EXHIBIT 10.33
ACCOMMODATION AGREEMENT
WHEREAS, National Boston Medical, Inc. (Company) has entered into an agreement
(the Merchant Agreement) with Cardservice International (Processor) for
processing its bankcard transactions for the Show titled "The Backstroke
Massager" as of February 15, 1999;
WHEREAS, the Company has entered into a certain Media Funding and Servicing Fee
Agreement (Media Funding Agreement) with Media Funding Corporation (MFC);
WHEREAS, MFC desires assurances from Company that Company will pay the sums due
it pursuant to the Media Funding Agreement and Company desires to provide such
assurances; and
WHEREAS, Processor is willing to provide certain services to Company and MFC;
NOW THEREFORE, on the basis of the above state premises, Company and MFC request
and Company directs and authorized Processor and Processor agrees to do the
following:
1. Statements. MFC shall first, from time to time, present statements to
Processor regarding the amounts payable by Company to MFC pursuant to the Media
Funding Agreement. As soon as practical, but in no event more than five (5)
business days after each such statement.
a. Processor shall first deduct its fees and charges for processing
Company's bankcard transactions from the amounts it owes to Company;
b. From the remaining balance, Processor shall then deduct and pay to MFC
the amounts owing by Company to MFC as indicated on the statements
submitted by MFC; and
c. Finally, the remaining balance shall be paid to Company pursuant to
its Merchant Agreement with Processor.
2. Accuracy of Statements. Processor shall have no responsibility for
determining the accuracy of the amounts shown due by MFC on the statements but
shall perform a purely mechanical act.
3. Dispute Regarding Statement. If any dispute arises between Company and MFC
concerning the accuracy of the statement presented by MFC, and Processor is
advised in writing of the existence of such dispute, Processor shall distribute
the undisputed amount of any statement in accordance with the procedure set
forth in paragraph 1 above. Then, if the parties are still in dispute as to the
remaining funds, Processor shall, after deducting its fees and charges for
processing Company's bankcard transactions to the extent it has not already done
so (as determined exclusively by Processor base don its own record of
transactions), hold any such disputed amount in a segregated, interest bearing
account until it has been informed in writing by Company and MFC or by court
order, judicial decision or an arbitration award, as to who should receive such
disputed funds.
4. MFC's Right to Suspend Funding. During the period of any dispute regarding
any statement, MFC may suspend MFC's funding of media time and such action by
MFC shall not be a breach of the Media Funding Agreement with Company and shall
be in addition to all of MFC's other rights and remedies.
5. Processor's Costs and Fees in Case of Dispute. Any and all of Processor's
costs and reasonable attorneys' fees arising out of a dispute between Company
and MFC, whether or not litigation or arbitration is involved, shall be the
joint and several responsibility of Company and MFC. Processor shall have the
right to deduct such fees and costs from any disputed funds which it may be
holding.
This right may be exercised at its sole discretion.
6. MFC Indemnity. In consideration of this accommodation, MFC releases Processor
and its officers, directors, agents, attorneys, employees and contractors from
any and all liability arising from or connected with this accommodation and
holds Processor harmless therefrom, except for any liability arising out of an
international act or the gross negligence of Processor. Except for the
limitation set forth in the previous sentence, MFC shall indemnify Processor and
its officers, directors, agents, attorneys, employees and contractors from any
and all liability, including attorneys' fees arising from or connected with
Processor's conduct in this matter.
7. Company Indemnity. In consideration for this accommodation, Company releases
Processor and its officers, directors, agents, attorneys, employees and
contractors from any and all liability arising from or connected with this
accommodation and holds Processor harmless therefrom except for any liability
arising out of an intentional act or the gross negligence of Processor. Except
for the limitation set forth in the previous sentence Company shall indemnify
Processor and its officers, directors, agents, attorneys, employees and
contractors from any and all liability, including attorneys' fees arising from
or connected with Processor's conduct in this matter.
8. Reserve Account. Company acknowledges and confirms the security interest and
reserve account rights held by Processor as set forth in the Merchant Agreement.
However, prior to establishing a reserve account, Processor shall reasonably
consult with MFC and Company concerning the terms and conditions pursuant to
which any reserve account shall be established. If Processor, MFC and Company
are unable to agree on the terms and conditions, then MFC and Processor shall
seek agreement between themselves. If agreement is still not achieved, then
Processor may proceed to establish a reserve account in accordance with its
rights as set forth in the Merchant Agreement.
9. Attorneys' Fees. If any litigation or arbitration arises from this Agreement,
the prevailing party shall be entitled to recover the actual attorneys' fees and
costs in addition to such damages or other relief as it may be entitled to.
10. Entire Agreement, Modification. This Agreement contains the full agreement
of the parties. Promises or representations, if any, made prior to the execution
of this Agreement shall have no force or effect unless contained herein. This
Agreement may only be modified in writing, signed by all parties.
11. Governing Law. This Agreement shall be interpreted in accordance with the
laws of the State of California and its courts shall have exclusive jurisdiction
over this matter. The parties agree that the exclusive venue for any action
arising from this Agreement shall be in the County of Los Angeles, State of
California.
12. Availability of Funds. Each party acknowledges that Processor has made no
representations and makes no representations concerning the amount of Company
monies that it will have available for transfer or concerning the length of time
it will take to accomplish the transfers.
13. Authority to Sign. Each of the persons executing this Agreement represents
that it has been duly
authorized to do so by the entity it represents and agrees to hold Processor
harmless form any claim by MFC or by Company or any of their respective
subsidiaries, affiliates, shareholders, partners or creditors concerning
Processor's transfer of funds pursuant to this Agreement.
14. Facsimile Copies. A fully executed facsimile copy of this Agreement shall be
deemed the original and Processor shall be entitled to rely on the authenticity
of the facsimile as though it were the original.
15. Notices. Notices shall be in writing and shall be given by facsimile
transmission with the original mailed, postage prepaid by first class mail.
Notice shall be deemed given upon completion of a successful facsimile
transmission. Notices shall be given as follows:
Media Funding Corporation Cardservice International, Inc.
0000 Xxxxxx Xxxx., 20th Floor 00000 Xxxxxx Xxxxx Xxxx
Xxx Xxxxxxx, XX 00000 Xxxxxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Attn: Xxxxx Xxxxxx Attn: Xxxxxxx Xxxxxx
With a copy to: National Boston Medical, Inc.
Wolf, Xxxxxx & Xxxxxxx, LLP 43 Taunton Green
00000 X. Xxxxxxx Xxxx., 0xx Xxxxx Xxxxxxx, XX 00000
Xxx Xxxxxxx, XX 00000 Facsimile No.: (000) 000-0000
Facsimile No.: (000) 000-0000 Attn: Xxx Xxxxx
Attn: Xxxxxxx Xxxx, Esq.
With a copy to:
Tonkin, Torp, et al.
1600 Pioneer Tower
000 X.X. 0xx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxx Xxxxxxx, Esq.
This Agreement is entered into in Los Angeles, California on the date it has
been executed by all parties.
National Boston Medical, Inc.
By: /s/ Xxxxxx X. Xxxxx Dated: 2/22/99
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Its: ______________________
Media Funding Corporation
By: /s/Xxx Xxxx Dated: 2/22/99
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Its: Vice President
Cardservice International, Inc.
By:_________________________ Dated: ___________________
Its:_________________________
