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EXHIBIT 10.32
MANAGEMENT ADVISORY AGREEMENT
Management Advisory Agreement (the "AGREEMENT"), dated as of July 1,
1992, between OMI Partnership Holdings Ltd., a corporation organized under the
laws of the province of Ontario, Canada ("OMI"), and ProSource Services
Corporation (f/k/a BKDA Corporation), a Delaware corporation ("PROSOURCE").
ProSource desires to memorialize the basis on which it engages OMI to
provide services to it and its affiliates (collectively, the "COMPANY"), on the
terms set forth herein.
The parties, intending to be legally bound, hereby agree as follows:
1. Services. ProSource hereby engages OMI to provide advisory services
to the Company in connection with:
(a) strategic planning;
(b) the identification of financing, acquisition and
divestiture opportunities and assistance with respect
to such matters; and
(c) other financial matters in which OMI has acquired
expertise, as OMI and the Board of Directors of
ProSource may from time to time agree.
2. Term. This Agreement shall commence on July 1, 1992 and continue
until terminated by a writing executed by both parties hereto.
3. Fees and Expenses.
(a) As compensation for OMI's advisory services rendered pursuant to
this Agreement, ProSource shall pay to OMI $750,000 per fiscal year, subject to
increase beginning in the 1993 fiscal year of ProSource by a percentage equal to
the year-over-year change in the most recently published Consumer Price Index
for all Urban Consumers, National Average, as published by the United States
Department of Labor. Fees shall be payable in advance in equal quarterly
installments on the first day of each fiscal quarter or at such other times as
the parties may agree. In addition, OMI shall be entitled to such additional
compensation for services rendered in connection with any specific transaction
as may be agreed upon with respect to such transaction by the parties hereto. In
the event that ProSource is prohibited from paying such fee under the terms of
the Loan and Security Agreement, dated as of June 30, 1992, among ProSource, the
financial institutions party thereto from time to time and NationsBank of
Georgia, N.A., as agent, any amendments, supplements or modifications thereto or
any refinancings thereof (the "Loan Agreement"), it shall not constitute a
default hereunder. In such case, such fee shall be due and payable on the first
date such fee is permitted to be paid under the Loan Agreement and shall accrue
interest at a rate equal to the average rate of interest on the Company's senior
debt.
(b) ProSource shall promptly reimburse OMI for all reasonable
out-of-pocket costs and expenses incurred thereby and by its representatives in
connection with the performance of its services hereunder.
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4. Indemnity. ProSource shall indemnify and hold harmless OMI and its
controlling persons, stockholders, partners, directors, officers, agents and
employees, to the full extent lawful, from and against any losses, claims,
damages or liabilities related to or arising out of this Agreement or OMI's role
in connection herewith, including related activities prior to the date hereof,
and shall promptly reimburse OMI and any other party entitled to be indemnified
hereunder for all reasonable out-of-pocket expenses (including counsel fees and
expenses) as incurred by OMI or any such party in connection with investigating,
preparing or defending any such claim, whether or not in connection with pending
or threatened litigation in which OMI or any other party entitled to be
indemnified hereunder is a party. ProSource will not, however, be responsible
for any claims, liabilities, losses, damages or expenses which are finally
judicially determined to have resulted primarily from OMI's wilful misconduct or
gross negligence. If such indemnification is for any reason not available, the
parties shall contribute to the losses, claims, damages and liabilities involved
in such proportion as it is appropriate to reflect the relative benefits
received (or anticipated to be received) by the parties from the actual and
proposed transactions giving rise to or contemplated by this Agreement as well
as other possible considerations such as the relative fault of the parties.
Under no circumstances shall OMI and the other parties entitled to be
indemnified hereunder be responsible for any amounts in excess of the amount of
any fees received by OMI. The foregoing agreement shall be in addition to any
rights that OMI or any indemnified party may have at common law or otherwise.
ProSource shall not, without OMI's prior consent, settle or compromise
any pending or threatened claim, action or suit in respect of which
indemnification or contribution may be sought hereunder unless the foregoing
contains an unconditional release of OMI and any other party entitled to be
indemnified hereunder from all liability and obligation arising therefrom. OMI
shall have no liability to ProSource arising out of or in connection with this
Agreement unless a loss results to ProSource that is finally judicially
determined to have resulted primarily from OMI's wilful misconduct or gross
negligence. ProSource hereby consents to personal jurisdiction, service and
venue in any court in which any claim which is subject to this Agreement is
brought against OMI or any other party entitled to be indemnified hereunder. Any
right to trial by jury with respect to any claim or action arising out of or
contemplated by this Section is hereby waived. The provisions of this Section
shall survive the expiration of this Agreement.
5. Notices. Any notice required or permitted to be given hereunder
shall be in writing and shall be deemed sufficient if (a) delivered in person,
(b) mailed by certified mail, (c) delivered by Federal Express or other
overnight courier or (d) sent by facsimile transmission, with a copy sent
simultaneously by the United States mail as follows:
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If to ProSource, to:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman of the Board
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇, Scholer, Fierman, ▇▇▇▇ & Handler, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to OMI, to:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇, Scholer, Fierman, ▇▇▇▇ & Handler, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Either party, by written notice to the other party hereto, may designate
additional or different addresses for subsequent notices or communications.
6. Permissible Activities. Nothing herein shall in any way preclude OMI
from engaging in any business activities or from performing services for its own
account or for the account of others.
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7. Amendments. This Agreement supersedes all prior agreements among the
parties with respect to its subject matter, is intended as a complete and
exclusive statement of the terms of the agreement among the parties with respect
thereto and cannot be changed or terminated orally. The failure of a party to
insist upon strict adherence to any term of this Agreement on any occasion shall
not be considered a waiver or deprive that party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement. A
waiver by any party of any breach of this Agreement shall not operate or be
construed as a waiver of any subsequent breach. Any waiver must be in writing.
8. Miscellaneous. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and of their respective successors and permitted
assigns, including any corporation into which either of the parties shall
consolidate or merge or to which either of them shall transfer substantially all
of its assets. This Agreement may be assigned by OMI only, including, without
limitation, assignment to any affiliate of OMI. This Agreement shall be governed
by and construed in accordance with the laws of the province of Ontario, Canada
applicable to contracts made and to be performed entirely within such province.
9. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which taken together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Agreement by telecopier
shall be effective as delivery of a manually executed signature page hereto.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
OMI PARTNERSHIP HOLDINGS LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
PROSOURCE SERVICES CORPORATION
By: \s\ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Title: Vice President, Treasurer
and Secretary
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