Exhibit 10.13


 


Fisher Capital
Corp. LLC

8 Clarke Drive

Cranbury, New Jersey 08512


 


 


As of July 9, 1998


 


 


 


BRW Acquisition, Inc.

c/o Kohlberg Kravis Roberts & Co. L.P.

9 West 57th Street

New York, New York  10019


 


Dear Sirs:


 


This letter serves to confirm our retention by BRW Acquisition, Inc.
(the “Company”) to provide management, consulting and financial services to the
Company, as follows:


 


1.                                       The Company has
retained us, and we hereby agree to accept such retention, to provide to the
Company, when and if called upon, certain management, business strategy,
consulting and financial services of the type customarily performed by us.  The Company agrees to pay us an annual fee
of two hundred and fifty thousand dollars ($250,000.00), payable in quarterly
installments at the beginning of each calendar quarter.


 


2.                                       We may also
invoice the Company for additional fees in connection with acquisition or
divestiture transactions or in the event that we, or any of our affiliates,
perform services for the Company above and beyond those called for by this
agreement; provided that our failure to provide such invoice shall not affect
the Company’s obligations to pay such additional fees in accordance with the
terms of this letter.


 


3.                                       In addition to
any fees that may be payable to us under this agreement, the Company also
agrees to reimburse us and our affiliates, from time to time upon request, for
all reasonable out-of-pocket expenses incurred, including, without limitation,
unreimbursed


 

















 


expenses incurred prior to the date hereof, in connection with this
retention, including travel expenses and expenses of our counsel.


 


4.                                       The Company
agrees to indemnify and hold us, our affiliates and their and our respective
partners, executives, officers, directors, employees, agents and controlling
persons (each such person, including us, being an “Indemnified Party”) harmless
from and against any and all losses, claims, damages and liabilities
(including, without limitation, losses, claims, damages and liabilities arising
from or in connection with legal actions brought by or on behalf of the holders
or future holders of the outstanding securities of the Company or creditors or
future creditors of the Company), joint, several or otherwise, to which such
Indemnified Party may become subject under any applicable federal or state law,
or otherwise, related to or arising out of any activity contemplated by this
agreement or our retention pursuant to, and our or our affiliates’ performance
of the services contemplated by, this agreement and will reimburse any
Indemnified Party for all expenses (including counsel fees and disbursements)
upon request as they are incurred in connection with the investigation of,
preparation for or defense of any pending or threatened claim or any action or
proceeding arising therefrom, whether or not such Indemnified Party is a party
and whether or not such claim, action or proceeding is initiated or brought by
the Company; provided, however, that you will not be liable under
the foregoing indemnification provision (and amounts previously paid that are
determined not required to be paid by the Company pursuant to the terms of this
Paragraph shall be repaid promptly) to the extent that any loss, claim, damage,
liability or expense is found in a final non-applicable judgment by a court to
have resulted from our willful misconduct, bad faith or gross negligence.  You also agree that no Indemnified Party
shall have any liability (whether direct or indirect, in contract or tort or
otherwise) to the Company related to or arising out of our retention pursuant
to, or our affiliates, performance of the services contemplated by, this
agreement except to the


 

















 


extent that any loss, claim, damage, liability or expense is found in a
final, non-appealable judgment by a court to have resulted from our willful
misconduct, bad faith or gross negligence.


 


You
also agree that, without our prior written consent, you will not settle,
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding to which an Indemnified Party is an actual or
potential party and in respect of which indemnification could be sought under
the indemnification provision in the immediately preceding paragraph, unless
such settlement, compromise or consent includes an unconditional release of
each Indemnified Party from all liability arising out of such claim, action or
proceeding.


 


Promptly
after receipt by an Indemnified Party of notice of any suit, action, proceeding
or investigation with respect to which an Indemnified Party may be entitled to
indemnification hereunder, such Indemnified Party will notify the Company in
writing of the assertion of such claim or the commencement of such suit,
action, proceeding or investigation, but the failure so to notify the Company
shall not relieve the Company from any liability which it may have hereunder,
except to the extent that such failure has materially prejudiced the
Company.  If the Company so elects
within a reasonable time after receipt of such notice, the Company may
participate at its own expense in the defense of such suit, action, proceeding
or investigation.  Each Indemnified
Party may employ separate counsel to represent it or defend it in any such
suit, action, proceeding or investigation in which it may become involved or is
named as a defendant and, in such event, the reasonable fees and expense of
such counsel shall be borne by the Company; provided, however,
that the Company will not be required in connection with any such suit, action,
proceeding or investigation, or separate but substantially similar actions
arising out of the same general allegations or circumstances, to pay the fees
and disbursements of more than one separate counsel (other than local counsel)
for all Indemnified


 

















 


Parties in any single action or proceeding.  Whether or not the Company participates in
the defense of any claim, both the Company and we shall cooperate in the
defense thereof and shall furnish such records, information and testimony, and
attend such conferences, discovery proceedings, hearing, trial and appeals, as
may be reasonably requested in connection therewith.


 


If the
indemnification provided for hereunder is finally judicially determined by a
court of competent jurisdiction to be unavailable to an Indemnified Party, or
insufficient to hold any Indemnified Party harmless, in respect of any losses,
claims, damages or liabilities (other than any losses, claims, damages or
liabilities found in a final judgment by a court to have resulted from our
willful misconduct, bad faith or gross negligence), then the Company, on the
one hand, in lieu of indemnifying such Indemnified Party, and we, on the other
hand, will contribute to the amount paid or payable by such Indemnified Party
as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received, or
sought to be received, by the Company on the one hand and us, solely in our
capacity as an advisor under this agreement, on the other hand in connection with
the transactions to which such indemnification, contribution or reimbursement
is sought, or (ii) if (but only if) the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company on the one hand and us on the other, as well as
any other relevant equitable considerations; provided, however,
that in no event shall our aggregate contribution hereunder exceed the amount
of fees actually received by us in respect of the transaction at issue pursuant
to this agreement.  The amount paid or
payable by a party as a result of the losses, claims, damages and liabilities
referred to above will be deemed to include any legal or other fees or expense,
reasonably incurred in defending any action or claim.  The Company and we agree that it would not be just and equitable
if contribution pursuant to this


 

















 


paragraph were determined by pro rata allocation or by
any other method which does not take into account the equitable considerations
referred to in this paragraph.  The
indemnity, contribution and reimbursement obligations the Company has under
this Paragraph shall be in addition to any liability the Company may have, and
notwithstanding any other provision of this letter, shall survive the
termination of this agreement.


 


5.                                       Any advice or
opinions provided by us may not be disclosed or referred to publicly or to any
third party (other than the Company’s legal, tax, financial or other advisors),
except in accordance with our prior written consent.


 


6.                                       We shall act as
an independent contractor, with duties solely to the Company.  The provisions hereof shall inure to the
benefit of and shall be binding upon the parties hereto and their respective
successors and assigns.  Nothing in this
agreement, expressed or implied, is intended to confer on any person other than
the parties hereto or their respective successors and assigns, and, to the
extent expressly set forth herein, the Indemnified Parties, any rights or
remedies under or by reason of this agreement. 
Without limiting the generality of the foregoing, the parties
acknowledge that nothing in this agreement, expressed or implied, is intended
to confer on any present or future holders of any securities of the Company or
its subsidiaries or affiliates, or any present or future creditor of the
Company or its subsidiaries or affiliates, any rights or remedies under or by
reason of this agreement or any performance hereunder.


 


7.                                       This agreement
shall be governed by and construed in accordance with the laws of New York
without regard to principles of conflicts of law.


 


8.                                       The terms of
this agreement are effective as of 
July 9, 1998.  This
agreement shall continue in effect from year to year unless amended or
terminated by the mutual consent of the parties hereto.


 

















 


9.                                       Each party
hereto represents and warrants that the execution and delivery of this
agreement by such party has been duly authorized by all necessary action of
such party.


 


10.                                 If any term or
provision of this agreement or the application thereof shall, in any
jurisdiction and to any extent, be invalid and unenforceable, such term or
provision shall be ineffective, as to such jurisdiction, solely to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable any remaining terms or provisions hereof or affecting the
validity or enforceability of such term or provision in any other jurisdiction.  To the maximum extent permitted by
applicable law, the parties hereto waive any provision of law that renders any
term or provision of this agreement invalid or unenforceable in any respect.


 


11.                                 Each of the Company
and us waives all right to trial by jury in any action, proceeding or counterclaim
(whether based upon contract, tort or otherwise) related to or arising out of
our retention pursuant to, or our or any of our affiliates’ performance of the
services contemplated by, this agreement.


 


12.                                 It is expressly
understood that the foregoing paragraphs 2-5, 10 and 11 in their entirety,
survive any termination of this agreement.


 

















 


If the
foregoing sets forth the understanding between us, please so indicate on the
enclosed signed copy of this letter in the space provided therefor and return
it to us, whereupon this letter shall constitute a binding agreement among us.


 


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Fisher Capital Corp. LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James R. Fisher

  
	
   

  	
  Name:

  	
  James R. Fisher

  
	
   

  	
  Title:

  	
  Managing Member

  
				



 


 


AGREED TO AND ACCEPTED


 


 


	
  BRW Acquisition, Inc.

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Perry Golkin

  	
   

  
	
  Name:

  	
  Perry Golkin

  
	
  Title:

  	
  President