Exhibit 10.15
Conformed Copy
==============================
TRANSITION SERVICES AGREEMENT
between
NFC PLC
and
NA HOLDING CORPORATION
===============
Dated as of November 19, 1999
===============
==============================
TRANSITION SERVICES AGREEMENT
This TRANSITION SERVICES AGREEMENT (together with all schedules
hereto, this "Agreement") dated as of November 19, 1999 between NA Holding
Corporation, a Delaware corporation (the "Buyer") and NFC PLC, a company
organized under the laws of England and Wales ("NFC").
W I T N E S E T H:
WHEREAS, pursuant to the terms of the Acquisition Agreement, dated
as of September 14, 1999, between Buyer and NFC (the "Acquisition Agreement"),
as of the date hereof (i) NFC and certain subsidiaries of NFC have sold all of
the issued and outstanding stock of the Allied Van Lines, Inc. and the other
Target Subsidiaries listed on Annex B to the Acquisition Agreement to the Buying
Group; (ii) Pickfords Ltd. has issued a certain number of shares in its capital
to the Buying Group; and (iii) NFC Canada Ltd., a company organized under the
laws of Canada has sold all of the assets used or held for use in connection
with the Moving Business as conducted in Canada to the Buying Group (capitalized
terms used herein without definition shall have the meanings set forth in the
Acquisition Agreement);
WHEREAS, the Acquisition Agreement provides that NFC shall enter
into a transition services agreement with the Buyer pursuant to which NFC and
certain of its Affiliates (each, a "Service Provider" and collectively, the
"Service Providers") will provide certain services to the Company Group upon the
terms hereof; and
WHEREAS, the parties desire hereby to set forth the terms and
conditions upon which the Service Providers will provide the services described
on Schedule A hereto (the "Services") to the Company Group following the Closing
for a limited period of time;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
SECTION 1
PROVISION OF SERVICES
1.1. Provision of Services. (a) In accordance with the terms and
provisions of this Agreement, NFC shall provide, and shall cause its Affiliates
to provide, the Services to the Company Group upon the terms set out in Schedule
A, until the expiration date set forth on Schedule A for each such Service (the
"Expiration Date") for
the monthly fee as set forth for such Service on Schedule A, as Schedule A may
be amended from time to time in accordance with the procedures set forth in
Section 3.2 hereof.
(b) Services shall be provided in the manner and at a level of
quality and performance consistent with past practice during the 12-month period
preceding the date hereof, and NFC shall be under no obligation to perform the
Services at any higher level of quality and performance. In providing the
Services hereunder, NFC may use such personnel of NFC or its Affiliates as NFC
deems necessary or appropriate, or may employ the services of third parties to
the extent such third party services are routinely utilized to provide such
services to NFC or are reasonably necessary to the efficient performance of any
such Services, provided that such third party services shall be of substantially
similar quality to Services provided during the 12-month period preceding the
date hereof. NFC shall use its commercially reasonable best efforts to obtain
all third party consents, waivers and approvals required to provide any Service
pursuant to this Agreement (other than in respect of the use of the HYPERION
software with respect to which the provisions of clause (c) of this Section 1.1
shall govern). To the extent that the Buyer requires any additional licenses to
receive any Service in relation to software, hardware or other equipment
(including, without limitation, telecommunications equipment) used to provide
such Service the Buyer shall cooperate and give reasonable assistance to NFC in
obtaining such additional licenses or in the alternative to obtain extensions to
appropriate third party licenses held by NFC or its Affiliates. The cost of
obtaining any such consents, approvals or licenses shall (unless such licenses
are required as a result of an increase in the number of users) be borne in the
following manner: NFC shall bear the first (pound)50,000 in aggregate of costs;
thereafter, all costs shall be borne equally by NFC and the Buyer. The Buyer
acknowledges and agrees that to the extent the number of users using the
Services is higher than the number of users using such Services prior to the
Closing Date, the Buyer alone shall bear the costs of license fees in respect of
such additional users. To the extent that such additional licenses, consents or
permissions are not so obtained, the Buyer and NFC shall cooperate to determine
an alternative to the Services and shall bear the costs of such alternative
services equally.
(c) In respect of the use by the Company Group of the HYPERION
software used by NFC (the "HYPERION Software"), the Buyer and NFC agree that
neither party shall make contact with or enter into discussions or negotiations
with the owners of the HYPERION Software without consulting with the other
party. NFC agrees that it shall or shall procure that its Affiliates give all
reasonable assistance to the Buyer and its Affiliates for the purpose of
obtaining any consent, waiver or approval for the use of the HYPERION Software
and/or to secure the provision of the Service(s) utilizing the HYPERION
Software, including without limitation making appropriate representatives of the
Buyer or the Company Group available to meet with the owners of the HYPERION
Software and to attend demonstrations by said owners.
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(d) For purposes of this Agreement, "Affiliate" shall mean, with
respect to any person, (I) any person that directly or indirectly controls, is
controlled by or under common control with, such person, or (ii) any director,
officer, partner, member or employee of such person.
1.2. Access. The Company Group or its Affiliates shall, upon
reasonable prior notice, give such reasonable access during normal business
hours at such premises as NFC or any Service Provider or any of its or their
representatives reasonably require and shall make available on a timely basis to
the relevant Service Provider all information and materials reasonably requested
by it or any of them to enable it or them to provide the Services. The Buyer
agrees to procure that Pickfords Limited shall grant NFC and its employees,
representatives and agents a licence to enter onto the premises at Enfield and
to use the fueling facilities there for the purpose of re-fueling vehicles and
for fulfilling its obligations to maintain the said facilities, such licence to
remain until the Expiration Date in respect of the Services with respect to Fuel
set forth on Schedule A.
1.3. Buyer Obligations. The Company Group shall (i) use reasonable
efforts to cooperate with, assist and provide information to each of the Service
Providers to enable such Service Providers to perform the Services, (ii) comply
with the terms of and obligations under licenses, permits, consents or other
agreements held by NFC or any of its Affiliates or to which NFC or any of its
Affiliates is a party which are used in the provision of the Services, to the
extent that NFC or such Service Provider has informed the Company Group of such
terms and obligations, and (iii) take or maintain appropriate steps to ensure
the integrity of the Service Providers' business systems when using or receiving
Services, including, without limitation, taking appropriate steps to guard
against computer viruses or "logic bombs" being introduced by the Company Group.
1.4. Maintenance of Records. NFC shall make available for inspection
by the Buying Group and the Company Group or their representatives and agents,
during regular business hours and upon reasonable notice, records that (a) the
Service Providers have prepared or maintained in providing the Services or (b)
the Buying Group or the Company Group has reasonably requested that the Service
Providers prepare or maintain; provided, however, that any such inspection by
the Buying Group or the Company Group or their representatives or agents shall
be conducted in a manner which does not unreasonably interfere with the
operation of the day-to-day business affairs of such Service Provider. The
Company Group shall pay the costs of any such inspection.
1.5. Priorities. In providing Services, each Service Provider shall
accord the Company Group's work on the Services substantially the same priority
as it accords its own operations.
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1.6. Omitted Services. To the extent that any material service was
provided during the three months Prior to Closing to the Company Group by a
Service Provider or other Affiliate of NFC is not included on Schedule A to this
Agreement as of the date hereof was not disclosed by NFC to the Buyer prior to
the date hereof but is identified by the Buyer after the Closing (an "Omitted
Service") and the Buyer reasonably believes that the provision of such Omitted
Service is reasonably required by the Company Group, the parties agree that such
Omitted Service shall, upon written notice from Buyer to NFC, be added to the
Services, and Schedule A shall be amended to include such Omitted Service, and
the appropriate Service Provider or other Affiliate of NFC shall begin rendering
such Omitted Service as soon as possible but in any event within the shorter of
three business days or five calendar days from the receipt of such notice. The
cost of providing such Omitted Service shall be the actual amount invoiced to
NFC in respect of the service provided to the relevant member of the Company
Group or the avoidable cash costs (i.e., the cash costs the Service Provider
would not have incurred if it were not providing the Omitted Service), which
shall be set forth on Schedule A, as amended. The Expiration Date in respect of
such Omitted Service shall be a date not later than six months after Closing and
shall be specified by the Buyer in the notice. Notwithstanding Section 7.12
hereof, the parties agree that any amendment to Schedule A hereto to add an
Omitted Service shall not require a separate signed agreement of the parties but
the form of notice shall include a revised Schedule A indicating the revision
and such revised Schedule A shall be deemed to be part of this Agreement from
and after the date thereof.
1.7. System Migration. Taking into account the need to minimize both
the cost of such transition and the disruption to the ongoing business
activities of the parties hereto, the Buyer shall use all commercially
reasonable efforts to replace the Services with non-NFC systems as soon as is
reasonably practicable and in any event (except with respect to Services for
which the parties have agreed to extend the term pursuant to Section 3.2) prior
to the Expiration Dates for such Services, and NFC shall give the Buyer and the
Company Group all reasonable assistance in connection with such migration. The
parties hereto acknowledge that the foregoing may include the provision of
services reasonably requested by the Buying Group or the Company Group in
connection with the transition of the Company Group to non-NFC systems,
including but not limited to migration of historical data, migration-specific
enhancements and cooperation with and assistance to third party consultants
engaged by the Buying Group or the Company Group in connection with the
foregoing.
1.8. Use of Services. Unless otherwise agreed in writing, the
Company Group (i) shall not make materially greater use of the Services, on an
average basis, than was made of the Services as they were provided to the
Company Group, on an average basis, during the 12-month period preceding the
date hereof, and (ii) with respect to any Services the provision of which
requires the licensing of third party software, hardware,
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services or equipment on a per-user basis, the Company Group agrees that it will
not allow a greater number of users to use the Services than used the Services
as they were provided during the 12-month period preceding the date hereof. If
the parties hereto shall agree in writing that the Company Group shall be
permitted to make such greater use or allow such greater number of users, the
Company Group shall pay such costs in connection therewith as shall be agreed by
the parties in writing.
1.9. System Changes. Upon consent of the Buyer, such consent not to
be unreasonably withheld or delayed, NFC shall have the right to make such
changes and modifications to the Services and the systems used to provide the
Services or any part thereof as in NFC's reasonable discretion is necessary or
desirable, provided that no such change or modification shall result in a
material degradation in any Services. The parties hereby agree that no such
modifications to the Services or the systems used to provide the Services shall
result in any additional cost to the Buyer unless the Buyer shall have
specifically agreed in writing to pay such additional costs.
1.10. No Warranty. The Buyer hereby acknowledges that, to the extent
that the Services have been provided in accordance with the provisions of clause
1.1, no warranty is given by NFC in respect of the fitness or suitability of any
Service for any purpose whatsoever.
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SECTION 2
PAYMENT
2.1. Invoicing and Payment. The Buyer shall cause the relevant
members of the Company Group to pay NFC, on behalf of all Service Providers or
as NFC shall otherwise direct, for the Services rendered by any Service Provider
during the preceding month within 30 days after receipt of an invoice from NFC
for such Services, subject to receiving any appropriate support documentation
for such invoice if reasonably requested by the Buyer, in accordance with the
payment instructions specified therein or, if no instructions are so specified,
in accordance with the standing payment instructions in effect from time to time
between NFC and the relevant member of the Company Group.
2.2. Expenses. The Buyer agrees to cause the relevant members of the
Company Group to reimburse NFC within 30 days after receipt of an invoice from
NFC, on behalf of all Service Providers or as NFC shall otherwise direct, for
such reasonable out-of-pocket expenses as may be incurred by any Service
Provider (and, for each expense exceeding (pound)500, approved in advance in
writing by the Buyer, such approval not to be unreasonably withheld or delayed)
in the course or on account of rendering of any of the Services hereunder. For
all expenses, NFC shall provide written documentation of the amount and nature
of such expenses.
2.3. Taxes. All charges and expenses specified in this Agreement are
expressed exclusive of any valued added tax, sales tax, goods and services tax
or similar tax thereon but if applicable any such tax shall be charged at the
then prevailing rate and the amount of any such tax will be separately stated on
each invoice raised.
2.4. Fees Payable upon Termination. Upon termination of any Service
pursuant to a notice from the Buyer or NFC, as the case may be, pursuant to
Section 3.1, the monthly fee associated with such terminated Service shall be
reduced accordingly and any obligation to pay fees relating to such terminated
Service in subsequent months shall cease.
2.5. Interest. If the Buyer fails to pay any of the charges
(including expenses) for the Services when due, NFC shall be entitled to charge
interest on the sum due (before and after any judgment) at the rate of 1% above
the base rate in force from time to time of Midland Bank PLC, such interest to
be calculated on a daily basis from the date upon which the sum became due.
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SECTION 3
TERM OF PARTICULAR SERVICES
3.1. Term of Services. Subject to Section 6, the provision of
Services shall commence on the date hereof and, with respect to each Service,
shall terminate on the Expiration Date set forth on Schedule A for such Service,
unless such Expiration Date has been extended pursuant to Section 3.2, provided,
that the Buyer may terminate any Service, in whole or in part, upon not less
than 30 days' written notice to NFC specifying the date of termination. A
Service Provider may not cease to provide a Service (including any additional
service agreed to in accordance with Section 3.2) hereunder prior to the
Expiration Date for such Service, other than pursuant to and on the termination
date specified in a notice from the Buyer pursuant to Section 3.1. In the event
that the term of any Service is extended in accordance with Section 3.2, NFC
shall have the right to terminate the provision of such Service in the event
that NFC ceases to use such Service in its own operations or provide such
Service to its Affiliates, upon 30 days' written notice to the Buyer specifying
the Service (or part thereof) to be terminated and the date of termination;
provided, however, that if NFC or its Affiliates make any arrangements with any
third party for the provision of services equivalent to the Services terminated
by NFC pursuant to this sentence, NFC shall use its commercially reasonable
efforts to obtain an offer from such third party to the relevant member of the
Company Group to provide such services upon terms and conditions that are
substantially the same as the terms and conditions under which the equivalent
Service was provided. A terminated Service shall cease to be provided on the
termination date indicated in the notice from the Buyer or NFC, as the case may
be.
3.2. Extension of Services. Should the Buyer desire to extend the
term of any Service (or part thereof) beyond its Expiration Date,
representatives of the Buyer and NFC shall meet within 30 days after receipt of
notice by NFC of a request to extend Services to discuss whether NFC is willing
to provide such extension and, if so, the terms and conditions (including cost)
upon which such extension will be provided but nothing in this Agreement shall
oblige NFC or any of its Affiliates to provide any such extension. Any such
extensions of the term of Services and their cost shall be effective as of the
date of execution of an amendment to Schedule A by duly authorized
representatives of NFC and the Buyer.
3.3. Return of Materials. Upon the termination of a Service or
Services with respect to which a Service Provider holds books, records, files,
databases or computer software or hardware (including, but not limited to,
current and archived copies of computer files) ("Materials") owned or leased by
the Company Group and used by a Service Provider in connection with the
provision of a Service or the Company Group holds Materials owned or leased by
the Service Provider or NFC and used by the Company Group in connection with the
provision of a Service, such Service Provider or
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the Company Group, as the case may be, will return all of such Materials
promptly upon termination, but not later than 30 days after such termination. In
the case of computer files or data, such Materials shall be delivered to the
Service Provider or Company Group, as the case may be, in a format which can be
read by the existing computer systems of entity receiving such Materials.
SECTION 4
FORCE MAJEURE
4.1. Force Majeure. No liability shall result from any delay or
failure in performance by either party resulting from any cause, condition or
event beyond the reasonable control of the party affected, including but not
limited to Acts of God, fire, flood, war, government action, accident, labor
trouble or shortage, or inability to obtain material, utilities, equipment,
energy or transportation (each a "Force Majeure Event"). Either party claiming
the benefit of this Section 4.1 shall promptly notify the other party in writing
upon learning of the occurrence of any Force Majeure Event and upon such notice
the affected provisions and/or other requirements of this Agreement shall be
suspended or reduced by an amount consistent with reductions made to the other
operations of such party during the period of such disability. Upon the
cessation of such Force Majeure Event, NFC will use its commercially reasonable
efforts to resume its performance of the Services hereunder within 30 days of
giving notice of such Force Majeure Event. If the Force Majeure Event continues
to have effect for a period of more than 30 days, the party not claiming relief
under this section shall have the right to terminate this Agreement immediately
upon written notice of such termination to the other party.
SECTION 5
DILIGENCE
5.1. Diligence. (a) Each of the Service Providers shall use
reasonable, good faith efforts, diligence and care in providing the Services
(NFC, for itself and its Affiliates having the intent to use that degree of
effort, diligence and care that it would exercise in similar circumstances in
carrying out its own business) and, in the absence of gross negligence,
recklessness or willful misconduct on the part of a Service Provider, such
Service Provider shall have no liability in providing Services to the Company
Group for any injury, loss or damage of any nature whatsoever.
(b) In performing its obligations under this Agreement, the Buyer
shall use reasonable, good faith efforts, diligence and care (the Buyer, for
itself and its Affiliates, having the intent to use that degree of effort,
diligence and care that it would exercise in similar circumstances in carrying
out its own business) and, in the absence of gross negligence, recklessness or
willful misconduct on the part of the Buying Group or the
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Company Group, the Buyer shall have no liability to any Service Provider for any
injury loss or damage of any nature whatsoever.
5.2. Obligation to Correct or Reperform. In the event of any breach
of this Agreement by a Service Provider with respect to any error or defect in
the provision of any Service, NFC shall, at the request of the relevant member
of the Company Group, use its best efforts to correct or cause to be corrected
such error or defect or reperform or cause to be reperformed such Services
without the payment of any further fees for the relevant Service by the Company
Group.
SECTION 6
TERMINATION
6.1. Termination. This Agreement shall terminate on the earlier to
occur of (a) the last Expiration Date relating to any Service provided hereunder
including any extension or additional service agreed upon in accordance with
Section 3.2 or (b) the date on which the provision of all Services have been
terminated pursuant to Section 3.1.
6.2. Effect of Termination. Sections 3.3, 5, 7.1 and 7.10 of this
Agreement and this Section 6.2 shall survive any termination of this Agreement.
SECTION 7
MISCELLANEOUS
7.1. Title to Data; Confidentiality. (a) Both parties agree not to
disclose to others or use in any way except to further the purposes of this
Agreement, without the written consent of the other, any information, documents
or know-how which either receives from, or in respect of, the other in
connection with this Agreement or which it obtains from the other by reason of
the provision of the Services.
(b) This obligation of confidentiality shall not apply to or (as the
case may be) shall cease to apply to information that: (i) was generally known
to the public prior to the date it was disclosed, or becomes generally known to
the public subsequent to such disclosure through no fault of the receiving
party, (ii) was properly received by the receiving party after the date hereof
free of any obligation of confidentiality, (iii) was received subsequent to the
disclosure hereunder from a third party who had a lawful right to disclose such
information, (iv) was communicated to a third party by the disclosing party free
of any obligation of confidentiality or non-disclosure subsequent to the time of
the disclosure to the receiving party, (v) was required to be disclosed by law
or the rules of the London Stock Exchange Limited or any governmental order,
provided that the party required to make such disclosure shall, so far as is
reasonably practicable to do so,
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provide prior written notice of such proposed disclosure to the other party, or
(vi) was independently developed by the receiving party.
7.2. Title to Intellectual Property. The parties hereto agree that
any Intellectual Property provided to a Service Provider by the Buying Group or
the Company Group, and any derivative works, additions, modifications or
enhancements thereof created by the other pursuant to this Agreement, are and
shall remain the sole property of the member of the Buying Group or the Company
Group owning such Intellectual Property. To the extent which data which is
created in the course of the provision of the Services relates to the Moving
Business, such data shall be the property of the Buyer, and all other data shall
be the property of NFC. The Buyer acknowledges that as between the parties, all
intellectual property rights in equipment (including any computers or associated
peripherals) and software used in the provision of the Services (other than that
owned or licensed by the Buyer) remain with NFC.
7.3. Independent Contractor. Each of NFC and its Affiliates, on the
one hand, and the Buying Group and the Company Group, on the other hand, is an
independent contractor and, during the term hereof, the relationship between
such parties is that of vendor and vendee. Neither of such parties (nor its
agents or employees) shall under any circumstances be deemed agents, partners,
joint venturers or representatives of the other. Neither of such parties shall
have the right to bind the other party in any respect except as expressly
provided herein.
7.4. Dispute Resolution. All disputes not resolved at a local level
between the parties out of or relating to this agreement shall be promptly
referred, by either party, to ▇▇▇▇▇ ▇▇▇▇ (in respect of NFC) and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(in respect of the Buyer) for resolution who will, where necessary, negotiate in
good faith to resolve such disputes. Use of this dispute resolution procedure
shall not constitute a waiver of any right of either party. Performance under
this agreement shall not cease or be delayed by virtue of the dispute resolution
procedure hereunder.
7.5. Notices. All notices, requests, instructions, approvals and
other communications pursuant to this Agreement shall be given by hand delivery,
facsimile transmission, registered or certified United States mail or by a
nationally recognized overnight courier addressed:
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(a) If to Buyer, to:
NA Holding Corporation.
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
▇▇▇▇▇▇▇, Dubilier & Rice, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and:
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other person or address as the Buyer shall furnish to NFC in writing.
(b) If to NFC or any Affiliate, to:
NFC PLC
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇ ▇▇
▇▇▇▇▇▇▇
Attention: Company Secretary
Telecopy: (▇▇-▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
Citicorp Center
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other person or address as NFC shall furnish to the Buyer in writing.
All such notices, requests, instructions, approvals and other
communications shall be deemed to have been received on the date of delivery or
on the third business day after the mailing thereof.
7.6. Headings. The headings contained in this Agreement are for
purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
7.7. Entire Agreement. This Agreement, including Schedule A hereto,
together with the Acquisition Agreement together constitute the entire agreement
and supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
7.8. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
7.9. Applicable Law. This Agreement and the legal relations among
the parties hereto will be governed by and construed in accordance with the
substantive laws of the State of New York, without giving effect to the
principles of conflict of laws thereof.
7.10. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, successors and
permitted assigns.
7.11. Assignment and Delegation. Neither this Agreement nor the
rights and duties under this Agreement shall be assignable by either party
hereto without the prior written consent of the other, provided that the Buyer
may assign this Agreement or any or all of its right or duties hereunder to any
Affiliate of the Buyer or to any lender to the Buyer or any subsidiary or
Affiliate thereof as security for obligations to such lender.
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No assignment hereunder shall in any way affect the parties' obligations or
liabilities under this Agreement. Any purported assignment in violation of this
Section 7.11 shall be void.
7.12. Amendment; Waivers, etc. No amendment, modification or
discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, discharge or waiver is sought. Any
such waiver shall constitute a waiver only with respect to the specific matter
described in such writing and shall in no way impair the rights of the party
granting such waiver in any other respect or at any other time.
7.13. Severability. In the event that any provision of this
Agreement shall be found to be void or unenforceable, such findings shall not be
construed to render any other provision of this Agreement either void or
unenforceable, and all other provisions shall remain in full force and effect
unless the provisions which are invalid or unenforceable shall substantially
affect the rights or obligations granted to or undertaken by either party.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
NA HOLDING CORPORATION
By /s/▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary
NFC PLC
By /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Secretary
SCHEDULE A
A. Services to Be Provided Directly by NFC and its Affiliates
Jurisdiction Service Expiration Date Fees
------------ ------- --------------- ----
U.K./Europe Real Estate
Full range of property services, including, 6 months from (pound)6,000
upon consultation with the Buyer, the Closing Date per month **
providing the key interface with landlords
and negotiating leases, ensuring legality
and necessary review of property leases*
and providing consultancy service for
property search activities.
U.K./Europe IT Services
E-mail related services, including 12 months from the (pound)4,000
provision of a network "cloud" for Closing Date per month
transmission of external e-mails via
NFC's servers in Bedford and continued
provision of Lotus Notes for services of
Moving Services FCO Department.
IT Infrastructure services, including 18 months from the (pound)1,200
provision of a network "cloud" for Closing Date per month
access to and printing from the Oracle
Financials System and e-mail communications
with ▇▇▇▇▇▇▇▇ Consulting in Bedford.
One-off implementation of network N/A Total costs of up to
firewalls to provide security within 3 (pound)5,000 to be borne
months of the Closing Date equally between NFC and the
Buyer, with excess to be borne
by NFC
U.S. Communication link and e-mail related 12 months from the (pound)650 per month
service, including provision of a network Closing Date
"cloud" for the transmission of e-mails
to and from Moving Service Europe only via
NFC's servers in Columbus.
Europe/Canada Pensions/Benefits
To the extent that Company Group 6 months from the On same basis as prior to
employees participate in NFC-maintained Closing Date Closing Date
pension plans prior to the Closing Date,
continued participation in such plans,
subject to applicable law.
B. Services to Be Provided by Third Party Providers
U.K. Mobile Phones
Short-dialling services for mobile phones 6 months from the (pound)1,250 for 6 months
to be provided under NFC's group Closing Date
contract with Vodaphone relating to the
Mobex offering
Access to Mobile extension's gateway via 6 months from the (pound)211 per month
BT FeatureNet node line provided under Closing Date
an NFC group contract with BT.
Continued inclusion of UK members of 30 November 2000 (pound)1,040 per month
the Company group in the NFC contract (excluding handset charge
with AAC Services Ltd. The service
provides for the management and related
administration of mobile phones with the
NFC group. AAC's operating costs are
covered through a charge levied of
(pound)3.00 per handset per month. In
addition, NFC covers the cost of
accommodation, equipment, telephone charges
etc. in Bedford.
Aerophone supplies handsets via separate Expiration date of Nil
contracts per handset direct to the user. relevant contract
The majority of the contracts with the
Company Group expire in November 2001.
Billing is direct to the user.
2
NFC will use its reasonable efforts to N/A Nil
assist such member of the Company Group
in entering into a renewal or alternative
arrangement upon expiry or earlier
termination of the contract with AAC.
Worldwide Accounting
Use of software and data processing and 6 months from the (pound)2,000 per month
other services to continue the present Closing Date
financial consolidation system for the
Company Group (HYPERION)
NOTES:
* Excluding legal support for mainland Europe outsourced prior to the
Closing Date to existing third party service providers.
** Excluding all reasonable travelling, subsistence and disbursement
expenses approved in accordance with Section 2.2. if required to be
approved thereunder.
+ Subject to compatibility with and consent, if required, of the new
insurers of Pickfords Limited.
3
Jurisdiction Service Expiration Date Fees
------------ ------- --------------- ----
U.K. Electricity
(h) Sites using less than 100KW per annum: 31 May 2000 Nil
Continued inclusion of the Company Group at
those sites currently occupied by the
Company Group and included in the NFC group
contract with Norweb and reasonable efforts
to secure the Company Group's inclusion in a
new contract with NFC's chosen supplier of
electricity for the period 1 June 2000
through 31 May 2001. (Invoicing direct
between supplier and site.)
Sites using in excess of 100KW per annum: 30 September 2000 Nil
Continued inclusion in existing contract
covering Enfield with London Electricity to
expire on 30 September 1999 and inclusion of
Southbury Road, Enfield with other NFC group
companies in new contract agreed with
Independent Energy to commence 1 October
1999. (Invoicing direct between supplier and
site.)
U.K. Gas
Continued inclusion of Company Group site 31 December 1999 Nil
at Glasgow in NFC group gas contract with
Midland Sales (MEB). (Invoicing direct
between supplier and site.)
Continued inclusion of Company Group 31 December 2000 Nil
entities in existing NFC gas contract until
expiry of such contract on December 31, 1999
and NFC to use its reasonable endeavours to
include 5 sites of the Company Group -
namely Glasgow, Enfield, Nottingham x 2 and
Chesterfield (and such number of additional
sites as NFC may reasonably be able to
include) into a new contract with a chosen
supplier effective for 12 months commencing
1 January 2000.
4
U.K. Fuel
Provision of fuel on the same terms and Two years from the Same basis as during 12
conditions as provided during the 12 months Closing Date months prior to Closing Date
prior to the Closing Date.
Ferry Tariffs
Continued inclusion of the Company Group 31 December 1999 Nil
in NFC's agreed tariff rates with 16 ferry
operators. (Invoicing direct between
supplier and Group Company.)
At Buyer's option, NFC will use its N/A Nil
reasonable efforts to include the Company
Group into the NFC group new tariff rates
agreement for the period from 1 January 2000
to 31 December 2000.
Stationery
Continued inclusion of the Company Group Niceday: Nil
in the stationery supply contract with 29 February 2000
▇▇▇▇▇▇▇▇ Niceday and the contract for
printed forms with Londsale. Londsale:
31 December 1999
NFC will use its reasonable efforts to N/A Nil
include the Company Group in any future
stationery contract entered into by NFC in
respect of such stationery upon the renewal
of these contracts.
U.K. Tires and Trucks
To the extent that there have been NFC group 12 months from Nil
procurement arrangements with respect to Closing Date
tires during the past 12 months, continued
inclusion of the Company Group in such
arrangements.
5
NFC will use its reasonable efforts to N/A Nil
include the Company Group in future group
procurement arrangements with respect to
tires that replace any such existing
arrangements.
To the extent that there have been NFC group 12 months from Nil
tenders with respect to truck chassis and Closing Date
bodies during the past 12 months, continued
inclusion of the Company Group in such
tenders.
NFC will use its reasonable efforts to N/A Nil
include the Company Group in future group
procurement arrangements with respect to
truck chassis and bodies that replace any
such existing arrangements.
6