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EXHIBIT 10.17
TRANSITION SERVICES AGREEMENT
TRANSITION SERVICES AGREEMENT, dated as of August 20, 1998
(this "Agreement"), between EVENFLO & SPALDING HOLDINGS CORPORATION, a Delaware
corporation ("E&S") and EVENFLO COMPANY, INC., a Delaware corporation
("Evenflo").
1. Transition Services. (a) During the six month period (or
such other period set forth on Annex A hereto or otherwise agreed upon by the
parties) commencing on the effective date set forth in Section 10 (the
"Transition Period"), E&S agrees to provide, or to cause its relevant affiliates
to provide, to Evenflo the financial systems/accounting services set forth on
Annex A attached hereto (such financial systems/accounting services are
collectively referred to herein as "Services"). The quality and relative level
of each Service to be provided hereunder shall be the same as E&S and such
affiliates have provided to Evenflo at comparable times and periods during the
year preceding the date hereof. Evenflo agrees to pay E&S the amounts specified
in the cost schedule set forth on Annex A attached hereto in respect of the
provision of the respective Services. Evenflo shall reimburse E&S and its
affiliates in accordance with Section 3 hereof for all cash disbursements made
by E&S or any of its affiliates relating to payments for payroll and accounts
payable made by E&S or any such affiliate for Evenflo's account.
(b) Notwithstanding anything to the contrary contained herein,
E&S and Evenflo agree that E&S and its affiliates shall not be obligated
hereunder to provide any marketing, sales or distribution-related services to
Evenflo.
2. Billing and Payment. Evenflo agrees promptly to pay any
bills and invoices that it receives from E&S or its affiliates for Services
provided under this Agreement, subject to receiving such appropriate support
documentation for such bills and invoices as may be reasonably requested by
Evenflo. Such charges shall be billed as of the end of each calendar month.
3. Cash Disbursements. Evenflo agrees to establish promptly
after the date hereof procedures relating to the timely settlement of cash
disbursements made by E&S and its affiliates relating to payments for payroll
and accounts payable made by E&S or any of its affiliates for Evenflo's account.
E&S and Evenflo agree that such disbursements will be settled weekly and mode of
payment will be via wire transfer in immediately available funds to an account
in the United States designated by E&S.
4. Validity of Documents. The parties hereto 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 forged.
5. Termination. Any or all of the services to be provided by
E&S or its relevant affiliates hereunder may be terminated by Evenflo prior to
the expiration of the
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Transition Period only on ten (10) days prior written notice to E&S, provided
that the payroll Services to be provided by E&S and its affiliates hereunder may
be terminated prior to the expiration of the Transition Period only on thirty
(30) days prior written notice to E&S.
7. Independent Contractors. In providing Services hereunder,
E&S and each relevant affiliate of E&S shall act solely as an independent
contractor. Nothing herein shall constitute or be construed to be or create a
partnership, joint venture or principal/agent relationship between E&S or any of
its affiliates and Evenflo. All persons employed by E&S or its affiliates in the
performance of the obligations of E&S hereunder shall be the sole responsibility
of E&S and its affiliates and Evenflo shall have no obligation or responsibility
with respect thereto.
8. Indemnification. Evenflo agrees to hold harmless and
indemnify E&S and its affiliates from and against all losses, claims, damages,
liabilities and expenses (including, but not limited to, any and all reasonable
expenses incurred in investigating, preparing or defending against any
litigation or proceeding, commenced or threatened, or any claim whatsoever
whether or not resulting in any liability) in connection with E&S's or any such
affiliate's provision of Services to Evenflo hereunder, unless such loss, claim,
damage, liability or expense results from the gross negligence or willful
misconduct of E&S or any of its affiliates or their respective employees or
agents. E&S agrees to hold harmless and indemnify Evenflo and its affiliates
from and against all losses, claims, damages, liabilities and expenses
(including, but not limited to, any and all reasonable expenses incurred in
investigating, preparing or defending against any litigation or proceeding,
commenced or threatened, or any claim whatsoever whether or not resulting in any
liability) in connection with Evenflo's or any such affiliate's provision of
Services to E&S hereunder, unless such loss, claim, damage, liability or expense
results from the gross negligence or willful misconduct of Evenflo or any of its
affiliates or their respective employees or agents.
9. Confidentiality. E&S shall, and shall cause each of its
affiliates to, hold all information relating to Evenflo obtained by E&S or any
such affiliate in connection with its performance of Services hereunder
confidential and not disclose any of such information to any party for a period
of three (3) years from the expiration of this Agreement except for disclosures
required by legal process or proceedings, as to which disclosures E&S shall
provide Evenflo with notice promptly after E&S becomes aware that such a
disclosure is required and prior to making such disclosure and except for
disclosures in connection with legal process or proceedings between Evenflo and
E&S relating to this Agreement.
10. Effective Date. This Agreement shall become effective upon
the closing of the Restructuring.
11. Books and Records. All books, records and accounts
maintained by E&S or its affiliates for Evenflo hereunder shall at all times be
the exclusive property of Evenflo, and neither E&S nor any of its affiliates
shall have any right, title nor interest therein. Evenflo shall be permitted to
inspect any such books, records and accounts at any reasonable time during
regular business hours and shall be entitled to such access as Evenflo
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shall reasonably request to the representatives, officers and employees of E&S
and its affiliates who are involved in the provision of Services hereunder. Upon
termination of the provision of any or all Services by E&S under this Agreement
all books, records, and accounts relating to the terminated Services shall
promptly be delivered to Evenflo at its address set forth below.
12. Miscellaneous. (a) Notices. All orders, notices, requests,
demands, waivers and other communications required or permitted to be given
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered personally or mailed, certified or registered mail with
postage prepaid, as follows:
(i) If to E&S, to it at:
Evenflo & Spalding Holdings Corporation
c/o Spalding & Evenflo Companies, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: General Counsel
(ii) If to Evenflo, to it at:
Evenflo Company, Inc.
Northwoods Business Center II
000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx Xxxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
or to such other person or address as either party shall specify by notice in
writing to the other party. All such notices, requests, demands, waivers and
communications shall be deemed to have been received on the date of personal
delivery or on the third business day after the mailing thereof.
(b) Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between or among either of the parties with respect to the subject matter
hereof.
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(c) Binding Effect; Benefit. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns. Nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties hereto or their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
(d) Assignability. This Agreement shall not be assigned by
either of the parties hereto without the prior written consent of the other
party.
(e) Amendment and Modification; Waiver. Subject to applicable
law, this Agreement may be amended, modified and supplemented by written
instrument authorized and executed by E&S and Evenflo at any time prior to the
termination hereof with respect to any of the terms contained herein. No waiver
by any party of any of the provisions hereof shall be effective unless
explicitly set forth in writing and executed by the party so waiving. The waiver
by either party hereto of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any other or subsequent breach.
(f) Section Headings. The section headings contained in this
Agreement are inserted for reference purposes only and shall not affect the
meaning or interpretation of this Agreement.
(g) Severability. If any provision of this Agreement is
declared by a court of competent jurisdiction to be illegal, void or
unenforceable, all other provisions of this Agreement shall remain in full force
and effect.
(h) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, and all of which shall be
deemed to be one and the same agreement.
(i) Applicable Law. This Agreement and the legal relations
between the parties shall be governed by and construed in accordance with the
laws of the State of New York.
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IN WITNESS WHEREOF, the parties have signed this Agreement on
the date first set forth above.
EVENFLO & SPALDING HOLDINGS CORPORATION
By:___________________________
EVENFLO COMPANY, INC.
By:___________________________
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ANNEX A
E&S will continue to provide, or cause its affiliates to
continue to provide, as the case may be, the following financial
systems/accounting services at the monthly costs set forth below in accordance
with the terms of the Transition Services Agreement to which this Annex A is
attached:
FINANCIAL SYSTEM/ACCOUNTING SERVICES MONTHLY COST
[to come] [to come]
