Exhibit 10.8
[LOGO OF FINANCIAL PACIFIC COMPANY]
3455 S. 344th Way, Suite 300 Federal Way, WA 98001
Post Office Box 4568 Federal Way, WA 98063-4568
253.568.6000
Facsimile 253.568.2222
E-mail: finpac@finpac.com
www.finpac.com
WINDWARD LETTER AGREEMENT
September 3, 2003
Windward Capital Management, LLC
1177 Avenue of the America
42nd Floor
New York, NY, 10036
Ladies and Gentlemen:
This letter will confirm our understanding that Financial Pacific
Company, a Washington corporation (the "Company") has retained Windward Capital
Management, LLC, a Delaware limited liability company ("Windward") to provide
consulting and advisory services (the "Services") in connection with the
potential sale of the company (the "Transaction"). We understand that the
Services include, without limitation, advice with respect to structuring the
Transaction whereby, a change of control occurs as defined in the Shareholders'
Agreement, dated January 23, 1998 amoung the Company, various Windward Entities,
and other shareholders.
The Company hereby expressly agrees to and will (i) pay to Windward, at
the closing of a Transaction, a fee of 1% of the aggregate consideration to be
paid in a Transaction and (ii) at, or promptly following, the closing, reimburse
Windward for the reasonable out-of-pocket costs and expenses of Windward and its
affiliates incurred in conjunction with the Transaction; provide however, if the
Transaction does not occur, the Company will have no obligation to pay such fees
and to reimburse such costs and expenses.
The Company hereby agrees to indemnify Windward and its affiliates, and
their respective officers, directors, employees, partners, agents and control
persons (as such term is used in the Securities Act of 1933 and the rules and
regulations thereunder (together, the "Windward Indemnities") to the fullest
extent permitted by law against any Claims (as defined in the Merger Agreement)
arising out of any Services rendered by Windward, provided, however, there shall
be excluded from such indemnification and such claim, loss or expense that is
based upon any action or failure to act by Windward that is found in a final
Windward Fee Agreement FP 9/3/03
judicial determination to constitute gross negligence or intentional misconduct
on Windward's part. The Company will advance costs and expenses, including
attorney's fees, incurred by any such indemnitee in defending any such claim in
advance of the final disposition of such claim upon receipt of an undertaking by
or on behalf of such indemnitee to repay amounts so advanced if it shall
ultimately be determined that such indemnitee is not entitled to be indemnified
by the Company pursuant to this letter agreement. With respect to any such
claim, loss or expense, Windward may settle any claim or litigation prior to a
final judgement thereon or forego appeal with respect thereto, in either case,
with the prior written consent of the Company, which consent shall not be
unreasonably withheld. The Company will not consent to entry of any judgement or
enter into any settlement (i) which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Windward Indemnitee of a
release form all liability with respect to such claim or litigation, and (ii)
that imposes any obligation on a Windward Indemnitee (except any obligation to
make payments which the company shall, and promptly does, pay). No Windward
Indemnitee shall be liable to the Company or its respective subsidiaries or
affiliates for any error of judgement or mistake of law or for any loss incurred
by the Company or its subsidiaries or any of their respective affiliates in
connection with the matters to which this letter agreement relates, except for
any damages that are found by a court of competent jurisdiction to have resulted
primarily from the gross negligence or willful misconduct of the Windward
Indemnitee.
This agreement shall be governed by and interpreted and enforced in
accordance with the substantive laws of the State of New York, without giving
effect to the conflict of law principles thereof.
Windward Fee Agreement FP 9/3/03
If you are in agreement with the foregoing, kindly so indicate by
signing a counterpart of this letter, whereupon it will become a binding
agreement between us.
Very truly yours,
FINANCIAL PACIFIC COMPANY
By /s/ Dale A. Winter
---------------------------------
Name: Dale A. Winter
Title: Chief Executive Officer
WINDWARD CAPITAL MANAGEMENT, LLC
By /s/ Mark C. Monaco
---------------------------------
Name: Mark C. Monaco
Title: Managing Director
Windward Fee Agreement FP 9/3/03