EXHIBIT 10.1
SERVICES AGREEMENT
This Services Agreement is entered into as of March 1, 2004 by and between
American Motorcycle Leasing Corp. ("AML"), a Nevada corporation with an address
at 000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000, and Sparta
Commercial Services, LLC ("SCS"), a Delaware limited liability company with an
address at X.X. Xxx 00, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS
AML possess certain expertise in connection with the extension of credit
and underwriting techniques for leasing motor vehicles and has employees skilled
in the application of such expertise through the use of AML's proprietary
intellectual property.
SCS desires to retain AML as an independent contractor to utilize such
expertise for the benefit of SCS's business on the terms and conditions set
forth below, and AML desires to provide so act.
NOW, THEREFORE, the parties hereto, in consideration of the agreements set
forth herein and intending to be legally bound hereby agree as follows.
1. AML's Obligations. AML agrees for the fee set forth in Section 2 below,
to provide to SCS AML personnel to assist with SCS's credit and underwriting
activities for its business of leasing motor vehicles on an as needed basis as
evidenced by SCS's written requests therefore. AML shall devote such of its
employees and computer equipment and software as shall be necessary to
accommodate SCS's requirements; provided, however, that nothing herein shall
obligate AML to undertake any such request for service if such request would
impose upon AML the requirement to hire any additional personnel, require its
personnel to work overtime or require AML to divert its employees from
performing their normal duties on behalf of AML or otherwise interfere with the
normal operations of AML's business. If such a conflict occurs, AML shall assign
its personnel to complete AML-related matters first. Thereafter, AML shall
assign personnel to complete SCS-related services.
2. SCS's Obligations. (a) SCS shall pay to AML a one time fee of
US$100,000.00 for signing this Services Agreement, of such amount $20,000.00 is
to be paid by May 15, 2004 and the balance of $80,000.00 is to be paid no later
than March 1, 2005 and (b) SCS shall pay the salaries of those AML employees
who's services SCS utilizes to accommodate SCS's requirements. In order to
ensure efficient provision of such services, SCS shall provide to AML specific
instructions as to the nature of the services to be provided by AML and AML's
employees. Such instructions may be given verbally if and only if a
representative of SCS is present at AML's facilities at the time such services
are requested. Otherwise, all such requests shall be in writing which may
include electronic correspondence.
3. Facilities Access. Representatives of SCS shall have access to AML's
facilities during normal business hours, subject to any reasonable restrictions
AML may impose.
4. Electronic Data Processing. From and after the date of this Agreement,
SCS personnel shall have access to AML's electronic data processing network;
provided that SCS shall have installed and paid for any firewall(s) necessary to
separate AML data from SCS data.
5. Term. The Agreement shall be for an initial period of three (3) years
and automatically shall be renewable for additional one (1) year periods;
provided that either party may terminate this Agreement on not less than sixty
(60) days prior written notice to the other before the end of the then current
term.
6. Insurance. Each party shall maintain its current levels of property and
casualty insurance during the term of this Agreement.
7. Indemnification. Each party hereby agrees to save, defend and indemnify
the other party and such other party's affiliates against and hold them harmless
from any and all claims, liabilities, losses, damages, deficiencies, costs and
expenses, of every kind, nature and description, fixed or contingent (including,
without limitation, interest, penalties and counsel's fees and expenses),
asserted against, resulting to, imposed upon or incurred by such other party or
any of its affiliates, officers, directors or agents, directly or indirectly,
arising out of any claim that occurred prior to the termination of this
Agreement resulting from any negligence on the part of the party charged with
indemnification or the breach by such party of any covenant or agreement made by
such party hereunder.
8. Miscellaneous.
a. Force Majeure. Neither party shall be held liable or responsible to the
other party or be deemed to have defaulted under or breached this Agreement for
failure or delay in fulfilling or performing any term of this Agreement when
such failure or delay is caused by or results from events beyond the reasonable
control of the non-performing party, including fires, floods, embargoes,
shortages, epidemics, quarantines, war, acts of war (whether war be declared or
not), insurrections, riots, civil commotion, strikes, lockouts or other labor
disturbances, acts of God or acts, omissions or delays in acting by any
governmental authority. The non-performing party shall notify the other Party of
such force majeure within twenty (20) days after such occurrence by giving
written notice to the other party stating the nature of the event, its
anticipated duration, and any action being taken to avoid or minimize its
effect. The suspension of performance shall be of no greater scope and no longer
duration than is necessary and the non-performing party shall use commercially
reasonable efforts to remedy its inability to perform; provided, however, that
in the event the suspension of performance continues for one-hundred and eighty
(180) days after the date of the occurrence, the parties shall meet to discuss
in good faith how to proceed in order to accomplish intentions of this
Agreement.
b. Assignment. Without the prior written consent of the other party hereto,
neither party shall sell, transfer, assign, delegate, pledge or otherwise
dispose of, whether voluntarily, involuntarily, by operation of law or
otherwise, this Agreement or any of its rights or duties hereunder; provided,
however, that either party hereto may assign or
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transfer this Agreement or any of its rights or obligations hereunder without
the consent of the other party (a) to any affiliate of such party; or (b) to any
third party with which it may merge or consolidate, or to which it may transfer
all or substantially all of its assets to which this Agreement relates if in any
such event (i) the assigning party (provided that it is not the surviving
entity) remains jointly and severally liable with the third party assignee under
this Agreement, and (ii) the assignee or surviving entity assumes in writing all
of the assigning party's obligations under this Agreement. Any purported
assignment or transfer in violation of this Section shall be void ab initio and
of no force or effect.
c. Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under any present or future law, and if the rights or
obligations of either party under this Agreement will not be materially and
adversely affected thereby, (i) such provision shall be fully severable, (ii)
this Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part, (iii) the remaining
provisions of this Agreement shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by its
severance here from, and (iv) in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and reasonably acceptable
to the parties herein. To the fullest extent permitted by applicable law, each
party hereby waives any provision of law that would render any provision
prohibited or unenforceable in any respect.
d. Governing Law, Jurisdiction, Venue and Service. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
excluding any conflicts or choice of law rule or principle that might otherwise
refer construction or interpretation of this Agreement to the substantive law of
another jurisdiction. The parties hereby irrevocably and unconditionally consent
to the exclusive jurisdiction of the courts of the State of New York and the
United States District Court for the Southern District of New York for any
action, suit or proceeding (other than appeals there from) arising out of or
relating to this Agreement, and agree not to commence any action, suit or
proceeding (other than appeals there from) related thereto except in such
courts. The parties further hereby irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding (other than
appeals there from) arising out of or relating to this Agreement in the courts
of the State of New York or the United States District Court for the Southern
District of New York, and hereby further irrevocably and unconditionally waive
and agree not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
Each party hereto further agrees that service of any process, summons, notice or
document by U.S. registered mail to its address set forth below shall be
effective service of process for any action, suit or proceeding brought against
it under this Agreement in any such court.
e. Notices. All notices or other communications that are required or
permitted hereunder shall be in writing and delivered personally, sent by
facsimile (and promptly confirmed by personal delivery, registered
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or certified mail or overnight courier as provided herein), sent by
nationally-recognized overnight courier or sent by registered or certified mail,
postage prepaid, return receipt requested, addressed to the parties at their
respective addresses set forth above or to such other address as the party to
whom notice is to be given may have furnished to the other party in writing in
accordance herewith. Any such communication shall be deemed to have been given
(i) when delivered, if personally delivered or sent by facsimile on a business
day, (ii) on the business day after dispatch, if sent by nationally-recognized
overnight courier, and (iii) on the third business day following the date of
mailing, if sent by mail. It is understood and agreed that this Section 8e is
not intended to govern the day-to-day business communications necessary between
the Parties in performing their duties, in due course, under the terms of this
Agreement.
If a facsimile to AML: 212-563-3031
If a facsimile to SCS: 000-000-0000
f. Entire Agreement; Modifications. This Agreement sets forth and
constitutes the entire agreement and understanding between the parties with
respect to the subject matter hereof and all prior agreements, understanding,
promises and representations, whether written or oral, with respect thereto are
superseded hereby. Each party confirms that it is not relying on any
representations or warranties of the other party except as specifically set
forth herein. No amendment, modification, release or discharge shall be binding
upon the parties unless in writing and duly executed by authorized
representatives of both parties.
g. Relationship of the Parties. It is expressly agreed that the parties
shall be independent contractors of one another and that the relationship
between the parties shall not constitute a partnership, joint venture or agency.
Neither party shall have the authority to make any statements, representations
or commitments of any kind, or to take any action, which shall be binding on the
other, without the prior written consent of the other to do so. All persons
employed by a party shall be employees of such party and not of the other party
and all costs and obligations incurred by reason of any such employment shall be
for the account and expense of such party. SCS shall not be deemed to have any
leasehold, license or other interest in the premises occupied by AML during the
term of this Agreement and shall not hold itself out as doing business at any
such premises.
h. Waiver. Any term or condition of this Agreement may be waived at any
time by the party that is entitled to the benefit thereof, but no such waiver
shall be effective unless set forth in a written instrument duly executed by or
on behalf of the party waiving such term or condition. The waiver by either
party hereto of any right hereunder or of the failure to perform or of a breach
by the other party shall not be deemed a waiver of any other right hereunder or
of any other breach or failure by said other party whether of a similar nature
or otherwise.
j. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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k. No Benefit to Third Parties. The representations, warranties, covenants
and agreements set forth in this Agreement are for the sole benefit of
the parties hereto and their successors and permitted assigns, and they shall
not be construed as conferring any rights on any other parties.
l. Further Assurance. Each party shall duly execute and deliver, or cause
to be duly executed and delivered, such further instruments and do and cause to
be done such further acts and things, including the filing of such assignments,
agreements, documents and instruments, as may be necessary or as the other party
may reasonably request in connection with this Agreement or to carry out more
effectively the provisions and purposes, or to better assure and confirm unto
such other party its rights and remedies under this Agreement.
m. References. Unless otherwise specified, (a) references in this Agreement
to any Section shall mean references to such Section of this Agreement, (b)
references in any section to any clause are references to such clause of such
section, and (c) references to any agreement, instrument or other document in
this Agreement refer to such agreement, instrument or other document as
originally executed or, if subsequently varied, replaced or supplemented from
time to time, as so varied, replaced or supplemented and in effect at the
relevant time of reference thereto.
n. Construction. Except where the context otherwise requires, wherever
used, the singular shall include the plural, the plural the singular, the use of
any gender shall be applicable to all genders and the word "or" is used in the
inclusive sense (and/or). The captions of this Agreement are for convenience of
reference only and in no way define, describe, extend or limit the scope or
intent of this Agreement or the intent of any provision contained in this
Agreement. The term "including" as used herein shall mean including, without
limiting the generality of any description preceding such term.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
SPARTA COMMERCIAL SERVICES, LLC
By: /s/ X.X. Xxxxxx
---------------------------
Name: X.X. Xxxxxx
Title: C.E.O.
AMERICAN MOTORCYCLE LEASING CORP.
By: /s/ X.X. Xxxxx
---------------------------
Name: X.X. Xxxxx
Title: CFO
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