{"id":43773,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/transition-services-agreement-fmc-corp-united-defense-lp-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"transition-services-agreement-fmc-corp-united-defense-lp-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/transition-services-agreement-fmc-corp-united-defense-lp-and.html","title":{"rendered":"Transition Services Agreement &#8211; FMC Corp., United Defense LP and United Defense Industries LP"},"content":{"rendered":"<pre>                            TRANSITION SERVICES AGREEMENT\n                                           \n          This TRANSITION SERVICES AGREEMENT (this 'AGREEMENT') is made as of\nOctober 6, 1997, by and among FMC Corporation, a Delaware corporation ('FMC'),\nUnited Defense, L.P., a Delaware limited partnership ('UDLP'), and United\nDefense Industries, Inc. (formerly known as Iron Horse Acquisition Corp.), a\nDelaware corporation ('BUYER').  FMC, UDLP and Buyer are referred to herein\ncollectively as the 'PARTIES' and individually as a 'PARTY.'\n\n                                 W I T N E S S E T H:\n\n          WHEREAS, pursuant to that certain Purchase Agreement, dated as of\nAugust 25, 1997, by and among FMC, Harsco Corporation, Harsco UDLP Corporation\nand Buyer (the 'PURCHASE AGREEMENT'), Buyer has agreed to acquire all of the\noutstanding partnership interests of UDLP;\n\n          WHEREAS, pursuant to the Management Services Agreement between FMC and\nUDLP, dated as of January 1, 1994 (the 'MANAGEMENT SERVICES AGREEMENT'), FMC has\nprovided certain administrative, corporate and other services to UDLP;\n\n          WHEREAS, Buyer desires that, after the Closing, FMC continue to\nprovide to Buyer or an Affiliate of Buyer certain of such services on a\ntransitional basis; and\n\n          WHEREAS, capitalized terms used herein and not otherwise defined\nherein have the meanings given to such terms in the Purchase Agreement;\n\n          NOW, THEREFORE, in consideration of the premises and covenants set\nforth herein and other good and valuable consideration, the receipt and\nsufficiency of which is hereby acknowledged, the Parties hereby agree as\nfollows:\n\n          1.   TRANSITION SERVICES.  Upon the terms and subject to the\nconditions set forth in this Agreement, during the term of this Agreement as set\nforth in Section 5 below (the 'TRANSITION PERIOD'), FMC shall provide, or cause\nits Affiliates to provide, to Buyer or its Affiliates, from the date of this\nAgreement and for the period of time set forth in Section 5 with respect to each\nof the services, the respective services set forth on ANNEX A attached hereto,\nand such other transition assistance as may be agreed upon by FMC and Buyer\nduring the Transition Period, in the manner and at a relative level of service,\nwhere applicable, consistent in all material respects with that provided by FMC\nand\/or its Affiliates prior to the date hereof.  Unless otherwise agreed by FMC\nand Buyer, such services shall be provided at the cost specified beside each\nsuch service on ANNEX A.\n\n          2.   BILLING AND PAYMENT.  Buyer shall pay, or cause to be paid, net\nof any applicable withholding taxes, any bills and invoices that it receives\nfrom FMC for services provided by FMC or any of its Affiliates under or pursuant\nto this Agreement.  Such charges may, at FMC's option, be billed as incurred if\nthe amount involved equals or exceeds $10,000, or, if such charges do not exceed\n$10,000, at the end of each calendar month during the Transition Period.  All\ninvoices\n\n\n\n\nshall, not later than thirty (30) days following receipt by Buyer of FMC's\ninvoice, be paid by wire transfer in accordance with the written instructions\nprovided by FMC, subject to receiving from FMC, if reasonably requested by\nBuyer, any appropriate support documentation for such bills and invoices.\n\n          Services requiring use of checks issued by FMC or other fund transfers\nby FMC on behalf of Buyer will be provided only to the extent funded by a Buyer\naccount or to the extent that Buyer provides FMC with immediately available\nfunds prior to FMC's issuance of the check or the fund transfer, as the case may\nbe.\n\n          3.   GENERAL INTENT.  Buyer and its Affiliates agree to use reasonable\ncommercial efforts to end their need to use the assistance contemplated by this\nAgreement with respect to each service specified in ANNEX A attached hereto not\nlater than the end of the period specified in Section 5 below or ANNEX A\nattached hereto for the provision of each such service.\n\n          4.   VALIDITY OF DOCUMENTS.  The Parties shall be entitled to rely\nupon the genuineness, validity or truthfulness of any document, instrument or\nother writing presented in connection with this Agreement unless such document,\ninstrument or other writing appears on its face to be fraudulent, false or\nforged.\n\n          5.   TERM OF AGREEMENT.  The term of this Agreement shall commence on\nthe date hereof and shall continue (unless sooner terminated pursuant to the\nterms hereof) for a period of six (6) months, or such earlier, shorter or longer\nperiod as may be agreed upon by FMC and Buyer or provided in ANNEX A attached\nhereto with respect to particular services described in ANNEX A attached hereto.\n\n          6.   PARTIAL TERMINATION.  Any and all of the services provided\nhereunder are only terminable earlier than the period specified in Section 5\nabove or ANNEX A attached hereto by Buyer on thirty (30) days' prior written\nnotice to FMC.  Any such termination shall be final.\n\n          7.   ACCESS.  Subject to Section 10 below, with respect to each\nservice provided by FMC or any of its Affiliates hereunder, Buyer and FMC shall\nprovide the other Party and its personnel with access to the equipment, office\nand storage space and systems relating to such service during normal business\nhours for the term of the applicable Transition Period to the extent reasonably\nrequired in connection with the provision of such services hereunder; PROVIDED\nthat such access shall be supervised by the appropriate personnel of the\nParties.\n\n          8.   TERMINATION OF MANAGEMENT SERVICES AGREEMENT.  FMC and UDLP agree\nthat the Management Services Agreement shall be terminated as of the date hereof\nand that management services shall be provided by FMC to Buyer and its\nAffiliates from and after the date hereof only pursuant to this Agreement,\nsubject to the terms and conditions contained herein.\n\n\n                                         -2-\n\n\n          9.   ASSIGNMENT.  This Agreement shall not be assignable in whole or\nin part by any Party hereto without the prior written consent of the other\nParties hereto, except that Buyer may assign any of its rights under this\nAgreement to UDLP or any of Buyer's other Affiliates.\n\n          10.  CONFIDENTIALITY.  Each Party shall cause each of its Affiliates\nand each of their respective officers, directors and employees to hold all\ninformation relating to the business of the other Parties disclosed to it by\nreason of this Agreement confidential and will not disclose any of such\ninformation to any person or entity unless legally compelled to disclose such\ninformation; PROVIDED, HOWEVER, that to the extent that any of them may become\nso legally compelled they may only disclose such information if they shall first\nhave used reasonable efforts to, and, if practicable, shall have afforded the\nother Parties the opportunity to obtain, an appropriate protective order or\nother satisfactory assurance of confidential treatment for the information\nrequired to be so disclosed.\n\n          11.  GOVERNING LAW.  This Agreement shall be governed by and construed\nin accordance with the internal laws of the State of Illinois applicable to\nagreements made and to be performed entirely within such State, without regard\nto the conflicts of law principles of such State.\n\n          12.  LIMITATION OF LIABILITY.  No Party shall be liable to the other\nor any third party for any special, consequential or exemplary damages\n(including lost or anticipated revenues or profits relating to the same) arising\nfrom any claim relating to this Agreement or any of the services provided\nhereunder, whether such claim is based on warranty, contract, tort (including\nnegligence or strict liability) or otherwise, even if an authorized\nrepresentative of such Party is advised of the possibility or likelihood of the\nsame.\n\n          13.  COUNTERPARTS.  This Agreement may be executed in one or more\ncounterparts (including by means of telecopied signature pages), all of which\nshall be considered one and the same Agreement, and shall become effective when\none or more counterparts have been signed by each of the Parties and delivered\nto the other Parties.\n\n          14.  NOTICES.  Unless otherwise indicated herein, all notices,\nrequests, demands or other communications to FMC and Buyer shall be deemed to\nhave been given or made when deposited in the mails, registered or certified\nmail, return receipt requested, postage prepaid, or by means of overnight\ndelivery service when delivered to such service addressed or by facsimile to FMC\nor Buyer at the following address:\n\n          TO FMC:        FMC Corporation\n                         200 East Randolph Drive\n                         Chicago, Illinois  60601\n                         Attention:  General Counsel\n                         Fax No.  (312) 861-6012\n\n\n                                         -3-\n\n\n          COPY TO:       Kirkland &amp; Ellis\n                         200 East Randolph Drive\n                         Chicago, Illinois  60601\n                         Attention:  Glen E. Hess, P.C.\n                         Fax No.  (312) 861-2200\n\n          TO BUYER:      Iron Horse Acquisition Corp.\n                         c\/o TC Group, L.L.C.\n                         1001 Pennsylvania Avenue, N.W.\n                         Suite 220 South\n                         Washington, D.C.  20004\n                         Attention:  Allan M. Holt\n                         Fax No.:  (202) 347-9250\n                         \n          COPY TO:       Latham &amp; Watkins\n                         1001 Pennsylvania Avenue, N.W.\n                         Suite 1300\n                         Washington, D.C.  20004\n                         Attention:  Bruce E. Rosenblum\n                         Fax No.:  (202) 637-2201                \n\n          15.  MODIFICATION, NONWAIVER, SEVERABILITY.  Neither this Agreement\nnor any part hereof may be changed, altered or amended orally.  Any modification\nmust be by written instrument signed by FMC and Buyer.  Failure by any Party to\nexercise promptly any right granted herein or to require strict performance of\nany obligation imposed hereunder shall not be deemed a waiver of such right.  If\nany provision of this Agreement is held ineffective for any reason, the other\nprovisions shall remain effective.\n\n          16.  INTERPRETATION.  The headings and captions contained in this\nAgreement and in ANNEX A attached hereto are for reference purposes only and\nshall not affect in any way the meaning or interpretation of this Agreement. \nThe use of the word 'including' herein shall mean 'including without\nlimitation.'\n\n          17.  NO STRICT CONSTRUCTION.  The language used in this Agreement\nshall be deemed to be the language chosen by the Parties hereto to express their\nmutual intent, and no rule of strict construction shall be applied against any\nperson or entity.\n\n          18.  ENTIRE AGREEMENT.  This Agreement and the Purchase Agreement\ncontain the entire agreement and understanding among the Parties hereto with\nrespect to the subject matter hereof and supersede all prior agreements and\nunderstandings, whether written or oral, relating to such subject matter.\n\n          19.  RELATIONSHIP OF PARTIES.  Except as specifically provided herein,\nnone of the Parties shall act or represent or hold itself out as having\nauthority to act as an agent or partner of any\n\n\n                                         -4-\n\n\nother Party, or in any way bind or commit any other Party to any obligations. \nNothing contained in this Agreement shall be construed as creating a\npartnership, joint venture, agency, trust or other association of any kind, each\nParty being individually responsible only for its obligations as set forth in\nthis Agreement.\n\n          20.  FORCE MAJEURE.  If FMC is prevented from complying, either\ntotally or in part, with any of the terms or provisions of this Agreement by\nreason of fire, flood, storm, strike, lockout or other labor trouble, any law,\norder, proclamation, regulation, ordinance, demand or requirement of any\ngovernmental authority, riot, war, rebellion or other causes beyond the\nreasonable control of FMC, or other acts of God, then upon written notice to\nBuyer, the affected provisions and\/or other requirements of this Agreement shall\nbe suspended during the period of such disability and FMC shall have no\nliability to Buyer in connection therewith.  FMC shall use reasonable efforts to\nremove such disability within thirty (30) days of giving notice of such\ndisability.\n\n          21.  USE AND RESALE.  The services provided by FMC or its Affiliates\nto Buyer or its Affiliates hereunder shall be used only by Buyer and its\nAffiliates solely in connection with the operation of the business of UDLP or\nits successor entities and neither Buyer nor any of its Affiliates shall resell,\nlicense the use of or otherwise permit the use by others of any such services\nexcept in the ordinary course of business consistent with past practice in the\nconduct of the business of UDLP.\n\n                    *    *    *    *    *\n\n\n                                         -5-\n\n\n          IN WITNESS WHEREOF, the Parties have caused this Agreement to be\nexecuted by their duly authorized representatives as of the date and year first\nset forth above.\n\n\n                              FMC CORPORATION\n\n\n                              By:     \/s\/ Charlotte Mitchell Smith\n                                      -------------------------------\n                              Title:  Assistant Secretary\n\n\n                              UNITED DEFENSE, L.P.\n\n                              By:  UDLP Holdings Corp.\n                              Title:    Managing General Partner\n\n                                   By:     \/s\/ Allan M. Holt\n                                           --------------------------\n                                   Title:  President\n\n\n                              UNITED DEFENSE INDUSTRIES, INC.\n\n\n                              By:     \/s\/ Allan M. Holt\n                                      -------------------------------\n                              Title:  President\n\n\n                                         -6-\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7558,9167],"corporate_contracts_industries":[9451,9477],"corporate_contracts_types":[9622,9626],"class_list":["post-43773","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-fmc-corp","corporate_contracts_companies-united-defense-industries-inc","corporate_contracts_industries-manufacturing__chemicals","corporate_contracts_industries-aerospace__vehicles","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43773","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43773"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43773"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43773"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43773"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}