EXHIBIT 10.7
EXECUTION COPY
MANAGEMENT ADVISORY AGREEMENT
This Management Advisory Agreement (this "Agreement") is entered into as
of the 25th day of March, 2004 by and between AAC Holding Corp., a Delaware
corporation ("Holdings"), American Achievement Corporation, a Delaware
corporation (the "Company") and Fenway Partners, Inc., a Delaware corporation
("Fenway").
WHEREAS, Fenway has provided advisory and other services to Holdings and
the Company in connection with the acquisition by funds affiliated with Fenway
(the "Fenway Funds") of the Company (the "Acquisition"), the senior secured
financing (the "Senior Financing") being provided for the Acquisition pursuant
to a Credit Agreement dated on or about the date hereof by Goldman Sachs Credit
Partners L.P. as lead arranger, syndication agent and administrative agent and
the lending institutions from time to time party thereto, and the high yield
financing (the "High Yield Financing") being provided for the Acquisition
pursuant to a Purchase Agreement dated on or about the date hereof by Goldman
Sachs & Co. and Deutsche Bank Securities, Inc., as initial purchasers
thereunder;
WHEREAS, subject to the terms and conditions of this Agreement, Holdings
and the Company desire to retain Fenway to provide certain management and
advisory services to Holdings and the Company, and Fenway desires to provide
such services;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. SERVICES. Fenway hereby agrees that, during the term of this Agreement
specified in Section 3 hereof (the "Term"), it will:
a. provide Holdings and the Company with financial, managerial and
operational advice in connection with its day-to-day operations,
including, without limitation: advice with respect to the
development and implementation of strategies for improving the
operating, marketing and financial performance of Holdings and the
Company; and
b. provide Holdings and the Company with advice in connection with the
negotiation and consummation of recapitalizations, restructurings,
financings, refinancings, mergers, acquisitions, consolidations and
dispositions (including without limitation the sale of all or a
substantial portion of the assets or equity of Holdings, the Company
and/or any of their direct or indirect subsidiaries (collectively,
the "Subsidiaries")), however structured (any such transaction, a
"Significant Transaction").
Fenway shall devote such time and effort to the performance of the services
contemplated hereby as Fenway deems reasonably necessary or appropriate;
provided, however, that this Agreement
shall not require Fenway to devote any minimum number of hours to the
performance of such services on a weekly, monthly, annual or other basis.
Holdings and the Company each understand and acknowledge that Fenway's services
are not exclusive and that Fenway will render similar services to other persons
and entities. Fenway, Holdings and the Company each understand and acknowledge
that Holdings and the Company may from time to time engage one or more
investment bankers or financial advisers to provide services in addition to, but
not in lieu of, services provided by Fenway under this Agreement. In providing
services to the Company, Fenway will act as an independent contractor and it is
expressly understood and agreed that this Agreement is not intended to create,
and does not create, any partnership, agency, joint venture or similar
relationship and that neither party has the right or ability to contract for or
on behalf of the other party or to effect any transaction for the account of the
other. It is expressly agreed that the services to be performed hereunder shall
not include the full or part-time employment by any of Holdings, the Company or
their Subsidiaries of any employee of Fenway or any of its affiliates, in each
case, for which Fenway and/or such affiliate shall be entitled to receive
additional consideration.
2. PAYMENT OF FEES. The Company hereby agrees to:
a. pay to Fenway (or its designee) a fee in the amount of $4,650,750 in
connection with the structuring of the Acquisition, the Senior
Financing and the High Yield Financing, together with reimbursement
of Fenway's expenses incurred in connection therewith or otherwise
on behalf of Holdings and the Company through the closing date of
the Acquisition, such fees and expenses being payable by the Company
in cash at the closing of the Acquisition;
b. during the Term, pay to Fenway (or its designee) management fees as
follows (subject to adjustment as provided below): for each fiscal
year, an amount equal to the greater of (i) $3,000,000 and (ii) 5%
of EBITDA for the immediately preceding fiscal year or such other
amount (or formula) as may be mutually agreed among Holdings, the
Company and Fenway (the "Management Fee Amount"), in each case in
exchange for the services provided to Holdings and the Company by
Fenway as described in Section 1(a) of this Agreement, such fees
being payable by Holdings and the Company quarterly in advance, the
first such payment to be made on the first day of the first fiscal
quarter of the Company following the closing of the Acquisition
(which such first payment shall also include a portion of such
annual fee payable in respect of the period from the closing to such
initial payment date, pro rated based on the number of days from the
closing to such initial payment date); provided, however, that each
payment of management fees in respect of the first fiscal quarter of
each fiscal year of the Company shall be $750,000, and each payment
in respect of the immediately following fiscal quarter shall
include, in addition to the payment in respect of such fiscal
quarter, an amount equal to the excess, if any, of (x) the amount
payable in respect of each fiscal quarter of such fiscal year
determined on the basis of the Management Fee Amount for such fiscal
year over (y) $750,000; and provided, further, that the annual fee
specified in this Section 2(b) shall not be paid, but shall accrue
(together with interest thereon at rate of 8% per annum, compounded
quarterly, for the period from the date upon which payment would
otherwise be
due to the date upon which payment is finally made), if and for so
long as the payment thereof would constitute an event of default
under any agreement, instrument or other document relating to
indebtedness for borrowed money of the Company having an aggregate
outstanding principal amount in excess of $5,000,000;
c. during the Term, in exchange for the services provided to Holdings
and the Company by Fenway in connection with each Significant
Transaction as described in Section 1(b) of the Agreement, pay to
Fenway (or its designee) a fee in an amount customarily charged by
Fenway in connection with transactions of similar type and size;
provided, however, that in each case such fee shall not exceed the
greater of (i) $1,000,000 and (ii) 1.5% of the gross transaction
value of such Significant Transaction (including the aggregate
amount of all liabilities assumed in connection therewith), together
with reimbursement of Fenway's expenses incurred in connection with
such transaction or otherwise on behalf of Holdings and the Company
through the closing date of such transaction, such fees and expenses
being payable by the Company at the closing of such transaction;
Each payment made pursuant to this Section 2 shall be paid by wire
transfer of immediately available federal funds to such account(s) as
Fenway may specify to the Company in writing prior to such payment. For
purposes of this Agreement, "EBITDA" shall have the meaning ascribed to
such term in the Senior Financing documentation, as the same may be
amended, modified, supplemented or replaced.
3. TERM. This Agreement shall continue in full force and effect, unless and
until terminated by mutual consent of the parties, for a minimum of ten years;
and thereafter for so long as Fenway (or any successor or permitted assign, as
the case may be) continues to carry on the business of providing services of the
type described in Section 1 above; provided, however, that:
a. either party may terminate this Agreement following a material
breach of the terms of this Agreement by the other party hereto and
a failure to cure such breach within 30 days following written
notice thereof; and
b. each of (i) the obligations of the Company under Section 4(a) below,
(ii) any and all accrued and unpaid obligations of the Company owed
under Section 2 above and (iii) the provisions of Sections 4(b), 7
and 11 below shall survive any termination of this Agreement to the
maximum extent permitted under applicable law.
4. EXPENSES; INDEMNIFICATION.
a. Expenses. Whether or not the Acquisition or any of the other
transactions contemplated by this Agreement or any other agreement
executed in connection herewith are consummated, the Company agrees
to pay on demand all expenses incurred by Fenway and the Fenway
Funds (i) in connection with the preparation, negotiation and
execution of this Agreement and any other agreement executed in
connection herewith or in connection with the Acquisition, the
Senior Financing,
the High Yield Financing or the consummation of the other
transactions contemplated hereby or thereby (and any and all
amendments, modifications, restructurings, waivers and exercises and
preservations of rights and remedies hereunder or thereunder), (ii)
relating to the operations of, or services provided by Fenway to,
Holdings, the Company or their Subsidiaries or affiliates from time
to time or (iii) otherwise in any way relating to or arising out of
Holdings, the Company or the Fenway Funds' investment in Holdings,
including but not limited to:
i. the fees and disbursements of: (A) Ropes & Gray LLP, counsel
to Fenway and the Fenway Funds, (B) Ernst & Young, accountant
to Fenway and the Fenway Funds, and (C) any other consultants
or advisors retained by Fenway, the Fenway Funds or either of
the parties identified in clauses (A) and (B) above in
connection with the services to be provided hereunder; and
ii. all out-of-pocket expenses incurred by Fenway in connection
with its provision of services hereunder and its
representatives' attendance at any meeting of the board of
directors (or any committee thereof) of Holdings, the Company
or any of their Subsidiaries.
b. Indemnity. Holdings and the Company hereby agree to indemnify,
exonerate and hold each of Fenway, the Fenway Funds, and each of
their respective partners, shareholders, affiliates, directors,
officers, fiduciaries, employees and agents and each of the
partners, shareholders, affiliates, directors, officers,
fiduciaries, employees and agents of each of the foregoing
(collectively, the "Indemnitees") free and harmless from and against
any and all actions, causes of action, suits, losses, liabilities
and damages, and expenses in connection therewith, including without
limitation reasonable attorneys' fees and disbursements
(collectively, the "Indemnified Liabilities"), incurred by the
Indemnitees or any of them as a result of, or arising out of, or in
any way relating to (i) this Agreement, the Acquisition, the Fenway
Funds' investment in Holdings and all transactions related to the
foregoing or (ii) the operations of, or services provided by Fenway
to, Holdings, the Company or their Subsidiaries and affiliates from
time to time (including but not limited to any indemnification
obligations assumed or incurred by any Indemnitee to or on behalf of
Holdings, the Company, any of their Subsidiaries or any of the
accountants or other representatives, agents or affiliates of any of
the foregoing) except for any such Indemnified Liabilities arising
on account of such Indemnitee's gross negligence or willful
misconduct, and if and to the extent that the foregoing undertaking
may be unenforceable for any reason, Holdings and the Company hereby
agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
5. ASSIGNMENT, ETC. Neither party shall have the right to assign this Agreement;
provided, however, that notwithstanding the foregoing prohibition, (a) Fenway
may assign all or part of its rights and obligations hereunder to any affiliate
of Fenway which provides services similar to
those called for by this Agreement, in which event Fenway shall be released of
all of its rights and obligations hereunder, and (b) the provisions hereof for
the benefit of the Fenway Fund shall inure to the benefit of their successors
and assigns.
6. AMENDMENTS AND WAIVERS. No amendment or waiver of any term, provision or
condition of this Agreement shall be effective, unless in writing and executed
by each of Fenway and the Company. No waiver on any one occasion shall extend to
or effect or be construed as a waiver of any right or remedy on any future
occasion. No course of dealing of any person nor any delay or omission in
exercising any right or remedy shall constitute an amendment of this Agreement
or a waiver of any right or remedy of any party hereto.
7. MISCELLANEOUS.
a. Choice of Law. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of the State of New
York without giving effect to any choice or conflict of law
provision or rule that would cause the application of the domestic
substantive laws of any other jurisdiction.
b. Consent to Jurisdiction. Each of the parties agrees that all
actions, suits or proceedings arising out of or based upon this
Agreement or the subject matter hereof shall be brought and
maintained exclusively in the federal and state courts of the State
of New York. Each of the parties hereto by execution hereof (i)
hereby irrevocably submits to the jurisdiction of the federal and
state courts in the State of New York for the purpose of any action,
suit or proceeding arising out of or based upon this Agreement or
the subject matter hereof and (ii) hereby waives to the extent not
prohibited by applicable law, and agrees not to assert, by way of
motion, as a defense or otherwise, in any such action, suit or
proceeding, any claim that it is not subject personally to the
jurisdiction of the above-named courts, that it is immune from
extraterritorial injunctive relief or other injunctive relief, that
its property is exempt or immune from attachment or execution, that
any such action, suit or proceeding may not be brought or maintained
in one of the above-named courts, that any such action, suit or
proceeding brought or maintained in one of the above-named courts
should be dismissed on grounds of forum non conveniens, should be
transferred to any court other than one of the above-named courts,
should be stayed by virtue of the pendency of any other action, suit
or proceeding in any court other than one of the above-named courts,
or that this Agreement or the subject matter hereof may not be
enforced in or by any of the above-named courts. Each of the parties
hereto hereby consents to service of process in any such suit,
action or proceeding in any manner permitted by the laws of the
State of New York, agrees that service of process by registered or
certified mail, return receipt requested, at the address specified
in or pursuant to Section 9 is reasonably calculated to give actual
notice and waives and agrees not to assert by way of motion, as a
defense or otherwise, in any such action, suit or proceeding any
claim that service of process made in accordance with Section 9 does
not constitute good and sufficient service of process. The
provisions of this Section 7(b) shall not restrict the ability of
any party to enforce in any court any judgment obtained in a federal
or state court of the State of New York.
c. Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO HEREBY WAIVES,
AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF,
DEFENDANT, OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN
RESPECT OF ANY ISSUE, CLAIM, DEMAND, CAUSE OF ACTION, ACTION, SUIT
OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE
SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING AND WHETHER IN CONTRACT OR TORT OR OTHERWISE. Each
of the parties hereto acknowledges that it has been informed by each
other party that the provisions of this Section 7(c) constitute a
material inducement upon which such party is relying and will rely
in entering into this Agreement and the transactions contemplated
hereby. Any of the parties hereto may file an original counterpart
or a copy of this Agreement with any court as written evidence of
the consent of each of the parties hereto to the waiver of its right
to trial by jury.
8. MERGER/ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof and supersedes any prior
communication or agreement with respect thereto.
9. NOTICE. All notices, demands, and communications of any kind which any party
may require or desire to serve upon any other party under this Agreement shall
be in writing and shall be served upon such other party and such other party's
copied persons as specified below by personal delivery to the address set forth
for it below or to such other address as such party shall have specified by
notice to each other party or by mailing a copy thereof by certified or
registered mail, or by Federal Express or any other reputable overnight courier
service, postage prepaid, with return receipt requested, addressed to such party
and copied persons at such addresses. In the case of service by personal
delivery, it shall be deemed complete on the first business day after the date
of actual delivery to such address. In case of service by mail or by overnight
courier, it shall be deemed complete, whether or not received, on the third day
after the date of mailing as shown by the registered or certified mail receipt
or courier service receipt. Notwithstanding the foregoing, notice to any party
or copied person of change of address shall be deemed complete only upon actual
receipt by an officer or agent of such party or copied person.
If to Holdings or the Company, to it at:
American Achievement Corporation
7211 Circle S Road
Austin, TX 78745
Attention: David G. Fiore
With a copy to:
Fenway Partners, Inc.
152 West 57th Street
New York, New York 10019
Attention: Richard C. Dresdale
If to Fenway, to it at:
Fenway Partners, Inc.
152 West 57th Street
New York, New York 10019
Attention: Richard C. Dresdale
With a copy to:
Ropes & Gray LLP
One International Place
Boston, Massachusetts 02110
Attention: C. Todd Boes
10. SEVERABILITY. If in any judicial or arbitral proceedings a court or
arbitrator shall refuse to enforce any provision of this Agreement, then such
unenforceable provision shall be deemed eliminated from this Agreement for the
purpose of such proceedings to the extent necessary to permit the remaining
provisions to be enforced. To the full extent, however, that the provisions of
any applicable law may be waived, they are hereby waived to the end that this
Agreement be deemed to be valid and binding agreement enforceable in accordance
with its terms, and in the event that any provision hereof shall be found to be
invalid or unenforceable, such provision shall be construed by limiting it so as
to be valid and enforceable to the maximum extent consistent with and possible
under applicable law.
11. DISCLAIMER AND LIMITATION OF LIABILITY.
a. Disclaimer. Fenway makes no representations or warranties, express
or implied, in respect of the services to be provided by it
hereunder.
b. Standard of Care. In no event shall Fenway or any other Indemnitee
be liable to Holdings, the Company or any of their Subsidiaries or
affiliates for (i) any act, alleged act, omission or alleged
omission on the part of Fenway or such Indemnitee that does not
constitute gross negligence or willful misconduct as determined by a
final, non-appealable determination of a court of competent
jurisdiction or (ii) any indirect, special, incidental or
consequential damages, including lost profits or savings, whether or
not such damages are foreseeable, or for any third party claims
(whether based in contract, tort or otherwise), relating to the
services to be provided by Fenway hereunder.
c. Freedom to Pursue Opportunities, Etc. In anticipation that Holdings,
the Company, their Subsidiaries and Fenway (or one or more
affiliates, associated investment funds or portfolio companies of
Fenway) may engage in the same or similar activities or lines of
business and have an interest in the same areas of corporate
opportunities and in recognition of the difficulties which may
confront
any advisor who desires and endeavors fully to satisfy such
advisor's duties in determining the full scope of such duties in any
particular situation, the provisions of this clause (c) are set
forth to regulate, define and guide the conduct of certain affairs
of Holdings, the Company and their Subsidiaries as they may involve
Fenway. Except as Fenway may otherwise agree in writing after the
date hereof:
i. Fenway and each of its officers, directors, employees,
partners, affiliates and associated entities shall have the
right to, and shall have no duty (contractual or otherwise)
not to, directly or indirectly: (A) engage in the same or
similar business activities or lines of business as Holdings,
the Company or any of their Subsidiaries, including those
competing with Holdings, the Company or any of their
Subsidiaries, and (B) do business with any client or customer
of Holdings, the Company or any of their Subsidiaries;
ii. Neither Fenway nor any officer, director, employee, partner,
affiliate or associated entity thereof shall be liable to
Holdings, the Company or any of their Subsidiaries or
affiliates for breach of any duty (contractual or otherwise)
by reason of any such activities of or of such person's
participation therein; and
iii. In the event that Fenway acquires knowledge of a potential
transaction or matter that may be a corporate opportunity for
Holdings, the Company, their Subsidiaries or any other person,
Fenway shall have no duty (contractual or otherwise) to
communicate or present such corporate opportunity to Holdings,
the Company or any of their Subsidiaries and, notwithstanding
any provision of this Agreement to the contrary, shall not be
liable to Holdings, the Company or any of their Subsidiaries
or any of their affiliates for breach of any duty (contractual
or otherwise) by reason of the fact that Fenway directly or
indirectly pursues or acquires such opportunity for itself,
directs such opportunity to another person, or does not
present such opportunity to Holdings, the Company or any of
their Subsidiaries.
12. CONFIDENTIALITY. Holdings and the Company agree that, at the request of
Fenway, they will not disclose any confidential information provided to Holdings
and/or the Company by Fenway in connection with a potential acquisition,
investment or similar transaction, and will agree to be bound by any
confidentiality agreement entered into by Fenway in respect of such confidential
information.
13. COUNTERPARTS. This Agreement may be executed in any number of counterparts
and by each of the parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
[The remainder of this page intentionally left blank]
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf as an instrument under seal as of the date first above
written by its officer or representative thereunto duly authorized.
HOLDINGS: AAC HOLDING CORP.
By _______________________________
Title:
THE COMPANY: AMERICAN ACHIEVEMENT CORPORATION
By _______________________________
Title:
FENWAY: FENWAY PARTNERS, INC.
By _______________________________
Title: