Exhibit 10.9
MANAGEMENT AGREEMENT
THIS AGREEMENT is entered into as of December 29, 2000 by and between
Obsidian Capital Company, LLC, an Indiana limited liability company, maintaining
offices at 000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxx 00000 ("OCC"),
and USRR Acquisition Corp., an Indiana corporation, maintaining offices at 0000
Xxxxxxxxx Xxxx, Xxxxxxxxx, XX 00000 ("USRR!').
WHEREAS, OCC is willing and able to provide USRR with certain management
services, including, but not limited to, advice regarding corporate finance,
strategic planning, and similar services;
WHEREAS, USRR wishes to retain OCC to provide such management services;
NOW THEREFORE, in consideration of the mutual promises and undertakings
hereinafter set forth, the patties hereby agree as follows:
1. Retention of OCC. USRR hereby retains OCC and OCC agrees to be retained by
USRR upon the terms and conditions hereinafter set forth.
2. Term. This Agreement shall continue in full force and effect for a period
of five (5) years from the date of this Agreement.
3. Nature and Extent of Services. OCC shall devote such time and effort to the
performance of the management advisory services contemplated by this
Agreement as OCC deems necessary or appropriate, in its reasonable
judgment. OCC may perform such services directly, through its own agents,
or employees or, with the prior approval of USRR, through such consultants
as OCC may engage for such purpose. USRR may, by separate agreement, retain
OCC to provide other or additional services, on such terms as the parties
may mutually agree.
4. Confidentiality. OCC shall maintain in confidence all non-public
information of USRR which may come into the possession of OCC as a result
of the services provided by OCC under this Agreement, and shall use
reasonable efforts to ensure that its officers, directors, employees,
representatives, agents, and affiliates maintain the confidentiality of
such information, except to the extent disclosure may be required pursuant
to any subpoena, order law or regulation.
5. Compensation. In consideration for the services to be provided by OCC under
the terms of this Agreement, USRR shall pay to OCC a monthly fee equal to
two percent (2%) of USRR's monthly gross revenue which shall be payable ten
(10) days following the end of each month (the "Fee"). The Fee shall be
suspended (but the liability therefore shall continue to accrue), to the
extent and during the period that the payment of such compensation would
cause USRR to be in violation of any agreement or covenant between USRR and
any of its lenders.
6. Reimbursement of Expenses. USRR shall reimburse OCC for all expenses
reasonably incurred by OCC in connection with or on account of the services
provided by OCC under this Agreement, including, without limitation,
travel, lodging, and similar costs incurred by OCC. Any request for
reimbursement submitted by OCC to USRR shall include reasonable
documentation with respect to all expenses for which reimbursement is
requested.
7. Indemnification. USRR agrees to provide indemnification to or on behalf of
OCC in accordance with the following:
(a) USRR agrees to indemnify and hold harmless OCC, its affiliates, their
respective partners, members, officers, directors, employees, and
agents, and all other persons controlling OCC or any of its affiliates
within the meaning of either Section 15 of the Securities Act of 1933,
as amended, or Section 20 of the Securities Exchange Act of 1934, as
amended (individually, an "Indemnified Party" and collectively, the
"Indemnified Parties"), from and against, any claims, liabilities,
fees, penalties, expenses, losses, and damages (including without
limitation the reasonable fees, charges and disbursements of
counsel)(collectively, "Losses") related to or arising out of actions
taken or omitted to be taken by any of the Indemnified Parties
pursuant to this Agreement, or any Indemnified Party's role in
connection with any such act or omission; and USRR agrees that no
Indemnified Party shall have any liability to USRR or its affiliates,
security holders, or creditors, provided, however, that USRR shall not
be responsible for any Losses to the extent that it is finally
judicially determined that such losses result solely from actions
taken or omitted to be taken by an Indemnified Party due to such
Indemnified Party's gross negligence or willful misconduct.
(b) If for any reason the indemnity described in subsection (a) is
unavailable to an Indemnified Party or insufficient to hold an
Indemnified Party harmless, then USRR shall contribute to the amount
paid or payable by such Indemnified Party as a result of such Loss in
such proportion as is appropriate to reflect not only the relative
benefits received (or contemplated to be received) by USRR on the one
hand and such Indemnified Party on the other hand or, if such
allocation is judicially determined to be unavailable, in such
proportion as is appropriate to reflect other equitable considerations
such as the relative fault of USRR on the one hand and such
Indemnified Party on the other hand, subject to the limitation that in
any event an Indemnified Party's aggregate contribution to all Losses
shall not exceed the amount of fees actually received by such
Indemnified Party pursuant to this Agreement.
(c) Promptly after receipt by an Indemnified Party of notice of any
complaint or the commencement of any action or proceeding with respect
to which indemnification may be sought against USRR hereunder, such
Indemnified Party will notify OCC in writing of the receipt or
commencement thereof, but failure to notify OCC will relieve OCC from
any and all liability which it may have hereunder only if, and to the
extent that, such failure results in the forfeiture of substantial
rights and defenses on the part of such Indemnified Party, and will
not in any event relieve OCC from any other obligation to any
Indemnified Party. USRR shall assume the defense of such action or
proceeding (including without limitation payment of fees, charges and
disbursements of counsel) insofar as such action or proceeding shall
relate to any alleged Loss in respect of which indemnity may be sought
against USRR. An Indemnified Party shall have the right to employ
separate counsel in any such action and to participate in the defense
thereof, but the fees, charges, and disbursements of such counsel
shall be at the expense of such Indemnified Party unless employment of
such counsel has been specifically authorized by USRR in writing.
(d) USRR shall authorize separate counsel for an Indemnified Party if the
named parties to any action or proceeding (including any impleaded
parties) include USRR (or any other directors of USRR) and such
Indemnified Party, and (1) in the good faith judgment of such
Indemnified Party (as advised by counsel) the use of joint counsel
would present such counsel with an actual or potential conflict of
interest, or (2) an Indemnified Party shall have been advised by
counsel that there may be one or more legal defenses available to It
which are different from or additional to those available to USRR or
its directors.
(e) USRR will reimburse each Indemnified Party for all expenses (including
without limitation the reasonable fees, charges, and disbursements of
counsel authorized by USRR) as they are incurred by such Indemnified
Party in connection with investigating, preparing for, or defending
any action, claim or proceeding ("Action") referred to above (or
enforcing this Agreement), whether or not any Indemnified Party is or
becomes a party to such Action, and whether or not such Action is
initiated or brought by OCC. USRR further agrees that USRR will not
settle, compromise, or consent to the entry of any judgment in any
pending or threatened Action in respect of which indemnification may
be sought hereunder (whether or not an Indemnified Party is a party
thereto) unless USRR has given OCC reasonable prior written notice
thereof and obtained an unconditional release of each Indemnified
Party from all liability arising therefrom. No Indemnified Party shall
admit any liability with respect to, or settle, compromise or consent
to the entry of any judgment in any pending or threatened Action in
respect of which indemnification is being sought hereunder without the
prior written consent of USRR (which consent shall not be unreasonably
withheld or delayed).
(f) An Indemnified Party shall not be liable to USRR or any other person
in connection with the services it renders pursuant to this Agreement,
except for such Indemnified Party's gross negligence or willful
misconduct judicially determined as aforesaid. The Indemnification,
contribution, and expense reimbursement obligations that USRR has
under this Agreement shall be in addition to any liability USRR may
otherwise have.
(g) EACH OF THE PARTIES HEREBY AGREES TO WAIVE ANY RIGHT TO TRIAL BY JURY
WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION RELATING TO OR
ARISING UNDER THIS SECTION,
(h) The provisions of this Section shall remain in full force and effect
regardless of the completion or termination of this Agreement or any
amendment, supplement, or other modification to or of this Agreement.
8. Notice. Any notice required or permitted to be given hereunder shall be
deemed sufficient when given in writing and actually served upon the party
to be notified, or placed in an envelope to the party given to be notified
at the address set forth in this Agreement and sent by certified or
registered mail, postage prepaid. Either party may change its address by
written notice, given in the manner provided in this Section.
9. Non-Waiver. No waiver of any default shall be effective unless in writing,
nor shall it operate as a waiver of any other default or of the same
default on a future occasion.
10. Modifications. This Agreement may not be amended or otherwise modified
except by subsequent written agreement signed by both parties.
11. Construction. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Indiana, without giving affect to
any choice or conflict of law provisional rule that would cause the laws of
any jurisdiction other than the State of Indiana to be enforced.
12. Successors. The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
or assigns.
13. Entire Agreement. THE PARTIES EXPRESSLY ACKNOWLEDGE THAT THEY HAVE READ
THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS. The
parties do further acknowledge that this Agreement contains the entire
understanding of the parties regarding the retention of OCC to provide
consulting management advisory services to USRR superseding any and all
prior offers, proposals, or agreements, whether oral or in writing. Each
party has had adequate opportunity to consult with legal counsel or other
advisors prior to the execution of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
Obsidian Capital Company, LLC
By: /s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
Title: Member
USRR Acquisition Corp.
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Title: President
