ADVISORY SERVICES AGREEMENT
This Advisory Services Agreement (this "Agreement"), dated as of July __,
2002 but effective as of January 1, 2002, among Universal City Development
Partners, Ltd., a Florida limited partnership (the "Company"), Vivendi Universal
Entertainment LLLP, a Delaware limited liability limited partnership
("Universal"), and Blackstone Management Partners L.P., a Delaware limited
partnership ("Blackstone").
WHEREAS, Blackstone, by and through itself, its affiliates and their
respective officers, employees and representatives, has expertise in the areas
of management, finance, strategy, investment, acquisitions and other matters
relating to the business of the Company; and
WHEREAS, Universal, by and through itself, its affiliates and their
respective officers, employees and representatives, has expertise in the areas
of management, finance, strategy, investment, acquisitions and other matters
relating to the business of the Company; and
WHEREAS, the Company desires to avail itself, for the term of this
Agreement, of the expertise of Blackstone and Universal in the aforesaid areas
and Blackstone and Universal wish to provide the services to the Company as
herein set forth.
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants and conditions contained herein, the parties hereto agree as follows:
1. Appointment. The Company hereby appoints Blackstone and Universal to
render the advisory and consulting services described in Section 2 hereof for
the term of this Agreement.
2. Services. Each of Blackstone and Universal hereby agree that during the
term of this Agreement it shall render to the Company, by and through itself,
its affiliates, and its respective officers, members, employees and
representatives as each of Blackstone in its sole discretion on the one hand and
Universal in its sole discretion on the other hand shall designate from time to
time, advisory and consulting services in relation to the affairs of the Company
in connection with ongoing strategic and operational oversight of the Company,
including, without limitation, (i) advice in designing financing structures and
advice regarding relationships with the Company's lenders and bankers; (ii)
advice regarding the structure and timing of public and private offerings of
debt and equity securities of the Company; (iii) advice regarding property
dispositions or acquisitions; and (iv) such other advice directly related or
ancillary to the above financial advisory services as may be reasonably
requested by the Company. It is expressly agreed that the services to be
performed hereunder shall not include investment banking or other financial
advisory services rendered by Universal, Blackstone or their respective
affiliates to the Company in connection with any specific acquisition,
divestiture, refinancing or recapitalization by the Company. Blackstone and
Universal may be entitled to receive additional compensation for providing
services of the type specified in the preceding sentence in the sole discretion
of the Company.
3. Fees. In consideration of the services contemplated by Section 2, for
the term of this Agreement, the Company and its successors agrees to pay to each
of Universal and Blackstone an annual advisory fee of $1,250,000 (the "Advisory
Fee") which will be paid annually on or about January 1. The Advisory Fee
payable to Universal under this Agreement is supplemental to, and not in place
or lieu of, the Special Fee (as defined in Section 20 of the Second Amended and
Restated Limited Partnership Agreement of the Company) payable pursuant to
Section 20 of the Second Amended and Restated Limited Partnership Agreement of
the Company. The Special Fee shall, to the extent payable under said Section 20
of the Second Amended and Restated Limited Partnership Agreement of the Company,
be fully paid before any payment of the Advisory Fee to Universal or Blackstone.
4. Indemnification. The Company will indemnify and hold harmless each of
Universal, Blackstone, and their respective affiliates, partners (both general
and limited), members (both managing and otherwise), officers, directors,
employees, agents and representatives (each such person being an "Indemnified
Party") from and against any and all losses, claims, damages and liabilities,
whether joint or several (the "Liabilities"), related to, arising out of or in
connection with the advisory and consulting services contemplated by this
Agreement, whether or not pending or threatened, whether or not an Indemnified
Party is a party, whether or not resulting in any liability and whether or not
such action, claim, suit, investigation or proceeding is initiated or brought by
the Company. The Company will reimburse any Indemnified Party for all reasonable
costs and expenses (including reasonable attorneys' fees and expenses) as they
are incurred in connection with investigating, preparing, pursuing, defending or
assisting in the defense of any action, claim, suit, investigation or proceeding
for which the Indemnified Party would be entitled to indemnification under the
terms of the previous sentence, or any action or proceeding arising therefrom,
whether or not such Indemnified Party is a party thereto, provided that, subject
to the following sentence, the Company shall be entitled to assume the defense
thereof at its own expense, with counsel satisfactory to such Indemnified Party
in its reasonable judgment. Any Indemnified Party may, at its own expense,
retain separate counsel to participate in such defense, and in any action,
claim, suit, investigation or proceeding in which both the Company, on the one
hand, and an Indemnified Party, on the other hand, is, or is reasonably likely
to become, a party, such Indemnified Party shall have the right to employ
separate counsel at the reasonable expense of the Company and to control its own
defense of such action, claim, suit, investigation or proceeding if, in the
reasonable opinion of counsel to such Indemnified Party, a conflict or potential
conflict exists between the Company, on the one hand, and such Indemnified
Party, on the other hand, that, would make such separate representation
necessary. The Company agrees that it will not, without the prior written
consent of the applicable Indemnified Party, settle, compromise or consent to
the entry of any judgment in any pending or threatened claim, suit,
investigation, action or proceeding relating to the matters contemplated hereby
(if any Indemnified Party is a party thereto or has been threatened to be made a
party thereto) unless such settlement, compromise or consent includes an
unconditional release of the applicable Indemnified Party and each other
Indemnified Party from all liability arising or that may arise out of such
claim, suit, investigation, action or proceeding. Provided the Company is not in
breach of its indemnification obligations hereunder, no Indemnified Party shall
settle or compromise any claim subject to indemnification hereunder
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without the consent of the Company. The Company will not be liable under the
foregoing indemnification provision with respect to any Indemnified Party, to
the extent that any loss, claim, damage, liability, cost or expense is
determined by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of Blackstone or Universal, as the case may be.
If an Indemnified Party is reimbursed hereunder for any expenses, such
reimbursement of expenses shall be refunded to the extent it is judicially
determined that the Liabilities in question resulted from the gross negligence
or willful misconduct of Blackstone or Universal, as the case may be.
5. Accuracy of Information. The Company shall furnish or cause to be
furnished to Blackstone and Universal such information as Blackstone and
Universal believe appropriate to their respective assignment (all such
information so furnished being the "Information").
6. Term. The term of this agreement (the "Term") shall be for a period of
one year beginning from the date hereof. The Term shall be automatically
extended for successive one-year periods unless Blackstone, Universal or the
Company provides the other parties with written notice at least 60 days prior to
any extension date that it desires to terminate the Agreement. The provisions of
Sections 4, 8 and otherwise as the context so requires shall survive the
termination of this Agreement.
7. Permissible Activities. Subject to applicable law, the terms of each of
the Amended and Restated Limited Partnership Agreement of the Company, the
Second Amended and Restated Agreement of General Partnership of Universal City
Florida Holding Co. I, and the Second Amended and Restated Agreement of General
Partnership of Universal City Florida Holding Co. II, nothing herein shall in
any way preclude Universal, Blackstone, their respective affiliates or their
respective partners (both general and limited), members (both managing and
otherwise), officers, directors, employees, agents or representatives from
engaging in any business activities or from performing services for its or their
own account or for the account of others, including for companies that may be in
competition with the business conducted by the Company.
8. Assignment. The rights granted to Universal and Blackstone shall not be
transferred or assigned without the prior written consent of the Company, except
that Universal and Blackstone may transfer or assign their respective rights
under this Agreement to any of their respective affiliates.
9. Miscellaneous.
(a) No amendment or waiver of any provision of this Agreement, or
consent to any departure by either party hereto from any such provision, shall
be effective unless the same shall be in writing and signed by all of the
parties hereto. Any amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. The waiver by
any party of any breach of this Agreement shall not operate as or be construed
to be a waiver by such party of any subsequent breach.
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(b) Any notices or other communications required or permitted hereunder
shall be sufficiently given if delivered personally or sent by telecopier,
Federal Express, or other overnight courier, addressed as follow or to such
other address of which the parties may have given notice:
If to Blackstone: Blackstone Management Partners L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000
If to Universal: Vivendi Universal Entertainment LLLP
100 Universal City Plaza, 1280/11
Xxxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Vice President, Business and Legal Affairs,
Universal Recreation Group
Telecopy: (000) 000-0000
If to the Company: Universal City Development Partners, Ltd.
x/x Xxxxxxxxx Xxxxxxx
0000 Xxxxxxxxx Xxxxxxx Xxxxx, X-0
Xxxxxxx, Xxxxxxx 00000
Attention: Vice President, Legal Affairs
Telecopy: (000) 000-0000
Unless otherwise specified herein, such notices or other communications shall be
deemed received (i) on the date delivered, if delivered personally or sent by
telecopier, and (ii) one business day after being sent by Federal Express or
other overnight courier.
(c) This Agreement shall constitute the entire agreement between the
parties with respect to the subject matter hereof, and shall supersede all
previous oral and written (and all contemporaneous oral) negotiations,
commitments, agreements and understandings relating hereto.
(d) This Agreement shall be governed by, and construed and interpreted
in accordance with, the laws of the State of New York. This Agreement shall
inure to the benefit of, and be binding upon, Universal, Blackstone, the Company
and their respective successors and assigns. The provisions of Section 4 shall
inure to the benefit of each Indemnified Party.
(e) This Agreement may be executed by one or more parties to this
Agreement on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
(f) The waiver by any party of any breach of this Agreement shall not
operate as or be construed to be a waiver by such party of any subsequent
breach.
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(g) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers or agents as of the date first
above written.
UNIVERSAL CITY DEVELOPMENT
PARTNERS, LTD.
By: /s/ Xxxxxxx X. Short
-----------------------------------
Name: Xxxxxxx X. Short
Title: EVP & CFO
BLACKSTONE MANAGEMENT PARTNERS L.P.
By: Blackstone Management Partners L.L.C.,
its General Partner
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name:
Title:
VIVENDI UNIVERSAL ENTERTAINMENT LLLP
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President
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