EXHIBIT 10.40
SECOND AMENDMENT TO
MANAGEMENT SERVICES AGREEMENT
This SECOND AMENDMENT TO MANAGEMENT SERVICES AGREEMENT (this "Amendment"),
dated December 31, 1997, but effective as of January 1, 1998 (the "Effective
Date"), is by and between Cambridge Industries, Inc. (the "Company") and Xxxx
Capital, Inc. ("Bain").
WHEREAS, Bain is acting as an advisor to the Company pursuant to the terms
of that certain Management Services Agreement dated as of November 17, 1995
between the Company and Bain, as amended by that certain Amendment to Management
Services Agreement dated March 1, 1996 (collectively, the "Agreement").
WHEREAS, the Company and Bain wish to amend the Agreement.
NOW THEREFORE, in consideration of the agreements herein contained, the
parties hereto agree as follows:
1. Paragraph 3 of the Agreement is hereby amended to read in its entirety
as follows, effective as of the Effective Date:
3. Advisory Fees and Transaction Fees. (a) Payment to Bain for
services rendered in connection with the performance of services pursuant
to this Agreement shall be $950,000 per year ("Advisory Fees") plus
reasonable out-of-pocket expenses of Bain, payable by the Company on a
quarterly basis in arrears.
(b) During the term of this Agreement, Bain shall be entitled to
receive from the Company a transaction fee in connection with (i) the
consummation of each acquisition by the Company of an additional business,
and (ii) the completion of a recapitalization of the Company, in either
case in an amount equal to three quarters of one percent ( 3/4%) of the
aggregate transaction value (each such payment, a "Transaction Fee");
provided that, Bain may waive the payment of a Transaction Fee in
connection with any acquisition as to which Bain and the Board mutually
agree that a Transaction Fee is not appropriate. For purposes of this
Agreement, in the event of a recapitalization completed in connection with
the acquisition of an additional business, the transaction value shall be
the greater of the value of the acquisition or the amount of the
recapitalization.
2. Applicable Law. All issues and questions concerning the construction,
validity, interpretation and enforceability of this Amendment shall be governed
by, and construed in accordance with, the law provisions (whether of the State
of Michigan or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Michigan.
3. Counterparts; Effectiveness. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and
the same instrument. This Amendment shall become effective upon the execution
of a counterpart hereof by each of the parties hereto, and written or telephonic
notification of such execution and authorization of delivery thereof has been
received by each party hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
Management Services Agreement to be executed by their respective officers
hereunto duly authorized on December ___, 1997, but effective as of January 1,
1998.
CAMBRIDGE INDUSTRIES, INC.
By: _________________________
Name:
Title:
XXXX CAPITAL, INC.
By: __________________________
Its: _________________________
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