EXHIBIT 10.3
EXECUTION COPY
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AMENDED AND RESTATED ADVISORY AGREEMENT
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This Amended and Restated Advisory Agreement (this "Agreement") is
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made and entered into as of October 2, 1996, by and between Xxxxxx-Xxxxxx
Corporation, a Delaware corporation (the "Company"), and Xxxx Capital, Inc., a
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Delaware corporation ("Bain"). This Agreement amends, restates and replaces
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that certain Advisory Agreement dated as of June 28, 1995, by and between the
Company and Bain.
WHEREAS, the Company desires to retain Bain and Bain desires to
perform for the Company and its subsidiaries and parent certain services;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties agree as follows:
1. Term. This Agreement shall be in effect for an initial term
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commencing on the date hereof and ending on January 31, 2004 (the "Term"), and
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shall be automatically extended thereafter on a year to year basis unless the
Company or Bain provides written notice of its desire to terminate this
Agreement to the other party 90 days prior to the expiration of the Term or any
extension thereof.
2. Services. Bain shall perform or cause to be performed such
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services for the Company and its subsidiaries and parent as directed by the
Company's board of directors, which may include, without limitation, the
following:
(a) general executive and management services;
(b) identification, support, negotiation and analysis of acquisitions
and dispositions by the Company or its subsidiaries or parent;
(c) support, negotiation and analysis of financing alternatives,
including, without limitation, in connection with acquisitions, capital
expenditures and refinancing of existing indebtedness;
(d) finance functions, including assistance in the preparation of
financial projections, and monitoring of compliance with financing agreements;
(e) marketing functions, including monitoring of marketing plans and
strategies;
(f) human resource functions, including searching and hiring of
executives; and
(g) other services for the Company and its subsidiaries and parent
upon which the Company's board of directors and Bain agree.
3. Advisory Fee. Payment for services rendered by Bain and/or its
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affiliates incurred in connection with the performance of services pursuant to
this Agreement shall not exceed $500,000 per fiscal quarter to Bain and/or its
affiliates plus reasonable out-of-pocket expenses of Bain and/or its affiliates,
payable by the Company to Bain or its designees on a quarterly basis in arrears
commencing as of the date hereof, so long as Bain and/or its affiliates (or
its/their permitted assignee) is providing services as requested by the
Company's board of directors and such payment is not prohibited by that certain
Credit Agreement dated as of the date hereof (the "Credit Agreement"), among the
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Company, Xxxxxx-Xxxxxx Holding, Inc., Bankers Trust Company, as Agent, and the
other lenders party thereto.
4. Transaction Fees.
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(a) The Company hereby agrees to pay to Bain or its designees on the
closing date of the Credit Agreement a fee for services rendered in
connection with the structuring of the Credit Agreement and certain other
management services. Such fees shall be payable by wire transfer in an
amount not to exceed $3,000,000 to Bain or its designees plus reasonable
out-of-pocket expenses.
(b) In addition, during the term of this Agreement, the Company shall
pay to Bain or its designees a transaction fee in connection with the
consummation of each acquisition, divestiture or financing by the Company
or its subsidiaries or parent in an amount equal to 1% of the aggregate
value of such transaction.
5. Personnel. Bain shall provide and devote to the performance of
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this Agreement such partners, employees and agents of Bain as Bain shall xxxx
appropriate to the furnishing of the services required.
6. Liability. Neither Bain nor any of its affiliates, partners,
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employees or agents shall be liable to the Company or its subsidiaries or
affiliates for any loss, liability, damage or expense arising out of or in
connection with the performance of services contemplated by this Agreement,
unless such loss, liability, damage or expense shall be proven to result
directly from gross negligence, willful misconduct or bad faith on the part of
Bain, its affiliates, partners, employees or agents acting within the scope of
their employment or authority.
7. Indemnity. The Company and its subsidiaries and parent shall
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defend, indemnify and hold harmless each of Bain, its affiliates, partners,
employees and agents from and against any and all loss, liability, damage or
expenses arising from any claim by any person with respect to, or in any way
related to, the performance of services contemplated by this Agreement
(including attorneys' fees) (collectively, "Claims") resulting from any act or
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omission of Bain, its affiliates, partners, employees or agents, other than for
Claims which shall be proven to be the direct result of gross negligence, bad
faith or willful misconduct by Bain, its affiliates, partners, employees or
agents. The Company and its subsidiaries and parent shall defend at its own
cost and expense any and all suits or actions (just or unjust) which may be
brought against the Company, its subsidiaries and parent and Bain, its officers,
directors, affiliates, partners, employees or agents or in which Bain, its
affiliates, partners, employees or agents may be impleaded with others upon any
Claims, or upon
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any matter, directly or indirectly, related to or arising out of this Agreement
or the performance hereof by Bain, its affiliates, partners, employees or
agents, except that if such damage shall be proven to be the direct result of
gross negligence, bad faith or willful misconduct by Bain, its affiliates,
partners, employees or agents, then Bain shall reimburse the Company and its
subsidiaries and parent for the costs of defense and other costs incurred by the
Company and its subsidiaries and parent.
8. Notices. All notices hereunder shall be in writing and shall be
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delivered personally or mailed by United States mail, postage prepaid, addressed
to the parties as follows:
To the Company:
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Xxxxxx-Xxxxxx Corporation
000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxx 00000
Attention: President
To Bain:
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Xxxx Capital, Inc.
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Xxxx Xxxxxx
9. Assignment. Neither party may assign any obligations hereunder
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to any other party without the prior written consent of the other party (which
consent shall not be unreasonably withheld); provided that Bain may, without
consent of the Company, assign its rights and obligations under this Agreement
to any of its affiliates (but only if such affiliate is a person or entity
(excluding any Bain portfolio companies) controlled by Bain, or in the case of
an affiliate which is a partnership, Bain is the ultimate general partner of
such partnership). The assignor shall remain liable for the performance of any
assignee.
10. Successors. This Agreement and all the obligations and benefits
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hereunder shall inure to the successors and assigns of the parties.
11. Counterparts. This Agreement may be executed and delivered by
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each party hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.
12. Entire Agreement; Modification; Governing Law. The terms and
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conditions hereof constitute the entire agreement between the parties hereto
with respect to the subject matter of this Agreement and supersede all previous
communications, either oral or written, representations or warranties of any
kind whatsoever, except as expressly set forth herein. No modifications of this
Agreement nor waiver of the terms or conditions thereof shall be binding upon
either party unless
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approved in writing by an authorized representative of such party. All issues
concerning this agreement shall be governed by and construed in accordance with
the laws of the State of Illinois, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of Illinois or any other
jurisdiction) that would cause the application of the law of any jurisdiction
other than the State of Illinois.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
XXXXXX-XXXXXX CORPORATION
By: Xxxx Xxxxxx
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Its: V.P.
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XXXX CAPITAL, INC.
By: Xxxx Xxxxxx
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Its: Managing Director
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