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 Xxxx 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
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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
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Section 2.01. Provision of Services.
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(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.
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(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.
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(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
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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
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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 permit the use of the Services by any person other than in
connection with the conduct of the Receiving Party's operations as conducted on
the date hereof.
ARTICLE IV
Term of Services
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The provision of Services shall commence on the Closing Date
and shall terminate no later than the date indicated for each such Service on
the applicable Schedule; provided, however, that any Service may be cancelled or
reduced in amount or any portion thereof by the Receiving Party upon 30 days'
written notice thereof (or such other notice period if one is set forth for such
Service on the applicable Schedule) subject to the requirement that the
Receiving Party pay to the Service Provider the actual out-of-pocket costs
incurred by the Service Provider, as well as the actual incremental internal
costs incurred by the Service Providers, in each case directly resulting from
such cancellation, which out-of-pocket and internal costs shall be set forth in
a written statement provided by the Service Provider to the Receiving Party.
ARTICLE V
Force Majeure
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The Service Providers shall not be liable for any expense,
loss or damage whatsoever arising out of any interruption of Service or delay or
failure to perform under this Services Agreement that is due to acts of God,
acts of a public enemy, acts of terrorism, acts of a nation or any state,
territory, province or other political division thereof, changes in applicable
law, fires, floods, epidemics, riots, theft, quarantine restrictions, freight
embargoes or other similar causes beyond the reasonable control of the Service
Providers. In any such event, the Service Providers' obligations hereunder shall
be postponed for such time as its performance is suspended or delayed on account
thereof. Each Service Provider will promptly notify the recipient of the
Service, either orally or in writing, upon learning of the occurrence of such
event of force majeure. Upon the cessation of the force majeure event, such
Service Provider will use commercially reasonable efforts to resume, or to cause
any other relevant Service Provider to resume, its performance with the least
practicable delay (provided that, at the election of the
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applicable Receiving Party, the applicable term for such suspended Services
shall be extended by the length of the force majeure event).
ARTICLE VI
Liabilities
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Section 6.01. Consequential and Other Damages. None of the
Service Providers shall be liable to the Receiving Party with respect to this
Services Agreement, whether in contract, tort (including negligence and strict
liability) or otherwise, for any special, indirect, incidental or consequential
damages whatsoever (except, in each case, to the extent any amount is paid to
third parties by a Receiving Party or its Affiliates) which in any way arise out
of, relate to or are a consequence of, the performance or nonperformance by it
hereunder or the provision of, or failure to provide, any Service hereunder,
including with respect to loss of profits, business interruptions or claims of
customers (except, in each case, to the extent any amount is paid to third
parties by a Receiving Party or its Affiliates).
Section 6.02. Limitation of Liability. Subject to Section 6.03
hereof, the liability of any Service Provider with respect to this Services
Agreement or any act or failure to act in connection herewith (including, but
not limited to, the performance or breach hereof), or from the sale, delivery,
provision or use of any Service provided under or covered by this Services
Agreement, whether in contract, tort (including negligence and strict liability)
or otherwise, shall not exceed the fees previously paid to such Service Provider
under this Services Agreement.
Section 6.03. Obligation To Reperform. In the event of any
breach of this Services Agreement by any Service Provider with respect to any
error, defect or breach (which breach Service Provider can reasonably be
expected to reperform in a commercially reasonable manner) in the provision of
any Service, the Service Provider shall correct in all material respects such
error, defect or breach or reperform in all material respects such Service at
the request of the Receiving Party and at the expense of the Service Provider.
Section 6.04. Release and Indemnity. Except as otherwise
provided in this Agreement (including the limitation of liability provisions in
this Article VI), each party shall indemnify, defend and hold harmless the other
party from and against any Losses arising out of or related to: (i) any breach
by the indemnifying party of a representation, warranty or covenant contained
herein; or (ii) the gross negligence or willful misconduct or omissions of the
indemnifying party or its Affiliates, employees, agents, or contractors
(including with respect to the performance or nonperformance of any Service
hereunder).
ARTICLE VII
Termination
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Section 7.01. Termination. Notwithstanding anything herein to
the contrary, this Services Agreement shall terminate, and the obligation of the
Service Providers to provide or cause to be provided any Service shall cease, on
the earliest to occur of (i) the last date indicated for the termination of any
Service on the Schedules, as the case may be, (ii) the date on which
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the provision of all Services has been canceled pursuant to Article IV hereof,
or (iii) the date on which this Services Agreement is terminated by Purchaser or
Seller, as the case may be, in accordance with the terms of Section 7.02 hereof;
provided that, in each case, no such termination shall relieve any Party of any
liability for any breach of any provision of this Services Agreement prior to
the date of such termination.
Section 7.02. Breach of Services Agreement. Subject to Article
VI hereof, if a Party shall cause or suffer to exist any material breach of any
of its obligations under this Services Agreement, including any failure to make
payments when due, and that Party does not cure such default in all material
respects within 30 days after receiving written notice thereof from the
nonbreaching Party, the nonbreaching Party may terminate this Services
Agreement, including the provision of Services pursuant hereto, immediately by
providing written notice of termination.
Section 7.03. Sums Due. In the event of a termination of this
Services Agreement, the Service Providers shall be entitled to the immediate
payment of, and the Purchaser shall within three Business Days, pay to the
Service Providers, all accrued amounts for Services, Taxes and other amounts due
under this Services Agreement as of the date of termination.
Section 7.04. Effect of Termination. Sections 3.02, 7,01,
7.03, 8.02, 8.10, 8.11, 8.12 and 8.13 hereof, this Section 7.04 and Article VI
hereof shall survive any termination of this Services Agreement.
ARTICLE VIII
Miscellaneous
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Section 8.01. Assignment. Except as contemplated by the
applicable Schedule, no Party may assign its rights or obligations under this
Services Agreement without the prior written consent of the other Party (except
to its Subsidiaries). This Services Agreement shall bind and inure to the
benefit of and be enforceable by Purchaser and Seller and their respective
successors and assigns; provided, however, that a Service Provider that is a
Party may assign all or any part of its rights (but not its obligations) under
this Services Agreement. Any purported assignment or transfer in violation of
this Section 8.01 shall be null and void and of no effect.
Section 8.02. Binding Effect; No Third-Party Beneficiaries; No
Assignment . Except as provided in Section 6.04 hereof, this Services Agreement
is for the sole benefit of the Parties and their permitted successors and
assigns, and nothing herein expressed or implied shall give or be construed to
give to any person, other than the Parties and their permitted successors and
assigns, any legal or equitable rights hereunder, whether as third-party
beneficiaries or otherwise, except for the Service Providers. This Services
Agreement shall be legally binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Nothing herein shall create
or be deemed to create any third-party beneficiary rights in any Person not a
party hereto. Except as contemplated by the applicable Schedule, no assignment
hereof or of any rights or obligations hereunder may be made by any party hereto
(by operation of law or otherwise) without the prior written consent of the
other party hereto and any attempted
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assignment without such required consent shall be without effect; provided that
Purchaser may assign its rights and obligations hereunder (including the right
to acquire any asset and/or the obligation to pay all or part of the
consideration and to assume any Liability pursuant to Articles I and II) to any
wholly owned Subsidiary without the prior written consent of the other party
hereto; provided, further, that no such assignment by Purchaser shall relieve
Purchaser of any of its obligations hereunder.
Section 8.03. Amendments. This Services Agreement may be
amended, supplemented or modified, and any provision hereof may be waived, only
pursuant to a written instrument making specific reference hereto signed by each
of the parties hereto.
Section 8.04. Waivers. The rights and remedies of the Parties
hereunder are cumulative and are not exclusive of any rights or remedies which
they would otherwise have hereunder. No provision of this Services Agreement may
be waived except pursuant to a writing executed by the waiving Party. The
parties may, in their sole discretion, (a) extend the time for the performance
of any of the obligations or other acts of the parties, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto or (c) waive compliance with any of the
agreements or conditions contained herein, to the extent permitted by applicable
Law. Any agreement on the part of a Party to any such extension or waiver will
be valid only if set forth in a writing signed on behalf of such party. No
waiver by any party of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any such
prior or subsequent occurrence.
Section 8.05. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given when delivered
personally or by overnight mail or to the extent receipt is confirmed, facsimile
or other electronic transmission service, or five calendar days after being
mailed by registered mail, return receipt requested, to a party at the following
address (or to such other address as such party may have specified by notice
given to the other parties pursuant to this Section 8.05):
If to Seller, to:
Xxxx Corporation
X.X. Xxx 0000
Xxxxxx, Xxxx 00000-0000
Attn: Xxxxxxx X. XxXxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
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Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxx X. Xxxxxxxx and Xxxxx X. Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Purchaser, to:
Affinia Group Inc.
c/o The Cypress Group L.L.C.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Section 8.06. Exhibits and Schedules; Interpretation. The
headings contained in this Services Agreement or in any Schedule or Annex hereto
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Services Agreement. All Schedules and Annexes annexed
hereto or referred to herein are hereby incorporated in and made a part of this
Services Agreement as if set forth in full herein. Any capitalized terms used in
any Schedule or Annex but not otherwise defined therein, shall have the meaning
as defined in this Services Agreement. When a reference is made in this Services
Agreement to an Article, Section, Schedule or Annex, such reference shall be to
an Article or Section of, or a Schedule or Annex to, this Services Agreement
unless otherwise indicated. For all purposes hereof, the terms "include" and
"including" shall be deemed followed by the words "without limitation". The
words "hereof", "herein" and "hereunder" and words of similar import when used
in this Services Agreement shall refer to this Services Agreement as a whole and
not to any particular provision of this Services Agreement. No provision of this
Services Agreement shall be interpreted or construed against any Party hereto
solely because such Party or its legal representative drafted such provision.
Section 8.07. Counterparts. This Services Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
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Section 8.08. Entire Agreement. Notwithstanding Section 15.2
of the Purchase Agreement, this Agreement, including the Schedules hereto, is
intended, together with the Purchase Agreement and the Schedules, Exhibits and
other agreements referenced therein and the Confidentiality Agreement, to
contain, and be, a complete statement of all of the terms and the arrangements
between the parties hereto with respect to the matters provided for herein, and
supersede any previous agreements and understandings between the parties hereto
with respect to those matters. This Services Agreement, including the Schedules
hereto, constitutes the entire agreement and understanding between the Parties
with respect to the subject matter hereof and supersedes all prior agreements
and understandings and negotiations, both written and oral, between the Parties
with respect to the subject matter of this Services Agreement. No
representation, inducement, promise, understanding, condition or warranty not
set forth herein has been made or relied upon by any Party hereto.
Section 8.09. Severability. If any term or other provision of
this Services Agreement or the application of any such provision to any person
or circumstance shall be held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other term
or provision hereof.
Section 8.10. Consent To Jurisdiction. Each Party irrevocably
submits to the exclusive jurisdiction of (i) the Supreme Court of the State of
New York, New York County, and (ii) the United States District Court for the
Southern District of New York, for the purposes of any action, suit or other
proceeding arising out of this Services Agreement or any transaction
contemplated hereby (and each agrees that no such action, suit or proceeding
relating to this Services Agreement shall be brought by it or any of its
Subsidiaries except in such courts). Each Party further agrees that service of
any process, summons, notice or document by U.S. registered mail to such
person's respective address set forth above shall be effective service of
process for any action, suit or proceeding in New York with respect to any
matters to which it has submitted to jurisdiction as set forth above in the
immediately preceding sentence. Each Party irrevocably and unconditionally
waives (and agrees not to plead or claim) any objection to the laying of venue
of any action, suit or proceeding arising out of this Services Agreement or the
transactions contemplated hereby in (i) the Supreme Court of the State of New
York, New York County or (ii) the United States District Court for the Southern
District of New York or that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
Section 8.11. Governing Law. This Services Agreement shall be
governed IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, by THE
laws of the State of New York applicable to CONTRACTS EXECUTED and to be
performed entirely within such State WITHOUT GIVING EFFECT TO THE CHOICE OF LAW
PRINCIPLES OF SUCH STATE WHICH WOULD RESULT IN THE APPLICATION OF THE LAWS OF
ANY OTHER STATE.
Section 8.12. Waiver of Jury Trial. Each Party hereby waives,
and agrees to cause each of its Subsidiaries to waive, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in respect
of any litigation directly or indirectly arising out of, under or in connection
with this Services Agreement. Each Party (i) certifies that no representatives
of any other Party has represented, expressly or otherwise, that such other
Party
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would not, in the event of litigation, seek to enforce the foregoing waiver and
(ii) acknowledges that it and the other Party have been induced to enter into
this Services Agreement by, among other things, the mutual waivers and
certifications in this Section 8.12.
Section 8.13. Confidentiality; Title to Data. (a) Each of the
Parties agrees that any confidential information of the other Party received in
the course of performance under this Services Agreement shall be kept
confidential by the Parties and shall be maintained by each Party and its
Affiliates in confidence, using the same degree of care to preserve the
confidentiality of such information that the Party to whom such confidential
information is disclosed would use to preserve the confidentiality of its own
information of a similar nature, except that any Service Provider may, for the
purpose of providing Services pursuant to this Services Agreement, disclose such
information to any other Service Provider; provided that any such other Service
Provider shall have agreed to be bound by this Section 8.13; and either Party
may disclose such information to the extent reasonably necessary in connection
with the enforcement of this Services Agreement or as required by law or legal
process, including any tax audit or litigation (provided that, prior to such
disclosure, (x) such Party shall provide the other Party with reasonable advance
written notice of such requirement so that the other Party may seek a protective
order or other appropriate remedy prior to disclosure and (y) such Party shall
not oppose any action (and will, if and to the extent requested, cooperate with,
assist and join with the other Party in any reasonable action) by the other
Party to obtain an appropriate protective order or other reliable assurance that
strict confidential treatment will be accorded the confidential information).
The obligations under this Section 8.13 shall not apply to (i) information that
is already in the possession of the disclosing Party, provided that such
information is not known by the disclosing Party to be subject to another
confidentiality agreement with or other obligation of secrecy to the other Party
or another party, (ii) information that becomes generally available to the
public other than as a result of a disclosure, directly or indirectly, by the
disclosing Party or its Affiliates, (iii) information that becomes available to
a party on a non-confidential basis from a source other than the other Party,
provided that such source is not known by such party to be bound by a
confidentiality agreement with or other obligation of secrecy to the other
Party.
(b) Subject to the Purchase Agreement, Purchaser
acknowledges that it will acquire no right, title or interest (including any
license rights or rights of use) in any firmware or software, and the licenses
therefor which are owned by any Service Provider, by reason of the provision of
the Services provided hereunder.
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IN WITNESS WHEREOF, the Parties have executed this Services
Agreement as of the date first written above.
XXXX CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title:
AFFINIA GROUP INC.
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Financial Officer and Treasurer
[Signature Page to Transition Services Agreement]
