Exhibit 99.16
MANAGEMENT ADVISORY SERVICES AGREEMENT
AGREEMENT dated as of June 27, 1997 between PUMPKIN LTD., a
Delaware corporation ("Pumpkin"), and SECURITY CAPITAL
CORPORATION, a Delaware corporation ("Security Capital").
W I T N E S S E T H:
WHEREAS, Security Capital desires to provide or cause to be
provided management advisory services to Pumpkin in the areas of
corporate development, strategic planning, investment and
financial matters and general business policies, and Pumpkin
desires to obtain such services.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements hereinafter set forth, the
parties hereto agree, intending to be legally bound, as follows:
1. Management Advisory Services. Security Capital shall
during the term of this Agreement provide or cause to be provided
such management advisory services to Pumpkin in the areas of
corporate development, strategic planning, investment and
financial matters and general business policies as Pumpkin shall
from time to time reasonably request.
2. Management Advisory Services Fee. (a) Subject to
paragraph (b) below, Pumpkin shall during the term of this
Agreement pay to Security Capital an annual management advisory
services fee (the "Fee") equal to the greater of $100,000 (the
"Minimum Fee") or 5% of Pumpkin's annual EBITDA (as defined in
the Asset Purchase Agreement, dated as of June 27, 1997, by and
among Pumpkin Ltd. d/b/a Pumpkin Masters, Inc., Pumpkin,
Pumpkin Masters Holdings, Inc. and Security Capital) (the
"Maximum Fee") for the services described in Section 1.
(b) The Minimum Fee shall be payable quarterly in advance
on the 26th day of each January, April, July and October of each
year during the term hereof. The difference between the Maximum
Fee and the Minimum Fee, if positive, for any year during the
term hereof shall be payable on the 26th day of the July
immediately following the year for which the Maximum Fee has last
been determined. Payment of the Fee will be deferred during any
period in which an Event of Default under the Credit Agreement,
dated the date hereof, between NationsCredit Commercial
Corporation, Holdings and Pumpkin , as amended from time to time
(the "Credit Agreement"), has occurred and is continuing,
provided that amounts so deferred will accrue and become due and
payable upon the termination or waiver of such Event of Default
to the extent that such payment will not cause a further Event of
Default thereunder. For purposes hereof,
"Event of Default" shall have the same meaning as ascribed to such
term in the Credit Agreement.
(c) The Fee shall be exclusive of out-of-pocket costs.
3. Costs. Pumpkin shall reimburse Security Capital for
all reasonable out-of-pocket costs incurred by or on behalf of
Security Capital in connection with the services described in
Section 1. For purposes of this Agreement, an acquisition,
divestiture, public offering of securities or any other
extraordinary transaction of any type will not be deemed to be a
matter for which management advisory services have been bargained
for hereunder and, therefore, all out-of-pocket costs incurred in
connection with any such transaction will not be subject to such
limitation. Security Capital shall furnish such evidence that
such costs were incurred as Pumpkin may from time to time
reasonably request.
4. Access. Pumpkin will provide to Security Capital and
its representatives reasonable access during normal business
hours, upon reasonable notice and in such manner as will not
unreasonably interfere with the conduct of the business of
Pumpkin, to the books, records, tax returns and other information
with respect to the business of Pumpkin as Security Capital or
such representatives consider necessary or appropriate for the
purpose of furnishing advisory services as provided in Section 1.
5. Term. The term of this Agreement shall commence as of
the date hereof and shall terminate on June 26, 2007 or such
later date as may be approved by Security Capital and Pumpkin.
6. Amendment and Modification. Subject to applicable law,
this Agreement may be amended, modified or supplemented only by a
written agreement of Security Capital and Pumpkin.
7. Headings. The Section headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
8. Execution in Counterparts. This Agreement may be
executed in counterparts, each of which shall be an original, but
all of which together shall constitute one instrument.
9. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of Connecticut
applicable to agreements made and to be performed in Connecticut
without regard to such State's conflicts of laws principals and
shall be construed without regard to any presumption or other
rule requiring the construction of an agreement against the party
causing it to be drafted.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
PUMPKIN LTD.
By: /s/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
SECURITY CAPITAL CORPORATION
By: /s A. Xxxxxx Xxxxxxx
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Name: A. Xxxxxx Xxxxxxx
Title: President
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