Exhibit 4.5 Xxxxxxxx Xxxxxx'x consulting agreement
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") dated as of June 18, 2001, is
entered into by and between First United MortgageBanc, Inc. a Florida
corporation and wholly-owned subsidiary of CFI Inc., with a principal address of
000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 ("FUMB"), and New
Directions Consulting Services, Inc., a Virginia corporation with a principal
address of 00000 Xxxxx Xxxxx Xxxx, Xxxxxxxxxxxx Xxxxxxxx 00000 ("NDCS").
RECITALS:
WHEREAS, FUMB is a licensed mortgage banker in thirty four states including the
state of Florida and currently operates a back-office capable of (i) processing
mortgage loan applications and (ii) funding approved mortgages; and
WHEREAS, E-Comax, Inc., a Florida corporation with a principal address of 0000
Xxxxxxxx Xxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (the "Company"),
owns the proprietary OnLoan mortgage software which is designed to allow the end
user to streamline the mortgage application and approval process (the "OnLoan
Software"); and
WHEREAS, the Company and FUMB have entered into an agreement (the "FUMB
Agreement") to establish a test pursuant to which FUMB will utilize the OnLoan
Software to process and fund a limited number of mortgage loans during a period
of not less than 90 days nor more than 180 days; and
WHEREAS, NDCS has experience in the mortgage banking industry and project
management; and
WHEREAS, FUMB desires to retain NDCS and NDCS desires to be retained by FUMB to
perform the Consulting Services (as hereinafter defined), subject to the terms
and conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
in this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Recitals. The above recitals are true and correct and are incorporated into
this Agreement by this reference.
2. Consulting Services. During the term of this Agreement, NDCS agrees to
provide the consulting services set forth on Exhibit A to this Agreement (the
"Consulting Services"). Consultant shall report directly to FUMB's Chief
Executive Officer.
3. FUMB's Obligations. During the term of this Agreement, FUMB agrees to provide
the NDCS with following to assist NDCS in the performance of its duties
hereunder:
(i) Physical location from which to work as well as connectivity to its network.
(ii) A primary point of contact for approvals and decisions with respect to this
project.
(iii) User acceptance Testing (UAT).
(iv) Develop Operational Process Flows.
In addition, FUMB agrees to use its reasonable efforts to provide NDSC with the
staff necessary to implement the purpose of this Agreement.
4. Compensation and Related Matters.
(a) Consulting Fee. During the term of this Agreement, NDCS shall receive a
consulting fee (the "Consulting Fee") equal to $27,500. NDCS shall receive the
Consulting Fee in eleven equal weekly payments commencing on June 29, 2001 and
continuing each seven days thereafter until paid in full.
(b) Business Expenses. FUMB agrees to reimburse NDCS for its reasonable business
expenses incurred in connection with the performance of the Consulting Services
hereunder, which are approved in accordance with FUMB's standard policies.
Reimbursement shall be made upon presentation to FUMB of reasonable
documentation evidencing any such expenditure.
5. Term and Termination.
(a) Term. The term (the "Term") of this Agreement shall commence as of June 18,
2001 and shall terminate August 31, 2001. The parties may renew this Agreement
by executing a written agreement incorporating the terms and conditions of such
renewal.
(b) Termination by the Company. FUMB may immediately terminate this Agreement as
follows:
(i) Death. This Agreement shall terminate upon the death of Xxxxxxxx Xxxxxx and
FUMB shall have no further obligation under this Agreement to make any payments
to, or bestow any benefits on, NDCS from and after the date of Xx. Xxxxxx'x
death, other than payments or benefits accrued and due and payable to NDCS prior
to the date of Xx. Xxxxxx'x death.
(ii) Disability. This Agreement shall terminate if as a result of Xxxxxxxx
Xxxxxx'x incapacity due to accident or illness, Xx. Xxxxxx shall have been
unable to satisfactorily perform the Consulting Services for a period of five
consecutive days, or for an aggregate of five days in any consecutive
fifteen-day period. In the event of a termination due to disability under this
Section, FUMB shall have no further obligation under this Agreement to make any
payments to, or bestow any benefits on, NDCS from and after the date of the
termination, other than payments or benefits accrued and due and payable to it
prior to the date of termination pursuant to this Agreement.
(iii) Cause. FUMB may immediately terminate this Agreement for Cause at any
time. For purposes of this Agreement, FUMB shall have "Cause" to terminate this
Agreement if NDCS or any of its employees, agents or affiliates who are
responsible for providing the Consulting Services hereunder (1) engages in
common law fraud in its or their relations with FUMB or any of its subsidiaries
or affiliates, or with any customer or business contact of FUMB or any of its
subsidiaries or affiliates; (2) refuses or fails (except by reason of incapacity
due to accident or illness) to carry out specific directions of the Chief
Executive Officer which are consistent with the Consulting Services to be
provided under this Agreement; (3) engages in misconduct materially injurious to
FUMB ; (4) breaches a material provision of this Agreement and NDCS fails to
cure such breach within 7 days after NDCS's receipt of written notice from FUMB
of such breach; or (5) is convicted of any crime involving an act of moral
turpitude. In the event of a termination for Cause, FUMB shall have no further
obligation under this Agreement to make any payments to, or bestow any benefits
on, NDCS from and after the date of the termination, other than payments or
benefits accrued and due and payable to it prior to the date of termination.
(c) Termination by NDCS. This Agreement may be terminated by NDCS prior to the
expiration of the term set forth in Section 1 above if FUMB breaches a material
provision of this Agreement and FUMB fails to cure such breach within seven (7)
days after FUMB's receipt of written notice from NDCS of such breach.
(d) Termination by Either Party. Either party may terminate this Agreement by
providing the other party with at least thirty (30) days' prior written notice.
Upon termination of this Agreement for any reason, NDCS will cease to perform
the Services hereunder for FUMB and FUMB will pay to NDCS all sums due to NDCS
for Consulting Services performed prior to such termination (prorated as
appropriate).
6. [Intentionally left blank.]
7. Trade Secrets and Confidential Information.
(a) NDCS acknowledges that FUMB's business depends to a significant degree upon
the possession of information which is not generally known to others, and that
the profitability of FUMB's business requires that this information remain
proprietary to FUMB.
(b) NDCS will not, during or subsequent to the term of this Agreement, use
FUMB's Confidential Information for any purpose whatsoever other than the
performance of the Consulting Services on behalf of FUMB or disclose FUMB's
Confidential Information to any third party, and it is understood that said
Confidential Information shall remain the sole property of FUMB. NDCS further
agrees to take all reasonable precautions to prevent any unauthorized disclosure
of such Confidential Information including, but not limited to, having each
employee of NDCS, if any, with access to any Confidential Information execute a
nondisclosure agreement containing provisions in FUMB's favor substantially
similar to this Section 7 of this Agreement. Without FUMB's prior written
approval, NDCS will not directly or indirectly disclose to anyone the existence
of this Agreement or the fact that NDCS has this arrangement with FUMB. NDCS
agrees that NDCS will not, during the term of this Agreement, improperly use or
disclose any proprietary information or trade secrets of any former or current
employer or other person or entity with which NDCS has an agreement or duty to
keep in confidence information acquired by NDCS in confidence, if any, and that
NDCS will not bring onto the premises of FUMB any unpublished document or
proprietary information belonging to such employer, person, or entity unless
consented to in writing by such employer, person or entity.
(c) Upon termination of this Agreement, NDCS shall promptly return to FUMB all
materials and all copies of materials involving any Confidential Information in
NDCS's possession or control. NDCS agrees to represent to FUMB that it has
complied with the provisions of this Section 7(c) upon termination of this
Agreement.
(d) NDCS agrees to cause each of its employees, agents and affiliates who gain
access to FUMB's Confidential Information as described in this Section 7 to
execute and deliver to FUMB an agreement substantially in the form of this
Section 7. In the event NDCS fails to cause any of his agents or affiliates to
execute an agreement as provided in the immediately preceding sentence and such
person breaches any of the covenants contained in this Section 7, NDCS shall be
liable for any damages incurred by FUMB as a result of such breach.
(e) NDCS recognizes that FUMB has received and in the future will receive from
third parties their Confidential Information subject to a duty on FUMB's part to
maintain the confidentiality of such information and to use it only for certain
limited purposes. NDCS agrees that NDCS owes FUMB and such third parties, during
the term of this Agreement and thereafter, a duty to hold all such Confidential
Information in the strictest confidence and not to disclose it to any person,
firm or corporation or to use it except as necessary in carrying out the
Consulting Services for FUMB consistent with FUMB's agreement with such third
party.
(f) "Confidential Information" means any FUMB proprietary information, technical
data, trade secrets or know-how, including, but not limited to, research,
product plans, products, services, customers, customer lists, markets, software,
developments, inventions, processes, formulas, technology, designs, drawings,
engineering, hardware configuration information, marketing, finances or other
business information disclosed by FUMB either directly or indirectly in writing,
orally or by drawings or inspection of parts or equipment. Confidential
Information does not include information which (i) has become publicly known and
made generally available through no wrongful act of NDCS or (ii) has been
rightfully received by NDCS from a third party who is authorized to make such
disclosure.
8. Mergers and Consolidation; Assignability. If FUMB or any entity resulting
from any merger or consolidation referred to in this Section is merged or
consolidated into or with any other entity or entities, or if substantially all
of the assets of FUMB or any such entity are sold or otherwise transferred to
another entity, the provisions of this Agreement shall be binding upon and shall
inure to the benefit of the continuing entity in or the entity resulting from
such merger or consolidation or the entity to which such assets are sold or
transferred. Except as provided in the immediately preceding sentence, this
Agreement shall not be assignable by NDCS.
9. Representations and Warranties. NDCS hereby represents and warrants that by
entering into this Agreement and performing the services and duties required
hereunder for the Company and FUMB, NDCS is not and will not be interfering
with, violating, or in conflict with any agreement, commitment, promise, duty,
obligation or representation by which NDCS or any of its subsidiaries,
employees, agents or affiliates are bound, including without limitation, (i) any
obligation to maintain confidentiality of any information acquired by NDCS, its
employees, agents, affiliates or subsidiaries prior to or outside of this
Agreement, (ii) any obligation to refrain from competing with any present or
former client or employer of NDCS, its employees, agents, subsidiaries,
affiliates or other third party. NDCS represents and warrants that NDCS will not
use in performing services for FUMB any materials, documents or information of a
present or former employer or other third party that are not generally available
to the public, or that were not learned or received by NDCS on a
non-confidential basis from a party lawfully entitled to possess and disclose
such information, unless written authorization has been obtained from the owner
for such possession and use. NDCS further represents, warrants and covenants
that NDCS has not entered into and will not enter into any oral or written
agreement, which in any way is or will be in conflict with this Agreement.
10. Independent Contractor. Nothing in this Agreement shall in any way be
construed to constitute NDCS as an agent or representative of FUMB, and NDCS
shall perform the Consulting Services hereunder as an independent contractor.
NDCS further agrees to indemnify FUMB and hold it harmless to the extent of any
obligation imposed on FUMB (i) to pay withholding taxes or similar items or (ii)
resulting from NDCS being determined not to be an independent contractor.
11. Benefits. NDCS acknowledges and agrees, and it is the intent of the parties
hereto, that NDCS receive no benefits from FUMB, either as an independent
contractor or employee, except as specifically provided herein. If NDCS is
reclassified by a state or federal agency or court as an employee for tax or
other purposes, NDCS will become a non-benefit employee and will receive no
benefits from FUMB, except those mandated by state or federal law, even if by
the terms of the benefit plans or programs of FUMB in effect at the time of such
reclassification NDCS would otherwise be eligible for such benefits.
12. Miscellaneous.
(a) The captions in this Agreement are not part of its provisions, are merely
for reference and have no force or effect. If any caption is inconsistent with
any provision of this Agreement, such provision shall govern.
(b) This Agreement is made in and shall be governed by and construed in
accordance with the laws of the State of Florida, without giving effect to
conflict of law principles. FUMB and NDCS each hereby (i) agrees that any legal
suit, action or proceeding arising out of or relating to this Agreement shall be
instituted exclusively in the Circuit Court in and for Pinellas County, Florida,
or in the United States District Court for the Middle District of Florida; (ii)
waives any objection to the venue of any such suit, action or proceeding and the
right to assert that such forum is not a convenient forum, proceeding; and (iii)
irrevocably consents to the jurisdiction of the Circuit Court of in and for
Pinellas County, Florida, or in the United States District Court for the Middle
District Of Florida and agrees that service of process upon it delivered by a
reputable overnight courier to its address indicated in the initial paragraph of
this Agreement shall be deemed in every respect effective service of process
upon it in any suit, action or proceeding.
(c) To the extent that the terms set forth in this Agreement or any word,
phrase, clause or sentence is found to be illegal or unenforceable for any
reason, such word, phrase, clause or sentence shall be modified or deleted in
such manner so as to afford the parties the fullest protection commensurate with
making this Agreement, as modified, legal and enforceable under applicable laws,
and the balance of this Agreement shall not be affected thereby, the balance
being construed as severable and independent.
(d) All notices given under this Agreement shall be in writing and shall be
delivered by hand or reputable overnight courier and, if intended for FUMB or
NDCS shall be addressed to it or delivered to it at the addresses indicated in
the initial paragraph of this Agreement.
(e) As used in this Agreement where appropriate, the masculine shall include the
feminine; where appropriate, the singular shall include the plural and the
plural shall include the singular.
(f) This Agreement contains all obligations and understandings between the
parties relating to the subject of this Agreement and supersedes all prior
discussions, negotiations and agreements, whether in writing or otherwise, if
any, between them, and none of the parties shall be bound by any conditions,
definitions, understandings, warranties or representations other than as
expressly provided or referred to in this Agreement.
(g) This Agreement may be modified only by a written instrument properly
executed by the parties to this Agreement.
(h) No waiver by any party to this Agreement, whether expressed or implied, of
its rights under any provision of this Agreement shall constitute a waiver of
the party's rights under the provisions at any other time or a waiver of the
party's rights under any other provision of this Agreement.
(i) NDCS and the Company agree that the prevailing party in any action to
enforce any breach of any covenant or term in this Agreement shall be reimbursed
by the other party for all expenses and reasonable attorneys' fees incurred by
that party to enforce this Agreement.
IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement
as of the day and year first above written.
FIRST UNITED MORTGAGEBANC, INC.,
By: /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx Xxxxxxxx
Chief Executive Officer
NEW DIRECTIONS CONSULTING SERVICES, INC.
By: /s/ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx,
Managing Director
Exhibit A
(Consulting Services)
NDCS will provide the Company with one Senior Consultant Xxxxxxxx Xxxxxx, who
will serve as Project Manager, and split on site time as necessary between
FUMB's location in Clearwater, Fla. and the Company's offices in Sunrise Fla.,
and will provide the following services.
-Submit a requirement document to detail all necessary components of the
project.
-Develop and manage a project plan to agreed upon delivery time frames.
-Determine resources required to staff both the pilot and implementation phases.
-Work with combined management teams to identify initial product offering and
create marketing, training, and all delivery processes.
-Consult with IT teams to identify and develop necessary interfaces.
-Define the data elements necessary to project and ensure mapping exists to
facilitate document production.
-Create a testing environment, and work with a combined IT team to develop UAT
(User Acceptance Testing).
-Work with the Company's affiliate, Contact Management Solutions, Inc. ("CMS")
team to develop scripts and training necessary for telemarketing leads.
-Work with FUMB to negotiate commitment requirements and process flows to limit
risk, To include:
1. Rate quote and locking mechanisms
2. Credit reporting
3. Appraisal requests
4. Automated Underwriting
5. Fulfillment Capabilities Title, tax, surveys etc.
-Review all existing agreements to be sure proper licensing of software
components exists and can be utilized in all necessary sites.
--Review MIS capability for reporting and create reports matrix.
--Keep the combined FUMB / Company management teams advised of project progress.
--Development of and monitoring of service agreements.
