EXHIBIT 10(xiv)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ENGAGEMENT LETTER
LEGAL REPRESENTATION AGREEMENT
THIS AGREEMENT is entered into effective as of October 31. 2001, at San
Diego, California, by and between Senior Care Industries, Inc. (hereinafter
referred to as "Client"), and Norton & ▇▇▇▇▇, A limited Liability Partnership
("Counsel").
I. ENGAGEMENT
A. MATTERS INVOLVED AND SCOPE OF ENGAGEMENT. Client has engaged counsel to
undertake the legal representation of Client concerning the bankruptcy case
entitled In re Tri- National Development Corporation, U.S.B.C., S.D., Cal., Case
No. 01-108768-HINV11 and In re Tri-National Development Corp, U.S.B.C., S.D.,
Cal., Case No. 01-10964-H11 (hereinafter referred to as the "Matter") (subject
to Counsel's right to withdraw as provided below).
B. COUNSEL FUNCTIONS. Counsel will represent client's interests with respect to
the Matter as described above.
C. CLIENT'S FUNCTIONS. Client agrees to do the following:
1. Provide Counsel promptly with all documentation, including
Correspondence and other communications, pertaining to the Matter, and
identify promptly all persons who are expected to be involved in the
Matter or have knowledge of the Matter.
2. Cooperate fully with Counsel and provide all information know by or
available to Client which may aid Counsel in representing Client in the
Matter.
3. Promptly pay Counsel for the performances of the legal services
contemplated herein, pay for all expenses incurred in connection
therewith, and remit retainer amounts due, all as set forth in Section
II of this Agreement.
D. AUTHORIZATION AND DECISION-MAKING. Client authorizes and direct Counsel to
take all actions which counsel deems advisable on Client's behalf in the Matter,
except that Client must expressly consent to the material terms and conditions
of any settlement affecting Client's rights or interests in the Matter. Counsel
shall endeavor to notify Client promptly of all significant developments
respecting the Matter.
II. LEGAL FEES AND EXPENSES
A. METHOD OF DETERMINING FEES. The following method is to be used for
determining the proper amount of legal fees:
The time expended by Counsel to perform the legal services for Client
in the Matters Will be the basis for determining the legal fees to be paid to
Counsel. The following is the current customary hourly rate of Counsel who will
be primarily responsible for performing legal services hereunder:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ $225.00 per hour
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ $175.00 per hour
This rate is subject to change from time to time, and Counsel agrees promptly to
notify Client of such changes. This rate does not include the other fees,
charges and expenses described in Paragraph II.C. herein. Legal services
performed by other personnel of Counsel will be charged at their customary
hourly rates as they may be from time to time.
B. RETAINER AND TRUST ACCOUNT.
Client has paid Counsel a retainer of $10,000.00 as an advance against
Counsel's fees for services rendered in the Matters and as an advance against
anticipated other fees, charges and expenses as described in Paragraph II.C.,
below. This retainer will be deposited in Counsel's trust account for future
withdrawals. Counsel will submit bills periodically to Client as provided in
Section II.D. for services rendered by Counsel and for other fees, charges and
expenses incurred, and Client authorize Counsel to withdrawal the amounts
necessary from the initial retainer and from additional advances augmenting the
retainer to satisfy the bills. Any uncarned balance of the retainer at the
termination of Counsel's representation of Client will be refunded to Client.
Bills shall be payable by Client upon receipt to the extent they may not be
covered by Client's funds in the trust account.
C. OTHER FEES, CHARGES, AND EXPENSES.
1. Client authorizes Counsel to retain and agree to pay the
fees or charges of other persons or entities hired by Counsel to
perform necessary services related to the Matters. Such other persons
and entities may include, but are not limited to, court reporters,
appraisers, real estate agents, escrow agents, accountants,
investigators, and expert witnesses. Clients authorize Counsel, in its
discretion, to direct such other persons and entities to render
statements for services rendered and expenses advanced either directly
to Client or to Counsel, in which latter event Client agree to
reimburse Counsel promptly for the full amount of such statements to
the extent they may not be covered by funds on the retainer account.
2. Client acknowledges that Counsel may incur various expenses
in providing services to Client. Client agree to reimburse Counsel for
all out-of- pocket expenses paid by Counsel (hereinafter referred to as
"costs advanced"), or, if Client are billed directly for such expenses,
to make prompt, direct payments to the originators of the bills. Such
expenses include, but are not limited to, charges for serving and
filing papers, courier or messenger services, recording and certifying
documents, depositions, transcripts, computer research, investigations,
witness fees, long distance telephone calls, title insurance premiums,
copying materials, overtime clerical assistance, travel expenses,
postage, and notarial attestations.
D. TIME STATEMENTS PAYABLE. Statements for services rendered and
expenses incurred by counsel shall be due and payable upon receipt by client.
E. INFORMATION PROVIDED IN STATEMENTS. Counsel will include in the
statements sent to Client a general identification of the services of Counsel
for which Client is being charged and a specific identification of all other
fees, charges, and costs advanced for which Counsel seeks reimbursement
F. JOINT AND SEVERAL LIABILITY. Each person included in the definition
of client shall be jointly and severally liable to pay Counsel for all legal
fees, charges, costs advanced, and other expenses incurred by Client pursuant to
this Agreement.
III. TERMINATION OF REPRESENTATION
A. TERMINATION OF REPRESENTATION. The relationships by this Agreement
are subject to termination as follows:
1. Counsel reserves the right to withdraw from this
representation if Client breaches any provision of this Agreement or
for any just reason permitted or required under the California Rules of
Professional Responsibility or by custom and practice, or permitted by
the general or local rules of state or federal courts. Notification of
withdrawal shall be made in writing to Client. In the event of such
withdrawal, Client shall promptly pay Counsel for all services rendered
by Counsel, and for all other fees, charges, and expenses incurred by
Counsel pursuant to Section II.C. of this Agreement prior to the date
of such withdrawal or, if applicable, Counsel will return to Client any
unearned retainer.
2. Any Client may terminate his representation with or without
cause, and shall notify Counsel in writing of any such termination. In
the event of any such termination, such Client shall promptly pay
Counsel for all services rendered by Counsel and al other fees,
charges, and expenses incurred pursuant to Section II.C. of this
Agreement prior to the date Counsel receives notice of such
termination.
3. Upon termination of this representation for any reason, by
either Client or Counsel, Counsel will cooperate with the terminating
Client and with any successor counsel to accommodate a smooth
transition of the representation.
4. Upon termination of the representation for any reason, by
Client or by Counsel, each Client requested by Counsel to do so shall
immediately execute and deliver to Counsel a substitution of attorneys
substituting in Counsel's place either another attorney or the Client
himself in propria persona.
IV. GENERAL MATTERS
A. INFORMATION TO BE MADE AVAILABLE TO CLIENT. Counsel will make a
diligent effort to communicate with Client to keep Client informed as to the
status of the Matter and as to the course of action which are being followed, or
are being recommended, by Counsel. All of Counsel's work product will be owned
by Counsel.
B. EFFORT AND OUTCOME. Counsel agrees to use best efforts in
representing Client in the Matter; however, Client acknowledges that Counsel has
not given any assurances or guarantees regarding the outcome of the Matter.
C. COMMENCEMENT OF REPRESENTATION. Representation of Client by Counsel
in the Matter will not commence until Counsel receives a copy of this Agreement
signed by each Client.
D. RETENTION OF FILES. Counsel agrees to assert a diligent effort,
subject to circumstances beyond the control of Counsel, to retain and maintain
all major and significant components of the files of Counsel relative to the
Matter for a period of five years following the conclusion of such Matter, and
during such time to afford Client reasonable access to such files.
E. NO WAIVER. No waiver by Client or Counsel of any provision of this
Agreement shall be deemed to have been made unless expressed in writing and
signed by such party. No delay or omission in the exercise of any right or
remedy accruing to Client or Counsel upon any breach under this Agreement shall
impair such right or remedy or be construed as a waiver of any such breach
theretofore or thereafter occurring. The waiver by Client or Counsel of any
breach of any provision of this Agreement shall not be deemed to be a waiver of
any other breach, or of a subsequent breach of the same or any other provision
contained herein.
F. COMPLETE INTEGRATION, BINDING UPON ALL PARTIES. This Agreement
contains the entire agreement between Client and Counsel regarding the Matter
and the fees, charges, and expenses to be paid relative thereto. This Agreement
shall not be modified except by written agreement signed by Client and Counsel.
This Agreement shall be binding upon Client and Counsel and their respective
heirs, executors, legal representatives, and successors.
G. NOTICES. Notices and billing statements to Client shall be sent by
Counsel to Client at the following address
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Senior Care Industries, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Notices, payments and other communications to Counsel shall be sent by Client to
Counsel at the following address:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Norton & ▇▇▇▇▇, LLP
▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
H. COUNTER-PART SIGNATURES. This Agreement may be executed and signed
by the Client and Counsel in two or more counter-parts, each of which put
together shall constitute one original document.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
"CLIENT"
SENIOR CARE INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Chief Executive Officer
"COUNSEL"
NORTON & ▇▇▇▇▇
A Limited Liability Partnership
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.