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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 O. Pappalimberis Trust (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 Company an indirect economic interest in
the Non-U.S. Based Enterprise, both solely as provided in this Agreement; and
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WHEREAS, concurrently with this Agreement, the Company is entering into
an agreement (the "Other Agreement") substantively the same as this Agreement
with the Renaissance Trust I (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 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).
(v) "Current" means, with respect to an Account, that there is no
payment which is unpaid more than ten days after the due date.
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(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, 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
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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 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
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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. 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.
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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 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
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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
duty 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: O. Pappalimberis Trust
c/o Barry Feiner
745 Fifth Avenue
Suite 1701
New York, New York 10151
Fax: (212) 688-3043
To the Company at: 565 Taxter Road
Elmsford, New York 10523
Attn: Jay L. Botchman, President
Fax: (914) 592-1882
With a copy to: Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, New York 10036-8735
Attn: Melvin Weinberg, Esq.
Fax: (212) 704-6288
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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 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
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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 fists 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.
(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.
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(h) Severability. 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.
(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-
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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.
(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
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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.
O. PAPPALIMBERIS TRUST SERVICE ONE INTERNATIONAL
CORPORATION
By: Ionian Trust Company By: /s/ Jay L. Botchman
--------------------
Name: Jay L. Botchman
Title: Chairman
By: /s/ Barry Feiner
-----------------------------------
Barry Feiner, Attorney-in-fact
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