EXHIBIT 10.14
TAX SEPARATION AGREEMENT
This TAX SEPARATION AGREEMENT is dated as of December 31, 2004, by
and among CenTra, Inc., a Delaware corporation ("CenTra"), and Universal
Truckload Services, Inc., a Michigan corporation ("Spinco").
WHEREAS, as of the date hereof, CenTra is the common parent of an
affiliated group of domestic corporations within the meaning of Section 1504(a)
of the Code, and the members of the affiliated group have heretofore joined in
filing consolidated federal income Tax Returns (the "Affiliated Group");
WHEREAS, CenTra intends to distribute all of the outstanding shares
of stock of Spinco pro rata to the holders of CenTra's capital stock in a
transaction that qualifies under section 355 of the Code (the "Distribution");
WHEREAS, the payment of the Special Dividend and the IPO are
intended to occur on the closing date of the IPO at such times as set forth in
the following three whereas clauses;
WHEREAS, on December 28, 2004, Spinco declared a special dividend
of $50.0 million payable to shareholders of record on December 28, 2004 (the
"Special Dividend");
WHEREAS, Spinco intends to issue shares of its common stock in an
initial public offering (the "IPO");
WHEREAS, Spinco intends to pay the Special Dividend to CenTra (its
sole shareholder of record on December 28, 2004) with a portion of the net
proceeds Spinco receives in connection with the IPO; and
WHEREAS, as a result of the Distribution, the Parties desire to
enter into this Tax Separation Agreement to provide for certain Tax matters,
including the assignment of responsibility for the preparation and filing of Tax
Returns, the payment of and indemnification for Taxes (including any Taxes with
respect to the Distribution), entitlement to refunds of Taxes, and the
prosecution and defense of any Tax controversies;
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained in this Agreement, the Parties hereby agree
as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1. Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"Agreement" shall mean this Tax Separation Agreement.
"Business Day" or "Business Days" shall mean a day which is not a
Saturday, Sunday or a day on which banks in New York City are authorized
or required by law to close.
"Closing of the Books Method" shall mean the apportionment of items
between portions of a taxable period based on a closing of the books and
records on the Distribution Date (as if the Distribution Date was the end
of the taxable period), provided that any items not susceptible to such
apportionment shall be apportioned on the basis of elapsed days during the
relevant portion of the taxable period.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Consolidated Income Taxes" means the income taxes relating to the
CenTra Affiliated Group.
"Consolidated Return" shall mean any Tax Return relating to Income
Taxes filed pursuant to Section 1502 of the Code, or any comparable
combined, consolidated, or unitary group Tax Return relating to Income
Taxes filed under state or local tax law which, in each case, includes
CenTra and at least one Subsidiary.
"Distribution Date" shall mean the Business Day on which the
Distribution is effected.
"Final Determination" shall mean the final resolution of liability
for any Tax for any taxable period, including any related interest or
penalties, by or as a result of: (i) a final and unappealable decision,
judgment, decree or other order by any court of competent jurisdiction;
(ii) a closing agreement or accepted offer in compromise under Section
7121 or 7122 of the Code, or comparable agreement under the laws of other
jurisdictions which resolves the entire Tax liability for any taxable
period; or (iii) any allowance of a refund or credit in respect of an
overpayment of Tax, but only after the expiration of all periods during
which such refund may be recovered by the jurisdiction imposing the Tax.
"Income Tax" shall mean any income, franchise or similar Taxes
imposed on (or measured by) net income or net profits.
"Income Tax Return" shall mean any Tax Return relating to Income
Taxes.
"Indemnified Liability" shall mean any liability subject to
indemnification pursuant to Section 2.6.
"IRS" shall mean the Internal Revenue Service.
"Other Tax" shall mean any Tax other than an Income Tax.
"Party" or "Parties" shall mean any or both of CenTra and Spinco, as
the case may be.
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"Proceeding" shall mean any audit, examination or other proceeding
brought by a Taxing Authority with respect to Taxes.
"Refund" shall have the meaning specified in Section 2.7.
"Ruling" shall mean the private letter ruling issued by the IRS to
CenTra dated August 21, 2003.
"Spinco Business" shall mean the transportation services provided by
Spinco.
"Spinco Subgroup" shall mean Spinco and its subsidiaries.
"Straddle Period" shall mean any taxable period commencing prior to,
and ending after, the Distribution Date.
"Subsidiary" shall mean, with respect to any person, any
corporation, partnership, association or other business entity of which
securities or other ownership interests representing more than 50% of the
equity or more than 50% of the ordinary voting power or more than 50% of
the general partnership interests are, at the time any determination is
being made, owned, controlled or held by such person.
"Tax" or "Taxes" shall mean all United States federal, state, local
or foreign income, profits, estimated, gross receipts, windfall profits,
severance, property, intangible property, occupation, production, sales,
use, license, excise, emergency excise, franchise, capital gains, capital
stock, employment, withholding, transfer, stamp, payroll, goods and
services, value added, alternative or add-on minimum tax, or any other
tax, custom, duty or governmental fee, or other like assessment or charge
of any kind whatsoever, together with any interest, penalties, fines,
related liabilities or additions to tax that may become payable in respect
thereof imposed by any Taxing Authority.
"Taxing Authority" shall mean any governmental authority (whether
United States or non-United States, and including, any state,
municipality, political subdivision or governmental agency) responsible
for the imposition of any Tax.
"Tax Returns" shall mean all reports or returns (including
information returns and amended returns) required to be filed or that may
be filed for any period with any Taxing Authority in connection with any
Tax or Taxes (whether domestic or foreign).
SECTION 1.2. References; Interpretation. References in this
Agreement to any gender include references to all genders, and references to the
singular include references to the plural and vice versa. The words "include",
"includes" and "including" when used in this Agreement shall be deemed to be
followed by the phrase "without limitation". Unless the context otherwise
requires, references in this Agreement to Articles and Sections shall be deemed
references to Articles and Sections of this Agreement. Unless the context
otherwise requires, the words "hereof", "hereby" and "herein" and words of
similar meaning when used in this Agreement refer to this Agreement in its
entirety and not to any particular Article, Section or provision of this
Agreement.
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ARTICLE II. ALLOCATION OF TAX LIABILITIES
SECTION 2.1. Tax Obligations of CenTra. CenTra agrees to pay the
Consolidated Income Taxes arising from filing a Consolidated Return. In the
event that Spinco or any of its subsidiaries, or successors in interest thereto,
directly pays, or causes to pay all or a portion of the Consolidated Income
Taxes arising from the filing of such Consolidated Return, CenTra shall promptly
reimburse Spinco to the extent such payment exceeds Spinco's allocable
Consolidated Income Taxes, as determined pursuant to Section 2.2.
SECTION 2.2. Certain Income Tax Obligations of Spinco. For any
taxable period in which Spinco is included in a Consolidated Return, Spinco
shall pay to CenTra a sum equal to the amount of Income Taxes that would
otherwise be payable to the IRS or other Taxing Authority with respect to the
Spinco Subgroup's taxable income, computed as if such group filed a separate
consolidated return with Spinco as the common parent.
SECTION 2.3. Changes in Prior Year's Tax Liabilities. In the event
that the Consolidated Income Taxes liability of the Spinco Subgroup which is
used in Section 2.2 computations for any year covered by this Agreement is
increased or decreased through the mechanism of an amended return or returns, or
by reason of the examination of the returns by the IRS or other Taxing
Authority, the amount due from Spinco for payment of Taxes under Section 2.2
shall be recomputed by CenTra to reflect the adjustments to taxable income, tax
and tax credits for the taxable year. In accordance with such recomputations and
no later than the date CenTra pays, receives or is otherwise charged or credited
funds by the IRS or other Taxing Authority, additional sums shall be paid
promptly by Spinco to CenTra, or by CenTra to Spinco, as applicable.
SECTION 2.4. Determination of Sums Due From and Payable to CenTra.
Spinco and CenTra shall cooperate in determining the sums due from and payable
to CenTra with respect to Income Taxes under the foregoing provisions of this
Agreement.
SECTION 2.5. Intentionally Left Blank.
SECTION 2.6. Indemnity. (a) CenTra shall indemnify Spinco from all
liability for (i) Income Taxes of the Affiliated Group for all periods (not
including Income Taxes of Spinco, any Spinco Subsidiary, or relating to the
Spinco Business, which are covered by Sections 2.2 and 2.3) and (ii) Income
Taxes resulting from the Distribution.
(b) Spinco shall indemnify CenTra from all liability for (i) Income
Taxes for which Spinco is liable pursuant to Section 2.2 and 2.3, (ii) Other
Taxes and any Income Taxes not otherwise covered by this Article II (excluding
any such Taxes covered by Section 4.1) of Spinco, any Spinco Subsidiary, or
relating to the Spinco Business for any taxable period ending on or before the
Distribution Date that were not paid by Spinco or any Spinco Subsidiary before
the Distribution Date, and (iii) any Taxes of Spinco, any Spinco Subsidiary, or
relating to the Spinco Business for any taxable period ending after the
Distribution Date.
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SECTION 2.7. Refunds. (a) Subject to Section 3.5, if a Party
receives a refund, offset, credit, or other benefit (including interest received
thereon) (a "Refund") of Tax which the other Party would have been obligated to
indemnify had the Refund been a payment, then the Party receiving the Refund
shall promptly pay the amount of the Refund to the other Party, less reasonable
costs and expenses incurred in connection with such Refund, including any Taxes
on such Refund or interest thereon.
(b) Each Party shall, if reasonably requested by the other Party,
cause the relevant entity to file for and use its reasonable best efforts to
obtain and expedite the receipt of any refund to which such requesting Party is
entitled under this Section 2.7.
SECTION 2.8. Contests. (a) In the case of an audit or other
administrative or judicial proceeding that relates to Taxes for which CenTra is
responsible under this Agreement, CenTra shall have the sole right to control
the conduct of such audit or proceeding.
(b) In the case of an audit or other administrative or judicial
proceeding that relates to Taxes for which Spinco is responsible under this
Agreement, Spinco shall have the sole right to control the conduct of such audit
or proceeding.
(c) In the case of an audit or other administrative or judicial
proceeding that relates to a Straddle Period of Spinco, the Spinco Subsidiaries,
or the Spinco Business, the Parties shall use reasonable efforts to cause such
proceedings to be bifurcated between the period ending on the Distribution Date
and the period beginning after the Distribution Date. If the Parties are able to
cause the audit to be so bifurcated, then Sections 2.8(a) and (b) hereof shall
govern the control of such proceedings. To the extent that the Parties are
unable to cause such bifurcation, CenTra and Spinco shall jointly control such
proceedings.
(d) After the Distribution Date, each Party shall promptly notify
the other Party in writing upon receipt of written notice of the commencement of
any Tax audit or administrative or judicial proceeding or of any demand or claim
upon it, which, if determined adversely, would be grounds for indemnification
from such other Party pursuant to this Agreement or could reasonably be expected
to have an adverse tax effect on the other Party. Each Party shall, on a timely
basis, keep the other Party informed of all developments in the audit and
provide such other Party with copies of all pleadings, briefs, orders, and other
correspondence pertaining thereto.
SECTION 2.9. Treatment of Payments; After Tax Basis. (a) CenTra and
Spinco agree to treat any indemnification payments (other than payments of
interest pursuant to Section 2.9(c)) pursuant to this Agreement as either a
capital contribution or a distribution, as the case may be, between CenTra and
Spinco occurring immediately prior to the Distribution. If the receipt or
accrual of any such payment (other than payments of interest pursuant to Section
2.9(c)) results in taxable income to the indemnified Party, such payment shall
be increased so that, after the payment of any Taxes with respect to the
payment, the indemnified Party shall have realized the same net amount it would
have realized had the payment not resulted in taxable income.
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(b) To the extent that any Indemnified Liability gives rise to a
deduction, credit or other Tax benefit to the indemnified Party, the amount of
any payment made under this Article II shall be decreased by taking into account
any resulting reduction in Taxes of the indemnified Party. If a reduction in
Taxes of the indemnified Party occurs in a taxable period following the period
in which the indemnification payment is made, the indemnified Party shall
promptly repay the indemnifying Party the amount of such reduction (including
any portion of a Refund attributable to interest) when actually realized.
(c) Payments made pursuant to this Agreement that are not made
within the period prescribed in this Agreement or, if no period is prescribed,
within thirty (30) days after demand for payment is made (the "Payment Period")
shall bear interest for the period from and including the date immediately
following the last date of the Payment Period through and including the date of
payment at a per annum rate equal to 4%. Such interest will be payable at the
same time as the payment to which it relates and shall be calculated on the
basis of a year of 365 days and the actual number of days for which due.
SECTION 2.10. Agent. Subject to the other applicable provisions of
this Agreement, Spinco hereby irrevocably designates, and agrees to cause each
of its Subsidiaries to so designate, CenTra as its sole and exclusive agent and
attorney-in-fact to take such action (including execution of documents) as
CenTra, in its sole discretion, may deem appropriate in any and all matters
(including audits) relating to any Tax Return relating to Income Taxes for which
CenTra has an indemnification obligation under this Article II.
SECTION 2.11. Cooperation. Subject to the provisions of Section 3.7,
the Parties shall reasonably cooperate with one another in a timely manner in
any Proceeding involving any matter that may result in an Indemnified Liability.
The Parties agree that such cooperation shall include, without limitation,
making available to the other Party, during normal business hours, all books,
records and information, officers and employees (without substantial
interruption of employment) necessary or useful in connection with any such
judicial or administrative Proceeding. The Party requesting or otherwise
entitled to any books, records, information, officers or employees pursuant to
this Section 2.11 shall bear all reasonable out-of-pocket costs and expenses
(except reimbursement of salaries, employee benefits and general overhead)
incurred in connection with providing such books, records, information, officers
or employees.
ARTICLE III. RETURNS AND TAXES ATTRIBUTABLE TO SPINCO
SECTION 3.1. CenTra's Responsibility for the Preparation of Tax
Returns and for the Payment of Taxes. (a) CenTra shall prepare and file or cause
to be prepared and filed all Income Tax Returns of Spinco and any Spinco
Subsidiary for all periods ending on or before the Distribution Date. Without
affecting the indemnification obligations of CenTra and Spinco under this
Agreement, in the event that CenTra fails to prepare and file or cause to be
prepared and filed any Tax Return that it is required to file pursuant to this
Section 3.1(a), Spinco shall have the right, but not the obligation, to prepare
and file all such Tax Returns at CenTra's expense.
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(b) With respect to Income Tax Returns that are to be prepared and
filed by CenTra pursuant to the preceding paragraph (including separate returns
of Spinco and any Spinco Subsidiary as included in a Consolidated Return),
CenTra shall provide a copy of such Tax Returns to Spinco within a reasonable
time period before the due date for filing of such Tax Returns.
(c) To the extent that Spinco, any Spinco Subsidiary or the Spinco
Business is included in any Consolidated Return for a taxable period that
includes the Distribution Date, CenTra shall include in such Consolidated Return
the results of Spinco, the Spinco Subsidiaries, and the Spinco Business on the
basis of the Closing of the Books Method. To the extent permitted by law or
administrative practice with respect to other Income Tax Returns, the taxable
period relating to Spinco, any Spinco Subsidiary and the Spinco Business shall
be treated as ending on the Distribution Date, and if the taxable period does
not, in fact, end on the Distribution Date, the Parties shall apportion all tax
items between the portions of the taxable period before and after the
Distribution Date on the Closing of the Books Method.
SECTION 3.2. Spinco's Responsibility for the Preparation of Tax
Returns and for the Payment of Taxes. Spinco shall prepare and file all Tax
Returns relating to Other Taxes of Spinco or any Spinco Subsidiary that have not
been filed before the Distribution Date. Spinco shall prepare and file or cause
to be prepared and filed all Tax Returns of Spinco or any Spinco Subsidiary for
periods commencing after the Distribution Date.
SECTION 3.3. Responsibility for the Preparation of Straddle Period
Income Tax Returns and for the Payment of Straddle Period Income Taxes. (a)
Spinco shall prepare and file or cause to be prepared and filed all Income Tax
Returns of Spinco or any Spinco Subsidiary for any Straddle Period. All such
Income Tax Returns that are to be prepared and filed by Spinco pursuant to this
paragraph shall be submitted to CenTra within a reasonable time period before
the due date for filing of such Income Tax Returns. CenTra shall have the right
to review such Tax Returns and to review all work papers and procedures used to
prepare any such Tax Return. If CenTra, within ten (10) business days after
delivery of any such Tax Return, notifies Spinco in writing that it objects to
any of the items in such Tax Return, CenTra and Spinco shall attempt in good
faith to resolve the dispute and, if they are unable to do so, the disputed
items shall be resolved (within a reasonable time, taking into account the
deadline for filing such Tax Return) by an internationally recognized
independent accounting firm chosen by both CenTra and Spinco. Upon resolution of
all such items, the relevant Straddle Period Tax Return shall be filed on that
basis. The costs, fees and expenses of such accounting firm shall be borne
equally by CenTra and Spinco.
(b) Spinco shall be liable for the Income Taxes shown on the Income
Tax Returns filed pursuant to Section 3.3(a).
SECTION 3.4. Manner of Preparation. All Income Tax Returns filed on
or after the Distribution Date shall be prepared in a manner that is consistent
with the Ruling and advice rendered by CenTra's and Spinco's tax advisors, or
any other rulings obtained from other Taxing Authorities in connection with the
Distribution (in the absence of a Final Determination to the contrary) and shall
be filed on a timely basis (including pursuant to extensions) by the Party
responsible for such filing under this Agreement. In the absence of a Final
Determination to the
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contrary, a controlling change in law or circumstances, or accounting method
changes pursuant to applications that are approved by the IRS, all Income Tax
Returns of Spinco and its Subsidiaries for tax periods commencing prior to the
Distribution Date shall be prepared on a basis consistent with the elections,
accounting methods, conventions, assumptions and principles of taxation used
with respect to the Spinco Business for the most recent taxable periods for
which Tax Returns of the Affiliated Group have been filed.
SECTION 3.5. Carrybacks. To the extent permitted by law, Spinco and
its Subsidiaries shall elect to forego a carry back of any net operating losses,
capital losses or credits for any taxable period ending after the Distribution
Date to a taxable period, or portion thereof, ending on or before the
Distribution Date. If and to the extent that Spinco or any of its Subsidiaries
is not permitted by applicable law to forego such carryback and requests in
writing that CenTra obtain a refund with respect to such carryback, then (a)
CenTra, in its sole and absolute discretion, shall take all reasonable measures
to obtain a refund with respect to such carryback (including by filing an
amended Tax Return) and (b) to the extent that CenTra receives a refund of Taxes
(including interest received thereon) attributable to such carryback, CenTra
shall pay such refund to Spinco. CenTra shall be entitled to reduce the amount
of any such refund for its reasonable costs and expenses incurred in connection
with such refund, including any Taxes on receipt of such refund or interest
thereon.
SECTION 3.6. Retention of Records; Access. (a) CenTra and Spinco
shall, and shall cause each of their Subsidiaries to, retain adequate records,
documents, accounting data and other information (including computer data)
necessary for the preparation and filing of all Tax Returns required to be filed
by CenTra or Spinco and for any Proceeding relating to such Tax Returns or to
any Taxes payable by CenTra or Spinco.
(b) CenTra and Spinco shall, and shall cause each of their
Subsidiaries to, provide reasonable access to (i) all records, documents,
accounting data and other information (including computer data) necessary for
the preparation and filing of all Tax Returns required to be filed by CenTra or
Spinco and for any Proceeding relating to such Tax Returns or to any Taxes
payable by CenTra or Spinco and (ii) its personnel and premises, for the purpose
of the preparation, review or audit of such Tax Returns, or in connection with
any Proceeding, as reasonably requested by either CenTra or Spinco.
(c) The obligations set forth above in Sections 3.6(a) and 3.6(b)
shall continue until the longer of (i) the time of a Final Determination or (ii)
expiration of all applicable statutes of limitations, to which the records and
information relate. For purposes of the preceding sentence, each Party shall
assume that no applicable statute of limitations has expired unless such Party
has received notification or otherwise has actual knowledge that such statute of
limitations has expired.
SECTION 3.7. Confidentiality; Ownership of Information; Privileged
Information. Upon reasonable notice, each of CenTra and Spinco, shall from and
after the Distribution Date, afford to each other and to the other Party's
representatives, reasonable access, during normal business hours, in a manner
that does not unreasonably interfere with one another's respective business and
operations, to its records and information for the purpose of carrying out the
intent of this Agreement. Notwithstanding the foregoing, neither Party shall be
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required to provide any information to the extent that any such Party is
obligated to keep such information confidential or otherwise not to provide such
information or to the extent that such access would constitute a waiver of the
attorney-client privilege. Each of CenTra and Spinco shall hold, and shall
direct its representatives to hold, any and all information received from the
other, directly or indirectly, in confidence.
ARTICLE IV. OTHER TAX MATTERS
SECTION 4.1. Transfer Taxes. CenTra shall bear any and all stamp,
duty, transfer, sales and use or similar Taxes incurred in connection with the
Distribution.
SECTION 4.2. Supplemental Rulings. CenTra shall provide Spinco a
copy of and an opportunity to comment upon any supplemental ruling sought from
the IRS with respect to the Ruling and no supplemental ruling request shall be
made without Spinco's consent.
SECTION 4.3. Covenant of CenTra. Until September 15, 2008, CenTra
agrees to maintain a net worth and an ability to obtain funds from third party
sources in an aggregate amount equal to at least the maximum amount needed to
satisfy any potential Income Tax liability of CenTra that would arise if the
Distribution were not tax-free under section 355 of the Code.
ARTICLE V. MISCELLANEOUS
SECTION 5.1. Complete Agreement; Construction. This Agreement shall
constitute the entire agreement between the Parties with respect to the subject
matter hereof and shall supersede all previous negotiations, commitments and
writings with respect to such subject matter and, furthermore, shall supercede
any previous tax sharing agreements or arrangements between the Parties, it
being understood that any such previous agreements or arrangements are hereby
terminated.
SECTION 5.2. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more such counterparts have been signed
by both Parties.
SECTION 5.3. Survival of Agreements. Except as otherwise
contemplated by this Agreement, all covenants and agreements of the Parties
contained in this Agreement shall survive the Distribution Date.
SECTION 5.4. Notices. All notices and other communications hereunder
shall be in writing and hand delivered or mailed by registered or certified mail
(return receipt requested) or sent by any means of electronic message
transmission with delivery confirmed (by voice or otherwise) to the Parties at
the following addresses (or at such other addresses for a Party as shall be
specified by like notice) and will be deemed given on the date on which such
notice is received:
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To CenTra:
CenTra, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ (ext. 2522)
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
To Spinco:
Universal Truckload Services, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ (ext. 2208)
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
SECTION 5.5. Waivers. The failure of any Party to require strict
performance by the other Party of any provision in this Agreement will not waive
or diminish that Party's right to demand strict performance thereafter of that
or any other provision hereof.
SECTION 5.6. Amendments. This Agreement may not be modified or
amended except by an agreement in writing signed by the Parties hereto.
SECTION 5.7. Assignment. This Agreement shall not be assignable, in
whole or in part, directly or indirectly, by any Party hereto without the prior
written consent of the other Party hereto, and any attempt to assign any rights
or obligations arising under this Agreement without such consent shall be void.
SECTION 5.8. Successors and Assigns. The provisions to this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the Parties and their respective successors and permitted assigns.
SECTION 5.9. Additional Members. Any new members of the Affiliated
Group shall automatically become a Party to this Agreement upon becoming
members.
SECTION 5.10. Third Party Beneficiaries. This Agreement is solely
for the benefit of the Parties hereto and should not be deemed to confer upon
third parties any remedy, claim, liability, reimbursement, claim of action or
other right in excess of those existing without reference to this Agreement.
SECTION 5.11. Title and Headings. Titles and headings to sections
herein are inserted for the convenience of reference only and are not intended
to be a part of or to affect the meaning or interpretation of this Agreement.
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SECTION 5.12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MICHIGAN.
SECTION 5.13. Consent to Jurisdiction. The Parties hereto hereby
agree that the appropriate forum and venue for any disputes between any of the
Parties hereto arising out of this Agreement shall be any competent state or
federal court sitting in the state of Michigan subject to CenTra's right to
remove such action to the federal district court based in Detroit, Michigan or
to any court of competent jurisdiction located in Oakland County, Michigan, and
each of the Parties hereto hereby submits to the personal jurisdiction of any
such court. The foregoing shall not limit the rights of any Party to obtain
execution of judgment in any other jurisdiction.
SECTION 5.14. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The Parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
duly executed as of the day and year first above written.
CENTRA, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: V.P.
UNIVERSAL TRUCKLOAD SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: CFO
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