EXHIBIT (d)(14)
SERVICES AND LEASE AGREEMENT
between
LANDAIR TRANSPORT, INC.
and
WAREHOUSE LOGISTICS, LLC
SERVICES AND LEASE AGREEMENT
This SERVICES AND LEASE AGREEMENT (this "Agreement") is made as of the
1st day of April 2001, by and between Landair Transport, Inc., a corporation
organized under the laws of the State of Tennessee ("Landair"), and Warehouse
Logistics, LLC, a limited liability company organized under the laws of the
State of Tennessee ("Logistics").
W I T N E S S E T H:
WHEREAS, Landair and Logistics have agreed to enter into this Agreement
in order for Logistics or Landair, as the case may be, to provide the other with
certain services and support;
WHEREAS, in order to facilitate the purposes of this Agreement, Landair
has agreed to lease to Logistics 1,200 square feet of office space at 000
Xxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000;
NOW THEREFORE, in consideration of the premises and mutual promises
hereinafter set forth and other good and valuable consideration, the parties
hereto hereby agree as follows:
ARTICLE I
SERVICES TO BE PROVIDED
I.1 Provision of Services. Subject to all of the terms and
conditions hereof, Landair and Logistics hereby agree that Logistics shall offer
and provide to Landair those services described on Schedule A-1 hereto and
Landair shall offer and provide to Logistics those services and office space
described on Schedule A-2 hereto (collectively, the "Services"); provided,
however, that each of the parties hereto acknowledges and agrees that Services
may be added to, or deleted from, Schedule A-1 or Schedule A-2 by mutual consent
of the parties at any time (and the Services Fees (as defined herein) shall be
adjusted appropriately). As used herein, (a) the term "Recipient" means, with
respect to any given Service, the recipient of such Service and for purposes of
enforcing this Agreement, Landair or Logistics, as the case may be, shall be
treated as the recipient of all Services provided to such recipient and its
affiliates, and (b) the term "Provider" means, with respect to any given
Service, the provider of such Service and for purposes of such definition,
Landair or Logistics, as the case may be, shall be treated as the provider of
all Services provided by them or any of their affiliates.
I.2 Performance Levels. In providing the Services, each party
shall perform according to satisfactory performance levels. Each Service to be
provided hereunder shall be provided on a reasonably timely basis.
I.3 Instructions. The parties agree that the Services provided by
Provider shall be essentially ministerial in nature so that Provider shall, in
all matters requiring the exercise of discretion, follow Recipient's
instructions, which shall be promptly provided to Provider by Recipient to the
extent requested by Provider and which must be provided in writing if so
requested.
Notwithstanding the foregoing, Provider shall not be required to follow any such
instructions that, in Provider's reasonable judgment, are inconsistent with the
proper performance of its responsibilities, or that require the exercise of
discretion, including without limitation the making of decisions regarding the
hiring or firing of employees. The parties agree that it is their intent that
Provider not be deemed a fiduciary with respect to plans subject to the Employee
Retirement Income Securities Act of 1974, as amended.
I.4 Consents; Indemnification; Assets. If the provision of any of
the Services by Provider to Recipient would place Provider or any other
subsidiary or affiliate of Provider in violation or breach of any contract or
license between any such entity and any third party, then Recipient and Provider
shall use their respective commercially reasonable efforts, with all costs
thereof to be borne by Recipient, to obtain forthwith any consent required for
Provider to provide such Services to Recipient, and Recipient shall indemnify
and hold harmless Provider against all losses and liabilities relating to any
claims arising from any such alleged violation or breach. If, after the exercise
of such efforts, such consent cannot be obtained, Provider shall use
commercially reasonable efforts to provide Recipient with functionally
equivalent Services with any additional costs required in providing such
Services to be borne by Recipient. Recipient shall indemnify and hold harmless
Provider against all losses and liabilities which arise from or in any way
relate to (i) the use of any software or hardware provided by Recipient or (ii)
the use of any software or hardware in connection with the performance of the
Services hereunder provided to Recipient.
(1) The Service Fees (as defined herein) to be paid by
Recipient hereunder shall subsume all costs incurred by Provider in
connection with the performance of its obligations hereunder and in
respect of which separate payment or indemnification by Recipient is
not otherwise contemplated hereby, including, but not limited to,
personnel (including fringe benefits and management fees relating
thereto), computer hardware, computer time, printers, voice and data
telecommunications equipment, file cabinets, paper files,
administrative records, photocopies, incidentals and all other assets
owned by Provider which are needed in connection with the provision of
such Services on a routine and non-routine basis and during peak and
non-peak periods; and any such equipment may be replaced from time to
time by Provider with functionally equivalent or upgraded equipment.
(2) All data, software or other property or assets owned
or created by Recipient shall remain the sole and exclusive property
and responsibility (including, without limitation, with respect to
maintenance, modification and upgrade) of Recipient. Provider shall not
acquire any rights to any such data, software or other property or
assets, including any derivative works of Recipient-owned software or
data created by Provider, pursuant to this Agreement or Provider's
performance hereunder.
All data, software or other property or assets which are owned
by Provider, including without limitation derivative works thereof and
new data or software created by Provider at Provider's sole expense
pursuant to the provision of Services ("Provider Software") shall be
the sole and exclusive property and responsibility (including, without
limitation, with respect to maintenance, modification and upgrade) of
Provider and any interest of Recipient therein
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shall be limited to licensed materials, if any. Recipient shall not
acquire any other rights to any such data, software or other property
or assets pursuant to this Agreement or Recipient's performance
hereunder.
(3) If as a result of unanticipated events or conditions
Recipient reasonably determines that it requires modification of any of
the Services or software used in connection therewith upon Recipient's
request, Provider shall so modify the Services or software used in
connection therewith upon Recipient's request (i) to the extent
commercially reasonable, (ii) to the extent such modifications do not
adversely affect Provider's ability to maintain its computer systems in
connection with its continuing business, and (iii) at Recipient's sole
cost and expense subject to Recipient's approval of Provider's
estimate. Moreover, Provider may suggest modification of software and
may, in its sole discretion, offer to share in the cost thereof if it
determines that any such modifications may be beneficial to Provider.
Recipient shall have exclusive ownership rights to any software
modifications it pays for solely, and shared rights to such
modifications with respect to which, and only to the extent that, it
shares in the payment therefor.
(4) Provider shall provide all support and assistance
reasonably requested by Recipient at an arm's-length, negotiated price,
in connection with the transfer of any and all Services from Provider
to Recipient or any of its affiliates or an alternative third-party
service provider selected by Recipient. Specifically, during the term
of this Agreement, Provider shall deliver to Recipient (or as directed
by Recipient), at the Recipient's request and with minimal interruption
to the operations of Provider or its affiliates, all data and programs
owned by Recipient or licensed by Recipient from third party vendors,
and all backup or archival copies thereof (or any part thereof as
specified by Recipient), in hard copy, electronic, magnetic or any
other form which is then in Provider's possession or control, as
requested by Recipient, and (in the event that this Agreement is
terminated) copies of all material licensed by Recipient from Provider
(with reasonable instructions for the installation and use thereof).
I.5 Systems Availability and Data Integrity. Provider shall
maintain, consistent with past practices, operational recovery procedures to
ensure the availability of systems and the integrity of data relating to the
Services at all times. In the event of the unavailability of any such systems or
the loss or destruction of any such data, Provider shall use commercially
reasonable efforts consistent with past practices to restore such systems and
recover or replace such data as quickly and completely as possible.
I.6 Systems Users. In each case as it relates to Recipient's
employees, consultants, affiliates or authorized customers during the term of
this Agreement the addition or deletion of authorized users ("Users"), including
persons authorized at the application level or system level, in regard to any
computer system, the modification of computer system authority or access granted
to any person, and the control generally of access to and use of computer
systems, is to be at the direction of Recipient, and Provider shall permit no
changes in such access or use without prior written notice to and consent from
Recipient. No User will be allowed system authority or access
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greater than the application level without the prior written consent of
Provider. Each party shall indemnify and hold harmless the other against all
degradations in performance levels caused by Users authorized for system level
access on behalf of, or at the request of, such first party.
I.7 Office Space Lease. Subject to all of the terms and conditions
hereof, Landair and Logistics hereby agree that Logistics shall lease from
Landair approximately 1,200 square feet of office space located at 000 Xxxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000 for the Monthly Rent set forth on Schedule
A-2.
ARTICLE II
PAYMENT FOR SERVICES AND RENT
II.1 Costs. The prices charged for the Services and Monthly Rent
shall initially be those set forth on Schedules A-1 and A-2, which have been
negotiated on an arm's-length basis (collectively, the "Service Fees"). The
Service Fees shall be adjusted on an arm's-length basis every six months, except
that Provider shall, not less than three months before any proposed adjustment
to Service Fees, provide Recipient with details of any proposed adjustment and
justification therefor. The Parties shall negotiate in good faith to reach an
agreement within 30 days. Recipient shall not be charged a fee for any
improvements or upgrades to facilities or equipment without its prior written
consent; provided, however, that Recipient acknowledges and agrees that its
failure to timely provide any such consent may adversely affect its abilities to
receive Services hereunder, and Provider shall not be liable for any harm to
Recipient resulting therefrom.
II.2 Invoices; Payment Procedures.
(1) Not later than 30 days after the end of each calendar
month, Provider shall send Recipient an invoice that includes a
detailed breakdown of all Service Fees for such month. All invoices
shall be sent as follows to:
from Landair to Logistics: from Logistics to Landair :
Warehouse Logistics, LLC Landair Transport, Inc.
Attention: Secretary Attention: Treasurer
000 Xxxxxxx Xxxx 000 Xxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000 Xxxxxxxxxxx, Xxxxxxxxx 00000
All payments of such invoices shall be made by wire transfer or interbank
transfer in immediately available funds to Provider's account at such banks as
Provider shall designate to Recipient in writing and shall be made within 15
days after the date of any invoice.
(2) Provider shall establish and maintain an account
("Payroll Account") from which Recipient shall be authorized to draw in
order to meet Provider's gross payroll
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obligations, and Provider shall ensure that such Payroll Account is
sufficiently funded at all times. Notwithstanding any other provision
hereof,
(i) Provider shall reimburse Recipient for each
payroll paid by Recipient to the employees of Provider for the
period contemplated above, to the extent that Recipient elects
to provide funds despite a deficiency in the Payroll Account,
and
(ii) Provider shall provide each such
reimbursement by wire transfer of immediately available funds
on the day of the issuance of that payroll to such employees.
II.3 Disputed Fees. In the event that Recipient and Provider have a
good faith dispute with respect to the amount of payment for Services actually
rendered (other than with respect to the underlying schedule of fees for
Services generally), Recipient shall withhold payment only of any unpaid amount
in dispute, and shall deliver to Provider promptly (and within 15 days following
receipt of any invoice from Provider that is the basis of such dispute) a
written statement describing the dispute, which statement shall provide a
reasonably detailed breakdown of the disputed payment amounts. The parties agree
to use their best efforts to resolve any such dispute hereunder within 15 days
following Provider's receipt of Recipient's statement describing the dispute. In
the event the parties cannot resolve the dispute within such time period, each
discrepancy or disagreement which cannot be so resolved shall be submitted to a
firm of nationally recognized independent certified public accountants (agreed
upon by Provider and Recipient), who shall promptly deliver a report setting
forth their calculation of each item that was the subject of discrepancy or
disagreement, which report shall be final and binding on the parties. The fees
and expenses of such firm shall be borne one-half by Provider and one-half by
Recipient, and each party shall bear its own other expenses in connection
therewith.
ARTICLE III
TERM; TERMINATION OF SERVICES
III.1 Term.
(1) Subject to Section 3.2 hereof, Recipient shall be
obligated to provide the Services set forth on Schedule A-1 hereto, and
Provider shall be obligated to provide the Services set forth on
Schedule A-2 hereto until termination of all Services (as defined
herein) pursuant to Section 3.2 hereof.
(2) Notwithstanding anything to the contrary in this
Agreement, the provisions of Articles 5 and 6 and Sections 1.4 (solely
as relates to indemnification), 1.6 (solely as relates to
indemnification), 4.2, 7.6, 7.7, 7.8, 7.11, 7.12 and 7.13 shall survive
any termination of this Agreement or the provision of Services
hereunder.
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III.2 Termination of Services. Any Recipient may at any time, upon
thirty days irrevocable written notice to Provider, terminate all the Services
or any Service (or any portion thereof) on a Service-by-Service basis. Any
Provider may, at any time after the first anniversary of the date hereof,
terminate any or all of the Services on three months irrevocable written notice
to Recipient. The provision of all Services pursuant hereto shall in any event
terminate on or prior to the third anniversary of the date hereof. Upon
termination of any Service, all administrative records relating to that Service
as such records relate solely to Recipient which have not already been
transferred to the sole possession of Recipient shall be so transferred, it
being understood that Provider may retain copies of such records.
ARTICLE IV
COOPERATION
IV.1 Cooperation. Each of the parties shall cooperate with and
provide assistance to the other consistent with the terms and conditions hereof
(including, without limitation, any limitations relating to software) to enable
(i) the full performance of all obligations hereunder, (ii) the review and audit
of books and administrative records as they relate to the provision of Services,
and (iii) Recipient, or any of its affiliates or third party service providers,
to assume the performance of any and all Services upon termination or prior
thereto; such cooperation and assistance to include without limitation providing
the other party, its representatives and its agents (including, without
limitation, its outside auditors) with reasonable access, during normal business
hours and upon reasonable advance notice, to its employees, representatives and
agents and its books, administrative records, offices and properties relating to
the Services. Nothing in this Section 4.1 shall operate to grant any right to
Recipient of Provider-owned software, data or other intellectual property.
IV.2 Provider Administrative Records. Each party providing Services
hereunder shall keep administrative records regarding the provision of Services
for itself regarding such Services and for each Service shall retain such
records for a period of twelve months following the cessation of Provider's
provision of that Service to the Recipient. Recipient, its agents and
representatives shall have reasonable access to such records (which term is not
to be construed to include Provider Software) during normal business hours and
upon reasonable advance notice from the date hereof through the end of the
period for retaining such records pursuant to this Section 4.2.
IV.3 Periodic Review of Services. From time to time during the term
of this Agreement, but not less frequently than once each quarter, the parties
shall meet and discuss the nature, quality, and level of Services covered by
this Agreement, any concerns either party may have in regard to such matters,
and any amendments either party may wish to make to the Services specified on
Schedule A-1 or A-2 hereto.
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ARTICLE V
FORCE MAJEURE
V.1 Force Majeure. Each party shall be relieved of its obligations
hereunder if and to the extent that any of the following events or conditions
directly or indirectly hinder, limit or make impracticable the performance by
that party of any of its obligations hereunder: Act of God, war, riot, fire,
earthquake, explosion, flood, sabotage, national defense requirement, strike,
lockout, job action, injunction, act or order of a governmental agency or
instrumentality thereof (whether of fact or law), act of a public enemy, embargo
or other concerted act of workers, telecommunications failures or electrical
failures; provided, that each party obligated to provide Services hereunder
shall continue to have in place at all times disaster recovery procedures
consistent with past practices to enable rapid recovery from any such event or
condition. Such procedures may be subject to revision by each party obligated to
provide Services hereunder from time to time as may be required in the ordinary
course of business, provided, that such revisions do not adversely affect the
levels of protection afforded by such procedures. Prior to being relieved of any
obligations hereunder, each party obligated to provide Services hereunder shall
have used commercially reasonable efforts (consistent with past practice) to
remove or otherwise address the effects of any such event or condition as soon
as practicable. Any Recipient hereunder shall be liable for all costs incurred
by the applicable Provider hereunder in connection with any Service that such
Provider fails to complete and provide as a result of any such event or
condition.
ARTICLE VI
CONFIDENTIALITY
VI.1 Confidentiality. The parties acknowledge that in connection
with the provision of Services hereunder, each may gain access to confidential
and proprietary information regarding the other's financial and business affairs
(hereinafter "Confidential Information" or "Information"). Each party hereby
agrees to use commercially reasonable efforts to:
(1) confine its access to and examination of Confidential
Information to the minimum Information necessary to enable any Provider
hereunder to provide the Services hereunder and any Recipient hereunder
to operate its business;
(2) limit access to such Information only to those
individuals who reasonably need to receive such access to enable any
Provider hereunder to provide the Services hereunder and any Recipient
hereunder to operate its business;
(3) inform such individuals of the confidential nature of
such Information and take all reasonable steps to secure the compliance
of such individuals with the terms of this Article 6;
(4) use such Information solely to enable any Provider
hereunder to provide the Services hereunder and any Recipient hereunder
to operate its business;
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(5) keep such Information confidential and not disclose
it to any third party in any manner except as may be required by law or
court order; and
(6) provide the other party with reasonable access to
that party's employees, representatives and agents and its books and
administrative records relating to the relevant business (including,
without limitation, any and all computer access reports and security
access reports) in order for the other party to monitor compliance with
this Article 6. Notwithstanding the foregoing, disclosures of
Information may be made to third parties:
(i) with the prior written consent of the party
whose Information it is;
(ii) if the Information is in the public domain
and has entered the public domain through no fault of the
party seeking to make such disclosure or its affiliates or
representatives;
(iii) if the Information is lawfully acquired by
the party seeking to make such disclosure or its affiliates or
representatives from sources other than the party whose
Information it is or its affiliates or representatives and the
party seeking to make such disclosure, its affiliates or its
representatives is not aware that such source was under any
obligation (whether contractual, legal or fiduciary) to the
party whose Information it is or any of its affiliates or
representatives to keep such Information confidential; or
(iv) to the extent disclosure is compelled by law
or court order.
Each party shall be responsible for any breach of this Article 6 caused by
itself or any of its employees, agents or representatives. Anything contained
herein to the contrary notwithstanding, the parties acknowledge and agree that
irreparable damage would occur in the event that any provision of this Article 6
was not performed in accordance with its terms, and that the parties shall be
entitled to specific performance as the sole remedy.
ARTICLE VII
MISCELLANEOUS
VII.1 Notices. All notices, requests, demands, consents, waivers and
other communications required or permitted to be given under this Agreement
(excluding invoices as described in Section 2.2 above) shall be in writing and
may be given by any of the following methods: (a) personal delivery; (b)
facsimile transmission; (c) registered or certified mail, postage prepaid,
return receipt requested; or (d) overnight delivery service. Notices shall be
sent to the appropriate party at its address or facsimile number given below (or
at such other address or facsimile number for such party or other person as
shall be specified by notice given hereunder):
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If to Logistics to: If to Landair to:
Warehouse Logistics, LLC Landair Transport, Inc.
Attention: Secretary Attention: General Counsel
000 Xxxxxxx Xxxx 000 Xxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000 Xxxxxxxxxxx, Xxxxxxxxx 00000
Fax No.: (000) 000-0000 Fax No.: (000) 000-0000
All such notices, requests, demands, waivers and communications shall
be deemed received upon actual receipt thereof by the addressee or actual
delivery thereof to the appropriate address.
VII.2 Severability. Should any provision of this Agreement for any
reason be declared invalid or unenforceable, such declaration shall not affect
the validity or enforceability of any of the other provisions of this Agreement,
which other provisions shall remain in full force and effect. The application of
such invalid or unenforceable provision to persons or circumstances other than
those as to which it has been held invalid or unenforceable shall be valid and
enforced to the fullest extent permitted by law.
VII.3 Binding Effect; Assignment. This Agreement and all of the
provisions hereof shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned, directly or indirectly, including, without limitation, by operation
of law, by any party hereto without the prior written consent of the other party
hereto; provided, (a) that either of the parties hereto may without such prior
written consent transfer or assign its rights hereunder to one or more of its
affiliates, but no such transfer arrangement shall release the transferring
party of its obligations hereunder and (b) that any Provider hereunder may
subcontract to any party so long as such Provider remains liable for the
performance of Services provided by any such subcontractor.
VII.4 No Third Party Beneficiaries. This Agreement is solely for the
benefit of the parties and their respective successors and permitted assigns,
and shall not be deemed to confer upon or give to any other party any remedy,
claim, liability, reimbursement, cause of action or other right.
VII.5 Interpretation. The section headings contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not in any way affect the meaning or interpretation of
this Agreement.
VII.6 Jurisdiction and Consent to Service. In accordance with the
laws of the State of Tennessee, and without limiting the jurisdiction or venue
of any other court, the parties
(1) agree that any suit, action or proceeding arising out
of or relating to this Agreement (other than proceedings arising under
Section 2.3 above with respect to the amount of payment for Services)
shall be brought solely in the state or federal courts of Tennessee;
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(2) consent to the exclusive jurisdiction of each such
court in any suit, action or proceeding relating to or arising out of
this Agreement;
(3) waive any objection which any of them may have to the
laying of venue in any such suit, action or proceeding in any such
court; and
(4) agree that service of any court paper may be made in
any manner as may be provided under the applicable laws or court rules
governing service of process in such court.
VII.7 Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof, and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
VII.8 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TENNESSEE (REGARDLESS OF
THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF) AS TO ALL MATTERS, INCLUDING BUT NOT LIMITED TO MATTERS OF
VALIDITY, CONSTRUCTION, EFFECT, PERFORMANCE AND REMEDIES.
VII.9 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the same agreement.
VII.10 Relationship of the Parties. In carrying out the provisions of
this Agreement, Landair and Logistics are and shall be deemed to be for all
purposes, separate and independent entities. Landair and Logistics shall select
their employees and agents, and such employees and agents shall be under the
exclusive and complete supervision and control of Landair or Logistics, as the
case may be. It is the express intent of this Agreement that the relationship of
Landair to Logistics and Logistics to Landair shall be solely that of separate
and independent companies and not that of a joint venture, partnership or any
other joint relationship. Neither party shall transact or commit the other party
in any manner.
VII.11 Waiver. Any failure by either party to comply with any
obligation, covenant or agreement herein or to fulfill any condition herein may
be waived only by a written notice from the party entitled to the benefits
thereof. No failure by either party hereto to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right hereunder preclude any other or future
exercise of that right or any other right hereunder by that party.
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VII.12 Sole Remedy; No Damages. If either party becomes dissatisfied
with the quality or level of Services provided hereunder, claims any breach of
this Agreement by the other party or otherwise becomes dissatisfied with any
matter relating hereto or arising herefrom, its sole remedy shall be termination
of all or a part of the Services without right to seek actual, compensatory or
consequential damages. EACH PARTY HEREBY ACKNOWLEDGES AND AGREES THAT IT IS
HEREBY WAIVING CERTAIN LEGAL RIGHTS AND REMEDIES, AND THAT THIS WAIVER IS A
FUNDAMENTAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES HERETO, WITHOUT WHICH
PROVIDER WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. EACH PARTY HEREBY
ACKNOWLEDGES AND AGREES FURTHER THAT, NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, THE OTHER PARTY MAY, BUT SHALL IN NO EVENT BE OBLIGATED TO,
ADVANCE FUNDS OR INCUR COSTS IN CONNECTION WITH ITS PERFORMANCE HEREUNDER.
VII.13 Indemnification. Each Recipient hereunder, at its own expense,
shall indemnify, defend and hold each Provider hereunder, its subsidiaries and
their present or former officers, directors, shareholders, agents, employees,
representatives, successors-in-interest, parents, affiliates, insurers,
attorneys and assigns (collectively, the "Indemnified Parties") harmless from
and against any claims, judgments, losses, deficiencies, damages, punitive or
exemplary damages, fines or penalties, liabilities, costs and expenses
(including reasonable attorneys' fees, charges and disbursements) whether
required to be paid to a third party or otherwise incurred in connection with or
arising from any claim, suit, action or proceeding ("Claim") against the
Indemnified Party to the extent the basis of such Claim is that: (a) such
Recipient has failed to pay any amounts owed to third parties in connection with
the Services provided by such Provider under this Agreement; (b) a third party
has been or may be injured or damaged in any way by any breach of such Recipient
of any of its duties, representations or warranties under this Agreement; (c)
such Recipient or any of its employees, agents, or servants acted improperly in
connection with the notification, investigation, adjustment or settlement of
claims and losses arising out of the Services described on Schedules A-1 or A-2
hereto, and (d) there is no other liability or obligation arising out of such
Provider's administration or operation of the Services or functions described on
Schedules A-1 or A-2 hereto, except to the extent that same arises from the
gross negligence or willful misconduct of such Provider.
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IN WITNESS WHEREOF, the parties have each caused this Agreement to be
executed by its duly authorized representative as of the day and year first
above written.
LANDAIR TRANSPORT, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Its: CFO
-----------------------------------
WAREHOUSE LOGISTICS, LLC
By: /s/ Xxxx Xxxxx Xxxxx
------------------------------------
Its: Treasurer
-----------------------------------
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SCHEDULE A-1
SERVICES PROVIDED BY LOGISTICS TO LANDAIR
Logistics will provide, or cause to be provided, the following Services
to Landair:
SERVICE MONTHLY COST
Human resources services and benefit
plan administration $3,880.00
SCHEDULE A-2
OFFICE SPACE LEASE FROM LANDAIR TO LOGISTICS
Landair will lease office space to Logistics at 000 Xxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000 at the following rate:
SQUARE FOOTAGE MONTHLY RENT
1,200 square feet at $8.00 per square foot $800.00
SERVICES PROVIDED BY LANDAIR TO LOGISTICS
Landair will provide, or cause to be provided, the following Services
to Logistics:
SERVICE MONTHLY COST
I Utilities.......................................... $170.00
II Office cleaning.................................... 150.00
III Local and long distance telephone services 850.00
V Computer services.................................. 450.00*
VI Receptionist and other administrative
services.......................................... 450.00
*does not include AS/400.
FIRST AMENDMENT
to
SERVICES AND LEASE AGREEMENT
between
LANDAIR TRANSPORT, INC.
and
WAREHOUSE LOGISTICS, LLC
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FIRST AMENDMENT TO SERVICES AND LEASE AGREEMENT
This FIRST AMENDMENT TO SERVICES AND LEASE AGREEMENT (this "Agreement")
is made as of the 1st day of January 2002, by and between Landair Transport,
Inc., a corporation organized under the laws of the State of Tennessee
("Landair"), and Warehouse Logistics, LLC, a limited liability company organized
under the laws of the State of Tennessee ("Logistics").
W I T N E S S E T H:
WHEREAS, Landair and Logistics entered into that certain Services and
Lease Agreement, dated as of April 1, 2001 (the "Original Agreement"), which
provided for, among other things, the provision of certain services, leased
space and support by the parties to the Original Agreement;
WHEREAS, the parties over time have agreed to continue certain services
and to terminate certain services and, in connection with the continuation of
any services as well as the termination of future services the parties wish to
specifically provide for the terms and conditions and the allocation of certain
costs in connection with the continuation of and the termination of certain
services under the Original Agreement as such agreement is further amended by
this Agreement; and
WHEREAS, the parties now desire to amend the Original Agreement.
NOW THEREFORE, in consideration of the premises and mutual promises
hereinafter set forth and other good and valuable consideration, the parties
hereto hereby agree as follows:
ARTICLE I
SERVICES TO BE PROVIDED
1 Provision of Certain Services. The parties understand and
agree to provide the services set forth on Schedule A-1 and Schedule A-2 to this
Agreement, subject to the termination provisions set forth in the Original
Agreement and as modified by this Agreement.
2. Ratification. Except as specifically amended and modified
herein, all terms and provisions of the Original Agreement shall remain in full
force and effect. Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Original Agreement.
2
IN WITNESS WHEREOF, the parties have each caused this Agreement to be
executed by its duly authorized representative as of the day and year first
above written.
LANDAIR TRANSPORT, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Its: CFO
-----------------------------------
WAREHOUSE LOGISTICS, LLC
By: /s/ Xxxx Xxxxx Xxxxx
------------------------------------
Its: Treasurer
-----------------------------------
3
SCHEDULE A-1
SERVICES PROVIDED BY LOGISTICS TO LANDAIR
None
SCHEDULE A-2
OFFICE SPACE LEASE FROM LANDAIR TO LOGISTICS
Landair will lease office space to Logistics at 000 Xxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000 at the following rate:
SQUARE FOOTAGE MONTHLY RENT
500 square feet of office space $500.00
SERVICES PROVIDED BY LANDAIR TO LOGISTICS
Landair will provide, or cause to be provided, the following Services
to Logistics:
SERVICE MONTHLY COST
I Utilities (associated with rental space)..................... $ 85.00
II Office cleaning.............................................. 200.00
III Long distance telephone services............................. 500.00
V Computer services (provided by Xxxx
Xxxxx and Xxxxx Xxxxxx).................................... 825.00*
VI Use of Landair server to run Logistics
operational software....................................... 175.00
VII Accounting services (provided by
Xxxxxx Xxxxx).............................................. 1,375.00
VIII Human resource services (provided by
Xxxx Xxxxxxx and Xxxxx Xxxxx).............................. 1,548.00
IX Credit to Landair for record storage......................... (300.00)
----------
Total Service Fees.......................................... $ 4,408.00
* Based on an estimated 15 hours per month of support at $55.00 per hour.
Note: Landair and Logistics will review the percentage allocation of monthly
charges based on salaries on a quarterly basis. Any adjustment shall be agreed
upon by the parties in writing.
