Exhibit 10.7
MANAGEMENT CONSULTING AGREEMENT
dated as of December 31, 1996, between CFP
HOLDINGS, INC., a Delaware corporation (the
"Company"), and FIRST ATLANTIC CAPITAL,
LTD., a Delaware corporation (the
"Consultant").
The Company desires to avail itself of the Consultant's expertise
and consequently has requested the Consultant to provide such expertise, from
time to time, in rendering certain management consulting and advisory services
related to the business and affairs of the Company and its subsidiaries and the
review and analysis of certain financial and other transactions. The Consultant
and the Company agree that it is in their respective interests to enter into
this Agreement whereby, for the consideration specified herein, the Consultant
shall provide such services as an independent consultant to the Company.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, the Company and the Consultant agree as follows:
SECTION 1. Retention of the Consultant. The Company retains the
Consultant, and the Consultant accepts such retention, upon the terms and
conditions set forth in this Agreement.
SECTION 2. Term. This Agreement shall commence on the date hereof
and shall terminate on December 31, 2003 (the "Initial Term"). Upon the
termination of the Initial Term and each additional year thereafter, if any,
pursuant to this sentence, this Agreement shall automatically be subsequently
extended for an additional year unless notice to the contrary is given by either
party at least 30 but not more than 60 days prior to such termination (the
Initial Term and all extensions thereof are collectively referred to as the
"Term").
SECTION 3. Management Consulting Services. (a) The Consultant shall
advise the Company concerning such management matters as relate to proposed
financial transactions, acquisitions and other senior management matters related
to the Company's and its subsidiaries' business, administration and policies, in
each case as the Company shall reasonably and specifically request by way of
written notice to the Consultant, which notice shall specify the services
required of the Consultant and shall include all background material necessary
for the Consultant to complete such services. The Consultant shall not be
required to devote any specified amount of time to any such written request and
shall be required to devote only so much time to any such written request as the
Consultant shall, in its reasonable discretion, deem necessary to complete such
services. Such consulting services shall, in the Consultant's reasonable
discretion, be rendered in person or by telephone or
other communication. The Consultant shall be free of domination or control by
the Company over the manner and time of rendering its services hereunder, and
the Company shall have no right to dictate or direct the details of the services
rendered hereunder. The Consultant shall (i) use its reasonable efforts to deal
effectively with all subjects submitted to it hereunder and (ii) endeavor to
further, by performance of its services hereunder, the policies and objectives
of the Company.
(b) The Consultant shall perform all such services as an
independent contractor to the Company. The Consultant is not an employee, agent
or representative of the Company and has no authority to act for or to bind the
Company without its prior written consent.
(c) This Agreement shall in no way prohibit the Consultant or
any partner or employee thereof from engaging in other activities, whether or
not competitive with any business of the Company.
SECTION 4. Compensation. (a) As consideration for the Consultant's
agreement to render the management consulting services set forth in Section 3 of
this Agreement and as compensation for any such services rendered by the
Consultant, the Company shall pay the Consultant an annual fee of $600,000 in
equal monthly installments in advance on the first day of each month (or, if
such date is not a business day in New York City, on the next business day in
New York City).
(b) The Company (or, at the Company's option, any subsidiary
or affiliate thereof) shall, upon presentation by the Consultant to the Company
of such appropriate documentation as may be required by the Company, reimburse
the Consultant for all reasonable and necessary expenses and other disbursements
incurred by any and all directors, officers, employees or agents of the
Consultant in the performance of its obligations hereunder.
(c) Nothing in this Agreement shall have the effect of
prohibiting the Consultant from receiving from the Company or its subsidiaries,
on a transaction-by-transaction basis, a fee for financial advisory and
consulting services rendered by the Consultant to the Company or its
subsidiaries in connection with future acquisitions or dispositions by the
Company or its subsidiaries.
SECTION 5. Indemnification. The Company shall indemnify and hold
harmless the Consultant and its directors, officers, employees, agents and
affiliates from and against any and all liabilities, costs, expenses and
disbursements (collectively, "Claims") of any kind with respect to or arising
from this Agreement or the performance by the Consultant of any services in
connection herewith. Notwithstanding the foregoing
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provision, the Company shall not be liable for any Claim arising from the gross
negligence or willful misconduct of the Consultant.
SECTION 6. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed sufficient if
personally delivered, sent by nationally-recognized overnight courier, by
telecopy, or by registered or certified mail, return receipt requested and
postage prepaid, addressed as follows:
if to the Consultant, to:
First Atlantic Capital, Ltd.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000;
If to the Company:
CFP Holdings, Inc.
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000;
or to such other address as the party to whom notice is to be given may have
furnished to each other party in writing in accordance herewith. Any such notice
or communication shall be deemed to have been received (a) in the case of
personal delivery, on the date of such delivery, (b) in the case of
nationally-recognized overnight courier, on the next business day after the date
when sent, (c) in the case of telecopy transmission, when received, and (d) in
the case of mailing, on the third business day following that on which the piece
of mail containing such communication is posted.
SECTION 7. Benefits of Agreement. This Agreement shall bind and
inure to the benefit of any successors to or assigns of the Consultant and the
Company; provided, however, that this Agreement may not be assigned by either
party hereto without the prior written consent of the other party.
SECTION 8. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
(without giving effect to principles of conflicts of laws).
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SECTION 9. Headings. Section headings are used for convenience only
and shall in no way affect the construction of this Agreement.
SECTION 10. Entire Agreement; Amendments. This Agreement contains
the entire understanding of the parties with respect to its subject matter, and
neither it nor any part of it may in any way be altered, amended, extended,
waived, discharged or terminated except by a written agreement signed by each of
the parties hereto.
SECTION 11. Counterparts. This Agreement may be executed in
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
SECTION 12. Waivers. Any party to this Agreement may, by written
notice to the other party, waive any provision of this Agreement. The waiver by
any party of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach.
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IN WITNESS WHEREOF, the parties have duly executed this Management
Consulting Agreement as of the date first above written.
CFP HOLDINGS, INC.
By:________________________________
Name:
Title:
FIRST ATLANTIC CAPITAL, LTD.
By:________________________________
Name:
Title:
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