CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is entered into this 3rd
day of July 2003, by and between American Business Financial Services, Inc.,
with offices at The Xxxxxxxxx Building, 000 Xxxx Xxxxxx Xxxx, Xxxxxxxxxxxx, XX
00000 (the "Company") and Xxxxxx Xxxxxxx residing at 0000 Xxxxxxx Xxxx, Xxxxxx,
XX 00000 (the "Consultant").
RECITALS
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WHEREAS, the Consultant voluntarily resigned his position as Chairman
of the Company's Consumer Mortgage Group effective July 2, 2003, and
WHEREAS, the Company desires to engage the Consultant to perform
certain services, and the Consultant desires to be engaged by the Company in
accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants and agreements of the parties herein contained and intending to be
legally bound, the parties hereto agree as follows:
1. Engagement. The Company hereby engages the Consultant and the
Consultant hereby accepts such engagement upon the terms and conditions set
forth in this Agreement. The Consultant agrees to use his best efforts as
required to perform his obligations hereunder.
2. Duties. The Consultant shall perform services as may from time to
time be assigned by Xxxxxxx X. Xxxxxxxx, Xx., Chief Executive Officer of the
Company. The Consultant shall be responsible for, among other obligations,
performing such services in a satisfactory, professional, and timely manner. The
Consultant shall work ten (10) full days each calendar month during the term of
this Agreement. The daily schedule and hours of work shall be mutually agreed to
by the Chief Executive Officer and the Consultant.
3. Term. This Agreement is effective as of the date hereof and the term
expires on September 30, 2003; however, this Agreement may be renewed thereafter
on a month-to-month basis upon the mutual written agreement of both the Company
and the Consultant. In the event this Agreement is so renewed, it may be
subsequently terminated by either party with written notice to the other party
not less than ten (10) calendar days prior to the expiration of any such monthly
renewal period. In addition, the Company may immediately terminate this
Agreement, without prior notice, upon the occurrence of any of the following:
A. The Consultant, directly or indirectly, competes with or performs
services for an individual or entity which competes directly or indirectly with
the Company, or any of its subsidiaries or affiliates, while this Agreement is
in effect, unless such competition is consented to in writing by the Company;
B. The Consultant discloses to any third party all or any portion of
the Company's confidential business information or the Consultant uses such
confidential information for his own benefit or the benefit of any third party;
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C. The Consultant is negligent in his duties or otherwise fails to
satisfactorily and timely perform the projects assigned;
D. The Consultant breaches any provision of this Agreement;
E. The death or disability of the Consultant; or
F. The Consultant publicly or privately disparages or makes negative or
derogatory comments or statements about the Company, its employees, former
employees, services, operations or reputation.
4. Service. During the term of this Agreement, the Consultant shall not
engage in any activity that conflicts or interferes with the performance of his
duties hereunder.
5. Remuneration. During the term of this Agreement, the Company shall
pay the Consultant a daily rate of $1,000 for each full day of service. The
Consultant shall submit an invoice for each calendar month during the term of
this Agreement and the remuneration due the Consultant shall be paid within 20
business days thereafter. The invoice shall detail the projects performed by the
Consultant and the amount of time devoted to such projects.
6. Relationship Between Parties. The Consultant understands that he is
not an employee of the Company and is not entitled to participate in any benefit
plans made available by the Company. The manner, means, details and methods by
which the Consultant performs services under this Agreement shall be in
accordance with his independent judgment. The Consultant understands that he
shall be responsible for the payment of all social security taxes, unemployment
insurance taxes, state income taxes, federal income taxes, and all other local,
county, state, and federal taxes which may become owing as a result of his
performance of services under this Agreement or due to any payments made to the
Consultant arising from such performance, and that no amounts will be withheld
by the Company with respect to any payments made to the Consultant hereunder.
The Consultant agrees to indemnify and hold the Company harmless from any
liability for income taxes or other taxes or charges for which the Consultant
may be liable on account of any payments received for services under this
Agreement. The Consultant may operate under the business form of his choice. The
Consultant may perform services for other entities during the term of this
Agreement provided, and to the extent that, the provision of these services is
not inconsistent with, and does not interfere with, him responsibilities and
obligations herein.
7. Reimbursement of Expenses. During the term of this Agreement, the
Consultant shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by him (in accordance with the policies and procedures
established from time to time by the Company) in performing services hereunder,
provided he properly accounts for such expenses.
8. Nondisclosure. During the term of this Agreement, the Company, its
officers, employees, representatives and/or agents may provide the Consultant
with access to or may confide in him, and the Consultant may render, prepare or
create information, documents, materials, or other proprietary information which
the Company considers confidential business information (hereinafter referred to
as "Confidential Information"). The Consultant shall not, during or at any time
after the term of this Agreement, directly or indirectly, in any manner utilize
or disclose to any person, firm, corporation, Company or other entity, any such
Confidential Information of the Company which is not generally known to the
public, except for such disclosures (i) where required by law or (ii) during the
performance of the Consultant's duties pursuant to this Agreement for such use
or purpose as he shall reasonably determine to be in the best interest of the
Company.
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9. Books and Records. All books, cards, records, accounts, files, notes
memoranda lists, and other papers or the information contained therein or
obtained therefrom, connected with or arising from or created in the activities
and/or affairs of the Company, in the charge or possession of the Consultant,
are the property of the Company and shall be kept on the premises of the Company
wherever reasonably possible. At the termination of this Agreement or upon
request, all said books, cards, records, accounts, files, notes, memoranda,
lists, and other papers and the information contained therein or obtained
therefrom connected with or arising from or created in the activities and/or the
affairs of the Company shall be turned over and delivered to the Company without
hesitancy or delay and also any notes, memoranda, copies, reproductions,
extracts or summations of the aforesaid.
10. Insurance. The Consultant is responsible for obtaining and
maintaining all necessary or appropriate insurance coverage for the benefit of
the Consultant. Further, the Consultant waives any right to recovery from the
Company for any illness or injury that he may sustain while performing services
pursuant to this Agreement.
11. Entire Agreement; Amendments. This Agreement contains the entire
agreement of the parties hereto with respect to the subject matter contained
herein and supersedes any and all agreements and understandings, whether written
or oral among the parties hereto. Any amendment to this Agreement shall be made
in writing and signed by all parties hereto.
12. Indemnification. The Consultant shall indemnify and hold harmless
the Company from any liability, claims, damages or expenses, including
attorneys' fees and costs, incurred by the Company as a result of the acts or
omissions of the Consultant while performing services under this Agreement.
13. Enforceability. If any provision of this Agreement shall be invalid
or unenforceable, in whole or in part, then such provision shall be deemed to be
modified or restricted to the extent and in the manner necessary to render the
same valid and enforceable, or shall be deemed excised from this Agreement, as
the case may require, and this Agreement shall be construed and enforced to the
maximum extent permitted by law as if such provision had been originally
incorporated herein as so modified or restricted or as if such provision had not
been originally incorporated herein, as the case may be.
14. Construction. This Agreement shall be construed and interpreted in
accordance with the laws of the Commonwealth of Pennsylvania. The parties agree
that any disputes under this Agreement will be subject to arbitration in
Philadelphia, Pennsylvania, in accordance with the rules of the American
Arbitration Association then in effect.
15. Assignment. This Agreement and the obligations created hereunder
may not be assigned by Consultant.
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16. Notices. All notices required or permitted to be given hereunder
shall be in writing and shall be deemed to have been given when personally
delivered or delivered by a nationally recognized express delivery service
addressed, if to the Company, at the Company's office, Attention: Chief
Executive Officer, and if to the Consultant, at the address of his personal
residence as maintained by the Company's records. Any party may from time to
time change its address for the purpose of notices to that party by a similar
notice specifying a new address.
17. Waivers. No waiver by either party of any condition or of the
breach by the other of any term or covenant contained in this Agreement shall be
effective unless in writing and signed by the aggrieved party. A waiver by any
party hereto in any one or more instances shall not be deemed a waiver of future
compliance therewith, and such provisions shall remain in full force and effect.
IN WITNESS WHEREOF, this Agreement has been executed by the parties as
of the date first above written.
AMERICAN BUSINESS FINANCIAL SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Chief Executive Officer
CONSULTANT
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
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