Exhibit 10.11
JOINT MANAGEMENT AGREEMENT
This Joint Management Agreement (this "Agreement") is made as of this
12th day of September, 1996 by and between Xxxxxx.Xxxx, L.L.C. ("Xxxxxx"), a
Tennessee limited liability company and Universal Outdoor Management Company
("Manager"), an Illinois corporation and a wholly-owned subsidiary of Universal
Outdoor, Inc. ("Universal").
WHEREAS, Xxxxxx owns and operates an outdoor advertising business in
Memphis, Tennessee, and the surrounding area including, but not limited to,
Shelby County, Fayette County, Xxxxxx County and Xxxxxx County, Tennessee, and
Desoto County, Tunica County and Acorn County, Mississippi, and Xxxxxxxxxx
County and Xxxxxx County, Arkansas (the "Business");
WHEREAS, Xxxxxx desires to enter into this Agreement pursuant to which
Manager and Xxxxxx will manage and operate the Business currently conducted by
Xxxxxx and in furtherance thereof shall provide Xxxxxx with the services of
certain officers of Manager as well as managerial, financial, administrative,
tax, operational, advisory services and any other services necessary to operate
the Business; and
WHEREAS, Manager desires to manage and operate the Business in
conjunction with Xxxxxx and to provide such officers and services to Xxxxxx.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and obligations set forth herein, the parties hereto agree as follows:
SECTION 1. PERFORMANCE OF SERVICES.
(a) Subject to the terms and conditions of this Agreement, the
Manager and Xxxxxx shall be directly responsible for the day-to-day management
and operation of the Business (the "Services"). The Manager and Xxxxxx shall
perform the Services in a careful and professional manner, but shall operate and
manage the Business as they deem appropriate. In the case of any dispute
between Xxxxxx and the Manager as to the Manager's performance of the Services
or the operation and management of the Business, Xxxxxx'x decision shall take
precedence over
any conflicting view or proposal of the Manager, PROVIDED,
HOWEVER, that the mutual consent of both the Manager and Xxxxxx must be obtained
for any of the following:
(i) new Sign Location Leases;
(ii) Advertising Contracts in excess of $25,000;
(iii) the sale of any Assets;
(iv) the hiring or termination of any employees; and
(v) the construction of any new Displays.
Without limiting the generality of the foregoing:
(i) subject to the terms and conditions of this Agreement, the
parties hereto shall cause the individuals listed in Schedule I hereto to
have all authority of the Manager and Xxxxxx to effect the operation of
Xxxxxx as is necessary to provide the Services. During the term of this
Agreement, Manager shall make available the services of such other
individuals as are reasonably necessary in order to further the intentions
of this Agreement; and
(ii) subject to the terms and conditions of this Agreement, the
Manager and Xxxxxx shall perform for Xxxxxx managerial, financial,
administrative, operational, other advisory services, and any other
services necessary to operate the Business, including but not limited to,
accounting, tax, marketing, technical and human resources services, legal
support services and day-to-day operational services and supervision.
(b) The Manager and Xxxxxx shall in all respects operate the day-to-
day operations of the Business and in furtherance thereof and without limiting
the generality of the foregoing, shall carry out the following functions on
behalf of Xxxxxx:
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(i) negotiate and execute on behalf of Xxxxxx all agreements,
contracts, documents, certificates, permits or instruments relating to the
operation of the Business;
(ii) collect and deposit, for the account of Xxxxxx, all
revenues, cash, checks, loan proceeds, funds or any other payments or
revenues relating to the Business and disburse such funds from Xxxxxx'x
account as are necessary to pay the expenses of the Business;
(iii) make decisions with respect to the employment and
termination of employment of employees, consultants and advisors of Xxxxxx;
(iv) perform all bookkeeping and other handling of financial and
accounting matters for Xxxxxx and maintain the financial and tax records of
the Business; and
(v) purchase any materials, supplies and equipment necessary for
the operation of the Business.
SECTION 2. FEES; PAYMENT.
(a) Xxxxxx shall pay to the Manager, by wire transfer of immediately
available funds, a management fee (the "Management Fee") in exchange for the
Services described in Section 1 hereof, on or prior to the fifth business day of
each calendar month an amount equal to $82,000 per month, and such Management
Fee shall be prorated for any period during which the Manager provides the
Services which is less than one month.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF EACH PARTY.
Each of the parties hereto represents and warrants to the other that,
as of the date hereof:
(a) it is duly organized, validly existing and in good standing under
the laws of the jurisdiction in which it is formed and has all requisite
authority to own
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its property and assets and to conduct its business as
presently conducted or proposed to be conducted under this Agreement;
(b) it has the power and authority to execute, deliver and perform
its obligations under this Agreement;
(c) all necessary action has been taken to authorize its execution,
delivery and performance of this Agreement and this Agreement constitutes its
legal, valid and binding obligation enforceable against it in accordance with
its respective terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, moratorium and other similar laws affecting the rights
of creditors generally and by general principles of equity;
(d) neither its execution and delivery of this Agreement nor the
performance of its obligations hereunder will:
(i) conflict with or violate any provision of its organizational
documents;
(ii) conflict with, violate or result in a breach of any
constitution, law, judgment, regulation or order of any governmental
authority applicable to it; or
(iii) conflict with, violate or result in a breach of or constitute a
default under or result in the imposition or creation of any mortgage,
pledge, lien, security interest or other encumbrance under any term or
condition of any mortgage, indenture, loan agreement or other agreement to
which it is a party or by which its properties or assets are bound;
(e) no approval, authorization, order or consent of, or declaration,
registration or filing with any governmental authority or third party is
required for its valid execution, delivery and performance of this Agreement,
except such as have been duly obtained or made; and
(f) there is no action, suit or proceeding, at law or in equity, by
or before any court, tribunal or governmental authority or third party pending,
or, to its
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knowledge, threatened, which, if adversely determined, would
materially and adversely affect its ability to perform its obligations hereunder
or the validity or enforceability of this Agreement.
SECTION 4. COVENANTS OF XXXXXX.
(a) Xxxxxx hereby covenants that it will, and will cause its members,
officers, managers, agents and representatives to cooperate fully with the
Manager in the Managers' provision of the Services and to otherwise act at all
times in a manner consistent with this Agreement.
(b) During the term of this Agreement, Xxxxxx shall supply or make
available to the Manager the books and records of Xxxxxx and such other
information as the Manager shall reasonably require in the performance of the
Services. Manager shall keep in confidence and shall not disclose any
information supplied to it to any other person, except as may be required by
applicable law.
(c) Xxxxxx hereby agrees to provide and maintain in full force and
effect throughout the term of this Agreement all insurance and insurance
policies in effect on the date hereof.
(d) Xxxxxx shall provide the individuals serving in the capacities
specified in Section 1(a)(i) with (a) coverage available to the senior officers
of Xxxxxx under Xxxxxx'x policies of director and officers insurance, if any,
and (b) indemnification agreements or other arrangements, if any, that are or
have been provided by Xxxxxx to its senior officers.
SECTION 5. TERM AND TERMINATION.
(a) This Agreement shall be effective as of the date hereof and
shall terminate on the earliest of (i) the termination of the Option and
Asset Purchase Agreement, dated September 12, 1996 by and among Xxxxxx, TOA
Enterprises, L.P., Xxxxxxx X. Xxxxxx, WBT Outdoor, Inc., The Xxxxxxxxxx
Xxxxxx Trust, Xxxxxx Acquisition Corporation and Universal (the "Option and
Asset Purchase Agreement"), (ii) the consummation of the purchase of the
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Business pursuant to the exercise of the option contained in the Option and
Asset Purchase Agreement, or (iii) the mutual agreement of the parties hereto.
(b) In the event of a termination of this Agreement, except for
unpaid Management Fees and obligations pursuant to Section 7, Section 2 and
the last sentence of Section 4(b), each of which shall survive termination of
this Agreement, the parties shall have no further obligations to each other
pursuant to the terms of this Agreement.
SECTION 6. STATUS OF MANAGER.
Manager shall perform and execute its obligations under this
Agreement at all times as an independent contractor to Xxxxxx and shall not
be an employee or agent of Xxxxxx. Nothing contained in this Agreement shall
be construed as creating a joint venture or partnership. For tax purposes,
Xxxxxx shall not take any position inconsistent with this Section 6. The
Manager shall retain complete control over its personnel, workers,
subcontractors and operators for performance of the Services.
SECTION 7. LIMITATION OF LIABILITY; NO RECOURSE.
(a) Xxxxxx agrees, to the fullest extent permitted by law, to
defend, indemnify and hold harmless Manager, its parents, and their
respective officers, directors, employees, agents, representatives and
stockholders, from and against, any and all actions, claims (including claims
by any governmental or taxing authority), demands, suits, proceedings,
liabilities, judgments, awards, losses, damages, and to pay and advance any
costs, expenses (including reasonable legal fees and expenses in connection
with, and other costs of investigating, preparing or defending any such
action or claim or enforcing its rights under this Agreement) and damages in
any action or amounts constituting a settlement of any claim with respect to
any losses or liabilities arising out of the performance of this Agreement,
whether or not arising out of third party claims or in connection with
litigation in which any such person is a party and whether or not based on
contract, tort (including negligence),
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violation of law,theory of strict liability, or infringement of proprietary
rights, for bodily injury (including death), destruction of third party
property and the loss of use or other loss or expense related thereto,
arising out of or in any manner caused or occasioned, in whole or in part, by
any act, omission, error, fault or negligence of Manager, any affiliate of
Manager or anyone acting on Manger's behalf, including, without limitation,
subcontractors and affiliates of the foregoing. Such losses, costs, expenses
and damages shall be paid as and when incurred. Neither Manager nor its
officers, directors, employees, agents, representatives and stockholders
shall have any liability or responsibility, including, without limitation, to
Xxxxxx and its members, officers, employees, agents and representatives, for
any damages or losses arising out of the performance under this Agreement or
any default of the provisions hereof; PROVIDED, HOWEVER, that such waiver
shall not apply to the extent that a court of competent jurisdiction has
finally adjudicated that such damages resulted directly from the gross
negligence or willful misconduct of Manager. Xxxxxx, by execution of this
Agreement, waives and releases all such persons from all such liabilities.
(b) Xxxxxx agrees to defend, indemnify and hold harmless Manager
and, to the fullest extent permitted by law, its officers against, and to pay
any costs and damages in any action or amounts constituting a settlement of
any claim with respect to any losses or liabilities incurred or paid by
either Xxxxxx or Manager in connection with the Business during the term of
this Agreement, PROVIDED, HOWEVER, that Xxxxxx shall not be required to
indemnify Manager to the extent that a court of competent jurisdiction has
finally adjudicated that such damages resulted directly from the gross
negligence or willful misconduct of Manager.
(c) Notwithstanding any provision to the contrary contained in
this Agreement, Manager shall have no liability to Xxxxxx for (i) its
performance of the Services contemplated hereby or (ii) its failure to
perform the Services contemplated hereby; except to the extent that a court
of competent jurisdiction has finally adjudicated that any damages to the
Business are the direct result of the Manager's gross negligence and willful
misconduct, in which case Manager's liability to
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Xxxxxx shall be limited to the aggregate of the Management Fees paid by
Xxxxxx to Manager.
SECTION 8. FORCE MAJEURE. Neither Manager nor Xxxxxx shall be
responsible for any failure or delay in performance of its obligations under
this Agreement because of circumstances beyond its reasonable control
including, but not limited to, acts of God, fires, floods, wars, civil
disturbances, sabotage, accidents, labor disputes (whether or not the
employees' demands are reasonable and within the party's power to satisfy),
governmental actions or transportation delays. Any party may terminate this
Agreement without any liability to Manager or Xxxxxx, as the case may be, if
such party is substantially unable to perform its obligations under this
Agreement for an uninterrupted period of 30 days or for 30 or more days
during any 60 day period.
SECTION 9. NOTICES.
(a) Any notice required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been sufficiently given when (i)
hand delivered by one party to the other party at the addresses set forth below,
(ii) deposited in the United States mail, postage prepaid, for mailing by
certified or registered mail, return receipt requested, (iii) sent by way of
recognized overnight courier service with instructions to deliver on the next
business day or (iv) transmitted by telecopy (with receipt of such transmission
confirmed), addressed as follows:
If to Manager, addressed to:
Universal Outdoor Management Company, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Telecopy: (000) 000-0000
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If to Xxxxxx, addressed to:
Xxxxxx.Xxxx L.L.C.
Xxxxxxx X. Xxxxxx, Chief Manager
0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
or to such other address or addresses as may be specified from time to time in a
written notice given by such party.
(b) Notwithstanding the foregoing, routine instructions, requests,
directions and notices dealing with day to day operations under this Agreement
may be given in such manner to such persons as may be agreed by the parties from
time to time and as is reasonable and practicable.
SECTION 10. MISCELLANEOUS.
(a) This Agreement constitutes the entire Agreement between the
parties with respect to the supply or performance of Services for Xxxxxx by
Manager, and is a complete allocation of risks between them as to the subject
matter hereof. This Agreement supersedes all previous oral or written
negotiations, representations, undertakings and agreements heretofore made
between the parties in respect to the subject matter hereof.
(b) If any term or provision of this Agreement is held to be invalid
or unenforceable by reason of any rule of law or public policy, then this
Agreement shall be deemed amended to delete therefrom the term or provision held
to be invalid or unenforceable and all of the remaining terms and provisions of
this Agreement shall remain in full force and effect.
(c) Neither party to this Agreement may assign its rights hereunder
without the prior written consent of the other, and any such assignment of such
rights hereunder without such consent shall be voidable at the option of the
other party.
(d) This Agreement shall inure to the benefit of and shall be binding
upon the successors, heirs, assigns, and legal representatives of the parties
hereto.
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(e) Each of the parties hereto agrees to submit to binding
arbitration any and all differences and disputes which may arise between them,
their heirs, successors, assigns, employees, officers, directors, affiliates,
subsidiaries, or shareholders which are related to this Agreement. Prior to
initiating arbitration, the parties shall first meet face-to-face to effect a
resolution of the differences. Any differences which the parties are unable to
resolve in said face-to-face meeting shall be heard and finally settled at a
mutually agreed upon location by the parties, by binding arbitration in
accordance with the Commercial Rules of the American Arbitration Association.
If the parties do not agree upon a location, the arbitration proceeding shall be
conducted in St. Louis, Missouri. Any award entered in any such arbitration
shall be final, binding, and may be entered and enforced in any court of
competent jurisdiction. The arbitrator shall make such orders, conduct and
schedule all proceedings in connection with the arbitration so that final
arbitration commences no less than thirty (30) days and concludes no later than
seventy-five (75) days after a party files the initial notice of arbitration,
and so that the final arbitration award is made and delivered to the parties
within ninety (90) days after the filing of the initial notice of arbitration.
The cost of such arbitration shall be apportioned as determined by the
arbitrator, in any manner determined by him/her based upon the fault or lack
thereof by the respective parties. If the cost of such arbitration is not
apportioned by the arbitrator, then the cost shall be borne equally between the
Manager and Xxxxxx. Nothing herein contained shall be construed as preventing
any party from instituting legal or equitable action in any jurisdiction against
any of the other parties for temporary or similar provisional relief to the full
extent permitted under the laws applicable to this Agreement, or any such other
written agreement between the parties or the performance hereof or thereof or
otherwise pending final settlement of any dispute, difference or question by
arbitration. Any such provisional relieve may be modified or amended in any way
by the arbitrator at any time after his appointment.
(f) Xxxxxx and the Manager (i) agree that any suit, action or
proceeding arising out of or relating to this Agreement will be brought
solely in the federal courts of the State of Missouri, sitting in the City of
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St. Louis, Missouri; (ii) consent to the exclusive jurisdiction of each such
court in any suit, action or proceeding relating to or arising out of this
Agreement; (iii) waive any objection which it may have to the laying of venue
in any such suit, action or proceeding in any such court, and (iv) agree that
service of any court paper may be made in any manner as may be provided under
applicable laws or court rules governing service of process in such court.
(g) This Agreement shall be interpreted, construed and governed under
and by the laws of the State of Delaware, without regard to its choice of law
rules.
(h) Neither this Agreement nor any provision hereof may be waived,
released, discharged, abandoned, changed or modified in any manner, orally or
otherwise, except by an instrument in writing signed by duly authorized officers
or representatives of the parties.
(i) Nothing herein contained shall be construed to place the parties
in the relationship of partners, joint venturers, principal and agent, or
employer and employee.
(j) This Agreement may be executed in counterparts, each of which
shall constitute an original but all of which, taken together, shall constitute
a single instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective duly authorized officers or representatives as
of the day and year first above written.
XXXXXX.XXXX L.L.C.
By:
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UNIVERSAL OUTDOOR MANAGEMENT COMPANY, INC.
By:
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SCHEDULE I
For Universal
Name
--------------
Xxx Xxxxx
Xxxxx Xxxxxxx
Xxxx Xxxxx
Xxxx Xxxxxx
Xxxxx Xxxx
Xxxx Xxxxxxx
Xxxxxxx Xxxxxxx
One Person To Be Designated
Xxxxx Xxxxxx
For Xxxxxx
Name
------------------
Xxxxxxx X. Xxxxxx
