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EXHIBIT 10.33
AGREEMENT FOR MANAGEMENT ADVISORY SERVICES
THIS MANAGEMENT ADVISORY SERVICES AGREEMENT (this "Agreement")
is made as of February 10, 1999, between Aames Financial Corporation, a Delaware
corporation (the "Company"), and Equifin Capital Management, LLC, a Delaware
limited liability company ("Advisor").
WHEREAS, the Company and Advisor are entering into this
Agreement pursuant to that certain Preferred Stock Purchase Agreement, dated as
of December 23, 1998, between the Company and Capital Z Financial Services Fund
II, L.P.; and
WHEREAS, the Company desires to retain the advisory services
of Advisor and Advisor is willing to render such services on the terms set forth
in this Agreement.
NOW, THEREFORE, in consideration of the promises and the
mutual covenants contained in this Agreement, the parties agree as follows:
1. Scope of Agreement
Unless and until this Agreement is amended and except as the
parties agree otherwise in writing, this Agreement sets forth the terms and
conditions applicable to the performance by Advisor during the Term (as defined
in Section 2 hereof) of the
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specific services for the Company related to the business of the Company, which
are set forth in Section 3 hereof.
2. Term
The term of this Agreement (the "Term") shall commence on the
date hereof and shall continue until the earlier of (i) five (5) years from the
date hereof and (ii) such date as is mutually agreed to by the parties hereto as
the termination date for the services to be provided hereunder. Notwithstanding
the foregoing, the Term may be terminated earlier in accordance with Section 8
hereof or may be extended by mutual consent of the parties.
3. Advisory Services
During the Term, Advisor shall provide advisory services to
Company as requested by the Company with respect to business performance
improvements, cost reduction programs and quality initiatives to be implemented
by the Company, as well as general advice relating to business decisions which
have been or may be contemplated by the Company (the "Advisory Services"). The
Advisory Services shall be provided by Advisor in such manner and at such places
as it reasonably deems to be appropriate. The Company shall provide to Advisor
such documentation and access to Company personnel as Advisor may deem
reasonably necessary to perform the Advisory Services that may be requested by
the Company hereunder. From time to time, the Company and the Advisor may enter
into mutually acceptable arrangements with
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regard to transactions outside the normal course of business, at compensation
levels to be mutually agreed upon.
4. Compensation and Expenses
(a) In consideration for the Advisory Services, the Company
shall pay to Advisor an advisory fee of $250,000 per calendar quarter (the
"Fee"). The Fee shall be paid to Advisor in advance on each January 15, April
15, July 15 and October 15 during the Term, provided that the initial Fee
payment shall be made on the date hereof, in recognition of services performed
prior to date hereof and for the balance of the calendar quarter ending March
31, 1999.
(b) The Company shall pay or reimburse Advisor for all
reasonable, documented out-of-pocket expenses incurred by Advisor in performing
Advisory Services (including, but not limited to, reasonable travel, hotel and
meal expenses incurred by Advisor's employees and representatives in connection
with the performance of Advisory Services and in accordance with the Advisor's
applicable travel and expense policies). Advisor may invoice the Company
periodically for all such expenses incurred, which invoice shall be accompanied
by reasonable documentation of all expenses then being invoiced, and the Company
shall pay Advisor the amount of such invoice within ten (10) days of the receipt
of such invoice.
(c) All payments made to Advisor under this Agreement shall be
in cash in the manner specified in writing by Advisor,
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and all such payments shall be made without deduction, set off, recoupment or
counterclaim.
5. Documentation
At the request of the Company, Advisor will submit a summary
of all services performed during the period covered by such request indicating
the date(s) of performance, the resources involved, and a summary description of
services rendered. Advisor may submit, on a monthly basis, a statement showing
all time spent performing Advisory Services during such month and, unless the
Company objects to such statement within 30 days after the delivery of same by
Advisor, such statement shall be conclusive as to the number of hours spent
performing such services.
6. Conflicts of Interest; Confidentiality.
(a) The Company acknowledges that Advisor (and its affiliates)
intend to provide services which are similar to the Advisory Services to other
persons or entities, some of which may be in competition with the Company. The
Company agrees that it will not assert that the provision of any such other
services constitutes a conflict of interest or breach of this Agreement or
otherwise gives rise to a claim against Advisor or any such affiliate.
(b) Advisor agrees to treat confidentially any non-public
information provided to it by the Company hereunder and not to disclose such
information to any other person (other than any of Advisor's employees,
representatives or affiliates who
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need to know such information for purposes of performing Advisory Services or
members of the Company's Board of Directors or representatives of Capital Z
Financial Services Fund II, L.P. or its general partner), except as may be
required by law or legal process.
7. Independent Contractor Status.
(a) Advisor will function under this Agreement solely as an
independent Advisory contractor performing work for the Company. This Agreement
does not constitute either party as an employee, partner, joint venturer, agent
or other representative of the other party for any purpose whatsoever. Neither
party has the right or authority to enter into any contract, warranty, guarantee
or other undertaking in the name of or for the account of the other party, or to
create an obligation or liability of any kind, express or implied, on behalf of
the other party, or to bind the other party in any manner whatsoever, or hold
itself out as having any right, power or authority to create any such obligation
or liability on behalf of the other or to bind the other party in any manner
whatsoever (except as to any actions taken by either party at the express
written request and direction of the other party).
(b) Advisor shall be solely responsible for the payment of any
Federal, state and local taxes applicable to the Advisory Fees and expenses paid
or payable by the Company in connection with the Advisory Services.
8. Termination.
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In the event that (i) Advisor's professionals spend, in the
aggregate, less than 480 hours performing Advisory Services during any twelve
month period or (ii) Xxxx Xxxxxxx ceases to serve as a principal of Advisor,
then the Company may terminate this Agreement upon thirty (30) days' prior
written notice to Advisor. Upon such termination, the Company shall be liable
for payment of any Advisory Fees and expenses accrued prior to the date of such
termination. The provisions of Sections 4 (with respect to all Fees earned and
expenses incurred prior to the date of termination) and 6 through 12 hereof,
inclusive, shall survive any termination of this Agreement. 9. Indemnification.
The Company shall indemnify and hold harmless Advisor and any
of its officers, partners, members, shareholders, directors, employees and
affiliates (direct or indirect) (each, an "Indemnified Person") from and against
all actions, suits, proceedings (including any investigations or inquiries),
claims, losses, damages, liabilities or expenses or any kind or nature
whatsoever ("Claims") which may be incurred by or asserted against or involve
Advisor or any other Indemnified Person as a result of any third party claim
arising out of the Advisory Services (including, without limitation, any
Advisory Services rendered prior to the date hereof) or the engagement of
Advisor hereunder and, upon demand by Advisor or any other Indemnified Person,
pay or reimburse any of Advisor or such other Indemnified Person for any
reasonable out-of-pocket legal or other expenses, and other costs incurred by
Advisor or such Indemnified Person in
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connection with the investigation, defending or preparing to defend any such
Claim, provided that the foregoing indemnity shall not apply to the extent any
Claim is finally determined by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of Advisor.
The Company shall assume the defense of any Claim and shall
employ counsel reasonably satisfactory to the Advisor. Any Indemnified Person
shall have the right to employ separate counsel with respect to any such Claim
and participate in the defense thereof at the expense of the Company if (i) the
Company has failed promptly to assume the defense and employ counsel or (ii) the
named parties to such action (including any impleaded parties) include any
Indemnified Person and the Company or any of its affiliates, and such
Indemnified Person shall have been advised by counsel that there may be one or
more legal defenses available which are different from or in addition to those
available to the Company or any of its affiliates, in which case the Indemnified
Person shall have the right to assume the defense thereof at the expense of the
Company; provided, that, the Company shall not be responsible for the fees and
expenses of more than one firm of separate counsel for all Indemnified Persons
in connection with any such action in the same jurisdiction, in addition to any
local counsel.
10. Notices.
All notices, requests, consents and other communications shall
be deemed given upon receipt and shall be in
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writing and shall be delivered in person or mailed by certified mail, return
receipt requested, or sent by facsimile transmission, and, if to the Company,
shall be addressed as follows:
Aames Financial Corporation
2 California Plaza
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
and if to Advisor, shall be addressed as follows:
Equifin Capital Finance Management, LLC
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxxx Xxxxxxx
Telecopy: 000-000-0000
11. Assignment.
Neither party may assign this Agreement without the consent of
the other party in writing.
12. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to conflicts of law principles thereof.
(b) Entire Agreement. This Agreement constitutes the sole and
entire agreement of the parties with respect to the subject matter hereof and
supersedes and is in full substitution for any and all prior agreements and
understandings between them relating to such subject matter.
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(c) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(d) Amendments. This Agreement may not be amended or modified,
and no provisions hereof may be waived, without the written consent of the
Company and Advisor.
(e) Severability. If any provision of this Agreement shall be
declared void or unenforceable by any judicial or administrative authority, the
validity of any other provision and of the entire Agreement shall not be
affected thereby.
(f) Titles and Subtitles. The titles and subtitles used in
this Agreement are for convenience only and are not to be considered in
construing or interpreting any term or provision of this Agreement.
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AAMES FINANCIAL CORPORATION EQUIFIN CAPITAL MANAGEMENT, LLC
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxxxx
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Name: Name: Xxxx X. Xxxxxxx
Title: Title: CEO
Date Date 2/8/99
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