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EXHIBIT 10.6
MASTER TRANSITIONAL SERVICES AGREEMENT
BETWEEN
MERCURY AIR GROUP, INC.
AND
MERCFUEL, INC.
2
TABLE OF CONTENTS
PAGE
----
ARTICLE 1 - DEFINITIONS......................................................................1
Section 1.1 Additional Services....................................................1
Section 1.2 Ancillary Agreements...................................................1
Section 1.3 Distribution Date......................................................1
Section 1.4 Impracticable..........................................................1
Section 1.5 Master Confidential Disclosure Agreement...............................1
Section 1.6 Master Separation and Distribution Agreement...........................1
Section 1.7 Separation Date........................................................1
Section 1.8 Service(s).............................................................1
Section 1.9 Subsidiary.............................................................1
ARTICLE 2 - TRANSITION SERVICE SCHEDULES.....................................................2
ARTICLE 3 - SERVICES.........................................................................2
Section 3.1 Services Generally.....................................................2
Section 3.2 Service Boundaries.....................................................2
Section 3.3 Impracticability.......................................................2
Section 3.4 Additional Resources...................................................3
Section 3.5 Additional Services....................................................3
Section 3.6 Obligations as to Additional Services..................................3
ARTICLE 4 - TERM.............................................................................3
ARTICLE 5 - COMPENSATION.....................................................................4
Section 5.1 Charges for Services...................................................4
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Section 5.2 Payment Terms..........................................................4
Section 5.3 Pricing and Adjustments................................................4
ARTICLE 6 - GENERAL OBLIGATIONS; STANDARD OF CARE............................................4
Section 6.1 Performance Metrics; MAG...............................................4
Section 6.2 Disclaimer of Warranties...............................................4
Section 6.3 Performance Metrics; MercFuel..........................................4
Section 6.4 Transitional Nature of Services; Changes...............................5
Section 6.5 Responsibility for Errors; Delays......................................5
Section 6.6 Good Faith Cooperation; Consents.......................................5
Section 6.7 Alternatives...........................................................5
ARTICLE 7 - TERMINATION......................................................................6
Section 7.1 Termination............................................................6
Section 7.2 Survival...............................................................6
Section 7.3 User IDs, Passwords....................................................6
ARTICLE 8 - RELATIONSHIP BETWEEN THE PARTIES.................................................6
ARTICLE 9 - SUBCONTRACTORS...................................................................6
ARTICLE 10 - INTELLECTUAL PROPERTY...........................................................7
Section 10.1 Allocation of Rights by Ancillary Agreements...........................7
Section 10.2 Existing Ownership Rights Unaffected...................................7
ARTICLE 11 - [Intentionally Omitted].........................................................7
ARTICLE 12 - INFRINGEMENT DEFENSE............................................................7
ARTICLE 13 - CONFIDENTIALITY.................................................................7
ARTICLE 14 - LIMITATION OF LIABILITY.........................................................7
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ARTICLE 15 - FORCE MAJEURE...................................................................8
ARTICLE 16 - DISPUTE RESOLUTION..............................................................8
Section 16.1 Mediation..............................................................8
Section 16.2 Arbitration............................................................8
Section 16.3 Court Action...........................................................9
Section 16.4 Continuity of Service and Performance..................................9
ARTICLE 17 - MISCELLANEOUS...................................................................9
Section 17.1 Entire Agreement.......................................................9
Section 17.2 Governing Law..........................................................9
Section 17.3 Descriptive Headings...................................................9
Section 17.4 Notices................................................................9
Section 17.5 Nonassignability......................................................10
Section 17.6 Severability..........................................................10
Section 17.7 Failure or Indulgence not Waiver; Remedies Cumulative.................10
Section 17.8 Amendment.............................................................11
TRANSITIONS SERVICE SCHEDULE #1 TO MASTER
TRANSITIONAL SERVICES AGREEMENT.............................................................12
TRANSITIONS SERVICE SCHEDULE #2 TO MASTER
TRANSITIONAL SERVICES AGREEMENT.............................................................14
TRANSITIONS SERVICE SCHEDULE #3 TO MASTER
TRANSITIONAL SERVICES AGREEMENT.............................................................16
TRANSITIONS SERVICE SCHEDULE #4 TO MASTER
TRANSITIONAL SERVICES AGREEMENT.............................................................18
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MASTER TRANSITIONAL SERVICES AGREEMENT
This Master Transitional Services Agreement (the "Agreement") is entered
into as of __________ and effective as of __________ (the "Effective Date"),
between Mercury Air Group, Inc., a Delaware corporation ("MAG"), having an
office at 5456 McConnell Avenue, Los Angeles, California 90066 and MercFuel,
Inc., a Delaware corporation ("MercFuel"), having an office at 5456 McConnell
Avenue, Los Angeles, California 90066.
ARTICLE 1
DEFINITIONS
For the purpose of this Agreement, the following capitalized terms shall
have the following meanings:
Section 1.1 Additional Services. Additional Services shall have the
meaning set forth in Section 3.5.
Section 1.2 Ancillary Agreements. Ancillary Agreements shall have the
meaning set forth in the Master Distribution Agreement.
Section 1.3 Distribution Date. Distribution Date shall have the meaning
set forth in the Master Distribution Agreement.
Section 1.4 Impracticable. Impracticable shall have the meaning set
forth in Section 3.3.
Section 1.5 Master Confidential Disclosure Agreement. Master
Confidential Disclosure Agreement shall mean that certain Master Confidential
Disclosure Agreement between MAG and MercFuel.
Section 1.6 Master Distribution Agreement. Master Distribution Agreement
shall mean that certain Master Distribution Agreement made by and between MAG
and MercFuel.
Section 1.7 Separation Date. Unless otherwise provided in this
Agreement, or in any agreement to be executed in connection with this Agreement,
the effective time and date of each transfer of property, assumption of
liability, license, undertaking, or agreement in connection with the Separation
was 12:01 a.m., Pacific Time, January 1, 2001 (the "Separation Date").
Section 1.8 Service(s). Service(s) shall have the meaning set forth in
Section 3.1.
Section 1.9 Subsidiary. Subsidiary of any Person means a corporation or
other organization whether incorporated or unincorporated of which at least a
majority of the securities or interests having by the terms thereof ordinary
voting power to elect at least a majority of the board of directors or others
performing similar functions with respect to such corporation or other
organization is directly or indirectly owned or controlled by such Person or by
any one or
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more of its Subsidiaries, or by such Person and one or more of its Subsidiaries;
provided, however, that no Person that is not directly or indirectly
wholly-owned by any other Person shall be a Subsidiary of such other Person
unless such other Person controls, or has the right, power or ability to
control, that Person. For purposes of this Agreement, MercFuel shall be deemed
not to be a subsidiary of MAG.
ARTICLE 2
TRANSITION SERVICE SCHEDULES
This Agreement will govern individual transitional services as requested
by MercFuel and provided by MAG, the details of which are set forth in the
Transition Service Schedules attached to this Agreement. Each Service shall be
covered by this Agreement upon execution of a transition service schedule in the
form attached hereto (a "Transition Service Schedule").
For each Service, the parties shall set forth, among other things, the
time period during which the Service will be provided if different from the term
of this Agreement determined pursuant to Article 4 hereof, a summary of the
Service to be provided; a description of the Service; and the estimated charge,
if any, for the Service and any other terms applicable thereto on the Transition
Service Schedule. Obligations regarding each Transition Service Schedule shall
be effective upon execution of this Agreement. This Agreement and all the
Transition Service Schedules shall be defined as the "Agreement" and
incorporated herein wherever reference to it is made.
ARTICLE 3
SERVICES
Section 3.1 Services Generally. Except as otherwise provided herein, for
the term determined pursuant to Article 4 hereof, MAG shall provide or cause to
be provided to MercFuel the service(s) described in the Transition Service
Schedule(s) attached hereto. The service(s) described on a single Transition
Service Schedule shall be referred to herein as a "Service". Collectively, the
services described on all the Transition Service Schedules (including Additional
Services) shall be referred to herein as "Services."
Section 3.2 Service Boundaries. Except as provided in a Transition
Service Schedule for a specific Service: (i) MAG shall be required to provide
the Services only to the extent and only at the locations such Services are
being provided by MAG for MercFuel immediately prior to the Effective Date; and
(ii) the Services will be available only for purposes of conducting the business
of MercFuel substantially in the manner it was conducted prior to the Effective
Date.
Section 3.3 Impracticability. MAG shall not be required to provide any
Service to the extent the performance of such Service becomes "Impracticable" as
a result of a cause or causes outside the reasonable control of MAG including
unfeasible technological requirements, or to the extent the performance of such
Services would require MAG to violate any applicable laws, rules or regulations
or would result in the breach of any software license or other applicable
contract.
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Section 3.4 Additional Resources. Except as provided in a Transition
Service Schedule for a specific Service, in providing the Services, MAG shall
not be obligated to: (i) hire any additional employees; (ii) maintain the
employment of any specific employee; (iii) purchase, lease or license any
additional equipment or software; or (iv) pay any costs related to the transfer
or conversion of MercFuel's data to MercFuel or any alternate supplier of
Services.
Section 3.5 Additional Services. From time to time after the Effective
Date, the parties may identify additional services that one party will provide
to the other party in accordance with the terms of this Agreement (the
"Additional Services"). Accordingly, the parties shall execute additional
Transition Service Schedules for such Additional Services pursuant to Article 2.
Except as set forth in Section 3.6, the parties may agree in writing on
Additional Services during the term of this Agreement.
Section 3.6 Obligations as to Additional Services. Except as set forth
in the next sentence, MAG shall be obligated to perform, without any additional
charge, any Additional Service that: (i) was provided by MAG immediately prior
to the Separation Date and that MercFuel reasonably believes was inadvertently
or unintentionally omitted from the list of Services, or (ii) is essential to
effectuate an orderly transition under the Master Distribution Agreement unless
such performance would significantly disrupt MAG's operations or materially
increase the scope of its responsibility under this Agreement. If MAG reasonably
believes the performance of Additional Services required under subparagraphs (i)
or (ii) would significantly disrupt its operations or materially increase the
scope of its responsibility under this Agreement, MAG and MercFuel shall
negotiate in good faith to establish terms under which MAG can provide such
Additional Services, but MAG shall not be obligated to provide such Additional
Services if, following good faith negotiation, it is unable to reach agreement
on such terms.
ARTICLE 4
TERM
The term of this Agreement shall commence on the Effective Date (also
referred to as the "Effective Date") and shall remain in effect until one (1)
year after the Effective Date (the "Expiration Date"), unless earlier terminated
under Article 7. This Agreement may be extended by the parties in writing,
either in whole or with respect to one or more of the Services; provided,
however, that such extension shall only apply to the Services for which the
Agreement was extended. The parties shall be deemed to have extended this
Agreement with respect to a specific Service if the Transition Service Schedule
for such Service specifies a completion date beyond the aforementioned
Expiration Date. The parties may agree on an earlier expiration date respecting
a specific Service by specifying such date on the Transition Service Schedule
for that Service. Services shall be provided up to and including the date set
forth in the applicable Transition Service Schedule, subject to earlier
termination as provided herein.
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ARTICLE 5
COMPENSATION
Section 5.1 Charges for Services. MercFuel shall pay MAG an amount equal
to $70,000 per month for the Services as adjusted, from time to time, in
accordance with the processes and procedures established under Section 5.3. If
the term of this Agreement is extended beyond the Expiration Date as provided in
Article 4, MercFuel will continue to reimburse MAG an amount equal to $70,000
per month.
Section 5.2 Payment Terms. MAG shall bill MercFuel monthly for all
charges pursuant to this Agreement. MercFuel shall pay MAG for all Services
provided hereunder within fifteen (15) days after receipt of an invoice
therefor. Late payments shall bear interest at the lesser of 12% or the maximum
rate allowed by law.
Section 5.3 Pricing and Adjustments. In the event of a tax audit
adjustment relating to the pricing of any or all Services provided pursuant to
this Agreement in which it is determined by a taxing authority that any of the
charges, individually or in combination, did not result in an arm's-length
payment, as determined under internationally accepted arm's-length standards,
then the parties, including any MAG subcontractor providing Services hereunder,
may agree to make corresponding adjustments to the charges in question for such
period to the extent necessary to achieve arm's-length pricing. Any adjustment
made pursuant to this Section 5.3 at any time during the term of this Agreement
or after termination of this Agreement and shall be reflected in the parties'
legal books and records, and the resulting underpayment or overpayment shall
create, respectively, an obligation to be paid in the manner specified in
Section 5.2, or shall create a credit against amounts owed under this Agreement.
ARTICLE 6
GENERAL OBLIGATIONS; STANDARD OF CARE
Section 6.1 Performance Metrics: MAG. Subject to Sections 3.4 and any
other terms and conditions of this Agreement, MAG shall maintain sufficient
resources to perform its obligations hereunder. Specific performance metrics for
MAG for a specific Service may be set forth in the corresponding Transition
Service Schedule. Where none is set forth, MAG shall use reasonable efforts to
provide Services in accordance with the policies, procedures and practices in
effect before the Effective Date and shall exercise the same care and skill as
it exercises in performing similar services for itself.
Section 6.2 Disclaimer of Warranties. MAG MAKES NO WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
SERVICES, SOFTWARE OR OTHER DELIVERABLES PROVIDED BY IT HEREUNDER.
Section 6.3 Performance Metrics: MercFuel. Specific performance metrics
for MercFuel for a specific Service may be set forth in the corresponding
Transition Service Schedule. Where none is set forth, MercFuel shall use
reasonable efforts, in connection with
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receiving Services, to follow the policies, procedures and practices in effect
before the Effective Date including providing information and documentation
sufficient for MAG to perform the Services as they were performed before the
Effective Date and making available, as reasonably requested by MAG, sufficient
resources and timely decisions, approvals and acceptances in order that MAG may
accomplish its obligations hereunder in a timely manner.
Section 6.4 Transitional Nature of Services; Changes. The parties
acknowledge the transitional nature of the Services and that MAG may make
changes from time to time in the manner of performing the Services if MAG is
making similar changes in performing similar services for itself.
Section 6.5 Responsibility for Errors; Delays. MAG's sole responsibility
to MercFuel:
(i) for errors or omissions in Services, shall be to furnish
correct information, payment and/or adjustment in the Services, at no
additional cost or expense to MercFuel; provided, however, that MercFuel
must promptly advise MAG of any such error or omission of which it
becomes aware after having used reasonable efforts to detect any such
errors or omissions in accordance with the standard of care set forth in
Section 6.1; and
(ii) for failure to deliver any Service because of
Impracticability, shall be to use reasonable efforts, subject to Section
3.3, to make the Services available and/or to resume performing the
Services as promptly as reasonably practicable.
Section 6.6 Good Faith Cooperation; Consents. The parties will use good
faith efforts to cooperate with each other in all matters relating to the
provision and receipt of Services. Such cooperation shall include exchanging
information, performing true-ups and adjustments, and obtaining all third party
consents, licenses, sublicenses or approvals necessary to permit each party to
perform its obligations hereunder (including by way of example, not by way of
limitation, rights to use third party software needed for the performance of
Services). The costs of obtaining such third party consents, licenses,
sublicenses or approvals shall be borne by MercFuel. The parties will cooperate
with each other in making such information available as needed in the event of a
tax audit, whether in the United States or any other country.
Section 6.7 Alternatives. If MAG reasonably believes it is unable to
provide any Service because of a failure to obtain necessary consents, licenses,
sublicenses or approvals pursuant to Section 6.6 or because of Impracticability,
the parties shall cooperate to determine the best alternative approach. Until
such alternative approach is found or the problem otherwise resolved to the
satisfaction of the parties, MAG shall use reasonable efforts, subject to
Sections 3.3 and Section 3.4, to continue providing the Service. To the extent
an agreed upon alternative approach requires payment above and beyond that which
is included in MAG's charge for the Service in question, the parties shall share
equally in making any such payment unless they otherwise agree in writing.
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ARTICLE 7
TERMINATION
Section 7.1 Termination. MercFuel may terminate this Agreement, either
with respect to all or with respect to any one or more of the Services provided
to MercFuel hereunder, for any reason or for no reason, at any time. In
addition, subject to the provisions of Article 16 below, either party may
terminate this Agreement with respect to a specific Service if the other party
materially breaches a material provision with regard to that particular Service
and does not cure such breach (or does not take reasonable steps required under
the circumstances to cure such breach going forward) within sixty (60) days
after being given notice of the breach; provided, however, that the
non-terminating party may request that the parties engage in a dispute
resolution negotiation as specified in Article 16 below prior to termination for
breach.
Section 7.2 Survival. Those Sections of this Agreement that, by their
nature, are intended to survive termination will survive in accordance with
their terms. Notwithstanding the foregoing, in the event of any termination with
respect to one or more, but less than all Services, this Agreement shall
continue in full force and effect with respect to any Services not terminated
hereby.
Section 7.3 User Ids; Passwords. The parties shall use good faith
efforts at the termination or expiration of this Agreement or any specific
Service hereto to ensure that all applicable user IDs and passwords, if any, are
cancelled.
ARTICLE 8
RELATIONSHIP BETWEEN THE PARTIES
The relationship between the parties established under this Agreement is
that of independent contractors and neither party is an employee, agent,
partner, or joint venturer of or with the other. MAG will be solely responsible
for any employment-related taxes, insurance premiums or other employment
benefits respecting its personnels' performance of Services under this
Agreement. MercFuel agrees to grant MAG personnel access to sites, systems and
information (subject to the provisions of confidentiality in Article 13 below)
as necessary for MAG to perform its obligations hereunder. MAG personnel agree
to obey any and all security regulations and other published policies of
MercFuel.
ARTICLE 9
SUBCONTRACTORS
MAG may engage a "Subcontractor" to perform all or any portion of MAG's
duties under this Agreement, provided that any such Subcontractor agrees in
writing to be bound by confidentiality obligations at least as protective as the
terms of Article 13 regarding confidentiality below, and provided further that
MAG remains responsible for the performance of such Subcontractor. As used in
this Agreement, "Subcontractor" will mean any individual, partnership,
corporation, firm, association, unincorporated organization, joint venture,
trust or other entity engaged to perform hereunder.
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ARTICLE 10
INTELLECTUAL PROPERTY
Section 10.1 Allocation of Rights by Ancillary Agreements. This
Agreement and the performance of this Agreement will not affect the ownership of
any copyrights or other intellectual property rights allocated in the Ancillary
Agreements.
Section 10.2 Existing Ownership Rights Unaffected. Neither party will
gain, by virtue of this Agreement, any rights of ownership of copyrights,
patents, trade secrets, trademarks or any other intellectual property rights
owned by the other.
ARTICLE 11
[Intentionally Omitted]
ARTICLE 12
INFRINGEMENT DEFENSE
Notwithstanding anything to the contrary in Article 13 below or the
Master Confidential Disclosure Agreement, to the extent MAG delivers or licenses
any intellectual property to MercFuel after the Separation Date in performance
of this Agreement, MAG agrees to defend MercFuel and its directors, officers,
employees and agents against any and all claims, actions or suits (any of the
foregoing, a "Claim") incurred by or asserted against MercFuel based upon
infringement of a third party patent or other intellectual property right.
MercFuel agrees to notify MAG promptly of any Claim and permit MAG at MAG's
expense to defend such Claim and will cooperate in the defense thereof. MAG
agrees to pay any awards or settlement amounts arising from a Claim. Neither MAG
nor MercFuel will enter into or permit any settlement of any such Claim without
the express written consent of the other party. MercFuel may, at its option and
expense, have its own counsel participate in any proceeding that is under the
direction of MAG and will cooperate with MAG and its insurer in the disposition
of any such matter.
ARTICLE 13
CONFIDENTIALITY
The terms of the Master Confidential Disclosure Agreement between the
parties shall apply to any Confidential Information (as defined therein) which
is the subject matter of this Agreement.
ARTICLE 14
LIMITATION OF LIABILITY
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOSS OF
DATA, LOSS OF USE, COST OF COVER, BUSINESS INTERRUPTION OR OTHER SPECIAL,
INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER
ANY THEORY OF LIABILITY, ARISING FROM THE PERFORMANCE OF, OR RELATING TO, THIS
AGREEMENT. THE FOREGOING LIMITATION WILL NOT LIMIT MAG'S OBLIGATIONS WITH
RESPECT
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TO PAYMENT OF DAMAGES OF ANY KIND INCLUDED IN AN AWARD OR SETTLEMENT OF A THIRD
PARTY CLAIM UNDER ANY INDEMNITY OR INFRINGEMENT DEFENSE PROVISIONS SPECIFIED
HEREIN.
ARTICLE 15
FORCE MAJEURE
Each party will be excused for any failure or delay in performing any of
its obligations under this Agreement, other than the obligations of MercFuel to
make certain payments to MAG pursuant to Article 5 hereof for services rendered,
if such failure or delay is caused by Force Majeure. "Force Majeure" means any
act of God or the public enemy, any accident, explosion, fire, storm,
earthquake, flood, or any other circumstance or event beyond the reasonable
control of the party relying upon such circumstance or event.
ARTICLE 16
DISPUTE RESOLUTION
Section 16.1 Mediation. If a dispute, controversy or claim ("Dispute")
arises between the parties relating to the interpretation or performance of this
Agreement or the Ancillary Agreements, or the grounds for the termination
hereof, appropriate senior executives of each party who shall have the authority
to resolve the matter shall meet to attempt in good faith to negotiate a
resolution of the Dispute prior to pursuing other available remedies. The
initial meeting between the appropriate senior executives shall be referred to
herein as the "Dispute Resolution Commencement Date". Discussions and
correspondence relating to trying to resolve such Dispute shall be treated as
confidential information developed for the purpose of settlement and shall be
exempt from discovery or production and shall not be admissible. If the senior
executives are unable to resolve the Dispute within thirty (30) days from the
Dispute Resolution Commencement Date, and either party wishes to pursue its
rights relating to such Dispute, then the Dispute will be mediated by a mutually
acceptable mediator within thirty (30) days after written notice by one party to
the other demanding non-binding mediation. Neither party may unreasonably
withhold consent to the selection of a mediator or the location of the
mediation. Both parties will share the costs of the mediation equally, except
that each party shall bear its own costs and expenses, including attorney's
fees, witness fees, travel expenses, and preparation costs. The parties may also
agree to replace mediation with some other form of non-binding or binding ADR.
Section 16.2 Arbitration. Any Dispute which the parties cannot resolve
through mediation within ninety (90) days of the Dispute Resolution Commencement
Date, unless otherwise mutually agreed, shall be submitted to final and binding
arbitration under the then current Commercial Arbitration Rules of the American
Arbitration Association ("AAA"), by three (3) arbitrators in Los Angeles County,
California. Such arbitrators shall be selected by the mutual agreement of the
parties or, failing such agreement, shall be selected according to the aforesaid
AAA rules. The arbitrators will be instructed to prepare and deliver a written,
reasoned opinion stating their decision within thirty (30) days of the
completion of the arbitration. The prevailing party in such arbitration shall be
entitled to expenses, including costs and reasonable attorneys' and other
professional fees, incurred in connection with the arbitration (but excluding
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any costs and fees associated with prior negotiation or mediation). The decision
of the arbitrator shall be final and non-appealable and may be enforced in any
court of competent jurisdiction. The use of any ADR procedures will not be
construed under the doctrine of laches, waiver or estoppel to adversely affect
the rights of either party.
Section 16.3 Court Action. Any Dispute regarding the following is not
required to be negotiated, mediated or arbitrated prior to seeking relief from a
court of competent jurisdiction: breach of any obligation of confidentiality;
infringement, misappropriation, or misuse of any intellectual property right;
any other claim where interim relief from the court is sought to prevent serious
and irreparable injury to one of the parties or to others.
Section 16.4 Continuity of Service and Performance. Unless otherwise
agreed in writing, the parties will continue to provide service and honor all
other commitments under this Agreement and each Ancillary Agreement during the
course of dispute resolution pursuant to the provisions of this Article 16 with
respect to all matters not subject to such dispute, controversy or claim.
ARTICLE 17
MISCELLANEOUS
Section 17.1 Entire Agreement. This Agreement, the Master Separation and
Distribution Agreement and the other Ancillary Agreements and the Exhibits and
Schedules referenced or attached hereto and thereto constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and shall supersede all prior written and oral and all contemporaneous
oral agreements and understandings with respect to the subject matter hereof and
thereof.
Section 17.2 Governing Law. This Agreement shall be construed in
accordance with and all Disputes hereunder shall be governed by the laws of the
State of California, excluding its conflict of law rules and the United Nations
Convention on Contracts for the International Sale of Goods. The Superior Court
of Los Angeles County and/or the United States District Court for the Central
District of California shall have jurisdiction and venue over all Disputes
between the parties that are permitted to be brought in a court of law pursuant
to Article 16 above.
Section 17.3 Descriptive Headings. The headings contained in this
Agreement, in any Exhibit or Schedule hereto and in the table of contents to
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. Any capitalized term used in
any Exhibit or Schedule but not otherwise defined therein, shall have the
meaning assigned to such term in this Agreement. When a reference is made in
this Agreement to an Article or a Section, Exhibit or Schedule, such reference
shall be to an Article or Section of, or an Exhibit or Schedule to, this
Agreement unless otherwise indicated.
Section 17.4 Notices. Notices, offers, requests, or other communications
required or permitted to be given by either party pursuant to the terms of this
Agreement shall be given in writing to the respective parties to the following
addresses:
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if to MAG: copy to:
Mercury Air Group, Inc. McBreen & Kopko
5456 McConnell Avenue 20 North Wacker Drive, Suite 2520
Los Angeles, CA 90066 Chicago, IL 60606
Attention: Chief Executive Officer Attention: Frederick H. Kopko, Jr.
Fax: (310) 827-0650 Fax: (312) 332-2657
if to MercFuel: copy to:
MercFuel, Inc. McBreen & Kopko
5456 McConnell Avenue 20 North Wacker Drive, Suite 2520
Los Angeles, CA 90066 Chicago, IL 60606
Attention: Chief Executive Officer Attention: Frederick H. Kopko, Jr.
Fax: (310) 827-0650 Fax: (312) 332-2657
or to such other address as the party to whom notice is given may have
previously furnished to the other in writing as provided herein. Any notice
involving non-performance, termination, or renewal shall be sent by hand
delivery, recognized overnight courier or, within the United States, may also be
sent via certified mail, return receipt requested. All other notices may also be
sent by fax, confirmed by first class mail. All notices shall be deemed to have
been given and received on the earlier of actual delivery or three (3) days from
the date of postmark.
Section 17.5 Nonassignability. Except as specifically permitted under
Article 10 above, neither party may, directly or indirectly, in whole or in
part, whether by operation of law or otherwise, assign or transfer this
Agreement, without the other party's prior written consent, and any attempted
assignment, transfer or delegation without such prior written consent shall be
voidable at the sole option of such other party. Notwithstanding the foregoing,
each party (or its permitted successive assignees or transferees hereunder) may
assign or transfer this Agreement as a whole without consent to an entity that
succeeds to all or substantially all of the business or assets of such party.
Without limiting the foregoing, this Agreement will be binding upon and inure to
the benefit of the parties and their permitted successors and assigns.
Section 17.6 Severability. If any term or other provision of this
Agreement is determined by a court, administrative agency or arbitrator to be
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement will nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the fullest extent possible.
Section 17.7 Failure of Indulgence Not Waiver; Remedies Cumulative. If
any term or other provision of this Agreement or the Exhibits or Schedules
attached hereto is determined by a court, administrative agency or arbitrator to
be invalid, illegal or incapable of being enforced
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by any rule of law or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to either party. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that transactions contemplated
hereby are fulfilled to the fullest extent possible.
Section 17.8 Amendment. No change or amendment will be made to this
Agreement except by an instrument in writing signed on behalf of each of the
parties to such agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed in duplicate originals by its duly authorized representatives.
MERCURY AIR GROUP, INC.,
a Delaware Corporation
By:
-----------------------------
Its:
MERCFUEL, INC.,
a Delaware Corporation
By:
-----------------------------
Its:
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16
TRANSITION SERVICE SCHEDULE #1 TO
MASTER TRANSITIONAL SERVICES AGREEMENT
1. Transition Service Schedule #: 1
2. Functional Area: SUPPORT STAFF
3. Start/End Date: The Services start on the Effective Date of the Master
Transitional Services Agreement between Mercury Air Group, Inc. ("MAG")
and MercFuel, Inc. ("MercFuel") to which this Transition Service
Schedule is attached and end one year from such Effective Date, unless
otherwise indicated below.
Indicate below if other start/end date:
Start Date:
4. Summary of Services (Describe the service to be provided in appropriate
detail.
Service Name Description
---------------------- -------------------------
5. List of services to be provided per country and site: (List all the
services to be provided at each site. Enter Start Date and End Date if different
than Section 3 above.)
Country Site Service(s)
--------------- ----------------- ----------
6. Performance parameters/Service level: (State minimum performance
expected from each service, if applicable.):
Upon execution of this Transition Service Schedule by both parties, this
Transition Service Schedule is hereby deemed incorporated into and made part of
that certain Master Transitional Services Agreement between Mercury Air Group,
Inc. and MercFuel, Inc.
MERCURY AIR GROUP, INC.,
a Delaware Corporation
By:
-----------------------------
Its:
-12-
17
MERCFUEL, INC.,
a Delaware Corporation
By:
-----------------------------
Its:
Chief Executive Officer
-13-
18
TRANSITION SERVICE SCHEDULE #2 TO
MASTER TRANSITIONAL SERVICES AGREEMENT
1. Transition Service Schedule #: 2
2. Functional Area: FINANCE
3. Start/End Date: The Services start on the Effective Date of the Master
Transitional Services Agreement between Mercury Air Group, Inc. ("MAG")
and MercFuel, Inc. ("MercFuel") to which this Transition Service
Schedule is attached and end one year from the Effective Date, unless
otherwise indicated below.
Indicate below if other start/end date:
Start Date:
4. Summary of Services (Describe the service to be provided in appropriate
detail.
Service Name Description
------------------------ --------------------------
5. List of services to be provided per country and site: (List all the
services to be provided at each site. Enter Start Date and End Date if
different than Section 3 above.)
Country Site Service(s)
------------- ------------- ----------
6. Performance parameters/Service level: (State minimum performance
expected from each service, if applicable.):
Upon execution of this Transition Service Schedule by both parties, this
Transition Service Schedule is hereby deemed incorporated into and made part of
that certain Master Transitional Services Agreement between Mercury Air Group,
Inc. and MercFuel, Inc.
MERCURY AIR GROUP, INC.,
a Delaware Corporation
By:
-----------------------------
Its:
-14-
19
MERCFUEL, INC.,
a Delaware Corporation
By:
-----------------------------
Its:
-15-
20
TRANSITION SERVICE SCHEDULE #3 TO
MASTER TRANSITIONAL SERVICES AGREEMENT
1. Transition Service Schedule #: 3
2. Functional Area: Human Resources
3. Start/End Date: The Services start on the Effective Date of the Master
Transitional Services Agreement between Mercury Air Group, Inc. ("MAG")
and MercFuel, Inc. ("MercFuel") to which this Transition Service
Schedule is attached and end one year from the Effective Date, unless
otherwise indicated below.
Indicate below if other start/end date:
Start Date:
4. Summary of Services (Describe the service to be provided in appropriate
detail.
Service Name Description
---------------------- -------------------------
5. List of services to be provided per country and site: (List all the
services to be provided at each site. Enter Start Date and End Date if
different than Section 3 above.)
Country Site Service(s)
-------------- ------------ ----------
6. Performance parameters/Service level: (State minimum performance
expected from each service, if applicable.):
Upon execution of this Transition Service Schedule by both parties, this
Transition Service Schedule is hereby deemed incorporated into and made part of
that certain Master Transitional Services Agreement between Mercury Air Group,
Inc. and MercFuel, Inc.
MERCURY AIR GROUP, INC.,
a Delaware Corporation
By:
-----------------------------
Its:
-16-
21
MERCFUEL, INC.,
a Delaware Corporation
By:
-----------------------------
Its:
-17-
22
TRANSITION SERVICE SCHEDULE #4 TO
MASTER TRANSITIONAL SERVICES AGREEMENT
1. Transition Service Schedule #: 4
2. Functional Area: EXECUTIVE OFFICERS
3. Start/End Date: The Services start on the Effective Date of the Master
Transitional Services Agreement between Mercury Air Group, Inc. ("MAG")
and MercFuel, Inc. ("MercFuel") to which this Transition Service
Schedule is attached and end one year from the Effective Date, unless
otherwise indicated below.
Indicate below if other start/end date:
Start Date:
4. Summary of Services (Describe the service to be provided in appropriate
detail.
Service Name Description
----------------------- -----------------------
5. List of services to be provided per country and site: (List all the
services to be provided at each site. Enter Start Date and End Date if
different than Section 3 above.)
Country Site Service(s)
------------- ------------- ----------
6. Performance parameters/Service level: (State minimum performance
expected from each service, if applicable.):
Upon execution of this Transition Service Schedule by both parties, this
Transition Service Schedule is hereby deemed incorporated into and made part of
that certain Master Transitional Services Agreement between Mercury Air Group,
Inc. and MercFuel, Inc.
MERCURY AIR GROUP, INC.,
a Delaware Corporation
By:
-----------------------------
Its:
-18-
23
MERCFUEL, INC.,
a Delaware Corporation
By:
-----------------------------
Its:
-19-