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EXHIBIT 10.31
AMENDED AND RESTATED
MANAGEMENT SERVICES AGREEMENT
AMENDED AND RESTATED MANAGEMENT SERVICES AGREEMENT dated as of
August 14, 1996 among GS Industries, Inc. ("Parent"), a Delaware corporation, GS
Technologies Corporation, a Delaware corporation ("GST"), ME International,
Inc., a Michigan corporation ("MEI"), M.E.-West Castings, Inc., an Arizona
corporation ("M.E.-West" and, together with MEI, the "MEI Entities"), GS
Technologies Operating Co., Inc. ("GSTOC"), a Delaware corporation, Mineral
Reagents International Inc., a Delaware corporation ("MRI"), CI (U.S.) Corp.
(formerly Control International, Inc.), a Utah corporation ("CII"), Georgetown
Industries, Inc., a Delaware corporation ("GII"), Georgetown Investment
Corporation, a Delaware corporation ("GIC"), Georgetown Finance Corporation, a
Delaware corporation ("GFC"), Georgetown Steel Corporation, a Delaware
corporation ("GSC"), Georgetown Wire Company, Inc., a Delaware corporation
("GWC"), Florida Wire and Cable, Inc., a Delaware corporation ("FWC"), Tree
Island Industries, Ltd., a British Columbia corporation ("TII"), and K-Lath
Corporation, Inc., a California corporation ("K-Lath" and, together with GSTOC,
MRI, CII, GII, GIC, GFC, GSC, GWC, FWC and TII, the "GSTOC Entities"). Parent
and, from time to time, GST are collectively referred to herein as the "Service
Providers." The GSTOC Entities, the MEI Entities and, from time to time, GST are
collectively referred to herein as the "Recipients."
The Recipients and the Service Providers entered into that certain
Management Services Agreement dated as of October 5, 1995 providing for the
provision of certain management services by the Service Providers to the
Recipients and the Recipients and the Service Providers desire to amend and
restate the Management Services Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
SECTION 1. TERM. The Recipients agree to engage the Service Providers,
and the Service Providers agree to provide management services to the
Recipients, on the terms and conditions set forth herein for a period commencing
as of October 5, 1995 and ending ten (10) years from such date (or at such
earlier time as is mutually agreed upon by the parties). The period during which
the Service Providers are engaged hereunder is hereinafter referred to as the
"Management Period."
SECTION 2. SERVICES.
(a) The executive management consulting services and staff support
services (the "Services") to be provided in connection with the engagement
hereunder may, from time to time, include the following as shall be mutually
agreed by the parties hereto:
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(i) general executive services, including periodic advice and
consultation with respect to the affairs of the Recipients;
(ii) financial, accounting, legal, tax and cash management
services;
(iii) management information and other system services,
including technical support in connection therewith;
(iv) services related to tax, regulatory and other filings, as
well as periodic or other reports to governmental or other agencies
having jurisdiction over the respective businesses of the Recipients,
including, without limitation, the application on behalf of and for the
account of the Recipients, of all applicable licenses, permits, and
consents;
(v) sales and marketing services;
(vi) environmental services, including services to assist the
Recipients in meeting the reporting requirements of regulatory
agencies;
(vii) employee and personnel services, including making
available certain of its employees to act as senior executive officers
of the Recipients, and advisory services relating to employee training,
testing and evaluation programs, employee benefit programs and other
personnel matters;
(viii) services and costs related to benefit and compensation
plans of the Service Providers, including group life and health
insurance plans, pension and salary continuation plans and thrift
plans;
(ix) technical research and development services;
(x) engineering services;
(xi) services with respect to safety matters;
(xii) general services with respect to relations with
investors and members of the investment community as well as city,
state and federal governments; and
(xiii) such other services as mutually agreed to by the
parties.
(b) The Service Providers shall determine, from time to time, what
services shall be provided by each such Service Provider.
(c) Parent agrees to indemnify, defend and save harmless each Recipient
and its respective directors, officers, agents and employees from and against
any and all liability,
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expense, loss, claim or damage of any kind or nature on account of Parent's bad
faith or willful misconduct in the course of its performance or non-performance
of its duties hereunder. A Recipient shall, with reasonable promptness and
specificity, notify Parent of any claim for indemnification hereunder and shall
afford Parent the right to conduct the defense, compromise or settlement of any
action relating to such claim for indemnification, at Parent's own risk and
expense.
GST agrees to indemnify, defend and save harmless each Recipient and
its respective directors, officers, agents and employees from and against any
and all liability, expense, loss, claim or damage of any kind or nature on
account of GST's bad faith or willful misconduct in the course of its
performance or non-performance of its duties hereunder. A Recipient shall, with
reasonable promptness and specificity, notify GST of any claim for
indemnification hereunder and shall afford GST the right to conduct the defense,
compromise or settlement of any action relating to such claim for
indemnification, at GST's own risk and expense.
Each Recipient severally agrees to indemnify, defend and save harmless
the Service Providers and their respective directors, officers, agents and
employees from and against any and all liability, expense, loss, claim or damage
of any kind or nature (including reasonable legal fees and expenses) resulting
from any suits, claims or demands on account of any matter that may arise as a
result of the performance or non-performance of the Service Providers hereunder;
provided, however, that the Service Providers shall not have been found, by
court of competent jurisdiction, to have acted in bad faith or with willful
misconduct in connection with such liability, claim or damage. Upon the receipt
of notice of the commencement of any action against a Service Provider and if a
claim in respect thereof is to be made hereunder, such Service Provider shall,
with reasonable promptness and specificity, notify the appropriate Recipient(s)
in writing of the commencement of such action and shall afford the appropriate
Recipient(s) the right to conduct the defense, compromise or settlement of such
action, at the appropriate Recipient(s) own risk and expense. In addition, the
Service Provider shall, with reasonable promptness and specificity, notify the
appropriate Recipient(s) of any claim for indemnification hereunder.
SECTION 3. MANAGEMENT FEE.
(a) The Recipients shall provide direct payment or shall promptly
reimburse the Service Providers for such reasonable out-of-pocket expenses,
including, without limitation, overhead expenses of the headquarters office,
actually paid to unaffiliated third parties as may be incurred by the Service
Providers in connection with the rendering of any services hereunder.
(b) In the event that any Service Provider incurs any other expenses in
connection with the rendering of any services hereunder, such Service Provider
shall be entitled to be paid or reimbursed for such amounts from the Recipients;
provided, however, that such payments or reimbursements to Parent pursuant to
this subsection (b) shall not exceed $1
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million per year excluding (i) reasonable compensation, indemnification and
other benefits paid or provided by Parent to full-time officers or employees of
GST and its subsidiaries and (ii) the allocable portion of compensation,
indemnification and other benefits paid to directors, officers and employees of
Parent for services rendered on behalf of GST and its subsidiaries.
SECTION 4. ASSIGNMENT. This Agreement or any rights hereunder may not
be assigned or otherwise transferred by any party and shall not inure to the
benefit of any trustee in bankruptcy, receiver or other successor of any party,
whether by operation of law or otherwise, without the prior written consent of
the parties hereto and the Trustee (the "Trustee") under the Indenture, dated as
of October 5, 1995, by and between GSTOC, GST and Shawmut Bank Connecticut,
National Association (the "Indenture"), and any assignment or transfer without
such consents shall be null and void.
SECTION 5. NO THIRD-PARTY BENEFICIARIES/LIABILITY. This Agreement is
for the sole benefit of the parties hereto and nothing herein expressed or
implied shall give or be construed to give to any person, other than the parties
hereto, any legal or equitable rights hereunder. Absent bad faith or willful
misconduct by the Service Providers, the Service Providers shall not be liable
to any Recipient on account of the Services or any act or omission to act
relating thereto.
SECTION 6. MODIFICATION. This Agreement (a) sets forth the entire
understanding and agreement of the parties with respect to the subject matter
hereof; and (b) supersedes all prior and contemporaneous understandings,
conditions and agreements, oral or written, express or implied, respecting the
engagement of the Service Providers in connection with the subject matter
hereof. This Agreement may not be modified or amended without the prior written
consent of the parties hereto and, in the case of Section 3 hereof or any other
provisions dealing with the payment of fees or reimbursement of expenses, the
Trustee. The Trustee shall not be required to enter into any such amendment or
modification unless the Trustee is satisfied that such amendment or modification
does not adversely affect the holders of the Notes (as such term is defined in
the Indenture).
SECTION 7. NOTICES. All notices or other communications required or
permitted to be given hereunder shall be in writing and shall be delivered by
hand or sent prepaid telex, cable or telecopy, or sent, postage prepaid, by
registered, certified or express mail, or reputable overnight courier service
and shall be deemed given when so delivered by hand, telexed, cabled or
telecopied, or if mailed, three days after mailing (one business day in the case
of express mail or overnight courier service), to the Recipients at the
addresses indicated in such Recipient's corporate records and to the Service
Providers as follows:
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(i) if to Parent,
GS Industries, Inc.
c/o Bain Capital, Inc.
Two Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Xxxxxx X. Xxx
GS Industries, Inc.
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxx, P.C.
Xxxxx X. Learner, Esq.
Parker, Poe, Xxxxx & Xxxxxxxxx L.L.P.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx, Xx., Esq.
(ii) if to GST,
GS Technologies Corporation
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxx, P.C.
Xxxxx X. Learner, Esq.
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Parker, Poe, Xxxxx & Xxxxxxxxx L.L.P.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx, Xx., Esq.
(iii) if to the Trustee,
Shawmut Bank Connecticut, National Association
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
SECTION 8. INTERPRETATION. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 9. COUNTERPARTS. This Agreement may be executed in one or more
counterparts all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the parties and delivered to each of the other parties.
SECTION 10. SEVERABILITY. In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, all other provisions of this Agreement
shall nevertheless remain in full force and effect, but if the economic or legal
substance of the transactions contemplated hereby is affected in a manner
materially adverse to any party as a result of the determination that a
provision is invalid, illegal or unenforceable, the parties hereto agree to
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transaction contemplated hereby are fulfilled to the closest extent
possible.
SECTION 11. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New York.
SECTION 12. WAIVERS. Any waiver by any party of a breach of any
provision of this Agreement, or the failure of a party to insist upon strict
adherence to that term or any other term of this Agreement, shall not operate as
or be construed to be a waiver of any other breach of such provision or of any
breach of any other provision of this Agreement. Any waiver must be in writing.
IN WITNESS WHEREOF, the parties have caused this Amended and Restated
Agreement to be duly executed as of the date first above written.
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GS INDUSTRIES, INC.
By:______________________________________
Title:___________________________________
GS TECHNOLOGIES CORPORATION
By:______________________________________
Title:___________________________________
GS TECHNOLOGIES OPERATING CO., INC.
By:______________________________________
Title:___________________________________
ME INTERNATIONAL, INC.
By:______________________________________
Title:___________________________________
ME-WEST CASTINGS, INC.
By:______________________________________
Title:___________________________________
MINERAL REAGENTS INTERNATIONAL
INC.
By:______________________________________
Title:___________________________________
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CI (U.S.) CORP.
By:______________________________________
Title:___________________________________
GEORGETOWN INDUSTRIES, INC.
By:______________________________________
Title:___________________________________
GEORGETOWN INVESTMENT
CORPORATION
By:______________________________________
Title:___________________________________
GEORGETOWN FINANCE CORPORATION
By:______________________________________
Title:___________________________________
GEORGETOWN STEEL CORPORATION
By:______________________________________
Title:___________________________________
GEORGETOWN WIRE COMPANY, INC.
By:______________________________________
Title:___________________________________
FLORIDA WIRE AND CABLE, INC.
By:______________________________________
Title:___________________________________
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TREE ISLAND INDUSTRIES, LTD.
By:______________________________________
Title:___________________________________
K-LATH CORPORATION, INC.
By:______________________________________
Title:___________________________________
General Electric Capital Corporation, as Agent under the Loan Agreement
dated October 5, 1995 (the "Loan Agreement") among GSTOC, CII, MRI, GII, GIC,
GFC, GSC, FWC, GWC, K-Lath and the Lenders named therein, does hereby give its
consent to this Amended and Restated Management Services Agreement, as required
by Section 7.16(b) of the Loan Agreement.
GENERAL ELECTRIC CAPITAL
CORPORATION
By:______________________________________
Title:___________________________________
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