UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): April 30, 2015
MOELIS & COMPANY
(Exact name of registrant as specified in its charter)
Delaware |
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001-36418 |
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46-4500216 |
(State or other jurisdiction of
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(Commission
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(IRS Employer
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399 Park Avenue, 5th Floor |
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New York, New York |
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10022 |
(Address of principal executive offices) |
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(Zip Code) |
Registrants telephone number, including area code (212) 883-3800
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
Item 1.01 Entry into a Material Definitive Agreement.
Agreements with SMBC
Effective January 2012, we entered into a strategic alliance with Sumitomo Mitsui Banking Corporation (SMBC) and its subsidiary, SMBC Nikko Securities Inc. (Nikko), to provide advisory services, including advising on mergers, acquisitions, divestitures, restructurings and other corporate finance matters, to Japanese companies in regions where our firms conduct business. Our Strategic Alliance Agreement with SMBC and Nikko (the Strategic Alliance Agreement) was included as Exhibit 10.19 to the Registration Statement on Form S-1 filed by Moelis & Company (the Company) on March 24, 2014. In February 2012, in connection with the strategic alliance, SMBC made an investment of approximately $93 million in our company, which investment is currently held in the form of Class A limited partnership units (Units) in our subsidiary Moelis & Company Group LP (Group LP).
On April 30, 2015, we entered into an Advisory Units Agreement with SMBC, whereby we agreed to permit SMBC to exchange half of its Units (1,280,054 Units) into the Companys Class A common stock on or after July 1, 2015, and the remaining half of its Units (1,280,053 Units) into Class A common stock on or after April 22, 2016, subject to the terms of the Group LP Amended and Restated Agreement of Limited Partnership. We also entered into an Assignment and Assumption of the Strategic Alliance Agreement (the Assignment and Assumption), confirming that Group LP and the Company assumed rights and obligations of Group LPs predecessor Moelis & Company Holdings LP under the Strategic Alliance Agreement.
The foregoing summary is not complete and is qualified in its entirety by reference to the Strategic Alliance Agreement, the Advisory Units Agreement and the Assignment and Assumption. The Advisory Units Agreement and the Assignment and Assumption are filed herewith as Exhibits 10.1 and 10.2 respectively, and are incorporated herein by reference.
Master Services Agreement
In April 2014, we entered into a Master Services Agreement with Moelis Asset Management LP (Asset Management), an entity controlled by our Chairman and Chief Executive Officer Kenneth Moelis, and certain of Asset Managements subsidiaries. On April 30, 2015, we entered into a renewal of this agreement. The foregoing summary is not complete and is qualified in its entirety by reference to the renewal agreement, which is filed herewith as Exhibit 10.3 and incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
10.1 |
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Advisory Units Agreement by and among Sumitomo Mitsui Banking Corporation, SMBC Nikko Securities Inc., SMBC Capital Markets, Inc., Moelis & Company Group LP, Moelis & Company and Moelis & Company Group GP LLC. |
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10.2 |
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Assignment and Assumption of the Strategic Alliance Agreement by and among Sumitomo Mitsui Banking Corporation, SMBC Nikko Securities Inc., SMBC Capital Markets, Inc., Moelis Asset Management LP, Moelis & Company Group LP, Moelis & Company and Moelis & Company Holdings GP LLC. |
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10.3 |
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Master Services Agreement by and between Moelis & Company Group LP, Moelis Asset Management LP and certain subsidiaries of Moelis Asset Management LP. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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MOELIS & COMPANY |
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By: |
/s/ Osamu Watanabe |
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Name: |
Osamu Watanabe |
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Title: |
General Counsel and Secretary |
Date: May 1, 2015
Exhibit 10.1
ADVISORY UNITS AGREEMENT
This Advisory Units Agreement (this Agreement ), dated as of April 15, 2015, is entered into by and among Sumitomo Mitsui Banking Corporation ( SMBC ), a Japanese corporation with its head office at 1-2, Marunouchi 1-chome, Chiyoda-ku, Tokyo 100-0006, Japan, its subsidiary SMBC Nikko Securities Inc. ( Nikko and together with SMBC, SMBC/Nikko ), a Japanese corporation with its head office at 3-1, Marunouchi 3-chome, Chiyoda-ku, Tokyo 100-8325, Japan and SMBC Capital Markets, Inc., a Delaware corporation with its head office at 277 Park Avenue, New York, New York 10172 ( SMBC Unit Holder ), on the one hand, and Moelis & Company Group LP ( Moelis Advisory ), a Delaware limited partnership with offices at 399 Park Avenue, New York, NY 10022, United States, Moelis & Company ( Moelis & Company ), a Delaware corporation with offices at 399 Park Avenue, New York, NY 10022, United States and Moelis & Company Group GP LLC, a Delaware limited liability company with offices at 399 Park Avenue, New York, NY 10022, United States ( General Partner ) , on the other hand. SMBC, Nikko, SMBC Unit Holder, Moelis Advisory , Moelis & Company and General Partner are each referred to herein as a party and collectively referred to as the parties .
W I T N E S S E T H :
WHEREAS, as of December 27, 2011, SMBC/Nikko , Moelis & Company Holdings GP LLC ( MAM General Partner ) and Moelis & Company Holdings LP ( Moelis Holdings ) entered into that certain Strategic Alliance Agreement with respect to certain investment banking businesses in certain regions involving Japanese companies (the Strategic Alliance Agreement );
WHEREAS, in connection with the initial public offering by Moelis & Company of shares of its Class A Common Stock (the IPO ), the advisory business of Moelis Holdings was effectively transferred to Moelis Advisory and a new public company, Moelis & Company, was formed as the parent company of Moelis Advisory; and Moelis Holdings retained its asset management business and was renamed as Moelis Asset Management LP; and
WHEREAS, simultaneously with the entry into this Agreement, SMBC/Nikko, Moelis Holdings, Moelis Advisory , MAM General Partner and Moelis & Company are entering into an Assignment and Assumption, whereby Moelis Holdings will transfer its rights and obligations with respect to the Strategic Alliance to Moelis Advisory and Moelis Advisory will assume such rights and obligations and Moelis Holdings will transfer its rights and obligations with respect to SMBC/Nikkos registration rights to Moelis & Company and Moelis & Company will assume such rights and obligations; and
WHEREAS, the parties wish to modify certain provisions of the Strategic Alliance Agreement with respect to lock-up terms and exchange opportunities in connection with SMBC/Nikkos investment in Moelis Advisory.
NOW, THEREFORE, in consideration of the foregoing and the respective promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged:
Section 1. Redemption and Exchange
(a) SMBC may redeem/exchange in any regular periodic redemption/exchange window (meaning the date for such a regular periodic redemption/exchange window established by General Partner under Section 14.1(d)(v) of the Amended and Restated Agreement of Limited Partnership of Moelis Advisory (the Advisory LPA ) for which one may submit a Notice of Redemption (as defined in the Advisory LPA) ) opened , its Moelis Advisory Units into Moelis & Company Class A Common Stock (or cash at the election of General Partner) as follows:
- 50% on or after July 1, 2015;
- 50% on or after the second anniversary of the IPO closing date (that is April 22, 2016).
(b) Moelis Advisory and General Partner will provide SMBC with a redemption/exchange window ( or other opportunity for redemption/exchange of its Moelis Advisory Units into Moelis & Company Class A Common Stock (or cash at the election of General Partner) ) no later than August 31, 2015, without regard to whether Moelis & Company has a Form S-3 registration statement in effect or is eligible to use Form S-3, in accordance with the terms of the Advisory LPA. Moelis Advisory may allow a redemption/exchange window to holders excluding SMBC, executive officers of Moelis & Company ( Executive Officers ) and Moelis Advisory Managing Directors with respect to their Managing Director Units prior to July 1, 2015 in accordance with the terms of the Advisory LPA.
(c) Thereafter, Moelis Advisory and General Partner will provide SMBC with a redemption/exchange window ( or other opportunity for redemption/exchange of its Moelis Advisory Units into Moelis & Company Class A Common Stock (or cash at the election of General Partner) ) no less frequently than once per calendar year in accordance with the terms of the Advisory LPA.
(d) Underwritten secondary offerings do not count as an opportunity for redemption/exchange. Opportunities for redemption/exchange that are cancelled or postponed to the following year by Moelis Advisory, Moelis & Company or General Partner or their respective affiliates (for example, due to a secondary offering or blackout period) do not count as an opportunity for redemption/exchange. An opportunity for redemption/exchange that SMBC cannot participate in because SMBC revoked its election to participate in the prior redemption/exchange, does count as an opportunity for redemption/exchange.
Section 2. Notice of Redemption/Exchange
(a) Moelis Advisory and General Partner will provide SMBC with no less than 16 days written notice prior to the election date for SMBC for any redemption/exchange window. Moelis Advisory and General Partner will provide SMBC with such notice in any event no later than notice is provided to the other limited partners who are outside investors. The parties anticipate that generally for regular periodic redemptions/exchanges the election date for SMBC will be at least 45 days prior to the redemption/exchange date and for underwritten secondary offerings, the election date for SMBC will be at least 15 days prior to the redemption/exchange date.
Section 3. Resale; Legends
(a) Once redeemed/exchanged for Class A Common Stock, there will be no contractual restrictions on resale or transfer imposed by Moelis & Company, Moelis Advisory or General Partner. Moelis & Company will assist SMBC in removing legends on the Class A Common Stock (subject to compliance with securities laws) , including by procuring any legal opinions (subject to receiving customary representation letters from SMBC) or other documentation required in connection therewith at Moelis & Companys expense as is customary for publicly traded companies with legended shares .
(b) Notwithstanding the foregoing, SMBC agrees not to sell Class A Common Stock during the 20 trading day period ending on the last trading day used by Moelis Advisory to set the price of Moelis & Company equity awarded as part of annual incentive compensation for 2016, 2017 and 2018. Moelis Advisory and General Partner shall provide SMBC written notice of such period at least 30 days in advance.
Section 4. Underwritten Offerings
(a) SMBC may participate pro rata with Managing Directors (including former Managing Directors) of Moelis Advisory and Moelis Asset Management (as a group) in any underwritten secondary offering of Class A Common Stock prior to the fifth anniversary of the IPO Closing Date.
(b) The foregoing right shall not limit SMBCs rights under Section 12.4(a) of the Strategic Alliance Agreement with respect to Units in Moelis Advisory.
Section 5. Underwriters Lock-Up
(a) SMBC will agree not to sell any Class A Common Stock or Moelis Advisory units before the closing of an underwritten offering from the date Moelis & Company notifies SMBC of such potential offering in reasonable detail including the proposed date (which shall occur not more than three times per calendar year) (i) if and to the extent that all of the Executive Officers (including Ken Moelis) also so agree or are otherwise so bound by similar restrictions; and (ii) provided that such potential offering be proposed to close within two (2) months; and (iii) provided that such agreement shall be void upon the postponement or delay of such offering by more than two (2) months from the originally proposed closing date.
(b) For any underwritten offering that SMBC participates in, SMBC will agree to any lock-up the underwriters request, if and to the extent that the Executive Officers (including Ken Moelis) also so agree or are otherwise so bound by such lock-up; provided such lock-up shall not exceed 90 days from the closing of the offering.
(c) For any other underwritten offering, if SMBC holds Class A Common Stock of Moelis & Company (excluding partnership units) that represent 1% or more of Moelis & Companys free float of Class A Common Stock, regardless of whether SMBC is participating in such offering or not, SMBC will agree to any lock-up the underwriters request, if and to the extent that the Executive Officers (including Ken Moelis), also so agree or are otherwise so bound by such lock-up; provided such lock-up on SMBC shall not exceed 45 days from the closing of the offering.
(d) Any underwriters lock-up agreement will provide that, and Moelis & Company and General Partner will use reasonable best efforts to ensure that, SMBC be released from the underwriters lock-up pro rata and notified of such release if any Executive Officers are released from the underwriters lock-up, simultaneously with such release of one or more Executive Officers. Notwithstanding the foregoing paragraphs, SMBC need not sign any underwriters lock-up agreement that fails to satisfy this condition.
Section 5. Miscellaneous
(a) Capitalized terms used without definition herein shall have the respective meanings given to such terms in the Strategic Alliance Agreement.
(b) The Governing Law and Jurisdiction provisions of Section 15.8 of the Strategic Alliance Agreement shall apply to this Agreement.
(c) The rights granted hereunder to SMBC with respect to limited partnership units, shares and other securities referred to as belonging to or held or owned by SMBC (or other similar language) shall be interpreted to include and apply to such securities held by SMBC and all of its affiliates (within the meaning given to such term under the Securities Act of 1933), including SMBC Unit Holder, and may be exercised by SMBC or such affiliates, unless the context requires otherwise.
(d) This Agreement may be executed in two or more counterparts (including by facsimile or by electronic mail in Portable Document Format), all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.
IN WITNESS WHEREOF, the parties have caused this Advisory Units Agreement to be executed and delivered on the date first written above.
SUMITOMO MITSUI BANKING CORPORATION |
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By: |
/s/ Takeshi Kunibe |
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Name: |
Takeshi Kunibe |
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Title: |
President |
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SMBC NIKKO SECURITIES INC. |
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By: |
/s/ Tetsuya Kubo |
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Name: |
Tetsuya Kubo |
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Title: |
President & CEO |
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SMBC CAPITAL MARKETS, INC. |
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By: |
/s/ Antony Yates |
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Name: |
Antony Yates |
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Title: |
Chairman |
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MOELIS & COMPANY GROUP LP |
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By: |
Moelis & Company Group GP LLC |
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Its: |
General Partner |
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By: |
/s/ Kenneth D. Moelis |
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Name: |
Kenneth D. Moelis |
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Title: |
Chief Executive Officer |
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April 30, 2015 |
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MOELIS & COMPANY |
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By: |
/s/ Kenneth D. Moelis |
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Name: |
Kenneth D. Moelis |
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Title: |
Chief Executive Officer |
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April 30, 2015 |
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MOELIS & COMPANY GROUP GP LLC |
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By: |
/s/ Kenneth D. Moelis |
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Name: |
Kenneth D. Moelis |
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Title: |
Chief Executive Officer |
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April 30, 2015 |
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Exhibit 10.2
ASSIGNMENT AND ASSUMPTION OF
THE STRATEGIC ALLIANCE AGREEMENT
This Assignment and Assumption of the Strategic Alliance Agreement (this Assignment and Assumption ), dated as of December 27, 2011, is entered into as of the Effective Time, by and among Sumitomo Mitsui Banking Corporation ( SMBC ), a Japanese corporation with its head office at 1-2, Marunouchi 1-chome, Chiyoda-ku, Tokyo 100-0006, Japan and its subsidiary SMBC Nikko Securities Inc. ( Nikko and together with SMBC, SMBC/Nikko ), a Japanese corporation with its head office at 3-1, Marunouchi 3-chome, Chiyoda-ku, Tokyo 100-8325, Japan, on the one hand, and Moelis Asset Management LP ( Moelis Holdings ), a Delaware limited partnership with offices at 399 Park Avenue, New York, NY 10022, United States, Moelis & Company Group LP ( Moelis Advisory ), a Delaware limited partnership with offices at 399 Park Avenue, New York, NY 10022, United States, Moelis & Company ( Moelis & Company ), a Delaware corporation with offices at 399 Park Avenue, New York, NY 10022, United States and Moelis & Company Holdings GP LLC ( MAM General Partner ) , a Delaware limited liability company with offices at 399 Park Avenue, New York, NY 10022, United States, on the other hand. SMBC, Nikko, Moelis Holdings, Moelis Advisory , Moelis & Company and MAM General Partner are each referred to herein as a party and collectively referred to as the parties .
W I T N E S S E T H :
WHEREAS, as of December 27, 2011, SMBC/Nikko , MAM General Partner and Moelis Holdings entered into that certain Strategic Alliance Agreement with respect to certain investment banking businesses in certain regions involving Japanese companies (the Strategic Alliance Agreement );
WHEREAS, in connection with the initial public offering by Moelis & Company of shares of its Class A Common Stock (the IPO ), the advisory business of Moelis Holdings was effectively transferred to Moelis Advisory and a new public company, Moelis & Company, was formed as the parent company of Moelis Advisory; and Moelis Holdings retained its asset management business and was renamed as Moelis Asset Management LP; and
WHEREAS, the parties wish for Moelis Holdings to transfer its rights and obligations with respect to the Strategic Alliance to Moelis Advisory and for Moelis Advisory to assume such rights and obligations and the parties wish for Moelis Holdings to transfer its rights and obligations with respect SMBC/Nikkos registration rights to Moelis & Company and for Moelis & Company to assume such rights and obligations; and
WHEREAS, simultaneously with the entry into this Assignment and Assumption, SMBC/Nikko, Moelis Advisory and Moelis & Company are entering into an agreement (the Advisory Units Agreement ) attached as Annex A hereto with respect to lock-up terms and exchange opportunities in connection with SMBC/Nikkos investment in Moelis Advisory; and
WHEREAS, simultaneously with the entry into this Assignment and Assumption, in replacement for the obligations from which Moelis Holdings is released under the Strategic Alliance Agreement by this Assignment and Assumption, Moelis Holdings and SMBC/Nikko are entering into an agreement (the Asset Management Units Agreement ) attached as Annex B hereto with respect to a more limited set of rights and obligations toward SMBC/Nikko that reflect SMBC/Nikkos level of investment and relationship with Moelis Holdings.
NOW, THEREFORE, in consideration of the foregoing and the respective promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged:
ARTICLE I
TRANSFER AND ASSUMPTION
1.1 Transfer and Assumption of Strategic Alliance . Moelis Holdings hereby transfers its rights and obligations with respect to the Strategic Alliance to Moelis Advisory and Moelis Advisory hereby assumes such rights and obligations. SMBC/Nikko consents to such transfer and assumption, and releases Moelis Holdings from its obligations under the Strategic Alliance Agreement.
1.2 Transfer and Assumption of Registration Rights . Moelis Holdings hereby transfers its rights and obligations with respect to SMBC/Nikkos registration rights as set forth in Article XIII of the Strategic Alliance Agreement to Moelis & Company and Moelis & Company hereby assumes such rights and obligations. SMBC/Nikko consents to such transfer and assumption and releases Moelis Holdings from its obligations under the Strategic Alliance Agreement.
1.3 Notice Provision Update . Section 15.2 of the Strategic Alliance Agreement is hereby amended to add the following parenthetical immediately after the words as follows: (or as each party may update the same from time to time by like notice).
1.4 Further Assurances . Each party agrees that it shall use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable to consummate and make effective the transactions contemplated hereby.
ARTICLE II
MISCELLANEOUS
2.1 Defined Terms . Effective Time means the time both the Advisory Units Agreement and the Asset Management Units Agreement are fully executed and become effective. Capitalized terms used without definition herein shall have the respective meanings given to such terms in the Strategic Alliance Agreement.
2.2 Governing Laws; Jurisdiction . The Governing Law and Jurisdiction provisions of Section 15.8 of the Strategic Alliance Agreement shall apply to this Assignment and Assumption.
2.2 Counterparts . This Assignment and Assumption may be executed in two or more counterparts (including by facsimile or by electronic mail in Portable Document Format), all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.
[ signature page follows ]
IN WITNESS WHEREOF, the parties have caused this Assignment and Assumption to be executed and delivered on the date first written above.
SUMITOMO MITSUI BANKING CORPORATION
By: |
/s/ Takeshi Kunibe |
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Name: |
Takeshi Kunibe |
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Title: |
President |
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SMBC NIKKO SECURITIES INC.
By: |
/s/ Tetsuya Kubo |
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Name: |
Tetsuya Kubo |
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Title: |
President & CEO |
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MOELIS ASSET MANAGEMENT LP |
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By: |
Moelis & Company Holdings GP LLC |
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Its: |
General Partner |
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By: |
/s/ Kenneth D. Moelis |
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Name: |
Kenneth D. Moelis |
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Title: |
Chief Executive Officer |
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April 30, 2015 |
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MOELIS & COMPANY HOLDINGS GP LLC
By: |
/s/ Kenneth D. Moelis |
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Name: |
Kenneth D. Moelis |
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Title: |
Chief Executive Officer |
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April 30, 2015 |
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MOELIS & COMPANY GROUP LP |
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By: |
Moelis & Company Group GP LLC |
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Its: |
General Partner |
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By: |
/s/ Kenneth D. Moelis |
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Name: |
Kenneth D. Moelis |
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Title: |
Chief Executive Officer |
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April 30, 2015 |
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MOELIS & COMPANY
By: |
/s/ Kenneth D. Moelis |
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Name: |
Kenneth D. Moelis |
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Title: |
Chief Executive Officer |
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April 30, 2015 |
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Exhibit 10.3
MASTER SERVICES AGREEMENT
This SERVICES AGREEMENT , effective as of April 1, 2015 is made by and between MOELIS & COMPANY GROUP LP , a Delaware limited partnership ( Advisory ), and MOELIS ASSET MANAGEMENT LP , a Delaware limited partnership (Asset Management) and each of the following subsidiaries of Asset Management: MOELIS CAPITAL PARTNERS LLC, a Delaware limited liability company (MCP), P&S CREDIT MANAGEMENT, L.P. , a Delaware limited partnership ( Gracie ), FREEPORT FINANCIAL PARTNERS LLC , a Delaware limited liability company ( Freeport ), and STEELE CREEK INVESTMENT MANAGEMENT LLC , a Delaware limited liability company ( Steele Creek ).
RECITALS
A. Each of the Advisory and Asset Management were operated as businesses under Moelis Asset Management LP (formerly named Moelis & Company Holdings LP), prior to Advisory being distributed to its partners in connection with an initial public offering of Advisory.
B. Advisory currently maintains certain staff and services which each of Asset Management, MCP, Gracie, Freeport and Steele Creek utilizes in the course of its respective business.
C. Asset Management and Advisory each desire that Advisory shall henceforth provide the Asset Management Services (as defined below) to each of Asset Management, MCP, Gracie, Freeport and Steele Creek on the terms of and in accordance with this agreement.
D. The parties additionally desire that this agreement govern any provision of services from Asset Management to Advisory.
AGREEMENT
The parties to this agreement, in exchange for the mutual promises made herein and intending to be legally bound hereby, agree as follows:
ARTICLE 1.
SERVICES TO BE PROVIDED
1.1 Description of Services . During the term of this agreement, Advisory will provide to Asset Management the services (the Asset Management Services ) described on Schedule A-1 attached hereto (as the same may be amended from time to time, Schedule A-1 ). Schedule A may be amended from time to time as set forth in Section 6.5 below. During the term of this agreement, Asset Management will provide to Advisory the services (the Advisory Services , and together with the Asset Management Services, the Services ) described on Schedule A-2 attached hereto (as the same may be amended from time to time, Schedule A-2 ). Each of Schedule A-1 and Schedule A-2 may be amended from time to time as set forth in Section 6.5 below. Any entity receiving Services hereunder shall be referred to as a Recipient and any entity providing Services hereunder shall be referred to as a Provider as applicable. Additionally, Advisory will sublet certain office space to Asset Management as set forth on Schedule A-3 attached hereto.
1.2 Personnel .
(a) The Services to be provided by a Provider to a Recipient shall be provided by employees of such Provider or by service providers to such Provider, as applicable. In the event that any employees of a Provider as of the date of this agreement cease to be employed by such Provider, the Provider will have no obligation to hire a new employee for the purpose of providing the Services to the applicable Recipient and will not be liable for any losses, costs or damages caused by, attributable to or arising in connection with (A) such Recipients failure to receive such Services, or (B) such Recipients transition from the Services to any replacement services.
(b) Each entity acting as a Provider shall be responsible for the payment of all wages and federal, state and local taxes and withholdings payable with respect to the wages of such persons, shall maintain workers compensation insurance required by applicable statutes with respect to such persons and shall maintain and provide all applicable employee benefits for such persons. No person providing Services to a Recipient shall be considered an employee of the Recipient because of the provision of such Services.
1.3 Compensation . Each Recipient shall pay each Provider a fee as set forth in Schedule B attached hereto as the total consideration for the Services to be provided to such Recipient during the term of this agreement and such Recipient shall not pay any additional fee or other compensation for such Services, unless the scope of those Services is expanded by mutual agreement of the parties and the parties agree that additional compensation should be paid in connection therewith.
1.4 Warranty Disclaimer . NO PROVIDER MAKES ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES IMPLIED BY LAW OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDING THIS AGREEMENT, OR THE PERFORMANCE OF THE SERVICES CONTEMPLATED BY THIS AGREEMENT.
1.5 Limitation of Liability . No Provider will be liable to any Recipient or to any other person or entity for any losses, costs or damages caused by, attributable to or arising in connection with the performance, nonperformance or delayed performance of the Services to be provided to such Recipient contemplated by this agreement, except for such losses, costs or damages attributable to such Providers bad faith, gross negligence or willful misconduct for which damages the Provider will be liable. Notwithstanding the foregoing, no Provider shall be liable for any special, indirect, consequential or punitive damages in connection with the Services to any Recipient even if the Provider has been advised of the possibility of such damages. No Provider will be liable for any failure to perform or any delay in the performance of its obligations hereunder due to Force Majeure (as hereinafter defined).
1.6 Consents . Notwithstanding any provision of this agreement to the contrary, if the provision of any Service as contemplated by this agreement requires the consent, approval or authorization of any third party, the Provider providing such Service shall use its commercially reasonable efforts to obtain as promptly as possible after the date of this agreement such consent, approval or authorization (including obtaining from third party vendors all consents necessary to grant any sublicenses in connection with the performance of such Service) and shall be excused from performing such Service while it continues to use such commercially reasonable efforts. Any fee, cost or expense incurred in connection with obtaining such consent, approval or authorization shall be paid by the Provider. If any such consent, approval or authorization is not obtained promptly after the date of this agreement, the Provider shall notify the applicable Recipient and the parties shall cooperate in good faith to devise an alternative arrangement to the provision of such Service, which alternative arrangement shall be reasonably satisfactory to each party.
ARTICLE 2.
TERM AND TERMINATION
2.1 Term . The term of this agreement will commence upon April 1, 2015 and will continue until the one year anniversary thereof, subject to earlier termination as provided in Section 2.2 hereof or extension by mutual agreement.
2.2 Termination . This agreement may be terminated in accordance with the following provisions:
(a) Any party may terminate this agreement solely as it applies to services provided or received between itself and another party by giving notice in writing to such other party should an event of Force Majeure (as defined in Section 3.1 ) continue for more than ninety (90) consecutive calendar days;
(b) Any party may terminate this agreement solely as it applies to services provided or received between itself and another party by giving notice in writing to the other party in the event such other party is in material breach of this agreement and shall have failed to cure such breach within thirty (30) calendar days of receipt of written notice thereof from the non-breaching party; or
(c) Any party may terminate this agreement solely as it applies to services provided or received between itself and another party by giving ninety (90) calendar days written notice to such other party.
(d) Any two parties hereto may terminate this agreement solely as it applies to services provided or received between such parties with the mutual written consent of such parties.
2.3 Rights and Obligations on Termination . In the event of the termination of this agreement pursuant to Section 2.2 , a Provider will have the right to terminate any or all Services provided to any Recipient. Such Recipient shall bear sole responsibility for obtaining replacement services, and such Provider shall bear no liability for such Recipients failure to obtain such service or for any difficulties in transitioning from the Services to such replacement service.
ARTICLE 3.
FORCE MAJEURE
3.1 Definition . Force Majeure means any event or condition, not existing as of the date of this agreement and not reasonably within the control of either party, which prevents in whole or in material part the performance by a Provider of its obligations hereunder or which renders the performance of such obligations so difficult or costly as to make such performance commercially unreasonable. Without limiting the foregoing, the following, without limitation, will constitute events or conditions of Force Majeure: acts of state or governmental action, riots, disturbance, war, acts of terrorism, strikes, labor slowdowns, prolonged shortage of energy supplies, epidemics, fire, flood, hurricane, typhoon, earthquake and explosion.
3.2 Notice . Upon giving written notice to a Recipient, the Provider being affected by an event of Force Majeure will be released without any liability on its part from the performance of its obligations under this agreement, but, subject to Section 2.2 , only to the extent and only for the period that its performance of such obligations is prevented by the event of Force Majeure. Such notice must include a description of the nature of the event of Force Majeure, its cause and to the extent known its likely consequences. Such Provider will promptly notify the applicable Recipient of the termination of such event.
ARTICLE 4.
INDEMNIFICATION
Each Recipient severally and not jointly agrees to protect, defend, hold harmless and indemnify each Provider severally and not jointly and its successors, assigns, directors, officers, members, employees and agents (collectively, the Provider Representatives ), from and against any and all claims, demands, actions, liabilities, damages, losses, fines, penalties, costs and expenses, including reasonable attorneys fees (collectively referred to as Claims ), actually or allegedly, directly or indirectly, arising out of or related to any actions taken or omitted to be taken by such Provider or any of such Provider Representatives in connection with the performance of any of the Services to be provided by such Provider to such Recipient hereunder, other than Claims that are the direct result of bad faith, gross negligence or willful misconduct of such Provider or such Providers Representative. Notwithstanding the foregoing, no Recipient shall be liable for any special, indirect, consequential or punitive damages in connection with any Claim even if such Recipient has been advised of the possibility of such damages.
ARTICLE 5.
CONFIDENTIALITY
5.1 Definition . In connection with the Services to be performed hereunder, a Recipient may provide to a Provider information about it, the funds, accounts or clients to which such Recipient provides investment management or advisory services, as applicable, their investors or other third parties that is confidential or proprietary in nature (the Confidential Information ), which may include, but is not limited to, information of a technical, administrative and/or financial nature relating to the business operations of such Recipient. The Recipient shall, except to the extent necessary for the Service, not disclose to the Provider Confidential Information about any issuer of securities to the public in the United States. Notwithstanding the foregoing, Confidential Information with respect to any Provider shall not include information that: (a) has come into the public domain through no breach of this Article 5 by such Provider or any related Provider Representative; (b) is or becomes available to such Provider from any third party not known to be breaching an obligation of confidentiality to the Recipient; or (c) is independently developed by such Provider without reference to or use of the Confidential Information of the Recipient.
5.2 Use and Protection of Confidential Information . Each Provider severally and not jointly, on behalf of itself and its Provider Representatives, agrees that the Confidential Information shall be kept confidential and, except with the prior written consent of the applicable Recipient, shall not disclose to any third party, including to any other Recipient, any of the Confidential Information disclosed to such Provider or any Provider Representative hereunder in any manner whatsoever, except as needed to Provider Representatives who are subject to confidentiality obligations substantially similar to those set forth herein and who have a reasonable need to know such Confidential Information in order to provide the Services under this agreement. This Article 5 shall terminate as between any two parties two years following termination of this agreement between such two parties.
5.3 Legally Compelled or Requested Disclosure . If a Provider or a Provider Representative is requested or required (in either case by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, such Provider agrees to the extent permissible to provide the applicable Recipient with prompt notice of each such request, to the extent practicable, so that the Recipient may seek an appropriate protective order or waive such Providers compliance with the provisions of this agreement. If, absent the entry of a protective order or the receipt of a waiver under this agreement, any Provider or its Provider Representative, as the case may be, on the advice of its counsel, is legally compelled to disclose such information, such Provider or Provider Representative as the case may be may disclose such information to the persons and to the extent required without liability under this agreement, and the Provider agrees to cooperate with the Recipients efforts to obtain reliable assurances that confidential treatment will be accorded any Confidential Information so furnished. For the avoidance of doubt, the immediately preceding sentence shall not require any Provider to take any action that would cause it to incur more than de minimis cost or expense unless the applicable Recipient agrees to advance or reimburse the Provider for such cost and expense. In addition, a Provider may also disclose its business records (including documents including Confidential Information) to its financial regulatory authorities without notice to the Recipient in connection with customary examinations and inquiries with respect to its business.
5.4 Return or Destruction of Confidential Information . Upon demand by a Recipient at any time, or upon expiration or termination of this agreement with respect to the Services, the applicable Provider agrees promptly to, and to cause each of its Provider Representative to, return or destroy, at the Recipients option, all Confidential Information, provided that the Provider may maintain such Confidential Information in accordance with its internal document retention policies.
ARTICLE 6.
MISCELLANEOUS
6.1 Notices . All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given or made (and shall be deemed to have been duly given or made when delivered in person or when transmitted by facsimile, or one business day after having been dispatched by a nationally recognized overnight courier service to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 6.1 ):
If to Advisory, addressed to:
Moelis & Company Group LP
399 Park Avenue, 5 th Floor
New York, NY 10022-8604
Attention: Osamu Watanabe
Email: osamu.watanabe@moelis.com
If to MCP, addressed to:
Moelis Capital Partners LLC
399 Park Avenue, 6 th Floor
New York, NY 10022-8604
Attention: Andrew Goldfarb
Email: andrew.goldfarb@moeliscapital.com
If to Gracie, addressed to:
P&S Credit Management, L.P.
399 Park Avenue, 6 th Floor
New York, NY 10022-8604
Attention: Sam Konz
Email: skonz@graciecap.com
If to Freeport, addressed to:
Freeport Financial Partners LLC
200 South Wacker Drive, Suite 750
Chicago, IL 60606
Attention: Joseph Walker
Email: jvwalker@freeportfinancial.com
If to Steele Creek, addressed to:
Steele Creek Investment Management LLC
201 S. College Street, Suite 1690
Charlotte, North Carolina 28244
Attention: Glenn Duffy
Email: glenn.duffy@steelecreek.com
If to Asset Management, addressed to:
Moelis Asset Management LP
399 Park Avenue, 5 th Floor
New York, NY 10022-8604
Attention: Sabrina Tamraz
Email: Sabrina.tamraz@moelisam.com
6.2 Independent Contracting Parties . The parties hereto expressly acknowledge that no employment, partnership or joint venture relationship is created by this agreement, and hereby agree as follows:
(a) Each party at all times during the term of this agreement shall be an independent contracting party;
(b) For purposes of the Services to be performed under this agreement, except for certain dual employees of Advisory and Asset Management, no Provider nor anyone employed by or acting for or on behalf of any Provider shall be construed as an employee of any Recipient, and no Recipient shall be liable for employment or withholding taxes respecting any Provider or any employee of any Provider, or any employee benefits therefor.
6.3 Cooperation . The parties will each use good faith efforts to reasonably cooperate with each other in all matters relating to the provision and receipt of the Services. Such cooperation shall include the applicable Recipient obtaining all consents, licenses or approvals necessary to permit a Provider to perform its obligations hereunder. The parties will, for a period of five (5) years after the termination of this agreement, maintain information relating to the Services and cooperate with each other in making such information available as needed, subject to appropriate confidentiality requirements, in the event of any audit, investigation or litigation.
6.4 Assignment . No party has the right to, directly or indirectly, in whole or in part, assign, delegate, convey or otherwise transfer, whether voluntarily, involuntarily or by operation of law, its rights and obligations under this agreement, except with the prior written approval of the other party or parties as applicable. Notwithstanding the foregoing, any party may assign, delegate, convey or otherwise transfer its own rights and obligations under this agreement without obtaining the prior written approval of any other party to a successor by merger, consolidation or similar business combination or to a purchaser in connection with the sale of all or substantially all of such partys assets. Any action prohibited by this Section 6.4 will be null and void.
6.5 Amendment; Waiver . Neither this agreement nor any provision hereof may be modified, amended, rescinded, canceled or waived, in whole or in part, except by a written instrument duly executed by the applicable parties hereto. No failure or delay by a party to take any action or assert any right or remedy hereunder or to enforce strict compliance with any provision hereof will be deemed to be a waiver of, or estoppel with respect to, such right, remedy or noncompliance in the event of the continuation or repetition of the circumstances giving rise to such right, remedy or noncompliance. No waiver shall be effective unless given in a duly executed written instrument.
6.6 Survival of Provisions . The rights, remedies, agreements, obligations and covenants of each of the parties contained in or made pursuant to this agreement which by their terms extend beyond the termination of this agreement, including, without limitation, Article 4 (relating to indemnification) and Article 5 (relating to confidentiality), will survive the termination of this agreement and will remain in full force and effect.
6.7 Severability . Any term or provision of this agreement that is held by a court of competent jurisdiction to be invalid, void or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid, void or unenforceable, the parties hereto agree that the court making such determination, to the greatest extent legally permissible, shall have the power to reduce or alter the term or provision, to delete specific words or phrases, or to replace any invalid, void or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intent of the invalid, void or unenforceable term or provision.
6.8 Entire Agreement . This agreement and the Schedules hereto constitute the entire agreement of the parties hereto with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, by and among the parties with respect to the subject matter hereof.
6.9 Governing Law; Non-Binding Mediation; Jurisdiction . This agreement shall be governed by, and construed in accordance with, the laws of the State of New York (without regard to the laws of conflict of any jurisdiction). Any dispute, controversy or claim arising out of or in connection with this Agreement, or the interpretation, breach, termination or validity thereof ( Dispute ) shall be finally resolved by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA) then in effect (the Rules), except as modified herein and such arbitration shall be administered by the AAA. The place of arbitration shall be New York, New York. There shall be one arbitrator who shall be agreed upon by the parties within twenty (20) days of receipt by respondent of a copy of the demand for arbitration. If any arbitrator is not appointed within the time limit provided herein, such arbitrator shall be appointed by the AAA in accordance with the listing, striking and ranking procedure in the Rules, with each party being given a limited number of strikes, except for cause. Any arbitrator appointed by the AAA shall be a retired judge or a practicing attorney with no less than fifteen years of experience with corporate and financial matters and an experienced arbitrator. In rendering an award, the arbitrator shall be required to follow the laws of the state of New York. The award shall be in writing and shall briefly state the findings of fact and conclusions of law on which it is based. The arbitrator shall not be permitted to award punitive, multiple or other non-compensatory damages. The award shall be final and binding upon the parties and shall be the sole and exclusive remedy between the parties regarding any claims, counterclaims, issues or accounting presented to the arbitrator. Judgment upon the award may be entered in any court having jurisdiction over any party or any of its assets. Any costs or fees (including attorneys fees and expenses) incident to enforcing the award shall be charged against the party resisting such enforcement. All Disputes shall be resolved in a confidential manner. The arbitrator shall agree to hold any information received during the arbitration in the strictest of confidence and shall not disclose to any non-party the existence, contents or results of the arbitration or any other information about such arbitration. The parties to the arbitration shall not disclose any information about the evidence adduced or the documents produced by the other party in the arbitration proceedings or about the existence, contents or results of the proceeding except as may be required by law, regulatory or governmental authority or as may be necessary in an action in aid of arbitration or for enforcement of an arbitral award. Before making any disclosure permitted by the preceding sentence (other than private disclosure to financial regulatory authorities), the party intending to make such disclosure shall use reasonable efforts to give the other party reasonable written notice of the intended disclosure and afford the other party a reasonable opportunity to protect its interests. Barring extraordinary circumstances (as determined in the sole discretion of the arbitrator), discovery shall be limited to pre-hearing disclosure of documents that each side will present in support of its case, and non-privileged documents essential to a matter of import in the proceeding for which a party has demonstrated a substantial need. The parties agree that they will produce to each other all such requested non-privileged documents, except documents objected to and with respect to which a ruling has been or shall be sought from the arbitrator. There will be no depositions.
6.10 Counterparts; Headings . This agreement may be executed and delivered (including by facsimile or PDF transmission) in one or more counterparts, and by the different parties in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement. The headings of the sections and articles of this agreement are inserted for convenience only and do not constitute a substantive part hereof.
IN WITNESS WHEREOF , the parties have caused this agreement to be duly executed by their authorized representatives as of April 30, 2015.
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MOELIS & COMPANY GROUP LP |
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a Delaware limited partnership |
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By: |
/s/ Elizabeth Crain |
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Name: |
Elizabeth Crain |
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Title: |
Chief Operating Officer |
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MOELIS CAPITAL PARTNERS LLC |
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a Delaware limited liability company |
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By: |
Moelis Asset Management LP, |
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its Sole Member |
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By: |
/s/ Christopher Ryan |
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Name: |
Christopher Ryan |
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Title: |
Managing Director and Authorized Person |
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P&S CREDIT MANAGEMENT L.P., |
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a Delaware limited partnership |
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By: |
P&S Credit Management, LLC, |
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its General Partner |
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By: |
/s/ James Palmisciano |
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Name: |
James Palmisciano |
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Title: |
Chief Investment Officer |
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FREEPORT FINANCIAL PARTNERS LLC |
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a Delaware limited liability company |
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By: |
Moelis Freeport Holdings LLC, |
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its Manager |
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By: |
/s/ Christopher Ryan |
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Name: |
Christopher Ryan |
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Title: |
Managing Director and Authorized Person |
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STEELE CREEK INVESTMENT MANAGEMENT LLC, |
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a Delaware limited liability company |
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By: |
Moelis Steele Creek Holdings LLC, |
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its Sole Member |
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By: |
Moelis Asset Management LP, |
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its Managing Member |
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By: |
/s/ Christopher Ryan |
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Name: |
Christopher Ryan |
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Title: |
Managing Director and Authorized Person |
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MOELIS ASSET MANAGEMENT LP, |
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a Delaware limited partnership |
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By: |
/s/ Christopher Ryan |
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Name: |
Christopher Ryan |
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Title: |
Managing Director and Authorized Person |
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By: |
/s/ Andrew Lerner |
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Name: |
Andrew Lerner |
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Senior Vice President and Senior Counsel |
SCHEDULE A-1 ADVISORY SERVICES PROVIDED
This Schedule A outlines the services to be provided by Advisory to the following Recipients during the term of the agreement.
1) Gracie Asset Management
· Rent & Office Related
· NYC 6 th floor rent, utilities and occupancy tax
· Repairs and maintenance
· Office Services Management
· Management Infrastructure Support
· Human Resources
2) Freeport Financial
· Technology and Communications
· Technology infrastructure
· Phone and communication services
· Helpdesk
· Management Infrastructure Support
· Accounts Payable
· Tax Compliance Support
· Human Resources
3) Steele Creek
· Rent & Office Related
· NYC 6 th floor rent, utilities and occupancy tax
· Repairs and maintenance
· Technology and Communications
· Helpdesk
· Management Infrastructure Support
· Accounts Payable
· Tax Compliance Support
· Human Resources
4) Moelis Capital Partners (MCP)
· Rent & Office Related
· NYC 6 th floor rent, utilities, and occupancy tax
· Repairs and maintenance
· Office & kitchen supplies
· Courier and postage
· Other office expenses
· Office Services Management
· Technology and Communications
· Technology infrastructure
· Phone and communication services
· Helpdesk
· Management Infrastructure Support
· Accounts Payable
· Tax Compliance Support
· Legal Support
· Human Resources
· Investor Relations
5) Asset Management
· Rent & Office Related
· NYC 5 th floor rent, utilities, and occupancy tax
· Repairs and maintenance
· Office & kitchen supplies
· Courier and postage
· Other office expenses
· Office Services Management
· Technology and Communications
· Technology infrastructure
· Phone and communication services
· Helpdesk
· Management Infrastructure Support
· Financial Reporting and Consolidation (including Audit Support)
· Accounts Payable
· Tax Compliance Support
· Legal Support
· Human Resources
· Investor Relations
· Junior Management Resources
SCHEDULE A-2 SERVICES PROVIDED BY ASSET MANAGEMENT TO ADVISORY
· General Management Support Services
SCHEDULE A-3 SPACE AGREEMENT TERMS AND CONDITIONS
Space Agreement
Advisory hereby agrees to permit each of Asset Management, Gracie and MCP (severally and not jointly, each, a User) use of its respective portion of the New York Premises (as defined below) pursuant to the following terms and conditions. New York Premises means the fifth and sixth floors at 399 Park Avenue, New York, NY, leased by Advisory pursuant to a Lease Agreement between Advisory as Tenant and BP 399 Park Avenue LLC as Landlord as of August 12, 2009, as amended and restated from time to time (the Lease ). Each of the Space Agreement to permit use of spaces addressed herein shall be referred to as a Space Agreement , and the New York Premises shall each be referred to as a Premises .
Advisory represents to each User separately and not jointly that a true, correct, and complete copy of the applicable Lease as amended and all other agreements between Advisory and the applicable Landlord relating to the leasing, use and occupancy of the Premises has been delivered to and received by User and are annexed hereto as Exhibit A-3; (ii) the Lease has not been amended or modified, the Lease is in full force and effect; (iii) neither Landlord nor Advisory are in default thereunder beyond the applicable cure period and there exist no conditions or events which, with the passing of time or the giving of notice or both, would constitute an event of default under the Lease by the parties thereto and (iv) Advisory has not assigned its interest in or sublet any portion of the Sublet Premises.
Each Space Agreement is conditional upon obtaining the approval of the respective Landlord to such Space Agreement, if required under the Lease.
Each Space Agreement and all rights of each User thereunder are and shall remain subject and subordinate to and incorporates within it the terms, covenants and conditions of the applicable Lease by reference. If any of the express provisions of a Space Agreement shall conflict with any of the Lease, such conflict shall be resolved in favor of the provisions of the Lease. Except to the extent that the Lease provisions (hereinafter referred to as the Incorporated Provisions ) are inapplicable, the Incorporated Provisions which are binding or inuring to the benefit of any Landlord shall, in respect of this Space Agreement, bind or inure to the benefit of Advisory, and the Incorporated Provisions which are binding or inuring to the benefit of the Advisory thereunder shall, in respect of this Space Agreement, bind or inure to the benefit of each applicable User, with the same force and effect as if the Incorporated Provisions were completely set forth in this Space Agreement, and as if the words Landlord and Tenant or words of similar import, wherever the same appear in the Incorporated Provisions, were construed to mean, respectively, Advisory and User in this Space Agreement, and as if the words Premises, or words of similar import, wherever the same appear in the Incorporated Provisions, were construed to have the definition provided herein. Each Space Agreement is subordinate and subject to and incorporates within it any and all amendments to the applicable Lease and supplemental agreements relating thereto hereafter made between Advisory and the applicable Landlord, provided that any such amendments and/or supplemental agreements do not individually or in the aggregate materially adversely affect such User or its use of the applicable Premises.
Each Space Agreement shall include the appurtenant right to the use, in common with Advisory and others, the lobbies, entrances, stairs, corridors, elevators and other public portions of the New York Premises, to the extent that Advisory has the right to use the same as tenant under the New York Lease, as applicable. Each User shall be entitled, during the term, to receive all services, utilities, repairs, facilities and other benefits to be furnished by the applicable Landlord under the Lease subject to the provisions of the Lease and this Space Agreement. Advisory shall have no liability for any failure or interruption of these services except to the extent attributable to Advisory default beyond the applicable cure period under the Lease.
Advisory shall have no responsibility or liability of any kind whatsoever for any default of or by a Landlord under the applicable Lease for the furnishing to User or the Premises of any services of any kind whatsoever which Landlord is required to furnish to the Premises under the applicable Lease. In furtherance (and without limitation) of the foregoing, User agrees that Advisory shall not have any obligation to furnish heat, air conditioning, electricity, cleaning service, and/or any other building services of any kind whatsoever, and that Advisory shall not be obligated to make any repairs or restorations of any kind whatsoever in any Premises, except if caused by Advisorys negligence or willful act.
Except as otherwise provided herein, User agrees to look solely to the applicable Landlord for any services, repairs, restorations and/or work of any kind whatsoever to be furnished to the Premises; however, Advisory agrees to use commercially reasonable efforts to cause the Landlord to perform such obligations of the Landlord under the applicable Lease with respect to the Premises.
If a Landlord shall default in any of its obligations with respect to the Premises (including without limitation canceling the applicable Lease, except pursuant to the terms thereof) User shall be entitled to participate with Advisory in the enforcement of Advisorys rights against such Landlord (and in any recovery or relief obtained), but Advisory shall not have any obligation to bring any action or proceeding or to take any steps to enforce Advisorys rights against Landlord, except upon Users written request as provided herein. Any action or proceeding so instituted by Advisory at the request of User shall be at the sole expense of User, but User shall be entitled to all damages (except for out-of-pocket expenses of Advisory relating to such proceedings, if any) whatsoever that may be awarded against a Landlord in any such action or proceeding. Any such action or proceeding shall be conducted by counsel selected by Advisory and reasonably satisfactory to User. User shall have the right, at Users expense, to take such action in its own name and, for that purpose and only to such extent, all of the rights of Advisory to cause a Landlord to perform the obligations of such Landlord under the applicable Lease are hereby conferred upon and are assigned to each User severally and as applicable and each User hereby is subrogated to such rights (including, without limitation, the benefit of any recovery or relief); provided, however, that User shall only have such rights if User shall not be in default under this Space Agreement which continues after notice and the expiration of any applicable cure period. Provided that Advisory has complied with its covenants contained in this Section, User shall indemnify and hold Advisory harmless from and against any and all losses, liabilities, obligations, claims, damages, penalties, fines and costs and expenses of every kind and nature (including, without limitation, reasonable attorneys fees and disbursements and court costs) which Advisory may incur arising out of or in connection with the taking of any such action by User.
Notwithstanding anything to the contrary in the foregoing, Advisory shall promptly forward to a Landlord any requests or other communications made by User related to the performance by such Landlord of its obligation under the applicable Lease, as they pertain to the Premises, and shall promptly forward to the User any communication received a Landlord related to the Premises.
Each User shall use and occupy the applicable Premises for the purposes permitted by the applicable Lease and for no other purposes. No User shall, without the prior written consent of Advisory and the applicable Landlord, do or permit anything to be done that may result in a violation of the Lease or that may render Advisory liable for any damages, claims, fines, penalties, costs or expenses thereunder.
Each User severally and not jointly hereby indemnifies holds Advisory harmless from and against any and all losses, liabilities, obligations, claims, damages, penalties, fines and costs and expenses of every kind and nature (including, without limitation, reasonable attorneys fees and disbursements and court costs) which Advisory may incur by reason of (A) any failure of or by such User to perform or comply with any and all of the terms, covenants and conditions of this Space Agreement beyond any applicable notice and cure periods, (B) any breach or violation by (or caused by) such User of the terms, covenants and conditions of the Lease incorporated herein after notice and beyond any applicable cure periods, (C) any work or thing of whatsoever kind done in, on or about the Premises by Users employees, contractors, agents, licensees or invitees (including, but not limited to, construction alterations, repairs or similar acts of any kind whatsoever, and whether or not authorized by this Space Agreement), (D) any negligence or gross negligence of User or Users officers, employees, contractors, agents, licensees or invitees or (E) any injuries to persons or property occurring in the Premises; provided, however, that this subsection shall not apply to injuries to persons or property to the extent caused by the acts, omissions or gross negligence of Advisory or the applicable Landlord or its or their employees, contractors, agents, licensees or invitees.
Advisory hereby indemnifies and holds each User severally and not jointly harmless from and against any and all losses, liabilities, obligations, claims, damages, penalties, fines and costs and expenses of every kind and nature (including, without limitation, reasonable attorneys fees and disbursements and court costs) which such User may incur by reason of (A) any failure of or by Advisory to perform or comply with any and all of the terms, covenants and conditions of this Space Agreement beyond any applicable notice and cure periods, (B) any breach or violation by (or caused by) Advisory of the terms, covenants and conditions of the Lease incorporated herein beyond any applicable notice and cure periods, (C) any work or thing of whatsoever kind done in, on or about the Premises by Advisorys employees, contractors, agents, licensees or invitees (including, but not limited to, construction alterations, repairs or similar acts of any kind whatsoever, and whether or not authorized by this Space Agreement), (D) any negligence or gross negligence of Advisory or Advisorys officers, employees, contractors, agents, licensees or invitees or (E) any injuries to persons or property occurring in the Premises; provided, however, that this subsection shall not apply to injuries to persons or property to the extent caused by the acts, omissions or gross negligence of User or the applicable Landlord or its or their employees, contractors, agents, licensees or invitees.
The term of the Space Agreements shall be as follows, subject to extension by mutually agreement and early termination upon 90 days written notice:
Gracie: [TBD]
MCP: [TBD]
Moelis Asset Management: [TBD]
In the event of and upon the termination or cancellation of a Lease pursuant to the terms and provisions thereof, this Space Agreement shall automatically cease and terminate on the date of such termination or cancellation, subject however to all of the rights of the applicable Landlord pursuant to the Lease and to any rights of such User to bring and maintain an action or proceeding against Landlord for wrongful termination or cancellation of the Lease, which rights of User shall survive the termination of this Space Agreement. Notwithstanding anything herein to the contrary, Advisory shall not be liable to User by reason thereof unless such termination shall have been effected because of the breach or default of Advisory as Tenant under the applicable Lease.
Each User shall pay rent and related expenses and taxes for the applicable Premises as set forth on Schedule B hereto.
Neither this Space Agreement nor the term and estate hereby granted shall be assigned, mortgaged, pledged, encumbered or otherwise transferred by any User, by operation of law or otherwise, and no Premises, nor any part thereof, shall be encumbered or sublet or used or occupied or permitted to be used or occupied, or utilized by anyone other than User without the prior written consent of Landlord and of Advisory to the extent required under the applicable lease. Notwithstanding the foregoing, each User shall remain fully and severally liable for the payment of its respective rent and expenses due and to become due under this Space Agreement and for the performance and observance of all terms and conditions regardless of any act or omission of any permitted further Sublessee.
SCHEDULE B FEE METHODOLOGY
This Schedule B outlines the methodology used to determine the fees to be paid for Services provided during the term of the agreement.
All fees are billed and payable quarterly in arrears. The fees for any calendar quarter during which the Provider is engaged in providing the Services for less than a full quarter shall be determined on a pro rata basis. Recipient shall pay to Provider such fee in cash within ten days after the last business day of the calendar quarter.
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Gracie |
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Freeport |
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Steele Creek |
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MCP |
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Asset Management
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Total Asset
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Rent, Utilities & Occupancy Tax |
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Incurred or accrued expenses allocated based on total rentable square footage (including common areas) utilized by each Recipient at its applicable office location as of the first day of each fiscal quarter
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Ex: (Gracie utilized 6th floor sq ft / total 6th floor rentable sq ft) x 6th floor rent expense = Gracie allocated rent expense |
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Other Office Expenses(1) |
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Incurred or accrued expenses allocated based percent of total headcount for each Recipient relative to total US Advisory plus Asset Management headcount as of the first day of each fiscal quarter
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Ex: (Gracie headcount / (total US Advisory + AM headcount)) x Other Office Expenses = Gracie allocated Other Office Expense |
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Office Services Management |
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Based on allocated compensation cost of services provided in Moelis office space. |
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IT Infrastructure / Communications |
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Incurred or accrued expenses allocated based percent of total headcount for each Recipient relative to total US Advisory plus Asset Management headcount as of the first day of each fiscal quarter |
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Helpdesk |
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Based on allocated cost per head (currently $625 per person per year) |
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Accounts Payable |
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Fixed quarterly fee based on estimated compensation cost of services for each business. |
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Tax Compliance Support |
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Fixed quarterly fee based on estimated compensation cost of services for each business. |
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Financial Reporting (incl. Audit Support) |
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Fixed quarterly fee based on estimated compensation cost of services. |
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Legal Support |
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Fixed quarterly fee based on estimated compensation cost of services. |
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Human Resources |
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Fixed quarterly fee based on estimated compensation cost of services. Allocated to each business based on headcount. |
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Investor Relations |
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Fixed quarterly fee based on estimated compensation cost of services. |
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Junior Management Resource |
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Fixed quarterly fee based on estimated compensation cost of services. |
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Recipient Services to Provider |
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Fixed quarterly fee for general management support services provided by Asset Management to Advisory to be mutually agreed |
(1) Other Office Expenses consists of Repairs & Maintenance, Office & Kitchen Supplies, and Courier & Postage; Gracie and Steele Creek Other Office Expenses includes only Repairs & Maintenance