EXHIBIT 4.4
AGREEMENT
THIS AGREEMENT, (the "Agreement") is made and entered into as of September
13, 2003 by and between Xxxxxx Valley Home Builders & Developers Corp, also
doing business as Xxxxxx Valley Global Partners Company, a New York company
organized under the laws of the State of New York, Service of Process shall be
to all of the following Stone & Stone 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 and
Xxxxx Xxxxx of 00 Xxxxxx Xxxxxx, Xxxxxx Xxx Xxxx 00000 and Xxxxx Xxxx of 0
Xxxxxxxx Xxxx Xxxxxx Xxxxx XX 00000. ("Xxxxxx"), and Consumers Financial Corp.,
a company organized under the laws of the State of Pennsylvania, having
executive offices at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxx 00000 (the
"Company").
WITNESSETH:
WHEREAS, Xxxxxx is engaged in, among other things, the business of
providing advisory services and sources of business development with an
expertise in real estate transactions and has advised Consumers that it, may
have, directly and indirectly, the ability to provide financing to Consumers
and/or its investments;
WHEREAS, Xxxxxx is desirous of securing financing for real estate
investment transactions proposed to been engaged in by Consumers and/or its
affiliates;
WHEREAS, Consumers desires to engage Xxxxxx to provide certain services to
Consumers as set forth herein, and Xxxxxx desires to be so engaged by Consumers;
WHEREAS, each of Consumers and Xxxxxx believe it to be in their respective
best interest to set forth the terms of the mutual understandings and agreements
reached between them with respect to the subject matter hereto, as more
particularly provided below;
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto, in
tending to be legally bound, hereby agrees as follows:
Section 1. Financing. Upon the terms and conditions herein set forth,
Xxxxxx will use its commercially; reasonable efforts to introduce through
Xxxxxx, funding sources comprised of institutions, individual investors, groups
of investors, which Xxxxxx has a relationship and reasonably believes have the
financial capability to provide Consumers with its desired financing to
consummate real estate transactions (the "Financing"). Xxxxxx agrees that during
the term of this Agreement it shall dedicate its commercially reasonable efforts
to provide between $2,000,000 and $4,000,000 per month for the next thirty-six
(36) months. Consumers and/or its affiliates shall use its commercially
reasonable efforts to consummate a maximum of 10 real estate transaction each
12-month period.
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Notwithstanding the services to be provided by Xxxxxx hereunder, Xxxxxx shall
have the right to pursue any corporate goals it desires, including the right to
fund public or private companies, funding the purchase of real estate,
consulting activities for the purchase of real estate and or the acquisition of
real property. Nothing in this agreement shall be construed to prevent Xxxxxx
from providing financing for the acquisition of any real estate deal.
Upon receiving notification ("Notice") and a copy of an executed contract on a
real estate project requested to be funded for Consumers (a "Real Estate Deal"),
Xxxxxx shall within three business day inform Consumers of their decision to
market the Deal to their investors, Within twenty-one (21) days of the Notice,
Xxxxxx shall inform Consumers in writing that it and/or its investors have
firmly committed and ready, willing and able to finance the Real Estate Deal as
set forth in the Notice and within twenty-one (21) business days from the
expiration of the 21-day period commencing on the date of Notice (the "Financing
Date"), Xxxxxx and/or the investors shall deposit the requisite funding as
described below.
All investor funds shall be distributed as follows:
1. 70% of the Financing for the Real Estate Deal shall be placed into an
escrow account (subject to escrow agreement to be mutually agreed) to
purchase the property.
2. If elected by the investor, 30% of the investor funds (which is earmarked
for the purchase of the property) shall be placed into an escrow account
("Shares purchase Escrow"), subject to an escrow agreement to be mutually
agreed which shall be utilized to purchase shares in Consumers. All shares
purchased will remain in an escrow and released upon the completion of
each Real Estate Deal. 10% of the amount of the Share Purchase Escrow
shares will be registered in names of Xxxxxx and 90% of said amount will
be registered in the name of the investors. If the investors do not elect
as described above, then 100% of the Financing for the Real Estate Deal
shall be placed in an escrow account (subject to escrow agreement to be
mutually agreed) in purchase property.
3. The proceeds of all funds that flow to Consumers as a result of share
purchase by the investors shall be placed into an escrow account and shall
be sued of the sole purpose of purchasing the said property. In the event
the purchase of the property is not consummated the funds shall be
returned to the investors within 24 hours and any stock registered to
Xxxxxx and the investors shall be returned to Consumers.
Notwithstanding the services to be provided by Xxxxxx hereunder, nothing
in this Agreement to otherwise shall require Consumers to consummate any Real
Estate Deal. The determination of whether or not to consummate any transaction
shall at all times remain within the discretion of Consumers. Xxxxxx will have a
right not to consummate a transaction if the Real Estate Deal or any details
have changed unless agreed in writing by Xxxxxx and investors.
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In the event funds have been transferred to the joint escrow account of
Consumers & Xxxxxx and Consumers chooses not to consummate a real estate
transaction all Funds shall be released without any deduction within 24 hours.
Section 2. Participation in the Transaction.
(a) Xxxxxx and the Investors shall be entitled to 60% of the equity of the
Real Estate Deal, of which Xxxxxx shall receive a maximum of 10% of said 60%.
Consumers shall receive 40% of the equity of the Real Estate Deal. If Xxxxxx
provides evidence to Consumers that it needs to distribute additional equity of
more than 1% to a co-consultant, or for introduction a consultant for a Real
Estate Deal, Xxxxxx and Consumer each agrees to contribute up to 1% of their
equity thereof.
(b) The Share Purchase Escrow shall be utilized to purchase common stock
of Consumers in four equal branches on a weekly basis commencing on the
Financing Date, with the purchase price per share being the weighted average of
a share for the previous 30-days prior to the purchase date (i.e., the Financing
Date and each date thereafter on a weekly basis) plus a 20% premium. By way of
illustration, if $300,000 is being used to purchase stock, the Financing date is
Friday and the weighted average is $1, then $75,000 of shares shall be purchase
at $1.20 on the Financing Date. On the next consecutive three Friday's, an
additional 75,000 shares shall be purchased at the appropriate previous 30-day
average plus a 20% premium. The purchase of common stock provided in this
Section 2(c) shall hereinafter be referred to as the "Premium Shares".
(c) If the Real Estate Deal is not consummated as a result of actions or
omissions of the other party to the Deal (i.e., the seller of the property),
Consumers shall bear the responsibility of all costs and fees associated with
the proposed transaction. If the Deal does not close because Xxxxxx and/or its
investors do not release the funds that have been placed in escrow, then Xxxxxx
and investors shall be responsible for all costs and fees associated therewith
provided that the Real Estate Deal has not changed or deviated as presented to
Xxxxxx and the investors.
(d) Four each Real Estate Deal which Xxxxxx has financed, Xxxxxx shall be
entitled to an amount of which is equal to ten percent (10%) of the aggregate
consideration received by Consumers and its affiliates from Xxxxxx and its
investors for the Real Estate Deal. Said amount shall be equal to 10% of all
funds transferred by Xxxxxx to escrow accounts of Xxxxxx or its affiliates. Said
amount shall be paid upon the closing of the Deal by Consumers.
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Section 3. Warrant. Consumers shall issue to Xxxxxx and the investors upon
the financing of a Real Estate Deal a warrant (the "Xxxxxx and investors
Warrant") to purchase shares of common stock of Consumers equal to 10% of the
dollar amount of the Share Purchase Escrow 10% to Xxxxxx and 90% to the
investors in the Deal, pro ratably in proportion to the 60-day average of the
shares of common stock prior to the end of the applicable calendar year minus
20%. The Xxxxxx and investors Warrant shall be exercisable for one year after
the date of issuance.
Section 4. Restrictions on Stock Registration Rights. Each person or
entity receiving Premium Shares and Xxxxxx and investor Warrant shall execute a
lock up agreement with Consumers agreeing that for a period of two years after
issuance thereof not to directly or exercise of Xxxxxx and investors Warrants.
Consumers shall commence the process of filing a registration statement
for the sale of said shares with the Securities and Exchange Commission (the
"SEC") within 24 months. In addition, if Consumers files a registration
statement of behalf of any selling security holder at any time after such
18-month period (other than on a registration statement on Form X-0, X-0 or
their then equivalents relating to equity securities to be issued solely in
connection with any registration of any entity or business or equity securities
issuable in connection with stock option or other employee benefit plans).
Consumers shall include the above described shares therein. Furthermore,
Consumers shall use its commercially best efforts to ensure that the shares will
be registered on the two-year anniversary of the date of the lock-up.
In addition to the foregoing, a any time after the lock-up period expires
that the holder thereof desires to transfer or dispose of its shares, it must
first notify Consumers and Consumers shall have a right of first refusal to
purchase the shares from the holder thereof at the current market price.
Consumer agrees to notify Xxxxxx after the filing by Consumers with the
SEC of any notification of sales by management, insiders, affiliates or control
persons of any shares of Consumers (i.e., Forms 4 and Schedule 13D filings).
Section 5. Property Management. A limited liability company (the "LLC")
shall be established for each Real Estate Deal funded by Xxxxxx and investors,
to be comprised of the investors and Consumers. All management decisions of the
LLC regarding the consummation of the Real Estate Deal shall be made jointly by
the Consumer and the investors. Investors and Consumers shall have equal voting
rights to make strategic decisions consisting of re-financing, selling or major
renovation of the property. Consumers agrees that on a monthly basis it will
submit written reports regarding the property to Xxxxxx and Investors. Xxxxxx
and Investors shall also be entitle to review Consumers' books and records
regarding the appropriate Real Estate Deal. Furthermore, Xxxxxx and investors
shall also be entitled to review the Property Management Companies books and
records regarding the appropriate Real Estate Deal. If the
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Investors appoint Xxxxxx in writing as their representative for making the
management decisions and having the voting rights described above Consumers
shall accept said appointment.
Section (a) In accordance with the terms and provisions of the Management
Agreement executed by Spartan Properties, LLC and Consumers, Consumers and the
investors (or Xxxxxx if Xxxxxx has been appointed by the investors) shall have
the right to replace the manager immediately upon the negligent acts or
omissions of the manager. Xxxxxx and Consumer agree to appoint a non-interested
third party as an arbitrator to be appointed no later than 48 hours prior to the
closing of the first Real Estate Deal funded by Xxxxxx. The arbitrator shall
determine whether negligence was committed by the property manager. If an
arbitrator cannot be mutually decided between the parties, the rules of the
American Arbitration Association shall be utilized in appointing said individual
Section 6. Independent Contractor; No Authority to Bind. Xxxxxx is and
shall at all times be an independent contractor with respect to the services
that it is rendering to Consumers pursuant to this Agreement and Xxxxxx shall at
no times be an affiliate, employee, agent, partner or representative of
Consumers and Xxxxxx shall not take any action nor in any way hold itself out as
such. At not time shall Xxxxxx have any authority or power to bind Consumers or
to act on behalf of Consumers any manner, including without limitation, making
any direct or indirect representation or covenant by Consumers to any third
party. Notwithstanding the foregoing, Consumers agrees that Xxxxxx will be
entitled to use the information Consumers prepares and/or sends to Xxxxxx.
Consumers and Xxxxxx shall provide an errors or omissions policy to cover any
negligence by Consumers or Spartan Properties or Xxxxxx, as the case may be.
Said policy shall be issued at tie of first closing and is required to be in
full force and effect as long as any properties financed by Xxxxxx and its
investors are not sold.
Section 7. Representations and Warranties. Consumers hereby represents and
warrants to Xxxxxx, and Xxxxxx hereby represents and warrants to Consumers that:
(i) The executions and deliver by such party, and the performance by it
of its obligation hereunder, have been duly and validly authorized
by all requisite action on its parent. This Agreement, when executed
and delivered, will be a legally valid and binding obligation of
such party, enforceable against it in accordance with its terms.
(ii) The Execution and deliver of this Agreement and the performance of
its obligations hereunder do not, as of the date hereof, (a)
conflict with or violate the provisions of its consistent documents
or (b) require the filing with, or any permit, authorization,
consent or approval of, any governmental entity,
Xxxxxx further represents and warrants: that the services to be rendered
by it hereunder shall under no circumstances include the following, whether
directly or indirectly:
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A. Any activities which could be deemed by the SEC, NASD or any other
regulatory authority (collectively, "Regulatory Agency") to
constitute investment banking or any other activities requiring
Xxxxxx to register as a broker-dealer under the Securities Exchange
Act of 1934, as amended.
B. Any activities which could be deemed by any Regulatory Agency to be
in connection with the offer or sale of securities in a capital
raising transaction.
C. Any activities which promote or maintain a market for Consumers
securities.
Section 8. Confidentially and Non-Circumvent. Within 10 days from the
date hereof, Xxxxxx and Consumers shall enter into a Confidentiality and
Non-Circumvent Agreement with Xxxxxx.
Section 9. Non-Exclusive. Xxxxxx Engagement hereunder by Consumers shall
be non-exclusive and Consumer shall be entitled to retain other persons and
entities to provided services similar to that being provided by Xxxxxx
hereunder. Upon written confirmation by Xxxxxx that it has firmly committed to
fund a Real Estate Deal and the funding has been escrowed within 21 days as
provided in Section 2 above, then Consumers shall not accept funding for such
Deal from any other source (without the written approval of Xxxxxx) and Xxxxxx
and its investors must utilize the funds for said Real Estate Deal unless the
Real Estate Deal has changed or deviated from the Deal initially prescribed to
Xxxxxx.
Section 10. Xxxxxx Indemnification. Xxxxxx shall indemnify and hold
harmless Consumers and its affiliates and their respective successors and
assigns, and shall reimburse such parties for, any loss, liability, claim,
damage, expense (including but not limited to, cost of investigation and defense
and attorneys' fees and expenses) (collectively, "Damages"), arising from or in
connection with (a) any inaccuracy or breach of any of the representations and
warranties of Xxxxxx in this Agreement or in any agreement, certificate or
document delivered by Xxxxxx to Consumers, or any notions, omissions or
statements of fact inconsistent with any material respect any such
representation or warranty, (b) any failure by Xxxxxx to perform or comply with
any agreement, covenant or obligation in this Agreement or in any agreement,
certificate or document delivered in connection therewith, or (c) any
litigation, action, claim proceeding or investigation by any third party
relating to or arising out of the business or operations of Xxxxxx.
Section 11. Consumers Indemnification. Consumers shall indemnify and hold
harmless Xxxxxx and its affiliates and their respective successors and assigns,
and shall reimburse such parties for, any loss, liability, claim, damage,
expense (including, but not limited to, costs of investigation an defense and
attorneys' fees and expenses) (collectively, "Damages"), arising from on in
connection with (a) any inaccuracy or breach of any of the representations and
warranties of Consumers in this Agreement or in any agreement, certificate
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or document delivered by Consumers to Xxxxxx, or any actions, omissions or
statements of fact inconsistent with in any material respect of any such
representation or warranty, (b) any failure by Consumers to perform or comply
with any agreement, covenant or obligation in this Agreement or in any
agreement, certificate or document delivered in connection therewith, or (e) any
litigation, action, claim, proceeding or investigation by any third party
relating to or arising out of the business or operations of Consumers.
Section 12. Governing Law; Consent to Jurisdiction; Fees. This Agreement
shall be governed by, and construed in accordance with, the internal laws of the
State of New York, with reference to the choice of law principles thereof. Each
of the parties hereto irrevocably submits to Binding arbitration in the State of
New York.
Section 13. Termination of Agreement. This Agreement may be terminate at
any time by either Consumers or Xxxxxx upon written notice to the other party
hereto at the address of such party set forth in the first paragraph of this
Agreement. Such termination shall be effective immediately upon the receipt of
such notice to such other party. The termination of this Agreement shall not
relieve either party hereto of any of its obligation which arose prior to such
termination.
Section 14. Assignment; Successors and Assigns; No Third Party Rights.
This Agreement may not be assigned by operations of law or otherwise, and any
attempted assignment shall be null and void. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors, permitted assigns, if any, and legal representative. This Agreement
shall be for the sole benefit of the parties to this Agreement and their
respective successors, permitted assigns, if any and legal representative and is
not intended, nor shall be ?????????, to give any person, other than the parties
hereto and their respective successors, ???????? assigns, if any, and legal
representatives, any legal or equitable right, remedy or claim hereunder, Xxxxxx
reserves the right to share this any fees stock, or profits deriving from this
agreement with co-consultants without the consent of Consumers.
Section 15. Notices. All notices and other communication under this
Agreement shall be in writing and shall be deemed given when (i) delivered by
hand, (ii) Mail, Federal Express or other nationally recognized overnight
delivery service or registered or certified mail, return receipt requested, to
all three addresses set forth on the first page of this Agreement (or to such
other addresses, or facsimile number as a party may specify by notice given in
the other party pursuant to this provision).
Section 16. Counterparts. This Agreement may be executed in one or more
counterparts and by facsimile, each of which shall be deemed an original
agreement, by all of which together shall constitute one and the same
instrument.
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Section 17. Titles and Headings. The heading in this Agreement are for
reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
Section 18. Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the matters covered hereby and
supersedes all previous written, oral or implied understanding between them with
respect to such matters.
Section 19. Amendment and Modification; Waiver. This Agreement may only be
amended or modified in writing signed by the party against whom the enforcement
of such amendment or modification is sought.
Section 20. Further Assurances. From and after the date of this Agreement,
Xxxxxx and the investors shall execute and deliver such instruments, documents
and other writings as may be reasonably necessary or desirable to confirm and
carry out and to effectuate fully the intent and purposes of this Agreement.
Section 21. No Strict Construction. Each of Consumers and Xxxxxx
acknowledge and agree that this Agreement has been prepared jointly by the
parties hereto, and shall not be strictly consigned against either party by
reason of the person drafting any given provision hereof. Xxxxxx further agrees
and acknowledges that it has had this Agreement fully explained to it by counsel
of its own choosing.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
Xxxxxx Valley Home
Builders & Developers Corp.,
also doing business as Xxxxxx
Valley Global Partners Company.
By
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Name: September,
Title: Director
By
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Name: September 14, 2003
Title: Director
By
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Name: September 15, 2003
Title:
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