ADVISORY SERVICES AGREEMENT
THIS ADVISORY SERVICES AGREEMENT (the "Agreement") is entered into
as of this 21st day of September, 1995, by and between OSI Holdings Corp. (on
behalf of itself and its subsidiaries), a Delaware corporation (the "Company"),
and MDC Management Company III, L.P., a California limited partnership ("MDC").
WHEREAS, contemporaneously with the execution and delivery of this
Agreement the Company and certain subsidiaries of the Company have acquired all
of the partnership interests in Account Portfolios, L.P., Perimeter Credit, L.P.
and Gulf State Credit, L.P. (the "Acquisition"); and
WHEREAS, the execution and delivery of this Agreement is a material
condition to the consummation of the Acquisition.
NOW, THEREFORE, in consideration of the mutual promises of the
parties hereinafter set forth, MDC and the Company hereto agree as follows:
1. Retention as Management Advisor. Subject to each of the terms,
conditions and provisions of this Agreement, the Company and its subsidiaries
hereby retain MDC and MDC hereby agrees to be retained by the Company and its
subsidiaries to perform those financial and managerial functions set forth in
Section 4 of this Agreement.
2. Term.
2.1 Subject to the provisions for termination set forth herein, this
Agreement shall be from the date hereof through September 21, 2005, and
automatically renewable annually thereafter unless MDC receives 30 days notice
of the termination prior to the renewal date.
2.2 The Company, by written notice to MDC, authorized by a majority
of the directors other than those who are partners, principals or employees of
MDC (or an affiliate of MDC), may terminate this Agreement for justifiable
cause, which shall mean any of the following events: material breach by MDC of
any of its obligations hereunder; misappropriation by MDC of funds or property
of the Company or other willful breach in the course of the consultancy; any
attempt by MDC to secure personal profit related to the business of the Company
and not fairly disclosed to and approved by the Board of Directors or gross
neglect by MDC in the fulfillment of its obligations hereunder.
2.3 MDC, by thirty (30) days' prior written notice to the Company,
may terminate this Agreement at any time.
3. Compensation.
3.1 Upon execution and delivery of this Agreement, the Company shall
pay MDC a transaction fee of $1,600,000 for services rendered on behalf of the
Company and its subsidiaries in connection with the Acquisition.
3.2 As compensation to MDC for its management and advisory services
to the Company and its subsidiaries under this Agreement, the Company, on behalf
of itself and its subsidiaries, agrees to pay MDC a fee in the amount of three
hundred thousand dollars ($300,000) per year. Such fee shall be payable in
arrears in equal quarterly installments, on or before the last day of March,
June, September and December, commencing on December 31, 1995.
3.3 MDC shall also be entitled to be reimbursed by the Company for
all reasonable out-of-pocket costs and expenses incurred by MDC and any of its
partners, employees or affiliates in connection with (i) providing the Services
under this Agreement, or (ii) serving as a member of the Board of Directors or
as an officer of the Company including, without limitation, all travel expenses.
Reimbursement shall be provided upon receipt by the Company of invoices from MDC
with respect to such costs and expenses.
4. Duties as Management Advisor. MDC's duties as a financial and
management consultant to the Company and its subsidiaries under the provisions
of this Agreement shall include providing services in obtaining equity, debt,
lease and acquisition financing, as well as providing other financial and
consulting services for the operation and growth of the Company at any time
during the term of this Agreement (the "Services"). Such Services shall be
rendered upon the reasonable request of the Company. MDC shall devote as much
time as reasonably necessary to the affairs of the Company.
5. Decisions. The Company reserves the right to make all decisions
with regard to any matter upon which MDC has rendered its advice and
consultation, and there shall be no liability to MDC for any such advice
accepted by the Company pursuant to the provisions of this Agreement.
6. Authority of Management Advisor. MDC shall have authority only to
act as a consultant and advisor to the Company. MDC shall have no authority to
enter into any agreement or to make any representation, commitment or warranty
binding upon the Company or to obtain or incur any right, obligation or
liability on behalf of the Company.
7. Independent Contractor. Except as may be expressly provided
elsewhere in this Agreement, MDC shall act as an independent contractor and
shall have complete charge of its personnel engaged in the performance of the
Services.
8. Books and Records. MDC's books and records with respect to the
Services and any reimbursable costs ("Books and Records") shall be kept at MDC's
office located at 3000 Sand Hill Road, Building 3, Suite 290, Menlo Park,
California 94025. The Books and Records shall be kept in accordance with
recognized accounting principles and practices, consistently applied, and shall
be made available for the Company or the Company's representatives' inspection
and copying at all times during regular office hours. MDC shall not be required
to maintain the Books and Records for more than three (3) years after
termination of this Agreement.
9. Confidential Information.
9.1 The parties acknowledge that during the course of provision of
the Services, the Company may disclose confidential information to MDC or its
affiliated companies. MDC shall treat such information as the Company's
confidential property and safeguard and keep secret all such information about
the Company, including reports and records, customer lists, trade lists, trade
practices, and prices pertaining to the Company's business coming to the
attention or knowledge of MDC because of any activities conducted by MDC under
or pursuant to this Agreement.
9.2 MDC shall exercise its best efforts and shall cause any of its
affiliated companies to exercise their best efforts to prevent any confidential
information from being disclosed to third parties, except as necessarily
required in the performance of the Services and except under terms of
confidentiality satisfactory to the Company. This obligation shall remain in
effect until the Company shall release MDC or its affiliated companies from
their obligations under this paragraph 9, but in no event later than three (3)
years after the completion of the Services. MDC shall not use any of the
Company's confidential information in any way that is detrimental to the
interests of the Company, directly or indirectly, either during the term of this
Agreement or at any time thereafter.
10. Indemnification. The Company agrees to indemnify and hold MDC
and its partners, officers, directors and agents harmless from damages, losses
or expenses (including, without limitation, reasonable attorneys' fees and
expenses) incurred or paid directly or indirectly, by MDC as a result or arising
out of any actions taken by MDC in connection with the performance of the
Services under this Agreement except to the extent that such actions resulted
solely from the gross negligence or willful misconduct of MDC. The Company
hereby further agrees to reimburse MDC for all reasonable fees and expenses
(including attorneys fees) incurred in connection with defending any such claim
to which MDC is a party, as such fees and expenses are incurred by MDC.
11. Notices and Communications.
11.1 All communications relating to the day-to-day activities
necessary to render the Services shall be exchanged between the respective
representatives of the Company and MDC, who will be designated by the parties
promptly upon commencement of the Services.
11.2 All other notices, demands, and communications required or
permitted hereunder shall be in writing and shall be delivered personally to the
respective representatives of the Company and MDC set forth below or shall be
mailed by registered mail, postage prepaid, return receipt requested. Notices,
demands and communications hereunder shall be effective: (i) If delivered
personally, on delivery; or (ii) if mailed, forty-eight (48) hours after deposit
thereof in the United States mail addressed to the party to whom such notice,
demand, or communication is given. Until changed by written notice, all such
notices, demands and communications shall be addressed as follows:
If to the Company: OSI Holdings Corp.
c/o David B. Kreiss
5605 Lake Island Drive
Atlanta, GA 30327
Tel: (404) 250-0707
Fax: (404) 250-0707
If to MDC: McCown De Leeuw & Co.
101 East 52nd Street
31st Floor
New York, New York 10022
Attn: Mr. Tyler Zachem
Tel: (212) 355-5500
Fax: (212) 355-6283 or
(212) 355-6945
With copies to: McCown De Leeuw & Co.
3000 Sand Hill Road
Building 3, Suite 290
Menlo Park, CA 94025
Attn: Mr. Steven A.
Zuckerman
Tel: (415) 854-6000
Fax: (415) 854-0853
12. Assignments. MDC shall not assign this Agreement in whole or in
part without the prior written consent of the Company, provided, however, that
such consent shall not be unreasonably withheld with respect to assignments to
MDC's affiliates or wholly-owned subsidiaries; and provided further, that any
such assignment shall not relieve MDC of any of its obligations under this
Agreement.
Subject to the foregoing, all the terms and conditions contained
herein shall inure to the benefit of and shall be binding upon the parties
hereto and their respective heirs, personal representatives, successors and
assigns.
13. Applicable Law and Severability. This document shall, in all
respects, be governed by the laws of the State of Delaware applicable to
agreements executed and to be wholly performed within the State of Delaware.
Nothing contained herein shall be construed so as to require the commission of
any act contrary to law, and wherever there is any conflict between any
provisions contained herein and any contrary present or future statute, law,
ordinance or regulation, the latter shall prevail, but the provision of this
document which is affected shall be curtailed and limited only to the extent
necessary to bring it within the requirements of the law.
14. Further Assurances. Each of the parties hereto shall execute and
deliver any and all additional papers, documents and other assurances, and shall
do any and all acts and things reasonably necessary in connection with the
performance of their obligations hereunder and to carry out the intent of the
parties hereto.
15. Attorneys' Fees. In the event any action is instituted by a
party to enforce any of the terms and provisions contained herein, the
prevailing party in such action shall be entitled to such reasonable attorneys'
fees, costs and expenses as may be fixed by the court.
16. Time of the Essence. Time is of the essence of this Agreement
and all the terms, provisions, covenants and conditions hereof.
17. Captions. The captions appearing at the commencement of the
paragraphs hereof are descriptive only and for convenience and reference. Should
there be any conflicts between any such caption and the paragraph at the head of
which it appears, the paragraph and not such caption shall control and govern in
the construction of this document.
18. Modifications or Amendments. No amendment, change or
modification of this document shall be valid unless it is in writing and signed
by all the parties hereto and expressly states that an amendment, change or
modification of this Agreement is intended.
19. Separate Counterparts. This document may be executed in one or
more separate counterparts, each of which, when so executed, shall be deemed to
be an original. Such counterparts shall, together, constitute and be one and the
same instrument.
20. Entire Agreement. This Agreement shall constitute the entire
understanding and agreement between the parties hereto and shall supersede any
and all letters of intent, whether written or oral, pertaining to the subject
matter of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers on the date first appearing above.
OSI HOLDINGS CORP.
By: /s/ David B. Kreiss
---------------------------
Name: David B. Kreiss
Title: President
MDC MANAGEMENT COMPANY III, L.P.,
a California limited partnership
By: /s/ David E. King
---------------------------
General Partner
ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT (this "Agreement"), dated as of December 10,
1999, is by and between Madison Dearborn Partners, Inc. ("MDP"), Outsourcing
Solutions Inc. (f/k/a Outsourcing Holdings Corp.) ("OSI") and MDC Management
Company III, L.P. ("MDC").
Reference is made to the Advisory Services Agreement dated as of
September 21, 1995 (the "Advisory Services Agreement"), by and between OSI and
MDC. Capitalized terms not otherwise defined in this Instrument shall have the
meanings given to such terms in the Advisory Services Agreement.
In accordance with its rights under Section 12 of the Advisory Services
Agreement, MDC wishes to (i) assign all of its rights in, to and under the
Advisory Services Agreement to MDP and (ii) designate MDP as MDC under the
Advisory Services Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby covenant
and agree as follows:
1. Assignment and Assumption.
(a) MDC hereby assigns to MDP all of its obligations with
respect to and arising from the performance of advisory
services to OSI after the date hereof and all of its rights
under the Advisory Services Agreement, including, without
limitation, MDC's right to receive the fee set forth in
Section 3.2 of the Advisory Services Agreement.
Notwithstanding the foregoing, MDC's obligation under the
confidentiality provisions set forth in Section 9 of the
Advisory Services Agreement shall expire on the first
anniversary of the date hereof with respect to OSI
information obtained prior to the date hereof.
(b) MDP hereby accepts the foregoing assignment of MDC's rights
and hereby assumes all of MDC's obligations to perform
advisory services under the Advisory Services Agreement
after the date hereof and assumes all obligations arising
from the performance of such services.
(c) OSI hereby consents to MDC's assignment of its rights under
the Advisory Services Agreement to MDP and accepts MDP's
assumption of the obligation to perform advisory services
under the Advisory Services Agreement after the date hereof.
Notwithstanding anything to the contrary contained in
Section 12 of the Advisory Services Agreement, OSI hereby
agrees that after MDC's assignment of its rights under the
Advisory Services Agreement to MDP, MDC shall be relieved of
all of its obligations under the Advisory Services
Agreement.
2. OSI hereby represents and warrants to MDP and MDC as follows:
(a) OSI has full power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. The
execution, delivery and performance of this Agreement by OSI
has been duly authorized and approved by its Board of
Directors and no other corporate action on the part of OSI
is necessary to authorize the execution, delivery and
performance of this Agreement by OSI. This Agreement has
been duly executed and delivered by OSI and, assuming the
due execution and delivery of this Agreement by MDP and MDC,
is a valid and binding obligation of OSI enforceable against
OSI in accordance with its terms.
(b) The execution and delivery of this Agreement by OSI will
not: (1) violate any provision of the Certificate of
Incorporation or By-Laws of OSI or the comparable governing
documents of any of its Subsidiaries; (2) violate any
statute, ordinance, rule, regulation, order or decree of any
court or of any governmental or regulatory body, agency or
authority applicable to OSI or any of its Subsidiaries or by
which any of their respective properties or assets may be
bound; (3) require any filing with, or permit, consent or
approval of, or the giving of any notice to, or obtaining
any new or additional licenses from any governmental or
regulatory body, agency or authority; and (4) except as set
forth in Section 3.01(d) of the Company's disclosure letter,
result in a violation or breach of, conflict with,
constitute (with or without due notice or lapse of time or
both) a material default (or give rise to any right of
termination, cancellation, payment or acceleration) under,
or result in the creation of any encumbrance upon any of the
properties or assets of OSI or any of its Subsidiaries
under, any of the terms, conditions or provisions of any
license, franchise, permit, agreement, lease, or other
instrument or obligation to which OSI or any of its
Subsidiaries is a party, or by which it or any of their
respective properties or assets are bound or subject.
(c) OSI and MDC have each fully performed all of its obligations
under the Advisory Services Agreement to date and neither is
in breach of such agreement.
3. MDC does hereby represent and warrant to MDP and OSI as follows:
(a) MDC has full power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. The
execution, delivery and performance of this Agreement by MDC
has been duly authorized by MDC and no other partnership
action on the part of MDC is necessary to authorize the
execution, delivery and performance of this Agreement by
MDC. This Agreement has been duly executed and delivered by
MDC and, assuming the due execution and delivery of this
Agreement by MDP and OSI, is a valid and binding obligation
of MDC enforceable against MDC in accordance with its terms.
(b) The execution and delivery of this Agreement by MDC will
not: (1) violate any provision of the Certificate of Limited
Partnership or By-Laws of MDC; or (2) require any filing
with, or permit, consent or approval of, or the giving of
any notice to, or obtaining any new or additional licenses
from any governmental or regulatory body, agency or
authority.
(c) MDC and OSI have each fully performed all of its obligations
under the Advisory Services Agreement to date and neither is
in breach of such agreement.
4. MDP represents and warrants to MDC and OSI as follows:
(a) MDP has all requisite partnership power and authority to
execute and deliver this Agreement and to perform its
obligations hereunder. The execution delivery and
performance of this Agreement by MDP has been duly
authorized by MDP. No other action on the part of MDP (or
its partners) is necessary to authorize the execution,
delivery and performance of this Agreement by MDP. This
Agreement has been duly executed and delivered by MDP and
assuming the due execution and delivery of this Agreement by
OSI and MDC, is a valid and binding obligation of MDP,
enforceable against MDP in accordance with its terms.
(b) The execution and delivery of this Agreement by MDP will
not: (1) violate any provision of the Certificate of Limited
Partnership or By-Laws of MDP; or (2) require any filing
with, or permit, consent or approval of, or the giving of
any notice to, or obtaining any new or additional licenses
from any governmental or regulatory body, agency or
authority.
5. This Agreement is executed and delivered pursuant to Sections 18
("Modifications or Amendments") and 12 ("Assignments") of the
Advisory Services Agreement. From the date hereof, all references
to MDC in the Advisory Services Agreement shall be deemed to be
references to MDP.
6. The first sentence of Section 3.2 shall be deleted and replaced with the
following:
As compensation to MDP for its management and advisory
services to the Company and its subsidiaries under this
Agreement, the Company, on behalf of itself and its subsidiaries,
agrees to pay MDP a fee in the amount of five hundred thousand
dollars ($500,000) per year.
1. Section 11.2 of the Advisory Services Agreement shall be amended to read
as follows:
11.2 All other notices, demands, and communications
required or permitted hereunder shall be in writing and shall be
delivered personally to the respective representatives of the
Company and MDP set forth below or shall be mailed by registered
mail, postage prepaid, return receipt requested. Notices, demands
and communications hereunder shall be effective: (i) if delivered
personally, on delivery; or (ii) if mailed, forty-eight (48)
hours after deposit thereof in the United States mail addressed
to the party to whom such notice, demand, or communication is
given. Until changed by written notice, all such notices, demands
and communication shall be addressed as follows:
If to the Company: Outsourcing Solutions Inc.
390 South Woods Mill Road
Suite 350
Chesterfield, Missouri 63017
Attention: Eric Fencl, Esq.
General Counsel
Phone: (314) 576-0022
Fax: (314) 576-1867
If to MDP: Madison Dearborn Partners, Inc.
Suite 3800
Three First National Plaza
Chicago, IL 60602
Attention: Timothy Hurd
Phone: (312) 895-1170
Fax: (312) 895-1156
with a copy to:
Kirkland & Ellis
200 E. Randolph
Chicago, IL 60601
Attention: Michael H. Kerr, P.C.
Phone: (312) 861-2000
Fax: (312) 861-2200
1. This Agreement may be executed in one or more counterparts, all
of which shall be considered one and the same Agreement, and
shall become effective when one or more of such counterparts have
been signed by each of the parties and delivered to the other
party.
1. This Agreement shall be governed by, performed, construed and
enforced in accordance with the laws of the State of New York,
without giving effect to any choice of law or conflict of law
rules or provisions (whether of the State of New York or any
other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be duly executed as of the day and year first above written.
MADISON DEARBORN PARTNERS, INC.
By: /s/ Paul R. Wood
----------------------------------------
Its:
MDC MANAGEMENT COMPANY III, L.P.
By: /s/
----------------------------------------
Its:
OUTSOURCING SOLUTIONS INC.
By: /s/ Eric R. Fencl
----------------------------------------
Its: