EXHIBIT (10)(I)
AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into as of the
_____ day of March, 2002 by and between LIFE INVESTMENT FUNDING ENTERPRISES,
INC., a Nevada corporation (the "Company") and RESOURCE FUNDING GROUP, INC., a
Georgia corporation ("RFG").
WITNESSETH:
WHEREAS, the Company is in the business of purchasing issued and
outstanding life insurance policies and/or beneficial interests in such life
insurance policies at a discount, i.e., viatical settlements, non-conforming
life settlements, senior settlements and similar transactions ("Viaticals"); and
WHEREAS, RFG is a Viatical Settlement Company duly registered in the
State of Texas; and
WHEREAS, the Company, subject to the terms and provisions of this
Agreement, wishes to engage RFG as its exclusive source for obtaining Viaticals
to be purchased by the Company and RFG has agreed to act as such exclusive
source of Viaticals for the Company on the terms and conditions hereinafter set
forth; and
WHEREAS, the Company wishes to engage RFG as its non-exclusive sales
agent for Viaticals to be sold by the Company and RFG has agreed to act as such
non-exclusive sales agent of Viaticals for the Company on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. RECITALS. The above recitals are true and correct and are
incorporated by reference herein.
2. ENGAGEMENT. The Company has and does hereby hire and engage RFG as
its exclusive source for Viaticals to be purchased and/or sold from time to time
by the Company and RFG hereby accepts such engagement.
3. TERM. The term of this Agreement shall be for five (5) years and
shall commence on the date of the first Viatical purchase which is consummated
under the auspices of this Agreement between the Company and Resource and end on
a date which is five years from the date of the first Viatical purchase.
Thereafter, this Agreement shall be extended automatically on a year to year
basis unless terminated as provided for herein.
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4. COMPENSATION TO RFG. In connection with the purchase and sale of
Viaticals by the Company utilizing the services of RFG under this Agreement, the
Company shall pay to RFG the following compensation:
4.1 UPON PURCHASE OF VIATICALS. The Company shall pay RFG for each
Viatical purchased by the Company hereunder a market rate acquisition fee equal
to a maximum of nine percent (9%) of the face amount (benefit payable upon the
death of the insured) of each Viatical purchased by the Company, as such face
amount exists on the date of delivery of a Viatical by RFG to the Company, and
depending on and taking into account the nature, status and type of Viatical
being purchased by the Company through RFG.
4.2 UPON SALE OF A VIATICAL. Upon the sale of a Viatical by the Company
utilizing the services of RFG, the Company shall pay to RFG a sales fee equal to
two percent (2%) of the face amount (benefit payable upon the death of the
insured) of each Viatical sold by the Company utilizing the services of RFG, as
such face amount exists on the date of delivery of a Viatical by the Company to
RFG (or to persons or entities designated by RFG).
4.3 ADJUSTMENTS TO ACQUISITION AND SALES FEES. The Company and RFG
acknowledge that the acquisition and sales fees provided in this Section 4 are
(a) commercially reasonable and (b) fairly relate to fees and charges possibly
obtainable by the Company in the marketplace from sources other than RFG. If,
during the initial term and any renewal term of this Agreement, such is
determined by the Company acting in good faith not to be the case, then the
Company and RFG agree to conduct good faith negotiations in order to provide
appropriate adjustments to such fees. If such good faith negotiations do not
result in agreement as to any fee adjustment perceived by the Company or RFG as
necessary, then the Company or RFG, as the case may be, may institute the
arbitration procedures provided for in Sections 5.2 and 6 of this Agreement. In
no event, however, will the acquisition and sales fees be reduced to an amount
less than three percent (3%) and one percent (1%), respectively.
5. RFG'S FAILURE TO PERFORM.
5.1 RFG (as a result of the efforts of its board of directors,
officers, employees and agents) shall at all times faithfully, industriously,
and to the best of its ability perform all services required of RFG hereunder in
order to effective provide Viaticals to the Company and to sell Viaticals on
behalf of the Company.
5.2 If the Company shall come to reasonably believe RFG is in breach of
this Agreement, including, without limitation, believing on a reasonable basis
that, among other things, that RFG is incapable of providing an adequate supply
of Viaticals to the Company, or the fees provided in Section 4 are no longer
commercially reasonable, then the Company shall provide written notice of such
breach to RFG. Such written notice shall specify in reasonable detail the basis
for the determination by the Company that such breach has occurred and is
continuing. If RFG shall not dispute the Company's basis that breach has
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occurred and is continuing, it shall immediately commence action to cure the
breach and shall have thirty (30) days from receipt of such notice in which to
cure the breach or if the breach may not be cured within said thirty (30) day
period, then if RFG shall have immediately commenced to cure the breach and
actively pursued such cure, RFG shall have a reasonable time after such thirty
(30) day period has elapsed in which to cure such breach. If, upon receipt of
such notice, RFG shall dispute the Company's basis for determining that a breach
has occurred and is continuing, it shall send an Arbitration Demand Notice to
the Company and the issue of the occurrence and continuance of a breach on the
part of RFG shall be submitted to binding arbitration pursuant to Section 15.7
hereof. During the pendency of the arbitration and a final decision by the
arbitrators hearing the matter (and any appeal of such decision), this Agreement
shall remain in full force and effect except as this Agreement may be modified
by any interim order of the arbitrators. In their final decision the arbitrators
shall determine (a) whether a breach on the part of RFG has occurred and is
continuing and whether such breach constitutes a material breach of this
Agreement by RFG; (b) the monetary damages to which the Company or RFG are
entitled, if any; and (c) whether this Agreement shall (i) continue in force
pursuant to its then current provisions for the duration of this Agreement's
then current term, (ii) be continued with modified terms for the duration of
this Agreement's then current term or (iii) be terminated on the date specified
by the arbitrators in their final decision.
6. COMPANY'S FAILURE TO PERFORM. If RFG shall come to reasonably
believe that the Company is in breach of this Agreement on a continuing basis,
including, without limitation, believing on a reasonable basis that (a) the
Company is refusing to purchase Viaticals offered to the Company by RFG, (b) the
Company is violating the exclusivity provisions of this Agreement relating to
the purchase of Viaticals, and/or (c) the Company is refusing to pay when due
the compensation due RFG pursuant to Section 4 of this Agreement, then RFG shall
provide written notice of such breach to the Company. Such written notice shall
specify in reasonable detail the basis for the determination by RFG that such
breach has occurred and is continuing. If the Company shall not dispute the
allegations of breach it shall immediately commence action to cure the breach
and shall have thirty (30) days from receipt of such notice in which to cure the
breach or if the breach may not be cured within said thirty (30) day period then
if the Company shall have immediately commenced to cure the breach and actively
pursued such cure, the Company shall have a reasonable time after such thirty
(30) day period has elapsed in which to cure such breach. If, upon receipt of
such notice, the Company shall dispute RFG's determination that a breach has
occurred and is continuing, it shall send an Arbitration Demand Notice to RFG
and the issue of the occurrence and continuance of breach on the part of the
Company shall be submitted to binding arbitration pursuant to Section 15.7
hereof. During the pendency of the arbitration and a final decision by the
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arbitrators hearing the matter (and any appeal of such decision), this Agreement
shall remain in full force and effect except as this Agreement may be modified
by any interim order of the arbitrators. In their final decision the arbitrators
shall determine (a) whether breach on the part of the Company has occurred and
is continuing and whether such breach constitutes a material breach of this
Agreement by the Company; (b) the monetary damages to which the Company or RFG
are entitled, if any; and (c) whether this Agreement shall (i) continue in force
pursuant to its then current provisions for the duration of this Agreement's
then current term, (ii) be continued with modified provisions for the duration
of this Agreement's then current term or (iii) be terminated on the date
specified by the arbitrators in their final decision.
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7. COMPANY'S CONFIDENTIAL INFORMATION.
7.1 CONFIDENTIAL INFORMATION. In connection with the providing of
services hereunder, the Company may provide RFG with information concerning the
Company which the Company deems confidential (the "Confidential Information").
RFG understands and agrees that any Confidential Information disclosed pursuant
to this Agreement are trade secrets, proprietary and of great value to the
Company, which value may be impaired if the secrecy of such information is not
maintained. RFG further agrees that it will take appropriate and reasonable
security measures to preserve and protect the secrecy of such Confidential
Information, and will hold All Confidential Information in confidence and will
not disclose such Confidential Information, either directly or indirectly, to
any person or entity during the term of this Agreement or any time allowing the
expiration or termination hereof; provided, however, that RFG may disclose the
Confidential Information to an employee to whom disclosure is necessary for the
providing of services under this Agreement.
7.2 EXCLUSIONS. For purposes of this Section 7, the term Confidential
Information shall not include information which (a) becomes generally available
to the public other than as a result of a disclosure by RFG or its officers,
directors, agents or advisors, or (b) becomes available on a non-confidential
basis to RFG from a source other than the Company or its advisors, provided that
such source is not known to RFG to be bound by a confidentiality agreement with
or other obligation of secrecy of the Company or another party.
7.3 BINDING ORDER. Any provisions of this Agreement notwithstanding,
RFG shall not be precluded from disclosing any of the Confidential Information
pursuant to a valid order of any governmental or regulatory authority or
pursuant to the order of any court or arbitrator having jurisdiction over RFG.
7.4 INJUNCTIVE RELIEF. RFG agrees that, since a violation of this
Section 7 would cause irreparable injury to the Company, and that there may not
be an adequate remedy at law for such violation, the Company shall have the
right in addition to any other remedies available at law or in equity to seek
and obtain from a court of competent jurisdiction an order or orders enjoining
RFG from violating the provisions of this Section 7. The parties agree that only
a minimum bond shall be required if such court should require posting of bond as
a condition for such order or orders.
8. RFG'S CONFIDENTIAL INFORMATION.
8.1 CONFIDENTIAL INFORMATION. In connection with the providing of
services hereunder, RFG may provide the Company with information concerning RFG
which RFG deems confidential (the "Confidential Information"). The Company
understands and agrees that any Confidential Information disclosed pursuant to
this Agreement are trade secrets, proprietary and of great value to RFG, which
value may be impaired if the secrecy of such information is not maintained. The
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Company further agrees that it will take appropriate and reasonable security
measures to preserve and protect the secrecy of such Confidential Information,
and will hold all Confidential Information in confidence and will not disclose
such Confidential Information, either directly or indirectly, to any person or
entity during the term of this Agreement or any time allowing the expiration or
termination hereof; provided, however, that the Company may disclose the
Confidential Information to an employee to whom disclosure is necessary for the
providing of services under this Agreement.
8.2 EXCLUSIONS. For purposes of this Section 7, the term Confidential
Information shall not include information which (a) becomes generally available
to the public other than as a result of a disclosure by the Company or its
officers, directors, agents or advisors, or (b) becomes available on a
non-confidential basis to the Company from a source other than the Company or
its advisors, provided that such source is not known to the Company to be bound
by a confidentiality agreement with or other obligation of secrecy of RFG or
another party.
8.3 BINDING ORDER. Any provisions of this Agreement notwithstanding,
the Company shall not be precluded from disclosing any of the Confidential
Information pursuant to a valid order of any governmental or regulatory
authority or pursuant to the order of any court or arbitrator having
jurisdiction over the Company.
8.4 INJUNCTIVE RELIEF. The Company agrees that, since a violation of
this Section 8 would cause irreparable injury to RFG, and that there may not be
an adequate remedy at law for such violation, RFG shall have the right in
addition to any other remedies available at law or in equity to seek and obtain
from a court of competent jurisdiction an order or orders enjoining the Company
from violating the provisions of this Section 8. The parties agree that only a
minimum bond shall be required if such court should require posting of bond as a
condition for such order or orders.
9. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to RFG as follows:
9.1 EXISTENCE AND AUTHORITY. The Company is a corporation fully
organized and validly existing in good standing under the laws of Nevada and has
full power and authority to own its property, carry on its business as being
conducted, and to enter into and perform its obligations under this Agreement.
The Company is duly qualified as a corporation in any jurisdiction in which it
is necessary to be so qualified to transact business as such business is
currently conducted. This Agreement has been duly authorized by all necessary
corporate and other action, and has been duly executed, and delivered by the
Company, and constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights of creditors generally and to general
principals of equity.
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9.2 AUTHORIZATION OF AGREEMENT. The Company has taken all actions and
obtained all consents or approvals necessary to authorize it to enter into this
Agreement.
9.3 NO VIOLATION. The execution or delivery of this Agreement and the
performance by the Company of its obligations under this Agreement will not
conflict with, violate, constitute a breach of or a default (with the passage of
time or otherwise) under the charter or bylaws of the Company or any agreement
or other binding authority to which the Company is bound.
10. REPRESENTATIONS AND WARRANTIES OF RFG. RFG hereby represents and
warrants to the Company that as of the date hereof:
10.1 EXISTENCE AND AUTHORITY. RFG is a corporation fully organized and
validly existing in good standing under the laws of Georgia and has full power
and authority to own its property, carry on its business as being conducted, and
to enter into and perform its obligations under this Agreement. RFG is duly
qualified as a corporation in any jurisdiction in which it is necessary to be so
qualified to transact business as such business is currently conducted. This
Agreement has been duly authorized by all necessary corporate and other action,
and has been duly executed, and delivered by RFG, and constitutes the legal,
valid and binding obligation of RFG, enforceable against RFG in accordance with
its terms subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights of
creditors generally and to general principals of equity.
10.2 AUTHORIZATION OF AGREEMENT. RFG has taken all actions and obtained
all consents or approvals necessary to authorize it to enter into this
Agreement.
10.3 NO VIOLATION. The execution or delivery of this Agreement and the
performance by RFG of its obligations under this Agreement will not conflict
with, violate, constitute a breach of or a default (with the passage of time or
otherwise) under the charter or bylaws of RFG or any agreement or other binding
authority to which RFG is bound.
10.4 REQUISITE LICENSES AND PERMITS. There are presently issued and in
force with respect to RFG all requisite licenses and permits which are necessary
in order for RFG to perform its obligations under this Agreement, which licenses
and permits have been issued by any governmental or other authority having
jurisdiction over RFG and its business activities.
11. SUPPLYING INFORMATION. RFG shall cooperate with the Company in
supplying such information as may be reasonably necessary in order for the
Company to conduct its business and to prepare and file on a timely basis any
informational or other reports with any regulatory or quasi-regulatory authority
having jurisdiction over the Company, including, without limitation, any stock
exchange.
12. INDEPENDENT CONTRACTOR. RFG acknowledges that it is an independent
contractor hereunder. Accordingly, RFG shall be solely responsible for all
federal, state and local income taxes, unemployment taxes, Social Security
contributions, Worker's Compensation premiums, and all similar taxes and
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payments concerning RFG and/or any employees of RFG. The Company shall (a) not
be required to withhold any of such taxes or payments from sums to be paid
hereunder to RFG, and (b) not be liable for the payment of same to any federal,
state or municipal government or agency. The Company shall not be liable for any
injury or damage to any person or property whatsoever by reason of, or in any
manner growing out of, any of RFG's acts or failure to act hereunder.
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13. INDEMNIFICATION.
13.1 The Company shall indemnify RFG from and against any and all
expenses (including reasonable attorneys' fees), judgments, fines, claims,
causes of action, liabilities and other amounts paid (whether in settlement or
otherwise actually and reasonably incurred) by RFG in connection with such
action, suit or proceeding if (a) RFG is made a party to any action, suit or
proceeding by reason of the fact that RFG rendered advice or services or
otherwise engaged in conduct or action pursuant to this Agreement and (b) RFG
acted in good faith and in a manner reasonably believed by RFG to be in or not
opposed to the interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe its conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement or conviction shall not, of itself, create a presumption that RFG did
not act in good faith and in a manner in or not opposed to the best interests of
the Company, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that its conduct was unlawful. Notwithstanding the
forgoing, the Company shall not be obligated to indemnify RFG with respect to
any claim, issue or matter as to which RFG shall have been adjudged to be liable
for gross negligence or willful misconduct in the performance of its duties
under this Agreement unless and only to the extent that the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability, but in view of all the circumstances of the matter,
RFG is fairly and reasonably entitled to indemnity for such expenses which such
court shall deem proper.
13.2 RFG shall indemnify the Company from and against any and all
expenses (including reasonable attorneys' fees), judgments, fines, claims,
causes of action, liabilities and other amounts paid (whether in settlement or
otherwise actually and reasonably incurred) by the Company in connection with
such action, suit or proceeding if (a) RFG is made a party to any action, suit
or proceeding by reason of the fact that the Company rendered advice or services
or otherwise engaged in conduct or action pursuant to this Agreement and (b) the
Company acted in good faith and in a manner reasonably believed by the Company
to be in or not opposed to the interests of RFG, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe its conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement or conviction shall not, of itself, create a presumption that
the Company did not act in good faith and in a manner in or not opposed to the
best interests of RFG, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that its conduct was unlawful. Notwithstanding
the forgoing, RFG shall not be obligated to indemnify the Company with respect
to any claim, issue or matter as to which the Company shall have been adjudged
to be liable for gross negligence or willful misconduct in the performance of
its duties under this Agreement unless and only to the extent that the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability, but in view of all the circumstances of
the matter, the Company is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
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14. NOTICE. All notices provided by this Agreement shall be in writing
and shall be given by facsimile transmission, overnight courier, by registered
mail or by personal delivery, by one party to the other, addressed to such other
party at the applicable address set forth below, or to such other address as may
be given for such purpose by such other party by notice duly given hereunder.
Notice shall be deemed properly given on the date of the delivery:
To the Company: J. Xxxxxxx Xxxxx, President
Life Investment Funding Enterprises, Inc.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxx 00000
With copy to: Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxx X. Xxxxxxx, P.A.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxx 00000
To RFG: X. Xxxxxxx York, President
Resource Funding Group, Inc.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxx 00000
With copy to: Xxxxxxxx X. Xxxx, Esq.
Attorney at Law
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
15. MISCELLANEOUS.
15.1 WAIVER. Any term or provision of this Agreement may be waived at
any time by the party entitled to the benefit thereof by a written instrument
duly executed by such party.
15.2 ENTIRE AGREEMENT. This Agreement contains the entire understanding
between the Company and RFG with respect to the subject matter hereof and the
transactions contemplated hereby. This Agreement may not be amended, modified,
or altered except by an instrument in writing signed by the party against whom
such amendment, modification or alteration is sought to be enforced. This
Agreement supersedes and replaces all other agreements between the parties with
respect to any services to be performed by RFG on behalf of the Company.
15.3 GOVERNING LAW. The Agreement shall be construed and interpreted in
accordance with the laws of the State of Florida except when the corporate law
of Nevada or Georgia is applicable.
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15.4 BINDING EFFECT. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns.
15.5 CONSTRUCTION. The captions and headings contained herein are
inserted for convenient reference only, are not a part hereof and the same shall
not limit or construe the provisions to which they apply. References in this
Agreement to "Sections" are to the Sections in this Agreement, unless otherwise
noted.
15.6 ASSIGNMENT. The obligations and benefits under this Agreement may
only be assigned by either party upon obtaining the consent of the other party,
which consent shall not be unreasonably withheld.
15.7 ARBITRATION. Other than the injunctive remedies provided for by
Section 8.4 hereof, any controversy, dispute or claim arising out of or relating
to this Agreement or the breach thereof shall be resolved by binding arbitration
pursuant to the Code Arbitration obtaining from the American Arbitration
Association or any successor. The award of the Arbitration shall be binding on
the Company and RFG subject to any statutory right of judicial review or appeal.
Judgment may be entered upon an award of a majority of the arbitrators by a
court of competent jurisdiction and such award may be confirmed by such court.
Venue for Arbitration proceeds shall be Sarasota County, Florida. The Company
and RFG consent that the costs of arbitration, attorneys' fees of the parties,
together with all other expenses shall be paid as provided in the Arbitration
award. With respect to any arbitrated matter, the arbitration panel shall
consist of three (3) members. The Company and RFG shall each select one
arbitrator and the two selected arbitrators shall select the third arbitrator.
16. JURISDICTION. Jurisdiction over the parties and the subject matter
of this Agreement shall be vested in the Circuit Court of the Twelfth Judicial
Circuit in and for Sarasota County, Florida.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
LIFE INVESTMENT FUNDING
ENTERPRISES, INC., a Nevada
corporation
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Witness
_______________________________________ By__________________________________
Witness Printed Name J. Xxxxxxx Xxxxx, President
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Witness
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Witness Printed Name
RESOURCE FUNDING GROUP, INC.,
a Georgia Corporation
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Witness
_______________________________________ By__________________________________
Witness Printed Name X. Xxxxxxx York, President
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Witness
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Witness Printed name
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