Transition Services Agreement - FMC Corp., United Defense LP and United Defense Industries LP
TRANSITION SERVICES AGREEMENT
This TRANSITION SERVICES AGREEMENT (this 'AGREEMENT') is made as of
October 6, 1997, by and among FMC Corporation, a Delaware corporation ('FMC'),
United Defense, L.P., a Delaware limited partnership ('UDLP'), and United
Defense Industries, Inc. (formerly known as Iron Horse Acquisition Corp.), a
Delaware corporation ('BUYER'). FMC, UDLP 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, 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'), Buyer has agreed to acquire all of the
outstanding partnership interests of UDLP;
WHEREAS, pursuant to the Management Services Agreement between FMC and
UDLP, dated as of January 1, 1994 (the 'MANAGEMENT SERVICES AGREEMENT'), FMC has
provided certain administrative, corporate and other services to UDLP;
WHEREAS, Buyer desires that, after the Closing, FMC continue to
provide to Buyer or an Affiliate of Buyer certain of such services on a
transitional basis; 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. TRANSITION 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 5 below (the 'TRANSITION PERIOD'), FMC shall provide, or cause
its Affiliates to provide, to Buyer or its Affiliates, from the date of this
Agreement and for the period of time set forth in Section 5 with respect to each
of the services, the respective services set forth on ANNEX A attached hereto,
and such other transition assistance as may be agreed upon by FMC and Buyer
during the Transition Period, in the manner and at a relative level of service,
where applicable, consistent in all material respects with that provided by FMC
and/or its Affiliates 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. Buyer shall pay, or cause to be paid, net
of any applicable withholding taxes, any bills and invoices that it receives
from FMC for services provided by FMC or any of its Affiliates under or pursuant
to this Agreement. Such charges may, at FMC'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 Transition Period. All
shall, not later than thirty (30) days following receipt by Buyer of FMC's
invoice, be paid by wire transfer in accordance with the written instructions
provided by FMC, subject to receiving from FMC, if reasonably requested by
Buyer, any appropriate support documentation for such bills and invoices.
Services requiring use of checks issued by FMC or other fund transfers
by FMC on behalf of Buyer will be provided only to the extent funded by a Buyer
account or to the extent that Buyer provides FMC with immediately available
funds prior to FMC's issuance of the check or the fund transfer, as the case may
3. GENERAL INTENT. Buyer and its Affiliates agree to use reasonable
commercial efforts to end their need to use the assistance contemplated by this
Agreement with respect to each service specified in ANNEX A attached hereto not
later than the end of the period specified in Section 5 below or ANNEX A
attached hereto for the provision of each such service.
4. 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
5. 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 six (6) months, 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.
6. PARTIAL TERMINATION. Any and all of the services provided
hereunder are only terminable earlier than the period specified in Section 5
above or ANNEX A attached hereto by Buyer on thirty (30) days' prior written
notice to FMC. Any such termination shall be final.
7. ACCESS. Subject to Section 10 below, with respect to each
service provided by FMC 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 Transition 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
8. TERMINATION OF MANAGEMENT SERVICES AGREEMENT. FMC and UDLP agree
that the Management Services Agreement shall be terminated as of the date hereof
and that management services shall be provided by FMC to Buyer and its
Affiliates from and after the date hereof only pursuant to this Agreement,
subject to the terms and conditions contained herein.
9. 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 Buyer may assign any of its rights under this
Agreement to UDLP or any of Buyer's other Affiliates.
10. 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.
11. 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.
12. 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
13. 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.
14. 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
15. 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.
16. 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
17. 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.
18. 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.
19. 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
20. FORCE MAJEURE. If FMC 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 FMC, or other acts of God, then upon written notice to
Buyer, the affected provisions and/or other requirements of this Agreement shall
be suspended during the period of such disability and FMC shall have no
liability to Buyer in connection therewith. FMC shall use reasonable efforts to
remove such disability within thirty (30) days of giving notice of such
21. USE AND RESALE. The services provided by FMC or its Affiliates
to Buyer or its Affiliates hereunder shall be used only by Buyer and its
Affiliates solely in connection with the operation of the business of UDLP or
its successor entities and neither Buyer nor any of its Affiliates shall resell,
license the use of or otherwise permit the use by others of any such services
except in the ordinary course of business consistent with past practice in the
conduct of the business of UDLP.
* * * * *
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, L.P.
By: UDLP Holdings Corp.
Title: Managing General Partner
By: /s/ Allan M. Holt
UNITED DEFENSE INDUSTRIES, INC.
By: /s/ Allan M. Holt