INVESTMENT AND MANAGEMENT AGREEMENT
(Xxxxx Capital Partners, LLC - "Fund I")
THIS INVESTMENT AND MANAGEMENT AGREEMENT is made and entered
into effective as of the 1st day of December, 2000 by and between XXXXX CAPITAL
PARTNERS, LLC (the "Fund") a Delaware limited liability company and RCP
INVESTMENTS, L.P. (the "Management Company"), a Delaware limited partnership.
Capitalized terms used herein and not otherwise defined herein shall have the
defined meaning given to such terms in the Operating Agreement of the Fund dated
November 30, 1999, as such agreement may be amended from time to time (the
"Operating Agreement").
In consideration of the mutual promises and agreements
contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. The Management Company will provide investment advice to
and manage all affairs and activities of the Fund, subject to the Managing
Member having final authority to make all decisions with respect to the Fund's
activities. The Management Company shall cause J. Xxxxxx Xxxxx, Xx. to be the
principal provider of investment advice to the Fund. In performing the above
management services of the Fund, the Management Company shall, among other
things, advise the Fund with respect to the acquisition, management and
disposition of investments. The Management Company shall, subject to the terms,
restrictions and limitations of the Operating Agreement, have the authority to
take all steps necessary or desirable to effectuate such decisions, including
the authority to enter into contracts on behalf of the Fund relating to any of
its activities and to effect all investment transactions of whatever type,
including without limitation the acquisition, possession, management,
hypothecation and disposition of investments, to determine all matters relating
to the manner, method and timing of securities and other investment
transactions, to select brokers, dealers or banks with whom such securities and
other investment transactions shall be executed, to select and employ agents and
appraisers in connection with securities and other investment transactions, to
guarantee loans made by others in connection with investment made by the Fund,
and as to all other matters which are necessary or incidental to the foregoing.
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2. All ordinary and recurring operating expenses of the
Management Company relating to the Fund, including the costs and expenses of
those services provided by Xxxxx Bank N.A. ("Xxxxx") and described on Schedule 1
to the Operating and Services Agreement dated as of December 1, 2000 by and
between Xxxxx and the Management Company, shall be borne by the Management
Company. The Management Company shall bear all of the Fund's expenses, including
legal, audit and other professional fees and expenses not reimbursed by
Portfolio Companies or prospective Portfolio Companies, premiums for contractual
indemnity insurance and any extraordinary expenses such as litigation expenses,
as provided in the Operating and Services Agreement.
3. The Management Company will prepare recommendations as to
valuations for purposes of determining the fair market value of the Fund's
investments as of the end of each fiscal year of the Fund, and at any time
required under the Operating Agreement determined by the Managing Member.
4. (a) The Fund will make payment to the Management
Company of a management fee for its services hereunder (the "Management Fee")
computed and payable in accordance with the terms of the Operating Agreement.
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(b) In the event that this Agreement is
terminated other than at the end of a fiscal year (or commences other than
at the beginning of a fiscal year), an appropriate pro rata adjustment shall
be made to the Management Fee.
5. This Agreement shall become effective on the date hereof
and shall continue in effect until the termination of the Fund and completion of
the liquidation of the Fund and distribution of its assets in accordance with
the terms of the Operating Agreement. In the event that, for any reason, J.
Xxxxxx Xxxxx, Xx. ceases to provide the services specified in Section 1, the
Fund may terminate the services of the Management Company under this Agreement
and the Operating Agreement.
6. The Management Company will conduct itself and its
activities with the care, skill, prudence and diligence under the circumstances
then prevailing that a prudent manager would use in the conduct of an enterprise
of like character and with like aims.
7. The Management Company and its officers, directors,
partners and employees, and all officers and employees of Xxxxx Bank, N.A. or
Xxxxx National Corporation who provide services to or for the benefit of the
Management Company or the Fund, and the heirs, executors and administrators of
each such person (the "Indemnified Persons") shall be indemnified to the fullest
extent permitted by law by the Fund against all costs, reasonable expenses
(including attorneys fees), judgments, fines, settlements and/or liability
incurred by or imposed upon any Indemnified Person in connection with or
resulting from investigating, preparing or defending any action, suit or
proceeding whether civil, criminal, administrative, legislative or other or any
appeal thereof (any such action, suit or proceeding or appeal thereof being
hereinafter referred to as a "Claim") which such person may be made a party to
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or otherwise involved in or with which such person shall be threatened which is
brought or threatened either by or in the right of the Fund, any person, entity
or governmental authority by reason of or in connection with such Indemnified
Person being or having been such Management Company or officer, director,
partner or employee thereof or a director, officer, partner or employee of a
Portfolio Company in which the Fund has invested or with which the Fund had
dealings or by reason of any action or alleged action or omission or alleged
omission by any Indemnified Person in any capacity described above, so long as
the Indemnified Person did not act fraudulently, in bad faith, with willful
misconduct or in a grossly negligent manner, did not breach this Agreement and,
with respect to any criminal action or proceeding (which in no event shall
include any crime that (i) constitutes a felony under applicable law or (ii)
involves serious misconduct that the party involved, with the exercise of
ordinary care, should have known was unlawful), had no reasonable cause to
believe that his conduct was unlawful. The right of indemnification granted by
this Paragraph 7 shall be in addition to any rights to which the person seeking
indemnification may otherwise be entitled, whether by law, agreement or
otherwise. The Fund shall pay the expenses incurred by any Indemnified Person
hereunder in investigating, preparing or defending a Claim in advance of the
final disposition of such Claim, upon receipt of an undertaking by such
Indemnified Person to repay such payment if there shall be an adjudication or
determination that such person is not entitled to indemnification as provided
herein.
8. All notices relating to this Agreement shall be in writing
and shall be deemed to have been given (i) when received by the party to whom it
is addressed if delivered by hand, by overnight delivery service or by facsimile
transmission, receipt of which is confirmed by telephone or (ii) three (3) days
after the date of postmark if sent by registered or certified mail, return
receipt requested, delivered, faxed or mailed (as the case may be) to a party as
indicated below, or to such changed address or fax number as the other party may
have fixed by notice:
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To the Management Company:
RCP Investments, L.P.
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Facsimile: (000) 000-0000
Attn: J. Xxxxxx Xxxxx, Xx., General Partner
To the Fund:
Xxxxx Capital Partners, LLC
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Facsimile: (000) 000-0000
Attn: CFO -- Xxxxx National Corporation
provided, however, that any notice of change of address or fax number shall be
effective only upon receipt.
9. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors. This
Agreement and the rights and obligations hereunder shall not be assignable or
delegable and any attempted assignment or delegation thereof shall be void,
except that the Management Company may assign its rights and obligations
hereunder to any entity that controls, is controlledby or is under common
control with the Management Company; provided, however, that such entity
shall assume the rights and obligations of the Management Company hereunder
and such entity remains controlled by or under common control with the
Management Company.
10. Failure on the part of either party to insist upon strict
compliance by the other with any of the terms, covenants or conditions hereof
shall not be deemed a waiver of such term, covenant or condition.
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11. The invalidity or unenforceability of any provision
hereof, or of the application of any provision hereof to any circumstances,
shall in no way affect the validity or enforceability of any other provision, or
the application of such provision to any other circumstances.
12. This instrument contains the entire agreement
between the parties relating to the subject matter hereof. It cannot be
changed or terminated orally.
13. This Agreement shall be construed in accordance with and
governed by the internal laws of the State of Maryland without giving effect to
principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement by their representatives thereunto duly authorized, effective on the
date first above written.
XXXXX CAPITAL PARTNERS, LLC
BY: Xxxxx National Corporation,
Managing Member
BY: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Title:President
RCP INVESTMENTS, L.P.
BY: /s/ J. XXXXXX XXXXX, XX.
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Name: J. Xxxxxx Xxxxx, Xx.
Title:General Partner
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