Exhibit 10.1
CONSULTING SERVICES AGREEMENT
Consulting Services Agreement ("Agreement"), dated as of January 1,
2003, by and between Xxxxx X. Xxxxxxx ("Consultant") and CT Investment
Management Co., LLC, a Delaware limited liability company (the "Company").
PRELIMINARY STATEMENT
WHEREAS, Consultant has previously served as an executive officer of
the Capital Trust, Inc. ("CT") and therefore has the training, expertise and
prior experience in areas related to the business or needs of CT and the
investment funds cosponsored by it, CT Mezzanine Partners II LP, a Delaware
limited partnership ("Fund II"), and CT Mezzanine Partners III, Inc., a Maryland
Corporation ("Fund III");
WHEREAS, the Company desires to retain the services of Consultant;
and
WHEREAS, Consultant desires to provide consulting services for the
benefit of the Company using his knowledge, skills, experience and abilities;
NOW THEREFORE, in consideration of the mutual promises contained
herein, and other good and valuable consideration, the parties hereto agree as
follows:
ARTICLE I
SERVICES TO BE PROVIDED
Section 1.1 Nature of Services.
(a) Consultant shall provide advice and suggestions, and perform such
tasks and assignments as requested, orally or in writing, from time to time, by
the chief executive officer of the Company.
(b) The Consultant shall be designated by the Company and serve as a
member of the Management Committee of CT XX XX LLC, a Delaware limited liability
company which serves as general partner of Fund II and as a member of the board
of directors of Fund III. The Company may remove Consultant as a member of the
foregoing committee or board for any reason or no reason at any time and the
Consultant may resign from such committee or board for any reason or no reason
at any time.
(c) The Consultant agrees to cooperate at the reasonable request of
the Company with any advisory assignments, transactions or litigation or claims
involving the Company about which Consultant has knowledge. Said cooperation
includes but is not limited to: providing information, reviewing and assisting
in the preparation of statements, affidavits or pleadings, giving sworn
statements or depositions and testifying
in court or at arbitration. The Company will reimburse Consultant for reasonable
expenses related to assistance requested by Company.
Section 1.2 Right of Control. Consultant shall have exclusive
control over the means and manner by which the services called for by this
Agreement are performed.
Section 1.3 Non-Exclusive Services. Consultant shall devote so
much of his productive time, ability and attention as is necessary to performing
consulting services as requested or assigned by the Company. Consultant may
render services of a business or commercial nature to other persons or entities
during the term of this Agreement.
ARTICLE II
COMPENSATION FOR SERVICES
Section 2.1 Fee. As payment and consideration for the services to
be provided and promises made herein by Consultant, the Company agrees to pay
Consultant the total sum of Ten Thousand Dollars ($10,000) per month ("Fee").
The Fee shall be paid once a month on the last day of the month in which
services are provided.
Section 2.2 Independent Contractor. Consultant understands and
agrees that in performing the services to be provided pursuant to this
Agreement, Consultant is acting as an independent contractor with respect to the
Company and not as an employee, agent, partner or joint venturer of the Company.
Consultant, in his capacity as such, shall be free to undertake other
assignments or activities on his own account or on the account of third parties.
Consultant agrees and understands that he shall not be authorized to, nor shall
he, enter into any commitments, agreements or undertakings or assume any
responsibilities on behalf of the Company.
Section 2.3 Tax Obligations. Consultant understands and agrees
that he is solely responsible for all income and/or other employment tax
obligations, if any, including but not limited to all reporting and payment
obligations, if any, which may arise as a consequence of any payment under this
Agreement. Consultant agrees to indemnify and hold the Company harmless in
respect of all such payments claimed or assessed by any taxing authority.
Section 2.4 No Benefits. Consultant understands and agrees that
since he is not an employee of the Company, he shall not be entitled to, and
hereby waives any claim to any of the benefits provided to employees of the
Company, including, but not limited to holidays off with pay; vacation time off
with pay, paid leaves of absence of any kind; and insurance coverage of any
kind, specifically including, but not limited to, medical and dental insurance,
unemployment insurance, workers' compensation insurance and state disability
insurance.
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ARTICLE III
TERM AND TERMINATION
Section 3.1 Effective Date of Agreement. This Agreement shall
become effective upon the date hereof.
Section 3.2 Term of Agreement. This Agreement shall continue in
full force and effect for a period commencing on the date hereof and ending on
May 31, 2005.
Section 3.3 Termination Prior to Expiration of Term. Either party
may terminate this Agreement prior to the expiration of the term hereof for any
or no reason on fourteen (14) calendar days' advance written notice to the other
party. In the event of such termination, Consultant shall be promptly paid the
portion of the monthly Fee owed based on services performed prior to the
effective date of termination and no further payment shall be due.
Section 3.4 Termination for Cause. The Company also may terminate
this Agreement for "Cause" before the expiration of the term hereof without any
prior notice whereupon the Company shall have no further obligation to pay any
Fee for services performed prior to such Termination and further payment shall
be due. "Cause" shall mean (i) any act of theft, fraud or embezzlement, or any
other willful misconduct or dishonest behavior by Consultant in connection with
the performance of Consultant's services hereunder, (ii) Consultant's continuing
and willful failure or refusal to perform the services required under this
Agreement (other than due to his incapacity due to illness or injury, (iii)
conviction of Consultant for any crime constituting a felony under the laws of
the jurisdiction in which such crime was committed, or (iv)Consultant's material
breach of the confidentiality provisions of this Agreement.
ARTICLE IV
PROPRIETARY RIGHTS
Section 4.1 Confidential Information.
(a) Consultant understands and agrees that during the term of this
Agreement, he may become aware of information concerning the operations,
budgets, future business plans and methods of doing business on the part of the
Company and/or its affiliates, which information is hereby designated
"Confidential Information."
(b) Consultant understands and agrees that he shall not disclose any
Confidential Information directly or indirectly, to anyone outside of the
Company, either during the term of this Agreement, or at any time after the
expiration or termination hereof, without the prior written consent of the
Company.
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(c) Consultant understands and agrees that he shall be subject to and
comply with the Company's xxxxxxx xxxxxxx policy in accordance with the terms
thereof.
Section 4.2 Return of Company Property. Consultant understands and
agrees that all written information, documents, and materials prepared by or at
the request of the Company, or provided to Consultant, in the course of
providing the services called for by this Agreement shall be the sole and
exclusive property of the Company and will be delivered to the Company, if
requested, on the expiration or termination of this Agreement.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.1 Severability. the provisions of this Agreement are
severable, and if any part of it is found to be unenforceable, the other
paragraphs shall remain fully valid and enforceable.
Section 5.2 Arbitration. This Agreement shall in all respects be
interpreted and governed by and under the laws of the State of New York, without
regard to principles of conflict of laws. Any dispute regarding any aspect of
this Agreement or any act which allegedly has or would violate any provision of
this Agreement or any law (hereinafter "Arbitrable Dispute") shall be submitted
to arbitration in New York City in accordance with the Commercial Arbitration
Rules of the American Arbitration Association then in effect, as the exclusive
remedy for any such claim or Arbitrable Dispute. The decision of the arbitrator
shall be final, conclusive and binding upon the parties. Each party shall pay
the fees of its respective attorneys, the expenses of its witnesses and any
other expenses connected with presenting its claim. Other costs of the
arbitration, including the fees of the arbitrator, costs of any record or
transcript of the arbitration, administrative fees, and other fees and costs
shall be borne equally by the parties, one-half by Consultant, on the one hand,
and one-half by the Company, on the other hand, provided however, the arbitrator
may award the prevailing party its reasonable legal fees and expenses in
pursuing such action if the arbitrator finds the non-prevailing party acted in
bad faith with gross negligence or without reasonable basis to believe that
her/its conduct was in conformity with the terms hereof. Whether or not a party
is the prevailing party in any such action shall be determined by the
arbitrator. Should any party to this Agreement pursue any Arbitrable Dispute by
any method other than said arbitration, the responding party shall be entitled
to recover from the initiating party all damages, costs, expenses and attorneys'
fees incurred as a result of such action.
Section 5.3 Sole and Entire Agreement. This Agreement sets forth
the entire agreement between the parties hereto and fully supersedes any and all
prior agreements or understandings between the parties hereto, whether written
or oral,
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pertaining to the subject matter hereof. No change in, modification of, or
addition, amendment or supplement to this Agreement shall be valid unless set
forth in writing.
Section 5.4 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto executed this Agreement effective
as of the date first set forth above.
CT INVESTMENT MANAGEMENT CO., LLC
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx
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