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Exhibit 10.1(i)
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT ("Agreement"), dated as of June 4, 1996, by and between
Golder, Thoma, Cressey, Rauner, Inc., a Delaware Corporation ("GTCR"), and
National Equipment Services, Inc., a Delaware corporation (the "Company").
Capitalized terms used but not otherwise defined herein have the meanings set
forth in the Purchase Agreement (as defined herein).
WHEREAS, Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P., an Illinois limited
partnership ("Purchaser"), of which GTCR is the indirect general partner, will
purchase (the "Investment"), pursuant to that certain Purchase Agreement (the
"Purchase Agreement") of even date herewith between the Company and Purchaser,
a portion of the Company's Common Stock;
WHEREAS, the Company desires to receive financial and management
consulting services from GTCR, and obtain the benefit of the experience of GTCR
in business and financial management generally and its knowledge of the Company
and the Company's financial affairs in particular; and
WHEREAS, in connection with the Investment, GTCR is willing to provide
financial and management consulting services to the Company and the
compensation arrangements set forth in this Agreement are designed to
compensate GTCR for such services.
NOW, THEREFORE, in consideration of the foregoing premises and the
respective agreements hereinafter set forth and the mutual benefits to be
derived herefrom, GTCR and the Company hereby agree as follows:
1. Engagement. The Company hereby engages GTCR as a financial and
management consultant, and GTCR hereby agrees to provide financial and
management consulting services to the Company, all on the terms and subject to
the conditions set forth below.
2. Services of GTCR. GTCR hereby agrees during the term of this
engagement to consult with the Company's Board and management of the Company
and its subsidiaries in such manner and on such business and financial matters
as may be reasonably requested from time to time by the Board, including but
not limited to:
(i) corporate strategy;
(ii) budgeting of future corporate investments;
(iii) acquisition and divestiture strategies; and
(iv) debt and equity financings.
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3. Personnel. GTCR shall provide and devote to the performance of this
Agreement such partners, employees and agents of GTCR as GTCR shall deem
appropriate for the furnishing of the services required thereby.
4. Investment Fee. At the time of the closing of any debt or equity
financing of the Company (other than such financing by any Executive or any
other member of the Company's senior management), the Company shall pay to GTCR
a fee in immediately available funds equal to one percent (1%) of the aggregate
amount of proceeds made available (whether or not then drawn down) to the
Company in connection with such financing.
5. Management Fee. The Company shall pay to GTCR within 90 days after the
end of each fiscal year subsequent to the consummation of the Base Acquisition
(as defined in the Management Agreements) a management fee equal to $200,000.
6. Expenses. The Company shall promptly reimburse GTCR for such
reasonable travel expenses and other out-of-pocket fees and expenses as may be
incurred by GTCR, its directors, officers and employees in connection with the
Closing and in connection with the rendering of services hereunder.
7. Term. This Agreement will continue from the date hereof until
Purchaser ceases to own at least 10% of the Investor Common Stock. No
termination of this Agreement, whether pursuant to this paragraph or otherwise,
shall affect the Company's obligations with respect to the fees, costs and
expenses incurred by GTCR in rendering services hereunder and not reimbursed by
the Company as of the effective date of such termination.
8. Liability. Neither GTCR nor any of its affiliates, partners, employees
or agents shall be liable to the Company or its subsidiaries or affiliates for
any loss, liability, damage or expense arising out of or in connection with the
performance of services contemplated by this Agreement, unless such loss,
liability, damage or expense shall be proven to result directly from the gross
negligence or willful misconduct of GTCR.
9. Indemnification. The Company agrees to indemnify and hold harmless
GTCR, its partners, affiliates, officers, agents and employees against and
from any and all loss, liability, suits, claims, costs, damages and expenses
(including attorneys' fees) arising from their performance hereunder, except as
a result of their gross negligence or intentional wrongdoing.
10. GTCR an Independent Contractor. GTCR and the Company agree that GTCR
shall perform services hereunder as an independent contractor, retaining
control over and responsibility for its own operations and personnel. Neither
GTCR nor its directors, officers, or employees shall be considered employees or
agents of the Company as a result of this Agreement nor shall any of them have
authority to contract in the name of or bind the Company, except as expressly
agreed to in writing by the Company.
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11. Notices. Any notice, report or payment required or permitted to be
given or made under this Agreement by one party to the other shall be deemed to
have been duly given or made if personally delivered or, if mailed, when mailed
by registered or certified mail, postage prepaid, to the other party at the
following addresses (or at such other address as shall be given in writing by
one party to the other):
If to GTCR:
Golder, Thoma, Cressey, Rauner, Inc.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx
If to the Company:
National Equipment Services, Inc.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: President
12. Entire Agreement; Modification. This Agreement (a) contains the
complete and entire understanding and agreement of GTCR and the Company with
respect to the subject matter hereof; and (b) supersedes all prior and
contemporaneous understandings, conditions and agreements, oral or written,
express or implied, respecting the engagement of GTCR in connection with the
subject matter hereof.
13. Waiver of Breach. The waiver by either party of a breach of any
provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach of that provision or any other
provision hereof.
14. Assignment. Neither GTCR nor the Company may assign its rights or
obligations under this Agreement without the express written consent of the
other; provided that GTCR, without the consent of the Company, may assign its
rights and obligations hereunder to any successor entity to GTCR.
15. Successors. This Agreement and all the obligations and benefits
hereunder shall inure to the successors and permitted assigns of the parties.
16. Counterparts. This Agreement may be executed and delivered by each
party hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original and both of which taken together shall
constitute one and the same agreement.
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17. Choice of Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Illinois, without giving
effect to any choice of law or conflict of law provision or rule (whether of
the State of Illinois or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Illinois.
* * * * *
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IN WITNESS WHEREOF, GTCR and the Company have caused this Professional
Services Agreement to be duly executed and delivered on the date and year first
above written.
GOLDER, THOMA, CRESSEY, RAUNER, INC.
By: /s/ Xxxx X. Xxxxx
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Its: Principal
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NATIONAL EQUIPMENT SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Its: President
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