ADVISORY SERVICES AGREEMENT
Exhibit
10.1
This
ADVISORY SERVICES AGREEMENT (this “Agreement”) is made and entered into
effective September 1, 2005 by and between Fairways Equities, LLC (“Fairways” or
the “Advisor”) a Texas LLC and CRESA Capital Markets Group, LP (the “Company”),
and Ascendant Solutions, Inc. (“Ascendant”), to be effective upon the (the
“Effective Date”) even date herewith.
Recitals
A. |
The
Company desires to avail itself of the experience, sources of information,
advice, assistance, and certain facilities and/or personnel of, or
available to, Fairways.
|
B. |
Fairways
is willing to make available to the Company such experience, sources
of
information, advice, assistance, and certain
facilities.
|
NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the parties hereto agree as follows:
1. |
Advisory
Services.
Upon request of the Company, Fairways hereby agrees to render, through
one
or more of its employees, affiliates, directors or contractors, advisory
services to the Company concerning financial, accounting, corporate
development, marketing, acquisition, strategic planning and general
managerial matters of the Company or its affiliates, as well as investment
banking and similar services contemplated under the Co-marketing
and
Licensing Agreement dated 10/23/2002 between Company and CRESA Partners,
including by the way of example and not in limitation of the generality
of
the foregoing, (a) assistance and advice with respect to planning,
analyzing and forecasting long-term financial outlook and needs,
(b)
assistance and advice with respect to locating, arranging, negotiating,
analyzing, and obtaining debt and equity resources, (c) assistance
and
advice regarding all types of contracts proposed to be entered into,
(e)
assistance and advice with respect to formulating and implementing
sales,
marketing, advertising, and promotional programs, (f) assistance
and
advice with respect to locating, negotiating, analyzing, and closing
capital markets advisory services transactions and (g) the rendering
of
general management consultation and business advice (collectively,
the
“Advisory Services”) and the Company agrees to utilize the Advisory
Services of Fairways on the terms and conditions contained herein.
Fairways shall have the sole discretion and flexibility to choose
which of
its employees will render Advisory Services and when, subject to
any
reasonable request of the Company, such Advisory Services will be
rendered.
|
2. |
Term
of Agreement.
This Agreement shall commence on the Effective Date and shall
automatically terminate upon the parties hereto mutual agreement
in
writing to terminate this
Agreement.
|
Upon
termination of this Agreement, any obligations of the Company or Fairways
hereunder shall cease, except for any obligations of the Company to pay to
Fairways any accrued but unpaid compensation payable under this
Agreement.
3. |
Compensation.
As compensation for all of the Advisory Services of Fairways rendered
hereunder, the Company shall, beginning September 1, 2005, pay to
Fairways
a management fee of 25% of net revenues (defined as gross revenues
less
any revenue sharing fees). This fee shall be paid within 10 days
of
collection of the gross fee by Company. The Company shall review
such fee
annually on or prior to the anniversary of this Agreement for
consideration of reasonable adjustments, which adjustments shall
not be
unreasonably withheld.
|
The
Company shall also pay 40% of net revenues to Fairways as compensation
to
the principals working on the transaction that generated the revenue.
Fairways shall be responsible for allocation of this amount for
individuals.
|
Notwithstanding
the preceding two paragraphs, the Company shall repay all outstanding advances
from affiliates prior to the payment of any management fees or other
compensation fees to Fairways.
-32-
4. |
Obligations
Assumed by Fairways.
In
providing the Advisory Services contemplated herein, Fairways agrees
that
it will assume the obligation of all overhead expenses of the Company
in
exchange for the compensation outlined in #3 above, including but
not
limited to, (a) payroll and related employee benefit costs (b) marketing
(c) travel and entertainment (d) rent and occupancy related costs
(e)
computer costs and (f) other costs necessary to execute the Company’s
business.
|
5. |
Notices.
All notices, requests, demands and other communications hereunder
shall be
in writing and shall be sent by registered or certified mail, postage
prepaid, overnight courier or by facsimile as
follows:
|
a. |
If
to the Company, to:
|
CRESA
Capital Markets Group, LP
00000
Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attn:
Xxxxx Xxxxxxx
Facsimile
Number: 000-000-0000
Telephone
Number: 000-000-0000
b. |
If
to Fairways Equities, LLC, to:
|
Xxx
Xxxxxx
Fairways
Equities LLC
00000
Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Facsimile
Number: 000-000-0000
Telephone
Number: 000-000-0000
c. |
If
to Ascendant:
|
Xxxxx
Xxxx
Ascendant
Solutions, Inc.
00000
Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Facsimile
Number: 000-000-0000
Telephone
Number: 000-000-0000
Any
party
may change its address for receiving notice by written notice given to the
others named above.
6. |
Other
Business Activities.
The Company understands that Fairways will perform for other entities
advisory services similar to the Advisory Services performed hereunder.
Nothing in this Agreement shall restrict or limit the right of Fairways,
the Company, or their respective affiliates or associates to engage
in
whatever activities they choose, provided that such activities are
not
competitive with matters covered by this Agreement, and none of them
shall, as a result of this Agreement, incur any obligation to offer
any
interest in such activities to any party
hereto.
|
7. |
Binding
Effect.
This Agreement shall be binding upon Fairways and the Company and
their
respective successors, assigns, and
representatives.
|
8. |
Assignment.
Neither this Agreement nor the rights and obligations hereunder may
be
assigned by operation of law or otherwise without the express consent
of
the other party (which consent may be granted or withheld in the
sole and
absolute discretion of such other
party).
|
9. |
Governing
Law.
This Agreement will be governed by, and construed in accordance with,
the
laws of the State of Texas applicable to contracts executed in and
to be
performed entirely within that state. Any action or proceeding under
or in
connection with this Agreement shall be brought in any state or federal
court in Dallas County, Texas. The Company hereby irrevocably (i)
submits
to the exclusive jurisdiction of such courts, and (ii) waives any
objection it may now or hereafter have as to the venue of any such
action
or proceeding brought in such court or that such court is an inconvenient
forum.
|
-33-
10. |
Severability.
In any term or other provision of this Agreement is invalid, illegal
or
incapable of being enforced under any law or public policy, all other
terms and provisions of this Agreement will nevertheless remain in
full
force and effect. Upon such determination that any term or other
provision
is invalid, illegal or incapable of being enforced, the parties hereto
will negotiate in good faith to modify this Agreement so as to effect
the
original intent of the parties as closely as possible in an acceptable
manner.
|
11. |
Counterparts.
This Agreement may be executed in a number of identical counterparts,
each
of which, for all purposes, is to be deemed an original, and all
of which
constitute, collectively, one agreement; but in making proof of this
Agreement, it shall not be necessary to produce or account for more
than
one such counterpart.
|
12. |
Amendment.
Neither this Agreement nor the rights and obligations hereunder may
be
assigned by operation of law or otherwise without the express written
consent of the nonassigning party (which consent may be granted or
withheld in the sole and absolute discretion of such
party).
|
13. |
Entire
Agreement.
This Agreement and any other agreements delivered pursuant hereto
or
thereto constitute the entire understanding among the parties hereto
with
respect to the subject matter hereof and supersede all other agreements
and understandings among the parties, both written and
oral.
|
14. |
Headings.
The various titles or the paragraphs, captions, headings, and arrangements
herein are used solely for convenience, shall not be used for interpreting
or construing any word, clause, paragraph, or subparagraph of this
Agreement, and do not in any way affect, limit, amplify, or modify
the
terms hereof.
|
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
Fairways
Equities, LLC
|
||
By:
|
/s/
Xxx Xxxxxx
|
|
Xxx
Xxxxxx
|
||
CRESA
Capital Markets Group, LP
|
||
By:
|
/s/
Xxxxx Xxxxxxx
|
|
Xxxxx
Xxxxxxx
|
||
Ascendant
Solutions, Inc.
|
||
By:
|
/s/
Xxxxx X. Xxxx
|
|
Xxxxx
X. Xxxx
|
-34-