EXHIBIT 10.1
Orchard Capital Corp. Confidential
SERVICES AGREEMENT
dated as of January 30, 2011
by and between
ENVIRONMENTAL SOLUTIONS WORLDWIDE INC.
as Company
and
ORCHARD CAPITAL CORPORATION
as Service Provider
Orchard Capital Corp. Confidential
TABLE OF CONTENTS
Definitions and Interpretation.................................................3
Appointment and Authority of Service Provider; Provision of Services...........4
Fees...........................................................................4
Limitation of Liability........................................................5
Indemnification................................................................5
Termination....................................................................6
Assignment and Sub-Contracting.................................................7
Notices........................................................................7
Binding Nature of Agreement; Successors and Assigns; Amendment.................8
Entire Agreement...............................................................8
Controlling Law................................................................8
Choice of Forum................................................................8
Waiver of Jury Trial...........................................................8
Independent Contractor.........................................................9
Third Party Beneficiary Rights.................................................9
Indulgences Not Waivers........................................................9
Titles Not to Affect Interpretation............................................9
Execution in Counterparts......................................................9
Provisions Separable...........................................................9
Orchard Capital Corp. Confidential
SERVICES AGREEMENT
This SERVICES AGREEMENT (as amended, modified or supplemented from time to
time, this "Agreement"), dated as of January 30, 2011, is entered into by and
between ENVIRONMENTAL SOLUTIONS WORLDWIDE, INC, a Florida corporation with
offices located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ as the
company (together with its successors and assigns permitted hereunder, the
"Company"), and ORCHARD CAPITAL CORPORATION, a California corporation, with
offices located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, as service provider (together with its successors and assigns permitted
hereunder, "Service Provider").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and its Affiliates are in the business of
manufacturing and marketing catalytic emission conversion, control and support
products and technologies;
WHEREAS, the Service Provider is in the business of providing financial
services, legal services, personnel services and other similar human resources
support to, among others, the Company and its Affiliates; and
WHEREAS, the Company and its Affiliates on the one hand, and the Service
Provider on the other hand, wish to amend and restate all existing agreements
and understandings between them for the provision of services, whether written
or oral, as set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein set forth, and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the Company and Service Provider
agree as follows:
Section 1. Definitions and Interpretation.
"Affiliate" means any other Person that, directly or indirectly, Controls,
is Controlled by or under common Control with such Person, or is a director or
officer of such Person.
"Business Day" means a day, other than a Saturday or a Sunday, on which
banks are generally open for business in Los Angeles, California and/or ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇.
"Control," and the correlative term "Controlled," means the possession,
direct or indirect, of the power to direct or cause the direction of the
management policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
"Fees" means the charges for the provision of the Services as set out in
the applicable Services Schedules.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, sole proprietorship, joint venture, government (or
any agency or political subdivision thereof) or other entity.
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"Service Schedule" means each of the Schedules attached to this Agreement
that set forth the Services to be provided by Service Provider to the Company
and/or its Affiliates and any future schedules setting forth the additional
services as agreed upon between the parties hereto.
The use of the terms "include" or "including" shall be construed without
limitation to the words following; words denoting the singular number only
include the plural and vice versa; words denoting any gender include all genders
and words denoting persons include firms and corporations and vice versa.
Section 2. Appointment and Authority of Service Provider; Provision of Services.
(a) The Company hereby appoints Orchard Capital Corporation ("OCC") as
Service Provider and directs Service Provider to perform such duties as are
described in the Service Schedules (collectively, the "Services"). OCC hereby
accepts such appointment and appoints ▇▇▇▇ ▇▇▇▇ to act on OCC's behalf in
providing the Services, and, subject to and in accordance with the applicable
terms and provisions of this Agreement, agrees to perform the Services during
the applicable term set forth herein or in the applicable Service Schedule to
and for the benefit of the Company and any of its Affiliates identified in the
applicable Service Schedule. OCC reserves the rights to replace ▇▇▇▇ ▇▇▇▇ at its
sole discretion.
(b) If the Company desires Service Provider to provide the Company and/or
an Affiliate with additional services not set forth on a Service Schedule, the
Company and Service Provider shall discuss in good faith the addition of such
additional services to a new or existing Service Schedule and, upon the parties'
written agreement on such new or amended Service Schedule, such additional
services shall be deemed "Services" for all purposes in this Agreement.
(c) Service Provider shall, and is hereby authorized by the Company to,
perform the Services in a manner consistent with applicable law and in
accordance with the applicable terms and provisions hereof. Service Provider
shall use all reasonable skill, care and diligence in the performance of the
Services. Service Provider shall follow the customary standards, policies and
procedures currently used by it in the performance of such Services for itself
and for other Persons.
(d) Service Provider may perform any Services directly or by or through
agents, accountants, experts, attorneys or Affiliates. Service Provider shall
exercise reasonable care in the selection of any such third parties. Service
Provider shall remain fully responsible and liable for the performance of the
Services notwithstanding any delegation to any such third party. Performance by
any such third party of any Services shall be deemed to be performance thereof
by Service Provider.
Section 3. Fees.
(a) In consideration of and subject to the supply of the Services in
accordance with the terms of this Agreement, the Company shall pay to Service
Provider the Fees.
(b) Service Provider will invoice the Company monthly in arrears for all
Services provided during the preceding month. The Company shall pay such invoice
within thirty (30) Business Days of receipt thereof.
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(c) For any Services for which the Fees are based on a cost or cost-plus
methodology, Service Provider shall provide the Company with reasonable detail
of the cost of its provision of the Services in conjunction with its invoices.
(d) Except to the extent set forth in the applicable Service Schedule,
each of the Company and Service Provider shall bear its own costs and expenses
with respect to the provision of Services. In the event so indicated in the
applicable Service Schedule, the Company shall, at the direction of Service
Provider, either reimburse Service Provider from time to time for, or pay
directly, the out-of-pocket expenses incurred in providing the Services,
including travel, accommodation, communication, meals and similar expenses.
Section 4. Limitation of Liability.
(a) Except as otherwise expressly provided in this Section 4, Service
Provider shall in no event have any liability to the Company under or as a
result of this Agreement or the performance of the Services, except to the
extent such liability results from the gross negligence, fraud or willful
misconduct of Service Provider (or that of any agent, accountant, expert,
attorney or Affiliate performing the Services as contemplated by Section 2(d)).
(b) Without limiting the generality of the foregoing, Service Provider
will not be liable to the Company for: (i) any loss of profits, loss of revenue,
loss of reputation or goodwill; (ii) any indirect, special or consequential
loss; or (iii) any exemplary or punitive damages, whether arising in contract,
tort, negligence, misrepresentation, for breach of duty (including without
limitation statutory duty) or otherwise.
(c) Other than pursuant to Section 4(a) above, the maximum aggregate
liability of Service Provider to the Company, whether in contract, tort
(including without limitation negligence) or breach of duty (including without
limitation statutory duty) or otherwise shall not exceed the Fees paid to
Service Provider by the Company in the twelve months immediately preceding the
relevant event, occurrence or omission and any amount recoverable under any
insurance policies; provided that, with respect to liability of Service Provider
to the Company related to the performance of a particular Service, the maximum
liability of Service Provider shall be the aggregate fees paid to Service
Provider by the Company with respect to such Service.
Section 5. Indemnification.
(a) The Company shall indemnify Service Provider and its Affiliates and
each of their respective officers, directors, employees, stockholders, members,
partners, agents and representatives (each, an "Indemnified Person") and hold
them harmless from and against any and all claims, losses, damages, liabilities,
obligations and out-of-pocket costs or expenses, including reasonable attorneys'
fees and expenses and costs and expenses of investigations (collectively,
"Losses"), arising out of or resulting from this Agreement or Service Provider's
performance of the Services (including through any agent, accountant, expert,
attorney or Affiliate as contemplated by Section 2(d)), except to the extent
such Losses result from Service Provider's gross negligence or willful
misconduct in performing the Services (or that of any agent, accountant, expert,
attorney or Affiliate performing the Services as contemplated by Section 2(d)).
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(b) The Company shall promptly reimburse each Indemnified Person for all
fees and expenses (including reasonable attorneys' fees and expenses) as such
fees and expenses are incurred in connection with investigating, preparing,
pursuing or defending any action, claim, suit, investigation or proceeding
(each, a "Proceeding") arising out of or resulting from this Agreement or the
provision of the Services; provided that such Indemnified Person shall promptly
repay to the Company any such amount to the extent judicially determined by
judgment or order not subject to further appeal or discretionary review that
such fees and expenses were not Losses subject to the indemnity provided by this
Section 5 (such Losses, "Indemnifiable Losses"). If for any reason (other than
that the Losses sustained are not Indemnifiable Losses) the indemnification
provided by this Section 5 is unavailable to any Indemnified Person or
insufficient to hold it harmless, then the Company shall contribute to the
amount paid or payable by such Indemnified Person as a result of such Losses in
such proportion as is appropriate to reflect the relative benefits received by
the Company, on the one hand, and such Indemnified Person, on the other hand,
or, if such allocation is not permitted by applicable law, to reflect not only
the relative benefits referred to above but also any other relevant equitable
considerations.
(c) To the extent a claim in respect of any Proceeding as contemplated by
this Section 5 is to be made by an Indemnified Person against the Company, the
Company shall be entitled to participate in such Proceeding and, to the extent
that it may wish, assume the defense thereof, with counsel reasonably
satisfactory to such Indemnified Person, and, after notice from the Company to
such Indemnified Person of its election to assume the defense thereof, the
Company shall not be liable to such Indemnified Person for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
Indemnified Person in connection with the defense thereof, other than reasonable
costs of investigation (unless (i) counsel for such Indemnified Person advises
that there are issues which raise conflicts of interest between such Indemnified
Person and the Company, in which case such Indemnified Person may retain counsel
reasonably satisfactory to it and the Company shall pay all reasonable fees and
expenses of such counsel for such Indemnified Person or (ii) the Company has
failed to diligently pursue the defense of a Proceeding it has assumed). No
Indemnified Person shall effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened Proceeding
in respect of which indemnification or contribution from the Company may be
sought hereunder (whether or not the Company is an actual or potential party to
such Proceeding) without the written consent of the Company, which consent shall
not be unreasonably withheld. The Company shall not effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened Proceeding in respect of which indemnification or
contribution from the Company may be sought hereunder (whether or not any
Indemnified Person is an actual or potential party to such Proceeding), on a
basis that would result in (A) the imposition of a consent order, injunction or
decree that would restrict the future activity or conduct of Service Provider or
any of its Affiliates, (B) a finding or admission of any wrong-doing, (C) any
monetary liability of the Indemnified Person that will not be promptly paid or
reimbursed by the Company or (D) anything less than a complete release being
provided to the Indemnified Person and its Affiliates.
(d) An Indemnified Person shall not be denied indemnification in whole or
in part under this Section 5 or otherwise by reason of the fact that such
Indemnified Person had an interest in the transaction with respect to which the
indemnification applies if the transaction was otherwise permitted or not
expressly prohibited by the terms and conditions of this Agreement.
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Section 6. Term and Termination.
(a) The term of this Agreement begins on the date hereof and will continue
until the earlier of (i) the expiration of each of the Service-specific terms
set forth in the Service Schedules, if any, and (ii) the termination of this
Agreement in accordance with clause (b) of this Section 6.
(b) This Agreement may be terminated by either the Company or Service
Provider upon thirty (30) days' prior written notice, unless a longer period
with regard to any particular Service is provided for in the applicable Service
Schedule.
(c) Termination of this Agreement shall not prejudice or affect the
parties' accrued rights and liabilities as at termination.
(d) Sections 3 (with respect to amounts incurred prior to termination), 4,
5 and 11 through 18 shall survive any termination of this Agreement pursuant to
this Section 6.
Section 7. Assignment and Sub-Contracting.
(a) Except for the delegation of its obligations hereunder in accordance
with and subject to the terms of Section 2(d), Service Provider shall not
assign, delegate or otherwise transfer this Agreement or its obligations
hereunder without the express prior written consent of the Company.
(b) The Company shall not assign or otherwise transfer its rights under
this Agreement without the express prior written consent of Service Provider.
Section 8. Notices.
Unless expressly provided otherwise herein, all notices, requests, demands
and other communications required or permitted under this Agreement shall be in
writing and shall be deemed to have been duly given, made and received when
delivered against receipt or upon actual receipt of registered or certified
mail, postage prepaid, return receipt requested, or, in the case of telecopy
notice, when received in legible form, addressed as set forth below:
(a) If to the Company:
Environmental Solutions Worldwide, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
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(b) If to Service Provider:
Orchard Capital Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
Any party may change the address or telecopy number to which
communications or copies directed to such party are to be sent by giving notice
to the other parties of such change of address or telecopy number in conformity
with the provisions of this Section 8 for the giving of notice.
Section 9. Binding Nature of Agreement; Successors and Assigns; Amendment.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, personal representatives, successors
and permitted assigns as provided herein. This Agreement may not be amended,
modified or terminated (except as otherwise expressly provided herein) except by
each of the parties hereto in writing.
Section 10. Entire Agreement.
This Agreement contains the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof, and supersede all
prior and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof. The express terms hereof and thereof
control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof.
Section 11. Controlling Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD, TO THE FULLEST EXTENT PERMITTED
BY LAW, TO ANY CONFLICTS OF LAW RULES WHICH MIGHT APPLY THE LAWS OF ANY OTHER
JURISDICTION).
Section 12. Choice of Forum.
Each of the parties hereto hereby irrevocably and unconditionally (a)
submits to the jurisdiction of any federal or California state court located
within the County of Los Angeles (the "Chosen Courts") for any action, suit or
proceeding arising out of or related to this Agreement (including any
non-contractual disputes related hereto) and hereby waives, and agrees not to
assert, as a defense in any action, suit or proceeding for the interpretation or
enforcement hereof or of any such document, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable
in the Chosen Courts, (b) waives and agrees not to assert any objection to the
laying of venue of any such action, suit or proceeding in any such court and (c)
waives and agrees not to plead or claim that any such action, suit or proceeding
brought in any Chosen Court has been brought in an inconvenient forum. The
parties hereto hereby consent to and grant such Chosen Courts jurisdiction over
the person of such parties and, to the extent permitted by law, over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
8 or in such other manner as may be permitted by law shall be valid and
sufficient service thereof.
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Section 13. Waiver of Jury Trial.
THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO TRIAL BY JURY IN
ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT AND
THE TRANSACTIONS CONTEMPLATED HEREBY AND AGREE THAT ANY SUCH ACTION, SUIT OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
Section 14. Independent Contractor.
The relationship of the parties under this Agreement shall be that of
independent contractors only. Nothing contained in his Agreement shall be deemed
or construed to create a partnership or joint venture, to create the
relationships of employee/employer or principal/agent, or otherwise create any
liability whatsoever of either party with respect to the indebtedness,
liabilities, obligations or actions of the other or any of their respective
officers, directors, employees, stockholders, agents or representatives, or any
other Person or entity.
Section 15. Third Party Beneficiary Rights.
Except as provided in Section 5, no provisions of this agreement are
intended, nor shall be interpreted, to provide or create any third party
beneficiary rights or any other rights of any kind in any client, customer,
employee, affiliate, stockholder, partner of any party hereto or any other
Person unless specifically provided otherwise herein and, except as so provided,
all provisions hereof shall be personal solely between the parties hereto.
Section 16. Indulgences Not Waivers.
Neither the failure nor any delay on the part of any party hereto to
exercise any right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege preclude any other or further exercise of the
same or of any other right, remedy, power or privilege, nor shall any waiver of
any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to
any other occurrence. No waiver shall be effective unless it is in writing and
is signed by the party asserted to have granted such waiver.
Section 17. Titles Not to Affect Interpretation.
The titles of paragraphs and subparagraphs contained in this Agreement are
for convenience only, and they neither form a part of this Agreement nor are
they to be used in the construction or interpretation hereof.
Section 18. Execution in Counterparts.
This Agreement may be executed in any number of counterparts by facsimile,
electronic or other written form of communication, each of which shall be deemed
to be an original as against any party whose signature appears thereon, and all
of which shall together constitute one and the same instrument. This Agreement
shall become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon as
the signatories.
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Section 19. Provisions Separable.
The provisions of this Agreement are independent of and separable from
each other, and no provision shall be affected or rendered invalid or
unenforceable by virtue of the fact that for any reason any other or others of
them may be invalid or unenforceable in whole or in part.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
COMPANY:
ENVIRONMENTAL SOLUTIONS WORLDWIDE, INC.
By:
--------------------------------
Name:
Title:
SERVICE PROVIDER:
ORCHARD CAPITAL CORPORATION
By:
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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Orchard Capital Corp. Confidential
SERVICE SCHEDULE 1
DESCRIPTION OF SERVICE: As may be agreed upon by the parties from time to time,
including those duties customarily performed by the
Chairman of the Board and executive of the Company as
well as providing advise and consultation on general
corporate matters, and on other projects as may be
assigned by the Company's Board of Directors on an as
needed basis (the "Service").
TERM: January 30, 2011 until terminated upon thirty (30)
days' prior written notice by either of the parties.
FEES: $300,000 per annum.
OTHER: The Company shall reimburse Service Provider for any
out-of-pocket expenses incurred by Service Provider in
providing the Service, including but not limited to
travel, accommodation, communication, meals and similar
expenses.