Falcon Financial Consulting, LLC Financing Finder’s Fee Agreement
EXHIBIT
10.8
Falcon
Financial Consulting, LLC
December
10, 2004
Siteworks
Inc.
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Dear
Mr.
▇▇▇▇▇▇ ▇▇▇▇:
This
will confirm the terms of our mutual understanding and agreement ("Agreement")
in connection with the efforts of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Finder") to obtain
financing for Siteworks
Building and Development,
("Company")
as follows:
1.
Appointment.
The
Company hereby authorizes Finder, on a nonexclusive
basis,
to identify investors, underwriters, joint venturers, lenders and/or guarantors
(collectively "Investors") interested in providing Financing (as defined below)
for the Company on terms acceptable to the Company and the Investors.
However,
it is agreed that the Finder shall have no continuing role or part of the
negotiations or relationship between any Investors that the Finder identifies
to
the Company (apart from any rights granted under section 2); and that Finder
is
not now, nor shall it ever be, an agent of the Company. Finder specifically
warrants and represents that he shall not represent himself as an agent of
the
Company and agrees to indemnify the Company for any liability, fees (including
attorney’s fees), costs or expenses, or settlements which the Company incurs as
a result of any representation to third-parties by the Finder.
It
is
understood that Finder is acting as a finder only, is not a licensed securities
or real estate broker or dealer, and shall have no authority to enter into
any
commitments on the Company's behalf, or to negotiate the terms of Financing,
or
to hold any funds or securities in connection with Financing or to perform
any
act which would require Finder to become licensed as a securities or real estate
broker or dealer.
2.
Compensation.
If
Financing is consummated by any Investor directed or introduced by Finder to
the
Company or through the efforts of Finder within the terms of this Agreement
or
any date after the terms of this agreement, then Finder shall be entitled to
a
cash fee as follows:
3%
of the
total amount of financing
“Financing”,
as used herein, shall mean all amounts furnished to or for the use of the
Company with Investors directed or introduced by, or through the efforts of,
Finder after the date of this Agreement, whether by investment in equity or
debt
securities of the Company, loans, loan commitments, guarantees of indebtedness,
leasing, sale and leaseback, joint ventures or licensing.
3.
Fees.
The
fees
due Finder as set forth in Section 2 above shall be paid by bank or cashier's
check at the closing of Financing. In the event that a portion of the Financing
is completed in delayed increments, the fee shall be paid pro-rata as each
increment is advanced.
4.
Termination.
This
Agreement may be terminated upon 30 days written notice by either party by
written notice to the other party in accordance with the notice provisions
listed in section 7., but such termination shall not affect the obligation
of
the Company to pay the finder's fee hereunder as to Financing consummated
indefinitely after such termination with any Investor directed or introduced
by
Finder to the Company or through the efforts of Finder prior to such
termination.
5.
Accurate
Information.
The
Company hereby represents and warrants that all information provided Finder
pertaining to the Company shall be true and correct; and the Company shall
hold
Finder harmless from any and all liability, expenses or claims arising from
the
disclosure or use of such information.
6.
Applicable
Law.
This
Agreement is governed by and construed under the laws of the State of
California, and any action brought by either party against the other party
to
enforce or interpret this Agreement shall be brought in an appropriate court
of
such State in San Diego. In the event of any such action, the prevailing party
shall recover all costs and expenses thereof, including reasonable attorney's
fees from the losing party.
7.
Notices.
Any
notice, request, instruction or other document to be given under this Agreement
by either party to the other party shall be in writing and (a) delivered
personally; (b) sent by telecopy; (c) delivered by overnight express (charges
prepaid); or (d) sent by registered or certified mail, postage
prepaid:
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If
to Company to:
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If
to Finder to:
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or
at
such other address for a party as shall be specified by like notice. Any notice
which is delivered personally, telecopied or sent by overnight express in the
manner provided in this section 8 shall be deemed to have been duly given to
the
party to whom it is addressed upon actual receipt by such party. Any notice
which is addressed and mailed in the manner herein provided shall be
conclusively presumed to have been given to the party to whom it is addressed
at
the close of business, local time of the recipient, on the third business day
after it is so placed in the mail.
8.
Complete
Understanding.
This
Agreement and the Purchase Agreement constitute the entire agreement and
understanding between the parties and supersedes all prior agreements and
understanding, both written and oral, between the parties hereto with respect
to
the subject matter.
9.
Headings
and Capitalized Terms.
The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of its
provisions
10.
Successors
and Assigns.
The
terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the parties and their respective successors and permitted assigns. Neither
Finder nor Company may assign their rights or delegate their obligations under
this Agreement without the prior written consent of the other.
11.
Modification
and Waiver.
None
of
the terms or conditions of this Agreement may be waived except in writing by
the
party which is entitled to the benefits thereof. No supplement, modification
or
amendment of this Agreement shall be binding unless executed in writing by
Finder and Company. No waiver of any of the provisions of this Agreement shall
be deemed or shall constitute a waiver of any other provision (whether or not
similar) nor shall such waiver constitute a continuing waiver.
12.
Invalid
Provisions.
If
any
provision of this Agreement is held to be illegal, invalid or unenforceable
under present or future laws by any court of competent jurisdiction, such
illegality, invalidity or unenforceability shall not affect the legality,
enforceability or validity of any other provisions or of the same provision
as
applied to any other fact or circumstance and such illegal, unenforceable or
invalid provision shall be modified to the minimum extent necessary to make
such
provision legal, valid or enforceable, as the case may be.
If
the
foregoing correctly sets forth our Agreement, please sign and return the
enclosed copy of this letter.
Sincerely,
____________________________________ss
(Finder)
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Falcon
Financial Consulting, LLC
Its:
President
AGREED
TO
AND ACCEPTED AS OF THE DATE HEREOF
(Company)
Siteworks, Inc.
By:
_________________________________________
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Its:
President