EXHIBIT 10.20(a)
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IBM/Allied Holdings
AMENDMENT NO. 4 TO THE IBM GLOBAL SERVICES NATIONAL
AGREEMENT BETWEEN IBM AND ALLIED HOLDINGS
This Amendment No. 4 (this "Amendment"), effective February 1, 2004 , amends
the IBM Global Services National Agreement between Allied Holdings ,Inc.
("Allied Holdings") and International Business Machines Corporation ("IBM")
effective April 1, 2001 (the "Agreement"). The terms and conditions of the
Agreement remain in full force and effect unless specifically amended or
supplemented herein.
I.0 REVISIONS TO THE AGREEMENT BASE TERMS
SECTION 1.0 DEFINITIONS
DELETE:
1.0 (b) Additional Resource Charge or ASC means the charges, as set forth in
Schedule C (Charges), to Allied Holdings if Allied Holdings' usage of Resource
Units is above the applicable Baseline.
1.0 (l) ARC Invoice has the meaning set forth in Schedule 6.1 (Charges) of this
Agreement.
1.0 (aaa) Reduced Resource Credit or RRC means the credit, as set forth in
Schedule C (Charges), to Allied Holdings if Allied Holdings' usage of a Resource
Unit is less than the applicable Baseline.
ADD:
1.0 (zzz) Amended Effective Date means February 1, 2004, 0000 hours Eastern
Standard Time.
1.0 (aaaa) Amended Expiration Date means January 31, 2014, 2359 hours Eastern
Standard Time.
REPLACE:
1.0 (s) Critical Success Factors Results means the report produced by Allied
Holdings that will be used to document the level of System Availability Allied
Holdings has achieved in the six months prior to the Effective Date as verified
by IBM.
1.0 (jjj) Service Recipients means the entities receiving Services at Allied
Holdings' request and listed in Schedule K (Service Recipients) as of the
Amended Effective Date or as it may be updated from time to time by Allied
Holdings.
1.0 (ggg) Services means the services and functions provided by IBM to Allied
Holdings and the Services Recipients pursuant to this Agreement, as more fully
described in Schedule X, X-0, X-0 and A-3 (Services).
SECTION 2.0 TERM
Replace with:
"This Amendment No. 4 begins on the Amended Effective Date and expires on the
Amended Expiration Date, except as earlier terminated or extended in accordance
with the terms of this Agreement. The period of this Amendment No. 4 in effect,
as of the Amended Effective Date, is referred to herein as the "Term".
SECTION 4.4 PERSONNEL
Add Section 4.4 (e)
"Subject to Section 6.4 (New Services) and all other terms of the Agreement,
including but not limited to Section 8 (Confidentiality), IBM agrees to provide
reasonable assistance to a Third Party hired by Allied Holdings that is hired
to perform a service related to the Services."
Allied Holdings/IBM Page 1 of 7
Amendment No. 4
[LOGO]
IBM/Allied Holdings
AMENDMENT NO. 4 TO THE IBM GLOBAL SERVICES NATIONAL
AGREEMENT BETWEEN IBM AND ALLIED HOLDINGS
SECTION 4.5 PROCEDURES
Add Section 4.5 (d) as follows:
"Notwithstanding the definition designating the Procedural Manual as a Type II
Material, IBM's use of the Procedure Manual is subject to the confidentiality
terms contained in Section 8."
SECTION 5.2 TRANSITION OF SERVICES
Section 5.2.a. Change "Effective Date" to "Amended Effective Date".
SECTION 6.1 CHARGES
Section 6.1.a. is replaced with:
a. Annual Services Charges
IBM will invoice Allied Holdings twice each month of the Term, for the current
month and beginning on the Amended Effective Date, for the Annual Services
Charge, prorated in equal bi-monthly payments (the ASC Invoice).
Section 6.1 b. is deleted in its entirety
Section 6.2.a. is deleted in its entirety.
SECTION 6.3 PAYMENTS
Section 6.3.a.1. is replaced with:
The Payable Date for the ASC Invoice will be the 15th and 30th day of the
calendar month in which Allied Holdings receives the ASC Invoice from IBM,
provided Allied Holdings receives such ASC Invoice on or before the fifth and
the tenth days of the month for payment due on the 15th and 30th, respectively,
of that month. If Allied Holdings receives the ASC Invoice after the respective
fifth or tenth day of the month, the Payable Date for such ASC Invoice will be
30 days after Allied Holdings' receipt of such ASC Invoice
SECTION 7.2 TERMINATION FOR CONVENIENCE
Amend 7.2.a.1 replace as follows:
"no earlier than the third anniversary after the Amended Effective Date, and"
7.3 TERMINATION FOR CAUSE
Section 7.3 is replaced in its entirety as follows:
a. Allied Holdings or IBM (the NONBREACHING PARTY) may elect to terminate
this Agreement because of a material breach of this Agreement by the other (the
BREACHING PARTY) by following the process set forth in this Section.
b. The Nonbreaching Party will provide the Breaching Party with written
notice of such material breach within 60 days after the material breach or the
date the Nonbreaching Party becomes aware of such material breach, describing
in detail the specific nature and dates of the
Allied Holdings/IBM Page 2 of 7
Amendment No. 4
[LOGO]
IBM/Allied Holdings
AMENDMENT NO. 4 TO THE IBM GLOBAL SERVICES NATIONAL
AGREEMENT BETWEEN IBM AND ALLIED HOLDINGS
material breach, and will provide the Breaching Party with the opportunity to
cure the material breach as follows:
1. In the event of a failure to pay any amount due on the Payable Date,
ten days; and
2. in the event of any other material breach, 45 days. If the nature of
any nonmonetary breach is such that it would be unreasonable to expect a cure
within 45 days, an additional 15 days will be allowed provided that the
Breaching Party exercises all reasonable efforts to cure such material breach
within such additional 15 day period.
c. If the material breach for failure to pay any amount due on the
payable date is not cured during the ten day cure period set forth above, the
Nonbreaching Party may terminate this Agreement for material breach by
providing the Breaching Party with written notice within 60 days after the
expiration of the ten day cure period specified above, declaring termination of
this Agreement for material breach under this Section, effective on the date
stated in such notice. However, if the Dispute Resolution Process is instituted
prior to the effective date on the notice, such effective date will be no later
than 15 days after the Breaching Party's receipt of such notice of termination
for material breach.
d. In the event of any breach, other than nonpayment, if the material
breach is not cured during the applicable cure period set forth above, the
Nonbreaching Party may terminate this Agreement for material breach by
providing the Breaching Party with written notice within 60 days after the
expiration of the cure period specified above, declaring termination of this
Agreement for material breach under this Section, effective on the later of the
date stated in such notice or five (5) days following completion of the Dispute
Resolution Process, if instituted. Such effective date will be no later than 90
days after the Breaching Party's receipt of such notice of termination for
material breach.
SECTION 7.3.1. IS ADDED TO THE AGREEMENT AS FOLLOWS:
7.3.1 CREDIT ASSESSMENT
"Allied Holdings may notify IBM anytime during the Term if Allied
Holdings' current published Standard and Poor (S&P) and Xxxxx'x credit
rating exceeds a S&P "BB" rating or a Xxxxx'x "BA2" rating,
respectively. Upon IBM's verification of Allied Holdings' notification
of credit rating, IBM shall issue an Amendment to this Agreement to
reinstate the mutually agreed language for Section 7.3 entitled
"Termination for Cause" in the initial Agreement executed on April 1,
2001."
SECTION 7.5 TRANSFER ASSISTANCE
Section 7.5. (f) is replaced as follows:
"If IBM terminates this Agreement for Allied Holdings' material breach, IBM
will provide Allied Holdings with Transfer Assistance if Allied Holdings pays
for such Transfer Assistance in advance.
SECTION 7.6 OTHER RIGHTS UPON EXPIRATION OR TERMINATION
Section 7.6. (a) is replaced as follows:
"Provided as a New Service, IBM will provide the additional assistance set
forth in this Section upon expiration or termination of this Agreement."
SECTION 9.0 INTELLECTUAL PROPERTY
Allied Holdings/IBM Page 3 of 7
Amendment No. 4
[LOGO]
IBM/Allied Holdings
AMENDMENT NO. 4 TO THE IBM GLOBAL SERVICES NATIONAL
AGREEMENT BETWEEN IBM AND ALLIED HOLDINGS
Replace Section 9.0 (b) as follows:
Type I Materials are copyrighted materials owned by Allied Holdings or any
other party, and Derivative Works thereof, including, without limitation, those
copyright items described in Section 9.0 e.
SECTION 10.0 INDEMNIFICATION
Replace Section 10.0 (a) 1 with the following:
"that an IBM Product or Service provided to Allied Holdings by IBM under this
Agreement infringes such Third Party's patent, copyright or other intellectual
property rights under U.S. or Canadian law; provided that IBM will not have and
obligation to indemnify Allied for such Third Party Infringement to the extent
the infringing Service was being provided by Allied Holding prior to the
Amended Effective Date or is caused by specifications provided to IBM by Allied
Holdings."
SECTION 13.8 GEOGRAPHIC SCOPE OF SERVICES IS REPLACED AS FOLLOWS:
"IBM is providing the Services under this Agreement in the United States. In
the event Allied Holdings requires certain tasks within the scope of the
Services to be performed outside the United States, the Parties agree to
implement such work in a Change Order."
SECTION 13.11 JOINT VERIFICATION
Amend the first sentence of Section 13.11 to read:
"During the six months after the Amended Effective Date (the JOINT
VERIFICATION PERIOD), Allied Holdings and IBM reserve the right to inventory
and validate any information that is reflected in or omitted from this
Agreement."
SECTION 13.14 NOTIFICATIONS AND APPROVALS
Replace the notification points of contact under Section 13.14.d.1 and 2 as
follows:
d. IBM and Allied Holdings will provide notifications Agreement to the
following:
1. In the event of breach, the Nonbreaching Party will notify
the Breaching Party via electronic and courier or certified
mail. Such notice will be deemed given upon the earlier of
either notification in accordance with Section 13.14.c.
For termination, breach or default:
If to IBM:
Vice President, Travel and Transportation Industry
IBM Global Services
Xxxxxx Xxxxxx
0000 X. Xxxxx Xxxxx Xxxxx X.
Xxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Allied Holdings/IBM Page 4 of 7
Amendment No. 4
IBM/Allied Holdings [LOGO]
AMENDMENT NO. 4 TO THE IBM GLOBAL SERVICES NATIONAL
AGREEMENT BETWEEN IBM AND ALLIED HOLDINGS
With a copy to:
IBM Project Executive
Xxxxx Deal
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Telephone/Facsimile: 000-000-0000
and
General Counsel, IBM Global Services
Xxxxx 000
Xxxxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to Allied Holdings:
Sr. Vice President Business Processing Engineering
Xxxxx X. Xxxxxx
000 Xxxxxxxxxx Xxx, Xxxxx 000
Xxxxxxx, XX 00000
Telephone: 000 000-0000
Facsimile: 000 000-0000
With a copy to:
Allied Holdings Project Executive
Vice President, Communications & Technical Services
Information Technology
Xxxxx X. Xxxxx
000 Xxxxxxxxxx Xxx,
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile 000 000-0000
and
Senior Vice President Corporate Affairs and General
Counsel
Xxxxx Xxxxx
000 Xxxxxxxxxx Xxx, Xxxxx 000
Xxxxxxx, XX 00000
Telephone: 000 000-0000
Facsimile: 000 000-0000
2. For all other notices:
If to IBM:
IBM Project Executive
Xxxxx Deal
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Telephone/Facsimile: 000-000-0000
Allied Holdings/IBM Page 5 of 7
Amendment No. 4
[LOGO]
IBM/Allied Holdings
AMENDMENT NO. 4 TO THE IBM GLOBAL SERVICES NATIONAL
AGREEMENT BETWEEN IBM AND ALLIED HOLDINGS
If to Allied Holdings: Allied Holdings Project Executive
Vice President, Communications & Technical Services
Information Technology
Xxxxx X. Xxxxx
000 Xxxxxxxxxx Xxx,
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile 000 000-0000
This Amendment Xx. 0 Xxxxxxxxx X-0, X-0, X-0 and B-1 are additional addendums
to the existing respective Schedules. Schedules X, X, X, X, X, X, X and L are
amended and restated in their entirety.
2.0 ATTACHMENTS
Schedule A-1 Services
Schedule A-2 Peoplesoft Services
Schedule A-3 AMS Services
Schedule B-1 AMS Service Levels
Schedule B Service Levels
Schedule C Charges
Schedule D Transition
Schedule F Software
Schedule G Machines
Schedule H Standards
Schedule I Facilities
Schedule L Employees
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AMENDMENT, UNDERSTAND IT, AND
AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE PARTIES AGREE THAT
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES
RELATING TO THIS SUBJECT SHALL CONSIST OF 1) THE AMENDMENTS, 2) THE SCHEDULES,
AND 3) THE AGREEMENT. THIS STATEMENT OF THE AMENDMENT SUPERSEDES ALL PROPOSALS
OR OTHER PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS
BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER DESCRIBED IN THIS AMENDMENT.
Allied Holdings/IBM Page 6 of 7
Amendment No. 4
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IBM/Allied Holdings
AMENDMENT NO. 4 TO THE IBM GLOBAL SERVICES NATIONAL
AGREEMENT BETWEEN IBM AND ALLIED HOLDINGS
Accepted by: Accepted by:
INTERNATIONAL BUSINESS MACHINES CORPORATION ALLIED HOLDINGS, INC.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxx
--------------------------------------- ---------------------------
Authorized Signature Authorized Signature
Xxxxxx Xxxxxx Xxxxx X. Xxxxxx
Vice President, Sr. Vice President,
Travel and Business Processing Engineering
Transportation Date
Date
Allied Holdings/IBM Page 7 of 7
Amendment No. 4
