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Exhibit 10.4
MANAGEMENT AGREEMENT
This Management Agreement is entered into effective as of June 28, 2001
("Effective Date") by and between Thomas H. Lee Advisors, LLC (the
"Consultant"), and TransWestern Holdings, L.P., a Delaware limited partnership
("TransWestern").
WHEREAS, the Consultant has staff specially skilled in corporate
finance, strategic corporate planning and other management skills and services;
and
WHEREAS, as of the date hereof, TransWestern has completed its
recapitalization pursuant to the Recapitalization Agreement, dated as of the
date hereof (the "Recapitalization Agreement") by and among TransWestern, its
general partner and limited partners, certain affiliates of the Consultant and
the stockholders of TransWestern Communications Company, Inc., the general
partner of TransWestern (the "Company"), together with the consummation of
senior credit facilities and subordinated debt financing (collectively, the
"Recapitalization"); and
WHEREAS, TransWestern will require the Consultant's special skills and
management advisory services in connection with its general business operations;
and
WHEREAS, the Consultant is willing to provide such skills and services
to TransWestern.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties hereto, intending to be legally bound, do hereby agree as
follows:
1. Engagement. TransWestern hereby engages the Consultant for the
Term (as hereinafter defined), upon the terms and conditions herein set forth,
to provide consulting and management advisory services to TransWestern, as
requested by TransWestern. These services will be in connection with financial
and strategic corporate planning and such other management services as the
Consultant and TransWestern shall mutually agree. In consideration of the
remuneration herein specified, the Consultant accepts such engagement and agrees
to perform the services specified herein.
2. Term. The engagement hereunder shall be for a term commencing
on the date hereof and expiring on the first (1st) anniversary hereof (the
"Term"), provided, however, that the Consultant or TransWestern may terminate
this Agreement at any time upon thirty (30) days prior written notice. Upon
expiration of the Term, this Agreement shall automatically extend for successive
periods of one (1) year, unless the Consultant or TransWestern shall give notice
to the other at least thirty (30) days prior to the end of the Term (or any
annual extension thereof) indicating that it does not intend to renew the
Agreement. Upon final expiration of the Term (or any annual extension thereof)
all obligations as between the parties and/or any third party beneficiaries
shall be extinguished without recourse to any party under this Agreement.
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3. Services to be Performed. The Consultant shall devote
reasonable time and efforts to the performance of the consulting and management
advisory services contemplated by this Agreement. However, no precise number of
hours is to be devoted by the Consultant on a weekly or monthly basis. The
Consultant may perform services under this Agreement directly, through its
employees or agents, or with such outside consultants as the Consultant may
engage for such purpose.
4. Compensation; Expense Reimbursement.
4.1 (a) In consideration of the management advisory services
provided by Consultant hereunder and other partners of TransWestern and
stockholders of the Company, TransWestern shall pay or cause to be paid a
management fee at a rate of $1,000,000 per annum during the Term (the
"Management Fee"). The Management Fee shall be paid in equal monthly
installments to the Consultant and the partners of TransWestern or their
respective Permitted Transferees (as defined below) as set forth on Exhibit "B"
attached hereto; provided, however, that (i) with respect to any individual
listed on Exhibit "B" who is an employee of or a consultant to TransWestern or
the Company on the Effective Date, upon any expiration or termination of such
individual's employment or consultant relationship with TransWestern or the
Company, all of such individual's rights to receive a portion of the Management
Fee hereunder shall immediately terminate and (ii) the right to receive a
portion of the Management Fee is not assignable or transferrable, except to a
Permitted Transferee. In the event of any sale, assignment or transfer by any
individual or entity listed on Exhibit "B" (a "Transferor") of their respective
post-recapitalization equity interests in the Partnership or the Company, other
than to a Permitted Transferee of such Transferor, (i) the portion of the
Management Fee payable to such Transferor shall be reduced in the same
proportion as such Transferor's equity interest is reduced by virtue of such
transfer, (ii) the total Management Fee payable hereunder each year thereafter
by TransWestern shall be reduced by the same amount and (iii) the portion of the
Management Fee payable to the non-Transferor individuals and entities listed on
Exhibit "B" hereto shall not be reduced or otherwise affected. As used herein,
the term "Permitted Transferee" shall mean (i) in the case of an individual, a
member of such individual's Family Group or a recipient pursuant to applicable
laws of devise and descent, or (ii) in the case of an entity, one or more
Affiliates of such entity. "Family Group" means an individual's spouse and
descendants (whether natural or adopted) and any trust solely for the benefit of
such individual and/or any of such individual's spouse or descendants.
"Affiliate" of an entity means any other person, entity or investment fund
controlling, controlled by or under common control with such entity and any
partner of such entity which is a partnership.
(b) TransWestern acknowledges and agrees that the other
partners of TransWestern identified on Exhibit "A" are intended third party
beneficiaries of the covenants and obligations of TransWestern pursuant to
Section 4.1(a). TransWestern acknowledges and agrees that said intended third
party beneficiaries may assert against TransWestern any and all rights and
benefits which have been covenanted or granted to said intended third party
beneficiaries and/or to which said intended third party beneficiaries may be
otherwise entitled under the terms of this Agreement and/or applicable law.
4.2 TransWestern shall reimburse the Consultant for all reasonable
out-of-pocket expenses incurred in connection with management advisory services
to be provided by the
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Consultant hereunder, including, without limitation, reasonable travel, lodging
and similar out-of-pocket costs reasonably incurred by it in connection with or
on account of its performance of services for TransWestern hereunder.
Reimbursement shall be made only upon presentation to TransWestern by the
Consultant of reasonably itemized documentation therefor.
5. Indemnification. In addition to its agreements and obligations
under this Agreement, TransWestern agrees to defend, indemnify and hold harmless
the Consultant and the person, entities or funds listed on Exhibit "A" hereto,
and their respective affiliates (including its officers, directors,
stockholders, partners, employees and agents) (individually and collectively,
the "Indemnified Parties") from and against any and all claims, liabilities,
losses and damages (or actions in respect thereof), in any way related to or
arising out of the performance by the Indemnified Parties of services under
Sections 1 and 3 of this Agreement (other than for expenses incurred described
in Section 4 hereof or for compensation for services rendered), and to reimburse
the Indemnified Parties for reasonable out-of-pocket legal and other expenses
incurred by it in connection with or relating to investigating, preparing to
defend, or defending any actions, claims or other proceedings (including any
investigation or inquiry) arising in any manner out of or in connection with
this Agreement (whether or not such indemnified person is a named party in such
proceeding); provided, however, that TransWestern shall not be responsible under
this Section 5 for any claims, liabilities, losses, damages or expenses to the
extent that they are finally judicially determined to result from actions taken
by the Indemnified Parties due primarily to the Indemnified Parties' gross
negligence or willful misconduct.
6. Notice. All notices hereunder, to be effective, shall be in
writing and shall be mailed by certified mail, postage prepaid as follows:
(i) If to the Consultant:
Thomas H. Lee Advisors, LLC
75 State Street
Boston, Massachusetts 02109
Attention: Mr. Scott A. Schoen
(ii) If to TransWestern:
TransWestern Holdings, L.P.
8344 Clairemont Mesa Blvd.
San Diego, California 92111
Attention: President
7. Modifications. This Agreement constitutes the entire agreement
between the parties hereto with regard to the subject matter hereof, superseding
all prior understandings and agreements whether written or oral. This Agreement
may not be amended or revised except by a writing signed by the parties;
provided, however, that Section 4.1 may not be amended without the written
consent of the intended third party beneficiaries described in Section 4.1(b).
8. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and
assigns but may not be assigned by either party without the prior written
consent of the other.
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9. Captions. Captions have been inserted solely for the
convenience of reference and in no way define, limit or describe the scope or
substance of any provision and shall not affect the validity of any other
provision.
10. Governing Law. This Agreement shall be construed under and
governed by the laws of the Commonwealth of Massachusetts, without reference to
its conflicts of law principles.
11. Counterparts. This Agreement may be signed in two
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement
as a sealed instrument as of the date first above written.
THOMAS H. LEE ADVISORS, LLC
By: /s/
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Name:
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Title:
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TRANSWESTERN HOLDINGS, L.P.
By: TRANSWESTERN COMMUNICATIONS
COMPANY, INC., its general partner
By: /s/ Laurence H. Bloch
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Name: Laurence H. Bloch
Title: Vice President