Exhibit 10.12
CONSULTING AGREEMENT
This consulting agreement is dated as of October 18, 2000, by and among
Entertainment Finance International, LLC, a Delaware limited liability company
("EFI"), EFI Music Holdings LLC, a Delaware limited liability company ("Seller")
and ConnectivCorp., a Delaware corporation ("Connectiv").
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. The Seller hereby retains Connectiv to provide assistance and
consultation in connection with the sale to an unrelated third party (a
"Purchaser") of the assets of Cakewalk BRE LLC ("BRE"), a New York limited
liability company which includes the family of record labels known as 32 Records
(the "BRE Assets"). Prior to any such sale, EFI intends to (i) acquire the BRE
Assets pursuant to a foreclosure proceeding as permitted under the indenture
between BRE, EFI and RZO Corporate Administration, Inc. (the "Indenture"), and
(ii) transfer the BRE Assets to EFI Music as a contribution to the capital of
EFI Music.
2. Connectiv shall assist Seller with all offers in connection with the
sale of the BRE Assets and direct any interested Purchasers to Sellers, and
assist them in connection with conducting due diligence and providing
appropriate information to such prospective Purchasers. Connectiv will, at
Seller's request, also assist in negotiating the terms of any sale of the BRE
Assets and upon receiving any written and signed offers, convey such offers to
Sellers. Upon acceptance by Seller of a bona fide offer in the form of a term
sheet, the attorneys designated by Sellers will draft appropriate agreements and
close thereon. All parties hereto shall bear their own costs and attorneys'
fees. Connectiv shall keep Seller apprised of all outstanding expressions of
interest by prospective Purchasers and on a periodic basis provide Seller with a
status report on same.
3. Connectiv will receive a fee in connection with the sale of the BRE
Assets to a Purchaser which Connectiv directed to the Seller and in respect of
such Purchaser, performed the services in accordance with and as described in
paragraph 2 above (the "Fee"). The Fee shall be paid in cash upon the closing of
the sale (such date, the "Closing Date") and shall be calculated as 10% of the
BRE Sales Value; provided, however, the Fee shall, in no event, exceed $500,000:
"BRE Sales Value" shall be equal to the net value received by the Sellers
from the Purchaser on the Closing Date in respect of the BRE Assets ((i) whether
in cash, stock assumption or refinancing of any debt or other consideration or
combination of the foregoing, (ii) exclusive of all amounts on deposit in the
reserve account established and maintained pursuant to the Indenture, (iii)
exclusive of consideration received from the Purchaser by the Sellers in respect
of assets which are not BRE Assets, and (iv) taking into account the present
fair market value of the consideration received by Sellers for the BRE Assets.
It is agreed that the BRE Sales Value attributable to the draft letter of intent
dated September 27, 2000 between Audio on Demand Corp., d/b/a Online Xxxxx.xxx
("Online") and EFI Music is $3,825,000.
4. Connectiv shall be responsible for fees of third parties retained by
it, including fees to Xxxxxx Xxxx in excess of the amount agreed to be paid by
Online, which is currently $195,000, but not those of third parties retained by
EFI or the Seller. Connectiv acknowledges that the current agreement of Online
to pay a fee to Xxxxxx Xxxx is not final and binding on Online and that neither
Online nor EFI is currently bound by an agreement, either oral or written to
either directly or indirectly, pay or bear the cost of any fee ultimately
payable to Xxxxxx Xxxx. EFI's sole obligation to pay a consulting fee to
Connectiv in connection with the sale of the BRE Assets is set forth in
paragraph 3 hereof. Connectiv will provide copies of applicable fee arrangements
at such time as an offer is submitted to Seller for their approval.
5. Seller shall pay the Fee at the closing of a transaction for the sale
of the BRE Assets, in whatever form such sale is effectuated.
6. EFI, the Seller or Connectiv may terminate this agreement upon five (5)
days written notice to the other parties. Upon termination of this agreement,
Connectiv's obligations hereunder shall immediately terminate; provided,
however, if Seller or EFI should terminate this agreement, Connectiv shall
nevertheless be entitled to the Fee as set forth in paragraph 3 above for any
and all sales to Purchasers (including Online) who (a) had been directed to the
Seller by Connectiv during the term of this agreement, (b) at such time, had
provided the Seller with a bona fide offer in the form of a term sheet, and (c)
within the 12 months following such date of termination, consummated such
transaction with the Seller on terms substantially similar to those described in
such term sheet. If Connectiv shall terminate this agreement, Connectiv shall
not be entitled to any Fee (including if the Seller should sell the BRE Assets
to Online).
7. It is acknowledged and agreed by EFI and the Seller that Connectiv
shall have no obligation whatsoever regarding the financial, legal, operation or
other obligations or functions concerning the BRE Assets, and Connectiv's sole
function hereunder or otherwise shall be as a consultant and facilitator in
connection with the sale of the BRE Assets. It is further acknowledged and
agreed that Connectiv is not liable to EFI or the Seller for the indebtedness
arising out of the Indenture or other loan documents among EFI, Cakewalk LLC,
BRE, 32 Records LLC and RZO Corporate Administration, Inc; PROVIDED, HOWEVER,
that the foregoing does not release Connectiv from any claims, costs or expenses
(including legal fees and expenses) in excess of $100,000 that EFI and the
Seller (in the aggregate) may incur as a result of any action or omission on the
part of Connectiv which directly or indirectly caused a material breach (as
determined by a court of competent jurisdiction and other than with respect to
the transfer of the RYKO Agreement contemplated herein) of the separateness
covenants contained in Section 6.1(i) of the Management Agreement and Section
11.12 of the Indenture. Notwithstanding the foregoing, nothing in this paragraph
shall create or shall be deemed to create responsibility on the part of
Connectiv for any damages suffered by EFI or the Seller as a result of EFI's or
the Seller's own actions.
8. ConnectivCorp hereby releases and agrees to cause its affiliates to
release EFI, its affiliates, their respective directors, officers and employees
from any lender liability claims which may arise in connection with any actions
taken by EFI, its affiliates, their respective directors, officers, and
employees, on or before the date hereof in connection with the
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Loan Documents; PROVIDED, HOWEVER, such release shall not release EFI from
liability resulting from or arising out of EFI's former status as an observer on
the board of directors of Cakewalk LLC and its current status as an observer on
the board of directors of ConnectivCorp which status EFI shall retain so long as
EFI shall hold 1,000,000 or more shares or warrants of Connectiv.
9. As partial consideration for the Seller entering into this Agreement,
Connectiv shall on the date hereof, cause its wholly-owned subsidiary, 32
Records LLC to irrevocably assign and transfer to the Seller all of its rights
under that certain distribution agreement, dated November 24, 1997, by and
between REP Sales, Inc. and Cakewalk LLC (the predecessor-in-interest to 32
Records LLC) as amended (the "RYKO Agreement"). All notices from one party to
the other party shall be sent to the other party's address by (i) delivery by a
reputable courier service or by registered mail (return receipt requested) or
(ii) by facsimile transmission (or the equivalent transmission providing written
confirmation of receipt at the facsimile number of the addressee) with a copy
sent in either manner described in clause (i), all charges prepaid. The date of
receipt or refusal to accept shall be the effective date of any such notice.
10. NOTICES. All notices from one party to the other party shall be sent
to the other party's address by (i) delivery by a reputable courier service or
by registered mail (return receipt requested) or (ii) by facsimile transmission
(or the equivalent transmission providing written confirmation of receipt at the
facsimile number of the addressee) with a copy sent in either manner described
in clause (i), all charges prepaid. The date of receipt or refusal to accept
shall be the effective date of any such notice.
If to:
CONNECTIVCORP.
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Telecopy: 212-527-2408
with a copy to:
Xxxx Marks & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxxx, Esq.
Telecopy: 000-000-0000
If to:
ENTERTAINMENT FINANCE EFI MUSIC HOLDINGS LLC
INTERNATIONAL, LLC 000 Xxxx 00xx Xxxxxx
000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
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Xxx Xxxx, Xxx Xxxx 00000 Attn.: Xxxxxx Xxxxxx
Attn: Xxxxxx Xxxxxx Telecopy: 000-000-0000
Telecopy: 000-000-0000
in each case, with a copy to:
THE PRUDENTIAL INSURANCE COMPANY -and- XXXXXXX XXXX & XXXXXXXXX
OF AMERICA 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx, Xxx Xxxxxx 00000-0000 Attn: Xxxxxxx Xxxxxx, Esq.
Attn: Ms. Xxxxxx Kutschner
11. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and
understanding among the parties with reference to the transactions contemplated
hereby and supersedes any and all other oral or written agreements heretofore
made.
12. SEVERABILITY. If any provision of this Agreement or the application of
any provision hereof to any person or in any circumstances is held invalid, the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected unless the provision held invalid
shall substantially impair the benefits of the remaining portions of this
Agreement.
13. CONSENT TO JURISDICTION.
(a) Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of any New York State or Federal court sitting in New York City in
any action or proceeding arising out of or relating to this Agreement or any
other Transaction Document, and hereby irrevocably agrees that all claims in
respect to any such action or proceeding may be heard and determined in such New
York State court, or, to the extent permitted by law, in such Federal court.
Each party hereto hereby irrevocably waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum to the maintenance of
such action or proceeding. Each party hereto irrevocably consents to the service
of any and all process in any suction action or proceeding by the mailing, or
delivery, of copies of such process to such party at its address specified in
Section 8. Each party agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
(b) Nothing in this Section 11 shall affect the right of any party
hereto to serve legal process in any other manner permitted by law.
14. WAIVER OF JURY TRIAL. The parties hereto each waive their respective
rights to a trial by jury of any claim or cause of action based upon or arising
out of or related to this Agreement, or the transactions contemplated hereby, in
any action, proceeding or other litigation of any type brought by any of the
parties against any other party or parties, whether with respect to contract
claims, tort claims, or otherwise. The parties hereto each agree that any such
claim or cause of action shall be tried by a court trial with a jury. Without
limiting the foregoing, the
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parties further agree that their respective right to a trial by jury is waived
by operation of this Section 12 as to any action, counterclaim or other
proceeding which seeks, in whole or in part, to challenge the validity or
enforceability of this Agreement or any provision hereof the waiver shall apply
to any subsequent amendments, renewals, supplements or modifications to this
Agreement.
15. CAPTIONS. Captions to Articles, Sections and subsections of this
Agreement are included for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or in any way affect
the meaning or construction of any provision of this Agreement.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute one and the same instrument.
18. SURVIVAL. Notwithstanding any termination of this Agreement, the
provisions of paragraphs 7 and 8 shall survive.
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IN WITNESS WHEREOF, this Agreement has been executed by the duly
authorized signatories of the parties hereto all as of the day and year first
above written.
ENTERTAINMENT FINANCE
INTERNATIONAL, LLC, as Lender
By: BJT HOLDING, INC, its Managing
Member
By:
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Name:
Title:
CONNECTIVCORP.
By:
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Name:
Title:
EFI MUSIC HOLDINGS LLC
By: Entertainment Finance
International, LCC, its sole member
By: BJT Holding, Inc., its Managing Member
By:
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Name:
Title:
By:
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Name:
Title:
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