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MUTUAL BUSINESS DEVELOPMENT AGREEMENT
MUTUAL BUSINESS DEVELOPMENT AGREEMENT dated as of October 8,
1996 (the "Agreement") between Service One International Corporation, a South
Dakota corporation (the "Company"), and the Renaissance Trust I (the "Trust"),
W I T N E S S E T H:
WHEREAS, the Company currently is engaged in the business of
acquiring, originating, servicing, securitizing and selling consumer credit card
debt portfolios (the "Business"); and
WHEREAS, to date the Company has conducted its operations
solely "in the U.S." (as that phrase is hereinafter defined); and
WHEREAS, the Company desires to invest or participate in
business ventures or enterprises engaged in the development and conduct of the
Business "outside the U.S." (as that phrase is hereinafter defined); and
WHEREAS, the Company owns certain proprietary analytical
computer programs, operating systems, methods and procedures, and related
know-how (the "System"); and
WHEREAS, the Trust has heretofore owned and controlled
companies engaged in the Business in the U.S. and currently proposes to form and
finance a company (the "Non-U.S. Based Enterprise") that among its proposed
activities, may develop opportunities or operations that would be useful to
conducting the Business outside the U.S.; and
WHEREAS, the Trust desires that the Non-U.S. Based Enterprise
be able to use the System in the non-U.S. based Business, and the Company is
willing to license the System to the Non-U.S. Based Enterprise for such purpose,
on the terms and subject to the conditions set forth in a Non-exclusive License
Agreement, substantially in the form provided for herein (the "License
Agreement"); and
WHEREAS, the Company desires that the Non-U.S. Based
Enterprise undertake to promote the Company and the System to non-U.S. based
financial institutions and organizations, to thereby enhance the Company's
opportunities to acquire appropriate portfolios from the U.S. affiliates of such
non-U.S. based financial institutions and organizations; and
WHEREAS, the Company and the Trustee desire to compensate and
incentivize each other by providing to the Trust an indirect economic interest
in the Company and by providing to the
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Company an indirect economic interest in the Non-U.S. Based Enterprise, both
solely as provided in this Agreement; and
WHEREAS, concurrently with this Agreement, the Company is
entering into an agreement (the "Other Agreement") substantively the same as
this Agreement with the O. Pappalimberis Trust (the "Other Trust");
NOW THEREFORE, the parties hereto hereby agree as follows:
1. Business of the Non-U.S. Based Enterprise.
(a) As soon as practicable, and in any event within
120 days after the date hereof, the Trust shall (i) form and organize the
non-U.S. Based Enterprise (inside or outside the U.S. at the Trust's
discretion), (ii) cause such Non-U.S. Based Enterprise to commence the conduct
of forming and organizing its operations, and (iii) provide at its sole
discretion funds or credit to finance the conduct of its operations. Except as
expressly provided elsewhere herein, the Non-U.S. Based Enterprise shall not,
for a period of six years from the date hereof, conduct any of its operations
inside the U.S. with respect to any Portfolio (as defined below) of which any of
the Accounts (as defined below) included therein are with Persons residing in
the United States or Canada ("in the U.S."). However, the Non-U.S. Based
Enterprise may contact any financial institution or other Person (as defined
below) that conducts operations outside the United States and Canada and may
acquire any Portfolio of which none of the Accounts included therein are with
Persons residing in the United States or Canada ("outside the U.S."). The
Non-U.S. Based Enterprise may also securitize a Portfolio in the U.S.; provided
that the Company (or an Affiliate thereof) shall be given a reasonable right of
first refusal and opportunity to effect such securitization.
(b) The Company engages the Non-U.S. Based Enterprise
to represent the Company in developing opportunities for the Company to acquire
appropriate Portfolios from United States or Canadian based affiliates of
non-U.S. based banks or foreign subsidiaries and/or affiliates of U.S.
institutions and other financial institutions. For this purpose, the Company
expressly authorizes the Non-U.S. Based Enterprise to discuss (subject to
appropriate confidentiality restrictions) with potential clients the benefits
and advantages of the System, the expertise of the Company in the conduct of the
operations and other relevant features of the Company and its personnel. The
Company also expressly authorizes the Non-U.S. Based Enterprise to solicit
financing from foreign banks and other financial institutions for the
acquisition by the Company of appropriate Portfolios.
(c) Any other provision hereof notwithstanding, the
Company may engage in or perform the Services for itself or for its benefit or
the benefit of any other Person (as defined in Subsection 7(r)) or engage any
other Person to perform such Services for the Company.
2. Term. The Agreement shall commence on the date hereof, and
subject to the provisions of Subsection 3(e), continue for the six-year period
(the "Term"), ending at the close of business on October 7, 2002 (the
"Termination Date").
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3. Consideration.
(a) Upon notice to the Company that the Trust has
completed the formation, organization, and initial financing of the Non-U.S.
Based Enterprise, and without regard to any other activity or the success
thereof, as full compensation therefor, the Company shall pay the Trust or if
the Trust forms a separate entity (whether or not a corporate entity) the
Company shall pay to such entity:
(i) within four days after the signing of
this Agreement and thereafter prior to or on the fifth day of each of the 11
subsequent calendar months, a base fee in the amount of $42,500 (net of any
amounts of such payment required to be withheld under applicable law, if any);
and, in addition,
(ii) with respect to Net Proceeds upon the
Disposition of a Portfolio (as such terms are defined in Subsection 3(b)) owned
by the Company or any Company Affiliate (as defined in Subsection 7(r)(ii)
hereof) at any time during the Term or a credit card account becoming a
Qualifying Receivable (as defined below) at any time during the Term, an amount
equal to 5% of such Net Proceeds (net of any amounts required to be withheld
under applicable law and regulations); provided that, subject to the provisions
of Subsection 3(d) and 3(e), no such payment shall be made if the aggregate
amount of the 5% Fee (as defined below) paid to the Trust hereunder equals
$25,000,000. Notwithstanding the foregoing, if a Portfolio is owned by the
Company during the Term, or Additional Term (as defined below), any Net Proceeds
or other collections with respect to such Portfolio received after the Term or
Additional Term shall nevertheless be treated as having been received during the
Term or Additional Term, as the case may be.
The fees described in paragraphs a) through e) below (referred to
herein collectively as the "5% Fee") shall be earned and, subject to Section
3(c), paid in accordance with the following schedule:
a) Upon the earlier to occur of delivery of the originated
Balance Transfer Amount to a "pre-securitization credit
facility" (warehouse line) or a credit card account becoming a
Qualifying Receivable, an amount equal to 5% of the related
Net Proceeds shall be deemed earned, of which 25% shall be
payable to the Trust.
b) After occurrence of either of the above events, upon the
earlier to occur of delivery of the receivables, as to which a
fee was earned under paragraph a) above, to a securitization
facility (or any other Disposition) or the passage of 11
months from the Credit Card Origination Date, the 75% balance
of the earned, but unpaid, 5% Fee shall be payable to the
Trust.
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c) If an Account does not become a Qualifying Receivable and has
not been delivered to a "pre-securitization credit facility"
(warehouse line), or a securitization facility and Disposition
has not been effected with respect to such Account, no amount
of the 5% Fee shall be earned or paid until the first day of
the 11th month after the Credit Card Origination Date and, on
that date, if the Account is or becomes Current, the full 5%
of the Net Proceeds shall be payable to the Trust with respect
to such Account.
d) If on the first anniversary of the Credit Card Origination
Date of an Account, no amounts have previously been paid to
the Trust with respect to such Account and the Account is not
more than 59 days delinquent, a fee equal to 2 1/2 percent of
the Balance Transfer Amount with respect to such Account shall
be payable to the Trust.
e) With respect to any Subpar Account, as defined below, an
amount equal to 5% of all cash collections shall be payable to
the Trust when received. "Subpar Account" shall mean any
Account, with respect to which cash is received and which did
not result in a Balance Transfer Amount or payment of any fee
hereunder.
(b) For this Purpose:
(i) "Account" means the contractual account
between a consumer credit card account debtor and the issuer of the credit card
or its assignee as creditor of such account, irrespective of whether the account
debtor's obligation was discharged in bankruptcy.
(ii) "Balance Transfer Amount" means any
newly established receivable balance originated or acquired by the Company by
way of a credit card Account, which is not to include new charges on the Account
subsequent to the initial receivable amount. (All computations of the 5% Fee
shall be derived using the Balance Transfer Amount irrespective of whether the
cardholder has paid principal down below the original Balance Transfer Amount or
charged more than the Balance Transfer Amount at the time of any of the 5%
payment obligations.)
(iii) "Base Proceeds" of a Disposition means
all Proceeds of a Disposition actually received by or for the account of the
Company or any Company Affiliate until the amount of such Proceeds equals 20% of
the total Balance Transfer Amount or credit card receivable of a Portfolio
pursuant to the agreements or instruments relating to such Disposition.
(iv) "Credit Card Origination Date" means
the recorded date that the credit card account is booked on the credit card
system (FDR or other such similar system).
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(v) "Current" means, with respect to an
Account, that there is no payment which is unpaid more than ten days after the
due date.
(vi) "Disposition" means with respect to a
Portfolio any sale, securitization or other disposition of any interest in a
Portfolio (or the accounts receivable generated upon collection of amounts owed
on Accounts included in the Portfolio) that results in the actual receipt of
Proceeds by the Company or any Company Affiliate.
(vii) "Net Proceeds" of a Disposition means
the Proceeds of such Disposition after deduction of the Base Proceeds of such
Disposition.
(viii) "Portfolio" means a group of Accounts
acquired or originated by the Company prior to expiration of the Term, without
regard to the time of any Disposition or other event requiring payment to take
place.
(ix) "Proceeds" of a Disposition means
eighty percent (80%) of the newly originated Balance Transfer Amount or credit
card receivable.
(x) "Qualifying Receivable" means any
Balance Transfer Amount on which the cardholder has made three consecutive
payments, any two of which must have been made no later than ten days after the
payment due date, and any one payment must not have been made more than 29 days
past its scheduled due date.
(c) On or before the tenth day of each month during
the Term and, if applicable, the Additional Term, the Company shall pay to the
Trust all amounts in respect of the 5% Fee which become payable during the
immediately preceding month, by delivery to the Trust of a check in an amount
equal to the sum of all such amounts. Each payment of the 5% Fee shall be
accompanied by a certificate of the Company's chief financial officer setting
forth in reasonable detail the calculation of the 5% Fee.
(d) If at any time, the Company fails to make any
payment of the monthly base fee pursuant to Subsection 3(a)(i) or the 5% Fee
pursuant to Subsection 3(a)(ii) within the time when such payment becomes due
pursuant hereto, interest shall accrue and be payable on the amount of any such
payment not so made at the rate of 15% per annum from the date such payment
becomes due until such amount is paid in full, payment of such interest to be
made concurrently with the payment of the delinquent amount; provided that the
Company shall not be so required to pay any such interest to the extent that the
failure to pay prior to the end of the Term the 5% Fee is based on the Company's
good faith assertion of a set-off of such amount pursuant to Section 6 or a good
faith dispute by the Company with respect to the payment of such amount.
(e) If the Company fails to pay any amount in excess
of the "Threshold Amount" (as hereinafter defined) during any year, in the
aggregate of the monthly base fee or, prior to the expiration of the Term, the
5% Fee required to be paid by it pursuant to this Section 3, then,
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the Term shall be extended by a period equal in duration to the cumulative
duration of the period or periods commencing, in each case, on the date any such
amount, which is unpaid, is finally determined to be due under the procedures
set forth in Section 3(f) below or is determined to be payable by a panel in
non-binding mediation in accordance with the procedures set forth on Section
7(g) below (any such determination herein called a "Determination") and ending
on the date such amount (together with interest thereon determined in accordance
with Subsection 3 (d)) is paid in full during which any such amount remains
unpaid; provided that in no event shall the Term extend past the earlier of (A)
the second anniversary of the Termination Date or (B) the date on which all
amounts (including amounts payable by reason of this Subsection 3(e)) are paid
in full (such two year or shorter period after the Termination Date, the
"Additional Term"), and the Company shall pay as additional fees hereunder (but
not as a penalty), at the same times and in the same manner as is provided in
clause (ii) of Subsection 3 (a), an amount equal to one-half of the amount of
the 5% Fee that would have been payable with respect to any Portfolio for which
there is a Disposition or any Qualification with respect to individual credit
card amount during such Additional Term had such Disposition been made during
the Term; provided that, with respect to each Determination, the Term shall not
be extended and the Company shall not be so required to make any such additional
payments if the Company deposits in escrow with a bank or financial institution
located in the United States and having consolidated assets in excess of
$500,000,000, amounts of the 5% Fee which are determined to be payable in such
Determination within twenty (20) days after such Determination is rendered and
if the Company makes such deposit in escrow after such 20 day period, the
duration of the extension of the Term and the requirement to make additional
payments shall cease at the time of such deposit. "Threshold Amount" shall mean
one hundred thousand dollars ($100,000.00) during the first year of this
Agreement, two hundred thousand dollars ($200,000.00) during the second year of
this Agreement, three hundred thousand dollars ($300,000.00) during the third
year of this Agreement, four hundred thousand dollars ($400,000.00) during the
fourth year of this Agreement, five hundred thousand dollars ($500,000.00)
during the fifth year of this Agreement, and six hundred thousand dollars
($600,000.00) during the sixth year of this Agreement.
(f) At any time within 90 days after the end of each
fiscal year of the Company ending during the Term or, thereafter, during which
the Company makes or is required to make a payment of the 5% Fee hereunder, the
Trust may cause its regular independent certified public accountants (subject to
the Trust and such accountants entering into appropriate confidentiality
agreements with the Company) to conduct an audit of the accounts of the Company
to confirm the amount of the 5% Fee determined by the Company to be due and
payable to the Trust in accordance with Section 3(a), if any, made during such
fiscal year. If the Trust determines, based on such audit, that the amount of
the 5% Fee determined by the Company in accordance with Section 3(a) requires
adjustment, because such amount was not correctly determined based on proper
assumptions, amounts or calculations, the Trust shall promptly, and in any case
within 30 days after completion of the audit, give notice (the "Adjustment
Notice") to the Company to such effect, setting forth therein the amount of the
5% Fee, as adjusted, and, in reasonable detail, the reasons for such adjustment.
If the Company agrees with the amount of the 5% Fee set forth in the Adjustment
Notice, the Company shall, within 20 days of the giving of the Adjustment
Notice, give written notice to the Trust confirming the amount of the 5% Fee, as
so adjusted, and on the fifth business day following
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the giving of such notice, the Company shall pay to the Trust the deficiency in
the amount of the 5% Fee in accordance with the Adjustment Notice, together with
interest thereon determined in accordance with Subsection 3(d). If, however, the
Company disagrees with the adjustments set forth in the Adjustment Notice, the
Company shall, within 20 days of the giving of the Adjustment Notice, give
written notice (the "Dispute Notice") to the Trust to such effect, setting forth
therein, in reasonable detail, the reasons for such objection. In such event,
unless the Company and the Trust promptly resolve such objections and agree upon
the determination of the amount of the 5% Fee (in which case the deficiency, if
any, together with interest thereon determined in accordance with Subsection
3(d), shall be paid promptly, and in any event within five business days, after
the date of such agreement), the determination of the amount of the 5% Fee shall
be promptly referred to the respective regular independent certified public
accountants of the Company and the Trust, who shall confer and attempt to
resolve the objections as to such determination set forth in or arising as a
consequence of the Adjustment Notice and the Dispute Notice. If, within 15 days
after such referral, such accountants resolve such disputes and determine the
amount of the 5% Fee, they shall give written notices to the Company and the
Trust to such effect, setting forth the amount of the 5% Fee as so determined.
If they cannot make such determinations within such 15-day period, such
determination shall be referred to a third independent firm of certified public
accountants selected by the respective accountants, whose determination of such
amount shall be final and binding on the Company and the Trust. Upon the
determination of the amount of the 5% Fee by such accountants, any deficiency,
together with interest thereon determined in accordance with Subsection 3(d),
shall be paid promptly, and in any event within five business days, after the
date of such determination. The fees and expenses of the respective independent
certified public accountants of the Company and the Trust incurred in the
determination of the amount of the 5% Fee as provided herein shall be borne by
the Company and the Trust, respectively. The fees and expenses of a third firm
of independent certified public accountants incurred, if required pursuant to
this Section, shall be borne and promptly paid equally by the Company and the
Trust.
(g) No provision of Subsection 3(d), 3(e) or 3(f) is
intended or shall be deemed to preclude the commencement of any Proceeding by
the Trust or the Non-U.S. Based Enterprise to collect any base fee or 5% Fee to
which it may be entitled hereunder or the Company from seeking to recover any
overpayment, or otherwise to restrict the remedies available to either party to
enforce its rights hereunder.
(h) For federal income tax purposes, the Non-U.S.
Based Enterprise shall treat any amount received with respect to each Portfolio
as its share of income from an entity taxed as a partnership described in
Subchapter K of the Internal Revenue Code. The Non-U.S. Based Enterprise shall
furnish to the Company such information as the Company may reasonably require
with respect to its federal income tax obligations regarding the distribution of
profits from the Portfolios.
(i) For federal income tax purposes, the Company
shall treat any amount received with respect to each Portfolio as its share of
income from an entity taxed as a partnership described in Subchapter K of the
Internal Revenue Code. The Company shall furnish to Non-U.S.
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Based Enterprise such information as Non-U.S. Based Enterprise may reasonably
require with respect to its federal income tax obligations regarding the
distribution of profits from the Portfolios.
4. System License. Concurrently herewith, the Company is
licensing the System to the Trust, pursuant to a Non-Exclusive Technology
License Agreement (the "License Agreement"), for use by the Non-U.S. Based
Enterprise in conducting the Business outside the U.S.
5. Right to Participate in Business of the Non-U.S. Based
Enterprise.
(a) Each of the Company, Service One Holdings Inc., a
Delaware corporation ("Holdings") and Taxter One LLC, a New York limited
liability company ("Buyer"), shall have an irrevocable and unconditional right
(but no obligation) to acquire an undivided interest in any Portfolio acquired
at any time during the Term by the Non-U.S. Based Enterprise or any Affiliate
thereof, which interest will entitle the Company, Holdings and Buyer to receive
in the aggregate (apportioned among them in accordance with their respective
interests or as they may agree among themselves) a portion of any Proceeds of a
Distribution of such Portfolio by the Non-U.S. Based Enterprise in the same
manner and subject to the same terms and conditions as are applicable to the 5%
Fee, except that the percentage of Net Proceeds payable shall be 10% (instead of
5%), and the proviso to clause (ii) of Subsection 3(a) shall not apply to such
interest.
(b) The aggregate purchase price for any such
interest in a Portfolio (the "Exercise Price") shall be 6% of the purchase price
actually paid or payable by the Non-U.S. Based Enterprise or an Affiliate
thereof for such Portfolio, such Exercise Price to be payable to the Non-U.S.
Based Enterprise at the same time and in the same manner as the purchase price
for the Portfolio is payable by the Non-U.S. Based Enterprise or an Affiliate
thereof.
(c) At least 10 days prior to the closing of the
acquisition of a Portfolio by the Non-U.S. Based Enterprise or an Affiliate
thereof, the Non-U.S. Based Enterprise shall give written notice (the
"Acquisition Notice") of such proposed acquisition to the Company, setting forth
therein in reasonable detail a description of the Portfolio proposed to be
acquired and the proposed terms and condition of such acquisition, including
without limitation the expected closing date, the purchase price for the
Portfolio and the seller thereof. The Company shall give written notice to the
Non-U.S. Based Enterprise within 10 days of the receipt of the Acquisition
Notice of any intention by the Company, Holding or Buyer to purchase an interest
in such Portfolio as provided in this Section 5. If the Company, Holding or
Buyer so elect to purchase such an interest and notice thereof is properly given
as herein provided, then concurrently with the acquisition of the Portfolio by
the Non-U.S. Based Enterprise or as soon as practicable thereafter, and in any
event within 10 business days after the closing of such acquisition the Company,
Holding or Buyer, as the case may be shall purchase its interest in such
Portfolio upon payment of the Exercise Price.
6. Set-Off. The Company, at its sole discretion, may set-off
and retain the amount of any indemnity payment required to be made by the Trust
and the Other Trust in accordance with Section 11.6 of the Stock Purchase
Agreement of even date herewith (the "Purchase
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Agreement") by and among the Buyer, the Trust and the Other Trust or any payment
required to be made by the Trust to the Company pursuant to Section 5 or the
License Agreement that is not so made when due, in each case, from one-half of
any payment of the 5% Fee with respect to any Portfolio otherwise required or
permitted to be made by the Company hereunder, after the Trust shall have
received 25% of the 5% Fee payable to the Trust with respect to such Portfolio.
The Company agrees that amounts to be set-off and retained shall be applied
equally against (i) payments required (except for the set-off) to be made to the
Trust hereunder and (ii) payments required (except for the set-off) to be made
to the Other Trust and under the Other Agreement. The Trust may set-off and
retain the amount of any payment required to be made to it by Buyer under the
Stock Purchase Agreement or by the Company hereunder that is not so made when
due from any payment required to be made to the Company by the Trust hereunder
or under the License Agreement.
7. Miscellaneous.
(a) Limitation of Authority. No provision hereof
shall be deemed to create any partnership, joint venture or joint enterprise or
association between the parties hereto, or to convey to or invest in either
party any right or the assets or business of the other party hereto or, except
as expressly provided in Section 1, to authorize or to empower either party
hereto to act on behalf of, obligate or bind the other party hereto. Any
provision hereof notwithstanding, the Non-U.S. Based Enterprise is, and is
intended to be, an independent contractor.
(b) Notices. Any notice or demand to or upon either
party hereto required or permitted to be given or made hereunder shall be deemed
to have been duly given or made for all purposes if (i) in writing and sent by
(A) messenger or an overnight courier service against receipt, or (B) certified
or registered mail, postage paid, return receipt requested, or (ii) sent by
telegram, facsimile transmission, telex or similar electronic means, provided
that a written copy thereof is sent on the same day by postage paid first-class
mail, to such party at the following address:
To the Trust at: Renaissance Trust I
x/x Xxxxxxx, Xxxx, Xxxxx, Xxxxxxx & Xxxx
Xxx Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
To the Company at: 000 Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxx X. Xxxxxxxx, President
Fax: (000) 000-0000
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With a copy to: Xxxxxx Xxxxxx Flattau & Klimpl, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx Xxxxxxxx, Esq.
Fax: (000) 000-0000
or such other address as either party hereto may at any time, or from time to
time, direct by notice given to the other party in accordance with this Section.
The date of giving or making of any such notice or demand shall be, in the case
of clause (a)(i), the date of the receipt; in the case of clause (a)(ii), five
business days after such notice or demand is sent; and, in the case of clause
(b), the business day next following the date such notice or demand is sent,
provided, however, that any notice regarding a change of address shall be deemed
given when received.
(c) Amendment. Except as otherwise provided herein,
no amendment of this Agreement shall be valid or effective, unless in writing
and signed by or on behalf of all the parties hereto.
(d) Waiver. No course of dealing or omission or delay
on the part of either party hereto in asserting or exercising any right
hereunder shall constitute or operate as a waiver of any such right. No waiver
of any provision hereof shall be effective, unless in writing and signed by or
on behalf of the party to be charged therewith. No waiver shall be deemed a
continuing waiver or waiver in respect of any other or subsequent breach or
default, unless expressly so stated in writing.
(e) Governing Law. This Agreement shall be governed
by, and interpreted and enforced in accordance with, the laws of the State of
New York without regard to principles of choice of law or conflict of laws.
(f) Jurisdiction. Each of the parties hereto hereby
irrevocably consents and submits to the exclusive jurisdiction of the United
States District Court for the Southern District of New York in connection with
any Proceeding (as defined in Subsection 7(r)) arising out of or relating to
this Agreement or the transactions contemplated hereby, waives any objection to
venue in such District (unless such court lacks jurisdiction with respect to
such Proceeding, in which case, each of the parties hereto irrevocably consents
and submits to the jurisdiction of the Supreme Court of the State of New York in
connection with such Proceeding and waives any objection to venue in New York
County, State of New York), and agrees that service of any summons, complaint,
notice or other process relating to such Proceeding may be effected in the
manner provided by clause (i)(B) of Subsection 7(b).
(g) Remedies.
(i) Except as otherwise provided in
Subsection 3(f) with respect to a dispute as to the amount of any payment of the
5% Fee, the parties shall submit any dispute
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arising with respect to any provision hereof to non-binding mediation, prior to
commencing any other Proceeding, other than a Proceeding seeking an injunction
or specific performance, in accordance with the procedures set forth in this
clause (i) of Subsection 7(g). Any party asserting any claim or objection to any
action by any other party or otherwise seeking to enforce any right hereunder
(the "claimant") shall give written notice of such claim to each other party
hereto setting forth therein in reasonable detail the factual basis for such
claim, the provisions of this Agreement relating thereto and the amount of
monetary damages or other relief sought from the other party hereto (the
"respondent"). The respondent shall within 10 days of the giving of such notice
respond to such claim by a written notice accepting or denying such claim in
whole or in part, setting forth therein in reasonable detail the basis for such
response. If the claimant and respondent are unable to resolve such claim in
full within 10 days after the giving of such responsive notice, the parties
shall exchange lists of 10 potential mediators, each of whom shall be a retired
federal judge or state appellate court judge with not less than 10 years
experience in commercial litigation prior to his judicial appointment. The
parties shall select three mediators from such lists as follows:
(A) as they may agree upon any Person on both lists
(B) as they may agree upon any other Person on one or the
other of the lists, or
(C) if the parties are unable to agree on the selection
of three such mediators, as selected by the CPR
Institute For Dispute Resolution ("CPR") from such
lists, or if CPR declines to select any Person from
such lists, any other Person, unless both parties
object to such Person.
The mediation proceeding will be held in New York City. No discovery or motion
practice will be permitted. At the mediation proceeding each party shall be
represented by one representative and counsel. Each party shall submit a brief
written statement presenting its position consistent with that set forth in the
claim notice or response notice, as applicable, referred to above, to the
mediation panel and concurrently deliver a copy thereof to the other party, and
each party shall have an opportunity to present direct testimony of witnesses
for up to 10 hours and produce supporting evidence before the mediation panel.
Each party shall also be entitled to present rebuttal testimony of witnesses for
up to 2 hours and produce additional rebuttal evidence. All proceedings shall be
transcribed stenographically and a copy thereof shall be distributed to each
party and each member of the panel. Within two business days after conclusion of
the presentation of testimony and evidence, the panel shall render its decision
in a reasoned opinion by a majority of the panel.
(ii) In the event of any actual or
prospective breach or default by either party hereto, the other party shall be
entitled, in addition to any and all available legal remedies, to equitable
relief, including remedies in the nature of rescission, injunction and specific
performance. Except as otherwise provided in clause (i) of this Subsection 7(g),
all remedies hereunder are cumulative and not exclusive, and nothing herein
shall be deemed to prohibit or limit either party from pursuing any other remedy
or relief available at law or in equity for such actual or prospective breach or
default, including the recovery of damages.
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(iii) The party prevailing with respect to
any claim or in any Proceeding to enforce its rights hereunder shall be entitled
to reimbursement from the respondent or defendant party of all reasonable costs,
including reasonable attorneys' fees, and disbursements, incurred by such party
in connection therewith.
(h) Severabillty. The provisions hereof are severable
and in the event that any provision of this Agreement shall be determined to be
invalid or unenforceable in any respect by a court of competent jurisdiction,
the remaining provisions hereof shall not be affected, but shall, subject to the
discretion of such court, remain in full force and effect, and any invalid or
unenforceable provision shall be deemed, without further action on the part of
the parties hereto, amended and limited to the extent necessary to render the
same valid and enforceable.
(i) Further Assurances. Each party hereto shall
promptly execute, deliver, file or record such agreements, instruments,
certificates and other documents and perform such other and further acts as the
other party hereto may reasonably request or as may otherwise be necessary or
proper to consummate and perfect the transactions contemplated hereby.
(j) Assignment.
(i) Subject to the provisions of Subsections
7(j)(ii), (iii) and (iv), this Agreement and each right, interest and obligation
hereunder, may not be assigned by either party hereto without the prior written
consent of the other party hereto, and any purported assignment without such
consent shall be void and without effect.
(ii) The Company (and each subsequent
assignee of the Company) shall have the right to assign all (but not less than
all) of its rights, interests and obligations hereunder to any other Person who
acquires a majority of the voting capital stock of the Company or all or
substantially all of the assets of the Company (or a subsequent assignee of the
Company); provided that neither the Company nor any subsequent assignor shall be
released from any of its obligations hereunder by reason of any such assignment.
(iii) The covenants, representations,
warranties and indemnities of the Trust under this Agreement, and under any
other agreement, instrument, certificate or document executed and delivered in
connection herewith or the transactions contemplated hereby, may be collaterally
assigned to any and all lenders to the Company or any Affiliate thereof that
controls the Company (the "Lenders"), any and all of whom may enforce their
rights and remedies in connection with any such collateral assignment or
realization thereon to the extent provided in the applicable debt instruments
and security agreements or at law or in equity. Upon receipt of written notice
from the Lenders that an "Event of Default" has occurred pursuant to the
applicable indebtedness, the Trust will tender any payments due under this
Agreement to the Lenders in accordance with the instructions set forth in such
notice.
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(iv) The Trust and any Permitted Trust
Transferee (as hereinafter defined) may assign this Agreement or any right or
interest hereunder to one or more Persons (each a "Permitted Trust Transferee")
that is (A) listed on Schedule A, (B) any lineal descendant of any Beneficial
Owner, (C) any trust of which each beneficiary is a Beneficial Owner, or a
spouse, lineal descendant or sibling of such Beneficial Owner, (D) any Person in
which each equity owner is a Person described in subclause (A), (B) or (C) of
this clause (iv) of Subsection 7(j) or (E) the Non-U.S. Based Enterprise.
Furthermore, the Trust and any Permitted Trust Transferee may pledge this
Agreement or any right or interest hereunder to secure its obligations with
respect to any indebtedness for borrowed money or other advances of credit by a
bank or other institutional lender, subject, however, to the prior written
consent of the Company, which consent shall not be unreasonably withheld or
delayed. No such assignment (including without limitation any such pledge with
the consent of the Company) shall release the Trust or any Permitted Trust
Transferee assignor from any of its obligations hereunder.
(k) Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement is not intended, and shall not
be deemed, to create or confer any right or interest for the benefit of any
Person not a party hereto.
(l) Titles and Captions. The titles and captions of
the Sections of this Agreement are for convenience of reference only and do not
in any way define or interpret the intent of the parties or modify or otherwise
affect any of the provisions hereof.
(m) Grammatical Conventions. Whenever the context so
requires, each pronoun or verb used herein shall be construed in the singular or
the plural sense and each capitalized term defined herein and each pronoun used
herein shall be construed in the masculine, feminine or neuter sense.
(n) References. The terms "herein," "hereto,"
"hereof," "hereby," and "hereunder," and other terms of similar import, refer to
this Agreement as a whole, and not to any Section or other part hereof.
(o) No Presumptions. Each party hereto acknowledges
that it has participated, with the advice of counsel, in the preparation of this
Agreement. No party hereto is entitled to any presumption with respect to the
interpretation of any provision hereof or the resolution of any alleged
ambiguity herein based on any claim that the other party hereto drafted or
controlled the drafting of this Agreement.
(p) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original and which together shall
constitute one and the same agreement.
(q) Incorporation by Reference. Exhibit A hereto is
an integral part of this Agreement and is incorporated herein in its entirety by
this reference.
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(r) Certain Definitions.
(i) "Affiliate" of a Person means another
Person (A) directly or indirectly controlling, controlled by, or under common
control with, such Person (for this purpose, "control" of a Person means the
power (whether or not exercised) to direct the policies, operations or
activities of such Person by or through the ownership of, or right to vote, or
direct the manner of voting of, securities of such Person, or pursuant to
agreement or law or otherwise) or (B) who is a director or officer of a
corporation, general partner of a partnership, manager of a limited liability
company, trustee of a trust or other Person who exercises managerial authority
with respect to the subject Person; or (C) who owns (or has the discretionary
right to acquire) 10% or more of the equity interests (including without
limitation capital stock or partnership, membership or beneficial interests) of
the subject Person.
(ii) "Company Affiliate" means a Person that
is an Affiliate of the Company by reason of clause (A) of clause (i) of
Subsection 7(r).
(iii) "Governmental Authority" means any
federal, state, local or foreign court, arbitration panel, government,
governmental authority, agency or instrumentality of competent jurisdiction, or
recognized professional or industry association or organization that establishes
or enforces policies or standards or otherwise regulates or supervises the
services and activities subject hereto.
(iv) "Person" includes without limitation a
natural person, corporation, joint stock company, limited liability company,
partnership, joint venture, association, trust, Governmental Authority, or any
group of the foregoing acting in concert.
(v) "Proceeding" means any action, suit,
investigation, audit or mediation, arbitration or other proceeding, at law or in
equity, before or by any Governmental Authority.
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(s) Entire Agreement. This Agreement embodies the
entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes any prior agreement, commitment or arrangement relating thereto.
IN WITNESS WHEREOF, the Company and the Trust, by their
respective duly authorized officers, have duly executed this Agreement on the
date set forth in the Preamble hereto.
RENAISSANCE TRUST I SERVICE ONE INTERNATIONAL
CORPORATION
By: /s/ Xxxx Xxxxx Xxxxxxxxxx By: /s/ Xxx X. Xxxxxxxx
--------------------------------- ---------------------------
Trustee Name: Xxx X. Xxxxxxxx
Xxxx Xxxxx Xxxxxxxxxx Title: Chairman
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