EX-10.6
Transition Services Agreement
EXHIBIT 10.6
TRANSITION SERVICES AGREEMENT
TRANSITION SERVICES AGREEMENT, dated as of December 23,
2004, by and
between Cooper Tire & Rubber Company, a Delaware corporation
(together with any
of its subsidiaries providing services hereunder, "SELLER"), and
CSA Acquisition
Corp., a Delaware corporation (together with any of its
subsidiaries receiving
services hereunder, "BUYER"). Seller and Buyer are sometimes
hereinafter
collectively referred to as the "PARTIES."
WITNESSETH:
WHEREAS, Seller and Buyer are parties to a Stock Purchase
Agreement,
dated as of September 16, 2004, as amended on December 3, 2004 (the
"PURCHASE
AGREEMENT"), relating to the sale by Seller and the other seller
party thereto,
and the purchase by Buyer, of shares of capital stock and other
equity interests
in the Sold Companies referred to in the Purchase Agreement;
WHEREAS, Buyer desires to have Seller provide certain
services to the
Buyer on an interim basis from time to time during the term of this
Agreement,
and Seller desires to provide such services in order to facilitate
the
transactions contemplated by the Purchase Agreement; and
WHEREAS, the Purchase Agreement provides that, in
connection with the
consummation of the transactions contemplated thereby, the Parties
will enter
into this Agreement;
NOW, THEREFORE, the Parties, in consideration of the
premises and the
mutual covenants contained herein, hereby agree as follows:
ARTICLE I DEFINITIONS
SECTION 1.1. Defined Terms. For the purposes of this
Agreement, (a)
unless otherwise defined herein, capitalized terms used herein have
the meanings
assigned to them in the Purchase Agreement and (b) the following
terms have the
meanings hereinafter specified:
"AGREEMENT" means this Agreement, including the Schedules
hereto, as
the same may be amended, supplemented or otherwise modified from
time to time.
"BUYER" has the meaning set forth in the introductory
paragraph
hereof.
"PARTIES" has the meaning set forth in the introductory
paragraph
hereof.
"PURCHASE AGREEMENT" has the meaning set forth in the
recitals hereto.
"SELLER" has the meaning set forth in the introductory
paragraph
hereof.
"SERVICE" or "SERVICES" means those services listed and
described on
Schedules to this Agreement.
SECTION 1.2. Interpretation; Exhibits and Schedules. When
a reference
is made in this Agreement to a Section or a Schedule, such
reference is to a
Section of, or a Schedule to, this Agreement unless otherwise
indicated. The
headings contained in this Agreement are for reference purposes
only and do not
affect in any way the meaning or interpretation of this Agreement.
Whenever the
words "include", "includes" or "including" are used in this
Agreement, they will
be deemed to be followed by the words "without limitation." The
words "hereof,"
"herein" and "hereunder" and words of similar import when used in
this Agreement
refer to this Agreement as a whole and not to any particular
provision of this
Agreement. The definitions contained in this Agreement are
applicable to the
singular as well as the plural forms of such terms and to the
masculine as well
as to the feminine and neuter genders of such term. Any agreement,
instrument or
statute defined or referred to herein means such agreement,
instrument or
statute as from time to time amended, modified or supplemented.
References to a
Person are also to its permitted successors and assigns and, in the
case of an
individual, to his heirs and estate, as applicable.
ARTICLE II AGREEMENT TO PROVIDE SERVICES
SECTION 2.1. Provision of Services. Seller shall provide
the Services
to Buyer in a timely manner in accordance with any time schedule
set forth in
the Schedules to this Agreement (it being understood that Services
rendered for
any particular month will include the preparation and delivery of
any required
reports, filings or other work related to such month even though
performed after
the end of the particular month in question). Each Service will be
provided for
the fee set forth for such Service on the Schedules to this
Agreement. The
prices set forth on the Schedules to this Agreement do not include
Seller's
reimbursable expenses, including, without limitation, travel,
reproduction or
special shipping or delivery charges. The Buyer shall reimburse
Seller for all
such reasonable out-of-pocket expenses incurred by Seller in
connection with
providing the Services provided that there is a prior agreement on
the need for
such costs to be incurred. Mileage for personal car use shall be
reimbursed at
the maximum allowed pursuant to the U.S. Internal Revenue Service
guidelines.
Seller represents that the fees and expenses charged to Buyer for
the services
provided through the termination date listed on the Schedules do
not include any
profit to Seller. In addition, it is understood that (i) Seller
will not be
required to use its own funds for any third party-provided service
or any
payment obligation of Buyer and (ii) Buyer will be responsible to
provide Seller
with the funds for each such Service and shall be solely
responsible for the
payment of any additional license fees, royalties and other
payments and fees
due under any license agreement or other agreement relating to
intellectual
property (including software) necessary to perform the Services for
the Buyer;
provided that such third party-provided services and payments and
fees were
approved in writing by Buyer prior thereto. Any delay in obtaining
such consent
from Buyer will not be a breach of this Agreement by Seller. In
every case, all
of the Services will be provided in accordance with the terms,
limitations and
conditions set forth herein and on the Schedules to this Agreement.
SECTION 2.2. Access. Buyer shall make available on a
timely basis to
Seller all information and materials reasonably requested by Seller
to enable it
to provide the Services. Buyer shall give Seller reasonable access,
during
regular business hours and at such other times
2
as are reasonably required, to the premises of the Sold Companies
and
Subsidiaries for the purposes of providing Services.
SECTION 2.3. Books and Records. Seller shall keep books
and records of
the Services provided and reasonable supporting documentation of
all charges and
expenses incurred in connection with providing such Services and
shall produce
written records that verify the dates and times during which the
Services were
performed. Seller shall make such books and records available to
Buyer, upon
reasonable notice, during normal business hours.
ARTICLE III SERVICES; PAYMENT; INDEPENDENT CONTRACTOR
SECTION 3.1. Service Quality.
(a) Unless otherwise agreed in writing by the Parties,
the Services
will be performed by Seller for Buyer in a manner that is
substantially
consistent with the manner in which such Services were generally
performed by
Seller for the Business prior to the date of this Agreement, and
Buyer shall use
such Services for substantially the same purpose and in
substantially the same
manner as the Business had used such Services prior to the date
hereof. Seller
shall exercise the same degree of skill and care in rendering or
providing the
Services pursuant to this Agreement as the Seller has exercised in
the past in
rendering or providing such services to the Business and as Seller
exercises in
performing such services in its own business. Seller shall act
under this
Agreement solely as an independent contractor and not as an agent
of Buyer. All
employees and representatives providing the Services will be under
the
direction, control and supervision of Seller (and not of Buyer),
and Seller will
have the sole right to exercise all authority with respect to such
employees and
representatives and in no event will such employees and
representatives be
deemed to be employees or agents of Buyer. All persons employed by
Seller in the
performance of the obligations of Seller hereunder shall be the
sole
responsibility of Seller and the Buyer shall have no obligation or
responsibility with respect thereto.
(b) Seller will have the right to shut down temporarily
for
maintenance purposes the operation of the facilities providing any
Service
whenever in its judgment, reasonably exercised, such action is
necessary. In the
event maintenance is nonscheduled, Seller shall notify Buyer as
much in advance
as reasonably practicable that maintenance is required. Unless not
feasible
under the circumstances, this notice will be given in writing.
Where written
notice is not feasible, Seller shall give prompt oral notice, which
notice will
be promptly confirmed in writing by Seller and Buyer. Seller will
be relieved of
its obligations to provide Services during the period that its
facilities are so
shut down but shall use reasonable efforts to minimize each period
of shutdown
for such purpose and to schedule such shutdown so as not to
inconvenience or
disrupt the conduct of the Business by Buyer.
SECTION 3.2. Payment. Statements will be rendered each
month by Seller
to Buyer for Services delivered during the preceding month. Each
such statement
will set forth in reasonable detail a description of such Services
and the
amounts charged therefor and will be payable thirty (30) days
following the
receipt by Buyer of such bill. Any amount not paid within such
period, unless
such amount is being challenged in good faith, will be subject to
late charges
for each month or portion thereof the statement is overdue,
calculated as the
lesser of (a) the then
3
current "Prime Rate" as reported by The Wall Street Journal in its
column
entitled "Money Rates," plus 3%, and (b) the maximum rate allowed
by applicable
law.
SECTION 3.3. Disclaimer of Warranty. EXCEPT AS EXPRESSLY
SET FORTH IN
THIS AGREEMENT OR IN THE SCHEDULES, THE SERVICES TO BE PURCHASED
UNDER THIS
AGREEMENT ARE FURNISHED WITHOUT WARRANTY OF ANY KIND, EXPRESS OR
IMPLI
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