AGENCY TERMINATION AGREEMENT
Exhibit 1.3
AGENCY
TERMINATION AGREEMENT
TERMINATION AGREEMENT
WHEREAS, Orange REIT (the “Company”) and X. X. Xxxxxx & Company, LLC (“Xxxxxx”) entered into
an Agency Agreement effective January 23, 2007, pursuant to which Xxxxxx agreed to serve as
exclusive managing agent for a public offering of common stock of the Company (the “Offering”), and
WHEREAS, the parties now seek to terminate the Agency Agreement on the terms and conditions
set forth in this Agency Termination Agreement (the “Termination Agreement”),
NOW THEREFORE, in connection with the foregoing and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and Xxxxxx agree as follows:
1. Withdrawal. Xxxxxx shall file a request to withdraw as Managing Agent of the Offering with
the Financial Industry Regulatory Authority (“FINRA”), to be effective upon approval by FINRA.
2. Selected Dealer Agreement. Xxxxxx shall enter into a selected dealer agreement (“Selected
Dealer Agreement”) with the replacement managing agent, pursuant to which Xxxxxx will be entitled
to receive a seven percent commission, plus a one-half of one percent non-accountable expense
allowance for Offering purchases made by its customers only.
3. Fees. In consideration of its services to date, and in lieu of other fees that would have
been payable to Xxxxxx under the Agency Agreement, the Company shall pay Xxxxxx a fee equal to two
percent (2.0%) of the proceeds of all purchases of shares in the Offering made by Xxxxxx’x
customers at each closing of the Offering.
4. Refund. Consistent with Section 3 of the Business Advisory Agreement entered into by Briad
Development West, LLC (“Briad”) and Xxxxxx on October 3, 2005, as amended, Xxxxxx shall refund to
Briad $100 for each $1,200 received from Briad or the Company in connection with the Offering,
whether received pursuant to the Agency Agreement, this Termination Agreement or the Selected
Dealer Agreement.
5. Expenses. Any amounts advanced to Xxxxxx for expenses pursuant to the Agency Agreement not
expended on bona fide expenses related to the Offering shall be repaid to the Company within three
days of the effective date of this Termination Agreement.
6. Effective Date of This Agreement. This Agreement shall become effective as of ______.
7. Notices. All statements, requests, notices and agreements hereunder shall be in writing,
and if to Xxxxxx shall be sufficient in all respects if delivered by hand or sent by registered or
certified mail, or by reputable overnight courier service, to One Buckhead Plaza,
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0000 Xxxxxxxxx Xxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxx
Xxxxxxx; and if to the Company, to 0000 Xxxxxxxxx Xxxx XX, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000,
Attention: Xxxx Xxxxxxxxx. Any such notice shall be sufficient in all respects if delivered by
hand or sent by registered or certified mail, or by reputable overnight courier service.
8. Binding Effect. This Termination Agreement shall be binding upon, and inure solely to the
benefit of Xxxxxx and the Company. Nothing in this Termination Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim under or in
respect of this Termination Agreement or any provision contained herein.
9. Amendments. This Agreement may not be amended, modified, altered or changed in any way
without the prior written consent and approval of the Company and Xxxxxx.
10. Entire Agreement. This Termination Agreement, together with the attachments hereto, and
as the same may be amended from time to time in accordance with the terms hereof, contains the
entire agreement among the parties hereto relating to the subject matter hereof.
11. Severability. If any term or provision of this Termination Agreement or the performance
thereof shall be invalid or unenforceable to any extent, such invalidity or unenforceability shall
not affect or render invalid or unenforceable any other provision of this Termination Agreement and
this Termination Agreement shall be valid and enforced to the fullest extent permitted by law.
12. Governing Law; Jurisdiction. This Termination Agreement shall be deemed to have been
executed and delivered in New York and both this Termination Agreement and the transactions
contemplated hereby shall be governed as to validity, interpretation, construction, effect, and in
all other respects by the laws of the State of New York, without regard to the conflicts of laws
principals thereof (other than Section 5-1401 of The New York General Obligations Law). Xxxxxx and
the Company: (a) agree that any legal suit, action or proceeding arising out of or relating to this
Termination Agreement and/or the transactions contemplated hereby shall be instituted exclusively
in the Supreme Court of the State of New York, New York County, or in the United States District
Court for the Southern District of New York, (b) waive any objection which it may have or hereafter
to the venue of any such suit, action or proceeding, and (c) irrevocably consent to the
jurisdiction of Supreme Court of the State of New York, New York County, or in the United States
District Court for the Southern District of New York in any such suit, action or proceeding.
Xxxxxx and the Company further agree to accept and acknowledge service of any and all process which
may be served in any such suit, action or proceeding in the Supreme Court of the State of New York,
New York County, or in the United States District Court for the Southern District of New York and
agree that service of process upon the Company mailed by certified mail to the Company’s address or
delivered by Federal Express via overnight delivery shall be deemed in every respect effective
service of process upon the Company, in any such suit, action or proceeding, mailed by certified
mail to Xxxxxx’x address or delivered by Federal Express via overnight delivery shall be deemed in
every respect effective service process upon the served Xxxxxx, in any such suit, action or
proceeding. XXXXXX AND THE COMPANY, TO THE FULLEST EXTENT PERMITTED BY LAW, ON BEHALF OF THEIR
RESPECTIVE EQUITY HOLDERS AND CREDITORS, HEREBY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY CLAIM BASED
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UPON, ARISING OUT OF OR IN CONNECTION WITH THIS TERMINATION AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED BY THIS TERMINATION AGREEMENT.
13. Headings. The headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Termination Agreement.
14. Counterparts. This Termination Agreement may be executed by any one or more of the parties
in any number of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument. Delivery of a signed
counterpart of this Termination Agreement by facsimile transmission shall constitute valid and
sufficient delivery thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Termination Agreement on this ______
day of February, 2008.
| ORANGE REIT, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| X.X. XXXXXX & COMPANY, LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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