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EXHIBIT 10.8
AMENDED AND RESTATED THL MANAGEMENT AGREEMENT
This Management Agreement (this "Agreement") is entered into as of the
18th day of December, 1997 by and between Safelite Glass Corp., a Delaware
corporation (the "Company"), and Xxxxxx X. Xxx Company, a sole proprietorship
("THL"). All capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Merger Agreement (as defined below).
WHEREAS, this Agreement amends and restates that certain THL Management
Agreement by and between the Company and THL dated as of December 20, 1996 (the
"Prior Agreement"), subject to Section 4 herein;
WHEREAS, on the date hereof the Company has consummated certain
transactions (such transactions being referred to herein as the "Merger"),
pursuant to that certain Merger Agreement, dated as of October 10, 1997, by and
between Vistar, Inc., an Illinois corporation, and the Company (the "Merger
Agreement");
WHEREAS, THL is providing advisory and other services to the Company in
connection with the senior secured financing (the "Senior Financing") being
provided in connection with the Merger pursuant to a Credit Agreement dated on
the date hereof (the "Credit Agreement") among the Company, The Chase Manhattan
Bank and Bankers Trust Company, as agents, and the lending institutions from
time to time party thereto;
WHEREAS, THL has staff specifically skilled in corporate finance,
strategic corporate planning, and other management skills and services;
WHEREAS, the Company will require THL's special skills and management
advisory services in connection with its general business operations; and
WHEREAS, THL is willing to provide such skills and services to the
Company.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. SERVICES. THL hereby agrees that, during the term of this Agreement
(the "Term"), it will:
a. provide the Company with advice in connection with the
negotiation and consummation of agreements, contracts,
documents and instruments necessary to provide the Company
with financing from banks or other financial institutions or
other entities on terms and conditions satisfactory to the
Company; and
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b. provide the Company with financial, managerial and operational
advice in connection with its day-to-day operations,
including, without limitation:
i. advice with respect to the investment of funds; and
ii. advice with respect to the development and
implementation of strategies for improving the
operating, marketing and financial performance of the
Company.
2. PAYMENT OF FEES. The Company hereby agrees to: during the Term, pay to
THL (or its designee) a management fee in an amount equal to $1,000,000
per annum in exchange for the services provided to the Company by THL,
such fee being payable by the Company quarterly in advance, the first
such payment to be made at or after the closing of the Merger
(provided, however, that if during any fiscal quarter of the Company a
Default or Event of Default (as such terms are defined in the Credit
Agreement) exists, only one-half of such fee for such fiscal quarter
may be paid and the remaining one-half of such fee shall be paid at
such time as all Defaults and Events of Default (as defined in the
Credit Agreement) have been cured or waived).
Each payment made pursuant to this Section 2 shall be paid by wire
transfer of immediately available federal funds to the account(s)
specified by THL (or its designee).
3. TERM. This Agreement shall continue in full force and effect, unless
and until terminated by mutual consent of the parties, for so long as
THL (or any successor or permitted assign, as the case may be)
continues to carry on the business of providing services of the type
described in Section 1 above; provided, however, that (a) either party
may terminate this Agreement following a material breach of the terms
of this Agreement by the other party hereto and a failure to cure such
breach within 30 days following written notice thereof and (b) this
Agreement shall automatically terminate upon the sale in an initial
public offering registered under the Securities Act of 1933, as amended
(the "Securities Act"), of shares of the Company's common stock; and
provided further that each of (i) the obligations of the Company under
Section 5 below, (ii) any and all accrued and unpaid obligations of the
Company owed under Section 2 above and (iii) the provisions of Section
8 shall survive any termination of this Agreement to the maximum extent
permitted under applicable law.
4. EFFECT OF AGREEMENT. This Agreement replaces the Prior Agreement, and
the Prior Agreement is no longer of any force or effect, by agreement
of the parties hereto and thereto, as evidenced by the signature of
such parties below; provided, however, that the parties agree and
acknowledge that pursuant to the Prior Agreement the Company shall pay
to THL (or to its designees) the amounts as set forth on Exhibit A
attached hereto for the purposes set forth on Exhibit A and in the
manner as set forth in Section 2 hereof and shall remain obligated, as
set forth in Section 5.b. hereof, to the
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Indemnities (as defined in Section 5.b. hereof) with respect to the
Prior Agreement and the transactions consummated (such transactions
being referred to herein as the "Recapitalization") pursuant to the
Recapitalization Agreement and Plan of Merger and Stock Purchase
Agreement, dated as of the 8th day of November, 1996, by and among Xxxx
Xxxxxxx Holdings Corp., a Delaware corporation, the LS Selling
Stockholders (as defined therein), the Company, LSNWY Corp., a Delaware
corporation, Lite Acquisition Corp., a Delaware corporation, and L.S.
Acquisition Corp., a Delaware corporation.
5. EXPENSES; INDEMNIFICATION.
a. Expenses. The Company agrees to pay on demand all expenses
incurred by THL and its affiliates (or any of them) in
connection with this Agreement, the Merger and such other
transactions and all operations hereunder or otherwise
incurred in connection therewith, including but not limited to
(i) the fees and disbursements of: (A) Xxxxxxxx, Xxxxxxx &
Xxxxxxx A Professional Corporation, counsel to THL, (B) KPMG
Peat Marwick, accountant to THL, and (C) any other consultants
or advisors retained by THL or either of the parties
identified in clauses (A) and (B) arising in connection
therewith (including but not limited to the preparation,
negotiation and execution of this Agreement and any other
agreement executed in connection herewith or in connection
with the Merger, the Senior Financing or the consummation of
the other transactions contemplated hereby (and any and all
amendments, modifications, restructurings and waivers, and
exercises and preservations of rights and remedies hereunder
or thereunder) and the operations of the Company and any of
its subsidiaries), and (ii) any out-of-pocket expenses
incurred by THL in connection with the provision of services
hereunder or the attendance at any meeting of the board of
directors (or any committee thereof) of the Company or any of
its affiliates.
b. Indemnity and Liability. In consideration of the execution and
delivery of this Agreement by THL, the Company hereby agrees
to indemnify, exonerate and hold each of THL, and its
affiliates, and each of their respective partners,
shareholders, affiliates, directors, officers, fiduciaries,
employees and agents and each of the partners, shareholders,
affiliates, directors, officers, fiduciaries, employees and
agents of each of the foregoing (collectively, the
"Indemnitees") free and harmless from and against any and all
actions, causes of action, suits, losses, liabilities and
damages, and expenses in connection therewith, including
without limitation reasonable attorneys' fees and
disbursements (collectively, the "Indemnified Liabilities"),
incurred by the Indemnitees or any of them as a result of, or
arising out of, or relating to the Recapitalization, the
Merger, the execution, delivery, performance, enforcement or
existence of the Prior Agreement, this Agreement or the
transactions contemplated hereby or thereby, except for any
such Indemnified Liabilities arising on account of such
Indemnitee's gross negligence or willful misconduct, and if
and to the extent
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that the foregoing undertaking may be unenforceable for any
reason, the Company hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable
law. None of the Indemnitees shall be liable to the Company or
any of its affiliates for any act or omission suffered or
taken by such Indemnitee that does not constitute gross
negligence or willful gross negligence or misconduct.
6. ASSIGNMENT, ETC. Except as provided below, neither party shall have the
right to assign this Agreement. THL acknowledges that its services
under this Agreement are unique. Accordingly, any purported assignment
by THL shall be void. Notwithstanding the foregoing, THL may assign all
or part of its rights and obligations hereunder to any affiliate of THL
which provides services similar to those called for by this Agreement,
in which event THL shall be released of all of its rights and
obligations hereunder.
7. AMENDMENTS AND WAIVERS. No amendment or waiver of any term, provision
or condition of this Agreement shall be effective, unless in writing
and executed by each of THL and the Company. No waiver on any one
occasion shall extend to or effect or be construed as a waiver of any
right or remedy on any future occasion. No course of dealing of any
person nor any delay or omission in exercising any right or remedy
shall constitute an amendment of this Agreement or a waiver of any
right or remedy of any party hereto.
8. MISCELLANEOUS.
a. Choice of Law. This Agreement shall be governed by and
construed in accordance with the domestic substantive laws of
The Commonwealth of Massachusetts without giving effect to any
choice or conflict of law provision or rule that would cause
the application of the domestic substantive laws of any other
jurisdiction.
b. Consent to Jurisdiction. Each of the parties agrees that all
actions, suits or proceedings arising out of or based upon
this Agreement or the subject matter hereof shall be brought
and maintained exclusively in the federal and state courts of
The Commonwealth of Massachusetts. Each of the parties hereto
by execution hereof (i) hereby irrevocably submits to the
jurisdiction of the federal and state courts in The
Commonwealth of Massachusetts for the purpose of any action,
suit or proceeding arising out of or based upon this Agreement
or the subject matter hereof and (ii) hereby waives to the
extent not prohibited by applicable law, and agrees not to
assert, by way of motion, as a defense or otherwise, in any
such action, suit or proceeding, any claim that it is not
subject personally to the jurisdiction of the above-named
courts, that it is immune from extraterritorial injunctive
relief or other injunctive relief, that its property is exempt
or immune from attachment or execution that any such action,
suit or proceeding may not be brought or maintained in one of
the above-named courts,
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that any such action, suit or proceeding brought or maintained
in one of the above-named courts should be dismissed on
grounds of forum non conveniens, should be transferred to any
court other than one of the above-named courts, should be
stayed by virtue of the pendency of any other action, suit or
proceeding in any court other than one of the above-named
courts, or that this Agreement or the subject matter hereof
may not be enforced in or by any of the above-named courts.
Each of the parties hereto hereby consents to service of
process in any such suit, action or proceeding in any manner
permitted by the laws of The Commonwealth of Massachusetts,
agrees that service of process by registered or certified
mail, return receipt requested, at the address specified in or
pursuant to Section 10 is reasonably calculated to give actual
notice and waives and agrees not to assert by way of motion,
as a defense or otherwise, in any such action, suit or
proceeding any claim that service of process made in
accordance with Section 10 does not constitute good and
sufficient service of process. The provisions of this Section
8.b. shall not restrict the ability of any party to enforce in
any court any judgment obtained in a federal or state court of
The Commonwealth of Massachusetts.
c. Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY
APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES
HERETO HEREBY WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT
(WHETHER AS PLAINTIFF, DEFENDANT, OR OTHERWISE), ANY RIGHT TO
TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM,
DEMAND, CAUSE OF ACTION, ACTION, SUIT OR PROCEEDING ARISING
OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT HEREOF, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND
WHETHER IN CONTRACT OR TORT OR OTHERWISE. Each of the parties
hereto acknowledges that it has been informed by each other
party that the provisions of this Section 8.c. constitute a
material inducement upon which such party is relying and will
rely in entering into this Agreement and the transactions
contemplated hereby. Any of the parties hereto may file an
original counterpart or a copy of this Agreement with any
court as written evidence of the consent of each of the
parties hereto to the waiver of its right to trial by jury.
9. MERGER/ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof
and supersedes any prior communication or agreement with respect
thereto.
10. NOTICES. All notices, demands, and communications of any kind which any
party may require or desire to serve upon any other party under this
Agreement shall be in writing and shall be served upon such other party
and such other party's copied persons as specified below by personal
delivery to the address set forth for it below or to such other address
as such party shall have specified by notice to each other party or by
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mailing a copy thereof by certified or registered mail, or by Federal
Express or any other reputable overnight courier service, postage
prepaid, with return receipt requested, addressed to such party and
copied persons at such addresses. In the case of service by personal
delivery, it shall be deemed complete on the first business day after
the date of actual delivery to such address. In case of service by mail
or by overnight courier, it shall be deemed complete, whether or not
received, on the third day after the date of mailing as shown by the
registered or certified mail receipt or courier service receipt.
Notwithstanding the foregoing, notice to any party or copied person of
change of address shall be deemed complete only upon actual receipt by
an officer or agent of such party or copied person.
If to the Company, to it at:
Safelite Glass Corp.
0000 Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Secretary
If to THL, to it at:
Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxxxxxx
Xx. Xxxxxxx X. XxXxxx
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
A Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
11. SEVERABILILY. If in any judicial or arbitral proceedings a court or
arbitrator shall refuse to enforce any provision of this Agreement,
then such unenforceable provision shall be deemed eliminated from this
Agreement for the purpose of such proceedings to the extent necessary
to permit the remaining provisions to be enforced. To the full extent,
however, that the provisions of any applicable law may be waived, they
are hereby waived to the end that this Agreement be, deemed to be valid
and binding agreement enforceable in accordance with its terms, and in
the event that any provision hereof shall be found to be invalid or
unenforceable, such provision shall be construed by limiting it so as
to be valid and enforceable to the maximum extent consistent with and
possible under applicable law.
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12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by each of the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which together shall constitute one and the same
agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf as an instrument under seal as of the date first above
written by its officer or representative thereunto duly authorized.
THE COMPANY: SAFELITE GLASS CORP.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: President
THL: XXXXXX X. XXX COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
