ADMINISTRATIVE SERVICES AGREEMENT
This Administrative Services Agreement (the "Agreement") is
made and entered into as of November 19, 1996 (the "Effective Date") by and
among Rose Hills Acquisition Corp., a Delaware corporation which is being
renamed Rose Hills Company (together with its current and future subsidiaries,
"RHAC"), The Xxxxxx Group Inc., a British Columbia corporation ("LWN"), and
Xxxxxx Group International, Inc., a Delaware corporation ("LGII" and, together
with LWN, "Xxxxxx").
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Merger and an
Asset Purchase Agreement, each dated as of September 19, 1996 and as amended,
wholly owned assignees of RHAC will, concurrent with the execution and delivery
of this Agreement, have acquired (the "Acquisition") the Cemetery and the
Mortuary (such terms, as well as the other capitalized terms not otherwise
defined herein, having the respective meanings ascribed thereto in RHAC's
Offering Memorandum dated November 14, 1996);
WHEREAS, LGII owns and operates funeral homes and cemeteries
throughout the United States and pursuant to a Subscription Agreement dated as
of November 19, 1996, Roses Delaware, Inc., an affiliate of LGII, has
transferred to the parent of RHAC the capital stock of certain subsidiaries
which own the Satellite Properties, which capital stock has in turn been
contributed to RHAC for further contribution to its subsidiaries;
WHEREAS, RHAC and its parent and subsidiaries may from time to
time acquire additional funeral homes and/or cemeteries (together with the
Satellite Properties, "Acquired Properties"), whether by purchase or shareholder
contribution;
WHEREAS, in order to enable RHAC (i) to effect at Rose Hills
and the Satellite Properties as of the Closing Date the head count reductions
set forth in Exhibit A, (ii) to terminate or freeze the defined benefit plan of
the Mortuary and (iii) to achieve additional cost efficiencies, RHAC seeks to
have Xxxxxx provide certain administrative services and support to Rose Hills
and the Acquired Properties as described herein; and
WHEREAS, it is a condition to the capitalization of the parent
of RHAC, which is necessary to consummate the Acquisition, that this Agreement
be entered into in order that the services described herein may be provided;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
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ARTICLE 1: SERVICES AND SUPPORT TO BE PROVIDED
1.1 The Services. Xxxxxx will furnish or cause one of its
affiliates to furnish to RHAC and RHAC may use such of the following
administrative services and support (individually, and including those services
to be provided pursuant to Sections 1.2 or 1.3, a "Service" and collectively,
the "Services") as RHAC may request from time to time:
a. Accounting and Tax Services.
(i) During each Transition Period (as defined below),
accounting services for the Acquired Properties, including maintenance
of appropriate books and records and preparation of consolidated
financial statements (with all intercompany transactions, if any,
between the Acquired Properties and Rose Hills being separately
identifiable so as to facilitate the preparation of consolidated
financial statements in sufficient detail and timeliness to meet SEC
reporting requirements for RHAC and its subsidiaries) and such other
reports as may be reasonably requested by RHAC;
(ii) Tax planning and advice for RHAC; and
(iii) During each Transition Period, preparation and filing of
all state and Federal tax returns for RHAC any consolidated group of
which it is a part and during and following such Transition Period,
assistance with any tax audits and appeals;
b. Hardware, Software and Telecommunications Support.
(i) Maintenance and servicing of computer hardware located at
the Acquired Properties;
(ii) Telecommunications services, including electronic mail,
voice mail and ancillary services, and technical support with respect
to such services;
(iii) Consultation and support on overall management
information systems planning and strategy; and
(iv) Subject to any incremental third party licensing fees,
licenses to use any or all of the software packages and any
enhancements thereto listed on Exhibit B together with the necessary
information systems support to ensure that such licensed software
functions appropriately, and maintenance support for the hardware
necessary to operate the licensed software;
c. Credit and Collections Support. During the Satellite
Properties Transition Period, credit analysis with respect to customers of the
Satellite Properties and collection activities with respect to accounts
receivable owing from customers of the Satellite Properties; following the
Satellite Properties Transition Period, Xxxxxx staff will provide on site
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supervisory credit and collections services for RHAC with no additional fee or
reimbursement by RHAC to Xxxxxx;
d. Employee Training and Support.
(i) Employee training and support services relating to
regulatory compliance in the following areas: (1) Occupational Safety and Health
Administration Standards, including an annual on-site safety survey to be
conducted by Xxxxxx staff at each location; (2) Americans with Disabilities Act,
Title III, Physical Accommodations by Public Entities; (3) licensing; (4)
environmental; (5) employment law, including wage and hour, sexual harassment,
employment discrimination, the Fair Labor Standards Act, the Family and Medical
Leave Act, employee discipline, employee termination, and employment
applications; (6) funeral, cemetery, crematory services and advanced planning
procedural issues; (7) the Federal Trade Commission's Funeral Services Practices
Rule; and (8) the Federal Truth in Lending Act; such training shall include but
not be limited to two half-day staff seminars per annum covering recent
developments and issues;
(ii) Two on-site training seminars per annum for RHAC
employees to maintain and improve high standards of funeral and cemetery
services; and
(iii) Sales, merchandise and general operations support,
including access to standardized merchandise displays and access to marketing
and telemarketing tools and programs;
e. Legal and Similar Services.
(i) All legal services of a nature customarily performed by
the in-house legal staff of Xxxxxx for its own business, including regular and
periodic assistance with the preparation and filing of, and general guidance
with respect to, federal, state or local governmental reports, case management
of the defense or prosecution of litigation, the procurement, retention,
management and coordination of legal services furnished by independent counsel
and the defense of substantive claims brought against RHAC or Rose Hills
Holdings Corp. ("RH Holdings");
(ii) Environmental support for general regulatory, compliance
and remedial purposes and quality assurance to engender strict regulatory
compliance and adherence to company environmental policy; oversight and
consultation relating to all remedial efforts to be undertaken; and
(iii) Advice in connection with freezing or terminating the
defined benefit plan of the Mortuary; and
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f. Miscellaneous.
(i) Corporate travel Services from Xxxxxx Travel for RHAC
employees;
(ii) At RHAC's option, access to Xxxxxx'x funds management
systems and assistance with arrangements for RHAC's endowment care fund,
pre-need cemetery trust funds and pre-need funeral trust funds; and
(iii) Other related or similar Services to which the parties
mutually agree.
For the avoidance of any doubt, except for reasonable out-of-pocket expenses
incurred in the performance of such Services RHAC shall not reimburse Xxxxxx for
any costs or expenses incurred in this Section 1.1 other than those expressly
provided for in Section 3.2 hereof.
1.2 Integration of Accounting and Management Information
Systems. Xxxxxx will develop as promptly as practicable, but in no event later
than the last day of the applicable Transition Period, a system interface so
that all accounting data relating to the relevant Acquired Properties may be
conveyed directly to the Rose Hills accounting system, thereby enabling RHAC's
systems to generate consolidated financial statements and reports for Rose Hills
and the Acquired Properties on a combined basis. The "Satellite Properties
Transition Period" shall mean the period from the date on which the Acquisition
closes to the date on which such interface is completely effective (which date
shall be no later than March 31, 1997), and the "Acquired Property Transition
Period" shall mean the period from the closing date of any subsequent
acquisition of Acquired Properties to the date on which such interface is
completely effective with respect to any such subsequently acquired Acquired
Properties (which date shall not be later than the date six months from the date
the acquisition of such Acquired Properties is consummated (each, a "Transition
Period"). In lieu of effecting such interface, RHAC may at any time upon 90 days
notice to Xxxxxx instead elect to have the accounting, payroll, tax and credit
and collection functions for Rose Hills (as well as the relevant Satellite
Properties) administered by Xxxxxx. If such decision is made, Xxxxxx is
obligated to provide such services and the administrative fee paid to LGII
pursuant to Section 3.1 hereof shall be increased by the incremental cost to
Xxxxxx of providing such services.
1.3 Additional Services.
a. In addition to the Services listed above, Xxxxxx hereby
agrees that where possible it will exercise its best efforts to provide RHAC
with the ability to purchase services, equipment and supplies at the most
favorable prices paid by Xxxxxx under Xxxxxx'x service, equipment and supply
agreements with third parties including, without limitation, its agreements with
casket vendors, ForeThought, cemetery and funeral merchandise vendors,
telecommunications vendors and providers of construction services.
b. At the request of RHAC or RH Holdings, Xxxxxx will provide
full corporate development support for potential acquisitions. Xxxxxx will be
reimbursed by
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RHAC for the reasonable portion of salaries of personnel providing such services
and for reasonable out-of-pocket expenses relating to contemplated or
consummated transactions. RHAC and Xxxxxx agree that Xxxxxx shall be RHAC's and
RH Holdings' exclusive agent in sourcing potential acquisitions of Nearby
Properties (as hereinafter defined), and Xxxxxx shall regularly advise RHAC and
RH Holdings of such acquisition candidates of which Xxxxxx becomes aware and, if
requested by RHAC, make a presentation to RHAC's Board of Directors in respect
thereof. If RHAC's Board of Directors decides within a reasonable period of time
after being advised by Xxxxxx of a prospective acquisition not to pursue such
acquisition, then Xxxxxx shall be free to refer such prospective acquisition to
any other person or entity or, alternatively, to consummate such acquisition for
their own account. RHAC agrees that it will not solicit transactions through
third parties acting as agents for others; provided, the foregoing shall not
limit the ability of RHAC to source potential acquisitions directly or to
compensate third parties who are not engaged by RHAC as agent but who have
referred unsolicited acquisitions of funeral homes or cemeteries to RHAC.
Xxxxxx'x obligation as exclusive agent is to refer all potential acquisitions of
Nearby Properties to RHAC for due consideration prior to (i) referring such
acquisitions to any other company in the death care business, or (ii) attempting
to acquire such property for its own account.
x. Xxxxxx and RHAC agree that to the extent it is feasible and
cost effective they shall provide to each other:
(i) Access to each other's embalming facilities; and
(ii) Access to each other's automobile fleets where
appropriate.
The costs associated with any shared goods or services under this Section (c)
shall be allocated between Xxxxxx and RHAC on a mutually agreeable basis based
on relative usage.
ARTICLE 2: CONDITIONS RELATING TO SERVICES
2.1 Standard of Care. The Services provided by Xxxxxx to Xxxx
Hills and the Acquired Properties shall be provided on a basis comparable to the
manner in which such services are provided to Xxxxxx'x own affiliates. Neither
RHAC nor Xxxxxx shall take any action in connection with the provision of the
Services which would tend to materially injure, diminish the value of, or
reflect adversely upon Xxxxxx or RHAC.
2.2 Independent Contractor. Notwithstanding any other
provision of this Agreement to the contrary, the parties acknowledge and
expressly agree that Xxxxxx shall be an independent contractor of RHAC while
providing the Services. Nothing herein shall be construed to establish a
partnership, a joint venture or an agency relationship between or among the
parties.
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2.3 Personnel Providing Services. The Services shall be
provided by, or under the supervision of, qualified personnel of Xxxxxx or one
or more of its affiliates as designated by Xxxxxx, the agreement of the parties
being that the Services shall be provided by the Xxxxxx affiliate best able to
provide the maximum benefit to RHAC hereunder. The employees of Xxxxxx providing
Services hereunder shall be, during the term of this Agreement, employees of or
consultants to Xxxxxx and not employees of RHAC, and shall be under the direct
supervision of Xxxxxx. Xxxxxx shall have full control over and full
responsibility for the assignment of employees providing the Services and for
the terms and conditions of employment of such employees including hiring,
discharging, disciplining, scheduling and all other matters relating to the
terms and conditions of employment.
2.4 Notice of Impairment. The parties agree to advise each
other if they acquire a funeral home or cemetery whose proximity to a funeral
home a cemetery owned by it could impair their ability to accept or receive any
of the Services.
ARTICLE 3: COMPENSATION
3.1 Administrative Fee. In consideration for the provision of
the Services, RHAC agrees to pay LGII monthly in arrears an annual
administrative fee equal to $334,000 during the year ending on the first
anniversary of the closing date of the Acquisition and $250,000 during each year
thereafter, subject to an annual 2.5% increase of such $250,000 fee beginning on
the second anniversary of such closing date. LGII shall allocate such fee to LWN
or its other affiliates providing such Services as appropriate. Such fee shall
be increased by a mutually agreed amount determined in accordance with Section
1.2 if RHAC elects to have all of the finance and accounting functions of Rose
Hills and the Acquired Properties administered by Xxxxxx. If during the term of
this Agreement, the scope of the Services provided is reduced, then the parties
agree to negotiate in good faith to determine an appropriate reduction in the
administrative fee payable to LGII. If such reduction in scope of Services
provided is related to RHAC's good faith determination that it is legally
disabled from accepting such Services, then Xxxxxx agrees to reimburse RHAC for
the incremental costs incurred in procuring substantially similar services
elsewhere.
3.2 Expenses. RHAC shall also reimburse Xxxxxx for all
reasonable out-of-pocket costs, up to a maximum of $50,000 per annum or such
amount as may be determined by the Board of Directors of RHAC from time to time,
in connection with the provision of Services described in Article 1 hereof
including, but not limited to, reimbursement for travel expenses. In addition,
RHAC shall reimburse Xxxxxx for all reasonable out-of-pocket costs and expenses
incurred from third party vendors of services, provided, however that Xxxxxx has
secured the prior approval of the President of RHAC and a designee of Blackstone
Capital Partners II Merchant Banking Fund L.P. for each such cost or expense in
excess of $5,000. Xxxxxx shall use its reasonable business judgment in engaging
and contracting with third parties pursuant to the immediately preceding
sentence (including the decision as to whether such services are performed by
Xxxxxx or by a third party provider) as if Xxxxxx was engaging and contracting
with third parties for its own benefit. All such transactions
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with third party providers shall be conducted on an arm's length basis. From
time to time Xxxxxx shall report to and consult with the Board of Directors of
RHAC with respect to the services provided hereunder directly by Xxxxxx
personnel and the services provided by third party providers and the costs
therefor.
ARTICLE 4: TERM AND TERMINATION
4.1 Term and Termination. The term of this Agreement shall be
eight years, subject to earlier termination or extension as provided below
("Term"). This Agreement shall be terminated as follows (the date of any such
termination referred to as the "Termination Date"):
a. Automatically on the eighth anniversary of the date
hereof without any notice or other action required (subject to the last
sentence of this Section 4.1);
b. By RHAC if pursuant to a final, nonappealable order of a
court or other governmental agency having jurisdiction over RHAC or Xxxxxx, it
is determined that Xxxxxx is not legally able to provide, or RHAC is not legally
able to accept, those Services described herein which generally involve access
to competitive or strategic data;
c. By Xxxxxx or RHAC in the event of a material breach by the
other party of any provision of this Agreement including, without limitation,
rejection of this Agreement in a proceeding under the Bankruptcy Act of 1978, as
amended (or any other law relating to bankruptcy, insolvency, reorganization,
liquidation, dissolution, arrangement or winding-up or composition or
readjustment of debts), which breach is not remedied by the breaching party
within 30 days after receipt of written notice thereof (a "Notice of Breach")
from the terminating party;
d. Automatically upon closing following the exercise of the
Option as such term is defined in that certain Put/Call Agreement of even date
herewith (the "Put/Call Agreement");
e. At the option of RHAC, upon transfer of beneficial
ownership of or control over any shares of common stock or preferred stock of RH
Holdings (or any immediate or remote parent entity holding such shares) held by
Xxxxxx or its affiliates to any person other than Xxxxxx or its affiliates; and
f. At the option of RHAC, if Xxxxxx or any of its current or
future Affiliates (as hereinafter defined) or successors owns, operates or
controls any Nearby Property (as hereinafter defined) on or after the date that
is twelve months after the Affiliation Date (as hereinafter defined).
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Notwithstanding the foregoing, this Agreement shall not automatically terminate
pursuant to clause a. above and shall continue indefinitely until terminated by
RHAC if there shall have been a default by Xxxxxx of its obligations under the
Put/Call Agreement.
4.2 Effect of Termination.
a. Termination of this Agreement in accordance with this
Article 4 shall not affect the rights of any party hereto to recover any damages
either shall have suffered as a result of any breach of this Agreement, nor
shall it affect the rights of any party accruing during the Term of this
Agreement.
b. If this Agreement is terminated, then effective as of the
Termination Date Xxxxxx'x right to provide and RHAC's right to request Services
shall terminate immediately and Xxxxxx and RHAC hereby agree to such termination
of rights.
4.3 Definitions. A "Nearby Property" is any funeral home or
cemetery located within a 20 mile radius of any funeral home or cemetery then
owned, operated or controlled directly or indirectly by RH Holdings. The
"Affiliation Date" is the date on which LWN, LGII or their respective successors
and assigns first acquires or otherwise becomes an Affiliate of a Nearby
Property. "Affiliate" shall have the meaning set forth in the Stockholders'
Agreement of even date herewith among Rose Hills Holdings Corp., LWN, LGII and
the other parties thereto.
ARTICLE 5: REPRESENTATIONS AND WARRANTIES OF THE PARTIES
5.1 Representations of Xxxxxx. LWN and LGII each hereby
represents and warrants, on a joint and several basis, to RHAC as follows:
a. Authorization and Binding Obligation. LWN and LGII each
have full corporate power and authority to enter into, deliver and
perform fully its obligations under this Agreement. This Agreement has
been duly executed and delivered by each of LWN and LGII, and
constitutes the valid and binding obligation of each of LWN and LGII,
enforceable against them in accordance with its terms.
b. No Conflict. The execution, delivery and performance by
each of LWN and LGII of their respective obligations under this
Agreement does not conflict with or result in a breach of, or require
any consent under, their respective charter or by-laws or any
applicable law or regulation, or any order, writ, injunction or decree
of any court of governmental authority or agency, or any agreement or
instrument to which either is a party or by which it is bound or to
which it is subject, or constitute a default under any such agreement
or instrument.
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c. No Nearby Properties. Upon consummation of the
Acquisition and the receipt by RH Holdings of the Satellite Properties on the
Closing Date, neither Xxxxxx nor any of its affiliates owns, operates or
controls any Nearby Property.
5.2 Representations and Warranties of RHAC. RHAC hereby
represents and warrants to Xxxxxx as follows:
a. Authorization and Binding Obligation. RHAC has full
corporate power and authority to enter into, deliver and perform fully
its obligations under this Agreement. This Agreement has been duly
executed and delivered by RHAC and constitutes the valid and binding
obligation thereof, enforceable against RHAC in accordance with its
terms.
b. No Conflict. The execution, delivery and performance by
RHAC of its obligations under this Agreement does not conflict with or
result in a breach of, or require any consent under, the charter or
by-laws of RHAC or any applicable law or regulation, or any order,
writ, injunction or decree of any court of governmental authority or
agency, or any agreement or instrument to which RHAC is a party or by
which it is bound or to which it is subject, or constitute a default
under any such agreement or instrument.
ARTICLE 6: MISCELLANEOUS
6.1 Notices. All notices, demands, and requests required or
permitted to be given under this Agreement shall be in writing and shall be
deemed duly given if (i) personally delivered, (ii) sent by confirmed facsimile
transmission to the facsimile numbers provided below, (iii) sent by registered
or certified mail, postage prepaid, return receipt requested, or (iv)
transmitted by a recognized overnight courier service, addressed as follows:
a. in the case of Xxxxxx:
Xxxxxx Group International, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Legal Department
with a copy to:
The Xxxxxx Group Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx V5G 358
Attention: Senior Vice President and Chief
Financial Officer
b. in the case of RHAC:
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Rose Hills Corporation
0000 Xxxxx Xxxxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
with a copy to:
The Blackstone Group
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
or to any such other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
6.1.
6.2 Benefit and Binding Effect. No party hereto may assign
this Agreement without the prior written consent of the other parties, provided,
however, that RHAC may collaterally assign this Agreement to the Bank of Nova
Scotia as security for its obligations under the Credit Agreement dated the date
hereof. Any attempt to assign this Agreement or any part hereof in violation of
this Section 6.2 shall be null and void and of no effect whatsoever. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
6.3 Governing Law. This Agreement shall be governed by the
laws of the State of California as to all matters, including but not limited to
matters of validity, construction, effect, performance and remedies (without
giving effect to the principles of conflicts or law).
6.4 Headings. The headings preceding the text of sections and
subsections of this Agreement are included for ease of reference only and shall
not be deemed part of this Agreement.
6.5 Gender and Number. Words used herein, regardless of the
gender and number specifically used, shall be deemed and construed to include
any other gender, masculine, feminine or neuter, and any other number, singular
or plural, as the context requires.
6.6 Entire Agreement. This Agreement, all exhibits hereto, and
all documents, certificates, and the like to be delivered by the parties
pursuant hereto, collectively represent the entire understanding and agreement
between the parties hereto with respect to the specific subject matter hereof.
All exhibits attached to this Agreement shall be deemed part of this Agreement
and incorporated herein, where applicable, as if fully set forth herein. This
Agreement supersedes all prior negotiations between the parties and cannot be
amended, supplemented or changed except by an agreement in writing which makes
specific reference
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to this Agreement or an agreement delivered pursuant hereto, as the case may be,
and which is signed by the party against which enforcement of any such
amendment, supplement or modification is sought.
6.7 Further Assurances. The parties shall take any actions and
execute any other documents that may be necessary or desirable for the
implementation and consummation of this Agreement or which may be reasonably
requested by any other party hereto. Each party will cooperate with the other
parties and provide any assistance reasonably requested by any other party to
effectuate the terms of this Agreement.
6.8 Severability. If any provision of this Agreement or the
application thereof to any Person or circumstance shall be held invalid or
unenforceable to any extent by any court of competent jurisdiction, the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected thereby and shall be enforced to
the greatest extent permitted by law.
6.9 Counterparts. This Agreement may be signed in
counterparts, each of which shall be deemed to be an original but which, when
taken together, shall constitute one and the same instrument.
6.10 Third-Party Beneficiaries. No provision of this Agreement
shall create any third-party beneficiary rights in any Person, including,
without limitation, employees or former employees of RHAC or Rose Hills or any
Acquired Property and no provisions of this Agreement shall create such
third-party beneficiary rights in any such person.
6.11 Cooperation. In the event and for so long as either party
is investigating, contesting or defending against any claim involving RHAC or RH
Holdings, each of the other parties hereto will, to the extent requested by the
investigating, contesting or defending party, make available its personnel, and
provide such testimony and access to its books and records as shall be necessary
in connection with the investigation, contest or defense, and provide such other
cooperation as the other party may reasonably request in connection with the
investigation, contest or defense.
6.12 Amendments, Supplements. This Agreement may be amended or
supplemented at any time by additional written agreements executed by all of the
parties hereto, as may mutually be determined by such parties to be necessary,
desirable or expedient to further the purposes of this Agreement, or to clarify
the intention of the parties hereto.
6.13 Submission to Jurisdiction; Waivers. Each of the parties
hereto hereby irrevocably submits in any legal action or proceeding relating to
or arising out of this Agreement, or for recognition and enforcement of any
judgment in respect thereof, to the jurisdiction of the United States District
Court for the Central District of California, and appellate courts thereof. Each
of the parties hereto further (i) consents that any such action or proceeding
may be brought in such court and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in such court or
that such action
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or proceeding was brought in an inconvenient court and agrees not to plead or
claim the same; (ii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such party
at its address set forth in Section 6.1 or at such other address of which such
party shall have given notice pursuant thereto; (iii) agrees that nothing herein
shall affect the right to effect service of process in any other manner
permitted by law or shall limit the right to xxx in any other jurisdiction; and
(iv) waives, to the maximum extent not prohibited by law, any right it may have
to claim or recover in any legal action or proceeding referred to in this
subsection any special, exemplary, punitive or consequential damages.
6.14 WAIVERS OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, this Agreement has been executed by the
parties hereto as of the date first above written.
XXXXXX GROUP INTERNATIONAL, INC.
By: /s/ F. Xxxxxx Xxxxx
---------------------------------
Name: F. Xxxxxx Xxxxx
Title:
THE XXXXXX GROUP INC.
By: /s/ F. Xxxxxx Xxxxx
---------------------------------
Name: F. Xxxxxx Xxxxx
Title:
ROSE HILLS ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title:
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Exhibit B
Software
The following is a list of all the software owned by Xxxxxx that will be
available to RHAC:
ALPHA LIST APPLICATION
The Alpha List is a list of all locations within the company. Primarily, it
includes address and contact information.
PRICE LIST APPLICATION
The Price List application contains pricing for service and merchandise
items at each funeral home within the company. This information will be used
to track pricing trends and update prices at the homes if necessary.
EIS DISTRIBUTION MANAGER
Lotus Notes is the current tool used to distribute EIS data to remote users.
In this case, Notes is only used for its communications features.
INVESTOR/ANALYST TRACKING
The Investor/Analyst Tracking application is used by senior staff to track
communications with Investors and Analysts. It maintains a history of
conversations, tracks material faxed or mailed out to investors as well as
earnings estimates and reports from analysts.
CONTACTS
Miscellaneous databases used for contact management.
EMPLOYEE PHONE BOOK
The Employee Phone Book lists all employee telephone locals and fax numbers
for each of the Xxxxxx offices.
PROPERTY INVENTORY
This Risk Management application is used to maintain a list of properties
for insurance purposes.
VEHICLE INVENTORY
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Similar to the Property Inventory database, the Vehicle Inventory
application is used to maintain a list of company vehicles, both leased and
owned, for insurance purposes.
INCIDENT TRACKING
The Incident Tracking application is used to track all insurance claims at
the funeral homes. It is used in each location to fill out claim
information.
PAYROLL HOMES LIST
This database is used by the Payroll department to manage the Payroll
application installed at the funeral homes.
PROJECT TRACKING
The Project Tracking database is used to manage all in progress MIS
projects. It contains summary and detail level information, project
milestones and deliverable dates.
TELECOMM TRACKING SYSTEM
This application is used by the Telecomm department to maintain phone, fax,
pager, cellular and modem number information. Additional data tracked in
this database includes long distance service provider, cellular and pager
provider contact information.
TELEMARKETING LEAD TRACKING
The Telemarketing Lead Tracking database is used in the Cemetery Combo
division. The database tracks every call made by each of 12 telemarketing
offices across the United States. Each call is tracked to its result. Sales
information is tracked and the database is used to perform sales analysis.
PRENEED TRUST MANAGEMENT
Preneed - centralized trust administration system for multiple funeral home
locations. The system tracks Preneed Trust contracts and their associated
payments and withdrawals. A complete audit trail of all transactions is
generated. Preneed provides a selection of activity reports.
Full state statutory reporting is being prepared as the system is installed
in the various locations.
CALLIN
Custom-written module providing weekly sales reports. Some input from
budgets; most via direct data input.
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PAYROLL DATA CAPTURE
Payroll Data Capture is a Windows front end application installed in Funeral
Homes. It captures overtime, regular hours, piecework, vacation, sick leave
hours and transmits the data to Home Office every Monday. The accumulated
data is then sent to ADP for payroll processing.
EXPENSES TRACKING SYSTEM
This application loads American Express and diners information
electronically. It provides the A/P department with meaningful expense
analysis reports.
