Consulting Agreement
This Consulting Agreement (the Agreement) is entered into effective the
1st day of August, 2008, between United EcoEnergy Corp., a Nevada corporation
(the ?Company) and its administrator, Enterprise Administration, LLC, a Florida
limited liability company (the ?Administrator?), and CF Consulting, LLC., a
Florida limited liability company (the ?Consultant?) for the purpose of
engaging the Consultant to advise and assist the Company and the Administrator
in maintaining the status of the Company as a Business Development Company
(BDC) regulated under the Investment Company Act of 1940 and for other
services.
1. Services. The Consultant shall provide consulting and advisory
services and assistance to the Company as a sub-administrator of the
Administrator, as provided in Paragraph 2 of that certain Administration
Agreement dated June 26, 2008 between the Company and the Administrator (the
Administration Agreement), including assisting with compliance with BDC and
other periodic reporting requirements for the Company, assistance in
structuring portfolio investment acquisitions, and similar services, as well
as assisting in maintaining the corporate and financial books and records of
the Company. In addition to these Services, the Consultant shall designate a
qualified representative to serve as part-time consulting chief compliance
manager and part-time consulting corporate counsel for the Company, and
initially as part-time consulting principal financial officer for the Company
for a period of one year from the date of the execution of this Agreement, at
no additional cost or expense to the Company or the Administrator other than
the Compensation to Consultant set forth in Section 5 hereof. Additionally,
the Company will initially house its corporate headquarters within Consultant?s
office for the Administrator. The Company and the Administrator will pay the
Consultant the sum of $550.00 per month for office rent, telephone, facsimile,
Internet connection, network access, financial accounting systems, and related
information services for the terms of this Agreement.
2. Additional Services. It is understood and agreed that this agreement
and the Services to be provided hereunder are to be provided to the Company
through the Administrator, and that any services, consulting, advice or other
work performed or to be performed for any portfolio company, acquisition target
or other entity by Consultant or any agent or representative of Consultant or
the Administrator at the request of the Company or its affiliates or the
Administrator shall be the subject of a separate consulting agreement with such
portfolio company, acquisition target or other entity.
3. Confidentiality of Services. Introductions to and use of professionals
and other consultants made by the Consultant will be considered exclusive for
purposes of this Agreement. Documents prepared by Consultant in connection
with this Agreement and the services provided shall not be disclosed or given
to third parties, without prior approval from Consultant, except as required
by SEC rules and regulations relating to filing and disclosure or otherwise
required to be disclosed by law or administrative or judicial process.
Notwithstanding the foregoing, any corporate document (minutes, committee
charter, policy statement, etc.) once adopted by the Company shall not be
confidential information and may be disclosed by the Company as it deems
appropriate.
4. Information provided by the Company. In connection with Consultant?s
activities hereunder, the Company or the Administrator will furnish the
Consultant and its counsel upon request with all material and information
regarding the business and financial condition of the Company and its business
plans available to the Company or the Administrator (all such information so
furnished being the ?Information?). The Consultant will perform due diligence
based on the Information; however, the Company and the Administrator
recognizes and confirms that the Consultant: (a) will use and rely primarily on
the Information and on information available from generally recognized public
sources in performing the services contemplated by this Agreement;
(b) does not assume responsibility for the accuracy or completeness of the
Information and such other information as may be obtained as part of the
Consulting Services;
(c) will not make an appraisal or valuation of any securities or assets of the
Company or any portfolio company; and
(d) retains the right to continue to perform due diligence during the course of
the engagement.
The Consultant agrees to keep the Information confidential so long as it is and
remains non-public, unless disclosure is required by law or is requested by any
government or regulatory agency or body, and the Consultant will not make use
thereof, except in connection with services provided hereunder for the
Company or the Administrator.
5. Compensation. As compensation for the Consulting Services rendered
and to be rendered hereunder by the Consultant, the Company and the
Administrator agree to pay to the Consultant the sum of $10,000 per month for
a period of twelve (12) months, commencing August 1, 2008, payable monthly on
or before the 15th day of each month. Any out of pocket expenses incurred by
Consultant for travel, telephone, postage, and other items shall be
reimbursed by the Company or the Administrator, on presentation of an expense
report and receipts for such expenses. The Company and the Administrator
agree that the Compensation to Consultant shall be paid directly by the
Company to the Consultant for the Administrator and thereafter shall be charged
as part of, and offset against, the compensation of the Administrator as set
forth in Paragraph 5 of the Administration Agreement. Compensation for any
period after the initial twelve month term of this Agreement shall be as then
agreed by the parties, but shall not be less than $10,000 per month. It is
understood and agreed that the Services provided under this Agreement are not
the exclusive services of Consultant and that Consultant, through its agents
and employees, may provide similar and other services to other unrelated or
related parties, without regard to the time allocated to the Services and any
services rendered to other parties. It is further understood that the
Compensation provided for herein is separate from and does not include any
Additional Services described in Paragraph 2 of this Agreement.
6. Term and Termination. The initial term of this Agreement shall be thirty-
six (36) months from the date of execution; however, the term shall be extended
automatically at the end of each twelve month period for an additional twelve
month period, unless and until terminated as provided herein. The Consultant
or the Company and the Administrator, with thirty days prior written notice,
without cause, may terminate this engagement at any time after the end of the
first twelve months of the term of this Agreement, (except for Schedules A and
B and Sections 9, 10, and 12 of this Agreement which shall remain in full force
and effect), provided however, that the Compensation provided for herein shall
continue for a full twelve month period notwithstanding any termination, except
Compensation shall cease thirty days after notice: (a) if such termination is
for willful misfeasance, bad faith or gross negligence in the performance of
the Consultant?s duties as set forth herein, or by reason of the reckless
disregard of the Consultant of its duties and obligations under this Agreement
or (b) as a result of the voluntary resignation, or the discharge of the
Consultant for Cause as the principal financial officer or chief compliance
manager of the Company. For purposes of this Agreement, the term Cause shall
mean any of the following acts or events: (i) the gross negligence, gross
dereliction of duty, willful misconduct or repeated material failure of the
principal financial officer or chief compliance manager to render services to
the Company in accordance with the assigned duties after due notice thereof and
opportunity to cure; (ii) the principal financial officer or chief compliance
manager?s conviction of, or plea of nolo contendere, to a felony (other than a
felony involving a traffic violation); or (iii) the principal financial officer
or chief compliance manager?s disloyalty, dishonesty or the commission of an
act of fraud or embezzlement against or involving the Company, or the willful
disregard of the rules or policies of the Company or the Administrator, any of
which results in actual loss, damage or injury to the Company, whether
directly or indirectly. For purposes of this paragraph, no act, or failure to
act, on the principal financial officer or chief compliance manager?s part
shall be considered ?willful? unless such act, or failure to act, is in bad
faith or without reasonable belief that his action or omission was in the best
interests of the Company.
7. Use of Name. The Company and the Administrator agree that any reference
to the Consultant in any release, communication, or material distributed to
prospective investors or lenders is subject to the Consultant?s prior written
approval, which will not be unreasonably withheld. If the Consultant resigns
prior to the dissemination of any such release, communication or material, no
reference shall be made therein to the Consultant.
8. Use of Advice. No advice rendered by the Consultant in connection with
the services performed by the Consultant pursuant to this Agreement will be
quoted by any party hereto, nor will any such advice be referred to in any
report, document, release or other communication, whether written or oral,
prepared, issued or transmitted by such party or any person or corporation
controlling, controlled by or under common control with such party or any
director, officer, employee, agent or representative of any such party, without
the prior written authorization of all parties hereto, except to the extent
required by law or compelled by judicial, administrative or regulatory process
(in which case the appropriate party shall so advise the other in writing prior
to such use and shall consult with the other with respect to the form and
timing of disclosure), provided that the foregoing shall not prohibit
appropriate internal communication or reference with respect to such advice
internally within such parties.
9. Representations and Warranties.
a. The Company and the Administrator represent and warrant to the
Consultant
(i) that this Agreement has been duly authorized, executed and delivered
by the Company and the Administrator, and, assuming the due execution
by the Consultant, constitutes a legal, valid and binding Agreement of
the Company and the Administrator enforceable against the Company
and the Administrator in accordance with its terms. The Company and the
Administrator represent that, to the best of their knowledge, the
Information will not, when delivered to Consultant specifically for inclusion
in regulatory filings, contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein in light of
the circumstances under which they were made not misleading. The Company
and the Administrator agree to advise the Consultant promptly of the occurrence
of any event or any other change prior to any filing known to it which results
in the Information containing any untrue statement of a material fact or
omitting to state any material fact necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading.
(ii) Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Nevada. The Administrator is a company duly formed under the laws of the
State of Florida.
(ii) Authorization. The Company and the Administrator have full power, legal
capacity and authority to enter into this Agreement, and to perform all of
its obligations hereunder. This Agreement has been effectively
authorized by all necessary action, corporate or otherwise, on the part of
the Company and the Administrator, which authorizations remain in full
force and effect, has been duly executed and delivered by the Company
and the Administrator, and no other proceedings on the part of the
Company or the Administrator are required to authorize this Agreement.
This Agreement constitutes the legal, valid and binding obligation of the
Company and the Administrator and is enforceable with respect to the
Company and the Administrator in accordance with its terms, except as
enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, priority or other laws of court decisions relating to or
affecting generally the enforcements of creditors' rights or affecting
generally the availability of equitable remedies. Neither the execution
and delivery of this Agreement, nor the performance by the Company and
the Administrator of the undertakings contemplated hereby, or
compliance with any of the provisions hereof, will violate any judgment,
order, injunction, decree, statute, rule applicable to the Company and the
Administrator or the transactions or services contemplated hereby. No
authorization, consent or approval of any public body of authority or
any third party is necessary for the Company and the Administrator to
perform the undertakings contemplated by this Agreement.
(iii) No Pending Material Litigation or Proceedings. There are no actions,
suits or proceedings pending or, to the best of the Company?s and the
Administrator?s knowledge, threatened against or affecting the Company
and the Administrator at law or in equity or before or by any federal,
state, municipal or other governmental department, commission, court,
board, bureau, agency or instrumentality, domestic or foreign, or
affecting any of the officers or directors or principal stockholders of the
Company and the Administrator in connection with the business,
operations or affairs of the Company and the Administrator, which might
result in any adverse change in the business of the Company, and
the Administrator or which might prevent the Company and the
Administrator from undertaking the obligations contemplated by this
Agreement.
(iv) Compliance with Law and Government Regulations. The Company
and the Administrator are in compliance, and during the term of this
Agreement will be in compliance, with all applicable statutes,
regulations, decrees, orders, restrictions, guidelines and standards,
whether mandatory or voluntary, imposed by the United States of
America, any state, county, municipality or agency of any thereof,
which the Company is subject. Without limiting the generality of the
foregoing, the services contemplated by this Agreement does not and
will not: (a) involve effecting transactions in any security, or
inducing, attempting to induce the purchase or sale of any security
which would require the Consultant or its officers or employees to
register under the Securities Exchange Act of 1934, as amended;
(b) activities which would require the Consultant or its agents to
register under the Investment Advisors Act of 1940, as amended;
or (c) activities which would under state regulation relating to broker-
dealers or investment advisors require registration or licensing, unless
the Company and the Administrator satisfy any such requirements.
b. The Consultant represents and warrants to the Company and the
Administrator that:
(i) Organization. The Consultant is a limited liability company
duly organized, validly existing and in good standing under the laws of
the State of Florida.
(ii) Authorization. The Consultant has full power, legal capacity and
authority to enter into this Agreement, and to perform all of its
obligations hereunder. This Agreement has been effectively
authorized by all necessary action, corporate or otherwise, on the
part of the Consultant, which authorizations remain in full force and
effect, has been duly executed and delivered by the Consultant, and no
other corporate proceedings on the part of the Consultant are required to
authorize this Agreement. This Agreement constitutes the legal, valid
and binding obligation of the Consultant and is enforceable with respect
o the Consultant in accordance with its terms, except as enforcement
hereof may be limited by bankruptcy, insolvency, reorganization, priority
or other laws of court decisions relating to or affecting generally the
enforcements of creditors' rights or affecting generally the availability
of equitable remedies. Neither the execution and delivery of this
Agreement, nor the performance by the Consultant of the services
contemplated hereby, or compliance with any of the provisions hereof,
will violate any judgment, order, injunction, decree, statute, rule
applicable to the Consultant or the transactions or services
contemplated hereby. No authorization, consent or approval of any
public body of authority or any third party is necessary for the
Consultant to perform the services contemplated by this Agreement.
(iii) No Pending Material Litigation or Proceedings. There are no
actions, suits or proceedings pending or, to the best of the Consultants
knowledge, threatened against or affecting the Consultant at law or in
equity or before or by any federal, state, municipal or other
governmental department, commission, court, board, bureau, agency or
instrumentality, domestic or foreign, in connection with the business,
operations or affairs of the Consultant, which might prevent the
Consultant from performing the services contemplated by this Agreement.
(iv) Compliance with Law and Government Regulations. The Consultant is
in compliance, and during the term of this Agreement will be in
compliance, with all applicable statutes, regulations, decrees, orders,
restrictions, guidelines and standards, whether mandatory or voluntary,
imposed by the United States of America, any state, county, municipality
or agency of any thereof, which the Consultant is subject. Without
limiting the generality of the foregoing, the services contemplated by
this Agreement does not and will not: (a) involve effecting transactions
in any security, or inducing, attempting to induce the purchase or sale
of any security which would require the Consultant or its officers or
employees to register under the Securities Exchange Act of 1934, as
amended; (b) activities which would require the Consultant or its agents
to register under the Investment Advisors Act of 1940, as amended; or
(c) activities which would under state regulation relating to broker-
dealers or investment advisors require registration or licensing.
(v) Compliance with Administration Xxxxxxxxx.Xx part of the performance
of its duties hereunder, Consultant shall comply with the provisions of
Paragraphs 2 and 3 of the Administration Agreement, as and to the extent
the duties and actions of the Consultant relate thereto.
9 Indemnity.
a. In partial consideration of the services to be rendered hereunder, the
Company and the Administrator agree to indemnify the Consultant in
accordance with Schedule A attached hereto.
b. In partial consideration of the services to be rendered hereunder, the
Consultant agrees to indemnify the Company and the Administrator in
accordance with Schedule B attached hereto.
11. Conditions of Engagement. It is understood that the execution of this
Agreement shall not be deemed or construed as obligating the Consultant to
place or arrange any financing for the Company. It is further understood and
agreed that Consultant, and any agent or representative of Consultant providing
services under this Agreement, shall be an independent contractor, and shall
not be considered an employee or elected officer of the Company or the
Administrator.
12. Survival of Certain Provisions. The indemnity and contribution
agreement contained in Schedules A and B to this Agreement and the
representations and warranties of the Company and the Administrator, and
Consultant contained in Section 9 of this Agreement shall remain operative and
in full force and effect regardless of: (a) any investigation made by or on
behalf of Consultant, or any person controlling it, (b) completion of any
financing, (c) the resignation of the Consultant or any termination of the
Consultant?s services or (d) any termination of this Agreement, and shall
inure to the benefit of any successors, assigns, heirs and personal
representatives of the Company, the Administrator and the Consultant, and
the indemnified parties .
13. Notices. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and shall be mailed or delivered as follows:
if to the Company, at
United EcoEnergy Corp
000 Xxxxxxx Xxxxxx
Xxxxx, XX 00000
Telephone 000-000-0000
Facsimile 000-000-0000
If to the Administrator:
Enterprise Administration, LLC
0000 Xxxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
if to Consultant, at:
CF Consulting, LLC.
X.X. Xxx 000
Xxxxx, XX 00000
Telephone 000-000-0000
Facsimile 000-000-0000
or at such other address as such person may hereafter give notice to the
others.
13. Counterparts. This Agreement may be executed in two or more
counterparts and the counterparts, when executed, shall constitute a single,
enforceable document. The signature on counterparts may be transmitted by fax,
with documents so transmitted having the same force and effect as the executed
originals.
15. Third Party Beneficiaries. This Agreement has been made and is made
solely for the benefit of the Company, the Consultant and the Administrator
and the other Indemnified Persons referred to in Schedules A and B hereto and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement.
16. Construction. This Agreement incorporates the entire understanding
of the parties and supersedes all previous agreements relating to the subject
matter hereof should they exist, and shall be governed by, and construed in
accordance with, the laws of the State of Florida, without regard to principles
of conflicts of law, and shall be enforced in any applicable court in the
State of Florida, except as otherwise provided in Section 18 below.
17. Headings. The section headings in this Agreement have been
inserted as a matter of convenience of reference and are not part of this
Agreement.
18. Amendment. This Agreement may not be modified or amended
except inwriting duly executed by the parties hereto.
19. Arbitration. The Parties agree that all questions or matters in
dispute with respect to this Agreement shall be submitted to arbitration on
the following terms:
a. It shall be a condition precedent to the right of any party to submit any
matter to arbitration pursuant to the provisions hereof, that any party
intending to refer any matter to arbitration shall have given not less than
five business days? prior written notice of its intention to do so to the other
party together with particulars of the matter in dispute. On the expiration of
such five business days the party who gave such notice may proceed to
refer the dispute to arbitration as provided for below.
b. The party desiring arbitration shall appoint one arbitrator, and shall
notify the other party of such appointment, and the other party shall, within
five business days after receiving such notice, appoint an arbitrator, and the
two arbitrators so named, before proceeding to act, shall within five business
days of the appointment of the last appointed arbitrator, unanimously agree
on the appointment of a third arbitrator, to act with them and be chairman of
the arbitration herein provided for. If the other party shall fail to appoint
an arbitrator within five business days after receiving notice of the
appointment of the first arbitrator, and if the two arbitrators appointed by
the parties shall be unable to agree on the appointment of the chairman, the
chairman shall be appointed in accordance with the rules for commercial
arbitration of the American Arbitration Association. Except as specifically
otherwise provided in this section, the arbitration herein provided for shall
be conducted in accordance with the rules for commercial arbitration of the
American Arbitration Association and shall be conducted in the State of
Florida. The chairman, or in the case where only one arbitrator is appointed,
the single arbitrator, shall fix a time and place for the purpose of hearing
the evidence and representations of the parties, and he shall preside over the
arbitration and determine all questions of procedure not provided for by the
rules for commercial arbitration of the American Arbitration Association. or
this section. After hearing any evidence and representations that the parties
may submit, the single arbitrator, or the arbitrators, as the case may be,
shall make an award and reduce the same to writing, and deliver one copy
thereof to each of the parties.
c. The Parties agree that the award of a majority of the arbitrators,
or in the case of a single arbitrator, of such arbitrator, shall be final and
binding upon each of them, and there shall be no appeal from such award.
d. Any award in the arbitration shall be limited to actual contractual
damages, and there shall be no award of consequential or punitive damages,
attorneys? fees or other expenses. Each party expressly waives and disclaims
the right to a jury trial relating to or arising out of this Agreement
and expressly accepts the arbitration procedure set forth herein as the sole
means of resolving any disputes or disagreements.
20. Legal Services. The Consultant when retained may be recommending
and referring legal counsel to assist with the services to be performed under
this Agreement and the Company and the Administrator understand and agree that
the Consultant and its agents and employees are not performing independent
legal services for the Company and the Administrator.
Executed and delivered by the undersigned, intending to be bound thereby,
as of and effective on the date above.
Consultant:
CF Consulting, LLC
By Date: August 1, 2008
Managing Director
Company:
UNITED ECOENERGY CORP.
By Date: August 1, 2008
Title: _______________________
Administrator:
ENTERPRISE ADMINISTRATION, LLC
By: Tower I Consultants, LLC
Managing Director
By: _________________________ Date: August 1, 2008
Managing Director
