Exhibit 2.k.1
REFERRAL AGREEMENT
This Referral Agreement (this "Agreement") is made between American
Capital Strategies, Ltd. ("ACS"), a Delaware corporation and the Xxxxx Bank N.A,
(the "Referral Party").
ACS is a diversified financial services firm engaged in, among other
activities, the business of providing financing for commercial borrowers. ACS
desires to be introduced to prospective loan and other investment opportunities,
and the Referral Party desires to submit such opportunities to ACS for ACS's
consideration.
In consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally and equitably bound, hereby agree as set
forth below.
Section 1. Terms of Engagement.
(a) Introduction and Acceptance of Investment Opportunities. The
Referral Party shall introduce to ACS any loan or other investment opportunity
that the Referral Party reasonably believes will satisfy ACS's established
investment criteria or designated product line (each such prospective loan or
other investment opportunity, an "Investment Opportunity") by timely delivery to
ACS of a written description of an Investment Opportunity. Within ten (10)
business days after receipt of a written description of an Investment
Opportunity from the Referral Party, ACS will notify the Referral Party as to
whether or not ACS intends to pursue the Investment Opportunity. If ACS so
accepts the Investment Opportunity, then the following terms of this Agreement
shall control; if not so accepted, then the Referral Party may refer the
Investment Opportunity to other lenders.
(b) Due Diligence; Discretion. ACS will, to the extent it deems
necessary, perform its own due diligence investigation regarding each Investment
Opportunity, and ACS may enlist the Referral Party's assistance in gathering
information about the Investment Opportunity and in preparing transaction
write-ups, in addition to the information provided pursuant to Subsection (a)
above. Notwithstanding any other provisions of this Agreement, ACS may, in its
absolute discretion, refuse to consider any Investment Opportunity.
Section 2. Compensation. For each Investment Opportunity ACS accepts
and thereafter actually closes and funds, ACS will pay to the Referral Party the
amounts stated to be payable in accordance with the provisions set forth in the
Loan Fee Schedule and the Payment Schedule of Schedule A hereto. The Referral
Party shall not receive any commission, brokerage, finder's or other fee or
compensation from the borrower or other beneficiary in connection with any such
Investment Opportunity without ACS's prior written consent.
Section 3. Covenants
(a) Standards of Operation. The Referral Party shall at all times
during the term of this Agreement operate the Referral Party's business in
compliance with all applicable laws, rules and regulations and shall maintain
all licenses or other authorizations necessary for the operation of each
business. The Referral Party will not knowingly operate the Referral Party's
business in any way which adversely reflects upon ACS.
Similarly, ACS shall at all times during the term of this Agreement
operate its business in compliance with all applicable laws, rules and
regulations and shall maintain all licenses or other authorizations necessary
for the operation of such business. ACS will not knowingly operate ACS's
business in any way which adversely reflects upon the Referral Party.
(b) No Transfers. Neither this Agreement nor the Referral Party's
rights and duties hereunder may be sold, assigned or delegated by the Referral
Party without the prior written consent of ACS.
Neither this Agreement nor ACS's rights and duties hereunder may be
sold, assigned or delegated by ACS without the prior written consent of the
Referral Party.
(c) Confidentiality. The Referral Party shall at all times use and
maintain in confidence any proprietary materials provided to the Referral Party
from ACS. For this purpose, "proprietary materials" does not include the name of
a borrower or the amount and the terms of a loan introduced by the Referral
Party and funded by ACS unless specifically indicated to the contrary by ACS.
ACS shall at all times use and maintain in confidence any proprietary
materials provided to ACS from the Referral Party.
(d) Independent Status. The Referral Party shall at all times be an
independent contractor hereunder, rather than a co-venturer, agent, employee,
franchisee or representative of ACS. The Referral Party shall work independently
without supervision by ACS, shall be responsible for its own taxes, shall not be
required to work on a continuing daily basis or on any specific work schedule
and shall not be provided with office space or administrative support by ACS.
ACS hereby acknowledges and agrees that the Referral Party may engage in other
businesses and ventures.
(e) Indemnification. Each of the Referral Party and ACS shall
indemnify, defend and hold harmless the other from and against any and all
losses claims, damages, liabilities and expenses whatsoever, joint or several,
as incurred, as to which such other party may become subject under any
applicable federal or state law or otherwise, related to or arising out of or
based upon any act or omission of the Referral Party or ACS, as the case may be,
in connection with a breach or misrepresentation or omission by such party of
such party's obligations hereunder or the representations contained herein or in
connection with any
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transactions contemplated hereby, and will reimburse the other party for all
legal or other expenses (including, without limitation, attorney's fees and
expenses) as they are incurred in connection with the investigation of,
preparation for or defense of any pending or threatened claim or any action or
proceeding arising therefrom, whether or not such other party is a named party
in any such claim, action or proceeding; provided, however, that no party shall
have liability to the other to the extent that any such loss, claim, damage,
liability or expense is found in a final judgment by a court of competent
jurisdiction to have resulted from such other party's willful misconduct or
gross negligence.
Section 4. Duration of Agreement.
(a) Term. This Agreement shall take effect as of the date of execution
and shall remain in effect for one year from date of execution. Thereafter, the
term of this Agreement may be renewed for an additional one year period if
agreed to in writing by both parties.
(b) Termination. Notwithstanding any other provisions hereof, either
party may terminate this Agreement upon sixty days' prior written notice to the
other party. The Referral Party's right to receive any compensation pursuant to
an Investment Opportunity presented by the Referral Party and duly accepted by
ACS before such termination shall remain undiminished by any such notice of
termination.
Section 5. Miscellaneous.
(a) Notices. Any notice required to be given hereunder shall be
sufficient if in writing, and sent by certified or registered mail, return
receipt requested, first-class postage prepaid, if to the Referral Party at the
address listed in Schedule A hereto, and if to ACS to its office located at 0
Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000.
(b) Governing Law. This Agreement, including any exhibits hereto, shall
be construed in accordance with and governed by the laws of the District of
Columbia, without regard to its principles of conflicts of law. Venue for any
adjudication hereof shall be only in the courts of the District of Columbia or
the federal courts in the District of Columbia, the jurisdiction of which courts
both parties hereby consent to as the agreement of the parties, as not
inconvenient and as not subject to review by any court other than such courts in
the District of Columbia. Both parties intend and agree that the courts of the
jurisdictions in which the Referral Party conducts business should afford full
faith and credit to any judgment rendered by a court of the District of Columbia
against the Referral Party, and should hold that the District of Columbia courts
have jurisdiction to enter a valid, in personam judgment against the Referral
Party. The Referral Party agrees that service of any summons and/or complaint,
and other process which may be served in any action, may be may be made by
mailing via registered mail or delivering a copy of such process to the Referral
Party at its address specified below, and the Referral Party agrees that this
submission to jurisdiction to consent to service of process are reasonable and
made for the express benefit of ACS.
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(c) Waiver of Jury Trial. Each party to this Agreement agrees that any
suit, action or proceeding, whether claim or counterclaim, brought or instituted
by any party hereto or any successor or assign of any party on or with respect
to this Agreement which in any way related, directly, or indirectly, to the
subject matter hereof or any event, transaction or occurrence arising out of or
in any way connected with this Agreement or the dealings of the parties with
respect thereto, shall be tried only by a court and not by a jury. EACH PARTY
HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR
PROCEEDING. The Referral Party acknowledges and agrees that this Section is a
specific and material aspect of this Agreement between the parties and that ACS
would not enter into this Agreement with the Referral Party if this waiver of
jury trial section were not a part of this Agreement.
(d) Entire Agreement; Modifications and Waivers; Severability. This
Agreement represents the entire agreement and understanding by and between ACS
and the Referral Party with respect to the services herein referred to, and no
representations, promises, agreements or understandings, written or oral, not
herein contained shall be of any force or effect. No change or modification
hereof shall be valid or binding unless the same is in writing and signed by the
party against whom such waiver is sought to be enforced; moreover, no valid
waiver of any provision of this Agreement at any time shall be deemed a waiver
of any other provision of this Agreement at such time or will be deemed a valid
waiver of such provision at any other time. In the event any provision contained
herein shall be held to be invalid, illegal or unenforceable, it shall not
affect any other provision hereof, and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein, unless to do so would cause this Agreement to fail of its essential
purpose.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of , 19 .
American Capital Strategies, Ltd.
By:
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Name:
Title:
REFERRAL PARTY
By:
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Name: Xxxxxxxx Xxxx Xxxxxx
Title: Senior Vice President
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SCHEDULE A TO REFERRAL AGREEMENT
Name of Referral Party: Xxxxx Bank N.A.
Address, including telephone and telecopy numbers, of Referral Party's principal
place of business:
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
LOAN FEE AND PAYMENT SCHEDULE
Presentation of summary memo with financial statements: 1/2%
An application packages includes sufficient information for American Capital
Strategies, Ltd. to follow up with the applicant. The Referral Party shall
submit, when applicable, a one or two page summary memorandum, applicant's
financial statements, and other selected information.
All fees paid at time of initial closing on loan, based on the total committed
amount.
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