EXHIBIT 10.3
SUBMANAGEMENT AGREEMENT
THIS SUBMANAGEMENT AGREEMENT, entered into as of May 6, 1999, by and
between FIC MANAGEMENT INC., a Delaware corporation ("Manager") and IMPAC
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FUNDING CORPORATION, a California corporation ("Submanager") and;
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WITNESSETH:
WHEREAS, the IMPAC Commercial Holdings, Inc. (the "Company") and
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Manager are parties to that certain Amended and Restated Management Agreement,
dated as of the date hereof (the "Management Agreement");
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WHEREAS, pursuant to the Management Agreement, Manager has the right
to subcontract to other parties certain obligations of Manager pursuant to the
Management Agreement;
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein made and intending to be legally bound hereby, the parties hereto agree
as follows:
1. Definitions. Whenever used in this Agreement, the following
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terms, unless the context otherwise requires, shall have the following meanings:
(a) "Affiliate" of any entity means (i) any person directly or
indirectly owning, controlling or holding with power to vote, five percent (5%)
or more of the outstanding voting securities of such entity; (ii) any person
five percent (5%) or more of whose outstanding voting securities are directly or
indirectly owned, controlled, or held with power to vote, by such entity; (iii)
any person directly or indirectly controlling, controlled by, or under common
control with, such entity; or (iv) any officer, director, partner or employee of
such entity or any person set forth in (i) - (iii) above. Any person who owns
beneficially, either directly or through one or more controlled companies, more
than twenty-five percent (25%) of the voting securities of any entity shall be
presumed to control such entity. Any person who does not so own more than
twenty-five percent (25%) of the voting securities of any entity shall be
presumed not to control such entity. A natural person shall be presumed not to
be a controlled entity.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Commercial Mortgages" mean commercial mortgage assets
including condo-conversion, multi-family property and cooperative apartment
mortgage loans on commercial real property such as industrial and warehouse
properties, office buildings, retail space and shopping malls, hotels and
motels, nursing homes, hospitals, congregate care facilities and senior living
centers.
(d) "Company" means Impac Commercial Holdings, Inc., a Maryland
corporation.
(e) "GAAP" means generally accepted accounting principles,
consistently applied.
(f) "Governing Instruments" means, in the case of a corporation,
the articles of incorporation or charter, as the case may be, and bylaws; in the
case of a partnership, the agreement of partnership or limited partnership, as
applicable, and, if applicable, the certificate of limited partnership; and in
the case of a limited liability company, the certificate of limited liability
company and the limited liability company operating agreement.
(g) "Manager" means FIC Management Inc., a Delaware corporation.
(h) "REIT" means a real estate investment trust, as defined under
Section 856 of the Code.
(i) "Submanager" means Impac Funding Corporation, a California
corporation.
2. Submanager's Responsibilities
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(a) Submanager's Services:
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Subject to the supervision and approval of Manager, and subject
further to the last paragraph of this Section 2(a), Submanager shall provide
services to Manager on behalf of the Company as follows (collectively, the
"Submanagement Services"):
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(i) at Manager's request and under Manager's
supervision, provide all services reasonably necessary to consummate an orderly
transition of the management services previously provided by Submanager to the
Company as manager pursuant to a Management Agreement, dated as of August 4,
1997 between the Company and the Submanager
(ii) establish and maintain deposit accounts at banking
institutions designated and/or approved by Manager (collectively, the "Deposit
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Accounts"), provide daily cash flow reports regarding funds in the Deposit
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Accounts, and disburse funds held in the Deposit Accounts as and when directed
by Manager in writing; Submanager shall have no authority to disburse any funds
held in the Deposit Accounts unless Manager has previously approved such
disbursal and the amount thereof in writing;
(iii) maintain complete, accurate and separate books and
records for the assets of the Company and the funds on deposit in the Deposit
Accounts, the entries of which shall be supported by sufficient documentation to
ascertain that said entries are properly and accurately maintained in accordance
with Manager's financial information requirements, which books and records shall
at all times be the property of Manager;
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(iv) provide general ledger and cash flow updates of the
funds on deposit in the Deposit Accounts on a daily basis; provide balance sheet
and other financial statement updates, as requested by Manager, on a monthly
and annual basis; all such financial statements shall be in a form reasonably
satisfactory to Manager and shall be prepared in accordance with GAAP and such
other methods of preparation as may be specified by Manager;
(v) furnish reports and statistical and economic
research reasonably available from its records to Manager regarding the
Company's activities and the services performed for the Company by Submanager;
(vi) coordinate outside legal services to ensure
compliance with federal and state securities laws, regulations and rules
applicable to the Company and/or the assets of the Company ("Applicable
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Securities Requirements") and compile and prepare for execution and filing by
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the Company forms 10Q and 10K and all other forms, registration statements,
reports, returns and other compliance materials required by any Applicable
Securities Requirements;
(vii) monitor American Stock Exchange ("AMEX") listing
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requirements applicable to the Company as a company listed on AMEX and compile
and prepare for execution and filing by the Company all forms, registration
statements, reports, returns and other compliance materials required by AMEX;
(viii) forward promptly to Manager as and when received all
communications received by Submanager from the holders of the equity and debt
securities of the Company; Submanager agrees not to respond or initiate any such
communications without specific instruction to do so from Manager;
(ix) be available to consult with the Manager regarding
the historical activities in connection with acquisitions and potential
dispositions of the assets which the Company holds on the date hereof, as and
when needed by Manager; and
(x) provide accounting personnel (including the services
of Xxxxxxx Xxxxxxx, who is expected to devote substantial, but not exclusive
time thereto) and consultation by other executive and administrative personnel,
office space and services required in rendering services to Manager, including
facilities and costs related therewith, technology, management information
systems, human resource administration, general ledger accounts, accounts
payable and other similar operational or administrative services; provided,
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however, that Manager shall reimburse or cause the Company to reimburse
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Submanager for the actual human resource administration cost of persons in
excess of 20 persons on the payroll of the Company.
Submanager and Manager agree that (w) Submanager shall only undertake
such Submanagement Services as are specifically requested by Manager, (x) the
services to be provided by Submanager hereunder shall in no event be broader
than those services which are to be provided
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by Manager to the Company under the Management Agreement as in effect as of the
date hereof and which are delegated to Submanager hereunder, (y) in no event
shall Submanager be obligated to provide legal services through its own
employees to Manager on behalf of the Company, and (z) Submanger shall at all
times keep Manager informed of the specific Submanager Services being performed
by Submanager. Additionally, Manager and Submanager agree that Submanager shall
procure that the cost of goods and services provided by third parties (who are
not Affiliates of Submanager, except in the case of an Affiliate of the Manager
which provides human resources administration services with respect to persons
in excess of 20 persons on the payroll of the Company, as to the cost of such
excess services) in connection with Submanager's performance of its duties
hereunder shall be billed directly to the Company by the applicable providers.
(b) Employees; Independent Contractor
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(i) Submanager shall have in its employ at all times a
sufficient number of capable employees to properly, adequately, safely and
economically perform the Submanagement Services. All employees shall be
available to Manager as and when needed for advice and consultation. All matters
pertaining to the employment, supervision, compensation, promotion and discharge
of such employees are the responsibility of Submanager , which is and shall
remain in all respects the employer of such employees. Submanager shall use
reasonable care in the selection of such employees. Submanager shall comply with
all applicable laws and regulations having to do with workers' compensation,
social security, unemployment insurance, hours of labor, wages, working
conditions and other employer-employee related subjects.
(ii) This Agreement is not one of agency by Submanager for
Manager or the Company, but one with Submanager engaged independently in the
business of performing the Submanagement Services on its own behalf as an
independent contractor. Nothing contained in this Agreement shall be deemed to
constitute a partnership, joint venture or any other relationship between
Submanager and Manager except as expressly set forth in this Agreement.
Submanager's authority is limited to performing the Submanagement Services in
accordance with the terms of this Agreement. Submanager shall have no authority
to execute any contract or agreement for or on behalf of Manager or the Company
and is not granted any right or authority to assume or create any liabilities or
make any representation, covenant, agreement or warranty, express or whatsoever,
and Submanager shall inform each party with whom it is dealing that it has no
authority to bind Manager or the Company in any respect or make any
representation binding on Manager or the Company.
3. Records. Submanager shall maintain appropriate books of account
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and records relating to services performed hereunder, which books of account and
records shall be accessible for inspection by officers of Manager and the
Company, any Affiliates or subsidiaries thereof and any auditors retained by
Manager or the Company, at any time during normal business hours. Submanager
agrees to keep confidential any and all information it obtains from time to time
in connection with the services it renders hereunder and shall not disclose any
portion thereof to third
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parties which are not Affiliates of the Company or Manager or Submanager, except
with the prior written consent of the Company and Manager.
4. Obligations of Submanager. Anything else in this Agreement to
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the contrary notwithstanding, Submanager shall refrain from any action which in
its reasonable judgment made in good faith (i) would adversely affect the status
of the Company and any subsidiary of the Company as a REIT; (ii) would violate
any law, rule or regulation of any governmental body or agency having
jurisdiction over the Company and such subsidiary; or (iii) which would
otherwise not be permitted by the Company's or its subsidiary's Governing
Instruments.
5. Compensation. Submanager shall receive as its sole and exclusive
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compensation hereunder, the annual sum of $250,000 (the "Management Fee"),
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payable in sixty (60) days in arrears, in equal monthly installments on the
first business day of each calendar month during the Term or the extension
thereof. The first installments of the Management Fee shall be paid by Manager
on July 1, 1999. The Management Fee shall be prorated in the event the Term
begins or ends on a date other than the first or last day, respectively, of a
calendar month. In no event shall Submanager be entitled to reimbursement of
any expenses incurred in connection with this Agreement or the performance of
the Submanagement Services.
6. Limits of Submanager Responsibility. (a) Submanager assumes no
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responsibility under this Agreement other than to render the services called for
hereunder in good faith and shall not be responsible for any action of Manager
or the Company in following or declining to follow any advice or recommendations
of Submanager. Submanager and its directors, officers, shareholders, members
and employees will not be liable to the Company or Manager, any subsidiary of
thereof, the members of the board of directors of the Company or the Company's
or its subsidiary's stockholders, for any acts performed by Submanager or its
directors, officers, shareholders, members and employees in accordance with this
Agreement, except by reason of acts or omissions constituting bad faith, willful
misconduct, gross negligence or reckless disregard of their duties. Manager
shall reimburse, indemnify and hold harmless Submanager and its shareholders,
directors, officers, members and employees from any and all expenses, losses,
damages, liabilities, demands, charges and claims of any nature whatsoever in
respect of or arising from any acts or omissions of Submanager and its
shareholders, directors, officers, members and employees made in good faith in
the performance of Submanager's duties under this Agreement and not constituting
bad faith, willful misconduct, gross negligence or reckless disregard of its
duties.
(b) Submanager shall reimburse, indemnify and hold harmless
Manager and Company, any subsidiaries thereof, or any of their stockholders,
directors, officers and employees, from any and all expenses, losses, damages,
liabilities, demands, charges and claims (including, without limitation,
reasonable attorneys fees and disbursements) arising out of (x) any willful and
intentional misstatements of fact made by Submanager in connection with this
Agreement and the services to be rendered hereunder, or (y) any act or omission
constituting bad faith, willful misconduct, gross negligence or reckless
disregard of its duties hereunder.
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7. Term. This Agreement shall continue in force from the date
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hereof until December 3l, 1999 (the "Term") and thereafter it may be extended
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for a single additional one year period to expire on December 31, 2000 by the
mutual agreement of Submanager and Manager. The extension shall be executed in
writing by both parties hereto before the expiration of this Agreement.
8. Termination for Cause. This Agreement, or the extension hereof,
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may be terminated by either party for cause immediately upon written notice.
Grounds for termination for cause will occur with respect to a party if:
(a) Such party shall have violated any material provision of this
Agreement and, after written notice of such violation, shall not cure such
default within 30 days; or
(b) There is entered an order for relief or similar decree or
order with respect to such party by a court having jurisdiction in the premises
in an involuntary case under the federal bankruptcy laws as now or hereafter
constituted or under any applicable federal or state bankruptcy, insolvency or
other similar laws; or such party (A) ceases or admits in writing its inability
to pay its debts as they become due and payable, or makes a general assignment
for the benefit of, or enters into any composition or arrangement with,
creditors; (B) applies for, or consents (by admission of material allegations of
a petition or otherwise) to the appointment of a receiver, trustee, assignee,
custodian, liquidator or sequestrator (or other similar official) of such party
or of any substantial part of its properties or assets, or authorizes such an
application or consent, or proceedings seeking such appointment are commenced
without such authorization, consent or application against such party and
continue undismissed for 60 days; (C) authorizes or files a voluntary petition
in bankruptcy, or applies for or consents (by admission of material allegations
of a petition or otherwise) to the application of any bankruptcy,
reorganization, arrangement, readjustment of debt, insolvency, dissolution,
liquidation or other similar law of any jurisdiction, or authorizes such
application or consent, or proceedings to such end are instituted against such
party without such authorization, application or consent and are approved as
properly instituted and remain undismissed for 30 days or results in
adjudication of bankruptcy or insolvency; or (D) permits or suffer all or any
substantial part of its properties or assets to be sequestered or attached by
court order and the order remains undismissed for 60 days; or
(c) The Management Agreement is terminated for whatever reason.
Each party agrees that if any of the events specified in this Section
8 shall occur, it will give prompt written notice thereof to the other party
after the happening of such event.
In addition to the foregoing, grounds for termination for cause will
occur with respect to Submanager if Submanager has engaged in bad faith, willful
misconduct, gross negligence or reckless disregard in the performance of its
duties hereunder.
If this Agreement is terminated pursuant to this Section, such
termination shall be without any further liability or obligation of either party
to the other, except that Management Fee
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shall be terminated as of the date of such termination and Manager shall pay to
Submanager any portion of the Management Fee earned by Submanager but unpaid by
Manager through the date of termination, at the times specified in Section 5
hereof.
9. Termination Without Cause. (a) Manager may terminate this
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Agreement without cause upon 30 days' prior written notice.
(b) Submanager may terminate this Agreement without cause,
upon 90 days' prior written notice to Manager, such notice not to be delivered
prior to January 1, 2000.
(c) If this Agreement is terminated pursuant to this Section
9, such termination shall be without any further liability or obligation of
either party to the other, except that (x) if the termination shall occur during
the initial Term hereof, Manager shall pay to Submanager the remaining unpaid
portion of the Management Fee that would have been earned by Submanager through
December 31, 1999 at the times specified in Section 5 as if this Agreement had
not been terminated and (y) if the termination shall occur during the extension
Term hereof, the Management Fee shall be pro-rated as of the date of such
termination and Manager shall pay to Submanager any portion of the Management
Fee earned by Submanager but unpaid by Manager through the date of termination
at the times specified in Section 5 of this Agreement.
10. Assignment.
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(a) This Agreement shall terminate automatically in the event
of its assignment, in whole or in part, by Submanager, unless such assignment
(whether by operation of law, merger or consolidation) (i) is consented to in
writing by Manager, in its sole discretion or (ii) is to an Affiliate of
Submanager or to an entity which is the successor to substantially all of the
assets and operations of Submanager. In no event shall Submanager be permitted
to subcontract all or any portion of it obligations pursuant to this Agreement,
other than to an Affiliate, unless consented to in writing by Manager.
(b) Manager shall be permitted to assign this Agreement
without the consent of Submanager to any transferee of the Manager's interest in
the Management Agreement.
11. Action Upon Termination. From and after the effective date of
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termination of this Agreement, pursuant to Sections 8 or 9 hereof, Submanager
shall forthwith upon such termination deliver to Manager all property and copies
of material documents, corporate records, reports and software with respect to
the Company or any subsidiary of the Company then in the custody of Submanager,
to the extent not previously delivered to Manager.
12. Representations and Warranties.
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(a) Manager hereby represents and warrants to Submanager as
follows:
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(i) Corporate Existence. Manager is a corporation duly
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organized, validly existing and in good standing under the laws of Delaware, has
the power to own its assets and to transact the business in which it is now
engaged and is duly qualified as a corporation and in good standing under the
laws of such jurisdictions where its ownership or lease of property or the
conduct of its business requires such qualification, except for failures to be
so qualified, authorized or licensed that could not in the aggregate have a
material adverse effect on the business operations, assets or financial
condition of Manager and its subsidiaries, taken as a whole.
(ii) Corporate Power; Authorization; Enforceable
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Obligations. Manager has the power, authority and legal right to execute,
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deliver and perform this Agreement and all obligations required hereunder and
has taken all necessary corporate action to authorize this Agreement on the
terms and conditions hereof and the execution, delivery and performance of this
Agreement and all obligations required hereunder. No consent of any other
person including, without limitation, stockholders and creditors of Manager, and
no license, permit, approval or authorization of, exemption by, notice or report
to, or registration, filing or declaration with, any governmental authority is
required by Manager in connection with this Agreement or the execution,
delivery, performance, validity or enforceability of this Agreement and all
obligations required hereunder. This Agreement has been, and each instrument or
document required hereunder will be, executed and delivered by a duly authorized
officer of Manager, and this Agreement constitutes, and each instrument or
document required hereunder when executed and delivered hereunder will
constitute, the legally valid and binding obligation of Manager enforceable
against Manager in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, moratorium or similar laws now or hereafter
in effect relating to the rights and remedies of creditors generally, and
general principles of equity.
(iii) No Legal Bar to This Agreement. The execution,
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delivery and performance of this Agreement and the documents or instruments
required hereunder, will not violate any provision of any existing law or
regulation binding on Manager, or any order, judgment, award or decree of any
court, arbitrator or governmental authority binding on Manager, or the Governing
Instruments of, or any securities issued by Manager or any mortgage, indenture,
lease, contract or other agreement, instrument or undertaking to which Manager
is a party or by which Manager or any of its assets may be bound, the violation
of which would have a material adverse effect on the business operations, assets
or financial condition of Manager and its subsidiaries, taken as a whole, and
will not result in, or require, the creation or imposition of any lien on any of
its property, assets or revenues pursuant to the provisions of any such
mortgage, indenture, lease, contract or other agreement, instrument or
undertaking.
(b) Submanager hereby represents and warrants to the Company as
follows:
(i) Corporate Existence. Submanager is a corporation
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duly organized, validly existing and in good standing under the laws of
California, has the power to own itsassets and to transact the business in which
it is now engaged and is duly qualified as a foreign
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limited liability company and in good standing under the laws of each
jurisdiction where its ownership or lease of property or the conduct of its
business requires such qualification, except for failures to be so qualified,
authorized or licensed that could not in the aggregate have a material adverse
effect on the business operations, assets or financial condition of Submanager
and its subsidiaries, taken as a whole.
(ii) Company Power; Authorization; Enforceable
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Obligations. Submanager has the power, authority and legal right to execute,
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deliver and perform this Agreement and all obligations required hereunder and
has taken all necessary action to authorize this Agreement on the terms and
conditions hereof and its execution, delivery and performance of this Agreement
and all obligations required hereunder. No consent of any other person
including, without limitations, shareholders and creditors of Submanager, and no
license, permit, approval or authorization of, exemption by, notice or report
to, or registration, filing or declaration with, any governmental authority is
required by Submanager in connection with this Agreement or the execution,
delivery, performance, validity or enforceability of this Agreement and all
obligations required hereunder. This Agreement has been, and each instrument or
document required hereunder will be, executed and delivered by a duly authorized
officer of Submanager, and this Agreement constitutes, and each instrument or
document required hereunder when executed and delivered hereunder will
constitute, the legally valid and binding obligation of Submanager enforceable
against Submanager in accordance with its terms.
(iii) No Legal Bar to This Agreement. The execution,
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delivery and performance of this Agreement and the documents or instruments
required hereunder, will not violate any provision of any existing law or
regulation binding on Submanager, or any order, judgment, award or decree of any
court, arbitrator or governmental authority binding on Submanager, or the
Governing Instruments of, or any securities issued by Submanager or of any
mortgage, indenture, lease, contract or other agreement, instrument or
undertaking to which Submanager is a party or by which Submanager or any of its
assets may be bound, the violation of which would have a material adverse effect
on the business operations, assets or financial condition of Submanager and its
subsidiaries, taken as a whole, and will not result in, or require, the creation
or imposition of any lien on any of its property, assets or revenues pursuant to
the provision of any such mortgage, indenture, lease, contract or other
agreement, instrument or undertaking.
13. Notices. All notices, requests, demands and other communications
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provided for hereunder shall be in writing (including telegraphic or facsimile
communications) and shall be mailed (return receipt requested), telegraphed,
sent by facsimile, overnight courier or hand delivered to each party at the
address set forth as follows, or at such other address as either party may
designate by notice to the others, and any such notice, request, demand or other
communication shall be effective upon receipt:
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Manager:
FIC Management Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Chief Operating Officer and Secretary
Submanager
Impac Funding Corporation
0000 Xxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx, Esq.
Either party may at any time give notice in writing to the other party
of a change of its address for the purpose of this Section 13.
14. Amendments. This Agreement shall not be amended, changed,
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modified, terminated or discharged in whole or in part except by an instrument
in writing signed by all parties hereto, or their respective successors or
permitted assigns, or otherwise as provided herein. The parties hereto agree
that in no event shall an oral modification of this Agreement be enforceable or
valid.
15. Successors and Assigns. This Agreement sha1l become effective
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when it is executed by all parties and thereafter shall be binding upon and
inure to the benefit of the parties and their respective successors and
permitted assigns.
16. Attorneys' Fees. In the event that any party shall bring an
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action or proceeding in connection with the performance, breach or
interpretation hereof, then the prevailing party in such action as determined by
the court or other body having jurisdiction shall be entitled to recover from
the losing party in such action, as determined by the court or other body having
jurisdiction, all reasonable costs and expense of litigation or arbitration,
including reasonable attorneys' fees, court costs, costs of investigation and
other costs reasonably related to such proceeding.
17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED AND
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INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE
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OF CALIFORNIA (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO
CONFLICTS OF LAW). Any legal action or proceeding with respect to this Agreement
and any action for enforcement of any judgment in respect thereof may be brought
in the courts of the State of California or of the United States of America
located in the county of Orange County, California, and, by execution and
delivery of this Agreement, Submanager hereby accepts for itself and in re spect
of its property, generally and unconditionally, the non-exclusive jurisdiction
of the aforesaid courts and appellate courts from any thereof. Submanager
irrevocably consents to the service of pro cess out of any of the aforementioned
courts in any such action or proceeding by the hand delivery, or mailing of
copies thereof by registered or certified mail, postage prepaid, to Submanager
at its address set forth below. Submanager hereby irrevocably waives, to the
extent permitted by applicable law, any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Agreement brought in the courts
referred to above and hereby further irrevocably waives, to the extent permitted
by appli cable law, and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum. Nothing herein shall affect the right of Manager to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against Submanager in any other jurisdiction.
18. Headings and Cross References. The section headings hereof have
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been inserted for convenience of reference only and shall not be construed to
affect the meaning, construction or effect of this Agreement. Any reference in
this Agreement to a "Section" or "Subsection" shall be construed, respectively,
as referring to a section of this Agreement or a subsection of a section of this
Agreement.
19. Severability. The invalidity or unenforceability of any
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provision of this Agreement shall not affect the validity of any other
provision, and all other provisions shall remain in full force and effect.
20. Entire Agreement. This Agreement contains the entire agreement
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of the parties relating to the subject matter hereof, and the parties hereto
have made no agreements, representations or warranties relating to the subject
matter of this Agreement that are not set forth otherwise herein. This
Agreement supersedes any and all prior agreements, written or oral, between the
parties hereto.
21. Waiver. Any forbearance by a party to this Agreement in
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exercising any right or remedy under this Agreement or otherwise afforded by
applicable law shall not by a waiver of or preclude the exercise of that or any
other right or remedy.
22. Waiver of Trial by Jury. The respective parties hereto shall
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and they hereby do waive trial by jury in any action, proceeding or counterclaim
brought by either of the parties hereto against the other on any matters
whatsoever arising out of or in any way connected with this Agreement or the
relationship of Manager and Submanager.
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23. Execution in Counterparts. This Agreement may be executed in one
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or more counterparts, any of which shall constitute an original as against any
party whose signature appears on it, and all of which shall together constitute
a single instrument. This Agreement shall become binding when one or more
counterpart, individually or taken together, bear the signatures of both
parties.
24. Arbitration.
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(a) Each controversy, dispute or claim between the
parties arising out of or relating to this Agreement, which controversy, dispute
or claim is not settled in writing within thirty (30) days after the "Claim
Date" (defined as the date on which a party subject to this Agreement gives
written notice to the other that a controversy, dispute or claim exists), will
be settled by binding arbitration in Orange County, California in accordance
with the rules of the American Arbitration Association, which shall constitute
the exclusive remedy for the settlement of any controversy, dispute or claim,
and the parties hereto waive their rights to initiate any legal proceedings
against each other in any court or jurisdiction other than as provided in
Section 17 (the "Court"). Any decision rendered by the arbitrator and such
arbitration will be final, binding and conclusive, subject to Section 24(c).
(b) Except as expressly set forth in this Agreement, the
arbitrator shall determine the manner in which the proceeding is conducted,
including the time and place of all hearings, the order of presentation of
evidence, and all other questions that arise with respect to the course of the
proceeding. All proceedings and hearings conducted before the arbitrator, except
for trial, shall be conducted without a court reporter, except that when any
party so requests, a court reporter will be used at any hearing conducted before
the arbitrator. The party making such a request shall have the obligation to
arrange for any pay for the court reporter. The costs of the court reporter
shall be borne equally by the parties.
(c) The arbitrator shall be required to determine all
issues in accordance with existing case law and the statutory laws of the State
of California. The rules of evidence applicable to proceedings at law in the
State of California will be applicable to the reference proceeding. The
arbitrator shall be empowered to enter equitable as well as legal relief, to
provide all temporary and/or provisional remedies and to enter equitable orders
that will be binding upon the parties. The arbitrator shall issue a single
judgment at the close of the proceeding which shall dispose of all of the claims
of the parties that are the subject of the proceeding. The parties hereto
expressly reserve the right to contest or appeal from the final judgment or any
appealable order or appealable judgment entered by the arbitrator. The parties
hereto expressly reserve the right to findings of fact, conclusions of law, a
written statement of decision, and the right to move for a new trial or a
different judgment, which new trial, if granted, is also to be a proceeding
governed under this provision.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers thereunto duly authorized as of the day and year
first above written.
IMPAC FUNDING CORPORATION
By: /s/Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
FIC MANAGEMENT INC.
By:/s/Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Secretary
