EXHIBIT 10.9
MANAGEMENT SERVICES AGREEMENT
This Management Services Agreement (this "Agreement") is entered into
by and between Capital C Energy Operations, LP, a Delaware limited partnership
("Capital C"), and Xxxxxx & Xxxxx Corporation, an Ohio corporation ("Xxxxxx &
Blake"), as of July 7, 2004.
RECITALS
Whereas, as of the date hereof, Xxxxxx & Xxxxx is a wholly owned
subsidiary of Capital C; and
Whereas, Capital C Energy, LLC, a Delaware limited liability company
(the "General Partner GP") is the general partner of Capital C Energy, LP, a
Delaware limited partnership, and Capital C Energy, LP is the general partner of
Capital C; and
WHEREAS, Xxxxxx & Blake desires that certain officers of the General
Partner GP provide management services to Xxxxxx & Xxxxx from time to time;
Now, Therefore, in consideration of these recitals and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Capital C and Xxxxxx & Blake agree as follows, intending to be
legally bound:
1. MANAGEMENT SERVICES.
1.1 Services To Be Provided. During the term of this Agreement, in
consideration for the payments to be made by Xxxxxx & Xxxxx as described herein,
certain individual officers, employees, affiliates, agents or representatives of
Capital C or the General Partner GP (the "Officers"), initially Frost W.
Xxxxxxx, Xxxxx Xxx Xxxxx, Xx. and X. Xxx Xxxxxx, shall dedicate substantial time
and resources to providing the management services described in this Section 1.1
(collectively, the "Services") without additional direct consideration from
Xxxxxx & Blake unless otherwise determined appropriate by the board of directors
of Xxxxxx & Xxxxx:
(a) General management supervision and oversight, in the
capacity as officers of Xxxxxx & Blake, as may be approved, designated
and limited by the Board of Directors of Xxxxxx & Xxxxx from time to
time;
(b) Financial advisory services, including, but not limited
to, negotiating on behalf of Xxxxxx & Blake with respect to any debt
financing;
(c) Evaluation of potential acquisitions and other business
opportunities; and
(d) Strategic consulting services including, but not limited
to, strategic business planning and participation in strategy
implementation.
1.2 Authority; Reimbursement. The Officers are authorized to make
expenditures and incur obligations to the extent necessary to provide the
Services to Xxxxxx & Xxxxx in a lawful, safe and professional manner. The
Officers shall be entitled to reimbursement of all out-of-pocket expenses
reasonably incurred in connection with this Agreement.
2. COMPENSATION.
In consideration for the provision of the Services pursuant to this
Agreement, Capital C shall be entitled to a management fee (the "Management
Fee"), in an amount equal to two hundred fifty thousand dollars ($250,000) per
quarter. The Management Fee shall be payable in advance on the first day of each
calendar quarter. The Management Fee shall be appropriately prorated if this
Agreement shall commence on other than the first day of a calendar quarter.
Xxxxxx & Blake shall not be entitled to recoupment of any Management Fee paid in
advance of the termination of this Agreement. Notwithstanding anything to the
contrary in this Agreement, the Management Fee shall not be due and payable at
any time Xxxxxx & Xxxxx is in default, or any event of default exists, under the
Credit and Guaranty Agreement, dated as of July 7, 2004, among Xxxxxx & Blake,
as borrower, certain subsidiaries of Xxxxxx & Xxxxx, as guarantors, and Xxxxxxx
Sachs Credit Partners, L.P., as sole lead arranger, sole bookrunner, sole
syndication agent and administrative agent.
3. TERM AND TERMINATION.
3.1 Initial Term. This Agreement shall have an initial term commencing
on the date hereof and ending on July 7, 2014, unless otherwise terminated
pursuant to the terms hereof. This Agreement shall terminate immediately upon a
sale of all or substantially all of the assets, or dissolution and winding up,
of Xxxxxx & Xxxxx.
3.2 Renewal; Termination. This Agreement shall be renewed automatically
for additional consecutive twelve-month terms, unless either party provides
notice to the other of its intent not to renew not more than sixty days and not
less than twenty days prior to the end of the term. This Agreement may be
terminated only by a failure to renew.
3.3 Officers. Notwithstanding anything in this Agreement to the
contrary, the continued employment of Frost W. Xxxxxxx, Xxxxx Xxx Xxxxx, Xx. and
X. Xxx Xxxxxx by Capital C or the General Partner GP shall not be a condition to
the continuing effectiveness of this Agreement, and the Services may be provided
by any officers, employees, affiliates, agents or representatives of Capital C
or the General Partner GP.
4. DISPUTE RESOLUTION.
All disputes arising out of this Agreement, any of the provisions
hereof or the performance of either party hereunder that the parties are unable
to resolve directly between themselves shall be settled by arbitration in
Houston, Texas (unless Xxxxxx & Blake and Capital C agree upon another location)
before three arbitrators in accordance with the rules then in effect of the
American Arbitration Association.
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5. INDEMNIFICATION AND TAXES.
5.1 Indemnification. Xxxxxx & Xxxxx hereby agrees to release,
indemnify, defend, protect and hold harmless Capital C, the General Partner GP,
the Officers and their affiliates, agents and representatives from and against
all claims, losses, liabilities and expenses, including, but not limited to,
legal fees and expenses, arising from any action taken or not taken by Capital
C, the General Partner GP, the Officers or their affiliates, agents or
representatives in connection with their performance under this Agreement,
except to the extent such claim, loss, liability or expense is directly
attributable to gross negligence or willful misconduct. The indemnification
provisions of this Agreement shall survive termination of this Agreement.
5.2 Taxes. Xxxxxx & Xxxxx is responsible for the payment of all
tariffs, duties and taxes (excluding U.S. federal and state taxation of the
overall net income of Capital C) imposed by any domestic or foreign government
or governmental agency in connection with this Agreement, however designated,
levied or assessed, including without limitation, state and local income, lease,
personal, sales and use taxes.
6. MISCELLANEOUS.
6.1 Notices. All consents, approvals, notices, requests, demands,
instructions and other communications required or permitted to be given
hereunder shall be in writing and shall be (i) delivered personally; (ii) mailed
by registered mail, or U.S. certified mail, return receipt requested, postage
prepaid; (iii) delivered by Federal Express or other reputable U.S. overnight
courier service; or (iv) delivered by facsimile transmission (receipt of such
transmission to be acknowledged by the recipient by facsimile transmission);
(a) if to Capital C, to:
Capital C Energy Operations, LP
% Capital C Energy, LLC
000 Xxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Frost X. Xxxxxxx
Fax: 000-000-0000
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(b) if to Xxxxxx & Blake, to:
Xxxxxx & Xxxxx Corporation
0000 Xxxxxxxx Xx.
Xxxxx Xxxxxx, Xxxx 00000
Attn: Chief Executive Officer
Fax: (000) 000-0000
or to such other place as any party may designate by written notice to the other
party. All notices shall be deemed given on the date of receipt at the
appropriate address, except in the case of facsimile transmissions received
after the normal close of business, which shall be deemed given on the next
business day.
6.2 Force Majeure. Neither Capital C nor Xxxxxx & Blake will be liable
for nonperformance or defective or late performance of any of its obligations
hereunder to the extent and for such periods of time as such nonperformance,
defective performance or late performance is due to reasons outside such party's
control, including, without limitation, acts of God, war (declared or
undeclared), acts (including failure to act) of any governmental authority,
riots, revolutions, fire, floods, explosions, sabotage, nuclear incidents,
lightning, weather, earthquakes, storms, sinkholes, epidemics, strikes, or
delays of suppliers or subcontractors for the same causes.
6.3 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
6.4 Amendment. This Agreement may be amended or modified only by a
written instrument signed by each party.
6.5 GOVERNING LAW. THIS AGREEMENT IS TO BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OR CHOICE OF LAWS THAT MIGHT REQUIRE OR PERMIT THE
APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
6.6 Assignment; Binding Effect. This Agreement and the rights and
obligations hereunder may not be assigned by any party, in whole or in part,
without the prior written consent of the other party, and any such assignment
that is made without such consent shall be void and of no force and effect. No
permitted assignment shall release any party from any of its obligations under
this Agreement. All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and permitted assignees.
6.7 Severability. In the event any one or more of the provisions (or
portion(s) thereof) contained in this Agreement shall for any reason be held to
be invalid, illegal or unenforceable in
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any respect, such invalidity, illegality, or unenforceability shall not affect
any other provision (or portion(s) thereof), and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision (or portion(s)
thereof) had never been contained herein.
6.8 Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof, superseding any
and all prior negotiations, discussions, agreements and understandings, whether
oral or written, relating to such subject matter.
6.9 Waiver. No waiver of any term, provision or condition of this
Agreement shall be effective unless in writing signed by the party against whom
such waiver is sought to be enforced. Any waiver of the terms hereof shall be
effective only in the specific instance and for the specific purpose given, and
no such waiver shall be deemed to be or construed as a further or continuing
waiver of any such term, provision or condition or as a waiver of any other
term, provision or condition of this Agreement, unless specifically so stated in
such written waiver.
6.10 No Third Party Beneficiaries. This Agreement is intended for the
exclusive benefit of the parties to this Agreement and their respective personal
representatives, successors and permitted assigns, and nothing contained in this
Agreement shall be construed as creating any rights or benefits in or to any
third party.
6.11 Further Assurances. In connection with this Agreement and the
transactions contemplated hereby, each party shall execute and deliver any
additional documents and instruments and perform any additional acts that may be
reasonably necessary or appropriate to effectuate and perform the provisions of
this Agreement and those transactions.
6.12 Captions. The captions of the sections and paragraphs of this
Agreement are for convenience and reference only and in no way define, limit or
describe the scope of intent of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first set forth above.
CAPITAL C ENERGY OPERATIONS, LP
By: Capital C Energy, LP, its general partner
By: Capital C Energy, LLC, its general partner
By: /s/ Frost X. Xxxxxxx
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Frost X. Xxxxxxx
President and Chief Executive Officer
XXXXXX & BLAKE CORPORATION
By: /s/ X. Xxx Xxxxxx
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X. Xxx Xxxxxx
Senior Vice President
