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EXHIBIT 10.5
AGREEMENT FOR INDEMNIFICATION
THIS AGREEMENT FOR INDEMNIFICATION ("Agreement") is made and entered into
in duplicate as of the 1st day of July, 1997, by and between Performance Capital
Management, Inc., a California corporation ("Corporation"), and Xxxxxxx X.
Xxxxxxxx, an officer and a director of the Corporation ("Indemnitee").
RECITALS
A. The Corporation and the Indemnitee understand and agree that
interpretations of statutes, regulations, court opinions, and the Corporation's
Articles of Incorporation and Bylaws, are too uncertain to provide the
Corporation's directors and officers with adequate or reliable advance knowledge
or guidance with respect to the legal risks and potential liabilities to which
they may become exposed personally as a result of performing, in good faith,
their duties as officers and directors of and for the Corporation.
B. The Corporation and the Indemnitee are aware of the substantial
increase in the number of litigation matters filed against corporate officers
and directors regarding their activities in such capacities and by reason of
their status as such.
C. The Corporation and the Indemnitee are aware that the cost of defending
those litigation matters, whether or not meritorious, is typically either beyond
the financial resources of the officers and directors of the Corporation or far
exceed the limited benefits of serving as an officer and a director of and for
the Corporation.
D. The Corporation and the Indemnitee are aware that the legal risks and
potential officer and director liabilities, or the very threat thereof, and the
resulting substantial time endured and fees and expenses incurred in defending
against such litigation matters, have no reasonable logical relationship to the
amount of compensation received by the Corporation's officers and directors.
These factors (i) cause a significant deterrent to, and (ii) induce increased
reluctance on the part of, experienced and capable persons to serve as officers
and directors of the Corporation.
E. The Corporation has investigated the availability and deficiency of
liability insurance to provide its officers and directors with adequate
protection against the foregoing legal risks and potential liabilities. The
Corporation has concluded that such insurance does not provide adequate
protection to the Corporation's officers and directors. Therefore, it would be
in the best interests of the Corporation and its shareholders to
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contract with the Corporation's officers and directors, including the
Indemnitee, to indemnify those officers and directors, to the most complete
extent permitted by law, against personal liability for actions taken in the
good faith performance of their duties to the Corporation.
F. The provisions of Section 317 of the Corporations Code ("Code") specify
circumstances regarding the mandatory and permissive indemnification by a
California corporation of the officers and directors (among other persons) of
that corporation, and those provisions (i) require indemnification in certain
circumstances, (ii) permit indemnification in other circumstances, and (iii)
prohibit indemnification in some circumstances.
G. The members of the Board of Directors of the Corporation have
determined, after careful consideration and investigation of the various options
available, that the provisions of this Agreement are reasonable, prudent, and
necessary to promote and ensure the best interests of the Corporation and its
shareholders. The provisions of the Agreement are intended to (i) induce and
encourage significantly experienced and capable persons such as the Indemnitee
to serve as officers and directors of the Corporation; (ii) encourage such
persons to resist what they consider to be unjustifiable litigation matters and
claims made against them regarding the good faith performance of their duties to
the Corporation, secure in the knowledge that certain expenses, costs, and
liabilities incurred by them in their defense of such litigation matters will be
borne and paid by the Corporation and that they will receive the maximum
protection against such risks and liabilities as legally may be made available
to them; and (iii) encourage officers and directors of the Corporation to
exercise their best business judgment regarding matters which will be submitted
to them for consideration, without undue concern for the risk that claims may be
made against them because they are officers and directors of the Corporation.
H. The Corporation desires to cause the Indemnitee to continue to serve as
an officer and director of the Corporation free from concern for unpredictable,
inappropriate, or unreasonable legal risk and personal liabilities by reason of
his acting in good faith in the performance of his duties to the Corporation.
The Indemnitee desires to continue to serve as an officer and director of the
Corporation, provided, and on the express condition, that he is furnished with
the indemnification specified by the provisions of this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS, PREMISES, PROMISES,
COVENANTS, AGREEMENTS, AND UNDERTAKINGS SPECIFIED BY THE PROVISIONS OF THIS
AGREEMENT AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY
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OF WHICH ARE HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE OBLIGATED LEGALLY AND
EQUITABLY, THE PARTIES TO THIS AGREEMENT AGREE WITH EACH OTHER AS FOLLOWS:
1. DEFINITIONS. For the purposes of this Agreement, the following words
and terms shall be defined as follows:
(a) The term "Proceeding" does and shall include any threatened,
pending, or completed action, inquiry, lawsuit, litigation matter,
or proceeding, whether commenced in the name of the Corporation, or
otherwise, and whether civil, criminal, administrative, or
investigative in nature, including, but not limited to, actions,
inquiries, investigations, litigation matters, or proceedings
commenced pursuant to or predicated on the provisions of the
Securities Act of 1933, as amended; the Securities Exchange Act of
1934, as amended; their respective state counterparts; and any rule
or regulation promulgated pursuant thereto, in which the Indemnitee
may be, or may have been involved as, a party, or otherwise (other
than plaintiff against the Corporation), because of (i) the fact
that the Indemnitee is or was an Agent of the Corporation, (ii) any
action taken by the Indemnitee, or (iii) any inaction by the
Indemnitee while he is or was functioning as such an Agent.
(b) The term "Expenses" includes, but is not limited to, expenses of
investigations, judicial or administrative proceedings or appeals,
court costs, attorneys' fees, and disbursements and any expenses of
establishing a right to indemnification pursuant to applicable law
or the provisions of Paragraph 7 of this Agreement. "Expenses" does
not and shall not include the amounts of any judgments, fines, or
penalties assessed against the Indemnitee or amounts paid in
settlement of a proceeding by or on behalf of the Indemnitee.
(c) References to "other enterprise" does and shall include each limited
liability company of and for which the Corporation is the Manager
references to "serving at the request of the Corporation" does and
shall include any service by the Indemnitee as an officer or
director of the Corporation which imposes duties on, or involves
services by the Indemnitee while functioning as such officer or
director with respect to any such limited liability company, its
members, or beneficiaries; and if the Indemnitee acts in good faith
and in a manner he reasonably believes to be in the best interests
of the members and beneficiaries of such limited liability company,
the Indemnitee shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation," as that phrase is
contemplated by the provisions of this Agreement.
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(d) For the purposes of this Agreement, the Indemnitee shall be deemed
to have been acting as an "Agent" if he was functioning in his
capacity as (i) an officer or director of the Corporation, (ii) a
member of a committee of the Board of Directors of the Corporation,
or (iii) a representative or agent of any other enterprise at the
request of the Corporation, whether or not he is functioning in such
capacity at the time any liability or expense is incurred for which
indemnification or reimbursement can be provided pursuant to the
provisions of this Agreement.
(e) The term "Applicable Standard" means that the Indemnitee acted in
good faith and in a manner that the Indemnitee reasonably believed
to be in the best interests of the Corporation; except that in a
criminal proceeding, the Indemnitee must also have had no reasonable
cause to believe that the Indemnitee's conduct was unlawful. The
termination of any Proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or any equivalent
procedure shall not, of itself, create any presumption, or
establish, that the Indemnitee did not satisfy the "Applicable
Standard."
(f) "Independent Legal Counsel" shall include any law firm selected by
the regular counsel for the Corporation from a list of law firms
which satisfy reasonable criteria established by the Board of
Directors of the Corporation; provided, however, such law firm has
not represented the Corporation, the Indemnitee, or any person
controlled by the Indemnitee within the preceding 24 calendar
months.
(g) The term "Estate" shall include the following terms as are
understood in California law:
(1) The duly appointed and qualified executor, executrix,
administrator, administratrix, administrator with the Will
annexed, or administratrix with the Will annexed, of the
estate of a decedent;
(2) The surviving joint tenant of a decedent, when Common Shares
are owned by a decedent and a person who is not active in the
business of the Company as joint tenants;
(3) Any other person who, because of the community property or
other law of any jurisdiction, may acquire without formal
probate proceedings any right, title, or interest in or to the
Common Shares of a decedent by reason of the death of such
decedent; or
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(4) A irrevocable living or grantor's trust for the benefit of a
deceased Shareholder.
2. AGREEMENT TO SERVE. The Indemnitee shall serve or continue to serve as
an officer and director of the Corporation at the will of the members of the
Board of Directors of the Corporation and the Corporation's shareholders, or
pursuant to the provisions of separate contract, as the case may be, for such
time as he is duly elected or appointed, and until such time as he tenders his
resignation in writing or he is removed.
3. INDEMNITY IN THIRD PARTY PROCEEDINGS. The Corporation shall indemnify
the Indemnitee, if the Indemnitee is made a party to or threatened to be made a
party to, or otherwise involved in, any Proceeding (other than a Proceeding
which is an action by or in the right of the Corporation to procure a judgment
in its favor), by reason of the fact that the Indemnitee is or was an Agent of
the Corporation. The indemnification contemplated by the provisions of this
Paragraph 3 shall apply, and be limited, to and against all Expenses, judgments,
fines, penalties, settlements, and other amounts, actually and reasonably
incurred by the Indemnitee in connection with the defense or settlement of any
such Proceeding; provided, however, it is determined pursuant to the provisions
of Paragraph 7 of this Agreement or by the court in which such Proceeding is or
was pending that the Indemnitee satisfied the Applicable Standard.
4. INDEMNITY IN PROCEEDINGS BY OR IN THE NAME OF THE CORPORATION. The
Corporation shall indemnify the Indemnitee, if the Indemnitee is made a party
to, or threatened to be made a party to, or otherwise involved in, any
Proceeding which is an action by or in the right of the Corporation to procure a
judgment in the Corporation's favor because the Indemnitee is or was an Agent of
the Corporation. The indemnification contemplated by the provisions of this
Paragraph 4 shall apply, and be limited, to and against all Expenses actually
and reasonably incurred by the Indemnitee in connection with the defense or
settlement of such Proceeding, but only if:
(a) the Indemnitee satisfies the Applicable Standard (except that the
Indemnitee's belief regarding the best interests the Corporation or
other enterprise need not have been reasonable);
(b) the Indemnitee acted with such care, including reasonable inquiry,
as an ordinarily prudent person in a similar circumstance would use;
and
(c) the Proceeding is not settled or otherwise disposed of without
approval of the Corporation.
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No indemnification shall be made pursuant to the provisions of this
Paragraph 4 for any claim, issue, or matter as to which the Indemnitee shall
have been adjudged to be liable to the Corporation in the performance of the
Indemnitee's duty to the Corporation, unless, and only to the extent that, the
court in which such Proceeding is or was pending shall determine upon
application that, considering all the circumstances of such Proceeding, the
Indemnitee is fairly and reasonably entitled to indemnification for the
Expenses, which such court shall determine.
5. EXPENSES OF SUCCESSFUL INDEMNITEE. Notwithstanding any other provision
of this Agreement, to the extent that the Indemnitee has been successful on the
merits in defense of any Proceeding or in defense of any claim, issue, or matter
in such Proceeding, including the dismissal of such Proceeding or portion
thereof without prejudice, the Indemnitee shall be indemnified by the
Corporation from and against all Expenses actually and reasonably incurred in
connection with such Proceeding.
6. ADVANCES OF EXPENSES. The Expenses incurred by the Indemnitee in any
Proceeding shall be advanced by the Corporation prior to the final disposition
of such Proceeding at the written request of the Indemnitee, but only if the
Indemnitee shall undertake to repay such advances, unless and to the extent that
it is ultimately determined that the Indemnitee is entitled to indemnification.
Any advance required pursuant to the provisions of this Paragraph 6 shall be
deemed to have been approved by the members of the Board of Directors of the
Corporation to the extent the provisions of this Agreement have been approved by
the members of that Board of Directors. In determining whether or not to make an
advance pursuant to the provisions of this Paragraph 6, the ability of the
Indemnitee to repay any such advance shall not be a factor. In a Proceeding
commenced by the Corporation directly, in its own right (as distinguished from a
Proceeding commenced derivatively or by any receiver or trustee), the
Corporation shall have the discretion not to make the advance contemplated by
the provisions of this Paragraph 6, if independent counsel advises in writing
that the Corporation has probable cause to believe, and the Corporation does, in
fact, believe, that the Indemnitee did not act in good faith with regard to the
subject matter of such Proceeding or a material portion of such Proceeding.
7. RIGHT OF THE INDEMNITEE TO INDEMNIFICATION UPON APPLICATION; PROCEDURE
UPON APPLICATION. Any indemnification or advance contemplated by the provisions
of this Agreement shall be made no later than 30 calendar days after receipt by
the Corporation of a written request of the Indemnitee in accordance with the
provisions of Paragraph 11 of this Agreement. In all other situations,
indemnification shall be made by the Corporation only if authorized in the
specific situation, upon a determination that
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indemnification of the Indemnitee is proper according to the circumstances and
the provisions of this Agreement by:
(a) a majority vote of a quorum of the members of the Board of Directors
of the Corporation (or a duly constituted committee of that Board of
Directors), consisting of directors who are not parties to the
Proceeding at issue;
(b) approval of the shareholders of the Corporation (as defined by the
provisions of Section 153 of the Code), and any voting shares of the
Corporation held by the Indemnitee shall not be entitled to vote
regarding such indemnification;
(c) the court in which the Proceeding at issue is or was pending, upon
application made by the Corporation or made by (i) the Indemnitee or
(ii) any person rendering services in connection with the
Indemnitee's defense, whether or not the Corporation opposes such
application; or
(d) to the extent permitted by law and as expressed by independent legal
counsel in a written opinion.
The right to indemnification or advances contemplated by the provisions of
this Agreement shall be enforceable by the Indemnitee in any court of competent
jurisdiction. The burden of proving that such indemnification or advances is not
appropriate shall be on the Corporation. Neither the failure of the Corporation
(including the members of its Board of Directors or independent legal counsel)
to make a determination prior to the commencement of any action to determine
whether such indemnification or advances is appropriate in the particular
circumstances because the Indemnitee has satisfied the Applicable Standard, nor
a determination by the Corporation (including the members of its Board of
Directors or independent legal counsel) that the Indemnitee has not satisfied
such Applicable Standard, shall be a defense to such action or create a
presumption that the Indemnitee has not satisfied the Applicable Standard. The
Indemnitee's Expenses incurred in connection with successfully establishing his
right to such indemnification or advances, in whole or in part, in any
Proceeding shall also be indemnified by the Corporation; provided, however, that
if the Indemnitee is only partially successful, only an equitably allocated
portion of such Expenses shall be indemnified by the Corporation.
If the Indemnitee is entitled to indemnification by the Corporation for
some or a portion of the Expenses, judgments, fines, or penalties actually and
reasonably incurred by the Indemnitee in the investigation, defense, appeal, or
settlement of any Proceeding but not, however, for the total amount of the
Expenses, the Corporation shall nevertheless
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indemnify the Indemnitee for the portion (determined on an equitable basis) of
those Expenses, judgments, fines, or penalties to which the Indemnitee is
entitled.
The Corporation's obligations to advance or indemnify the Indemnitee
pursuant to the provisions of this Agreement shall be deemed satisfied to the
extent of any payments made by an insurer for or on behalf of the Corporation or
the Indemnitee.
8. INDEMNIFICATION PURSUANT TO THIS AGREEMENT IS NOT EXCLUSIVE. The
indemnification contemplated by the provisions of this Agreement shall not be
deemed exclusive of any other rights to which the Indemnitee may be entitled
pursuant to the provisions of the Articles of Incorporation or Bylaws of the
Corporation, or any agreement, vote of shareholders, or disinterested directors,
the General Corporation Law of the State of California, or otherwise, both as to
action in his official capacities as an officer and director of the Corporation
and as to action in any other capacity while serving as an officer or director
of the Corporation. The indemnification contemplated by the provisions of this
Agreement shall continue as to the Indemnitee although he may have ceased to be
a director or officer of the Corporation and shall inure to the benefit of the
heirs and personal representatives of the Indemnitee, including the Estate of
the Indemnitee.
9. LIMITATIONS. The Corporation shall not be obligated pursuant to the
provisions of this Agreement to make any payment in connection with any claim
made against the Indemnitee:
(a) for which payment is made to the Indemnitee pursuant to the
provisions of a valid and collectible insurance policy, except with
respect to any excess beyond the amount of payments pursuant to the
provisions of such policy;
(b) for which the Indemnitee is indemnified by the Corporation otherwise
than pursuant to the provisions of this Agreement;
(c) based upon or attributable to the Indemnitee gaining any personal
profit or advantage to which he was not legally entitled;
(d) for an accounting of profits made from the purchase or sale by the
Indemnitee of securities of the Corporation within the meaning of
Section 16(b) of the Securities Exchange Act of 1934 and amendments
thereto or similar provisions of any state statutory law or common
law;
(e) resulting from or contributed to by the active and deliberate
dishonesty of the Indemnitee; provided, however, the Indemnitee
shall be indemnified by
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the Corporation to the extent otherwise specified by the provisions
of this Agreement as to any claims for which a litigation action may
be commenced against the Indemnitee because of any alleged
dishonesty on his part, unless a judgment or other final
adjudication of such litigation action adverse to the Indemnitee
shall establish that he committed acts of active and deliberate
dishonesty with an actual dishonest purpose and intent, which acts
were material to the litigation action so adjudicated;
(f) for omissions or acts committed in bad faith or which involve
intentional misconduct or a knowing violation of law;
(g) for any omission or act that the Indemnitee believed at the time of
his action to be contrary to, or inconsistent with, the best
interests of both the Corporation and its shareholders, or
(h) for any transaction from which the Indemnitee derived an improper
personal economic benefit in a capacity other than as a shareholder
of the Corporation.
10. SEVERABILITY. In the event any part of this Agreement, for any reason,
is determined to be invalid, such determination shall not affect the validity of
any remaining portion of this Agreement, which remaining portion shall remain in
complete force and effect as if this Agreement had been executed with the
invalid portion of this Agreement eliminated. It is hereby declared the
intention of the parties that the parties would have executed the remaining
portion of this Agreement without including any such part, parts or portion
which, for any reason, hereafter may be determined to be invalid.
11. NOTICES. The Indemnitee shall, as a condition precedent to his right
to be indemnified pursuant to the provisions of this Agreement, provide to the
Corporation notice in writing within 20 calendar days after he becomes aware of
any claim made against him for which he believes, or should reasonably believe,
indemnification will or could be sought pursuant to the provisions of this
Agreement. All notices, requests, demands, and other communications
(collectively, "notices") contemplated or required by the provisions of this
Agreement shall be in writing (including communications by telephone, telex, or
telecommunication facilities providing facsimile transmission) and mailed
(postage prepaid and return receipt requested), telegraphed, telexed,
transmitted or personally served to each party at the address for such party
specified below such party's signature to this Agreement or at such other
address as such party may designate in a written notice to the other party in
compliance with the provisions of this paragraph. All notices shall be effective
when received; provided, however receipt shall be deemed to be effective 2
business days of any properly addressed notice having been deposited
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in the mail, 24 hours from the time electronic transmission was made, or upon
actual receipt of electronic delivery, whichever occurs first.
12. PARTIES IN INTEREST. No provisions of this Agreement is intended to,
nor shall any such provision confer any right or remedies pursuant to or by
reason of the provisions of this Agreement to any persons other than the parties
to this Agreement and their respective successors and assigns, including the
Estate of the Indemnitee, nor is any provision of in this Agreement intended to
relieve or discharge the obligation or liability of any third party to any party
to this Agreement. No provision of this Agreement shall provide any third person
any right of subrogation or action against any party to this Agreement.
13. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and obligate the undersigned parties and their respective successors and
assigns. Whenever, in this Agreement, a reference to any party is made, such
reference shall be deemed to include a reference to the successors and assigns
of such party; provided, however, neither this paragraph nor any other portion
of this Agreement shall be interpreted to constitute a consent to any assignment
or transfer other than pursuant to and in accordance with the other provisions
of this Agreement. Neither party shall assign, transfer or delegate that party's
rights, responsibilities, duties or obligation created by the provisions of this
Agreement to any other person without the prior written consent of the other
party.
14. CAPTIONS AND INTERPRETATION. Captions of the paragraphs of this
Agreement are for convenience and reference only, and the words specified in
those captions shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the terms, conditions and provisions
of this Agreement. The language and all parts to this Agreement, in all cases,
shall be construed in accordance with the fair meaning of that language and
those parts and as if that language and those parts were prepared by both
parties and not strictly for or against any party.
15. NUMBER AND GENDER. Whenever the singular number is used in this
Agreement, and when required by the context, the same shall include the plural,
and vice versa; the masculine gender shall include the feminine and the neuter
genders, and vice versa; and the word "person" shall include corporation, firm,
trust, estate, joint venture, governmental agency, sole proprietorship,
political subdivision, organization, fraternal order, club, league, joint stock
company, society, municipality, association, partnership or other form of
entity.
16. EXECUTION IN COUNTERPARTS. This Agreement shall be prepared in
multiple copies and forwarded to each of the parties for execution. This
Agreement shall become
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effective when counsel for the Corporation receives a copy or copies of this
Agreement executed by the parties in the names as those names appear at the end
of this Agreement. All of the signatures of the parties may be affixed to one
copy or to separate copies of this Agreement and when all such copies are
received, and signed by all the parties, those copies shall constitute one
agreement which is not otherwise separable or divisible. Counsel for the
Corporation shall keep all of such signed copies and shall conform one copy to
show all of those signatures and the dates thereof and shall mail a copy of such
conformed copy to each of the parties within thirty (30) days after the receipt
by such counsel of the last signed copy, and shall cause one such conformed copy
to be filed in the principal office of such counsel.
17. ENTIRE AGREEMENT. This Agreement is the final written expression and
the complete and exclusive statement of all the agreements, conditions,
promises, representations, warranties and covenants between the parties with
respect to the subject matter of this Agreement, and this Agreement supersedes
all prior or contemporaneous agreements, negotiations, representations,
warranties, covenants, understandings and discussions by and between and among
the parties, their respective representatives, and any other person, with
respect to the subject matter specified in this Agreement. This Agreement may be
amended only by an instrument in writing which expressly refers to this
Agreement and specifically states that that instrument is intended to amend this
Agreement and is signed by each of the parties. Nothing specified in any exhibit
attached to this Agreement shall supersede or annul the terms and provisions of
this Agreement, unless the matter specified in such exhibit shall expressly so
provide to the contrary, and in the event of any ambiguity in meaning or
understanding between this Agreement proper and the appended exhibits, the
provisions of this Agreement shall prevail and control. Each of the parties
represents, warrants and covenants that in executing this Agreement that party
has relied solely on the terms, conditions and provisions specified in this
Agreement. Each of the parties additionally represents, warrants and covenants
that in executing and delivering this Agreement such party has placed no
reliance whatsoever on any statement, representation, warranty, covenant or
promise of the other party, or any other person, not specified expressly in this
Agreement, or upon the failure of any party or any other person to make any
statement, representation, warranty, covenant or disclosure of any nature
whatsoever. The parties have included this paragraph to preclude (i) any claim
that any party was in any manner whatsoever induced fraudulently to enter into,
execute and deliver this Agreement, and (ii) the introduction of parol evidence
to vary, interpret, supplement or contradict the terms, conditions and
provisions of this Agreement.
18. GOVERNING LAW. This Agreement shall be deemed to have been entered
into in the County of Orange, State of California, and all questions concerning
the validity, interpretation, or performance of any of the terms, conditions and
provisions of this
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Agreement or of any of the rights or obligations of the parties shall be
governed by, and resolved in accordance with, the laws of the State of
California, without regard to conflicts of law principles. Any and all actions
or proceedings, at law or in equity, to enforce or interpret the provisions of
this Agreement shall be litigated in courts having situs within the County of
Orange, State of California. No claim, demand, action, proceeding, litigation,
hearing, motion or lawsuit resulting from or with respect to this Agreement
shall be commenced or prosecuted in any jurisdiction other than the State of
California, and any judgment, determination, finding or conclusion reached or
rendered in any other jurisdiction shall be null and void. Each party hereby
consents expressly to the jurisdiction of any local, state or federal court
located within the State of California and consents that any service of process
in such action or proceeding may be made by personal service upon such party
wherever such party may be then located, or by certified or registered mail
directed to such party at such party's last known address.
19. GOVERNMENT REGULATIONS. The transactions and relationship contemplated
by the provisions of this Agreement are, and shall remain, subject to any and
all present and future orders, rules and regulations of any duly constituted
authority or agency having jurisdiction of those transactions and that
relationship.
20. FURTHER ASSURANCES. The parties shall from time to time sign and
deliver any further instruments and take any further actions as may be necessary
to effectuate the intent and purposes of this Agreement.
21. ALL CONSENTS IN WRITING. In any instance in which any party shall be
requested to consent to or approve of any matter with respect to which that
party's consent or approval is required by any of the provisions of this
Agreement, such consent or approval shall be furnished in writing.
22. ATTORNEYS' FEES. In the event any party shall institute any action or
proceeding to enforce any provision of this Agreement to seek relief from any
violation of this Agreement, or to otherwise obtain any judgment or order
relating to or resulting from the subject matter of this Agreement, the
prevailing party shall be entitled to receive from the losing party such
prevailing party's actual attorneys' fees and costs incurred to prosecute or
defend such action or proceeding, including, but not limited to, actual
attorneys' fees and costs incurred preparatory to such prosecution and defense.
Moreover, while a court of competent jurisdiction may assist in determining
whether or not the fees actually incurred are reasonable in the circumstances
then existing, that court is not be governed by any judicially or legislatively
established fee schedule, and such fees and costs are to include those as may be
incurred on appeal of any issue and all of which fees and costs shall be
included as part of any judgment, by cost xxxx or otherwise, and where
applicable, any appellate decision rendered in or resulting from such action or
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proceeding. For purposes of this Agreement, in any action or proceeding
instituted by a party, the prevailing party shall be that party in any such
action or proceeding (i) in whose favor a judgment is entered, or (ii) prior to
trial, hearing or judgment any other party shall pay all or any portion of
amounts claimed by the party seeking payment, or such other party shall
eliminate the condition, cease the act, or otherwise cure the act of commission
or omission claimed by the party initiating such action or proceeding.
23. RESERVATION OF RIGHTS. The failure of any party at any time or times
hereafter to require strict performance by any other party of any of the
warranties, representations, covenants, terms, conditions and provisions
specified in this Agreement shall not waive, affect of diminish any right of
such party failing to require strict performance to demand strict compliance and
performance therewith and with respect to any other provisions, warranties,
terms, and conditions specified in this Agreement. Any waiver of any default
shall not waive or affect any other default, whether prior or subsequent
thereto, and whether the same or of a different type. None of the
representations, warranties, covenants, conditions, provisions and terms
specified in this Agreement shall be deemed to have been waived by any act or
knowledge of any party, its agents, trustees, officers, or employees and any
such waiver shall be made only by an instrument in writing, signed by the
waiving party and directed to any non-waiving party specifying such waiver, and
each party reserves such party's rights to insist upon strict compliance
herewith at all times.
24. PURPOSE OF COVENANTS. All covenants made by each party shall be deemed
made for the purpose of inducing the other party to enter into and execute this
Agreement. The representations, warranties, and covenants specified in this
Agreement shall survive any investigation by either party whether before or
after the execution of this Agreement.
25. CONCURRENT REMEDIES. No right or remedy specified in this Agreement
conferred on or reserved to the parties is exclusive of any other right or
remedy specified in this Agreement or by law or equity provided or permitted;
but each such right and remedy shall be cumulative of, and in addition to, every
other right and remedy specified in this Agreement or now or hereafter existing
at law or in equity or by statute or otherwise, and may be enforced concurrently
therewith or from time to time. The termination of this Agreement for any reason
whatsoever shall not prejudice any right or remedy which any party may have,
either at law, in equity, or pursuant to the provisions of this Agreement.
26. FORCE MAJEURE. If any party is rendered unable, completely or
partially, by the occurrence of an event of "force majeure" (hereinafter
defined) to perform such party's obligations created by the provisions of this
Agreement, such party shall give to
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the other party prompt written notice of the event of "force majeure" with
reasonably complete particulars concerning such event; thereupon, the
obligations of the party giving such notice, so far as those obligations are
affected by the event of "force majeure," shall be suspended during, but no
longer than, the continuance of the event of "force majeure." The party affected
by such event of "force majeure" shall use all reasonable diligence to resolve,
eliminate and terminate the event of "force majeure" as quickly as practicable.
The term "force majeure," as contemplated by the provisions of this Paragraph 27
means any act of God, strike, lockout or other industrial disturbance, act of
the public enemy, war blockage, public riot, lightening, fire, storm, flood
explosion, governmental action, earthquake, governmental delay, restraint or
inaction, unavailability or equipment, and any other cause or event, whether of
the kind enumerated specifically herein, or otherwise, which is not within the
control of the party claiming such suspension.
27. CONSENT TO AGREEMENT. By executing this Agreement, each party, for
itself represents such party has read or caused to be read this Agreement in all
particulars, and consents to the rights, conditions, duties and responsibilities
imposed upon such party as specified in this Agreement. Each party represents,
warrants and covenants that such party executes and delivers this Agreement of
its own free will and with no threat, undue influence, menace, coercion or
duress, whether economic or physical. Moreover, each party represents, warrants,
and covenants that such party executes this Agreement acting on such party's own
independent judgment and upon the advice of such party's counsel.
IN WITNESS WHEREOF the parties have executed this Agreement for
Indemnification in duplicate and in multiple counterparts, each of which shall
have the force and effect of an original, on the date specified in the preamble
of this Agreement.
PERFORMANCE CAPITAL
MANAGEMENT, INC.,
a California corporation
By:
-------------------------------- --------------------------------------
Xxxxxxx X. Xxxxxxxx
Its: 0000 Xxxxxxx Xxxxx, Xxxxx 000
-------------------------------- Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile number 714.752.3535
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile number 714.752.3535
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