ACCOUNTING SERVICES AGREEMENT
This
Accounting Services Agreement (the “Agreement”)
is made and entered into as of this ____ day of April, 2009, by and between
Strategix Solutions, LLC, a Nevada limited liability company (“Strategix”),
having its primary place of business at 0000 X. Xxxxxxx Xxx., Xxx Xxxxx, Xxxxxx
00000 and Vestin Fund III, LLC., a Nevada limited liability company (“Vestin”),
having its primary place of business at 0000 X. Xxxxxxx Xxxx., Xxx Xxxxx, Xxxxxx
00000.
RECITALS
A. Vestin is
a company primarily engaged in the business of making loans secured by
commercial real estate.
B. Strategix
is a company that specializes in the provision of accounting services and is an
affiliate of LL Bradford & Company, a certified public accounting firm
located in Las Vegas, Nevada.
C. Vestin
desires to retain Strategix to provide substantially all of its accounting needs
including but not limited to the preparation of monthly internal financial
reports as well as quarterly and annual financial statements, preparation of all
quarterly and annual reports to be filed with the SEC as well as filings
required on Forms 8-K and such other filings as may be required in compliance
with applicable laws, co-ordination with Vestin’s independent public
accountants with respect to the annual audit and all other services generally
provide by a chief financial officer and controller (the “Accounting
Services”).
D. Strategix
desires to render to Vestin the Accounting Services on the terms and conditions
set forth herein.
Now, Therefore, in consideration of the
mutual covenants, promises, representations and warranties set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, intending to be legally bound hereby,
agree that the above recitals are incorporated herein and further agree as
follows.
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1.
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Responsibilities Of
Strategix
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Strategix
shall provide to Vestin all Accounting Services necessary to operate
Vestin’s business and to comply with Vestin’s operating agreement, the laws,
rules and regulations of the SEC including Sarbanes Oxley and all other laws,
rules and regulations which Vestin is subject to.
In
addition, Strategix shall provide the services of one person who
shall be designated as and shall function as Vestin’s chief financial officer
(the “CFO”).
The initial CFO shall be Xxxxx Xxxxxxx. Vestin shall have the right,
at any time, with or without cause, to terminate the services of Xx. Xxxxxxx as
CFO and to require Strategix to designate another individual to act as CFO,
provided that such person has been approved by Vestin’s
manager. . The CFO shall report to Vestin’s manager and
shall be subject to the supervision of Vestin’s manager. The CFO
shall be required to comply with all policies and procedures adopted by
Vestin.
All
Accounting Services shall be provided by certified public accountants and other
professionals acting under the supervision of certified public
accountants.
2. Responsibilities of
Vestin. Vestin shall be responsible for providing to Strategix all
information reasonably requested by Stategix to perform the Accounting Services
required by this Agreement. Vestin shall at all times while
this Agreement is in effect maintain Director’s and Officer’s Liability
insurance.
3. Representations, Warranties
and Covenants of the Parties. Each party represents, warrants and
covenants that as of the date of this Agreement it:
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a.
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Is
not bound by any agreement or arrangement that would preclude it from
entering into this Agreement.
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b.
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Has
the requisite power and authority to enter into and perform this Agreement
and the execution, delivery, and performance of this Agreement has been
duly authorized by all necessary
action.
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c.
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Will
comply with all obligations under this Agreement and will take all action
necessary to assure that its representations, warranties, and/or covenants
in this Agreement are true and correct at all times. Each party will
promptly notify the other in the event of any breach of such
representations, warranties, and/or
covenants.
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4. Confidential Information and
Trade Secrets.
a. Strategix
recognizes that due to the nature of this Agreement, Strategix will have access
to information of a proprietary nature owned by Vestin which may include, but is
not limited to (1) computer programs (whether or not completed or in use); (2)
operating manuals or similar materials which constitute the policies and
procedures Vestin; (3) methods of doing business developed for the operation of
Vestin, (4) client lists, contracts, agreements, (5) accounting and financial
information and (6) lending practices and borrower lists. Strategix acknowledges
and agrees that Vestin has a proprietary interest in all such information and
that all such information constitutes confidential and proprietary information,
and is the trade secret property of Vestin. Strategix hereby waives any and all
right, title and interest in and to such trade secrets and confidential
information and agrees to return all copies of such trade secrets and
confidential information related thereto to Vestin upon the termination of
Agreement.
b. Strategix
further acknowledges and agrees that Vestin is entitled to prevent its
competitors and other third parties from obtaining and utilizing its trade
secrets and confidential information. Therefore, Strategix agrees during the
term of this Agreement, or any time after the expiration or sooner termination
of this Agreement, to hold Vestin's trade secrets and confidential information
in strictest confidence and not to disclose them or allow them to be disclosed,
directly or indirectly, to any person or entity other than those persons or
entities who are employed by or affiliated with Strategix, without the prior
written consent of Vestin. Strategix agrees to require each independent
contractor and employee of Strategix, and any such person or entities to whom
such information is disclosed for the purpose of performance of Strategix’s
obligations under this Agreement, to execute a “Confidentiality Agreement'
regarding such information.
c. Strategix
shall incorporate the foregoing confidentiality provisions in its employment
agreements with its employees.
d. Strategix
acknowledges and agrees that a breach of this Paragraph 4 will result in
irreparable harm to Vestin which cannot be reasonably or adequately compensated
in damages, and therefore Vestin shall be entitled to injunctive and/or
equitable relief to prevent a breach and to secure enforcement thereof, in
addition to any other relief or award to which Vestin may be
entitled.
5. Compensation to Strategix
for Performance of its Obligations. As compensation during the Term, and
any extension thereof, Vestin shall pay to Strategix or its designee the sum of
Six Thousand One Hundred Fifty Dollars ($6,150.00) per month, payable in advance
on or before the fifth day of each month. The compensation set forth in this
Section 5 shall include compensation for all Accounting Services provided to
Vestin by Strategix other than additional, agreed upon procedure work which
shall be billed at the then current rates as charged by LL Bradford &
Company.
6. Term and
Termination.
a. Unless
sooner terminated in accordance with the provisions of this Agreement, this
Agreement shall remain in effect for one (1) year after the Effective Date (the
“Initial
Term”), and shall be automatically renewed for successive one (1) year
periods (“Renewal
Term(s)”).
b. This
Agreement may be terminated by any of following
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(1)
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In
the event of a material breach of this Agreement by either party,
including the institution of any bankruptcy, insolvency or receivership
proceedings by or against either party, the other party shall have the
right to cancel this Agreement by service of written notice upon the
defaulting party (the “'Default
Notice”). In the event such breach is not cured within ten (10)
days after service of the Default Notice, this Agreement shall
automatically terminate at the election of the nondefaulting party upon
the giving of a written notice of termination to the breaching party
unless prior to that time the breaching party gives timely notice to the
other party of its efforts to cure, advises that such cure will take
longer than ten (10) days, and continues to undertakes appropriate steps
to effect such cure and pursues such action to
conclusion.
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(2)
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Notwithstanding
anything contained to the contrary in this Agreement, Vestin may terminate
this Agreement for any reason on thirty (30) days written notice to
Strategix and Strategix may terminate this Agreement for any reason on
ninety (90) days written notice to Vestin. The ninety (90) day notice is
necessary to allow Vestin the time necessary to replace the Accounting
Services being performed pursuant to this
Agreement.
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. .
c. Upon
termination of this Agreement for any reason, Strategix shall co-operate with
Vestin, its independent public accountants and any persons or companies engaged
by Vestin to perform accounting and financial reporting services, in order to
ensure a smooth transition of the accounting and financial reporting
functions. In this regard, Strategiz shall make available to its
successors all work papers and similar documents prepared in the course of
performing services under this Agreement.
d. Termination
of this Agreement shall not release or discharge either party from any
obligation, debt or liability which shall have previously accrued and remain to
be performed upon the date of termination.
7. Indemnification. Each
party shall indemnify, hold harmless, and defend the other party from any and
all liability, loss, claims, lawsuits, damages, injury, costs or expenses
arising out of, incident to, or related in any way to the performance or
nonperformance of its obligations under this Agreement by such indemnifying
party, its employees, contractors, subcontractors and agents, including (without
limitation) attorneys' fees; provided, however, neither party shall be liable to
the other party hereunder for any claim covered by insurance, except to the
extent the liability of such party exceeds the amount of such insurance
coverage. Strategix shall at all times during the Term of this
Agreement maintain professional liability insurance in an amount customary for
similar type entities located in Xxxxx County, Nevada.
8. Excuse of
Performance. Notwithstanding any other provisions contained herein,
Strategix shall not be liable to Vestin, and shall not be deemed to be in
default hereunder, for the failure to perform or provide any of the supplies,
services, personnel, or other obligation to be performed or provided by
Strategix pursuant to this Agreement if such failure is a result of a labor
dispute, act of God, or any other event which is beyond the reasonable control
of Strategix.
9. Governing Law. This
Agreement shall be governed by and construed under the laws of the State of
Nevada.
10. Remedies; Waiver. The various
rights and remedies herein provided shall be cumulative and in addition to any
other rights and remedies the parties may be entitled to pursue under the law.
The exercise of one or more of such rights or remedies shall not impair the
rights of either party to exercise any other right or remedy at law or in
equityThe waiver of any covenant, condition or duty hereunder by either party
shall not prevent that party from later insisting upon full performance of the
same.
11. Amendment. No
amendment to the terms of this Agreement shall be binding on either party unless
in writing and executed by the duly authorized representatives of each
party.
12. Entire Agreement.
This Agreement constitutes the entire agreement between the parties in
connection with the subject matter hereof, and supersedes all prior agreements,
whether written or oral, and whether explicit or implicit, which have been
entered into before the execution hereof. Should any litigation or arbitration
arise between the parties, neither party shall (and each party hereby waives the
right to) introduce any parol evidence which would tend to contradict or impeach
any of the express written terms, conditions, and covenants of this
Agreement.
13. Assignment. Neither
this Agreement nor the rights or obligations of Strategix shall be assignable
without the written consent of Vestin, except that Strategix may assign this
Agreement to LL Bradford & Company.
14. Miscellaneous
Provisions
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a.
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The
headings appearing herein are for convenience and reference only and shall
not be deemed to govern, limit, modify or in any manner affect the scope,
meaning or intent of the provision of this
Agreement.
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b.
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Subject
to the provisions contained herein, this Agreement shall be binding upon
and inure to the benefit of the parties hereto and upon their respective
successors and permitted assigns.
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c.
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Any
action or proceeding seeking to enforce any provision of, or based on any
right arising out of, this Agreement may be brought against any of the
parties in the state or federal courts located in Xxxxx County, Nevada,
and each of the parties consents to the jurisdiction of such
courts. This Agreement shall be governed and construed in
accordance with the substantive and procedural laws of the State of
Nevada. In the event it becomes necessary for either party to file a suit
to enforce this Agreement or any provisions contained herein, the
prevailing party shall be entitled to recover, in addition to all other
remedies or damages, reasonable attorneys’ fees and costs of court
incurred in such suit.
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d.
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Neither
the failure nor any delay by any party in exercising any right, power, or
privilege under this Agreement or the documents referred to in this
Agreement will operate as a waiver of any other right, power, or privilege
(whether present or future) and no single or partial exercise of any
right, power, or privilege will preclude any other or future exercise of
any right, power, or privilege. To the maximum extent permitted
by applicable law: (i) no claim or right arising out of
this Agreement nor the documents referred to in this Agreement can be
discharged by one party, in whole or in part, by a waiver or renunciation
of the claim or right unless in a writing signed by the other party;
(ii) no waiver that may be given by a party will be applicable except
in the specific instance for which it is given; and (iii) no notice
to or demand on one party will be deemed to be a waiver of any obligation
of such party or of the right of the party giving such notice or demand to
take further action without notice or demand as provided in this Agreement
or the documents referred to in this
Agreement.
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e.
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This
Agreement supersedes all prior agreements between the parties with respect
to its subject matter and constitutes (along with the documents referred
to in this Agreement) a complete and exclusive statement of the terms of
the agreements between the parties with respect to the subject matter
hereof. This Agreement may not be amended except by a writing
signed by all the parties hereto.
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f.
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If
any provision of this Agreement is held invalid or unenforceable by any
court of competent jurisdiction, the other provisions of this Agreement
shall remain in full force and effect. Any provision of this
Agreement that is held invalid or unenforceable only in part or degree
shall remain in full force and effect to the extent not otherwise held
invalid or unenforceable.
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All
notices, demands and correspondence required or provided for under this
Agreement shall be in writing and delivered in person or mailed by certified
mail postage prepaid, return receipt requested. Notices shall be
addressed to the address set forth in the heading. Any party may
change its address by giving notice in writing to the other and thereafter
notices, demands and other correspondence shall be addressed and transmitted to
the new address. Notices given in the manner described shall be
deemed delivered on the day of personal delivery or the date delivery of mail is
first attempted.
h. The
provisions contained herein shall not be construed in favor of or against any
party because that party or its counsel drafted this Agreement, but shall be
construed as if all parties prepared this Agreement, and any rules of
construction to the contrary are hereby specifically waived. The
terms of this Agreement were negotiated at arm’s length by the parties
hereto.
i. This
Agreement maybe executed in one or more counterparts, each of which will be
deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective
as of the day and year first above written.
VESTIN
VESTIN
FUND III, a Nevada limited liability company
By:_________________________________________
Its:_____________________________________
STRATEGIX
STRATEGIX
SOLUTIONS, LLC, a Nevada limited
liability
company
By:_________________________________________
Its:_____________________________________
