Exhibit 10.9
This TRANSITION SERVICES AGREEMENT, dated as of
November 30,
2004 (this "SERVICES AGREEMENT"), is by and between Affinia Group
Inc. (f/k/a
"AAG Opco Corp."), a Delaware corporation ("PURCHASER"), and Dana
Corporation, a
Virginia corporation ("SELLER"). Each of Seller and Purchaser are
sometimes
hereinafter referred to as a "Party" and collectively as the
"Parties".
WHEREAS, Seller and Purchaser have entered into
the Stock and
Asset Purchase Agreement, dated as of July 8, 2004 and amended
November 1, 2004
and November 30, 2004 (as amended, modified or supplemented from
time to time,
the "AGREEMENT"), pursuant to which Seller and certain of its
Subsidiaries have
agreed to sell, assign and transfer to Purchaser, and Purchaser has
agreed to
purchase and acquire from Seller and certain of its Subsidiaries,
all of the
right, title and interest of Seller and its Subsidiaries in and to
the Purchased
Shares and the Purchased Assets, and that Purchaser assume the
Assumed
Liabilities; and
WHEREAS, in connection therewith, (a) Purchaser
desires to
purchase certain services from Seller, and Seller is willing to
provide such
services to Purchaser, during a transition period commencing on the
Closing
Date, on the terms and conditions set forth in this Services
Agreement; and (b)
Seller desires to purchase certain services from Purchaser, and
Purchaser is
willing to provide such services to Seller, during a transition
period
commencing on the Closing Date, on the terms and conditions set
forth in this
Services Agreement.
NOW, THEREFORE, the Parties hereby agree as
follows:
ARTICLE I
Definitions
-----------
All terms used herein and not defined herein
shall have the
meanings assigned to them in the Agreement.
ARTICLE II
Agreement To Provide and Accept Services
----------------------------------------
Section 2.01. Provision of Services.
---------------------
(a) On the terms and subject to the conditions
contained
herein, Seller shall provide, or shall cause its Subsidiaries,
Affiliates or
third parties reasonably acceptable to Purchaser designated by
Seller (such
designated Subsidiaries, Affiliates and third parties, together
with Seller,
being herein collectively referred to as the "SELLER SERVICE
PROVIDERS") to
provide, to Purchaser the services ("SELLER SERVICES") listed on
the attached
Schedules (the "SCHEDULES") as being performed by the Seller.
Subject to Section
3.01, any decisions as to which of the Seller Service Providers
(including the
decisions to use third parties) shall provide the Seller Services
shall be made
by Seller in its sole discretion, except to the extent specified in
the
applicable Schedule. Each Seller Service shall be provided in
exchange for the
consideration set forth with respect to such Seller Service on the
applicable
Schedule or as the Parties may
otherwise agree in writing. Each Seller Service shall be provided
and accepted
in accordance with the terms, limitations and conditions set forth
herein and on
the applicable Schedule.
(b) On the terms and subject to the conditions
contained
herein, Purchaser shall provide, or shall cause its Subsidiaries,
Affiliates or
third parties designated by it (such designated Subsidiaries,
Affiliates and
third parties, together with Purchaser, being herein collectively
referred to as
the "PURCHASER SERVICE PROVIDERS" and together with the Seller
Service
Providers, the "SERVICE PROVIDERS") to provide, to Seller the
services
("PURCHASER SERVICES" and together with the Seller Services, the
"SERVICES")
listed on the attached Schedules as being performed by Purchaser.
Subject to
Section 3.01, any decisions as to which of the Purchaser Service
Providers
(including the decisions to use third parties) shall provide the
Purchaser
Services shall be made by Purchaser in its sole discretion, except
to the extent
specified in the applicable Schedule. Each Purchaser Service shall
be provided
in exchange for the consideration set forth with respect to such
Service on the
applicable Schedule or as the Parties may otherwise agree in
writing. Each
Purchaser Service shall be provided and accepted in accordance with
the terms,
limitations and conditions set forth herein and on the applicable
Schedule.
(c) As used in this Services Agreement, the
term "RECEIVING
PARTY" shall mean the Party receiving Services.
Section 2.02. Access. Each Party shall create and
maintain
accurate books in connection with the provision of the Services
performed by it
and, upon reasonable notice from the other Party, shall make
available for
inspection and copy by such other Party's agents such records
during reasonable
business hours. Each Party shall make available on a timely basis
to the Service
Providers all information and materials reasonably requested by
such Service
Providers to enable them to provide the Services. Each Party shall
provide to
the Service Providers reasonable access to such Party's premises to
the extent
necessary for the purpose of providing the Services.
ARTICLE III
Services; Payment; Independent Contractors
------------------------------------------
Section 3.01. Services To Be Provided. (a) Unless
otherwise
agreed by the Parties (including to the extent specified in the
applicable
Schedule), (i) the Service Providers shall be required to perform
the Services
only in a manner that is similar in all material respects to the
manner in which
such Services were performed from March 31, 2004, to the Closing
Date, and (ii)
the Services shall be used for substantially the same purposes and
in
substantially the same manner (including as to volume, amount,
level or
frequency, as applicable) as the Services have been used from March
31, 2004, to
such date; provided, however, that the applicable Schedule shall
control the
scope of the Service to be performed (to the extent provided
therein), unless
otherwise agreed in writing. Each Party and the Service Providers
shall act
under this Services Agreement solely as an independent contractor
and not as an
agent or employee of any other Party or any of such Party's
Affiliates.
2
(b) The provision of Services by Service
Providers shall be
subject to Article V hereof.
(c) Each Party agrees to use its reasonable
efforts to
reduce or eliminate its dependency on the Services as soon as is
reasonably
practicable; provided that a breach of this Section 3.01(c) shall
not affect a
Service Provider's obligation to provide any Service through the
term applicable
to such Service.
(d) Subject to the terms of the applicable
Schedule, if it
is necessary for any Service Provider to increase staffing or
acquire equipment
or make any investments or capital expenditures in order to
accommodate an
increase in the use of any Service beyond the level of use of such
Service by
Seller from March 31, 2004, to the Closing Date as a result of an
increase in
volume of the business of the Receiving Party or a change in the
manner in which
the business of the Receiving Party is being conducted, such
Service Provider
shall inform the Receiving Party in writing of such increase in
staffing level,
equipment acquisitions, investments or capital expenditures before
any such cost
or expense is incurred. Upon mutual agreement of the Parties as to
the necessity
of any such increase, the Receiving Party (unless Purchaser and
Seller shall
otherwise agree in writing) shall advance to the relevant Service
Providers an
amount equal to the actual costs and expenses to be incurred in
connection
therewith. If such mutual agreement is not reached, the Service
Provider's
obligation to provide or cause to be provided such Service shall be
limited to
the level of use of such Service from March 31, 2004, to the
Closing Date (or as
described in the applicable Schedule).
(e) The Parties will use good-faith efforts to
reasonably
cooperate with each other in all matters relating to the provision
and receipt
of Services. Such cooperation shall include obtaining, all
consents, licenses or
approvals necessary to permit each party to perform its obligations
hereunder.
In respect of its obligations hereunder, each Party covenants and
warrants to
the other Party that all such obligations shall be performed in
compliance with
all material applicable Law.
Section 3.02. Payments.
--------
(a) Statements will be delivered to the
Receiving Party
each month by the Service Providers designated by each Party for
Services
provided to the Receiving Party during the preceding month, and
each such
statement shall set forth a brief description of such Services, the
amounts
charged therefor, and, except the Parties may agree, such amounts
shall be due
and payable by the Receiving Party within 30 days after the date of
such
statement. Statements not paid within such 30-day period shall be
subject to
late charges, calculated based on the Applicable Rate (or the
maximum legal
rate, whichever is lower), for each month or portion thereof that
the statement
is overdue. Payments shall be made by wire transfer to an account
designated in
writing from time to time by Service Provider.
(b) Seller hereby grants to Purchaser and its
Subsidiaries
credits against payments for services under this Services Agreement
and the
Ancillary Agreements equal to (i) U.S.$11,000,000 for the period
commencing on
the date hereof through December 31, 2004 and U.S.$5,000,000 for
the period
commencing on January 1, 2005 through March 31, 2005. For the
avoidance of
doubt, as a result of such credits, Purchaser and its Subsidiaries
shall not be
3
required to pay any amounts to Seller and its Subsidiaries for
services under
this Services Agreement and the Ancillary Agreements (i) for the
period
commencing on date hereof until December 31, 2004 until the sum of
such amounts
in such quarter exceeds U.S.$11,000,000, and then only to the
extent of such
excess; and (ii) for the period commencing on January 1, 2005
through March 31,
2005 until the sum of such amounts in such period exceeds
U.S.$5,000,000, and
then only to the extent of such excess. In addition, in the event
that the full
U.S.$16,000,000 of such credits is not utilized by March 31, 2005,
Seller shall
make a cash payment to Purchaser on or before April 30, 2005 in an
amount equal
to the unused balance of the credit.
Section 3.03. Licenses to Occupy Real
Property.
--------------------------------
(a) For purposes of this Section 3.03,
capitalized terms
not defined herein shall have the respective meanings ascribed to
them in the
Agreement.
(b) Seller and Purchaser hereby acknowledge
and agree that
Purchaser shall, effective as of the Closing Date, be entitled to
occupy the
portion of any premises described on the Schedules concerning
leases (each, a
"TRANSITION SPACE PROPERTY") for the period of time specified for
such
Transition Space Property on the applicable Schedule pursuant to a
license
deemed to be granted, pursuant to this Section 3.03, by Seller or
the applicable
subsidiary of Seller that is the owner or tenant of the applicable
Transition
Space Property, as applicable.
(c) The licenses granted in this Section 3.03
shall
include, among other things, obligations of the licensee to pay to
the licensor
all rent and other occupancy charges described in the applicable
Schedule and
attributable to the licensee's use and occupancy of each Transition
Space
Property. With respect to each Transition Space Property, the
licensee shall pay
to the licensor all such rent and charges as described in the
applicable
Schedule (in the case of rent, at least three (3) business days
prior to the
beginning of each calendar month (except for the first payment
which shall be
made as of the Closing Date) and, in the case of other charges, at
least three
(3) business days prior to the date that such other charges are due
and owing by
licensor. Each license granted hereby shall automatically terminate
upon the
earliest of (y) the period of time specified for each such
Transition Space
Property on the applicable Schedule and (z) the date upon which
forfeiture or
termination of the applicable lease (due to a default arising from
the
applicable licensee's occupancy) cannot be avoided other than by
requiring the
licensee to vacate the applicable Transition Space Property.
Notwithstanding any
of the foregoing, upon the termination of any license provided for
in this
Section 3.03, Purchaser shall promptly pay to Seller the rent and
charges
described in the applicable Schedule for the applicable Transition
Space
Property and such rent and charges shall be prorated on a daily
basis for the
month during which licensee vacates such Transition Space Property;
in each
case, provided, that any liability of a party for breaches
(occurring prior to
such termination) of such party's obligations under this Section
3.03 in
relation to the applicable Transition Space Property (including,
without
limitation, the obligation to pay rent and charges) shall survive
such
termination (A) of such license and (B) hereof.
Section 3.04. Disclaimer of Warranty. EXCEPT AS
EXPRESSLY SET
FORTH IN THIS SERVICES AGREEMENT, THE SERVICES TO BE PURCHASED
UNDER THIS
SERVICES AGREEMENT ARE FURNISHED AS IS, WHERE IS, WITH ALL FAULTS
AND
4
WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTY OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
Section 3.05. Taxes. Solely to the extent
included in the
pricing set forth on the applicable Schedule, Service fees payable
by a
Receiving Party to a Service Provider shall be inclusive of any
applicable VAT.
In the event that any VAT is properly chargeable on the provision
of the
Services as indicated on the applicable Schedule, the Receiving
Party shall be
responsible for and shall pay the amount of any such VAT in
addition to and at
the same time as the Service fees. All Service fees and other
consideration will
be paid free and clear of and without withholding or deduction for
or on account
of any tax, except as may be required by law.
Section 3.06. Use of Services. The Receiving
Party shall not,
and shall cause its Affiliates not to, resell any Services to any
person
whatsoever or perm
|
