SERVICES AGREEMENT
This Services Agreement ("Agreement") is made as of this 10th day of
February, 1999 between Xxxxxxx-Xxxxxxx Holdings, Inc., a Delaware corporation
("R-S"), and Xxxxxxx X. Xxxxxxxx, an individual ("Xxxxxxxx").
WHEREAS, Xxxxxxxx has expertise in the steel drum reconditioning
business and certain other matters relating to the steel drum reconditioning
business of R-S and its subsidiaries; and
WHEREAS, R-S desires to avail itself, for the term of this Agreement,
of the expertise of Xxxxxxxx in the aforesaid areas, in which it acknowledges
the expertise of Xxxxxxxx.
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants and conditions herein set forth, the parties hereto agree as follows:
1. Appointment. On the terms and subject to the conditions set forth
in this Agreement, R-S hereby appoints Xxxxxxxx to render the services described
in Paragraph 2 hereof for the term of this Agreement.
2. Services. Xxxxxxxx hereby agrees that during the term of this
Agreement he shall advise R-S and its subsidiaries on matters relating to the
steel drum reconditioning business of R-S and its subsidiaries, including but
not limited to, (a) acquisitions, (b) introductions to industry contacts and (c)
strategy and operations.
3. Consideration. In consideration of the services contemplated by
Paragraph 2 hereof, R-S agrees to make four payments to Xxxxxxxx in the amount
of $250,000 each. The first such payment will be made by check upon amendment or
waiver of certain provisions of the Fourth Amended and Restated Revolving Credit
and Term Loan Agreement (as amended by Amendment No. 1 thereto) among R-S,
certain other subsidiaries of R-S, BankBoston, N.A., as Agent, and the Lenders
(as defined therein) to permit the payments contemplated by this Paragraph 3.
The second, third and fourth payments will be made by check on or before
December 31st of each of 1999, 2000 and 2001.
4. Term. This Agreement shall terminate upon the making of the fourth
payment described in Paragraph 3 hereof on or before December 31, 2001. The
provisions of Paragraph 5 hereof and the obligation of R-S to make payments
accrued during the term of this Agreement pursuant to Paragraph 3 hereof shall
survive the termination of this Agreement.
5. Independent Contractor. Xxxxxxxx is and will perform this Agreement
as an independent contractor and as such shall have and maintain complete
control over and be responsible for all of his employees and operations. Neither
Xxxxxxxx nor anyone employed by him, acting in their capacities hereunder, shall
be, represent, act, purport to act, or be deemed to be the agent,
representative, employee or servant
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of R-S or any of its subsidiaries. This Agreement shall not be deemed to create
any form of business organization between the parties hereto, nor is either
party granted any right or authority to assume or create any obligation or
responsibility on behalf of the other party, nor shall either party be in any
way liable for any debt of the other. Without limiting the generality of the
foregoing, all final decisions with respect to matters as to which Xxxxxxxx has
provided services hereunder shall be solely those of R-S and its subsidiaries.
6. Compliance with Laws. Xxxxxxxx covenants that in the performance of
the services to R-S and its subsidiaries hereunder he will comply with all
applicable statutes, rules, regulations and orders of the United States and of
any state or political subdivisions hereof and of any applicable foreign
jurisdiction.
7. General. (a) No amendment or waiver of any provision of this
Agreement, or consent to any departure by either party from any such provision,
shall in any event be effective unless the same shall be in writing and signed
by the parties to this Agreement and then such amendment, waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
(b) Any and all notices hereunder shall, in the absence of receipted
hand delivery, be deemed duly given when mailed, if the same shall be sent by
registered or certified mail, return receipt requested, and the mailing date
shall be deemed the date from which all time periods pertaining to a date of
notice shall run. Notices shall be addressed to the parties at the following
addresses:
If to R-S:
Xxxxxxx-Xxxxxxx Holdings, Inc.
000 Xxxxx 000-000
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
If to Xxxxxxxx:
Tempel Steel Co.
0000 Xxx Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
With a copy to:
Xxxxxxx & Xxxxxx, LLP
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Xx.
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(c) This Agreement shall constitute the entire Agreement between the
parties and their affiliates with respect to the subject matter hereof, and
shall supersede all previous oral and written (and all contemporaneous oral)
negotiations, commitments, agreements and understandings relating hereto.
(d) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED THEREIN. The parties to this Agreement hereby agree to
submit to the jurisdiction of the federal and state courts located in the
Southern District of New York for purposes of any action or proceeding arising
out of or relating to this Agreement. Any such action or proceeding may be
brought only in such court. The parties hereto waive any objection they may have
to the venue of such action or proceeding in any such court or that such action
or proceeding in such court was brought in an inconvenient court and agree not
to plead or claim the same. This Agreement shall inure to the benefit of, and be
binding upon, Xxxxxxxx, X-X and their respective successors and assigns.
(e) This Agreement may be executed in two or more counterparts, and by
different parties on separate counterparts, each set of counterparts showing
execution by all parties shall be deemed an original, but all of which shall
constitute one and the same instrument.
(f) The waiver by any party of any breach of this Agreement shall not
operate as or be construed to be a waiver by such party of any subsequent
breach.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers or agents as set forth
below.
XXXXXXX-XXXXXXX HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXXXXXX
Name: Xxxxxx X. Xxxxxxxxx
Title: President and CEO
/s/ XXXXXXX X. XXXXXXXX
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XXXXXXX X. XXXXXXXX
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