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EXHIBIT 10(c)
CONSULTING AGREEMENT
This CONSULTING AGREEMENT, dated as of May 6, 1997 (the "Agreement"),
is entered by and between GST Acquisition Corp., Inc., a Delaware corporation
(the "Company"), and Greenwich Street Capital Partners, Inc., a Delaware
corporation ("Greenwich").
W I T N E S S E T H:
WHEREAS, the Company and its direct and indirect subsidiaries, whether
now existing or hereafter created or acquired, collectively referred to herein
as (the "Company Group") desire to receive financial and managerial advisory
services from Greenwich, and Greenwich desires to provide such services to the
Company Group; and
NOW, THEREFORE, in consideration of the premises and the respective
agreements hereinafter set forth and the mutual benefits to be derived herefrom,
the parties hereto hereby agree as follows:
1. Engagement. Each member of the Company Group, jointly and severally,
hereby engage Greenwich as a consultant, and Greenwich hereby agrees to provide
financial and managerial advisory services to the Company Group, all on the
terms and subject to the conditions set forth below.
2. Services. (a) Greenwich hereby agrees during the term of this
Agreement to assist, advise and consult with the respective Boards of Directors
and management of each member of the Company Group and their subsidiaries in
such manner and on such business, management and financial matters, and provide
such other financial and managerial advisory services, as may be reasonably
requested from time to time by the respective Boards of Directors of the members
of the Company Group, including but not limited to assistance in:
(i) the raising of additional debt and equity capital from time to time for
the Company Group;
(ii) establishing and maintaining banking, consulting, advising and other
business relationships for the Company Group;
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(iii) developing and implementing corporate and business strategy and
planning for the Company Group, including plans and programs for
improving operating, marketing and financial performance, budgeting of
future corporate investments, acquisition and divestiture strategies,
and reorganizational programs;
(iv) providing individuals to serve as directors or officers of the Company
Group; and
(v) providing such other consulting and advisory services as the Company
Group may reasonable request.
(b) Each member of the Company Group will furnish Greenwich with such
information as Greenwich believes appropriate to its engagement hereunder (all
such information so furnished being referred to herein as the "Information").
Each member of the Company Group recognizes and confirms that (i) Greenwich will
use and rely primarily on the Information and on information available from
generally recognized public sources in performing the services to be performed
hereunder and (ii) Greenwich does not assume responsibility for the accuracy or
completeness of the Information and such other information.
3. Fee. In consideration of providing the foregoing services, the
Company will pay to Greenwich an annual advisory fee of $1,714,814 payable
semi-annually in advance (the "Fee"). If Greenwich or any of its affiliates or
designees invests additional equity in the Company Group or any of its
affiliates on one or more occasions after the date hereof, then, in each such
case, the Company Group and Greenwich will negotiate in good faith to effect a
mutually acceptable increase to such advisory fee.
4. Payment of Expenses. The Company Group will also reimburse Greenwich
promptly for Greenwich's reasonable out-of-pocket costs and expenses incurred by
Greenwich or its employees, agents or advisors in connection with the
performance of Greenwich's duties hereunder including but not limited to any
fees and expenses (a) of any reasonable legal, accounting or other professional
advisors to Greenwich engaged in connection with the services being provided
hereunder or (b) associated with the maintenance or operation of Greenwich II
LLC, a Delaware limited liability company (collectively, "Expenses").
5. Term, etc. (a) This Agreement shall be in effect until, and shall
terminate upon, the earlier to occur of (i) the tenth anniversary of the date
hereof and (ii) the date on which Greenwich Street Capital Partners, L.P.
directly or indirectly no longer
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owns any shares of the capital stock of the Company, and may be earlier
terminated by Greenwich, in its sole discretion, upon 15 days' prior written
notice to the Company.
(b) Upon any consolidation or merger, or any conveyance, transfer or
lease of all or substantially all of the assets of any of the members of the
Company Group, the successor corporation (or other entity) formed by such
consolidation or into which such company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, such company
under this Agreement with the same effect as if such successor corporation had
been a party thereto. No such consolidation, merger or conveyance, transfer or
lease of all or substantially all of the assets of any of the Company Group
shall have the effect of terminating this Agreement or of releasing such company
or any such successor corporation from its obligations hereunder.
(c) Upon any termination of this Agreement, any accrued and unpaid
installment of the Fee or portion thereof (pro-rated, with respect to the month
in which such termination occurs, for the portion of such month that precedes
such termination), and any unpaid and unreimbursed Expenses that shall have been
incurred prior to such termination (whether or not such Expenses shall then have
become payable), shall be immediately paid or reimbursed, as the case may be, by
the Company.
6. Indemnification. The obligations of the parties hereto are in
addition to, and shall in no way reduce or limit, the obligations thereof under
the Indemnification Agreement, dated as of May 6, 1997, between Greenwich and
the Company with respect to such agreement, which shall remain in full force and
effect.
7. Independent Contractor Status. The parties agree that Greenwich
shall perform services hereunder as an independent contractor, retaining control
over and re sponsibility for its own operations and personnel. Neither Greenwich
nor any of its employees or agents shall, solely by virtue of this Agreement or
the arrangements hereunder, be considered employees or agents of any other party
hereto or any member of the Company Group nor shall any of them have authority
to contract in the name of any such person, except as expressly agreed to in
writing by such person.
8. Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed, certified or registered mail with postage pre-paid, (c)
sent by next day or overnight mail or delivery or (d) sent by telecopy or
telegram, as follows:
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(i) If to the Company Group, to:
GST Acquisition Corp.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxxx X. Xxxxxx
or to such other person or address as the Company shall furnish to Greenwich in
writing; and
(ii) If to Greenwich, to:
Greenwich Street Capital Partners, Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
with a copy to:
Xxxxxx X. Xxxxxx, Esq.
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other person or address as Greenwich shall furnish to the Company in
writing.
All such notices, requests, demands, waivers and other communications
shall be deemed to have been received (w) if by personal delivery, on the day
after such delivery, (x) if by certified or registered mail, on the fifth
business day after the mailing thereof, (y) if by next-day or overnight mail
delivery, on the day delivered, or (z) if by telecopy or telegram, on the day on
which such telecopy or telegram was sent, provided that a copy is also sent by
certified or registered mail.
9. Entire Agreement. This Agreement and the Indemnification Agreement
contain the complete and entire understanding and agreement of each party hereto
with respect to the subject matter hereof and supersede all prior and contempor
aneous understandings, conditions and agreements, oral or written, express or
implied, in respect of the subject matter hereof.
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10. Headings. The headings contained in this Agreement are for purposes
of convenience only and shall not affect the meaning or interpretation of this
Agreement.
11. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
12. Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties to this Agreement and their respective
successors and assigns, provided that no party hereto may assign any of its
rights or obligations under this Agreement without the express written consent
of each other party hereto. By operation of merger, this Agreement shall be
binding upon and inure to the benefit of the surviving entity of a merger. This
Agreement is not intended to confer any right or remedy hereunder upon any
person other than the parties to this Agreement and their respective successors
and permitted assigns.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS,
INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAW OF THE STATE OF NEW
YORK, REGARDLESS OF THE LAW THAT MIGHT BE APPLIED UNDER PRINCIPLES OF CONFLICTS
OF LAWS.
14. Amendment; Waivers. No amendment, modification, supplement or
discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, supplement, discharge or waiver is
sought, and acknowledged by the other party. Any such waiver shall constitute a
waiver only with respect to the specific matter described in such writing and
shall in no way impair the rights of the party granting such waiver in any other
respect or at any other time. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies that any party may
otherwise have at law or in equity or otherwise.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
GST ACQUISITION CORP.
By:_____________________________________
Name: Xxxxxxxxx X. Vanden Beukel
Title: Vice President, Secretary
GREENWICH STREET CAPITAL PARTNERS,
INC.
By:_____________________________________
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
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