Consulting Agreement
This Consulting Agreement (the "Agreement") is made and entered into by
and between Funds America Finance Corporation, a publicly held Florida
corporation with no classes of equity securities registered under Section 12(g)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and not
currently trading on the over the counter bulletin board operated by but not a
part of NASDAQ (the "Client"); and, The Yankee Companies, Inc., a Florida
corporation ("Yankees"; the Client and Yankees being hereinafter collectively
referred to as the "Parties" and generically as a "Party").
Preamble :
WHEREAS, the Client is in the process of developing a consumer finance
company specializing in refinancing of mobile homes, with the eventual
goal of developing diversified funding sources, including
collateralized securities comprised of pass through certificates,
portfolio pools and similar instruments generated from its operations,
and in conjunction therewith, the Client has entered into an agreement
with another client of Yankees pursuant to which it hopes to register a
class of its securities under Section 12(g) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"); and
WHEREAS, Yankees has substantial strategic business experience, acumen
and contacts, and the Client desires to avail itself of Yankees'
services in conjunction with development and implementation of
strategic plans designed to accomplish the foregoing by securing
Yankees's assistance to develop and implement its strategic plans,
retain additional management and directors, and develop growth through
acquisition of complementary business operations; and
WHEREAS, Yankees is agreeable to making its services available to the
Client, on the terms and subject to the conditions hereinafter set
forth:
NOW, THEREFORE, in consideration for Yankees's agreement to render the
hereinafter described services as well as of the premises, the sum of
TEN ($10) DOLLARS, and other good and valuable consideration, the
receipt and adequacy of which is hereby acknow ledged, the Parties,
intending to be legally bound, hereby agree as follows:
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Witnesseth:
ARTICLE ONE
OBLIGATIONS OF THE PARTIES
1.1 Description of Services
(A) Yankees's areas of expertise include corporate structure, organization
and reorganization; mergers, acquisitions and divestitures; strategic
corporate development; corporate financial and equity analysis; market
strategy planning and implementation; corporate communication,
financial public relations and stockholder relations consulting;
business plan development and implementation; marketing sales and
analysis; executive and professional recruitment; coordination and
supervision of professional services; development and implementation of
regulatory compliance procedures (the "Services").
(B) During the Initial Term of this Agreement (as hereinafter defined),
Yankees shall provide the Client with the Services, on a reasonable, as
required basis, consistent with Yankees's other business activities.
(C) Because of the Client's current and anticipated status under federal
securities laws, in any circumstances where Yankees is describing the
securities of The Client to a third Party, Yankees shall disclose to
such person the compensation received from the Client to the extent
required under any applicable laws, including, without limitation,
Section 17(b) of the Securities Act of 1933, as amended; however, the
Parties acknowledge they do not contemplate that Yankees shall be
involved in any activities on behalf of the Client requiring such
descriptions or disclosures, or that the Services involve any
activities subject to regulation under federal or state securities
laws other than the prohibitions of the Foreign Corrupt Practices Act,
except for the introduction of the Client and its principals to
licensed broker dealers in securities, securities analysts and
appropriate corporate information and stockholder relations
specialists.
1.2 Fiduciary Obligation to the Client
(A) In rendering its services, Yankees shall not disclose to any third
party any confidential non-public information furnished by the Client
or otherwise obtained by it with respect to the Client.
(B) (1) The Client acknowledges that because of Yankees pre-existing
relationship with Equity Growth Systems, inc., a publicly held
Delaware corporation ("Equity") with which the Client has
recently entered into an agreement (the "Equity Agreement"),
Yankees may face a conflict of interest and that any such
conflict, if not resolved to Equity's satisfaction, may require
Yankees to take actions or assume positions that are not in the
best interest of the Client because Yankees first allegiance in
such case must be to Equity;
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(2) Notwithstanding such potential conflict and after having been
advised of the foregoing, the Client hereby prospectively
waives any claims or causes of action against Yankees as a
result of actions taken in such event, and agrees that Yankees
first loyalty and duty shall be to Equity; and
(3) The Parties hereby agree that in the event that an actual
conflict arises between the Client and Equity, the Client
shall have the unilateral rights to immediately terminate this
Agreement, but that such termination will not affect Yankees
right to compensation from the Client, as hereinafter
provided.
1.3 Limitations on Services
(A) The Parties recognize that certain responsibilities and obligations
are imposed by federal and state securities laws and by the applicable
rules and regulations of stock exchanges, the National Association of
Securities Dealers, Inc. (collectively with its subsidiaries being
hereinafter referred to as the "NASD"), in-house "due diligence" or
"compliance" depart ments of licensed securities firms, etc.;
accordingly, Yankees agrees that it will not release any information
or data about the Client to any selected or limited person(s), entity,
or group if Yankees is aware that such information or data has not
been generally released or promulgated.
(B) Yankees shall restrict or cease, as directed by the Client, all efforts
on behalf of the Client, including all dissemination of information
regarding the Client, immediately upon receipt of instructions (in
writing by fax or letter) to that effect from the Client.
1.4 Yankees' Compensation
(A) Except as described below with reference to certain of the services
described above, which are to be completed within the initial 365 days
of this Agreement:
(1) Yankees will xxxx at its standard hourly rates for all work as
to which a prior written arrangement with different terms has
not been entered into, however, no hourly billable services
will be provided except at The Client's specific request.
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(2) Any documents prepared by Yankees or provided to The Client's
advisors, at The Client's request, on existing forms will be
subject to a $50 per page initial licensing fee augmented by
the time spent in personalizing the subject form.
(B) Notwithstanding the provisions of Section 1.4(a) above, during the
first 180 days of this Agreement (the "Initial Term"), Yankees will
accept and the Client will pay to Yankees:
(1) Options (the "Class A Options") to purchase shares of The
Client's outstanding or reserved common stock (all reserved
common stock being treated as outstanding for purposes of such
calculation), on the following terms (the"Stock Signing
Fee."):
(a) The quantity of the Client common stock subject to the Class
A Options shall be equal to 5% of The Client's outstanding
or reserved common stock, immediately following complete
exercise of all the Class A Options, but shall not be less
than 250,000 shares of the Client's common stock;
(b) The Class A Option term will commence on the 60th day after
execution of this Agreement and will terminate at the close
of business on the 365th business day after the Class A
Options and the shares of common stock into which they can
be exercised are registered for sale to the public under
applicable federal and state securities laws; however,
Yankees shall have the option of exercising the Class A
Options prior to such registration at a 50% discount from
the otherwise applicable exercise price, subject to the
resale restrictions imposed by SEC Rule 144, but subject to
the piggy back and registration provisions, as reflected in
the form of warrant agreement annexed hereto and made a part
hereof as composite exhibit 1.4(B), which form shall
constitute the basis for and terms of the Class A Options,
other than as specifically modified hereby.
(c) The exercise price of the Class A Options will, assuming
they are all exercised, will be $10,000, the price per share
to be based on the number of shares outstanding at the time
of exercise, pro rated in accordance with the following
formula: in the event that an aggregate of 5,000,000 shares
of capital stock are outstanding or reserved for future
issuance under reasonably definable terms (e.g. options,
warrants, pending acquisitions, obligations under employment
agreements, etc.), then the number of shares purchasable
would be 250,000 and the exercise price would be $0.04 per
share, any increase or decrease in the outstanding and
reserved shares resulting in a corresponding adjustment to
the Class A Option exercise quantity and price (e.g., if the
shares outstanding were 10,000,000 rather than 5,000,000,
then the number of shares purchasable would be 500,000 and
the exercise price would be $0.02 per share);
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(d) Yankees shall have the right to cashless exercise of the
options, as reflected in the form of warrant agreement
annexed hereto and made a part hereof as composite exhibit
1.4(B).
(2) If, for any reason (other than a stock split also affecting
Yankees's shares issued as the Stock Signing Fee) The Client's
outstanding securities exceed those contemplated as the basis
for determining the Class A Option exercise prices within 12
months following the end of the exercise term, then additional
shares in an amount to such difference on a pro rated basis
(based on the options exercised) shall be issued to Yankees.
(3) The foregoing compensation is in lieu of document license fees
and of required cash payments for up to an aggregate of 200
hours of Yankees's hourly fees during the initial six month
term of this Agreement (but not those of its associated
entities), and, for tax purposes, shall be valued at an
aggregate of $5,000.
(4) The Client has been informed that a portion of the Stock
Signing Fee may be transferred by Yankees to third party
independent consultants, all of whom will qualify as
accredited investors as that term is defined in Rule 501 of
Regulation D promulgated by the United States Securities and
Exchange Commission (the "Commission"), and who will assist
Yankees in the performance of its duties hereunder.
(5) The Class A Options may be exercised, in whole or in part,
there being no minimum exercise requirements.
(C) In addition to the compensation described above with reference to
services during the Initial Term of this Agreement and whether or not
the following services are rendered during such Initial Term:
(1) In the event that Yankees arranges or provides funding for the
Client on terms more beneficial than those reflected in The
Client's current principal financing agreements, Yankees shall
be entitled, at its election, to either:
(a) A fee equal to 25% of such savings, on a continuing basis;
or
(b) If equity funding is provided though Yankees or any
affiliates thereof, a discount of 10% from the bid price for
the subject equity securities, if they are issuable as free
trading securities, or, a discount of 50% from the bid price
for the subject equity securities, if they are issuable as
restricted securities (as the term restricted is used for
purposes of SEC Rule 144); or
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(c) If funding is provided by any person or group of persons
introduced to the Client by Yankees or persons associated
with Yankees, directly or indirectly, but not is not
provided by Yankees or its principals as described in the
preceding subsection, then Yankees shall be entitled to an
introduction fee equal to 5% of the aggregate proceeds so
obtained; and
(2) In the event that Yankees generates business for the Client,
then, on any sales resulting therefrom, Yankees shall be
entitled to a commission equal to 10% of the gross income
derived by the Client therefrom, on a continuing basis.
(3) In the event that Yankees or any affiliate thereof arranges
for an acquisition by the Client, then Yankees shall be
entitled to compensation equal to 10% of the compensation paid
for such acquisition, in addition to any compensation
negotiated and received from the acquired entity or its
affiliates.
(D) The Client will assure that its legal counsel promptly prepares all
reports which then existing holders of The Client's securities
(including Yankees, its affiliates and successors in interest) are
required to file with the Commission as a result of The Client's
reporting status, including Commission Forms 3, 4 and 5, Schedules
13(d) and Schedules 13(g), and shall submit all such reports to the
subject stockholders for prompt execution and timely filing with the
Commission.
(E) (1) In addition to payment of fees, the Client will be responsible
for payment of all costs and disbursements associated with
Yankees's services either:
(a) Involving less than $50 per item and $200 in the aggregate
during the preceding 30 day period; or
(b) Reflected in an operating budget approved by the Client; or
(c) Approved in writing by the Client; provided, however, that
the refusal by the Client to approve expenditures required
for the proper performance of Yankees's services will excuse
performance of such services.
(2) All of Yankees's statements will be paid within 10 days after
receipt.
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(3) In the event additional time for payment is required, Yankees
will have the option of selling the account receivable and the
Client agrees to pay interest thereon at the monthly rate of
1%.
(4) In the event collection activities are required, the Client
agrees to pay all of Yankees's out of pocket costs associated
therewith.
(5) There will be no change or waiver of the provisions contained
herein, unless such charge is in writing and signed by the
Client and Yankees.
1.5 The Client's Commitments
(A). (1) All work requiring legal review will be submitted for approval
by the Client to the Client's legal counsel prior to its use.
(2) Final drafts of any matters prepared for use by Yankees in
conjunction with the provision of the Services will be
reviewed by the Client and, if legally required, by The
Client's legal counsel, to assure that:
(a) All required information has been provided;
(b) All materials are presented accurately; and,
(c) That no materials required to render information
provided "not misleading" are omitted.
(2) Only after such review and approval by the Client and, if
required, The Client's legal counsel, will any documents be
filed with regulatory agencies or provided to Yankees or third
parties.
(3) (a) Financial data will be reviewed by competent,
independent, certified public accountants who are
members of the American Institute of Certified Public
Accountants' (the "AICPA) securities practice section
and who have successfully undergone peer review for
such specialty, to be separately retained by the
Client.
(b) Such accountants will be required to review and
approve all financially related filings, prior to
release to Yankees, other third parties or submission
to the appropriate regulatory authorities.
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(B) (1) The Client shall supply Yankees on a regular and timely
basis with all approved data and information about the Client,
its management, its products, and its operations and the
Client shall be responsible for advising Yankees of any fact
which would affect the accuracy of any prior data and
information supplied to Yankees.
(2) The Client shall use its best efforts to promptly supply
Yankees with full and complete copies of all filings with all
federal and state securities agencies; with full and complete
copies of all shareholder reports and communications whether
or not prepared with Yankees's assistance, with all data and
information supplied to any analyst, broker-dealer, market
maker, or other member of the financial community; and with
all product/services brochures, sales materials, etc.
(3) The Client shall promptly notify Yankees of the filing of any
registration statement for the sale of securities and/or of
any other event which triggers any restrictions on publicity.
(4) The Client shall be deemed to make a continuing representation
of the accuracy of any and all material facts, material,
information, and data which it supplies to Yankees and the
Client acknowledges its awareness that Yankees will rely on
such continuing representation in performing its functions
under this Agreement.
(5) Yankees, in the absence of notice in writing from the Client,
may rely on the continuing accuracy of material, information
and data supplied by the Client.
ARTICLE TWO
TERM, RENEWALS & EARLIER TERMINATION
2.1 Term.
----
This Agreement shall be for an initial term of 730 days, commencing on
the date of its complete execution by all Parties, as evinced in the execution
page hereof (the "Initial Term").
2.2 Renewals.
--------
(A) This Agreement shall be renewed automatically, after expiration of the
original term, on a continuing annual basis, unless the Party wishing
not to renew this Agreement provides the other Party with written
notice of its election not to renew ("Termination Election Notice") on
or before the 30th day prior to termination of the then current term.
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(B) In the event of renewal, Yankees shall be entitled to additional Class
A Options on the same terms as those reflected herein, except that the
exercise price would be equal to 75% of the average opening bid price
for the Client's common stock, as reported on the highest level
securities exchange or securities market on which prices for the
Client's securities are quoted, on the ten business days preceding the
first day of the renewal term.
2.3 Final Settlement.
----------------
(A) Upon termination of this Agreement and payment to Yankees of all
amounts due it hereunder, Yankees or its representative shall execute
and deliver to the Client a receipt for such sums and a release of all
claims, except such claims as may have been submitted pursuant to the
terms of this Agreement and which remain unpaid, and, shall forthwith
tender to the Client all records, manuals and written procedures, as
may be desired by the Client for the continued conduct of its business;
and
(B) The Client or its representative shall execute and deliver to Yankees a
receipt for all materials returned and a release of all claims, except
such claims as may have been submitted pursuant to the terms of this
Agreement and which remain unpaid, and, shall forthwith tender to
Yankees all records, manuals and written procedures, as may be desired
by Yankees for the continued conduct of its business.
ARTICLE THREE
YANKEES' CONFIDENTIALITY & COMPETITION COVENANTS
3.1 General Provisions.
------------------
(A) Yankees acknowledges that, in and as a result of its entry into this
Agreement, it will be making use of confidential information of special and
unique nature and value relating to such matters as The Client's trade
secrets, systems, procedures, manuals, confidential reports; consequently,
as material inducement to the entry into this Agreement by the Client,
Yankees hereby covenants and agrees that it shall not, at anytime during
the term of this Agreement, any renewals thereof and for two years
following the terms of this Agreement, directly or indirectly, use, divulge
or disclose, for any purpose whatsoever, any of such confidential
information which has been obtained by or disclosed to it as a result of
its entry into this Agreement or provision of services hereunder.
(B) In the event of a breach or threatened breach by Yankees of any of the
provisions of this Article Three, the Client, in addition to and not in
limitation of any other rights, remedies or damages available to the
Client, whether at law or in equity, shall be entitled to a permanent
injunction in order to prevent or to restrain any such breach by Yankees,
or by its partners, directors, officers, stockholders, agents,
representatives, servants, employers, employees, affiliates and/or any and
all persons directly or indirectly acting for or with it.
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3.2 Special Remedies.
----------------
In view of the irreparable harm and damage which would undoubtedly
occur to the Client as a result of a breach by Yankees of the covenants or
agreements contained in this Article Three, and in view of the lack of an
adequate remedy at law to protect The Client's interests, Yankees hereby
covenants and agrees that the Client shall have the following additional rights
and remedies in the event of a breach hereof:
(A) Yankees hereby consents to the issuance of a permanent injunction
enjoining it from any violations of the covenants set forth in this
Article Three; and
(B) Because it is impossible to ascertain or estimate the entire or exact
cost, damage or injury which the Client may sustain prior to the
effective enforcement of such injunction, Yankees hereby covenants and
agrees to pay over to the Client, in the event it violates the
covenants and agreements contained in this Article Three, the greater
of:
(1) Any payment or compensation of any kind received by it because of
such violation before the issuance of such injunction, or
(2) The sum of One Thousand Dollars per violation, which sum shall be
liquidated damages, and not a penalty, for the injuries suffered
by the Client as a result of such violation, the Parties hereto
agreeing that such liquidated damages are not intended as the
exclusive remedy available to the Client for any breach of the
covenants and agreements contained in this Article Three, prior
to the issuance of such injunction, the Parties recognizing that
the only adequate remedy to protect the Client from the injury
caused by such breaches would be injunctive relief.
3.3 Cumulative Remedies.
-------------------
Yankees hereby irrevocably agrees that the remedies described in this
Article Three shall be in addition to, and not in limitation of, any of the
rights or remedies to which the Client may be entitled, whether at law or in
equity, under or pursuant to this Agreement.
3.4 Acknowledgment of Reasonableness.
--------------------------------
(A) Yankees hereby represents, warrants and acknowledges that its members
or officers and directors have carefully read and considered the
provisions of this Article Three and, having done so, agrees that the
restrictions set forth herein are fair and reasonable and are
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reasonably required for the protection of the interests of the Client,
its members, officers, directors, consultants, agents and employees;
consequently, in the event that any of the above-described restrictions
shall be held unenforceable by any court of competent jurisdiction,
Yankees hereby covenants, agrees and directs such court to substitute a
reasonable judicially enforceable limitation in place of any limitation
deemed unenforceable and, Yankees hereby covenants and agrees that if
so modified, the covenants contained in this Article Three shall be as
fully enforceable as if they had been set forth herein directly by the
Parties.
(B) In determining the nature of this limitation, Yankees hereby
acknowledges, covenants and agrees that it is the intent of the Parties
that a court adjudicating a dispute arising hereunder recognize that
the Parties desire that these covenants not to compete or circumvent be
imposed and maintained to the greatest extent possible.
3.5 Exclusivity.
-----------
Yankees shall not be required to devote all of its business time to the
affairs of the Client, rather it shall devote such time as it is reasonably
necessary in light of its other business commitments.
ARTICLE FOUR
THE CLIENT'S CONFIDENTIALITY & COMPETITION COVENANTS
4.1 General Prohibitions
(A) The Client acknowledges that, in and as a result of its engagement of
Yankees, the Client will be making use of confidential information of
special and unique nature and value relating to such matters as Yankees's
business contacts, professional advisors, trade secrets, systems,
procedures, manuals, confidential reports, lists of the Clients, potential
customers and funders; consequently, as material inducement to the entry
into this Agreement by Yankees, the Client hereby covenants and agrees that
it shall not, at anytime during the term of this Agreement, any renewals
thereof an for two years following the terms of this Agreement, directly or
indirectly, use, divulge or disclose, for any purpose whatsoever, any of
such confidential information which has been obtained by or disclosed to it
as a result of its employment of Yankees, or Yankees's affiliates.
(B) In the event of a breach or threatened breach by the Client of any of the
provisions of this Article Four, Yankees, in addition to and not in
limitation of any other rights, remedies or damages available to Yankees,
whether at law or in equity, shall be entitled to a permanent injunction in
order to prevent or to restrain any such breach by the Client, or by The
Client's partners, directors, officers, stockholders, agents,
representatives, servants, employers, employees, affiliates and/or any and
all persons directly or indirectly acting for or with it.
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4.2 Special Remedies.
----------------
In view of the irreparable harm and damage which would undoubtedly
occur to Yankees as a result of a breach by the Client of the covenants or
agreements contained in this Article Four, and in view of the lack of an
adequate remedy at law to protect Yankees's interests, the Client hereby
covenants and agrees that Yankees shall have the following additional rights and
remedies in the event of a breach hereof:
(A) The Client hereby consents to the issuance of a permanent injunction
enjoining it from any violations of the covenants set forth in this
Article Four is and
(B) Because it is impossible to ascertain or estimate the entire or exact
cost, damage or injury which Yankees may sustain prior to the effective
enforcement of such injunction, the Client hereby covenants and agrees
to pay over to Yankees, in the event it violates the covenants and
agreements contained in this Article Four, the greater of:
(1) Any payment or compensation of any kind received by it because of
such violation before the issuance of such injunction, or
(2) The sum of One Thousand Dollars per violation, which sum shall be
liquidated damages, and not a penalty, for the injuries suffered
by Yankees as a result of such violation, the Parties hereto
agreeing that such liquidated damages are not intended as the
exclusive remedy available to Yankees for any breach of the
covenants and agreements contained in this Article Four, prior to
the issuance of such injunction, the Parties recognizing that the
only adequate remedy to protect Yankees from the injury caused by
such breaches would be injunctive relief.
4.3 Cumulative Remedies.
-------------------
The Client hereby irrevocably agrees that the remedies described in
this Article Four shall be in addition to, and not in limitation of, any of the
rights or remedies to which Yankees is or may be entitled to, whether at law or
in equity, under or pursuant to this Agreement.
4.4 Acknowledgment of Reasonableness.
--------------------------------
(A) The Client hereby represents, warrants and acknowledges that its
officers and directors have carefully read and considered the
provisions of this Article Four and, having done so,
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agree that the restrictions set forth herein are fair and reasonable
and are reasonably required for the protection of the interests of
Yankees, its members, officers, directors, consultants, agents and
employees; consequently, in the event that any of the above-described
restrictions shall be held unenforceable by any court of competent
jurisdiction, the Client hereby covenants, agrees and directs such
court to substitute a reasonable judicially enforceable limitation in
place of any limitation deemed unenforceable and, the Client hereby
covenants and agrees that if so modified, the covenants contained in
this Article Four shall be as fully enforceable as if they had been set
forth herein directly by the Parties.
(B) In determining the nature of this limitation, the Client hereby
acknowledges, covenants and agrees that it is the intent of the Parties
that a court adjudicating a dispute hereunder recognize that the
Parties desire that these covenants not to compete or circumvent be
imposed and maintained to the greatest extent possible.
ARTICLE FIVE
MISCELLANEOUS
5.1 Notices.
-------
All notices, demands or other written communications hereunder shall be
in writing, and unless otherwise provided, shall be deemed to have been duly
given on the first business day after mailing by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
To Yankees:
The Yankee Companies, Inc.
000 Xxxxx Xxxxx Xxxx, Xxxxx 000; Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxx Xxxxxx, President
Telephone (000) 000-0000, Fax (000) 000-0000; and,
e-mail xxxxxxxxxx@xxxxxx.xxx; and
0000 Xxxxxxxxx 00xx Xxxxxxx; Xxxxx, Xxxxxxx
00000 Telephone (000) 000-0000; Fax (000) 000-0000; e-mail
xxxxxxx0@xxxxxxxx.xxx
Attention: Xxxxxxx X. Xxxxxxx, Chief Administrative Officer
To the Client:
Funds America Finance Corporation
0000 Xxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000; Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Telephone (000) 000-0000; Fax (000) 000-0000; e-mail ________@___.com
Attention: Xxx X. Xxxxxxx, President & Chief Executive Officer
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in each case, with copies to such other address or to such other persons as any
Party shall designate to the others for such purposes in the manner hereinabove
set forth.
5.2 Amendment.
---------
No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is in writing and signed by Parties.
5.3 Merger.
------
(A) This instrument, together with the instruments referred to herein,
contains all of the understandings and agreements of the Parties with
respect to the subject matter discussed herein.
(B) All prior agreements whether written or oral are merged herein and
shall be of no force or effect.
5.4 Survival.
--------
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
5.5 Severability.
------------
If any provision or any portion of any provision of this Agreement,
other than a conditions precedent, if any, or the application of such provision
or any portion thereof to any person or circumstance shall be held invalid or
unenforceable, the remaining portions of such provision and the remaining
provisions of this Agreement or the application of such provision or portion of
such provision as is held invalid or unenforceable to persons or circumstances
other than those to which it is held invalid or unenforceable, shall not be
affected thereby.
5.6 Governing Law and Venue.
-----------------------
This Agreement shall be construed in accordance with the laws of the
State of Florida and any proceeding arising between the Parties in any matter
pertaining or related to this Agreement shall, to the extent permitted by law,
be held in Broward County, Florida.
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5.7 Dispute Resolution in lieu of Litigation.
----------------------------------------
(A) In the event of any dispute arising under this Agreement, or the
negotiation thereof or inducements to enter into the Agreement, the
dispute shall, at the request of any Party, be exclusively resolved
through the following procedures:
(1) (a) First, the issue shall be submitted to mediation
before a mediation service in Broward County, Florida
to be selected by lot from six alternatives to be
provided, three by Yankees and three by the Client.
(b) The mediation efforts shall be concluded within ten
business days after their initiation unless the
Parties unanimously agree to an extended mediation
period;
(2) In the event that mediation does not lead to a resolution of
the dispute then at the request of any Party, the Parties
shall submit the dispute to binding arbitration before an
arbitration service located in Broward County, Florida, to be
selected by lot, from six alternatives to be provided, in the
manner set forth above for selection of a mediator;
(3) (A) Expenses of mediation shall be borne by the
Parties equally if successful but if unsuccessful,
expenses of mediation and of arbitration shall be
borne by the Party or Parties against whom the
arbitration decision is rendered.
(B) If the terms of the arbitral award do not establish a
prevailing Party, then the expenses of unsuccessful
mediation and arbitration shall be borne 1/2 by the
Client and 1/2 by Yankees.
(B) Judgment upon the award rendered by the arbitrator(s) may be entered in
any court having jurisdiction thereof.
(C) In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the
prevailing Party shall be entitled to recover its costs and expenses,
including reasonable attorneys' fees up to and including all
negotiations, trials and appeals, whether or not litigation is
initiated.
5.8 Benefit of Agreement.
--------------------
The terms and provisions of this Agreement shall be binding upon and
inure to the benefit of the Parties, jointly and severally, their successors,
assigns, personal representatives, estate, heirs and legatees.
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5.9 Captions.
--------
The captions in this Agreement are for convenience and reference only
and in no way define, describe, extend or limit the scope of this Agreement or
the intent of any provisions hereof.
5.10 Number and Gender.
-----------------
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns may require.
5.11 Further Assurances.
------------------
The Parties hereby agree to do, execute, acknowledge and deliver or
cause to be done, executed, acknowledged or delivered and to perform all such
acts and deliver all such deeds, assignments, transfers, conveyances, powers of
attorney, assurances, stock certificates and other documents, as may, from time
to time, be required herein to effect the intent and purpose of this Agreement.
5.12 Status.
------
(A) Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, employer-employee relationship,
lessor-lessee relationship, or principal-agent relationship.
(B) Throughout the term of this Agreement, Yankees shall serve an
independent contractor, as that term is defined by the United States
Internal Revenue Service, and in conjunction therewith, shall be
responsible for all of his own tax reporting and payment obligations.
(C) In amplification of the foregoing, Yankees shall, subject to reasonable
reimbursement on a pre-approved budgetary basis, be responsible for
providing its own office facilities and supporting personnel.
5.13 Counterparts.
------------
(A) This Agreement may be executed in any number of counterparts delivered
through facsimile transmission.
(B) All executed counterparts shall constitute one Agreement
notwithstanding that all signatories are not signatories to the
original or the same counterpart.
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5.14 License.
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(A) (1) This Agreement is the property of Yankees.
(2) The use hereof by the Parties is authorized hereby solely for
purposes of this transaction and, the use of this form of
agreement or of any derivation thereof without Yankees' prior
written permission is prohibited.
(3) This Agreement shall not be construed more stringently or
interpreted less favorably against Yankees' based on
authorship.
(B) The Client hereby acknowledges that Yankees is not a law firm,
brokerage firm or otherwise regulated entity and that it has not
provided it with any advice, legal or otherwise, in conjunction with
this Agreement, but rather, has suggested that it retain legal counsel
for such purposes and that it rely solely on its own experience and
advisors in evaluating or interpreting this Agreement.
In Witness Whereof, the Parties have executed this Agreement, effective
as of the last date set forth below.
Signed, Sealed & Delivered
In Our Presence
Funds America Finance Corporation
----------------------------
____________________________ By: /s/ Xxx X. Xxxxxxx
Xxx X. Xxxxxxx, President
Dated: August 4, 1999
The Yankee Companies, Inc.
----------------------------
____________________________ By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxx Xxxxxx, President
Dated: August 4, 1999
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