ANNEX 1.1(B)
AGREEMENT
This AGREEMENT ("Agreement") made as of June 5 , 2000, is by and among
Terremark Fortune House #2, Ltd., a Florida limited partnership, having an
address at 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx, XX 00000 ("Fortune
House"), AIBC International Mortgage Finance, LC, a Florida limited liability
company, having an address at 00 X.X. 0xx Xxxxxx, Xxxxx 000, Xxxxx, Xx 00000
("AIBC"), and Southeastern Securities Inc., a Florida corporation, having an
address at 00000 X. Xxxxx Xxxxxxx, Xxxxx 000, Xxxxx, Xx 00000 ("Southeastern"),
(collectively, AIBC and Southeastern shall sometimes be referred to as the
"Licensees").
W H E R E A S:
A. Fortune House is offering for sale approximately 280 condominiums
as hotel investment units ("Units") in a condominium hotel called Fortune
House-Fort Lauderdale Beach Condominium Hotel (the "Hotel") located in Fort
Lauderdale, Florida.
B. Fortune House would receive benefits from obtaining the services
of both an experienced mortgage broker and an experienced securities broker to
serve prospective purchasers of the Units.
C. AIBC is an experienced mortgage broker in the State of Florida
capable of providing prospective purchasers with competitive end-loan financing
opportunities in connection with the purchase of the Units.
D. Southeastern is a member of the National Association of
Securities Dealers, Inc. ("NASD") and a fully-licensed securities broker
operating in accordance with all applicable federal and Florida securities laws,
and duly authorized and licensed by NASD to sell securities in connection with
a "Direct Participation Program" (as defined below).
E. Fortune House wishes to grant AIBC a license to serve as the
exclusive on-site mortgage broker for prospective purchasers of Units.
F. Fortune House desires Southeastern ("Sponsoring Entity") to
sponsor all qualified Fortune House salesmen that have passed all examinations
and have obtained the applicable licenses that are or in the future may be
required to promote the sale of the Units as part of a Direct Participation
Program ("Direct Participation Program"). A Direct Participation Program shall
have the meaning set forth, from time to time, in all NASD rules and regulations
and specifically for the purposes of this Agreement shall be defined as an
interest in a condominium hotel with a mandatory rental pool program which shall
be offered for sale by qualified Fortune House sales persons ("DPP
Representatives") engaging in the sale of interests in a Direct Participation
Program.
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ANNEX 1.1(B)
NOW THEREFORE, in consideration of the mutual covenants contained
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree that the foregoing preliminary
statements are true and further agree as follows:
ARTICLE I
PREMISES
Fortune House is the owner of the real property located in Broward
County, Florida, which is the development site for the Hotel and is more
particularly described on Exhibit "A" attached hereto and made a part hereof
(the "Property"). Fortune House hereby grants AIBC a license to operate an
exclusive, on-site mortgage brokerage operation for the exclusive purpose of
offering end-loan financing programs to prospective purchasers of the Units. For
the purpose of conducting its mortgage brokerage services at the Hotel, Fortune
House will designate space within or proximate to the Property for use by the
Licensees ("Licensed Space"), the location(s) of which may be changed from time
to time at the reasonable discretion of Fortune House, provided that any such
change in location shall be in full compliance with all NASD regulations and
State of Florida securities regulations.
ARTICLE II
LOAN PROCESSING OFFICE
AIBC will maintain a loan processing office at the Licensed Space,
which shall be open for business seven days per week. The required hours of
operation of the loan processing office shall be mutually determined by Fortune
House and AIBC. All costs of operating the loan processing office, including
without limitation, (i) the salaries and benefits payable to all employees of
AIBC, (ii) the cost of office supplies, (iii) all travel expenses incurred by
AIBC personnel, and (iv) all other expenses of AIBC shall be the sole
responsibility of AIBC. AIBC shall not incur any expense on behalf of Fortune
House in connection with the operation of the loan processing office, or
otherwise. Fortune House will be responsible for providing certain utilities,
including water, electricity, local telephone service and photocopying
facilities. AIBC shall be solely responsible for the cost and expense of long
distance telephone service utilized in connection with its use of the Licensed
Space.
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ANNEX 1.1(B)
ARTICLE III
FEES PAYABLE TO LICENSEES;
FORTUNE HOUSE OBLIGATIONS
3.1 In consideration for having Southeastern serve as the Sponsoring
Entity, Fortune House shall grant AIBC the right to become the exclusive,
on-site mortgage broker offering end-loan financing programs to purchasers of
Units. In the event of the termination of this Agreement with one Licensee, but
not the other, any adjustments to the calculations of the fees to be shared by
both parties shall also be the sole responsibility of the Licensees. Nothing
contained herein, shall preclude a Unit purchaser from obtaining end-loan
financing from a source other than AIBC.
3.2 AIBC will charge fees for its services, specifically those
associated with loan commitments and the funding of end-loans in connection with
the purchase of Units, which are reasonable and customary in this geographic
area for a Direct Participation Program with respect to the investment in a
condominium-hotel. Notwithstanding anything to the contrary and subject to the
terms contained herein, AIBC covenants and agrees that it shall not charge less
than one and one-half percent (1-1/2%) of the principal amount of any loan made
to any purchaser of a Unit and that it shall remit one-third (1/3rd) of such fee
to Fortune House's mortgage brokerage affiliate in connection with all such
loans placed with the purchaser of Units which fee shall be payable at the
closing of such loan(s).
3.3 For its services hereunder as the Sponsoring Entity, Southeastern
shall receive for its own account a fee for each sale of a Unit equal to .5%
(one half of one percent) of the total contract price to be paid for such Unit
(each, a "Unit Sales Fee"). Each Unit Sales Fee will be paid to Southeastern as
follows: (i) a portion of such Unit Sales Fee equal to $1000 will be paid
promptly after the making of the deposit by the purchaser required by the sales
contract and the termination of the rescission period with respect to the
contract for such Unit, and (ii) the remainder of such Unit Sales Fee will be
paid at the time of the closing of such Unit. Notwithstanding anything to the
contrary contained herein, Fortune House will guarantee Southeastern a fee equal
to at least $350,000 (the "Guaranteed Broker Fee") in connection with its role
as the Sponsoring Entity. AIBC shall not be entitled to any guaranteed fee to be
paid by Fortune House in connection with this Agreement. The Guaranteed Broker
Fee will be paid to Southeastern in full promptly upon the termination of this
Agreement (x) by Fortune House pursuant to Section 4(a) or Section 4(c); (y) by
Southeastern pursuant to Section 4(d); or (z) pursuant to Section 4(e) if such
termination is a result of an Event of Default relating to Fortune House.
3.4 Fortune House shall be responsible to pay certain costs to
Southeastern in connection with the performance of its duties hereunder, such as
(i) the cost of upgrading its NASD license to allow for the sale of interests in
a Direct Participation Program, in an amount not to exceed $2,000, (ii) the cost
of preparing and filing the S-11 registration statement for the Hotel, (iii) the
cost of filing applications to register the DPP Representatives (approximately
$350 per DPP Representative), (iv) all costs and expenses (including without
limitation salaries, benefits and commissions) to be paid by Southeastern to the
DPP Representatives, (v) any other cost or expense reasonably
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ANNEX 1.1(B)
determined by Southeastern to be incurred in connection with the Direct
Participation Program, including, without limitation, additional regulatory
compliance costs, operating expenses and any legal cost or expense arising in
relation to any regulatory investigation of any DPP Representative.
3.5 Fortune House hereby agrees to allow Southeastern to review and
approve all sales and marketing materials, including without limitation the
registration statement filed with the SEC, prepared in connection with the sale
of the Units prior to their use in order to comply with all applicable
regulatory requirements concerning the content of such materials.
3.6 Fortune House hereby agrees to maintain an "errors and omissions"
policy, reasonably satisfactory to Southeastern, applicable to the activities of
the DPP Representatives for an insured amount not less than $1,000,000 and
further agrees to deliver a copy of such policy to Southeastern no later than
the date the first DPP Representative receives his/her license and copies of all
subsequent renewals.
3.7 Fortune House hereby acknowledges that Southeastern will perform
its role as the Sponsoring Entity on a "Best Efforts Underwriting Basis."
ARTICLE IV
LICENSE TERM
The term of this license shall commence on June 6, 2000 and shall
terminate on the earlier of:
(a) written notice by Fortune House within the one year anniversary
of this Agreement;
(b) with respect to either AIBC or Southeastern, the expiration,
suspension, or revocation of any applicable regulatory permit or license
necessary to complete either parties contractual duties under this Agreement or
the inability of either AIBC or Southeastern, for regulatory or other legal
reasons, to be able to provide the services designated in Section 9, below, with
respect to AIBC and Section 10, below, with respect to Southeastern;
(c) Fortune House selling 280 Units or the termination of Fortune
House's active efforts to sell the Units in the ordinary course of business with
DPP Representatives on location on the Property; or
(d) with respect to Southeastern, upon the date designated as the
termination date for Southeastern in a written notice of resignation by
Southeastern delivered to Fortune House, provided that such termination date
shall not occur prior to four (4) years after the date hereof; or
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ANNEX 1.1(B)
(e) the declaration of an Event of Default pursuant to Sections 11.5
or 11.6 under this Agreement and the passing of any applicable grace period.
ARTICLE V
NO PAYMENT FROM LICENSEES
Except as otherwise provided herein, neither of the Licensees shall pay
to Fortune House any amount in connection with their occupancy of the Licensed
Space.
ARTICLE VI
USE OF THE LICENSED SPACE
6.1 AIBC shall maintain a fully-licensed mortgage brokerage operation
at the Licensed Space which operation shall be duly authorized and capable of
arranging for and funding, from time-to-time, end-loan mortgages to purchasers
of Units. AIBC shall use the Licensed Space exclusively for the operation of a
mortgage brokerage office to provide end-loan financing programs to purchasers
of Units. In no case shall AIBC operate the Licensed Space for purposes of
soliciting the general public for any purpose other than providing end-loan
financing to purchasers of Units.
6.2 Southeastern shall maintain a presence within the Licensed Space
for regulatory purposes sufficient to properly and legally supervise and control
the business activities of all salesmen designated by Fortune House to serve as
DPP Representatives in connection with the initial sale of the Units. It is
agreed by the parties hereto that Southeastern's role as the Sponsoring Entity
shall apply only to the initial sale of any Unit from Fortune House to the
initial purchaser and that Southeastern shall have no responsibility or
supervisory role with respect to any resale of any Unit, unless expressly agreed
otherwise with respect to such Unit.
6.3 Fortune House reserves the right, in its reasonable discretion,
to change the location of the Licensed Space to another area on the Property,
provided that any such change in location shall be in full compliance with all
NASD regulations and State of Florida securities regulations. The Licensees
shall not suffer or permit the Property or the Licensed Space to be used in any
manner, or suffer or permit anything to be done in or brought into or kept on
the Property or Licensed Space, which would in any way: (i) violate any law or
governmental requirement; (ii) cause injury to the Property or any part thereof;
(iii) interfere with the rights of any tenants leasing portions of the Property
under their respective leases with Fortune House including such tenants' rights
to use their respective leased premises; (iv) constitute a public or private
nuisance; or (v) alter the appearance of the Property or the Licensed Space.
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ANNEX 1.1(B)
ARTICLE VII
ALTERATIONS, WASTE, IMPROVEMENTS
7.1 The Licensees shall commit or permit no waste or injury to the
Property or the Licensed Space and shall not make any alterations, additions, or
improvements to the Property or the Licensed Space.
7.2 The Licensees shall fully repair damage of any kind or character
occasioned by any act of the Licensees and/or its employees and agents; provided
that Southeastern shall not be liable for any such act of any DPP
Representative.
ARTICLE VIII
LIENS
The Licensees shall not authorize any improvements or changes to the
Licensed Space, and shall take no action which would create a lien for labor or
material on or against the Licensee's interest in the Licensed Space or any
other portion of the Property. The Licensees shall promptly discharge any liens
placed against any portions of the Licensed Space or the Property, on account of
work done by or at the request of the Licensees or anyone claiming by, through,
or under the Licensees.
ARTICLE IX
RESPONSIBILITIES OF AIBC
9.1 AIBC shall use its best efforts to process end-loan applications
and obtain end-loan financing, at competitive rates, to fund the purchase of
Units for prospective purchasers. AIBC shall maintain a full-time loan
processing agent (the "Loan Agent") at the Licensed Space capable of providing
prospective purchasers with all the information reasonably necessary in
connection with obtaining an end-loan financing program from AIBC for the
purchase of a Unit. The Loan Agent shall be responsible for obtaining all
applicable information, financial or personal, necessary to complete an end-loan
financing application. The Loan Agent shall also have the requisite authority to
make prompt credit/loan decisions. Any person employed by AIBC to carry out
AIBC's duties hereunder shall be an employee or an independent contractor of
AIBC, and AIBC shall be fully responsible to pay such persons and for all other
legal requirements with respect to the employment of such persons. AIBC shall
use reasonable care in the selection of such persons. Fortune House shall not be
responsible for such persons for any reason; provided, however, that Fortune
House shall have the right to require AIBC to replace any such person which
Fortune House considers inappropriate or incompatible with the overall marketing
and sales efforts of the Hotel. AIBC shall establish and maintain at the loan
processing office, as described in Article II, above, complete and
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ANNEX 1.1(B)
orderly files containing correspondence, loan documents, receipts,
unpaid bills and vouchers, as well as all other documents and paperwork
pertaining to its activities hereunder. Fortune House shall have the right to
inspect, upon reasonable notice, all files maintained by AIBC in connection with
its duties under this Agreement.
9.2 AIBC shall close a minimum of twenty (20) Units per week during
the term of this Agreement. As and to the extent reasonably requested by Fortune
House and/or its attorneys, AIBC shall assist Fortune House in closing mortgages
for which it will receive fees from purchasers of Units.
9.3 AIBC shall advise Fortune House immediately by facsimile, with
prompt confirmation by mail (including the sending of the document received by
AIBC) of the service upon AIBC of any summons, subpoena, legal process or any
other legal documentation, including, without limitation, any notices, letters
or other communications setting forth or claiming any actual or alleged
potential liability of Fortune House or rights against or lien upon all or any
portion of the Property, or of the receipt by AIBC of any notice, demand,
request or other written communication from any purchaser or potential purchaser
of any Unit.
9.4 AIBC shall provide Fortune House with a weekly summary detailing
loan applications, loan commitments issued and loans closed; in this regard, the
report shall include calculation of the contributions during the applicable
period toward the Guaranteed Fee;
9.5 Before a purchaser of a Unit applies for a loan commitment from
AIBC and/or its lender, AIBC will furnish such purchaser with copies of all
documents and revisions thereof which are required to be given to purchasers of
Units pursuant to all applicable laws (including, without limitation, those
promulgated under the Florida Condominium Act and the Interstate Land Sales Full
Disclosure Act). AIBC shall otherwise comply with all reasonable procedures for
the financing of the Units communicated to AIBC in writing by Fortune House or
Fortune House's attorneys.
9.6 AIBC shall maintain all books and records on-site to comply with
all applicable regulatory requirements as well as for the accurate production of
all reports and compilations due to Fortune House under the terms of this
Agreement. Fortune House shall have the right to inspect all books and records
maintained by AIBC regarding its operations hereunder.
9.7 During the term of this Agreement, AIBC shall maintain all
applicable insurance policies, including but not limited to an "errors and
omissions" insurance policy and a "business interruption" insurance policy, to
insure against any losses that Fortune House would incur as a result of a
default by AIBC as more fully described in Section 4(b).
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ANNEX 1.1(B)
ARTICLE X
RESPONSIBILITIES OF SOUTHEASTERN
During the term of this Agreement, Southeastern will:
(a) maintain all licenses and permits required to operate as a
securities broker engaging in the sale of interests in a Direct Participation
Program in the State of Florida and in compliance with all applicable federal
and state laws throughout the term of this Agreement;
(b) if required, maintain one (or more) person(s) fully
licensed by the NASD, and duly authorized, and in compliance with all federal
and state laws, for the purpose of supervising (as a principal of Southeastern)
the offering of interests in a Direct Participation Program;
(c) supervise, and for regulatory purposes, control the
business activities of all persons designated by Fortune House to serve as DPP
Representatives for the exclusive purpose of selling the Units; and
(d) maintain all books and records on-site to comply with all
applicable regulatory requirements.
ARTICLE XI
DEFAULTS
The following events shall be deemed to be "Events of Default" under
this Agreement:
11.1 With respect to either AIBC or Southeastern, the suspension or
revocation of any applicable regulatory permit or license necessary to complete
either parties contractual duties under this Agreement. A default under this
Section 11.1 shall have no applicable grace period and shall result in an
immediate termination of this Agreement.
11.2 Except as otherwise provided in this Agreement, the failure of
Fortune House, AIBC or Southeastern to comply with any material term, provision
or covenant of this Agreement and such failure not being cured within ten (10)
days after written notice of such failure to Fortune House, AIBC or
Southeastern, as applicable; provided, however, that if such default is capable
of cure and such cure cannot be effectuated within such ten (10) day period the
defaulting party shall have such longer period of time as is necessary to
effectuate such cure so long as is diligently proceeding to cure such default,
but in no event shall such curative period be more than forty-five (45) days.
11.3 Fortune House, AIBC or Southeastern shall become insolvent, admit
in writing its inability to pay its debts generally as they become due, file a
petition in bankruptcy or a petition to take advantage of any insolvency
statute, make an assignment for the benefit of creditors, make a
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ANNEX 1.1(B)
transfer in fraud of creditors, apply for or consent to the appointment
of a receiver for itself or of the whole or any substantial part of its
property, or file a petition or answer securing reorganization or arrangement
under the federal bankruptcy laws, as now in effect or hereafter amended, or any
other applicable law or statute of the United States or any state thereof. A
default under this section 11.3 shall have no applicable grace period and shall
result in an immediate termination of this Agreement.
11.4 A court of competent jurisdiction shall enter an order, judgment
or decree adjudicating Fortune House or either or both Licensee(s) bankrupt, or
appointing a receiver for either or both of the Licensees, or of the whole or
any substantial part of its or their property, without the consent of
Licensee(s), or approving a petition filed against Licensee(s) seeking
reorganization or arrangement of Licensee(s) under the bankruptcy laws of the
United States, as now in effect or hereafter amended, or any state thereof, and
such order, judgment or decree shall not be vacated or set aside or stayed
within thirty (30) days from the date of entry thereof.
11.5 In the event of a default by Licensee(s) hereunder which is not
cured beyond the applicable notice and/or cure periods set forth herein, Fortune
House may, at Fortune House's sole option, terminate this Agreement with respect
to such Licensee by written notice to either AIBC, Southeastern, or both, and
the parties shall have no remaining obligations hereunder, except for those
which expressly survive a termination hereof; provided, however, that no default
by AIBC shall entitle Fortune House to terminate any obligation it owes to
Southeastern, including, without limitation, the obligation to pay the
Guaranteed Broker Fee.
11.6 In the event of a default by Fortune House hereunder, which is
not cured beyond the applicable notice and/or cure periods set forth herein,
Southeastern may terminate this Agreement by written notice to Fortune House,
and Southeastern shall have no remaining obligations hereunder.
ARTICLE XII
REMEDIES
Time is of the essence with respect to the sale of Units by Fortune
House and the parties acknowledge that Fortune House will incur damages if
either AIBC or Southeastern, (or both), does not timely and completely perform
its promises under this Agreement, particularly if either Licensee loses its
authority, or license to conduct its business as required herein. Fortune House
may resort to any remedies granted under this Agreement in whole or in part, and
in such portions and in such order as determined by Fortune House in its sole
discretion. No such action shall in any way be considered a waiver of any
rights, benefits or remedies evidenced or provided by this Agreement. The
failure of Fortune House to exercise any right, remedy or option provided in
this Agreement shall not be deemed a waiver of such right, remedy or option or
of any covenant or obligation of the Licensees under this Agreement. No
acceptance by Fortune House of any payment after the occurrence of any Event of
Default shall be deemed to waive or cure any Event of Default with respect to
Licensees, or Licensees' liability to pay such obligation. No forbearance on the
part of
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ANNEX 1.1(B)
Fortune House or any other indulgence given by Fortune House to Licensees shall
operate to release or in any manner affect the interest of Fortune House or any
liabilities of the Licensees under this Agreement. No waiver by Fortune House
shall be effective unless it is in writing and then only to the extent
specifically stated.
ARTICLE XIII
INDEMNIFICATION
13.1 From and after the execution of this Agreement, each party shall
protect, defend, indemnify and save harmless the other parties hereto (the party
seeking indemnification being referred to as the "Indemnified Party") from and
against all liabilities, obligations, claims, demands, damages, penalties,
causes of action, losses, fines, costs and expenses (including without
limitation, out-of-pocket attorneys' fees and expenses whether at the pre-trial,
trial, or appellate levels), imposed upon or incurred by or asserted against a
party to this Agreement by reason of any failure on the part of such other party
(the "Indemnifying Party") to perform or comply in any material respect with any
of the terms of this Agreement, which failure continues beyond any applicable
notice and cure period. To the extent incurred prior to a settlement or
conclusion of any litigation arising hereunder, such reasonable costs and fees
shall be paid by the Indemnifying Party as incurred by the Indemnified Party.
Notwithstanding the foregoing, each party to this Agreement shall not be
obligated to indemnify for the gross negligence or willful misconduct of the
other parties or anyone claiming by, through or under said party and
furthermore, Southeastern shall have no obligation to indemnify any party for
any such liability arising in connection with any action or omission of any DPP
Representative, as such DPP Representatives are the agents of Fortune House.
Notwithstanding anything contained herein to the contrary, Southeastern will
only incur liability for its own acts and/or omissions; however, Southeastern
will not incur any liability whatsoever for any act and/or omission of any
Independent Contractor engaged by it. To avoid any confusion, the parties agree
that "Independent Contractor" shall mean any person who has his/her license
through Southeastern but who is responsible for his/her own expenses, including,
but not limited to, rent, utilities and payroll taxes.
13.2 The Indemnified Party shall promptly notify the Indemnifying
Party in writing of any claim for indemnification, specifying in detail the
basis of such claim, the facts pertaining thereto and, if known, the amount, or
an estimate of the amount, of the liability arising therefrom. The Indemnified
Party shall provide to the Indemnifying Party as promptly as practicable
thereafter all information and documentation necessary to support and verify the
claim asserted and the Indemnifying Party shall be given reasonable access to
all books and records in the possession or control of the Indemnified Party or
any of its affiliates which the Indemnifying Party reasonably determines to be
related to such claim. Any amounts payable to an Indemnified Party by reason of
the application of this Section shall be due and payable within 10 days of
demand, and if not paid within such 10-day period, shall bear interest at the
highest interest rate allowed by applicable law from the date loss or damage is
sustained by the Indemnified Party until paid. The obligations and
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ANNEX 1.1(B)
liabilities of each party under this Section shall survive any
termination, satisfaction, or assignment of this Agreement.
ARTICLE XIV
ARBITRATION
14.1 Except as otherwise provided in this Agreement, all claims,
disputes and other matters in question between the parties to this Agreement,
arising out of or relating to this Agreement or the breach thereof, shall be
settled by arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association then outstanding unless the parties
mutually agree in writing otherwise. The arbitration shall be conducted in a
neutral location by one arbitrator.
14.2 Notice of the demand for arbitration shall be filed in writing
with the other parties to this Agreement and with the American Arbitration
Association. The demand shall be made within a reasonable time after the claim,
dispute or other matter in question has arisen. In no event shall the demand for
arbitration be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter in question would be
barred by the applicable statute of limitations. Along with the notice of the
demand for arbitration, the party seeking arbitration shall supply the party(s)
that are the subject of the arbitration request with a list of three retired
Broward County, Florida, judges and said party shall, within ten days of receipt
of the notice, select one of the three persons identified on such list (the
"Arbitrator").
14.3 The award rendered by the Arbitrator shall be final, and judgment
may be entered upon it in accordance with the applicable law in any court having
jurisdiction thereof; provided, however that the Arbitrator shall make written
findings of fact and conclusion of law which accompanies and supports such
award. Each party shall pay their respective fees and costs; provided, however,
the Arbitrator may award such fees and costs as such Arbitrator may determine to
the prevailing party.
14.4 The parties reserve the right to seek a judicial temporary
restraining order, preliminary injunction, or other similar short term equitable
relief prior to the appointment of the Arbitrator. The Arbitrator will have the
right to make a final determination of the parties' rights including, without
limitation, whether to make permanent, modify or dissolve the judicial order.
ARTICLE XV
NOTICES
All notices, requests, demands and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given when personally delivered, sent by facsimile with a hard copy
sent by U.S. Mail, or by private overnight mail service,
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ANNEX 1.1(B)
e.g., Federal Express, to the party at the address set forth below or to such
other address as either party may from time to time give notice of in accordance
with the provisions hereof.
If to the Company: Terremark Fortune House #2, Ltd.
0000 Xxxxx Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, General Counsel
If to Southeastern: Southeastern Securities Inc.
00000 X. Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx, Xx 00000
Attn: Xxx Xxxxxxxx
If to AIBC: AIBC International Mortgage Finance, LC
00 X.X. 0xx Xxxxxx, Xxxxx 000
Xxxxx, Xx 00000
Attn: Xxxxx Xxxxxx
ARTICLE XVI
MISCELLANEOUS PROVISIONS
16.1 Governing Law. This Agreement shall be construed and interpreted
in accordance with the laws of the State of Florida.
16.2 Binding Effect. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
16.3 Expenses. Each party shall pay and be responsible for the costs
and expenses, including, without limitation, attorney's fees, incurred by such
party in connection with the negotiation, preparation and execution of this
Agreement and the transactions contemplated hereby; provided that Fortune House
shall pay and be responsible for such costs and expenses incurred by
Southeastern up to $5000 with respect to attorney's fees plus up to $2000 with
respect to initial regulatory costs and expenses.
16.4 Assignment. No party hereto may assign any of its rights or
delegate any of its obligations under this Agreement.
16.5 No Rights to Others. Nothing herein contained or implied is
intended or shall be construed to confer upon or give to any person, firm or
corporation, other than the parties hereto.
16.6 Counterparts. This Agreement may be executed simultaneously in
counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the
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ANNEX 1.1(B)
same agreement, binding upon all parties hereto, notwithstanding that
all parties are not signatories to the original or the same counterpart.
16.7 Litigation; Prevailing Party. In the event that any party hereto
brings suit for any matter arising out of or in connection with a breach of any
of the terms or provisions of this Agreement, then the prevailing party shall be
entitled to recover from the non-prevailing party all reasonable court costs and
attorneys' fees and expenses incurred by the prevailing party in connection with
such litigation at the arbitration, pre-trial, trial and appellate levels.
16.8 Waiver of Jury Trial. EACH PARTY HERETO AGREES NOT TO ELECT A
TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO
TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST WITH REGARD TO THIS AGREEMENT, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION
ARISING IN CONNECTION HEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN
KNOWINGLY AND VOLUNTARILY BY EACH PARTY, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. EACH PARTY IS HEREBY AUTHORIZED TO FILE A COPY OF
THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER.
16.9 Construction. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
specifications of any dollar amount in the representations and warranties or
otherwise in this Agreement is not intended and shall not be deemed to be an
admission or acknowledgment of the materiality of such amounts or items, nor
shall the same be used in any dispute or controversy between the parties to
determine whether any obligation, item or matter (whether or not described
herein or included in any schedule) is or is not material for purposes of this
Agreement.
16.10 Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
16.11 Incorporation of exhibits. All documents identified in this
Agreement as exhibits to the Agreement are hereby incorporated in the Agreement
and made an integral part of it.
16.12 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.
13
ANNEX 1.1(B)
16.13 Entire Agreement. This Agreement contains the entire
understanding of the parties hereto with respect to the transactions
contemplated hereby, and 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 the Licensees on behalf of Fortune House.
16.14 "License"/"Licensee". The respective terms "License" and
"Licensee" as used in this Agreement are not intended to confer any rights other
than those specifically granted in this Agreement.
16.15 Independent Contractor Status. The relationship between Fortune
House and Licensees shall be solely as that of an independent contractor and no
party shall be deemed a joint venturer, partner agent, representative or
employee of the other. Licensees are solely responsible for securing, at their
sole cost, workers' compensation insurance, disability benefits insurance and
any other insurance as may be required by law. Fortune House will not provide,
nor will it be responsible for, any benefits for Licensees. Any such benefits,
if provided by Licensees themselves, including, but not limited to, health
insurance, office space, paid vacations, paid holidays, sick leave or disability
insurance coverage of whatever nature, shall be secured and paid for by
Licensees. Notwithstanding the foregoing, any such benefits to be provided to
the DPP Representatives which have not been reimbursed to Southeastern pursuant
to Section 3.4 hereof will be provided by Fortune House directly to the DPP
Representatives.
IN WITNESS WHEREOF, the parties hereto have each executed this
Agreement as of the day and year first above written.
XXXXXXX XXXXX #0, LTD., a Florida
Limited Partnership
By: Xxxxxxx Xxxxx #0, Xxx., a Florida
corporation, its General Partner
By:_________________________________
Xxxxxx X. Xxxxxxx, Vice President
AIBC INTERNATIONAL MORTGAGE
FINANCE, LC, a Florida limited liability
company
By:_______________________________
Xxxxx Xxxxxx, President
SOUTHEASTERN SECURITIES, INC.,
14
ANNEX 1.1(B)
a Florida corporation
By:_______________________________
Xxx Xxxxxxxx, President
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