Exhibit 10.18
MANAGEMENT AGREEMENT
MANAGEMENT AGREEMENT, dated as of May 17, 2002 (this "Agreement"), by and
among Lightyear Capital, LLC, a Delaware limited liability company (the
"Consultant"), CFSL Holdings Corp., a Delaware corporation ("Holdings"), CFSL
Acquisition Corp., a Delaware corporation ("Acquisition") and Collegiate Funding
Services, L.L.C., a Virginia limited liability company ("CFS LLC").
W I T N E S S E T H:
WHEREAS, the Consultant has and its affiliates have staff members
specially skilled in corporate finance, strategic corporate planning and other
management skills and services; and
WHEREAS, as of the date hereof, the Consultant, through two newly-formed
corporations, Holdings and Acquisition, has completed its purchase of CFS LLC
pursuant to the Purchase Agreement, dated April 15, 2002, by and among
Acquisition, CFS LLC, and the Sellers party thereto (the "Purchase"); and
WHEREAS, CFS LLC, Holdings and Acquisition (together, "CFS") will require
the Consultant's special skills and management advisory services in connection
with CFS's general business operations; and
WHEREAS, the Consultant is willing to provide such skills and services to
CFS.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties hereto, intending to be legally bound, do hereby agree as follows:
1. Engagement. CFS hereby engages the Consultant for the Term (as
hereinafter defined) and upon the terms and conditions herein set forth to
provide management consulting and advisory services to CFS, as requested by CFS.
These services will be provided in connection with financial and strategic
corporate planning and such other management services as the Consultant and CFS
shall mutually agree. In consideration of the remuneration herein specified, the
Consultant accepts such engagement and agrees to perform the services specified
herein. Consultant makes no representations or warranties, express or implied,
in respect of the services to be provided by it hereunder.
2. Term. This Agreement shall commence on the date hereof and, unless
otherwise extended pursuant to the next sentence, shall terminate on the tenth
anniversary of the date hereof (the "Term"). Upon the tenth anniversary of the
date hereof, and at the end of each year thereafter (each of such tenth
anniversary and the end of each year thereafter being a "Year End"), the Term
shall automatically be extended for an additional year unless notice to the
contrary is given by either party at least 60, but no more than 90, days prior
to such Year End, as applicable.
3. Services to be Performed.
3.1. The Consultant shall devote reasonable time and efforts to the
performance of the consulting and management advisory services
contemplated by this Agreement. However, no precise number of hours is
required hereunder to be devoted by the Consultant on a weekly or monthly
basis. The Consultant may perform services under this Agreement directly,
through its employees or agents, or with such outside consultants as the
Consultant may engage for such purpose.
3.2. This Agreement shall in no way prohibit Consultant or any of
its members or affiliates or any director, officer, partner or employee of
Consultant or any of its members or affiliates from engaging in other
activities, whether or not competitive with any business of CFS or any of
its respective subsidiaries or affiliates.
4. Compensation; Expense Reimbursement.
4.1. In connection with the closing of the Purchase, CFS shall pay
or cause to be paid to the Consultant (and/or to such of the Consultant's
affiliates as the Consultant may direct) an aggregate closing fee of $2.75
million on the date hereof.
4.2. In consideration of the management advisory services hereunder,
the Consultant shall be paid an annual fee (hereinafter, the "Management
Fee") equal to $1.0 million, which Management Fee shall be paid to the
Consultant by CFS in equal monthly installments each year, to be paid
monthly in arrears.
4.3. Promptly upon presentation of reasonable documentation, CFS
shall reimburse the Consultant for all reasonable out-of-pocket expenses
incurred in connection with the management advisory services to be
provided by the Consultant hereunder, including, without limitation, legal
fees and expenses, reasonable travel, lodging and similar out-of-pocket
costs reasonably incurred by it in connection with or on account of its
performance of services for CFS hereunder.
4.4. Holdings, Acquisition and CFS LLC shall be jointly and
severally liable for all payments to Consultant hereunder.
4.5. The Consultant acknowledges that the payment provisions of this
Agreement are subject to the terms of Section 5.4 of the Securities
Purchase Agreement, dated April [11], 2002, among CFS LLC, Holdings,
Acquisition, the purchasers party thereto and TCW/Crescent Mezzanine
Management III, L.L.C., as collateral agent for such purchasers.
5. Indemnification. In addition to its agreements and obligations under
this Agreement, Acquisition, Holdings and CFS LLC jointly and severally agree to
indemnify and hold harmless the Consultant and its affiliates (including their
respective officers, directors, stockholders, partners, members, employees and
agents) from and against any and all claims, liabilities, losses and damages (or
actions in respect thereof), in any way related to or arising out of the
performance by the Consultant of services under this Agreement, and to reimburse
the Consultant and any other such indemnified person for reasonable
out-of-pocket legal and other expenses incurred by it in connection with or
relating to investigating, preparing to defend, or
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defending any actions, claims or other proceedings (including any investigation
or inquiry) arising in any manner out of or in connection with the Consultant's
performance under this Agreement (whether or not such indemnified person is a
named party in such proceeding); provided, however, that Acquisition, Holdings
and CFS LLC shall not be responsible under this Section 5 for any claims,
liabilities, losses, damages or expenses to the extent that they are finally
judicially determined to result primarily from Consultant's (or such other
indemnified person's) willful misconduct.
6. Notice. All notices hereunder, to be effective, shall be in writing and
shall be mailed by certified mail, postage prepaid as follows:
(a) If to the Consultant:
Lightyear Capital, LLC
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000.0000
with copies to:
Xxxxxxxx & Xxxxxxxx LLP
1290 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to Holdings or Acquisition:
CFS Holdings Corp.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
(c) If to CFS LLC:
Collegiate Funding Services, L.L.C.
000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxxxxx, Xxxxxxxx 00000
Attention: J. Xxxxx Xxxxxx
Facsimile: (000) 000-0000
7. Modifications. This Agreement constitutes the entire agreement between
the parties hereto with regard to the subject matter hereof, superseding all
prior understandings and agreements, whether written or oral. This Agreement may
not be amended or revised except by a writing signed by the parties.
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8. Severability. If any provision of this Agreement (or any portion
thereof) or the application of any such provision (or any portion thereof) to
any person or circumstance shall be held invalid, illegal or unenforceable in
any respect by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision hereof (or the remaining
portion thereof) or the application of such provision to any other persons or
circumstances.
9. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and assigns but
may not be assigned by either party without the prior written consent of the
other. Notwithstanding the foregoing, the Consultant may elect to have its
obligations hereunder performed in whole or in part by a partnership or other
entity that is an affiliate of the Consultant, and the Consultant may direct
that any compensation (including all or a portion of the Management Fee) and
reimbursement of expenses be paid to the affiliate performing the services
hereunder with respect thereto.
10. Interpretations; Certain Definitions.
10.1. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
10.2. For all purposes hereof:
"affiliate" of any person means another person that directly or
indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with, such first person.
"including" means including, without limitation.
"person" means any individual, firm, corporation, partnership,
limited liability company, trust, joint venture, government entity or
other entity.
"subsidiary" of any person means another person, an amount of the
voting securities or other voting ownership or voting partnership
interests of which is sufficient to elect at least a majority of its board
of directors or other governing body (or, if there are no such voting
interests, 50% or more of the equity interests of which) is owned directly
or indirectly by such first person.
11. Captions. Captions have been inserted solely for the convenience of
reference and in no way define, limit or describe the scope or substance of any
provision and shall not affect the validity of any other provision.
12. Governing Law. This Agreement shall be construed and enforced in
accordance with, and the validity and performance hereof shall be governed by
the laws of the State of New York, without reference to principles of conflict
of laws thereof (other than Section 5-1401 and Section 5-1402 of the General
Obligations Law of the State of New York).
13. Consent to Jurisdiction. Each of the parties hereto irrevocably
submits to the jurisdiction of the United States District Court for the Southern
District of New York, for the
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purposes of any suit, action or other proceeding arising out of this Agreement
or any transaction contemplated hereby. Each of the parties hereto further
agrees that service of any process, summons, notice or document by U.S.
registered mail to such party's respective address set forth above shall be
effective service of process for any action, suit or proceeding in the United
States District Court for the Southern District of New York with respect to any
matters to which it has submitted to jurisdiction in this Section 13. Each of
the parties hereto irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby in the United States District Court for
the Southern District of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
14. Counterparts. This Agreement may be signed in two counterparts, each
of which shall be deemed an original but which together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
CFSL HOLDINGS CORP. LIGHTYEAR CAPITAL L.L.C.
By:/s/ Xxxxx Xxxxx By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx Name: Xxxxx Xxxxx
Title: President and CEO Title: Managing Director and Chief
Administrative Officer
COLLEGIATE FUNDING SERVICES, L.L.C. CFSL ACQUISITION CORP.
By: /s/ Xxxxx Xxxxxxxxxx By: /s/ Xxxxx Xxxxx
--------------------- ----------------
Name: Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxx
Title: CFO Title: President and CEO
