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EXHIBIT 10.5.1
CONSULTING AGREEMENT
This CONSULTING AGREEMENT, dated as of March 18, 1998 (the "Agreement"), is
entered by and between Day International Group, Inc., a Delaware corporation
(the "Company"), and Greenwich Street Capital Partners, Inc., a Delaware
corporation ("Greenwich").
W I T N E S S E T H:
WHEREAS, the Company and its direct and indirect subsidiaries, whether now
existing or hereafter created or acquired (collectively referred to herein as
the "Company Group") desire to receive financial and managerial advisory
services from Greenwich, and Greenwich desires to provide such services to the
Company Group; and
NOW, THEREFORE, in consideration of the premises and the respective
agreements hereinafter set forth and the mutual benefits to be derived herefrom,
the parties hereto hereby agree as follows:
1. Engagement. Each member of the Company Group, jointly and severally,
hereby engages Greenwich as a consultant, and Greenwich hereby agrees to provide
financial and managerial advisory services to the Company Group, all on the
terms and subject to the conditions set forth below.
2. Services. (a) Greenwich hereby agrees during the term of this
Agreement to assist, advise and consult with the respective Boards of Directors
and management of each member of the Company Group and their subsidiaries in
such manner and on such business, management and financial matters, and provide
such other financial and managerial advisory services, as may be reasonably
requested from time to time by the respective Boards of Directors of the members
of the Company Group, including but not limited to assistance in:
(i) the raising of additional debt and equity capital from time to
time for the Company Group;
(ii) establishing and maintaining banking, consulting, advising and
other business relationships for the Company Group;
(iii) developing and implementing corporate and business strategy and
planning for the Company Group, including plans and programs for improving
operating, marketing and financial performance, budgeting of future
corporate investments, acquisition and divestiture strategies, and
reorganizational programs;
(iv) providing individuals to serve as directors or officers of the
Company Group; and
(v) providing such other consulting and advisory services as the
Company Group may reasonable request.
(b) Each member of the Company Group will furnish Greenwich with such
information as Greenwich believes appropriate to its engagement hereunder (all
such information so furnished being referred to herein as the "Information").
Each member of the Company Group recognizes and confirms that (i) Greenwich will
use and rely primarily on the Information and on information available from
generally recognized public sources in performing the services to be performed
hereunder and (ii) Greenwich does not assume responsibility for the accuracy or
completeness of the Information and such other information.
3. Fee. In consideration of providing the foregoing services, the Company
will pay to Greenwich an annual advisory fee of $791,838 payable semi-annually
in advance (the "Fee"), commencing on January 16, 1998. If Greenwich or any of
its affiliates or designees invests additional equity in the Company Group or
any of its affiliates on one or more occasions after the date hereof, then, in
each such case, the Company Group and Greenwich will negotiate in good faith to
effect a mutually acceptable increase to such advisory fee.
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4. Payment of Expenses. The Company Group will also reimburse Greenwich
promptly for Greenwich's reasonable out-of-pocket costs and expenses incurred by
Greenwich or its employees, agents or advisors in connection with the
performance of Greenwich's duties hereunder including but not limited to any
fees and expenses (a) of any reasonable legal, accounting or other professional
advisors to Greenwich engaged in connection with the services being provided
hereunder or (b) associated with the maintenance or operation of Greenwich IV
LLC, a Delaware limited liability company (collectively, "Expenses").
5. Term, etc. (a) This Agreement shall be in effect until, and shall
terminate upon, the earlier to occur of (i) the tenth anniversary of the date
hereof and (ii) the date on which neither Greenwich Street Capital Partners,
L.P. nor its affiliates directly or indirectly owns any shares of the capital
stock of the Company, and may be earlier terminated by Greenwich, in its sole
discretion, upon 15 days' prior written notice to the Company.
(b) Upon any consolidation or merger, or any conveyance, transfer or lease
of all or substantially all of the assets of any of the members of the Company
Group, the successor corporation (or other entity) formed by such consolidation
or into which such company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, such company under this
Agreement with the same effect as if such successor corporation had been a party
thereto. No such consolidation, merger or conveyance, transfer or lease of all
or substantially all of the assets of any of the Company Group shall have the
effect of terminating this Agreement or of releasing such company or any such
successor corporation from its obligations hereunder.
(c) Upon any termination of this Agreement, any accrued and unpaid
installment of the Fee or portion thereof (pro-rated, with respect to the month
in which such termination occurs, for the portion of such month that precedes
such termination), and any unpaid and unreimbursed Expenses that shall have been
incurred prior to such termination (whether or not such Expenses shall then have
become payable), shall be immediately paid or reimbursed, as the case may be, by
the Company.
6. Indemnification. The obligations of the parties hereto are in addition
to, and shall in no way reduce or limit, the obligations thereof under the
Indemnification Agreement, dated as of March 18, 1998, between Greenwich and the
Company with respect to such agreement, which shall remain in full force and
effect.
7. Independent Contractor Status. The parties agree that Greenwich shall
perform services hereunder as an independent contractor, retaining control over
and responsibility for its own operations and personnel. Neither Greenwich nor
any of its employees or agents shall, solely by virtue of this Agreement or the
arrangements hereunder, be considered employees or agents of any other party
hereto or any member of the Company Group nor shall any of them have authority
to contract in the name of any such person, except as expressly agreed to in
writing by such person.
8. Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed, certified or registered mail with postage pre-paid, (c)
sent by next day or overnight mail or delivery or (d) sent by telecopy or
telegram, as follows:
(i) If to the Company Group, to:
Day International Group, Inc.
X.X. Xxx 000
000 Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxx 00000-0000
Attn.: Xxxxx X. Xxxxxxxx
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or to such other person or address as the Company shall furnish to Greenwich in
writing; and
(ii) If to Greenwich, to:
Greenwich Street Capital Partners, Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, III
with a copy to:
Xxxxxx X. Xxxxxx, Esq.
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other person or address as Greenwich shall furnish to the Company in
writing.
All such notices, requests, demands, waivers and other communications shall
be deemed to have been received (w) if by personal delivery, on the day after
such delivery, (x) if by certified or registered mail, on the fifth business day
after the mailing thereof, (y) if by next-day or overnight mail delivery, on the
day delivered, or (z) if by telecopy or telegram, on the day on which such
telecopy or telegram was sent, provided that a copy is also sent by certified or
registered mail.
9. Entire Agreement. This Agreement and the Indemnification Agreement
contain the complete and entire understanding and agreement of each party hereto
with respect to the subject matter hereof and supersede all prior and
contemporaneous understandings, conditions and agreements, oral or written,
express or implied, in respect of the subject matter hereof.
10. Headings. The headings contained in this Agreement are for purposes
of convenience only and shall not affect the meaning or interpretation of this
Agreement.
11. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original and all of which shall together
constitute one and the same instrument.
12. Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties to this Agreement and their respective
successors and assigns, provided that no party hereto may assign any of its
rights or obligations under this Agreement without the express written consent
of each other party hereto. By operation of merger, this Agreement shall be
binding upon and inure to the benefit of the surviving entity of a merger. This
Agreement is not intended to confer any right or remedy hereunder upon any
person other than the parties to this Agreement and their respective successors
and permitted assigns.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS,
INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAW OF THE STATE OF NEW
YORK, REGARDLESS OF THE LAW THAT MIGHT BE APPLIED UNDER PRINCIPLES OF CONFLICTS
OF LAWS.
14. Amendment; Waivers. No amendment, modification, supplement or
discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, supplement, discharge or waiver is
sought, and acknowledged by the other party. Any such waiver shall constitute a
waiver only with respect to the specific matter described in such writing and
shall in no way impair the rights of the party granting such waiver in any other
respect or at any other time. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies that any party may
otherwise have at law or in equity or otherwise.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
DAY INTERNATIONAL GROUP, INC.
By:
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Name: Xxxxxxxxx X. Vanden Beukel
Title: Vice President, Secretary
GREENWICH STREET CAPITAL PARTNERS,
INC.
By:
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Name: Xxxxxx X. Xxxxxx, III
Title:
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