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EXHIBIT 10.5
SERVICES AGREEMENT
This Services Agreement (this "Agreement") is made and entered into as of
__________, 1999, by and between Metamor Worldwide, Inc., a Delaware corporation
("MMWW"), and Xpedior Incorporated, a Delaware corporation ("Xpedior"). MMWW and
Xpedior may hereinafter be referred to individually as a "Party" or collectively
as the "Parties."
RECITALS:
WHEREAS, MMWW and Xpedior desire by their execution of this Agreement to
evidence their understanding concerning the provision of certain services by
MMWW to Xpedior and its subsidiaries;
NOW, THEREFORE, for and in consideration of the mutual promises and
conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereto
hereby agree as follows:
1. Services. In order to assist the continued and orderly conduct of
certain corporate functions currently performed by MMWW and its subsidiaries for
the benefit of the Referenced Subsidiaries (defined below), MMWW agrees to
provide and Xpedior agrees to purchase, subject to the terms and conditions set
forth herein, legal, tax, risk and cash management services and personnel
(collectively, the "Services"), in each case at prevailing market rates and if
and only to the extent requested by Xpedior.
"Referenced Subsidiaries" shall mean Xpedior and its subsidiaries from time
to time. Such subsidiaries shall initially include, without limitation, those
subsidiaries listed on Exhibit A.
2. Term. This Agreement shall become effective and MMWW shall make the
Services available to the Referenced Subsidiaries pursuant to the terms of this
Agreement for the period commencing on the initial public offering of Xpedior,
and terminating twelve months thereafter (or earlier by mutual written
agreement)(the "Termination Date"); provided, however, (i) the Referenced
Subsidiaries shall remain responsible for all out-of-pocket costs and expenses
incurred by MMWW (directly or through its other subsidiaries) pursuant to
agreements entered into for the benefit of the Referenced Subsidiaries that
could not be terminated prior to the date of termination of this Agreement, and
(ii) upon the mutual agreement of MMWW and Xpedior, services may be provided
beyond the Termination Date in order to allow the Referenced Subsidiaries the
opportunity to make alternative arrangements for such services. In the event any
of the Services being performed hereunder are no longer available, MMWW and its
subsidiaries shall be relieved of its obligations under this Agreement to
provide that particular Service to the Referenced Subsidiaries. The foregoing
shall include any cessation of or failure of Services due to Year 2000 problems.
MMWW will advise the Referenced Subsidiaries of any cessation of Services and
shall use commercially reasonable judgment in assisting the Referenced
Subsidiaries in securing alternative services for the Referenced Subsidiaries.
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SERVICES AGREEMENT
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3. Nature and Quality of Services. The Parties understand and agree that
the Services shall be substantially identical in nature and quality to the
Services provided by MMWW to its wholly-owned subsidiaries.
4. Payment. Xpedior, as compensation for the performance of the Services,
agrees to reimburse MMWW at prevailing market rates for the Services provided.
If the compensation for the Services does not include sales, use, excise,
value-added or similar taxes, and if any such taxes are imposed on the Services
after the effective date of this Agreement, then such taxes shall be promptly
paid by Xpedior.
5. Invoicing. MMWW shall invoice Xpedior by the fifteenth (15th) working
day of each month for all Services provided in the preceding month. All invoices
shall reflect in reasonable detail a description of the Services performed
during the preceding month, and shall be due and payable on the last day of the
month of the invoice. In the event of a dispute as to the propriety of invoiced
amounts, Xpedior shall pay all undisputed amounts on each invoice, but shall be
entitled to withhold payment of any amount in dispute and shall promptly notify
MMWW of such dispute. MMWW shall provide Xpedior with records relating to the
disputed amount so as to enable the Parties to resolve the dispute. Xpedior
shall pay interest at an annual rate of ten percent (10%) on any disputed
amounts which it should have paid but withheld.
6. Confidentiality. Each party shall exert the same efforts and maintain
the same precautions that it exerts and maintains with respect to its own
confidential and proprietary information with respect to all information
received from the other party in connection with the performance of the
Services; provided, however, that a party may disclose such information (i) if
required to do so by applicable laws, rules, regulations, or orders (including
any laws, rules, regulations or orders to which either party voluntarily
subjects itself and any applicable securities exchange rules), or (ii) if such
information was or becomes generally available to such party on a
non-confidential basis, provided that the source of such information was not
known by such party to be bound by a confidentiality obligation.
7. Information from Xpedior. Any information necessary for MMWW or any
third party to perform any Services shall be submitted by Xpedior in a manner
consistent with the practices utilized by the Referenced Subsidiaries during the
period immediately prior to the effective date of this Agreement, which manner
shall not be altered except by mutual written agreement of the Parties. Should
Xpedior's failure to supply such input render MMWW's or any third party's
performance of any Services unreasonably difficult, MMWW or such third party,
upon reasonable notice to Xpedior, may refuse to perform such Services until
such input is supplied.
8. Sole Beneficiaries. Xpedior acknowledges that the Services shall be
provided only with respect to the business of Xpedior and its subsidiaries.
Xpedior will not request performance of any Services for the benefit of any
entity other than Xpedior and its subsidiaries. Xpedior represents and agrees
that it will use the Services only in accordance with all applicable federal,
state and local laws and regulations and communications and common carrier
tariffs, and in accordance with the reasonable conditions, rules, regulations
and specifications which may be set forth in any manuals, materials, documents
or instructions in existence on the effective date of this Agreement
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and furnished by MMWW to Xpedior. MMWW reserves the right to take all actions,
including termination of any particular Services, that MMWW reasonably believes
to be necessary to assure compliance with applicable laws, regulations and
tariffs. Waiver by MMWW of any of the provisions of this Agreement shall not be
construed as a waiver of such provision generally or of the right of MMWW
thereafter to enforce each and every such provision.
9. LIMITED WARRANTY; LIMITATION OF LIABILITY. ALL PRODUCTS OBTAINED FOR
THE REFERENCED SUBSIDIARIES ARE AS IS, WHERE IS, AS TO MMWW, WITH ALL FAULTS,
OTHER THAN FAULTS DUE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF MMWW.
NEITHER MMWW NOR ANY MMWW SUBSIDIARY PERFORMING ANY SERVICES HEREUNDER MAKE ANY
WARRANTIES OR REPRESENTATIONS WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING THE
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO
THE SERVICES RENDERED FOR OR PRODUCTS OBTAINED FOR THE REFERENCED SUBSIDIARIES,
INCLUDING WITHOUT LIMITATION THOSE RENDERED BY OR OBTAINED FROM A THIRD PARTY.
NOTWITHSTANDING THE FOREGOING, TO THE EXTENT A WARRANTY PROVIDED BY A THIRD
PARTY MANUFACTURER OR PROVIDER OF GOODS OR SERVICES TO MMWW OR ITS SUBSIDIARIES
CAN BE PASSED-ON TO THE REFERENCED SUBSIDIARIES, NOTHING HEREIN IS INTENDED TO
LIMIT SAME AND THE REFERENCED SUBSIDIARIES SHALL HAVE THE RIGHT TO THE BENEFITS
(SUBJECT TO THE TERMS AND CONDITIONS THEREOF) OF ALL SUCH THIRD PARTY
WARRANTIES.
IN NO EVENT SHALL MMWW OR THE REFERENCED SUBSIDIARIES BE LIABLE TO THE
OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES RESULTING FROM ANY ERROR IN THE PERFORMANCE OF SERVICES OR FROM THE
BREACH OF THIS AGREEMENT, REGARDLESS OF FAULT. TO THE EXTENT ANY THIRD PARTY HAS
LIMITED ITS LIABILITY TO MMWW FOR SERVICES UNDER AN OUTSOURCING OR OTHER
AGREEMENT, THE REFERENCED SUBSIDIARIES AGREE TO BE BOUND BY SUCH LIMITATION OF
LIABILITY FOR ANY PRODUCT OR SERVICE PROVIDED TO MMWW BY SUCH THIRD PARTY UNDER
SUCH AGREEMENT.
10. Indemnification. Xpedior hereby irrevocably and unconditionally agrees
to indemnify and hold harmless MMWW and its subsidiaries from and against any
and all losses, liabilities, damages, costs and expenses, including, without
limitation, attorneys' fees and expenses, incurred by MMWW and its subsidiaries,
directly or indirectly, resulting from or in connection with the rendition of
the Services, REGARDLESS OF WHETHER ANY CLAIM RESULTS SOLELY OR IN PART FROM THE
ACTIVE, PASSIVE OR CONCURRENT NEGLIGENCE OF MMWW OR ITS SUBSIDIARIES.
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Xpedior hereby acknowledges and agrees that its obligation to indemnify and
hold harmless MMWW and its subsidiaries shall be absolute and unconditional
irrespective of any act or omission on the part of MMWW and its subsidiaries or
any other circumstance which might otherwise constitute a defense available to,
or a discharge of, its obligations hereunder.
11. Force Majeure. MMWW shall have no obligation to perform the Services if
its failure to do so is caused by or results from any act of God, governmental
action, natural disaster, strike, failure of essential equipment, Year 2000
problem, or any other cause or circumstance beyond the control of MMWW. MMWW
agrees that upon restoring service following any failure of any equipment
necessary for MMWW or its Subsidiaries to provide any Services, MMWW will allow
the Referenced Subsidiaries to have equal priority, in accordance with prior
practice, with respect to access to the restored service.
12. Severability. In the event any portion of this Agreement shall be found
by a court of competent jurisdiction to be unenforceable, that portion of the
Agreement will be null and void and the remainder of the Agreement will be
binding on the Parties as if the unreasonable provisions had never been
contained herein.
13. Assignment. This Agreement shall not be assignable by either of the
Parties hereto except by operation of law or with the written consent of the
non-assigning Party.
14. Entire Agreement; Amendment. This Agreement constitutes the entire
agreement of the Parties relating to the performance of the Services and all
prior or contemporaneous written or oral agreements are merged herein. This
Agreement may not be amended or otherwise modified except by a writing signed by
both Parties.
15. Choice of Law. This Agreement shall be governed by the laws of the
State of Texas, with regard to any conflict-of-law rule or principle that might
refer the construction or interpretation of this Agreement to the laws of
another state.
16. Notice. Any notice, request, instruction, correspondence or other
document to be given hereunder by either Party to the other (herein collectively
called "Notice") shall be in writing and delivered personally or by facsimile,
as follows:
If to MMWW: Metamor Worldwide, Inc.
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Attention: General Counsel
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
If to Xpedior: Xpedior Incorporated
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Attention:
( ) _________________ (fax)
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SERVICES AGREEMENT
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Notice given by personal delivery shall be effective upon actual receipt by the
Party to whom addressed. Notice given by facsimile or telegram shall be
effective upon actual receipt if received during the recipient's normal business
hours, or at the beginning of the recipient's next business day after receipt if
not received during the recipient's normal business hours. Any Party may change
any address to which Notice is to be given to it by giving Notice as provided
above of such change of address.
17. Counterparts. This Agreement may be executed in one or more
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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IN WITNESS WHEREOF, the Parties hereto have caused this Services Agreement
to be signed on their behalf by their duly authorized officers.
METAMOR WORLDWIDE, INC.
By:
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Name:
Title:
XPEDIOR INCORPORATED
By:
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Name:
Title:
XPEDIOR INCORPORATED
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EXHIBIT A
SUBSIDIARIES OF XPEDIOR INCORPORATED
Xpedior M Incorporated, formerly Metamor Technologies, Ltd. (Illinois)
NDC Group, Inc. (Delaware)
Xpedior S Incorporated, formerly Sage I.T. Partners, Inc. (California)
Xpedior V Incorporated, formerly Virtual Solutions, Inc. (Texas)
Xpedior W Incorporated, formerly Workgroup Productivity Corporation (Illinois)
Xpedior K Incorporated, formerly Kinderhook Systems, Inc. (Delaware)
Xpedior (Canada) Inc. (Ontario)
Xpedior (Australia) Pty Ltd. (Australia)
Xpedior (UK) Ltd. (United Kingdom)
Xpedior America Incorporated, formerly Metamor Consulting Solutions Acquisition
Sub #1, Inc. (Delaware)
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