Exhibit 10.7
[Applegate & Xxxxxxxx, Inc. letterhead]
March 7, 2002
Strictly Confidential
---------------------
CBD Media LLC
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
Re: CBD Media LLC
Gentlemen:
The purpose of this Agreement (this "Agreement") is to confirm and
memorialize the arrangement under which Applegate & Xxxxxxxx, Inc. ("ACI") has
been engaged by CBD Media LLC ("CBD") to provide CBD advisory and other services
on the terms and conditions of this Agreement.
1. Management Fees. CBD agrees to pay ACI an annual management fee of
$500,000 (the "Management Fee") for the services provided by ACI as more fully
described below. The Management Fee shall be payable by CBD to ACI in cash in
quarterly installments in advance at the beginning of each calendar quarter,
commencing on the date of the closing of the transactions (the "Acquisition")
contemplated by that certain Asset Purchase Agreement dated as of February 4,
2002 among Broadwing Inc., an Ohio corporation, Cincinnati Bell Directory Inc.,
an Ohio corporation, and CBD Media LLC, a Delaware limited liability company, as
amended (pro rated for the portion of the calendar quarter from the closing date
through March 31, 2002) and each April 1, July 1, October 1 and January 1
thereafter during the term of this Agreement.
2. Expenses. In addition to the Management Fee, we will separately bill
our expenses as incurred. Generally, these expenses include travel costs,
document production costs, the reasonable fees and disbursements of our legal
counsel and other expenses of this type. CBD xxxxxx agrees to reimburse ACI,
upon request made from time to time, for such expenses.
3. Services. ACI hereby agrees that, during the term of this Agreement
(the "Term"), ACI will:
a. provide CBD with advice in connection with the negotiation and
consummation of agreements, contracts, documents and instruments
necessary to provide CBD with financing from banks or other
financial
institutions or other entities on terms and conditions
satisfactory to CBD; and
b. provide CBD with financial, managerial and operational advice in
connection with its day-to-day operations, including advice with
respect to the development and implementation of strategies for
improving the operating, marketing and financial performance of
CBD.
4. Term. This Agreement shall continue in full force and effect, unless
and until amended or terminated by mutual consent of the parties; provided that
CBD shall pay any and all accrued and unpaid obligations of CBD owed under
Sections 1, 2, and 5 and the agreements set forth in Sections 5, 6, 7 and 8, and
this Section 4 shall remain operative regardless of any such termination.
5. Indemnification. ACI will act under this Agreement as an independent
contractor with duties to CBD. Because ACI will be acting on CBD's behalf in
this capacity, it is ACI's practice to receive indemnification. Concurrently
with the execution of this Agreement, CBD will enter into the form of indemnity
agreement attached to this Agreement.
6. Confidentiality. Any advice or opinion provided by ACI may not be
disclosed or referred to publicly except in accordance with our prior written
consent.
7. Waiver of Jury Trial. ACI and CBD each waives any rights to trial by
jury in any action, claim, suit, proceeding or counterclaim (whether based upon
contract, tort or otherwise) related to or arising out of the engagement of ACI
pursuant to, and the performance of ACI of the services contemplated by, this
Agreement.
8. Miscellaneous.
a. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of New York.
b. Amendments. This Agreement may be amended, modified or
supplemented only by a written instrument executed by both parties.
c. Section and Other Headings. The section and other headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
d. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
[Remainder of Page Intentionally Left Blank]
If the terms of our engagement as set forth in this Agreement are
satisfactory, kindly sign the enclosed copy of this Agreement and
indemnification form and return them to ACI.
Very truly yours,
Applegate & Xxxxxxxx, Inc.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Its: President
Accepted:
CBD Media LLC
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxx Xxxxx
Its: President
CBD Media LLC
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
Applegate & Xxxxxxxx, Inc.
000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
This letter will confirm that we have engaged Applegate & Xxxxxxxx, Inc.
("ACI") to advise and assist us in connection with the matters referred to in
our Agreement dated March 7, 2002 (the "Agreement"). In consideration of your
agreement to act on our behalf in connection with such matters, we agree to
indemnify and hold harmless you and your affiliates and your and their
respective officers, partners, directors, employees and agents and each other
person, if any, controlling you or any of your affiliates (you and each such
person being an "Indemnified Person") from and against any losses, claims,
damages or liabilities related to, arising out of or in connection with the
Acquisition (as defined in the Agreement) or the engagement of ACI pursuant to,
and the performance by ACI of the services contemplated by, the Agreement and
will reimburse each Indemnified Person for all expenses (including reasonable
fees and expenses of counsel) as they are incurred in connection with
investigating, preparing, pursuing or defending any action, claim, suit,
investigation or proceeding arising therefrom, whether or not pending or
threatened and whether or not any Indemnified Person is a party. We also agree
that no Indemnified Person shall have any liability (whether direct or indirect,
in contract or tort or otherwise) to us or our direct or indirect security
holders or creditors related to or arising out of the engagement of ACI pursuant
to, and the performance by ACI of the services contemplated by, the Agreement,
except for any such liability for losses, claims, damages or liabilities
incurred by us that are finally judicially determined to have resulted from bad
faith or gross negligence of such Indemnified Person.
We will not, without your prior written consent, settle, compromise,
consent to the entry of judgment in or otherwise seek to terminate any action,
claims, suit or proceeding in respect of which indemnification may be sought
hereunder (whether or not any Indemnified Person is a party thereto) unless such
settlement, compromise, consent or termination includes a release of each
Indemnified Person from any liabilities arising out of such action, claim, suit
or proceeding. No Indemnified Person seeking indemnification, reimbursement or
contribution under this letter will, without our prior written consent, settle,
compromise, consent to the entry of judgment in or otherwise seek to terminate
any action, claim, suit, investigation or proceeding referred to in the
preceding paragraph.
If the indemnification provided for in the first paragraph of this letter
is judicially determined to be unavailable (other than in accordance with the
terms hereof) to an Indemnified Person, in respect of any losses, claims,
damages, or liabilities referred to herein, then, in lieu of indemnifying such
Indemnified Person hereunder, we shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages
or liabilities (and expenses relating thereto) (i) in such proportion as is
appropriate to reflect the relative benefits to you, on the one hand, and us, on
the other hand, of the Acquisition (whether or not the Acquisition is
consummated) or (ii) if (but only if) the allocation provided by clause (i)
above is not available, in such proportion as is appropriate to reflect not only
the relative benefits referred to in such clause (i) but also the relative fault
of each of you and us, as well as any other relevant equitable considerations,
provided however, in no event shall your aggregate contribution to the amount
paid or payable exceed the aggregate amount of fees actually received by you
under the Agreement. For purposes of this letter, in connection with the
Acquisition or any merger, consolidation or similar business combination
involving CBD Media LLC or its subsidiaries, the relative benefits to us and you
of the Acquisition or such transaction shall be deemed to be in the same
proportion as (a) the total value paid or contemplated to be paid or received or
contemplated to be received or paid by us or our stockholders, as the case may
be, in the Acquisition or such transaction, whether or not the Acquisition or
such transaction is consummated, bears to (b) the fees paid or to be paid to you
under the Agreement with respect to the Acquisition or such transaction.
The indemnification contained herein in no way limits any other
indemnification to which ACI or its affiliates are entitled pursuant to any
other agreement.
The provisions of this letter shall apply to the engagement of ACI and any
modifications thereof and shall remain in full force and effect regardless of
any termination or the completion of your services under the Agreement.
This letter shall be governed by and construed in accordance with the laws
of the State of New York applicable to contracts executed and to be performed in
that state.
Very truly yours,
CBD Media LLC
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Its: President
Accepted:
Applegate & Xxxxxxxx, Inc.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxx
Its: President
