EXHIBIT 10.2
TERMINATION AND RELEASE AGREEMENT
THIS TERMINATION AND RELEASE AGREEMENT (this "Agreement")
is made and entered into this 17th day of September, 2002 by and
between First American Capital Corporation, a Kansas corporation
("FACC"), and First Alliance Corporation, a Kentucky corporation
("Alliance").
RECITALS
A. Alliance provides administrative and underwriting
services to FACC pursuant to that certain Administration
Agreement between Alliance and FACC dated as of January 1,
2000 (the "Administration Agreement").
B. Under the Administration Agreement, FACC has
agreed to pay Alliance (the "Residual Payments") a portion
of the insurance and annuity premiums received by FACC with
respect to an insurance product marketed by FACC.
C. The parties hereto desire to terminate the
Administration Agreement.
D. As of September 30, 2002, Alliance will be
obligated to pay FACC (the "Alliance Payable") the amount
of $138,065.11 (principal and interest) with regard to an
unrelated transaction.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing recitals,
the payment by FACC of the sum described herein, the execution
and delivery of the documents described hereon and the mutual
covenants and agreements set forth herein, the parties hereto
agree as follows:
1. Status of Residual Payments; Agreed Present Value. FACC
and Alliance acknowledge and agree that FACC is
current, (Alliance waives August and September
residuals and fees) as of the date of this Agreement,
in its Residual Payments and that the present value of
future Residual Payments is $212,000.
2. Payment of Present Value of Residual Payments. On or
before the Termination Date, as defined herein, FACC
shall pay Alliance $212,000 in the following manner in
full payment and satisfaction of all future residual
payments: (i) a cash payment, in immediately available
funds, of $73,934.89, and (ii) cancellation of the
Alliance Payable as a set-off against the payment by
FACC.
3. Delivery of Records. On or before the Termination Date,
Alliance shall deliver to FACC, on one or more
occasions as shall be agreed to by the parties, all
books and records (whether in paper or electronic
format) in Alliance's possession or control in any way
relating to the services provided by Alliance under
the Administration Agreement.
4. Termination of Agreement; Pre-Termination Services.
The parties hereto acknowledge and agree that the Administration
Agreement is terminated effective as of 12:00 p.m., central
time, on September 30, 2002 ("Termination Date"). Any and all
notice periods, if any, required for termination of the
Administration Agreement are hereby mutually waived by the
parties hereto. Prior to the Termination Date, Alliance
represents and agrees that it will use its best efforts to
discharge its obligations under the Administration Agreement.
5. Post-Termination Date Consulting Services. As
additional consideration for the payment described in paragraph
1 above, Alliance shall provide advisory and consulting services
to FACC until March 31. 2003 with regard to the services
previously provided by Alliance under the Administration
Agreement.
6. Release. From and after the Termination Date,
Alliance hereby forever release and discharge FACC, and its
shareholders, directors, officers, employees, and agents, from
any and all manners of action, causes of action, suits,
proceedings, claims, accounts, debts, dues, accountings,
reckonings, and demands, whether known or unknown, arising from
or related to any actions or omissions of FACC occurring on or
before the Termination Date hereof including, without
limitation, any payments or other liabilities arising under the
Administration Agreement.
7. Binding Effect. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, successors,
and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by
either party without the prior written consent of the other
parties.
8. Entire Agreement. This Agreement embodies the entire
agreement and understanding of the parties hereto with respect
to the subject matter contained herein. There are no
restrictions, promises, representations, warranties, covenants,
or undertakings other than those expressly set forth or referred
to herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to the subject
matter hereof.
9. Governing Law. This Agreement shall be governed by
the laws of the State of Kansas.
IN WITNESS WHEREOF, the parties hereto have and entered
into this Agreement on the date first set above.
FIRST AMERICAN CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
FIRST ALLIANCE CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice Chairman
