PROFESSIONAL SERVICES AGREEMENT
PROFESSIONAL SERVICES AGREEMENT ("Agreement"), dated as of January
24, 1994, by and between Golder, Thoma, Cressey, Rauner, Inc., a Delaware
Corporation ("GTCR"), and USAI Acquisition Corp., a Delaware corporation (the
"Company").
WHEREAS, Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV Limited
partnership, an Illinois limited partnership ("Purchaser"), of which GTCR is
the general partner, will purchase (the "Investment") pursuant to that
certain Equity Purchase Agreement (the "Purchase Agreement") of even date
herewith between the Company and Purchaser a portion of the Company's Common
Stock, par value $.01 per share (the "Common Stock"), and Preferred Stock,
par value $. 01 per share (the "Preferred 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 here from, 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 of directors (the "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.
3. PERSONNEL. GTCR shall provide and devote to the performance
of this Agreement such partners, employees and agents of GTC as GTC shall
deem appropriate for the furnishing of the services required thereby.
4. INVESTMENT FEE. At the time of any purchase of Common Stock
or Preferred Stock by Purchaser pursuant to Sections 1B(i), 1B(ii) or 1B(iii)
of the Purchase Agreement, the Company shall pay to GTCR an investment fee in
immediately available funds equal to one percent (1%) of the purchase price
paid to the Company in connection with such purchase.
5. MANAGEMENT FEE. The Company shall pay to GTCR on January 31,
April 30, July 31 and October 31 of each year, commencing January 31, 1994, a
management fee equal to one-quarter of one percent (0.25%) of the aggregate
purchase price then paid pursuant to Sections 1B(i), 1B(ii) and 1B(iii) of
the Purchase Agreement; provided, however, such management fee will not
exceed $150,000 in any calendar year.
6. EXPENSES. The Company shall promptly reimburse GTC 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 (as defined in the Purchase Agreement) 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 50% of the Investor Stock (as defined
in the Purchase Agreement). 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.
000 X. XxXxxxx Xx.
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
WITH A COPY TO:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxxxxxx
If to the Company:
USAI Acquisition Corp.
000-0 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
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.
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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.
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 Agreement
to be duly executed and delivered on the date and year first above written.
GOLDER, THOMA, XXXXXXX XXXXXX, INC.
By:
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Its:
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USAI ACQUISITION CORP.
By:
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Its:
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IN WITNESS WHEREOF, GTCR and the Company have caused this Agreement
to be duly executed and delivered on the date and year first above written.
GOLDER, THOMA, XXXXXXX XXXXXX, INC.
By: /s/ Xxxxx Xxxxxx
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Its:
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USAI ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxxxx
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Its:
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