AGENCY SERVICE AGREEMENT
EXHIBIT
10.3
AGENCY
This
Agreement, dated the 5th day
of January 2010, is between Performance Capital Management LLC a California
Limited Liability Company with its principal place of business located at 0000
Xxxxxxx Xx Xxxxx 000, Xxxxx Xxxx XX 00000 (hereinafter “Debt Owner”) and
Xxxxxxxx Financial Group, LLC a Florida Limited Liability Company with its
principal place of business located at 0000 Xxxx Xxxxxx Xxxxxxx, Xxxxxxxx Xxxxx,
XX 00000 (“hereinafter “Agency”).
Agency is
a collection agency in the primary business of collecting accounts receivable on
behalf of its clients.
Debt
Owner is a company in the primary business of purchasing, managing and
collecting distressed-debt portfolios, and desires to utilize Agency in the
collection of accounts receivable.
In
consideration of the mutual promises made in this Agreement, Debt Owner engages
Agency and Agency agrees to perform services for and on behalf of Debt Owner,
under the following terms and conditions:
1. Term. This
Agreement will commence on the date first written above and continue until
terminated in accordance with Section 9.
2. Accounts. From
time to time, in its sole discretion, Debt Owner will provide certain credit
accounts to Agency for management services or collection of
receivables. Debt Owner has sole discretion in determining which
Accounts Debt Owner will provide to Agency, except that Debt Owner will not
knowingly provide Accounts involving bankruptcy, fraud, forgery, or disputed
balances. The term “Account” means the unpaid accounts receivable,
legal instruments, contract rights, and all other rights possessed under the
Uniform Commercial Code or otherwise. Debt Owner will provide, at its
discretion, Agency with documentation and information Debt Owner possesses
relating to the Accounts, which may help Agency collect on those
Accounts. Debt Owner warrants that they will not knowingly provide
Accounts to Agency unless such Accounts are expressly authorized by an agreement
creating the debt or permitted by law and are owed by the consumer identified in
Debt Owner’s records as the obligor; that they will disclose all material facts
regarding debtor’s legal representation; that they will agree to promptly notify
Agency of payments received directly on Accounts placed for collection; and that
any interest or additional charges added to any Account by Debt Owner or that
Debt Owner directs Agency to add, are authorized by contract or are otherwise
authorized by law.
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3. Settlements
and Compromises. Agency is authorized to settle
Accounts for less than the entire balance subject to certain Debt Owner
restrictions. Agency shall use its best judgement when making a settlement to
debtors including payment programs. Agency may accept proposals of
compromise or settlement of an Account for less than the agreed upon settlement
percentage of the amount owed, subject to Debt Owner’s prior approval regarding
the Account. Repayment schedules will not exceed 120 days on settlements or 12
months on full balance payment arrangements
4. Fees. Debt
Owner shall pay Agency for collection of Accounts a contingency fee set forth in
Exhibit 1 of the gross amount of monies collected on all placements. Agency will
be entitled to these fees on amounts collected by or paid directly to Debt Owner
on Accounts which Debt Owner has sent to Agency and which have not, pursuant to
the terms of this Agreement, been returned to Debt Owner. Agency will bear all
costs and expense involved with collecting an Account.
5. Indemnification. Each
party shall indemnify and hold harmless the other parties, its officers,
directors, and employees from and against any and all liability, loss, damage,
cost or expense (including court costs and reasonable attorney fees) for any
claims, demands, suits or causes of action, of whatsoever nature and by whomever
asserted, in any way (i) arising out of, resulting from, or relating to the
breach of this Agreement by that party, and (ii) arising out of, resulting from
or relating to the actions of that party to this Agreement which are beyond the
reasonable control of the other party or parties.
6. Insurance.
Agency
warrants that it has and maintains an Errors and Omissions insurance policy in
an amount no less than 1 million dollars and that it will amend said policy to
name Performance Capital Management LLC as an additional insured.
7. Agency
Monies Collected. Agency shall be accountable for
all monies collected on each Account. Agency shall hold such monies
in Agency’s trust account for the benefit of Debt Owner. Agency shall
submit a bi-weekly progress report advising who has paid and how many promise to
pays and postdated checks are in house to date. The report will have PCM account
number listed on it. The Agency shall submit a monthly remittance
report to Debt Owner listing each account on which a collection was made and the
gross amount collected for each Account and the PCM account number for each
account money was collected on. Net amounts shall be included in a
bank wire to Debt Owner in an amount equal to the sum of all monies collected
during the month less the Agency’s fee. The monthly remittance is to be received
by Debt Owner on or before the First (1st) day of the month for the previous
month’s collections unless the First day falls on a Saturday, Sunday or Holiday
in which case it will be due on the Monday after the weekend or
Holiday.
8. Recall. Debt owner may recall
any account referred to Agency upon thirty (30) days notice, however if being
recalled for good cause (account was paid prior, sold prior, involved in lawsuit
or has a complaint against Agency or Debt Owner, etc,) Agency shall cease all
collection activity and return the account to Debt Owner
immediately.
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9. Termination. Either
party may terminate this Agreement upon thirty (30) days prior written notice to
the other party. Agency agrees to return all Accounts including
accounts who have made payment plan arrangements to Debt Owner along with a
financial record of the Accounts including amount collected, commission
retained, additional fees, interest and charges added to the Account as
authorized by Debt Owner, current address and phone number, current status code
and what the status code means.
10. Confidentiality. Agency
agrees to keep confidential all information herein and/or related to Debt Owner
and the Account Debtors, including but not limited to Privacy Provisions of the
Xxxxx-Xxxxx-Xxxxxx Act of 1999 for which Agency obtains or develops as a result
of collecting Accounts. All such information may be used solely by
Agency as necessary for the performance of Agency’s obligations under this
agreement.
11. Relationship
of Parties. Nothing in this Agreement is intended
to create nor may it create any relationship between the parties other than
independent contractors. No association, joint venture, partnership,
or any agency relationship is created or exists between the
parties.
12. Assignment. This
Agreement may not be assigned to any party without the prior written consent of
the other party, such consent not to be unreasonably withheld, except that any
party may transfer its rights and obligations to a parent, affiliate, or
subsidiary. Debt Owner agrees that Agency may utilize collection
services of third party collection agencies for the servicing and collection of
subject Accounts.
13. Severability. If
any portion of this Agreement is found by a court to be illegal or ineffectual,
the remaining portions of the Agreement shall stay in force and shall be
construed to most accurately reflect the legal intent of the parties at the time
the legal or ineffectual document was signed.
14. Notices. Notices,
approvals, and requests for approvals provided for and allowed herein shall be
given in writing, and shall be addressed and sent certified mail, return receipt
requested or by way of national air courier, addressed as follows:
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To
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Xxxxxxxx
Financial Group, LLC
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To
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0000
Xxxx Xxxxxx Xxxxxxx
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0000
Xxxxxxx Xx Xxxxx 000
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Xxxxxxxx
Xxxxx, XX 00000
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Xxxxx
Xxxx, XX. 00000
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15. Governing
Law. This Agreement will be interpreted
according to the laws of the State of Florida. Any conflict not
resolved by out-of-court negotiation between the parties shall be heard in a
court with appropriate jurisdiction located in Sarasota County
Florida.
16. Modification. No
variation or modification of the Agreement or waiver of any of its terms or
provisions shall be deemed valid unless in writing as an amendment hereto signed
by the parties.
17. Successors
and Assigns. Subject to Paragraph 10, each
provision of this Agreement shall extend to, bind and inure to the benefit of
Debt Owner and Agency and their respective legal representatives, successors,
and assigns.
18. Representations
and Warrants. Agency Represents and Warrants to PCM that it
will comply with the Fair Debt Collection Practices Act, 15 U.S.C.A. 1692 et
seq., the Fair Credit Reporting Act, the Federal Bankruptcy Code and all other
debt collection laws. Agency further agrees to comply with Title V of the Xxxxxx
– Xxxxx – Xxxxxx Act of 1999 which currently restricts the non affiliated, third
party sharing of Account Debtor non-public personal information. Agency
Represents and Warrants that it is licensed and is authorized to collect in all
jurisdictions where it will perform services under this agreement. In
addition to State Licensing and bonding requirements, Agency will comply with
all other applicable laws and regulations of the United States and each State in
which the Agency operates. Agency further agrees it will not engage
in any collection action, which may be deemed unfair, deceptive, or
harassing.
IN
WITNESS WHEREOF, the parties have executed this Agreement through their duly
authorized representatives as of the day and year first written
above.
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Xxxxxxxx
Financial Group, LLC
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By:
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/s/ Xxxxxx X. Xxxxx
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By:
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/s/ Xxxxx X. Xxxxxxxx
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Printed
Name Xxxxxx X. Xxxxx
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Printed
Name: Xxxx Xxxxxxxx
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Title:
Chief Operating Officer
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Title: Chief Operations
Officer
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EXHIBIT
1
Fee
schedule
45%
to 52% of Gross receipts on all accounts assigned.
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Account
type
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#
accounts
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$balance
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