EXHIBIT 10(d)
MANAGEMENT SERVICES AGREEMENT
BETWEEN
FUJI AMERICA HOLDINGS, INC.
AND
▇▇▇▇▇▇ FINANCIAL, INC.
This Management Services Agreement (this "Agreement") is dated as of
January 2, 1998 and is made by and between Fuji America Holdings, Inc., a
Delaware corporation ("FAHI"), and ▇▇▇▇▇▇ Financial, Inc., a Delaware
corporation ("HFI").
WITNESSETH:
WHEREAS, each of FAHI and HFI is capable of providing, and is prepared to
provide, certain centralized management and support functions and services to
the other; and
WHEREAS, each of FAHI and HFI desires to receive such centralized
management and support functions and services from the other on the terms and
conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and promises contained in this Agreement, and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, FAHI
and HFI agree as follows:
1. Services to be Provided by HFI to FAHI
HFI shall provide, and FAHI shall accept from HFI, the centralized
management and support functions (the "HFI Services") available from the
following departments of HFI, but in each case only as and to the extent
reasonably requested by FAHI:
Budgets and Financial Reporting
Corporate Accounting, Payroll and Accounts Payable
Corporate Insurance and Purchasing
Corporate Facilities
Corporate Planning
The Chairman's Office
Treasury
Information Technology
Internal Audit
Human Resources
Legal
2. Services to be Provided by HFI to FAHI
FAHI shall provide, and HFI shall accept from FAHI, the centralized
management and support functions (the "FAHI Services") available from the
following department of FAHI, but in each case only as and to the extent
reasonably requested by HFI:
Tax
3. Fees and Accounting Procedures
3.1 Management Fees. For the services set forth above, each of FAHI and
HFI (in such capacity, a "Service Recipient"), as appropriate, shall pay to the
provider of such services (in such capacity, a "Service Provider") a monthly
management and service fee (each, a "Management Fee") equal to the sum of all
monthly expenses associated with the Service Provider's provision of management
services for the Service Recipient during such month, including, but not limited
to, salary and associated fringe benefit expenses for employees with the Service
Provider's department(s) identified in Sections 1 and 2 above, and applicable
general and administrative expenses. Each Management Fee shall in any event be
at a price and on terms and conditions no less favorable to the Service
Recipient than could be obtained on an arm's length basis from unrelated third
parties.
3.2 Monthly Invoice. Promptly after the end of each month, each Service
Provider shall prepare and submit to the Service Recipient an invoice for the
Management Fee for the preceding month. Each invoice shall provide reasonably
detailed accounting for expenses (including out-of-pocket payments). A
quarterly reconciliation shall be made after each March 31, June 30, September
30 and December 31 during the term of this Agreement and, if necessary, an
adjustment made in respect of amounts invoiced and previously paid.
3.3 Advances. HFI agrees to made daily advances to FAHI in an amount
equal to the sum to all checks presented for payment to HFI against FAHI's
accounts payable and payroll obligations on such day. After the end of each
month, FAHI shall reimburse HFI for all amounts advanced under this Section 3.3
during such preceding month.
3.4 Netting of Payments. Monthly amounts owed by each of the Service
Providers to the other may be netted and the net amount due from one Service
Provider to the other shall be paid promptly after becoming due.
4. Allocation of Expenses to HFI Group
HFI may, in its discretion and as appropriate, allocate to any of HFI's
subsidiaries, at cost, amounts paid hereunder to FAHI for services provided by
FAHI hereunder that inure to the benefit of such HFI subsidiaries.
5. Term
The initial term of this Agreement shall be from the date hereof through
and including December 31, 1998. Thereafter, this Agreement shall be
automatically renewed for successive one year terms until terminated by mutual
agreement of the parties
6. Governing Law
This Agreement shall at all times be governed by and be construed in
accordance with the laws of the State of Illinois (without regard to its
conflicts of law principles).
7. Indemnification
Each of the Service Providers hereby agrees to indemnify, defend and hold
harmless the Service Recipient's officers, directors and employees from and
against any and all claims, demands, losses, liabilities, actions, lawsuits and
other proceedings, judgments and awards, and costs and expenses (including
reasonable attorneys' fees), arising, directly or indirectly, in whole or in
part, out of the Service Provider's performance of its duties hereunder (other
than in respect of performance by the Service Provider if arising out of the
Service Provider's gross negligence or wilful misconduct).
8. Severability
Each provision of this Agreement is intended to be severable. If any term
or provision hereof shall be determined by a court of competent jurisdiction to
be illegal or invalid for any reason whatsoever, such provision shall be severed
from this Agreement and shall not affect the validity of the remainder of this
Agreement.
9. Assignment
This Agreement shall be continuing, irrevocable and binding on each of FAHI
and HFI and their respective successors and assigns, and shall inure to FAHI's
and HFI's benefit and that of their respective successors and assigns; provided,
however, that this Agreement shall not be assignable by either party without the
prior written consent of the other.
10. Complete Agreement
This Agreement contains the complete agreement of FAHI and HFI with respect
to the provision of the services described herein and supersedes any prior
agreements concerning such services (including without limitation that certain
Management Agreement dated as of January 1, 1991, as amended, between ▇▇▇▇▇▇
International
Corporation and HFI). Any amendment or modification of this Agreement must be by
a written agreement executed and delivered by and between FAHI and HFI.
IN WITNESS WHEREOF, this Agreement has been executed by each of the parties
hereto as of the date first written above.
FUJI AMERICA HOLDINGS, INC.
By: /s/
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Its: President
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▇▇▇▇▇▇ FINANCIAL, INC.
By: /s/
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Chief Financial Officer
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