Technology and Environmental Services Agreement - FMC Corp. and United Defense Industries Inc.
TECHNOLOGY AND ENVIRONMENTAL SERVICES AGREEMENT
This TECHNOLOGY AND ENVIRONMENTAL SERVICES AGREEMENT (this
'AGREEMENT') is made as of October 6, 1997, by and among FMC Corporation, a
Delaware corporation ('FMC'), and United Defense Industries, Inc. (formerly
known as Iron Horse Acquisition Corp.), a Delaware corporation ('BUYER'). FMC
and Buyer are referred to herein collectively as the 'PARTIES' and individually
as a 'PARTY.'
W I T N E S S E T H:
WHEREAS, prior to the date hereof, FMC's Corporate Technology Center
('CTC') and other business units of FMC have provided certain technology,
environmental and other similar services to United Defense, L.P. ('UDLP') and
WHEREAS, pursuant to that certain Purchase Agreement, dated as of
August 25, 1997, by and among FMC, Harsco Corporation, Harsco UDLP Corporation
and Buyer (the 'PURCHASE AGREEMENT'), FMC has agreed to transfer to UDLP at the
Closing (i) all of FMC's right, title and interest in and to CTC (other than the
real property associated therewith) and (ii) certain personnel performing CTC
and corporate services for FMC and UDLP prior to the Closing (the 'SERVICE
PERSONNEL'), and Buyer has agreed to acquire all of the outstanding partnership
interests of UDLP;
WHEREAS, FMC desires that, after the Closing, Buyer, UDLP or another
Affiliate of Buyer continue to provide to FMC certain of such services formerly
provided by CTC to FMC for the term specified herein; and
WHEREAS, capitalized terms used herein and not otherwise defined
herein have the meanings given to such terms in the Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and covenants set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereby agree as
1. APPLICABLE SERVICES. Upon the terms and subject to the
conditions set forth in this Agreement, during the term of this Agreement as set
forth in Section 4 below (the 'SERVICE PERIOD'), Buyer shall provide, or cause
its Affiliates to provide, to FMC or its Affiliates, from the date of this
Agreement and for the period of time set forth in Section 4 with respect to each
of the services, the respective services set forth on ANNEX A attached hereto,
and such other assistance as may be agreed upon by FMC and Buyer during the
Service Period, in the manner and at a relative level of service, where
applicable, consistent in all material respects with that provided by the
Service Personnel prior to the date hereof. Unless otherwise agreed by FMC and
Buyer, such services shall be provided at the cost specified beside each such
service on ANNEX A.
2. BILLING AND PAYMENT. FMC shall pay, or cause to be paid, net of
any applicable withholding taxes, any bills and invoices that it receives from
Buyer for services provided by Buyer or any of its Affiliates under or pursuant
to this Agreement. Such charges may, at Buyer's option, be billed as incurred
if the amount involved equals or exceeds $10,000, or if such charges do not
exceed $10,000, at the end of each calendar month during the Service Period.
All invoices shall, not later than thirty (30) days following receipt by FMC of
Buyer's invoice, be paid by wire transfer in accordance with the written
instructions provided by Buyer, subject to receiving from Buyer, if reasonably
requested by FMC, any appropriate support documentation for such bills and
Services requiring use of checks issued by Buyer or other fund
transfers by Buyer on behalf of FMC will be provided only to the extent funded
by a FMC account or to the extent that FMC provides Buyer with immediately
available funds prior to Buyer's issuance of the check or the fund transfer, as
the case may be.
3. VALIDITY OF DOCUMENTS. The Parties shall be entitled to rely
upon the genuineness, validity or truthfulness of any document, instrument or
other writing presented in connection with this Agreement unless such document,
instrument or other writing appears on its face to be fraudulent, false or
4. TERM OF AGREEMENT. The term of this Agreement shall commence on
the date hereof and shall continue (unless sooner terminated pursuant to the
terms hereof) for a period of [five (5) years], or such earlier, shorter or
longer period as may be agreed upon by FMC and Buyer or provided in ANNEX A
attached hereto with respect to particular services described in ANNEX A
attached hereto; PROVIDED that unless either party gives written notice of its
desire to terminate this Agreement at least 180 days prior to the date of the
expiration of such five-year term, this Agreement shall be automatically renewed
for an additional five-year term.
5. PARTIAL TERMINATION. Any and all of the services provided
hereunder are only terminable earlier than the period specified in Section 4
above or ANNEX A attached hereto by FMC on thirty (30) days' prior written
notice to Buyer. Any such termination shall be final.
6. ACCESS. Subject to Section 8 below, with respect to each service
provided by Buyer or any of its Affiliates hereunder, Buyer and FMC shall
provide the other Party and its personnel with access to the equipment, office
and storage space and systems relating to such service during normal business
hours for the term of the applicable Service Period to the extent reasonably
required in connection with the provision of such services hereunder; PROVIDED
that such access shall be supervised by the appropriate personnel of the
7. ASSIGNMENT. This Agreement shall not be assignable in whole or
in part by any Party hereto without the prior written consent of the other
Parties hereto, except that FMC may assign any of its rights under this
Agreement to any of FMC's Affiliates.
8. CONFIDENTIALITY. Each Party shall cause each of its Affiliates
and each of their respective officers, directors and employees to hold all
information relating to the business of the other Parties disclosed to it by
reason of this Agreement confidential and will not disclose any of such
information to any person or entity unless legally compelled to disclose such
information; PROVIDED, HOWEVER, that to the extent that any of them may become
so legally compelled they may only disclose such information if they shall first
have used reasonable efforts to, and, if practicable, shall have afforded the
other Parties the opportunity to obtain, an appropriate protective order or
other satisfactory assurance of confidential treatment for the information
required to be so disclosed.
9. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Illinois applicable to
agreements made and to be performed entirely within such State, without regard
to the conflicts of law principles of such State.
10. LIMITATION OF LIABILITY. No Party shall be liable to the other
or any third party for any special, consequential or exemplary damages
(including lost or anticipated revenues or profits relating to the same) arising
from any claim relating to this Agreement or any of the services provided
hereunder, whether such claim is based on warranty, contract, tort (including
negligence or strict liability) or otherwise, even if an authorized
representative of such Party is advised of the possibility or likelihood of the
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts (including by means of telecopied signature pages), all of which
shall be considered one and the same Agreement, and shall become effective when
one or more counterparts have been signed by each of the Parties and delivered
to the other Parties.
12. NOTICES. Unless otherwise indicated herein, all notices,
requests, demands or other communications to FMC and Buyer shall be deemed to
have been given or made when deposited in the mails, registered or certified
mail, return receipt requested, postage prepaid, or by means of overnight
delivery service when delivered to such service addressed or by facsimile to FMC
or Buyer at the following address:
TO FMC: FMC Corporation
200 East Randolph Drive
Chicago, Illinois 60601
Attention: General Counsel
Fax No. (312) 861-6012
COPY TO: Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Glen E. Hess, P.C.
Fax No. (312) 861-2200
TO BUYER: Iron Horse Acquisition Corp.
c/o TC Group, L.L.C.
1001 Pennsylvania Avenue, N.W.
Suite 220 South
Washington, D.C. 20004
Attention: Allan M. Holt
Fax No.: (202) 347-9250
COPY TO: Latham & Watkins
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Attention: Bruce E. Rosenblum
Fax No.: (202) 637-2201
13. MODIFICATION, NONWAIVER, SEVERABILITY. Neither this Agreement
nor any part hereof may be changed, altered or amended orally. Any modification
must be by written instrument signed by FMC and Buyer. Failure by any Party to
exercise promptly any right granted herein or to require strict performance of
any obligation imposed hereunder shall not be deemed a waiver of such right. If
any provision of this Agreement is held ineffective for any reason, the other
provisions shall remain effective.
14. INTERPRETATION. The headings and captions contained in this
Agreement and in ANNEX A attached hereto are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
The use of the word 'including' herein shall mean 'including without
15. NO STRICT CONSTRUCTION. The language used in this Agreement
shall be deemed to be the language chosen by the Parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
person or entity.
16. ENTIRE AGREEMENT. This Agreement and the Purchase Agreement
contain the entire agreement and understanding among the Parties hereto with
respect to the subject matter hereof and supersede all prior agreements and
understandings, whether written or oral, relating to such subject matter.
17. RELATIONSHIP OF PARTIES. Except as specifically provided herein,
none of the Parties shall act or represent or hold itself out as having
authority to act as an agent or partner of any other Party, or in any way bind
or commit any other Party to any obligations. Nothing contained in this
Agreement shall be construed as creating a partnership, joint venture, agency,
trust or other association of any kind, each Party being individually
responsible only for its obligations as set forth in this Agreement.
18. FORCE MAJEURE. If Buyer is prevented from complying, either
totally or in part, with any of the terms or provisions of this Agreement by
reason of fire, flood, storm, strike, lockout
or other labor trouble, any law, order, proclamation, regulation, ordinance,
demand or requirement of any governmental authority, riot, war, rebellion or
other causes beyond the reasonable control of Buyer, or other acts of God, then
upon written notice to FMC, the affected provisions and/or other requirements of
this Agreement shall be suspended during the period of such disability and Buyer
shall have no liability to FMC in connection therewith. Buyer shall use
reasonable efforts to remove such disability within thirty (30) days of giving
notice of such disability.
* * * * *
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representatives as of the date and year first
set forth above.
By: /s/ Charlotte Mitchell Smith
Title: Assistant Secretary
UNITED DEFENSE INDUSTRIES, INC.
By: /s/ Allan M. Holt