AMENDMENT NO. 1
TO
CONSULTING AGREEMENT
This Amendment No. 1 dated July 24, 2002 (this "Amendment"), to the
Consulting Agreement, dated as of March 2, 1999 (the "Consulting Agreement"), by
and between CANADIAN IMPERIAL BANK OF COMMERCE, a Charter bank under the laws of
Canada ("CIBC") and FINANCIAL SUPERMARKETS, INC., a Georgia corporation ("FSI").
Capitalized terms used herein without definition have the meanings ascribed to
such terms in the Consulting Agreement.
WHEREAS, pursuant to the Consulting Agreement, CIBC engaged FSI as the
exclusive consultant for CIBC and its subsidiaries and affiliates with respect
to the establishment, design, construction, operation and marketing of Banking
Centers in the United States; and
WHEREAS, CIBC has represented to FSI that CIBC Delaware Holdings Inc.
(including its successors, "CIBC Delaware"), a subsidiary of CIBC, and Safeway
Inc. (including its successors, "Safeway") have entered into an agreement (as
amended and modified from time to time, the "Safeway Agreement"), pursuant to
which CIBC Delaware agreed to establish and operate pavilions in stores operated
by Safeway, its affiliates and their respective franchisees in the United States
("Safeway Pavilions") under an agreed upon brand (currently Safeway SELECT
Bank); and
WHEREAS, CIBC has represented to FSI that it operates a total of
approximately 151 Safeway Pavilions as of the date of this Amendment , and that
Safeway Pavilions are located in the states of Arizona, California, Colorado,
Nevada, Oregon and Washington (the "Safeway Territory"); and
WHEREAS, CIBC and FSI desire to amend the Consulting Agreement to,
among other things, clarify the nature of FSI's exclusive consulting arrangement
with CIBC;
NOW, THEREFORE, in reliance upon the foregoing statements and
representations, and in consideration of the mutual agreements and other
consideration set forth herein, CIBC and FSI agree as follows:
A. Section 1 of the Consulting Agreement is hereby amended by adding
the following to the end of such Section:
"Notwithstanding any other provision of this Agreement, CIBC shall
not be obligated to engage FSI to provide any services, and FSI shall not be
obligated to provide any services, with respect to the following (referred to
collectively as the "Excluded Activities"): any arrangement regarding the
provision of financial products or services (whether through Safeway SELECT Bank
or otherwise) between Safeway, CIBC Delaware and/or their respective affiliates
within the Safeway Territory, including without limitation arrangements under
the Safeway Agreement; provided that Excluded Activities does not include
arrangements with
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respect to any store located within the Safeway Territory directly or indirectly
acquired by Safeway after July 24, 2002 through merger, acquisition or other
corporate transaction (but for clarity not including remodelled or newly built
stores located within the Safeway Territory) (i) if FSI has a consulting
relationship with such store on the date of the acquisition or (ii) if such
store is acquired in an acquisition of more than twenty-five (25) stores in one
state in the Safeway Territory and such store is in such state. For purposes of
the preceding sentence, "Safeway", "CIBC Delaware", "Safeway Territory" and
"Safeway Agreement" have the meanings set forth in the Amendment No. 1 to
Consulting Agreement dated July 24, 2002 among the parties."
B. The penultimate sentence of Section 6 of the Consulting Agreement is
deleted and the following is inserted in lieu thereof:
"In addition, for the term of this Agreement CIBC (directly or through
its affiliates) will pay FSI within 45 days of the end of each calendar quarter
an amount equal to .0001 times the average balance of deposits of the Program
Banks generated by or attributable to the Program Banks in the Geographic Area,
based on average daily deposit balances (both interest bearing and noninterest
bearing) for the preceding quarter ("Trailer Fees"). CIBC shall keep and shall
cause each Program Bank to keep true and accurate records to permit the timely
calculation and payment of Trailer Fees. Each payment of Trailer Fees shall be
accompanied by supporting schedules sufficiently detailed to show the
calculation of such Trailer Fees. From time to time during the term of this
Agreement and until one hundred eighty days after FSI is no longer entitled to
receive Trailer Fees under this Agreement, FSI may cause an audit to be made of
any Program Bank's books and records relating to the Trailer Fees due under this
Agreement; provided that FSI shall not have the right to conduct such an audit
more than once in any twelve (12) month period unless it reasonably believes
that CIBC has not complied with its obligation to pay Trailer Fees. CIBC shall
cooperate, and shall cause the Program Bank and their respective officers,
employees and agents to cooperate, in connection with such audit. Any such audit
shall be conducted during regular business hours at the Program Bank's principal
office (or at such other place or places where the relevant books and records
are maintained), with at least ten (10) business days prior written notice, and
shall be conducted in a manner so as not to interfere unreasonably with the
operations of the Program Bank. Any audit shall be conducted by a firm of
independent certified public accountants selected by FSI and reasonably
acceptable to CIBC or directly by employee(s) of FSI (such accountants or
employees being referred to as the "Auditor"). Prior to the audit, CIBC and the
Auditor shall enter into a non-disclosure agreement reasonably acceptable to
CIBC. FSI and CIBC each agrees to pay promptly to the other any overpayments or
underpayments found as a result of the audit; provided, however, that each shall
have the right to dispute in good faith any findings of the Auditor. The cost of
any such audit will be solely born by FSI, unless such audit discloses an
underpayment or amount due to FSI in excess of five percent (5%) of the total
amount due for the period audited, in which case CIBC shall pay the reasonable
costs of the audit.
C. Section 6 of the Consulting Agreement is hereby further amended by
adding the following to the end of such Section:
"Notwithstanding the foregoing or any other provision of this
Agreement, CIBC shall not have any obligation to pay any fees or other amounts
(including without limitation
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Trailer Fees, Monthly Retainer, Monthly Per Location Fee and Initial Per
Location Fee) with respect to the Excluded Activities."
D. Section 15 of the Consulting Agreement is hereby amended by
replacing the notice addresses for CIBC as follows:
"(a) To CIBC: Canadian Imperial Bank of Commerce
Commerce Court West, 51st floor
Toronto, ON M5L 1A2
Attention: Ram Xxxxxx
Facsimile: 000-000-0000
With copies to: CIBC World Markets
000 Xxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxxx
Facsimile: 000-000-0000
E. Upon execution and in consideration of this Amendment, CIBC shall
pay to FSI by check the amount of One Million United States Dollars
(US$1,000,000), which amount the parties acknowledge and agree represents
payment in full for all amounts due on or prior to the date hereof under the
Consulting Agreement with respect to the Safeway Pavilions and arrangements and
businesses established or operated pursuant to the Safeway Agreement.
(i) FSI, on behalf of itself and its affiliates, as well as its
and all their respective successors, partners, members, shareholders, officers,
directors, employees, agents, contractors, attorneys and other representatives,
hereby irrevocably and unconditionally releases, acquits and forever discharges
CIBC, its affiliates and their respective present and former officers,
directors, employees, agents, attorneys, contractors, other representatives,
shareholders and successors ("CIBC Released Parties"), from and against any and
all actions, causes of action (in law or equity, in tort, by contract or by
statute), charges, complaints, claims, suits, damages, demands, rights, costs,
debts, expenses and other obligations and liabilities of any nature whatsoever,
whether known or unknown, arising on or prior to the date hereof related to (i)
any fees or other amounts (including without limitation Trailer Fees, Monthly
Retainer, Monthly Per Location Fee and Initial Per Location Fee), (ii) any costs
or expenses incurred or (iii) any rights or obligations to provide services, in
each case to the extent related to the Safeway Pavilions or
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arrangements or businesses established or operated pursuant to the Safeway
Agreement and emanating from, arising out of, or in any way whatsoever related
to the Consulting Agreement (the "CIBC Released Obligations"). FSI agrees to
defend, indemnify and hold harmless the CIBC Released Parties against and in
respect of any and all actions, suits, proceedings, claims, demands, judgments,
liabilities, costs and expenses (including, without limitation, legal fees)
arising on or prior to the date hereof to the extent related to the CIBC
Released Obligations initiated by FSI, its affiliates or any of their respective
successors, shareholders, partners, members, subsidiaries, parents, partners,
members, officers, directors, employees, agents, contractors, attorneys or other
representatives or any person claiming by, through or under or any of them.
(ii) CIBC, on behalf of itself and its affiliates, as well as
its and all their respective successors, partners, members, shareholders,
officers, directors, employees, agents, contractors, attorneys and other
representatives, hereby irrevocably and unconditionally releases, acquits and
forever discharges FSI, its affiliates and their respective present and former
officers, directors, employees, agents, attorneys, contractors, other
representatives, shareholders and successors ("FSI Released Parties"), from and
against any and all actions, causes of action (in law or equity, in tort, by
contract or by statute), charges, complaints, claims, suits, damages, demands,
rights, costs, debts, expenses and other obligations and liabilities of any
nature whatsoever, whether known or unknown, arising on or prior to the date
hereof related to (i) any rights to receive services or (ii) any costs or
expenses incurred, in each case to the extent related to the Safeway Pavilions
or arrangements or businesses established or operated pursuant to the Safeway
Agreement and emanating from, arising out of, or in any way whatsoever related
to the Consulting Agreement (the "FSI Released Obligations"). CIBC agrees to
defend, indemnify and hold harmless the FSI Released Parties against and in
respect of any and all actions, suits, proceedings, claims, demands, judgments,
liabilities, costs and expenses (including, without limitation, legal fees)
arising on or prior to the date hereof to the extent related to the FSI Released
Obligations initiated by CIBC, its affiliates or any of their respective
successors, shareholders, partners, members, subsidiaries, parents, partners,
members, officers, directors, employees, agents, contractors, attorneys or other
representatives or any person claiming by, through or under or any of them.
F. Each party represents and warrants to the other party that each of
the following statements is true and correct as of the date hereof:
(i) Such party has all requisite corporate power and authority
to enter into this Amendment;
(ii) The execution and delivery by such party of this
Amendment and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action on the part of
such party; and
(iii) This Amendment has been duly executed and delivered by
such party and is a valid and binding obligation of such party, enforceable in
accordance with its terms except as such enforceability may be limited by (x)
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and (y) general principles of equity regardless of whether asserted in a
proceeding in equity or law.
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G. Except to the extent expressly provided herein, the provisions of
the Consulting Agreement remain in full force and effect in accordance with its
terms and this Amendment shall not be deemed to be a waiver, amendment or
modification of any other term or condition of the Consulting Agreement or a
waiver or release of or otherwise to affect any rights or remedies that any
party to the Consulting Agreement has or may have under or with respect to the
Consulting Agreement or any matters relating thereto, whether now existing or
hereafter accruing. This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument. If any provision of this Amendment is
deemed to be invalid or unenforceable, the rest of the Amendment shall survive
the invalidation of that term and shall continue in full force and effect. This
Amendment shall be governed by and construed in accordance with the laws of the
State of New York. The parties agree that the signature page to this Amendment
may be executed and delivered by facsimile transmission and that such execution
and delivery shall be deemed effective for all purposes hereunder.
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 as
of the date first above written.
CANADIAN IMPERIAL BANK OF COMMERCE
BY: /s/ Xxx Xxxxxxx
TITLE: Chief Retail Banking Officer
Amicus
Senior Vice President - CIBC
BY: /s/ Xxxxx Xxxxxxx
TITLE: CEO, Amicus
Senior Executrive Vice President
CIBC
FINANCIAL SUPERMARKETS, INC.
BY: /s/ J. Xxxxx Xxxxxxx
TITLE: President
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