EX-10.1 MONITORING/MANAGEMENT SERVICES AGREEMENT



 





Exhibit 10.1




MONITORING AND MANAGEMENT SERVICES AGREEMENT




          THIS MONITORING AND MANAGEMENT SERVICES AGREEMENT (this “Agreement”) by and between
Yucaipa American Funds, LLC, a Delaware limited liability company (“Yucaipa”), and Allied
Systems Holdings, Inc., a Delaware corporation (the “Company”), is made and entered into as
of May 29, 2007.




          WHEREAS, on July 31, 2005 the Company and certain of its subsidiaries filed a voluntary
petition for relief under Chapter 11 of the Bankruptcy Code and on May 29, 2007 (the “Effective
Date”) the Company completed its restructuring pursuant to a Plan of Reorganization under which
affiliates of Yucaipa were issued common stock representing greater than 50% of the Company; and




          WHEREAS, the Company desires to retain Yucaipa to provide certain monitoring and management
services to the Company and Yucaipa is willing to provide such services on the terms set forth
below.




          NOW, THEREFORE, in consideration of the premises and the mutual covenants of the parties
hereto and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned parties agree as follows:




     Section 1. Services. Subject to the provisions of this Agreement, Yucaipa will
perform the following services for the Company to the extent requested by the Board of Directors of
the Company:



          (a) general monitoring and management services;




          (b) monitoring of certain financing functions, including assistance with the preparation of
financial projections and assistance with compliance with financing agreements;




          (c) identifying and developing growth strategies;




          (d) monitoring labor relations and certain human resource functions, including interfacing and
negotiating with various labor unions and assisting with the identification and hiring of
executives and directors;




          (e) subject to Section 5, assisting with identification, support, negotiation and
analysis of acquisitions or dispositions by the Company or its subsidiaries; and




          (f) subject to Section 5, assisting with support, negotiation and analysis of
financing alternatives, including in connection with acquisitions, capital expenditures,
refinancing of existing indebtedness and public or private debt or equity issuances.



The services listed above and in Section 3 may, at Yucaipa’s election, be performed by
Yucaipa, its affiliates and/or such employees, agents and other representatives of Yucaipa and/or
its affiliates as Yucaipa deems appropriate in its discretion to the furnishing of the services
required.


 









 








     Section 2. Annual Fee; Expense Reimbursement.



          (a) Annual Fees. Commencing on the date of this Agreement, the Company will pay to
Yucaipa an aggregate annual fee, in consideration of the services rendered pursuant to Sections
1(a) to (d) above, equal to $1,500,000 (the “Annual Fee”), which fee will be
comprised of a management fee equal to $750,000 and an unallocated expense reimbursement of
$750,000, which unallocated expense reimbursement will be in addition to the expense reimbursement
payable to Yucaipa pursuant to Section 2(b) below. One-twelfth (1/12th) of the Annual Fee
will be payable in advance on the first day of each calendar month; provided that a
prorated portion of such fee will be payable in advance on the date of this Agreement for the
partial month beginning on the date of this Agreement. The Annual Fee will be payable by the
Company whether or not the Company requests or utilizes Yucaipa to provide the services described
in Section 1 above. The Annual Fee will be fully earned when due and payable.




          (b) Reimbursement of Expenses. In addition to the Annual Fee, the Company will
reimburse Yucaipa for all documented out-of-pocket costs, expenses and fees incurred in connection
with the performance of its obligations under this Agreement, including, without limitation, travel
expenses and costs, fees and expenses paid to legal counsel, accountants, advisers, consultants,
subcontractors and other third parties. The Company will fully reimburse and pay Yucaipa for any
such costs, fees and expenses within 10 days after each request for reimbursement by Yucaipa.




     Section 3. Transaction Fees.



          (a) Future Transactions. The Company hereby grants Yucaipa a right of first refusal
to serve as a non-exclusive consultant and advisor in connection with any and each (i) sale,
merger, business combination, joint venture or otherwise, whether effected in a single transaction
or series of related transactions, in which 25% or more of the equity securities or voting power of
the Company or all or a substantial portion of the Company’s business or assets (on a consolidated
basis) are combined with or transferred to another person or entity (a “Sale Transaction”)
and (ii) financing transaction (including refinancings and securities offerings) involving greater
than $20,000,000 (a “Financing Transaction”). As a consultant or advisor, Yucaipa and/or
its affiliates and representatives will provide assistance with identification, support,
negotiation and analysis of the relevant transaction, but Yucaipa will not perform any service for
which it does not possess the requisite federal or state registrations, licenses or qualifications.
If Yucaipa agrees to serve as consultant or advisor with respect to any such transaction no
separate agreement will be required and the Company will (i) pay Yucaipa a cash fee in connection
with each such transaction equal to 1.0% of the Gross Transaction Value of such transaction and
(ii) reimburse Yucaipa for all documented out-of-pocket costs, expenses and fees incurred in
connection with each such transaction. The fees and expenses referenced in clause (i) above must
be paid by the Company concurrently with the closing of each such
transaction and the costs, fees and expenses referenced in clause (ii) above shall be paid by
the Company to Yucaipa within 10 days after any request for reimbursement by Yucaipa.




          (b) Gross Transaction Value. With respect to any Sale Transaction, “Gross
Transaction Value” means the total amount of cash and the fair market value on the date which
is five days prior to the consummation of the transaction (the “Valuation Date”) of all
other




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property paid or payable directly or indirectly to the Company, its subsidiaries or any of
their respective security holders in connection with a transaction (including (i) amounts paid to
holders of any warrants or convertible securities of the Company or its subsidiaries and to holders
of any options or stock appreciation rights issued by the Company or its subsidiaries, whether or
not vested; (ii) the total amount of indebtedness for borrowed money or similar non-trade
liabilities or obligations (including unfunded pension liabilities, guarantees, capitalized leases
and the like) of the Company or its subsidiaries repaid, retired, extinguished or assumed in
connection with, or which otherwise remains outstanding as of the closing of, a transaction; and
(iii) the fair market value of any assets of the Company or its subsidiaries (including working
capital items) which are retained by or otherwise distributed to their respective stockholders or
affiliates in anticipation of or in connection with a transaction). With respect to any Sale
Transaction, when calculating Gross Transaction Value, (1) all shares will be deemed transferred
where a transaction is effected by the transfer of shares (A) constituting 25% or more of the then
outstanding equity securities of or equity interest in the Company or its subsidiaries or
affiliates, or (B) possessing 25% or more of the then outstanding voting power of the outstanding
equity securities of or equity interest in the Company or its subsidiaries or affiliates, (2) the
value of any securities issuable in connection with a transaction (whether debt or equity) that
have an established public market (including any such securities subject to resale restrictions)
will be determined on the basis of the last closing price in such market on the Valuation Date; and
the value of securities that have no established public market or other property will be the fair
market value of such securities or other property on such Valuation Date as determined in good
faith and upon mutual agreement of the Company and Yucaipa, and (3) all present value calculations
will utilize a discount rate equal to the prime rate published in The Wall Street Journal on the
Valuation Date (the “Prime Rate”). In the event an agreement for a transaction provides
for escrowed or contingent payments or other payments over time, the present value of such payments
(discounted at the Prime Rate) shall be based upon projections developed in connection with the
proposed transaction, and Yucaipa’s fees in respect of such payments shall be calculated based upon
such present value and paid at the closing of such transaction. With respect to any transaction
that is solely a Financing Transaction, “Gross Transaction Value” means the total amount of
indebtedness of the Company or its subsidiaries issued, financed or refinanced or the fair market
value (determined consistent with sub-clause (2) above) on the date of issuance of any equity
securities issued.




     Section 4. Term of Agreement. The term of this Agreement will be for five years
beginning on May 29, 2007 and it will automatically be extended by 12 additional calendar months on
May 29, 2008, and every May 29th, thereafter, unless 180 days prior to May 29, 2008, or
180 days prior to any subsequent May 29th thereafter, the Company delivers to Yucaipa
written notice of its intention not to extend the term of this Agreement.



     Section 5. Termination.



          (a) Termination by the Company. The Company may elect to terminate this Agreement:





     (i) at any time following a determination of the Board of Directors of the
Company to effect such a termination by giving Yucaipa at least 180 days’ advance
written notice of such termination; or



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     (ii) if Yucaipa fails to reasonably perform any material covenant, agreement,
term or provision of this Agreement to be kept, observed or performed by it and such
failure continues for a period of 60 days after written notice thereof from the
Company, which notice must describe the alleged failure with particularity.



          (b) Termination by Yucaipa. Yucaipa may elect to terminate this Agreement:





     (i) if the Company fails to reasonably perform any material covenant,
agreement, term or provision of this Agreement to be kept, observed or performed by
it and such failure continues for a period of 60 days after written notice thereof
from Yucaipa, which notice must describe the alleged failure with particularity;




     (ii) immediately if the Company fails to pay or reimburse Yucaipa for any
amounts due under this Agreement within the time required by this Agreement;




     (iii) at any time upon giving the Company at least 180 days’ advance written
notice of such termination; or




     (iv) immediately upon the occurrence of any of the following events: (1) any
merger, consolidation, business combination, or similar transaction involving the
Company, (2) any sale, lease or other disposition directly or indirectly by merger,
consolidation, business combination, share exchange, joint venture, or otherwise of
assets of the Company or any of its subsidiaries representing 25% or more of the
consolidated assets of the Company and its subsidiaries, (3) any issuance, sale, or
other disposition of (including by way of merger, consolidation, business
combination, share exchange, joint venture, or any similar transaction) securities
(or options, rights or warrants to purchase, or securities convertible into or
exchangeable for such securities) representing 25% or more of the voting power of
the Company or (4) any transaction in which any person acquires “beneficial
ownership” (within the meaning of Rule 13d-3(a)(1) under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”)) or the right to acquire beneficial
ownership or any group (within the meaning of Section 13(d)(3) of the Exchange Act)
is formed which “beneficially owns” or has the right to acquire “beneficial
ownership” of 25% or more of the outstanding voting capital stock of the Company or
(5) any combination of the foregoing.



          (c) Payments upon Termination. In the event of any termination pursuant to
Section 5(a)(i), Section 5(b)(i), Section 5(b)(ii) or Section
5(b)(iv), the Company will pay, or cause to be paid, to Yucaipa a cash termination payment
equal to the total fees that would have been earned by Yucaipa under Section 2 hereof
during the remaining term of this Agreement as if the Agreement had not been terminated. Any such
cash termination payment will be due and payable to Yucaipa, in full, as of the date of such
termination. If the foregoing payments are determined to constitute liquidated damages, such
payments shall in all events be deemed reasonable.





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          (d) Effect of Termination. Upon any termination of this Agreement the obligations of
the parties hereunder shall also terminate, except (i) the Company will continue to be obligated to
make all payments required pursuant to Section 2(b), Section 3, and Section
5(c), (ii) if Yucaipa agrees to serve as a consultant or advisor pursuant to Section 3,
and within 12 months of the date of termination of this Agreement the Company enters into or
consummates a Sale Transaction or Financing Transaction, then on the date the Company enters into
or consummates each such transaction (whichever is earlier) the Company will pay Yucaipa a fee in
the amount contemplated by Section 3, and (iii) the provisions of Section 2(b), the
payment obligations under Section 3, Section 5, Section 6, Section
7 and Section 8 shall survive any such termination.




     Section 6. Indemnification.



          (a) The Company (the “Indemnifying Party”) will indemnify and hold harmless Yucaipa
and its affiliates, counsel and other advisors, and the respective partners, equityholders,
shareholders, members, directors, officers, fiduciaries, managers, controlling persons, employees
and agents of each of the foregoing (each an Indemnified Party” and collectively, the
“Indemnified Parties”), from and against all losses, claims or proceedings including
stockholder actions, damages, judgments, assessments, investigation costs, settlement costs, fines,
penalties, arbitration awards, other liabilities, costs, fees and expenses (collectively,
“Losses”) (i) related to or arising out of (A) oral or written information provided by the
Company, the Company’s employees or other agents, which either the Company or any Indemnified Party
provides to any persons, or (B) other action or failure to act by the Company, the Company’s
employees or other agents or any Indemnified Party at the Company’s request or with the Company’s
consent, or (ii) otherwise related to or arising out of any services provided by any Indemnified
Party under this Agreement or any transaction or conduct in connection therewith, provided
that this clause (ii) shall not apply if it is finally judicially determined by a court of
competent jurisdiction that such Losses arose solely out of the gross negligence or bad faith of
such Indemnified Party.




          (b) The Company shall further reimburse any Indemnified Party promptly for, or at the
Indemnified Party’s option advance amounts sufficient to cover, any legal or other fees or expenses
as they are incurred (i) in investigating, preparing or pursuing any action or other proceeding
(whether formal or informal) or threat thereof, whether or not in connection with pending or
threatened litigation or arbitration and whether or not any Indemnified Party is a party (an
“Action”) and (ii) in connection with enforcing such Indemnified Party’s rights under this
Agreement (including its rights under this Section 6); provided, however,
that in the event it is finally judicially determined by a court of competent jurisdiction that the
Losses of such
Indemnified Party arose solely out of the gross negligence or bad faith of such Indemnified
Party, such Indemnified Party will promptly remit to the Company any amounts reimbursed or advanced
under this paragraph.




          (c) The Company shall, if requested by Yucaipa, assume the defense of any such Action
including the employment of counsel reasonably satisfactory to Yucaipa and will not settle,
compromise, consent or otherwise resolve or seek to terminate any pending or threatened Action
(whether or not any Indemnified Party is a party thereto) unless it obtains prior written consent
of Yucaipa or an express, unconditional release of each Indemnified Party




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from all liability
relating to such Action and any services provided under this Agreement. Any Indemnified Party
shall be entitled to retain separate counsel of its choice and participate in the defense of any
Action in connection with any of the matters to which this Section 6 relates, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party unless: (i) the
Company has failed promptly to assume the defense and employ counsel or (ii) the named parties to
any such Action (including any impleaded parties) include such Indemnified Party and the Company,
and such Indemnified Party shall have been advised by counsel that there may be one or more legal
defenses available to it which are different from or in addition to those available to the Company;
provided that the Company shall not in such event be responsible under this Section
6 for the fees and expenses of more than one firm of separate counsel (in addition to local
counsel) in connection with any such Action in the same jurisdiction.




          (d) The Company agrees that if any right of any Indemnified Party set forth in the
Sections 6(a), (b) or (c) is finally judicially determined to be
unavailable (except by reason of the gross negligence or bad faith of such Indemnified Party), or
is insufficient to hold such Indemnified Party harmless against such Losses as contemplated herein,
then the Company shall contribute to such Losses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and its stockholders, on the one hand, and
such Indemnified Party, on the other hand, in connection with the transactions contemplated hereby,
and (ii) if (and only if) the allocation provided in clause (i) is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) but also the relative fault of the Company and such Indemnified Party; provided,
however, that in no event shall the amount, if any, to be contributed by all Indemnified
Parties exceed the amount of the fees actually received by Yucaipa hereunder.




          (e) The Company also agrees that no Indemnified Party shall have any liability (whether direct
or indirect, in contract or tort or otherwise) to the Company for or in connection with services
rendered or to be rendered by any Indemnified Party pursuant to this Agreement, the transactions
contemplated hereby or taken hereunder or any Indemnified Party’s actions or inactions in
connection with any such services or transactions except for Losses of the Company that are finally
judicially determined by a court of competent jurisdiction to have arisen solely out of the gross
negligence or bad faith of such Indemnified Party in connection with any such actions, inactions or
services. In no event will any Indemnified Party have any liability for any Losses based on a
multiple, any lost profits, any diminution in value or property or equity or any punitive, special,
consequential, incidental, exemplary or otherwise not actual damages.




          (f) The rights of the Indemnified Parties hereunder shall be in addition to any other rights
that any Indemnified Party may have at common law, by statute or otherwise. Except as otherwise
expressly provided for in this Section 6, if any term, provision, covenant or restriction
contained in this Section 6 or anywhere in this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions contained in this
Agreement shall all remain in full force and effect and shall in no way be affected, impaired or
invalidated. The reimbursement, indemnity and contribution obligations of the Company set forth
herein shall apply to any modification of this Agreement and shall
remain in full force and 


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effect regardless of any termination of, or the completion of any Indemnified Party’s services under or in
connection with, this Agreement.




     Section 7. Disclaimer; Opportunities.



          (a) Disclaimer. Yucaipa makes no representations or warranties, express or implied,
in respect of the services to be provided pursuant to this Agreement or any registrations, licenses
or qualifications. Yucaipa is providing certain monitoring, management or consulting services and
is not undertaking to provide any legal, regulatory, accounting, insurance, tax, investment
banking, investment advisory or other similar professional advice and neither Yucaipa, nor its
affiliates, will be rendering any opinions. The Company confirms that it will rely on its own
counsel, accountants and other similar experts for legal, regulatory, accounting, insurance, tax,
investment banking, investment advisory or other similar professional advice. Yucaipa will not
perform any service for which it does not possess the requisite federal or state registrations,
licenses or qualifications. The Company recognizes that Yucaipa is providing services only to the
Company and this Agreement is not deemed to be and is not intended to confer rights upon any
stockholder or any other person or entity not party to this Agreement against Yucaipa or any
Indemnified Party. Any document, analysis or service provided by Yucaipa under this Agreement will
not be quoted, reproduced, summarized or otherwise disclosed, nor will any reference to Yucaipa be
made, without Yucaipa’s prior written consent.




          (b) Ability to Pursue Opportunities. Except as Yucaipa may otherwise agree in writing
after the date hereof:





     (i) Yucaipa and each of the Indemnified Parties have the right to, and have no
duty (contractual, fiduciary or otherwise) not to, directly or indirectly: (A)
engage in the same or similar business activities or lines of business as the
Company or its subsidiaries and affiliates, or any business that might be in direct
or indirect competition with the Company and/or its subsidiaries and affiliates, (B)
do business with any client or customer of the Company or its subsidiaries and
affiliates, (C) consult, advise, manage, supervise or monitor any company, business
or other entity, including any portfolio companies, affiliated investment limited
partnerships or limited liability companies affiliated with Yucaipa or any of the
Indemnified Parties, or (D) own or purchase any securities or any other interest of
or in any company, business or other entity that engages in any of the activities
listed in sub-clauses (A), (B) or (C);




     (ii) Yucaipa and each of the Indemnified Parties have no duty (contractual or
otherwise) to communicate or present any corporate opportunities to the Company or
any of its subsidiaries or affiliates or to refrain from any of the actions listed
in Section 7(b)(i); and




     (iii) Neither Yucaipa nor any of the Indemnified Parties will be liable to the
Company or any of its subsidiaries or affiliates for breach of any duty
(contractual, fiduciary or otherwise) if it (A) participates in any activities
described in Section 7(b)(i) or (B) pursues any corporate opportunity for
itself, directs any corporate opportunity to another person or entity or does not
present




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such corporate opportunity to the Company, its subsidiaries or affiliates or
(C) does any of the foregoing in connection with Performance Logistics Group, Inc.
or any of its affiliates.



          (c) Renouncement of Certain Rights. Without limiting any provision of this
Section 7, the Company renounces any interest or expectancy of the Company or its
affiliates in, or in being offered an opportunity to participate in, business opportunities that
are from time to time presented to Yucaipa or any of the Indemnified Parties, even if the
opportunity is one that the Company or its subsidiaries or affiliates might reasonably be deemed to
have pursued or had the ability or desire to pursue if granted the opportunity to do so.




     Section 8. Miscellaneous.



          (a) Information. The Company will furnish, or arrange to have furnished, to Yucaipa
and any person or entity assisting Yucaipa with providing services, such information as Yucaipa
believes appropriate to assist Yucaipa and others with providing services pursuant to this
Agreement (all such information so furnished being the “Information”), and will update such
Information as appropriate. The Company recognizes and consents to the fact that Yucaipa and
others assisting Yucaipa with providing services (i) will use and rely on the accuracy and
completeness of the Information supplied or otherwise made available without having any obligation
to independently verify the same, (ii) do not assume responsibility for the accuracy or
completeness of the Information or such other information, (iii) have no obligation to undertake an
independent evaluation, appraisal or physical inspection of any assets or liabilities of the
Company or any other person or entity, and (iv) with respect to any financial forecasts (including
cost savings and synergies) that may be furnished to or discussed by the Company or any other
person or entity, will assume that they have been reasonably prepared and reflect the best then
currently available estimates and judgment of the Company’s or such other person or entity’s
management. Any written information furnished to Yucaipa pursuant to this Section 8(a)
that is not publicly available and is specifically marked as “Confidential Information Not For
Public Disclosure” by the Company when furnished to Yucaipa, will not be publicly disclosed by
Yucaipa during the term of this Agreement without the consent of the Company.




          (b) No Loss of Rights as Stockholder. The Company acknowledges that affiliates of
Yucaipa are owners of equity interests of the Company and that nothing in this Agreement limits,
affects or alters the rights or abilities of Yucaipa or its affiliates to take any action in the
capacity as an equityholder of the Company.




          (c) Notice. All notices or other communications hereunder shall be deemed to have
been duly given and made if in writing and if served by personal delivery upon the party for whom
it is intended, if delivered by registered or certified mail, return receipt requested, or by a
national courier service, or if sent by facsimile or by email transmission. Any such notice shall
be deemed delivered (i) on the date delivered if by personal delivery, (ii) on the date upon which
receipt is signed or delivery is made, if mailed by registered or certified mail, (iii) on the date
upon which the return receipt is signed or delivery is refused or the notice is designated by the
postal authorities as not deliverable, as the case may be, if mailed by registered or certified
mail, (iv) on the next succeeding business day if sent by national courier service, (v) on the date
sent




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by facsimile if the appropriate facsimile confirmation is received by the sender, or (vi) on
the date sent if by email.




	 	 	 	 	 
	 

	 	If to Yucaipa:
	 	Yucaipa American Funds, LLC
	 

	 	 	 	9130 W. Sunset Boulevard
	 

	 	 	 	Los Angeles, California 90069
	 

	 	 	 	Email: legal@yucaipaco.com
	 

	 	 	 	Attention: Robert P. Bermingham
	 

	 	If to the Company:
	 	Allied Systems Holdings, Inc.
	 

	 	 	 	160 Clairemont Avenue, Suite 200
	 

	 	 	 	Decatur, Georgia 30030
	 

	 	 	 	Email: John.Blount@AlliedHoldings.com
	 

	 	 	 	Attn: General Counsel






          with a copy to the General Counsel of the Company at the same address.




          (d) Entire Agreement; Amendments. This Agreement contains all of the terms and
conditions agreed upon by the parties hereto in connection with the subject matter hereof. This
Agreement may not be amended, modified or changed except by written instrument signed by all of the
parties hereto.




          (e) Assignment; Successors. This Agreement shall not be assigned and is not
assignable by the Company or Yucaipa without the prior written consent of the other party hereto;
provided, however, that Yucaipa may assign, without the prior consent of the Company, its
rights and obligations under this Agreement to any partnership or limited liability company
controlled by, or under common control with, Yucaipa, and provided further, that Yucaipa may assign
the right to receive any payment hereunder to any other person or entity. Subject to the preceding
sentence, this Agreement shall inure to the benefit of and be binding upon the parties hereto and
their respective permitted successors and assigns.




          (f) Governing Law; Jurisdiction; Jury Waiver. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without reference to the
choice of law principles thereof. The Company hereby submits to the exclusive jurisdiction of the
Federal and State courts located in the City of New York, New York in connection with any dispute
related to this Agreement or any of the matters contemplated hereby. Notwithstanding the
foregoing, to the extent a matter involves the internal affairs of the
Company such matter shall be governed by the laws of the jurisdiction of the Company’s
organization. EACH OF YUCAIPA AND THE COMPANY (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY DISPUTE
RELATED TO THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY.




     (g) Relationship. Nothing in this Agreement shall constitute or be construed to
create a partnership or joint venture between the Company and Yucaipa. Yucaipa is acting as



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an
independent contractor to provide the services described herein solely to the Company and Yucaipa
is not acting as a fiduciary of the Company, any security holders of the Company or any other
persons. No employee of Yucaipa or its affiliates will be deemed employees of the Company or any
of its affiliates by reason of this Agreement or the performance of services contemplated hereby.
This Agreement is for the benefit of the Company and Yucaipa and shall not create third-party
beneficiary rights, except for Section 6 and Section 7. The Indemnified Parties
and the members of the Yucaipa Group are third-party beneficiaries of this Section 6 and
Section 7 of this Agreement with the right to fully enforce those sections as if parties
hereto.




          (h) Construction and Interpretation. This Agreement shall not be construed for or
against either party by reason of the authorship or alleged authorship of any provision hereof or
by reason of the status of the respective parties. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule
of strict construction shall be applied against either party. The captions on sections are
provided for purposes of convenience and are not intended to limit, define the scope of or aid in
interpretation of any of the provisions hereof. References to a party or parties shall refer to
the Company or Yucaipa, or both, as the context may require. All pronouns and singular or plural
references as used herein shall be deemed to have interchangeably (where the sense of the sentence
requires) a masculine, feminine or neutral, and/or singular or plural meaning, as the case may be.
The word “including” whenever used in this Agreement shall be deemed to be immediately followed by
the words “without limitation.”




          (i) Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which taken together shall constitute one and the
same instrument.




(signature page follows)




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     IN WITNESS WHEREOF, the parties hereto have caused this Monitoring and Management Services
Agreement to be duly executed as of the date first above written.



	 	 	 
	 

	 	YUCAIPA AMERICAN FUNDS LLC, a Delaware limited
	 

	 	liability company
	 
	 	 
	 

	 	By: Yucaipa American Management, LLC
	 

	 	Its: Managing Member






	 	 	 	 	 
	 	 	 
	 	By:  	                                                  /s/ Robert P. Bermingham
 	 
	 	 	Name:  	Robert P. Bermingham 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



	 	 	 	 	 
	                ALLIED
SYSTEMS HOLDINGS, INC., a Delaware corporation

 
	 	By:  	/s/ Thomas H. King
 	 
	 	 	Name:  	Thomas H. King 	 
	 	 	Title:  	Vice President, Treasurer and

Assistant Secretary 	 
	 




S-1
Monitoring and Management Services Agreement