SERVICES AGREEMENT
BETWEEN
CITIGROUP FINANCIAL PRODUCTS INC.
AS
INVESTOR
AND
XXXXXXX.XXX INC.
AS
SERVICE PROVIDER
DATED AS OF APRIL 29, 2004
SERVICES AGREEMENT
THIS AGREEMENT is made and entered into as of the 29th day of April,
2004, but effective as of the Effective Date, by and between Citigroup Financial
Products Inc., a Delaware corporation ("Investor") and XxxxxXx.Xxx Inc., a
California corporation ("Service Provider").
RECITALS
WHEREAS, Investor will acquire a portfolio of Assets, composed
primarily of commercial, industrial loans and residential loans and potentially
commercial, industrial and residential real estate and from Great Wall Asset
Management Company (the "Seller") pursuant to the Loan Sale and Purchase
Agreement dated as of April 27, 2004 (the "Effective Date") by and between Great
Wall Asset Management Company and the Investor (the "Purchase Agreement"), which
portfolio is described in Exhibit A attached hereto,
WHEREAS, Service Provider has experience and skill in the reporting,
servicing and asset management of commercial, industrial loans and residential
loans and potentially commercial, industrial and residential real estate and
leases; and
WHEREAS, based on Service Provider's experience and skill in the
servicing and asset management of commercial, industrial loans, residential
loans, leases and potentially commercial, industrial and residential real
estate, Investor desires to engage Service Provider for the period from the
Effective Date until the Closing Date (the "Interim Period") to provide (i)
certain reporting, advisory, consultation, management and disposition services
with respect to ownership, management, marketing and disposition of the Assets
and (ii) certain loan servicing services with respect to servicing the Assets,
and Service Provider has agreed to provide such services upon the terms and
conditions hereinafter set forth. Investor intends enter into an agreement with
Service Provider on or after the Closing Date pursuant to which Service Provider
will provide substantially the same services as the services set forth herein;
NOW, THEREFORE, in consideration of the mutual promises herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound, agree as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
context otherwise requires, shall have the following meanings, applicable
equally to the singular and plural nouns and verbs of any tense:
AGREEMENT: This Services Agreement and all amendments hereof and
supplements hereto.
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AFFILIATE: With respect to any Person (the "First Person"), any Person
or group of Persons that, directly or indirectly, through one or more
intermediaries, controls or is controlled by or is under common control with
such First Person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person or group of Persons, shall mean
possession, directly or indirectly, through one or more intermediaries, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities or by contract or
otherwise.
ASSETS: The term Assets shall mean:
(i) the loans described on Exhibit A-1;
(ii) any assets that the parties agree in writing to add to Exhibit A
during the Term.
AUDIT REPORT: is defined in Section 8.4.
BUSINESS DAY: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking institutions in PRC, Hong Kong or New York [all of our cash
flows via NY] are authorized or obligated by law or executive order to be
closed.
BUSINESS PLANS: The plans initially prepared by Service Provider for
the management and disposition of the Assets pursuant to Section 5.2, as the
same may be amended or modified from time to time by Investor and Service
Provider pursuant to this Agreement.
CLOSING DATE: Has the meaning ascribed to it in the Purchase Agreement.
DEFAULTING PARTY: The "Defaulting Party" is defined in Section
12.1(a).
DISPOSITION PLAN: A written request for approval submitted by Service \
Provider to Investor for resolution of an Asset.
EFFECTIVE DATE: The date that the Purchase Agreement is executed by all
parties thereto.
EVENT OF DEFAULT: Any event of default as specified in Article 12 hereof.
INSURANCE AND CONDEMNATION PROCEEDS: Amounts received with respect to a
particular Asset pursuant to the related hazard insurance policy or any related
title or other insurance policy, or as a condemnation award or settlement or
payment in lieu thereof, or pursuant to any fidelity bond.
INVESTOR: The term Investor is defined in the Preamble hereof.
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LIMITATIONS ON AUTHORITY is defined in Section 5.4.
LOAN: Each loan which is included within the Assets and which are the
subject of this Agreement as identified on Exhibit A attached hereto.
LOAN DOCUMENTS: With respect to each Loan and any other Related
Security Documents evidencing and securing such Loan.
LOAN FILE: With respect to each Loan and any Related Security Documents
pertaining to such Loan, any other Loan Documents obtained from Seller and any
additional documents required from time to time by the Loan Documents and as the
same may be added to the Loan File pursuant to this Agreement.
MORTGAGE: With respect to any Loan, the mortgage, deed of trust or
other instrument creating a first, second or other priority of lien on an estate
in real property, if any, and securing such Loan.
MORTGAGED PROPERTY: With respect to any Loan secured by real property,
the property subject to the related Mortgage.
MORTGAGOR: With respect to any Loan secured by real property, the Obligor.
NON-DEFAULTING PARTY: The "Non-Defaulting Party" is defined in Section
12.1(a).
OBLIGOR: (i) With respect to a Loan secured by real property, the
Mortgagor and/or borrower or Related Security Document and, with respect to any
other Loan, the borrower, and (ii) any guarantor, co-signer or other person
liable or otherwise obligated under a Related Security Document.
PERSON: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, entity, unincorporated organization or
government or any agency or political subdivision thereof.
PURCHASE AGREEMENT is defined in the Recitals.
RELATED SECURITY DOCUMENTS: With respect to each Loan, each instrument,
contract or other document securing such Loan including, without limitation, any
Mortgage, any assignment of lease and/or rents, security agreement, financing
statement, chattel mortgage, guaranty, letter of credit, certificate of deposit
or other pledged account, key employee insurance policy or other insurance
policy, power(s) of attorney, loan agreement, credit line agreement, deeds,
change agreement, Keun-mortgage related document, receipts, resolutions,
certificates, debt redemption or transfer document, pledge, or other instrument,
contract or document securing such Loan.
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REMITTANCE DATE: The 1st Business Day of any calendar month, beginning
on the 1st Business Day of the calendar month next following the calendar month
during which the purchase of the Assets under the Purchase Agreement closes.
REO PROPERTY: Individually or collectively, (i) each individual
property which is the subject of this Agreement on the Effective Date identified
in Exhibit A as an REO Property; attached hereto, (ii) each Mortgaged Property
the ownership of which, or a ground leasehold estate in which, as the case may
be, is acquired by or on behalf of Investor or any Affiliate thereof through
foreclosure or deed in lieu of foreclosure or otherwise after the Effective Date
at which time such property will cease to come within the definition of
"Mortgaged Property", and (iii) any real estate asset which is acquired by or on
behalf of Investor or any Affiliate thereof as part of the settlement of any
Loan.
SELLER: The term Seller is defined in the Recitals hereof.
SERVICE PROVIDER: The term Service Provider is defined in the Preamble
hereof.
SERVICING FEE: The term Servicing Fee is defined in Section 8.1 hereof.
SERVICING STANDARD: The term Servicing Standard is defined in Section
5.3 hereof.
TERM: The Initial Term and any Renewal Terms.
THIRD PARTY CONTRACTS is defined in Section 7.1.
ARTICLE II
RETENTION OF SERVICE PROVIDER
(a) Investor hereby retains Service Provider as its agent for
the purpose of performing the services described in this Agreement with
respect to the Assets. Service Provider will ensure that each of Xxxxxx
Xxx and Xxx Xxx (or such other persons agreed to in writing by
Investor) work on a full time basis to provide the services set forth
herein. Service Provider agrees that if it is contacted by or contacts
an investor ("Third Party Investor") other than the Investor to provide
services similar to the services Service Provider is to provide
hereunder, it will offer Investor a right to engage Service Provider on
substantially the same terms as the Third Party Investor and if
Investor does not exercise its right within ten (10) business days,
Service Provider may offer its services to such Third Party Investor
without Investor's consent.
(b) Subject to the terms and conditions set forth herein,
Service Provider agrees to provide advisory, consultation, reporting
and management services in accordance with this Agreement.
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(c) The parties to this Agreement acknowledge that Service
Provider will not acquire title to, any security interest in, or any
rights of any kind in or to the Assets (or any income, receipts or
revenues therefrom except to the extent of the fees described in
Article VIII).
ARTICLE III
TERM OF AGREEMENT
This Agreement shall continue in force through the last day of the
Interim Period unless terminated in accordance with Article XII or unless
extended by Investor in accordance with this Agreement;
ARTICLE IV
ASSET MANAGEMENT DUTIES
4.1 Service Provider's Duties and Responsibilities. Subject to the
Purchase Agreement, the Service Provider's duties under this Agreement shall be
to provide reporting and asset management services for the Assets. Service
Provider's asset management duties shall include, without limitation, liaising
with the Seller relating to Asset resolution decisions, advising Investor in
relation to the management, disposition and servicing on the manner Service
Provider deems best consistent with the Servicing Standard. Service Provider's
duties and responsibilities are subject in all events to the Limitations on
Authority Service Provider's duties shall include, but not be limited to, the
following:
(a) Service Provider shall promptly gather (with reasonable
third-party costs including, without limitation, charges for
photocopying expenses, being at the cost and expense of Investor)
review of the Loan Files and other written materials and other
appropriate sources, all reasonably available information regarding the
Assets and any property acquired with respect thereto;
(b) Service Provider shall promptly undertake site inspections
of Mortgaged Property and REO Property as Service Provider deems
appropriate or upon the written request of Investor (with reasonable
out-of-pocket and third-party costs including, without limitation,
reasonable travel expenses, being at the cost and expense of Investor);
(c) Service Provider shall assist Investor in analyzing and
evaluation information regarding the Assets;
(d) Upon reasonable prior written request by Investor, Service
Provider shall consult with Investor by telephone or by meetings during
Service Provider's normal and customary business hours, in connection
with their duties hereunder ;
(e) Service Provider shall prepare or provide documents
relative to the delegation of authority as provided in Section 4.4;
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(f) Subject to the provisions hereof, Service Provider shall
monitor all necessary filings to be made and use its best efforts to
ensure that such filings are within the required time limits necessary
from time to time to maintain perfection of the security interests of
Investor evidenced by each Loan (provided, however, that the actual
recording fees and filing fees shall be at Investor's expense) are
made;
(g) Service Provider shall prepare monthly reports as provided
in Section 8.2;
(h) With respect to Assets which are or become REO Property,
Service Provider shall engage third parties, at the cost and with the
prior consent of Investor, to provide, to Investor, property management
services and leasing or brokerage services;
(i) Service Provider shall assist Investor with due diligence
on the Assets and analyzing information relating to the Assets;
(j) Service Provider shall assist Seller to prepare for the
transition of the servicing function from Seller to Service Provider or
other service providers to be determined by Investor after the end of
the Interim Period including, without limitation, the transfer of loan
files and the preparation of all necessary documents and schedules;
(k) Service Provider will assist with the preparation of
Business Plans.
(l) Service Provider shall assist with the closing of the
purchase of the Assets as set forth in the Purchase Agreement.
(m) Service Provider will liaise with Seller as requested by
Investor.
4.2 Business Plans.
The Business Plans will contain strategies with different
resolution plans, collection efforts and treatments for appropriate
groups of the Loans and individual Loans as appropriate and for each
REO Property, including a budget(s) for projected expenses to be
incurred in conjunction with each such group of Loans, individual Loan
or REO Property, as applicable.
4.3 Servicing Standard. In performing its obligations under this
Agreement including those duties set forth in this Article IV and in Article V,
Service Provider shall at all times act in good faith and in the best interests
of Investor with respect to the Assets and, using its reasonable efforts, shall
carry out all of its obligations under this Agreement in a commercially
reasonable manner and in accordance with normal and prudent practices in the
distressed asset management and loan servicing businesses and consistent with
Service Provider's duties to Investor hereunder (the "Servicing Standard").
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4.4 Limitations on Service Provider's Authority. Service Provider shall
not have the authority, without obtaining Investor's prior written approval, to:
(i) enter into a commitment to dispose, sell, transfer, finance,
pledge or hypothecate any Asset;
(ii) take any material action, including to resolve or dispose of any
Asset.
(iii) incur any costs on behalf of Investor;
(iv) enter into an agreement modifying or waiving the material terms
of any Loan or related document or releasing any Obligor on any
Loan from liability;
(v) exercise any right to accelerate the maturity of any Loan (except
as contemplated within an approved Business Plan); or
(vi) act on behalf of, or hold itself out as having the authority to
act on behalf of, Investor.
ARTICLE V
SERVICING DUTIES
5.1 General.
(a) Service Provider shall service and administer the Assets
in accordance with the terms of this Agreement pursuant to the standard
set forth in Section 4.3. In servicing the Assets, Service Provider
shall use automated data processing services in support of the
reporting and servicing functions, which will organize, retain and
permit retrieval of data in an accurate, efficient and immediate
manner.
(b) In performing its obligations hereunder, Service Provider
shall at all times act pursuant to the standard set forth in Section
4.3 and, subject to the Limitations on Authority, shall carry out its
obligations hereunder. Service Provider shall employ adequate suitably
experienced personnel in Hong Kong and elsewhere to perform its duties
hereunder and shall maintain an efficient system for the monitoring of
collection of all amounts due to Investor under the Loans and shall
service the Assets in accordance with all applicable state, federal and
other governmental laws, rules and regulations including without the
limitation the Foreign Corrupt Practices Act.
5.2 Monitoring of Collection of Payments. With respect to all Assets,
beginning on the Effective Date, Service Provider shall continuously monitor all
payments due to Investor attributable to the Assets, including but not limited
to principal, interest, late fees (if any), proceeds of liquidation of defaulted
Loans (whether through foreclosure or otherwise), insurance and condemnation
proceeds (other than proceeds which are required by applicable Loan
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Documents to be applied to the repair or restoration of the applicable
property), rentals, security deposits, license fees, lease payments and securing
deposits. Service Provider shall use its best efforts (to the extent available
for any Mortgaged Property) to obtain from time to time and forward to Investor
current operating statements on a monthly basis for REO Property and no less
frequently than annually for Mortgaged Property. In each monthly report, Service
Provider shall notify Investor of any new material monetary default by an
Obligor or a tenant for REO Property.
5.3 Satisfaction and Release of Loans. Upon the payment in full of any
Loan, Service Provider will notify Investor.
5.4 No Obligation to Make Advances. Service Provider has no obligation
to advance its own funds to (a) make any payments of taxes or other charges as
set forth in this Agreement, purchase any insurance required to be maintained
pursuant to this Agreement pay or reimburse any Third Parties retained pursuant
to Article VII, or (d) make any other payments which may be required of
Investor, including without limitation for any Loan advances, asset related
expenses or any tenant finish, but shall promptly notify Investor in the event
there are insufficient funds in the Operating Account from which to make such
payment.
5.5 Processing of Invoices. All expenses, including without limitation
Third Party costs, to be paid by Service Provider or for which Service Provider
desires reimbursement from Investor must, subject to the Limitation on
Authority, be authorized pursuant to this Agreement and the prior written
approval of Investor. If an expense is so authorized, Investor shall pay or
reimburse those amounts to such third party(s) or Service Provider, as
applicable, upon Service Provider's request within thirty (30) days of
Investor's receipt of such invoices and documentation. Notwithstanding the
foregoing, the parties understand and agree that the Service Provider shall have
no obligation to pay any fees or expenses, including without limitation to Third
Party Contractors, from its own funds and any decision by it to do so shall be
within Service Provider's sole and absolute discretion. Notwithstanding the
foregoing, however, the obligation to promptly pay hereunder shall be suspended
in the event Investor or Service Provider is validly contesting or otherwise
reasonably objecting to the payment of such item.
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ARTICLE VI
BOOKS, RECORDS, REPORTS AND ACCOUNTS
6.1 Books and Records.
(a) At all times during the term of this Agreement, Service
Provider shall maintain at the Contract Office, a complete and accurate
set of files, books and records of all business activities and
operations conducted by Service Provider in connection with Service
Provider's performance under this Agreement. Service Provider shall
make its files, books and records relating solely to the Assets
available during normal business hours to Investor.
(b) Service Provider's records and accounts shall reflect,
with respect to each Asset and with respect to all operations of
Investor, all items of income and expense with respect to each such
Asset, as well as information regarding the status of each such Asset,
including appropriate appraisal, marketing, environmental, engineering
and other information.
(c) Service Provider shall maintain and prepare all accounts
required under this Agreement on a cash basis in accordance with US
Generally Accepted Accounting Principles (or, upon written request from
Investor in accordance with PRC GAAP) consistently applied. Upon
written request from Investor, Service Provider shall provide Investor
for the last calendar quarter of a year with the information necessary
to satisfy such cash accounting needs as Investor may have.
(d) Service Provider must ensure that it maintains a copy of
all of Service Provider's books, records and other Service Provider
generated documents, including documents generated by Third-Party
Contractors retained by Service Provider and will procure if Investor
so requests, at Investor's cost and expense, an English translation of
such documents.
6.2 Reports; Audit.
(a) As soon as practicable but in any event by the fifteenth
(15th) day of each month, Service Provider shall prepare and deliver to
Investor reports substantially in the form attached hereto as Exhibit B
(as amended from time to time upon written agreement of both Investor
and Service Provider) with respect to the prior month. Further, the
parties acknowledge that during this period, Investor may request minor
changes in the reports that shall be performed at no cost to Investor.
In addition, Service Provider shall promptly inform in writing Investor
of all material developments regarding any Asset with an without
waiting for the monthly reports. The forms of the reports specified in
Exhibit B may be reasonably amended by the Investor, from time to time
and in such event Service Provider shall be entitled to a reasonable
time period before it is required to provide reports on such amended
forms.
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(b) At Investor's request and expense, Service Provider shall
cause a firm of independent public accountants reasonably acceptable to
Investor to furnish to Investor a statement to the effect that such
firm has examined certain documents and records relating to the
servicing of the Loans and is of the opinion that, on the basis of such
examination, Service Provider's servicing is and has been conducted in
compliance with the provisions of this Agreement, except for (i) such
exceptions as such firm shall believe to be immaterial and (ii) such
other exceptions as shall be set forth in such statement.
(c) Upon Investor's request, Service Provider shall provide
for the electronic transfer of all reports required pursuant to
subsection (a) of this Section 6.2 and any servicing or other data
regarding the Assets as Investor shall request.
6.3 Investor's and Service Provider's Rights to Examine the Other's
Records. From time to time during the term of this Agreement and during the
twelve (12) month period following the expiration or termination of this
Agreement, each party and their duly authorized agents, representatives or
employees may, upon three (3) Business Days reasonable prior notice to the
other, examine, audit and copy, during business hours or at such other times as
might be reasonable under applicable circumstances, any and all of the books,
records, files, or other information which was produced to perform this
Agreement or was received from third parties relating to the Assets, whether
held by such party or by another on its behalf. Investor and Service Provider
shall each treat as confidential any non-public information obtained during such
examination or in performing any obligations hereunder; provided, however, that
Investor or Service Provider may disclose such information if required to do so
by law or by any regulatory authority after giving notice to the other that it
is required to make such disclosure.
6.4 Service Provider Shall Provide Information as Required by Investor.
Service Provider shall furnish to Investor, during the term of this Agreement,
such periodic, special or other reports or information in relation to the
Assets, whether or not provided for herein, as shall be necessary or reasonable,
all such reports or information to be provided by, and in accordance with, such
applicable instructions and directions as Investor may reasonably require
6.5 Records Pertaining to Particular Assets. Service Provider's records
and accounts shall reflect, with respect to each Asset, all items of expense
incurred by Service Provider with respect to the management of such Asset, as
well as information regarding the status of each such Asset, including
appraisal, marketing, environmental, engineering and other information.
6.6 Retention of Records. Unless returned to the other party or
otherwise disposed of in accordance with the direction of the other party, for a
period of not less than thirty six (36) months after the date of termination or
expiration of this Agreement, each party shall continue to maintain all files
and records pertaining to the performance of this Agreement.
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ARTICLE VII
THIRD PARTY CONTRACTS
7.1 Third-Party Agreements. Service Provider shall advise Investor as
to the necessity or desirability of entering into agreements (whether identified
pursuant to this Section 7.1, "Third-Party Contracts"), at with Investor's prior
written consent and at Investor's expense, with third parties (whether
identified pursuant to this Section 7.1 or in the Business Plans, "Third-Party
Contractors") to perform the duties specified in this Section 7.1 and other
duties Service Provider reasonably deems necessary with respect to the Assets
and which duties are customarily performed by a third party. With Investor's
prior written consent, Service Provider may enter into Third Party Contracts
meeting the criteria set forth in (a) through (k) below:
(a) Legal/Audit/Valuation/Tax Services;
(b) Title Work;
(c) Financial Investigation Services;
(d) Commission Brokerage Services for Sales and Leasing of REO
Property;
(e) Marketing, Signage, Advertising and Printing Services for
REO Property;
(f) Surveying Services;
(g) Environmental Consulting Services;
(h) Property Management and Maintenance Services;
(i) Real estate tax challenge counsel, consultants or other
services;
(j) General Construction and Construction Subcontracting
Services; and
(k) Architectural/Engineering/Construction Consulting
Services.
Service Provider shall not be liable for:
(a) the misconduct of the third parties it is entitled to
engage as provided above in this Section 7.1 if :
(1) such third parties were approved by Investor or
(2) Service Provider was not negligent in the
selection of such third parties; or
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(b) anything done, suffered or omitted in good faith by it in
accordance with the advice or opinion of such third parties which are
attorneys, accountants or other independent experts;
provided that Service Provider procures the services for the benefit of
Investor, such that Investor has an enforceable cause of action against the
third party for any breach of contract, misconduct, negligence or default by
such third party. The provisions of the foregoing sentence shall not relieve
Service Provider of any obligations to otherwise perform in accordance with the
Servicing Standard.
7.2 Approval of Third-Party Contractors. Prior to Service Provider engaging a
Third-Party Contractor, Service Provider shall submit to Investor for its review
and approval (i) the name of the Third-Party Contractor, (ii) a description of
the Third-Party Contractor's company, (iii) a description of the services to be
rendered and (iv) the fees or rate to be charged by the Third-Party Contractor.
ARTICLE VIII
SERVICE PROVIDER'S COMPENSATION
8.1 Asset Management and Servicing Fee. As compensation for its
services hereunder Service Provider shall be entitled to be paid a fee by
Investor each month in arrears during the term of this Agreement, beginning on
the Effective Date, in an amount equal [redacted pursuant to confidentiality
request] (US$[ ]) per month; pro-rated for the first and last month of this
Agreement (the "Servicing Fee") and a fee in an amount equal to [redacted
pursuant to confidentiality request] percent ([ ]%) of all collections and
recoveries relating to the Assets received by Investor (as determined by
Investor in its reasonable discretion) from the Effective Date until Closing
Date less all fees, costs and expenses incurred by or on behalf of Investor in
respect of such recoveries during such period (the "Collection Fee").
8.2 Payment of Compensation. Service Provider shall deliver to Investor
an invoice for the Servicing Fee on or around the 15th each month relating to
the preceding calendar and Investor shall pay to Service Provider the Servicing
Fee, no later than 10 Business Days after receipt of such invoice. Investor
shall pay the Collection Fee promptly after the Closing Date.
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8.3 Due Diligence Costs and Other Fees. Promptly upon receipt of an
invoice from Service Provider, Investor shall pay Service Provider (i) on or
after the Effective Date, a fee of One Hundred Thousand and no/100 Dollars
(US$100,000.00) , (ii) on or after the Effective Date, a fee of [redacted
pursuant to confidentiality request] (US$[ ]) representing [redacted pursuant to
confidentiality request] percent ([ ]%) of all of all collections and recoveries
relating to the Assets received by Investor (as determined by Investor in its
reasonable discretion) from March 31, 2002 to and including the Effective Date
less all fees, costs and expenses incurred by or on behalf of Investor in
respect of such recoveries on the Effective Date and (iii) On or after the
Closing Date, One Hundred Thousand and Fifty Thousand and no/100 Dollars
(US$150,000.00).
8.4 Audit Report.
(a) During the term of this Agreement, Investor may at any
time during the Term cause Investor's Auditors to prepare a written
report ("Audit Report") and internal control letter at Investor's
expense, stating whether any costs incurred under Third-Party Contracts
paid for by Service Provider during the fiscal year was inaccurate in
any material respect, and if so, specifying the inaccuracies and the
effect of such inaccuracies on any amounts previously paid to Service
Provider.
ARTICLE IX
INVESTOR'S DUTIES
9.1 Designate Representatives. On the date of this Agreement, and as
necessary from time to time thereafter, Investor shall designate in writing at
least two representatives (and continue to have designated at least two
representatives at all times during the Term of this Agreement) with whom
Service Provider shall communicate, request consent or approval and provide
notice as required under this Agreement, regarding all issues pertaining to the
Assets. Investor's initial representatives shall be Xxxx Xxxxxx and Xxxxxxx
Xxxx. Service Provider shall contact all of the Investor representatives to
submit a notice or request for approval. It shall be the obligation of such
representatives to communicate on the matter with the Investor and/or other
representatives and, in the case of a consent or approval item, to secure the
written consent or approval (or disapproval as the case may be) from the
remainder of the representatives and provide Service Provider with Investor's
written consent or approval (or disapproval as the case may be) on the matter.
Unless Investor notifies Service Provider otherwise in writing, an action of
Investor as contemplated by this section shall require the written authorization
of two (2) representatives of Investor; notwithstanding this, however, Service
Provider may rely on a communication from any one Investor Representative as
being unanimous authorization unless such communication indicates otherwise.
Such representatives, acting as provided herein, shall have authority to act on
behalf of Investor on any and all matters requiring Investor's consent or
approval or receipt of notice hereunder.
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9.2 Furnish Loan Files, Information and Cooperation with Service
Provider. As of the date of execution of this Agreement or as soon thereafter as
may be practicable, Investor shall use its reasonable best efforts to deliver or
otherwise provide to Service Provider original or copies of all Loan Files,
documents, correspondence, data, reports, information and items in its
possession or control pertaining to the Assets received from Seller. Investor
shall thereafter furnish Service Provider material information required of
Investor and otherwise provide cooperation and assistance to Service Provider to
permit the orderly performance of Service Provider's duties under this
Agreement. Service Provider shall not be liable for any of its failures or
delays in performance under this Agreement to the extent caused by the failure
to receive or a delay in receiving the information or cooperation described
above in this Section 9.2.
9.3 Compensate Service Provider. Investor shall timely compensate
Service Provider for its services under this Agreement in accordance with the
provisions of this Agreement.
9.4 Requests for Approval by Investor. Investor shall act promptly with
respect to any written request by Service Provider for approval of any action
proposed to be taken by Service Provider recommendation of the action, which
should be taken, and reasonable alternative courses of action, requesting
Investor's approval of the action recommended by Service Provider.
ARTICLE X
INDEMNIFICATION
10.1 Service Provider's Indemnity. As a material inducement to Investor
to enter into this Agreement, Service Provider hereby unconditionally and
irrevocably covenants and agrees to indemnify and hold harmless Investor, its
Affiliates, successors and assigns, and all of its and their officers,
directors, shareholders, partners, agents, employees (including "contract"
employees) and controlling Persons (collectively, "Investor Indemnitees")
against any and all claims, losses, penalties, fines, forfeitures, judgments,
reasonable attorneys' fees and related litigation costs, fees and expenses and
amounts paid in settlement (collectively, "Investor Losses") actually and
reasonably incurred in connection with any claim(s) against any Investor
Indemnitee which are finally determined to have been caused by Service
Provider's negligence, bad faith or willful misconduct in connection with
Service Provider's performance under this Agreement, unless the relevant actions
were taken with the express consent of Investor; provided, however, if and to
the extent that such Investor Losses are covered and actually paid by insurance,
the Investor Indemnitees shall not also be entitled to recover that amount under
this indemnity. For the avoidance of doubt, neither the Investor nor any
Investor Indemnitee shall be required to first claim under insurance in respect
of any Investor Losses covered by this indemnity.
Page 15
Service Provider further covenants and agrees to make full and timely payment to
each and every Investor Indemnitee of any reasonable expenses (including
reasonable attorneys' fees) which such Investor Indemnitee may incur in the
enforcement of this Section against Service Provider.
10.2 Investor's Indemnity. As a material inducement to Service Provider
to enter into this Agreement, Investor hereby unconditionally and irrevocably
covenants and agrees to indemnify and hold harmless Service Provider, its
Affiliates, successors and assigns, and all of its and their officers,
directors, shareholders, agents, employees (including "contract" employees) and
controlling persons (collectively, "Service Provider Indemnitees") against any
and all claims, losses, penalties, fines, forfeitures, judgments, reasonable
attorneys' fees and related litigation costs, fees and expenses and amounts paid
in settlement (collectively, "Service Provider Losses") actually and reasonably
incurred in connection with any claim(s) against any Service Provider Indemnitee
which result from or are based upon actions taken with the express consent to
Investor or which otherwise arise from or relate to the Assets, this Agreement
or Service Provider's performance (or lack of performance) under this Agreement,
unless and to the extent such Service Provider Losses are finally determined to
have been caused by Service Provider's negligence, bad faith or willful
misconduct in connection with Service Provider's performance under this
Agreement or Service Provider's breach of or default under this Agreement;
provided, however, that if and to the extent that such Service Provider Losses
are covered and actually paid by insurance the Service Provider Indemnitees
shall not be also entitled to recover that amount under this indemnity. For the
avoidance of doubt neither the Service Provider nor any Service Provider
Indemnitee shall be required to first claim under insurance in respect of any
Service Provider Losses covered by this indemnity.
Investor further covenants and agrees to make full and timely payment to each
and every Service Provider Indemnitee of any reasonable expense (including
reasonable attorney's fees) which such Service Provider Indemnitee may incur in
the enforcement of this Section against Investor.
10.3 Indemnity Procedures. If any claim shall be asserted, or any
action, suit or other proceeding shall be instituted, by a third party against
any Indemnitee (each an "Indemnified Party"), with respect to any occurrence as
to which the other party (an "Indemnifying Party") shall have any indemnity
obligation under this Agreement, such Indemnified Party shall promptly notify
Indemnifying Party of the assertion of such claim, action, suit or proceeding
and shall tender the defense and, subject to this Section 10.3, settlement or
compromise of any such claim, action, suit or proceeding to Indemnifying Party
for conduct thereof by Indemnifying Party. In respect of a third party claim
against Service Provider, pending a final determination between the parties with
respect to a particular matter, Service Provider shall be presumed to be the
Indemnified Party with respect to such matter, unless Investor has determined in
good faith that it is not liable to indemnify Service Provider under this
Agreement and has provided a written notice to Service Provider to this effect
including a brief summary of the reasons for this position. Indemnifying Party
shall timely commence and diligently continue such defense, settlement or
compromise at Indemnifying Party's sole expense.
10.4 Recovery of Costs in Resolving Disputes. In the event any
dispute between the parties to this Agreement shall result in litigation,
arbitration or other proceeding, the court shall
Page 16
have the discretion to award to the prevailing party all reasonable costs and
expenses, including without limitation reasonable attorneys' fees and
disbursements, incurred by the prevailing party in connection with such
litigation or other proceeding and any appeal thereof. Such costs, expenses,
fees and disbursements shall be included in and made a part of the judgment
recovered by the prevailing party, if any.
ARTICLE XI
INSURANCE
11.1 Liability Insurance. Service Provider shall obtain and maintain at
all times during the term of this Agreement comprehensive general liability,
professional liability, automobile liability, workers' compensation and other
insurance to protect the interest of Service Provider in connection with the
performance of this Agreement. As soon as practicable after the date of this
Agreement, Service Provider shall cause to be delivered to Investor a statement
from the insurance company that such policy shall in no event be terminated or
materially modified by the insurance company without 30 days' prior written
notice to Investor.
11.2 Issuer; Policy Terms; Notice of Cancellation. The issuer, policy
terms and forms, and coverage with respect to all insurance required pursuant to
this Article shall be subject to the reasonable approval of Investor. Service
Provider agrees to notify Investor, or to cause Investor to be notified, in
writing immediately and in addition to the notice to Investor provided for in
Section 11.1, and in no event within more than ten (10) days, of the notice of
cancellation or termination of any such coverage by the issuer and shall
immediately obtain new insurance in accordance with this Article XI.
11.3 Evidence of Insurance. On the effective date of this Agreement,
Service Provider shall provide to Investor for approval copies of policies,
certificates of insurance or other proof evidencing its insurance coverage as
required under this Article XI.
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ARTICLE XII
TERMINATION OF AGREEMENT: PROCEDURES UPON
TERMINATION OR EXPIRATION OF AGREEMENT
12.1 Termination.
(a) Events of Default. Each party ("Non-Defaulting Party) may
terminate this Agreement by written notice to the other party
("Defaulting Party") at any time following the occurrence of an Event
of Default by the Defaulting Party. As used herein, the term "Event of
Default" by the Defaulting Party shall mean the occurrence of one or
more of the following:
(1) the failure of the Defaulting Party to maintain
insurance as required by Article XI and the other provisions
of this Agreement;
(2) the failure by the Defaulting Party to pay or
transfer monies when and as payment shall be required pursuant
to the terms of this Agreement;
(3) the failure by the Defaulting Party to perform
any of its non-monetary obligations in accordance with the
terms of this Agreement or breach of a representation or
warranty hereunder;
(4) the filing of a petition in bankruptcy or for
reorganization pursuant to bankruptcy, insolvency or any
similar law, US, Hong Kong or other jurisdiction by the
Defaulting Party, or the adjudication by decree of a court of
competent jurisdiction that any party is a bankrupt, or is
declared insolvent, or if the Defaulting Party shall make an
assignment for the benefit of creditors, or is unable to pay
its debts generally as they become due, or shall consent to
the appointment of a receiver or receivers of all or any part
of its property;
(5) the filing of a petition in bankruptcy against
the Defaulting Party or for reorganization of the Defaulting
Party to this Agreement pursuant to bankruptcy, insolvency or
any similar law, federal or state, and if such petition shall
not be discharged or dismissed within sixty (60) days after
the date on which such petition was filed or if a receiver or
trustee is appointed for or attachment is made by a creditor
of the Defaulting Party upon substantially all of or a
material portion of the assets of the Defaulting Party and
such receivership or attachment is not discharged within sixty
(60) days of such appointment;
(6) a creditor executes upon, forecloses or otherwise
involuntarily acquires, otherwise receives in satisfaction of
an obligation or obtains a judgment lien against substantially
all of or a material portion of the assets of the Defaulting
Party;
Page 18
(7) any fraud, material dishonesty or material
misconduct of the Defaulting Party;
(8) a change in the ownership of fifty percent (50%)
of the Service Provider without the prior written consent of
the Investor; or
(9) the Defaulting Party regularly or habitually
commits a breach of this Agreement and has received its third
written notice of such breach from the Non-Defaulting Party
setting out in reasonably specificity the details of the
breach and stating that it intends to exercise its right to
terminate this Agreement under this Section if any further
breaches occur.
(c) Termination If Purchase Agreement Does Not Close. This
Agreement shall terminate in the event that the Purchase Agreement is
terminated.
12.2 Notice of Default. In the event of the occurrence of an Event of
Default, the Non-Defaulting Party shall provide the Defaulting Party
written notice setting forth the nature of such Event of Default and
that the Non-Defaulting Party may terminate this Agreement by written
notice, which termination shall be effective upon receipt of the notice
or upon the date specified in the notice.
12.3 Effect of Termination.
(a) Upon the termination of this Agreement, Investor's
appointment of Service Provider shall terminate, but the
termination of this Agreement for any reason shall not
affect any right, obligation or liability that has accrued
under this Agreement prior to the date of termination except
for any obligation which cannot reasonably be performed by
Service Provider if Service Provider is no longer employed
by Investor (i.e., no access to files and records of Assets,
etc.) provided Service Provider notifies Investor promptly
upon learning that any such obligation has arisen and that
Service Provider cannot reasonably perform such obligation
for such reason.
(b) In the event of an Investor termination pursuant to Section
12.1, Investor shall pay Service Provider (i) on or before
ten (10) days following the date of termination, a sum of
money equal to the Servicing Fee and Collection Fee for the
month of the termination, pro rated to the date that the
notice of termination was given.
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(c) In the event Service Provider terminates this Agreement
under Section 12.1, Service Provider agrees that if the
Investor has used its best efforts in good faith prior to
termination to locate a substitute Service Provider, and has
been unable to do so prior to the date for termination,
Investor may, not less than thirty (30) days prior to that
date, serve a notice on Service Provider requiring Service
Provider to continue the services under this Agreement for a
further 60 days. Service Provider shall comply with such
notice and the Agreement shall continue until the end of the
60 day extension.
12.4 Procedures upon Expiration or Termination. Upon the expiration or
termination of this Agreement, Service Provider, as directed by Investor, either
(a) will within ten (10) Business Days immediately deliver all documents, files,
books, paper, accounts, and computer files relating to the Assets (the
"Records") that are in Service Provider's possession or control to the control
of Investor who shall be deemed Investor of all such materials throughout this
Agreement and thereafter, which Records shall be transported in the manner
requested by Investor and at the cost of Investor. Service Provider shall
prepare and deliver notices to all borrowers and tenants of such change in
payment instructions, if any, as Investor shall direct and to all other parties
(including tax authorities) affected by such termination of any change in
billing address as Investor shall in writing direct.
12.5 Duty of Cooperation. Upon the expiration or termination of this
Agreement, the parties will cooperate with each other to effect an efficient and
smooth transition of responsibility with respect to the Assets and the Loans.
12.6 Termination and Arbitration. The Service Provider and Investor
agree that if either party challenges the termination or expiration of this
Agreement under the dispute resolution procedures set forth in Section 14, this
shall not postpone or delay the termination or expiration of this Agreement
beyond the time periods set out in this Agreement.
ARTICLE XIII
REPRESENTATIONS, WARRANTIES AND COVENANT OF SERVICE PROVIDER
13.1 Representations and Warranties. Service Provider represents and
warrants to Investor that as of the date of this Agreement:
(a) Service Provider (A) is a corporation, duly organized,
validly existing and in good standing under the laws of Hong Kong;
(b) Service Provider has the full power and authority to
execute, deliver and perform all transactions contemplated by this
Agreement, and Service Provider has duly authorized the execution,
delivery and performance of this Agreement, and has duly executed and
delivered this Agreement;
Page 20
(c) The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the
performance of or compliance with the terms and conditions of this
Agreement will not conflict with or result in a breach of or default
under any of the terms, conditions or provisions of Service Provider's
articles of incorporation or by-laws or any agreement or instrument to
which Service Provider is now a party or by which it is bound, or any
applicable law, the breach or violation of which would materially
impair Service Provider's ability to perform under this Agreement;
(d) Service Provider can perform each and every covenant to be
performed by it contained in this Agreement in all material respects
and the obligations expressed to be assumed by it in this Agreement are
legal and valid obligations binding on it and enforceable against it in
accordance with the terms of this Agreement;
(e) There is no litigation pending against Service Provider,
or, to Service Provider's knowledge, threatened, which, if determined
adversely to Service Provider, would adversely affect the ability of
Service Provider to service the Loans or any REO Property hereunder in
accordance with the terms hereof or which would have a material adverse
effect on the financial condition of Service Provider;
(f) Service Provider has or will have at the time of
performance all licenses, authorizations, consents, approvals and
permits required by applicable laws in order to perform its obligations
under this Agreement, and otherwise complies with all laws material and
applicable to the performance of those obligations;
(g) No representation, warranty or statement of Service
Provider in this Agreement is untrue or inaccurate in any material
respect; and
(h) Service Provider has not taken any corporate action nor
have any other steps been taken or legal proceedings been started or
(to the best of its knowledge and belief) threatened against Service
Provider for its winding-up, dissolution, administration or
re-organization (whether by voluntary arrangement, scheme of
arrangement or otherwise) or for the appointment of a receiver,
administrator, administrative receiver, conservator, custodian, trustee
or similar officer of it or of any or all of its assets or revenues.
13.2 Covenant. Service Provider shall obtain, maintain and comply with
the terms of all licenses, authorizations, consents, approvals and permits
required by applicable laws the violation of which would materially impair its
ability to perform its obligations under this Agreement.
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ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 No Partnership Intended. Nothing in this Agreement shall be deemed
or construed to create a co-partnership or joint venture between the parties
hereto.
14.2 Entire Agreement. This Agreement embodies the entire Agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, representations, warranties,
covenants or undertakings other than those expressly set forth or referred to
herein. This Agreement supersedes any and all prior agreements and
understandings between the parties or either of the parties and any Affiliate of
any party with respect to such subject matter save that the memorandum entered
into by the Investor and the Service Provider on May 22, 2003 shall continue to
remain in full force and effect and binding on the parties so long as the
Service Provider performs its obligations hereunder. Upon a breach by the
Service Provider of its obligations hereunder, the Investor shall have the
right, upon notice in writing to the Service Provider, to terminate the
memorandum.
14.3 Amendment; Counterparts. This Agreement may only be amended in
writing signed by both of the parties. This Agreement and any amendment hereto
may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
14.4 Benefit and Burden.
(a) This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and
assigns; provided, however, that neither party may assign this
Agreement without the prior consent of the other party hereto except to
an Affiliate of the assigning party (which Affiliate shall expressly
assume the obligations of the assigning party), provided such Affiliate
assignment shall not relieve the assigning party from any liability
hereunder and such Affiliate has all requisite license(s) required, if
any, to perform its obligations under this Agreement and has obtained
any and all authorizations from relevant authorities (including with
respect to maintenance of ABS Plan approval) required for such
assignment. For purposes of this provision, the sale or transfer of a
controlling interest in Service Provider or its parent shall not
constitute an assignment or transfer of rights or benefits under this
Agreement.
(b) Notwithstanding any provision to the contrary, Investor
shall have the right to assign this Agreement to a lender to secure
Investor's obligation to repay a loan from such lender to Investor,
provided that any such assignment shall provide that Service Provider
shall not be required to perform any of its obligations hereunder
unless the obligations of Investor have been and are being fully
performed in all material respects.
(c) Except as may otherwise be expressly provided herein,
nothing contained in or referred to in this Agreement is intended or
shall be construed to give any Person
Page 22
other than parties hereto any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provisions hereof,
it being the intention of the parties hereto that this Agreement, the
assumption of obligations and statements of responsibilities in this
Agreement and all other conditions and provisions of this Agreement
are for the sole and exclusive benefit of the parties hereto and for
the benefit of no other Person.
14.5 Transactions with Affiliates. Service Provider may enter into
transactions with or otherwise deal with any of its Affiliates in carrying out
its obligations under this Agreement; provided, however, that Investor shall
have given prior written consent to such transactions or dealings and the terms
thereof if Investor will be expected to bear the expenses of such Affiliates.
All such transactions under the proviso in this Section shall be on an
arm's-length basis and at market rates.
14.6 Notices. Any report, demand, notice or other communication
required or permitted to be given hereunder shall be in writing, and shall be
delivered personally, by facsimile transmission or telecopy (with a hard copy
and a transmission confirmation sent by a recognized overnight national carrier
service (such as Federal Express) for next Business Day delivery) or by a
recognized overnight national courier service (such as Federal Express) for next
Business Day delivery or shall be sent by certified or registered mail, return
receipt requested, first-class postage prepaid to the parties at the addresses
set forth below (or to such other addresses as the parties may specify by due
notice to the other):
If to Investor: Citigroup Financial Products Inc.
00xx Xxxxx
0 Xxxxxxxx Xxxxxx, Xxxx Xxxx
Attn: Xxxx Xxxxxx/Xxxxxxx Xxxx
Fax: 000-0000-0000
If to Service Provider: XxxxxXx.xxx Inc.
Room 0000, 00xx Xxxxx
Xxxxx X, Xxx Xxxxx Xxxxxxxxxx Xxxxxxxx
00-00 Xxxx Xx Xxxx, Xxxxxxx, Xxxx Xxxx
Attn: Xxx Xxx / Xxxxxx Xxx
Fax.: 000-0000-0000
Any notice delivered to a party's designated address by (a) personal delivery,
(b) recognized overnight national courier service, or (c) registered or
certified mail, return receipt requested, shall be deemed to have been received
by such party at the time the notice is delivered to such party's designated
address. Confirmation by the courier delivering any notice given pursuant to
this Section shall be conclusive evidence of receipt of such notice. Each party
hereby agrees that it will not refuse or reject delivery of any notice given
hereunder, that it will acknowledge, in writing, receipt of the same upon
request by any other party and that any notice rejected or refused by it shall
be deemed for all purposes of this Agreement to have been received by the
rejecting party on the date so refused or rejected, as conclusively established
by the records of the U.S. or Korean Postal Service or the courier service. Any
notice delivered to a party's
Page 23
designated address by facsimile or telecopy (with a hard copy confirmation as
required above) shall be deemed received by such party on the date sent, unless
the time of receipt by the recipient is other than normal business hours in
which case it shall be deemed received on the next Business Day.
14.7 Severability. The invalidity or unenforceability of any provision
of this Agreement shall not impair the validity or enforceability of any other
provision.
14.8 Governing Law. This Agreement shall be governed by, and shall be
construed in accordance with Hong Kong law..
14.9 Headings. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
14.10 No Waiver. No waiver of breach shall be effective against either
party unless it is in writing, signed by that party. No waiver by either party
of any breach of any term or covenant contained in this Agreement shall operate
as a waiver of such term or covenant itself, or of any subsequent breach
thereof.
14.11 Survival. The terms, conditions and covenants contained in this
Agreement which, by their terms, require their performance after the expiration
or termination of this Agreement shall be enforceable notwithstanding the
expiration or other termination of this Agreement, including without limitation
(a) the parties' respective indemnity and other obligations under Article X, (b)
the representations and warranties of the Service Provider set forth in Articles
XIII to the extent necessary for either party's discharge of its
post-termination payment and performance obligations and to the extent the
breach of the same by a party creates any third party liability of the other
party which arises or is pursued after the expiration or termination of this
Agreement, (c) provisions of this Agreement relating to the availability and
maintenance of books and records, and to resolution of disputes; (d) Service
Provider's right to amounts earned or reimbursable prior to or concurrent with
termination; and (e) the confidentiality obligation contained in Section 14.13.
14.12 Limitation of Recourse. There shall be no liability under this
Agreement of, nor any recourse under this Agreement to, any officer, director,
shareholder, affiliate, employee or agent of either party to this Agreement
except as set forth herein.
14.13 Confidentiality. Service Provider agrees not to disclose any of
the acquisition prices, values or disposition prices relating to the Assets to
be serviced pursuant to the terms of this Agreement, or other non-public
information which relates to Investor which Service Provider obtains in the
course of performing its obligations or receiving the benefits under this
Agreement and Investor agree not to disclose any of Service Provider's servicing
fees, methods or software or other technology or other non-public information
which relates to Service Provider which Investor obtains in the course of
Service Provider performing its obligations or receiving the benefits under this
Agreement; provided that such disclosure may be made by a party (a) to any
person who is a partner, officer, director of employee of such party or counsel
to
Page 24
or accountants of the disclosing party, provided they agree to comply with
the confidentiality obligations hereunder (b) with the prior consent of the
other party, (c) pursuant to a statute, rule or regulation or subpoena or order
issued by a court, arbitrator or governmental body, agency or official or (d)
following a time after which such information has become publicly available
other than by an act of, or failure to act by, the disclosing party.
In the event that the Service Provider shall receive a request to disclose any
of the terms of this Agreement under a subpoena or order, it shall (i) promptly
notify Investor thereof, (ii) consult with Investor on the advisability of
taking steps to resist or narrow such request and (iii) if disclosure is
required or deemed advisable, cooperate with Investor in any attempt it may make
to obtain an order or other assurance that confidential treatment will be
accorded those terms of this Agreement that are disclosed.
14.14 Cooperation in Good Faith. Notwithstanding anything to the
contrary contained herein, each party hereto agrees that it will deal with the
other party fairly and in good faith in all matters under this Agreement.
14.15 Further Assurances. Each Party agrees to execute and deliver such
additional documents and to take such additional actions as may be necessary or
appropriate to effect the provisions of this Agreement and all transactions
contemplated hereby, including, without limitation, any amendments to the Asset
Securitization Plan that may be necessary or appropriate from time to time to
reflect the transactions contemplated hereby.
14.16 Interpretation. In this Agreement headings and boldings are for
convenience only and do not affect the interpretation of this agreement and,
unless the context otherwise requires:
(a) other parts of speech and grammatical forms of a word or
phrase defined in this Agreement have a corresponding meaning;
(b) words importing the singular include the plural and vice
versa, words importing a gender include any gender and any expression
importing a natural person includes any company, partnership, joint
venture, association or corporation;
(c) a reference to a document includes all amendments or
supplements to, or replacements or novations of, that document and a
reference to a party to a document includes that party's successors and
permitted assigns;
(d) a reference to a body other than a party to this Agreement
(including an institute, association or authority), whether statutory
or not which ceases to exist or whose powers or functions are
transferred to another body is a reference to the body which replaces
it or which substantially succeeds to its powers or functions;
(e) the use of the word includes or including (or similar) in
a clause as an introduction to a list of things, does not limit the
clause to that list or to things of a similar type;
Page 25
(f) a reference to a part, section, clause, party, annex,
exhibit or schedule is a reference to a part, section and clause of,
and a party, annex, exhibit and schedule to, this Agreement;
(g) a reference to any statute or regulation includes all
statutes and regulations amending, consolidating or replacing them, and
a reference to a statute includes all regulations, proclamations,
ordinances and by-laws issued under that statute; and
(h) a reference to a notice or written consent shall include
communications via e-mail.
[Signature Page(s) follows]
Page 26
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
INVESTOR:
CITIGROUP FINANCIAL PRODUCTS INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
Page 27
SERVICE PROVIDER:
XXXXXXX.XXX INC.
By: /s/ Xxx Xxx
--------------------------------
Name: Xxx Xxx
Title: Director
Page 28
LIST OF EXHIBITS AND SCHEDULE
Exhibit A Description of Assets
Exhibit B Business Plan Template
Exhibit C Monthly Reports
EXHIBIT A
Description of Assets and Allocated Purchase Price
To be mutually agreed upon by the Effective Date based on the assets purchased
and purchase price paid under the Purchase Agreement.
EXHIBIT A-1
DESCRIPTION OF LOANS
EXHIBIT B
Business Plan Template
EXHIBIT C
Monthly Reports
