EXHIBIT 10.10
[SBICOA LETTERHEAD]
February 7, 2001
Xx. Xxxxxx XX Xxxxx
Xxxxxxxx Xxxxxx Church
0000 X. Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
RE: CONSULTING AGREEMENT BETWEEN SMALL BUSINESS INVESTMENT
CORPORATION OF AMERICA, INC. AND XXXXXXXX XXXXXX CHURCH
Dear Xx. Xxxxx:
This letter sets forth the terms and conditions of a Consulting Agreement
("Agreement") between Xxxxxxxx Xxxxxx Church and Small Business Investment
Corporation of America, Inc. ("Consultant", "we", "our" or "us") concerning
the provision of consulting services by us to Xxxxxxxx Xxxxxx Church.
We understand that Xxxxxxxx Xxxxxx Church desires: (i) to restructure its
current debt obligations ("Debt Restructure"), and establish a closed-end
investment company ("Investment Company") with a Small Business Investment
Company ("SBIC") subsidiary; (ii) the Debt Restructure to provide funds,
estimated to be $5,000,000, to service its current debt obligations and
complete a new church currently under construction by Xxxxxxxx Xxxxxx
Church; and (iii) to use the Investment Company and SBIC to raise capital
to invest and make available to small emerging growth companies identified
by management of the Investment Company (collectively, the "Goals"). We
further understand that the Debt Restructure is the initial priority among
the Goals. We are prepared to assist Xxxxxxxx Xxxxxx Church in attaining
these Goals by providing the services set forth in SECTION II below on the
terms and conditions set forth herein (the "Services")
I. Retention of Consultants.
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Xxxxxxxx Xxxxxx Xxxxxx hereby retains "Consultant" as an independent
contractor for the sole purpose of performing the Services, and
"Consultant" hereby agrees to perform such Services on the terms and
conditions set forth herein.
II. Consultants' Duties.
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We shall provide the following Services pursuant to this Agreement:
X. Xxxxxxxx, contact and work with third parties to assist in the
effort to complete the Debt Restructure;
X. Xxxxxxx a business plan for the Investment Company and the SBIC,
to include proposed management and organizational structure, and financial
projections;
C. Work with officials of the City of Portland, Oregon ("Portland")
and the state of Oregon Economic Development Department (OEDD) to identify
the source from which Portland or Oregon can contribute financially to the
Goals, including but not limited to, the development of a CDBG Section 108
Application;
D. Provide the necessary background information, as needed to the
City of Portland, State of Oregon Economic Development Department (OEDD),
and the Investment Company management.
E. Be available for meetings, conferences, telephone calls and
briefing sessions with interested parties as reasonably requested by
officials of Xxxxxxxx Xxxxxx Church, Portland, Oregon and the Investment
Company management;
F. Identify an underwriter to market and sell both debt and equity
securities to raise capital for the Investment Company, the SBIC and the
individual companies.
G. Identify firms to provide legal and accounting services in
connection with the general affairs of the Investment Company and the SBIC
and in connection with any offering of securities for sale, and to work
closely with these firms to successfully accomplish the goals established
hereunder; and
H. Identify, develop and manage a pool of professionals to provide
management consulting, financial and other technical assistance to
companies identified for such assistance by the Investment Company.
III. Standard of Performance.
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A. Consultants shall at all times act in good faith and in the best
interests of Xxxxxxxx Xxxxxx Church and the Investment Company. Consultant
shall perform all Services in a workmanlike and professional manner.
B. Xxxxxxxx Xxxxxx Church acknowledges and understands that
Consultant is not a registered investment advisor or a registered
broker/dealer, and, accordingly, all actions by Consultant in connection
with this Agreement will be performed consistent with such facts.
IV. Relationship of the Parties.
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Neither Consultant nor Xxxxxxxx Xxxxxx Xxxxxx shall represent directly or
indirectly that Consultant is an agent, employee or legal representative of
Xxxxxxxx Xxxxxx Church. Nothing herein shall be deemed to cause this
Agreement to create an agency, partnership or joint venture between the
parties. Consultant is responsible for all taxes, withholdings and other
statutory or contractual obligations of any sort, including without
limitation, Workers Compensation Insurance. Consultant shall be free at
all times to arrange the time and manner of performance of the Services.
Consultant is not required to maintain any schedule of duties or
assignments. In addition to all other obligations contained herein,
Consultant agrees to proceed with diligence and promptness.
V. Compensation.
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In consideration for the Services provided by Consultant to Xxxxxxxx Xxxxxx
Church under this Agreement, Xxxxxxxx Xxxxxx Church shall pay Consultant a
fixed price of $96,000, which shall be paid as follows:
(i) $22,900 upon completion of the Debt Restructure; and
(ii) $73,100 ratably on a monthly basis over the period beginning on
the first day of the month immediately following the month in which the
payment in Section V. (i) above becomes due and payable and ending on the
last day of the month that is nine (9) months from the date of this
Agreement.
VI. Term.
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This Agreement shall have a term of one (1) year from the date of execution
hereof, and thereafter may be extended by written agreement of the parties
from month to month or as otherwise agreed to by the parties.
VII. Warranties; Limitation of Liability.
-----------------------------------
Consultant warrants that the Services will be performed in a professional
and workmanlike manner. Consultant makes no other warranties other than
those expressly set forth herein, and disclaims any implied warranties of
merchantability or fitness for a particular purpose. Consultant is not
liable for any indirect, special, incidental or consequential damages
irrespective of whether Consultant has advance notice of the possibility of
such damages or such damages are reasonably foreseeable. In no event shall
Consultant be liable for damages in excess of the amount paid to Consultant
under this Agreement. The preceding three sentences shall survive
termination of this Agreement.
VIII. Covenant and Condition to Certain Services.
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Xxxxxxxx Xxxxxx Church hereby agrees to cause the Investment Company and
the SBIC, to the extent it may lawfully do so, to become parties to this
Agreement promptly following their respective formations. Xxxxxxxx Xxxxxx
Xxxxxx further agrees that Consultant shall not provide the Services with
respect to the Investment Company and the SBIC until such time as they
become parties to this Agreement.
IX. Other.
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A. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding between the parties, and no other promises or
representations, oral or written, have been made or shall have force or
effect. No change or modification shall be valid unless it is in writing
and signed by the parties hereto.
B. FORCE MAJEURE. Consultant shall not be liable to Xxxxxxxx Xxxxxx
Church for any failure or delay caused by events reasonably beyond
Consultant's control.
C. GOVERNING LAW. This Agreement shall be governed and construed in
all respects in accordance with the laws of the District of Columbia.
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D. SEVERABILITY. If a court of competent jurisdiction declares that
any term or provision of this Agreement is invalid or unenforceable, the
Agreement shall be interpreted as if such invalid or unenforceable
provision is not a part of this Agreement and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the Agreement as a whole.
If the terms and conditions herein set forth are acceptable to you, please
sign and date below and return in triplicate, whereupon this Agreement
shall become binding upon the parties.
Sincerely,
SMALL BUSINESS INVESTMENT CORPORATION OF AMERICA, INC.
By: __________________________
Xxxx X. Xxxxx
Chairman of the Board
Accepted and agreed to
This 7th day of February, 2001
XXXXXXXX XXXXXX CHURCH
By:_________________________
Xx. Xxxxxx XX Xxxxx
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