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Exhibit 10.4
FINAL
CONSULTING MANAGEMENT AGREEMENT
THIS CONSULTING MANAGEMENT AGREEMENT (hereinafter referred to
as the "Agreement") made as of the 17th day of September, 1992, by and between
WLD ENTERPRISES, INC., a Florida corporation (hereinafter referred to as
"Manager") and WESCOURT GROUP, INC., a Delaware corporation (hereinafter
referred to as the "Company").
W I T N E S S E T H:
WHEREAS, the Company believes that it is in the best
interests of the Company to retain Manager to provide consulting services to
the Company and to advise on financial and operating matters on an ongoing
basis; and
WHEREAS, the Company and Manager desire to set forth the
terms and conditions pursuant to which Manager will be retained by the Company;
NOW, THEREFORE, in consideration of the mutual convenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. RETENTION; TERMS. The Company hereby offers to retain
Manager as a consultant and Manager hereby accepts such offer of retention as a
consultant, upon the terms and conditions hereinafter set forth, for a term
commencing on the date hereof and terminating five (5) years from such date;
provided, however, that Manager of the Company (by majority vote of the Board
of Directors of the Company) may terminate this Agreement at any time upon
ninety (90) days written notice. No other termination of this Agreement shall
be permitted, the parties specifically recognizing and agreeing that the only
circumstances in which this Agreement may be terminated prior to the end of its
five (5) year term are set forth in the immediately preceding sentence.
2. DUTIES AND AUTHORITY OF MANAGER.
(a) General Duties. Subject to the terms and conditions set
forth herein and
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the authority of the officers and directors of the Company to make decisions
for the Company, Manager shall, at the request of the Board of Directors of the
Company, provide consultation with respect to the operation and management of
the Company. The Company acknowledges and agrees that Manager shall have the
right to engage in other business activities; provided, however, that Manager
agrees not to engage in any other business activity which unreasonably and
substantially interferes with its ability to discharge its duties hereunder
during the term of this Agreement. Manager shall at all times during the term
of this Agreement use its best efforts to provide services hereunder so as to
maximize the profitability of the Company. Without limiting the generality of
the foregoing, Manager shall be available for consultation to the Company with
respect to the following matters:
(i) Employment of Personnel. Manager shall, at the
request of the Board of Directors of the Company, consult with
the Company in exercising due care in the selection and
supervision of Company personnel. Manager shall, at the request
of the Board of Directors of the Company, consult with the
Company in its negotiation of all necessary labor agreements
relating to employees employed by the Company. Additionally,
Manager shall, at the request of the Board of Directors of the
Company, consult with the Company with respect to the preparation
and filing of all necessary forms for disability insurance,
hospitalization and group life insurance, unemployment insurance,
withholding taxes and social security taxes and all other forms
required by any Federal, state, municipal or other governmental
authority or by any labor union agreement.
(ii) Agreements. Manager shall, at the request of the Board
of Directors of the Company, consult with the Company in the
negotiation and execution on behalf of and in the name of
the Company of such agreements as the Company deems necessary or
advisable for the furnishing of goods and services necessary for
the operation of the Company.
(iii) Collections and Disbursements; Operating Accounts.
Manager shall, at the request of the Board of Directors of the
Company, consult with the Company in the submission of bills to
the Company's customers,
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and shall consult in connection with the collection of all
revenues generated by or in connection with the Company.
(iv) Compliance with Law. Manager shall, at the request of
the Board of Directors of the Company, consult with the Company
in connection with any and all actions as may be necessary
to comply with any and all orders or requirements affecting the
Company of any Federal, state, county or municipal authority
having jurisdiction thereover.
(v) Records and Reports. Manager shall, at the request of
the Board of Directors of the Company, consult with the Company
regarding the maintenance of a comprehensive system of office
records, books and accounts which such records, books and
accounts shall be maintained at the principal offices of the
Company.
(vi) Legal Actions. Manager shall, at the request of the
Board of Directors of the Company, consult with the Company
regarding any and all legal actions or proceedings it deems
necessary or advisable to protect and maintain the Company as a
commercially profitable enterprise.
(vii) Insurance. Manager shall, at the request of the Board
of Directors of the Company, consult with the Company as to all
forms of insurance required by law or needed adequately to
protect the Company and its properties, whether owned or leased
by it, including, but not limited to public liability insurance,
environmental liability insurance, if available, fire and
extended coverage insurance and burglary and theft insurance.
Manager shall, at the request of the Board of Directors of the
Company, consult with the Company with respect to the prompt
investigation and filing of full timely written reports to the
insurance companies as to all accidents and claims for damages
to the ownership, operation and maintenance of the Company's
properties and business and shall, at the request of the Board
of Directors of the Company, consult with the Company with
respect to the preparation of any and all reports required by
any insurance company in connection therewith.
(viii) Taxes. Manager shall, at the request of the Board of
Directors of the Company, consult with the Company regarding the
payment of
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all taxes, personal and real, and assessments properly levied
with respect to the Company.
3. MANAGEMENT FEE.
(a) The Company shall pay to Manager as compensation for
services rendered hereunder, the amounts set forth below
which correspond to the relevant period:
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Period Annual Fee
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first 12 months after execution of this Agreement $120,000
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second 12 months after execution of this Agreement $140,000
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thereafter $160,000
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Such payments shall be made in monthly installments, in arrears, on the fifth
(5th) day of the first month following the execution of the Agreement.
(b) In addition to the management fee described above, and in
recognition of the fact that certain costs and expenses
paid or incurred by Manager will be paid or incurred in
the best interests of and on behalf of the Company, the
Company hereby agrees to reimburse Manager for all of the
costs and expenses paid or incurred by Manager on behalf
of the Company; provided such expenditures are reasonable
in amount and are directly related to the performance of
services hereunder. The calculation of the expense
reimbursement amount shall be made jointly by the Company
and Manager, or their designated representatives. Such
calculation shall be made at least as often as
quarter-annually (or more often if the parties so
decide), for the periods ending March 31, June 30,
September 30, and December 31.
(c) All payments required hereunder shall be made no later
than the fifth (5th) day following the close of the month
or quarter-annual period to which such payment relates;
however, the parties may mutually agree to make such
payments on any date prior to such fifth (5th) day.
4. REVENUES. All revenues generated by or with respect to the
Company shall accrue solely to the Company and shall be its property.
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5. RELATIONSHIP BETWEEN THE COMPANY AND MANAGER. This Agreement
is not intended to create nor shall it be construed as creating any
relationship between the Manager and the Company other than that of independent
contractor, nor shall either party hereof be liable for the debts of another.
6. ASSIGNMENT. The Company shall not, without the prior written
consent of Manager, assign any of the Company's rights or obligations under
this Agreement, whether by operation of law or otherwise. Manager may assign
its rights and obligations under this Agreement to any successor in interest in
its sole discretion. Regardless of any assignment of Manager's rights or
obligations hereunder, Manager shall remain responsible for all of the
obligations undertaken by it pursuant to this Agreement.
7. INDEMNIFICATION. The Company will indemnify Manager from all
suits for damages in connection with the management and operation of the
Company, other than suits for damages relating to willful misconduct, gross
negligence or fraud on the part of the Manager.
8. ACTIONS BY BOARD OF DIRECTORS OF COMPANY. Except for the
termination of this Agreement by a majority of the members of the Board of
Directors of the Company as set forth in Section 1 hereof, all actions of the
Board of Directors hereunder shall be effective only upon the vote of
four-fifths of all of the members of the Board of Directors.
9. REPRESENTATIONS AND WARRANTIES.
(a) Manager hereby represents and warrants to the Company
as follows:
(i) Manager is a corporation duly organized and
existing in good standing under the laws of the State of
Florida and is duly qualified to do business wherever necessary
to carry on its present business and operations;
(ii) this Agreement has been duly authorized by all
necessary corporate action on the part of Manager, does require
shareholder approval or the approval of, or the giving of
notice to, any Federal, state, local or foreign governmental
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authority and does not contravene any law or certificate or the
Articles of Incorporation or By-Laws of Manager, or any other
agreement, indenture or instrument to which Manager is a party
or by which Manager may be bound; and
(iii) this Agreement has been duly executed and
delivered by an authorized officer of the Company and constitutes
the legal, valid and binding obligations of the Company,
enforceable in accordance with its terms.
10. NOTICES. All notices or demands of any kind which either
party may be required or may desire to serve upon the other party under the
terms of this Agreement shall be in writing and shall be served upon such other
party (as an alternative to personal service upon such other party) by leaving
a copy of such notice or demand, addressed to such other party, at the address
set forth below, whereupon service shall be deemed complete, or by mailing a
copy thereof by registered or certified mail, postage prepaid and return
receipt requested, addressed as follows:
If to Company: Wescourt Group, Inc.
0000 Xxxxx Xxxx
Xxxxx Xxxxxxxx, Xxxxxxxx 00000
With a copy to: Xxxxx, Johnson, Robinson, Xxxx & Ragonetti, P.C.
1600 Colorado National Building
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
If to Manager: WLD Enterprises, Inc.
Xxx Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
With a copy to: Greenberg, Traurig, Hoffman, Lipoff, Xxxxx &
Quentel, P.A
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxxxxx, Esq.
Any party may change its address for service of notice by like notice to the
other party. In case of service by mail as aforesaid, the same shall be deemed
complete at the expiration of the second day after the date of the mailing.
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11. LITIGATION EXPENSES AND ATTORNEYS' FEES. In the event of
any action or proceeding between the parties to enforce the provisions of, or
otherwise arising out of this Agreement, the unsuccessful party in such
litigation shall pay to the successful party all costs and expenses incurred
therein by such successful party, including, without limitation, reasonable
attorneys' fees and costs, which costs, expenses and attorneys' fees shall be
included in and made a part of any judgment or award rendered in such action or
proceeding.
12. SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, all of the terms of this Agreement shall be binding upon and shall
inure to the benefit of and be enforceable by the respective successors and
permitted assigns of the parties.
13. PARAGRAPH HEADINGS. The headings of the several paragraphs
hereof are included only for convenience of reference and are not intended to
govern, modify or aid in the construction of any provision of this Agreement.
14. SEVERABILITY. If any provision of this Agreement, as
applied to any party or to any circumstance, shall be adjudged by a court of
competent jurisdiction to be void, invalid or unenforceable, the same shall in
no way affect any other provision of this Agreement, the application of any
such provision in any other circumstances, or the validity or enforceability of
this Agreement shall be construed as if such void, invalid or unenforceable
provision had been stricken from this Agreement as of its effective date.
15. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
16. VENUE. Manager and the Company agree that any action
brought by Manager may be brought in the federal and Florida state courts
serving the federal district and the Florida judicial circuit, respectively,
wherein Dade or Broward Counties, Florida are located and that any action
brought by the Company may be brought in the federal and Colorado state courts
serving the federal district and the Colorado judicial circuit, respectively,
wherein Mesa, Denver or Arapahoe Counties, Colorado are located.
17. ENTIRE AGREEMENT; MODIFICATIONS. This Agreement contains
the entire agreement of the parties with respect to the subject matter hereof,
and there are no warranties, representations or agreements between them with
respect thereto, except as contained herein. This Agreement may not be
modified, amended or supplemented except by a writing signed by the party
sought to be charged with such modification, amendment or supplement.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed, to be effective as of the day and year first above written.
WESTCOURT GROUP, INC., a Delaware Corporation
By:
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Xxxxx Xxxxxx, President
WLD ENTERPRISES, INC., a Florida corporation
By:
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Xxxxxxx X. Xxxx
President and Chief Executive Officer
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FIRST AMENDMENT TO
CONSULTING MANAGEMENT AGREEMENT
THIS FIRST AMENDMENT TO CONSULTING MANAGEMENT AGREEMENT ("Amendment")
is made as of March 12, 1997, by and between WLD Enterprises, Inc., a
corporation formed under the laws of the state of Florida ("WLD"), and Wescourt
Group, Inc., a corporation formed under the laws of the state of Delaware
("Wescourt"), to amend that certain Consulting Management Agreement dated
September 17, 1992 (the "Original Agreement"). Capitalized terms that are not
defined elsewhere in this Amendment shall have the meanings set forth in the
Original Agreement.
RECITALS
A. Petroleum Holdings, Ltd., a Florida limited partnership ("PHL"), is
the owner of one hundred percent (100%) of the issued and outstanding Series A
Convertible Preferred Stock of Portfield Investments, Inc., a corporation
formed under the laws of the state of Colorado ("Portfield"), which owns one
hundred percent (100%) of the issued and outstanding shares of common stock of
Xxxxx-Xxxx Convenience Stores, Inc., a corporation formed under the laws of the
state of Colorado.
B. The WLD Trust, an Ohio testamentary trust and an affiliate of WLD
and PHL, has issued its unconditional guaranty of payment in favor of Xxxxxx
Guaranty Trust Company of New York ("Xxxxxx") in order to induce Xxxxxx to
execute an unsecured $4,500,000 loan to Portfield of even date herewith (the
"Xxxxxx Loan"), for the purpose of re-lending a portion of the proceeds of the
Xxxxxx Loan to Xxxxx-Xxxx and re-lending the balance of the proceeds of the
Xxxxxx Loan to Wescourt.
C. As additional consideration for the WLD Trust guaranty of the
Xxxxxx Loan and for the re-lending of the Xxxxxx Loan proceeds to Wescourt and
Wescourt's wholly-owned subsidiary, Wescourt has agreed to modify the Original
Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth in this Amendment, WLD and Wescourt agree as follows:
1.) Section 1 of the Original Agreement, Retention; Terms., is
hereby deleted in its entirety and the following inserted in lieu
thereof:
"1. Retention; Terms.The Company hereby offers to retain
Manager as a consultant and Manager hereby accepts such offer of
retention as a consultant, upon the terms and conditions hereinafter
set forth, for a term commencing on the date hereof and terminating on
that date, if any, on which the Securities and Exchange Commission
(the "SEC") has, under the Securities Act of 1933, as amended,
declared effective a registration statement covering shares of the
Company's common stock and shares of such common stock have been sold
pursuant to such registration statement or any subsequent registration
statement filed with the SEC and declared effective."
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2.) Section 3.(a) of the Original Agreement, Management Fee., is
hereby deleted in its entirety and the following inserted in lieu thereof:
"(a) The Company shall pay to Manager as compensation for
services rendered hereunder, the amounts set forth below which
correspond to the relevant period:
Period Annual Fee
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first 12 months after execution of this Agreement $120,000
second 12 months after execution of this Agreement $140,000
thereafter until the termination of this Agreement $160,000
In addition to the annual fee set forth above, the Company shall pay
to Manager from March, 1997 through the retirement of the Xxxxxx Loan
the amounts set forth below:
Monthly Fee
-----------F
during any month in which the principal amount of the
Xxxxxx Loan outstanding is $3,000,000 or more $20,000
during any month in which the principal amount of the
Xxxxxx Loan outstanding is greater than $2,000,000
but less than $3,000,000 $15,000
during any month in which the principal amount of the
Xxxxxx Loan outstanding is greater than $1,000,000
but less than $2,000,000 $10,000
during any month in which the principal amount of the
Xxxxxx Loan outstanding is less than $1,000,000 $ 5,000
Such payments shall be made in monthly installments, in arrears, on
the fifth (5th) day of each month with the first payment due and payable on the
fifth (5th) day of the first month following the execution of this Agreement.
3.) The parties reaffirm and restate to each other all of their
respective representations, warranties and covenants made in the Original
Agreement, and all of such representations, warranties and covenants remain
true and correct as of the date of this Amendment.
4.) The Original Agreement, as amended by this Amendment, contains the
entire agreement between the parties hereto with respect to the transactions
contemplated herein and supersedes all prior representations, agreements,
covenants and understandings, whether oral or written, related to the subject
matter of the Original Agreement.
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IN WITNESS WHEREOF, the parties executed and delivered this Amendment
as of the day and year specified at the beginning hereof.
Wescourt Group, Inc., WLD Enterprises, Inc.,
a Delaware corporation a Florida corporation
by: by:
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Xxxxx Xxxxxx, President Xxxxxx X. Xxxxxxxx, Vice-President
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