understood and agreed that this Agreement is not intended to create, and does
not create, any partnership, agency, joint venture or similar relationship and
that neither Sponsor, on the one hand, nor the Companies, on the other, has the
right or ability to contract for or on behalf of each other or to effect any
transaction for each other's account.
2.
PAYMENT OF FEES.
(A)
THE COMPANIES WILL JOINTLY AND SEVERALLY PAY TO SPONSOR (OR AN
AFFILIATE OF SPONSOR DESIGNATED BY IT) IN CONSIDERATION OF SPONSOR PROVIDING THE
FINANCIAL ADVISORY SERVICES A FEE IN THE AMOUNT OF $2,000,000, SUCH FEE BEING
PAYABLE UPON THE CLOSING OF THE MERGER;
(B)
THE COMPANIES WILL JOINTLY AND SEVERALLY PAY TO SPONSOR (OR AN
AFFILIATE OF SPONSOR DESIGNATED BY IT) AN ANNUAL FEE, SUCH FEE BEING PAYABLE
QUARTERLY IN ADVANCE ON OR PRIOR TO THE FIRST DAY OF EACH CALENDAR QUARTER
BEGINNING ON EACH JANUARY 1, APRIL 1, JULY 1 AND OCTOBER 1, THE FIRST SUCH
PAYMENT TO BE MADE BY WIRE TRANSFER ON JULY 1, 2006 FOR THE PRO-RATED AMOUNT OF
SUCH FEE FOR THE TIME FROM THE CLOSING THROUGH JULY 1, 2006. THE ANNUAL FEE WILL
BE $450,000 (THE "PERIODIC FEE").
EACH PAYMENT MADE PURSUANT TO THIS SECTION 2 WILL BE PAID BY WIRE TRANSFER OF
IMMEDIATELY AVAILABLE FEDERAL FUNDS TO THE ACCOUNT SPECIFIED ON SCHEDULE 1
HERETO, OR TO SUCH OTHER ACCOUNT(S) AS SPONSOR MAY SPECIFY TO THE COMPANIES IN
WRITING PRIOR TO SUCH PAYMENT.
3.
TERM. THIS AGREEMENT WILL CONTINUE IN FULL FORCE AND EFFECT UNTIL
JUNE 12, 2016; PROVIDED THAT THIS AGREEMENT SHALL BE AUTOMATICALLY EXTENDED EACH
ANNIVERSARY OF SUCH DATE FOR AN ADDITIONAL YEAR UNLESS THE COMPANIES OR SPONSOR
PROVIDE WRITTEN NOTICE OF THEIR DESIRE NOT TO AUTOMATICALLY EXTEND THE TERM OF
THIS AGREEMENT TO THE OTHER PARTIES HERETO AT LEAST 90 DAYS PRIOR TO SUCH
ANNIVERSARY; PROVIDED, HOWEVER, THAT (A) EITHER PARTY MAY TERMINATE THIS
AGREEMENT FOLLOWING A MATERIAL BREACH OF THE TERMS OF THIS AGREEMENT BY THE
OTHER PARTY HERETO AND A FAILURE TO CURE SUCH BREACH WITHIN 30 DAYS FOLLOWING
WRITTEN NOTICE THEREOF, (B) SPONSOR MAY TERMINATE THIS AGREEMENT UPON NOT LESS
THAN 10 DAYS WRITTEN NOTICE TO THE COMPANIES AND (C) THIS AGREEMENT SHALL
TERMINATE UPON THE CONSUMMATION OF AN INITIAL PUBLIC OFFERING (AS DEFINED IN THE
2
REGISTRATION RIGHTS AGREEMENT) OR CHANGE OF CONTROL (AS DEFINED IN THE
SHAREHOLDERS AGREEMENT) (THE PERIOD ON AND AFTER THE DATE HEREOF THROUGH THE
TERMINATION HEREOF BEING REFERRED TO HEREIN AS THE "TERM"); AND PROVIDED,
FURTHER, THAT EACH OF (X) SECTIONS 4, 5 AND 8 (WHETHER IN RESPECT OF OR RELATING
TO SERVICES RENDERED DURING OR AFTER THE TERM) AND (Y) ANY AND ALL ACCRUED AND
UNPAID OBLIGATIONS OF THE COMPANIES OWED UNDER SECTION 2 WILL ALL SURVIVE ANY
TERMINATION OF THIS AGREEMENT TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE
LAW.
4.
EXPENSES; INDEMNIFICATION.
(A)
EXPENSES. THE COMPANIES WILL JOINTLY AND SEVERALLY PAY ON DEMAND
ALL EXPENSES INCURRED BY SPONSOR AND THOSE CERTAIN FUNDS AFFILIATED WITH