EXHIBIT 10.1
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT ("Agreement") is made effective the 1st day of July
1999, by and between NuVen Advisors, Limited Partnership, a Nevada Limited
Partnership ("Advisor") and ACI Asset Management, Inc., a Nevada corporation
(the "Company").
WHEREAS, Advisor and Advisor's Personnel (as defined below) have experience
in evaluating and effecting mergers and acquisitions, supervising corporate
management, and in performing general administrative duties for publicly-held
companies and development stage investment ventures; and
WHEREAS, the Company desires to retain Advisor to advise and assist the
Company in its development on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and Advisor
agree as follows:
1. Engagement
The Company hereby retains Advisor, effective the date hereof and
continuing until termination, as provided herein, to assist the Company in
its effecting the purchase of businesses and assets relative to its business
and growth strategy (the "Services"). The Services are to be provided on a
"best efforts" basis directly and through Advisor's officers or others
employed or retained and under the direction of Advisor ("Advisor's
Personnel"); provided, however, that the Services shall expressly exclude
capital raising activities of any nature and all legal advice, accounting
services or other services which require licenses or certification which
Advisor may not have.
2. Term
This Agreement shall have an initial term of five (5) years (the
"Primary Term") from the effective date of July 1, 1999. At the conclusion
of the Primary Term this Agreement will automatically be extended on an
annual basis (the "Extension Period") unless Advisor or the Company shall
serve written notice on the other party terminating the Agreement. Any
notice to terminate given hereunder shall be in writing and shall be
delivered at least thirty (30) days prior to the end of the Primary Term or
any subsequent Extension Period.
3. Time and Effort of Advisor
Advisor shall allocate time and Advisors Personnel as it deems necessary to
provide the Services. The particular amount of time may vary from day to day
or week to week. Except as otherwise agreed, Advisor's monthly statement
identifying, in general, tasks performed for the Company shall be conclusive
evidence that the Services have been performed. Additionally, in the absence
of willful misfeasance, bad faith, negligence or reckless disregard for the
obligations or duties hereunder by Advisor, neither Advisor nor Advisor's
Personnel shall be liable to the Company or any of its shareholders for any
act or omission in the course of or connected with rendering the Services,
including but not limited to losses that may be sustained in any corporate
act in any subsequent Business Opportunity (as defined herein) undertaken by
the Company as a result of advice provided by Advisor or Advisor's
Personnel.
4. Compensation
The Company agrees to pay Advisor a fee for the services provided by Advisor
pursuant to this Agreement, as follows:
A. Advisory Fee: The Company shall pay Advisor a monthly fee ("Advisory
Fee") equal to Three Thousand Five Hundred Dollars ($3,500), payable
monthly in advance, in cash or shares of the Company's common stock,
at the Company's election, with such shares to be registered as set
forth herein;
B. Merger Fee: As to Services provided by Advisor related to the
introduction of Business Opportunities which results in a Merger
Transaction or which the Company acquires or otherwise obtain an equity
interest or interest as a creditor, the Company agrees to pay Advisor a
transaction fee (the "Merger Fee"). The Merger Fee shall be equal to
ten percent (10%) of the asset value or investment made in the Company
(including assumed debt) in such Business Opportunity as a result of
Advisor's introduction or efforts. One third (1/3) of the Merger Fee
shall be due and payable upon completion of the definitive agreements
related to each transaction, and the balance shall be issued upon
closing;
C. Transaction Fee: As to Services provided by Advisor related to the
sale of the Company's assets, the Company agrees to pay Advisor a fee
("Transaction Fee") equal to five percent (5%) of the net proceeds
received by the Company.
As additional incentive to execute this Agreement, the Company hereby
grants to Advisor an option to purchase Five Hundred Thousand (500,000)
shares of its common stock (the "Option"), exercisable at a price per
share of fifty cents ($.50) per share, which represents more than one
hundred ten percent (110%) of the fully diluted net book value of such
shares as of the date of the Company's last quarterly financial
statement. The Option shall be evidenced by an Option Agreement in form
and substance, with a stated exercise price, as that attached hereto as
Exhibit "B" and incorporated herein by reference. The right of Advisor
to exercise the Option will vest to Advisor upon execution hereof.
5. Other Services If the Company subsequent to the date hereof enters into a
merger or purchases the assets or enters into a joint venture with, or makes
an investment in a company (a "Business Opportunity") introduced by Advisor,
the Company agrees to pay Advisor a fee equal to five percent (5%) of the
value of each Business Opportunity introduced by Advisor (collectively
referred to herein, in each instance, as the "Transaction Fee"), which shall
be payable upon the closing date each such transaction in cash or in shares
of the Company's common stock on the same basis as the Fee Shares.
The Company and Advisor acknowledge that in the event Advisor, as a result
of this Agreement, receives shares of the Company's common stock it may be
considered an affiliate subject to Section 16(b) of the Securities Exchange
Act of 1934 (the "'34 Act"). In this regard the Company and Advisor agree,
that for purposes of any "profit" computation under Section 16(b) of the '34
Act, the price paid for such shares is equal to the Advisory Fee or the
Transaction Fee, as the case may be.
6. Registration of Shares No later than ten (10) days following the date
hereof as to the Fee Shares, the Advisory Fee (if paid in shares), the
Option Shares and, as to an event giving use to the obligation by the
Company to pay a Transaction Fee, the shares comprising the Transaction Fee
shall be registered by the Company with the Securities and Exchange
Commission under a Form S-8 or other applicable registration statement, and
the Company shall cause such registration statement to remain effective at
all times while Advisor holds such shares. At Advisor's election, such
shares may be issued prior to registration in reliance on exemptions from
registration provided by Section 4(2) of the Securities Act of 1933 (the
"'33 Act"), Regulation D of the '33 Act, and applicable state securities
laws. Such issuance or reservation of shares shall be in reliance on
representations and warranties of Advisor set forth herein. Failing to
register such shares, or maintain the effectiveness of the applicable
registration statement, the Company shall satisfy any Advisory Fee,
Transaction Fee or Advisory Fee in cash within ten (10) days of receipt of
Advisor's statement setting out the amount and type of fee then due and
payable.
7. Costs and Expenses All third party and out-of-pocket expenses incurred by
Advisor in the performance of the Services shall be paid by the Company, or
Advisor shall be reimbursed if paid by Advisor on behalf of the Company,
within ten (10) days of receipt of written notice by Advisor, provided that
the Company must approve in advance all such expenses in excess of $500 per
month.
8. Place of Services The Services provided by Advisor or Advisor's Personnel
hereunder will be performed at Advisor's offices except as otherwise
mutually agreed by Advisor and the Company.
9. Independent Contractor Advisor and Advisor's Personnel will act as an
independent contractor in the performance of its duties under this
Agreement. Accordingly, Advisor will be responsible for payment of all
federal, state, and local taxes on compensation paid under this Agreement,
including income and social security taxes, unemployment insurance, and any
other taxes due relative to Advisor's Personnel, and any and all business
license fees as may be required. This Agreement neither expressly nor
impliedly creates a relationship of principal and agent, or employee and
employer, between Advisor's Personnel and the Company. Neither Advisor nor
Advisor's Personnel are authorized to enter into any agreements on behalf
of the Company. The Company expressly retains the right to approve, in its
sole discretion, each Business Opportunity introduced by Advisor, and to
make all final decisions with respect to effecting a transaction on any
Business Opportunity.
10. Rejected Business Opportunity If, during the Primary Term of this Agreement
or any Extension Period, the Company elects not to proceed to acquire,
participate or invest in any Business Opportunity identified and/or
selected by Advisor, notwithstanding the time and expense the Company may
have incurred reviewing such transaction, such Business Opportunity shall
re-vest back to and become proprietary to Advisor, and Advisor shall be
entitled to acquire or broker the sale or investment in such rejected
Business Opportunity for its own account, or submit such assets or Business
Opportunity elsewhere. In such event, Advisor shall be entitled to any and
all profits or fees resulting from Advisor's purchase, referral or
placement of any such rejected Business Opportunity, or the Company's
subsequent purchase or financing with such Business Opportunity in
circumvention of Advisor.
11. No Agency Express or Implied This Agreement neither expressly nor impliedly
creates a relationship of principal and agent between the Company and
Advisor, or employee and employer as between Advisor's Personnel and the
Company.
12. Termination The Company and Advisor may terminate this Agreement prior to
the expiration of the Primary Term upon thirty (30) days written notice
with mutual written consent. Failing to have mutual consent, without
prejudice to any other remedy to which the terminating party may be
entitled, if any, either party may terminate this Agreement with thirty
(30) days written notice under the following conditions:
(A) By the Company.
(i) If during the Primary Term of this Agreement or any Extension
Period, Advisor is unable to provide the Services as set forth
herein for thirty (30) consecutive business days because of
illness, accident, or other incapacity of Advisor's Personnel;
or,
(ii) If Advisor willfully breaches or neglects the duties required to
be performed hereunder; or,
(B) By Advisor.
(i) If the Company breaches this Agreement or fails to make any
payments or provide information required hereunder; or,
(ii) If the Company ceases business or, other than in the Initial
Merger, sells a controlling interest to a third party, or agrees
to a consolidation or merger of itself with or into another
corporation, or enters into such a transaction outside of the
scope of this Agreement, or sells substantially all of its assets
to another corporation, entity or individual outside of the scope
of this Agreement; or,
(iii) If the Company has a receiver appointed for its business or
assets, or otherwise becomes insolvent or unable to timely
satisfy its obligations in the ordinary course of business,
including but not limited to the obligation to pay the Advisory
Fee, the Transaction Fee, or the Advisory Fee; or,
(iv) If the Company institutes, makes a general assignment for the
benefit of creditors, has instituted against it any bankruptcy
proceeding for reorganization for rearrangement of its financial
affairs, files a petition in a court of bankruptcy, or is
adjudicated a bankrupt; or,
(v) If any of the disclosures made herein or subsequent hereto by the
Company to Advisor are determined to be materially false or
misleading.
In the event Advisor elects to terminate without cause or this Agreement is
terminated prior to the expiration of the Primary Term or any Extension
Period by mutual written agreement, or by the Company for the reasons set
forth in A(i) and (ii) above, the Company shall only be responsible to pay
Advisor for unreimbursed expenses, Advisory Fee and Transaction Fee accrued
up to and including the effective date of termination. If this Agreement is
terminated by the Company for any other reason, or by Advisor for reasons
set forth in B(i) through (v) above, Advisor shall be entitled to any
outstanding unpaid portion of reimbursable expenses, Transaction Fee, if
any, and the balance of the Advisory Fee for the remainder of the unexpired
portion of the applicable term (Primary Term or Extension Period) of the
Agreement.
13. Indemnification Subject to the provisions herein, the Company and Advisor
agree to indemnify, defend and hold each other harmless from and against
all demands, claims, actions, losses, damages, liabilities, costs and
expenses, including without limitation, interest, penalties and attorneys'
fees and expenses asserted against or imposed or incurred by either party
by reason of or resulting from any action or a breach of any
representation, warranty, covenant, condition, or agreement of the other
party to this Agreement. In addition, the Company agrees to indemnify
Advisor, its officers, directors and general partner for expenses and the
payment of profits arising from the purchase and sale by Advisor of
securities in violation of Section 16(b) of the Securities Exchange Act of
1934, as amended, or any similar successor statute.
14. Remedies Advisor and the Company acknowledge that in the event of a breach
of this Agreement by either party, money damages would be inadequate and
the non-breaching party would have no adequate remedy at law. Accordingly,
in the event of any controversy concerning the rights or obligations under
this Agreement, such rights or obligations shall be enforceable in a court
of equity by a decree of specific performance. Such remedy, however, shall
be cumulative and non-exclusive and shall be in addition to any other
remedy to which the parties may be entitled.
15. Miscellaneous
(A) Subsequent Events. Advisor and the Company each agree to notify the
other party if, subsequent to the date of this Agreement, either
party incurs obligations which could compromise its efforts and
obligations under this Agreement.
(B) Amendment. This Agreement may be amended or modified at any time and
in any manner only by an instrument in writing executed by the
parties hereto.
(C) Further Actions and Assurances. At any time and from time to time,
each party agrees, at its or their expense, to take actions and to
execute and deliver documents as may be reasonably necessary to
effectuate the purposes of this Agreement.
(D) Waiver. Any failure of any party to this Agreement to comply with
any of its obligations, agreements, or conditions hereunder may be
waived in writing by the party to whom such compliance is owed. The
failure of any party to this Agreement to enforce at any time any of
the provisions of this Agreement shall in no way be construed to be a
waiver of any such provision or a waiver of the right of such party
thereafter to enforce each and every such provision. No waiver of
any breach of or non-compliance with this Agreement shall be held to
be a waiver of any other or subsequent breach or non-compliance.
(E) Assignment. Neither this Agreement nor any right created by it shall
be assignable by either party without the prior written consent of
the other.
(F) Notices. Any notice or other communication required or permitted by
this Agreement must be in writing and shall be deemed to be properly
given when delivered in person to an officer of the other party, when
deposited in the United States mails for transmittal by certified or
registered mail, postage prepaid, or when deposited with a public
telegraph company for transmittal, or when sent by facsimile
transmission charges prepared, provided that the communication is
addressed:
(i) In the case of the Company:
ACI Asset Management, Inc.
0000 XxxXxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) In the case of Advisor:
NuVen Advisors, Limited Partnership
0000 Xx. Xxxxxxx, Xxxxx 00-000
Xxx Xxxxx, Xxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
With copy to:
Xxxxxxx X. Xxxx
Weed & Co. L.P.
0000 XxxXxxxxx Xxxxx, Xxxxx #000
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
or to such other person or address designated in writing by the
Company or Advisor to receive notice.
(G) Headings. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
(H) Governing Law. This Agreement was negotiated and is being contracted
for in the state of Nevada and shall be governed by the laws of the
state of Nevada, notwithstanding any conflict-of-law provision to
the contrary.
(I) Binding Effect. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective
heirs, administrators, executors, successors, and assigns.
(J) Entire Agreement. This Agreement contains the entire agreement
between the parties hereto and supersedes and renders null and
void any and all prior agreements, arrangements, or understandings
between the parties relating to the subject matter of this Agreement
including but not limited to the Advisory and Management Agreement
dated October 1, 1997 and January 1, 1998. No oral understandings,
statements, promises, or inducements contrary to the terms of this
Agreement exist. No representations, warranties, covenants, or
conditions, express or implied, other than as set forth herein, have
been made by any party.
(K) Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force
and effect.
(L) Counterparts. A facsimile, telecopy, or other reproduction of this
Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument, by one or more parties
hereto and such executed copy may be delivered by facsimile of similar
instantaneous electronic transmission device pursuant to which the
signature of or on behalf of such party can be seen. In this event,
such execution and delivery shall be considered valid, binding and
effective for all purposes. At the request of any party hereto, all
parties agree to execute an original of this Agreement as well as any
facsimile, telecopy or other reproduction hereof.
(M) Time is of the Essence. Time is of the essence of this Agreement and
of each and every provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
above written.
"Advisor"
NuVen Advisors, Limited Partnership
a Nevada Limited Partnership
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: General Partners
The "Company"
ACI Asset Management, Inc.
a Nevada corporation
By: /s/ Xxx X. Xxxxxx
Name: Xxx X. Xxxxxx
Title: Director
EXHIBIT "A"
to the
Advisory Agreement
dated July 1, 1999
THE OPTION
OPTION AGREEMENT
THIS OPTION AGREEMENT ("Agreement") is entered into effective the 1st day
of July 1999, by and between Xxxx X. Xxxx, individually and on behalf of NuVen
Advisor Limited Partnership, a Nevada Limited Partnership (collectively
"NuVen"), and Casino Management of America Inc., a Nevada corporation (the
"Company").
WHEREAS, the Company has agreed to issue to NuVen the option to purchase
shares of the Company's common stock (the "Common Stock") to induce NuVen to
execute the Advisory Agreement of even date between the Company and NuVen, such
agreement incorporated herein by reference (the "Advisory Agreement").
NOW, THEREFORE, for and in consideration of the mutual promises herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and subject to the terms and conditions set forth
below, NuVen and the Company agree as follows:
1. The Option
The Company hereby grants to NuVen the option to acquire Five
Hundred Thousand (500,000) shares of the Company's Common Stock (the
"Option"), subject to adjustment as set forth herein (such shares, as
adjusted, are hereinafter referred to as the "Option Shares"), at a
purchase price of Fifty Cents ($.50) per share ("Option Price").
2. Term and Exercise of Option
A. Term of Option. Subject to the terms of this Agreement, Holder shall
have the right to exercise the Option in whole or in part, commencing
the date hereof through the close of business on July 1, 2004.
B. Exercise of the Option. The Option may be exercised upon written
notice to the Company at its principal office setting out the number of
Option Shares to be purchased, together with payment of the Option
Price
C. Issuance of Option Shares. Upon such notice of exercise and payment of
the Option Price, the Company shall issue and cause to be delivered
within five (5) business days following the written order of Holder, or
its successor as provided for herein, and in such name or names as the
Holder may designate, a certificate or certificates for the number of
Option Shares so purchased. The rights of purchase represented by the
Option shall be exercisable, at the election of the Holder thereof,
either in full or from time to time in part,and in the event the Option
is exercised in respect of less than all of the Option Shares
purchasable on such exercise at any time prior to the date of
expiration hereof, the remaining Option Shares shall continue to be
subject to adjustment as set forth in paragraph 4 hereof. The Company
irrevocably agrees to reconstitute the Option Shares as provided
herein.
3. Reservation of Option Shares
The Company shall at all times keep reserved and available, out of its
authorized Common Stock, such number of shares of Common Stock sufficient
to provide for the exercise of the Option represented by this Agreement.
The transfer agent for the Company's Common Stock and any successor
transfer agent for any shares of the Company's capital stock issuable upon
the exercise of any of such Option rights, will be irrevocably authorized
and directed at all times by the Company in writing to reserve such number
of shares. The Company will cause a copy of this Agreement to be kept on
file with the Company's current transfer agent or its successors.
4. Adjustment of Option Shares
The number of Option Shares purchasable pursuant to this Agreement shall be
subject to adjustment from time to time upon the occurrence of certain
events, as follows:
A. Adjustment for Recapitalization. In the event the Company shall (a)
subdivide its outstanding shares of Common Stock, or (b) issue or
convert by a reclassification or recapitalization of its shares of
Common Stock into, for, or with other securities
(a "Recapitalization"), the number of Option Shares purchasable
hereunder immediately following such Recapitalization shall be
adjusted so that the Holder shall be entitled to receive the kind and
number of Option Shares or other securities of the Company measured as
a percentage of the total issued and outstanding shares of the
Company's Common Stock as of the date hereof, which it would have been
entitled to receive immediately preceding such Recapitalization, had
such Option been exercised immediately prior to the happening of such
event or any record date with respect thereto; provided however that,
in the event of any change in the Company's Common Stock by reason of
a reverse stock split, neither the number nor the Option Price of the
shares subject to this Option shall be changed or be adjusted.
B. Preservation of Purchase Rights Under Consolidation. Subject to
paragraph 4 above, in case of any Recapitalization or any other
consolidation of the Company with or merger of the Company into
another corporation, or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substan-
tially as an entirety, the Company shall prior to the closing of such
transaction, cause such successor or purchasing corporation, as the
case may be, to acknowledge and accept responsibility for the
Company's obligations hereunder and to grant the Holder the right
thereafter upon payment of the Option Price to purchase the kind and
amount of shares and other securities and property which he would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale or conveyance. The provisions of this
paragraph shall similarly apply to successive consolidations, mergers,
sales or conveyances.
C. Notice of Adjustment. Whenever the number of Option Shares purchasable
hereunder is adjusted, as herein provided, the Company shall mail by
first class mail, postage prepaid, to the Holder notice of such
adjustment or adjustments, and shall deliver to Holder setting forth
the adjusted number of Option Shares purchasable and a brief statement
of the facts requiring such adjustment, including the computation by
which such adjustment was made.
5. Failure to Deliver Option Shares Constitutes Breach Under Advisory
Agreement
Failure by the Company, for any reason, to deliver the certificates
representing any shares purchased pursuant to this Option within the five
(5)business day period set forth in paragraph 2 above, or the placement of
a Stop Transfer order by the Company on any Option Shares once issued,
shall constitute a "Breach" under the Advisory Agreement and, for the
purpose of determining the terms of this Agreement, shall automatically
toll the expiration of this Agreement for a period of time equal to the
delay in delivering the subject shares or term of the Stop Transfer order.
6. Indemnification for Section 16 (b) Violation
The Company agrees to indemnify NuVen for expenses and the payment of
profits arising from the exercise of the Option and sale by NuVen of Option
Shares in violation of Section 16(b) of the Securities Exchange Act of
1934, as amended, or any similar successor statute.
7. Assignment
The Option represented by this Agreement may only be assigned or
transferred by NuVen to an Affiliate or subsidiary, or as the result of a
corporate reorganization or recapitalization. For the purpose of this
Option the term "Affiliate" shall be defined as a person or enterprise that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with the Company otherwise, this
Agreement and the rights hereunder shall not be assigned by either party
hereto.
8. Counterparts
A facsimile, telecopy or other reproduction of this instrument may be
executed by one or more parties hereto and such executed copy may be
delivered by facsimile or similar instantaneous electronic transmission
device pursuant to which the signature of or on behalf of such party can be
seen, and such execution and delivery shall be considered valid, binding
and effective for all purposes. At the request of any party hereto, all
parties agree to execute an original of this instrument as well as any
facsimile, telecopy or other reproduction hereof.
9. Further Documentation
Each party hereto agrees to execute such additional instruments and take
such action as may be reasonably requested by the other party to affect
the transaction, or otherwise to carry out the intent and purposes of this
Agreement.
10. Notices
All notices and other communications hereunder shall be in writing and
shall be sent by prepaid first class mail to the parties at the following
addresses, as amended by the parties with written notice to the other:
To NuVen: Xxxx X. Xxxx
NuVen Advisor Limited Partnership
0000 XxxXxxxxx Xxxxx, Xxxxx #000
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
With copy to: Weed & Co. L.P.
0000 XxxXxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the Company: ACI Asset Management, Inc.
0000 XxxXxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
11. Counterparts
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
12. Governing Law
This Agreement was negotiated, and shall be governed by the laws of
Nevada notwithstanding any conflict-of-law provision to the contrary.
13. Entire Agreement
This Agreement sets forth the entire understanding between the parties
hereto and no other prior written or oral statement or agreement shall be
recognized or enforced.
14. Severability
If a court of competent jurisdiction determines that any clause or
provision of this Agreement is invalid, illegal or unenforceable, the other
clauses and provisions of the Agreement shall remain in full force and
effect and the clauses and provision which are determined to be void,
illegal or unenforceable shall be limited so that they shall remain in
effect to the extent permissible by law.
15. Amendment or Waiver
Every right and remedy provided herein shall be cumulative with every
other right and remedy, whether conferred herein, at law, or in equity,
and may be enforced concurrently herewith, and no waiver by any party of
the performance of any obligation by the other shall be construed as a
waiver of the same or any other default then, theretofore, or thereafter
occurring or existing. At any time prior to Closing, this Agreement may
be amended by a writing signed by all parties hereto.
16. Headings
The section and subsection headings in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first written above.
"NuVen"
Xxxx X. Xxxx, dba
NuVen Advisor Limited Partnership
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: General Partner
The "Company"
ACI Asset Management, Inc.
a Nevada corporation
By: /s/ Xxx X. Xxxxxx
Name: Xxx X. Xxxxxx
Title: Director
