Exhibit 10
Execution Version
FOURTH AMENDMENT
to
JOINT VENTURE
AGREEMENT
This FOURTH AMENDMENT to JOINT
VENTURE AGREEMENT (this “Amendment”) is entered into as
of November 4, 2005, by and among Solutia Inc.
(“Solutia”) and FMC Corporation
(“FMC”).
Recitals
:
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A.
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FMC and Solutia
are parties to that certain Joint Venture Agreement, dated as of
April 29, 1999, as amended by the First Amendment to Joint
Venture Agreement dated as of December 30, 1999, the Second
Amendment to Joint Venture Agreement dated as of February 10,
2000, and the Third Amendment to Joint Venture Agreement dated as
of March 31, 2000 (the Joint Venture Agreement as amended as
of the date hereof, the “Joint Venture
Agreement”).
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B.
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Pursuant to the
Joint Venture Agreement, Solutia and FMC formed the Joint Venture
(as defined in the Joint Venture Agreement), known as Astaris LLC,
a Delaware limited liability company (“Astaris”), and,
as of the Effective Date (as defined in the Joint Venture
Agreement), contributed certain assets to Astaris and caused
Astaris to assume certain liabilities.
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C.
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On
October 5, 2001, Solutia, FMC, Astaris, Astaris Idaho LLC and
Astaris Production LLC entered into that certain Agreement, dated
as of October 5, 2001 (as amended as of the date hereof, the
“Pocatello Shutdown Agreement”).
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D.
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Solutia, FMC
and Astaris entered into the Asset Purchase Agreement, dated as of
September 1, 2005 (as amended, modified or supplemented as of
the date hereof, the “Asset Purchase Agreement”), by
and among Israel Chemicals Limited, an Israeli corporation, ICL
Performance Products Holding Inc., a Delaware corporation and a
wholly owned subsidiary of Israel Chemicals Limited (the
“Buyer”), FMC, Solutia and Astaris, pursuant to which
Astaris agreed to sell to the Buyer, and the Buyer agreed to
purchase from Astaris, substantially all of Astaris’
operating assets and the Buyer agreed to assume certain liabilities
relating to Astaris’ business, in each case on the terms and
subject to the conditions set forth therein.
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E.
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In connection
with the execution and delivery of the Asset Purchase Agreement,
Solutia and FMC entered into the Owners Agreement, dated as of
September 1, 2005 (as amended, modified or supplemented as of
the date hereof, the “Owners Agreement”), pursuant to
which FMC and Solutia agreed, among other things, (a) to cause
Astaris to transfer and assign to FMC and Solutia certain of its
assets not sold to the Buyer pursuant to the Asset Purchase
Agreement and to assume certain liabilities to be retained by
Astaris following the consummation of the transactions contemplated
by the Asset Purchase Agreement and (b) to amend the Joint
Venture Agreement, in each case on the terms and subject to the
conditions set forth therein.
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F
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Solutia and FMC
desire to amend certain provisions of the Joint Venture Agreement
based upon certain transactions contemplated by the Asset Purchase
Agreement and the Owners Agreement.
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Amendment
:
Therefore, in consideration of the
mutual agreements herein and other sufficient consideration, the
receipt of which is hereby acknowledged, FMC and Solutia, intending
to be legally bound, hereby amend the Joint Venture Agreement as
follows:
1. Definitions. Capitalized terms used and not otherwise
defined herein have the meanings given them in the Joint Venture
Agreement.
2. Amendments to Joint Venture
Agreement.
2.1. Joint Venture Agreement
Section 1. The
following definitions are hereby added to Section 1 of the
Joint Venture Agreement:
“ Agrium Settlement
Agreement ” means the Settlement Agreement and Mutual
Release, dated as of February 25, 2004, by and between Nu-West
Industries, Inc. and Astaris Production LLC.
“ Asset Purchase
Agreement ” means the Asset Purchase Agreement, dated as
of September 1, 2005, by and among Israel Chemicals Limited,
an Israeli corporation, ICL Performance Products Holding Inc., a
Delaware corporation and a wholly owned subsidiary of Israel
Chemicals Limited, FMC, Solutia and Astaris.
“ Astaris ” means
Astaris LLC, a Delaware limited liability company, or the Joint
Venture.
“ Owners Agreement
” means the Owners Agreement, dated as of September 1,
2005, by and between FMC and Solutia.
“ Pocatello Shutdown
Agreement ” means the Agreement, dated as of
October 5, 2001, by and among Solutia, FMC, Astaris, Astaris
Idaho LLC and Astaris Production LLC.
“ Purchase Closing
” means the Closing as defined in the Asset Purchase
Agreement.
2.2. Joint Venture Agreement
Section 3. Section 3 of the Joint Venture
Agreement is hereby amended to add a new Section 3.4 to the
end thereof as follows:
3.4. Notwithstanding anything to the contrary in this
Section 3, the Parties agree that the covenants contained in
this Section 3 shall not bind or affect the actions of the
Parties or the Joint Venture from and after the Purchase
Closing.
2.3. Joint Venture Agreement
Section 6.8. Section 6.8 of the Joint Venture
Agreement is hereby deleted in its entirety and replaced with the
following:
6.8. The Joint Venture shall periodically declare
distributions consistent with the terms of the Owners
Agreement.
2.4. Joint Venture Agreement
Section 6. Section 6 of the Joint Venture
Agreement is hereby amended to add a new Section 6.10 to the
end thereof as follows:
6.10. The Parties agree to cause Astaris and Astaris
Production LLC to make the asset transfers to FMC, Solutia and
Astaris, respectively, and take the other actions contemplated to
be taken by Astaris and Astaris Production LLC in the Owners
Agreement, including, without limitation, Section 2.1
thereof.
2.5. Joint Venture Agreement
Section 8. Section 8 of the Joint Venture
Agreement is hereby amended to add a new Section 8.8 to the
end thereof as follows:
8.8. Notwithstanding anything to the contrary in this
Section 8, the Parties agree that the covenants contained in
Sections 8.1, 8.2, 8.3, 8.4.1, 8.4.4, 8.4.5, 8.4.6, 8.4.7, 8.4.8,
8.4.8, 8.4.10, 8.5 and 8.7 and the last sentence of
Section 8.4.3 shall not bind or affect the Parties or the
Joint Venture from and after the Purchase Closing.
2.6. Joint Venture Agreement
Section 9. Section 9 of the Joint Venture
Agreement is hereby amended to add a new Section 9.3 to the
end thereof as follows:
9.3. Notwithstanding anything to the contrary in this
Section 9, the Parties agree that the covenants contained in
this Section 9 shall not bind or affect the Parties or the
Joint Venture from and after the Purchase Closing.
2.7. Joint Venture Agreement
Section 10. Section 10 of the Joint Venture
Agreement is hereby amended to add a new Section 10.7 to the
end thereof as follows:
10.7. Notwithstanding anything to the contrary in this
Section 10, the Parties agree that the provisions of
Section 10 shall be of no further force or effect from and
after the Purchase Closing, and the matters addressed by this
Section 10 shall thereafter be governed solely by the limited
liability company agreement of Astaris.
2.8. Joint Venture Agreement
Section 11. Section 11 of the Joint Venture
Agreement is hereby amended to add a new Section 11.3 to the
end thereof as follows:
11.3. Notwithstanding anything to the contrary in this
Section 11, the Parties agree that the provisions of
Section 11 shall be of no further force or effect from or
after the Purchase Closing, and the matters addressed by this
Section 11 shall thereafter be governed solely by the limited
liability company agreement of Astaris.
2.9. Joint Venture Agreement
Section 13.1. Section 13.1 of the Joint Venture
Agreement is hereby amended to add a new sentence to the end
thereof as follows:
Notwithstanding anything to the
contrary in this Section 13.1, the Parties agree that the
covenants contained in this Section 13.1 shall not bind or
affect the Parties or the Joint Venture from and after the Purchase
Closing.
2.10. Joint Venture Agreement
Section 13.6. Section 13.6 of the Joint Venture
Agreement is hereby amended to add a new paragraph to the end
thereof as follows:
Notwithstanding anything to the
contrary in this Section 13.6, the parties hereto intend that
the payment and discharge in full of the amount or amounts set
forth under the line item, “2. OPEBs”, on Schedule 2.3
to the Owners Agreement, shall satisfy in full any liability or
obligation of the Joint Venture under this Section 13.6 and no
future liability or obligation of the Joint Venture to either
Solutia or FMC with respect to other post employment benefits shall
be incurred under this Section 13.6.
2.11. Joint Venture Agreement
Section 14. Section 14 of the Joint Venture
Agreement is hereby amended to add a new Section 14.7 to the
end thereof as follows:
14.7. Notwithstanding anything to the contrary in this
Section 14, the Parties agree that Article V of the Owners
Agreement shall govern any disputes between FMC and Solutia
regarding the allocation of responsibility for indemnification of a
Buyer Indemnified Person (as defined in the Asset Purchase
Agreement) under Article IX of the Asset Purchase
Agreement.
2.12. Joint Venture Agreement
Section 15. Section 15 of the Joint Venture
Agreement is hereby deleted in its entirety and replaced with the
following:
15. Environmental
Provisions.
15.1. Exclusive
Remedy. The
indemnification and remedies provisions provided for in this
Article 15 shall be the exclusive remedy for the matters contained
in this Article 15 (except as otherwise set forth in the Owners
Agreement, Agrium Settlement Agreement or Pocatello Shutdown
Agreement), including but not limited to any private right of
action that either party or the Joint Venture might have otherwise
had under CERCLA, RCRA or any other law, rule or regulation that
relates to the environmental condition of the Facilities. The
provisions of Article 14.4 and Article 14.5 shall be applicable to
claims made under this Article 15.
15.2. FMC Group’s and
Solutia Group’s Responsibilities.
(a) The FMC Group agrees to, shall,
and hereby does, indemnify and hold harmless the Joint Venture and
the Solutia Group: (i) for Environmental Costs and Third Party
Costs incurred as the result of the presence of Non-Facilities
Substances which were released or originated from the FMC
Facilities, including, without limitation, all sewers, piping and
other improvements located below grade, or which have been released
or deposited above, in, on, or under the FMC Facilities or which
have migrated therefrom; (ii) for Environmental Costs incurred
for soil, air and groundwater remediation as a result of the
presence of Facilities Substances which were released or originated
from the FMC Facilities, including, without limitation, all sewers,
piping and other improvements located below grade, or which have
been deposited above, in, on, or under, or which have migrated
therefrom, or any land related thereto leased by the FMC Group,
including, without
limitation, all sewers, piping and
other improvements located below grade thereon, or which have
migrated therefrom; (iii) for Third Party Costs incurred as a
result of the presence in the soil, air or groundwater of
Facilities Substances which were released or originated from the
FMC Facilities, including, without limitation, all sewers, piping
and other improvements located below grade, or which have been
deposited above, in, on, under, or which have migrated therefrom,
the FMC Facilities or
