1
EXHIBIT 10.7
THIS AGREEMENT IS SUBJECT TO THE TERMS OF (i) THAT CERTAIN SUBORDINATION
AGREEMENT, DATED AS OF EVEN DATE HEREWITH, BY AND AMONG THE HOLDERS OF JUNIOR
CLAIMS, NATIONSBANK OF TEXAS, N.A., AS A HOLDER OF A SENIOR CLAIM, FIRST
INTERSTATE BANK OF TEXAS, N.A., AS A HOLDER OF A SENIOR CLAIM, AND FIRST
INTERSTATE BANK OF TEXAS, N.A., AS AGENT FOR THE HOLDER OF THE SENIOR CLAIMS,
(ii) THAT CERTAIN SELLER/BANC ONE SUBORDINATION AGREEMENT, DATED AS OF EVEN
DATE HEREWITH, BY AND AMONG THE HOLDERS OF JUNIOR CLAIMS AND BANC ONE CAPITAL
PARTNERS II, LIMITED PARTNERSHIP, AS A HOLDER OF SENIOR SUBORDINATE CLAIMS, AND
(iii) THAT CERTAIN INTERCREDITOR AGREEMENT, DATED AS OF EVEN DATE HEREWITH BY
AND AMONG XXX XXXXX ENTERPRISES, SUMMIT CAPITAL INC. AND THE XXXXX-XXXXX CORP.
INCENTIVE COMPENSATION TRUST.
MANAGEMENT AGREEMENT
This Management Agreement (this ``Agreement'') is made and entered into
as of October 12, 1994, by and between Xxxxx-Xxxxx Corp., a Delaware
corporation (the ``Company''), and Summit Capital, Inc., a Texas corporation
(``Summit'').
RECITALS
Summit is experienced in providing management services and in providing
strategic planning and financial services to business enterprises including
companies engaged in the communication tower business.
The Company wishes to engage Summit in connection with the Company's
efforts to acquire, own, operate and maintain communication towers and tower
companies from time to time.
NOW, THEREFORE, for and in consideration of the mutual benefits to be
derived herefrom, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Summit agree as
follows:
1. MANAGEMENT SERVICES. For the term hereof, the Company hereby
engages Summit to (a) assist the Company in identifying potential investment
opportunities in or relating to the communication tower business including the
acquisition of towers and tower businesses, (b) advise and assist the Company
in evaluating, structuring, negotiating, documenting and finalizing any such
investments made by the Company, (c) advise the Company on an ongoing basis in
connection with financial matters involving the Company's credit facilities,
(d) advise and assist the Company in connection with the liquidation, sale, or
exchange of any assets or properties, (e) assist the Company in evaluating the
day to day operations and strategic plans for the business, (f) advise the
Company with respect to the maintenance and repair of communication towers, (g)
assist the Company with respect to marketing and sales of communication
services and (h) assist the Company's management in making recommendations to
the Board of Directors of the Company with respect to any of the foregoing.
Summit shall devote such time and effort in providing such services as each
such party
2
deems reasonably necessary and appropriate in order to adequately assist and
advise the Company with respect to such matters.
2. INVESTMENT SERVICES. In addition to the management services
described in Section 1 above, the Company may engage Summit from time to time
to perform investment banking or similar services with respect to evaluating
the Company's capital structure and capital requirements, raising additional
capital and such other investment banking services as the Company and Summit
may agree upon.
3. MANAGEMENT FEE; INVESTMENT FEE. As compensation for the
management services rendered by Summit pursuant to Section 1 above, the Company
shall, with respect to each year during the term hereof, pay Summit an annual
management fee in the amount of $120,000 (escalating 5% per annum commencing
November 1, 1995 and on each November 1 thereafter), payable quarterly in
advance of first day of each calendar quarter for which such payment relates.
The first quarterly payment shall be due on October 12, 1994 and shall be pro
rated for the calendar quarter ending December 30, 1994. Subsequent quarterly
payments shall be due on each January 1, April 1, July 1 and October 1
commencing January 1, 1995. The final quarterly payment shall be pro rated if
necessary. In addition, if the Company engages Summit to render investment
banking or other services as described in Section 2, the Company shall pay
Summit such customary fees on such terms as the parties may agree upon.
4. RELEASE AND INDEMNIFICATION. To the fullest extent allowed by
applicable law, the Company, on behalf of itself and its successors and
assigns, hereby releases, acquits, and forever discharges Summit, its
affiliates and their respective officers, directors, employees, partners,
representatives and agents from all claims, demands or causes of action of any
character which the Company may have against such persons and entities in
connection with the services to be provided by Summit hereunder; provided,
however, such release shall not apply to actions in breach of this Agreement or
constituting willful malfeasance or gross negligence. To the fullest extent
permitted by applicable law, the Company shall indemnify, defend and hold
harmless Summit, its affiliates and their respective officers, directors,
employees, partners, representatives and agents from and against all losses,
costs, claims, liabilities, damages and expenses (including, without
limitation, costs of suit and attorneys' fees) they may incur in connection
with the performance by Summit of its obligations hereunder, and the Company
shall reimburse each such indemnified party for all reasonable expenses
(including reasonable fees and expenses of counsel) as they are incurred by
such indemnified party in connection with investigating, defending, or
preparing for any such action or claim. THE LOSSES, COSTS, CLAIMS, DAMAGES,
LIABILITIES AND EXPENSES FOR WHICH SUCH INDEMNIFIED PARTIES ARE INDEMNIFIED
HEREUNDER SHALL SPECIFICALLY INCLUDE THOSE WHICH RESULT FROM SUCH PARTY'S SOLE,
CONCURRENT ACTIVE OR PASSIVE NEGLIGENCE BUT NOT THOSE WHICH RESULT FROM SUCH
PARTY'S GROSS NEGLIGENCE OR WILLFUL MALFEASANCE. The provisions of this
Section 4 shall survive the termination of this Agreement.
5. NATURE OF RELATIONSHIP. The parties hereto do not hereby intend
to and do not hereby form a partnership and nothing in this Agreement shall be
construed to imply such intention; the parties intend that at all times that
Summit shall provide services to the Company as an independent contractor.
-2-
3
6. TERM AND TERMINATION. This Agreement shall commence as of the
date first written above and shall continue until and terminate on October 30,
1999.
7. MISCELLANEOUS. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCLUDING ANY CONFLICTS-OF-
LAW RULE OR PRINCIPLE WHICH WOULD MAKE THE LAWS OF ANY OTHER JURISDICTION
APPLICABLE HERETO. This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof, superseding all prior
negotiations, discussions, agreements and understandings, whether oral or
written, relating to the subject matter hereof. This Agreement may only be
amended in writing signed by all of the parties hereto, and any provision
hereof may be waived only in writing signed by the party to be charged. If any
one or more of the provisions contained in this Agreement shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement or any other document. This Agreement is personal to each of
the Company and Summit and may not be assigned or delegated by any of them
without the express written consent of the other parties. Subject to the
foregoing sentence, this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
8. NOTICES. All notices, requests, demands and other communications
provided for hereunder shall be in writing and shall be deemed to have been
duly given if hand-delivered or sent by first class registered or certified
mail (return receipt requested), postage prepaid or, to the extent receipt is
confirmed, telecopy, to the applicable party at the appropriate address set
forth below:
(a) If to the Company, to:
00000 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: President
(b) If to Summit, to:
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Each party shall have the right, upon giving 10 days' prior notice to the other
parties in the manner hereinabove provided, to change its address for notice
purposes. Notice given in any other fashion shall be deemed to be effective
when and if it is received.
-3-
4
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXX-XXXXX CORP.
By: /s/ XXXX X. XXXXXX
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
SUMMIT CAPITAL, INC.
By: /s/ XXXXXX XXXXX
----------------------------------
Name: Xxxxxx Xxxxx
Title:
-------------------------------
-4-
