Exhibit 10.20
TRANSITION SERVICES AGREEMENT
This TRANSITION SERVICES AGREEMENT (this "AGREEMENT"), dated as of December
31, 2009, by and among CAPSTONE CAPITAL GROUP I, LLC., a Delaware limited
liability company ("CCGI"), CAPSTONE BUSINESS CREDIT, LLC, a Delaware limited
liability company ("CBC"), Capstone Capital Management, Inc., a Delaware
corporation ("CAPSTONE MANAGEMENT") and Capstone Trade Partners, Ltd. ("CAPSTONE
TRADE", and together with "CCGI", "CBC" and "Capstone Management", collectively
"CAPSTONE"), and JONING CORP., a Nevada corporation ("JONING").
WITNESSETH:
WHEREAS, Capstone and Joning are parties to those four certain Assignment
and Assumption Agreements, dated December 30, 2009 (collectively, the
"ASSIGNMENTs") pursuant to which Capstone assigned their right, title and
interest in and to the Loans under the Loan Documents (as more fully described
in the Assignments) to Joning (capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to them in the Assignments);
WHEREAS, the parties have determined that it is not possible for all of the
rights and obligations of the Loans to be conveyed by Capstone to Joning on the
date of the Assignments (hereinafter referred to as the "CLOSING DATE"); and
WHEREAS, Capstone has agreed, in connection with the transactions
contemplated by the Assignments, to provide those services, employees and
facilities reasonably necessary for Joning's business during the transitional
period following the date hereof.
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
promises herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
Section 1. Provision of Transition Services. For the purpose of
facilitating an orderly transition of the Loans following the Closing Date from
Capstone to Joning, Capstone shall provide Joning the following (the "TRANSITION
SERVICES"):
(a) Personnel and Office Space. Until such time as Joning is a fully
operating, publicly reporting and/or publicly traded company, Capstone
shall provide personnel, office supplies, office equipment, office
space and any other materials required for the performance of Joning's
business.
Section 2. Term. Capstone shall provide the Transition Services to Joning
commencing on the Closing Date and until December 31, 2010 or at any such time
prior to December 31, 2010 by a writing signed by the parties hereto.
Section 3. Payment and Reimbursement. Joning shall pay or reimburse
Capstone for all costs and expenses reasonably incurred in connection with the
Transition Services.
Section 4. Indemnification. Joning hereby agrees to indemnify, defend and
save Capstone and its present and future officers, directors, members,
affiliates, employees, controlling persons, agents, representatives, successors
and assigns forever harmless from and against such liabilities (whether
contingent, fixed or unfixed, liquidated or unliquidated, or otherwise),
obligations, deficiencies, demands, claims, suits, actions, or causes of action,
assessments, losses, costs, expenses, interest, fines, penalties, and actual or
punitive damages (including fees and expenses of attorneys, accountants and
other experts) (individually and collectively, "Losses") actually suffered,
sustained or incurred by Capstone relating to, resulting from or arising out of
this Agreement or the performance of services hereunder, except as caused by the
gross negligence or willful misconduct of Capstone, as finally determined by a
court of competent jurisdiction.
Section 5. Independent Contractor. Capstone understands and agrees that
Capstone is acting as an independent contractor and nothing in this Agreement is
intended to create a relationship, express or implied, of employer-employee or
principal-agent between Capstone and Joning.
Section 6. Force Majeure. Each party shall be excused from its obligations
hereunder while and to the extent that its performance of such obligations is
prevented by governmental regulation or order, or by war, declared or
undeclared, or other calamites such as fire, earthquake, flood, epidemic or
similar acts of God, or as a result of a terrorist act, riot, fire or explosion,
or by reason of strike, lockout or labor controversy, or because of other
similar or dissimilar causes in each case that is beyond the control of such
party. In the event of such casualty, each party shall be responsible for making
its own alternate arrangements with respect to the services provided to it which
were interrupted; however, the parties agree to cooperate with one another to
restore any such interruption as soon as reasonably practicable.
Section 7. Amendment and Waiver. This Agreement may not be altered,
extended or amended, nor may rights hereunder be waived, except by an instrument
in writing executed by the party or parties to be charged with such amendment or
waiver. The waiver or failure of any party to exercise in any respect any right
provided hereunder shall not be deemed a waiver of such right in the future or a
waiver of any other rights established under this Agreement.
Section 8. Notice. All notices, requests, demand, and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given and made upon being delivered either by courier
or fax delivery to the party for whom it is intended, provided that a copy
thereof is deposited, postage prepaid, certified or registered mail, return
receipt requested, in the United States mail, bearing the address shown in this
section for, or such other address as may be designated in writing hereafter by,
such party:
If to Joning: Joning Corp.
c/o Capstone Business Credit, LLC
1350 Avenue of the Americas,
24th Floor
New York, New York 10019
Fax No.: (212) 755-6833
Attn.: Mr. Joseph Ingrassia
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Section 9. Entire Agreement. This Agreement embodies the entire agreement
and understanding of the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings relative to such subject matter.
Section 10. Severability. If any provision hereof shall be held invalid or
unenforceable by any court of competent jurisdiction or arbitration tribunal or
as a result of future legislative action, such holding or action shall be
strictly construed and shall not affect the validity or effect of any other
provision hereof, as long as the remaining provisions, taken together, are
sufficient to carry out the overall intentions of the parties as evidenced
hereby.
Section 11. Assignment; Binding Agreement. This Agreement and various
rights and obligations arising hereunder shall inure to the benefit of and be
binding upon the parties hereto and their successors and permitted assigns.
Neither this Agreement nor any of the rights, interests or obligations hereunder
shall be transferred, delegated or assigned by the parties hereto without the
prior written consent of the other party, which such consent shall not be
unreasonably withheld.
Section 12. Governing Law; Jurisdiction.
(a) This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York applicable to contracts made and to
be performed wholly within said State, without giving effect to the
conflict of laws principles thereof.
(b) Each party to this Agreement irrevocably submits to the exclusive
jurisdiction of (i) the courts of the State of New York located in New
York County and (ii) the United States District Court for the Southern
District of New York, for the purposes of any action arising out of
this Agreement or the transactions contemplated hereby.
Section 13. Counterparts. This Agreement may be executed simultaneously in
multiple counterparts, and in separate counterparts, including by facsimile,
each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
Section 14. Attorneys' Fees. The prevailing party in any dispute arising
out of or in connection with this Agreement shall be entitled to recover
reasonable attorneys' fees and costs.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Transition Services
Agreement to be executed as of the day and year first above written.
CAPSTONE CAPITAL GROUP I, LLC JONING CORP.
By /s/ Joseph F. Ingrassia By /s/ Robert L. Olson
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Its Managing Member Its Chief Financial Officer
CAPSTONE BUSINESS CREDIT, LLC
By /s/ Joseph F. Ingrassia
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Its Managing Member
CAPSTONE CAPITAL MANAGEMENT, INC.
By /s/ Joseph F. Ingrassia
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Its VP
CAPSTONE TRADE PARTNERS, LTD.
By /s/ Joseph F. Ingrassia
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Its VP
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