Exhibit 10.5
MANAGEMENT SERVICES AGREEMENT
This Management Services Agreement (this "Agreement") is entered into by
and between Atlas FRM LLC, a Delaware limited liability company ("Atlas"), and
Wood Resources LLC, a Delaware limited liability company (the "Company"), as of
April 4, 2003 (the "Effective Date"). Atlas and the Company do hereby agree to
the terms and conditions of this Agreement as follows:
1. MANAGEMENT SERVICES.
1.1 Services To Be Provided. Atlas shall supervise and manage, or cause the
supervision and management, of the day-to-day business and administrative
operations of the Company (the "Services"). With respect to the Services, Atlas
shall perform the following;
(a) General and administrative supervision and oversight including,
but not limited to, recruiting and hiring of personnel, administration of
personnel and personnel benefits, development of administrative policies
and procedures, establishment and management of banking services, managing
and arranging for the maintaining of liability insurance, arranging for
equipment rental, maintenance of all necessary permits and licenses,
acquisition of any additional licenses and permits that become necessary,
participation in risk management policies and procedures;
(b) Accounting and financial advisory services including, but not
limited to, general accounting and bookkeeping, business management such as
billing and collecting, and preparation of financial statements;
(c) Other than the payment of taxes, which is the responsibility of
the Company, tax services including, but not limited to, preparation of tax
returns and tax audits; and
(d) Strategic consulting services including, but limited to, strategic
business planning and participation in strategy implementation.
1.2 Authority; Power of Attorney. The Company hereby grants Atlas and each
of Atlas's managers and officers a power of attorney to, in the Company's name,
take any and all actions, and execute any and all documents, as may be
contemplated hereby or as may be necessary to take or execute in connection with
any of the powers granted to Atlas hereby. Parties dealing with the Company are
entitled to rely upon the authority of Atlas to execute such documents on behalf
of the Company. Atlas is authorized to make expenditures and incur obligations
to the extent necessary to operate the Company in a lawful, safe and
professional manner and to preserve and protect the assets of the Company.
1.3 Records and Auditing Rights. Atlas shall at all times maintain adequate
books and records to verify the accounts and transactions under this Agreement.
Such records shall be retained and kept available for inspection and audit by
the Company and its legal and accounting
representatives on days Atlas is open for business during normal working hours
upon reasonable notice to Atlas.
2. COMPENSATION.
In consideration for the performance of the Services pursuant to this
Agreement, Atlas shall be entitled to a management fee in an amount equal to
three hundred thousand dollars ($300,000) per annum (the "Management Fee"). The
Management Fee shall be payable in equal monthly installments on the first day
of each month.
3. TERM.
3.1 Initial Term. This Agreement shall have an initial term commencing on
the Effective Date until December 31, 2008, unless otherwise terminated pursuant
to the terms hereof. This Agreement shall terminate immediately either upon (i)
Atlas Wood Holdings LLC ceasing to have the right to elect a majority of
Managers of the Company in accordance with the terms of the Amended and Restated
Limited Liability Company Agreement, dated as of April 4, 2003, of the Company
(the "LLC Agreement") or (ii) a sale of all or substantially all of the assets
of the Company and the earlier of (A) the distribution of Net Cash Proceeds (as
defined in the LLC Agreement) therefrom or (B) the date three months after the
receipt of substantially all Net Cash Proceeds (as defined in the LLC Agreement)
from such sale.
3.2 Renewal. This Agreement shall be renewed automatically for additional
consecutive twelve-month terms, unless either party provides notice to the other
of its intent not to renew not more than 30 days and not less than six (6) days
prior to the end of the term (i.e., between December 1 and December 25).
4. DISPUTE RESOLUTION.
4.1 All disputes arising out of this Agreement, any of the provisions
hereof or the performance of either party hereunder that the parties are unable
to resolve directly between themselves shall be settled by arbitration in
Delaware (unless Atlas and the Company agree upon another location) before three
arbitrators in accordance with the rules then in effect of the American
Arbitration Association.
5. INDEMNIFICATION AND TAXES.
5.1 Indemnification. The Company hereby agrees to release, indemnify,
defend, protect and hold harmless Atlas and each of Atlas's managers, officers,
members, employees, agents, affiliates or representatives from and against all
claims, losses, liabilities and expenses, including legal fees and expenses
(including expenses of in-house counsel) resulting from any action taken or not
taken by Atlas in connection with Atlas's performance under this Agreement
except to the extent such liability is directly attributable to Atlas's willful
misconduct. The indemnification provisions of this Agreement shall survive
termination of this Agreement.
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5.2 Taxes. The Company is responsible for the payment of all tariffs,
duties and taxes (excluding U.S. federal and state taxation of the overall net
income of Atlas) imposed by any domestic or foreign government or governmental
agency in connection with this Agreement, however designated, levied or
assessed, including without limitation, state and local income, lease, personal,
sales and use taxes.
6. MISCELLANEOUS.
6.1 Notices. All consents, approvals, notices, requests, demands,
instructions and other communications required or permitted to be given
hereunder shall be in writing and shall be (i) delivered personally; (ii) mailed
by registered mail, or U.S. certified mail, return receipt requested, postage
prepaid; (iii) delivered by Federal Express, Network or other reputable U.S.
overnight courier service; or (iv) delivered by facsimile transmission (receipt
of such transmission to be acknowledged by the recipient by facsimile
transmission).
(i) if to Atlas, to:
Atlas FRM LLC
Xxx Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Fax: 000-000-0000
(ii) if to the Company, to:
Wood Resources LLC
Xxx Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Chairman
Fax: 000-000-0000
or to such other place as any party may designate as to itself by written notice
to the other parties. All notices shall be deemed given on the date of receipt
at the appropriate address, except in the case of facsimile transmissions
received after the normal close of business, which shall be deemed given on the
next business day.
6.2 Force Majeure. Neither Atlas nor the Company will be liable for
nonperformance or defective or late performance of any of its obligations
hereunder to the extent and for such periods of time as such nonperformance,
defective performance or late performance is due to reasons outside such party's
control, including, without limitation, acts of God, war (declared or
undeclared), acts (including failure to act) of any governmental authority,
riots, revolutions, fire, floods, explosions, sabotage, nuclear incidents,
lightning, weather, earthquakes, storms, sinkholes, epidemics, strikes, or
delays of suppliers or subcontractors for the same causes.
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6.3 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
6.4 Amendment. This Agreement may be amended or modified only by a written
instrument signed by each party.
6.5 GOVERNING LAW. THIS AGREEMENT IS TO BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF CONNECTICUT, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OR CHOICE OF LAWS THAT MIGHT REQUIRE OR PERMIT THE
APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
6.6 Assignment; Binding Effect. This Agreement and the rights and
obligations hereunder may not be assigned by any party, in whole or in part,
without the prior written consent of the other party, and any such assignment
that is made without such consent shall be void and of no force and effect. No
permitted assignment shall release any party from any of its obligations under
this Agreement. All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and permitted assignees.
6.7 Severability. In the event any one or more of the provisions (or
portion(s) thereof) contained in this Agreement shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provision (or
portion(s) thereof), and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision (or portion(s) thereof) had never been
contained herein.
6.8 Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof, superseding any
and all prior negotiations, discussions, agreements and understandings, whether
oral or written, relating to such subject matter.
6.9 Waiver. No waiver of any term, provision or condition of this Agreement
shall be effective unless in writing signed by the party against whom such
waiver is sought to be enforced. Any waiver of the terms hereof shall be
effective only in the specific instance and for the specific purpose given, and
no such waiver shall be deemed to be or construed as a further or continuing
waiver of any such term, provision or condition or as a waiver of any other
term, provision or condition of this Agreement, unless specifically so stated in
such written waiver.
6.10 No Third Party Beneficiaries. This Agreement is intended for the
exclusive benefit of the parties to this Agreement and their respective personal
representatives, successors and permitted assigns, and nothing contained in this
Agreement shall be construed as creating any rights or benefits in or to any
third party.
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6.11 Further Assurances. In connection with this Agreement and the
transactions contemplated hereby, each party shall execute and deliver any
additional documents and instruments and perform any additional acts that may be
reasonably necessary or appropriate to effectuate and perform the provisions of
this Agreement and those transactions.
6.12 Captions. The captions of the sections and paragraphs of this
Agreement are for convenience and reference only and in no way define, limit or
describe the scope of intent of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first set forth above.
ATLAS FRM LLC: WOOD RESOURCES LLC:
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
--------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxx
Title: Managing Partner Title: Vice President
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