[Letterhead of CCF Capital Group, Inc.]
September 24, 1998
Mr. Xxxx Xxxxxxxx
President and CEO
Paradise Music and Entertainment, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Xxxx:
This Letter of Agreement will confirm the understanding between Paradise Music
and Entertainment, Inc. and its other subsidiaries ("Client") and CCF Capital
Group, Inc. ("CCFC") or its assignee pursuant to which CCFC is hereby retained
as financial advisor, on the terms and conditions set forth herein, for the
purposes of: 1) providing financial advice and strategic planning with respect
to the operations of the Client; 2) assisting in identifying a potential partner
for merger or acquisition and the negotiation and structure of said merger or
acquisition; 3) assisting in a best effort to raise equity capital or debt or
credit facilities of up to $3,000,000 for the Client.
1. RETENTION/TERM:
Client hereby retains CCFC as its non-exclusive financial advisor in connection
with the Project for a period of 36 months from the date hereof, renewable
thereafter with the consent of both parties (the "Term"). The Term may be
cancelled by either party after the ninth month anniversary of the date hereof;
provided, however, that the cancelling party provides written notice of such
cancellation at least 90-days prior to the effective date of such termination.
2. OFFERING MATERIAL:
To the extent required and as requested by CCFC, Client will furnish CCFC with
sufficient information in order to prepare an appropriate offering memorandum
with respect to Client's business and/or future project offerings, and/or
financing as may be undertaken by Client pursuant to this engagement from time
to time (collectively, "Offering Materials"). Client represents that all
Offering Materials will not contain any untrue or misleading
1
statements of material fact or omit to state any material fact reasonably
required to be stated therein, Client further agrees to advise CCFC immediately
upon the occurrence of any event or other change which results in the Offering
Materials containing any untrue or misleading statement of a material fact or
emitting to state any material fact required to be stated therein.
3. CCFC'S UNDERTAKINGS:
CCFC will undertake to:
(i) To assist Client in the preparation of the Offering Materials, the
contents of which are the responsibility of the Client;
(ii) To advise the Client on costs, rates and amount at which the Client's
business/assets will be marketed;
(iii) To promote the Client and the Client's business, as applicable, to
potential investors;
(iv) To make representatives of CCFC available to meet with potential investors
and the Client as may be reasonably required.
(v) To assist in the preparation of Reg. D with S-3 filing up to 20% of
outstanding shares issued with terms to be agreed by both parties.
4. INITIAL RETAINER
Client agrees to pay CCFC an initial retainer of $75,000.00 payable as follows:
(a) $18,750 shall be due and payable on the Closing Date as such term is
defined in that certain letter agreement dated as of even date hereof
between the Client and Pines International Resorts, Inc. (the "Pines
Agreement");
(b) $18,750 shall be due and payable on the date that the remainder of monies
due to the Client under the Pine Agreement is funded; and
(c) $18,750 shall be due and payable on the 45th date following the payment
referred to in (b) above and $18,750 shall be due and payable on the 9Oth
day following the payment referred to in (b) above. In addition to the
fees described above, CCFC shall be entitled to a monthly retainer equal
to $6,500 per month beginning with the first calendar month following the
Closing Date, and 100,000 shares of the Client's Common Stock which shares
are to be issued on (and included for registration with) the date that the
Client files its S-3 registration statement in fulfillment of its
obligation under the Pines Agreement.
Financing Fees:
2
Client agrees to retain CCFC as its non-exclusive financial advisor in
connection with any Project financing to be undertaken by Client during the Term
subject to the successful completion of the Project, and pay CCFC success fees
at the completion of such financing based on the gross proceeds of such
financing from investors directly introduced by CCFC, as follows:
(i) 1.5% on senior debt;
(ii) 4% on a subordinated debt and preferred stock
(iii) On closing of a Common Stock offering (other than the Pines transaction),
CCFC will receive 10% of the common stock issuable to investors in such
transaction with registration rights and a 10% cash fee for all monies
raised.
5. COMPENSATION:
Monthly compensation will begin 30 days following the closing of any transaction
listed above shall be $6,500.00. All pre-approved out of pocket expenses to be
reimbursed by Client within (14) fourteen days of submitted invoice.
6. CONFIDENTIALITY:
CCFC agrees to keep any non-public information about the Client confidential so
long as it remains non-public, unless disclosure is required by law by any
governmental or regulatory agency or body and CCFC will not make any use
thereof, except in connection with the services thereunder for the Client. Any
advice rendered to Client by CCFC pursuant to this letter may not be disclosed
publicly in any manner without CCFCs written consent and will be treated by
Client as confidential.
7. INDEMNIFICATION:
Client agrees to indemnify and hold CCFC and its affiliates, control persons,
officers, employees and agents (each an "Indemnified Person") harmless from and
against all losses, claims, damages, liabilities, costs or expenses, joint or
several, resulting from any threatened or pending investigation, action,
proceeding or dispute (collectively, "Claims"), resulting from CCFC's entering
into or performing services under this Agreement or arising out of any matter
referred to in this Agreement. This indemnity shall also include CCFC's and/or
any such other Indemnified Person's reasonable attorneys' and accountants' fees
and out-of-pocket expenses incurred, provided, however, that the indemnity in
this paragraph shall not apply where a court of competent jurisdiction has made
a final determination that CCFC acted in a grossly negligent manner or engaged
in willful
3
misconduct in the performance of its services hereunder which gave rise to loss,
claim, damage, liability, cost or expense sought to be recovered thereunder.
CCFC agrees to indemnify and hold Client, and its affiliates, control persons,
officers, employees and agents harmless from and against all losses, claims
damages, liabilities, cost and expenses, joint and several resulting from
threatened or pending investigation action proceeding or dispute arising from
CCFC's gross negligence or willful misconduct. The provisions of this section
shall Survive the termination and expiration of this Agreement.
8. RIGHT OF FIRST REFUSAL
CCFC will have the right of first refusal for providing investment banking
services on any and all future endeavors in which the Client may be involved,
which right may be exercised by CCFC in writing directed to the Client not more
than 30 days after receiving any third-party financing proposal presented to
CCFC in writing by the Client provided, however, that the terms on which CCFC
agrees to provide such financing is at least as favorable on the terms of the
third-party financing.
9. NOTICES
Notice given such pursuant to any of the provisions of this Agreement shall be
in writing and shall be mailed or delivered to Client: at 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Mr. Xxxx Xxxxxxxx, and to CCF Capital
Group, Inc. at 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000 Attention: Mr.
Xxxxx Xxxxx, Executive Vice President.
10. NON-CIRCUMVENTION
Client agrees not to circumvent CCFC in its fund raising/acquisition/merger
efforts on behalf of Client, and furthermore agrees not to negotiate with any
other source (s) regarding the fund raising effort without notice to CCFC.
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 shall constitute one and
the same instrument.
12. THIRD PARTY BENEFICIARIES
4
This Agreement has been and is made solely for the benefit of Client and the
respective entities thereof (as the case may be), CCFC and assignees thereof and
the indemnified Persons and their respective successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement.
13. CONSTRUCTION
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York.
14. HEADINGS
The section headings in this Agreement have been inserted as a matter of
convenience and are not a part of this Agreement.
Please sign at closing and return two copies of this letter together with a
check for $6,500.00 payable to CCF Capital Group, Inc. to indicate your
acceptance of the terms set forth herein, whereupon this letter and your
acceptance shall constitute a binding agreement between Client and CCFC. The
additional copy is for your records.
Sincerely,
/s/ Xxxxx Xxxxx
-----------------------
CCF Capital Group, Inc.
Xxxxx Xxxxx
Executive Vice resident
Agreed & Accepted this day of September, 1998
The undersigned represents that he has the authority to execute this agreement
on behalf of the Company.
/s/ Xxxx Xxxxxxxx
-----------------------
Paradise Music and Entertainment, Inc.
Xxxx Xxxxxxxx
President and CEO
5
