Exhibit 10.1
CONSULTING SERVICING AGREEMENT
This Consulting Servicing Agreement ("Agreement") is entered into by
and between XXXXXXX GROWTH & INCOME FUND, LLC, a Delaware limited liability
company (`Client"), and XXXXXXX FINANCIAL SERVICES, INC., a Texas corporation
("Consultant"), and is effective as of the effectiveness of the registration
statement ("Registration Statement") on Form SB-2 filed with the Securities and
Exchange Commission by Client.
RECITALS
WHEREAS, Client intends to purchase defaulted and charged-off consumer
receivables ("Receivables") and subsequently collect and resell such
Receivables;
WHEREAS, Client desires to retain Consultant to render advice
regarding, and to assist in implementing, Client's business plan (such plan, in
the initial form included in the Registration Statement attached as Exhibit A
hereto and the Initial Business Plan Summary attached as Exhibit B hereto and as
hereafter amended, revised or replaced pursuant to this Agreement, being
referred to herein, collectively as the "Business Plan") for buying, collecting,
and reselling Receivables;
NOW, THEREFORE, in consideration of the mutual covenants, conditions,
promises and other good and valuable consideration set forth herein, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
TERMS AND CONDITIONS
1. SERVICES.
(a) Subject to the terms and conditions of this Agreement, Client
hereby engages Consultant, and Consultant agrees to render, the services
described with respect to Consultant in the Business Plan (collectively
"Services"). From time to time, Client may submit to Consultant a written
proposal ("Proposal") amending or revising in whole or in part the Business Plan
then in effect as Client shall deem to be advisable to achieve its profitability
objectives and goals: provided, however, without Consultant's express written
consent no such Proposal shall (i) impair or adversely affect the compensation
for Services under this Agreement to Consultant or its Affiliates, (ii) modify
any provision of Sections 1, 5 or 6 of this Agreement, or (iii) become effective
until the thirtieth day after Consultant's receipt of same.
(b) It is agreed that Client and Consultant shall cooperate as
necessary for Client to open an account ("Account") with a mutually agreeable
financial institution pursuant to which Client will, from time to time, deposit
money, and Consultant will be entitled to make withdrawals and deposits to be
used in accordance with the objectives and terms of this Agreement.
(c) Consultant may contract with others, including Affiliates of
Consultant, for providing Services hereunder, but the aggregate of all fees for
all such services shall not exceed the fees provided for herein. The assets
purchased with funds from Client's Account shall be carried in the name of
Client or, if in the name of Consultant or any of its Affiliates, recorded to
indicate that they are owned by Client.
(d) Client must approve any (i) sales of portfolios of Receivables with
a sales price of $250,000 or greater, and (ii) acquisitions of portfolios of
Receivables with a purchase price greater than $150,000. Client's approval shall
be indicated by Client in writing or by Client's failure to object to
Consultant within two business days after being notified of such planned
transaction.
(e) Consultant agrees and shall assure that Consultant and any of its
Affiliates utilized by Consultant to perform this Agreement shall be fully
licensed as required by law to perform collection services and shall perform
such services at a level equal to or exceeding prevailing industry standards.
2. COMPENSATION OF CONSULTANT.
In consideration for the Services, Client shall pay to Consultant or
its designated Affiliates, fees in accordance with the following:
(a) An "Acquisition Fee" in an amount deemed by Consultant to be
appropriate, but in no event to exceed 5% of the purchase price of Receivables
acquired for Client's Account paid simultaneously with the acquisition of such
Receivables.
(b) A "Sales Fee" in an amount up to 20% of the gross proceeds received
for Client's Account (whether paid in cash or property other than cash) from or
with respect to the sale, on a retail or wholesale basis, of Receivables from
Client's Account, payable immediately upon receipt of such proceeds on behalf of
Client's Account.
(c) A "Collections Fee" in an amount equal to 50% of the gross proceeds
received for Client's Account (whether paid in cash or property other than cash)
resulting from efforts to collect the Receivables owned by Client's Account
other than as a result of third party collection efforts. The Collections Fee
shall be payable immediately upon receipt of such gross proceeds.
Consultant shall be entitled to withdraw from, or withhold from depositing into,
the Account each of the foregoing fees at any time after such fee becomes
payable. Any fees based on gross proceeds deposited into the Account will be
calculated as if the fees were deposited and then withdrawn from the Account.
3. RECORDS AND REPORTS.
(a) Consultant shall keep reasonable and appropriate records of all of
the transactions effected by Consultant for Client's account. Client shall be
entitled to review at its expense such records at Consultant's offices during
regular work hours, or as otherwise agreed to by the parties, after the
expiration of three (3) business days after Consultant is notified of such
desired review, or such shorter period as the parties shall otherwise agree.
(b) Consultant shall furnish monthly reports to Client in such
reasonable form and with reasonable information as the parties shall mutually
agree.
4. WITHDRAWAL RIGHTS.
The parties acknowledge and agree that in order for Consultant to
provide appropriate services for transactions in Client's Account, Client must
not have the unlimited ability to withdraw funds from the Account. However, the
parties also acknowledge and agree that from time to time, Client may have the
business necessity to withdraw funds from the Account. Therefore, funds may be
withdrawn from the Account under the following terms and conditions:
During any six month period of the term of the Account, Client may
withdraw up to 10% of the aggregate amount of money that has been
deposited by Client in said Account in accordance with the following
procedures. Client shall notify Consultant of the amount of money it
desires to withdraw from the Account. Consultant shall have 60 days
after
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receipt of said notice to liquidate assets in the Account as
appropriate in order to fund said withdrawal needs. Client may withdraw
such liquidation funds from the Account subject to the above
limitations.
5. TERM AND TERMINATION. This Agreement shall remain in effect until
the dissolution of Client under Delaware law; however, it may be terminated by
Client, without cause, for any reason, commencing three years after the
effective date of this Agreement, upon 90 days written notice of such
termination to Consultant. Any such termination before the expiration of the
general four-year term shall be effective at the Effective Date of Termination
as defined below. The "Effective Date of Termination" means the earlier to occur
of the expiration of nine months after delivery of the above termination notice
or the completion of the liquidation of the Account and distribution to Client
of the net cash proceeds less any Compensation (collectively "Net Cash
Proceeds"). Upon delivery of the termination notice, Consultant shall deliver to
Client all of the cash funds (less any Compensation), if any, held by Consultant
on behalf of Client at that time, and Consultant shall either (i) distribute the
Account assets to Client, or (ii) carry out and complete plans and actions to
liquidate the Receivables in Client's Account on or before the Effective Date of
Termination and, to the extent commercially reasonable, to avoid undue loss. The
Net Cash Proceeds thereof shall be returned to Client as such proceeds are
received for Client's Account.
This Agreement shall be in effect until the Effective Date of Termination.
Notwithstanding any contrary provision, all payment obligations of Client
accruing prior to the Effective Date of Termination shall survive such
termination, and Consultant may withhold all amounts due it hereunder from any
payments to Client.
6. MISCELLANEOUS.
(a) The parties agree that there are no third party beneficiaries to
this Agreement. The terms "Affiliate" or "Affiliated," as used to indicate a
relationship to a specified person or entity, mean any person or entity that,
directly or indirectly or through one or more intermediaries, controls, is
controlled by or is under common control with, such person or entity. Unless
otherwise expressly provided, the word "including" and all variants thereof do
not limit the preceding words or terms.
(b) As promulgated under Client's Limited Liability Company Agreement,
attached hereto as Exhibit C, upon liquidation, Consultant, as Manager Member of
Client, shall be entitled to certain distributions in accordance with Section
5.4 of the Limited Liability Company Agreement.
(c) The parties hereby agree that electronic mail shall be deemed to be
a writing signed by the person electronically indicated as the sender of such
e-mail, Any notice or communication required or permitted to be given hereunder
shall be made in writing and shall be deemed to have been given to the intended
recipient upon (i) hand delivery, (ii) actual or attempted delivery to such
parry's address according to evidence of delivery by a recognized independent
courier service, (iii) electronic facsimile transmission, when the appropriate
number and answerback are transmitted, or (iv) electronic confirmation of
electronic mail delivery, in each case at the address, telecopy number or e-mail
address set forth below:
Client: Xxxxxxx Growth and Income Fund, LLC
0000 X. Xxx Xxxxx Xxxx., Xxxxx 000,
Xxxxxx, Xxxxx 00000
E-mail: xxxxx@xxxx.xxx
Fax: (000)000-0000
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Consultant: Xxxxxxx Financial Services, Inc.
0000 X. Xxx Xxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
E-mail: Xxxxxxx@xxxx.xxx
Fax: (000)000-0000
Either party may designate a different address by notice to the other given in
accordance herewith.
(d) This Agreement and the exhibits attached hereto constitute the
entire agreement among the parties with respect to the subject matter hereof,
and may be amended only by a written amendment executed by the parties hereto.
The Business Plan attached hereto is incorporated herein by reference and,
contemporaneously with its effectiveness under this Agreement, any amendment,
revision or replacement thereof pursuant to this Agreement shall be incorporated
by reference in this Agreement. The provisions of this Agreement supplement and,
to the extent of any conflict, control the provisions of the Business Plan.
(e) This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective heirs, executors, administrators,
successors and assigns. This Agreement may be executed in any number of
counterparts with the same effect as if all of the parties had signed the same
document; all counterparts shall be construed together and shall constitute one
agreement.
(f) If any provision of this Agreement shall be held or made invalid by
a court decision statute rule or otherwise, the remainder of this Agreement
shall not be affected thereby, and such remainder shall remain in effect,
(g) This Agreement shall be construed in accordance with the laws of
the State of Texas without reference to its conflicts of laws principles. If any
action or proceeding is necessary to enforce the provisions of this Agreement,
including any claim or demand, or to interpret this Agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which it may otherwise be
entitled, whether or not such action or proceeding is prosecuted to judgment.
[SIGNATURE PAGE FOLLOWS]
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Executed to be effective as of the date first above written.
CLIENT:
XXXXXXX GROWTH & INCOME FUND, LLC
By: /s/ XXXX XXXX
-------------------------------------
Print Name: Xxxx Xxxx
Title: Secretary and Director
CONSULTANT:
XXXXXXX FINANCIAL SERVICES, INC.
By: /s/ XXXX XXXXXXX
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Xxxx Xxxxxxx, Chief Executive Officer
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EXHIBIT A
REGISTRATION STATEMENT
EXHIBIT B
INITIAL BUSINESS PLAN SUMMARY
It is intended that Client shall maintain the ability to review and
approve certain transactions into which Consultant may enter on Client's behalf
As noted in the Consulting Servicing Agreement, Client must approve any
(i) sales of portfolios of Receivables with a sales price of $250,000 or
greater, and (ii) acquisitions of portfolios of Receivables with a purchase
price greater than $150,000 (each a "Material Transaction"). Client has
determined that transactions of a lesser amount are "immaterial", and has
delegated the authority to effectuate such transactions without review and
approval to Consultant.
Consultant will provide to Client monthly reports that will include all
such immaterial transactions, along with any Material Transactions, and Client
may review and request further information on any transactions included in these
reports.
With respect to Material Transactions, Consultant will notify Client of
Consultant's intent to enter into such transactions, and Client may approve or
disapprove of each such transaction. Failure of Client to respond to such notice
within 2 business days shall be deemed to signify approval.
Client authorizes Consultant to expend appropriate funds for
administrative and operating expenses without prior approval of Client.
Consultant agrees to provide Client with monthly financial statements that will
reflect such expenditures.
Client may submit to Consultant at any time in accordance with Section
1(a) of the Services Agreement, a written proposal ("Proposal") amending or
revising in whole or in part the Business Plan as Client shall deem to be
advisable to achieve its profitability objectives and goals.
