Exhibit 10.5
MANAGEMENT SERVICES AGREEMENT
THIS MANAGEMENT SERVICES AGREEMENT (this "AGREEMENT") is dated as of
October 31, 2006, between ▇▇▇▇▇▇▇ Industries, Inc., a Missouri corporation (the
"COMPANY") and BNS Holding, Inc., a Delaware corporation ("BNS").
BACKGROUND
Subject to the terms and conditions of this Agreement, the Company
desires to retain BNS to provide certain management services to the Company and
its subsidiaries.
TERMS AND CONDITIONS
In consideration of the mutual covenants contained herein and intending
to be legally bound hereby, the parties agree as follows:
1. MANAGEMENT SERVICES. BNS shall provide general management,
financial and other corporate advisory services to the Company and its
subsidiaries. These management services shall be performed by the officers,
employees or agents of BNS as it may determine in its discretion from time to
time.
2. FEES AND EXPENSES.
(a) The Company shall pay to BNS an annual management fee (the
"MANAGEMENT FEE") of Five Hundred Thousand Dollars ($500,000). The Management
Fee shall be payable quarterly in arrears on each April 30, July 31, October 31
and January 31 during the Term (as defined in Section 8, below) of this
Agreement.
(b) The Company shall promptly, when requested, reimburse BNS
for all reasonable out-of-pocket expenses incurred in the ordinary course by BNS
in connection with BNS's obligations hereunder.
(c) Notwithstanding anything to the contrary contained herein,
the Company shall accrue but not pay the Management Fee if (i) any such payment
would violate, breach or otherwise constitute a default (or any event which
might with the lapse of time or the giving of notice or both, constitute a
default) under any of the financing agreements of the Company or ▇▇▇▇▇▇▇ I
Holding Corp. ("CHC"), or (ii) BNS instructs the Company not to pay all or any
portion of the Management Fee during any fiscal year.
3. INDEMNIFICATION. To the extent permitted by law, the Company
shall protect, hold harmless and indemnify BNS from and against any and all
liability, obligations, losses, claims and damages whatsoever and expenses in
connection therewith including, without limitation, reasonable counsel fees and
expenses, penalties and interest arising out of or as the result of the entering
into of this Agreement except to the extent, and only to the extent, that such
liability or claim is the result of the willful misconduct or gross negligence
of BNS.
4. INDEPENDENT CONTRACTOR; NO JOINT VENTURE. BNS is performing
services hereunder as an independent contractor (and not as an agent,
representative or employee of the Company) and BNS is not and shall not be
deemed to be a co-venturer with, or partner of, the Company in any respect.
5. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the
entire agreement and understanding between the parties with respect to the
subject matter hereof. This Agreement may be amended or modified, or any
provision hereof may be waived, provided that such amendment or waiver is set
forth in a writing executed by the parties. No courses of dealing between or
among any persons having any interest in this Agreement will be deemed effective
to modify, amend or discharge any part of this Agreement or any rights or
obligations of any person under or by reason of this Agreement.
6. NO ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any party hereto without
the prior written consent of the other parties hereto; PROVIDED that BNS may
assign all of its rights and obligations hereunder to any affiliate of BNS
without the consent of the Company; and, PROVIDED FURTHER, that BNS may, without
the consent of the Company, assign any or all of its rights, but not its
obligations, hereunder to any lender providing financing to BNS or its
affiliates.
7. BINDING EFFECT. In the event of assignment of this Agreement
pursuant to Section 6 hereunder, this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their successors and permitted assigns.
8. TERM. The Term of this Agreement shall commence on November 1,
2006 and shall terminate on the earlier of (i) the tenth anniversary of the date
hereof, and (ii) the consummation of the sale of all (but not less than all) of
the outstanding capital stock of the Company or CHC, or the statutory
arrangement, consolidation or merger of the Company or CHC with or into any
person, or the sale, lease, assignment or transfer of all or substantially all
of the assets of the Company or any of its significant subsidiaries.
Notwithstanding the foregoing, this Agreement shall always remain in effect to
the extent that any money is owed under sections 2 or 3 of this Agreement.
9. GOVERNING LAW. The validity, performance, construction and
effect of this Agreement shall be governed by and construed in accordance with
the internal law of the State of New York.
10. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given by personal
delivery, by reputable overnight courier or by mail (registered or certified
mail, postage prepaid, return receipt requested) to the respective parties as
follows:
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If to BNS:
BNS Holding, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President and Chief Executive Officer
If to the Company:
▇▇▇▇▇▇▇ Industries, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇)-▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Chief Operating Officer
or to such other address as any party hereto may, from time to time, designate
in a written notice given in like manner. Notices will be deemed to have been
given hereunder when delivered personally, five days after deposit in the U.S.
mail and one business day after deposit with a reputable overnight courier
service.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the day and year first above written.
▇▇▇▇▇▇▇ INDUSTRIES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
BNS HOLDING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
