SHORT FORM FUND DEVELOPMENT CONSULTING AGREEMENT
THIS AGREEMENT is made as of __________________, 2015 between __________________
______, a ________________________ Company (the “Client”) and ————– (the “Consultant”).
In the event of a conflict in the provisions of any attachments hereto and the provisions set forth in this Agreement, the provisions of such attachments shall govern.
A. The Client is contemplating the formation of a fund to purchase distressed debt and equities (the “Project”).
B. The Client would like to engage the Consultant to perform certain services related to the planned project outlined in paragraph A above.
1. SERVICES. Consultant will act as an advisor to Client for the Project. The consultant will provide strategic and detailed advice on planning, structuring, and other services that will include, but may not be limited to, financial analysis and budgeting, structuring, drafting offering memoranda and supporting documents, coordination with Client personnel and authorized third parties, review of various consultant reports or work product, exit strategies, schedules, and other consulting services that Consultant may perform for the Project, whether such services are undertaken by the Consultant pursuant to a contract or license. The Consultant will make Client aware of any services that would be better completed by a third party company or firm as appropriate.
2. TERM OF AGREEMENT. Consultant will begin work when Client gives written approval to begin work and remits Retainer payment to Consultant. The parties hereby agree and acknowledge that time is of the essence in the performance of this Agreement. Either party may cancel this Agreement upon seven (7) Business Days’ notice to the other party in writing by certified mail to the address specified in Section 19. Once notice is received, all Consultant’s work will stop and the Client will pay Consultant the actual hours expended since the initiation of work on the Services plus any Reimbursable Expenses. Any remaining Retainer held will be returned to the Client.
3. PLACE WHERE SERVICES WILL BE RENDERED. The Consultant will perform Services in accordance with this Agreement at a location of Consultant’s discretion. In addition, the Consultant will perform Services on the telephone and at such other place(s) as necessary to perform these Services in accordance with this Agreement.
4. RATE OF PAYMENT FOR SERVICES. Client agrees to pay Consultant for Services for work performed at the rate of US $900.00 per hour for Consultant principals
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and US $400.00 per hour for Consultant associates. Any Services performed exceeding fifteen (15) minutes will be rounded up to one hour. Fees will be charged and applied against the Retainer. In addition, the Client will reimburse the Consultant for any reasonable Reimbursable Expenses incurred by the Consultant pursuant to the terms of this Agreement and approved by Client in advance and in writing. Consultant will perform Services for the fees stated above assuming the scope of the Services does not change. Changes in the scope of Services are allowed if mutually agreed upon in writing and may or may not incur additional cost to Client.
5. RETAINER. A retainer will be paid to Consultant by the Client in advance of any work under this Agreement in the amount of US $30,000.00, and will be applied by Client in advance of any work under this Agreement on account of the fee for such work. Consultant reserves the right to ask for an additional Retainer as the Agreement progresses. Any unused amount of the Retainer will be returned to Client at the conclusion of the Agreement.
6. REIMBURSABLE EXPENSES. Reimbursable Expenses are not included in the above Rate of Payment for Services. Reimbursable Expenses would include, but not be limited to, airfare, hotel, travel expenses (including meals during travel), customs/immigration fees, office supplies, office services, etc. Consultant will not incur Reimbursable Expenses unless previously approved by Client in writing and in advance. .Reimbursable Expenses will be billed to Client at actual cost and include reasonable supporting documentation. An additional Retainer of US $5,000.00 is to be paid to Consultant associated with Reimbursable Expenses for this Agreement once Client approves Reimbursable Expenses. Actual Reimbursable Expenses will be charged against the Retainer. The Reimbursable Expense Retainer is to be replenished once the unused balance reaches 25% of original amount. Any unused amount of the Reimbursable Expense Retainer, if any, will be returned to Client at the conclusion of the Agreement.
7. PAYMENT OF FEES. The fee amounts will be billed to Client monthly and with an accounting of hourly charges and activities performed along with a reconciliation of the associated Retainer. A full accounting of the Reimbursable Expenses incurred along with a reconciliation of the associated Retainer will be made to Client monthly. Payment of the fee and Reimbursable Expenses associated with this Agreement will be due and payable to Consultant upon presentation of an invoice.
8. MUTUAL CONFIDENTIALITY. Each party’s Confidential Information shall be supplied to the other party in written, graphic, photographic, recorded, prototype, sample, or in any other tangible form and shall be identified as being disclosed under this Agreement. Any Confidential Information that is disclosed in oral form shall be identified as such at the time of disclosure and confirmed in written summary form within thirty (30) days after its disclosure to the receiving party. As used in this Agreement, “Confidential Information” shall mean all data, samples, technical and economic information, commercialization strategies, trade secrets, know-how and other information disclosed or provided by one party to the other relative to performance of obligations under this Agreement, except such information which (a) can be shown by the receiving party to have been in its possession prior to
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disclosure to it by the other party; (b) at the time of disclosure hereunder is, or thereafter, becomes, through no fault of the receiving party, part of the public domain by publication or otherwise; (c) is furnished to the receiving party by a third party after the time of disclosure hereunder as a matter of right and without restriction on its disclosure; (d) is independently developed by employees or agents of the receiving party who have not had access, direct or indirect, to the Confidential Information received from the other; (e) is furnished to others by the disclosing party without restriction on disclosure; (f) is disclosed to a third party with the written approval of the disclosing party; or (g) has to be disclosed by law or regulation, or by a valid court order or governmental order exercising its right of authority over the receiving party, limited to the extent required by such law, regulation or order and after having notified the other party in order to allow the other party time to waive compliance with any provision of this Agreement or to apply for an appropriate remedy, including protective order; provided, that prior to disclosure the receiving party shall, if not prohibited or precluded from doing so by law, promptly gives notice of such disclosure requirement to the other party so as to afford such party a reasonable opportunity to seek a protective order. Each party agrees to limit its use of any Confidential Information received from the other party to the performance of obligations under this Agreement and for no other purpose unless the parties shall otherwise agree in writing. The receiving party of Confidential Information acknowledges that unauthorized disclosure or a material breach or violation of any of the terms and provisions of this Agreement or the unauthorized use of the Confidential Information could cause irreparable harm and significant damage to the other party. Both parties to this Agreement agree that the other party will have the
right to seek any remedies that are available to it at law or in equity to enforce the terms of this Agreement, including, but not limited to immediate injunctive relief to enforce obligations under this Agreement.
9. PUBLICITY. In the event of consummation of any publicly disclosed transaction, the Agent shall have the right to disclose its participation in such transaction, including, without limitation, the placement of “tombstone” advertisements in financial and other newspapers and journals.
10. INDEPENDENT CONTRACTOR; STAFF. Consultant is an independent contractor and neither Consultant nor Consultant’s staff is or shall be deemed to be employed by Client. Client is hereby contracting with Consultant for the services described in Section 1 and Consultant reserves the right to determine the method, manner and mean by which the services will be performed. Consultant shall not be required to devote Consultant’s full time nor the full time of Consultant’s staff to the performance of the services required hereunder, and it is acknowledged that Consultant has other Clients and Consultant offers services to the general public. Client shall not provide any insurance coverage of any kind for Consultant or Consultant’s staff.
11. MUTUAL USE OF WORK PRODUCT. Except as specifically set forth in writing and signed by both Client and Consultant, Client and Consultant shall have all copyright and patent rights with respect to all materials developed under this contract, and Client and Consultant are
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hereby granted a non-exclusive license to use and employ such materials within the Client’s and Consultant’s businesses in compliance with Section 8.
12. CLIENT AND CONSULTANT REPRESENTATIVES. ________________ shall represent the Client during the performance of this Agreement with respect to the Services as defined herein and has authority to execute written modifications, or additions to this Agreement as defined in Sections 2 and 7. ——————— shall represent the Consultant during the performance of this contract with respect to the services and deliverables as defined herein and has authority to execute written modifications or additions to this Agreement as defined in Sections 2 and 7.
14. THIRD-PARTY CONTRACTS. Consultant will not hire any third party companies or firms in order to complete its obligations under this Agreement. Should there be a need for third-parties companies or firms, the third-parties companies or firms will contract directly with the Client. Consultant will not be legally or financially responsible for any third-party companies or firms.
15. TAXES. Any and all taxes, except income taxes, imposed or assessed because of this Agreement or its performance, including but not limited to sales or use taxes, shall be paid by the Client. Consultant shall be responsible for any taxes or penalties assessed due to any claims that Consultant is an employee of Client; Client and Consultant specifically agree that Consultant is not an employee of Client. The Client will provide Consultant with a Form 1099 to facilitate the filing of the Consultant’s tax returns. The Form 1099 will be provided to the Consultant by January 31 of the year following the year in which work was performed and paid to the Consultant.
16. LIABILITY. Consultant warrants to Client that the material, analysis, data, programs and services to be delivered or rendered hereunder, will be of the kind and quality designated and will be performed by qualified personnel. Special requirements for format or standards to be followed shall be attached as an additional exhibit, if necessary, and executed by both Client and Consultant. Consultant makes no other warranties, whether written, oral or implied, including without limitation, warranty of fitness for purpose or merchantability. The Consultant will not be liable for the Company’s implementation of any recommendation set forth in the reports or services rendered by the Consultant. In no event shall Consultant be liable for special or consequential damages, either in contract or tort, whether or not the possibility of such damages has been disclosed to Consultant in advance or could have been reasonably foreseen by Consultant, and in the event this limitation of damages is held unenforceable, then the parties agree that by reason of the difficulty in foreseeing possible damages all liability to Client shall be
limited to One Hundred Dollars (US $100.00) as liquidated damages and not as a penalty. The
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Consultant shall not be liable to the Client, or to anyone who may claim any right due to any relationship with the Client, for any acts or omissions in the performance of the Services on the part of the Consultant, except when said acts or omissions are due to willful misconduct or gross negligence. The Company shall hold the Consultant free and harmless from any obligations, costs, claims, judgments, attorneys’ fees, and attachments arising from or growing out of the services rendered to the Client pursuant to the terms of this Agreement or in any way connected with the rendering of services, except when the same shall arise due to the willful misconduct or gross negligence of the Consultant and the Consultant is adjudged to be guilty of willful misconduct or gross negligence by a court of competent jurisdiction. It is agreed that any financial settlement will be limited to the amount paid to the Consultant.
17. COMPLETE AGREEMENT. This Agreement contains the entire agreement between the parties hereto with respect to the matters covered herein. No other agreements, representations, warranties or other matters, oral or written, purportedly agreed to or represented by or on behalf of Consultant by any of its employees or agents, or contained in any sales materials or brochures, shall be deemed to bind the parties hereto with respect to the subject matter hereof. Client acknowledges that it is entering into this Agreement solely on the basis of the representations contained herein.
18. GOVERNING LAW; SEVERABILITY. Consultant shall comply with all applicable laws in performing Services but shall be held harmless for violation of any governmental procurement regulation to which it may be subject but to which reference is not made in the Proposal. This Agreement shall be construed in accordance with the laws of the State of New York. If any provision of this Agreement is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal or unenforceable to any extent, that provision shall, if possible, be construed as though more narrowly drawn, if narrower construction would avoid such invalidity, illegality or unenforceability or, if that is not possible, such provision shall, to the extent of such invalidity, illegality or unenforceability, be severed, and the remaining provisions of this Agreement shall remain in effect.
(i). Notices to Client should be sent to:
(ii). Notices to Consultant should be sent to:
20. NUMBER AND GENDER. Whenever used in this Agreement, the singular shall include the plural and the plural shall include the singular, and the neutral gender shall include the male and female as well as a trust, firm, company or corporation, all as the context and meaning of this Agreement may require.
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21. ASSIGNMENT. This Agreement may not be assigned by either party without the prior written consent of the other party. Except for the prohibition on assignment contained in the preceding sentence, this Agreement shall be binding upon and inure to the benefits of the heirs, successors and assigns of the parties hereto.
22. NO THIRD PARTY BENEFICIARY. This Agreement is made solely for the benefit of the parties to this Agreement and their permitted successors and assigns, and no other person or entity shall have or acquire any right by virtue of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the date written below.
____________________________________ Date: _________, 2015
—————— – Consultant
___________________________________ Date: _________, 2015
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