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Scope of Services Agreement


Name:  

Company Name:  

Complete Address:  
Date:  

Personal & Confidential

Dear ,
Thank you for providing the American BSA, LLC (“American Small Business Advisory” or “ASBA”) with the opportunity to provide finance sourcing, loan packaging, financial consulting and advisory services to (the “Company”). As America’s premier small business advisors, we pride ourselves in providing a positive impact to stakeholders by leaving every business and business owner in a better position than we found it regardless if they become a client.

We look forward to this initial engagement and the positive impact it could have in your business. Our goals for any business engagement are to improve your personal credit profile and credit profile of the Company, to stabilize cashflows through recapitalization, refinance, or renegotiation of current outstanding obligations and liabilities, to lower monthly debt-service as needed, improve debt-to-income ratios or debt-service ratios as needed, and ultimately improve the average APR or cost of capital associated with existing financing options as well as the options available to you and your business in the future. Nevertheless, we establish our value by helping you achieve your goals and objectives in the short-term and in doing so earn a long-term engagement to provide forecasting and guidance.

This letter agreement (the “Agreement”) attempts to align our mutual interests in a clear and concise manner as to how ASBA envisions representing the Company in this engagement whereby ASBA would provide exclusive advice and guidance to the Company consistent with that provided by a competent Chief Financial Officer, Financial Consultant, and/or Investment Bank related to among other things securing financing for the Company and its owners, which may include but is not limited to SBA 7(a) Loans, Economic Injury Disaster Loans, and funds from the Paycheck Protection Program, as well as advise on best practices, processes and systems for improving collections, receivables management, cash flow management, and marketing the Company for the purposes of recapitalization or divestiture, mergers and acquisitions, and securing financing. (hereinafter, a “Transaction”).

1. Services to be Rendered. ASBA shall be the exclusive provider of the following in connection with a potential Transaction (the “Services”):

i. Act as the Authorized Representative on behalf of the Company for the purposes of applying to the Paycheck Protection Program at no cost to the Company, ii. Apply for an Economic Injury Disaster Loan Advance at covid19relief.sba.gov on behalf of the Company if requested and represent
American SBA, LLC 

the Company in correspondence with the Small Business Administration if requested as needed, iii. Prepare and Package a Loan Application on behalf of the Company to be submitted for an SBA 7 (a) product if requested, iv. Provide professional recommendations regarding eligibility of the Company for public and private loan and grant programs including but not limited to those mentioned in this subsection above (i, ii, and iii) based on the work done in subsections below (v, vi, etc.). v. Review the Company’s historical financial performance, operational reporting metrics and growth opportunities to discuss means of maximizing revenue and profitability of the Company in the near- and long-term, vi. Review the Company’s and owners’ credit profiles and provide recommendation for improvement, vii. Recommend and/or source vendors/contractors capable of repairing and/or establishing personal or business credit as needed, viii. Recommend and/or source bookkeeping, accounting, and legal representation as needed, ix. Recommend and/or source SaaS to improve efficiencies in bookkeeping, inventory, and labor management and other finance related activities, x. Work with you and the Company to review financial projections or Proformas for 2020 and 2021 provided by Company and recommend contractors to create, at additional cost, as needed, xi. Aid the Company in preparing and packaging loan application(s) in the manner acceptable to public and private sources of financing that are acceptable to the Company including but not limited to the Small Business Administration, Investment Banks, and/or FDIC insured depository banks, xii. Simultaneously discuss with the Company a number of qualified potential suitors, both financial and strategic, who would have interest in providing financing or services to the Company, and the pros and cons of working with each; xiii. Determine, with the Company’s assistance and express pre-approval, the b e s t method and timing regarding initial contact with suitors, vendors, and lenders and what is allowed to be shared with each party; xiv. Promptly entertain and respond to all inquiries regarding questions and process inquiries from prospective suitors, vendors, or lenders with respect to bidding on a Transaction or securing financing options for the Company, xv. Strategize with and help prepare the Company for presentations to prospective parties. xvi. Attend all requested meetings for which sufficient lead time is provided, xvii. Structure key terms and conditions which benefit the Company and its Shareholder as formalized and documented in a written letter of intent, xviii. Assist with the compilation of due diligence materials following execution of a letter of intent, including the creation of an online / in the cloud electronic data room for ease of convenience; xix. Make recommendations throughout the process in regard to the Company’s options. xx. Act as company’s authorized representative for the purposes of applying to and securing a loan and grant; and xxi. Work with the Company’s legal, tax, and other professionals to document a desired Transaction. As part of this Agreement, the Company agrees to retain ASBA as its exclusive investment banking and financing consultant, advisor, and agent to render the Services,
American SBA, LLC 

provided ASBA with all relevant information required to perform its Services, and cooperate fully with ASBA in its providing the Services. The Company acknowledges that ASBA may receive a referral fee or commission related to a contemplated transaction and waives any claim of right thereto or any claims related to a conflict that it may create. The Company will provide the ASBA with a power of attorney to act on behalf of the Company, but acknowledges that ASBA is not providing legal advice in any manner. The Company agrees to secure the services of attorneys, accountants, credit specialist, and other professionals necessary to provide the requisite professional services.

2. Confidentiality. The parties hereto agree that each shall treat confidentially the terms and conditions of this Agreement and all information provided by each party to the other regarding its business and operations. All confidential information provided by a party hereto shall be used by any other party hereto solely for the purpose of rendering or obtaining services pursuant to this Agreement and, except as may be required in carrying out this Agreement, shall not be disclosed to any third party without the prior consent of such providing party.

3. Company’s Representations and Warranties, Agreements. The Company agrees, represents, and warrants (on a continuing basis) that the information that it has provided and will continue to provide to ASBA is accurate and complete to the best of its knowledge, and does not, and will not, misstate a material fact, or omit to state a material fact necessary in order to make ASBA’s statements about the Company not misleading. ASBA will have no obligation to conduct an independent verification of the accuracy or completeness of any information provided to it by the Company or its Shareholder, or to conduct an appraisal of any of the Company’s assets. Furthermore, the Company and its Shareholder agree and covenant that they will not initiate any legal or administrative proceedings whatsoever against ASBA related to or in connection with the Services rendered hereunder which seeks more than the amount of the fees actually paid by the Company to ASBA.

4. Company’s Indemnification. Pursuant to Addendum A  of this Agreement, the Company agrees to indemnify ASBA and any related entities or persons.

5. Term of Agreement. This Agreement shall remain in effect until a Transaction is completed or until terminated by the ASBA. Termination shall be made by overnight tracked (e.g. FedEx) or registered mail, return receipt requested, and shall be effective upon receipt of such notification; provided, however, no such termination shall affect the indemnification obligations of the Company, the confidentiality obligations of ASBA, nor the right of ASBA to receive any fees payable hereunder for services that have accrued prior to such termination.

6. Fees and Expenses. The Company agrees to pay to ASBA an initial earned-upon- receipt retainer (the “Retainer”) of twenty-five hundred dollars ($2,500), which may be considered a Loan Packaging Fee for an SBA 7(a), but not related to services rendered for the Paycheck Protection Program. The initial retainer amount shall be billed at half the normal hourly rate until exhausted. Normal hourly rates are as follows:

➢ $450 per hour for Managing Directors and/or Consultants with specialty licensing (such as a Juris Docorate), ➢ $325 per hour for Brand Directors, ➢ $250 per hour for Senior Advisors and Analysts, ➢ $150 per hour for Junior Advisors and Consultants, ➢ $75 per hour for all other personnel.

(i) Success Fee For A Closed Transaction. Upon the consummation of any Transaction not related to the Small Business Administration or CARES Act, a success fee (“Success Fee”) shall be calculated and paid, via wire transfer, to ASBA. The Success Fee shall be based on the cash value received at closing of the total consideration (“Total Consideration”) paid by the ultimate suitor or financing partner. Total Consideration paid to the Company shall include, but is not limited to, the following: mon- eys or cash received as part of the Transaction (excluding cash on the balance sheet at closing);

the fair market value of issued securities (including retained equity (aka rollover equity interests) in the continuing entity); the principal amount of any promissory note or other debt instruments received by the Company or its Shareholder; and any anticipated contingent payment such as an earn-out. Please note; however, that Total Consideration shall not include the fair market value of continuing Shareholder compensation for future services to be provided by the Share- holder subsequent to the closing, or (ii) the fair market value for any rent to be paid to the Shareholder via any personally-owned or affiliated real estate entities.

A key distinction between ASBA and most other investment banking firms is that ASBA only earns its Success Fee on (i) Shareholder notes, (ii) rollover equity interests and / or (iii) contingent earn-out consideration if and when the Shareholder or the Company actually monetizes such contingent consideration into cash. At the Shareholder’s election; however, contingent notes, rollover equity and / or earn-out consideration can be discounted to seventy percent (70%) of its current or expected stated value and a cash equivalent value remitted to ASBA at closing.

American SBA’s Success Fee is calculated as follows:

➢ Five percent (5%) of the Total Consideration received by the Company or its Shareholder on the first two million dollars ($2,000,000) of Total Consideration; plus ( + )

➢ Four and one-half percent (4.5%) of the Total Consideration received by the Company or its Shareholder in excess of two million dollars ($2,000,000); less ( – )

➢ One hundred percent (100%) any Retainer paid by the Company to the ASBA.

7. SBA Referral Fees and Disclosures. The Company understands that neither a lender, nor the SBA, require the use of an Agent for packaging or referring a loan application. Company understands that ASBA can offer services related to the PPP at no cost to the Company because SBA Lenders are directed to pay agents. Additionally, ASBA charges at a reduced rate under $2500 for Loan Packaging of a SBA 7(a) or SBA 504 application because SBA Lenders may pay referring agents for successful referrals. Accordingly, the Company shall execute the SBA required Fee Disclosure and Compensation Agreement. Additionally, Company shall, if requested by ASBA, direct any SBA lender to pay ASBA as it’s referring agent or authorized representative for funds received by the Company related including but not limited to the EIDL, PPP, SBA 7(a) Loan Programs, or SBA 504 Loan Programs. Furthermore, Company understands that neither a lender, nor the SBA, require the use of an Agent for packaging or referring a loan application.

8. Obligations Surviving Termination of Agreement. This Agreement is cancelable at any time; however, ASBA will be entitled to its fees and expenses as set forth in paragraphs 6 and 7, above, with respect to a Transaction consummated either (i) during the term of this Agreement, (ii) within four (4) months of the termination of this Agreement, or (iii) within eight (8) months after termination of this Agreement for any potential suitor with whom ASBA executed a confidentiality agreement and / or sustained authorized Transaction discussions during the term of the Agreement (a list of potential suitors with whom this eight month overhang provision shall apply will be provided by ASBA to the Company in writing within thirty (30) days of termination of the Agreement.

9. Assignment. Except as expressly contemplated hereby, this Agreement is assignable by the ASBA and is not assignable by the Company without the prior express written consent of the non-assigning party.

10. Notices. All notices required or permitted by this Agreement, including, but not limited to, any attachments to this Agreement, shall be in writing and shall be sent by express
American SBA, LLC 

service (e.g. FedEx) or registered mail, return receipt requested, in either case with a receipt showing to whom delivery was made, and addressed as follows:

If to American SBA, LLC If to the COMPANY:

 

 

ATTN: Kerry M. Tibor Jr.

330 W. Oakland Park Blvd., #287

Fort Lauderdale, Florida 33334

This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.

11. Announcements. There shall be no public announcements by ASBA in conjunction with this Agreement or the Transaction unless approved in advance by The Company or unless an announcement has already been publicly disclosed and disseminated by either The Company or its acquirer unless provided express written consent by both Parties. Regardless, no public mention of Transaction valuation or key deal terms and conditions shall ever be permitted to be disclosed by ASBA.
12. Governing Law. This Agreement shall be governed by the laws of the State of Florida, with- out regard to conflicts of law principles. The parties acknowledge that a substantial portion of the negotiations, anticipated performance and execution of this Agreement occurred or shall occur in Dade County or Duval County, Florida. Any civil action or legal proceeding arising out of or relating to this Agreement shall therefore be brought solely in the courts of record of the State of Florida in Dade County or Duval County or the United States District Court closest to Dade County or Duval County, Florida, whichever the ASBA elects. Each party consents to this jurisdiction of such court in any civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such court. Service of any court paper may be affected on such party by mail, as provided in paragraph ten (10) of this Agreement, or in such manner as may be provided under applicable laws, rules of procedure or local rules.
13. Entire Agreement. This Agreement represents the entire agreement of the parties with respect to the subject matter hereto. The Agreement may not be modified or amended except by written agreement which expressly refers to this Agreement and is executed by both the Company and ASBA. Furthermore, the headings in this Agreement are for information only and are not deemed part of this Agreement.

If the foregoing is acceptable to you, please so indicate by signing and returning this letter to us and we will immediately commence with this engagement. If you have any questions, please do not hesitate to contact me directly. We look forward to working with you and the Company.
Sincerely,

American SBA, LLC
/s/ Kerry M. Tibor Jr.

Mr. Kerry Michael Tibor Jr.

Managing Director & Authorized Signature

Accepted and Agreed to:
THE COMPANY OFFICE, LLC & ITS AFFILIATES

By:

Name:

Business Name:

Date:

** ADDENDUM A – INDEMNIFICATION PROVISION **

The Company is a sophisticated business enterprise with sophisticated advisors and competent internal controls. The Company has retained ASBA for the limited purposes set forth herein this Agreement. ASBA neither expresses nor implies any warranties of success regarding its efforts to complete a Transaction, nor has ASBA offered any assurances that its efforts to complete a Transaction as contemplated by this Agreement will definitely be successful.

In connection with ASBA’s engagement to advise and assist the Company pursuant to the Agreement to which this Addendum A is applicable, the Company agrees to indemnify and hold harmless ASBA and each of its officers, directors, employees and other advisors, (hereinafter collectively referred to as an “Indemnified Party”), to the full extent allowed by law or equity, from and against any and all judgments, losses, claims, damages, costs, fees, expenses or liabilities, joint or several, to which an Indemnified Party may become subject, or any actual or threatened claim, litigation, investigation, proceeding or action in any court or before any regulatory, administrative or other body relating to any of the foregoing, including without limitation all reasonable legal and other costs, fees and expenses as they are incurred in connection with investigating or defending such claim (hereinafter referred to collectively as a “Claim”);

The Company may, and shall, if requested by an Indemnified Party, assume the defense of any Claim against such Indemnified Party in respect of which indemnity may be sought hereunder, including, without limitation, the employment of counsel reasonably satisfactory to such Indemnified Party and the payment of the fees and expenses of such counsel and necessary experts, in which event, except as provided below, the Company shall not be liable for the fees and expenses of any other counsel retained by such Indemnified Party in connection with such litigation or proceeding. In any such litigation or proceeding the defense of which the Company shall have assumed, any Indemnified Party shall have the right to participate and retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party.

The Company shall not be liable for any settlement of any litigation or proceeding effected without its consent; however, if settlement occurs with such consent or if there is a final judgment against the Indemnified Party, then the Company agrees to indemnify, pursuant to the terms hereof, against any loss or liability by reason of such settlement or judgment. The provisions of this Addendum A shall not be limited by any rights that ASBA or any other Indemnified Party may otherwise have; shall remain in full force and effect regardless of any termination of ASBA’ engagement; and shall be binding upon any successors or assigns of ASBA and the Company.

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Signature Certificate
Document name: Scope of Services Agreement
lock iconUnique Document ID: 9ad30bb3d3890241ee2ec0836d5339f06ad8b6d8
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April 11, 2020 12:13 am CSTScope of Services Agreement Uploaded by Ernesto Zamora - subs@cbsa.online IP 190.99.50.209