EX-10.33



 





EXHIBIT 10.33




WAIVER AND TERMINATION AGREEMENT




     THIS WAIVER AND TERMINATION AGREEMENT (“Agreement”) is dated as of the 27th day of
August, 2007, by and between Clarion Operating, LLC (“Clarion”) and SOI Holdings, Inc. (“SOI” and
together with Clarion, the “Parties”).



Recitals:




     WHEREAS, the Parties entered into a certain Management Services Agreement, dated July 29, 2005
(the “Management Agreement”);



     WHEREAS, the term of the Management Agreement will expire on July 28, 2008 (“Scheduled
Termination Date”);



     WHEREAS, SOI is contemplating conducting an initial public offering (“IPO”) of its common
stock, and SOI and Clarion desire to terminate the Management Agreement the day immediately
preceding the closing of the IPO (“Agreed Termination Date”); and



     WHEREAS, Clarion desires to waive any Transaction Fee in connection with the IPO, or any
Transaction occurring on or after the Agreed Termination Date.



     NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, the
parties, intending to be legally bound hereby, agree as follows:



     1. Defined Terms. Capitalized terms used but not otherwise defined herein shall have
the meanings set forth in the Management Agreement.



     2. Waiver of Transaction Fee. Clarion hereby agrees that no Transaction Fee will be
due or payable by SOI in connection with the IPO, or any Transaction occurring on or after the
Agreed Termination Date.



     3. Payment of Termination Fee. Within ten (10) days following the Agreed Termination
Date SOI will pay to Clarion a termination fee, equal to $33,333 multiplied by the number of months
(pro-rated for partial months) between the Agreed Termination Date and the Scheduled Termination
Date.



     4. Termination and Release. As of the Agreed Termination Date, the Management
Agreement shall terminate, and, from and after the Agreed Termination Date, the Management
Agreement shall be of no further force or effect and neither of the Parties, nor any of their
respective successors in interest, shall thereafter have any rights or obligations thereunder,
except that the indemnity provisions in Section 4 of the Management Agreement shall remain in
effect with respect to any claims or causes of action which arise, or have arisen, from events
which occurred prior to the Agreed Termination Date.



 









 





     5. Miscellaneous.



          (a) This Agreement contains the entire agreement of the Parties with respect to the subject
matter contained herein and supersedes any and all prior agreements and understandings, whether
written or oral, with respect to the subject matter hereof.




          (b) This Agreement may not be amended except by an instrument in writing signed by both of the
Parties.




          (c) The Parties represent and warrant that the individual signing this Agreement on its behalf
has full authority to do so.




          (d) This Agreement and any claim or controversy hereunder shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York without regard to
conflict of laws principles or rules of such state.




          (e) This Agreement may be executed in any number of counterparts, each of which, when so
executed, shall constitute an original copy hereof.




[Remainder of Page Left Blank Intentionally]




 









 





     IN WITNESS WHEREOF, the parties have duly caused this Agreement to be executed by their duly
authorized officers and as of the day and year first above written.



	 	 	 	 	 	 	 	 	 
	 	 	CLARION:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	CLARION OPERATING, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Clarion Capital Partners, LLC	 	 
	 	 	its Managing Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Marc A. Utay	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Marc A. Utay	 	 
	 

	 	 	 	Title:
	 	Managing Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	SOI:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	SOI HOLDINGS, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Carl W. Guidice, Jr.	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Carl W. Guidice, Jr.	 	 
	 

	 	 	 	Title:
	 	President