Exhibit 10.2
EMPLOYEE LEASING AGREEMENT
EMPLOYEE LEASING AGREEMENT (the "Agreement"), dated February 19, 1997,
among Lone Star Liquidating Trust, a Texas trust (the "Trust"), Facilities
Management Installation, Inc., a Delaware corporation ("FMI" and together with
the Trust sometimes collectively referred to herein as the "Trust Companies")
and Southwestern Financial Services Corporation, a Delaware corporation
("SWFSC").
INTRODUCTORY PROVISIONS
The following are true and correct and form the basis for and are a part of
this Agreement:
A. SWFSC is a party to (i) that certain Employee Leasing Agreement dated as
of December 29, 1995, with I.C.H. Corporation ("ICH"), FMI and other
subsidiaries of ICH (as amended and extended to date, the "ICH Agreement") and
(ii) that certain Employee Leasing and Data Processing Capacity Agreement dated
as of December 29, 1995 with Bankers Multiple Line Insurance Company, an
Illinois insurance company ("BML" (as amended and extended to date, the "BML
Agreement"). Both the ICH Agreement and the BML Agreement expire by their terms
on the date hereof.
B. ICH filed a voluntary petition for relief under Chapter 11 of the
Bankruptcy Code in the U.S. Bankruptcy Court, Northern District of Texas, Dallas
Division on October 10, 1995. Pursuant to the First Amended Joint Plan of
Reorganization Under Chapter 11, as approved by Order dated February 7, 1997
(the "Plan"), the Trust was established to which certain assets of ICH have been
transferred, including the capital stock of FMI. Further, the Trust has agreed
with Reorganized ICH (as defined in the Plan) to provide such administrative and
management services to it and BML as was being provided under the ICH Agreement
and BML Agreement, respectively, immediately prior to the expiration of such
agreements, which services will be obtained by the Trust under and pursuant to
this Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
EMPLOYEE LEASING AGREEMENT - Page 1
ARTICLE I
Leased Employee Services
1.1 In General. The leased employees are substantially all of the employees
of SWFSC, and the Executive Managers set forth on Schedule 1.1, who perform the
tasks set forth in Article VI hereto for SWFSC and its affiliates and who
performed substantially all of the services reasonably necessary or required for
the conduct of the business of the companies, including ICH, FMI and BML, that
SWFSC served under the ICH Agreement and BML Agreement prior to the date hereof.
Such business as so conducted and to the extent to be conducted under this
Agreement for and on behalf of the Trust Companies is referred to as the
"Business." Such leased employees, as changed from time to time in accordance
with this Agreement, are herein called the "Leased Employees." Subject to
Section 1.3, the Leased Employees, together with their offices, and office
equipment, (including computer and other data processing equipment) and supplies
(collectively, the "Offices"), will be made available to the Trust Companies to
the extent reasonably necessary or required for the conduct of the Business
under the supervision, direction and control of Xxxxx X. Xxxxx, Managing Trustee
(the "Trustee").
1.2 Acceptance. The Trust Companies hereby acknowledge that the Leased
Employees to be made available to the Trust Companies as of the date hereof
collectively have the qualifications, training and experience reasonably
necessary or required for the conduct of the Business in accordance with sound
business practices in all material aspects.
1.3 Allocation of Time. SWFSC will use its reasonable efforts in good faith
to allocate on a fair and equitable basis the time of the Leased Employees among
the other companies to which it provides services, including its own affiliates
and the Trust Companies.
ARTICLE II
Leased Employees
2.1 Provision of Leased Employees. SWFSC hereby leases the Leased Employees
to the Trust Companies on a non-exclusive basis during the term of this
Agreement. At all times during the term of this Agreement, SWFSC will have the
right to determine, in the reasonable exercise of its discretion, the identity
of Leased Employees and the percentage of the Leased Employees' time to be
devoted to the Trust Companies; provided, however, at all times during the term
hereof SWFSC will (a) provide the Trust Companies with Leased Employees who
collectively have the qualifications, training and experience reasonably
necessary for the conduct of the Business in accordance with sound business
practices in all material aspects, and (b) subject to Section 1.3, cause such
Leased Employees to devote such time as may be reasonably necessary or required
for the conduct of the Business.
EMPLOYEE LEASING AGREEMENT - Page 2
2.2 SWFSC As Sole Employer. The Leased Employees shall at all times remain
the employees of SWFSC. SWFSC shall have the sole authority and responsibility
to hire, terminate, determine the rate and manner of compensation and benefits
of, evaluate and discipline the Leased Employees. Such authority and
responsibility shall be exercised without prior consultation with, or notice to,
the Trust Companies, except that insofar as their work for the Trust Companies
is concerned, the activities of the Leased Employees shall be under the
direction, supervision and control of the Trustee, as provided in Article IV.
The Trust Companies shall not have any obligation for the payment of any
compensation or benefits to any Leased Employee. Notwithstanding the provisions
of Section 2.1, SWFSC shall, at the request of the Trust Companies, make
reasonable efforts to replace or reassign any Leased Employee who does not
adequately perform assigned tasks, as determined by the Trustee in the
reasonable exercise of her discretion.
2.3 No Solicitation. During the period beginning on the date hereof and
ending on the later of (a) the first anniversary of the date hereof, or (b) six
months after the termination of this Agreement, the Trust Companies shall not
directly or indirectly, employ, or offer employment to or solicit, encourage or
induce any person employed by SWFSC to leave the employ of SWFSC without the
prior consent of SWFSC, provided, that the Trust Companies may solicit for
employment any Leased Employee whose employment by SWFSC has been involuntarily
terminated by SWFSC but only to the extent such solicitation commences following
such Leased Employee's termination of employment with SWFSC.
2.4 No Agency. In the performance of their duties in respect of the
Business, the Leased Employees shall be the agents of the Trust Companies and
not of SWFSC. The Trust Companies shall not hold out the Leased Employees, and
shall use commercially reasonable efforts to cause the Leased Employees not to
hold themselves out, as agents of SWFSC in the course of the performance by the
Leased Employees of their duties in respect of the Business.
ARTICLE III
Use of Facilities, Equipment and Supplies
3.1 No Ownership Interest: Limited Rights. The Trust Companies shall have
no property interest or other rights in the Offices. Each Trust Company
acknowledges that its only right under this Agreement is to the lease of the
Leased Employees and to have the use of Offices in the manner provided herein,
and that it is not granted any right to the use of any specific equipment or
software or any particular configuration thereof, except as provided herein.
3.2 Lease of Facilities. If either party so desires, the Trust Companies
will enter into a mutually agreeable lease, sublease or other such arrangement
with SWFSC pursuant to this Agreement for the use by the Trust Companies of any
SWFSC facilities that the Trust Companies exclusively occupies. Such lease,
sublease or other arrangement will be for the term of this Agreement only,
unless otherwise expressly agreed by SWFSC, and will have such other terms as
the parties agree.
EMPLOYEE LEASING AGREEMENT - Page 3
3.3 Purchase of Specific Equipment and Forms. In the event the Business
requires the use of any specific equipment or any business forms, including,
without limitation, letterhead, notices and other customer communications, or
any other item, in each case, which will be used exclusively by the Trust
Companies (collectively the "Purchased Items"), SWFSC may, in its sole
discretion, purchase such item for the account of the Trust Companies, provided,
that if the amount required to be expended for any Purchased Item exceeds
$5,000, such expenditure shall not be made without the prior consent of the
Trustee. The full cost of the Purchased Item, which cost shall include any
reasonable expenses of SWFSC in procuring the Purchased Item, shall be reflected
on the next succeeding monthly billing statement provided to the Trust Companies
pursuant to Section 6.2. Following the termination of this Agreement, Purchased
Items not held in the name of the Trust Companies shall be transferred and
conveyed to the Trust Companies at no additional cost to the Trust Companies,
except for the reasonable expenses incurred by SWFSC in transferring such
Purchased Items to the Trust Companies, which expenses shall be paid by the
Trust Companies immediately upon receipt of such Purchased Item.
3.4 Maintenance of Books and Records. During the term of this Agreement,
and subject to applicable law or regulation, SWFSC shall maintain for and on
behalf of the Trust Companies such books and records of the Trust Companies as
the Trustee may reasonably request in the same manner, and subject to the same
records retention policy, as SWFSC uses for the books and records of its
affiliates. If at any time the Trust Companies object to the records retention
policy of SWFSC, the Trust Companies may (at the Trust Companies' expense)
remove and retain such books and records. SWFSC shall provide access to such
books and records to the Trust Companies and its designees at the offices of
SWFSC during normal business hours, and shall furnish such books and records to
the Trust Companies upon reasonable request.
3.5 Use of Trust Companies Property. In the performance of their duties
hereunder the Leased Employees will have the right to use any piece of equipment
or software which is owned by the Trust Companies or which the Trust Companies
has the right to use. The Trust Companies will use commercially reasonable
efforts to obtain all consents from third parties, if any, which may be
necessary for the Leased Employees to use any such equipment or software.
ARTICLE IV
Management Obligations of the Trust Companies
4.1 Management General.
(a) SWFSC shall make available the Leased Employees to conduct the
Business under the direction and supervision of the Trustee. The Trust
Companies acknowledge that the duties of the Leased Employees will be
administrative, technical and ministerial in nature and that the Leased
Employees will not set policy for the Trust Companies. The Trustee shall
establish or approve all policies under which the Leased Employees operate,
including,
EMPLOYEE LEASING AGREEMENT - Page 4
without limitation, policies with respect to compliance with all applicable
insurance and other laws.
(b) Although the direct supervision of any individual Leased Employee
may be carried out, and the activities and performance of such individual
Leased Employee may be directed by, another Leased Employee, all such
supervisory activities shall be performed by the Leased Employees as agent
for and on behalf of the Trust Companies and not SWFSC. The Trustee shall
bear the responsibility to direct the Leased Employees, and any such direct
supervision of Leased Employees by other Leased Employees shall in no way
lessen the responsibility of the Trust Companies and the Trustee for the
direction and supervision of the Leased Employees.
(c) The Trustee shall act through the management structure of SWFSC,
including the Executive Managers, in dealing with SWFSC and the Leased
Employees.
4.2 The Trustee.
(a) The Trust Companies shall cause the Trustee to devote such time,
attention and skill as may be necessary or appropriate to perform the
duties and responsibilities of the Trustee outlined in this Agreement.
(b) The Trust Companies will promptly notify SWFSC if Xxxxx X. Xxxxx
is terminated or ceases to act as the Trustee for any reason, and when a
new trustee is retained or appointed. In the event that the Trust Companies
fail to have a trustee appointed to perform the obligations of the Trust
Companies under this Agreement for a period of five consecutive business
days, SWFSC may, at its sole option, cease to make the Leased Employees
available hereunder until such time as a replacement trustee has been duly
appointed and SWFSC has been notified thereof.
EMPLOYEE LEASING AGREEMENT - Page 5
ARTICLE V
Services
5.1 Services Required. Subject to Section 1.3, SWFSC will make the Leased
Employees available to the Trust Companies to the extent reasonably necessary or
required for the conduct of the Business, including without limitation, the
performance of the following services as reasonably directed or requested by the
Trustee:
(a) Accounting, audit support and tax services;
(b) Administrative and support services; and
(c) Such other services as may be reasonably required for the conduct
of the Business and as agreed by SWFSC and the Trust Companies.
ARTICLE VI
Fees and Expenses
6.1 Fees and Expenses of Term. During the Term of this Agreement, the fees
and expenses to be paid to SWFSC by the Trust Companies hereunder shall be the
Trust Companies' pro rata portion of certain fees and expenses of SWFSC
calculated on the basis set forth on Schedule 6.1.
6.2 Billing and Payment. Within 30 days following the end of each calendar
month during the Term hereof or the date of termination of this Agreement, SWFSC
will provide to the Trust Companies a statement showing the fees and expenses
allocable to the Trust Companies for such prior calendar month or portion
thereof, together with amounts paid by SWFSC in respect of any Purchased Item
not yet billed to the Trust Companies.. The Trust Companies will pay each such
statement in full within 15 days of receipt. Without limiting any other right of
SWFSC, payments made by the Trust Companies later than 15 days shall accrue
simple interest at 10% per annum (or such lesser rate as may be the legal
maximum rate of interest).
6.3 Audit/Dispute of Statements. The Trust Companies may audit a billing
statement that has not been previously audited and sustained, or otherwise
agreed to and not changed and that the Trust Companies believe in good faith to
be incorrect provided such audit is commenced within a 15-day period after the
receipt of such billing statement. The Trust Companies may audit a billing
statement for the purposes of determining whether (i) the amounts allocated to
the Trust Companies are appropriately allocated to the Trust Companies (rather
than to an affiliate of SWFSC), and (ii) the calculation or determination of
costs underlying the billing have been performed in accordance with this
Agreement. The Trust Companies shall have no other right to audit, dispute,
object to or otherwise challenge any statement or part thereof. Any such audit
shall be completed, if at all, within 15 days after it is commenced. SWFSC shall
cooperate with any such audit, including by providing
EMPLOYEE LEASING AGREEMENT - Page 6
to the Trust Companies all supporting documentation relating to the billing
statement being audited. If such audit indicates the need for an adjustment of
the amounts charged, the Trust Companies may dispute the correctness of such
statement or any charges thereon, by proposing, in writing, an adjustment and
the reasons therefor, each in reasonable detail. Any proposed adjustment shall
specify the allocated items, if any, that require adjustment and be accompanied
by data supporting the proposed adjustment. Any statement (or part thereof) not
disputed as to correctness by the Trust Companies (or as to which an audit has
not been commenced) within the 15-day period shall thereafter conclusively be
deemed correct for all purposes. In the event that a billing statement is
disputed under this Section 6.3, representatives of SWFSC and the Trustee shall
confer within 5 business days of delivery to SWFSC of the proposed adjustment.
If SWFSC and the Trust Companies are unable to resolve such dispute within 5
business days, any such dispute shall be finally resolved in accordance with
Article VIII hereto. If such final resolution occurs after the termination of
this Agreement, such adjustment shall be paid by the Trust Companies or repaid
by SWFSC, as the case may be, within 15 days of the date of the final
resolution. Nothing in this Section 6.3 shall relieve the Trust Companies from
its obligation to pay each monthly statement or the statement prepared at the
termination of this Agreement in full within 15 days of receipt, whether or not
such statements reflect amounts that are being audited or disputed.
ARTICLE VII
Remedies and Indemnification
7.1 Limited Remedies. SWFSC's sole liability to the Trust Companies for any
failure to carry out, or error or omission in carrying out, its obligations
hereunder (unless such failure, error or omission results from bad faith,
willful malfeasance or gross negligence of SWFSC) shall be to correct the
failure, error or omission as soon as reasonably practicable under the
circumstances. SWFSC shall not be liable to the Trust Companies or any other
person for following instructions of the Trust Companies or the Trustee, and all
remedial actions on the part of SWFSC with respect to any inaccurate, erroneous
or mistaken instructions from the Trust Companies or the Trustee shall be at the
sole cost and expense of the Trust Companies. IN NO EVENT SHALL SWFSC, ITS
AFFILIATES OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISERS, OR
REPRESENTATIVES (COLLECTIVELY, THE "REPRESENTATIVES") BE LIABLE TO THE TRUST
COMPANIES UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY THEORY OF TORT,
CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DAMAGES,
DIRECT OR INDIRECT, CONSEQUENTIAL OR OTHERWISE, EXCEPT FOR SUCH DAMAGES THAT
RESULT FROM ITS OR THEIR RECKLESSNESS OR WILLFUL MISCONDUCT.
7.2 Indemnification.
(a) SWFSC agrees to indemnify and to hold the Trust Companies harmless
from any and all Losses incurred by the Trust Companies as the result of
any act or omission by
EMPLOYEE LEASING AGREEMENT - Page 7
SWFSC in the performance of its duties hereunder if SWFSC's act or omission
constitutes bad faith, willful malfeasance or gross negligence.
(b) The Trust Companies agree to indemnify and hold SWFSC, its
affiliates and each of their Representatives (collectively, the "SWFSC
Indemnities") harmless from any and all Losses (whether attributable in
whole or in part to the acts or omissions of the SWFSC Indemnitees)
resulting from any act or omission by the Trust Companies or the Trustee
related to the performance of this Agreement if the Trust Companies' or
Trustee's act or omission constitutes bad faith, willful malfeasance or
gross negligence.
(c) As used herein, "Losses" shall mean any and all liabilities,
obligations, commitments, losses, fines, penalties, sanctions, costs
(including court costs but excluding costs and expenses of in-house experts
and other personnel), expenses, interest, deficiencies or damages (whether
absolute, accrued, conditional or otherwise and whether or not resulting
from third-party claims) that are quantifiable in monetary terms, including
reasonable out-of-pocket expenses and reasonable fees and expenses of
attorneys, accountants, consultants and expert witnesses (excluding costs
and expenses of in-house experts and other personnel) incurred in the
investigation or defense of claims asserted against an Indemnified Party
(as defined in Section 7.3).
7.3 Indemnification Procedures. In the case of any claim asserted against a
party entitled to indemnification under this Agreement (the "Indemnified
Party"), notice shall be given by the Indemnified Party to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity under
this Article VII may be sought, and the Indemnified Party shall permit the
Indemnifying Party (at the expense of the Indemnifying Party) to assume the
defense of any claim or any litigation resulting therefrom, provided that (i)
the counsel for the Indemnifying Party who shall conduct the defense of such
claim or litigation shall be reasonably satisfactory to the Indemnified Party,
(ii) the Indemnified Party may participate in such defense at its expense, and
(iii) the omission by the Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its indemnification obligation under
this Agreement except to the extent that such omission results in a failure of
actual notice to the Indemnifying Party and the Indemnifying Party is materially
damaged as a result of such failure to give notice. Except with the prior
written consent of the Indemnified Party, the Indemnifying Party, in the defense
of any such claim or litigation, shall not consent to the entry of any judgment
or enter into any settlement that provides for injunctive or other nonmonetary
relief affecting the Indemnified Party or that does not include as an
unconditional term thereof the giving by each claimant or plaintiff to the
Indemnified Party of a release from all liability with respect to such claim or
litigation without any payment by the Indemnified Party. If the Indemnified
Party shall in good faith reasonably determine that the conduct of the defense
of any claim subject to indemnification hereunder or any proposed settlement of
any such claim by the Indemnifying Party might reasonably be expected to affect
adversely the Indemnified Party's ability to conduct its business, or that the
Indemnified Party may have available to it one or more defenses or counterclaims
that are inconsistent with one or more of those that may be available to the
Indemnifying Party in
EMPLOYEE LEASING AGREEMENT - Page 8
respect of such claim or any litigation relating thereto, the Indemnified Party
shall have the right at all times to participate in the defense or settlement
relating to any such claim at the sole cost of the Indemnifying Party. In the
event that the Indemnifying Party does not accept the defense of any matter as
above provided, the Indemnified Party shall have the full right to defend
against any such claim or demand and shall be entitled to settle or agree to pay
in full such claim or demand at the sole cost of the Indemnifying Party. In any
event, the Indemnifying Party and the Indemnified Party shall cooperate in the
defense of any claim or litigation subject to this Section 7.3 and the records
of each shall be available to the other with respect to such defense.
7.4 Other Remedies. The rights and remedies herein provided are cumulative
and are not exclusive of any rights or remedies an Indemnified Party may
otherwise have at law or in equity.
7.5 Survival. The indemnity and other provisions of this Article VII shall
survive the termination of this Agreement.
7.6 Force Majeure. SWFSC shall not be liable to the Trust Companies for a
failure to comply with the terms hereof where such failure is due to causes
beyond its reasonable control. The suspension of SWFSC's obligation pursuant to
this Section 7.6 shall not relieve SWFSC from performing any other obligations
not affected by such cause, excuse the Trust Companies from performing its
obligations under this Agreement, or extend the term of this Agreement.
ARTICLE VIII
Dispute Resolution
8.1 Arbitration of Disputes. Any dispute, controversy or claim arising out
of or relating to this Agreement, or the Schedules hereto, or the breach,
termination, validity or enforceability hereof shall be finally and exclusively
settled by arbitration in accordance with this Article VIII. The arbitration
shall be conducted in accordance with the commercial rules of the American
Arbitration Association ("AAA") in effect at the time of the arbitration, except
as they may be modified by mutual agreement of the parties. Arbitration under
this Section shall be initiated by a written demand for arbitration specifying
the controversy or claim on which arbitration is sought as well as the relief
requested. Service of the arbitration demand shall be effective if made pursuant
to the notice provisions of Section 10.9 of this Agreement. The board of
arbitrators shall be composed of three arbitrators, each being qualified to make
evaluations of the matters under dispute. Each of the parties to the arbitration
shall appoint one arbitrator and shall notify the other party of such
appointment within 15 days after receipt by the respondent of the written demand
to arbitrate. The two arbitrators so appointed by the parties shall appoint a
third, presiding arbitrator, within 30 days after their appointment. If either
party fails to appoint its arbitrator or the two appointed arbitrators are
unable to appoint a third arbitrator, each within the stated period, an
arbitrator shall be chosen by the AAA in accordance with its rules. The
arbitration shall take place in Dallas, Texas, or such other place as the
parties mutually agree. The arbitration proceedings, all documents and all
testimony, written or oral, produced in connection therewith shall be
confidential. The arbitration award shall be final and
EMPLOYEE LEASING AGREEMENT - Page 9
binding on the parties and may include costs, including attorneys' fees. Any
arbitration award may be enforced in any court having jurisdiction over the
party against which enforcement is sought.
ARTICLE IX
Term and Termination
9.1 Term. This Agreement shall begin on the date hereof and continue
through the close of business on the last day of the 12th calendar month
commencing after the date hereof (the "Term").
9.2 Termination.
(a) This Agreement may be terminated by either party at any time for
material breach of this Agreement by the other party and the failure of the
breaching party to cure such breach within 30 days after receiving written
notice of such breach in accordance with the notice provisions of this
Agreement. The terminating party shall give notice of termination under
this Section 9.2 and shall specify the date as of which the termination
shall be effective.
(b) During the Term, this Agreement may be terminated on 90 days prior
written notice by either party.
(c) Promptly upon termination hereof, SWFSC shall deliver to the Trust
Companies or its designees all books and records, forms, statements, files,
reports and other data and information in the form (including digital
storage) in which they were prepared or collected by SWFSC in connection
with the performance of this Agreement.
(d) Except for Article VI, Article VII and Section 10.3, upon
termination this Agreement shall become void and have no effect and there
shall be no continuing obligation or liability on the party of any party
hereto or its affiliates or Representatives, provided, that termination
shall not relieve any party from liability for any breach hereof.
ARTICLE X
Miscellaneous
10.1 Independent Contractor Status. SWFSC relationship to and with the
Trust Companies under this Agreement is and at all times shall be as an
independent contractor. Nothing contained herein, and no act done under this
Agreement, shall be construed as establishing a partnership, joint venture or
other relationship between the parties.
10.2 Exclusive Agreement. During the term of this Agreement, the Trust
Companies shall not, without the prior written consent of SWFSC, obtain services
similar to those provided by Leased
EMPLOYEE LEASING AGREEMENT - Page 10
Employees from any other person except its own employees. Nothing herein shall
prevent SWFSC from leasing its employees or providing any other services to any
other person.
10.3 Confidential Proprietary Information. The parties acknowledge that
during the term of this Agreement, each of the parties and their agents,
employees and representatives may obtain or have access to certain proprietary
information of the other. Each of the parties agrees that such proprietary
information will be maintained on a strictly confidential basis, will be used
solely for the purposes contemplated herein, and will be disclosed only to those
of the parties' respective agents, employees and representatives who require
such information for purposes of their performance hereunder, or as required by
applicable law or regulation.
10.4 NO WARRANTIES. SWFSC MAKES NO REPRESENTATION OR WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED, IN LAW OR IN FACT, WITH RESPECT TO THE ACCURACY,
PERFORMANCE, QUALITY, FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE, OR
MERCHANTABILITY, OR AGAINST INFRINGEMENT, OF THE FACILITIES, EQUIPMENT AND
SUPPLIES FURNISHED TO THE LEASED EMPLOYEES HEREUNDER.
10.5 Further Assurances. Each party hereto shall execute and deliver any
additional instruments, letters and other documents reasonably necessary in
order to effect or carry out the provisions of this Agreement and shall cause to
be done, and to assist and cooperate with the other parties doing, all things
necessary, proper or advisable to accomplish and carry out, in the most
expeditious manner practicable, the intent of the parties as expressed herein.
10.6 Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the provisions of this Agreement shall remain in full force and effect. The
parties shall endeavor in good faith negotiations to replace any invalid,
illegal or unenforceable provision with a valid legal and enforceable provision,
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provision.
10.7 Agreement: No-Third Party Beneficiaries. This Agreement and the other
documents and instruments referred to herein (a) constitute the entire agreement
and understanding and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof,
and (b) except as otherwise expressly specified herein, are not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
10.8 Assignment. This Agreement shall not be assignable or otherwise
transferable by any party hereto without the prior written consent of the other
parties hereto, and any purported assignment or other transfer without such
consent shall be void and unenforceable.
10.9 Notices. Any notice, demand, election, request, consent or other
communication required or permitted to be given hereunder shall be in writing
and shall be effective (a) when
EMPLOYEE LEASING AGREEMENT - Page 11
personally delivered or delivered by telecopy on a business day during normal
business hours (at the place of receipt) at the address or number designated
below, or (b) on the second business day following the date of mailing by
overnight courier, fully prepaid, addressed to such address, whichever shall
first occur. The addresses for such communication shall be:
If to the Trust Companies:
Lone Star Liquidating Trust
000 Xxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
If to SWFSC:
Southwestern Financial Services Corporation
000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Xx.
Telecopy: (000) 000-0000
10.10 Amendments and Waivers. This Agreement may not be amended,
supplemented or discharged, and none of its provisions may be modified, except
expressly by an instrument in writing signed by the party to be charged. Any
term or provision of this Agreement may be waived, but only in writing by the
party which is entitled to the benefit of that provision. No waiver by any party
of any default with respect to any provision, condition or requirement hereof
shall be deemed to be a continuing waiver in the future thereof or a waiver of
any other provision, condition or requirement hereof, nor shall any delay or
omission of any party to exercise any right hereunder in any manner impair the
exercise of any such right accruing to it thereafter.
10.11 Counterpart. This Agreement may be executed in one or more
counterparts, which together shall constitute but one instrument. It shall not
be necessary for each party to sign each counterpart so long as each party has
signed at least one counterpart.
10.12 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Texas without regard to the
provisions thereof pertaining to the principles of conflict of laws.
EMPLOYEE LEASING AGREEMENT - Page 12
IN WITNESS WHEREOF, SWFSC and the Trust Companies have executed this
Agreement as of the date first written above.
LONE STAR LIQUIDATING TRUST FACILITIES MANAGEMENT INSTALLATION,
INC.
By: /s/Xxxxx X. Xxxxx By: /s/Xxxxx X. Xxxxx
----------------- -----------------
Xxxxx X. Xxxxx, Managing Trustee Xxxxx X. Xxxxx,
Co-Chief Executive Officer
SOUTHWESTERN FINANCIAL SERVICES
CORPORATION
By: /s/Xxxxx X. Xxxxxxx, Xx.
------------------------
Xxxxx X. Xxxxxxx, Xx., President
EMPLOYEE LEASING AGREEMENT - Page 13
Schedule 1.1
EXECUTIVE MANAGERS
Xxxxx X. Xxxxxxx, Xx.
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxx
Xxxx X. Xxxx
Xxxxxx X. Xxxxx
X. Xxxxxx Xxxxxx
Schedule 6.1
Employee Leasing Agreement
This Schedule sets forth the methodology for allocating the fees and
expenses incurred for the benefit of the Trust Companies.
I. Direct Expenses
Direct Expenses are all fees and expenses incurred by SWFSC for the
exclusive benefit of the Trust Companies.
The following are examples of Direct Expenses:
o Cost and expenses incurred in connection with auditing the financial
statements for the Trust Companies or, at the request of the Trust
Companies, for ICH and BML.
o Legal fees incurred in connection with the employment of legal
counsel.
o Special tax, accounting or other studies performed by independent
professional or consulting individuals or organizations.
o Taxes, other than FICA and employment taxes paid by SWFSC with respect
to SWFSC's employees and federal, state and local taxes withheld by
SWFSC.
All Direct Expenses that are paid by SWFSC shall be charged one hundred
percent (100%) to the Trust Companies.
II. Indirect Expenses
Indirect Expenses are all fees and expenses of SWFSC incurred on behalf of
the Trust Companies other than Direct Expenses . Indirect Expenses include the
salaries of the Leased Employees providing services to the Trust Companies
required by the Trustee. Leased Employees' salaries shall be charged to the
Trust Companies at the rate of one hundred (100%) of such Leased Employees'
regular monthly salaries multiplied by the percentage of time for pay purposes
such Leased Employees actually worked for the Trust Companies during the month
in question. All other Indirect Expenses incurred by SWFSC on behalf of the
Trust Companies will be charged to the Trust Companies each month at a rate
equal to sixty percent (60%) of the actual amount of salaries charged to the
Trust Companies for the Leased Employees providing services to the Trust
Companies during that calendar month. 
