EXHIBIT 10.105
EXECUTION COPY
THE ALLIANCE FOR AFFORDABLE SERVICES
SUCCESS DRIVEN AWARDS, INC.
FIELD SERVICES AGREEMENT
This agreement (the "Agreement") is made and entered into effective as of
January 1, 2005 by and between Success Driven Awards, Inc., a Texas corporation
("SDA"), and the Alliance for Affordable Services, a membership organization
that is organized under the laws of the District of Columbia (the "ALLIANCE").
WHEREAS, the ALLIANCE is a membership organization that provides and/or
makes available to its members a variety of services and benefits;
WHEREAS, SDA is a nationwide sales and marketing organization that is
capable of performing the Services (as defined in Section 2, below) for the
ALLIANCE
WHEREAS, SDA desires to perform the Services for the ALLIANCE on the
terms and conditions contained herein;
WHEREAS, the ALLIANCE desires to retain SDA to perform the Services on
the terms and conditions contained herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter set forth, the receipt and sufficiency of which is
acknowledged by the Parties hereto, the ALLIANCE and SDA hereby agree as
follows:
1. FSRS. SDA shall, during the Term of this Agreement, recruit, contract
with, train, supervise and compensate independent field service representatives
("FSRs") capable of performing the Services provided for herein.
2. SERVICES TO BE PERFORMED BY SDA. SDA agrees to perform and to cause
the FSRs to perform the following services (collectively, the "Services"):
(a) To solicit for the ALLIANCE "new members," as such term is defined
in the By-Laws of the ALLIANCE;
(b) To work with the members of the ALLIANCE to encourage such members
to maintain their continued membership in the ALLIANCE and to renew any
ALLIANCE benefit programs in which such members may be enrolled;
(c) To submit each application for membership or completed enrollment
form to the ALLIANCE within fifteen days of receipt of same from the member or
prospective member;
(d) To collect and remit to the ALLIANCE or its designee the initial
fees and dues from applicants for membership in the ALLIANCE and any renewal
fees and dues from current members of the ALLIANCE in accordance with the
schedule of fees and dues set forth in Schedule 1 attached hereto and made a
part hereof, which Schedule 1 the ALLIANCE may revise upon not less than thirty
(30) days' written notice to SDA (the "Schedule of Fees and Dues");
THE ALLIANCE SDA FIELD SERVICES AGREEMENT PAGE 1
(e) To maintain such facilities at such locations as shall be agreed to
between SDA and the FSRs in order to facilitate the performance of the Services;
(f) To arrange for the FSRs to acquire leads for use in soliciting new
memberships;
(g) To render the reports to the ALLIANCE set forth in Section 4, below;
(h) To take all reasonable steps to ensure that the marketing materials
used by the FSRs: (i) comply with all applicable state and Federal laws
and (ii) have been approved in writing by the ALLIANCE; and
(i) To provide such other member recruitment, solicitation and retention
services as the ALLIANCE reasonably may request in writing.
3. LIMITATIONS ON SDA'S AUTHORITY. It is agreed that SDA shall be
subject to the following limitations in carrying out its obligations hereunder:
(a) SDA has no authority, express or implied, to bind the ALLIANCE to
any contractual relationship, to any member, or for any benefits, services or
obligations, except as is expressly provided herein;
(b) SDA has no authority to waive any requisites or conditions of
membership prescribed by the ALLIANCE or to quote membership fees or dues that
vary in any way from the schedule of fees and dues provided from time to time
by the ALLIANCE to SDA on Schedule 1 hereto or any revision thereof that is
approved in writing by the Board of Directors of the ALLIANCE; and
(c) SDA and the FSRs shall have the limited right and license to use
the trade names and service marks, "Alliance for Affordable Services,"
"ALLIANCE," as well as the "ALLIANCE design mark" as shown in Exhibit A
attached hereto (collectively, the "Marks") on advertising, promotional
materials and business cards used to market ALLIANCE memberships. SDA and FSR
agree that all such uses of the Marks will be used in connection with marketing
services that are of good quality and high standard. Such uses of the Marks by
SDA and the FSRs shall inure solely to the benefit of the ALLIANCE.
All uses of the Marks must be submitted to the ALLIANCE, prior to such
use by SDA and/or the FSRs. SDA and/or the FSRs shall have the right to use
the Marks if the ALLIANCE does not respond to SDA within ten (10) business days
of SDA submitting such advertising, promotional materials and business cards
to the ALLIANCE. SDA and the FSRs will comply with conditions set forth from
time-to-time by the ALLIANCE with respect to the form, style, appearance and
manner of use of the Marks. SDA and the FSR further agree to include, where
practical, in connection with the Marks, the proper designation "R" (R) or
"TM" as well as the recitation, where appropriate, that the "[Mark] is a
registered service mark of the Alliance for Affordable Services." SDA shall be
responsible for and shall indemnify the ALLIANCE as provided for in Section 8
herein for any claims, damages, costs or expenses arising out of any non-
approved uses of the Marks by SDA and/or the FSRs. Upon termination of this
Agreement, all rights to use the Marks shall immediately cease. Upon
termination, SDA and the FSRs agree to provide a full accounting to the
ALLIANCE with respect to all remaining advertising, promotional materials,
business cards, broadcast scripts, web site content and all other forms of
communication in any medium which have been produced, but which have not yet
been distributed or used, and its intended method of disposing of such
materials.
THE ALLIANCE SDA FIELD SERVICES AGREEMENT PAGE 2
4. SDA'S REPORTS.
(a) Annual Reports. Within 90 days after the end of each calendar year
during the Term hereof, SDA shall submit written reports to the ALLIANCE
setting forth the following information:
(i) FSR Report. The number of FSRs retained by SDA at the
beginning of the year to solicit the ALLIANCE memberships, the number of
such FSRs newly contracted with by SDA during such year, the number of
such FSRs whose contracts with SDA terminated during such year and the
number of such FSRs under contract with SDA at the end of such year;
(ii) New Member Report. The number of applications for the
ALLIANCE membership submitted by SDA during such year and the number of
new ALLIANCE memberships sold by SDA during such year.
(iii) Complaint Report. In summary form, the number, source
(prospect, member, better business bureau, or other) and general nature
of complaints made against FSRs in connection with their solicitation of
ALLIANCE memberships during such year, the number of such complaints
disposed of during such year and, in the case of any material complaints
pending at year end, a brief description of the specific nature and
status thereof; and
(iv) Litigation Report. The number of legal actions brought
against SDA or the ALLIANCE with respect to the solicitation of the
ALLIANCE's members or SDA's carrying out of its other duties under this
Agreement during such year, the number of such actions disposed of during
the year and a brief description of any material litigation pending at
year-end.
(b) Quarterly Reports. Within the later of 30 days after the end of
each calendar quarter during the Term hereof (other than the fourth quarter of
each year) or ten days after the ALLIANCE's request, SDA shall also provide to
the ALLIANCE an FSR Report, a New Member Report, a Complaint Report and a
Litigation Report, as described in Section 4 (a)(i), (ii), (iii) and (iv)
above, in each case as of the end of and for such calendar quarter.
(c) Other Reports. SDA shall also provide such other reports to the
ALLIANCE as may reasonably be requested by the ALLIANCE during the Term hereof.
5. COMPENSATION. The compensation payable to SDA hereunder is set forth
in Schedule 2 and Schedule 3, which are attached hereto and made a part hereof,
as the same may be amended or supplemented from time to time by written
agreement of the Parties. Compensation based on the ALLIANCE's fees and/or
dues shall be deemed to be earned by and payable to SDA only upon actual
receipt by the ALLIANCE of the fees and/or dues from the ALLIANCE applicants or
members. If any of the ALLIANCE fees or dues are refunded at any time and for
any reason, including rejection of an application or cancellation of a
membership, SDA shall refund, which may be by way of offset, to the ALLIANCE
any compensation SDA received that was based on such refunded fees or dues.
The ALLIANCE reserves the right to reject membership applications and to cancel
memberships and to refund to applicants and members all fees and dues related
thereto. The obligation of the ALLIANCE to pay fees to SDA shall survive any
expiration or termination of this Agreement as to memberships that are in place
at such expiration or termination for so long as such memberships are renewed.
6. CONFIDENTIALITY: Each Party recognizes that in the course of exercising
its rights and performing its obligations under this Agreement it will come into
possession of confidential or proprietary information of the other Party or of
customers of the other Party ("Confidential Information"). Each Party agrees
that it will not disclose to anyone not a Party to this Agreement any
Confidential Information
THE ALLIANCE SDA FIELD SERVICES AGREEMENT PAGE 3
of the other Party or its customers, nor use any such Confidential Information
except to the extent necessary to carry out its obligations hereunder. Each
Party agrees to comply with the confidentiality requirements imposed on it by
state and Federal law. Confidential Information does not include information
which (i) is or becomes generally available to the public other than pursuant to
a violation of this Agreement, (ii) was available to a Party on a
non-confidential basis prior to its disclosure by the other Party or its
customer to the such Party or (iii) became available to a Party on a
non-confidential basis from a third party who was not bound by a confidentiality
agreement with respect to such information.
7. REPRESENTATIONS AND WARRANTIES:
(a) SDA hereby represents and warrants to the ALLIANCE as follows:
(i) SDA is a corporation duly organized, validly existing and in
good standing under the laws of the State of Texas and has all necessary
corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby and to perform its
obligations hereunder.
(ii) All corporate and other actions or proceedings required to be
taken by or on the part of SDA to authorize and permit the execution and
delivery by it of this Agreement, the performance by it of its obligations
hereunder, and the consummation by it of the transactions contemplated
herein have been duly and properly taken.
(iii) This Agreement constitutes the legal, valid and binding
obligation of SDA, enforceable against it in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect which
affect the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies.
(iv) No authorization, approval, or consent of, and no filing or
registration with, any Governmental Authority or third party is or will be
necessary for the execution, delivery of this Agreement, or performance by
SDA or for the validity or enforceability thereof, except for such
approvals or consents that have been obtained or made.
(b) The ALLIANCE hereby represents and warrants to SDA as follows:
(i) the ALLIANCE is a membership organization duly organized,
validly existing and in good standing under the Not-For-Profit Corporation
Law of the District of Columbia and has all necessary corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby and to perform its obligations hereunder.
(ii) All corporate and other actions or proceedings required to be
taken by or on the part of the ALLIANCE to authorize and permit the
execution and delivery by it of this Agreement, the performance by it of
its obligations hereunder, and the consummation by it of the transactions
contemplated herein have been duly and properly taken.
(iii) This Agreement constitutes the legal, valid and binding
obligation of the ALLIANCE, enforceable against it in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws in
effect which affect the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies.
THE ALLIANCE SDA FIELD SERVICES AGREEMENT PAGE 4
(iv) No authorization, approval, or consent of, and no filing or
registration with, any Governmental Authority or third party is or will be
necessary for the execution, delivery of this Agreement, or performance by
the ALLIANCE or for the validity or enforceability thereof, except for
such approvals or consents that have been obtained or made.
For purposes of this Section 7, a "Governmental Authority" shall mean any nation
or government, any state or political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory, or administrative
functions of or pertaining to government.
8. INDEMNIFICATION:
(a) Indemnification by SDA: SDA agrees to indemnify and hold harmless the
ALLIANCE and each of the ALLIANCE's officers, directors, employees and agents
(collectively, "the ALLIANCE Indemnified Party") from and against any and all
losses, damages (including, without limitation, actual damages, compensatory
damages, punitive damages and extra-contractual damages), liabilities,
penalties, regulatory fines, costs and expenses (including, without limitation,
attorneys' fees, investigation costs and all other reasonable costs associated
with the defense thereof) (collectively, "Losses"), as incurred, arising out of
or relating to the following:
(i) any breach of, or any inaccuracy in, any representation or
warranty made by SDA in this Agreement;
(ii) any breach of, or failure by, SDA to perform any covenant or
obligation of SDA set out in this Agreement;
(iii) any violations by any FSR of any state or federal statutes,
rules or regulation, including without limitation any Losses arising out
of any non-approved uses of the Marks by SDA and/or the FSRs; and
(iv) any other Loss resulting from, or arising out of any acts,
occurrences or matters caused by SDA, including but not limited to the
independent FSRs under contract with SDA, provided that such Loss was not
caused in whole or in material part by the affirmative act or omission
(but this shall not include any alleged or proven negligence or negligent
acts or omissions) of an ALLIANCE Indemnified Party.
(b) Indemnification by ALLIANCE. ALLIANCE agrees to indemnify and hold
harmless SDA and each of SDA's officers, directors, employees and agents
(collectively, an "SDA Indemnified Party") from and against any and all Losses,
as incurred, arising out of or relating to:
(i) any breach of, or any inaccuracy in, any representation or
warranty made by ALLIANCE in this Agreement;
(ii) any breach of, or failure by, ALLIANCE to perform any
covenant or obligation set out in this Agreement; and
(iii) any other Loss resulting from, or arising out of any acts,
occurrences or matters caused by ALLIANCE, provided that such Loss was
not caused in whole or in material part by the affirmative act or
omission (but this shall not include any alleged or proven negligence or
negligent acts or omissions) of a SDA Indemnified Party, and excluding
any Losses incurred, arising out or relating to any claims that the
ALLIANCE is not a valid association to which an association group policy
of health insurance may be issued.
THE ALLIANCE SDA FIELD SERVICES AGREEMENT PAGE 5
(c) Conduct of Indemnification Proceedings.
(i) If any proceeding shall be brought or asserted against any
person and/or entity entitled to indemnity hereunder (an "Indemnified
Party"), such Indemnified Party promptly shall notify the person from
whom indemnity is sought (the "Indemnifying Party") in writing, and the
Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified Party
and the payment of all reasonable fees and expenses incurred in
connection with the defense, including attorneys' fees; provided,
however, that the failure of any Indemnified Party to give such notice
shall not relieve the Indemnifying Party of its obligations or
liabilities pursuant to this Agreement, except to the extent (and only to
the extent) that it shall be finally determined by a court of competent
jurisdiction that such failure shall have proximately and materially
adversely prejudiced the Indemnifying Party.
(ii) An Indemnified Party shall have the right to employ separate
counsel in any such proceeding and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such
Indemnified Party or Parties unless: (1) the Indemnifying Party has
agreed in writing to pay such fees and expenses; or (2) the Indemnifying
Party shall have failed promptly to assume the defense of such Proceeding
and to employ counsel reasonably satisfactory to such Indemnified Party
in any such Proceeding; or (3) the named parties to any such proceeding
(including any impleaded parties) include both such Indemnified Party and
the Indemnifying Party, and such Indemnified Party shall have been
advised by counsel that a conflict of interest is likely to exist if the
same counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel
at the expense of the Indemnifying Party, the Indemnifying Party shall
not have the right to assume the defense thereof and such counsel shall
be at the reasonable expense of the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such
proceeding effected without its written consent, which consent shall not
be unreasonably withheld, delayed or conditioned. No Indemnifying Party
shall, without the prior written consent of the Indemnified Party, effect
any settlement of any pending proceeding as to which any Indemnified
Party is a party, unless such settlement includes an unconditional
release of such Indemnified Party from any and all liability on claims
that are the subject matter of such proceeding and does not require the
Indemnified Party to pay any monies or acknowledge any wrongdoing.
(iii) All fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection with
investigating or preparing to defend such proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party,
as incurred, within ten (10) business days of a detailed written notice
thereof to the Indemnifying Party (regardless of whether it is ultimately
determined that an Indemnified Party is not entitled to indemnification
hereunder; provided, that the Indemnifying Party may require such
Indemnified Party to undertake to reimburse all such fees and expenses to
the extent it is finally judicially determined that such Indemnified
Party is not entitled to indemnification hereunder).
9. RELATIONSHIP OF THE PARTIES. The relationship of the Parties created
hereby is that of independent contractors, and each Party has and retains the
right to full control over the performance of its obligations hereunder.
Neither Party is an employee, joint venturer, affiliate or partner of the
other, and neither Party shall have any right or authority to create or assume
any obligation of any kind on behalf of the other Party. SDA shall be free to
exercise its own judgment, and the FSRs shall be free to exercise their own
judgment as to the persons from whom FSRs will solicit memberships for the
ALLIANCE and the time
THE ALLIANCE SDA FIELD SERVICES AGREEMENT PAGE 6
and place of such solicitations; provided, however, that applicants for
membership in the ALLIANCE shall be admitted at the discretion of the ALLIANCE
Board of Directors.
10. AUDIT RIGHTS. Each Party, for itself or by its agents, shall have the
right, on reasonable written notice to the other Party and, during regular
business hours of the other Party, to review and audit the books and records of
the other Party relating to the obligations of such other Party hereunder. The
requesting Party shall reimburse the other Party for reasonable expenses,
excluding attorneys' fees, incurred by the other Party in assisting the
requesting Party in the review and audit. The provisions of this Section 10
shall survive for a period of two (2) years after the termination or expiration
of this Agreement.
11. FORCE MAJEURE. Neither Party shall be held responsible for any delay
or failure in performance of any part of this Agreement to the extent such
delay or failure is caused by fire, flood, explosion, war, terrorist act,
strike, embargo, government requirement, civil or military authority, act of
God or other similar causes beyond its control and without the fault or
negligence of the delayed or non-performing Party ("Force Majeure Conditions").
If any Force Majeure Condition occurs, the Party delayed or unable to perform
shall give immediate notice to the other Party, stating the nature of the Force
Majeure Condition and any action being taken to avoid or minimize its effect
and its estimate of how long such delay or failure will continue. If the Force
Majeure Condition continues for a period of at least one hundred eighty (180)
days, either Party may terminate this Agreement by delivery of written notice
to the other Party.
12. NOTICES. Any notice, request, instruction or other communication to
be given hereunder by a Party hereto shall be in writing and shall be deemed to
have been given, (i) when received if given in person or by a messenger or
courier service, (ii) on the date of confirmed transmission if sent by
facsimile or other wire transmission or (iii) three (3) Business Days after
being deposited in the U.S. mail, certified or registered, postage prepaid,
addressed as follows:
If to the ALLIANCE:
Alliance for Affordable Services
Mangrove Office Building
17757 U.S. Highway 19, North
Suite 260
Clearwater, Florida 33764
Attention: William Callaghan
Facsimile No.: (727) 531 2778
With a copy to:
Alliance for Affordable Services
P.O. Box 612547
Dallas, Texas 75261
Attention: Lee Strahan
Facsimile No.: (800) 847 8889
If to SDA:
Success Driven Awards, Inc.
9151 Grapevine Highway
THE ALLIANCE SDA FIELD SERVICES AGREEMENT PAGE 7
North Richland Hills, Texas 76180
Attention: President
Facsimile No.: (817) 255 5394
With a copy to:
UICI
9151 Grapevine Highway
North Richland Hills, Texas 76180
Attention: Executive Vice President and General Counsel
Facsimile No.: (817) 255-5394
or to such other individual or address as a Party hereto may designate for
itself by notice given as herein provided.
13. WAIVERS. The failure of either Party hereto at any time or times to
require performance of any provision hereof shall in no manner affect its right
at a later time to enforce the same or any other provision. No waiver by a
Party of any condition or of any breach of any term, covenant, representation
or warranty contained in this Agreement shall be effective unless in writing,
and no waiver in any one or more instances shall be deemed to be a further or
continuing waiver of any such condition or breach in other instances or a
waiver of any other condition or breach of any other term, covenant,
representation or warranty.
14. COUNTERPARTS. This Agreement may be executed in counterparts,
including by facsimile signatures, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
15. INTERPRETATION. The headings preceding the text of Sections included
in this Agreement are for convenience only and shall neither be deemed part of
this Agreement nor be given any effect in interpreting this Agreement. The use
of the masculine, feminine or neuter gender herein shall not limit any
provision of this Agreement. The use of the terms "including" or "include"
shall in all cases herein mean "including, without limitation" or "include,
without limitation," respectively. The Parties have jointly participated in
the negotiation and drafting of this Agreement. In the event of any ambiguity
or if a question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by all Parties and no presumption or burden of
proof shall arise favoring any Party by virtue of the authorship of any
provisions of this Agreement.
16. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and assigns.
Notwithstanding the foregoing, no assignment of any rights or obligations shall
be made by either Party without the prior written consent of the other Party.
17. NO THIRD PARTY BENEFICIARIES. This Agreement is solely for the
benefit of the Parties hereto and no provision of this Agreement shall be
deemed to confer upon any third parties any remedy, claim, liability, cause of
action or other right.
18. FURTHER ASSURANCES. Upon reasonable request of either Party, the
other Party will execute and deliver such other documents as may be required to
effectuate completely the purposes of this Agreement.
19. SEVERABILITY. If any provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions hereof shall not be affected thereby, and
THE ALLIANCE SDA FIELD SERVICES AGREEMENT PAGE 8
there shall be deemed substituted for the provision at issue a valid, legal and
enforceable provision as similar as possible to the provision at issue.
20. REMEDIES CUMULATIVE. The remedies provided in this Agreement shall be
cumulative and shall not preclude the assertion or exercise of any other rights
or remedies available by law, in equity or otherwise.
21. ENTIRE AGREEMENT; AMENDMENTS. This Agreement sets forth the entire
agreement and understanding of the Parties with respect to the matters set
forth herein and supersedes any and all prior written or oral discussions,
negotiations, proposals, agreements, arrangements and understandings among the
Parties relating thereto. The provisions of this Agreement may not be
modified, changed, amended or rescinded in any manner except by a written
instrument signed by an authorized representative of all of the Parties hereto.
22. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, without reference to its choice
of law rules.
23. BINDING ARBITRATION. Any dispute, controversy, or claim among or
between the Parties relating to or arising from this Agreement shall be
submitted to and settled by binding arbitration ("Arbitration"), administered
by the Dallas, Texas office of the American Arbitration Association ("AAA") and
conducted pursuant to the current rules of the AAA governing commercial
disputes. The Arbitration hearing shall take place in Dallas, Texas, unless
otherwise agreed to by the Parties. Such Arbitration shall be before three
neutral arbitrators (the "Panel") licensed to practice law and familiar with
commercial disputes. Any award rendered in any Arbitration shall be final and
conclusive upon the Parties, and the judgment thereon may be entered in the
highest court of the forum (state or federal) having jurisdiction over the
issues addressed in the Arbitration. The administration fees and expenses of
the Arbitration shall be borne equally by the ALLIANCE and SDA, provided that
each Party shall pay for and bear the cost of its own experts, evidence, and
attorney's fees, except that, in the discretion of the Panel, any award may
include the cost of a Party's counsel and/or its share of the expense of
Arbitration if the Panel expressly determines that an award of such costs is
appropriate to the Party whose position substantially prevails in such
Arbitration. To submit a matter to Arbitration, the Party seeking redress
shall notify in writing the Party against whom such redress is sought, describe
the nature of such claim, the provision of this Agreement that has allegedly
been violated and the material facts surrounding such claim. The Panel shall
render a single written decision. The decision of the Panel shall be binding
upon the Parties, and after the completion of such Arbitration, the Parties may
only institute litigation regarding the Agreement for the sole purpose of
enforcing the determination of the Arbitration hearing or seeking injunctive or
equitable relief.
24. TERM AND TERMINATION.
(a) The term (the "Term") of this Agreement shall commence on the date
hereof and shall continue until December 31, 2005, and shall automatically be
extended from year to year thereafter unless either Party gives the other Party
not less than twelve (12) months' written notice that the Term will not be
extended. During the twelve (12) month termination period, the provisions of
this Agreement shall continue in full force and effect.
(b) This Agreement may be terminated by either Party hereto (the
"Terminating Party") upon not less than forty-five (45) days' prior written
notice to the other Party (the "Defaulting Party") upon the occurrence of any
of the following events:
THE ALLIANCE SDA FIELD SERVICES AGREEMENT PAGE 9
(i) Any representation, warranty or certification made or deemed
made by the Defaulting Party (or any of its respective officers)
hereunder or in any certificate, report, notice, or financial statement
furnished at any time in connection with the Agreement shall be false,
misleading, or erroneous in any material respect when made or deemed to
have been made.
(ii) The Defaulting Party shall fail to perform, observe, or
comply with any material covenant, agreement, or term contained in the
Agreement and such failure shall continue for a period of thirty (30)
days after the date the Terminating Party provides the Defaulting Party
with notice thereof.
(iii) The Defaulting Party shall admit in writing its inability
to, or be generally unable to, pay its debts as such debts become due.
(iv) The Defaulting Party shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver,
rehabilitator, conservator, custodian, trustee, liquidator or the like of
itself or of all or a substantial part of its property, (ii) make a
general assignment for the benefit of its creditors, (iii) commence a
voluntary case under the United States Bankruptcy Code (as now or
hereafter in effect, the "Bankruptcy Code"), (iv) institute any
proceeding or file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, liquidation,
dissolution, winding-up, or composition or readjustment of debts, (v)
fail to controvert in a timely and appropriate manner, or acquiesce in
writing to, any petition filed against it in an involuntary case under
the Bankruptcy Code or under any other such law, or (vi) take any
corporate or other action for the purpose of effecting any of the
foregoing.
(v) A proceeding or case shall be commenced, without the
application, approval or consent of the Defaulting Party, in any court of
competent jurisdiction, seeking (i) its reorganization, liquidation,
dissolution, arrangement or winding-up, or the composition or
readjustment of the Defaulting Party's debts, (ii) the appointment of a
receiver, rehabilitator,
THE ALLIANCE SDA FIELD SERVICES AGREEMENT PAGE 10
conservator, custodian, trustee, liquidator or the like of such entity or
of all or any substantial part of its property, or (iii) similar relief
in respect of the Defaulting Party under any law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of
debts, and such proceeding or case shall continue undismissed, or an
order, judgment or decree approving or ordering any of the foregoing
shall be entered and continue unstayed and in effect, for a period of
sixty (60) or more days; or an order for relief against the Defaulting
Party shall be entered in an involuntary case under the Bankruptcy Code.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
and delivered as of the date first above written.
ALLIANCE FOR AFFORDABLE SERVICES SUCCESS DRIVEN AWARDS, INC.
By: ________________________________ By: __________________________________
William D. Callaghan, President Consuelo Palacios, Vice President
Date: _______________________________ Date:________________________________
THE ALLIANCE SDA FIELD SERVICES AGREEMENT PAGE 11