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EXHIBIT 99.2
AMENDED AND RESTATED
ADMINISTRATIVE SERVICES AGREEMENT
EFFECTIVE APRIL 23, 2001
BY AND BETWEEN
THE XXXXXXXX COMPANIES, INC. AND ITS SUBSIDIARIES
(THE "XXXXXXXX GROUP")
AND
XXXXXXXX COMMUNICATIONS GROUP, INC. AND ITS SUBSIDIARIES
(THE "COMMUNICATIONS GROUP")
SUPERSEDES:
(1) The May 27, 1999, Technical, Management and Administrative Services
Agreement by and between Xxxxxxxx International Company and Communications (the
"1999 INTERNATIONAL SERVICES AGREEMENT");
(2) The September 30, 1999, the Administrative Services Agreement by and between
the Xxxxxxxx Group and the Communications Group (THE "1999 ADMINISTRATIVE
SERVICES AGREEMENT"); and
(3) The September 30, 1999, the Service Agreement for Data Processing and
Computer related services by and between Xxxxxxxx Information Services
Corporation and the Communications Group (the "1999 DATA PROCESSING SERVICE
AGREEMENT").
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AMENDED AND RESTATED
ADMINISTRATIVE SERVICES AGREEMENT
TABLE OF CONTENTS
1. SERVICES.....................................................................................................2
1.1 TERMINATION OF THE PRIOR AGREEMENTS.....................................................................2
1.2 SCOPE OF SERVICES.......................................................................................2
2. CHARGES FOR SERVICES.........................................................................................3
2.1 SERVICE CHARGES.........................................................................................3
2.2 SURCHARGE...............................................................................................4
2.3 INVOICES................................................................................................4
3. TAXES........................................................................................................7
4. NO SET-OFF RIGHT.............................................................................................7
5. MANNER AND TIME OF PERFORMANCE...............................................................................7
6. BOOKS AND RECORDS............................................................................................8
6.1 RECORDS.................................................................................................8
6.2 RIGHT TO AUDIT..........................................................................................8
7. INDEPENDENT CONTRACTOR.......................................................................................8
8. CONFIDENTIALITY..............................................................................................8
8.1 COMMUNICATIONS INFORMATION..............................................................................8
8.2 XXXXXXXX INFORMATION....................................................................................8
9. TERM OF AGREEMENT............................................................................................8
9.1 INITIAL TERM; RENEWAL; PARTIAL TERMINATION; TERMINATION.................................................8
9.2 TERMINATION FOR CAUSE...................................................................................9
9.3 POST-TERMINATION OBLIGATIONS............................................................................9
10. ASSIGNMENT...................................................................................................9
11. INDEMNIFICATION.............................................................................................10
11.1 INDEMNIFICATION OF XXXXXXXX............................................................................10
11.2 INDEMNIFICATION OF COMMUNICATIONS......................................................................10
11.3 LIMITATION AND SURVIVAL................................................................................10
12. INSURANCE...................................................................................................10
12.1 OBLIGATION TO OBTAIN...................................................................................10
12.2 POLICY REQUIREMENTS....................................................................................11
12.3 WAIVER OF SUBROGATION..................................................................................11
12.4 BLANKET POLICIES.......................................................................................11
13. LITIGATION..................................................................................................11
13.1 XXXXXXXX LITIGATION........................................................................................11
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13.2 COMMUNICATIONS LITIGATION................................................................................12
14. WARRANTY OF SERVICE......................................................................................12
15. LIMITATION OF LIABILITY..................................................................................13
16. FORCE MAJEURE............................................................................................13
17. NO THIRD PARTY BENEFICIARY...............................................................................14
18. MUTUAL COOPERATION.......................................................................................14
19. COMPLIANCE WITH LAWS.....................................................................................14
20. GOVERNING LAW............................................................................................15
21. IMPROPER PAYMENTS........................................................................................15
22. NOTICES..................................................................................................15
23. FURTHER ASSURANCES.......................................................................................16
24. WAIVER...................................................................................................16
25. DISPUTE RESOLUTION.......................................................................................16
26. CONSTRUCTION.............................................................................................16
27. SUBCONTRACTORS...........................................................................................16
28. AMENDMENT................................................................................................16
29. ENTIRE AGREEMENT.........................................................................................17
30. SEVERABILITY.............................................................................................17
31. CONFLICT WITH SERVICE LEVEL AGREEMENTS...................................................................17
32. COUNTERPARTS.............................................................................................17
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ATTACHMENTS
ATTACHMENT A: SERVICE LEVEL AGREEMENTS
ATTACHMENT B: SELECTED CERTIFIED PUBLIC ACCOUNTANTS
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AMENDED AND RESTATED ADMINISTRATIVE SERVICES AGREEMENT
THIS AMENDED AND RESTATED ADMINISTRATIVE SERVICES AGREEMENT (this "AGREEMENT")
is made and entered into as of the 23rd day of April 2001 (the "EFFECTIVE
DATE"), by and between
The Xxxxxxxx Companies, Inc., a Delaware corporation ("XXXXXXXX"), and
those certain subsidiaries of Xxxxxxxx listed on the Signature Pages of
this Agreement (collectively the "XXXXXXXX SUBSIDIARIES" and, together
with Xxxxxxxx, the "XXXXXXXX GROUP"),
and
Xxxxxxxx Communications Group, Inc., a Delaware corporation,
("COMMUNICATIONS") and those certain subsidiaries of Communications
listed on the Signature Pages of this Agreement (collectively THE
"COMMUNICATIONS SUBSIDIARIES" and, together with Communications, the
"COMMUNICATIONS GROUP").
The parties to this Agreement are collectively referred to herein as the
"PARTIES", and singularly as a "PARTY". Where the context indicates that there
are two parties to this Agreement (such as references to the "other Party",
"either Party", "neither Party"), "Party" shall be deemed to refer to Xxxxxxxx
(as the representative of the Xxxxxxxx Group) and Communications (as the
representative of the Communication Group). The Xxxxxxxx Group and the
Communications Group are collectively referred to herein as the "Groups" and
singularly as a "Group."
WHEREAS, Xxxxxxxx plans to spin-off a portion of the issued and outstanding
Communications Class A common stock, par value $.01 per share, held by Xxxxxxxx
to the shareholders of Xxxxxxxx (the "SPIN-OFF");
WHEREAS, the Xxxxxxxx Group and the Communications Group entered into multiple
agreements during 1999 regarding the delivery of services from the Xxxxxxxx
Group to facilitate the operations of the Communications Group;
WHEREAS, the parties desire to supersede the Prior Agreements (as defined
hereafter);
WHEREAS, the Communications Group desires to continue to obtain certain Services
from the Xxxxxxxx Group to facilitate the operations of the Communications Group
upon the terms and subject to the conditions that are set forth in this
Agreement and the Xxxxxxxx Group desires to continue to provide such Services;
WHEREAS, the Xxxxxxxx Group desires to continue to obtain certain services from
the Communications Group to facilitate the operations of the Xxxxxxxx Group upon
the terms and subject to the conditions that are set forth in this Agreement and
the Communications Group desires to continue to provide such services; and
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WHEREAS, the Xxxxxxxx Group and the Communications Group desire to establish new
arrangements regarding Services in contemplation of the Spin-Off;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises and obligations contained herein, the Parties hereto agree as follows:
1. SERVICES.
1.1 Termination of the Prior Agreements.
The Parties acknowledge that (1) on May 27, 1999, Xxxxxxxx
International Company and Communications entered into a Technical,
Management and Administrative Services Agreement on (the "1999
INTERNATIONAL SERVICES AGREEMENT"); (2) on September 30, 1999, the
Xxxxxxxx Group and the Communications Group entered into an
Administrative Services Agreement (THE "1999 ADMINISTRATIVE SERVICES
AGREEMENT"); and (3) on September 30, 1999, Xxxxxxxx Information
Services Corporation and the Communications Group entered into a
Service Agreement for Data Processing and Computer related services on
September 30, 1999 (the "1999 DATA PROCESSING SERVICE AGREEMENT"). The
1999 International Services Agreement, the 1999 Administrative Services
Agreement, and the 1999 Data Processing Service Agreement shall be
collectively referred to herein as the "PRIOR AGREEMENTS".
As of the Effective Date, the Prior Agreements are hereby terminated
and the terms and conditions of this Agreement supersede and replace
those of the Prior Agreements, except for obligations arising under the
Prior Agreements prior to such termination.
1.2 Scope of Services.
The term "SERVICES" as used in this Agreement means each of the
services set forth in a Service Level Agreement attached hereto as
Attachment A, and incorporated as part of this Agreement, as well as
any other services ("ADDITIONAL SERVICES") that the Xxxxxxxx Group or
the Communications Group provides at the written request of a Vice
President, President, or Chairman of the other Group. Certain Services
shall also be subject to the Supplemental Terms and Conditions attached
to Attachment A. The Party providing Services shall be referred to
herein as the "PROVIDER" and the Party receiving the Services shall be
referred to herein as the "RECIPIENT". The Parties acknowledge that in
the event the Communications Group provides Services or Additional
Services to the Xxxxxxxx Group, such services shall be provided by
Xxxxxxxx Communications, LLC or one of its subsidiaries.
The Provider shall use its reasonable efforts to provide Additional
Services using available personnel. Neither Group shall be obligated to
retain additional personnel in order to provide the requested
Additional Services. In the event Additional Services are requested and
the Provider agrees to provide such Additional Services, the Parties
shall amend Attachment A as soon as practicable thereafter to include
the requested Additional Services. Except as set forth to the contrary
in this Agreement, for Services provided to
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the Communications Group under the Prior Agreements the course of
dealing between the Xxxxxxxx Group and the Communications Group under
the Prior Agreements shall define the scope of each Service. Neither
Group shall be obligated under this Agreement to provide, or pay for,
other services, including any services provided under the Prior
Agreements not included in this Agreement. Provided however, that if
services are discovered that are not included under a Service Level
Agreement hereunder and the Recipient desires to continue to receive
such service, the applicable Service Level Agreement will be amended
and the Recipient shall pay the associated charges for such service
retroactively to the Effective Date hereof. In the event the Recipient
desires to discontinue such service upon its discovery, the Recipient
shall not be obligated to pay for the past delivery of such service.
1.3 The Parties agree that any Services obtained hereunder by the
Recipient or any wholly owned subsidiary of Recipient shall be used for
internal purposes only and shall not be resold to third parties;
provided however, Services may be provided to third parties in the
event of a divestiture or other corporate combination under a
transition services agreement with the acquiring entity. The Parties
specifically acknowledge that Communications may provide Services it
acquires hereunder to Platinum Equity Holdings (now known as Nextira),
the entity that acquired Xxxxxxxx Communications Services.
2. CHARGES FOR SERVICES.
2.1 Service Charges.
In consideration of Services rendered, the Recipient shall pay for
Services performed by the Provider (the "SERVICE CHARGES"). Except for
Additional Services, Service Charges shall be computed in accordance
with individual Service Level Agreements in Attachment A. Charges for
Additional Services shall be computed:
(a) pursuant to the written agreement between the Parties executed
after the Effective Date of this Agreement; or
(b) if there is no such agreement, then in accordance with the
computational method for the Service set forth in Attachment A
that, in the Provider's bona fide judgment, is most similar to
the Additional Service, provided that if no such Service is,
in the Provider's bona fide judgment, reasonably similar to
such Additional Service, then at prevailing market rates for
similar services.
The intent of the parties with respect to payment for Services
performed hereunder is that the Service Charges includes (i) the
charges for Services computed in accordance with individual Service
Level Agreements in Attachment A; (ii) other reasonable out-of-pocket
expenses incurred by the Provider upon the written request or approval
of the Recipient, and reasonable expenses with respect to travel and
charges by third parties incurred by the Provider on behalf of the
Recipient and upon its written request or subject to its written
approval, shall be reimbursed to the Provider; and (iii) amounts
expended
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by the Provider on behalf of the Recipient pursuant to Section 13
(including settlement costs and reasonable expenses associated
therewith including attorneys' fees and expenses and court costs) shall
be reimbursed to the Provider.
For any Services based on headcount, headcount shall be determined by
Xxxxxxxx' general accounting group on a monthly basis from the prior
month end (as of the last day of the month).
2.2 Surcharge.
From the Effective Date to December 31, 2001, the Provider shall be
entitled to charge an additional amount equal to 11.00% of the total
Services Charges for all Services provided hereunder (THE "SURCHARGE")
(unless otherwise provided in the attached Service Level Agreements in
Attachment A). The Surcharge represents those costs incurred by the
Provider that are not billed to the individual Provider cost centers
under the existing expense accounting processes. The Surcharge and the
Service Charges shall be collectively referred to herein as the "TOTAL
CHARGES". Except as otherwise provided in a Service Level Agreement the
Surcharge: (a) applies to any Services the Provider provides internally
and administrative fees associated with providing those Services and
(b) does apply to any externally provided product/service (e.g.
catering, travel expenses, overnight delivery, postage, office
products, copy paper, external consultants).
The Surcharge shall not apply to the IT Service Level Agreements
(numbered IT-1 through IT-21), the North/South Parking Garage Service
Level Agreement (ASF-3), the Travel Services Service Level Agreement
(ASF-10), the Technology Center Parking Garage (ASF-14), the Business
Media Services Service Level Agreements (BMS-1 through BMS-10), the
Employee Connections Service Level Agreement (HR-5), the Xxxxxx Clinic
Service Level Agreement (HR-17), or the Strategic Sourcing Service
Level Agreement (SS-1).
2.3 Invoices.
With respect to the Total Charges, the Provider shall submit invoices
to the Recipient on at least a monthly basis in the amounts determined
in accordance with this Section 2. The Recipient shall pay or cause to
be paid each invoice submitted pursuant to the foregoing sentence
within thirty (30) calendar days after the receipt by the Recipient of
such invoice (except with respect to amounts in any such invoice that
are objectively and manifestly in error). If the Recipient questions
the amount of any such invoice, the manner of its computation, or the
underlying data on which the invoice was based, it shall pay the
related invoice in accordance with the preceding sentence (except with
respect to amounts in any such invoice that are objectively and
manifestly in error) and thereafter notify the Provider of such
questions and, for a period of thirty (30) days thereafter, the
Provider shall make or cause to be made available to the Recipient, its
employees and designees, at a location in the Provider's headquarters
designated by the Provider during normal business hours, all
documentation necessary for the Recipient to review the
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invoice, the computation and the data (the Provider shall retain such
documentation as set forth in Section 6.1). If, upon completion of the
review, the Parties are not in agreement upon the amount of the
invoice, the amount shall be referred to the nationally recognized firm
of certified public accountants set forth on Attachment B attached
hereto and made a part hereof, which firm shall make a final binding
decision as to the correct amount of the invoice. If the firm
identified on Attachment B determines in its sole judgment that it
cannot maintain its independence for any reason, the Parties shall
mutually agree on an alternate firm to review the dispute in accordance
with this Agreement. In the event that it is determined that the
correct amount of the invoice is less than the amount that was paid by
the Recipient with regard thereto, the Provider shall promptly refund
the excess amount to the Recipient. The Groups shall equally share in
the cost associated with retaining such firm of certified public
accountants. Nothing herein shall be deemed to prevent either Group
from proposing adjustments to prior invoices after payment thereof; the
Groups shall propose such adjustments by written notice and shall
resolve any disputes arising from such proposed adjustments in the
manner set forth above.
If either Group fails to pay as and when due and payable any amount
hereunder (including, without limitation, the Total Charges but
excluding disputed amounts), then either Xxxxxxxx or Communications, as
the case may be, shall pay interest on such amount from the due date up
to and including the date when such amount and all interest thereon are
paid in full at the rate per annum equal to the prime rate of Citibank
N.A., plus one percent (1%). For the purposes hereof, the "PRIME RATE
OF CITIBANK N.A." shall mean the annual rate of interest announced from
time to time by Citibank N.A. as a reference rate then in effect for
determining annual interest rates of U.S. dollar commercial loans.
Until the Recipient notifies the Provider otherwise, invoices shall be
delivered in written, tangible form (including by facsimile or
electronic invoicing)to the following addresses:
IF TO XXXXXXXX OR ANY XXXXXXXX SUBSIDIARY:
IF TO CORPORATE:
THE XXXXXXXX COMPANIES
XXX XXXXXXXX XXXXXX
XXXXX, XXXXXXXX 00000
ATTENTION: XXX XXXX (48-8)
GENERAL ACCOUNTING DEPARTMENT
IF TO WISC:
XXXXXXXX INFORMATION SERVICES CORPORATION
XXX XXXXXXXX XXXXXX
XXXXX, XXXXXXXX 00000
ATTENTION: XXX X. XXXXX (33-7)
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IF TO XXXXXXXX RELOCATION MANAGEMENT:
XXXXXXXX RELOCATION MANAGEMENT
XXX XXXXXXXX XXXXXX
XXXXX, XXXXXXXX 00000
ATTENTION: XXXXXXX XXXXXXX (MD-WRM)
IF TO COMMUNICATIONS OR ANY COMMUNICATIONS SUBSIDIARY (INVOICES FOR INFORMATION
TECHNOLOGY SERVICES):
XXXXXXXX COMMUNICATIONS GROUP, INC.
320 SO. BOSTON
0XX XXXXX, XXXXXXXXX
XXXXX, XXXXXXXX 00000
ATTENTION: XXXXX XXXXXX, MANAGER, FINANCIAL ANALYSIS
IF TO COMMUNICATIONS OR ANY COMMUNICATIONS SUBSIDIARY (ALL OTHER INVOICES):
XXXXXXXX COMMUNICATIONS GROUP, INC.
XXX XXXXXXXX XXXXXX
XX 00-0
XXXXX, XXXXXXXX 00000
ATTENTION: XXXXX XXXXXX, DIRECTOR, PROCESS ADMINISTRATION
2.4 The Parties acknowledge that the Initial Term for the majority
of Services expires December 31, 2001. The Provider shall not be obligated to
provide Services beyond the Initial Term. Except as otherwise agreed, with
respect to Service Charges for Services with an Initial Term expiring on
December 31, 2001:
(a) On or before June 30, 2001, the Provider shall provide the
Recipient with a list of Services the Provider is willing to
provide beyond December 31, 2001 ("Secondary Term Services").
(b) On or before July 31, 2001, the Recipient shall designate
which Secondary Term Services it is interested in obtaining
from the Provider ("Selected Secondary Term Services").
(c) On or before September 1, 2001, the Provider shall provide a
proposed pricing scheme for the Services Charges for the
Selected Secondary Term Services to the Recipient ("Secondary
Term Pricing"). The Secondary Term Pricing shall designate a
fixed price or a defined cost-plus basis for the Services.
(d) On or before November 30, 2001, Recipient shall accept
(subject to negotiation of a binding agreement or renewal) or
reject the proposed Secondary Term Pricing. In the event
Recipient fails to respond by November 30, 2001 for any of the
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Selected Secondary Term Services, Provider shall assume such
failure to respond means a rejection of the Secondary Term
Pricing.
(e) On or before December 31, 2001, the affected Parties shall
execute an amended Service Level Agreement for all Selected
Secondary Term Services accepted by the Recipient.
For other Services with an Initial Term that expires after December 31,
2001, the affected Parties shall follow the same process set forth
above with the Provider indicating whether or not it is willing to
provide the Services beyond the expiration of the Initial Term six (6)
months prior to the expiration of the Initial Term.
3. TAXES.
The Recipient shall be responsible for payment to the Provider of all goods and
services tax and any other tax that is applicable to the Total Charges payable
by the Recipient hereunder. The Xxxxxxxx Group and the Communications Group
shall cooperate with each other and take reasonable steps to minimize the total
tax obligations arising under this Agreement, provided that neither the Xxxxxxxx
Group nor the Communications Group shall have any obligation to increase its own
tax liability.
4. NO SET-OFF RIGHT.
Neither the Xxxxxxxx Group nor the Communications Group shall have a right to
set off any amounts owed by the Recipient to the Provider under this Agreement,
notwithstanding any rule of law or provision otherwise in any other agreement,
except that, if:
(a) Xxxxxxxx becomes insolvent, the Communications Group shall
have the right to set off any amounts it owes under this
Agreement against amounts that the Xxxxxxxx Group owes it
under this Agreement; and
(b) Communications becomes insolvent, the Xxxxxxxx Group shall
have the right to set off any amounts it owes under this
Agreement against amounts that the Communications Group owes
it under this Agreement.
5. MANNER AND TIME OF PERFORMANCE.
The Provider shall perform or cause to be performed the Services hereunder with
the same degree of care, skill and diligence with which it performs or would
perform similar services for itself and its respective subsidiaries and
affiliates consistent with practices as of the Effective Date (including,
without limitation, with respect to the type, quantity, quality and timeliness
of such services).
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6. BOOKS AND RECORDS.
6.1 Records.
The Provider shall maintain and retain books, records, documents and
other written evidence, consistent with its normal accounting
procedures and practices (collectively, the "RECORDS"), sufficient to
accurately, completely and properly reflect the performance of the
Services hereunder and the amounts due in accordance with any provision
of this Agreement, provided that to the extent any Service Charge or
credit is based on other than a fixed amount, the Provider shall retain
the relevant Records for a period of two (2) years after issuing the
relevant invoice.
6.2 Right to Audit.
For a period of two (2) years after issuance of an invoice, the
Provider shall provide the Recipient and its representatives access,
subject to reasonable notice, at all times during normal business hours
to the Records for any purpose deemed appropriate by the Recipient
relating to the confirming, checking, reviewing, examining, auditing or
verifying the accuracy of the invoices submitted to them. Recipient
shall reimburse the Provider for any costs incurred as a result of such
audit.
7. INDEPENDENT CONTRACTOR.
In performing the Services hereunder, the Provider shall operate as and have the
status of an independent contractor, subject only to the general direction of
the Recipient regarding the Services to be rendered as opposed to the method of
performance of the Services.
8. CONFIDENTIALITY.
8.1 Communications Information.
All non-public information provided by any member of the Communications
Group or by any of their respective representatives pursuant to this
Agreement shall be confidential and not disclosed to any person except
with the consent of Communications.
8.2 Xxxxxxxx Information.
All non-public information provided by any member of the Xxxxxxxx Group
or by any of their respective representatives pursuant to this
Agreement shall be confidential and not disclosed to any person except
with the consent of Xxxxxxxx.
9. TERM OF AGREEMENT.
9.1 Initial Term; Renewal; Partial Termination; Termination.
This Agreement shall continue in force from the Effective Date through
December 31, 2001 (the "INITIAL TERM"), and shall automatically renew
for additional one (1) year terms thereafter (the "RENEWAL TERMS");
provided, however, that either
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Communications or Xxxxxxxx (as the Provider or the Recipient) may
terminate any Service being provided at any time and from time to time
by providing ninety (90) days advance written notice of such
termination to the other Group. Any such termination shall be effective
on the time and date stated therein; provided, however, for fixed fee
based Services, termination shall be effective at the end of a month,
unless otherwise provided. Either Group shall have the right to
terminate any Renewal Term of this Agreement by providing one hundred
and eighty (180) days advance written note of such termination of the
other Group.
9.2 Termination for Cause.
Either Communications or Xxxxxxxx may terminate this Agreement or any
addendum to this Agreement (i) for any material breach or default of
the other Group if such breach or default is not corrected within
thirty (30) days of giving written notice of such breach or default to
the defaulting Group; or (ii) immediately and without notice upon
insolvency or the commencement of any proceedings under any bankruptcy
or insolvency laws by or against the member of the other Group
performing a Service or obligated to pay for a Service; or (iii)
immediately and without notice upon the assignment by the member of the
other Group performing a Service or obligated to pay for a Service of
all or substantially all of its property for the benefit of its
creditors.
In the event that the Recipient fails to pay any amount that is
required to be paid hereunder when due and such payment is not
thereafter made within fifteen (15) business days after the date on
which the Provider has notified the Recipient in writing of such
failure to pay, the Provider may at its option and without further
notice immediately terminate the Services after the expiration of such
fifteen (15) business day period.
9.3 Post-Termination Obligations.
Upon termination of this Agreement or any individual Service provided
hereunder, the Recipient shall reimburse the Provider for all unpaid
amounts due as provided for in Section 2 incurred by the Provider up to
such date of termination; provided that if the Provider has received
more than the portion of such unpaid amounts due as provided for under
Section 2 as of the date of termination, the Provider shall reimburse
the Recipient the portion of such unpaid amounts to which it is not
entitled under Section 2.
Upon termination of this Agreement, the Provider will, at the request
of the Recipient, transfer to the Recipient historical data then in the
Provider's custody relating to the Services provided hereunder to the
Recipient.
10. ASSIGNMENT.
No member of either Group shall assign, in whole or in part, any of the rights,
obligations or benefits of this Agreement without the prior written consent of
the other Group, except that either Group may assign its rights (but not its
obligations, except as expressly provided otherwise) hereunder to any of its
affiliates or majority owned subsidiaries.
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11. INDEMNIFICATION.
11.1 Indemnification of Xxxxxxxx.
Communications and each member of the Communications Group will,
jointly and severally, and to the fullest extent permitted by
applicable law, indemnify and hold harmless Xxxxxxxx, Xxxxxxxx
Subsidiaries and their respective officers, directors, agents and
employees (collectively, THE "XXXXXXXX INDEMNITEES") from and against
all claims, demands, damages, losses, liabilities, costs or expenses
(including, without limitation, reasonable attorneys' fees and
expenses) (collectively, "COSTS") incurred or suffered by an Xxxxxxxx
Indemnitee as a result of the Services; provided, however, that the
foregoing terms of this sentence shall not apply to the extent such
Costs result from or arise out of the negligence or willful misconduct
of the Xxxxxxxx Group or any member thereof.
11.2 Indemnification of Communications.
Xxxxxxxx and each member of the Xxxxxxxx Group will, jointly and
severally, and to the fullest extent permitted by applicable law,
indemnify and hold harmless Communications, Communications Subsidiaries
and their respective officers, directors, agents and employees
(collectively, the "COMMUNICATIONS INDEMNITEES") from and against all
Costs incurred or suffered by a Communications Indemnitee as a result
of the Services; provided, however, that the foregoing terms of this
sentence shall not apply to the extent such Costs result from or arise
out of the negligence or willful misconduct of the Communications Group
or any member thereof.
11.3 Limitation and Survival.
In no case shall Costs be deemed to include Total Charges. This Section
11 shall survive the termination of the other terms of this Agreement.
12. INSURANCE.
12.1 Obligation to Obtain.
During the Initial Term or the Renewal Term, the Groups shall each
obtain and maintain not less than the following insurance:
(a) Commercial General Liability Insurance, with a combined single
limit of $5,000,000 for bodily injury and property damage per
occurrence and in the aggregate.
(b) Worker's Compensation Insurance in amounts required by
applicable law and Employers Liability Insurance with limits
not less than $1,000,000 each accident. If work is to be
performed in Nevada, North Dakota, Ohio, Washington,
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Wyoming or West Virginia, the party shall participate in the
appropriate state fund(s) to cover all eligible employees and
provide a stop gap endorsement.
(c) Automobile Liability Insurance with a combined single limit of
$2,000,000 for bodily injury and property damage per
occurrence, to include coverage for all owned, non-owned, and
hired vehicles.
The limits set forth above are minimum limits and shall not be
construed to limit the liability of either Group.
12.2 Policy Requirements.
Each Group shall obtain and maintain the insurance policies required
above with companies rated A- or better by Best's Key Rating Guide or
with a similar rating by another generally recognized rating agency.
The other Group, its affiliates, officers, directors, and employees,
and any other party entitled to indemnification hereunder shall be
named as additional insureds to the extent of such indemnification.
This insurance will be primary insurance with respect to the interests
of the additional insured, and any other insurance maintained by or on
behalf of the additional insured is excess and not contributory with
this insurance. Each Group shall provide the other Group with an
insurance certificate confirming compliance with the insurance
requirements of this Section 12. The insurance certificate shall
indicate that the other Group shall be notified not less than thirty
(30) calendar days prior to any cancellation or material change in
coverage. If either Group provides any of the foregoing coverages
through a claims-made policy basis, that Group shall cause such policy
or policies to be maintained for at least three (3) years beyond the
expiration of this Agreement.
12.3 Waiver of Subrogation.
The Groups shall each obtain from the insurance companies providing the
coverages required by this Agreement a waiver of all rights of
subrogation or recovery in favor of the other Group and, as applicable,
its members, managers, shareholders, affiliates, assignees, officers,
directors, and employees or any other party entitled to indemnity under
this Agreement to the extent of such indemnity.
12.4 Blanket Policies.
Nothing in this Agreement shall be construed to prevent either Group
from satisfying its insurance obligations pursuant to this Agreement
under a blanket policy or policies of insurance that meet or exceed the
requirements of this Section 12.
13. LITIGATION.
13.1 Xxxxxxxx Litigation.
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In the event that any litigation, proceeding, or investigation by or
before any court or governmental agency or body is commenced or
threatened against Xxxxxxxx or any member of the Xxxxxxxx Group after
the Effective Date of this Agreement and that relates to Services
rendered hereunder and arises out of or is based solely upon the past,
present, or future business or operations of Communications or of any
member of the Communications Group, then at Xxxxxxxx' option, Xxxxxxxx
and Communications shall use their best reasonable efforts to have
Communications or the relevant member of the Communications Group, as
the case may be, substituted in the place of and for Xxxxxxxx or the
relevant member of the Xxxxxxxx Group, as the case may be, and to have
Xxxxxxxx or the relevant member of the Xxxxxxxx Group, as the case may
be, removed as a party, as promptly as is practicable. Pending such
substitution, and in the cases where such substitution cannot be
effected, Communications, with the full cooperation of Xxxxxxxx and the
Xxxxxxxx Group, shall promptly assume and direct the defense,
prosecution, and/or settlement of the claims concerned, employing for
such purpose counsel reasonably satisfactory to Xxxxxxxx, and shall pay
all expenses related thereto. To the extent that any such expenses are
paid by Xxxxxxxx or the relevant member of the Xxxxxxxx Group, as the
case may be, Communications shall promptly reimburse Xxxxxxxx or the
relevant member of the Xxxxxxxx Group, as the case may be, therefor.
13.2 Communications Litigation.
In the event that any litigation, proceeding, or investigation by or
before any court or governmental agency or body is commenced or
threatened against Communications or a member of the Communications
Group after the Effective Date of this Agreement and that relates to
Services rendered hereunder and arises out of or is based solely upon
the past, present, or future business or operations of Xxxxxxxx or any
member of the Xxxxxxxx Group but not of Communications or a member of
the Communications Group, then at Communications' option,
Communications and Xxxxxxxx shall use their best reasonable efforts to
have Xxxxxxxx or the relevant member of the Xxxxxxxx Group, as the case
may be, substituted in the place of and for Communications or the
relevant member of the Communications Group, as the case may be, and to
have Communications or the relevant member of the Communications Group,
as the case may be, removed as a party, as promptly as is practicable.
Pending such substitution and in cases where such substitution cannot
be effected, Xxxxxxxx shall, with the full cooperation of
Communications and Communications Group, promptly assume and direct the
defense, prosecution, and/or settlement of the claims concerned,
employing for such purpose counsel reasonably satisfactory to
Communications, and shall pay all expenses related thereto. To the
extent that any such expenses are paid by Communications or the
relevant member of the Communications Group, Xxxxxxxx shall promptly
reimburse Communications or the relevant member of the Communications
Group, as the case may be, therefor.
14. WARRANTY OF SERVICE.
The Provider warrants that the Services provided will be provided in a
workmanlike manner. THE PROVIDER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS,
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EXPRESSED OR IMPLIED, IN FACT OR IN LAW, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY SERVICE
PROVIDED HEREUNDER, WHETHER DEVELOPED BY PROVIDER OR LICENSED, PURCHASED, OR
OTHERWISE OBTAINED BY PROVIDER FROM A THIRD PARTY.
Notwithstanding the above, the Provider shall make reasonable efforts to
promptly notify the Recipient of any claim the Provider may have under any
third-party (a party other than a Xxxxxxxx Indemnitee or a Communications
Indemnitee, as defined below) warranty or representation relating to the
Service. At the Recipient's election, the Provider shall either pursue such
claim or assign such claim (or the portion of the claim attributable to the
Services) to the Recipient. If the Provider pursues such claim, Recipient shall
reimburse Provider for all reasonable out-of-pocket costs incurred by the
Provider (including settlement costs and reasonable expenses associated
therewith including attorneys' fees and expenses and court costs) and Recipient
shall be entitled to any amounts recovered. If such claim relates both to
Services and to services the Provider provides to itself, its affiliates, or
third parties (the "OTHER SERVICES"), and if the Provider elects to pursue such
claim on its own behalf, then both the costs and the recovery shall be pro-rated
in an amount that fairly allocates such amounts between the Services and the
Other Services.
15. LIMITATION OF LIABILITY.
IN NO EVENT SHALL ANY MEMBER OF THE XXXXXXXX GROUP OR OF THE COMMUNICATIONS
GROUP BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES SUCH AS LOSS
OF PROFITS OR ANTICIPATED PROFITS, LOSS OF GOODWILL, LOSS OF USE OR DATA IN
CONNECTION WITH, OR ARISING OUT OF THE SERVICES PROVIDED HEREUNDER WHETHER BASED
UPON ANY THEORY IN CONTRACT OR IN TORT AND WHETHER OR NOT THE PARTIES HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH LOSS.
NOTWITHSTANDING THE ABOVE, IF THE PROVIDER RECOVERS ANY INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES FROM A PARTY OTHER THAN THE PROVIDER'S AFFILIATES (THE
XXXXXXXX INDEMNITEES OR THE COMMUNICATIONS INDEMNITIES, AS DEFINED BELOW), THE
PROVIDER SHALL PAY THE RECIPIENT THE NET AMOUNT (NET OF ANY COSTS OF LITIGATION)
OF SUCH RECOVERY THAT IS ATTRIBUTABLE TO THE SERVICES.
16. FORCE MAJEURE.
For purposes of this Section, "FORCE MAJEURE" means an event beyond the control
of either Group, that by its nature could not have been foreseen by such Group,
or if it could have been foreseen, was unavoidable, and includes without
limitation, acts of God, storms, floods, riots, fires, sabotage, civil commotion
or civil unrest, interference by civil or military authorities, acts of war
(declared or undeclared) and failure of energy sources.
Neither Group shall be under any liability for failure to fulfill any
obligation under this Agreement, so long as and to the extent to which the
fulfillment of such obligation is prevented,
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frustrated, hindered, or delayed as a consequence of circumstances of force
majeure, provided always that such Group shall have exercised all due diligence
to minimize to the greatest extent possible the effect of force majeure on its
obligations hereunder.
Promptly on becoming aware of force majeure causing a delay in
performance or preventing performance of any obligations imposed by this
Agreement (and termination of such delay), the Group affected shall give written
notice to the other Group giving details of the same, including particulars of
the actual and, if applicable, estimated continuing effects of such force
majeure on the obligations of the Group whose performance is prevented or
delayed. If such notice shall have been duly given, and actual delay resulting
from such force majeure shall be deemed not to be a breach of this Agreement,
and the period for performance of the obligation to which it relates shall be
extended accordingly, provided that if force majeure results in the performance
of a Group being delayed by more than 60 days, the other Group shall have the
right to terminate this Agreement with respect to any Service effected by such
delay forthwith by written notice.
The Parties acknowledge that Xxxxxxxx and Xxxxxxxx Communications
Solutions, LLC ("WCS") entered into a Transition Services Agreement effective
March 31, 2001 (the "WCS AGREEMENT"), whereby Xxxxxxxx obtains certain services
from WCS that Xxxxxxxx then provides to the Communications Group hereunder. In
the event the WCS Agreement expires, terminates, or Xxxxxxxx is no longer able
to obtain a certain service under the WCS Agreement, Xxxxxxxx shall attempt to
obtain similar service from an alternate source. In the event Xxxxxxxx fails to
obtain similar services on substantially the same terms and conditions as the
WCS Agreement, such failure to obtain similar services shall be considered a
force majeure event hereunder.
17. NO THIRD PARTY BENEFICIARY.
Nothing in this Agreement provides any legal rights to, or creates any liability
for, anyone not a signatory party to this Agreement.
18. MUTUAL COOPERATION.
The Parties shall provide each other with such assistance as may reasonably be
required by any of them in connection with the performance of all obligations
hereunder.
19. COMPLIANCE WITH LAWS.
Xxxxxxxx and Communications shall comply and each of Xxxxxxxx and Communications
shall cause compliance by the Xxxxxxxx Group and the Communications Group,
respectively, providing or receiving, as the case may be, Services hereunder,
with all applicable federal, state, and local laws and regulations in the
performance of this Agreement.
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20. GOVERNING LAW.
This Agreement shall be construed in accordance with, and all disputes hereunder
shall be governed by, the laws of the State of Oklahoma, without giving regard
to its conflicts of laws principles.
21. IMPROPER PAYMENTS.
Neither Group shall use any funds received hereunder for illegal or otherwise
"improper" purposes, nor pay any commissions, fees or rebates to any employee of
the other Group, nor favor any employee of the other Group with gifts or
entertainment of significant cost or value.
22. NOTICES.
Any notice, request, instruction, correspondence, document or other
communication to be given hereunder by any Group to another (herein collectively
called a "NOTICE") shall be in writing and delivered personally or mailed by
certified mail, postage prepared and return receipt requested, or by facsimile,
as follows:
IF TO XXXXXXXX OR ANY XXXXXXXX SUBSIDIARY:
THE XXXXXXXX COMPANIES, INC.
(OR IF TO A XXXXXXXX SUBSIDIARY, TO IT IN CARE OF XXXXXXXX)
XXX XXXXXXXX XXXXXX
XXXXX, XXXXXXXX 00000
ATTENTION: GENERAL COUNSEL
FACSIMILE NO. 000-000-0000
WITH A COPY TO CORPORATE CONTROLLER
IF TO COMMUNICATIONS OR ANY COMMUNICATIONS SUBSIDIARY:
XXXXXXXX COMMUNICATIONS GROUP, INC.
XXX XXXXXXXX XXXXXX
XXXXX, XXXXXXXX 00000
ATTENTION: GENERAL COUNSEL
FACSIMILE NO. 000-000-0000
WITH A COPY TO CORPORATE CONTROLLER
Notice given by personal delivery shall be effective upon actual receipt. Notice
given by mail shall be effective upon forty-eight (48) hours after it is placed
in a mailbox for mailing. Notice given by facsimile 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; provided that Notices by facsimile
are confirmed promptly after transmission by delivery to the recipient of a copy
thereof in writing by certified mail or personal delivery. Any Group may change
any address to which Notice is to be given to it by giving Notice as provided
above of such change of address. For purposes of this
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Agreement, the term "BUSINESS DAY" means any day other than a Saturday, Sunday
or a day on which national banks in the State of Oklahoma are permitted or
required by law to close.
23. FURTHER ASSURANCES.
Both Groups shall cooperate with each other and take reasonable steps to execute
and deliver such additional instruments or documents as shall be necessary to
otherwise carry out the intent and purposes of this Agreement.
24. WAIVER.
No waiver by any Party of any term or breach of this Agreement shall be
effective unless in writing and signed by the person against whom such waiver is
asserted, and a waiver of any one term or breach may not be construed as a
waiver of any other term or breach hereof or of the same or a similar term or
breach on any other occasion; provided, however, Xxxxxxxx may effect waivers or
amendments for any member of the Xxxxxxxx Group or Xxxxxxxx Indemnitee, and
Communications may effect waivers or amendments for any member of the
Communications Group or Communications Indemnitee.
25. DISPUTE RESOLUTION.
The Parties agree that any dispute arising under this Agreement shall be
resolved in accordance with the Dispute Resolution Procedures set forth in the
Amended and Restated Separation Agreement made by and between Xxxxxxxx and
Communications dated concurrently herewith.
26. CONSTRUCTION.
Except where otherwise expressly provided, all references to Sections,
paragraphs and Schedules in this Agreement shall be deemed to be references to
such Sections and paragraphs of this Agreement or Attachment A attached to this
Agreement, respectively. The terms "hereof," "herein," "hereunder" and other
terms of similar import shall be deemed to refer to this Agreement in its
entirety, and not to any Section or paragraph.
27. SUBCONTRACTORS.
The Provider shall bind every subcontractor it engages to perform Services for
Recipient to the provisions of this Agreement insofar as the same shall be
applicable to the subcontractor's performance of such Services. The Provider
shall be fully responsible to the Recipient for the acts or omissions of its
subcontractors, and of persons either directly or indirectly employed by them.
28. AMENDMENT.
No modification or amendment of this Agreement shall be binding upon any Party
unless in writing and signed by the party against which the modification or
amendment is asserted.
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29. ENTIRE AGREEMENT.
This Agreement and the attachments hereto (which are incorporated herein in
accordance with Section 1.2), constitute the entire understanding of the Parties
with respect to the subject matter hereof, superseding all negotiations, prior
discussions and preliminary agreements, if any.
30. SEVERABILITY.
Any Section or any other provision of this Agreement that is, or becomes,
illegal, invalid or unenforceable shall be severed herefrom and shall be
ineffective to the extent of such illegality, invalidity or unenforceability and
shall not affect or impair the remaining provisions hereof, which provisions
shall (a) be severed from any illegal, invalid or unenforceable Section or any
other provision of this Agreement, and (b) otherwise remain in full force and
effect; provided, however, that the Parties shall use their best efforts to
achieve the purpose of the invalid or unenforceable provision or part thereof by
a new valid and enforceable stipulation.
31. CONFLICT WITH SERVICE LEVEL AGREEMENTS.
In the event of a conflict with the terms and conditions of this Agreement and
the terms and conditions of the Service Level Agreements set forth in Attachment
A, the terms and conditions of the Service Level Agreements shall control except
in the case of dispute resolution in which case the terms and conditions of this
Agreement shall control.
32. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Parties hereto have executed this Amended and Restated
Administrative Services Agreement on and as of the date and year first-above
written.
THE XXXXXXXX COMPANIES, INC.
BY: /s/ XXXX X. XXXXXXXX
--------------------------------------
NAME: Xxxx X. XxXxxxxx
------------------------------------
TITLE: Senior Vice President
-----------------------------------
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XXXXXXXX INFORMATION SERVICES CORPORATION
BY: /s/ XXXX X. XXXXXXXX
----------------------------------------
NAME: Xxxx X. XxXxxxxx
--------------------------------------
TITLE: Senior Vice President
-------------------------------------
XXXXXXXX STRATEGIC SOURCING COMPANY
BY: /s/ XXX XXXXXX
----------------------------------------
NAME: Xxx Xxxxxx
--------------------------------------
TITLE: Vice President - Strategic Sourcing
-------------------------------------
XXXXXXXX ENERGY SERVICES
BY: /s/ X. X. XXXXXXX
----------------------------------------
NAME: X. X. Xxxxxxx
--------------------------------------
TITLE: President
-------------------------------------
XXXXXXXX COMMUNICATIONS GROUP, INC.
BY: /s/ XXXXXX X. XXXXXX
----------------------------------------
NAME: Xxxxxx X. Xxxxxx
--------------------------------------
TITLE: Vice President
-------------------------------------
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XXXXXXXX COMMUNICATIONS LLC
BY: /s/ XXX X. XXXXX
--------------------------------------
NAME: Xxx X. XxXxx
------------------------------------
TITLE: Senior Vice President
-----------------------------------
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