TERMINATION, COOPERATION AND CONFIDENTIALITY AGREEMENT
Exhibit 10.1
Execution Version
This Termination, Cooperation and Confidentiality Agreement (this “Agreement”) is
executed and delivered as of November 4, 2010 by and between Care Investment Trust Inc., a Maryland
corporation (the “Company”), and CIT Healthcare LLC, a Delaware limited liability company
(the “Manager”).
WHEREAS, on June 27, 2007, the Company retained the Manager to manage the business and
investment affairs of the Company and its Subsidiaries and to perform services for the Company and
its Subsidiaries in the manner and on the terms set forth in the Original Management Agreement;
WHEREAS, on September 30, 2008, the Company and the Manager entered into Amendment No. 1 to
the Original Management Agreement and concurrently entered into the Mortgage Purchase Agreement;
WHEREAS, on January 15, 2010, the Company and the Manager further amended and restated the
Management Agreement as set forth in that certain Amended and Restated Management Agreement, to be
effective upon stockholder approval of the Plan of Liquidation;
WHEREAS, pursuant to Section 10(b) of the Amended and Restated Management Agreement, the
Company may, at any time, initiate termination of the Amended and Restated Management Agreement by
providing a Company Termination Notice;
WHEREAS, the Company intends that this Agreement shall be a Company Termination Notice for
purposes of Section 10(b) of the Amended and Restated Management Agreement, subject to the terms of
Section 2 herein;
WHEREAS, the Company and the Manager are entering into the Joint Defense Agreement
simultaneously with execution of this Agreement;
WHEREAS, the Company and the Manager wish to enter into this Agreement to set forth certain
agreements and understandings reached between the parties with respect to or in connection with
termination of the Amended and Restated Management Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and intending to be legally bound, the Company and the Manager hereby agree as
follows:
1. Definitions. The following terms shall have the meanings set forth in this Section
1. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in
the Amended and Restated Management Agreement.
“Action” means any demand, action, claim, counterclaim, suit, countersuit, arbitration,
inquiry, subpoena, proceeding or investigation by or before any court or grand jury, any
Governmental Entity or any arbitration or mediation tribunal.
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“Affiliate” means, when used with respect to a specified Person, any other Person or entity
that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is
under common control with such specified Person. For the purposes of this definition, “control”,
when used with respect to any specified Person means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities or other interests, by contract or otherwise. For the
avoidance of doubt, CIT and its each of its direct and indirect wholly-owned subsidiaries shall be
considered Affiliates of the Manager for purposes of this Agreement and the Joint Defense
Agreement.
“Amended and Restated Management Agreement” means the Amended and Restated Management
Agreement dated as of January 15, 2010 between the Company and the Manager.
“CIT” means CIT Group Inc.
“Company Books and Records” means any and all accounting and other legal and business
books, records, ledgers and files of the Company and its Subsidiaries, whether in printed, written
or electronic form.
“Company Proprietary Agreements” means any and all contracts, agreements or other
instruments executed by or on behalf of the Company.
“Company Proprietary Correspondence” means any and all correspondence, in electronic form
or otherwise, that (i) was sent or received by any of the individuals listed on Schedule 2
attached hereto (each a “Care Service Provider”) in the course of performing services to or
for the Company under the Amended and Restated Management Agreement or the Original Management
Agreement or in the course of fulfilling the Manager’s duties and obligations under the Amended and
Restated Management Agreement or the Original Management Agreement and (ii) relates to the business
of the Company. For the avoidance of doubt, Company Proprietary Correspondence shall not include
any correspondence sent or received by Care Service Providers in their capacities as employees or
consultants of the Manager that relate to the Company but were not sent or received by such
employees or consultants in the course of performing services to or for the Company under the
Amended and Restated Management Agreement or the Original Management Agreement or fulfilling the
Manager’s duties and obligations under the Amended and Restated Management Agreement or the
Original Management Agreement.
“Confidential Information” means all information, data or other material of or concerning a
Party and/or its Subsidiaries or Affiliates which, prior to or following the Termination Effective
Date, has been disclosed by a Party or its Subsidiaries or its Affiliates (the “Disclosing
Party”) to another Party or its Subsidiaries or Affiliates (the “Receiving Party”), in
written, oral (including by recording), electronic or visual form, or which the Receiving Party
otherwise has come into the possession of, in each case in connection with the Manager’s
performance of services to or on behalf of the Company pursuant to the Amended and Restated
Management Agreement or the
Original Management Agreement or pursuant to the access or other provisions of this Agreement or
the Joint Defense Agreement (except to the extent that such information can be shown to have been
(i) in the public domain through no fault of the Receiving Party or its Subsidiaries or Affiliates
in violation of this Agreement or (ii) lawfully acquired by the Receiving Party or its
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Subsidiaries
or Affiliates from other sources; provided, however, in the case of clause (ii)
that, to the Receiving Party’s knowledge, such furnishing sources did not provide such information
in breach of any confidentiality obligations). For the avoidance of doubt, Confidential
Information of a Party shall include (i) earnings reports and forecasts, economic analyses and
business plans, in each case relating to such Party, (ii) general market evaluations and surveys
relating to such Party’s business, (iii) financial, operating, financing and credit-related
information relating to such Party, (iv) specifications, ideas and concepts for products and
services developed by or for such Party, (v) internal codes, policies and procedures of such Party,
(vi) information, including credit-related information, relating to such Party’s customers or
potential customers (except to the extent the other Party has also had a credit relationship with
such customer and such credit-related information was obtained by the other Party as a result of or
in connection with the other Party’s credit relationship with the customer), (vii) computer
programs, algorithms, databases, compilations, data and technology supporting the foregoing owned
or licensed by such Party (viii) training materials and information of such Party, (ix) all other
know-how, methodology, procedures, techniques and trade secrets of such Party, and (x) in the case
of Manager, Manager Proprietary Correspondence.
“Governmental Entity” means any federal, state, local, municipal or other governmental
entity, authority, body, agency, commission, department, board, bureau or court, or any political
subdivision, whether domestic, foreign or multinational, exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government or any executive
official thereof.
“Joint Defense Agreement” means the Joint Defense Agreement between the Manager and the
Company of even date herewith.
“Law” means any federal, state, local, municipal or similar statute, law, ordinance,
regulation, rule, code, order, requirement or rule of law (including common law).
“Manager Proprietary Correspondence” means any and all correspondence, in electronic form
or otherwise, that (i) is sent or received by employees of the Manager or consultants retained by
the Manager and (ii) is not Company Proprietary Correspondence.
“Mortgage Purchase Agreement” means the Mortgage Purchase Agreement dated as of September
30, 2008, among the Company and the Manager pursuant to which the Company had the right, but not
the obligation, to require the Manager to purchase certain mortgage loans from the Company from
time to time, subject to and in accordance with the terms of the Mortgage Purchase Agreement.
“Original Management Agreement” means the Management Agreement dated as of June 27,
2007, between the Company and the Manager, which was amended by Amendment No. 1 dated as of
September 30, 2008, and superseded by the Amended and Restated Management Agreement.
“Party” means each of the Company and the Manager.
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“Person” means any natural person, firm, individual, corporation, business trust, joint
venture, association, company, limited liability company, partnership or other organization or
entity, whether incorporated or unincorporated, or any governmental entity or authority.
“Termination Effective Date” means November 16, 2010; provided, however,
that if the Company’s Quarterly Report on Form 10-Q for the quarter ending September 30, 2010 (the
“Form 10-Q”) is not filed with the Securities and Exchange Commission (“SEC”) on or
before November 16, 2010, to the extent needed in order to file the Form 10-Q, the Company may
extend the Termination Effective Date, in its sole discretion, upon written notice to the Manager,
to the date on which the Form 10-Q is filed with the SEC as long as such date occurs on or before
December 31, 2010 and as long as such filing is not unreasonably delayed by the Company;
provided, further, that if the Form 10-Q is not filed with the SEC on or prior to
December 31, 2010 and the delay in filing the Form 10-Q is the result of any action or inaction
unreasonably taken or not taken by the Manager, then the Termination Effective Date shall be
automatically extended beyond December 31, 2010 until the date on which the Form 10-Q is filed with
the SEC.
2. Termination of Management Agreement. The Company and the Manager hereby agree
that, notwithstanding any requirements with respect to delivery of a Company Termination Notice set
forth in Section 10 of the Amended and Restated Management Agreement (including, without
limitation, the requirement that the Company Termination Date be at least sixty (60) days from the
delivery of a Company Termination Notice) or any other terms or provisions of the Amended and
Restated Management Agreement, the Amended and Restated Management Agreement shall terminate
effective as of 12:01 a.m. on the Termination Effective Date, which date shall be the “Company
Termination Date” for purposes of Section 10(b) of the Amended and Restated Management Agreement,
and the provisions of the Amended and Restated Management Agreement shall thereafter be of no
further force or effect, except for those provisions that the Parties have agreed shall survive
such termination as expressly set forth in Section 11 hereof. Notwithstanding the
provisions of the Amended and Restated Management Agreement, in consideration for the termination
of the Amended and Restated Management Agreement and the Manager’s responsibilities therein, the
Company shall remit the following to the Manager on the Termination Effective Date in immediately
available funds: (a) $2,400,000, which shall represent the final installment of the Manager’s
Buyout Payment; provided, however, if the Termination Effective Date occurs on or after (x)
December 21, 2010, the final installment shall increase to $2,450,000 or (y) December 30, 2010, the
final installment shall increase to $2,500,000; and (b) all earned but unpaid monthly installments
of Base Management Fee payable under the Amended and Restated Management Agreement through the
Termination Effective Date; provided, however for the avoidance of doubt, if the
Termination Effective Date is November 16, 2010 (or any other date that is not the first day of a
calendar month), the Base Management Fee for the month in which the Termination Effective Date
occurs shall be pro-rated for the number of days in such month prior to the Termination Effective
Date. In addition, on the Termination Effective Date, the Company shall reimburse the Manager for
all expenses incurred by the Manager or its Affiliates prior to the Termination Effective Date that
are required to be paid by the Company pursuant to Section 7 of the Amended and Restated Management
Agreement; provided, however, if the Manager has incurred such expenses prior to
the
Termination Effective Date but has not provided the Company with a written statement detailing
such expenses on or prior to the Termination Effective Date, the Company shall still reimburse
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the
Manager in accordance with Section 7 of the Amended and Restated Management Agreement for such
expenses incurred prior to the Termination Effective Date but submitted by the Manager after the
Termination Effective Date provided that such expenses are submitted by the Manager to the Company
no later than March 1, 2011. The Manager hereby acknowledges and agrees that, upon receipt of the
amounts set forth in clauses (a)-(b) of this Section 2 and the immediately preceding
sentence of this Section 2, the Company shall have fully complied with its obligations
under Sections 6, 7 and 16(b) of the Amended and Restated Management Agreement and the Manager
shall have no further right to compensation for services rendered under the Amended and Restated
Management Agreement or the Original Management Agreement. Notwithstanding anything to the
contrary contained herein, the Amended and Restated Management Agreement or the Original Management
Agreement, if the Termination Effective Date is extended past December 1, 2010 and (i) such
extension is not the result of any action or inaction unreasonably taken or not taken by the
Manager, and (ii) if the Manager is in compliance with this Agreement, the Joint Defense Agreement
and the Amended and Restated Management Agreement in all respects, in addition to the Base
Management Fee, the Company shall pay the Manager an amount equal to $500 for each day after
December 1, 2010 on which the Amended and Restated Management Agreement remains in effect, plus, so
long as such out-of-pocket costs are approved in advance by the Company in its reasonable good
faith business judgment, any reasonable out-of-pocket costs incurred by the Manager after December
1, 2010, and prior to the Termination Effective Date relating to third party consultants retained
by the Manager to perform services to the Company under the Amended and Restated Management
Agreement consistent with past practice.
3. Termination Transition Period.
(a) References to Liquidation Plan. In connection with the Sale Transaction (as
defined in the Purchase and Sale Agreement, dated as of March 16, 2010 (the “Purchase and Sale
Agreement”), by and between the Company and Tiptree Financial Partners, L.P.), the Company
filed with the SEC a Definitive Proxy Statement pursuant to which the Company’s stockholders
approved the Sale Transaction and a termination of the Plan of Liquidation. Accordingly, all
references to the implementation of the Plan of Liquidation in the Amended and Restated Management
Agreement shall be disregarded and have no further force or effect; provided, however, the
Manager’s portfolio management and other investment related services under the Amended and Restated
Management Agreement shall be limited to the remaining Existing Investments.
(b) Management Team. Notwithstanding the provisions of Section 2(g) of the Amended
and Restated Management Agreement, (i) the Manager shall not be required to provide the Company
with a CEO after the effective date of any employment agreement between the company and an
individual (the “New CEO”) providing for such New CEO to serve as the Company’s Chief
Executive Officer and President, and (ii) on the date of this Agreement, the Company shall execute
an employment agreement with an individual (the “New CFO”) providing for such New CFO to serve as
the Company’s Chief Financial Officer effective as of the date of this Agreement, and the Manager
shall not be required to provide the Company with a CFO after the date of this Agreement (such
date, the “CFO Transition Date”); provided,
however, that until the Termination Effective Date, the Manager shall reasonably
cooperate in assisting the New CEO and the New CFO in fulfilling their duties and responsibilities
to the
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Company. Without limiting the generality of the foregoing, the Manager shall provide
reasonable assistance (including by causing its appropriate employees to execute, at any time prior
to, on or after the Termination Effective Date, appropriate sub-certifications with respect to
periods prior to the CFO Transition Date) to enable such New CEO and New CFO to execute required
tax returns, SEC filings and related certifications with respect to periods ending on or prior to
the Termination Effective Date. Prior to the Termination Effective Date, the Manager agrees not to
make any material changes to its personnel providing services to the Company without the prior
written consent of the Company (which consent will not be unreasonably withheld, conditioned or
delayed), unless any such personnel (x) voluntarily resigns his or her employment or service with
the Manager or (y) fails to comply with the Manager’s code of conduct, in which case the Manager
may terminate such personnel without the consent of the Company.
(c) CIT Employees. It is hereby acknowledged and agreed that those employees of the
Manager or its Affiliates listed on Schedule 1 attached hereto shall be offered employment
by the Company effective on or prior to the Termination Effective Date. The Company agrees that it
will not and that it shall cause its Affiliates not to, prior to the Termination Effective Date and
for a period of twelve months after the Termination Effective Date, directly or indirectly, hire,
solicit, attempt to hire, encourage or induce to terminate employment with the Manager or any of
its Affiliates, any employee of the Manager or its Affiliates, other than those employees listed on
Schedule 1 attached hereto, it being acknowledged that this limitation shall not apply to
any employee of the Manager or its Affiliates that initiates contact with the Company or responds
to a general employment solicitation by the Company.
4. Delivery of Documents.
(a) The Manager shall fully comply with the requirements of Section 13(b) of the Amended and
Restated Management Agreement. Without limiting the generality of the foregoing, the Manager shall
(i) on or prior to November 5, 2010, deliver to the Company all Company Books and Records, all
Company Proprietary Correspondence, all Company Proprietary Agreements and all other documents and
information belonging to the Company and its Subsidiaries and relating, in whole or in part, to the
Company’s business, operations, governance, finances, financial condition, pending or threatened
litigation, past or current investments (other than those sold to the Manager pursuant to the
Mortgage Purchase Agreement), taxes or tax returns, REIT compliance, meetings of the Board of
Directors of the Company and committees thereof, regulatory compliance and other corporate, legal
and business functions (collectively, “Company Information”) that is in the custody of the
Manager in physical (printed or written) form as of November 4, 2010, (ii) on or prior to November
10, 2010, deliver to the Company all Company Information that is in the custody of the Manager in
electronic form as of November 1, 2010; (iii) within five business days of the Termination
Effective Date, deliver to the Company all Company Information that is in the custody of the
Manager in electronic form and that was sent or received by any Care Service Providers during, or
otherwise relates to, the period from November 1, 2010 through the date immediately preceding the
Termination Effective Date, and (iv) as soon as reasonably practicable after the
Termination Effective Date, deliver to the Company all Company Information in physical
(printed or written) or electronic form that is in the custody of the Manager as of the Termination
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Effective Date and that has not been previously provided to the Company pursuant to clauses (i),
(ii) or (iii) above. Notwithstanding the foregoing in this clause (a), on or prior to December
10, 2010, the Manager shall deliver to the Company all Company Information that is in the custody
of the Manager in electronic form relating to the accounts receivable of the Company or the
PeopleSoft Suite (electronic files that are part of the PeopleSoft application related to the
Company’s general ledger, fixed assets, and accounts payable or otherwise related thereto) (the
“PeopleSoft Information”) that relates to the period from October 1, 2010 through November 30,
2010; provided, however, if the Termination Effective Date occurs on or after November 30, 2010,
then the Manager shall provide the previously undelivered monthly accounts receivable and
PeopleSoft Information (commencing with December, 2010) on or before the tenth day after the end of
each month during all or a portion of which this Agreement remains in effect commencing with
January 2011.
(b) For the avoidance of doubt, the Manager shall not be required to deliver to the Company
any documents, information or correspondence relating to Company that belong to the Manager,
including without limitation, any employment or other information relating to employees of the
Manager that are performing or have performed services for or on behalf of the Company pursuant to
the Amended and Restated Management Agreement or the Original Management Agreement or any Manager
Proprietary Correspondence.
(c) Subject to Section 8 hereof, notwithstanding anything to the contrary contained
herein or in the Amended and Restated Management Agreement, the Manager may retain a copy of all or
any portion of the information and documents delivered to the Company pursuant to this Agreement.
To the extent that the Manager delivers to the Company any documents, information or correspondence
including, without limitation, any Manager Proprietary Correspondence, other than Company
Information (“Manager Proprietary Information”), the Company hereby irrevocably waives any claims
or legal actions against the Manager or any of its Affiliates that is based upon any such Manager
Proprietary Information.
5. Access and Information.
(a) Subject to Section 8 hereof and the provisions of the Joint Defense Agreement (if
applicable), upon receiving reasonable prior notice, the Manager hereby agrees during normal
business hours to provide to the Company and its authorized counsel, accountants and other
designated representatives on a timely basis reasonable access to the books, records and personnel
of the Manager and its Affiliates that relate to the business of the Company and its Subsidiaries,
other than such information, documents or other materials that are subject to attorney-client
privilege or confidentiality restrictions of third parties, in each case, only to the extent that
such access or information is reasonably required or requested by the Company or its designated
representatives in connection with (i) the preparation, filing or publication of periodic, current
and other reports, schedules or forms required to be filed by the Company or its directors,
officers or Affiliates with the Securities and Exchange Commission (“SEC”), (ii) the preparation,
filing or publication of registration statements filed or to be filed by the Company with the SEC,
(iii) the preparation, filing or publication of the Company’s annual and quarterly financial
statements, (iv) assessment by the Company’s management of the effectiveness of
Company’s disclosure controls and procedures and the Company’s internal control over financial
reporting, (v) the audit by the Company’s auditors of the Company’s internal control over
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financial
reporting and management’s assessment thereof, (vi) the preparation or filing of any federal, state
or local tax returns or tax related elections by the Company or any of its Subsidiaries, (vii) the
defense or prosecution of any Company Action (as such term is defined in the Joint Defense
Agreement), (viii) the evaluation of, or response to, any written or oral claim, question or
request for information or documents in connection with any pending or threatened legal or
administrative proceeding, review, interrogatory, subpoena, demand or other judicial process or any
governmental inquiry of, or investigation or audit of, the Company or any of its Subsidiaries,
including any audit, proceeding or contest initiated by any federal, state or local tax authority,
(ix) the evaluation of, or response to, any written request for information or official comment
from a Governmental Entity or a stock exchange on which the Company’s securities are listed, such
as in connection with responding to a comment letter from the SEC or a request for information from
the New York Stock Exchange or other securities exchange or system on which the Company’s
securities are listed or traded, and/or (x) any other reasonable business purpose of the Company or
its Subsidiaries, in each case at no additional cost to the Company other than the reimbursement of
actual out-of-pocket costs incurred by the Manager or its Affiliates in connection therewith;
provided, however, that in the event that the Manager would have been required by
the foregoing provisions of this Section 5(a) to disclose any such information to the
Company or its designated representatives but for any attorney-client privilege or confidentiality
restrictions of third parties, the Manager shall use commercially reasonable efforts to seek to
obtain the consent of such third parties to such disclosure. Nothing herein shall require the
Manager to violate any agreement with any third party regarding the confidentiality of confidential
or proprietary information relating to such third party or its business (provided that such
agreement was not executed in contravention of any existing agreement between the Company and the
Manager, or any Affiliate thereof). Notwithstanding anything to the contrary contained herein,
such access and provision of information after the Termination Effective Date shall not be required
to the extent such access and provision of information would result in an undue burden on the
Manager or its Affiliates or would unreasonably interfere with any of the normal functions or
duties of the employees of the Manager or its Affiliates.
(b) Subject to Section 8 hereof and the provisions of the Joint Defense Agreement (if
applicable), upon receiving reasonable prior notice, the Company hereby agrees during normal
business hours to provide to the Manager and its authorized counsel, accountants and other
designated representatives on a timely basis reasonable access to the books, records and personnel
of the Company and its Subsidiaries that relate to the business of the Company and its Subsidiaries
prior to the Termination Effective Date, other than such information, documents or other materials
that are subject to attorney-client privilege or confidentiality restrictions of third parties, in
each case, only to the extent that such access or information is reasonably required or requested
by the Manager or its designated representatives in connection with (i) the preparation, filing or
publication of periodic, current and other reports, schedules or forms required to be filed by the
Manager or its directors, officers or Affiliates with the SEC, (ii) the preparation, filing or
publication of the Manager’s or its Affiliates’ annual and quarterly financial statements, (iii)
assessment by the Manager’s or its Affiliates’ management of the effectiveness of the Manager’s or
its Affiliates’ disclosure controls and procedures and the Manager’s or its Affiliates’ internal
control over financial reporting, (iv) the audit by the Manager’s or its Affiliates’ auditors of
the Manager’s or its Affiliates’ internal control over
financial reporting and management’s assessment thereof, (v) the preparation or filing of any
federal, state or local tax returns or tax related elections by the Manager or its Affiliates, (vi)
the
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defense or prosecution of any Manager Action (as such term is defined in the Joint Defense
Agreement), (vii) the evaluation of, or response to, any written or oral claim, question or request
for information or documents in connection with any pending or threatened legal or administrative
proceeding, review, interrogatory, subpoena, demand or other judicial process or any governmental
inquiry of, or investigation or audit of, the Manager or its Affiliates, including any audit,
proceeding or contest initiated by any federal, state or local tax authority, (viii) the evaluation
of, or response to, any written request for information or official comment from a Governmental
Entity or a stock exchange on which the Manager’s or its Affiliates’ securities are listed, such as
in connection with responding to a comment letter from the SEC or a request for information from
the New York Stock Exchange or other securities exchange or system on which the Manager’s or its
Affiliates’ securities are listed or traded, and/or (x) any other reasonable business purpose of
the Manager, in each case at no additional cost to the Manager or its Affiliates other than the
reimbursement of actual out-of-pocket costs incurred by the Company or its Affiliates in connection
therewith; provided, however, that in the event that the Company would have been
required by the foregoing provisions of this Section 5(b) to disclose any such information
to the Manager or its designated representatives but for any attorney-client privilege or
confidentiality restrictions of third parties, the Company shall use commercially efforts to seek
to obtain the consent of such third parties to such disclosure. Nothing herein shall require the
Company to violate any agreement with any third party regarding the confidentiality of confidential
or proprietary information relating to such third party or its business (provided that such
agreement was not executed in contravention of any existing agreement between the Company and the
Manager, or any Affiliate thereof). Notwithstanding anything to the contrary contained herein,
such access and provision of information after the Termination Effective Date shall not be required
to the extent such access and provision of information would result in an undue burden on the
Company or its Affiliates or would unreasonably interfere with any of the normal functions or
duties of the employees of the Company or its Affiliates.
6. Cooperation.
(a) From the date hereof until the date that is 180 days after the Termination Effective Date,
the Manager shall, and shall cause its Affiliates to, provide reasonable cooperation and assistance
to the Company in connection with the orderly and efficient transition of the day-to-day management
of the Company from the Manager to officers of the Company and its representatives at no additional
cost to the Company other than (i) for the period between the date hereof and the Termination
Effective Date, the payments to be remitted by the Company as set forth in Section 2 hereof, and
(ii) for the period after the Termination Effective Date, the reimbursement of actual out-of-pocket
costs incurred by the Manager or its Affiliates in connection therewith; provided,
however, that such cooperation and assistance after the Termination Effective Date shall
not be required to the extent such cooperation and assistance would result in an undue burden on
the Manager or its Affiliates or would unreasonably interfere with any of the normal functions or
duties of the employees of the Manager or its Affiliates.
(b) From the date hereof until the date that is 180 days after the Termination Effective Date,
the Company shall, and shall cause its Affiliates to, respond to reasonable inquiries of the
Manager in connection with the orderly and efficient transition of the day-to-day
management of the Company from the Manager to officers of the Company and its representatives
at no additional cost to the Manager other than for the period after the
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Termination Effective
Date, the reimbursement of actual out-of-pocket costs incurred by the Company or its Affiliates in
connection therewith; provided, however, that such response to inquiries after the
Termination Effective Date shall not be required to the extent such response to inquiries would
result in an undue burden on the Company or its Affiliates or would unreasonably interfere with any
of the normal functions or duties of the employees of the Company or its Affiliates.
7. [Reserved]
8. Mutual Confidentiality.
(a) For a period of two (2) years from the Termination Effective Date (unless a longer time is
explicitly required pursuant to Company Proprietary Agreements, then for such longer time), the
Manager shall hold, and shall cause each of its then current officers, employees, agents,
consultants and advisors and each of its Subsidiaries and Affiliates and their respective then
current officers, employees, agents, consultants and advisors to hold, in strict confidence, and
not disclose or release or use, without the prior written consent of the Company (which may be
withheld in the Company’s sole and absolute discretion, except where disclosure is required by
applicable Law), any and all Confidential Information (as defined herein) concerning the Company
and its Subsidiaries and Affiliates; provided, that the Manager may disclose, or may permit
disclosure of, Confidential Information concerning the Company and its Subsidiaries and Affiliates
(i) to each of its then-current officers, employees, agents, consultants and advisors and each of
its Subsidiaries and Affiliates and their respective officers, employees, agents, consultants and
advisors, who have a need to know such information and are informed of their obligation to hold
such information confidential to the same extent as is applicable to the Manager and in respect of
whose failure to comply with such obligations, the Manager will be responsible, (ii) if the Manager
or any of its Subsidiaries or Affiliates is required or compelled to disclose any such Confidential
Information by judicial or administrative process or by other requirements of Law or stock exchange
rule or (iii) as necessary in order to permit Manager or its Affiliates to prepare and disclose its
financial statements, tax returns or other required disclosures. Notwithstanding the foregoing, in
the event that any demand or request for disclosure of Confidential Information is made pursuant to
clause (ii) above, the Manager shall, unless prohibited by Law or requested in connection with a
routine audit or exam of its books and records by any regulatory authority having jurisdiction over
it, promptly notify the Company of the existence of such request or demand and shall provide the
Company a reasonable opportunity to seek an appropriate protective order or other remedy, which the
Company and the Manager will cooperate in obtaining. In the event that such appropriate protective
order or other remedy is not obtained, the Manager shall furnish, or cause to be furnished, only
that portion of the Confidential Information that is legally required to be disclosed and shall
take commercially reasonable steps to ensure that confidential treatment is accorded such
information.
(b) For a period of two (2) years from the Termination Effective Date, the Company shall hold,
and shall cause each of its then current officers, employees, agents, consultants and advisors and
each of its Subsidiaries and Affiliates and their respective then current officers, employees,
agents, consultants and advisors to hold, in strict confidence, and not
disclose or release or use, without the prior written consent of the Manager (which may be
withheld in the Manager’s sole and absolute discretion, except where disclosure is required by
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applicable Law), any and all Confidential Information (as defined herein) concerning the Manager
and its Subsidiaries (other than the Company and its Subsidiaries) and Affiliates;
provided, that the Company may disclose, or may permit disclosure of, Confidential
Information concerning the Manager and its Subsidiaries and Affiliates (i) to each of its officers,
employees, agents, consultants and advisors and each of its Subsidiaries and Affiliates and their
respective officers, employees, agents, consultants and advisors who have a need to know such
information and are informed of their obligation to hold such information confidential to the same
extent as is applicable to the Company and in respect of whose failure to comply with such
obligations, the Company will be responsible, (ii) if the Company or any of its Subsidiaries or
Affiliates is required or compelled to disclose any such Confidential Information by judicial or
administrative process or by other requirements of Law or stock exchange rule or (iii) as necessary
in order to permit the Company or its Affiliates to prepare and disclose its financial statements,
tax returns or other required disclosures. Notwithstanding the foregoing, in the event that any
demand or request for disclosure of Confidential Information is made pursuant to clause (ii) above,
the Company shall, unless prohibited by Law or requested in connection with a routine audit or exam
of its books and records by any regulatory authority having jurisdiction over it, promptly notify
the Manager of the existence of such request or demand and shall provide the Manager a reasonable
opportunity to seek an appropriate protective order or other remedy, which the Company and the
Manager will cooperate in obtaining. In the event that such appropriate protective order or other
remedy is not obtained, the Company shall furnish, or cause to be furnished, only that portion of
the Confidential Information that is legally required to be disclosed and shall take commercially
reasonable steps to ensure that confidential treatment is accorded such information.
(c) Notwithstanding anything to the contrary in this Section 8, (i) the Parties shall
be deemed to have satisfied their obligations hereunder with respect to Confidential Information if
they exercise the same degree of care (but no less than a reasonable degree of care) as they take
to preserve confidentiality for their own similar information and (ii) confidentiality obligations
provided for in any agreement between each Party or its Subsidiaries and their respective employees
shall remain in full force and effect.
(d) Notwithstanding anything to the contrary in this Agreement or the Amended and Restated
Management Agreement, Section 5 of the Amended and Restated Management Agreement shall terminate
and be of no further force and effect upon termination of the Amended and Restated Management
Agreement, with the effect that the provisions thereof shall be superseded by the provisions of
this Section 8 from and after the Termination Effective Date.
(e) In no event shall anything set forth in this Section 8 prohibit a Party from
seeking to enter into a credit lending relationship with any Person including, without limitation,
any of the other Party’s past, present or future customers provided that such Party complies with
the provisions of this Section 8..
9. Ownership of Information. Any information owned by one Party or any of its
Subsidiaries or Affiliates that is provided to a requesting Party pursuant to this Agreement or the
Joint Defense Agreement shall be deemed to remain the property of the providing Party. Unless
11
specifically set forth herein, nothing contained in this Agreement shall be construed as granting
or conferring rights of license or otherwise in any such information.
10. Retention of Records. The Manager shall, and shall cause its Subsidiaries and
Affiliates to, preserve and keep any and all contracts, agreements, instruments, documents, books,
records and files that in any way relate to the Company or its Subsidiaries (collectively
“Records”), whether in electronic form or otherwise, including related back-up tapes, until
the later of (a) the fourth (4th) anniversary of the Termination Effective Date, and (b) the date
on which such Records are no longer required to be retained pursuant to the Manager’s applicable
records retention policy as in effect immediately prior to the Termination Effective Date.
11. Survival of Terms. The Parties acknowledge and agree that, notwithstanding the
termination of the Amended and Restated Management Agreement on the Termination Effective Date,
Sections 7, 8, 9, 13(b), 14 and 17 of the Amended and Restated Management Agreement shall survive
such termination and shall continue to be in full force and effect for the time periods and under
the terms stated in those respective sections of the Amended and Restated Management Agreement.
All other provisions of the Amended and Restated Management Agreement shall terminate and be of no
further force or effect effective as of the Termination Effective Date.
12. Miscellaneous.
(a) Further Assurances. In addition to and without limiting the actions specifically
provided for herein and in the Joint Defense Agreement, each Party shall cooperate with the other
Party and use (and cause its Subsidiaries and Affiliates to use) commercially reasonable efforts on
or after the Termination Effective Date to take or cause to be taken all actions, and to do or
cause to be done all things, reasonably necessary on its part to effectuate the terms contained in
this Agreement and in the Joint Defense Agreement; provided, however that no Party
shall be required to take any action or do anything that would result in an undue burden on it or
its Affiliates or would unreasonably interfere with any of the normal functions or duties of its
employees or employees of its Affiliates.
(b) Severability. If any provision of this Agreement is held invalid or unenforceable
by any court of competent jurisdiction, the other provisions of this Agreement will remain in full
force and effect. Any provision of this Agreement held invalid or unenforceable only in part or
degree will remain in full force and effect to the extent not held invalid or unenforceable.
(c) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE
UNITED STATES DISTRICT COURT FOR ANY DISTRICT WITHIN SUCH STATE FOR THE PURPOSE OF ANY ACTION OR
JUDGMENT RELATING TO OR ARISING
12
OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY AND TO THE LAYING OF
VENUE IN SUCH COURT.
(d) WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(e) Entire Agreement. This Agreement, the surviving provisions of the Amended and
Restated Management Agreement (as provided herein) and the Joint Defense Agreement constitute the
entire agreement between the Parties hereto with regard to the matters contained herein,
superseding all prior understandings and agreements whether written or oral related thereto. This
Agreement may not be amended or revised except by a writing signed by both of the Parties.
(f) Representation of Counsel. Both Parties acknowledge that they have had the advice
and guidance of legal counsel and have jointly assisted in the drafting of this Agreement.
(g) No Admission of Liability. It is understood and agreed that nothing contained
herein shall be construed as an admission of liability on the part of any of the Parties hereto.
(h) Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original but all of which shall constitute one and the same instrument. One or more
counterparts of this Agreement may be delivered by facsimile, with the intention that delivery by
such means shall have the same effect as delivery of an original counterpart thereof.
(i) Assignment. Except as otherwise provided for in this Agreement, this Agreement
shall not be assignable, in whole or in part, directly or indirectly, by any Party without the
prior written consent of the other Parties, and any attempt to assign any rights or obligations
arising under this Agreement without such consent shall be void; provided, that a Party may
assign this Agreement in connection with a merger transaction in which such Party is not the
surviving entity or the sale by such Party of all or substantially all of its assets;
provided, that the surviving entity of such merger or the transferee of such assets shall
agree in writing, reasonably satisfactory to the other Party, to be bound by the terms of this
Agreement as if named as a “Party” hereto.
(j) Mutual Release. In consideration of the execution and delivery of this Agreement
and performance of each Party’s obligations hereunder, each Party shall deliver to the
13
other Party, on the Termination Effective Date, a release in substantially the form attached
hereto as Exhibit A.
IN WITNESS WHEREOF, each of the undersigned have executed and delivered this Agreement as the
date first above written.
| CARE INVESTMENT TRUST INC. | CIT HEALTHCARE LLC | |||||||
By: |
By: | |||||||
| Name: | Xxxxxxxxx (Xxxxx) X. Xxxx Xx. | Name: | Xxxxxx X. Xxxxxx | |||||
| Its: | Chief Executive Officer and President | Its: | President | |||||
14
EXHIBIT A
GENERAL MUTUAL RELEASE
This General Mutual Release (this “Release”) is being executed and delivered as of
____________, 2010, in accordance with Section 12(j) of that certain Termination, Cooperation and
Confidentiality Agreement (as amended, supplemented and modified from time to time, the
“Termination Agreement”), by and between Care Investment Trust Inc., a Maryland corporation (the
“Company”), and CIT Healthcare LLC, a Delaware limited liability company (the “Manager”; and
together with the Company, collectively, the “Parties” and each a “Party”). Capitalized terms used
in this Release without definition have the respective meanings given to them in the Termination
Agreement.
WHEREAS, in consideration of each Party’s agreement to execute and deliver the Termination
Agreement, each Party has agreed to deliver to the other Party, on or prior to the Termination
Effective Date, this Release.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged and intending to be legally bound, the Parties hereby agrees as follows:
1. General Release.
(a) Effective as of the Termination Effective Date, each Party hereto hereby releases and
forever discharges the other Party hereto and such Party’s stockholders, members, directors,
officers, employees, representatives, lenders, agents, successors and assigns from any and all
losses, liabilities, damages, lawsuits, actions, causes of actions, debts, demands, obligations,
suits in law or equity and claims of any kind, whether known or unknown, actual or contingent, or
which now exist or might exist in the future, which such Party now has, has ever had or may
hereafter have against the other Party arising prior to the Termination Effective Date pursuant to
or in connection with the Amended and Restated Management Agreement or the Original Management
Agreement; provided, however, that nothing contained herein shall operate to
release (i) any rights, obligations, covenants, representations and warranties of the Parties
arising under (A) the Termination Agreement, or (B) Section 8 of the Amended and Restated
Management Agreement, or (ii) any claims, causes of action or proceedings against a Party related
to fraudulent actions of such Party.
(b) Each Party hereby irrevocably covenants to refrain from, directly or indirectly, asserting
any claim or demand, or commencing, instituting or causing to be commenced, any proceeding of any
kind against the other Party based upon any matter purported to be released hereby.
(c) Without in any way limiting any of the rights and remedies otherwise available to the
other Party, each Party (each Party in such capacity, the “Releasing Party”) agrees to
indemnify, defend and hold harmless the other Party (each other Party in such capacity, the
“Released Party”) from and against any and all loss, liability, claim, damage (including
incidental and consequential damage) or expense (including costs of investigation and defense
15
and reasonable attorneys’ fees), whether or not involving third party claims, arising directly
or indirectly from or in connection with (i) the assertion by or on behalf of the Releasing Party
of any claim or other matter purported to be released pursuant to this Release, and (ii) the
assertion by any third party of any claim or demand against the Released Party which claim or
demand arises directly or indirectly from, or in connection with, any assertion by or on behalf of
the Releasing Party against such third party of any claims or other matters purported to be
released pursuant to this Release.
2. Miscellaneous.
(a) Further Assurances. The Company and the Manager agree to execute any and all
documents and writings and take such other actions that may be reasonably necessary to effectuate
the terms contained in this Release.
(b) Severability. If any provision of this Release is held invalid or unenforceable
by any court of competent jurisdiction, the other provisions of this Release will remain in full
force and effect. Any provision of this Release held invalid or unenforceable only in part or
degree will remain in full force and effect to the extent not held invalid or unenforceable.
(c) GOVERNING LAW. THIS RELEASE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS RELEASE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE
UNITED STATES DISTRICT COURT FOR ANY DISTRICT WITHIN SUCH STATE FOR THE PURPOSE OF ANY ACTION OR
JUDGMENT RELATING TO OR ARISING OUT OF THIS RELEASE OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY
AND TO THE LAYING OF VENUE IN SUCH COURT.
(d) WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS RELEASE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH OR
RELATING TO THIS RELEASE OR THE TRANSACTIONS CONTEMPLATED BY THIS RELEASE.
(e) Entire Agreement. This Release constitutes the entire agreement between the
Parties hereto with regard to the matters contained herein, superseding all prior understandings
and agreements whether written or oral related thereto. This Release may not be amended or revised
except by a writing signed by both of the Parties.
(f) Representation of Counsel. Both Parties acknowledge that they have had the advice
and guidance of legal counsel and have jointly assisted in the drafting of this Release.
16
(g) No Admission of Liability. It is understood and agreed that nothing contained
herein shall be construed as an admission of liability on the part of any of the Parties hereto.
(h) Counterparts. This Release may be executed in counterparts, each of which shall
be deemed an original but all of which shall constitute one and the same instrument. One or more
counterparts of this Release may be delivered by facsimile, with the intention that delivery by
such means shall have the same effect as delivery of an original counterpart thereof.
IN WITNESS WHEREOF, each of the undersigned have execute and delivered this Release as the
date first above written.
| CARE INVESTMENT TRUST INC. | CIT HEALTHCARE LLC | |||||||||||
By: |
By: | |||||||||||
| Name: | Name: | |||||||||||
| Its: | Its: | |||||||||||
17
SCHEDULE 1
CIT Employees Offered Employment by the Company
Xxxxxxxxx (Xxxxx) Xxxx
Xxxxxxx Xxxxxxxx
Xxxxx Xxxxx
18
SCHEDULE 2
Care Service Providers
Xxxxxxxxx Xxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxxxxx
Xxxx Xxxxxx
Xxxx Xxxxx
Xxxxx Xxxxxxx
Xxxxxxx XxXxxxxx
Xxxxxx X’Xxxxx
Xxxxx Xxxxxxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxxxxx
Xxxx Xxxxxx
Xxxx Xxxxx
Xxxxx Xxxxxxx
Xxxxxxx XxXxxxxx
Xxxxxx X’Xxxxx
Xxxxx Xxxxxxxxxxx
Xxxxxx Xxxxxxx**
Xxxxxxx Xxxxxxxx**
Xxxx Xxxxxxx*
Xxxx X’Xxxxx*
Xxxxxxx Xxxxxxxx**
Xxxx Xxxxxxx*
Xxxx X’Xxxxx*
| ** | Only Company Information relating to Senior Management Concepts, Cambridge, Xxxxxxxx and Xxxxxxxxxxxx will be delivered. | |
| * | Only Company Information relating to Senior Management Concepts, Cambridge and Xxxxxxxx will be delivered. |
19
