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Exhibit 10.22
CONSULTING AGREEMENT DATED MARCH 29, 2007
CONSULTING
AGREEMENT
THIS CONSULTING AGREEMENT (this
“
Agreement ”)
is made and entered into effective as of March __, 2007 (the
“
Effective Date ”),
by and among
RG AMERICA, INC. ,
a Nevada corporation (“
RG America ”),
RG RESTORATION, INC. ,
a Texas corporation (“
RG Restoration ”),
RG RISK MANAGEMENT, INC. ,
a Texas corporation (“
Risk Management ”),
and
RG ROOFING, INC. ,
a Texas corporation (“
RG Roofing ”)
(RG America, RG Restoration, Risk Management and RG Roofing, each a
“
RGMI Entity ”
and, collectively, the “
RGMI Entities ”),
and
FIRELINE RESTORATION, INC. ,
a Florida corporation (the “
Consultant ”).
RECITALS
WHEREAS, the
RGMI Entities are borrowers under a certain loan transaction (the
“
Loan ”)
between the RGMI Entities and LAURUS MASTER FUND, LTD, a Cayman
Islands company (“
Lender ”).
WHEREAS, the
RGMI Entities are not currently in compliance with their
obligations with respect to the Loan, and each RGMI Entity has
become unable to pay its debts as they become due and has ceased
the operations of its present business.
WHEREAS, the
Consultant is in the business of providing restoration and other
construction services.
WHEREAS, upon
the terms and conditions set forth in this Agreement, the RGMI
Entities desire to engage the Consultant to provide consulting
services to the RGMI Entities and to that end to outsource any and
all construction and related duties and services under the RGMI
Entities’ currently existing and future construction
contracts and projects (collectively, the “
Construction Contracts ”).
WHEREAS, the
RGMI Entities are in the process of assigning to the Consultant one
or more of the Construction Contracts, and will assign to the
Consultant additional Construction Contracts upon obtaining the
proper consent from the customers to the respective
contracts.
WHEREAS, the
Consultant desires to provide the consulting services to the RGMI
Entities upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE ,
in consideration of the foregoing recitals and for other good and
valuable consideration, the parties hereto, intending to be legally
bound, covenant and agree as follows:
Recitals
. The foregoing Recitals are true and accurate and are incorporated
herein by this reference.
Consulting Engagement.
The
RGMI Entities hereby engage the Consultant to provide
consulting services to the RGMI Entities, and the Consultant
hereby accepts such engagement, upon the terms and conditions
set forth in this Agreement. The consulting services to be
provided by the Consultant hereunder will consist of the
complete and total outsourcing of any and all functions,
rights, preferences, rights to payment and obligations under
the Construction Contracts (collectively, the “
Consulting Services ”)
.
In connection with the Consulting Services, the Consultant shall
have the power and authority, for itself and in the stead and on
behalf of the RGMI Entities, to do any or all of the
following:
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Control completely the projects contemplated by the Construction
Contracts;
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Deal directly with the customers, suppliers, and subcontractors
under the Construction Contracts;
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Negotiate directly with the customers, suppliers, and
subcontractors regarding payment and pricing under the Construction
Contracts;
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Process payment applications and payroll applications on behalf of
the RGMI Entities with respect to the Construction Contracts, and
make determinations as to the proper payment
thereof;
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Deal directly with Lender for additional advances and funding,
under the Loan and otherwise, that may be necessary in connection
with the performance of the Construction Contracts, including
without limitation, arranging for Lender to make such additional
advances on the RGMI Entities’ behalf, which advances may be
funded directly to the Consultant; and
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To do all other things the Consultant reasonably deems necessary to
carry out and perform the Construction Contracts and the terms of
this Agreement.
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Each
of the RGMI Entities hereby appoints the Consultant, or any
other person whom the Consultant may designate, as the RGMI
Entity’s attorney-in-fact, with power to: (a) execute
any documentation on the RGMI Entity’s behalf relating
to the Construction Contracts and to supply any omitted
information and correct patent errors in any documents
executed by the Consultant or on the RGMI Entity’s
behalf in connection therewith; (b) sign the particular RGMI
Entity’s name on any invoice or bill of lading relating
to any accounts receivable, drafts against account debtors,
schedules and assignments of accounts receivable, notices of
assignment, financing statements and other public records,
verifications of accounts receivable and notices to or from
account debtors relating to the Construction Contracts; (c)
endorse the particular RGMI Entity’s name on any checks,
notes, acceptances, money orders, drafts or other forms of
payment or security that may come into the Consultant’s
possession relating to the Construction Contracts; (d) verify
the validity, amount or any other matter relating to any
accounts receivable by mail, telephone, telegraph or otherwise
with account debtors relating to the Construction Contracts;
and (e) to do all other things the Consultant deems necessary
to carry out the terms of this Agreement. Each of the RGMI
Entities hereby ratifies and approves all acts of the
attorney-in-fact and neither the Consultant nor the
attorney-in-fact will be liable for any acts of commission or
omission, nor for any error of judgment or mistake of fact or
law other than gross negligence or willful misconduct (as
determined by a court of competent jurisdiction in a final and
non-appealable decision). This power being coupled with an
interest is irrevocable during the Consulting Term (as defined
below).
Term
.
Subject
to the terms and conditions of this Agreement, including, but
not limited to, the provisions for early termination set forth
below, the consulting engagement of the Consultant under this
Agreement shall commence on the Effective Date and shall
continue through the first (1
st )
anniversary of the Effective Date (the "
Consulting Term ");
provided ,
however ,
that this Agreement shall automatically be renewed for successive
one (1) year terms unless the Consultant gives the RGMI Entities
notice of non-renewal at least thirty (30) days prior to the
expiration of any term .
Notwithstanding
the foregoing, the Consultant may,
prior to the scheduled expiration of the Consulting Term,
terminate the Consulting Term at any time without cause and
without penalty effective immediately upon notice. In the
event of such a termination, the Consultant shall be entitled
to receive any unpaid Consulting Fees owing to the Consultant
up through and including the effective date of the termination
of the Consulting Term.
Notwithstanding
the foregoing, the RGMI Entities may, prior to the scheduled
expiration of the Consulting Term, terminating the Consulting
Term for Cause in accordance with the terms herein. For
purposes of this Agreement, the RGMI Entities shall have
"
Cause "
to terminate the Consulting Term hereunder if the Consultant is not
performing the Consulting Services in accordance with the terms
hereof. Prior to any termination for Cause by the RMGI Entities,
the RGMI Entities shall provide the Consultant with written notice
of their intention to so terminate (the “
Termination Notice ”).
The Termination Notice shall set forth in reasonable detail the
grounds for the termination for Cause. The Consultant shall have a
period of sixty (60) days from the date of the receipt by the
Consultant of the Termination Notice t
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