7 )     —         (72.6 )

Repayment of long-term debt, net of increased borrowings

     415.2       —         —         —         415.2  

Proceeds from equity offering

     101.3       —         —         —         101.3  

Other financing activities

     (275.9 )     (47.2 )     (16.6 )     (38.4 )     (378.1 )
    


 


 


 


 


Cash provided (required) by financing activities

     136.7       (15.2 )     (17.3 )     (38.4 )     65.8  
    


 


 


 


 


Increase (decrease) in cash and cash equivalents

     38.5       (0.1 )     27.8       —         66.2  

Beginning of year

     7.9       1.3       14.2       —         23.4  
    


 


 


 


 


End of period

   $ 46.4     $ 1.2     $ 42.0     $ —       $ 89.6  
    


 


 


 


 


 

106


FMC CORPORATION

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

 

CONDENSED CONSOLIDATING STATEMENT OF CASH FLOW

 

Year Ended December 31, 2001

 

     Parent FMC
Corporation


    Guarantors

    Non-Guarantors

    Eliminations

    Consolidated

 
     (in Millions)  

Cash provided (required) by operating activities

   $ (298.6 )   $ (245.9 )   $ 110.4     $ 385.0     $ (49.1 )

Cash provided (required) by discontinued operations

     150.1       —         —         (262.0 )     (111.9 )

Cash provided (required) by investing activities:

                                        

Capital expenditures

     (37.2 )     (62.3 )     (46.1 )     —         (145.6 )

Other investing activities

     (52.7 )     266.5       67.4       (305.2 )     (24.0 )
    


 


 


 


 


Cash provided (required) by investing activities

     (89.9 )     204.2       21.3       (305.2 )     (169.6 )

Cash provided (required) by financing activities:

                                        

Change in short-term debt obligations, net

     29.7       3.9       (16.1 )     —         17.5  

Repayment of long-term debt, net of increased borrowings

     (108.3 )     —         —         —         (108.3 )

Contribution from Technologies

     430.7       —         —         —         430.7  

Other financing activities

     (104.7 )     35.8       (106.5 )     182.2       6.8  
    


 


 


 


 


Cash provided (required) by financing activities

     247.4       39.7       (122.6 )     182.2       346.7  
    


 


 


 


 


Increase (decrease) in cash and cash equivalents

     9.0       (2.0 )     9.1       —         16.1  

Beginning of year

     (1.1 )     3.3       5.1       —         7.3  
    


 


 


 


 


End of period

   $ 7.9     $ 1.3     $ 14.2     $ —       $ 23.4  
    


 


 


 


 


 

107


INDEPENDENT AUDITORS’ REPORT

 

The Board of Directors and Stockholders, FMC Corporation:

 

We have audited the accompanying consolidated balance sheets of FMC Corporation and consolidated subsidiaries as of December 31, 2003 and 2002, and the related consolidated statements of income, cash flows and changes in stockholders’ equity for each of the years in the three-year period ended December 31, 2003. In connection with our audits of the consolidated financial statements, we also have audited the related financial statement schedule as listed in the accompanying index in Item 15(a)(2). These consolidated financial statements and financial statement schedule are the responsibility of the company’s management. Our responsibility is to express an opinion on these consolidated financial statements and financial statement schedule based on our audits.

 

We conducted our audits in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

 

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of FMC Corporation and consolidated subsidiaries as of December 31, 2003 and 2002, and the results of their operations and their cash flows for each of the years in the three-year period ended December 31, 2003 in conformity with accounting principles generally accepted in the United States of America. Also in our opinion, the related financial statement schedule, when considered in relation to the consolidated financial statements taken as a whole, presents fairly, in all material respects, the information set forth therein.

 

As discussed in Note 1 to the consolidated financial statements, the company adopted Statement of Financial Accounting Standards No. 142 “Goodwill and Other Intangible Assets” on January 1, 2002 and Statement of Financial Accounting Standards No. 133 “Accounting for Derivative Instruments and Hedging Activities” on January 1, 2001.

 

/s/ KPMG LLP

Philadelphia, Pennsylvania

February 13, 2004

 

108


FMC CORPORATION

 

SCHEDULE II—VALUATION AND QUALIFYING ACCOUNTS AND RESERVES

 

FOR YEARS ENDED DECEMBER 31, 2003, 2002 and 2001

 

Description


  

Balance,

Beginning

of Year


   Provision

   Write-offs (1)

   

Balance,

End of
Year


     (in Millions)

December 31, 2003

                            

Reserve for doubtful accounts

   $ 6.7    $ 4.2    $ (4.0 )   $ 6.9
    

  

  


 

Deferred tax valuation allowance

   $ 22.4    $ 18.9    $ (2.3 )   $ 39.0
    

  

  


 

December 31, 2002

                            

Reserve for doubtful accounts

   $ 8.4    $ 1.8    $ (3.5 )   $ 6.7
    

  

  


 

Deferred tax valuation allowance

   $ 18.0    $ 10.8    $ (6.4 )   $ 22.4
    

  

  


 

December 31, 2001

                            

Reserve for doubtful accounts

   $ 6.2    $ 2.1    $ 0.1     $ 8.4
    

  

  


 

Deferred tax valuation allowance

   $ 14.0    $ 4.0    $ —       $ 18.0
    

  

  


 


(1)   Write-offs are net of recoveries.

 

ITEM 9A.    CONTROLS AND PROCEDURES

 

(a) Evaluation of disclosure controls and procedures. The company’s disclosure controls and procedures are designed to ensure that information required to be disclosed by the company in the reports that are filed or submitted under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported, within the time periods specified in the Securities and Exchange Commission’s rules and forms. These disclosure controls and procedures include controls and procedures designed to ensure that information required to be disclosed under the Securities Exchange Act of 1934 is accumulated and communicated to the company’s management on a timely basis to allow decisions regarding required disclosure. The company evaluated the effectiveness of the design and operation of its disclosure controls and procedures as of December 31, 2003. Based on this evaluation, the company’s Chief Executive Officer and Chief Financial Officer have concluded that as of December 31, 2003, these controls and procedures were effective.

 

(b) Change in Internal Controls. There have been no changes in internal controls over financial reporting identified in connection with the foregoing evaluation that occurred during the company’s last fiscal quarter that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting.

 

109


PART III

 

ITEM 10.    DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT

 

Information concerning directors, appearing under the caption “III. Board of Directors” in our Proxy Statement to be filed with the Securities and Exchange Commission in connection with the Annual Meeting of Stockholders scheduled to be held on April 27, 2004 (the “Proxy Statement”), information concerning executive officers, appearing under the caption “Item 4A. Executive Officers of the Registrant” in Part I of this Form 10-K, information concerning the Audit Committee, appearing under the caption “IV. Information About the Board of Directors and Corporate Governance—Audit Committee” and “—Corporate Governance” in the Proxy Statement, and information about compliance with Section 16(a) of the Securities Exchange Act of 1934 appearing under the caption “VII. Other Matters—Section 16(a) Beneficial Ownership Reporting Compliance” in the Proxy Statement, is incorporated herein by reference in response to this Item 10.

 

ITEM 11.    EXECUTIVE COMPENSATION

 

The information contained in the Proxy Statement in the section titled “VI. Executive Compensation” with respect to executive compensation, and in the section titled “IV. Information About the Board of Directors and Corporate Governance—Board of Directors Compensation” with respect to director compensation, is incorporated herein by reference in response to this Item 11.

 

ITEM 12.    SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

 

The information contained in the section titled “V. Security Ownership of FMC” in the Proxy Statement, with respect to security ownership of certain beneficial owners and management, is incorporated herein by reference in response to this Item 12.

 

Equity Compensation Plan Information

 

Plan Category


   Number of Securities to
be issued upon exercise


  

Weighted-average

exercise price


   Securities available for
future issuance under
equity compensation
plans


Equity Compensation Plans approved by stockholders

   4,918,152    $ 29.49    3,428,987

 

All of our equity compensation plans have been approved by stockholders.

 

ITEM 13.    CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS

 

Not applicable.

 

ITEM 14.    AUDITOR FEES AND SERVICES

 

The information contained in the Proxy Statement in the section titled “II. The Proposals to be Voted On— Ratification of Appointment of Independent Public Accountants” is incorporated herein by reference in response to this Item 14.

 

110


PART IV

 

ITEM 15.    EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K

 

(a)   Document filed with this Report

 

  1.   Consolidated financial statements of FMC Corporation and its subsidiaries are incorporated under Item 8 of this Form 10-K.

 

  2.   The following supplementary financial information is filed in this Form 10-K:

 

     PAGE

Financial Statements Schedule

    

II – Valuation and qualifying accounts for the years 2003, 2002 and 2001

   109

 

The schedules not included herein are omitted because they are not applicable or the required information is presented in the financial statements or related notes.

 

  3.   Exhibits: See attached Index of Exhibits

 

(b)   Reports on Form 8-K

 

The Registrant filed or furnished the following reports on Form 8-K or Form 8-K/A during the quarter ended December 31, 2003:

 

  i.   Furnished October 14, 2003—Item 9 Press Release announcing that Astaris, the company’s 50/50 joint venture with Solutia Inc., will proceed with a restructuring plan

 

  ii.   Furnished October 17, 2003—Item 9 Press Release announcing FMC’s response to a lawsuit filed by Solutia is without merit

 

  iii.   Furnished October 30, 2003—Item 12 FMC Press Release on October 29, 2003, announcing the third quarter 2003 earnings of the company.

 

  iv.   Furnished November 14, 2003—Item 9 FMC Overview presentation for analyst information meetings by William G. Walter

 

  v.   Furnished December 9, 2003—Item 9 FMC presentation to senior lenders by W. Kim Foster and Thomas C. Deas

 

  vi.   Furnished December 17, 2003—Item 9 Press Release announcing Mark P. Frissora’s election to the company’s board of directors effective January 1, 2004

 

  vii.   Filed December 29, 3003—Item 5 and Item 7 FMC announced it has obtained the agreement of its bank lenders to reduce the applicable margin for its term loan and has achieved favorable amendments to the covenants in its credit facilities to accommodate the previously announced Astaris restructuring

 

The Current Reports on Form 8-K listed above under Item 9 are not deemed “filed” for purposes of Section 18 of the Securities and Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that Section.

 

111


(c)   Exhibits

 

Exhibit No.

   

Exhibit Description


*3.1     Restated Certificate of Incorporation, as filed on June 23, 1998 (Exhibit 4.1 to FMC Corporation’s Form S-3 filed on July 21, 1998)
*3.2     Restated By-Laws of FMC Corporation, as of January 1, 2001 (Exhibit 3.2 to FMC Corporation’s Annual Report on Form 10-K filed on March 11, 2002)
*4.1     Amended and Restated Rights Agreement, dated as of February 19, 1988, between FMC Corporation and Harris Trust and Savings Bank (Exhibit 4 to FMC Corporation’s Registration Statement on Form SE (File No. 1-02376) filed on March 25, 1993)
*4.1.a     Amendment to Amended and Restated Rights Agreement, dated February 9, 1996 (Exhibit 1 to FMC Corporation’s Current Report on Form 8-K filed on February 9, 1996)
*4.2     Succession Agreement, dated as of August 6, 2002, among FMC Corporation, BNY Midwest Trust Company as Trustee, and Wachovia Bank, National Association as Successor Trustee (Exhibit 10.1 to FMC Corporation’s Quarterly Report on Form 10-Q filed on November 14, 2002)
*4.3     Indenture, dated as of October 21, 2002, among FMC Corporation, the Subsidiary Guarantors Named Therein and Wachovia Bank, National Association (Exhibit 10.10 to FMC Corporation’s Quarterly Report on Form 10-Q filed on November 14, 2002)
4(iii) (A)   FMC Corporation undertakes to furnish to the Commission upon request, a copy of any instrument defining the rights of holders of long-term debt of FMC Corporation and its consolidated subsidiaries and for any of its unconsolidated subsidiaries for which financial statements are required to be filed.
*10.1     $500,000,000 Credit Agreement, dated as of October 21, 2002, among FMC Corporation, the Lenders and Issuers Party Thereto, Citicorp USA, Inc., ABN AMRO N.V., Bank of America, N.A., Wachovia Bank, National Association, Salomon Smith Barney Inc., Banc of America Securities LLC, and Wachovia Securities LLC (the “Credit Agreement”) (Exhibit 10.4 to FMC Corporation’s Quarterly Report on Form 10-Q filed on November 14, 2002)
*10.1.a     Amendment Number 1 to the Credit Agreement, dated as of December 22, 2003 (Exhibit 99.2 of FMC Corporation’s Current Report on Form 8-K filed on December 29, 2003)
10.2     $40,000,000 Letter of Credit Agreement, dated as of October 21, 2002, among FMC Corporation, the Issuers Party Thereto, and Citicorp USA, Inc. (the “Letter of Credit Agreement”)
*10.2.a     Amendment Number 1 to the Letter of Credit Agreement, dated as of December 23, 2003 (Exhibit 99.3 of FMC Corporation’s Current Report on Form 8-K filed on December 29, 2003)
10.3     U.S. Subsidiary Guarantee, dated as of October 21, 2002, by each of the Subsidiary Guarantors
10.4     Parent Guarantee, dated as of October 21, 2002, by FMC Corporation
*10.5     Pledge and Security Agreement, dated as of October 21, 2002, by FMC Corporation in favor of Citicorp USA, Inc. as Bank Administrative Agent (Exhibit 10.5 to FMC Corporation’s Quarterly Report on Form 10-Q filed on November 14, 2002)
*10.6     Shared Collateral Pledge and Security Agreement, dated as of October 21, 2002, by FMC Corporation in favor of Citibank N.A., as Collateral Trustee (Exhibit 10.6 to FMC Corporation’s Quarterly Report on Form 10-Q filed on November 14, 2002)
*10.7     Collateral Trust Agreement, dated as of October 21, 2002, among FMC Corporation, Citicorp USA, Inc., Wachovia Bank, National Association, and Citibank, N.A. (Exhibit 10.7 to FMC Corporation’s Quarterly Report on Form 10-Q filed on November 14, 2002)
*10.8     Purchase Agreement, dated October 9, 2002, between FMC Corporation and the Initial Purchasers relating to the 10.25% Senior Secured Notes, due 2009 (Exhibit 10.8 to FMC Corporation’s Quarterly Report on Form 10-Q filed on November 14, 2002)

 

112


Exhibit No.

  

Exhibit Description


*10.9    Registration Rights Agreement, dated October 21, 2002, between FMC Corporation and the Initial Purchasers relating to the 10.25% Senior Secured Notes, due 2009 (Exhibit 10.9 to FMC Corporation’s Quarterly Report on Form 10-Q filed on November 14, 2002)
†* 10.10    FMC Corporation Compensation Plan for Non-Employee Directors, as amended and restated May 1, 2000 (Exhibit 10.1 to the Annual Report on Form 10-K filed March 29, 2001)
†* 10.11    FMC 1990 Incentive Share Plan (Exhibit 10.1 to the Form SE (File No. 1-02376) filed on March 26, 1991)
†* 10.11.a    Amendment dated April 18, 1997 to FMC 1990 Incentive Share Plan (Exhibit 10.3.a to FMC Corporation’s Quarterly Report on Form 10-Q filed on May 15, 1997)
†* 10.11.b    Amendment to the FMC 1990 Incentive Share Plan (Exhibit 10.1.a to FMC Corporation’s Annual Report on Form 10-K filed March 30, 2000)
†* 10.12    FMC Corporation Salaried Employees’ Equivalent Retirement Plan, as amended and restated effective as of May 1, 2001 (Exhibit 10.6 to FMC Corporation’s Quarterly Report on Form 10-Q filed on November 7, 2001)
†   10.12.a    First Amendment of FMC Corporation Salaried Employees’ Equivalent Retirement Plan, effective as of August 1, 2002
†* 10.13    FMC Corporation Salaried Employees’ Equivalent Retirement Plan Grantor Trust, as amended and restated effective as of July 31, 2001 (Exhibit 10.6.a to FMC Corporation’s Quarterly Report on Form 10-Q filed on November 7, 2001)
†* 10.14    FMC Corporation Non-Qualified Savings and Investment Plan, as amended and restated effective as of September 28, 2001 (Exhibit 10.7 to FMC Corporation’s Quarterly Report on Form 10-Q filed on November 7, 2001)
†   10.14.a    First Amendment of FMC Corporation Non-Qualified Savings and Investment Plan, effective as of July 1, 2003
†* 10.15    FMC Corporation Non-Qualified Savings and Investment Plan Trust, as amended and restated effective as of September 28, 2001 (Exhibit 10.7.a to FMC Corporation’s Quarterly Report on Form 10-Q filed on November 7, 2001)
†   10.15.a    First Amendment to FMC Corporation Non-Qualified Savings and Investment Plan Trust between Fidelity Management Trust Company and FMC Corporation, effective as of October 1, 2003
†* 10.16    FMC Corporation Incentive Compensation and Stock Plan Amended and Restated as of January 1, 2002 (Exhibit 10.1 to FMC Corporation’s Annual Report on Form 10-K filed March 11, 2003)
†*10.17    FMC Corporation Executive Severance Plan, as amended and restated effective as of May 1, 2001 (Exhibit 10.10 to FMC Corporation’s Quarterly Report on Form 10-Q filed on November 7, 2001)
†*10.18    FMC Corporation Executive Severance Grantor Trust Agreement, dated July 31, 2001 (Exhibit 10.10.a to FMC Corporation’s Quarterly Report on Form 10-Q filed on November 7, 2001)
†*10.19    Executive Severance Agreement, entered into as of October 1, 2001, by and between FMC Corporation and William G. Walter (Exhibit 10.22 to FMC Corporation’s Annual Report on Form 10-K filed on March 11, 2002)
†  10.20    Executive Severance Agreement, entered into as of December 31, 2001, by and between FMC Corporation and W. Kim Foster, with attached schedule
†*10.21    Executive Severance Agreement, entered into as of December 31, 2001, by and between FMC Corporation and Graham R. Wood, with attached schedule (Exhibit 10.24 to FMC Corporation’s Annual Report on Form 10-K filed on March 11, 2002)

 

113


Exhibit No.

  

Exhibit Description


*10.22    Joint Venture Agreement between FMC Corporation and Solutia Inc., made as of April 29, 1999 (Exhibit 2.I to Solutia’s Current Report on Form 8-K filed on April 27, 2000)
*10.22.a    First Amendment to Joint Venture Agreement between FMC Corporation and Solutia Inc., effective as of December 29, 1999 (Exhibit 2.II to Solutia’s Current Report on Form 8-K filed on April 27, 2000)
*10.22.b    Second Amendment to Joint Venture Agreement between FMC Corporation and Solutia Inc., effective as of February 2, 2000 (Exhibit 2.III to Solutia’s Current Report on Form 8-K filed on April 27, 2000)
*10.22.c    Third Amendment to Joint Venture Agreement between FMC Corporation and Solutia Inc., effective as of March 31, 2000 (Exhibit 2.IV to Solutia’s Current Report on Form 8-K filed on April 27, 2000)
*10.23    Separation and Distribution Agreement by and between FMC Corporation and FMC Technologies, Inc., dated as of May 31, 2001 (Exhibit 2.1 to Form S-1/A for FMC Technologies, Inc. (Registration No. 333-55920) filed June 6, 2001)
*10.24    Tax Sharing Agreement by and between FMC Corporation and FMC Technologies, Inc., dated as of May 31, 2001 (Exhibit 10.1 to Form S-1/A for FMC Technologies, Inc. (Registration No. 333-55920) filed June 6, 2001)
*10.25    Employee Benefits Agreement by and between FMC Corporation and FMC Technologies, Inc., dated as of May 31, 2001 (Exhibit 10.2 to Form S-1/A for FMC Technologies, Inc. (Registration No. 333-55920) filed June 6, 2001)
*10.26    Transition Services Agreement by and between FMC Corporation and FMC Technologies, Inc., dated as of May 31, 2001 (Exhibit 10.3 to Form S-1/A for FMC Technologies, Inc. (Registration No. 333-55920) filed June 6, 2001)
10.27    Guaranty Agreement, dated September 14, 2000, made by FMC Corporation in favor of Astaris LLC
12    Computation of Ratios of Earnings to Fixed Charges
21   

FMC Corporation List of Significant Subsidiaries

23.1   

Consent of KPMG LLP

**23.2   

Consent of KPMG LLP as it relates to Astaris, LLC

31.1   

Chief Executive Officer Certification

31.2   

Chief Financial Officer Certification

32.1   

Chief Executive Officer Certification of Annual Report

32.2   

Chief Financial Officer Certification of Annual Report

**99.1   

Consolidated Financial Statement for Astaris, LLC


*   Incorporated by reference
**   To be filed by amendment
  Management contract or compensatory plan or arrangement

 

(d)   Financial Statement Schedules

 

Separate Financial Statements of Subsidiaries Not Consolidated.

 

The consolidated financial statements of Astaris, LLP, our 50/50 joint venture with Solutia, for the three year period ended December 31, 2003 required to be included in this report pursuant to Rule 3-09 of Regulation S-X, are to be filed by amendment as Exhibit 99.1 no later than March 31, 2004.

 

114


SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

FMC CORPORATION

(Registrant)

 

By:

 

/s/ W. K IM F OSTER


   

W. Kim Foster

Senior Vice President and

Chief Financial Officer

 

Date:  March 4, 2004

 

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the date indicated.

 

Signature


  

Title


 

Date


/s/ W. K IM F OSTER


W. Kim Foster

  

Senior Vice President and

Chief Financial Officer

  March 4, 2004

/s/ G RAHAM R. W OOD


Graham R. Wood

  

Vice President, Controller

(Principal Accounting Officer)

  March 4, 2004

/s/ W ILLIAM G. W ALTER


William G. Walter

  

Chairman of the Board and

Chief Executive Officer

   

/s/ B. A. B RIDGEWATER , J R .


B. A. Bridgewater, Jr

  

Director

   

/s/ P ATRICIA A. B UFFLER


Patricia A. Buffler

  

Director

   

/s/ G. P ETER D’A LOIA


G. Peter D’Aloia

  

Director

   

/s/ C. S COTT G REER


C. Scott Greer

  

Director

   

/s/ M ARK P. F RISSORA


Mark P. Frissora

  

Director

   

/s/ E DWARD J. M OONEY


Edward J. Mooney

  

Director

   

/s/ W ILLIAM F. R EILLY


William F. Reilly

  

Director

   

/s/ E NRIQUE J. S OSA


Enrique J. Sosa

  

Director

   

/s/ J AMES R. T HOMPSON


James R. Thompson

  

Director

   

 

115


INDEX OF EXHIBITS FILED WITH FORM 10-K OF FMC CORPORATION

FOR THE YEAR ENDED DECEMBER 31, 2003

 

Exhibit No.

  

Exhibit Description


10.2    $40,000,000 Letter of Credit Agreement, dated as of October 21, 2002, among FMC Corporation, the Issuers Party Thereto, and Citicorp USA, Inc.
10.3    U.S. Subsidiary Guarantee, dated as of October 21, 2002, by each of the Subsidiary Guarantors
10.4    Parent Guarantee, dated as of October 21, 2002, by FMC Corporation
10.12.a    First Amendment of FMC Corporation Salaried Employees’ Equivalent Retirement Plan, effective as of August 1, 2002
10.14.a    First Amendment of FMC Corporation Non-Qualified Savings and Investment Plan, effective as of July 1, 2003
10.15.a    First Amendment to FMC Corporation Non-Qualified Savings and Investment Plan Trust between Fidelity Management Trust Company and FMC Corporation, effective as of October 1, 2003
10.20    Executive Severance Agreement, entered into as of December 31, 2001, by and between FMC Corporation and W. Kim Foster, with attached schedule
10.27    Guaranty Agreement, dated September 14, 2000, made by FMC Corporation in favor of Astaris LLC
12    Computation of Ratios of Earnings to Fixed Charges
21    FMC Corporation List of Significant Subsidiaries
23.1    Consent of KPMG LLP
31.1    Chief Executive Officer Certification
31.2    Chief Financial Officer Certification
32.1    Chief Executive Officer Certification of Annual Report
32.2    Chief Financial Officer Certification of Annual Report

 

116

Exhibit 10.2

 

EXECUTION COPY

 

$40,000,000

 

LETTER OF CREDIT AGREEMENT

 

Dated as of October 21, 2002

 

among

 

FMC C ORPORATION

as Borrower

 

and

 

T HE I SSUERS P ARTY H ERETO

 

and

 

C ITICORP USA, I NC .

as Administrative Agent

 

W EIL , G OTSHAL & M ANGES LLP

767 F IFTH A VENUE

N EW Y ORK , N EW Y ORK 10153-0119

 


 

T ABLE OF C ONTENTS

 

Article I

  Definitions, Interpretation And Accounting Terms    1

Section 1.1

 

Defined Terms

   1

Section 1.2

 

Computation of Time Periods

   25

Section 1.3

 

Accounting Terms and Principles

   25

Section 1.4

 

Certain Terms

   25

Article II

  The L/C Facility    26

Section 2.1

 

Letters of Credit

   26

Section 2.2

 

Reduction and Termination of the L/C Commitments

   30

Section 2.3

 

Mandatory Cash Collateralization/Prepayments

   31

Section 2.4

 

Interest

   32

Section 2.5

 

Fees

   32

Section 2.6

 

Payments and Computations

   33

Section 2.7

 

Capital Adequacy

   35

Section 2.8

 

Taxes

   35

Section 2.9

 

Substitution of Issuers

   36

Article III

  Conditions To Letters Of Credit    37

Section 3.1

 

Conditions Precedent to Initial Letters of Credit

   37

Section 3.2

 

Conditions Precedent to Each Letter of Credit

   38

Section 3.3

 

Determinations of Initial Issuing Conditions

   38

Article IV

  Representations and Warranties    39

Section 4.1

 

Corporate Existence; Compliance with Law

   39

Section 4.2

 

Corporate Power; Authorization; Enforceable Obligations

   39

Section 4.3

 

Ownership of Borrower; Subsidiaries

   40

Section 4.4

 

Financial Statements

   40

Section 4.5

 

Material Adverse Change

   41

Section 4.6

 

Solvency

   41

Section 4.7

 

Litigation

   41

Section 4.8

 

Taxes

   41

Section 4.9

 

Full Disclosure

   42

Section 4.10

 

Margin Regulations

   42

Section 4.11

 

No Burdensome Restrictions; No Defaults

   42

Section 4.12

 

Investment Company Act; Public Utility Holding Company Act

   42

Section 4.13

 

Use of Proceeds

   43

 

i


T ABLE OF C ONTENTS

(C ONTINUED )

 

Section 4.14

 

Insurance

   43

Section 4.15

 

Labor Matters

   43

Section 4.16

 

ERISA

   43

Section 4.17

 

Environmental Matters Except as disclosed in the Borrower’s SEC filings filed on or prior to September 30, 2002:

   44

Section 4.18

 

Intellectual Property

   44

Section 4.19

 

Title; Real Property

   45

Section 4.20

 

Credit Agreement, Indenture and Senior Secured Notes

   45

Section 4.21

 

Deposit Accounts; Securities Accounts

   46

Article V

  Financial Covenants    46

Section 5.1

 

Maximum Leverage Ratio

   46

Section 5.2

 

Minimum Interest Coverage Ratio

   46

Section 5.3

 

Maintenance of Net Worth

   47

Section 5.4

 

Capital Expenditures

   47

Article VI

  Reporting Covenants    47

Section 6.1

 

Financial Statements

   47

Section 6.2

 

Default Notices

   49

Section 6.3

 

Litigation

   50

Section 6.4

 

Asset Sales

   50

Section 6.5

 

Notices under Credit Agreement, Indentures and Senior Secured Notes

   50

Section 6.6

 

SEC Filings; Press Releases

   50

Section 6.7

 

Labor Relations

   50

Section 6.8

 

Tax Returns

   50

Section 6.9

 

Insurance

   51

Section 6.10

 

ERISA Matters

   51

Section 6.11

 

Environmental Matters

   51

Section 6.12

 

Other Information

   52

Article VII

  Affirmative Covenants    52

Section 7.1

 

Preservation of Corporate Existence, Etc.

   52

Section 7.2

 

Compliance with Laws, Etc.

   52

Section 7.3

 

Conduct of Business

   53

Section 7.4

 

Payment of Taxes, Etc.

   53

Section 7.5

 

Maintenance of Insurance

   53

 

ii


T ABLE OF C ONTENTS

(C ONTINUED )

 

Section 7.6

 

Access

   53

Section 7.7

 

Keeping of Books

   53

Section 7.8

 

Maintenance of Properties, Etc.

   54

Section 7.9

 

Application of Proceeds

   54

Section 7.10

 

Environmental

   54

Section 7.11

 

Additional Collateral and Guaranties

   54

Section 7.12

 

Non-Guarantor Subsidiaries

   55

Section 7.13

 

Real Property

   55

Section 7.14

 

Restricted Cash Collateral Account

   56

Section 7.15

 

Letters of Credit

   56

Article VIII

  Negative Covenants    56

Section 8.1

 

Indebtedness

   56

Section 8.2

 

Liens, Etc.

   57

Section 8.3

 

Investments

   58

Section 8.4

 

Sale of Assets

   59

Section 8.5

 

Restricted Payments

   60

Section 8.6

 

Prepayment and Cancellation of Indebtedness

   61

Section 8.7

 

Restriction on Fundamental Changes; Permitted Acquisitions

   61

Section 8.8

 

Change in Nature of Business

   61

Section 8.9

 

Transactions with Affiliates

   61

Section 8.10

 

Limitations on Restrictions on Subsidiary Distributions; No New Negative Pledge

   62

Section 8.11

 

Modification of Constituent Documents

   62

Section 8.12

 

Accounting Changes; Fiscal Year

   62

Section 8.13

 

Margin Regulations

   62

Section 8.14

 

Operating Leases; Sale/Leasebacks

   62

Section 8.15

 

No Speculative Transactions

   63

Section 8.16

 

Compliance with ERISA

   63

Section 8.17

 

Transfer of Principal Properties

   63

Section 8.18

 

Debt Reserve Collateral Account and Restricted Cash Collateral Account

   63

Article IX

  Events of Default    63

Section 9.1

 

Events of Default

   63

Section 9.2

 

Remedies

   65

 

iii


T ABLE OF C ONTENTS

(C ONTINUED )

 

Section 9.3

 

Actions in Respect of Letters of Credit

   65

Section 9.4

 

Rescission

   66

Article X

  The Administrative Agent    66

Section 10.1

 

Authorization and Action

   66

Section 10.2

 

Administrative Agent’s Reliance, Etc.

   67

Section 10.3

 

The Administrative Agent Individually

   67

Section 10.4

 

Issuer Credit Decision

   67

Section 10.5

 

Indemnification

   68

Section 10.6

 

Successor Administrative Agent

   68

Section 10.7

 

Concerning the Collateral and the Collateral Documents

   68

Article XI

  Miscellaneous    69

Section 11.1

 

Amendments, Waivers, Etc.

   69

Section 11.2

 

Assignments and Participations

   71

Section 11.3

 

Costs and Expenses

   72

Section 11.4

 

Indemnities

   73

Section 11.5

 

Limitation of Liability

   75

Section 11.6

 

Right of Set-off

   75

Section 11.7

 

Sharing of Payments, Etc.

   75

Section 11.8

 

Notices, Etc.

   76

Section 11.9

 

No Waiver; Remedies

   76

Section 11.10

 

Binding Effect

   77

Section 11.11

 

Governing Law

   77

Section 11.12

 

Submission to Jurisdiction; Service of Process

   77

Section 11.13

 

Waiver of Jury Trial

   78

Section 11.14

 

Marshaling; Payments Set Aside

   78

Section 11.15

 

Section Titles

   78

Section 11.16

 

Execution in Counterparts

   78

Section 11.17

 

Entire Agreement

   78

Section 11.18

 

Confidentiality

   79

 

iv


T ABLE OF C ONTENTS

(C ONTINUED )

 

Schedules

 

Schedule I

 

-

   L/C Commitments and L/C Exposures

Schedule II

 

-

   Addresses for Notices

Schedule III

 

-

   Non-Guarantor Subsidiaries

Schedule VI

 

-

   Permitted Vendor Indebtedness

Schedule VII

 

-

   Existing Public Debt

Schedule VIII

 

-

   Material Subsidiaries

Schedule IX

 

-

   Outstanding Reserves

Schedule 4.2

 

-

   Consents

Schedule 4.3

 

-

   Ownership of Subsidiaries

Schedule 4.7

 

-

   Litigation

Schedule 4.15

 

-

   Labor Matters

Schedule 4.16

 

-

   List of Plans

Schedule 4.17

 

-

   Environmental Matters

Schedule 4.21

 

-

   Deposit Accounts; Securities Accounts

Schedule 8.1

 

-

   Existing Indebtedness

Schedule 8.2

 

-

   Existing Liens

Schedule 8.3

 

-

   Existing Investments

Schedule 8.10

 

-

   Exceptions to Negative Pledge
E XHIBITS

Exhibit A

 

-

   Form of Assignment and Acceptance

Exhibit B

 

-

   Form of Letter of Credit Request

 

v


L ETTER OF C REDIT A GREEMENT dated as of October 21, 2002, among FMC C ORPORATION , a Delaware corporation (the “ Borrower ”), the Issuers (as defined below), and C ITICORP USA, I NC . (“ CUSA ”), as agent for the Issuers and as agent for the Secured Parties (as defined below) under the Collateral Documents (as defined below) (in such capacity, the “ Administrative Agent ”).

 

W I T N E S S E T H :

 

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

 

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

 

N OW , T HEREFORE , in consideration of the premises and the covenants and agreements contained herein, the parties hereto hereby agree as follows:

 

ARTICLE I

 

D EFINITIONS , I NTERPRETATION AND A CCOUNTING T ERMS

 

Section 1.1 Defined Terms

 

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

 

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

 

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

 

Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling or that is controlled by or is under common control with such Person, each officer, director, general partner or joint-venturer of such Person, and each Person that is the beneficial owner of 5% or more of any class of Voting Stock of such Person. For the purposes of this definition, “ control ” means the possession of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

 

Agreement ” means this Letter of Credit Agreement.

 

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

 

Applicable Unused Commitment Fee Rate ” means, (a) during the period commencing on the Closing Date and ending on March 31, 2003, a rate equal to 0.50% per annum and (b) thereafter, as of any date of determination, a per annum rate equal to the rate set forth below opposite the then applicable Leverage Ratio (determined on the last day of the most recent Fiscal Quarter, for which Financial Statements have been delivered pursuant to Section 6.1(a) or (b) (Financial Statements) ) set forth below:

 

L EVERAGE R ATIO


  

A PPLICABLE  U NUSED  C OMMITMENT

F EE R ATE


Greater than or equal to 4 to 1

   0.75%

Less than 4 to 1

   0.50%

 


L/C A GREEMENT

FMC C ORPORATION

 

Changes in the Applicable Unused Commitment Fee Rate resulting from a change in the Leverage Ratio on the last day of any subsequent Fiscal Quarter shall become effective on the date of the delivery by the Borrower to the Administrative Agent of new Financial Statements pursuant to Section 6.1(a) or (b) (Financial Statements) , as applicable. Notwithstanding anything to the contrary set forth in this Agreement (including the then effective Leverage Ratio), if the Borrower shall fail to deliver such Financial Statements within any of the time periods specified in Section 6.1(a) or (b) (Financial Statements) , the Applicable Unused Commitment Fee Rate from and including the 46 th day after the end of such Fiscal Quarter or the 91 st day after the end of such Fiscal Year, as the case may be, to but not including the date the Borrower delivers to the Administrative Agent such Financial Statements shall conclusively equal the highest possible Applicable Unused Commitment Fee Rate provided for in this definition.

 

Approved Deposit Account ” has the meaning specified in the Bank Security Agreement.

 

Approved Securities Intermediary ” means a securities intermediary or commodity intermediary selected or approved by the Administrative Agent and with respect to which a Credit Party has delivered to the Administrative Agent an executed Control Account Agreement.

 

Asset Sale ” has the meaning specified in Section 8.4 (Sale of Assets).

 

Assignment and Acceptance ” means an assignment and acceptance entered into by an Issuer and an Eligible Assignee, and accepted by the Administrative Agent, in substantially the form of Exhibit A (Form of Assignment and Acceptance) .

 

Astaris ” means, Astaris LLC, a Delaware limited liability company.

 

Astaris Indemnification Agreement ” means the agreement, dated October 5, 2001, among the Borrower, Solutia Inc., Astaris Production LLC, Astaris Idaho LLC and Astaris, as such agreement may be modified, amended, restated or replaced; provided that the terms of any such modification, amendment, restatement or replacement after the Closing Date do not materially increase the Borrower’s or any Subsidiary of the Borrower’s obligations thereunder and such terms (including as to tenor) are no more onerous from a financial perspective, taken as a whole, to the Borrower and its Subsidiaries.

 

Astaris Power Payment ” means, collectively, payments by the Borrower made with respect to the “Idaho Power Termination Amount” as defined in and pursuant to the Astaris Indemnification Agreement in an aggregate amount after the Closing Date not to exceed $10,400,000.

 

Astaris Secured Payments ” means, the keepwell payments required to be made by the Borrower to Astaris pursuant to that certain Guaranty Agreement dated as of September 14, 2000, as in effect on the date hereof, by the Borrower in favor of Astaris and the lenders under a credit agreement in connection therewith.

 

Bank Security Agreement ” has the meaning specified in the Credit Agreement.

 

Bankruptcy Code ” means title 11, United States Code.

 

2


L/C A GREEMENT

FMC C ORPORATION

 

Banks’ Collateral ” has the meaning specified in the Bank Security Agreement.

 

Base Rate ” means a fluctuating interest rate per annum as shall be in effect from time to time, which rate per annum shall be equal at all times to the highest of the following:

 

(a) the rate of interest announced publicly by Citibank in New York, New York, from time to time, as Citibank’s base rate;

 

(b) the sum (adjusted to the nearest 0.25% or, if there is no nearest 0.25%, to the next higher 0.25%) of (i) 0.5% per annum , (ii) the rate per annum obtained by dividing (A) the latest three-week moving average of secondary market morning offering rates in the United States for three-month certificates of deposit of major United States money market banks, such three-week moving average being determined weekly on each Monday (or, if any such day is not a Business Day, on the next succeeding Business Day) for the three-week period ending on the previous Friday by Citibank on the basis of such rates reported by certificate of deposit dealers to and published by the Federal Reserve Bank of New York or, if such publication shall be suspended or terminated, on the basis of quotations for such rates received by Citibank from three New York certificate of deposit dealers of recognized standing selected by Citibank, by (B) a percentage equal to 100% minus the average of the daily percentages specified during such three-week period by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) for Citibank in respect of liabilities consisting of or including (among other liabilities) three-month U.S. dollar nonpersonal time deposits in the United States and (iii) the average during such three-week period of the maximum annual assessment rates estimated by Citibank for determining the then current annual assessment payable by Citibank to the Federal Deposit Insurance Corporation (or any successor) for insuring Dollar deposits in the United States; and

 

(c) 0.5% per annum plus the Federal Funds Rate.

 

Base Rate Loan ” has the meaning assigned to such term in the Credit Agreement.

 

Blockage Notice ” has the meaning specified in each Deposit Account Control Agreement.

 

BofA ” means Bank of America, N.A., a national banking association.

 

Bonds ” means, collectively, (i) the Industrial Revenue Bonds issued by the Erie County Industrial Development Agency and maturing on February 1, 2003 and (ii) the Industrial Revenue Bonds issued by Lincoln County, Wyoming and maturing on November 1, 2003, in each case of the Borrower.

 

Borrower ” has the meaning specified in the preamble to this Agreement.

 

Borrower’s Accountants ” means KPMG LLP or other independent nationally-recognized public accountants acceptable to the Administrative Agent.

 

Business Day ” means a day of the year on which banks are not required or authorized to close in New York City and, if the applicable Business Day relates to notices, determinations, fundings and payments in connection with the Eurodollar Rate or any Eurodollar Rate Loans, a day on which dealings in Dollar deposits are also carried on in the London interbank market.

 

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Capital Expenditures ” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capital Leases but excluding any amount representing capitalized interest) by the Borrower and its Subsidiaries during that period that, in conformity with GAAP, are or are required to be included in the property, plant or equipment reflected in the Consolidated balance sheet of the Borrower and its Subsidiaries; provided that (i) the 2003 earn-out payment in respect of TG Soda Ash pursuant to the TG Soda Ash Agreement and any true-up payments made in respect of such payment or in respect of other payments made pursuant to the TG Soda Ash Agreement prior to 2004, (ii) any Like Kind Exchange, (iii) any portion of any Reinvestment Deferred Amount actually reinvested pursuant to Section 2.8(e) of the Credit Agreement and (iv) any Permitted Acquisition (to the extent such Permitted Acquisition (A) is permitted by Section 8.7 and (B) would constitute a Capital Expenditure) shall not be considered a Capital Expenditure.

 

Capital Lease ” means, with respect to any Person, any lease of, or other arrangement conveying the right to use, property by such Person as lessee that would be accounted for as a capital lease on a balance sheet of such Person prepared in conformity with GAAP.

 

Capital Lease Obligations ” means, with respect to any Person, the capitalized amount of all Consolidated obligations of such Person or any of its Subsidiaries under Capital Leases.

 

Cash Collateral Account ” has the meaning specified in the Bank Security Agreement.

 

Cash Equivalents ” means (a) securities issued or fully guaranteed or insured by the United States government or any agency thereof, (b) certificates of deposit, eurodollar time deposits, overnight bank deposits and bankers’ acceptances of any Issuer or any commercial bank organized under the laws of the United States, any state thereof, the District of Columbia, any foreign bank, or its branches or agencies (fully protected against currency fluctuations) that, at the time of acquisition, are rated at least “ A-1 ” by S&P or “ P-1 ” by Moody’s, (c) commercial paper of an issuer rated at least “ A-1 ” by S&P or “ P-1 ” by Moody’s and (d) shares of any money market fund that (i) has at least 95% of its assets invested continuously in the types of investments referred to in clauses (a) , (b) and (c) above, (ii) has net assets of not less than $500,000,000 and (iii) is rated at least “ A-1 ” by S&P or “ P-1 ” by Moody’s; provided , however , that the maturities of all obligations of the type specified in clauses (a) , (b) and (c) above shall not exceed 180 days.

 

Cash Management Obligation ” has the meaning specified in the Credit Agreement.

 

Change of Control ” means the occurrence of any of the following: (a) any Person or group of Persons (within the meaning of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Securities Exchange Act of 1934, as amended) of 20% or more of the issued and outstanding Voting Stock of the Borrower, (b) during any period of twenty-four (24) consecutive calendar months, individuals who at the beginning of such period constituted the board of directors of the Borrower (together with any new directors whose election by the board of directors of the Borrower or whose nomination for election by the stockholders of the Borrower was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of such period or whose elections or nomination for election was previously so approved) cease for any reason other than death or disability to constitute a majority of the directors then in office or (c) any “ Change of Control ” under and as defined in the Senior Secured Notes.

 

Citibank ” means Citibank, N.A., a national banking association.

 

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Closing Date ” means October 21, 2002.

 

Code ” means the Internal Revenue Code of 1986, as amended.

 

Collateral ” means all property and interests in property and proceeds thereof now owned or hereafter acquired by any Credit Party in or upon which a Lien is granted under any Collateral Document.

 

Collateral Documents ” means the Bank Security Agreement, the Shared Collateral Security Agreement, the Collateral Trust Agreement, the Restricted Cash Collateral Account Agreement, the Debt Reserve Account Agreement, each Foreign Pledge Agreement, the Sharing Agreement, the Mortgages, the Deposit Account Control Agreements and any other document executed and delivered by a Credit Party granting a Lien or purporting to grant a Lien on any of its property to secure payment of the Secured Obligations.

 

Collateral Trust Agreement ” has the meaning specified in the Credit Agreement.

 

Collateral Trustee ” means Citibank, N.A. in its capacity as collateral agent for the secured parties under the Collateral Trust Agreement.

 

Commitment Reduction ” has the meaning specified in Section 2.2(b) .

 

Compliance Certificate ” has the meaning specified in Section 6.1(c) (Financial Statements).

 

Consolidated ” means, with respect to any Person, the consolidation of accounts of such Person and its Subsidiaries in accordance with GAAP.

 

Consolidated Current Assets ” means, with respect to any Person at any date, the total Consolidated current assets (other than cash and Cash Equivalents) of such Person and its Subsidiaries at such date.

 

Consolidated Current Liabilities ” means, with respect to any Person at any date, all liabilities of such Person and its Subsidiaries at such date that should be classified as current liabilities on a Consolidated balance sheet of such Person and its Subsidiaries, but excluding, in the case of the Borrower, the sum of (a) the principal amount of any current portion of long-term Financial Covenant Debt and (b) (without duplication of clause (a) above) the then outstanding principal amount of the Loans.

 

Consolidated Indebtedness ” means at any date the total Indebtedness of the Borrower and its Subsidiaries on a Consolidated basis, determined as of such date.

 

Consolidated Interest Expense ” means, for the Borrower and its Subsidiaries on a Consolidated basis for any period, total interest expense for such period determined on a Consolidated basis in conformity with GAAP and including, in any event, the amortization of debt discount and premium, the portion of any payments due under any Capitalized Lease Obligation or other obligation allocable to interest expense and the implied interest component under any securitization programs of the Borrower.

 

Consolidated Net Income ” means, for any period, the sum of net income (or loss) for such period of the Borrower and its Subsidiaries determined on a Consolidated basis in accordance with

 

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GAAP, but excluding: (a) any income of any Person if such Person is not a Subsidiary of the Borrower, except that the Borrower’s equity in the net income of any such Person for such period shall be included in such net income up to the aggregate amount of cash actually distributed by such Person during such period to the Borrower or a Subsidiary of the Borrower as a dividend or other distribution; (b) the income (or loss) of any Person accrued prior to the date it became a Subsidiary of the Borrower or is merged into or consolidated with the Borrower or such Person’s assets are acquired by the Borrower or any of its Subsidiaries; and (c) the income of any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of that income is prohibited by operation of the terms of its charter or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable to such Subsidiary.

 

Constituent Documents ” means, with respect to any Person, (a) the articles of incorporation, certificate of incorporation or certificate of formation (or the equivalent organizational documents) of such Person, (b) the by-laws, operating agreement (or the equivalent governing documents) of such Person and (c) any document setting forth the manner of election and duties of the directors or managing members of such Person (if any) and the designation, amount or relative rights, limitations and preferences of any class or series of such Person’s Stock.

 

Contaminant ” means any material, substance or waste that is classified, regulated or otherwise characterized under any Environmental Law as hazardous, toxic, a contaminant or a pollutant or by other words of similar meaning or regulatory effect, including any petroleum or petroleum-derived substance or waste, asbestos and polychlorinated biphenyls.

 

Contractual Obligation ” of any Person means any obligation, agreement, undertaking or similar provision of any Security issued by such Person or of any agreement, undertaking, contract, lease, indenture, mortgage, deed of trust or other instrument (excluding a Credit Document) to which such Person is a party or by which it or any of its property is bound or to which any of its property is subject.

 

Control Account ” means a securities account or commodity account that is the subject of an effective Control Account Agreement and that is maintained by any Credit Party 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 ” has the meaning specified in the Bank Security Agreement.

 

Credit Agreement ” means that certain credit agreement dated as of October 21, 2002, among the Borrower, the lenders and issuers and other financial institutions party thereto and Citicorp USA, Inc., as administrative agent.

 

Credit Documents ” means, collectively, this Agreement, the U.S. Subsidiary Guaranty, the Parent Guaranty, each Letter of Credit Reimbursement Agreement, the Collateral Documents and each certificate, agreement or document executed by a Credit Party and delivered to the Administrative Agent or any Issuer in connection with or pursuant to any of the foregoing.

 

Credit Party ” means each of the Borrower, each Guarantor and each other Subsidiary of the Borrower that executes and delivers a Credit Document (other than any Foreign Subsidiary that executes a Foreign Pledge Agreement in respect of such Foreign Subsidiary’s Stock).

 

CUSA ” has the meaning specified in the preamble to this Agreement.

 

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Customary Permitted Liens ” means, with respect to any Person, any of the following Liens:

 

(a) Liens for taxes, assessments, governmental charges, claims or levies in each case that are not yet due or that are being contested in good faith by appropriate proceedings and with respect to which adequate reserves (in the good faith judgment of the management of the respective Person) have been established;

 

(b) Liens of landlords, liens in favor of utilities and liens of suppliers, mechanics, carriers, materialmen, warehousemen or workmen and other liens imposed by law or contract which were incurred in the ordinary course of business and (i) which secure amounts not yet due or (ii)(A) which do not in the aggregate materially detract from the value of such property (other than immaterial property) or materially impair the use thereof in the operation of the business of any Person or (B) which Liens (or the amounts secured thereby) are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property subject to such Lien;

 

(c) Liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other types of social security benefits or to secure the performance of trade contracts, bids, tenders, statutory and regulatory obligations, sales, contracts (other than for the repayment of borrowed money), appeal bonds, leases, government contracts or customs bonds and other similar obligations incurred in the ordinary course of business;

 

(d) encumbrances arising by reason of zoning restrictions, easements, licenses, reservations, covenants, rights-of-way, utility easements, building restrictions and other similar encumbrances on the use of real property not materially detracting from the value of such real property or not materially interfering with the ordinary conduct of the business conducted and proposed to be conducted at such real property;

 

(e) encumbrances, easements, rights-of-way, restrictions, minor defects or irregularities in title and other similar charges or encumbrances not interfering in any material respect with the ordinary conduct of the business of any Person;

 

(f) encumbrances arising under leases or subleases of real property that do not, in the aggregate, materially detract from the value of such real property or interfere with the ordinary conduct of the business conducted at such real property;

 

(g) financing statements with respect to a lessor’s rights in and to personal property leased to such Person in the ordinary course of such Person’s business;

 

(h) Liens arising from judgments, decrees or attachments and Liens securing appeal bonds arising from judgments, in each case in circumstances not constituting an Event of Default, provided that no cash or property is deposited or delivered to secure any such judgment or award;

 

(i) Liens on tangible property of a Person or a business that are existing at the time such Person or business is acquired pursuant to a Permitted Acquisition, provided that (i) such Liens were not placed on such property in contemplation of the consummation of the acquisition and do not extend to any property other than those of the Person or the business so acquired (and proceeds and products of any of the foregoing), and (ii) the aggregate Indebtedness secured by all Liens permitted by this clause (i) is permitted by Section 8.1 ;

 

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(j) Liens encumbering goods under production and arising from progress or partial payments by the Borrower or any Subsidiary relating to the underlying goods;

 

(k) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Borrower or any Subsidiary in the ordinary course of business;

 

(l) Liens under ERISA to the extent the creation thereof would not breach the representation made in Section 4.16 if made immediately after such creation;

 

(m) deposits or pledges in connection with the entry into or performance of agreements entered into to effect Permitted Acquisitions in an aggregate amount for all such deposits and pledges not to exceed $1,000,000 plus the aggregate of such deposits or pledges returned to Borrower or any Subsidiary or actually applied against the purchase price paid in respect of such Permitted Acquisition;

 

(n) Liens on any proceeds (including, without limitation, insurance, condemnation and eminent domain proceeds) or products of any property, a lien over which is a Lien permitted by Section 8.2 ; and

 

(o) any exception to title set forth in the title insurance policy or title commitment with respect to any property of the Borrower or any Subsidiary Guarantor with respect to which a Mortgage has been executed.

 

Debt Reserve Account ” means Account No. 104479 established by the Borrower with Citibank in which cash and Cash Equivalents may from time to time be on deposit or held therein, and the proceeds of which shall be used solely for (x) the redemption or repurchase of the Specified Debt, (y) after the Specified Debt has been repaid in full, the redemption or repurchase of Indebtedness permitted under Section 8.6(b)(vi) and (z) the purposes specified in Section 2.3(a) .

 

Debt Reserve Account Agreement ” has the meaning specified in the Credit Agreement.

 

Default ” means any event that, with the passing of time or the giving of notice or both, would become an Event of Default.

 

Deposit Account ” has the meaning specified in the Bank Security Agreement.

 

Deposit Account Bank ” has the meaning specified in the Bank Security Agreement.

 

Deposit Account Control Agreement ” has the meaning specified in the Bank Security Agreement.

 

Disclosure Documents ” means, collectively, (i) the confidential information memorandum and related materials prepared in connection with the syndication of the loans under the Credit Agreement and (ii) the Offering Memorandum dated October 9, 2002 prepared by the Borrower in connection with the issuance and sale of the Senior Secured Notes.

 

Disqualified Stock ” means with respect to any Person, any Stock that, by its terms (or by the terms of any Security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or

 

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otherwise, or is exchangeable for Indebtedness of such Person, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the Scheduled Termination Date.

 

Documentary Letter of Credit ” means any letter of credit that is drawable upon presentation of documents evidencing the sale or shipment of goods purchased by the Borrower or any of its Subsidiaries in the ordinary course of its business.

 

Dollar Equivalent ” of any amount means, at the time of determination thereof, (a) if such amount is expressed in Dollars, such amount, (b) if such amount is expressed in an Alternate Currency, the equivalent of such amount in Dollars determined by using the rate of exchange quoted by Citibank in New York, New York at 11:00 a.m. (New York time) on the date of determination to prime banks in New York for the spot purchase in the New York foreign exchange market of such amount of Dollars with such Alternate Currency and (c) if such amount is denominated in any other currency, the equivalent of such amount in Dollars as determined by the Administrative Agent using any method of determination it deems appropriate.

 

Dollars ” and the sign “ $ ” each mean the lawful money of the United States of America.

 

Domestic Subsidiary ” means any Subsidiary of the Borrower organized under the laws of any state of the United States of America or the District of Columbia.

 

EBITDA ” means, for any period, Consolidated Net Income for such period, plus , without duplication and to the extent deducted from revenues in determining Consolidated Net Income for such period, the sum of (a) the aggregate amount of Consolidated Interest Expense for such period, (b) the aggregate amount of income and franchise tax expense for such period, (c) all amounts attributable to depreciation and amortization for such period, (d) all non-recurring non-cash charges during such period (other than any non-cash item of expense requiring an accrual or reserve for future cash expense) and minus , without duplication and to the extent added to revenues in determining Consolidated Net Income for such period, all non-recurring non-cash gains during such period, all as determined on a consolidated basis with respect to the Borrower and its Subsidiaries in accordance with GAAP on the last day of such period.

 

Eligible Assignee ” means (A) an Issuer or (B) a commercial bank having total assets in excess of $5,000,000,000.

 

Environmental Laws ” means all applicable Requirements of Law now or hereafter in effect and as amended or supplemented from time to time, relating to pollution or the regulation and protection of human health, safety, the environment or natural resources, including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. § 9601 et seq. ); the Hazardous Material Transportation Act, as amended (49 U.S.C. § 1801 et seq. ); the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. § 136 et seq. ); the Resource Conservation and Recovery Act, as amended (42 U.S.C. § 6901 et seq. ); the Toxic Substance Control Act, as amended (42 U.S.C. § 7401 et seq. ); the Clean Air Act, as amended (42 U.S.C. § 740 et seq. ); the Federal Water Pollution Control Act, as amended (33 U.S.C. § 1251 et seq. ); the Occupational Safety and Health Act, as amended (29 U.S.C. § 651 et seq. ); the Safe Drinking Water Act, as amended (42 U.S.C. § 300f et seq. ); and each of their state and local counterparts or equivalents and any transfer of ownership notification or approval statute, including the Industrial Site Recovery Act (N.J. Stat. Ann. § 13:1K-6 et seq. ).

 

Environmental Liabilities and Costs ” means, with respect to any Person, all liabilities, obligations, responsibilities, Remedial Actions, losses, damages, punitive damages, consequential

 

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damages, treble damages, costs and expenses (including all fees, disbursements and expenses of counsel, experts and consultants and costs of investigation and feasibility studies), fines, penalties, sanctions and interest incurred as a result of any claim or demand by any other Person, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute and whether arising under any Environmental Law, Permit, order or agreement with any Governmental Authority or other Person, in each case relating to any environmental, health or safety condition or to any Release or threatened Release and resulting from the past, present or future operations of, or ownership of property by, such Person or any of its Subsidiaries.

 

Environmental Lien ” means any Lien in favor of any Governmental Authority for Environmental Liabilities and Costs.

 

Equity Issuance ” means (x) the issue or sale of any Stock of the Borrower or any Subsidiary of the Borrower by the Borrower or any Subsidiary of the Borrower to any Person other than the Borrower or any Subsidiary of the Borrower or (y) the receipt by the Borrower of any capital contributions.

 

ERISA ” means the Employee Retirement Income Security Act of 1974.

 

ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control or treated as a single employer with the Borrower or any of its Subsidiaries within the meaning of Section 414(b), (c), (m) or (o) of the Code.

 

ERISA Event ” means (a) a reportable event described in Section 4043(b) or 4043(c)(1), (2), (3), (5), (6), (8) or (9) of ERISA with respect to a Title IV Plan or a Multiemployer Plan, (b) the withdrawal of the Borrower, any of its Subsidiaries or any ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA, (c) the complete or partial withdrawal of the Borrower, any of its Subsidiaries or any ERISA Affiliate from any Multiemployer Plan, (d) notice of reorganization or insolvency of a Multiemployer Plan, (e) the filing of a notice of intent to terminate a Title IV Plan or the treatment of a plan amendment as a termination under Section 4041 of ERISA, (f) the institution of proceedings to terminate a Title IV Plan or Multiemployer Plan by the PBGC, (g) the failure to make any required contribution to a Title IV Plan or Multiemployer Plan, (h) the imposition of a lien under Section 412 of the Code or Section 302 of ERISA on the Borrower or any of its Subsidiaries or any ERISA Affiliate or (i) any other event or condition that might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan or the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA.

 

Eurodollar Rate Loan ” has the meaning assigned to such term in the Credit Agreement.

 

Event of Default ” has the meaning specified in Section 9.1 (Events of Default) .

 

Excess Cash Flow ” means, for the Borrower and its Subsidiaries for any period, (a) the sum, without duplication, of (i) EBITDA for such period; provided that for purposes hereof, EBITDA shall not be calculated on a pro forma basis with respect to any Permitted Acquisitions made within the last twelve (12) months, (ii) extraordinary or non-recurring cash receipts of the Borrower and its Subsidiaries, if any, during such period and not included in EBITDA, (iii) reductions to non-cash working capital of the Borrower and its Subsidiaries for such period ( i.e ., the decrease, if any, in Consolidated Current Assets minus Consolidated Current Liabilities from the beginning to the end of such period), (iv) repayments to the Borrower of intercompany loans made by the Borrower to any Foreign Subsidiaries

 

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to the extent included in clause (iv) below, and (v) provisions taken for environmental remediation, pensions and post employment benefits related to discontinued businesses, in each case to the extent such provisions result in the reduction of EBITDA, minus (b) the sum, without duplication, of (i) the amount of any cash income and franchise taxes payable by the Borrower and its Subsidiaries with respect to such period, (ii) cash interest paid by the Borrower and its Subsidiaries during such period, (iii) Capital Expenditures committed or made in cash in accordance with Section 5.4 during such period (and not deducted from Excess Cash Flow in any prior year), (iv) principal repayments permitted by Section 8.6 and optional prepayments (to the extent such optional prepayments are made from Internally Generated Funds) of Indebtedness made by the Borrower and its Subsidiaries during such period (other than repayments or prepayments of intercompany loans); provided that, with respect to payments of Revolving Loans under the Credit Agreement, such payments shall only be included in this clause (iv) to the extent that such payment is accompanied by a simultaneous reduction of the commitments of the lenders thereunder to make such Revolving Loans), (v) Investments permitted under Section 8.3(i) or (j) , (vi) extraordinary or non-recurring expenses and losses to the extent paid in cash by the Borrower and its Subsidiaries, if any, during such period and not included in EBITDA, (vii) additions to non-cash working capital for such period ( i.e ., the increase, if any, in Consolidated Current Assets minus Consolidated Current Liabilities from the beginning to the end of such period), (viii) phosphorus restructuring cash payments not to exceed in the aggregate the amount of the outstanding reserves as of September 30, 2002, as set forth on Schedule IX hereto, (ix) the Astaris Secured Payments and the Astaris Power Payment, (x) the 2003 earn-out payment in respect of TG Soda Ash pursuant to the TG Soda Ash Agreement and any true-up payments made in respect of such payment or in respect of other payments made pursuant to the TG Soda Ash Agreement prior to 2004, (xi) expenditures (net of recoveries) in respect of environmental remediation (other than as set forth in clause (viii) above) not to exceed $125,000,000 in the aggregate for the five Fiscal Year period ending December 31, 2007, and (xii) payments for post employment benefits related to discontinued businesses and contributions to pensions; provided that, to the extent otherwise included herein, the Net Cash Proceeds of Asset Sales, Property Loss Events, issuances of Indebtedness described in clauses (a) and (b) of the definition of “ Indebtedness ” and Equity Issuances shall be excluded from the calculation of Excess Cash Flow.

 

Existing Agent ” means Citibank, N.A. in its capacity as administrative agent under the Existing Credit Agreements.

 

Existing Credit Agreements ” means, collectively, (i) the 364-Day Credit Agreement dated as of December 6, 2001, among the Borrower, the institutions party thereto as lenders and the Existing Agent and (ii) the Credit Agreement dated as of January 31, 2002, as amended, among the Borrower, the institutions party thereto as lenders and the Existing Agent.

 

Existing Indebtedness ” means Indebtedness of the Borrower and its Subsidiaries in existence on the Closing Date (other than Indebtedness in respect of Foreign Credit Lines) and disclosed on Schedule 8.1 (Existing Indebtedness) .

 

Existing Letters of Credit ” means, collectively, (i) the letter of credit for the account of the Borrower in favor of the New York State Department of Energy Conservation in the amount of $6,060,265 and (ii) the letter of credit for the account of the Borrower in favor of EPA Region 10 in the amount of $16,036,600, in each case issued by Citibank prior to the Closing Date.

 

Existing Public Debt ” means each of the indentures and other Indebtedness of the Borrower listed on Schedule VII .

 

Fair Market Value ” means (a) with respect to any asset or group of assets (other than a marketable Security) at any date, the value of the consideration obtainable in a sale of such asset at such

 

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date assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset, as reasonably determined, in the case of any Asset Sale in excess of $5,000,000, by the Board of Directors of the Borrower or a Subsidiary of the Borrower, as the case may be, or, if such asset shall have been the subject of a relatively contemporaneous appraisal by an independent third party appraiser, the basic assumptions underlying which have not materially changed since its date, the value set forth in such appraisal and (b) with respect to any marketable Security at any date, the closing sale price of such Security on the Business Day next preceding such date, as appearing in any published list of any national securities exchange or the NASDAQ Stock Market or, if there is no such closing sale price of such Security, the final price for the purchase of such Security at face value quoted on such Business Day by a financial institution of recognized standing regularly dealing in securities of such type and selected by the Administrative Agent.

 

Federal Funds Rate ” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

 

Federal Reserve Board ” means the Board of Governors of the United States Federal Reserve System, or any successor thereto.

 

Financial Covenant Debt ” of any Person means Indebtedness of the type specified in clauses (a) , (b) , (c) , (d) , (e) , (f) , (g) and (h) of the definition of “ Indebtedness ”; provided that in the case of clause (c) , such obligations shall be included in this definition of Financial Covenant Debt only to the extent such obligations are in respect of unreimbursed drawings under letters of credit or the guarantees referred to in clause (b) of the definition of “ Permitted Vendor Indebtedness ”; and provided further , that, in the case of a guaranty of any obligation to Astaris under clause (g) , such obligations shall be included in this definition of Financial Covenant Debt only to the extent that any such obligation is due and payable on the date on which any calculation of Financial Covenant Debt is made.

 

Financial Statements ” means the financial statements of the Borrower and its Subsidiaries delivered in accordance with Sections 4.4 (Financial Statements) and 6.1 (Financial Statements).

 

Fiscal Quarter ” means each of the three month periods ending on March 31, June 30, September 30 and December 31.

 

Fiscal Year ” means the twelve month period ending on December 31.

 

FMC Wyoming ” means FMC Wyoming Corporation, a Delaware corporation.

 

FMC Wyoming Agreement ” means that certain Joint Venture Agreement dated June 30, 1995, by and among the Borrower, FMC Wyoming, Nippon Sheet Glass Co., Ltd. and Sumitomo Corporation, as amended through the date hereof.

 

FMC’s Business ” means the business of developing, manufacturing and/or selling, and providing research and development, marketing and/or other services and support for, chemical-based and

 

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formulated products and related organic and inorganic materials and any business reasonably related, incidental, complementary or ancillary thereto.

 

Foreign Borrower ” means each Foreign Subsidiary owing obligations pursuant to (i) any Foreign Credit Line or (ii) Hedging Contracts and Cash Management Obligations that are otherwise guaranteed by the Borrower.

 

Foreign Credit Line ” means a credit facility or similar credit arrangement (including any arrangement in connection with Permitted Vendor Indebtedness) made available by a financial institution to Foreign Subsidiaries or their customers, as applicable.

 

Foreign Subsidiary ” means any Subsidiary of the Borrower that is not a Domestic Subsidiary.

 

Foreign Pledge Agreements ” means each of the foreign pledge and/or security agreements delivered pursuant to the Credit Agreement.

 

Fund ” means any Person (other than a natural Person) that is or will be engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

 

GAAP ” means generally accepted accounting principles in the United States of America as in effect from time to time set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and the statements and pronouncements of the Financial Accounting Standards Board, or in such other statements by such other entity as may be in general use by significant segments of the accounting profession, that are applicable to the circumstances as of the date of determination.

 

Governmental Authority ” means any nation, sovereign or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any central bank.

 

Guarantor ” means the Borrower (with respect to the Parent Guaranty) and each Subsidiary Guarantor.

 

Guaranty ” means each of the Parent Guaranty and the U.S. Subsidiary Guaranty.

 

Guaranty Obligation ” means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of such Person with respect to any Indebtedness of another Person, if the purpose or intent of such Person in incurring the Guaranty Obligation is to provide assurance to the obligee of such Indebtedness that such Indebtedness will be paid or discharged, or that any agreement relating thereto will be complied with, or that any holder of such Indebtedness will be protected (in whole or in part) against loss in respect thereof, including (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of Indebtedness of another Person and (b) any liability of such Person for Indebtedness of another Person through any agreement (contingent or otherwise) (i) to purchase, repurchase or otherwise acquire such Indebtedness or any security therefor, or to provide funds for the payment or discharge of such Indebtedness (whether in the form of a loan, advance, stock purchase, capital contribution or otherwise), (ii) to maintain the solvency or any balance sheet item, level of income or financial condition of another Person, (iii) to make take-or-pay or similar payments outside of the ordinary course of business, if required, regardless of non-performance by any other party or parties to an

 

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agreement, (iv) to purchase, sell or lease (as lessor or lessee) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Indebtedness or to assure the holder of such Indebtedness against loss or (v) to supply funds to, or in any other manner invest in, such other Person (including to pay for property or services irrespective of whether such property is received or such services are rendered), if in the case of any agreement described under clause (b)(i) , (ii) , (iii) , (iv) or (v) above the primary purpose or intent thereof is to provide assurance that Indebtedness of another Person will be paid or discharged, that any agreement relating thereto will be complied with or that any holder of such Indebtedness will be protected (in whole or in part) against loss in respect thereof. The amount of any Guaranty Obligation shall be equal to the amount of the Indebtedness so guaranteed or otherwise supported.

 

Hedging Contracts ” means all Interest Rate Contracts, foreign exchange contracts, currency swap or option agreements, forward contracts, commodity swap, purchase or option agreements, other commodity price hedging arrangements, and all other similar agreements or arrangements designed to alter the risks of any Person arising from fluctuations in interest rates, currency values or commodity prices.

 

Indebtedness ” of any Person means without duplication (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person evidenced by notes, bonds, debentures or similar instruments or that bear interest, (c) all reimbursement and all obligations with respect to letters of credit, bankers’ acceptances, surety bonds and performance bonds, whether or not matured, (d) all indebtedness for the deferred purchase price of property or services, other than trade payables incurred in the ordinary course of business that are not overdue, (e) all indebtedness of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (f) all Capital Lease Obligations of such Person and the present value of future rental payments under all synthetic leases, (g) all Guaranty Obligations of such Person, (h) all obligations of such Person to purchase, redeem, retire, defease or otherwise acquire for value any Stock or Stock Equivalents of such Person, valued, in the case of redeemable preferred stock, at the greater of its voluntary liquidation preference and its involuntary liquidation preference plus accrued and unpaid dividends, (i) all payments that such Person would have to make in the event of an early termination on the date Indebtedness of such Person is being determined in respect of Hedging Contracts of such Person and (j) all Indebtedness of the type referred to above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and general intangibles) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness.

 

“Indemnified Matter” has the meaning specified in Section 11.4 (Indemnities) .

 

“Indemnitee” has the meaning specified in Section 11.4 (Indemnities) .

 

Indenture ” means the Indenture, dated as of October 21, 2002, among the Borrower, the Subsidiary Guarantors and Wachovia, as trustee.

 

Indenture Trustee ” means Wachovia, as successor to Harris Trust and Savings Bank, an Illinois banking corporation, and any further successor, as trustee under (i) the Indenture dated as of April 1, 1992 and (ii) the Indenture dated as of July 1, 1996, in each case entered into with the Borrower.

 

Interest Coverage Ratio ” means, with respect to the Borrower and its Subsidiaries on a Consolidated basis for any period, the ratio of EBITDA for such period to Net Consolidated Interest Expense for such period.

 

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Interest Income ” means, for the Borrower and its Subsidiaries on a Consolidated basis for any period, total interest income for such period on a Consolidated basis in conformity with GAAP.

 

Interest Rate Contracts ” means all interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and interest rate insurance.

 

Internally Generated Funds ” means all cash, income and other funds of the Borrower and its Subsidiaries other than proceeds of (i) insurance and condemnation policies, (ii) Asset Sales, (iii) sale and leaseback transactions, (iv) Equity Issuances and (v) issuances of Indebtedness of the type specified in clause (a) or (b) of the definition of “ Indebtedness ” by the Borrower or any of its Subsidiaries.

 

Investment ” means, with respect to any Person, (a) any purchase or other acquisition by such Person of (i) any Security issued by, (ii) a beneficial interest in any Security issued by, or (iii) any other equity ownership interest in, any other Person, (b) any purchase by such Person of all or a significant part of the assets of a business conducted by any other Person, or all or substantially all of the assets constituting the business of a division, branch or other unit operation of any other Person, (c) any loan, advance (other than deposits with financial institutions available for withdrawal on demand, prepaid expenses, accounts receivable and similar items made or incurred in the ordinary course of business as presently conducted) or capital contribution by such Person to any other Person, including all Indebtedness of any other Person to such Person arising from a sale of property by such Person other than in the ordinary course of its business, and (d) any Guaranty Obligation incurred by such Person in respect of Indebtedness of any other Person.

 

Inventory ” has the meaning specified in each Pledge and Security Agreement.

 

IRB Obligations ” means the variable rate industrial and pollution control revenue bonds of the Borrower.

 

IRS ” means the Internal Revenue Service of the United States or any successor thereto.

 

Issue ” means, with respect to any Letter of Credit, to issue, extend the expiry of, renew or increase the maximum face amount (including by deleting or reducing any scheduled decrease in such maximum face amount) of, such Letter of Credit. The terms “ Issued ” and “ Issuance ” shall have a corresponding meaning.

 

Issuer ” means each financial institution that (a) is listed on the signature pages hereof as an “ Issuer ” or (b) from time to time becomes a party hereto by execution of an Assignment and Acceptance with the approval of the Administrative Agent.

 

L/C Commitment ” means, with respect to each Issuer, the commitment of such Issuer to issue Letters of Credit and acquire interests in other L/C Outstandings in the aggregate face amount outstanding not to exceed the amount set forth opposite such Issuer’s name on Schedule I ( L/C Commitments and L/C Exposures) , as such amount may be increased or reduced from time to time to reflect each Assignment and Acceptance executed by such Issuer and as such amount may be reduced pursuant to this Agreement.

 

“L/C Exposure ” of any Issuer means the sum of (i) the outstanding face amount of all Letters of Credit Issued by such Issuer, minus (ii) the face amount of all participations in such Letters of Credit purchased by the other Issuers pursuant to Section 2.1(g) , plus (iii) the face amount of all participations in Letters of Credit Issued by other Issuers purchased by such Issuer pursuant to Section

 

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2.1(g) . The initial L/C Exposure of each Issuer is set forth opposite such Issuer’s name on Schedule I (L/C Commitments and L/C Exposures ). The initial aggregate amount of the L/C Exposures of all Issuers shall not exceed $40,000,000.

 

L/C Facility ” means the L/C Commitments and the provisions herein related to the Letters of Credit.

 

L/C Outstandings ” means, at any particular time, the Letter of Credit Obligations outstanding at such time.

 

Leases ” means, with respect to any Person, all of those leasehold estates in real property of such Person, as lessee, as such may be amended, supplemented or otherwise modified from time to time.

 

Letter of Credit ” means any Standby Letter of Credit issued or deemed issued pursuant to Section 2.1 (Letters of Credit) .

 

Letter of Credit Obligations ” means, at any time, the aggregate of all liabilities at such time of the Borrower to all Issuers with respect to Letters of Credit, whether or not any such liability is contingent, including, without duplication, the sum of (a) the Reimbursement Obligations at such time and (b) the Letter of Credit Undrawn Amounts at such time.

 

“Letter of Credit Reimbursement Agreement” has the meaning specified in Section 2.1(e) (Letters of Credit) .

 

“Letter of Credit Request” has the meaning specified in Section 2.1(c) (Letters of Credit) .

 

Letter of Credit Undrawn Amounts ” means, at any time, the aggregate undrawn face amount of all Letters of Credit outstanding at such time.

 

Leverage Ratio ” means, with respect to the Borrower and its Subsidiaries on a Consolidated basis as of any date, the ratio of Net Debt as of such date to EBITDA for the last four Fiscal Quarters ending on or before such date.

 

Lien ” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, lien (statutory or other), security interest or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever intended to assure payment of any Indebtedness or the performance of any other obligation, including any conditional sale or other title retention agreement, the interest of a lessor under a Capital Lease and any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any financing statement under the UCC or comparable law of any jurisdiction naming the owner of the asset to which such Lien relates as debtor.

 

Like Kind Exchange ” means an Asset Sale of property for Fair Market Value to the extent that (a) the consideration received in exchange therefor consists of property of equivalent value that is useful in the conduct of the business of the Borrower and its Subsidiaries and (b) such Asset Sale qualifies for non-recognition treatment under Section 1031 of the Code; provided that no Like Kind Exchange shall be for all or substantially all of the assets of any Subsidiary of the Borrower.

 

Loans ” has the meaning assigned to such term in the Credit Agreement.

 

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Material Adverse Change ” means a material adverse change in any of (a) the condition (financial or otherwise), business, prospects, operations or properties of the Borrower and its Subsidiaries taken as a whole, (b) the legality, validity or enforceability of any Credit Document, (c) the perfection or priority of the Liens granted pursuant to the Collateral Documents, (d) the ability of the Borrower to repay the Obligations or of the other Credit Parties to perform their respective obligations under the Credit Documents or (e) the rights and remedies of the Administrative Agent or the Issuers under the Credit Documents.

 

Material Adverse Effect ” means an effect that results in or causes, or could reasonably be expected to result in or cause, a Material Adverse Change.

 

Material Real Property ” means (i) each Principal Property (as such term is defined in the indentures governing the Existing Public Debt) and (ii) each piece of real property of the Borrower or its Subsidiaries having a net book value of $2,500,000 or more.

 

Material Subsidiary ” means any Subsidiary of the Borrower from time to time in which the Borrower has an Investment, direct or indirect, of at least $10,000,000 (excluding Investments by such Subsidiary in other Subsidiaries in the form of Stock or Stock Equivalents), which Subsidiaries on the Closing Date are listed on Schedule VIII hereto.

 

Moody’s ” means Moody’s Investors Services, Inc.

 

Mortgages ” means the mortgages, deeds of trust or other real estate security documents made or required herein to be made by the Borrower or any other Credit Party.

 

Multiemployer Plan ” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the Borrower, any of its Subsidiaries or any ERISA Affiliate has any obligation or liability, contingent or otherwise.

 

Net Cash Proceeds ” means proceeds received by, (x) in the case of clauses (a) and (b) below, the Borrower or any of its Subsidiaries, and (y) in the case of clause (c) below, any Credit Party, in each case after the Closing Date in cash or Cash Equivalents from any (a) Asset Sale described in Section 8.4(h) , net of (i) the reasonable cash costs of sale, assignment or other disposition, (ii) taxes paid or reasonably estimated to be payable as a result thereof and (iii) any amount required to be paid or prepaid on Indebtedness (other than the Obligations) secured by the assets subject to such Asset Sale; provided , however , that evidence of each of (i) , (ii) and (iii) above is provided to the Administrative Agent in form and substance satisfactory to it, (b) Property Loss Event or (c) Equity Issuance (other than any such issuance of common Stock of the Borrower occurring in the ordinary course of business to any director, member of the management or employee of the Borrower or its Subsidiaries), net of brokers’ and advisors’ fees and other costs incurred in connection with such transaction; provided , however , that in the case of this clause (c) , evidence of such costs is provided to the Administrative Agent in form and substance satisfactory to it.

 

Net Consolidated Interest Expense ” means, for any period, Consolidated Interest Expense for such period less the sum of (x) amortization of debt discount and premium for such period and (y) Interest Income for such period.

 

Net Debt ” means, as of any date of determination, the aggregate amount of Financial Covenant Debt of the Borrower and its Subsidiaries as of such date less an amount equal to the sum of (i) aggregate amount held in the Debt Reserve Account and (ii) that portion of the aggregate amount held in the Restricted Cash Collateral Account designated to be applied solely to secure letters of credit

 

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supporting the IRB Obligations and amounts disbursed from the Restricted Cash Collateral Account actually used for such purpose, in each case as of such date.

 

Net Worth ” of any Person means, at any date, the stockholders’ equity that would be reflected on a Consolidated balance sheet of such Person and its Subsidiaries at such date prepared in conformity with GAAP (except, for the purposes hereof, such amount shall (i) exclude changes after June 30, 2002 in the cumulative foreign currency translation adjustment and any mark to market of a derivative or hedging instrument (or any other adjustment related thereto) required under FAS 133 and (ii) be adjusted on each date of determination, by an amount equal to the non-cash charges to other comprehensive income made with respect to Fiscal Year 2002 to the extent such non-cash charges relate to pension plans of the Borrower and its Subsidiaries, as if such non-cash charges were made as of such date).

 

Non-Guarantor Subsidiary ” means each Subsidiary of the Borrower listed on Schedule III hereto.

 

Non-U.S. Issuer ” means each Issuer (or the Administrative Agent) that is not a United States person as defined in Section 7701(a)(30) of the Code.

 

Obligations ” means the Letter of Credit Obligations and all other amounts, obligations, covenants and duties owing by the Borrower to the Administrative Agent, any Issuer, any Affiliate of any of them or any Indemnitee, of every type and description (whether by reason of an extension of credit, opening or amendment of a letter of credit or payment of any draft drawn thereunder, loan, guaranty, indemnification, foreign exchange or currency swap transaction, interest rate or commodity hedging transaction or otherwise), present or future, arising under this Agreement, whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising and however acquired and whether or not evidenced by any note, guaranty or other instrument or for the payment of money, including all letter of credit, cash management and other fees, interest, charges, expenses, attorneys’ fees and disbursements and other sums chargeable to the Borrower under this Agreement and all obligations of the Borrower hereunder to provide cash collateral for Letter of Credit Obligations.

 

Outstanding Notes ” means, collectively, (i) the 6 3/8% Senior Notes due September 1, 2003 issued under the indenture dated as of April 1, 1992 between the Borrower and Wachovia, as trustee, (ii) the 7.125% Fixed Rate Series B Medium Term Notes due November 25, 2002 and the 2007 Notes (both issued under the indenture dated as of July 1, 1996 between the Borrower and Wachovia, as trustee).

 

Parent Guaranty ” has the meaning specified in the Credit Agreement.

 

PBGC ” means the Pension Benefit Guaranty Corporation or any successor thereto.

 

Permit ” means any permit, approval, authorization, license, variance or permission required from a Governmental Authority under an applicable Requirement of Law.

 

Permitted Acquisition ” means the acquisition by the Borrower or any of its Subsidiaries of all or substantially all of the assets or Stock of any Person or of any operating division thereof (the “ Target ”), or the merger of the Target with or into the Borrower or any Subsidiary of the Borrower (with the Borrower, in the case of a merger with the Borrower, being the surviving corporation) subject to the satisfaction of each of the following conditions:

 

(a) the Administrative Agent shall receive at least 30 days’ prior written notice of such acquisition, which notice shall include, without limitation, a reasonably detailed description of such acquisition;

 

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(b) such acquisition shall only involve assets comprising a business, or those assets of a business, of the type described in the definition of “ FMC’s Business ”;

 

(c) such acquisition shall be consensual and shall have been approved by the Target’s board of directors;

 

(d) no additional Indebtedness or other liabilities shall be incurred, assumed or otherwise reflected on a Consolidated balance sheet of the Borrower and Target after giving effect to such acquisition, except (i) loans made under the Credit Agreement, (ii) ordinary course trade payables and accrued expenses and (iii) Indebtedness permitted under Section 8.1 (Indebtedness) ;

 

(e) the sum of all amounts payable in connection with such acquisition and all other Permitted Acquisitions (including all transaction costs and all Indebtedness, liabilities and Guaranty Obligations incurred or assumed in connection therewith or otherwise reflected in a Consolidated balance sheet of the Borrower and Target) shall not exceed $50,000,000, of which not more than $25,000,000 in the aggregate, may be used to purchase assets located outside the United States; provided that, solely with respect to acquisitions of assets located within the United States, the Borrower may exceed such limitation, to the extent the Leverage Ratio shall be less than 2.5 to 1.0 after giving effect to such acquisition on a pro forma basis;

 

(f) at or prior to the closing of such acquisition, the Borrower (or the Subsidiary making such acquisition) and the Target shall have executed such documents and taken such actions as may be required under Section 7.11 (Additional Collateral and Guaranties) ;

 

(g) concurrently with delivery of the notice referred to in clause (a) above, the Borrower shall have delivered to the Administrative Agent, in form and substance satisfactory to the Administrative Agent and the Requisite Issuers, such other financial information, financial analysis, documentation or other information relating to such acquisition as the Administrative Agent or any Issuer shall reasonably request;

 

(h) on or prior to the date of such acquisition, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent and the Requisite Issuers, copies of the acquisition agreement, related Contractual Obligations and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by the Administrative Agent; and

 

(i) at the time of such acquisition and after giving effect thereto, (i) no Default or Event of Default shall have occurred and be continuing and (ii) all representations and warranties contained in Article IV (Representations and Warranties) and in the other Credit Documents shall be true and correct in all material respects.

 

Permitted Refinancing ” has the meaning specified in Section 8.1 .

 

Permitted Vendor Indebtedness ” means Indebtedness incurred by Subsidiaries of the Borrower organized in Brazil (and the guarantees by the Borrower thereof) consisting of (a) import financing Indebtedness incurred directly by any such Subsidiary for the purpose of conducting vendor

 

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financing programs in South America and (b) guarantees by any such Subsidiary or the Borrower of Indebtedness incurred by customers in order to finance the purchase of products of the Borrower and its Subsidiaries or the purchase of third-party agricultural products, in an aggregate principal amount not to exceed the amount set forth on Schedule VI .

 

Person ” means an individual, partnership, corporation (including a business trust), joint stock company, estate, trust, limited liability company, unincorporated association, joint venture or other entity, or a Governmental Authority.

 

Pledge and Security Agreement ” means each of the Bank Security Agreement and the Shared Collateral Security Agreement.

 

Pledged Notes ” has the meaning specified in each Pledge and Security Agreement.

 

Pledged Stock ” has the meaning specified in each Pledge and Security Agreement.

 

Pocatello Equipment ” means the equipment no longer used in the Borrower’s operations and located at the Borrower’s Pocatello, Idaho facility.

 

Property Loss Event ” means (a) any loss of or damage to property of the Borrower or any of its Subsidiaries that results in the receipt by such Person of proceeds of insurance in excess of $5,000,000 (individually or in the aggregate) or (b) any taking of property of the Borrower or any of its Subsidiaries that results in the receipt by such Person of a compensation payment in respect thereof in excess of $5,000,000 (individually or in the aggregate).

 

Purchasing Issuer ” has the meaning specified in Section 11.7 (Sharing of Payments, Etc.) .

 

Ratable Portion ” or “ ratably ” means, with respect to any Issuer, with respect to the L/C Facility, the percentage obtained by dividing (i) the L/C Commitment of such Issuer by (ii) the aggregate L/C Commitments of all Issuers (or, at any time after the Termination Date, the percentage obtained by dividing the aggregate outstanding amount of the L/C Outstandings owing to such Issuer by the aggregate outstanding amount of the L/C Outstandings owing to all Issuers).

 

Register ” has the meaning specified in Section 11.2(c) (Assignments and Participations) .

 

Reimbursement Date ” has the meaning specified in Section 2.1(h) (Letters of Credit) .

 

Reimbursement Obligations ” means all matured reimbursement or repayment obligations of the Borrower to any Issuer with respect to amounts drawn under Letters of Credit.

 

Reinvestment Deferred Amount ” has the meaning assigned to such term in the Credit Agreement.

 

Release ” means, with respect to any Person, any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration, in each case, of any Contaminant into the indoor or outdoor environment or into or out of any property owned by such Person, including the movement of Contaminants through or in the air, soil, surface water, ground water or property.

 

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Remedial Action ” means all actions required to (a) clean up, remove, treat or in any other way address any Contaminant in the indoor or outdoor environment, (b) prevent the Release or threat of Release or minimize the further Release so that a Contaminant does not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment or (c) perform pre-remedial studies and investigations and post-remedial monitoring and care.

 

Requirement of Law ” means, with respect to any Person, the common law and all federal, state, local and foreign laws, rules and regulations, orders, judgments, decrees and other determinations of any Governmental Authority or arbitrator, applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

 

Requisite Issuers ” means, collectively, Issuers having at least one hundred percent (100%) of the aggregate outstanding amount of the L/C Commitments or, after the Termination Date, the aggregate L/C Outstandings; provided that if there shall be more than two (2) Issuers in number, “ Requisite Issuers ” shall mean Issuers having more than fifty percent (50%) of the aggregate outstanding amount of the L/C Commitments or, after the Termination Date, the aggregate L/C Outstandings.

 

Responsible Officer ” means, with respect to any Person, any of the principal executive officers, managing members or general partners of such Person but, in any event, with respect to financial matters, the chief financial officer or treasurer of such Person.

 

Restricted Cash Collateral Account ” means Account No. 104480 established by the Borrower with Citibank in which cash and Cash Equivalents may from time to time be on deposit or held therein, and the proceeds of which shall be used from time to time solely to refinance and/or replace or secure with cash collateral certain surety bonds, letters of credit or trust arrangements supporting self-insurance programs, environmental obligations, future business commitments and letters of credit in an amount not exceeding $44,030,000 supporting IRB Obligations, in each case issued by or for the benefit of the Borrower and its Subsidiaries.

 

Restricted Cash Collateral Account Agreement ” has the meaning specified in the Credit Agreement.

 

Restricted Payment ” means (a) any dividend, distribution or any other payment whether direct or indirect, on account of any Stock or Stock Equivalents of the Borrower or any of its Subsidiaries now or hereafter outstanding and (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Stock or Stock Equivalents of the Borrower or any of its Subsidiaries now or hereafter outstanding.

 

Revolving Loan ” has the meaning assigned to such term in the Credit Agreement.

 

S&P ” means Standard & Poor’s Rating Services.

 

Sarbanes-Oxley Act ” means the United States Sarbanes-Oxley Act of 2002.

 

Scheduled Termination Date ” means the third anniversary of the Closing Date.

 

SEC ” means the United States Securities and Exchange Commission.

 

Secured Obligations ” means, (i) in the case of the Borrower, (A) the Obligations, (B) the “ Obligations ” as defined in the Credit Agreement, (C) the “ Obligations, ” as defined in the Parent Guaranty and (D) the Astaris Secured Payments, and (ii) in the case of any other Credit Party, the

 

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obligations of such Credit Party under the Guaranties and the other Credit Documents to which it is a party.

 

Secured Parties ” means the Issuers, the Administrative Agent and any other holder of any Secured Obligation.

 

Securities Account ” has the meaning specified in the Bank Security Agreement.

 

Securitization Facility ” means the Receivables Purchase Agreement dated as of November 24, 1999 among FMC Funding Corporation, as seller, the Borrower, as initial servicer, CIESCO, L.P., as investor, Citibank, as a bank, and Citicorp North America, Inc., as agent, and any other transaction or series of related transactions that effect the securitization of accounts, payment intangibles or other cash flow streams of the Borrower.

 

Security ” means any Stock, Stock Equivalent, voting trust certificate, bond, debenture, note or other evidence of Indebtedness, whether secured, unsecured, convertible or subordinated, or any certificate of interest, share or participation in, any temporary or interim certificate for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing, but shall not include any evidence of the Obligations.

 

Selling Issuer ” has the meaning specified in Section 11.7 (Sharing of Payments, Etc.) .

 

Senior Secured Notes ” means, the senior notes of the Borrower due 2009 issued on the Closing Date pursuant to the Indenture and the senior notes of the Borrower due 2009 issued in exchange therefor pursuant to the registration rights agreement dated as of the Closing Date by and between the Borrower and the initial purchasers of the Senior Secured Notes.

 

Shared Collateral ” has the meaning specified in the Shared Collateral Security Agreement.

 

Shared Collateral Security Agreement ” has the meaning specified in the Credit Agreement.

 

Sharing Agreement ” has the meaning specified in the Credit Agreement.

 

Solvent ” means, with respect to any Person, that the value of the assets of such Person (both at fair value and present fair saleable value) is, on the date of determination, greater than the total amount of liabilities (including contingent and unliquidated liabilities) of such Person as of such date and that, as of such date, such Person is able to pay all liabilities of such Person as such liabilities mature and does not have unreasonably small capital. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

Specified Debt ” means the Borrower’s $99,500,000 Medium-Term Notes due November 2002 and $160,500,000 Debentures due September 2003.

 

Standby Letter of Credit ” means any letter of credit that is not a Documentary Letter of Credit.

 

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Stock ” means shares of capital stock (whether denominated as common stock or preferred stock), beneficial, partnership or membership interests, participations or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity, whether voting or non-voting.

 

Stock Equivalents ” means all securities convertible into or exchangeable for Stock and all warrants, options or other rights to purchase or subscribe for any Stock, whether or not presently convertible, exchangeable or exercisable.

 

Subsidiary ” means, with respect to any Person, any corporation, partnership, limited liability company or other business entity of which an aggregate of more than 50% of the outstanding Voting Stock is, at the time, directly or indirectly, owned or controlled by such Person or one or more Subsidiaries of such Person. Notwithstanding the foregoing, Astaris shall not be deemed a Subsidiary of the Borrower at any time solely by virtue of the Borrower’s control of the voting power to elect more than 50% of the managers of Astaris, so long as the Borrower and its Subsidiaries have not, directly or indirectly, made any Investment in Astaris other than pursuant to the Astaris Support Agreement (as defined in the Senior Secured Notes) or the Astaris Indemnification Agreement.

 

Subsidiary Guarantor ” means each Domestic Subsidiary party to or that becomes party to the U.S. Subsidiary Guaranty.

 

Substitute Institution ” has the meaning specified in Section 2.9 (Substitution of Issuers) .

 

Substitution Notice ” has the meaning specified in Section 2.9 (Substitution of Issuers) .

 

Swiss Note ” means the promissory note (or notes) in the aggregate principal amount of approximately $85,000,000 due March 26, 2003 and given by FMC Chemical International AG to the Borrower.

 

Tax Affiliate ” means, with respect to any Person, (a) any Subsidiary of such Person, and (b) any Affiliate of such Person with which such Person files or is eligible to file consolidated, combined or unitary tax returns.

 

Tax Return ” has the meaning specified in Section 4.8(a) (Taxes) .

 

Taxes ” has the meaning specified in Section 2.8(a) (Taxes) .

 

Termination Date ” shall mean the earliest of (a) the Scheduled Termination Date, (b) the date of termination in whole of the L/C Commitments pursuant to Section 2.2 (Reduction and Termination of the L/C Commitments) and (c) the date on which the Obligations become due and payable pursuant to Section 9.2 (Remedies) .

 

Term Loan ” has the meaning assigned to such term in the Credit Agreement.

 

TG Soda Ash ” means Tg Soda Ash, Inc., a corporation the Stock of which was acquired by FMC Wyoming and then merged into FMC Wyoming, effective December 31, 2000.

 

TG Soda Ash Agreement ” means that certain Stock Purchase Agreement dated June 30, 1999, as in effect on the date hereof, by and among Elf Atochem North America, Elf Atochem Wyoming Holdings, Inc., the Borrower and FMC Wyoming.

 

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Title IV Plan ” means a pension plan, other than a Multiemployer Plan, covered by Title IV of ERISA and to which the Borrower any of its Subsidiaries or any ERISA Affiliate has any obligation or liability (contingent or otherwise).

 

Total L/C Commitment ” means the aggregate commitments of all Issuers to Issue Letters of Credit in an aggregate face amount not to exceed $40,000,000, as reduced by Section 2.2 (Reduction and Termination of Commitments ) and Section 2.3 (Mandatory Cash Collateralization/Prepayments) .

 

2007 Notes ” means the Borrower’s 7.320% Fixed Rate Medium Term Notes due February 2007.

 

UCC ” has the meaning specified in each Pledge and Security Agreement.

 

Unfunded Pension Liability ” means, with respect to the Borrower or any of its Subsidiaries at any time, the sum of (a) the amount, if any, by which the present value of all accrued benefits under each Title IV Plan (other than any Title IV Plan subject to Section 4063 of ERISA) exceeds the fair market value of all assets of such Title IV Plan allocable to such benefits in accordance with Title IV of ERISA, as determined as of the most recent valuation date for such Title IV Plan using the actuarial assumptions in effect under such Title IV Plan, (b) the aggregate amount of withdrawal liability that could be assessed under Section 4063 with respect to each Title IV Plan subject to such section, separately calculated for each such Title IV Plan as of its most recent valuation date and (c) for a period of five years following a transaction reasonably likely to be covered by Section 4069 of ERISA, the liabilities (whether or not accrued) that could be avoided by the Borrower, any of its Subsidiaries or any ERISA Affiliate as a result of such transaction.

 

Unused Commitment Fee ” has the meaning specified in Section 2.5(a) (Fees) .

 

U.S. Subsidiary Guaranty ” has the meaning specified in the Credit Agreement.

 

Voting Stock ” means Stock of any Person having ordinary power to vote in the election of members of the board of directors, managers, trustees or other controlling Persons, of such Person (irrespective of whether, at the time, Stock of any other class or classes of such entity shall have or might have voting power by reason of the happening of any contingency).

 

Wachovia ” means Wachovia Bank, National Association.

 

Wholly-Owned Subsidiary ” means, in respect of any Person, any Subsidiary of such Person, all of the Stock of which (other than director’s qualifying shares, as may be required by law) is owned by such Person, either directly or indirectly through one or more Wholly-Owned Subsidiaries of such Person.

 

Withdrawal Liability ” means, with respect to the Borrower or any of its Subsidiaries at any time, the aggregate liability incurred (whether or not assessed) with respect to all Multiemployer Plans pursuant to Section 4201 of ERISA or for increases in contributions required to be made pursuant to Section 4243 of ERISA.

 

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Section 1.2 Computation of Time Periods

 

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.

 

Section 1.3 Accounting Terms and Principles

 

(a) Except as set forth below, all accounting terms not specifically defined herein shall be construed in conformity with GAAP and all accounting determinations required to be made pursuant hereto (including for purpose of measuring compliance with Article V (Financial Covenants) ) shall, unless expressly otherwise provided herein, be made in conformity with GAAP.

 

(b) If any change in the accounting principles used in the preparation of the most recent Financial Statements referred to in Section 6.1 (Financial Statements) is hereafter required or permitted by the rules, regulations, pronouncements and opinions of the Financial Accounting Standards Board or the American Institute of Certified Public Accountants (or any successors thereto) and such change is adopted by the Borrower with the agreement of the Borrower’s Accountants and results in a change in any of the calculations required by Article V (Financial Covenants) or VIII (Negative Covenants) had such accounting change not occurred, for purposes of the calculation of such covenants and the definitions related thereto, such calculation shall be made using GAAP as used by the Borrower in its December 31, 2001 financial statements.

 

(c) For purposes of calculating compliance with each of the financial covenants set forth in Article V in respect of a Permitted Acquisition or an Asset Sale permitted under Section 8.4(h) , such transaction shall be deemed to have occurred as of the first day of the four Fiscal Quarter period ending as of the most recent Fiscal Quarter end preceding the date of such transaction with respect to which the Administrative Agent has received the Financial Statements required to be delivered pursuant to Section 6.1(a) (each such transaction, a “ Pro Forma Transaction ”). In respect of each Pro Forma Transaction, (i) for purposes of any such calculation in respect of any such Asset Sale, (A) income statement items (whether positive or negative) attributable to the assets and/or property disposed of shall be excluded and (B) any Indebtedness which is retired in connection with such transaction shall be excluded and deemed to have been retired as of the first day of the applicable period, and (ii) for purposes of any such calculation in respect of any such Permitted Acquisition, (A) any Indebtedness incurred by the Borrower or any of its Subsidiaries on a Consolidated basis in connection with such transaction (x) shall be deemed to have been incurred as of the first day of the applicable period and (y) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this clause (c) determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination, (B) income statement items (whether positive or negative) attributable to the Person or property acquired shall be included beginning as of the first day of the applicable period and (C) pro forma adjustments may be included to the extent that such adjustments meet the requirements of Regulation S-X under the Securities Act of 1933, as amended, and all other accounting rules and regulations of the SEC promulgated thereunder.

 

Section 1.4 Certain Terms

 

(a) The terms “ herein, ” “ hereof ” 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.

 

(b) Unless otherwise expressly indicated herein, (i) references in this Agreement to an Exhibit, Schedule, Article, Section, clause or sub-clause refer to the appropriate Exhibit or Schedule to,

 

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or Article, Section, clause or sub-clause in this Agreement and (ii) the words “ above ” and “ below ”, when following a reference to a clause or a sub-clause of any Credit Document, refer to a clause or sub-clause within, respectively, the same Section or clause.

 

(c) Each agreement defined in this Article I shall include all appendices, exhibits and schedules thereto. Unless the prior written consent of the Requisite Issuers is required hereunder for an amendment, restatement, supplement or other modification to any such agreement and such consent is not obtained, references in this Agreement to such agreement shall be to such agreement as so amended, restated, supplemented or modified.

 

(d) References in this Agreement to any statute shall be to such statute as amended or modified from time to time and to any successor legislation thereto, in each case as in effect at the time any such reference is operative.

 

(e) The term “ including ” when used in any Credit Document means “ including without limitation ” except when used in the computation of time periods.

 

(f) The terms “ Issuer ” and “ Administrative Agent ” include, without limitation, their respective successors.

 

(g) Upon the appointment of any successor Administrative Agent pursuant to Section 10.6 (Successor Administrative Agent) , references to CUSA in Section 10.3 (The Administrative Agent Individually) and to Citibank in the definitions of “ Base Rate ” and “ Dollar Equivalent ” shall be deemed to refer to the financial institution then acting as the Administrative Agent or one of its Affiliates if it so designates.

 

ARTICLE II

 

T HE L/C F ACILITY

 

Section 2.1 Letters of Credit

 

(a) On the terms and subject to the conditions contained in this Agreement, each Issuer severally agrees to Issue one or more Letters of Credit (and/or participate in any Letter of Credit Obligations as set forth in clause (g) below, as applicable) at the request of the Borrower and for the account of the Borrower from time to time on any Business Day during the period from the date hereof until the earlier of the Termination Date and 30 days prior to the Scheduled Termination Date in an aggregate face amount at any time outstanding for all such Letters of Credit not to exceed the Total L/C Commitment; provided , however , that at no time shall any Issuer be obligated to issue a Letter of Credit and/or participate in any Letter of Credit Obligations in excess of such Issuer’s L/C Commitment. Within the limits of the Total L/C Commitment, amounts of Letters of Credit repaid or prepaid may be reissued or replaced under this Section 2.1 and the Borrower may continue to request such reissuances or replacements of Letters of Credit through the earlier of the Termination Date and 30 days prior to the Scheduled Termination Date; provided , however , that the aggregate face amount of all Letter of Credit Obligations shall not exceed the Total L/C Commitment at any time; and provided further, however , that each Issuer’s Ratable Portion of the aggregate face amount of all Letter of Credit Obligations shall not exceed such Issuer’s L/C Exposure at any time. Notwithstanding anything to the contrary contained in this Section 2.1 , no Issuer shall be under any obligation to Issue any Letter of Credit upon the occurrence of any of the following:

 

(i) any order, judgment or decree of any Governmental Authority or arbitrator shall purport by its terms to enjoin or restrain such Issuer from Issuing such Letter of Credit or any Requirement of Law applicable to such Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuer shall prohibit, or request that such Issuer refrain from, the Issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuer with respect to such Letter of Credit any restriction or reserve or capital requirement (for which such Issuer is not otherwise compensated) not in effect on the date of this Agreement or result in any unreimbursed loss, cost or expense that was not applicable, in effect or known to such Issuer as of the date of this Agreement and that such Issuer in good faith deems material to it;

 

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(ii) such Issuer shall have received any written notice of the type described in clause(d) below;

 

(iii) after giving effect to the Issuance of such Letter of Credit, the aggregate L/C Outstandings would exceed the Total L/C Commitment in effect at such time;

 

(iv) after giving effect to the Issuance of such Letter of Credit, the sum of (i) the Letter of Credit Undrawn Amounts at such time and (ii) the Reimbursement Obligations at such time exceeds the Total L/C Commitment in effect at such time;

 

(v) any fees due in connection with any Issuance have not been paid;

 

(vi) such Letter of Credit is requested to be Issued in a form that is not acceptable to such Issuer; or

 

(vii) such Letter of Credit is requested to be denominated in any currency other than Dollars.

 

(b) In no event shall the expiration date of any Letter of Credit (x) be more than one year after the date of issuance thereof or (y) be less than thirty (30) days prior to the Scheduled Termination Date; provided , however , that any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the expiry date referred to in clause (y) above).

 

(c) In connection with the Issuance of each Letter of Credit, the Borrower shall give the relevant Issuer and the Administrative Agent at least two Business Days’ prior written notice, in substantially the form of Exhibit B (Form of Letter of Credit Request) (or in such other written or electronic form as is acceptable to the Issuer), of the requested Issuance of such Letter of Credit (a “ Letter of Credit Request ”). Such notice shall be irrevocable and shall specify the Issuer of such Letter of Credit, the currency of issuance and face amount of the Letter of Credit requested, the date of Issuance of such requested Letter of Credit, the date on which such Letter of Credit is to expire (which date shall be a Business Day) and, in the case of an issuance, the Person for whose benefit the requested Letter of Credit is to be issued. Such notice, to be effective, must be received by the relevant Issuer and the Administrative Agent not later than 11:00 a.m. (New York time) on the second Business Day prior to the date of the requested Issuance of such Letter of Credit.

 

(d) Subject to the satisfaction of the conditions set forth in this Section 2.1 , the relevant Issuer shall, on the requested date, Issue a Letter of Credit on behalf of the Borrower in accordance with such Issuer’s usual and customary business practices. No Issuer shall Issue any Letter of Credit in the period commencing on the first Business Day after it receives written notice from any other

 

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Issuer or the Administrative Agent that one or more of the conditions precedent contained in Section 3.2 (Conditions Precedent to Each Letter of Credit) shall not on such date be satisfied or duly waived and ending when such conditions are satisfied or duly waived. The relevant Issuer shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 3.2 (Conditions Precedent to Each Letter of Credit) have been satisfied in connection with the Issuance of any Letter of Credit.

 

(e) If requested by the relevant Issuer, prior to the issuance of each Letter of Credit by such Issuer, and as a condition of such Issuance and of the participation of each other Issuer in the Letter of Credit Obligations arising with respect thereto in accordance with clause (g) below, the Borrower shall have delivered to such Issuer a letter of credit reimbursement agreement, in such form as the Issuer may employ in its ordinary course of business for its own account (a “ Letter of Credit Reimbursement Agreement ”), signed by the Borrower, and such other documents or items as may be required pursuant to the terms thereof. In the event of any conflict between the terms of any Letter of Credit Reimbursement Agreement and this Agreement, the terms of this Agreement shall govern.

 

(f) Each Issuer shall:

 

(i) give the Administrative Agent written notice (or telephonic notice confirmed promptly thereafter in writing, which writing may be a telecopy or electronic mail), of the Issuance of a Letter of Credit Issued by it, of all drawings under a Letter of Credit Issued by it and the payment (or the failure to pay when due) by the Borrower of any Reimbursement Obligation when due (which notice the Administrative Agent shall promptly transmit by telecopy, electronic mail or similar transmission to each other Issuer);

 

(ii) upon the request of any other Issuer, furnish to such other Issuer copies of any Letter of Credit Reimbursement Agreement to which such Issuer is a party and such other documentation as may reasonably be requested by such other Issuer; and

 

(iii) no later than 10 Business Days following the last day of each calendar month, provide to the Administrative Agent (and the Administrative Agent shall provide a copy to each other Issuer requesting the same) and the Borrower a schedule for the Letters of Credit issued by it, in form and substance reasonably satisfactory to the Administrative Agent, setting forth the aggregate Letter of Credit Obligations outstanding at the end of each month and any information requested by the Borrower or the Administrative Agent relating thereto.

 

(g) Immediately upon the issuance by an Issuer of a Letter of Credit in accordance with the terms and conditions of this Agreement, such Issuer shall be deemed to have sold and transferred to each other Issuer, and each such other Issuer shall be deemed irrevocably and unconditionally to have purchased and received from such Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such other Issuer’s Ratable Portion of the L/C Commitments, in such Letter of Credit and the obligations of the Borrower with respect thereto (including all Letter of Credit Obligations with respect thereto) and any security therefor and guaranty pertaining thereto.

 

(h) The Borrower agrees to pay to the Issuer of any Letter of Credit the amount of all Reimbursement Obligations owing to such Issuer under any Letter of Credit issued for its account no later than the date that is the next succeeding Business Day after the Borrower receives written notice from such Issuer that payment has been made under such Letter of Credit (the “ Reimbursement Date ”), irrespective of any claim, set-off, defense or other right that the Borrower may have at any time against such Issuer or any other Person. In the event that any Issuer makes any payment under any Letter of Credit and the Borrower shall not have repaid such amount to such Issuer pursuant to this clause (h) or

 

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any such payment by the Borrower is rescinded or set aside for any reason, such Reimbursement Obligation shall be payable on demand with interest thereon computed (i) from the date on which such Reimbursement Obligation arose to the Reimbursement Date, at the rate of interest applicable during such period to Revolving Loans that are Base Rate Loans under the Credit Agreement and (ii) from the Reimbursement Date until the date of repayment in full, at the rate of interest applicable during such period to past due Revolving Loans that are Base Rate Loans under the Credit Agreement, and such Issuer shall promptly notify the Administrative Agent, which shall promptly notify each other Issuer of such failure, and each other Issuer shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuer the amount of such other Issuer’s Ratable Portion of such payment in Dollars and in immediately available funds. If the Administrative Agent so notifies such other Issuer prior to 11:00 a.m. (New York time) on any Business Day, such other Issuer shall make available to the Administrative Agent for the account of such Issuer its Ratable Portion of the amount of such payment on such Business Day in immediately available funds. Upon such payment by such other Issuer, such other Issuer shall, except during the continuance of a Default or Event of Default under Section 9.1(f) (Events of Default) and notwithstanding whether or not the conditions precedent set forth in Section 3.2 (Conditions Precedent to Each Letter of Credit) shall have been satisfied (which conditions precedent the Issuers hereby irrevocably waive), be deemed to have issued a Letter of Credit to the Borrower in the principal amount of such payment. Whenever any Issuer receives from the Borrower a payment of a Reimbursement Obligation as to which the Administrative Agent has received for the account of such Issuer any payment from another Issuer pursuant to this clause (h) , such Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to such other Issuer, in immediately available funds, an amount equal to such other Issuer’s Ratable Portion of the amount of such payment adjusted, if necessary, to reflect the respective amounts such other Issuers have paid in respect of such Reimbursement Obligation.

 

(i) If and to the extent such other Issuer shall not have so made its Ratable Portion of the amount of the payment required by clause (h) above available to the Administrative Agent for the account of such Issuer, such other Issuer agrees to pay to the Administrative Agent for the account of such Issuer forthwith on demand any such unpaid amount together with interest thereon, for the first Business Day after payment was first due at the Federal Funds Rate and, thereafter until such amount is repaid to the Administrative Agent for the account of such Issuer, at the rate per annum applicable to Base Rate Loans under the Credit Agreement.

 

(j) The Borrower’s obligation to pay each Reimbursement Obligation and the obligations of the other Issuers to make payments to the Administrative Agent for the account of such Issuer with respect to Letters of Credit shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement, under any and all circumstances whatsoever, including the occurrence of any Default or Event of Default, and irrespective of any of the following:

 

(i) any lack of validity or enforceability of any Letter of Credit or any Credit Document, or any term or provision therein;

 

(ii) any amendment or waiver of or any consent to departure from all or any of the provisions of any Letter of Credit or any Credit Document;

 

(iii) the existence of any claim, set off, defense or other right that the Borrower, any other party guaranteeing, or otherwise obligated with, the Borrower, any Subsidiary or other Affiliate thereof or any other Person may at any time have against the beneficiary under any Letter of Credit, the Administrative Agent or any Issuer or any other

 

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Person, whether in connection with this Agreement, any other Credit Document or any other related or unrelated agreement or transaction;

 

(iv) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;

 

(v) payment by the Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit; and

 

(vi) any other act or omission to act or delay of any kind of any Issuer, the Administrative Agent or any other Person or any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.1 , constitute a legal or equitable discharge of the Borrower’s obligations hereunder.

 

Any action taken or omitted to be taken by the relevant Issuer under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not put such Issuer under any resulting liability to the Borrower or any other Issuer. In determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof, the Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary and, in making any payment under any Letter of Credit, the Issuer may rely exclusively on the documents presented to it under such Letter of Credit as to any and all matters set forth therein, including reliance on the amount of any draft presented under such Letter of Credit, whether or not the amount due to the beneficiary thereunder equals the amount of such draft and whether or not any document presented pursuant to such Letter of Credit proves to be insufficient in any respect, if such document on its face appears to be in order, and whether or not any other statement or any other document presented pursuant to such Letter of Credit proves to be forged or invalid or any statement therein proves to be inaccurate or untrue in any respect whatsoever and any noncompliance in any immaterial respect of the documents presented under such Letter of Credit with the terms thereof shall, in each case, be deemed not to constitute willful misconduct or gross negligence of the Issuer.

 

(k) On the Closing Date (i) the Existing Letters of Credit, to the extent outstanding, shall be automatically and without further action by the parties thereto converted to Letters of Credit issued pursuant to this Section 2.1 for the account of the Borrower and subject to the provisions hereof, and for this purpose the fees specified in Section 2.5(b) (Fees) shall be payable (in substitution for any fees set forth in the applicable letter of credit reimbursement agreements or applications relating to such Existing Letters of Credit) as if such Existing Letters of Credit had been issued on the Closing Date, (ii) the issuer of such Existing Letters of Credit shall be deemed to be an “ Issuer ” hereunder solely for the purpose of maintaining such Existing Letters of Credit and (iii) all liabilities of the Borrower with respect to such Existing Letters of Credit shall constitute Obligations. No Existing Letter of Credit converted in accordance with this clause (k) shall be amended, extended or renewed without the prior written consent of the Administrative Agent.

 

Section 2.2 Reduction and Termination of the L/C Commitments

 

(a) The Borrower may, upon at least three Business Days’ prior notice to the Administrative Agent, terminate in whole or reduce in part ratably the unused portions of the respective L/C Commitments of the Issuers; provided , however , that each partial reduction shall be in an aggregate amount of not less than $5,000,000 or an integral multiple of $500,000 in excess thereof and the Borrower shall have provided the Administrative Agent with cash collateral in an amount equal to the

 

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amount by which the aggregate L/C Obligations exceed the Total L/C Commitment after giving effect to any such reduction.

 

(b) As of any Increase Date (as defined in the Credit Agreement), the Total L/C Commitment shall automatically be reduced (a “ Commitment Reduction ”) by the amount by which the commitments to make Revolving Loans under the Credit Agreement after giving effect to the Commitment Increase (as defined in the Credit Agreement), exceed $300,000,000 and, to the extent the aggregate amount of Letters of Credit issued prior to such Increase Date exceeds the reduced Total L/C Commitment, the Borrower shall provide cash collateral equal to the amount of such excess. Each Commitment Reduction shall be applied to reduce each Issuer’s L/C Commitment, and shall be applied to reduce each Issuer’s L/C Exposure on a pro rata basis.

 

Section 2.3 Mandatory Cash Collateralization/Prepayments

 

(a) Upon receipt by the Borrower or any of its Subsidiaries of Net Cash Proceeds arising (i) from an Asset Sale in excess of (A) $5,000,000, in the case of any single Asset Sale or (B) $15,000,000 in the aggregate for all Asset Sales in any calendar year (excluding any Asset Sale described in clause (i)(A) above in respect of which a mandatory prepayment has previously been made), or (ii) from any Non-Guarantor Subsidiary as described in Section 7.12 , the Borrower shall immediately prepay the loans under the Credit Agreement (or provide cash collateral in respect of letters of credit thereunder) (in each case as set forth therein) and provide cash collateral in respect of Letters of Credit in an amount equal to 100% of such Net Cash Proceeds; provided that, in the case of any Net Cash Proceeds of Asset Sales described in clause (i)(B) above, only the amount of such Net Cash Proceeds in excess of $15,000,000 shall be required to prepay and/or cash collateralize, as appropriate, such loans and/or Obligations; and provided further , that, to the extent any Net Cash Proceeds on account of any Asset Sale are received by any Non-Guarantor Subsidiary pursuant to clause (ii) above, only the Net Cash Proceeds actually received by the Borrower or any Guarantor (in the form of any payment, dividend, distribution or otherwise) shall be required to prepay and/or cash collateralize, as appropriate, the Obligations pursuant to this Section 2.3 . Any such mandatory prepayment shall be applied in accordance with clause (c) below.

 

(b) Upon receipt by the Borrower or any of its Subsidiaries of Net Cash Proceeds arising from an Equity Issuance, the Borrower shall immediately prepay the loans under the Credit Agreement (or provide cash collateral in respect of letters of credit thereunder) (in each case as set forth therein) and provide cash collateral in respect of Letters of Credit in an amount equal to 50% of such Net Cash Proceeds, if the Leverage Ratio (prior to giving effect to such Equity Issuance) is greater than or equal to 3.0 to 1.0, as of the end of the most recent fiscal period for which financial statements have been delivered pursuant to Section 6.1 . Any such mandatory prepayment shall be applied in accordance with clause (c) below.

 

(c) Subject to the provisions of Section 2.6(f) (Payments and Computations) , any prepayments and/or cash collateralizations, as appropriate, made by the Borrower required to be applied in accordance with this clause (c) shall be applied as follows: on a pro rata basis, (i) to repay the outstanding principal balance of the Term Loans, until such Term Loans shall have been prepaid in full in the manner set forth in the Credit Agreement, and (ii) at the Borrower’s option, (x) to reduce the L/C Commitments until the Total L/C Commitment shall be equal to zero and/or (y) cash collateralize the Letters of Credit in the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) until all such Letter of Credit Obligations have been fully cash collateralized in the manner set forth therein.

 

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(d) If at any time, the aggregate amount of L/C Outstandings exceeds the Total L/C Commitment at such time, the Borrower shall forthwith provide cash collateral for the Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) .

 

Section 2.4 Interest

 

(a) Rate of Interest. All Reimbursement Obligations and the outstanding amount of all other Obligations shall bear interest, in the case of Reimbursement Obligations, on the unpaid principal amount thereof from the date such Reimbursement Obligations arose and, in the case of such other Obligations, from the date such other Obligations are due and payable until, in all cases, the date such Obligations are paid in full, except as otherwise provided in clause (c) below, at a rate per annum equal to the sum of (A) 2.0% plus (B) the Base Rate as in effect from time to time plus (C) 3.75%.

 

(b) Interest Payments . Interest accrued on the amount of all Obligations shall be payable on demand from and after the time such Obligation becomes due and payable (whether by acceleration or otherwise).

 

(c) Default Interest . Notwithstanding the rates of interest specified in clause (a) above or elsewhere herein, effective immediately upon the occurrence of an Event of Default and for as long thereafter as such Event of Default shall be continuing, the amount of Reimbursement Obligations and all other Obligations then due and payable shall bear interest at a rate that is two percent (2.0%) per annum in excess of the rate of interest applicable to such Reimbursement Obligations or other Obligations from time to time.

 

Section 2.5 Fees

 

(a) Unused Commitment Fee . The Borrower agrees to pay to each Issuer a commitment fee equal to such Issuer’s Ratable Portion of the actual daily amount by which the Total L/C Commitment exceeds the L/C Outstandings (the “ Unused Commitment Fee ”) from the date hereof through the Termination Date at the Applicable Unused Commitment Fee Rate, payable in arrears (x) on the first Business Day of each calendar quarter, commencing on the first such Business Day following the Closing Date and (y) on the Termination Date.

 

(b) Letter of Credit Fees . The Borrower agrees to pay the following amounts with respect to Letters of Credit issued by any Issuer:

 

(i) to the Administrative Agent for the account of each Issuer of a Letter of Credit, with respect to each Letter of Credit issued by such Issuer, an issuance fee equal to 0.25% per annum of the maximum undrawn face amount of such Letter of Credit, payable in arrears (A) on the first Business Day of each calendar quarter, commencing on the first such Business Day following the issuance of such Letter of Credit and (B) on the Termination Date;

 

(ii) to the Administrative Agent for the ratable benefit of each Issuer, with respect to each Letter of Credit, a fee accruing at a rate per annum equal to 3.75% on the maximum undrawn face amount of such Letter of Credit, payable in arrears (A) on the first Business Day of each calendar quarter, commencing on the first such Business Day following the issuance of such Letter of Credit and (B) on the Termination Date; provided , however , that during the continuance of an Event of Default, such fee shall be increased by two percent (2.0%) per annum and shall be payable on demand; and

 

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(iii) to the Issuer of any Letter of Credit, with respect to the issuance, amendment or transfer of each Letter of Credit and each drawing made thereunder, documentary and processing charges in accordance with such Issuer’s standard schedule for such charges in effect at the time of issuance, amendment, transfer or drawing, as the case may be.

 

(c) Additional Fees . The Borrower agrees to pay to the Administrative Agent and the Issuers the administrative and other fees from time to time agreed to by the Borrower and such parties.

 

Section 2.6 Payments and Computations

 

(a) The Borrower shall make each payment hereunder (including fees and expenses) not later than 11:00 a.m. (New York time) on the day when due, in Dollars, to the Administrative Agent at its address referred to in Section 11.8 (Notices, Etc.) in immediately available funds without set-off or counterclaim. The Administrative Agent shall promptly thereafter cause to be distributed immediately available funds relating to the payment of principal, interest or fees to the Issuers, in accordance with the application of payments set forth in Section 2.3(c) (Mandatory Cash Collateralization/Prepayments) and in clauses (e) or (f) below, as applicable, for their account; provided , however , that amounts payable pursuant to Section 2.7 (Capital Adequacy) or Section 2.8 (Taxes) shall be paid only to the Affected Issuer or Issuers. Payments received by the Administrative Agent after 11:00 a.m. (New York time) shall be deemed to be received on the next Business Day.

 

(b) All computations of interest and of fees shall be made by the Administrative Agent on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest and fees are payable. Each determination by the Administrative Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.

 

(c) Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, the due date for such payment shall be extended to the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or fees, as the case may be.

 

(d) Unless the Administrative Agent shall have received notice from the Borrower to the Issuers prior to the date on which any payment is due hereunder that the Borrower will not make such payment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Issuer on such due date an amount equal to the amount then due such Issuer. If and to the extent that the Borrower shall not have made such payment in full to the Administrative Agent, each Issuer shall repay to the Administrative Agent forthwith on demand such amount distributed to such Issuer together with interest thereon at the Federal Funds Rate, for the first Business Day, and, thereafter, at the rate applicable to Base Rate Loans under the Credit Agreement, for each day from the date such amount is distributed to such Issuer until the date such Issuer repays such amount to the Administrative Agent.

 

(e) Except for payments and other amounts received by the Administrative Agent and applied in accordance with the provisions of clause (f) below (or required to be applied in accordance with Section 2.3(c) (Mandatory Cash Collateralization/Prepayments) ), all payments and any other amounts received by the Administrative Agent from or for the benefit of the Borrower shall be applied as follows: first , to pay all amounts owing to the Administrative Agent pursuant to this Agreement, for which the Administrative Agent has not then been reimbursed by any Issuer or the Borrower, as applicable, second , to pay all Letter of Credit Obligations then due and payable, third , to pay all other

 

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Obligations then due and payable and fourth , as the Borrower so designates. Payments in respect of Letter of Credit Obligations received by the Administrative Agent shall be distributed to each Issuer in accordance with such Issuer’s Ratable Portion of the L/C Commitments; and all payments of fees and all other payments in respect of any other Obligation shall be allocated among such of the Issuers as are entitled thereto and, for such payments allocated to the Issuers, in proportion to their respective Ratable Portions.

 

(f) The Borrower hereby irrevocably waives the right to direct the application of any and all payments in respect of the Obligations and any proceeds of Collateral after the occurrence and during the continuance of an Event of Default and agrees that, notwithstanding the provisions of Section 2.3(c) (Mandatory Cash Collateralization/Prepayments) and clause (e) above, the Administrative Agent may, and, upon either (A) the written direction of the Requisite Issuers or (B) the acceleration of the Obligations pursuant to Section 9.2 (Remedies) , shall, deliver a Blockage Notice to each Deposit Account Bank and apply all payments in respect of any Obligations and all funds on deposit in any Cash Collateral Account and all other proceeds of Collateral in the following order:

 

First , to pay Obligations in respect of any expense reimbursements or indemnities then due to the Administrative Agent;

 

Second , to pay Obligations in respect of any expense reimbursements or indemnities then due to the Issuers;

 

Third , to pay Obligations in respect of any fees then due to the Administrative Agent and the Issuers;

 

Fourth , to pay interest then due and payable in respect of the Reimbursement Obligations;

 

Fifth , to pay or prepay principal amounts on the Reimbursement Obligations and to provide cash collateral for outstanding Letter of Credit Undrawn Amounts in the manner described in Section 9.3 (Actions in Respect of Letters of Credit) , ratably to the aggregate principal amount of such Reimbursement Obligations and Letter of Credit Undrawn Amounts; and

 

Sixth , to the ratable payment of all other Obligations;

 

provided , however , that if sufficient funds are not available to fund all payments to be made in respect of any of the Obligations described in any of the foregoing clauses first through sixth , the available funds being applied with respect to any such Obligation (unless otherwise specified in such clause) shall be allocated to the payment of such Obligations ratably, based on the proportion of the Administrative Agent’s and each Issuer’s and other Secured Party’s interest in the aggregate outstanding Obligations described in such clauses. The order of priority set forth in clauses first through second of this Section 2.6(f) may be changed only with the prior written consent of the Administrative Agent in addition to the Requisite Issuers. The order of priority set forth in clauses first through sixth of this Section 2.6(f) may at any time and from time to time be changed by the agreement of the Requisite Issuers without necessity of notice to or consent of or approval by the Borrower, any Secured Party that is not an Issuer, or any other Person.

 

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Section 2.7 Capital Adequacy

 

If at any time any Issuer determines that (a) the adoption of, or any change in or in the interpretation of, any law, treaty or governmental rule, regulation or order after the date of this Agreement regarding capital adequacy, (b) compliance with any such law, treaty, rule, regulation or order or (c) compliance with any guideline or request or directive from any central bank or other Governmental Authority (whether or not having the force of law) shall have the effect of reducing the rate of return on such Issuer’s (or any corporation controlling such Issuer’s) capital as a consequence of its obligations hereunder or under or in respect of any Letter of Credit to a level below that which such Issuer or such corporation could have achieved but for such adoption, change, compliance or interpretation, then, upon demand from time to time by such Issuer (with a copy of such demand to the Administrative Agent), the Borrower shall pay to the Administrative Agent for the account of such Issuer, from time to time as specified by such Issuer, additional amounts sufficient to compensate such Issuer for such reduction. A certificate as to such amounts submitted to the Borrower and the Administrative Agent by such Issuer shall be conclusive and binding for all purposes absent manifest error.

 

Section 2.8 Taxes

 

(a) Any and all payments by any Credit Party under each Credit Document shall be made free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding (i) in the case of each Issuer and the Administrative Agent (A) taxes measured by its net income, and franchise taxes imposed on it, by the jurisdiction (or any political subdivision thereof) under the laws of which such Issuer or the Administrative Agent (as the case may be) is organized and (B) any United States withholding taxes payable with respect to payments under the Credit Documents under laws (including any statute, treaty or regulation) in effect on the Closing Date (or, in the case of an Eligible Assignee, the date of the Assignment and Acceptance) applicable to such Issuer or the Administrative Agent, as the case may be, but not excluding any United States withholding taxes payable as a result of any change in such laws occurring after the Closing Date (or the date of such Assignment and Acceptance) and (ii) in the case of each Issuer, taxes measured by its net income, and franchise taxes imposed on it as a result of a present or former connection between such Issuer and the jurisdiction of the Governmental Authority imposing such tax or any taxing authority thereof or therein (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as “ Taxes ”). If any Taxes shall be required by law to be deducted from or in respect of any sum payable under any Credit Document to any Issuer or the Administrative Agent (w) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.8 such Issuer or the Administrative Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (x) the relevant Credit Party shall make such deductions, (y) the relevant Credit Party shall pay the full amount deducted to the relevant taxing authority or other authority in accordance with applicable law and (z) the relevant Credit Party shall deliver to the Administrative Agent evidence of such payment.

 

(b) In addition, each Credit Party agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies of the United States or any political subdivision thereof or any applicable foreign jurisdiction, and all liabilities with respect thereto, in each case arising from any payment made under any Credit Document or from the execution, delivery or registration of, or otherwise with respect to, any Credit Document (collectively, “ Other Taxes ”).

 

(c) Each Credit Party shall indemnify each Issuer and the Administrative Agent for the full amount of Taxes and Other Taxes (including any Taxes and Other Taxes imposed by any

 

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jurisdiction on amounts payable under this Section 2.8 ) paid by such Issuer or the Administrative Agent (as the case may be) and any liability (including for penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted. This indemnification shall be made within 30 days from the date such Issuer or the Administrative Agent (as the case may be) makes written demand therefor. Each Issuer and the Administrative Agent will use reasonable efforts to assist any Credit Party in obtaining any refunds from any Governmental Authority for any Taxes or Other Taxes improperly imposed on or asserted against an Issuer or the Administrative Agent for which such Credit Party has made an indemnification payment under this Section 2.8(c) . Upon receipt of any such refund, such Issuer or the Administrative Agent shall promptly repay the applicable Credit Party the amount of such refund.

 

(d) Within 30 days after the date of any payment of Taxes or Other Taxes by any Credit Party, the Borrower shall furnish to the Administrative Agent, at its address referred to in Section 11.8 (Notices, Etc.) , the original or a certified copy of a receipt evidencing payment thereof.

 

(e) Without prejudice to the survival of any other agreement of any Credit Party hereunder or under the Guaranties, the agreements and obligations of such Credit Party contained in clauses (b) and (c) of this Section 2.8 shall survive the payment in full of the Obligations.

 

(f) Prior to the Closing Date in the case of each Non-U.S. Issuer that is a signatory hereto, and on the date of the Assignment and Acceptance pursuant to which it becomes an Issuer in the case of each other Non-U.S. Issuer and from time to time thereafter if requested by the Borrower or the Administrative Agent, each Non-U.S. Issuer that is entitled at such time to an exemption from United States withholding tax, or that is subject to such tax at a reduced rate under an applicable tax treaty, shall provide the Administrative Agent and the Borrower with two completed originals of each of the following: (i) Form W-8ECI (claiming exemption from withholding because the income is effectively connected with a U.S. trade or business) or any successor form, (ii) Form W-8BEN (claiming exemption from, or a reduction of, withholding tax under an income tax treaty) or any successor form, (iii) in the case of a Non-U.S. Issuer claiming exemption under Sections 871(h) or 881 (c) of the Code, a Form W-8BEN (claiming exemption from withholding under the portfolio interest exemption) or any successor form or (iv) any other applicable form, certificate or document prescribed by the IRS certifying as to such Non-U.S. Issuer’s entitlement to such exemption from United States withholding tax or reduced rate with respect to all payments to be made to such Non-U.S. Issuer under the Credit Documents. Unless the Borrower and the Administrative Agent have received forms or other documents satisfactory to them indicating that payments under any Credit Document to or for a Non-U.S. Issuer are not subject to United States withholding tax or are subject to such tax at a rate reduced by an applicable tax treaty, the Borrower or the Administrative Agent shall withhold amounts required to be withheld by applicable Requirements of Law from such payments at the applicable statutory rate.

 

Section 2.9 Substitution of Issuers

 

(a) In the event that (i)(A) any Issuer makes a claim under Section 2.7 (Capital Adequacy) or (B) the Borrower is required to make any payment pursuant to Section 2.8 ( Taxes ) that is attributable to a particular Issuer, (ii) in the case of clauses (i)(A) and (B) above, Issuers holding at least 75% of the L/C Commitments are not subject to such payment or proceedings (any such Issuer, an “ Affected Issuer ”), the Borrower may substitute any Issuer and, if reasonably acceptable to the Administrative Agent, any other Eligible Assignee (a “ Substitute Institution ”) for such Affected Issuer hereunder, after delivery of a written notice (a “ Substitution Notice ”) within a reasonable time (in any case not to exceed 90 days) following the occurrence of any of the events described in clauses (i)(A) or (B) above by the Borrower to the Administrative Agent and the Affected Issuer that the Borrower intends to make such substitution; provided , however , that, if more than one Issuer claims right to payment

 

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arising from the same act or condition and such claims are received by the Borrower within 30 days of each other, then the Borrower may substitute all, but not (except to the extent the Borrower has already substituted one of such Affected Issuers before the Borrower’s receipt of the other Affected Issuers’ claim) less than all, Issuers making such claims.

 

(b) If the Substitution Notice was properly issued under this Section 2.9 , the Affected Issuer shall sell, and the Substitute Institution shall purchase, all rights and claims of such Affected Issuer under the Credit Documents and the Substitute Institution shall assume, and the Affected Issuer shall be relieved of, the Affected Issuer’s L/C Commitments and all other prior unperformed obligations of the Affected Issuer under the Credit Documents (other than in respect of any damages (other than exemplary or punitive damages, to the extent permitted by applicable law) in respect of any such unperformed obligations). Such purchase and sale (and the corresponding assignment of all rights and claims hereunder) shall be effective on (and not earlier than) the later of (i) the receipt by the Affected Issuer of its Ratable Portion of the L/C Outstandings, together with any other Obligations owing to it, (ii) the receipt by the Administrative Agent of an agreement in form and substance satisfactory to it and the Borrower whereby the Substitute Institution shall agree to be bound by the terms hereof and (ii) the payment in full to the Affected Issuer in cash of all fees, unreimbursed costs and expenses and indemnities accrued and unpaid through such effective date. Upon the effectiveness of such sale, purchase and assumption, the Substitute Institution shall become an “ Issuer ” hereunder for all purposes of this Agreement having an L/C Commitment in the amount of such Affected Issuer’s L/C Commitment assumed by it and such L/C Commitment of the Affected Issuer shall be terminated; provided , however , that all indemnities under the Credit Documents shall continue in favor of such Affected Issuer.

 

(c) Each Issuer agrees that, if it becomes an Affected Issuer and its rights and claims are assigned hereunder to a Substitute Institution pursuant to this Section 2.9 , it shall execute and deliver to the Administrative Agent an Assignment and Acceptance to evidence such assignment; provided , however , that the failure of any Affected Issuer to execute an Assignment and Acceptance shall not render such assignment invalid.

 

ARTICLE III

 

C ONDITIONS T O L ETTERS O F C REDIT

 

Section 3.1 Conditions Precedent to Initial Letters of Credit

 

The obligation of each Issuer to Issue Letters of Credit on the Closing Date is subject to the satisfaction or due waiver in accordance with Section 11.1 (Amendments, Waivers, Etc.) of each of the following conditions precedent:

 

(a) Certain Documents . The Administrative Agent shall have received on or prior to the Closing Date each of the following, each dated the Closing Date unless otherwise indicated or agreed to by the Administrative Agent, in form and substance satisfactory to the Administrative Agent and the Issuers and in sufficient copies for each Issuer:

 

(i) this Agreement, duly executed and delivered by the Borrower;

 

(ii) the Credit Agreement, duly executed and delivered by the Borrower;

 

(iii) a favorable opinion of Morgan, Lewis & Bockius LLP, U.S. counsel to the Credit Parties, in form and substance satisfactory to the Administrative Agent; and

 

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(iv) such other certificates, documents, agreements and information respecting any Credit Party as any Issuer through the Administrative Agent may reasonably request.

 

(b) Conditions to the Credit Agreement . The Administrative Agent shall be satisfied that each of the conditions set forth in Section 3.1 of the Credit Agreement shall have been satisfied in form and substance satisfactory to the Administrative Agent.

 

(c) Fees and Expenses Paid . There shall have been paid to the Administrative Agent, for the account of the Administrative Agent and the Issuers, as applicable, all fees and expenses (including reasonable fees and expenses of counsel) due and payable on or before the Closing Date.

 

Section 3.2 Conditions Precedent to Each Letter of Credit

 

The obligation of each Issuer on any date (including the Closing Date) to Issue any Letter of Credit is subject to the satisfaction of each of the following conditions precedent:

 

(a) Request for Issuance of Letter of Credit . With respect to any Letter of Credit, the Administrative Agent and the applicable Issuer shall have received a duly executed Letter of Credit Request.

 

(b) Representations and Warranties; No Defaults . The following statements shall be true on the date of such Issuance, both before and after giving effect thereto:

 

(i) the representations and warranties set forth in Article IV (Representations and Warranties) and in the other Credit Documents shall be true and correct on and as of the Closing Date and shall be true and correct in all material respects on and as of any such date after the Closing Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date; and

 

(ii) no Default or Event of Default shall have occurred and be continuing.

 

(c) No Legal Impediments . The Issuance of such Letter of Credit on such date does not violate any Requirement of Law on the date of or immediately following such Issuance of such Letter of Credit and is not enjoined, temporarily, preliminarily or permanently.

 

(d) Additional Matters . The Administrative Agent shall have received such additional documents, information and materials as any Issuer, through the Administrative Agent, may reasonably request.

 

Each submission by the Borrower to an Issuer of a Letter of Credit Request, and the Issuance of each Letter of Credit requested therein, shall be deemed to constitute a representation and warranty by the Borrower as to the matters specified in clause (b) above on the date of the Issuance of such Letter of Credit.

 

Section 3.3 Determinations of Initial Issuing Conditions

 

For purposes of determining compliance with the conditions specified in Section 3.1 (Conditions Precedent to Initial Letters of Credit) , each Issuer shall be deemed to have consented to,

 

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approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Issuers unless an officer of the Administrative Agent responsible for the transactions contemplated by the Credit Documents shall have received notice from such Issuer prior to the initial Issuance hereunder specifying its objection thereto and such Issuer shall not have made available to the Administrative Agent such Issuer’s Ratable Portion of such Issuance.

 

ARTICLE IV

 

R EPRESENTATIONS AND W ARRANTIES

 

To induce the Issuers and the Administrative Agent to enter into this Agreement, the Borrower represents and warrants each of the following to the Issuers and the Administrative Agent, on and as of the Closing Date and the making of the financial accommodations on the Closing Date and on and as of each date as required by Section 3.2(b)(i) (Conditions Precedent to Each Letter of Credit) :

 

Section 4.1 Corporate Existence; Compliance with Law

 

Each of the Borrower and its Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) is duly qualified to do business as a foreign corporation and in good standing under the laws of each jurisdiction where such qualification is necessary, except where the failure to be so qualified or in good standing would not, in the aggregate, be reasonably likely to have a Material Adverse Effect, (c) has all requisite power and authority and the legal right to own, pledge, mortgage and operate its properties, to lease the property it operates under lease and to conduct its business as now or currently proposed to be conducted, (d) with respect to the Borrower and the Domestic Subsidiaries, is in compliance with its Constituent Documents, (e) is in compliance with all applicable Requirements of Law except where the failure to be in compliance would not, in the aggregate, be reasonably likely to have a Material Adverse Effect and (f) has all necessary licenses, permits, consents or approvals from or by, has made all necessary filings with, and has given all necessary notices to, each Governmental Authority having jurisdiction, to the extent required for such ownership, operation and conduct, except for licenses, permits, consents, approvals or filings that can be obtained or made by the taking of ministerial action to secure the grant or transfer thereof or the failure to obtain or make would not, in the aggregate, be reasonably likely to have a Material Adverse Effect.

 

Section 4.2 Corporate Power; Authorization; Enforceable Obligations

 

(a) The execution, delivery and performance by each Credit Party of the Credit Documents to which it is a party and the consummation of the transactions contemplated thereby:

 

(i) are within such Credit Party’s corporate, limited liability company, partnership or other powers;

 

(ii) have been or, at the time of delivery thereof pursuant to Article III (Conditions To Letters Of Credit) will have been duly authorized by all necessary action, including the consent of shareholders, partners and members where required;

 

(iii) do not and will not (A) contravene such Credit Party’s or any of its Subsidiaries’ respective Constituent Documents, (B) violate any other Requirement of Law applicable to such Credit Party (including Regulations T, U and X of the Federal Reserve Board), or any order or decree of any Governmental Authority or arbitrator applicable to such Credit Party, (C) conflict with or result in the breach of, or constitute a default under, or result in or

 

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permit the termination or acceleration of, any Contractual Obligation of such Credit Party or any of its Subsidiaries, including the Existing Public Debt, or (D) result in the creation or imposition of any Lien upon any property of such Credit Party or any of its Subsidiaries, other than those in favor of the Secured Parties pursuant to the Collateral Documents; and

 

(iv) do not require the consent of, authorization by, approval of, notice to, or filing or registration with, any Governmental Authority or any other Person, other than those listed on Schedule 4.2 (Consents) and that have been or will be, prior to the Closing Date, obtained or made, copies of which have been or will be delivered to the Administrative Agent pursuant to Section 3.1 (Conditions Precedent to Initial Letters of Credit) , and each of which on the Closing Date will be in full force and effect and, with respect to the Collateral, filings required to perfect the Liens created by the Collateral Documents.

 

(b) This Agreement has been, and each of the other Credit Documents will have been upon delivery thereof pursuant to the terms of this Agreement, duly executed and delivered by each Credit Party party thereto. This Agreement is, and the other Credit Documents will be, when delivered hereunder, the legal, valid and binding obligation of each Credit Party party thereto, enforceable against such Credit Party in accordance with its terms.

 

Section 4.3 Ownership of Borrower; Subsidiaries

 

Set forth on Schedule 4.3 (Ownership of Subsidiaries ) is a complete and accurate list showing, as of the Closing Date, all Subsidiaries of the Borrower and, as to each such Subsidiary, the jurisdiction of its organization, the number of shares of each class of Stock authorized (if applicable), the number outstanding on the Closing Date and the number and percentage of the outstanding shares of each such class owned (directly or indirectly) by the Borrower. No Stock of any Material Subsidiary is subject to any outstanding option, warrant, right of conversion or purchase of any similar right. All of the outstanding Stock of each Material Subsidiary owned (directly or indirectly) by the Borrower has been validly issued, is fully paid and non-assessable (to the extent applicable) and is owned by the Borrower or a Subsidiary of the Borrower, free and clear of all Liens (other than the Lien in favor of the Secured Parties created pursuant to the Pledge and Security Agreements and Liens permitted under this Agreement), options, warrants, rights of conversion or purchase or any similar rights. Except as set forth on Schedule 4.3 , neither the Borrower nor any Material Subsidiary is a party to, or has knowledge of, any agreement restricting the transfer or hypothecation of any Stock of any such Subsidiary, other than the Credit Documents, the Credit Agreement, the Indenture and the indentures pursuant to which the Outstanding Notes were issued. The Borrower does not own or hold, directly or indirectly, any Stock of any Person other than such Subsidiaries and Investments permitted by Section 8.3 (Investments ).

 

Section 4.4 Financial Statements

 

(a) The Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, 2001, and the related Consolidated statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, certified by the Borrower’s Accountants, and the Consolidated balance sheets of the Borrower and its Subsidiaries as at June 30, 2002, and the related Consolidated statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries for the six months then ended, copies of which have been furnished to each Issuer, fairly present, subject, in the case of said balance sheets as at June 30, 2002, and said statements of income, retained earnings and cash flows for the six months then ended, to the absence of footnote disclosure and normal recurring year-end audit adjustments, the Consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the Consolidated results of the operations of the Borrower and its Subsidiaries for the period ended on such dates, all in conformity with GAAP.

 

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(b) Neither the Borrower nor any of its Subsidiaries has any material obligation, contingent liability or liability for taxes, long-term leases or unusual forward or long-term commitment that is not reflected in the Financial Statements referred to in clause (a) above or in the notes thereto and not otherwise permitted by this Agreement.

 

Section 4.5 Material Adverse Change

 

Since December 31, 2001, there has been no Material Adverse Change and there have been no events or developments that, in the aggregate, have had a Material Adverse Effect.

 

Section 4.6 Solvency

 

Both before and after giving effect to (a) the Letter of Credit Obligations to be extended on the Closing Date or such other date as Letter of Credit Obligations requested hereunder are extended, (b) the consummation of the other financing transactions contemplated hereby and (c) the payment and accrual of all transaction costs in connection with the foregoing, the Borrower and Borrower and its Subsidiaries on a Consolidated basis, are Solvent.

 

Section 4.7 Litigation

 

Except as set forth on Schedule 4.7 (Litigation) , there are no pending or, to the knowledge of the Borrower, threatened actions, investigations or proceedings affecting the Borrower or any of its Subsidiaries before any court, Governmental Authority or arbitrator other than those that, in the aggregate, would not be reasonably likely to have a Material Adverse Effect. The performance of any action by any Credit Party required or contemplated by any Credit Document, the Credit Agreement, the Indenture or the Senior Secured Notes is not restrained or enjoined (either temporarily, preliminarily or permanently).

 

Section 4.8 Taxes

 

(a) All federal, state, local and foreign income and franchise and other material tax returns, reports and statements (collectively, the “ Tax Returns ”) required to be filed by the Borrower or any of its Tax Affiliates have been filed with the appropriate Governmental Authorities in all jurisdictions in which such Tax Returns are required to be filed, all such Tax Returns are true and correct in all material respects, and all taxes, charges and other impositions reflected therein or otherwise due and payable have been paid prior to the date on which any fine, penalty, interest, late charge or loss may be added thereto for non-payment thereof except where contested in good faith and by appropriate proceedings if adequate reserves therefor have been established on the books of the Borrower or such Tax Affiliate in conformity with GAAP. Proper and accurate amounts have been withheld by the Borrower and each of its Tax Affiliates from their respective employees for all periods in full and complete compliance with the tax, social security and unemployment withholding provisions of applicable Requirements of Law and such withholdings have been timely paid to the respective Governmental Authorities.

 

(b) None of the Borrower or any of its Tax Affiliates has (i) incurred any obligation under any tax sharing agreement or arrangement other than those with FMC Wyoming and with FMC Technologies, Inc., copies of which have been made available to the Administrative Agent or (ii) been a member of an affiliated, combined or unitary group other than the group of which the Borrower (or its Tax Affiliate) is the common parent.

 

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Section 4.9 Full Disclosure

 

(a) The information prepared or furnished by or on behalf of the Borrower in connection with this Agreement, the Credit Agreement, the Indenture or the Senior Secured Notes or the consummation of the transactions contemplated hereunder and thereunder taken as a whole, including the information contained in the Disclosure Documents, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or herein not misleading.

 

(b) The Borrower has delivered (or otherwise made available through electronic access) to each Issuer a true, complete and correct copy of each Disclosure Document. The Disclosure Documents comply as to form in all material respects with all applicable requirements of all applicable state and Federal securities laws.

 

Section 4.10 Margin Regulations

 

The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U of the Federal Reserve Board), and no proceeds of any Letter of Credit will be used to purchase or carry any such margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock in contravention of Regulation T, U or X of the Federal Reserve Board.

 

Section 4.11 No Burdensome Restrictions; No Defaults

 

(a) Neither the Borrower nor any of its Subsidiaries (i) is a party to any Contractual Obligation the compliance with one or more of which would have, in the aggregate, a Material Adverse Effect or the performance of which by any thereof, either unconditionally or upon the happening of an event, would result in the creation of a Lien (other than a Lien permitted under Section 8.2 (Liens, Etc.) ) on the assets of any thereof or (ii) is subject to one or more charter or corporate restrictions that would, in the aggregate, be reasonably likely to have a Material Adverse Effect.

 

(b) Neither the Borrower nor any of its Subsidiaries is in default under or with respect to any Contractual Obligation owed by it and, to the knowledge of the Borrower, no other party is in default under or with respect to any Contractual Obligation owed to any Credit Party or to any Subsidiary of a Credit Party, other than, in either case, those defaults that, in the aggregate, would not be reasonably likely to have a Material Adverse Effect.

 

(c) No Default or Event of Default has occurred and is continuing.

 

(d) To the best knowledge of the Borrower, there are no Requirements of Law applicable to any Credit Party or any Subsidiary of any Credit Party the compliance with which by such Credit Party or such Subsidiary, as the case may be, would, in the aggregate, be reasonably likely to have a Material Adverse Effect.

 

Section 4.12 Investment Company Act; Public Utility Holding Company Act

 

Neither the Borrower nor any of its Subsidiaries is (a) an “ investment company ” or an “ affiliated Person ” of, or “ promoter ” or “ principal underwriter ” for, an “ investment company, ” as such terms are defined in the Investment Company Act of 1940, as amended or (b) a “ holding company, ” or an “ affiliate ” or a “ holding company ” or a “ subsidiary company ” of a “ holding company, ” as each such term is defined and used in the Public Utility Holding Company Act of 1935, as amended.

 

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Section 4.13 Use of Proceeds

 

The proceeds of the L/C Facility are being used by the Borrower solely for the issuance of standby “performance-based” Letters of Credit (as described in 12 CFR 3, App. A, Section 3(b)(2), footnote 15).

 

Section 4.14 Insurance

 

All policies of insurance of any kind or nature of the Borrower or any of its Subsidiaries are in full force and effect and are of a nature and provide such coverage as is sufficient and as is customarily carried by companies engaged in similar businesses and owning similar properties in the same general areas in which the Borrower or such Subsidiary operates.

 

Section 4.15 Labor Matters

 

(a) There are no strikes, work stoppages, slowdowns or lockouts pending or threatened against or involving the Borrower or any of its Subsidiaries, other than those that, in the aggregate, would not be reasonably likely to have a Material Adverse Effect.

 

(b) There are no unfair labor practices, grievances or complaints pending, or, to the Borrower’s knowledge, threatened, against or involving the Borrower or any of its Subsidiaries, nor are there any arbitrations or grievances threatened involving the Borrower or any of its Subsidiaries, other than those that, in the aggregate, would not be reasonably likely to have a Material Adverse Effect.

 

(c) Except as set forth on Schedule 4.15 (Labor Matters) , as of the Closing Date, there is no collective bargaining agreement covering any employee of the Borrower or its Subsidiaries.

 

(d) Schedule 4.15 (Labor Matters) sets forth as of the date hereof, all material consulting agreements, executive employment agreements, executive compensation plans, deferred compensation agreements, employee stock purchase and stock option plans and severance plans of the Borrower and any of its Subsidiaries.

 

Section 4.16 ERISA

 

(a) Schedule 4.16 (List of Plans) separately identifies as of the date hereof all Title IV Plans, all Multiemployer Plans and all of the employee benefit plans within the meaning of Section 3(3) of ERISA, to which the Borrower or any of its Subsidiaries has any obligation or liability, contingent or otherwise.

 

(b) Each employee benefit plan of the Borrower or any of its Subsidiaries intended to qualify under Section 401 of the Code does so qualify, and any trust created thereunder is exempt from tax under the provisions of Section 501 of the Code, except where such failures, in the aggregate, would not be reasonably likely to have a Material Adverse Effect.

 

(c) Each Title IV Plan is in compliance in all material respects with applicable provisions of ERISA, the Code and other Requirements of Law except for non-compliances that, in the aggregate, would not be reasonably likely to have a Material Adverse Effect.

 

(d) There has not been, nor is there reasonably expected to occur, any ERISA Event other than those that, in the aggregate, would not be reasonably likely to have a Material Adverse Effect.

 

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(e) Except to the extent set forth on Schedule 4.16 (List of Plans) , none of the Borrower, any of the Borrower’s Subsidiaries or any ERISA Affiliate would have any Withdrawal Liability as a result of a complete withdrawal as of the date hereof from any Multiemployer Plan.

 

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

 

(a) The operations of the Borrower and each of its Subsidiaries have been and are in compliance with all Environmental Laws, including obtaining and complying with all required Permits required under or by Environmental Laws (collectively, “ Environmental Permits ”), other than non-compliances that, individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect.

 

(b) None of the Borrower or any of its Subsidiaries or any real property currently or, to the knowledge of the Borrower, previously owned, operated or leased by or for the Borrower or any of its Subsidiaries is subject to any pending or, to the knowledge of the Borrower, threatened, claim, order, agreement, notice of potential liability or is the subject of any pending or threatened proceeding or governmental investigation under or pursuant to Environmental Laws other than those that, individually or in the aggregate, are not reasonably likely to have a Material Adverse Effect.

 

(c) Except as disclosed on Schedule 4.17 (Environmental Matters) , none of the real property owned or operated by the Borrower or any of its Subsidiaries is a treatment, storage or disposal facility requiring a Permit under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. and the regulations thereunder.

 

(d) There are no facts, circumstances or conditions arising out of or relating to the operations or ownership of the Borrower or of real property owned, operated or leased by the Borrower or any of its Subsidiaries that are not specifically included in the financial information furnished to the Issuers other than those that, individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect.

 

(e) As of the date hereof, no Environmental Lien has attached to any property of the Borrower or any of its Material Subsidiaries and, to the knowledge of the Borrower, no facts, circumstances or conditions exist that could reasonably be expected to result in any such Lien attaching to any such property.

 

(f) The Borrower and each of its Subsidiaries have made available to the Issuers copies of all material environmental, health or safety audits, studies, assessments, inspections, investigations or other environmental health and safety reports relating to the operations of the Borrower or any of its Subsidiaries or any real property of any of them that are in the possession, custody or control of the Borrower or any of its Subsidiaries.

 

Section 4.18 Intellectual Property

 

The Borrower and its Subsidiaries own or license or otherwise have the right to use all licenses, permits, patents, patent applications, trademarks, trademark applications, service marks, trade names, copyrights, copyright applications, franchises, authorizations and other intellectual property rights (including all Intellectual Property as defined in the Bank Security Agreement) that are necessary for the operations of their respective businesses, except where such failure would not be reasonably likely to have a Material Adverse Effect. To the Borrower’s actual knowledge, no slogan or other advertising device, product, process, method, substance, part or component, or other material now employed, or now

 

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contemplated to be employed, by the Borrower or any of its Subsidiaries infringes upon or conflicts with any valid and enforceable intellectual property rights owned by any other Person, except where such infringement or conflict would not be reasonably likely to have a Material Adverse Effect.

 

Section 4.19 Title; Real Property

 

(a) Each of the Borrower and its Subsidiary Guarantors has insurable title to, or valid leasehold interests in, all real property and good title to all personal property, in each case that is purported to be owned or leased by it, including those reflected on the most recent Financial Statements delivered by the Borrower, and none of such properties and assets is subject to any Lien, except Liens permitted under Section 8.2 (Liens, Etc.) . The Borrower and the Subsidiary Guarantors have received all deeds, assignments, waivers, consents, non-disturbance and recognition or similar agreements, bills of sale and other documents, and have duly effected all recordings, filings and other actions necessary to establish, protect and perfect the Borrower’s and such Subsidiary Guarantors’ right, title and interest in and to all such property, except where the failure to do so would not be reasonably likely to have a Material Adverse Effect.

 

(b) All Permits necessary for the conduct of the business in all material respects as presently conducted or all Permits required to have been issued or appropriate to enable all real property owned or leased by the Borrower or any of its Subsidiaries to be lawfully occupied and used for all of the purposes for which they are currently occupied and used have been lawfully issued and are in full force and effect, other than those that, in the aggregate, would not be reasonably likely to have a Material Adverse Effect.

 

(c) None of the Borrower or any of its Subsidiaries has received any notice, or has any knowledge, of any pending condemnation proceeding affecting any real property owned or leased by the Borrower or any of its Subsidiaries or any part thereof, except those that, in the aggregate, would not be reasonably likely to have a Material Adverse Effect.

 

Section 4.20 Credit Agreement, Indenture and Senior Secured Notes

 

(a) The execution, delivery and performance by each Credit Party of the Credit Agreement, the Indenture and the Senior Secured Notes, as applicable, and the consummation of the transactions contemplated thereby by such Credit Party:

 

(i) are within such Credit Party’s respective corporate, limited liability company, partnership or other powers;

 

(ii) have been duly authorized by all necessary corporate or other action, including the consent of stockholders where required;

 

(iii) do not and will not (A) contravene or violate any Credit Party’s or any of its Subsidiaries’ respective Constituent Documents, (B) violate any other Requirement of Law applicable to any Credit Party, or any order or decree of any Governmental Authority or arbitrator, (C) conflict with or result in the breach of, constitute a default under, or result in or permit the termination or acceleration of, any Contractual Obligation of any Credit Party or any of its Subsidiaries, except for those that, in the aggregate, would not be reasonably likely to have a Material Adverse Effect or (D) result in the creation or imposition of any Lien upon any property of any Credit Party or any of its Subsidiaries; and

 

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(iv) do not require the consent of, authorization by, approval of, notice to, or filing or registration with, any Governmental Authority or any other Person, other than those that (A) will have been obtained at the Closing Date, each of which will be in full force and effect on the Closing Date, none of which will on the Closing Date impose materially adverse conditions upon the exercise of control by the Borrower over any of its Subsidiaries and (B) in the aggregate, if not obtained, would not be reasonably likely to have a Material Adverse Effect.

 

(b) Each of the Credit Agreement, the Indenture and the Senior Secured Notes has been or at the Closing Date will have been duly executed and delivered by each Credit Party party thereto and at the Closing Date will be the legal, valid and binding obligation of each Credit Party party thereto, enforceable against such Credit Party in accordance with its terms.

 

Section 4.21 Deposit Accounts; Securities Accounts .

 

The only Deposit Accounts or Securities Accounts maintained by the Borrower or any of the Subsidiary Guarantors on the date hereof are those listed on Schedule 4.21 (Deposit Accounts; Securities Accounts), which sets forth such information separately for each such Credit Party.

 

ARTICLE V

 

F INANCIAL C OVENANTS

 

The Borrower agrees with the Issuers and the Administrative Agent to each of the following as long as any Obligation or any L/C Commitment remains outstanding and, in each case, unless the Requisite Issuers otherwise consent in writing:

 

Section 5.1 Maximum Leverage Ratio

 

The Borrower shall maintain, on each day of each Fiscal Quarter set forth below, a Leverage Ratio of not more than the maximum ratio set forth below opposite such Fiscal Quarter:

 

F ISCAL Q UARTERS E NDING


   M AXIMUM L EVERAGE R ATIO

December 31, 2002 through March 31, 2003

   4.95 to 1

June 30, 2003

   4.75 to 1

September 30, 2003

   4.50 to 1

December 31, 2003 through March 31, 2004

   4.25 to 1

June 30, 2004 through March 31, 2005

   3.75 to 1

June 30, 2005 through the Termination Date

   3.25 to 1

 

Section 5.2 Minimum Interest Coverage Ratio

 

The Borrower shall maintain an Interest Coverage Ratio, as determined as of the last day of each Fiscal Quarter set forth below, for the four Fiscal Quarters ending on such day, of at least the minimum ratio set forth below opposite such Fiscal Quarter:

 

F ISCAL Q UARTERS E NDING


  

M INIMUM I NTEREST

C OVERAGE R ATIO


December 31, 2002 through December 31, 2003

   2.50 to 1

March 31, 2004

   2.75 to 1

June 30, 2004 through December 31, 2004

   3.00 to 1

March 31, 2005 through the Termination Date

   3.25 to 1

 

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Section 5.3 Maintenance of Net Worth

 

The Borrower shall maintain at all times a Net Worth of not less than an amount equal to the sum of (i) $350,000,000 plus (ii) 50% of Consolidated Net Income (to the extent such amount is a positive number) for each Fiscal Quarter ending after June 30, 2002.

 

Section 5.4 Capital Expenditures

 

(a) The Borrower shall not make or incur, or permit to be made or incurred, Capital Expenditures during each of the Fiscal Years set forth below, in the aggregate, in excess of the maximum amount set forth below for such Fiscal Year:

 

F ISCAL Y EAR


  

M AXIMUM

C APITAL

E XPENDITURES


        2002

   $ 90,000,000

        2003

   $ 110,000,000

        2004

   $ 120,000,000

        2005

   $ 120,000,000

 

provided , however , that to the extent that actual Capital Expenditures for any such Fiscal Year shall be less than the maximum amount set forth above for such Fiscal Year (without giving effect to the carryover permitted by this proviso), 75% of the difference between said stated maximum amount and such actual Capital Expenditures shall, in addition, be available for Capital Expenditures in the next succeeding Fiscal Year.

 

(b) At any time a Permitted Acquisition is consummated, the relevant amount determined in accordance with the preceding clause (a) in respect of the Fiscal Year in which such acquisition is consummated shall be deemed automatically adjusted on a prospective basis by increasing such amount by an amount equal to the product of (i) an amount equal to 5% of the revenues of the business or entity being acquired for the last twelve (12) months for which financial statements are available prior to the date of consummation of such Permitted Acquisition, and (ii) a fraction, the numerator of which is the number of days remaining in the Fiscal Year during which the acquisition was consummated and the denominator of which is 365 or 366, as the case may be. In respect of subsequent Fiscal Years, the amount determined in accordance with the preceding clause (a) shall be increased by the amount specified in clause (i) of the preceding sentence.

 

ARTICLE VI

 

R EPORTING C OVENANTS

 

The Borrower agrees with the Issuers and the Administrative Agent to each of the following, as long as any Obligation or any L/C Commitment remains outstanding and, in each case, unless the Requisite Issuers otherwise consent in writing:

 

Section 6.1 Financial Statements

 

The Borrower shall furnish to the Administrative Agent (with sufficient copies for each of the Issuers) each of the following:

 

(a) Quarterly Reports . Within 45 days after the end of each Fiscal Quarter of each Fiscal Year, financial information regarding the Borrower and its Subsidiaries consisting of Consolidated unaudited balance sheets as of the close of such quarter and the related statements of income and cash flow for such quarter and that portion of the Fiscal Year ending as of the close of such quarter, setting forth in comparative form the figures for the corresponding period in the prior year, in each case certified by a Responsible Officer of the Borrower as fairly presenting the Consolidated financial position of the Borrower and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in accordance with GAAP (subject to the absence of footnote disclosure and normal year-end audit adjustments).

 

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(b) Annual Reports . Within 90 days after the end of each Fiscal Year, financial information regarding the Borrower and its Subsidiaries consisting of Consolidated and consolidating balance sheets of the Borrower and its Subsidiaries as of the end of such year and related statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Year, all prepared in conformity with GAAP and certified, in the case of such Consolidated Financial Statements, without qualification as to the scope of the audit by the Borrower’s Accountants, together with the report of such accounting firm stating that (i) such Financial Statements fairly present the Consolidated financial position of the Borrower and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except for changes with which the Borrower’s Accountants shall concur and that shall have been disclosed in the notes to the Financial Statements) and (ii) the examination by the Borrower’s Accountants in connection with such Consolidated Financial Statements has been made in accordance with generally accepted auditing standards.

 

(c) Compliance Certificate . Together with each delivery of any financial statement pursuant to clause (a) or (b) above, a certificate of a Responsible Officer of the Borrower (each, a “ Compliance Certificate ”) (i) showing in reasonable detail the calculations used in determining the Leverage Ratio (for purposes of determining the Applicable Unused Commitment Fee Rate) and demonstrating compliance with each of the financial covenants contained in Article V (Financial Covenants) that is tested on a quarterly basis, (ii) stating that no Default or Event of Default has occurred and is continuing or, if a Default or an Event of Default has occurred and is continuing, stating the nature thereof and the action that the Borrower proposes to take with respect thereto and (iii) setting forth, with respect to each Foreign Subsidiary, (i) the aggregate amount available, (ii) the aggregate amount of commitments, if any, and (iii) the aggregate principal amount outstanding under all Foreign Credit Lines as of such date;.

 

(d) Corporate Chart and Other Collateral Updates . To the extent that there has been any change in the following requested information since the date of the last delivery of the same by the Borrower, or as otherwise requested by the Administrative Agent, on or before each date on or before which Financial Statements are required to be delivered pursuant to clause (a) or (b) above, (i) a corporate organizational chart or other equivalent document, current as of the date of receipt of such chart by the Administrative Agent and, if later, such date for the delivery of Financial Statements, in form and substance reasonably acceptable to the Administrative Agent and certified as true, correct and complete by a Responsible Officer of the Borrower, setting forth, for the Borrower and for each Subsidiary Guarantor that is subject to Section 7.11 (Additional Collateral and Guaranties) , (A) the full legal name of such Person (and any trade name, fictitious name or other name such Person may have had or operated under), (B) the jurisdiction of organization and organizational number (if any) of such Person, (C) the location of such Person’s chief executive office (or sole place of business) and (D) the number of shares of each class of such Person’s Stock authorized (if applicable), the number outstanding as of the date of delivery, and the number and percentage of the outstanding shares of each such class owned (directly or indirectly) by any Credit Party and (ii) a certificate of a Responsible Officer of the Borrower in form and

 

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substance satisfactory to the Administrative Agent that all certificates, statements, updates and other documents (including updated schedules) required to be delivered pursuant to the Pledge and Security Agreements by any Credit Party in the preceding Fiscal Quarter have been delivered thereunder. The reporting requirements set forth in this clause (d) are in addition to, and are not intended to and shall not replace, relax or otherwise modify, any obligation of any Credit Party under any Credit Document (including other notice or reporting requirements). Compliance with the reporting obligations in this clause (d) shall not, by itself, operate to update any Schedule hereto or any schedule to any other Credit Document and shall not cure, or otherwise modify in any way, any failure to comply with any covenant, or any breach of any representation or warranty, contained in any Credit Document or any other Default or Event of Default.

 

(e) Business Plan . Not later than 60 days after the beginning of each Fiscal Year, (i) the annual business plan of the Borrower for such Fiscal Year approved by the Board of Directors of the Borrower, (ii) forecasts prepared by management of the Borrower for each of the succeeding Fiscal Years through the Fiscal Year in which the Scheduled Termination Date is scheduled to occur, including, in each instance described in clause (ii) above, (x) a projected year-end Consolidated balance sheet and income statement and statement of cash flows and (y) a statement of all of the material assumptions on which such forecasts are based, and (iii) the year-end estimate of the Borrower’s reserves for Environmental Liabilities and Costs. All such information shall be prepared in a format similar to the format required for the preparation of financial statements in accordance with GAAP.

 

(f) Management Letters, Etc. Within five Business Days after receipt thereof by any Credit Party, copies of each management letter, exception report or similar letter or report received by such Credit Party from its independent certified public accountants (including the Borrower’s Accountants).

 

(g) Intercompany Loan Balances . Together with each delivery of any financial statement pursuant to clause (a) above, a summary of the outstanding balance of all intercompany Indebtedness as of the last day of the fiscal quarter covered by such financial statement, certified by a Responsible Officer.

 

(h) Consolidated Net Tangible Assets. Concurrently with the delivery of any financial statements as at the end of any fiscal period pursuant to clauses (a) or (b) above of this Section 6.1 , a calculation, which calculation shall be certified by a Responsible Officer of the Borrower, of “ Consolidated Net Tangible Assets ” under and as defined in (x) each of the indentures governing the Existing Public Debt and (y) the Indenture, setting forth the aggregate amount of the Secured Obligations that may be secured by property of the Borrower and its Subsidiaries without requiring that such security be shared equally and ratably with the security issued under such indentures and the Indenture.

 

Section 6.2 Default Notices

 

As soon as practicable, and in any event within five Business Days after a Responsible Officer of any Credit Party has actual knowledge of the existence of any Default, Event of Default or other event having had a Material Adverse Effect or having any reasonable likelihood of causing or resulting in a Material Adverse Change, the Borrower shall give the Administrative Agent notice specifying the nature of such Default or Event of Default or other event, including the anticipated effect thereof, which notice, if given by telephone, shall be promptly confirmed in writing on the next Business Day.

 

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Section 6.3 Litigation

 

Promptly after the commencement thereof, the Borrower shall give the Administrative Agent written notice of the commencement of all actions, suits and proceedings before any domestic or foreign Governmental Authority or arbitrator, affecting the Borrower or any of its Subsidiaries that (i) seeks injunctive or similar relief that, if granted, would be reasonably likely to have a Material Adverse Effect or (ii) in the reasonable judgment of the Borrower or such Subsidiary, exposes the Borrower or such Subsidiary to liability that, if adversely determined, would be reasonably likely to have a Material Adverse Effect.

 

Section 6.4 Asset Sales

 

At least five (5) Business Days prior to any Asset Sale permitted by Section 8.4(h) (Sale of Assets) anticipated to generate in excess of $5,000,000 (or its Dollar Equivalent) in Net Cash Proceeds, the Borrower shall send the Administrative Agent a notice (a) describing such Asset Sale or the nature and material terms and conditions of such transaction and (b) stating the estimated Net Cash Proceeds anticipated to be received by the Borrower or any of its Subsidiaries.

 

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

 

Promptly after the sending or filing thereof, the Borrower shall send the Administrative Agent copies of all material notices, certificates or reports delivered pursuant to, or in connection with, the Credit Agreement, the Indenture, the Senior Secured Notes or any indenture governing the Existing Public Debt.

 

Section 6.6 SEC Filings; Press Releases

 

Promptly after the sending or filing thereof, the Borrower shall send the Administrative Agent copies, electronic or otherwise, of (a) all reports that the Borrower sends to its security holders generally, (b) all reports and registration statements that the Borrower or any of its Subsidiaries files with the SEC or any national or foreign securities exchange or the National Association of Securities Dealers, Inc., (c) all press releases and (d) all other statements concerning material changes or developments in the business of such Credit Party made available by any Credit Party to the public or any other creditor.

 

Section 6.7 Labor Relations

 

Promptly after becoming aware of the same, the Borrower shall give the Administrative Agent written notice of (a) any material labor dispute to which the Borrower or any of its Subsidiaries is or may become a party, including any strikes, lockouts or other disputes relating to any of such Person’s plants and other facilities, and (b) any Worker Adjustment and Retraining Notification Act or related liability incurred with respect to the closing of any plant or other facility of any such Person.

 

Section 6.8 Tax Returns

 

Upon the request of any Issuer, through the Administrative Agent, the Borrower shall provide copies of all federal, state, local and foreign tax returns and reports filed by the Borrower or any of its Subsidiaries in respect of taxes measured by income (excluding sales, use and like taxes).

 

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Section 6.9 Insurance

 

As soon as is practicable and in any event within 90 days after the end of each Fiscal Year, the Borrower shall furnish the Administrative Agent (in sufficient copies for each of the Issuers) with (a) a report in form and substance satisfactory to the Administrative Agent and the Issuers outlining all material insurance coverage maintained as of the date of such report by the Borrower and its Subsidiaries and the duration of such coverage and (b) a certificate of a Responsible Officer of the Borrower stating that all premiums then due and payable with respect to such coverage have been paid and confirming that the Administrative Agent and the Collateral Trustee has been named, to the extent required by the Credit Documents, as loss payee or additional insured, as applicable.

 

Section 6.10 ERISA Matters

 

The Borrower shall furnish the Administrative Agent (with sufficient copies for each of the Issuers) each of the following:

 

(a) promptly and in any event within 30 days after the Borrower, any of its Subsidiaries or any ERISA Affiliate knows or has reason to know that any ERISA Event has occurred, written notice describing such event;

 

(b) promptly and in any event within 10 days after the Borrower, any of its Subsidiaries or any ERISA Affiliate knows or has reason to know that a request for a minimum funding waiver under Section 412 of the Code has been filed with respect to any Title IV Plan or Multiemployer Plan, a written statement of a Responsible Officer of the Borrower describing such ERISA Event or waiver request and the action, if any, the Borrower, its Subsidiaries and ERISA Affiliates propose to take with respect thereto and a copy of any notice filed with the PBGC or the IRS pertaining thereto; and

 

(c) simultaneously with the date that the Borrower, any of its Subsidiaries or any ERISA Affiliate files a notice of intent to terminate any Title IV Plan, if such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA, a copy of each notice.

 

Section 6.11 Environmental Matters

 

(a) The Borrower shall provide the Administrative Agent promptly and in any event within 10 days after the Borrower or any Subsidiary obtains knowledge of any of the following, written notice of each of the following (but only to the extent that any of the following is reasonably likely to result in any unbudgeted Environmental Liabilities and Costs to the Borrower or any of its Subsidiaries in excess of $2,500,000):

 

(i) that any Credit Party is or may be liable to any Person as a result of a Release or threatened Release, notice or knowledge of a violation of or potential liability under Environmental Law, or the commencement of any judicial or administrative proceeding or investigation alleging a violation of or liability under any Environmental Law that could result in the Borrower incurring material unbudgeted Environmental Liabilities and Costs in any Fiscal Year;

 

(ii) the receipt by any Credit Party of notification that any real or personal property of such Credit Party is or is reasonably likely to be subject to any Environmental Lien; and

 

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(iii) any action by any Credit Party or any of its Subsidiaries or any change in Environmental Laws that, in the aggregate, have a reasonable likelihood of requiring the Credit Parties to obtain additional material Environmental Permits or make additional capital improvements to obtain compliance with Environmental Laws that, in the aggregate, would subject the Credit Parties to material unbudgeted Environmental Liabilities and Costs in any Fiscal Year.

 

(b) Upon written request by the Administrative Agent, the Borrower shall provide a report providing an update of the status of any environmental, health or safety compliance, hazard or liability issue identified in any notice or report delivered pursuant to this Agreement or in the Borrower’s SEC filings or if the Administrative Agent reasonably believes that there exists undisclosed conditions that could result in any Credit Party incurring material unbudgeted Environmental Liabilities and Costs; provided that the Administrative Agent shall make such request no more often than annually absent a continuing Event of Default.

 

(c) The Borrower shall provide notice to the Administrative Agent of any adjustment to the year-end estimate of the Borrower’s reserves for Environmental Liabilities and Costs provided pursuant to Section 6.1(e)(iii) that at any time reflects, in the aggregate, an increase of ten percent (10%) or more in the Borrower’s previous reserves for Environmental Liabilities and Costs.

 

Section 6.12 Other Information

 

The Borrower shall provide the Administrative Agent with such other information respecting the business, properties, condition, financial or otherwise, or operations of the Borrower or any of its Subsidiaries as the Administrative Agent or any Issuer through the Administrative Agent may from time to time reasonably request.

 

ARTICLE VII

 

A FFIRMATIVE C OVENANTS

 

The Borrower agrees with the Issuers and the Administrative Agent to each of the following, as long as any Obligation or any L/C Commitment remains outstanding and, in each case, unless the Requisite Issuers otherwise consent in writing:

 

Section 7.1 Preservation of Corporate Existence, Etc.

 

The Borrower shall, and shall cause each of its Subsidiaries to, preserve and maintain its legal existence, rights (charter and statutory) and franchises, except as permitted by Sections 8.3 (Investments), 8.4 (Sale of Assets) and 8.7 (Restriction on Fundamental Changes; Permitted Acquisitions) .

 

Section 7.2 Compliance with Laws, Etc.

 

The Borrower shall, and shall cause each of its Subsidiaries to, comply with all applicable Requirements of Law, Contractual Obligations and Permits, including ERISA and environmental laws, except where the failure so to comply would not, in the aggregate, be reasonably likely to have a Material Adverse Effect.

 

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Section 7.3 Conduct of Business

 

The Borrower shall, and shall cause each of its Subsidiaries to, (a) conduct its business in the ordinary course consistent with past practice and (b) use its reasonable efforts, in the ordinary course and consistent with past practice, to preserve its business and the goodwill and business of the customers, advertisers, suppliers and others having business relations with the Borrower or any of its Subsidiaries, except in each case where the failure to comply with the covenants in each of clauses (a) and (b) above would not, in the aggregate, be reasonably likely to have a Material Adverse Effect.

 

Section 7.4 Payment of Taxes, Etc.

 

The Borrower shall, and shall cause each of its Subsidiaries to, pay and discharge before the same shall become delinquent, all lawful governmental claims, taxes, assessments, charges and levies, except where contested in good faith, by proper proceedings and adequate reserves therefor have been established on the books of the Borrower or the appropriate Subsidiary in conformity with GAAP.

 

Section 7.5 Maintenance of Insurance

 

The Borrower shall (a) maintain for, itself, and cause to be maintained for each of its Subsidiaries, insurance with responsible and reputable insurance companies or associations in such amounts (subject to customary retentions and deductibles) and covering such risks as is usually carried by companies engaged in similar businesses and owning similar properties in the same general areas in which the Borrower or such Subsidiary operates and, in any event, all insurance required by any Collateral Documents and (b) cause all such insurance with respect to the Borrower and its Domestic Subsidiaries to name the Administrative Agent and the Collateral Trustee 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 Administrative Agent and the Collateral Trustee.

 

Section 7.6 Access

 

The Borrower shall from time to time permit the Administrative Agent and the Issuers, or any agents or representatives thereof, within two Business Days after written notification of the same (except that during the continuance of an Event of Default, no such notice shall be required) to (a) examine and make copies of and abstracts from the records and books of account of the Borrower and each of its Subsidiaries, (b) visit the properties of the Borrower and each of its Subsidiaries, (c) discuss the affairs, finances and accounts of the Borrower and each of its Subsidiaries with any of their respective officers or directors and (d) communicate directly with any of its certified public accountants (including the Borrower’s Accountants). The Borrower shall authorize its certified public accountants (including the Borrower’s Accountants) to disclose to the Administrative Agent or any Issuer any and all financial statements and other information of any kind, as the Administrative Agent or any Issuer reasonably requests from the Borrower and that such accountants may have with respect to the business, financial condition, results of operations or other affairs of the Borrower or any of its Subsidiaries.

 

Section 7.7 Keeping of Books

 

The Borrower shall, and shall cause each of its Subsidiaries to keep, proper books of record and account, in which full and correct entries shall be made in conformity with GAAP of all financial transactions and the assets and business of the Borrower and each such Subsidiary.

 

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Section 7.8 Maintenance of Properties, Etc.

 

The Borrower shall, and shall cause each of its Subsidiaries to, maintain and preserve (a) in good working order and condition all of its properties necessary in the conduct of its business, (b) all rights, permits, licenses, approvals and privileges (including all Permits) used or useful or necessary in the conduct of its business and (c) all registered patents, trademarks, trade names, copyrights and service marks with respect to its business, except where failure to so maintain and preserve the items set forth in clauses (a) , (b) and (c) above would not, in the aggregate, be reasonably likely to have a Material Adverse Effect.

 

Section 7.9 Application of Proceeds

 

The Borrower shall use the entire amount of the proceeds of the L/C Facility as provided in Section 4.13 (Use of Proceeds) .

 

Section 7.10 Environmental

 

The Borrower shall, and shall cause all of its Subsidiaries to, comply in all material respects with Environmental Laws and, without limiting the foregoing, the Borrower shall, at its sole cost and expense, upon receipt of any notification or otherwise obtaining knowledge of any Release or other event that has any reasonable likelihood of the Borrower and its Subsidiaries incurring material Environmental Liabilities and Costs, (a) conduct or pay for consultants to conduct, such tests or assessments of environmental conditions at such operations or properties as the Borrower deems appropriate under the circumstances and (b) take such Remedial Action and undertake such investigation or other action as required by Environmental Laws or as any Governmental Authority requires or as is appropriate and consistent with good business practice to address the Release or event and otherwise ensure compliance with Environmental Laws.

 

Section 7.11 Additional Collateral and Guaranties

 

To the extent not delivered to the Administrative Agent on or before the Closing Date, the Borrower agrees to do promptly each of the following:

 

(a) execute and deliver, and cause its Subsidiaries to execute and deliver, to the Administrative Agent such supplements, amendments and joinders to the Collateral Documents (or, in the case of any Subsidiary of the Borrower that is not a Domestic Subsidiary, foreign pledges and security agreements) as the Administrative Agent deems necessary or advisable in order to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected security interest in the Stock and Stock Equivalents and other debt Securities of any Credit Party or Subsidiary thereof that are owned by such Credit Party or such Subsidiary and requested to be pledged by the Administrative Agent; provided , however , that, unless otherwise agreed by the Borrower and the Administrative Agent, in no event shall such Credit Party or such Subsidiary be required to pledge in excess of 65% of the outstanding Voting Stock of any direct Subsidiary of any Borrower or Guarantor that is a Foreign Subsidiary (other than a Foreign Subsidiary that is a Foreign Borrower) or, unless such Stock is otherwise held by the Borrower or any other Guarantor, any of the Stock of any Subsidiary of such direct Subsidiary; and provided , further , that, unless otherwise agreed by the Borrower and the Administrative Agent, in no event shall FMC Wyoming or any Subsidiary of any Credit Party that is not a Domestic Subsidiary be required to guaranty the payment of the Obligations or grant a security interest in any of its assets to secure the Secured Obligations;

 

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(b) deliver to the Administrative Agent the certificates (if any) representing such Stock and Stock Equivalents and other debt Securities, together with (i) in the case of such certificated Stock and Stock Equivalents, undated stock powers endorsed in blank and (ii) in the case of such certificated debt Securities, endorsed in blank, in each case executed and delivered by a Responsible Officer of such Credit Party or such Subsidiary thereof, as the case may be;

 

(c) in the case of any Wholly-Owned Subsidiary of any Credit Party that is a Domestic Subsidiary, cause such Wholly-Owned Subsidiary (i) to execute a supplement, amendment or joinder or otherwise become a party to the U.S. Subsidiary Guaranty and the applicable Collateral Documents and (ii) to take such actions necessary or advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest in the Collateral described in the Collateral Documents with respect to such Wholly-Owned Subsidiary, including the filing of UCC financing statements in such jurisdictions as may be required by the Collateral Documents or by law or as may be reasonably requested by the Administrative Agent and compliance with Section 7.13 (Real Property) ; and

 

(d) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Agent.

 

Section 7.12 Non-Guarantor Subsidiaries

 

The Borrower shall require each Non-Guarantor Subsidiary, upon the receipt by such Non-Guarantor Subsidiary of any Net Cash Proceeds on account of any Asset Sale (other than as specified in clauses (a) through (g) of Section 8.4 ) in excess of $5,000,000 in the aggregate for all Asset Sales, to make a payment, dividend or other distribution to the Borrower or any Guarantor in the amount of such Net Cash Proceeds, but only to the extent (in the case of any Net Cash Proceeds received by any Foreign Subsidiary) such payment, dividend or distribution does not, in the reasonable judgment of the Borrower or such Guarantor, as the case may be, cause materially adverse tax consequences to the Borrower or the Guarantor that is the recipient thereof.

 

Section 7.13 Real Property

 

(a) If, at any time, any Domestic Subsidiary acquires a fee interest in any Material Real Property;

 

(i) at least 20 days prior to the closing of such acquisition, the Borrower shall provide the Administrative Agent written notice thereof; and

 

(ii) the Borrower shall cause the applicable Subsidiary to promptly execute, deliver and record a first priority Mortgage (subject to Liens permitted under this Agreement) in favor of the Administrative Agent or the Collateral Trustee, as applicable, on behalf and for the ratable benefit of the Secured Parties covering such Real Property (subordinate only to such Liens as are permitted hereunder), in form and substance reasonably satisfactory to the Administrative Agent, and provide the Administrative Agent with a Mortgagee’s Title Insurance Policy covering such Material Real Property in an amount equal to the purchase price of such Material Real Property, a current ALTA survey thereof, if available, local counsel opinions with respect thereto and such other agreements, documents and instruments as the Administrative Agent deems necessary or reasonably advisable, the same to be in form and substance satisfactory to the Administrative Agent and to be subject only to Liens permitted under Section 8.2 .

 

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Section 7.14 Restricted Cash Collateral Account

 

The Borrower shall, promptly after receipt of any funds previously withdrawn from the Restricted Cash Collateral Account that were used to collateralize any obligation described in the definition of Restricted Cash Collateral Account, deposit such funds in the Restricted Cash Collateral Account.

 

Section 7.15 Letters of Credit

 

Within twenty-one (21) days following the Closing Date and at all times thereafter, the aggregate L/C Outstandings shall be equal to at least ninety percent (90%) of the Total L/C Commitment.

 

ARTICLE VIII

 

N EGATIVE C OVENANTS

 

The Borrower agrees with the Issuers and the Administrative Agent to each of the following, as long as any Obligation or any L/C Commitment remains outstanding and, in each case, unless the Requisite Issuers otherwise consent in writing:

 

Section 8.1 Indebtedness

 

The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the following:

 

(a) the Secured Obligations;

 

(b) the Existing Indebtedness;

 

(c) the Foreign Credit Lines; provided that, at any time, the sum of (I) the aggregate amount of commitments under the Foreign Credit Lines and (ii) the aggregate principal amount outstanding under all uncommitted Foreign Credit Lines shall not exceed $180,000,000; and provided further , that the aggregate amount of Permitted Vendor Indebtedness shall not exceed the amount set forth on Schedule VI at any time;

 

(d) Guaranty Obligations incurred by the Borrower or any Guarantor in respect of Indebtedness of the Borrower or any Guarantor that is permitted by this Section 8.1 ;

 

(e) Capital Lease Obligations and purchase money Indebtedness incurred by the Borrower or a Subsidiary of the Borrower to finance the acquisition of fixed assets; provided , however , that the Capital Expenditure related thereto is otherwise permitted by Section 5.4 (Capital Expenditures) and that the aggregate outstanding principal amount of all such Capital Lease Obligations and purchase money Indebtedness shall not exceed $25,000,000 at any time;

 

(f) Indebtedness arising from intercompany loans (i) from the Borrower to any Guarantor, (ii) from any Guarantor to the Borrower or any other Guarantor, (iii) from the Borrower or any Guarantor to any Non-Guarantor Subsidiary, (iv) from any Non-Guarantor Subsidiary to any other Non-Guarantor Subsidiary and (v) from a Non-Guarantor Subsidiary to the Borrower or a Subsidiary Guarantor; provided , however , that, with respect to clause (iii) , (A) the Investment in the intercompany loan to such Subsidiary is permitted under Section 8.3 (Investments) , (B) all such intercompany loans

 

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shall not exceed an amount greater than $50,000,000 in the aggregate and (C) the Administrative Agent shall be granted a Lien on any such intercompany loans to the extent the granting of such Lien is not prohibited by applicable local law; provided further, however, that each such intercompany loan referred to in clause (iii) shall be evidenced by an intercompany note and (A) to the extent requested by the Administrative Agent, the Administrative Agent shall have a perfected security interest in such intercompany note and any related intercompany guaranties and (B) no Event of Default has occurred and is continuing at the time such Indebtedness is incurred or would result therefrom;

 

(g) Indebtedness arising under any performance or surety bond entered into in the ordinary course of business;

 

(h) Indebtedness of a Non-Guarantor Subsidiary in the form of overdraft or other cash management lines, factoring arrangements or other similar obligations;

 

(i) Hedging Contracts in the ordinary course of the Borrower’s or a Subsidiary of the Borrower’s business;

 

(j) Indebtedness under the Senior Secured Notes;

 

(k) Indebtedness not otherwise permitted under this Section 8.1 ; provided , however , that the aggregate principal amount of all such Indebtedness shall not exceed $25,000,000 at any time; and provided, further, however, that if such Indebtedness is secured, the Liens in connection therewith (i) shall not exist on any of the Collateral and (ii) shall be permitted by Section 8.2 ; and

 

(l) Renewals, extensions, refinancings and refundings of Indebtedness permitted by clauses (b), (c) or (i) above or this clause (l) ; provided , however , that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount of, and is on terms no less favorable to, the Borrower or the applicable Subsidiary, including as to weighted average maturity, than the Indebtedness being renewed, extended, refinanced or refunded (a “ Permitted Refinancing ”). Notwithstanding anything to the contrary herein, “ Permitted Refinancing ” shall also include a one-time extension of the Revolving Credit Facility; provided that the final maturity date thereof is a date on or subsequent to the Term Loan Maturity Date (as such term is defined in the Credit Agreement).

 

Section 8.2 Liens, Etc.

 

The Borrower shall not, and shall not permit any of its Subsidiaries to, create or suffer to exist, any Lien upon or with respect to any of their respective properties or assets, whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any right to receive income, except for the following:

 

(a) Liens created pursuant to the Credit Documents;

 

(b) Liens existing on the date of this Agreement and disclosed on Schedule 8.2 (Existing Liens) ;

 

(c) Customary Permitted Liens of the Borrower and the Borrower’s Subsidiaries;

 

(d) purchase money Liens granted by the Borrower or any Subsidiary of the Borrower (including Liens arising pursuant to Capital Leases and purchase money mortgages or security interests securing Indebtedness representing or financing the purchase price of equipment (or

 

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improvements to existing equipment) acquired by the Borrower or any Subsidiary of the Borrower) securing Indebtedness permitted under Section 8.1(e) (Indebtedness) and limited in each case to the property purchased with the proceeds of such purchase money Indebtedness or subject to such Capital Lease;

 

(e) any Lien securing the renewal, extension, refinancing or refunding of any Indebtedness secured by any Lien permitted by clause (b) or (d) above or this clause (e) without any change in the assets subject to such Lien and to the extent such renewal, extension, refinancing or refunding is permitted by Section 8.1 (Indebtedness) ;

 

(f) Liens in favor of lessors securing operating leases permitted hereunder;

 

(g) Liens on any tangible or intangible asset or property of a Foreign Subsidiary securing the Foreign Credit Lines of such Foreign Subsidiary or a Permitted Refinancing thereof or securing Indebtedness permitted by Section 8.1(f) ;

 

(h) Liens in respect of the Senior Secured Notes and the Existing Public Debt to the extent provided in the Collateral Documents;

 

(i) Liens in respect of the Credit Agreement;

 

(j) Liens on funds permitted to be withdrawn from the Restricted Cash Collateral Account by the terms of the Restricted Cash Collateral Account Agreement; and

 

(k) Liens on assets that are not Collateral and that are not otherwise permitted by the foregoing clauses of this Section 8.2 securing obligations or other liabilities of any Subsidiary; provided , however , that the aggregate outstanding amount of all such obligations and liabilities shall not exceed $25,000,000 at any time.

 

Section 8.3 Investments

 

The Borrower shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly make or maintain any Investment except for the following:

 

(a) Investments existing on the date of this Agreement and disclosed on Schedule 8.3 (Existing Investments);

 

(b) Investments in cash and Cash Equivalents held in a Deposit Account or a Control Account with respect to which the Administrative Agent for the benefit of the Secured Parties has a first priority perfected Lien (subject to Liens permitted under this Agreement);

 

(c) Investments in accounts, payment intangibles and chattel paper (each as defined in the UCC), notes receivable and similar items arising or acquired in the ordinary course of business consistent with the past practice of the Borrower and its Subsidiaries;

 

(d) Investments received in settlement of amounts due to the Borrower or any Subsidiary of the Borrower effected in the ordinary course of business;

 

(e) Investments by (i) the Borrower in any Guarantor or by any Guarantor in the Borrower or any other Guarantor, (ii) the Borrower or any Guarantor in connection with a Permitted Acquisition, (iii) a Non-Guarantor Subsidiary in the Borrower or any other Subsidiary of the Borrower or

 

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(iv) the Borrower or any Guarantor in a Non-Guarantor Subsidiary; provided , however , that with respect to the Investments referred to in clause (iv) above, such Investments (A) shall be in the form of intercompany loans and (B) shall be permitted by Section 8.1 ; provided further, however, that (i) to the extent requested by the Administrative Agent, the Administrative Agent has a perfected security interest in the intercompany note evidencing such intercompany loan and any related intercompany guaranties and (ii) no Event of Default has occurred and is continuing at the time such Investment is made or would result therefrom;

 

(f) loans or advances to employees of the Borrower or any of its Subsidiaries in the ordinary course of business as presently conducted other than any loans or advances to any director or executive officer (or equivalent thereof) that would be in violation of Section 402 of the Sarbanes-Oxley Act; provided , however , that the aggregate principal amount of all such loans and advances shall not exceed $2,000,000 at any time;

 

(g) Investments constituting Guaranty Obligations permitted by Section 8.1 (Indebtedness) ;

 

(h) Investments consisting of payments on guarantees constituting Permitted Vendor Indebtedness;

 

(i) Investments not otherwise permitted hereby; provided, however, that the aggregate outstanding amount of all such Investments shall not exceed $25,000,000 at any time;

 

(j) Investments by the Borrower or any Guarantor in a Non-Guarantor Subsidiary to the extent such Investments are required in order to comply with “ thin capitalization ” rules of the Code, the capitalization regulations of any other jurisdiction, exchange control regulations or any similar applicable law; provided that all such Investments for which the Borrower or such Guarantor shall not have received payment of an equivalent amount directly or indirectly within 45 days of such Investment shall not, at any time, exceed an aggregate amount equal to $25,000,000;

 

(k) Investments constituting (A) the Astaris Power Payments and (B) the Astaris Secured Payments; and

 

(l) Investments constituting loans and advances to customers and suppliers of the Borrower and its Subsidiaries made in the ordinary course of business and consistent with past practice and in an aggregate amount not to exceed $5,000,000 at any time.

 

Section 8.4 Sale of Assets

 

The Borrower shall not, and shall not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs, or sell, convey, transfer, lease (including in a sale and leaseback transaction) or otherwise dispose of, all or any part of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of their respective assets or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary’s Stock or Stock Equivalent (any such disposition being an “ Asset Sale ”), in each case whether domestic or foreign, except for the following:

 

(a) the sale or disposition of inventory in the ordinary course of business;

 

(b) the sale or disposition of equipment that has become obsolete or is replaced in the ordinary course of business; provided , however , that, other than in respect of the sale of the Pocatello

 

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Equipment, the aggregate Fair Market Value of all such equipment disposed of in any Fiscal Year shall not exceed $5,000,000; and provided further, however , that the proceeds from any sale in respect of the Pocatello Equipment shall be used solely to fund obligations in respect of required Remedial Action;

 

(c) the lease or sublease of real property not constituting a sale and leaseback, to the extent not otherwise prohibited by this Agreement;

 

(d) assignments and licenses of intellectual property of the Borrower and its Subsidiaries in the ordinary course of business;

 

(e) any Like Kind Exchange;

 

(f) any transfer of assets by the Borrower or any of its Subsidiaries as consideration for an Investment permitted by Section 8.3 ;

 

(g) any Asset Sale to the Borrower or any Guarantor (other than any Principal Property (as defined in the indentures governing the Existing Public Debt)); and

 

(h) as long as no Default or Event of Default is continuing or would result therefrom, any other Asset Sale for Fair Market Value, payable in cash upon such sale; provided , however , that with respect to any such Asset Sale pursuant to this clause (h) , all Net Cash Proceeds of such Asset Sale are applied as set forth in, and to the extent required by, Section 2.3 (Mandatory Cash Collateralization/Prepayments) .

 

Section 8.5 Restricted Payments

 

The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Payment except for the following:

 

(a) Restricted Payments by any Subsidiary of the Borrower to the Borrower or any Guarantor;

 

(b) (i) dividends payable to the Borrower’s or any of its Subsidiary’s joint venture partners on a pro rata basis in accordance with their respective equity interests and (ii) dividends payable to the Borrower’s joint venture partners in respect of FMC Wyoming; provided that the Borrower shall have received the share of dividends payable to it in accordance with the terms of the FMC Wyoming Agreement;

 

(c) dividends and distributions declared and paid on the common Stock of the Borrower and payable only in common Stock of the Borrower;

 

(d) Restricted Payments in the form of purchases of Stock of a Subsidiary of the Borrower to the extent permitted by Section 8.3(i) ; and

 

(e) repurchases of Stock of the Borrower resulting from the cashless exercise of stock options in accordance with the provisions of stock option plans maintained by the Borrower and/or in connection with the contribution of Stock to employee benefit plans maintained by the Borrower.

 

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Section 8.6 Prepayment and Cancellation of Indebtedness

 

(a) The Borrower shall not, and shall not permit any of its Subsidiaries to, cancel any claim or Indebtedness owed to any of them except in the ordinary course of business consistent with past practice.

 

(b) The Borrower shall not, and shall not permit any of its Subsidiaries to, prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of any subordination terms of, any Indebtedness, including the Senior Secured Notes; provided , however , that the Borrower may (i) prepay the Obligations in accordance with the terms of this Agreement, (ii) make regularly scheduled or otherwise required repayments, repurchases or redemptions of Existing Indebtedness, (iii) prepay Indebtedness under the Existing Credit Agreements and the Securitization Facility with the proceeds of the initial Borrowings hereunder, (iv) prepay any Indebtedness payable to the Borrower by any of its Subsidiaries, (v) renew, extend, refinance and refund Indebtedness, so long as such renewal, extension, refinancing or refunding is permitted under Section 8.1(l) (Indebtedness) , (vi) redeem, repurchase or otherwise satisfy any Existing Public Debt maturing prior to December 31, 2003, (vii) consummate the exchange offer for the Senior Secured Notes issued on the Closing Date in accordance with the registration rights agreement dated the Closing Date among the Borrower and the initial purchasers of the Senior Secured Notes and (viii) prepay the obligations under the Credit Agreement in accordance with the terms thereof.

 

Section 8.7 Restriction on Fundamental Changes; Permitted Acquisitions

 

Except in connection with a Permitted Acquisition, the Borrower shall not, and shall not permit any of its Subsidiaries to, (a) merge with any Person other than the Borrower or a Guarantor, (b) consolidate with any Person, (c) acquire all or substantially all of the Stock or Stock Equivalents of any Person, (d) acquire all or substantially all of the assets of any Person or all or substantially all of the assets constituting the business of a division, branch or other unit operation of any Person, (e) enter into any joint venture or partnership with any Person or (f) acquire or create any Subsidiary unless, after giving effect to such creation or acquisition, such Subsidiary is a Wholly-Owned Subsidiary of the Borrower, the Borrower is in compliance with Section 7.11 (Additional Collateral and Guaranties) and the Investment in such Subsidiary is permitted under Section 8.3(c) (Investments) .

 

Section 8.8 Change in Nature of Business

 

The Borrower shall not, and shall not permit any of its Subsidiaries to, make any material change in the nature or conduct of FMC’s Business, whether in connection with a Permitted Acquisition or otherwise.

 

Section 8.9 Transactions with Affiliates

 

The Borrower shall not, and shall not permit any of its Subsidiaries to, except as otherwise expressly permitted herein, do any of the following: (a) make any Investment in an Affiliate of the Borrower that is not a Subsidiary of the Borrower, (b) transfer, sell, lease, assign or otherwise dispose of any asset to any Affiliate of the Borrower that is not a Subsidiary of the Borrower, (c) merge into or consolidate with or purchase or acquire assets from any Affiliate of the Borrower that is not a Subsidiary of the Borrower, (d) repay any Indebtedness to any Affiliate of the Borrower that is not a Subsidiary of the Borrower or (e) enter into any other transaction directly or indirectly with or for the benefit of any Affiliate of the Borrower that is not a Guarantor (including guaranties and assumptions of obligations of any such Affiliate), except for (i) payments under contracts existing as of the Closing Date and transactions in the ordinary course of business, in each case on a basis no less favorable to the Borrower or such

 

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Guarantor as would be obtained in a comparable arm’s length transaction with a Person not an Affiliate, including with respect to the payment of management fees to such Affiliate, and (ii) the payment of salaries and other director or employee compensation to officers or directors of the Borrower or any of its Subsidiaries commensurate with current compensation levels (including increases consistent with customary policies and practices), customary advances and indemnities provided to directors and officers and arrangements relating to the foregoing.

 

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

 

Except as set forth on Schedule 8.10 and in the Credit Documents, the Indenture and any agreements governing Existing Indebtedness and the Foreign Credit Lines, and pursuant to purchase money Indebtedness or Capital Lease Obligations permitted by Section 8.1(b) , (c) or (e) (which, in the case of clause (e) , prohibition or limitation shall only be effective against the assets financed thereby), and any Permitted Refinancing, the Borrower shall not, and shall not permit any of its Subsidiaries to, (a) agree to enter into or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of such Subsidiary to pay dividends or make any other distribution or transfer of funds or assets or make loans or advances to or other Investments in, or pay any Indebtedness owed to, the Borrower or any other Subsidiary of the Borrower or (b) enter into or suffer to exist or become effective any agreement prohibiting or limiting the ability of the Borrower or any Subsidiary to create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, to secure the Obligations, including any agreement requiring any other Indebtedness or Contractual Obligation to be equally and ratably secured with the Obligations.

 

Section 8.11 Modification of Constituent Documents

 

The Borrower shall not, nor shall it permit any of its Subsidiaries to, change its capital structure (including in the terms of its outstanding Stock) or otherwise amend its Constituent Documents, except for changes and amendments that would not reasonably be expected to have a Material Adverse Effect.

 

Section 8.12 Accounting Changes; Fiscal Year

 

The Borrower shall not, and shall not permit any of its Subsidiaries to, change its (a) accounting treatment and reporting practices or tax reporting treatment, except as required or permitted by GAAP, or (b) Fiscal Year.

 

Section 8.13 Margin Regulations

 

The Borrower shall not, and shall not permit any of its Subsidiaries to, use all or any portion of the proceeds of any credit extended hereunder to purchase or carry margin stock (within the meaning of Regulation U of the Federal Reserve Board) in contravention of Regulation U of the Federal Reserve Board.

 

Section 8.14 Operating Leases; Sale/Leasebacks

 

(a) The Borrower shall not, and shall not permit any of its Subsidiaries to, become or remain liable as lessee or guarantor or other surety with respect to any operating lease, unless the aggregate amount of all rents paid or accrued under all such operating leases shall not exceed $25,000,000 in any Fiscal Year.

 

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(b) The Borrower shall not, and shall not permit any of its Subsidiaries to, enter into any sale and leaseback transaction if, after giving effect to such sale and leaseback transaction, the aggregate Fair Market Value of all properties covered by sale and leaseback transactions would exceed $50,000,000.

 

Section 8.15 No Speculative Transactions

 

The Borrower shall not, and shall not permit any of its Subsidiaries to, enter into any Hedging Contract solely for speculative purposes or other than for the purpose of hedging risks associated with the businesses of the Borrower and its Subsidiaries, as done in the ordinary course of such businesses.

 

Section 8.16 Compliance with ERISA

 

The Borrower shall not cause or permit to occur, and shall not permit any of its Subsidiaries or ERISA Affiliates to cause or permit to occur, (a) an event that could result in the imposition of a Lien under Section 412 of the Code or Section 302 or 4068 of ERISA or (b) ERISA Events that would have a Material Adverse Effect in the aggregate.

 

Section 8.17 Transfer of Principal Properties

 

The Borrower shall not transfer to any of its Subsidiaries any Principal Property (as such term is defined in the indentures governing the Existing Public Debt) until after the Borrower shall have provided sufficient documentation to the Administrative Agent and/or Collateral Trustee, as applicable, and taken all necessary actions with respect to such Principal Property in order to preserve the Lien on and security interest in such Principal Property in favor of the Administrative Agent and/or Collateral Trustee, as applicable, and the relative priority of such Lien.

 

Section 8.18 Debt Reserve Collateral Account and Restricted Cash Collateral Account

 

The Borrower shall not withdraw funds from (i) the Debt Reserve Collateral Account except for the purposes set forth in the Debt Reserve Collateral Account Agreement, and (ii) the Restricted Cash Collateral Account except for the purposes set forth in the Restricted Cash Collateral Account Agreement.

 

ARTICLE IX

 

E VENTS OF D EFAULT

 

Section 9.1 Events of Default

 

Each of the following events shall be an Event of Default:

 

(a) the Borrower shall fail to pay any principal of any Reimbursement Obligation when the same becomes due and payable; or

 

(b) the Borrower shall fail to pay any interest on any Letter of Credit Obligation, any fee under any of the Credit Documents or any other Obligation (other than one referred to in clause (a) above) and such non-payment continues for a period of three Business Days after the due date therefor; or

 

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(c) any representation or warranty made or deemed made by any Credit Party in any Credit Document or by any Credit Party (or any of its officers) in connection with any Credit Document shall prove to have been incorrect in any material respect when made or deemed made; or

 

(d) any Credit Party shall fail to perform or observe (i) any term, covenant or agreement contained in Article V (Financial Covenants), Section 6.1 (Financial Statements), 6.2 (Default Notices), 7.1 (Preservation of Corporate Existence, Etc.), 7.9 (Application of Proceeds), 7.11 (Additional Collateral and Guaranties), or 7.13 (Non-Guarantor Subsidiaries) or Article VIII (Negative Covenants) or (ii) any other term, covenant or agreement contained in this Agreement or in any other Credit Document if such failure under this clause (ii) shall remain unremedied for 30 days after the earlier of (A) the date on which a Responsible Officer of the Borrower becomes aware of such failure and (B) the date on which written notice thereof shall have been given to the Borrower by the Administrative Agent or any Issuer; or

 

(e) (i) the Borrower or any of its Subsidiaries shall fail to make any (A) payment on any Indebtedness of the Borrower or any such Subsidiary (other than the Obligations) or any Guaranty Obligation in respect of Indebtedness of any other Person, and, in each case, such failure relates to Indebtedness having an aggregate outstanding principal amount of $25,000,000 or more, (B) payments under the Foreign Credit Lines, and such failure relates to Foreign Credit Lines having an aggregate outstanding principal amount of $25,000,000 or more, or (C) Astaris Secured Payments, in each case when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), (ii) any other event shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness or (iii) any such Indebtedness shall become or be declared to be due and payable, or required to be prepaid or repurchased (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof; or

 

(f) (i) the Borrower or any of its Material Subsidiaries shall generally not pay its debts as such debts become due, shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors, (ii) any proceeding shall be instituted by or against the Borrower or any of its Material Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts, under any Requirement of Law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a custodian, receiver, trustee or other similar official for it or for any substantial part of its property; provided , however , that, in the case of any such proceedings instituted against the Borrower or any of its Material Subsidiaries (but not instituted by the Borrower or any of its Material Subsidiaries), either such proceedings shall remain undismissed or unstayed for a period of 30 days or more or any action sought in such proceedings shall occur or (iii) the Borrower or any of its Material Subsidiaries shall take any corporate action to authorize any action set forth in clauses (i) and (ii) above; or

 

(g) one or more judgments or orders (or other similar process) involving, in the case of money judgments, an aggregate amount in excess of $25,000,000, to the extent not covered by insurance, shall be rendered against one or more of any Credit Party and its Subsidiaries and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or

 

(h) an ERISA Event shall occur and the amount of all liabilities and deficiencies resulting therefrom, whether or not assessed, exceeds $25,000,000 in the aggregate; or

 

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(i) any provision of any Collateral Document or any Guaranty after delivery thereof pursuant to this Agreement or any other Credit Document shall for any reason cease to be valid and binding on, or enforceable against, any Credit Party party thereto, or any Credit Party shall so state in writing; or

 

(j) any Collateral Document shall for any reason fail or cease to create a valid Lien on any Collateral purported to be covered thereby or, except as permitted by the Credit Documents, such Lien shall fail or cease to be a perfected Lien with the priority set forth in such Credit Document or any Credit Party shall so state in writing; or

 

(k) there shall occur a “ Default ” or an “ Event of Default ” under and as defined in the Credit Agreement;

 

(l) there shall occur any Change of Control;

 

(m) one or more of the Borrower and its Subsidiaries shall have entered into one or more consent or settlement decrees or agreements or similar arrangements with a Governmental Authority or one or more judgments, orders, decrees or similar actions shall have been entered against one or more of the Borrower and its Subsidiaries based on or arising from the violation of or pursuant to any Environmental Law, or the generation, storage, transportation, treatment, disposal or Release of any Contaminant and, in connection with all the foregoing, the Borrower and its Subsidiaries are likely to incur Environmental Liabilities and Costs in excess of $25,000,000 in the aggregate, net of amounts available under insurance and contributions from third parties that were not reflected in the Financial Statements delivered pursuant to Section 4.4 (Financial Statements) and the notes thereto.

 

Section 9.2 Remedies

 

During the continuance of any Event of Default, the Administrative Agent (a) may, and, at the request of the Requisite Issuers, shall, by notice to the Borrower declare that all or any portion of the L/C Commitments be terminated, whereupon the obligation of each Issuer to Issue any Letter of Credit shall immediately terminate and (b) may and, at the request of the Requisite Issuers, shall, by notice to the Borrower, declare the Letter of Credit Obligations, all interest thereon and all other amounts and Obligations payable under this Agreement to be forthwith due and payable, whereupon the Letter of Credit Obligations, all such interest and all such amounts and Obligations shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided , however , that upon the occurrence of the Events of Default specified in Section 9.1 (f) (Events of Default) , (x) the L/C Commitment of each Issuer to Issue or participate in Letters of Credit shall each automatically be terminated and (y) the Letter of Credit Obligations, all such interest and all such amounts and Obligations shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower. In addition to the remedies set forth above, the Administrative Agent may exercise any remedies provided for by the Collateral Documents in accordance with the terms thereof or any other remedies provided by applicable law.

 

Section 9.3 Actions in Respect of Letters of Credit

 

Upon the Termination Date or as may be required by Section 2.3(c) (Mandatory Cash Collateralization/Prepayments) and at any time after the Termination Date when the aggregate amount of funds in the Cash Collateral Account shall be less than the Letter of Credit Obligations, the Borrower shall pay to the Administrative Agent in immediately available funds at the Administrative Agent’s office referred to in Section 11.8 (Notices, Etc.) , for deposit in a Cash Collateral Account, an amount equal to (a)

 

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105% of the sum of all outstanding Letter of Credit Obligations less (b) the aggregate amount of funds in the Cash Collateral Account. The Administrative Agent may, from time to time after funds are deposited in any Cash Collateral Account, apply funds then held in such Cash Collateral Account to the payment of any amounts, in accordance with Section 2.6(f) (Payments and Computations) , as shall have become or shall become due and payable by the Borrower to the Issuers in respect of the Letter of Credit Obligations. The Administrative Agent shall promptly give written notice of any such application; provided , however , that the failure to give such written notice shall not invalidate any such application.

 

Section 9.4 Rescission

 

If at any time after termination of the L/C Commitments or acceleration of the maturity of the Letter of Credit Obligations, the Borrower shall pay all arrears of interest and all payments on account of the Reimbursement Obligations that shall have become due otherwise than by acceleration (with interest on principal and, to the extent permitted by law, on overdue interest, at the rates specified herein) and all Events of Default and Defaults (other than non-payment of Reimbursement Obligations and accrued interest on the Letter of Credit Obligations due and payable solely by virtue of acceleration) shall be remedied or waived pursuant to Section 11.1 (Amendments, Waivers, Etc.) , then upon the written consent of the Requisite Issuers and written notice to the Borrower, the termination of the L/C Commitments or the acceleration and their consequences may be rescinded and annulled; provided , however , that such action shall not affect any subsequent Event of Default or Default or impair any right or remedy consequent thereon. The provisions of the preceding sentence are intended merely to bind the Issuers and the Issuers to a decision that may be made at the election of the Requisite Issuers, and such provisions are not intended to benefit the Borrower and do not give the Borrower the right to require the Issuers to rescind or annul any acceleration hereunder, even if the conditions set forth herein are met.

 

ARTICLE X

 

T HE A DMINISTRATIVE A GENT

 

Section 10.1 Authorization and Action

 

(a) Each Issuer hereby appoints CUSA as the Administrative Agent hereunder and each Issuer authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Credit Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Issuer hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Credit Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Credit Documents and, in the case of the Collateral Documents, to act as agent for the Issuers and the other Secured Parties under such Collateral Documents.

 

(b) As to any matters not expressly provided for by this Agreement and the other Credit Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Issuers, and such instructions shall be binding upon all Issuers; provided , however , that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to personal liability unless the Administrative Agent receives an indemnification satisfactory to it from the Issuers with respect to such action or (ii) is contrary to this Agreement or applicable law. The Administrative Agent agrees to give to each Issuer prompt notice of each notice given to it by any Credit Party pursuant to the terms of this Agreement or the other Credit Documents.

 

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(c) In performing its functions and duties hereunder and under the other Credit Documents, the Administrative Agent is acting solely on behalf of the Issuers and its duties are entirely administrative in nature. The Administrative Agent does not assume and shall not be deemed to have assumed any obligation other than as expressly set forth herein and in the other Credit Documents or any other relationship as the agent, fiduciary or trustee of or for any Issuer or holder of any other Obligation. The Administrative Agent may perform any of its duties under any Credit Document by or through its agents or employees.

 

Section 10.2 Administrative Agent’s Reliance, Etc.

 

None of the Administrative Agent, any of its Affiliates or any of their respective directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it, him, her or them under or in connection with this Agreement or the other Credit Documents, except for its, his, her or their own gross negligence or willful misconduct. Without limiting the foregoing, the Administrative Agent (a) may rely on the Register to the extent set forth in Section 11.2(c) (Assignments and Participations) , (b) may consult with legal counsel (including counsel to the Borrower or any other Credit Party), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts, (c) makes no warranty or representation to any Issuer and shall not be responsible to any Issuer for any statements, warranties or representations made by or on behalf of the Borrower or any of its Subsidiaries in or in connection with this Agreement or any other Credit Document, (d) shall not have any duty to ascertain or to inquire either as to the performance or observance of any term, covenant or condition of this Agreement or any other Credit Document, as to the financial condition of any Credit Party or as to the existence or possible existence of any Default or Event of Default, (e) shall not be responsible to any Issuer for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the attachment, perfection or priority of any Lien created or purported to be created under or in connection with, this Agreement, any other Credit Document or any other instrument or document furnished pursuant hereto or thereto and (f) shall incur no liability under or in respect of this Agreement or any other Credit Document by acting upon any notice, consent, certificate or other instrument or writing (which writing may be a telecopy or electronic mail) or any telephone message believed by it to be genuine and signed or sent by the proper party or parties.

 

Section 10.3 The Administrative Agent Individually

 

With respect to its Ratable Portion, CUSA shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Issuer. The terms “ Issuers ”, “ Requisite Issuers ” and any similar terms shall, unless the context clearly otherwise indicates, include, without limitation, the Administrative Agent in its individual capacity as an Issuer or as one of the Requisite Issuers. CUSA and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of banking, trust or other business with, any Credit Party as if CUSA were not acting as the Administrative Agent.

 

Section 10.4 Issuer Credit Decision

 

Each Issuer acknowledges that it shall, independently and without reliance upon the Administrative Agent or any other Issuer conduct its own independent investigation of the financial condition and affairs of the Borrower and each other Credit Party in connection with the issuance of the Letters of Credit. Each Issuer also acknowledges that it shall, independently and without reliance upon the Administrative Agent or any other Issuer and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the other Credit Documents.

 

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Section 10.5 Indemnification

 

Each Issuer agrees to indemnify the Administrative Agent and each of its Affiliates, and each of their respective directors, officers, employees, agents and advisors (to the extent not reimbursed by the Borrower), from and against such Issuer’s aggregate Ratable Portion of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses and disbursements (including fees, expenses and disbursements of financial and legal advisors) of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against, the Administrative Agent or any of its Affiliates, directors, officers, employees, agents and advisors in any way relating to or arising out of this Agreement or the other Credit Documents or any action taken or omitted by the Administrative Agent under this Agreement or the other Credit Documents; provided , however , that no Issuer shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s or such Affiliate’s gross negligence or willful misconduct. Without limiting the foregoing, each Issuer agrees to reimburse the Administrative Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including fees, expenses and disbursements of financial and legal advisors) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of its rights or responsibilities under, this Agreement or the other Credit Documents, to the extent that the Administrative Agent is not reimbursed for such expenses by the Borrower or another Credit Party.

 

Section 10.6 Successor Administrative Agent

 

The Administrative Agent may resign at any time by giving written notice thereof to the Issuers and the Borrower. Upon any such resignation, the Requisite Issuers shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Requisite Issuers, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s giving of notice of resignation, then the retiring Administrative Agent may, on behalf of the Issuers, appoint a successor Administrative Agent, selected from among the Issuers. In either case, such appointment shall be subject to the prior written approval of the Borrower (which approval may not be unreasonably withheld and shall not be required upon the occurrence and during the continuance of an Event of Default). Upon the acceptance of any appointment as Administrative Agent by a successor Administrative Agent, such successor Administrative Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement and the other Credit Documents. Prior to any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the retiring Administrative Agent shall take such action as may be reasonably necessary to assign to the successor Administrative Agent its rights as Administrative Agent under the Credit Documents. After such resignation, the retiring Administrative Agent shall continue to have the benefit of this Article X as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement and the other Credit Documents.

 

Section 10.7 Concerning the Collateral and the Collateral Documents

 

(a) Each Issuer agrees that any action taken by the Administrative Agent or the Requisite Issuers (or, where required by the express terms of this Agreement, a greater proportion of the Issuers) in accordance with the provisions of this Agreement or of the other Credit Documents, and the exercise by the Administrative Agent or the Requisite Issuers (or, where so required, such greater proportion) of the powers set forth herein or therein, together with such other powers as are reasonably

 

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incidental thereto, shall be authorized and binding upon all of the Issuers. Without limiting the generality of the foregoing, the Administrative Agent shall have the sole and exclusive right and authority to (i) act as the disbursing and collecting agent for the Issuers with respect to all payments and collections arising in connection herewith and with the Collateral Documents, (ii) execute and deliver each Collateral Document and accept delivery of each such agreement delivered by the Borrower or any of its Subsidiaries, (iii) act as collateral agent for the Issuers for purposes of the perfection of all security interests and Liens created by such agreements and all other purposes stated therein; provided , however , that the Administrative Agent hereby appoints, authorizes and directs each Issuer to act as collateral subagent for the Administrative Agent, the Issuers for purposes of the perfection of all security interests and Liens with respect to the Borrower’s and its Subsidiaries’ respective Deposit Accounts maintained with, and cash and Cash Equivalents held by, such Issuer, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such action as is necessary or desirable to maintain the perfection and priority of the security interests and Liens created or purported to be created by the Collateral Documents and (vi) except as may be otherwise specifically restricted by the terms hereof or of any other Credit Document, exercise all remedies given to the Administrative Agent, the Issuers with respect to the Collateral under the Credit Documents relating thereto, applicable law or otherwise.

 

(b) Each of the Issuers hereby directs, in accordance with the terms hereof and subject to the release provisions in the Bank Security Agreement and the Collateral Trust Agreement, the Administrative Agent to release (or, in the case of clause (ii) below, release or subordinate) any Lien held by the Administrative Agent for the benefit of the Issuers against any of the following:

 

(i) all of the Collateral, upon termination of the L/C Commitments and payment and satisfaction in full of all Reimbursement Obligations and all other Obligations that the Administrative Agent has been notified in writing are then due and payable (and, in respect of contingent Letter of Credit Obligations, with respect to which cash collateral has been deposited or a back-up letter of credit has been issued, in either case on terms satisfactory to the Administrative Agent and the Issuers);

 

(ii) any assets that are subject to a Lien permitted by Section 8.2(d) or (e) (Liens, Etc.) ; and

 

(iii) any part of the Collateral sold or disposed of by a Credit Party if such sale or disposition is permitted by this Agreement (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited by this Agreement).

 

Each of the Issuers hereby directs the Administrative Agent to execute and deliver or file such termination and partial release statements and do such other things as are necessary to release Liens to be released pursuant to this Section 10.7 promptly upon the effectiveness of any such release.

 

ARTICLE XI

 

M ISCELLANEOUS

 

Section 11.1 Amendments, Waivers, Etc.

 

(a) No amendment or waiver of any provision of this Agreement or any other Credit Document nor consent to any departure by any Credit Party therefrom shall in any event be effective unless the same shall be in writing and signed by the Requisite Issuers (or by the Administrative Agent with the consent of the Requisite Issuers) and, in the case of any amendment, by the Borrower, and then any such waiver or consent shall be effective only in the specific instance and for the specific purpose for

 

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which given; provided , however , that no amendment, waiver or consent shall, unless in writing and signed by each Issuer directly affected thereby, in addition to the Requisite Issuers (or the Administrative Agent with the consent thereof), do any of the following:

 

(i) waive any condition specified in Section 3.1 (Conditions Precedent to Initial Letters of Credit) or 3.2(b) (Conditions Precedent to Each Letter of Credit) , except with respect to a condition based upon another provision hereof, the waiver of which requires only the concurrence of the Requisite Issuers and, in the case of the conditions specified in Section 3.1 (Conditions Precedent to Initial Letters of Credit) , subject to the provisions of Section 3.3 (Determinations of Initial Issuing Conditions) ;

 

(ii) increase the L/C Commitment of such Issuer or subject such Issuer to any additional obligation;

 

(iii) waive, reduce or postpone any scheduled date fixed for the payment or reduction of principal of the L/C Facility (it being understood that Section 2.3 (Mandatory Cash Collateralization/Prepayments) does not provide for scheduled dates fixed for payment) or for the reduction of such Issuer’s L/C Commitment;

 

(iv) reduce the principal amount of any Reimbursement Obligation owing to such Issuer (other than by the payment or prepayment thereof);

 

(v) reduce the rate of interest on any Reimbursement Obligations outstanding to such Issuer or any fee payable hereunder to such Issuer;

 

(vi) postpone any scheduled date fixed for payment of such interest or fees owing to such Issuer;

 

(vii) change the aggregate Ratable Portions of Issuers required for any or all Issuers to take any action hereunder;

 

(viii) require additional consents to be obtained with respect to assignments and participations;

 

(ix) release all or substantially all of the Collateral except as provided in Section 10.7(b) or release the Borrower from its payment obligation to such Issuer under this Agreement or release any Guarantor from its obligations under any Guaranty except in connection with the sale or other disposition of a Guarantor (or all or substantially all of the assets thereof) permitted by this Agreement (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited by this Agreement); or

 

(x) amend Section 10.7(b) , this Section 11.1 or any definition of the terms “ Requisite Issuers ” or “ Ratable Portion ”;

 

and provided , further , that no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Issuers required above to take such action, affect the rights or duties of the Administrative Agent under this Agreement or the other Credit Documents.

 

(b) The Administrative Agent may, but shall have no obligation to, with the written concurrence of any Issuer, execute amendments, modifications, waivers or consents on behalf of such Issuer without requiring an executed counterpart from such Issuer. Any waiver or consent shall be

 

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effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.

 

Section 11.2 Assignments and Participations

 

(a) Each Issuer may sell, transfer, negotiate or assign to one or more Eligible Assignees all or a portion of its rights and obligations hereunder (including all of its rights and obligations with respect to the Letters of Credit); provided , however , that (i) if any such assignment shall be of the assigning Issuer’s L/C Outstandings and L/C Commitment, such assignment shall cover the same percentage of such Issuer’s L/C Outstandings and L/C Commitment, (ii) the aggregate amount being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than the Assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except (A) with the consent of the Administrative Agent (such consent not to be unreasonably withheld); or (B) if such assignment is being made to an Issuer or an Affiliate of an Issuer, and (iii) if such Eligible Assignee is not, prior to the date of such assignment, an Issuer, such assignment shall be subject to the prior consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed).

 

(b) The parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording, an Assignment and Acceptance. Upon the execution, delivery, acceptance and recording of any Assignment and Acceptance and, other than in respect of assignments made pursuant to Section 2.9 (Substitution of Issuers) and Section 11.1 (Amendments, Waivers, Etc.) , the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Credit Documents have been assigned to such assignee pursuant to such Assignment and Acceptance, have the rights and obligations of such Issuer hereunder and thereunder, and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except for those surviving the payment in full of the Obligations) and be released from its obligations under the Credit Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Issuer’s rights and obligations under the Credit Documents, such Issuer shall cease to be a party hereto).

 

(c) The Administrative Agent shall maintain at its address referred to in Section 11.8 (Notices, Etc.) a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recording of the names and addresses of the Issuers and the L/C Commitments of and principal amount of the Letter of Credit Obligations owing to each Issuer from time to time (the “ Register ”). Any assignment pursuant to this Section 11.2 shall not be effective until such assignment is recorded in the Register. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Credit Parties, the Administrative Agent and the Issuers may treat each Person whose name is recorded in the Register as an Issuer for all purposes of this Agreement. The Register shall be available for inspection by the Borrower, the Administrative Agent or any Issuer at any reasonable time and from time to time upon reasonable prior notice.

 

(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Issuer and an assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.

 

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(e) Each Issuer may sell participations to one or more Persons in or to all or a portion of its rights and obligations under the Credit Documents (including all its rights and obligations with respect to the Letters of Credit). The terms of such participation shall not, in any event, require the participant’s consent to any amendments, waivers or other modifications of any provision of any Credit Documents, the consent to any departure by any Credit Party therefrom, or to the exercising or refraining from exercising any powers or rights such Issuer may have under or in respect of the Credit Documents (including the right to enforce the obligations of the Credit Parties), except if any such amendment, waiver or other modification or consent would (i) reduce the amount, or postpone any date fixed for, any amount (whether of principal, interest or fees) payable to such participant under the Credit Documents, to which such participant would otherwise be entitled under such participation or (ii) result in the release of all or substantially all of the Collateral other than in accordance with Section 10.7(b) . In the event of the sale of any participation by any Issuer, (w) such Issuer’s obligations under the Credit Documents shall remain unchanged, (x) such Issuer shall remain solely responsible to the other parties for the performance of such obligations, (y) such Issuer shall remain the holder of such Obligations for all purposes of this Agreement and (z) the Borrower, the Administrative Agent and the other Issuers shall continue to deal solely and directly with such Issuer in connection with such Issuer’s rights and obligations under this Agreement. Each participant shall be entitled to the benefits of Section 2.7 (Capital Adequacy) and Section 2.8 (Taxes) as if it were an Issuer; provided , however , that anything herein to the contrary notwithstanding, the Borrower shall not, at any time, be obligated to make under Section 2.7 (Capital Adequacy) or Section 2.8 (Taxes) to the participants in the rights and obligations of any Issuer (together with such Issuer) any payment in excess of the amount the Borrower would have been obligated to pay to such Issuer in respect of such interest had such participation not been sold.

 

(f) Any Issuer may at any time assign its rights and obligations hereunder to any other Issuer by an instrument in form and substance satisfactory to the Borrower, the Administrative Agent, such Issuer and such Issuer. If any Issuer ceases to be an Issuer hereunder by virtue of any assignment made pursuant to this Section 11.2 , then, as of the effective date of such cessation, such Issuer’s obligations to Issue Letters of Credit pursuant to Section 2.1 (Letters of Credit) shall terminate and such Issuer shall be an Issuer hereunder only with respect to outstanding Letters of Credit issued prior to such date.

 

Section 11.3 Costs and Expenses

 

(a) The Borrower agrees upon demand to pay, or reimburse the Administrative Agent for, all of its reasonable internal and external audit, legal, appraisal, valuation, filing, document duplication and reproduction and investigation expenses and for all other reasonable out-of-pocket costs and expenses of every type and nature (including, without limitation, the reasonable fees, expenses and disbursements of the Administrative Agent’s counsel, Weil, Gotshal & Manges LLP and, to the extent related to environmental and asbestos matters in connection with this Agreement and the other Credit Documents and the diligence performed in connection therewith, Cahill Gordon & Reindel, local legal counsel, auditors, accountants, appraisers, printers, insurance and environmental advisors, and other consultants and agents) incurred by the Administrative Agent, in connection with any of the following: (i) the Administrative Agent’s audit and investigation of the Borrower and its Subsidiaries in connection with the preparation, negotiation or execution of any Credit Document or the Administrative Agent’s periodic audits of the Borrower or any of its Subsidiaries, as the case may be, (ii) all due diligence, syndication (including printing, distribution and bank meetings), transportation, computer, duplication, messenger, audit, insurance, appraisal and consultant costs and expenses, and all search, filing and recording fees incurred or sustained by the Administrative Agent in connection with the L/C Facility, the Credit Documents or the transactions contemplated hereby and thereby, (iii) the preparation, negotiation, execution or interpretation of this Agreement (including, without limitation, the satisfaction or attempted satisfaction of any condition set forth in Article III (Conditions To Letters Of Credit) , any Credit

 

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Document or any proposal letter or commitment letter issued in connection therewith, or the Issuances of Letters of Credit hereunder, (iv) the creation, perfection or protection of the Liens under any Credit Document (including any reasonable fees, disbursements and expenses for local counsel in various jurisdictions), (v) the ongoing administration of this Agreement and the Letters of Credit, including consultation with attorneys in connection therewith and with respect to the Administrative Agent’s rights and responsibilities hereunder and under the other Credit Documents, (vi) the protection, collection or enforcement of any Obligation or the enforcement of any Credit Document, (vii) the commencement, defense or intervention in any court proceeding relating in any way to the Obligations, any Credit Party, any of the Borrower’s Subsidiaries, the Indenture, the Senior Secured Notes, the Credit Agreement, this Agreement or any other Credit Document; provided that the Borrower shall not be responsible for the costs and expenses of referred to in this clause (vii) of any party to the extent such court proceeding shall have been caused by or resulted from the gross negligence, willful misconduct or willful breach of the Credit Documents of such party, as determined by a court of competent jurisdiction in a final non-appealable judgment or order, (viii) the response to, and preparation for, any subpoena or request for document production with which the Administrative Agent is served or deposition or other proceeding in which the Administrative Agent is called to testify, in each case, relating in any way to the Obligations, any Credit Party, any of the Borrower’s Subsidiaries, the Credit Agreement, the Indenture, the Senior Secured Notes, this Agreement or any other Credit Document and (ix) any amendment, consent, waiver, assignment, restatement, or supplement to any Credit Document or the preparation, negotiation, and execution of the same.

 

(b) The Borrower further agrees to pay or reimburse the Administrative Agent and each of the Issuers upon demand for all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys’ fees (including allocated costs of internal counsel and costs of settlement), incurred by the Administrative Agent or such Issuers in connection with any of the following: (i) in enforcing any Credit Document or Obligation or any security therefor or exercising or enforcing any other right or remedy available by reason of an Event of Default, (ii) in connection with any refinancing or restructuring of the credit arrangements provided hereunder in the nature of a “ work-out ” or in any insolvency or bankruptcy proceeding, (iii) in commencing, defending or intervening in any litigation or in filing a petition, complaint, answer, motion or other pleadings in any legal proceeding relating to the Obligations, any Credit Party, any of the Borrower’s Subsidiaries and related to or arising out of the transactions contemplated hereby or by any other Credit Document, the Credit Agreement, the Indenture or the Senior Secured Notes or (iv) in taking any other action in or with respect to any suit or proceeding (bankruptcy or otherwise) described in clause (i) , (ii) or (iii) above.

 

Section 11.4 Indemnities

 

(a) The Borrower agrees to indemnify and hold harmless the Administrative Agent, and each Issuer and each of their respective Affiliates, and each of the directors, officers, employees, agents, trustees, representative, attorneys, consultants and advisors of or to any of the foregoing (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article III (Conditions To Letters Of Credit) ) (each such Person being an “ Indemnitee ”) from and against any and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or nature (including fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not such investigation, litigation or proceeding is brought by the Borrower, any of its directors, security holders or creditors, an Indemnitee or any other Person or whether or not any such Indemnitee is a party thereto and whether or not the transactions contemplated hereby are consummated, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on

 

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contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Credit Document, any Obligation, any Letter of Credit, any Disclosure Document, the Indenture, the Credit Agreement or the Senior Secured Notes or any act, event or transaction related or attendant to any thereof, or the use or intended use of the proceeds of the Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the “ Indemnified Matters ”); provided , however , that the Borrower shall not have any obligation under this Section 11.4 to an Indemnitee with respect to any Indemnified Matter caused by or resulting from the gross negligence, willful misconduct or willful breach of the Credit Documents of that Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order. Without limiting the foregoing, “ Indemnified Matters ” include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of the Borrower or any of its Subsidiaries involving any property subject to a Collateral Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or into such property or any contiguous real estate, (ii) any costs or liabilities incurred in connection with any Remedial Action concerning any Borrower or any of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980, (49 U.S.C. § 9601 et seq .) and applicable state property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to the Borrower or any of its Subsidiaries, or the owner, lessee or operator of any property of the Borrower or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i) , (ii) , (iii) and (iv) above, to the extent (x) incurred following foreclosure by the Administrative Agent or any Issuer, or the Administrative Agent or any Issuer having become the successor in interest to the Borrower or any of its Subsidiaries and (y) attributable solely to acts of the Administrative Agent or such Issuer or any agent on behalf of the Administrative Agent or such Issuer.

 

(b) The Borrower shall indemnify the Administrative Agent and each Issuer for, and hold the Administrative Agent, the Issuers and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against the Administrative Agent and the Issuers for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Credit Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.

 

(c) The Borrower, at the request of any Indemnitee, shall have the obligation to defend against such investigation, litigation or proceeding or requested Remedial Action and the Borrower, in any event, may participate in the defense thereof with legal counsel of the Borrower’s choice. In the event that such Indemnitee requests the Borrower to defend against such investigation, litigation or proceeding or requested Remedial Action, the Borrower shall promptly do so and such Indemnitee shall have the right to have legal counsel of its choice participate in such defense. No action taken by legal counsel chosen by such Indemnitee in defending against any such investigation, litigation or proceeding or requested Remedial Action, shall vitiate or in any way impair the Borrower’s obligation and duty hereunder to indemnify and hold harmless such Indemnitee.

 

(d) The Borrower agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4 ) or any other Credit Document shall (i) survive payment in full of the Obligations and (ii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.

 

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Section 11.5 Limitation of Liability

 

The Borrower agrees that no Indemnitee shall have any liability (whether direct or indirect, in contract, tort or otherwise) to any Credit Party or any of their respective Subsidiaries or any of their respective equity holders or creditors for or in connection with the transactions contemplated hereby and in the other Credit Documents, the Indenture, the Credit Agreement and the Senior Secured Notes, except for direct damages (as opposed to special, indirect, consequential or punitive damages (including, without limitation, any loss of profits, business or anticipated savings)) determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnitee’s gross negligence, willful misconduct or willful breach of the Credit Documents. The Borrower hereby waives, releases and agrees (each for itself and on behalf of its Subsidiaries) not to sue upon any such claim for any special, indirect, consequential or punitive damages, whether or not accrued and whether or not known or suspected to exist in its favor.

 

Section 11.6 Right of Set-off

 

Upon the occurrence and during the continuance of any Event of Default each Issuer and each Affiliate of an Issuer is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Issuer or its Affiliates to or for the credit or the account of the Borrower against any and all of the Obligations now or hereafter existing whether or not such Issuer shall have made any demand under this Agreement or any other Credit Document and even though such Obligations may be unmatured. Each Issuer agrees promptly to notify the Borrower after any such set-off and application made by such Issuer or its Affiliates; provided , however , that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Issuer under this Section 11.6 are in addition to the other rights and remedies (including other rights of set-off) that such Issuer may have.

 

Section 11.7 Sharing of Payments, Etc.

 

(a) If any Issuer obtains any payment (whether voluntary, involuntary, through the exercise of any right of set-off or otherwise) of the Letter of Credit Obligations owing to it, any interest thereon, fees in respect thereof or amounts due pursuant to Section 11.3 (Costs and Expenses) or 11.4 (Indemnities) (other than payments pursuant to Section 2.7 (Capital Adequacy) or Section 2.8 (Taxes) ) in excess of its Ratable Portion of all payments of such Obligations obtained by all the Issuers, such Issuer (a “ Purchasing Issuer ”) shall forthwith purchase from the other Issuers (each, a “ Selling Issuer ”) such participations in their Obligations as shall be necessary to cause such Purchasing Issuer to share the excess payment ratably with each of them.

 

(b) If all or any portion of any payment received by a Purchasing Issuer is thereafter recovered from such Purchasing Issuer, such purchase from each Selling Issuer shall be rescinded and such Selling Issuer shall repay to the Purchasing Issuer the purchase price to the extent of such recovery together with an amount equal to such Selling Issuer’s ratable share (according to the proportion of (i) the amount of such Selling Issuer’s required repayment in relation to (ii) the total amount so recovered from the Purchasing Issuer) of any interest or other amount paid or payable by the Purchasing Issuer in respect of the total amount so recovered.

 

(c) The Borrower agrees that any Purchasing Issuer so purchasing a participation from a Selling Issuer pursuant to this Section 11.7 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Issuer were the direct creditor of the Borrower in the amount of such participation.

 

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Section 11.8 Notices, Etc.

 

All notices, demands, requests and other communications provided for in this Agreement shall be given in writing, or by any telecommunication device capable of creating a written record (including electronic mail), and addressed to the party to be notified as follows:

 

(a) if to the Borrower:

 

FMC C ORPORATION

1735 Market Street

Philadelphia, Pennsylvania 19103

Attention: Thomas C. Deas, Jr.

Telecopy Number: (215) 299-6557

E-Mail Address: fmc_treasurer@fmc.com

 

with a copy to:

 

M ORGAN , L EWIS & B OCKIUS LLP

1701 Market Street

Philadelphia, Pennsylvania 19103

Attention: Lawrence Berger

Telecopy Number: (215) 963-5299

E-Mail Address: lberger@morganlewis.com

 

(b) if to any Issuer, at the address set forth under its name on Schedule II (Addresses for Notices ); and

 

(c) if to CUSA, as the Administrative Agent, at the address set forth under its name on Schedule II ( Addresses for Notices ), with a copy to:

 

W EIL , G OTSHAL & M ANGES LLP

767 Fifth Avenue

New York, New York 10153-0119

Attention: Marsha Simms

Telecopy Number: (212) 310-8007

E-Mail Address: marsha.simms@weil.com

 

or at such other address as shall be notified in writing (x) in the case of the Borrower and the Administrative Agent, to the other parties and (y) in the case of all other parties, to the Borrower and the Administrative Agent. All such notices and communications shall be effective upon personal delivery (if delivered by hand, including any overnight courier service), when deposited in the mails (if sent by mail), or when properly transmitted (if sent by a telecommunications device or through the Internet); provided , however , that notices and communications to the Administrative Agent pursuant to Article II (The L/C Facility) or X (The Administrative Agent) shall not be effective until received by the Administrative Agent.

 

Section 11.9 No Waiver; Remedies

 

No failure on the part of any Issuer, Issuer or the Administrative Agent to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial

 

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exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

 

Section 11.10 Binding Effect

 

This Agreement shall become effective when it shall have been executed by the Borrower and the Administrative Agent and when the Administrative Agent shall have been notified by each Issuer that such Issuer has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, the Administrative Agent and each Issuer and, in each case, their respective successors and assigns; provided , however , that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Issuers.

 

Section 11.11 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 11.12 Submission to Jurisdiction; Service of Process

 

(a) Any legal action or proceeding with respect to this Agreement or any other Credit Document may be brought in the courts of the State of New York or of the United States of America for the Southern District of New York, and, by execution and delivery of this Agreement, the Borrower hereby accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. The parties hereto hereby irrevocably waive any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens , that any of them may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions.

 

(b) The Borrower hereby irrevocably consents to the service of any and all legal process, summons, notices and documents in any suit, action or proceeding brought in the United States of America arising out of or in connection with this Agreement or any other Credit Document by the mailing (by registered or certified mail, postage prepaid) or delivering of a copy of such process to the Borrower at its address specified in Section 11.8 (Notices, Etc.) . The Borrower agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

 

(c) Nothing contained in this Section 11.12 shall affect the right of the Administrative Agent or any Issuer to serve process in any other manner permitted by law or commence legal proceedings or otherwise proceed against the Borrower or any other Credit Party in any other jurisdiction.

 

(d) If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder in Dollars into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase Dollars with such other currency at the spot rate of exchange quoted by the Administrative Agent at 11:00 a.m. (New York time) on the Business Day preceding that on which final judgment is given, for the purchase of Dollars, for delivery two Business Days thereafter.

 

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Section 11.13 Waiver of Jury Trial

 

E ACH OF THE A DMINISTRATIVE A GENT , THE I SSUERS AND THE B ORROWER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS A GREEMENT OR ANY OTHER C REDIT D OCUMENT .

 

Section 11.14 Marshaling; Payments Set Aside

 

None of the Administrative Agent or any Issuer shall be under any obligation to marshal any assets in favor of the Borrower or any other party or against or in payment of any or all of the Obligations. To the extent that the Borrower makes a payment or payments to the Administrative Agent or the Issuers or any such Person receives payment from the proceeds of the Collateral or exercise their rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party, then to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, right and remedies therefor, shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.

 

Section 11.15 Section Titles

 

The section titles contained in this Agreement are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto, except when used to reference a section. Any reference to the number of a clause, sub-clause or subsection hereof immediately followed by a reference in parenthesis to the title of the Section containing such clause, sub-clause or subsection is a reference to such clause, sub-clause or subsection and not to the entire Section; provided , however , that, in case of direct conflict between the reference to the title and the reference to the number of such Section, the reference to the title shall govern absent manifest error. If any reference to the number of a Section (but not to any clause, sub-clause or subsection thereof) is followed immediately by a reference in parenthesis to the title of a Section, the title reference shall govern in case of direct conflict absent manifest error.

 

Section 11.16 Execution in Counterparts

 

This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, 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 separate counterparts and attached to a single counterpart so that all signature pages are attached to the same document. Delivery of an executed signature page of this Agreement by facsimile transmission shall be as effective as delivery of a manually executed counterpart hereof. A set of the copies of this Agreement signed by all parties shall be lodged with the Borrower and the Administrative Agent.

 

Section 11.17 Entire Agreement

 

This Agreement, together with all of the other Credit Documents and all certificates and documents delivered hereunder or thereunder, embodies the entire agreement of the parties and supersedes all prior agreements and understandings relating to the subject matter hereof.

 

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Section 11.18 Confidentiality

 

Each Issuer and the Administrative Agent agree to keep information obtained by it pursuant hereto and the other Credit Documents confidential in accordance with such Issuer’s or the Administrative Agent’s, as the case may be, customary practices and agrees that it shall only use such information in connection with the transactions contemplated by this Agreement and not disclose any such information other than (a) to such Issuer’s or the Administrative Agent’s, as the case may be, employees, representatives and agents that are or are expected to be involved in the evaluation of such information in connection with the transactions contemplated by this Agreement and are advised of the confidential nature of such information, (b) to the extent such information presently is or hereafter becomes available to such Issuer or the Administrative Agent, as the case may be, on a non-confidential basis from a source other than the Borrower, (c) to the extent disclosure is required by law, regulation or judicial order or requested or required by bank regulators or auditors or any quasi-regulatory authority (including the National Association of Insurance Companies) or (d) to current or prospective assignees, participants and Special Purpose Vehicles grantees of any option described in Section 11.2(f) (Assignments and Participations) , in each case to the extent such assignees, participants or grantees agree to be bound by the provisions of this Section 11.18 .

 

[S IGNATURE P AGES F OLLOW ]

 

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I N W ITNESS W HEREOF , the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

FMC C ORPORATION ,

as Borrower

By:  

/s/ Thomas C. Deas, Jr.

   
   

Name: Thomas C. Deas, Jr.

   

Title: Vice President & Treasurer

 

C ITICORP USA, I NC .,

as Administrative Agent

By:  

/s/ Carolyn A. Sheridan

   
   

Name: Carolyn A. Sheridan

   

Title: Managing Director & Vice President

 

C ITIBANK , N.A.,

as Issuer

By:  

/s/ Carolyn A. Sheridan

   
   

Name: Carolyn A. Sheridan

   

Title: Managing Director & Vice President

 

B ANK OF A MERICA , N.A.,

as Issuer

By:  

/s/ Wendy J. Gorman

   
   

Name: Wendy J. Gorman

   

Title: Vice President

 

i


Schedule I

L/C Commitments and L/C Exposures

 

Issuer


 

L/C Commitment


 

L/C Exposure


Citibank, N.A.

  $40,000,000   $20,000,000

Bank of America, N.A.

  $40,000,000   $20,000,000

 

i

Exhibit 10.3

 

E XECUTION C OPY

 

U.S. S UBSIDIARY G UARANTY

 

U.S. S UBSIDIARY G UARANTY , dated as of October 21, 2002, by each of the entities listed on the signature pages hereof or that becomes a party hereto pursuant to Section 23 (Additional Subsidiary Guarantors) hereof (each a “ Subsidiary Guarantor ” and collectively, the “ Subsidiary Guarantors ”), in favor of (i) the Administrative Agent, each Lender and each Issuer (as defined in the Credit Agreement referred to below), (ii) each of the lenders (collectively, the “ Foreign Lenders ”) under the Foreign Loans (as defined below), (iii) Citibank, N.A. and Bank of America, N.A., as issuers under the L/C Agreement (as defined below), (iv) Bank of America, N.A., in its capacity as administrative agent (the “ Astaris Agent ”) under the Astaris Agreement (as defined below) and (v) each other holder of an Obligation (as defined below) (each, a “ Guarantied Party ” and, collectively, the “ Guarantied Parties ”).

 

W I T N E S S E T H :

 

W HEREAS , pursuant to the Credit Agreement dated as of October 21, 2002 (together with all appendices, exhibits and schedules thereto and as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”; capitalized terms defined therein and used herein having the meanings given to them in the Credit Agreement) among FMC C ORPORATION (the “ Borrower ”), the Lenders and Issuers party thereto and Citicorp USA, Inc., as agent for the Lenders and Issuers, the Lenders and Issuers have severally agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein;

 

W HEREAS , pursuant to the respective terms of (i) each of the Foreign Credit Lines and (ii) Hedging Contracts and cash management or overdraft facilities that are otherwise guaranteed by the Borrower (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 or other financial accommodations 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 ”);

 

W HEREAS , pursuant to the letter of credit agreement dated as of October      , 2002 (together with all appendices, exhibits and schedules thereto and as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ L/C Agreement ”), 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;

 

W HEREAS , 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 Astaris Agent (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 the Astaris Agent;

 

W HEREAS , each Subsidiary Guarantor is a direct or indirect Subsidiary of the Borrower;

 

W HEREAS , each Subsidiary Guarantor will receive substantial direct and indirect benefits from the making of the Loans, the issuance of the Letters of Credit, the making of the Astaris Secured

 


U.S. S UBSIDIARY G UARANTY

FMC C ORPORATION

 

Payments and the issuance of letters of credit under the L/C Agreement and the granting of the other financial accommodations to the Borrower under the Credit Documents; and

 

W HEREAS , a condition precedent to the obligation of the Lenders and the Issuers to make their respective extensions of credit to the Borrower under the Credit Agreement is that the Subsidiary Guarantors shall have executed and delivered this U.S. Subsidiary Guaranty (this “ Guaranty ”) for the benefit of the Guarantied Parties;

 

N OW , T HEREFORE , in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

Section 1 Guaranty

 

(a) Each Subsidiary Guarantor hereby absolutely, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, the full and punctual payment when due, whether at stated maturity or earlier, by reason of acceleration, mandatory prepayment or otherwise in accordance herewith or any other Credit Document, of all (i) the “Obligations” as defined in the Credit Agreement, (ii) the “Obligations” as defined in the L/C Agreement, (iii) the Astaris Secured Payments and (iv) the “Obligations” as defined in the Parent Guaranty (collectively, the “ Guaranteed Obligations ”), in each case whether or not from time to time reduced or extinguished or hereafter increased or incurred, whether or not recovery may be or hereafter may become barred by any statute of limitations, whether or not enforceable as against the Borrower, whether now or hereafter existing, and whether due or to become due, including principal, interest (including interest at the contract rate applicable upon default accrued or accruing after the commencement of any proceeding under the Bankruptcy Code, whether or not such interest is an allowed claim in such proceeding), fees and costs of collection. This Guaranty constitutes a guaranty of payment and not of collection.

 

(b) Each Subsidiary Guarantor further agrees that, if (i) any payment made by Borrower or any other person and applied to the Guaranteed 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 (ii) the proceeds of Collateral are required to be returned by any Guarantied Party to the Borrower, its estate, trustee, receiver or any other party, including any Subsidiary Guarantor, under any bankruptcy law, equitable cause or any other Requirement of Law, then, to the extent of such payment or repayment, any such Subsidiary Guarantor’s liability hereunder (and any Lien or other Collateral securing such liability) shall be and remain in full force and effect, as fully as if such payment had never been made. If, prior to any of the foregoing, this Guaranty shall have been cancelled or surrendered (and if any Lien or other Collateral securing such Subsidiary Guarantor’s liability hereunder shall have been released or terminated by virtue of such cancellation or surrender), this Guaranty (and such Lien or other Collateral) shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any such Subsidiary Guarantor in respect of the amount of such payment (or any Lien or other Collateral securing such obligation).

 

Section 2 Limitation of Guaranty

 

Any term or provision of this Guaranty or any other Credit Document to the contrary notwithstanding, the maximum aggregate amount of the Guaranteed Obligations for which any Subsidiary Guarantor shall be liable shall not exceed the maximum amount for which such Subsidiary Guarantor can

 

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be liable without rendering this Guaranty or any other Credit Document, as it relates to such Subsidiary Guarantor, subject to avoidance under applicable law relating to fraudulent conveyance or fraudulent transfer (including Section 548 of the Bankruptcy Code or any applicable provisions of comparable state law) (collectively, “ Fraudulent Transfer Laws ”), in each case after giving effect (a) to all other liabilities of such Subsidiary Guarantor, contingent or otherwise, that are relevant under such Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Subsidiary Guarantor in respect of intercompany Indebtedness to the Borrower to the extent that such Indebtedness would be discharged in an amount equal to the amount paid by such Subsidiary Guarantor hereunder) and (b) to the value as assets of such Subsidiary Guarantor (as determined under the applicable provisions of such Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights held by such Subsidiary Guarantor pursuant to (i) applicable Requirements of Law, (ii) Section 3 (Contribution) of this Guaranty or (iii) any other Contractual Obligations providing for an equitable allocation among such Subsidiary Guarantor and other Subsidiaries or Affiliates of the Borrower of obligations arising under this Guaranty or other guaranties of the Guaranteed Obligations by such parties.

 

Section 3 Contribution

 

To the extent that any Subsidiary Guarantor shall be required hereunder to pay a portion of the Guaranteed Obligations exceeding the greater of (a) the amount of the economic benefit actually received by such Subsidiary Guarantor from the Revolving Loans, the Term Loans, the Astaris Secured Payments, the letters of credit issued under the L/C Agreement and the Foreign Loans and (b) the amount such Subsidiary Guarantor would otherwise have paid if such Subsidiary Guarantor had paid the aggregate amount of the Guaranteed Obligations (excluding the amount thereof repaid by the Borrower) in the same proportion as such Subsidiary Guarantor’s net worth at the date enforcement is sought hereunder bears to the aggregate net worth of all the Subsidiary Guarantors at the date enforcement is sought hereunder, then such Subsidiary Guarantor shall be reimbursed by such other Subsidiary Guarantors for the amount of such excess, pro rata, based on the respective net worths of such other Subsidiary Guarantors at the date enforcement hereunder is sought.

 

Section 4 Authorization; Other Agreements

 

The Guarantied Parties are hereby authorized, without notice to, or demand upon, any Subsidiary Guarantor, which notice and demand requirements each are expressly waived hereby, and without discharging or otherwise affecting the obligations of any Subsidiary Guarantor hereunder (which obligations shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time, to do each of the following:

 

(a) supplement, renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to, the Guaranteed Obligations, or any part of them, or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument (including the other Credit Documents) now or hereafter executed by the Borrower or any Foreign Borrower and delivered to the Guarantied Parties or any of them, including any increase or decrease of principal or the rate of interest thereon;

 

(b) waive or otherwise consent to noncompliance with any provision of any instrument evidencing the Guaranteed Obligations, or any part thereof, or any other instrument or agreement in respect of the Guaranteed Obligations (including the other Credit Documents) now or hereafter executed by the Borrower or any Foreign Borrower and delivered to the Guarantied Parties or any of them;

 

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(c) accept partial payments on the Guaranteed Obligations;

 

(d) receive, take and hold additional security or collateral for the payment of the Guaranteed Obligations or any part of them and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, otherwise alter and release any such additional security or collateral;

 

(e) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any security or collateral for the Guaranteed Obligations or any part of them or any other guaranty therefor, in any manner;

 

(f) add, release or substitute any one or more other guarantors, makers or endorsers of the Guaranteed Obligations or any part of them and otherwise deal with the Borrower, any Foreign Borrower or any other guarantor, maker or endorser;

 

(g) apply to the Guaranteed Obligations any payment or recovery (x) from the Borrower, from any Foreign Borrower, from any other guarantor, maker or endorser of the Guaranteed Obligations or any part of them or (y) from any Subsidiary Guarantor in such order as provided herein, in each case whether such Guaranteed Obligations are secured or unsecured or guaranteed or not guaranteed by others;

 

(h) apply to the Guaranteed Obligations any payment or recovery from any Subsidiary Guarantor of the Guaranteed Obligations or any sum realized from security furnished by such Subsidiary Guarantor upon its indebtedness or obligations to the Guarantied Parties or any of them, in each case whether or not such indebtedness or obligations relate to the Guaranteed Obligations; and

 

(i) refund at any time any payment received by any Guarantied Party in respect of any Guaranteed Obligation, and payment to such Guarantied Party of the amount so refunded shall be fully guaranteed hereby even though prior thereto this Guaranty shall have been cancelled or surrendered (or any release or termination of any Collateral by virtue thereof), and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any Subsidiary Guarantor hereunder in respect of the amount so refunded (and any Collateral so released or terminated shall be reinstated with respect to such obligations);

 

even if any right of reimbursement or subrogation or other right or remedy of any Subsidiary Guarantor is extinguished, affected or impaired by any of the foregoing (including any election of remedies by reason of any judicial, non-judicial or other proceeding in respect of the Guaranteed Obligations that impairs any subrogation, reimbursement or other right of such Subsidiary Guarantor).

 

Section 5 Guaranty Absolute and Unconditional

 

Each Subsidiary Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations under this Guaranty are absolute and unconditional and shall not be discharged or otherwise affected as a result of any of the following:

 

(a) the invalidity or unenforceability of any of the Borrower’s or the Foreign Borrowers’ obligations under the Credit Agreement or any other Credit Document or any other agreement or instrument relating thereto, or any security for, or other guaranty of the Guaranteed Obligations or any

 

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U.S. S UBSIDIARY G UARANTY

FMC C ORPORATION

 

part of them, or the lack of perfection or continuing perfection or failure of priority of any security for the Guaranteed Obligations or any part of them;

 

(b) the absence of any attempt to collect the Guaranteed Obligations or any part of them from the Borrower or any Foreign Borrower or other action to enforce the same;

 

(c) failure by any Guarantied Party to take any steps to perfect and maintain any Lien on, or to preserve any rights to, any Collateral;

 

(d) any Guarantied Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code;

 

(e) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code;

 

(f) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guarantied Party’s claim (or claims) for repayment of the Guaranteed Obligations ;

 

(g) any use of cash collateral under Section 363 of the Bankruptcy Code;

 

(h) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding;

 

(i) the avoidance of any Lien in favor of the Guarantied Parties or any of them for any reason;

 

(j) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Foreign Borrower, any Subsidiary Guarantor or any of the Borrower’s other Subsidiaries, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest thereon) in or as a result of any such proceeding;

 

(k) failure by any Guarantied Party to file or enforce a claim against the Borrower, any Foreign Borrower or its estate in any bankruptcy or insolvency case or proceeding;

 

(l) any action taken by any Guarantied Party if such action is authorized hereby;

 

(m) any election following the occurrence and during the continuance of an Event of Default by any Guarantied Party to proceed separately against the personal property Collateral in accordance with such Guarantied Party’s rights under the UCC or similar applicable foreign laws or, if the Collateral consists of both personal and real property, to proceed against such personal and real property in accordance with such Guarantied Party’s rights with respect to such real property; or

 

(n) any other circumstance that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor or any other obligor on any obligations, other than the payment in full of the Guaranteed Obligations.

 

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U.S. S UBSIDIARY G UARANTY

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Section 6 Waivers

 

Each Subsidiary Guarantor hereby waives diligence, promptness, presentment, demand for payment or performance and protest and notice of protest, notice of acceptance and any other notice in respect of the Guaranteed Obligations or any part of them, and any defense arising by reason of any disability or other defense of the Borrower or any Foreign Borrower. Each Subsidiary Guarantor shall not, until the Guaranteed Obligations are irrevocably paid in full and the Commitments and the Foreign Loans have been terminated, assert any claim or counterclaim it may have against the Borrower or any Foreign Borrower or set off any of its obligations to the Borrower or any Foreign Borrower against any obligations of the Borrower or any Foreign Borrower to it. In connection with the foregoing, each Subsidiary Guarantor covenants that its obligations hereunder shall not be discharged, except by complete performance.

 

Section 7 Reliance

 

Each Subsidiary Guarantor hereby assumes responsibility for keeping itself informed of the financial condition of the Borrower and the Foreign Borrowers and any endorser and other guarantor of all or any part of the Guaranteed Obligations, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations, or any part thereof, that diligent inquiry would reveal, and each Subsidiary Guarantor hereby agrees that no Guarantied Party shall have any duty to advise any Subsidiary Guarantor of information known to it regarding such condition or any such circumstances. In the event any Guarantied Party, in its sole discretion, undertakes at any time or from time to time to provide any such information to any Subsidiary Guarantor, such Guarantied Party shall be under no obligation (a) to undertake any investigation not a part of its regular business routine, (b) to disclose any information that such Guarantied Party, pursuant to accepted or reasonable commercial finance or banking practices, wishes to maintain confidential or (c) to make any other or future disclosures of such information or any other information to any Subsidiary Guarantor.

 

Section 8 Waiver of Subrogation and Contribution Rights

 

Until the Guaranteed Obligations have been irrevocably paid in full and the Commitments under the Loan Documents and the Foreign Loans have been terminated, the Subsidiary Guarantors shall not enforce or otherwise exercise any right of subrogation to any of the rights of the Guarantied Parties or any part of them against the Borrower or any Foreign Borrower or any right of reimbursement or contribution or similar right against the Borrower or any Foreign Borrower by reason of this Agreement or by any payment made by any Subsidiary Guarantor in respect of the Guaranteed Obligations.

 

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Section 9 Subordination

 

Each Subsidiary Guarantor hereby agrees that any Indebtedness of the Borrower and the Foreign Borrowers now or hereafter owing to any Subsidiary Guarantor, whether heretofore, now or hereafter created (the “ Subsidiary Guarantor Subordinated Debt ”), is hereby subordinated to all of the Guaranteed Obligations and that, except as permitted under Section 8.6 (Prepayment and Cancellation of Indebtedness) of the Credit Agreement, the Subsidiary Guarantor Subordinated Debt shall not be paid in whole or in part until the Guaranteed Obligations have been paid in full and this Guaranty is terminated and of no further force or effect. No Subsidiary Guarantor shall accept any payment of or on account of any Subsidiary Guarantor Subordinated Debt at any time in contravention of the foregoing. Upon the occurrence and during the continuance of an Event of Default, each Subsidiary Guarantor shall pay to the Administrative Agent any payment of all or any part of the Subsidiary Guarantor Subordinated Debt and any amount so paid to the Administrative Agent shall be applied to payment of the Guaranteed Obligations as provided in Section 2.13(f) (Payments and Computations) of the Credit Agreement or in the applicable Foreign Loan Document. Each payment on the Subsidiary Guarantor Subordinated Debt received in violation of any of the provisions hereof shall be deemed to have been received by such Subsidiary Guarantor as trustee for the Guarantied Parties and shall be paid over to the Administrative Agent immediately on account of the Guaranteed Obligations, but without otherwise affecting in any manner such Subsidiary Guarantor’s liability hereof. Each Subsidiary Guarantor agrees to file all claims against the Borrower or any Foreign Borrower in any bankruptcy or other proceeding in which the filing of claims is required by law in respect of any Subsidiary Guarantor Subordinated Debt, and the Administrative Agent shall be entitled to all of such Subsidiary Guarantor’s rights thereunder. If for any reason a Subsidiary Guarantor fails to file such claim at least ten Business Days prior to the last date on which such claim should be filed, such Subsidiary Guarantor hereby irrevocably appoints the Administrative Agent as its true and lawful attorney-in-fact and is hereby authorized to act as attorney-in-fact in such Subsidiary Guarantor’s name to file such claim or, in the Administrative Agent’s discretion, to assign such claim to and cause proof of claim to be filed in the name of the Administrative Agent or its nominee. In all such cases, whether in administration, bankruptcy or otherwise, the person or persons authorized to pay such claim shall pay to the Administrative Agent the full amount payable on the claim in the proceeding, and, to the full extent necessary for that purpose, each Subsidiary Guarantor hereby assigns to the Administrative Agent all of such Subsidiary Guarantor’s rights to any payments or distributions to which such Subsidiary Guarantor otherwise would be entitled. If the amount so paid is greater than such Subsidiary Guarantor’s liability hereunder, the Administrative Agent shall promptly pay the excess amount to the party entitled thereto. In addition, each Subsidiary Guarantor hereby irrevocably appoints the Administrative Agent as its attorney-in-fact to exercise all of such Subsidiary Guarantor’s voting rights in connection with any bankruptcy proceeding or any plan for the reorganization of the Borrower and the Foreign Borrowers.

 

Section 10 Default; Remedies

 

The obligations of each Subsidiary Guarantor hereunder are independent of and separate from the Guaranteed Obligations. If any Obligation is not paid when due, or upon the occurrence and during the continuance of any Event of Default or upon the occurrence and during the continuance of any default by the Borrower or any Foreign Borrower as provided in any other instrument or document evidencing all or any part of the Guaranteed Obligations, the Administrative Agent may, at its sole election, proceed directly and at once, without notice, against any Subsidiary Guarantor to collect and recover the full amount or any portion of the Guaranteed Obligations then due, without first proceeding against the Borrower or any Foreign Borrower or any other guarantor of the Guaranteed Obligations, or against any Collateral under the Credit Documents or joining the Borrower or any Foreign Borrower or

 

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FMC C ORPORATION

 

any other guarantor in any proceeding against any Subsidiary Guarantor. At any time after maturity of the Guaranteed Obligations, the Administrative Agent may (unless the Guaranteed Obligations have been irrevocably paid in full), without notice to any Subsidiary Guarantor and regardless of the acceptance of any Collateral for the payment thereof, appropriate and apply toward the payment of the Guaranteed Obligations (a) any indebtedness due or to become due from any Guarantied Party to such Subsidiary Guarantor and (b) any moneys, credits or other property belonging to such Subsidiary Guarantor at any time held by or coming into the possession of any Guarantied Party or any of its respective Affiliates.

 

Section 11 Irrevocability

 

This Guaranty shall be irrevocable as to the Guaranteed Obligations (or any part thereof) until the Commitments under the Loan Documents and the Foreign Loans have been terminated and all monetary Guaranteed Obligations then outstanding have been irrevocably repaid in cash, at which time this Guaranty shall automatically be cancelled. Upon such cancellation and at the written request of any Subsidiary Guarantor or its successors or assigns, and at the cost and expense of such Subsidiary Guarantor or its successors or assigns, the Administrative Agent shall execute in a timely manner a satisfaction of this Guaranty and such instruments, documents or agreements as are necessary or desirable to evidence the termination of this Guaranty.

 

Section 12 Setoff

 

Upon the occurrence and during the continuance of an Event of Default, each Guarantied Party and each Affiliate of a Guarantied Party may, without notice to any Subsidiary Guarantor and regardless of the acceptance of any security or collateral for the payment hereof, appropriate and apply toward the payment of all or any part of the Guaranteed Obligations (a) any indebtedness due or to become due from such Guarantied Party or Affiliate to such Subsidiary Guarantor and (b) any moneys, credits or other property belonging to such Subsidiary Guarantor, at any time held by, or coming into, the possession of such Guarantied Party or Affiliate.

 

Section 13 No Marshalling

 

Each Subsidiary Guarantor consents and agrees that no Guarantied Party or Person acting for or on behalf of any Guarantied Party shall be under any obligation to marshal any assets in favor of any Subsidiary Guarantor or against or in payment of any or all of the Guaranteed Obligations.

 

Section 14 Enforcement; Amendments; Waivers

 

No delay on the part of any Guarantied Party in the exercise of any right or remedy arising under this Guaranty, the Credit Agreement, any other Credit Document or otherwise with respect to all or any part of the Guaranteed Obligations, the Collateral or any other guaranty of or security for all or any part of the Guaranteed Obligations shall operate as a waiver thereof, and no single or partial exercise by any such Person of any such right or remedy shall preclude any further exercise thereof. No modification or waiver of any provision of this Guaranty shall be binding upon any Guarantied Party, except as expressly set forth in a writing duly signed and delivered by the party making such modification or waiver. Failure by any Guarantied Party at any time or times hereafter to require strict performance by the Borrower, any Foreign Borrowers, any Subsidiary Guarantor, any other guarantor of all or any part of the Guaranteed Obligations or any other Person of any provision, warranty, term or condition contained in any Credit Document now or at any time hereafter executed by any such Persons and delivered to any Guarantied Party shall not waive, affect or diminish any right of any Guarantied Party at any time or times hereafter to demand strict performance thereof and such right shall not be deemed to have been

 

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waived by any act or knowledge of any Guarantied Party, or its respective agents, officers or employees, unless such waiver is contained in an instrument in writing, directed and delivered to the Borrower or applicable Foreign Borrower or such Subsidiary Guarantor, as applicable, specifying such waiver, and is signed by the party or parties necessary to give such waiver under the applicable Credit Document. No waiver of any Event of Default by any Guarantied Party shall operate as a waiver of any other Event of Default or the same Event of Default on a future occasion, and no action by any Guarantied Party permitted hereunder shall in any way affect or impair any Guarantied Party’s rights and remedies or the obligations of any Subsidiary Guarantor under this Guaranty. Any determination by a court of competent jurisdiction of the amount of any principal or interest owing by the Borrower or a Foreign Borrower to a Guarantied Party shall be conclusive and binding on each Subsidiary Guarantor irrespective of whether such Subsidiary Guarantor was a party to the suit or action in which such determination was made.

 

Section 15 Successors and Assigns

 

This Guaranty shall be binding upon each Subsidiary Guarantor and upon the successors and assigns of such Subsidiary Guarantors and shall inure to the benefit of the Guarantied Parties and their respective successors and assigns; all references herein to the Borrower, to the Foreign Borrowers and to the Subsidiary Guarantors shall be deemed to include their respective successors and assigns. The successors and assigns of the Subsidiary Guarantors, the Foreign Borrowers and the Borrower shall include, without limitation, their respective receivers, trustees and debtors-in-possession. All references to the singular shall be deemed to include the plural where the context so requires.

 

Section 16 Representations and Warranties; Covenants

 

Each Subsidiary Guarantor hereby (a) represents and warrants that the representations and warranties as to it made by the Borrower in Article IV (Representations and Warranties) of the Credit Agreement are true and correct on the date hereof and (b) agrees to take, or refrain from taking, as the case may be, each action necessary to be taken or not taken, as the case may be, so that no Default or Event of Default or event of default under any Foreign Loan Document is caused by the failure to take such action or to refrain from taking such action by such Subsidiary Guarantor.

 

Section 17 Governing Law

 

This Guaranty 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 18 Submission to Jurisdiction; Service of Process

 

(a) Any legal action or proceeding with respect to this Guaranty, and any other Credit Document, may be brought in the courts of the State of New York or of the United States of America for the Southern District of New York, and, by execution and delivery of this Agreement, each Subsidiary Guarantor hereby accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. The parties hereto hereby irrevocably waive any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens , that any of them may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions.

 

(b) Nothing contained in this Section 18 (Submission to Jurisdiction; Service of Process) shall affect the right of the Administrative Agent or any other Guarantied Party to serve process in any

 

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other manner permitted by law or commence legal proceedings or otherwise proceed against a Subsidiary Guarantor in any other jurisdiction.

 

(c) If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder in Dollars into another currency, the parties hereto agree, to the fullest extent they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase Dollars with such other currency at the spot rate of exchange quoted by the Administrative Agent at 11:00 a.m. (New York time) on the Business Day preceding that on which final judgment is given, for the purchase of Dollars, for delivery two Business Days thereafter.

 

Section 19 Certain Terms

 

The following rules of interpretation shall apply to this Guaranty: (a) the terms “ herein ,” “ hereof ,” “ hereto ” and “ hereunder ” and similar terms refer to this Guaranty as a whole and not to any particular Article, Section, subsection or clause in this Guaranty, (b) unless otherwise indicated, references herein to an Exhibit, Article, Section, subsection or clause refer to the appropriate Exhibit to, or Article, Section, subsection or clause in this Guaranty and (c) the term “ including ” means “ including without limitation ” except when used in the computation of time periods.

 

Section 20 Waiver of Jury Trial

 

E ACH OF THE A DMINISTRATIVE A GENT AND EACH S UBSIDIARY G UARANTOR IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS G UARANTY AND ANY OTHER C REDIT D OCUMENT .

 

Section 21 Notices

 

Any notice or other communication herein required or permitted shall be given, in the case of the Borrower or any Guarantied Party, as provided in Section 11.8 (Notices, Etc.) of the Credit Agreement or to such party at the address listed for such party in the applicable Foreign Loan Document or the Astaris Agreement, as applicable, and, in the case of any Subsidiary Guarantor, to such Subsidiary Guarantor in care of the Borrower.

 

Section 22 Severability

 

Wherever possible, each provision of this Guaranty shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Guaranty.

 

Section 23 Additional Subsidiary Guarantors

 

Each of the Subsidiary Guarantors agrees that, if, pursuant to Section 7.11(b) (Additional Collateral and Guaranties) of the Credit Agreement, the Borrower shall be required to cause any Subsidiary that is not a Subsidiary Guarantor to become a Subsidiary Guarantor hereunder, or if for any reason the Borrower desires any such Subsidiary to become a Subsidiary Guarantor hereunder, such Subsidiary shall execute and deliver to the Administrative Agent a Guaranty Supplement in substantially the form of Exhibit A (Guaranty Supplement) attached hereto and shall thereafter for all purposes be a

 

10


U.S. S UBSIDIARY G UARANTY

FMC C ORPORATION

 

party hereto and have the same rights, benefits and obligations as a Subsidiary Guarantor party hereto on the Closing Date.

 

Section 24 Collateral

 

Each Subsidiary Guarantor hereby acknowledges and agrees that its obligations under this Guaranty are secured pursuant to the terms and provisions of the Collateral Documents executed by it in favor of the Administrative Agent, for the benefit of the Secured Parties, and covenants that it shall not grant any Lien with respect to its Property in favor, or for the benefit, of any Person other than as permitted by the Credit Agreement.

 

Section 25 Costs and Expenses

 

Each Subsidiary Guarantor agrees to pay or reimburse the Administrative Agent and each of the other Guarantied Parties upon demand for all out-of-pocket costs and expenses, including reasonable attorneys’ fees (including allocated costs of internal counsel and costs of settlement), incurred by the Administrative Agent and such other Guarantied Parties in enforcing this Guaranty or any security therefor or exercising or enforcing any other right or remedy available in connection herewith or therewith.

 

Section 26 Waiver of Consequential Damages

 

E ACH S UBSIDIARY G UARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES , TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW , ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER ANY SPECIAL , EXEMPLARY , PUNITIVE OR CONSEQUENTIAL DAMAGE IN ANY LEGAL ACTION OR PROCEEDING IN RESPECT OF THIS G UARANTY OR ANY OTHER C REDIT D OCUMENT .

 

Section 27 Entire Agreement

 

This Guaranty, taken together with all of the other Credit Documents executed and delivered by the Subsidiary Guarantors, represents the entire agreement and understanding of the parties hereto and supersedes all prior understandings, written and oral, relating to the subject matter hereof.

 

[S IGNATURE P AGES F OLLOW ]

 

11


I N W ITNESS W HEREOF , this Guaranty has been duly executed by the Subsidiary Guarantors as of the day and year first set forth above.

 

Subsidiary Guarantors:

I NTERMOUNTAIN R ESEARCH AND

D EVELOPMENT C ORPORATION

By:

 

/s/ Thomas C. Deas, Jr.

   
   

Name: Thomas C. Deas, Jr.

   

Title: Authorized Signatory

FMC A SIA -P ACIFIC , I NC .

By:  

/s/ Thomas C. Deas, Jr.

   
   

Name: Thomas C. Deas, Jr.

   

Title: Authorized Signatory

FMC O VERSEAS , L TD .

By:  

/s/ Thomas C. Deas, Jr.

   
   

Name: Thomas C. Deas, Jr.

   

Title: Authorized Signatory

FMC F UNDING C ORPORATION

By:  

/s/ Thomas C. Deas, Jr.

   
   

Name: Thomas C. Deas, Jr.

   

Title: Authorized Signatory

FMC WFC I, I NC .

By:  

/s/ Thomas C. Deas, Jr.

   
   

Name: Thomas C. Deas, Jr.

   

Title: Authorized Signatory

FMC WFC II, I NC .

By:  

/s/ Thomas C. Deas. Jr.

   
   

Name: Thomas C. Deas, Jr.

   

Title: Authorized Signatory

FMC D EFENSE C ORP .

By:  

/s/ Thomas C. Deas, Jr.

   
   

Name: Thomas C. Deas, Jr.

   

Title: Authorized Signatory

 

[S IGNATURE P AGE TO U.S. S UBSIDIARY G UARANTY OF FMC C ORPORATION S C REDIT A GREEMENT ]

 


U.S. S UBSIDIARY G UARANTY

FMC C ORPORATION

 

FMC P ROPERTIES LLC

By:

 

/s/ Thomas C. Deas, Jr.

   
   

Name: Thomas C. Deas, Jr.

   

Title: Authorized Signatory

FMC D EFENSE NL, LLC

By:

 

/s/ Thomas C. Deas, Jr.

   
   

Name: Thomas C. Deas, Jr.

   

Title: Authorized Signatory

FMC WFC I NL, LLC

By:

 

/s/ Thomas C. Deas, Jr.

   
   

Name: Thomas C. Deas, Jr.

   

Title: Authorized Signatory

FMC I DAHO LLC

By:

 

/s/ Thomas C. Deas, Jr.

   
   

Name: Thomas C. Deas, Jr.

   

Title: Authorized Signatory

 

A CKNOWLEDGED AND A GREED

as of the date first above written:

C ITICORP USA, I NC .

as Administrative Agent

By:

 

/s/ Carolyn A. Sheridan

   

Name: Carolyn A. Sheridan

Title: Managing Director & Vice President

 

[S IGNATURE P AGE TO U.S. S UBSIDIARY G UARANTY OF FMC C ORPORATION S C REDIT A GREEMENT ]

 


E XHIBIT A

TO

U.S. S UBSIDIARY G UARANTY

 

F ORM OF G UARANTY S UPPLEMENT

 

The undersigned hereby agrees to be bound as a Subsidiary Guarantor for purposes of the U.S. Subsidiary Guaranty, dated as of October 21, 2002 (the “ Guaranty ”), among Citicorp USA, Inc. and certain Subsidiaries of FMC Corporation listed on the signature pages thereof and acknowledged by Citicorp USA, Inc., as Administrative Agent, and the undersigned hereby acknowledges receipt of a copy of the Guaranty. The undersigned hereby represents and warrants that each of the representations and warranties contained in Section 16 (Representations and Warranties; Covenants) of the Guaranty applicable to it is true and correct on and as the date hereof as if made on and as of such date. Capitalized terms used herein but not defined herein are used with the meanings given them in the Guaranty.

 

I N W ITNESS W HEREOF , the undersigned has caused this Guaranty Supplement to be duly executed and delivered as of                      ,              .

 

[N AME OF S UBSIDIARY G UARANTOR ]

By:

   
   
   

Name:

   

Title:

 

A CKNOWLEDGED AND A GREED

as of the date first above written:

C ITICORP USA, I NC .

as Administrative Agent

By:

   
   

Name:

Title:

 

Exhibit 10.4

 

E XECUTION C OPY

 

P ARENT G UARANTY

 

P ARENT G UARANTY , dated as of October 21, 2002, by FMC C ORPORATION (the “ Guarantor ”), in favor of each entity that has executed the Sharing Agreement (collectively, the “ Foreign Lenders ”) under the Foreign Loans (as defined below) listed opposite its name on such Schedule A (each, a “ Guarantied Party ” and, collectively, the “ Guarantied Parties ”).

 

W I T N E S S E T H :

 

W HEREAS , pursuant to the Credit Agreement dated as of October 21, 2002 (together with all appendices, exhibits and schedules thereto and as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”; capitalized terms defined therein and used herein having the meanings given to them in the Credit Agreement) among the Guarantor, as borrower (the “ Borrower ”), the Lenders and Issuers party thereto and Citicorp USA, Inc., as agent for the Lenders and Issuers, the Lenders and Issuers have severally agreed to make extensions of credit to the Guarantor upon the terms and subject to the conditions set forth therein;

 

W HEREAS , pursuant to the respective terms of (i) each of the Foreign Credit Lines and (ii) Hedging Contracts and Cash Management Obligations that are otherwise guarantied by the Borrower (the “ Foreign Facilities ” and together with the Foreign Credit Lines, the “ Foreign Loans ”), each of the Foreign Lenders have agreed to make extensions of credit or other financial accommodations 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 ”);

 

W HEREAS , the Guarantor will receive substantial direct and indirect benefits from the Foreign Loans; and

 

W HEREAS , a condition precedent to the obligation of the Lenders and the Issuers to make their respective extensions of credit to the Guarantor under the Credit Agreement is that the Guarantor shall have executed and delivered this Parent Guaranty (this “ Guaranty ”) for the benefit of the Guarantied Parties;

 

N OW , T HEREFORE , in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

Section 1 Guaranty

 

(a) The Guarantor hereby absolutely, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, the full and punctual payment when due, whether at stated maturity or earlier, by reason of acceleration, mandatory prepayment or otherwise in accordance herewith or any other Loan Document or Foreign Loan Document, of all the obligations of the Foreign Borrowers under the Foreign Loans owing to each Foreign Lender that has executed the Sharing Agreement (the “ Obligations ”), whether or not from time to time reduced or extinguished or hereafter increased or incurred, whether or not recovery may be or hereafter may become barred by any statute of limitations, whether or not enforceable as against any Foreign Borrower, whether now or hereafter existing, and

 


P ARENT G UARANTY

FMC C ORPORATION

 

whether due or to become due, including principal, interest (including interest at the contract rate applicable upon default accrued or accruing after the commencement of any proceeding under the Bankruptcy Code or any similar bankruptcy or insolvency proceeding with respect to the Foreign Borrowers, whether or not such interest is an allowed claim in such proceeding), fees and costs of collection. This Guaranty constitutes a guaranty of payment and not of collection.

 

(b) The Guarantor further agrees that, if any payment made by any Foreign Borrower or any other person and applied to the 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 to such Foreign Borrower or such other person, its estate, trustee, receiver or any other party, including the Guarantor, under any bankruptcy law, equitable cause or any other Requirement of Law, then, to the extent of such payment or repayment, the Guarantor’s liability hereunder (and any Lien or other collateral securing such liability) shall be and remain in full force and effect, as fully as if such payment had never been made. If, prior to any of the foregoing, this Guaranty shall have been cancelled or surrendered (and if any Lien or other collateral securing the Guarantor’s liability hereunder shall have been released or terminated by virtue of such cancellation or surrender), this Guaranty (and such Lien or other collateral) shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of the Guarantor in respect of the amount of such payment (or any Lien or other collateral securing such obligation).

 

Section 2 Authorization; Other Agreements

 

The Guarantied Parties are hereby authorized, without notice to, or demand upon, the Guarantor, which notice and demand requirements each are expressly waived hereby, and without discharging or otherwise affecting the obligations of the Guarantor hereunder (which obligations shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time, to do each of the following:

 

(a) supplement, renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to, the Obligations, or any part of them, or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument (including any of the Foreign Loan Documents) now or hereafter executed by any Foreign Borrower and delivered to the Guarantied Parties or any of them, including any increase or decrease of principal or the rate of interest thereon;

 

(b) waive or otherwise consent to noncompliance with any provision of any instrument evidencing the Obligations, or any part thereof, or any other instrument or agreement in respect of the Obligations (including the Foreign Loan Documents) now or hereafter executed by any Foreign Borrower and delivered to the Guarantied Parties or any of them;

 

(c) accept partial payments on the Obligations;

 

(d) receive, take and hold additional security or collateral for the payment of the Obligations or any part of them and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, otherwise alter and release any such additional security or collateral;

 

(e) settle, release, compromise, collect or otherwise liquidate the Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any security or collateral for the Obligations or any part of them or any other guaranty therefor, in any manner;

 

2


P ARENT G UARANTY

FMC C ORPORATION

 

(f) add, release or substitute any one or more other guarantors, makers or endorsers of the Obligations or any part of them and otherwise deal with any Foreign Borrower or any other guarantor, maker or endorser;

 

(g) apply to the Obligations any payment or recovery (x) from any Foreign Borrower, from any other guarantor, maker or endorser of the Obligations or any part of them or (y) from the Guarantor in such order as provided herein, in each case whether such Obligations are secured or unsecured or guaranteed or not guaranteed by others;

 

(h) apply to the Obligations any payment or recovery from the Guarantor of the Obligations or any sum realized from security furnished by the Guarantor upon its indebtedness or obligations to the Guarantied Parties or any of them, in each case whether or not such indebtedness or obligations relate to the Obligations; and

 

(i) refund at any time any payment received by any Guarantied Party in respect of any Obligation, and payment to such Guarantied Party of the amount so refunded shall be fully guaranteed hereby even though prior thereto this Guaranty shall have been cancelled or surrendered (or any release or termination of any Collateral by virtue thereof), and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of the Guarantor hereunder in respect of the amount so refunded (and any Collateral so released or terminated shall be reinstated with respect to such obligations);

 

even if any right of reimbursement or subrogation or other right or remedy of the Guarantor is extinguished, affected or impaired by any of the foregoing (including any election of remedies by reason of any judicial, non-judicial or other proceeding in respect of the Obligations that impairs any subrogation, reimbursement or other right of the Guarantor).

 

Section 3 Guaranty Absolute and Unconditional

 

The Guarantor hereby waives any defense of a surety or guarantor or any other obligor on any obligations arising in connection with or in respect of any of the following and hereby agrees that its obligations under this Guaranty are absolute and unconditional and shall not be discharged or otherwise affected as a result of any of the following:

 

(a) the invalidity or unenforceability of any of (i) the Borrower’s obligations under the Credit Agreement or any other Loan Document or (ii) the obligations of the Foreign Borrowers under the Foreign Loan Documents, or any other agreement or instrument relating thereto, or any security for, or other guaranty of the Obligations or any part of them, or the lack of perfection or continuing perfection or failure of priority of any security for the Obligations or any part of them;

 

(b) the absence of any attempt to collect the Obligations or any part of them from any Foreign Borrower or other action to enforce the same;

 

(c) failure by any Guarantied Party to take any steps to perfect and maintain any Lien on, or to preserve any rights to, any Collateral;

 

(d) any Guarantied Party’s election, in any proceeding instituted under chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code;

 

3


P ARENT G UARANTY

FMC C ORPORATION

 

(e) any borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or extension of credit, under Section 364 of the Bankruptcy Code;

 

(f) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Guarantied Party’s claim (or claims) for repayment of the Obligations ;

 

(g) any use of cash collateral under Section 363 of the Bankruptcy Code;

 

(h) any agreement or stipulation as to the provision of adequate protection in any bankruptcy proceeding;

 

(i) the avoidance of any Lien in favor of the Guarantied Parties or any of them for any reason;

 

(j) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Foreign Borrower, the Guarantor or any of the Borrower’s Subsidiaries, including any discharge of, or bar or stay against collecting, any Obligation (or any part of them or interest thereon) in or as a result of any such proceeding;

 

(k) failure by any Guarantied Party to file or enforce a claim against any Foreign Borrower or its estate in any bankruptcy or insolvency case or proceeding;

 

(l) any action taken by any Guarantied Party if such action is authorized hereby;

 

(m) any election following the occurrence and during the continuance of an Event of Default by any Guarantied Party to proceed separately against the personal property Collateral in accordance with such Guarantied Party’s rights under the UCC or similar applicable foreign laws or, if the Collateral consists of both personal and real property, to proceed against such personal and real property in accordance with such Guarantied Party’s rights with respect to such real property; or

 

(n) any other circumstance that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor or any other obligor on any obligations, other than the payment in full of the Obligations.

 

Section 4 Waivers

 

The Guarantor hereby waives diligence, promptness, presentment, demand for payment or performance and protest and notice of protest, notice of acceptance and any other notice in respect of the Obligations or any part of them, and any defense arising by reason of any disability or other defense of any Foreign Borrower. The Guarantor shall not, until the Obligations are irrevocably paid in full and the Foreign Loans and the commitments and other obligations thereunder have been terminated, (i) assert any claim or counterclaim it may have against the Foreign Borrowers or (ii) set off any of its obligations to the Foreign Borrowers against any obligations of the Foreign Borrowers to it, other than any such set off in the ordinary course of the Guarantor’s business. In connection with the foregoing, the Guarantor covenants that its obligations hereunder shall not be discharged, except by complete performance.

 

Section 5 Reliance

 

The Guarantor hereby assumes responsibility for keeping itself informed of the financial condition of the Foreign Borrowers and any endorser and other guarantor of all or any part of the

 

4


P ARENT G UARANTY

FMC C ORPORATION

 

Obligations, and of all other circumstances bearing upon the risk of nonpayment of the Obligations, or any part thereof, that diligent inquiry would reveal, and the Guarantor hereby agrees that no Guarantied Party shall have any duty to advise the Guarantor of information known to it regarding such condition or any such circumstances. In the event any Guarantied Party, in its sole discretion, undertakes at any time or from time to time to provide any such information to the Guarantor, such Guarantied Party shall be under no obligation (a) to undertake any investigation not a part of its regular business routine, (b) to disclose any information that such Guarantied Party, pursuant to accepted or reasonable commercial finance or banking practices, wishes to maintain confidential or (c) to make any other or future disclosures of such information or any other information to the Guarantor.

 

Section 6 Waiver of Subrogation and Contribution Rights

 

Until the Obligations have been irrevocably paid in full and the Foreign Loans and the commitments and other obligations thereunder have been terminated, the Guarantor shall not enforce or otherwise exercise any right of subrogation to any of the rights of the Guarantied Parties or any part of them against the Foreign Borrowers or any right of reimbursement or contribution or similar right against the Foreign Borrowers by reason of this Agreement or by any payment made by the Guarantor in respect of the Obligations.

 

Section 7 Subordination

 

The Guarantor hereby agrees that any Indebtedness of the Foreign Borrowers now or hereafter owing to the Guarantor, whether heretofore, now or hereafter created (the “ Guarantor Subordinated Debt ”), is hereby subordinated to all of the Obligations and that, except as permitted under Section 8.6 (Prepayment and Cancellation of Indebtedness) of the Credit Agreement and under the Foreign Loan Documents, the Guarantor Subordinated Debt shall not be paid in whole or in part until the Obligations have been paid in full and this Guaranty is terminated and of no further force or effect. The Guarantor shall not accept any payment of or on account of the Guarantor Subordinated Debt at any time in contravention of the foregoing. Upon the occurrence and during the continuance of an Event of Default, the Guarantor shall cause the applicable Foreign Borrower to pay to the Administrative Agent any payment of all or any part of the Guarantor Subordinated Debt and any amount so paid to the Administrative Agent shall be applied to payment of the Obligations as provided in the applicable Foreign Loan Document. Each payment on the Guarantor Subordinated Debt received in violation of any of the provisions hereof shall be deemed to have been received by the Guarantor as trustee for the Guarantied Parties and shall be paid over to the Administrative Agent immediately on account of the Obligations, but without otherwise affecting in any manner the Guarantor’s liability hereof. The Guarantor agrees to file all claims against the Foreign Borrowers in any bankruptcy or other proceeding in which the filing of claims is required by law in respect of the Guarantor Subordinated Debt, and the Administrative Agent shall be entitled to all of the Guarantor’s rights thereunder. If for any reason the Guarantor fails to file such claim at least ten Business Days prior to the last date on which such claim should be filed, the Guarantor hereby irrevocably appoints the Administrative Agent as its true and lawful attorney-in-fact and is hereby authorized to act as attorney-in-fact in the Guarantor’s name to file such claim or, in the Administrative Agent’s discretion, to assign such claim to and cause proof of claim to be filed in the name of the Administrative Agent or its nominee. In all such cases, whether in administration, bankruptcy or otherwise, the person or persons authorized to pay such claim shall pay to the Administrative Agent the full amount payable on the claim in the proceeding, and, to the full extent necessary for that purpose, the Guarantor hereby assigns to the Administrative Agent all of the Guarantor’s rights to any payments or distributions to which the Guarantor otherwise would be entitled. If the amount so paid is greater than the Guarantor’s liability hereunder, the Administrative Agent shall

 

5


P ARENT G UARANTY

FMC C ORPORATION

 

promptly pay the excess amount to the party entitled thereto. In addition, the Guarantor hereby irrevocably appoints the Administrative Agent as its attorney-in-fact to exercise all of the Guarantor’s voting rights in connection with any bankruptcy proceeding of the Foreign Borrower or any plan for the reorganization of the Foreign Borrowers.

 

Section 8 Default; Remedies

 

The obligations of the Guarantor hereunder are independent of and separate from the Obligations. If any Obligation is not paid when due, or upon the occurrence and during the continuance of any Event of Default or upon the occurrence and during the continuance any default by any Foreign Borrower as provided in any other instrument or document evidencing all or any part of the Obligations, the Administrative Agent may, at its sole election, proceed directly and at once, without notice, against the Guarantor to collect and recover the full amount or any portion of the Obligations then due, without first proceeding against any Foreign Borrower or any other guarantor of the Obligations, or against any Collateral under the Foreign Loan Documents or joining any Foreign Borrower or any other guarantor in any proceeding against the Guarantor. At any time after maturity of the Obligations, the Administrative Agent may (unless the Obligations have been irrevocably paid in full), without notice to the Guarantor and regardless of the acceptance of any Collateral for the payment thereof, appropriate and apply toward the payment of the Obligations (a) any indebtedness due or to become due from any Guarantied Party to the Guarantor and (b) any moneys, credits or other property belonging to the Guarantor at any time held by or coming into the possession of any Guarantied Party or any of its respective Affiliates.

 

Section 9 Irrevocability

 

This Guaranty shall be irrevocable as to the Obligations (or any part thereof) until the Foreign Loans have been terminated and all monetary Obligations then outstanding have been irrevocably repaid in cash, at which time this Guaranty shall automatically be cancelled. Upon such cancellation and at the written request of the Guarantor or its successors or assigns, and at the cost and expense of the Guarantor or its successors or assigns, the Administrative Agent shall execute in a timely manner a satisfaction of this Guaranty and such instruments, documents or agreements as are necessary or desirable to evidence the termination of this Guaranty.

 

Section 10 Setoff

 

Upon the occurrence and during the continuance of an Event of Default, each Guarantied Party and each Affiliate of a Guarantied Party may, without notice to the Guarantor and regardless of the acceptance of any security or collateral for the payment hereof, appropriate and apply toward the payment of all or any part of the Obligations (a) any indebtedness due or to become due from such Guarantied Party or Affiliate to the Guarantor and (b) any moneys, credits or other property belonging to the Guarantor, at any time held by, or coming into, the possession of such Guarantied Party or Affiliate.

 

Section 11 No Marshalling

 

The Guarantor consents and agrees that no Guarantied Party or Person acting for or on behalf of any Guarantied Party shall be under any obligation to marshal any assets in favor of the Guarantor or against or in payment of any or all of the Obligations.

 

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Section 12 Enforcement; Amendments; Waivers

 

No delay on the part of any Guarantied Party in the exercise of any right or remedy arising under this Guaranty, the Credit Agreement, any other Loan Document or any Foreign Loan Document or otherwise with respect to all or any part of the Obligations, the Collateral or any other guaranty of or security for all or any part of the Obligations shall operate as a waiver thereof, and no single or partial exercise by any such Person of any such right or remedy shall preclude any further exercise thereof. No modification or waiver of any provision of this Guaranty shall be binding upon any Guarantied Party, except as expressly set forth in a writing duly signed and delivered by the party making such modification or waiver. Failure by any Guarantied Party at any time or times hereafter to require strict performance by the Foreign Borrowers, the Guarantor, any other guarantor of all or any part of the Obligations or any other Person of any provision, warranty, term or condition contained in any Loan Document or any Foreign Loan Document now or at any time hereafter executed by any such Persons and delivered to any Guarantied Party shall not waive, affect or diminish any right of any Guarantied Party at any time or times hereafter to demand strict performance thereof and such right shall not be deemed to have been waived by any act or knowledge of any Guarantied Party, or its respective agents, officers or employees, unless such waiver is contained in an instrument in writing, directed and delivered to the Foreign Borrowers or the Guarantor, as applicable, specifying such waiver, and is signed by the party or parties necessary to give such waiver under the Credit Agreement and/or applicable Foreign Loan Document. No waiver of any Event of Default by any Guarantied Party shall operate as a waiver of any other event of default or the same event of default on a future occasion, and no action by any Guarantied Party permitted hereunder shall in any way affect or impair any Guarantied Party’s rights and remedies or the obligations of the Guarantor under this Guaranty. Any determination by a court of competent jurisdiction of the amount of any principal or interest owing by any Foreign Borrower to a Guarantied Party shall be conclusive and binding on the Guarantor irrespective of whether the Guarantor was a party to the suit or action in which such determination was made.

 

Section 13 Successors and Assigns

 

This Guaranty shall be binding upon the Guarantor and upon the successors and assigns of the Guarantor and shall inure to the benefit of the Guarantied Parties and their respective successors and assigns; all references herein to any Foreign Borrower and to the Guarantor shall be deemed to include their respective successors and assigns. The successors and assigns of the Guarantor and any Foreign Borrower shall include, without limitation, their respective receivers, trustees and debtors-in-possession. All references to the singular shall be deemed to include the plural where the context so requires.

 

Section 14 Representations and Warranties; Covenants

 

The Guarantor hereby (a) represents and warrants that the representations and warranties made by it in Article IV (Representations and Warranties) of the Credit Agreement are true and correct on the date hereof and (b) agrees to take, or refrain from taking, as the case may be, each action necessary to be taken or not taken, as the case may be, so that no Default or Event of Default or event of default under any Foreign Loan Document is caused by the failure to take such action or to refrain from taking such action by the Guarantor.

 

Section 15 Governing Law

 

This Guaranty and the rights and obligations of the parties hereto shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.

 

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Section 16 Submission to Jurisdiction; Service of Process

 

(a) Any legal action or proceeding with respect to this Guaranty and any other Loan Document, may be brought in the courts of the State of New York or of the United States of America for the Southern District of New York, and, by execution and delivery of this Agreement, the Guarantor hereby accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. The parties hereto hereby irrevocably waive any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens , that any of them may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions .

 

(b) Nothing contained in this Section 16 (Submission to Jurisdiction; Service of Process) shall affect the right of the Administrative Agent or any other Guarantied Party to serve process in any other manner permitted by law or commence legal proceedings or otherwise proceed against the Guarantor in any other jurisdiction.

 

(c) If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder in Dollars into another currency, the parties hereto agree, to the fullest extent they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase Dollars with such other currency at the spot rate of exchange quoted by the Administrative Agent at 11:00 a.m. (New York time) on the Business Day preceding that on which final judgment is given, for the purchase of Dollars, for delivery two Business Days thereafter.

 

Section 17 Certain Terms

 

The following rules of interpretation shall apply to this Guaranty: (a) the terms “ herein ,” “ hereof ,” “ hereto ” and “ hereunder ” and similar terms refer to this Guaranty as a whole and not to any particular Article, Section, subsection or clause in this Guaranty, (b) unless otherwise indicated, references herein to an Exhibit, Article, Section, subsection or clause refer to the appropriate Exhibit to, or Article, Section, subsection or clause in this Guaranty and (c) the term “ including ” means “ including without limitation ” except when used in the computation of time periods.

 

Section 18 Waiver of Jury Trial

 

E ACH OF THE A DMINISTRATIVE A GENT , THE OTHER G UARANTIED P ARTIES AND THE G UARANTOR IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS G UARANTY AND ANY OTHER L OAN D OCUMENT OR F OREIGN L OAN D OCUMENT .

 

Section 19 Notices

 

Any notice or other communication herein required or permitted shall be given, in the case of the Guarantor, as provided in Section 11.8 (Notices, Etc.) of the Credit Agreement and, in the case of any Guarantied Party, to such party at the address listed in the applicable Foreign Loan Document.

 

Section 20 Severability

 

Wherever possible, each provision of this Guaranty shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or

 

8


P ARENT G UARANTY

FMC C ORPORATION

 

invalidity without invalidating the remainder of such provision or the remaining provisions of this Guaranty.

 

Section 21 Collateral

 

The Guarantor hereby acknowledges and agrees that its obligations under this Guaranty are secured pursuant to the terms and provisions of the Loan Documents with respect to the Collateral, if any, executed by it in favor of the applicable Foreign Lender, and covenants that it shall not grant any Lien with respect to its property in favor, or for the benefit, of any Person except as permitted by the terms of the Credit Agreement.

 

Section 22 Costs and Expenses

 

The Guarantor agrees to pay or reimburse the Administrative Agent and each of the other Guarantied Parties upon demand for all out-of-pocket costs and expenses, including reasonable attorneys’ fees (including allocated costs of internal counsel and costs of settlement), incurred by the Administrative Agent and such other Guarantied Parties in enforcing this Guaranty or any security therefor or exercising or enforcing any other right or remedy available in connection herewith or therewith.

 

Section 23 Waiver of Consequential Damages

 

T HE G UARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES , TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW , ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER ANY SPECIAL , EXEMPLARY , PUNITIVE OR CONSEQUENTIAL DAMAGE IN ANY LEGAL ACTION OR PROCEEDING IN RESPECT OF THIS G UARANTY OR ANY OTHER L OAN D OCUMENT OR F OREIGN L OAN D OCUMENT .

 

Section 24 Entire Agreement

 

This Guaranty, taken together with all of the other Loan Documents and Foreign Loan Documents executed and delivered by the Guarantor, represents the entire agreement and understanding of the parties hereto and supersedes all prior understandings, written and oral, relating to the subject matter hereof.

 

[S IGNATURE P AGE F OLLOWS ]

 

9


I N WITNESS WHEREOF , this Guaranty has been duly executed by the Guarantor as of the day and year first set forth above.

 

FMC C ORPORATION ,

as Guarantor

By:   /s/ Thomas C. Deas, Jr.
   
    Name: Thomas C. Deas, Jr.
    Title: Vice President & Treasurer

 

A CKNOWLEDGED AND A GREED

as of the date first above written:

 

C ITICORP USA, I NC .,

as Administrative Agent

By:   /s/ Caroyln A. Sheridan
   
    Name: Caroyln A. Sheridan
    Title: Managing Director & Vice President

 

 

Exhibit 10.12.a

 

First Amendment

of

FMC Corporation Salaried Employees’ Equivalent Retirement Plan

 

WHEREAS, FMC Corporation (the “Company”) maintains the FMC Corporation Salaried Employees’ Equivalent Retirement Plan (the “Plan”); and

 

WHEREAS, the Company now considers it desirable to amend the Plan to modify the distribution options available under the Plan.

 

NOW, THEREFORE, by virtue of the authority reserved to the Company by Section 8 of the Plan, the Plan is hereby amended effective as of August 1, 2002, as follows:

 

Section 6. Payment of Excess Benefit is hereby amended by deleting the following text effective as of August 1, 2002:

 

“Notwithstanding anything herein to the contrary, the Committee may, in its sole discretion, give a Participant the ability to elect a special annuity distribution option whereby the Company will purchase an annuity contract to pay the Participant’s Excess Benefit at the same time and in the same manner as his or her accrued benefit under the Salaried Retirement Plan are to be paid.”

 

IN WITNESS WHEREOF, the Company has caused this Plan to be executed in its name and behalf on this 12 day of August 2002.

 

FMC CORPORATION

By:   /s/ Kenneth R. Garrett
   
   

Kenneth R. Garrett

Vice President Human Resources

 

Exhibit 10.14.a

 

F IRST A MENDMENT

OF

FMC C ORPORATION N ON -Q UALIFIED S AVINGS AND I NVESTMENT P LAN

 

WHEREAS, FMC Corporation (the “Company”) maintains the FMC Corporation Non-Qualified Savings and Investment Plan (the “Plan”); and

 

WHEREAS, since its spin-off of FMC Technologies, Inc., the Company has allowed participants in the Plan to continue to hold or sell balances in the FMC Technologies, Inc. Stock Fund in the participants’ discretion, but has prohibited new investments in the FMC Technologies, Inc. Stock Fund;

 

WHEREAS, the Company now deems necessary and desirable to amend the Plan to eliminate the FMC Technologies, Inc. Stock Fund from the investment options offered under the Plan; and

 

NOW, THEREFORE, by virtue of the authority reserved to the Company by Article IX of the Plan, the Plan is hereby amended effective as of July 1, 2003, as follows:

 

Section 6.1 Deemed Investments is here by amended by adding the following to the end thereof:

 

(e) “Effective July 1, 2003 the FMC Technologies Stock Fund will be eliminated as a Permitted Investment in the Plan. The Company will direct the Trustee to sell any balances remaining in the FMC Technologies Stock Fund on June 30, 2003 and reinvest the proceeds from such sale into another Permitted Investment under the Plan to be designated by the Company at the time. It is currently anticipated that any remaining balances in the FMC Technologies Stock Fund will be transferred to the Fidelity Retirement Government Money Market Portfolio.”

 

IN WITNESS WHEREOF, the undersigned officer has executed this amendment on behalf of the Company, this 12 th day of August 2002.

 

FMC C ORPORATION
By:  

/s/ Kenneth R. Garrett

   
   

Kenneth R. Garrett

Vice President Human Resources

 

Exhibit 10.15.a

 

FIRST AMENDMENT TO TRUST AGREEMENT BETWEEN

FIDELITY MANAGEMENT TRUST COMPANY AND

FMC CORPORATION

 

THIS FIRST AMENDMENT, effective as of the first day of October, 2003, except as otherwise stated herein, by and between Fidelity Management Trust Company (the “Trustee”) and FMC Corporation (the “Sponsor”);

 

WITNESSETH:

 

WHEREAS, the Trustee and the Sponsor heretofore entered into a Trust Agreement dated and restated September 28, 2001, with regard to the FMC Corporation Nonqualified Savings and Investment Plan (the “Plan”); and

 

WHEREAS, the Sponsor has informed the Trustee that effective as of the close of business (4 p.m. ET) on June 30, 2003, the assets of the FMC Technologies Stock Fund were also frozen to exchanges out; and

 

WHEREAS, the Sponsor desired and directed the Trustee, in accordance with Section 8(b), to commence liquidating all Participant balances held in the FMC Technologies Stock Fund on July 1, 2003, in accordance with Fidelity’s best practices in the marketplace. The Sponsor was aware that market conditions may dictate that the trading occurs until July 7, 2003. The Sponsor directed that upon completion of the liquidation and settlement of the last trade on July 7, 2003, the Trustee shall invest the proceeds in the Fidelity Money Market Trust: Retirement Government Money Market Portfolio. The parties hereto agree that the Trustee shall have no discretionary authority with respect to this sale and transfer directed by the Sponsor. Any variation from the procedure described herein may be instituted only at the express written direction of the Sponsor; and

 

WHEREAS, the Trustee and the Sponsor now desire to amend said Trust Agreement as provided for in Section 16 thereof;

 

NOW THEREFORE, in consideration of the above premises, the Trustee and the Sponsor hereby amend the Trust Agreement by:

 

  (1) Effective July 8, 2003, amending Section 1, Definitions, to remove all references to “FMC Technologies Stock”, “FMC Technologies Stock Fund” and Schedule “F” in subsections (d), (g) and (bb) and to remove subsections (p) and (q), in their entireties.

 

  (2) Effective July 8, 2003, amending Section 5(b), Available Investment Options, to remove subsection (2) FMC Technologies Stock, in its entirety, and re-numbering all subsequent subsections accordingly.

 

  (3) Effective July 8, 2003, amending Section 5(e), Stock, to remove subsection (i), FMC Technologies Stock Fund, in its entirety, and re-numbering all subsequent subsections accordingly.

 

  (4)

Effective as of the close of business (4 p.m. ET) on June 30, 2003, the “investment options” section of Schedule “A” to replace the reference to “FMC Technologies, Inc. Stock Fund (defined herein as “FMC Technologies Stock Fund”)(available as an investment option as of the Spin-Off Date; frozen to contributions and exchanges in after the Sponsor distributes its interest in FMC Technologies, lnc.)” with “FMC Technologies, Inc. Stock Fund (defined herein as “FMC Technologies Stock Fund”)(available as an

 

FMC Corporation

First Amendment

LPS/NQ/Trust

         


 

investment option as of the Spin-Off Date; frozen to incoming contributions and exchanges in and out)”.

 

  (5) Effective July 8, 2003, amending the “investment options” section of Schedule “A” to remove the following:

 

  FMC Technologies, Inc. Stock Fund (defined herein as “FMC Technologies Stock Fund”)( available as an investment option as of the Spin-Off Date; frozen to incoming contributions and exchanges in and out)

 

  (6) Amending Schedule “B” by restating the “Non-Fidelity Mutual Funds” section in its entirety, as follows:

 

Non-Fidelity Mutual Funds:

   Fees paid directly to Fidelity Investments Institutional Operations Company, Inc. (FIIOC) or its affiliates by Non-Fidelity Mutual Fund vendors shall be posted and updated quarterly on Plan Sponsor Webstation at https://psw.fidelity.com or a successor site.

 

  (7) Effective July 8, 2003, amending the “Stock Administration Fee” section of Schedule “B” to remove all references to the “FMC Technologies Stock Fund”.

 

  (8) Effective July 8, 2003, amending Schedule “E” to remove the “FMC Technologies Stock Fund” section, in its entirety.

 

  (9) Effective July 8, 2003, removing Schedule “F”, in its entirety.

 

IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this First Amendment to be executed by their duly authorized officers effective as of the day and year first above written.

 

FMC CORPORATION           FIDELITY MANAGEMENT TRUST COMPANY    
By:   /s/    Kenneth R. Garrett          

10/23/03

      By:   /s/    Illegible          

11/26/03

   
             
   
        Date          

FMTC Authorized Signatory

  Date

 

FMC Corporation

First Amendment

LPS/NQ/Trust

   2     

 

Exhibit 10.20

 

FORM I

 

FMC Corporation

Executive Severance Agreement

 

THIS AGREEMENT is made and entered into as of the 31 st day of December , 2001, by and between FMC Corporation (hereinafter referred to as the “Company”) and William K. Foster (hereinafter referred to as the “Executive”).

 

WHEREAS, the Board has approved the Company’s entering into severance agreements with certain key executives of the Company;

 

WHEREAS, the Executive is a key executive of the Company;

 

WHEREAS, should the possibility of a Change in Control of the Company arise, the Board believes it is imperative that the Company and the Board should be able to rely upon the Executive to continue in the Executive’s position, and that the Company should be able to receive and rely upon the Executive’s advice, if requested, as to the best interests of the Company and its shareholders without concern that the Executive might be distracted by the personal uncertainties and risks created by the possibility of a Change in Control;

 

WHEREAS, the Executive agrees that the terms of this Agreement completely replace and supersede the provisions of any prior executive severance agreement with the Company;

 

WHEREAS, should the possibility of a Change in Control arise, in addition to the Executive’s regular duties, the Executive may be called upon to assist in the assessment of such possible Change in Control, advise management and the Board as to whether such Change in Control would be in the best interests of the Company and its shareholders, and to take such other actions as the Board might determine to be appropriate;

 

WHEREAS, the Executive acknowledges that neither the IPO nor the Distribution will result in a Change in Control; and

 

WHEREAS, the Executive and the Company desire that the terms of this Agreement will completely replace and supersede the provisions set forth in the Plan, setting forth the terms and provisions with respect to the Executive’s entitlement to payments and benefits following a Change in Control.

 

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NOW THEREFORE, to assure the Company that it will have the continued dedication of the Executive and the availability of the Executive’s advice and counsel notwithstanding the possibility, threat, or occurrence of a Change in Control of the Company, and to induce the Executive to remain in the employ of the Company, and for other good and valuable consideration, the Company and the Executive agree as follows:

 

Article 1. Establishment, Term, and Purpose

 

This Agreement will commence on the Effective Date and will continue in effect for a three (3) year term, until the third anniversary of the Effective Date. Upon each anniversary of the Effective Date, the term of this Agreement will be extended automatically for one (1) additional year, unless the Committee delivers written notice six (6) months prior to such anniversary to the Executive that this Agreement will not be extended. In such case, this Agreement will terminate at the end of the term, or extended term, then in progress.

 

However, in the event a Change in Control occurs during the original or any extended term, this Agreement will remain in effect for the longer of: (i) twenty-four (24) months beyond the month in which such Change in Control occurred; and (ii) until all obligations of the Company hereunder have been fulfilled, and until all benefits required hereunder have been paid to the Executive.

 

Article 2. Definitions

 

Whenever used in this Agreement, the following terms will have the meanings set forth below and, when the meaning is intended, the initial letter of the word is capitalized.

 

2.1. Base Salary means the salary of record paid to an Executive as annual salary, excluding amounts received under incentive or other bonus plans, whether or not deferred.

 

2.2. Beneficiary means the persons or entities designated or deemed designated by the Executive pursuant to Section 11.2 herein.

 

2.3. Board means the Board of Directors of the Company.

 

2.4. Cause means:

 

(a) the Executive’s Willful and continued failure to substantially perform the Executive’s employment duties in any material respect (other than any such failure resulting from physical or mental incapacity or occurring after issuance by the Executive of a Notice of Termination for Good Reason), after a written demand for substantial performance is delivered to the Executive that specifically identifies the manner in which the Company believes the Executive has failed to perform the Executive’s duties, and after the Executive has failed to resume substantial performance of the Executive’s duties on a continuous basis within thirty (30) calendar days of receiving such demand;

 

(b) the Executive’s Willfully engaging in conduct (other than conduct covered under (a) above) which is demonstrably and materially injurious to the Company or an Affiliate; or

 

- 2 -


(c) the Executive’s having been convicted of, or pleading guilty or nolo contendere to, a felony under federal or state law on or prior to a Change in Control.

 

2.5. Change in Control means the happening of any of the following events:

 

(a) An acquisition by any Person of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty percent (20%) or more of either (i) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); excluding, however, the following: (A) any acquisition directly from the Company, other than an acquisition by virtue of the exercise of a conversion privilege unless the security being so converted was itself acquired directly from the Company, (B) any acquisition by the Company, (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any entity controlled by the Company, or (D) any acquisition pursuant to a transaction which complies with Subsections (i), (ii) and (iii) of Subsection (C) of this Section 2.5;

 

(b) A change in the composition of the Board such that the individuals who, as of the Effective Date, constitute the Board (such Board will be hereinafter referred to as the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, for purposes of this Section 2.5, that any individual who becomes a member of the Board subsequent to the Effective Date, whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of those individuals who are members of the Board and who were also members of the Incumbent Board (or deemed to be such pursuant to this proviso) will be considered as though such individual were a member of the Incumbent Board; but, provided further, that any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board will not be so considered as a member of the Incumbent Board;

 

(c) Consummation of a reorganization, merger or consolidation, sale or other disposition of all or substantially all of the assets of the Company, or acquisition by the Company of the assets or stock of another entity (“Corporate Transaction”); excluding, however, such a Corporate Transaction pursuant to which (i) all or substantially all of the individuals and entities who are the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Corporate Transaction will beneficially own, directly or indirectly, more than sixty percent (60%) of, respectively, the outstanding shares of common stock, and the combined voting power of the then outstanding voting securities entitled to vote

 

- 3 -


generally in the election of directors, as the case may be, of the corporation resulting from such Corporate Transaction (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Corporate Transaction, of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (ii) no Person (other than the Company, any employee benefit plan (or related trust) of the Company or such corporation resulting from such Corporate Transaction) will beneficially own, directly or indirectly, twenty percent (20%) or more of, respectively, the outstanding shares of common stock of the corporation resulting from such Corporate Transaction or the combined voting power of the outstanding voting securities of such corporation entitled to vote generally in the election of directors except to the extent that such ownership existed prior to the Corporate Transaction, and (iii) individuals who were members of the Incumbent Board will constitute at least a majority of the members of the board of directors of the corporation resulting from such Corporate Transaction; or

 

(d) The approval by the stockholders of the Company of a complete liquidation or dissolution of the Company.

 

Notwithstanding the foregoing, neither the IPO, nor the Distribution will be treated as a Change in Control of the Company.

 

2.6. Code means the Internal Revenue Code of 1986, as amended from time to time, and any successor thereto.

 

2.7. Committee means the Compensation and Organization Committee of the Board or any other committee of the Board appointed to perform the functions of the Compensation and Organization Committee.

 

2.8. Company means FMC Corporation, a Delaware corporation, or any successor thereto as provided in Article 10 herein.

 

2.9. Disability means complete and permanent inability by reason of illness or accident to perform the duties of the occupation at which the Executive was employed when such disability commenced.

 

2.10. Distribution means the Company’s distribution of its interest in FMC Technologies, Inc.

 

2.11. Effective Date means the date of this Agreement set forth above.

 

2.12. Effective Date of Termination means the date on which a Qualifying Termination occurs which triggers the payment of Severance Benefits hereunder.

 

- 4 -


2.13. Exchange Act means the Securities Exchange Act of 1934, as amended from time to time, and any successor thereto.

 

2.14. Good Reason means, without the Executive’s express written consent, the occurrence of any one or more of the following:

 

(a) The assignment of the Executive to duties materially inconsistent with the Executive’s authorities, duties, responsibilities, and status (including, without limitation, offices, titles and reporting requirements) as an employee of the Company (including, without limitation, any material change in duties or status as a result of the stock of the Company ceasing to be publicly traded or of the Company becoming a subsidiary of another entity), or a reduction or alteration in the nature or status of the Executive’s authorities, duties, or responsibilities from the greatest of (i) those in effect on the Effective Date; (ii) those in effect during the fiscal year immediately preceding the year of the Change in Control; and (iii) those in effect immediately preceding the Change in Control;

 

(b) The Company’s requiring the Executive to be based at a location which is at least fifty (50) miles further from the Executive’s then current primary residence than is such residence from the office where the Executive is located at the time of the Change in Control, except for required travel on the Company’s business to an extent substantially consistent with the Executive’s business obligations as of the Effective Date or as the same may be changed from time to time prior to a Change in Control;

 

(c) A reduction by the Company in the Executive’s Base Salary as in effect on the Effective Date or as the same may be increased from time to time;

 

(d) A material reduction in the Executive’s level of participation in any of the Company’s short- and/or long-term incentive compensation plans, or employee benefit or retirement plans, policies, practices, or arrangements in which the Executive participates from the greatest of the levels in place: (i) on the Effective Date; (ii) during the fiscal year immediately preceding the fiscal year of the Change in Control; and (iii) on the date immediately preceding the date of the Change in Control;

 

(e) The failure of the Company to obtain a satisfactory agreement from any successor to the Company to assume and agree to perform this Agreement, as contemplated in Article 10 herein; or

 

(f) Any termination of Executive’s employment by the Company that is not effected pursuant to a Notice of Termination.

 

The existence of Good Reason will not be affected by the Executive’s temporary incapacity due to physical or mental illness not constituting a Disability. The

 

- 5 -


Executive’s continued employment will not constitute a waiver of the Executive’s rights with respect to any circumstance constituting Good Reason.

 

2.16. IPO means the initial registered public offering by FMC Technologies, Inc. of shares of its common stock.

 

2.17. Notice of Termination means a written notice which indicates the specific termination provision in this Agreement relied upon, and sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated.

 

2.18. Person has the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof, including a “group” as provided in Section 13(d).

 

2.19. Qualifying Termination means any of the events described in Section 3.2 herein, the occurrence of which triggers the payment of Severance Benefits hereunder.

 

2.20. Retirement means the Executive’s voluntary termination of employment in a manner that qualifies the Executive to receive immediately payable retirement benefits from the FMC Corporation Salaried Employees’ Retirement Program.

 

2.21. Severance Benefits means the payment of severance compensation as provided in Section 3.3 herein.

 

2.22. Trust means the Company grantor trust to be created pursuant to Article 6 of this Agreement.

 

2.23. Willful means any act or omission by the Executive that was in good faith and without a reasonable belief that the action or omission was in the best interests of the Company or its affiliates. Any act or omission based upon authority given pursuant to a duly adopted Board resolution, or, upon the instructions of any senior officer of the Company, or based upon the advice of counsel for the Company will be conclusively presumed to be taken or omitted by the Executive in good faith and in the best interests of the Company and/or its affiliates.

 

Article 3. Severance Benefits

 

3.1. Right to Severance Benefits . The Executive will be entitled to receive from the Company Severance Benefits, as described in Section 3.3 herein, if there has been a Change in Control of the Company and if, within twenty-four (24) calendar months following the Change in Control, a Qualifying Termination of the Executive has occurred.

 

- 6 -


The Executive will not be entitled to receive Severance Benefits if the Executive’s employment is terminated (i) for Cause, (ii) due to a voluntary termination without Good Reason, or (iii) due to death or Disability.

 

3.2. Qualifying Termination . The occurrence of any one or more of the following events will trigger the payment of Severance Benefits to the Executive under this Agreement:

 

(a) An involuntary termination of the Executive’s employment by the Company for reasons other than Cause, Disability or death within twenty-four (24) calendar months following the month in which a Change in Control of the Company occurs;

 

(b) A voluntary termination by the Executive for Good Reason within twenty-four (24) calendar months following the month in which a Change in Control of the Company occurs pursuant to a Notice of Termination delivered to the Company by the Executive; or

 

(c) The Company or any successor company breaches any of the provisions of this Agreement.

 

3.3. Description of Severance Benefits . In the event the Executive becomes entitled to receive Severance Benefits, as provided in Sections 3.1 and 3.2 herein, the Company will pay to the Executive (or in the event of the Executive’s death, the Executive’s Beneficiary) and provide him with the following:

 

(a) An amount equal to three (3) times the highest rate of the Executive’s annualized Base Salary in effect at any time up to and including the Effective Date of Termination.

 

(b) An amount equal to three (3) times the greater of (i) the Executive’s highest annualized target total Management Incentive Award granted under the FMC Corporation Incentive Compensation and Stock Plan for any plan year up to and including the plan year in which the Executive’s Effective Date of Termination occurs, and (ii) the average of the actual total Management Incentive Awards paid (or payable) to the Executive for the two plan years immediately preceding the Effective Date of Termination, or for such lesser number of such plan years for which the Executive was eligible to earn a Management Incentive Award, annualized for any year that the Executive was not employed by the Company for the entire plan year. For purposes of determining actual total Management Incentive Awards under the preceding sentence, any amounts the Executive deferred will be treated as if they had been paid to the Executive, rather than deferred.

 

- 7 -


(c) An amount equal to the Executive’s unpaid Base Salary, and unused and accrued vacation pay, earned or accrued through the Effective Date of Termination.

 

(d) An amount equal to the target total Management Incentive Award established for the plan year in which the Executive’s Effective Date of Termination occurred, prorated through the Effective Date of Termination.

 

(e) A continuation of the Company’s welfare benefits of health care, life and accidental death and dismemberment, and disability insurance coverage for three (3) full years after the Effective Date of Termination. These benefits will be provided to the Executive (and to the Executive’s covered spouse and dependents) at the same premium cost, and at the same coverage level, as in effect as of the date of the Change in Control. The continuation of these welfare benefits will be discontinued prior to the end of the three (3) year period if the Executive has available substantially similar benefits at a comparable cost from a subsequent employer, as determined by the Committee. The date that welfare benefits cease to be provided under this paragraph will be the date of the Executive’s qualifying event for continuation coverage purposes under Code Section 4980B(f)(3)(B).

 

Awards granted under the FMC Corporation Incentive Compensation and Stock Plan, and other incentive arrangements adopted by the Company will be treated pursuant to the terms of the applicable plan.

 

The aggregate benefits accrued by the Executive as of the Effective Date of Termination under the FMC Corporation Salaried Employees’ Retirement Program, the FMC Corporation Savings and Investment Plan, the FMC Corporation Salaried Employees’ Equivalent Retirement Plan, the FMC Corporation Non-Qualified Savings and Investment Plan and other savings and retirement plans sponsored by the Company will be distributed pursuant to the terms of the applicable plan.

 

For all purposes under the Company’s nonqualified retirement plans (including, but not limited to, benefit calculation and benefit commencement), it will be assumed that the Executive’s employment continued following the Effective Date of Termination for three (3) full years (i.e., three (3) additional years of age and service credits will be added); provided, however, that for purposes of determining “final average pay” under such programs, the Executive’s actual pay history as of the Effective Date of Termination will be used.

 

3.4. Termination for Disability . If the Executive’s employment is terminated due to Disability, the Executive will receive the Executive’s Base Salary through the Effective Date of Termination, and the Executive’s benefits will be determined in accordance with the Company’s disability, retirement, survivor’s benefits, insurance and other applicable plans and programs then in effect. If the Executive’s

 

- 8 -


employment is terminated due to Disability, he will not be entitled to the Severance Benefits described in Section 3.3.

 

3.5. Termination upon Death . If the Executive’s employment is terminated due to death, the Executive’s benefits will be determined in accordance with the Company’s retirement, survivor’s benefits, insurance and other applicable programs of the Company then in effect. If the Executive’s employment is terminated due to death, neither the Executive nor the Executive’s Beneficiary will be entitled to the Severance Benefits described in Section 3.3.

 

3.6. Termination for Cause, or Other Than for Good Reason or Retirement . Following a Change in Control of the Company, if the Executive’s employment is terminated either: (a) by the Company for Cause; or (b) by the Executive (other than for Retirement, Good Reason, or under circumstances giving rise to a Qualifying Termination described in Section 3.2(c) herein), the Company will pay the Executive an amount equal to the Executive’s Base Salary and accrued vacation through the Effective Date of Termination, at the rate then in effect, plus all other amounts to which the Executive is entitled under any plans of the Company, at the time such payments are due and the Company will have no further obligations to the Executive under this Agreement.

 

3.7. Notice of Termination . Any termination of employment by the Company or by the Executive for Good Reason will be communicated by a Notice of Termination.

 

Article 4. Form and Timing of Severance Benefits

 

4.1. Form and Timing of Severance Benefits . The Severance Benefits described in Sections 3.3 (a), (b), (c) and (d) herein will be paid in cash to the Executive (or the Executive’s Beneficiary, if applicable) in a single lump sum as soon as practicable following the Effective Date of Termination, but in no event beyond thirty (30) days from such date.

 

4.2. Withholding of Taxes . The Company will be entitled to withhold from any amounts payable under this Agreement all taxes as may be legally required (including, without limitation, any United States federal taxes and any other state, city, or local taxes).

 

Article 5. Excise Tax Equalization Payment

 

5.1. Excise Tax Equalization Payment . In the event that the Executive (or the Executive’s Beneficiary, if applicable) becomes entitled to Severance Benefits or any other payment or benefit under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, the “Total Payments”), whether or not the Executive has terminated employment with the Company, if all or any part of the Total Payments will be subject to the tax imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed), (the “Excise Tax”) the Company will

 

- 9 -


pay to the Executive in cash an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any Excise Tax upon the Total Payments and any federal, state, and local income taxes, penalties, interest, and Excise Tax upon the Gross-Up Payment provided for by this Section 5.1 (including FICA and FUTA), will be equal to the Total Payments.

 

5.2. Tax Computation . All determinations of whether any of the Total Payments will be subject to the Excise Tax, the amounts of such Excise Tax, whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be used in arriving at such determinations, shall be made by a nationally recognized certified public accounting firm that does not serve as an accountant or auditor for any individual, entity or group effecting the Change in Control as designated by the Company (the “Accounting Firm”). The Accounting Firm will provide detailed supporting calculations to the Company and the Executive within fifteen (15) business days of the receipt of notice from the Executive or the Company requesting a calculation hereunder. The Gross-Up Payment will be made by the Company to the Executive as soon as practical following the Accounting Firm’s determination of the Gross-Up Payment, but in no event beyond thirty (30) days from the Effective Date of Termination. All fees and expenses of the Accounting Firm will be paid by the Company.

 

For purposes of determining the amount of the Gross-Up Payment, the Executive will be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the Effective Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

 

5.3. Subsequent Recalculation . In the event the Internal Revenue Service adjusts the computations to be made pursuant to Section 5.2 herein, and as a result of such adjustment the Gross-Up Payment made to the Executive is less than the greatest Gross-Up Payment that the Executive is entitled to receive under Section 5.2, the Company will pay to the Executive an amount equal to the difference between the greatest Gross-Up Payment the Executive is entitled to receive, and the Gross-Up Payment initially made to the Executive, plus a market rate of interest, as determined by the Committee, for the period commencing on the date the first Gross-Up Payment is made, and ending on the day immediately preceding the date the subsequent Gross-Up Payment is made.

 

Article 6. Establishment of Trust

 

As soon as practicable following the Effective Date hereof, the Company will create a Trust (which will be a grantor trust within the meaning of Sections 671-678 of the Code) for the benefit of the Executive and Beneficiaries, as appropriate. The Trust will have a Trustee as selected by the Company, and will have certain restrictions as

 

- 10 -


to the Company’s ability to amend the Trust or cancel benefits provided thereunder. Any assets contained in the Trust will, at all times, be specifically subject to the claims of the Company’s general creditors in the event of bankruptcy or insolvency; such terms to be specifically defined within the provisions of the Trust, along with the required procedure for notifying the Trustee of any bankruptcy or insolvency.

 

At any time following the Effective Date hereof, the Company may, but is not obligated to, deposit assets in the Trust in an amount equal to or less than the aggregate Severance Benefits which may become due to the Executive under Sections 3.3 (a), (b), (c) and (d) and 5.1 of this Agreement.

 

As soon as practicable after the Company has knowledge that a Change in Control is imminent, but no later than the day immediately preceding the date of the Change in Control, the Company will deposit assets in such Trust in an amount equal to the estimated aggregate Severance Benefits which may become due to the Executive under Sections 3.3 (a), (b), (c) and (d), 5.1 and 8.1 of this Agreement. Such deposited amounts will be reviewed and increased, if necessary, every six (6) months following a Change in Control to reflect the Executive’s estimated aggregate Severance Benefits at such time.

 

Article 7. The Company’s Payment Obligation

 

The Company’s obligation to make the payments and the arrangements provided for herein will be absolute and unconditional, and will not be affected by any circumstances, including, without limitation, any offset, counterclaim, recoupment, defense, or other right which the Company may have against the Executive or anyone else. All amounts payable by the Company hereunder will be paid without notice or demand. Each and every payment made hereunder by the Company will be final, and the Company will not seek to recover all or any part of such payment from the Executive or from whomsoever may be entitled thereto, for any reasons whatsoever.

 

The Executive will not be obligated to seek other employment in mitigation of the amounts payable or arrangements made under any provision of this Agreement, and the obtaining of any such other employment will in no event effect any reduction of the Company’s obligations to make the payments and arrangements required to be made under this Agreement, except to the extent provided in Section 3.3(e) herein. Notwithstanding anything in this Agreement to the contrary, if Severance Benefits are paid under this Agreement, no severance benefits under any program of the Company, other than benefits described in this Agreement, will be paid to the Executive.

 

Article 8. Fees and Expenses

 

To the extent permitted by law, the Company will pay as incurred (within ten (10) days following receipt of an invoice from the Executive) all legal fees, costs of

 

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litigation, prejudgment interest, and other expenses incurred in good faith by the Executive as a result of the Company’s refusal to provide the Severance Benefits to which the Executive becomes entitled under this Agreement, or as a result of the Company’s contesting the validity, enforceability, or interpretation of this Agreement, or as a result of any conflict (including, without limitation, conflicts related to the calculations under Section 5 hereof) between the parties pertaining to this Agreement.

 

Article 9. Outplacement Assistance

 

Following a Qualifying Termination (as described in Section 3.2 herein), the Executive will be reimbursed by the Company for the costs of all outplacement services obtained by the Executive within the two (2) year period after the Effective Date of Termination; provided, however, that the total reimbursement for such outplacement services will be limited to an amount equal to fifteen percent (15%) of the Executive’s Base Salary as of the Effective Date of Termination.

 

Article 10. Successors and Assignment

 

10.1. Successors to the Company . The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) of all or substantially all of the business and/or assets of the Company or of any division or subsidiary thereof to expressly assume and agree to perform the Company’s obligations under this Agreement in the same manner and to the same extent that the Company would be required to perform them if no such succession had taken place.

 

10.2. Assignment by the Executive . This Agreement will inure to the benefit of and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees, and legatees. If the Executive dies while any amount would still be payable to him hereunder had he continued to live, all such amounts, unless otherwise provided herein, will be paid in accordance with the terms of this Agreement to the Executive’s Beneficiary. If the Executive has not named a Beneficiary, then such amounts will be paid to the Executive’s devisee, legatee, or other designee, or if there is no such designee, to the Executive’s estate, and such designee, or the Executive’s estate will be treated as the Beneficiary hereunder.

 

Article 11. Miscellaneous

 

11.1. Employment Status . Except as may be provided under any other agreement between the Executive and the Company, the employment of the Executive by the Company is “at will,” and may be terminated by either the Executive or the Company at any time, subject to applicable law.

 

11.2. Beneficiaries . The Executive may designate one or more persons or entities as the primary and/or contingent Beneficiaries of any Severance Benefits, including,

 

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without limitation, payments under Section 5 hereof, owing to the Executive under this Agreement. Such designation must be in the form of a signed writing acceptable to the Committee. The Executive may make or change such designations at any time.

 

11.3. Severability . In the event any provision of this Agreement will be held illegal or invalid for any reason, the illegality or invalidity will not affect the remaining parts of the Agreement, and the Agreement will be construed and enforced as if the illegal or invalid provision had not been included. Further, the captions of this Agreement are not part of the provisions hereof and will have no force and effect.

 

11.4. Modification . No provision of this Agreement may be modified, waived, or discharged unless such modification, waiver, or discharge is agreed to in writing and signed by the Executive and by an authorized member of the Committee, or by the respective parties’ legal representatives and successors.

 

11.5. Applicable Law . To the extent not preempted by the laws of the United States, the laws of the state of Delaware will be the controlling law in all matters relating to this Agreement.

 

11.6 Indemnification . To the full extent permitted by law, the Company will, both during and after the period of the Executive’s employment, indemnify the Executive (including by advancing him expenses) for any judgments, fines, amounts paid in settlement and reasonable expenses, including any attorneys’ fees, incurred by the Executive in connection with the defense of any lawsuit or other claim to which he is made a party by reason of being (or having been) an officer, director or employee of the Company or any of its subsidiaries. The Executive will be covered by director and officer liability insurance to the maximum extent that that insurance covers any officer or director (or former officer or director) of the Company.

 

IN WITNESS WHEREOF, the parties have executed this Agreement on this 29 day of JANUARY, 2002.

 

FMC Corporation

     

Executive:

By:  

/s/    Kenneth R. Garrett

     

/s/    William K. Foster

   
     

Its:

 

Vice President, Human Resources,

Communications and Public Affairs

           

 

Attest:
   

/s/    Shirley Starbuck

   

 

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Schedule to Exhibit

 

In accordance with Instruction 2 of Item 601 of Regulation S-K, Executive Severance Agreements for Andrea E. Utecht, Milton Steele, Theodore H. Butz and D. Michael Wilson were omitted. Except for the dates of execution, these agreements contain terms and conditions identical to the Executive Severance Agreement for W. Kim Foster, a copy of which is filed as this Exhibit.

 

Exhibit 10.27

 

COMPOSITE CONFORMED GUARANTY AGREEMENT

 

(through Am. No. 9)

 

GUARANTY AGREEMENT, dated September 14, 2000, made by FMC Corporation, a corporation organized and existing under the laws of Delaware (the “ Sponsor ”), in favor of Astaris LLC, a limited liability company organized and existing under the laws of Delaware (the “ Company ”) and in favor of the Lenders (the “ Lenders ”) parties to the Credit Agreement (as defined below) and Bank of America, N.A., as administrative agent (the “ Administrative Agent ”) for the Lenders.

 

PRELIMINARY STATEMENTS:

 

(1) The Lenders and the Administrative Agent have entered into a Five Year Credit Agreement dated as of September 14, 2000 with the Company (said Agreement, as it may hereafter be amended or otherwise modified from time to time, being the “ Credit Agreement ”, the terms defined therein and not otherwise defined herein being used herein as therein defined). The Sponsor will derive substantial direct and indirect benefit from the transactions contemplated by the Credit Agreement.

 

(2) It is a condition precedent to the making of Advances by the Lenders under the Credit Agreement that the Sponsor, as owner of 50% of the membership interests of the Company, shall have executed and delivered this Agreement, and that Solutia Inc. (the “ Other Sponsor ”) enter into a substantially similar agreement (the “ Other Sponsor Guaranty Agreement ”).

 

NOW, THEREFORE, in consideration of the premises and in order to induce the Lenders to make Advances under the Credit Agreement, the Sponsor hereby agrees as follows:

 

SECTION 1. Obligation to Cause the Company to Perform . (a) The Sponsor shall pay to the Company from time to time, in cash in U.S. dollars, an amount equal to 50% of the excess, if any, of (a) the amount set forth opposite each date set forth below over (b) the Company’s EBITDA for the period of the immediately preceding four consecutive fiscal quarters ended as of such date, as determined by the Company concurrently with the financial statements required to be delivered by the Company to the Administrative Agent in accordance with Section 5.01(i) of the Credit Agreement for the period ended on each such date:

 

Four Fiscal Quarters Ended


   Amount

September 30, 2000

   $ 82,100,000

December 31, 2000

   $ 81,000,000

March 31, 2001

   $ 84,400,000

June 30, 2001

   $ 87,800,000

September 30, 2001

   $ 91,100,000

December 31, 2001

   $ 94,500,000

March 31, 2002

   $ 97,200,000

June 30, 2002

   $ 99,800,000

September 30, 2002

   $ 102,500,000

December 31, 2002

   $ 105,100,000

March 31, 2003

   $ 112,400,000

June 30, 2003

   $ 119,700,000

September 30, 2003

   $ 127,100,000

December 31, 2003

   $ 134,400,000

March 31, 2004

   $ 135,500,000

June 30, 2004

   $ 136,600,000

September 30, 2004

   $ 137,700,000

December 31, 2004

   $ 138,900,000

March 31, 2005

   $ 139,200,000

June 30, 2005

   $ 139,200,000

 


The Sponsor shall make payment of funds hereunder by wire transfer to the Administrative Agent as provided in subsection (c) below for application to the Obligations of the Company under the Credit Agreement as provided in Section 2.10(b)(vi) of the Credit Agreement not later than five Business Days after notification of the amount so payable.

 

(b) If the Sponsor shall at any time and from time to time fail to perform or comply with any of its obligations contained in subsection (a) above and if for any reason the Administrative Agent on behalf of the Lenders shall have failed to receive when due and payable (whether at stated maturity, by acceleration or otherwise) the payment of all or any part of the principal of or interest on the Notes or any other amount payable by the Company under the Credit Agreement, then in each such case, the Sponsor agrees that it will be unconditionally liable and pay to the Administrative Agent for itself and on behalf of the Lenders for the amount of the payment required to be paid in accordance with subsection (a) above not received by the Administrative Agent when so due and payable as well as for all losses, costs and expenses, if any, including reasonable attorneys’ fees and expenses, incurred by the Administrative Agent or the Lenders in enforcing this Agreement. For purposes of determining the amount of the Administrative Agent’s loss resulting from the Sponsor’s failure to perform or comply with any of its obligations contained in subsection (a) above, interest on the amount of the award shall be calculated from the date of the default at the interest rate that would have been payable under the Credit Agreement.

 

(c) Notwithstanding anything herein to the contrary, the Sponsor shall make payment of all funds under this Agreement directly to the Administrative Agent at its office at 101 North Tryon Street, Charlotte, North Carolina 28255 for the benefit of itself and the Lenders; provided , that the Sponsor may, at its election, pay directly to the Company amounts that the Sponsor is entitled to defer pursuant to Section 1(e), but only to the extent that the deferred amount exceeds $10,000,000. All payments which are received by the Company contrary to the provisions of this subsection (c) shall be received in trust for the benefit of the Administrative Agent and the Lenders, shall be segregated from other funds of the Company and shall be forthwith paid over to the Administrative Agent in the same form as so received (with any necessary endorsement).

 

(d) The obligations of the Sponsor, and the amount of any payment, under Section 1(a) of this Guaranty Agreement shall not be increased solely by reason of the failure of

 

2


the Other Sponsor to make any payment under Section 1(a) of the Other Sponsor Guaranty Agreement, and calculation of any amount that is payable by the Sponsor under Section 1(a) shall be done as if the Other Sponsor had paid all amounts due under Section 1(a) of the Other Sponsor Guaranty Agreement.

 

(e) In the event that any payment under Section 1(a) would, but for the proviso contained in Section 2.10(b)(vi) of the Credit Agreement, reduce the Working Capital Facility to an amount below $20,000,000, such payment is not required to be paid until such time as the Working Capital Facility is reduced below $20,000,000 by other provisions of the Credit Agreement, provided that the Sponsor shall either (i) pay to the Administrative Agent an amount equal to the amount of such payment (but not more than $10,000,000 in the aggregate) to be held in an interest bearing account pending application in accordance with the terms of the Credit Agreement on the date that the Working Capital Facility is reduced below $20,000,000 by provisions of the Credit Agreement other than Section 2.10(b)(vi) thereof (the “ Reduction Date ”) (or for return to the Sponsor in the event that the Working Capital Facility is paid in full and terminated) or (ii) deliver to the Administrative Agent a letter of credit having an available amount of $10,000,000 issued by a Person, and in form and substance, satisfactory to the Administrative Agent, to be drawn on the Reduction Date. Upon the Reduction Date, payments not made by reason of the preceding sentence shall be due and payable upon demand by the Majority Lenders, subject to the first sentence of Section 14.

 

SECTION 2. Taxes, Etc . (a) The Sponsor agrees to pay any present or future Taxes and any present or future stamp or documentary taxes or any other excise or property taxes, changes or similar levies that arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Guaranty Agreement, including any interest and penalties, which arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Agreement.

 

(b) The Sponsor will indemnify the Administrative Agent and each Lender for the full amount of Taxes (including, without limitation, any Taxes imposed by any jurisdiction on amounts payable under this Section) paid by the Administrative Agent or such Lender and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally asserted. This indemnification shall be made within 30 days from the date the Administrative Agent or such Lender (as the case may be) makes written demand therefor.

 

SECTION 3. Obligation Absolute . The Sponsor will perform its obligations under this Agreement regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of the terms of the Loan Documents or any other document related thereto or the rights of the Administrative Agent or the Lenders with respect thereto. The obligations of the Sponsor under this Agreement are independent of the Obligations of the Company under the Loan Documents, and a separate action or actions may be brought and prosecuted against the Sponsor to enforce this Agreement, irrespective of whether any action is brought against the Company or whether the Company is joined in any such action or actions. The obligations of the Sponsor under this Agreement shall be absolute and unconditional irrespective of:

 

(i) any lack of validity or enforceability of any Loan Document or any other agreement or instrument relating thereto or any collateral therefor;

 

3


(ii) any change in the time, manner or place of payment of, or in any other term of, any Obligations of the Company under or in respect of the Loan Documents, or any other amendment or waiver of or any consent to departure from any Loan Document including, without limitation, any increase in the Obligations of the Company under the Loan Documents resulting from the extension of additional credit to the Company or any of its Subsidiaries or otherwise;

 

(iii) any taking, exchange, release or non-perfection of any Collateral or any other collateral, or any taking, release or amendment or waiver of or consent to departure from any guaranty, for the Obligations under the Loan Documents;

 

(iv) any manner of application of Collateral or any other collateral, or proceeds thereof, to all or any of the Obligations of the Company under or in respect of the Loan Documents, or any manner of sale or other disposition of any Collateral or any other collateral for all or any of the Obligations under the Loan Documents or any other assets of the Company or any of its Subsidiaries;

 

(v) any change, restructuring or termination of the corporate or limited liability company structure or existence of the Company or any of its Subsidiaries;

 

(vi) the failure of any Lender or the Administrative Agent to disclose to the Sponsor any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of the Company or any of its Subsidiaries now or hereafter known to such Lender or the Administrative Agent (the Sponsor waving any duty on the part of the Lenders or the Administrative Agent to disclose such information);

 

(vii) the failure of the Other Sponsor to perform any of its obligations under the Other Sponsor Guaranty Agreement or any other person to execute or deliver any other keepwell agreement or the release or reduction of liability of the Other Sponsor or any other guarantor or surety with respect to the Company’s Obligations under the Loan Documents; or

 

(viii) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by any Lender or the Administrative Agent that might otherwise constitute a defense available to, or a discharge of, the Company or a surety.

 

This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Company’s Obligations under the Loan Documents is rescinded or must otherwise be returned by the Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of the Company or otherwise, all as though such payment had not been made.

 

4


SECTION 4. Waivers and Acknowledgments . The Sponsor hereby waives promptness, diligence, notice of acceptance and any other notice with respect to the Loan Documents and this Agreement and any requirement that the Administrative Agent or any Lender protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against the Company or any other person or entity or any Collateral.

 

SECTION 5. Separate Undertaking . Without limiting the generality of any of the foregoing provisions of this Agreement, the Sponsor irrevocably waives, to the full extent permitted by applicable law and for the benefit of, and as a separate undertaking with, the Lenders and the Administrative Agent, any defense to the performance of this Agreement which may be available to the Sponsor as a consequence of this Agreement being rejected or otherwise not assumed by the Company or any trustee or other similar official for the Company or for any substantial part of the property of the Company, or as a consequence of this Agreement being otherwise terminated or modified, in any proceeding seeking to adjudicate the Company a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of the Company or the debts of the Company under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, whether such rejection, non-assumption, termination or modification be by reason of this Agreement being held to be an executory contract or by reason of any other circumstance. If this Agreement shall be so rejected or otherwise not assumed, or so terminated or modified, the Sponsor agrees for the benefit of, and as a separate undertaking with, the Lenders and the Administrative Agent that it will be unconditionally liable to pay to the Administrative Agent an amount equal to each payment which would otherwise be payable by the Sponsor under or in connection with this Agreement if this Agreement were not so rejected or otherwise not assumed or were otherwise not so terminated or modified, such amount to be payable to the Administrative Agent, at its office specified in Section 2.13 of the Credit Agreement or otherwise in accordance with the instructions of the Administrative Agent, as and when such payment would otherwise be payable hereunder and such amount to be applied as such payment would otherwise be applied under Section 2.13 of the Credit Agreement.

 

SECTION 6. Consent to Jurisdiction . (a) The Sponsor hereby irrevocably submits to the nonexclusive jurisdiction of any New York State or Federal court sitting in New York City and any appellate court from any thereof in any action or proceeding arising out of or relating to this Agreement, and the Sponsor hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such New York State or in such Federal court. The Sponsor agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

 

(b) Nothing in this Section shall affect the right of any Lender or the Administrative Agent to serve legal process in any other manner permitted by law or affect the right of any Lender or the Administrative Agent to bring any action or proceeding against the Sponsor or its property in the courts of any other jurisdictions.

 

5


SECTION 7. Representations and Warranties . The Sponsor hereby represents and warrants as follows:

 

(a) The Sponsor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.

 

(b) The execution, delivery and performance by the Sponsor of this Agreement, and the consummation of the transactions contemplated hereby, are within the Sponsor’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the Sponsor’s charter or by-laws or (ii) law or any contractual restriction binding on or affecting the Sponsor.

 

(c) No authorization or approval or other action by, and no notice to or filing with, an governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Sponsor of this Agreement.

 

(d) This Agreement has been duly executed by the Sponsor. This Agreement is the legal valid and binding obligation of the Sponsor enforceable against the Sponsor in accordance with its terms, except as may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and by general principles of equity.

 

(e) The Sponsor is the legal and beneficial and record owner of 49%, and is the indirect beneficial owner of 1%, of all outstanding membership interests of the Company, in each case free and clear of any lien, security interest, option or other charge or encumbrance.

 

(f) The Sponsor has, independently and without reliance upon the Administrative Agent or any Lender and based on documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.

 

(g) Neither the Sponsor nor any of its Subsidiaries is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended.

 

SECTION 8. Covenants . So long as any Advance shall remain unpaid, any Letter of Credit shall be outstanding or any Lender shall have any Commitment under the Credit Agreement, the Sponsor will:

 

(a) Maintain, directly or indirectly, its 50% ownership interests in the Company free and clear of all Liens;

 

(b) Cause the Company to prepare the calculations necessary to determine compliance with Section 1 of this Agreement within the period specified in Section 1 of this Agreement; and

 

(c) Comply with each and every covenant set forth in Articles V, VI, VII or VII of the FMC Credit Agreement, each of which is incorporated herein by reference, except to the extent that compliance with such terms of the Sponsor Credit Agreement is amended or waived as contemplated by the first proviso to Section 6.01(c)(v) of the

 

6


Credit Agreement or no longer applicable as contemplated by the second proviso to such Section. The provisions of Article V of said Credit Agreement (including defined terms and exhibits and schedules referred to therein) are incorporated in this Section 8 by reference, with the same force and effect as if the same were set out in this Section 8 in full. All references in such incorporated provisions to the “Agent”, “Agreement”, “Borrower” and “Lenders” shall, without further reference, mean and refer to Bank of America, as Administrative Agent under the Credit Agreement, this Guaranty Agreement, the Sponsor and the Lenders under the Credit Agreement, respectively, and, without limitation, all references in such incorporated provisions to the “Commitment hereunder” shall mean and refer to the Commitments of the Lenders under the Credit Agreement and all references to the “date hereof” shall mean and refer to December 6, 1996. The incorporation by reference in to this Guaranty Agreement from the Sponsor Credit Agreement is for convenience only, and this Guaranty Agreement and the Sponsor Credit Agreement shall at all times be, and be deemed to be and treated as, separate and distinct facilities. Incorporations by reference in this Guaranty Agreement from the Sponsor Credit Agreement shall not be affected or impaired by any subsequent expiration or termination of the Sponsor Credit Agreement, nor by any amendment thereof or waiver thereunder unless the Lenders owed at least 66 2/3% of the Advances shall have consented to such amendment or waiver in writing.

 

SECTION 9. Amendments, Etc . No amendment or waiver of any provision of this Agreement, and no consent to any departure by the Sponsor herefrom, shall in any event be effective unless the same shall be in writing and signed by the Company, the Administrative Agent and the Majority Lenders (provided that no amendment, waiver or consent shall, unless in writing and signed by all the Lenders, (a) limit the liability of the Sponsor hereunder, or (b) change the number of Lenders required to take any action hereunder), and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

 

SECTION 10. Expenses . The Sponsor will upon demand pay to the Company and the Administrative Agent, respectively, the amount of any and all reasonable expenses, including the reasonable fees and expenses of their respective counsel and of any experts and agents, which the Company and the Administrative Agent or the Lenders, as the case may be, may incur in connection with (i) the exercise or enforcement of any of their respective rights hereunder or (ii) the failure by the Sponsor to perform or observe any of the provisions hereof.

 

SECTION 11. Addresses for Notices . All notices and other communications provided for hereunder shall be in writing (including telecopier, telegraphic, telex or cable communication) and mailed, telecopied, telegraphed, telexed, cabled or delivered to it, if to the Sponsor, at its address at 200 E. Randolph Street, Chicago, Illinois 60601, Attention: Treasurer, and if to the Company, the Administrative Agent or any Lender, at its address specified in the Credit Agreement, or, as to any party, at such other address as shall be designated by such party in a written notice to the other parties. All such notices and other communications shall, when mailed, telecopied, telegraphed, telexed or cabled, be effective when deposited in the mails, telecopied, delivered to the telegraph company, confirmed by telex answerback or delivered to the cable company, respectively.

 

7


SECTION 12. No Waiver; Remedies . No failure on the part of the Company, the Administrative Agent or any Lender to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

 

SECTION 13. Subordination . The Sponsor hereby subordinates any and all debts, liabilities and other Obligations owed to the Sponsor by any Loan Party (the “ Subordinated Obligations ”) to the Obligations of each Loan Party under the Loan Documents (the “ Senior Obligations ”) to the extent and in the manner hereinafter set forth in this Section 13.

 

(a) Prohibited Payments, Etc . Except during the continuance of a Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to any Loan Party) or an Underfunding Event (as defined below), the Sponsor may receive regularly scheduled payments from any Loan Party on account of the Subordinated Obligations. After the occurrence and during the continuance of any Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to any Loan Party) or any Underfunding Event, however, unless the Administrative Agent otherwise agrees, the Sponsor shall not demand, accept or take any action to collect any payment on account of the Subordinated Obligations.

 

(b) Prior Payment of Senior Obligations . In any proceeding under any Bankruptcy Law relating to any Loan Party, the Sponsor agrees that the Secured Parties shall be entitled to receive payment in full in cash of all Senior Obligations (including all interest and expenses accruing after the commencement of a proceeding under any Bankruptcy Law, whether or not constituting an allowed claim in such proceeding (“ Post Petition Interest ”) before the Sponsor receives payment of any Subordinated Obligations.

 

(c) Turn-Over . After the occurrence and during the continuance of any Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to any Loan Party) or any Underfunding Event, the Sponsor shall, if the Administrative Agent so request, collect, enforce and receive payments on account of the Subordinated Obligations as trustee for the Secured Parties and deliver such payments to the Administrative Agent on account of the Senior Obligations (including all Post Petition Interest), together with any necessary endorsements or other instruments of transfer, but without reducing or affecting in any manner the liability of the Sponsor under the other provisions of this Guaranty.

 

(d) Administrative Agent Authorization . After the occurrence and during the continuance of any Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to any Loan Party) or any Underfunding Event, the Administrative Agent is authorized and empowered (but without any obligation to so do), in its discretion, (i) in the name of the Sponsor, to collect and enforce, and to submit claims in respect of, Subordinated Obligations and to apply any amounts received thereon to the Senior Obligations (including any and all Post Petition Interest), and (ii) to require the Sponsor (A) to collect and enforce, and to submit claims in respect of, Subordinated Obligations and (B) to pay any amounts received on

 

8


such obligations to the Administrative Agent for application to the Senior Obligations (including any and all Post Petition Interest).

 

(e) Underfunding Event . As used in this Section 13, “ Underfunding Event ” means the condition there exists an excess of (i) the amount set forth opposite each of the Company’s fiscal quarters set forth below over (ii) the sum of (x) the Company’s EBITDA for the period of the immediately preceding four consecutive fiscal quarters ended as of such date plus (y) the amount of Subordinated Obligations payable to the Sponsor or to the Other Sponsor during such fiscal quarter, the payment of which was deferred in accordance with this Section 13 or Section 13 of the Other Sponsor Guaranty Agreement, as the case may be:

 

Fiscal Quarter Ended


   Amount

September 30, 2000

   $ 86,700,000

December 31, 2000

   $ 85,500,000

March 31, 2001

   $ 89,100,000

June 30, 2001

   $ 92,600,000

September 30, 2001

   $ 96,200,000

December 31, 2001

   $ 99,800,000

March 31, 2002

   $ 102,600,000

June 30, 2002

   $ 105,400,000

September 30, 2002

   $ 108,200,000

December 31, 2002

   $ 111,000,000

March 31, 2003

   $ 118,700,000

June 30, 2003

   $ 126,400,000

September 30, 2003

   $ 134,100,000

December 31, 2003

   $ 141,800,000

March 31, 2004

   $ 143,000,000

June 30, 2004

   $ 144,200,000

September 30, 2004

   $ 145,400,000

December 31, 2004

   $ 146,600,000

March 31, 2005

   $ 146,900,000

June 30, 2005

   $ 147,300,000

 

SECTION 14. Continuing Agreement; Assignments under Credit Agreement . This Agreement is a continuing agreement and shall (i) remain in full force and effect until the later of (x) the payment in full of the Notes and all other amounts payable under the Loan Documents or this Agreement and (y) the expiration or termination of the Commitments, (ii) be binding upon the Sponsor, its successors and assigns, and (iii) inure to the benefit of and be enforceable by the Company, the Lenders, the Administrative Agent and their respective successors, transferees and assigns. Without limiting the generality of the foregoing clause (iii), any Lender may assign or otherwise transfer all or any portion of its rights and obligations under the Credit Agreement (including, without limitation, all or any portion of its Commitment, the Advances owing to it and any Note held by it) to any other person or entity, and such other person or entity shall thereupon become vested with all the rights in respect thereof granted to

 

9


such Lender herein or otherwise, subject, however, to the provisions of Article VII (concerning the Administrative Agent) of the Credit Agreement.

 

SECTION 15. Governing Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.

 

SECTION 16. Subrogation . The Sponsor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Company or any other insider guarantor that arise from the existence, payment, performance or enforcement of the Sponsor’s obligations under or in respect of this Agreement, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Administrative Agent and the Lenders against the Company or any other insider guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take over or receive from the Company or any other insider guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all amounts payable under this Agreement shall have been paid in full in cash, and the Commitments and all Letters of Credit shall have expired or been terminated. If any amount shall be paid to the Sponsor in violation of the immediately preceding sentence at any time prior to the later of (a) the payment in full in cash of all amounts payable under this Agreement and (b) the latest date of expiration or termination of the Commitments and all Letters of Credit, such amount shall be received and held in trust for the benefit of the Administrative Agent and the Lenders, shall be segregated from other property and funds of the Sponsor and shall forthwith be paid or delivered to the Administrative Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the amounts payable under this Agreement, whether matured, or unmatured, in accordance with the terms of the Loan Documents, or to be held as Collateral for any amounts payable under this Agreement thereafter arising. If (i) the Sponsor shall make payment to the Administrative Agent of all or any part of the Sponsor’s obligations under this Agreement, (ii) all amounts payable under this Agreement shall have been paid in full in cash, and (iii) the Commitments and all Letters of Credit shall have expired or been terminated, the Administrative Agent will, at the Sponsor’s request and expense, execute and deliver to the Sponsor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Sponsor of an interest in the Company’s Obligations resulting from such payment made by the Sponsor pursuant to this Agreement.

 

10


SECTION 17. Waiver of Jury Trial . Each of the parties hereto hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the actions of the Administrative Agent in the negotiation, administration or enforcement thereof.

 

IN WITNESS WHEREOF, the Sponsor has caused this Agreement to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.

 

FMC CORPORATION
By:   /s/ Thomas C. Deas, Jr.
   
   

Name: Thomas C. Deas, Jr.

   

Title: Vice President & Treasurer

 

The foregoing Agreement is hereby

accepted and agreed to as of the

date first above written:

 

ASTARIS LLC
By:   /s/ Paul Schlessman
   
   

Title: VP Finance & Chief Financial Officer

 

BANK OF AMERICA, N.A.
   

as Administrative Agent for itself and

on behalf of the Lenders

By:   /s/ Wendy J. Gorman
   
   

Title: Managing Director

 

11

Exhibit 12

 

COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES (Unaudited)

 

     Year ended December 31

 
     2003

   2002

    2001

    2000

    1999

 
     (in Millions, Except Ratios)  

Earnings:

                                       

Income (loss) from continuing operations before income taxes and cumulative effect of change in accounting principle

   $ 38.0    $ 86.5     $ (472.9 )   $ 158.6     $ 195.1  

Minority interests

     2.9      3.4       2.3       4.6       5.1  

Undistributed (earnings) losses of affiliates

     68.6      (4.7 )     (8.6 )     (18.5 )     (4.0 )

Interest expense and amortization of debt discount, fees and expenses

     96.1      73.0       61.6       66.6       83.9  

Amortization of capitalized interest

     3.7      3.3       3.6       3.8       3.3  

Interest included in rental expense

     5.5      5.3       4.3       5.9       7.2  
    

  


 


 


 


Total earnings

   $ 214.8    $ 166.8     $ (409.7 )   $ 221.0     $ 290.6  
    

  


 


 


 


Fixed charges:

                                       

Interest expense and amortization of debt discount, fees and expenses

   $ 96.1    $ 73.0     $ 61.6     $ 66.6     $ 83.9  

Interest capitalized as part of fixed assets

     7.6      7.1       9.4       9.0       2.3  

Interest included in rental expense

     5.5      5.3       4.3       5.9       7.2  
    

  


 


 


 


Total fixed charges

   $ 109.2    $ 85.4     $ 75.3     $ 81.5     $ 93.4  
    

  


 


 


 


Ratio of earnings to fixed charges (1)

     2.0      2.0       —         2.7       3.1  
    

  


 


 


 



(1)   In calculating this ratio, earnings consist of income (loss) from continuing operations before income taxes and cumulative effect of change in accounting principle less minority interests, less interest income and interest expense, less amortization expense related to debt discounts, fees and expenses, less amortization of capitalized interest, less interest included in rental expenses (assumed to be one-third of rent) and plus undistributed (earnings) losses of affiliates. Fixed charges consist of interest expense, amortization of debt discounts, fees and expenses, interest capitalized as part of fixed assets and interest included in rental expenses. For the year ended December 31, 2001 earnings did not cover fixed charges, with deficiencies of $331.4 million. The ratio of earnings to fixed charges would have been a negative 5.4x at December 31, 2001.

Exhibit 21

 

SIGNIFICANT SUBSIDIARIES OF THE REGISTRANT

 

Name of Subsidiary


    

State or Country of Incorporation


FMC Corporation (the Registrant)

    

Delaware

Electro Quimica Mexicana, S.A. de C.V.

    

Mexico

FMC A/S

    

Denmark

FMC Agricultural Products International, AG

    

Switzerland

FMC Asia Pacific Inc.

    

Delaware

FMC BioPolymer AS

    

Norway

FMC BioPolymer Germany G.m.b.H.

    

Germany

FMC BioPolymer France SAS

    

France

FMC Chemical Holding B.V.

    

Netherlands

FMC Chemical International, AG

    

Ireland

FMC Chemical International, AG

    

Switzerland

FMC Chemicals (Malaysia) Sdn. Bhd.

    

Malaysia

FMC Chemicals Pty. Ltd.

    

Australia

FMC Chemicals (Thailand) Limited

    

Thailand

FMC Chemicals Italy srl.

    

Italy

FMC Chemicals KK

    

Japan

FMC Chemicals Limited

    

United Kingdom

FMC Chemicals S.p.r.l.

    

Belgium

FMC DE Mexico, S.A. de C.V.

    

Mexico

FMC Defense Corp.

    

Wyoming

FMC Finance B.V.

    

Netherlands

FMC Foret, S.A.

    

Spain

FMC France SAS

    

France

FMC Funding Corporation

    

Delaware

FMC Germany G.m.b.H.

    

Germany

FMC Industrial Chemicals (Netherlands) B.V.

    

Netherlands

FMC Korea Ltd.

    

Korea

FMC of Canada Limited

    

Canada

FMC Overseas, Ltd.

    

Delaware

FMC Quimica do Brasil Limitada

    

Brazil

FMC Singapore PTE, Ltd.

    

Singapore

FMC WFC I, Inc.

    

Wyoming

FMC WFC II, Inc.

    

Wyoming

FMC Wyoming Corporation

    

Wyoming

Foraneto, S.L.

    

Spain

Forel, S.L.

    

Spain

Forsean, S.L.

    

Spain

Intermountain Research and Development Corporation

    

Wyoming

Minera Del Altiplano, S.A.

    

Argentina

 

NOTE: All subsidiaries listed are greater than 50 percent owned, directly or indirectly, by FMC Corporation as of December 31, 2003. The names of various active and inactive subsidiaries have been omitted. Such subsidiaries, considered in the aggregate as a single subsidiary, would not constitute a significant subsidiary.

Exhibit 23.1

 

INDEPENDENT AUDITORS’ CONSENT

 

The Board of Directors

FMC Corporation:

 

We consent to incorporation by reference in the Registration Statements on Form S-8 (Nos. 33-10661, 33-7749, 33-41745, 33-48984, 333-18383, 333-24039, 333-62683, 333-69805, 333-69714 and 333-11456) and the Registration Statement on Form S-3 (No. 333-59543) of FMC Corporation of our report dated February 13, 2004 relating to the consolidated balance sheets of FMC Corporation and consolidated subsidiaries as of December 31, 2003 and 2002, and the related consolidated statements of income, cash flows, and changes in stockholders’ equity for each of the years in the three-year period ended December 31, 2003, and the related financial statement schedule as listed in Item 15(a)(2), in the December 31, 2003 annual report on Form 10-K of FMC Corporation.

 

Our report dated February 13, 2004 on the consolidated financial statements of FMC Corporation and consolidated subsidiaries as of and for the year ended December 31, 2003, contains an explanatory paragraph that the company adopted Statement of Financial Accounting Standards No. 142 “Goodwill and Other Intangible Assets” on January 1, 2002 and Statement of Financial Accounting Standards No. 133 “Accounting for Derivative Instruments and Hedging Activities” on January 1, 2001.

 

/s/    KPMG LLP

Philadelphia, Pennsylvania

March 9, 2004

Exhibit 31.1

 

CHIEF EXECUTIVE OFFICER CERTIFICATION

 

I, William G. Walter, certify that:

 

1.   I have reviewed this annual report on Form 10-K of FMC Corporation;

 

2.   Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report;

 

3.   Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report;

 

4.   The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and we have:

 

  a.   designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared;

 

  b.   [intentionally omitted pursuant to transition reporting permitted under SEC Release No. 33-8238;]

 

  c.   evaluated the effectiveness of the registrant’s disclosure controls and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d.   disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting, and

 

5.   The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent function):

 

  a.   all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonable likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b.   any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date:    March 10, 2004

 

/s/    William G. Walter


William G. Walter

President and Chief Executive Officer

Exhibit 31.2

 

CHIEF FINANCIAL OFFICER CERTIFICATION

 

I, W. Kim Foster, certify that:

 

1.   I have reviewed this annual report on Form 10-K of FMC Corporation;

 

2.   Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report;

 

3.   Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report;

 

4.   The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and we have:

 

  a.   designed such disclosure controls and procedures or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared;

 

  b.   [intentionally omitted pursuant to transition reporting permitted under SEC Release No. 33-8238;]

 

  c.   evaluated the effectiveness of the registrant’s disclosure controls and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d.   disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting, and

 

5.   The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent function):

 

  a.   all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonable likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b.   any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date:    March 10, 2004

 

/s/    W. Kim Foster


W. Kim Foster

Senior Vice President and

Chief Financial Officer

Exhibit 32.1

 

CEO CERTIFICATION OF ANNUAL REPORT

 

I, William G. Walter, President and Chief Executive Officer of FMC (“the Company”), certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, based on my knowledge that:

 

(1) the Annual Report on Form 10-K of the Company for the year ended December 31, 2003 (the “Report”) fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934 and

 

(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

Dated:    March 10, 2004

 

/s/    William G. Walter


William G. Walter

President and Chief Executive Officer

Exhibit 32.2

 

CFO CERTIFICATION OF ANNUAL REPORT

 

I, W. Kim Foster, Senior Vice-President and Chief Financial Officer of FMC (the “Company”), certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, based on my knowledge that:

 

(1) the Annual Report on Form 10-K of the Company for the year ended December 31, 2003 (the “Report”) fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934 and

 

(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

Dated:    March 10, 2004

 

/s/    W. Kim Foster


W. Kim Foster

Senior Vice President and

Chief Financial Officer