Contract
EXHIBIT
10.4
MANAGEMENT AND ADVISORY
AGREEMENT
This
MANAGEMENT AND ADVISORY AGREEMENT (the “Agreement”), dated as
of May 10, 2010, is by and between Western Capital Resources, Inc., a Minnesota
corporation (the “Company”), and
Blackstreet Capital Management, LLC, a Delaware limited liability company
(“BCM”).
WHEREAS,
the Company desires to retain BCM to provide certain management and advisory
services to the Company in light of, among other things, the Company’s prior
internal control issues, the highly regulated business in which the Company is
involved, the increasing complexity of the Company’s multiple business lines,
and the diminished staffing of the Company at the management level and
increasing strain on such management since the departure of prior management at
the conclusion of fiscal 2008; and
WHEREAS,
subject to the terms and conditions of this Agreement, BCM desires to
provide such services;
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
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1.
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Management
Services.
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During the term of this Agreement,
which the parties acknowledge and agree shall be deemed effective as of April 1,
2010 (the “Term”), BCM and
the Company hereby agree that:
(a) BCM
will provide the Company with financial, managerial, strategic and
operational advice and assistance in connection with its day-to-day
operations, including, without limitation:
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(i)
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advice
with respect to the investment of funds and cash
management;
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(ii)
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advice
with respect to the development and implementation of strategies for
improving the operating, marketing and financial performance of the
Company and its subsidiaries;
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(iii)
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advice
with regard to growth of new stores, including but not limited to
arranging acquisition and financing of such
growth;
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(iv)
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assistance
with support for various corporate functions of the Company as well as
administrative support in light of the Company’s reduced
staffing;
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(v)
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advice
and assistance with respect to analytical
services;
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(vi)
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advice
and assistance with respect to lobbying and other regulatory and
compliance needs of the Company through BCM’s political and professional
contacts and associations (including without limitation membership in the
CFSA and a deep and long-standing relationship with one of the largest and
most prestigious lobbying firm in the country) and BCM’s knowledge base in
the Company’s business areas;
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(vii)
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advice
and assistance with respect to installing and monitor controls and
procedures at the Company, which is a specialty of BCM and which the
Company is in need of in light of deficiencies in internal controls being
identified for the past two years;
and
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(viii)
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advice
and assistance with respect to establishing and implementing daily and
weekly reporting with checks and balances, to avoid management integrity
issues that have previously affected the Company and prevent such issues
from happening in the future.
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(b) the
Company will allow certain of BCM’s qualified personnel, if elected, to serve on
the board of directors of the Company and its subsidiaries, if any (or
their equivalents), without separate compensation from the Company.
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2.
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Payment of
Fees.
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During the Term, the Company
agrees to pay to BCM (or an affiliate of BCM designated by it) a management
and advisory fee equal to the greater of (a) 5% of EBITDA per annum or (b)
$300,000 per annum (increasing 5% per year) in exchange for the services
provided to the Company by BCM, as more fully described in Section 1 of this
Agreement, with such fee being payable by the Company monthly in advance by wire
transfer of immediately available funds.
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3.
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Term of
Agreement.
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The
Agreement shall continue in full force and effect, unless terminated by mutual
consent of the parties. The obligations of the Company under Section 4 below shall
survive any such termination.
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4.
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Expenses;
Indemnity.
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(a) Expenses. The
Company agrees to pay, on demand, all expenses incurred by BCM and/or any
of its affiliates in connection with this Agreement and the provision of
services hereunder, including but not limited to: (i) the fees and disbursements
of (A) Xxxxxx Xxxxx LLP,
special counsel to BCM, (B) Xxxxxxx Xxxxxxxxx LLP and Xxxxxxx & Co
LLP, accountants to BCM and potentially to the Company, and (C) any other
consultants or advisors retained by the parties in clauses (A) and
(B) above, which fees arise in connection with the preparation, negotiation
and execution of this Agreement and any other agreement executed in connection
herewith or the consummation of the transactions contemplated hereby and
thereby, including, without limitation, amendments, modifications,
restructurings and waivers, and exercises and preservations of rights and
remedies; and (ii) the out-of-pocket expenses incurred by BCM or any of its
affiliates in connection with the provision of services hereunder, if
any.
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(b) Indemnity and
Liability. In consideration of the execution and delivery of
this Agreement by BCM, the Company hereby agrees to indemnify, exonerate
and hold each of BCM, and its partners, members, shareholders, affiliates,
persons for which they are acting as nominees, trustees, directors, officers,
fiduciaries, employees and agents and each of the partners, members,
shareholders, affiliates, trustees, directors, officers, fiduciaries, employees
and agents of each of the foregoing (collectively, the “Indemnities”) free
and harmless from and against any and all actions, causes of action, suits,
losses, liabilities and damages, and expenses in connection therewith, including
without limitation attorneys’ fees and disbursements (collectively, the “Indemnified
Liabilities”), incurred by the Indemnities or any of them as
a result of, or arising out of, or relating to the execution, delivery,
performance, enforcement or existence of this Agreement except for any such
Indemnified Liabilities arising on account of any of the Indemnities’ willful
misconduct, and if and to the extent that the foregoing undertaking may be
unenforceable for any reason, the Company hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. None of the Indemnities
shall be liable to the Company or any of its affiliates for any act or omission
suffered or taken by such Indemnity that does not constitute willful
misconduct.
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5.
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Independent
Contractor.
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The
Company and BCM agree and acknowledge that BCM shall perform services hereunder
as an independent contractor, retaining control over and responsibility for its
own operations and personnel. Neither BCM nor its employees shall be considered
employees or agents of the Company as a result of this Agreement or the services
provided hereunder.
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6.
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Non-Assignability of
Agreement.
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Neither
party shall have the right to assign this Agreement without the consent of the
other party hereto. BCM acknowledges that its services under this Agreement are
unique. Accordingly, any purported assignment by BCM without the consent of the
Company shall be void. Notwithstanding the foregoing, BCM may assign all or part
of its rights and obligations hereunder to any affiliate of BCM which provides
services similar to those called for by this Agreement, in which event BCM shall
be released of all of its rights and obligations hereunder.
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7.
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Waiver.
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No
amendment or waiver of any term, provision or condition of this Agreement shall
be effective unless in writing and executed by each of BCM and the Company. No
waiver on any one occasion shall extend to or effect or be construed as a waiver
of any right or remedy on any future occasion. No course of dealing of any
person nor any delay or omission in exercising any right or remedy shall
constitute an amendment of this Agreement or a waiver of any right or remedy of
any party hereto.
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8.
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Maryland Law,
etc.
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(a) Choice of Law. This
Agreement shall be governed by and construed in accordance with the
domestic substantive laws of the State of Maryland without giving effect to any
choice or conflict of law provision or rule that would cause the application of
the domestic substantive laws of any other jurisdiction.
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(b) Consent to Jurisdiction,
etc. Each of the parties agrees that all actions, suits
or proceedings arising out of or based upon this Agreement or the subject
matter hereof shall be brought and maintained exclusively in the federal and
state courts of the State of Maryland, specifically in Xxxxxxxxxx County, MD.
Each of the parties hereto by execution hereof (i) hereby irrevocably
submits to the jurisdiction of the federal and state courts in Xxxxxxxxxx
County, in the State of Maryland for the purpose of any action, suit or
proceeding arising out of or based upon this Agreement or the subject matter
hereof and (ii) hereby waives, to the extent not prohibited by applicable law,
and agrees not to assert, by way of motion, as a defense or otherwise, in any
such action, suit or proceeding, any claim that it is not subject personally to
the jurisdiction of the above-named courts, that it is immune from
extraterritorial injunctive relief or other injunctive relief, that its property
is exempt or immune from attachment or execution, that any such action, suit or
proceeding may not be brought or maintained in one of the above-named courts,
that any such action, suit or proceeding brought or maintained in one of the
above-named courts should be dismissed on grounds of forum non conveniens,
should be transferred to any court other than one of the above-named courts,
should be stayed by virtue of the pendency of any other action, suit or
proceeding in any court other than one of the above-named courts, or that this
Agreement or the subject matter hereof may not be enforced in or by any of the
above-named courts. Each of the parties hereto hereby consents to service of
process in any such suit, action or proceeding in any manner permitted by the
laws of the State of Maryland, agrees that service of process by registered or
certified mail, return receipt requested, at the address specified in or
pursuant to Section
10 is reasonably calculated to give actual notice and waives and agrees
not to assert by way of motion, as a defense or otherwise, in any such action,
suit or proceedings any claim that service of process made in accordance with
Section 10 does
not constitute good and sufficient service of process. The provisions of this
Section 8(b) shall not
restrict the ability of any party to enforce in any court any judgment obtained
in a federal or state court of the State of Maryland.
(c) Waiver of Jury Trial.
To the extent not prohibited by applicable law which cannot be waived, each
of the parties hereto hereby waives, and covenants that he or it will not assert
(whether as plaintiff, defendant, or otherwise), any right to trail by jury in
any forum in respect of any issue, claim, demand, cause of action, action, suit
or proceeding arising out of or based upon this Agreement or the subject matter
hereof, in each case whether now existing or hereafter arising and whether in
contract or tort or otherwise. Each of the parties hereto acknowledges that it
has been informed by each other party that the provisions of this Section 8(c) constitute a
material inducement upon which such party is relying and will rely in entering
into this Agreement and the transaction contemplated hereby. Any of the parties
hereto may file an original counterpart or a copy of this Section 8(c) with any court as
written evidence of the consent of each of the parties hereto to the waiver of
his or its right to trial by jury.
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9.
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Entire
Agreement.
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This
Agreement contains the entire understanding of the parties with respect to the
subject matter hereof.
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10.
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Notice.
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All
notices, demands, and communications of any kind which any party may require or
desire to serve upon any other party under this Agreement shall be in writing
(including telecopier facsimile or similar writing) and shall be served upon
such other party and such other party’s copied persons as specified below
by personal delivery or telecopier transmission to its address or telecopier
number set forth below or to such other telecopy number and address as any party
shall have specified by notice to each other party or by mailing a copy thereof
by certified or registered mail, or by Federal Express or any other reputable
overnight courier service, postage prepaid, with return receipt requested,
addressed to such party and copies persons at such addresses. In the case of
service by personal delivery, it shall be deemed complete on the first business
day after the date of actual delivery to such address. In the case of service by
telecopier transmission, it shall be deemed complete on the first business day
after the date of receipt of answerback or other confirmation of receipt at such
telecopier number. In case of service by mail or by overnight courier, it shall
be deemed complete, whether or not received, on the third day after the date of
mailing as shown by the registered or certified mail receipt or courier service
receipt. Notwithstanding the foregoing, notice to any party or copied person of
change of address or telecopy number shall be deemed complete only upon actual
receipt by an officer or agent of such party or copied person.
If to the Company, to it
at:
00000 “X”
Xxxxxx, Xxxxx 000
Xxxxx, XX
00000
Attention: Chief Executive
Officer
If to BCM, to it
at:
Blackstreet
Capital Management, LLC 0000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx
Xxxxx, XX 00000
Telecopy:
(000) 000-0000
Attn:
Xxxxx X. Xxxxx
with a copy
to:
Xxxxxx Xxxxx
LLP
0000 X
Xxxxxx, XX
Xxxxxxxxxx,
XX 00000-0000 Attn: Xxxx Xxxxx
Telecopy:
(000) 000-0000
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11.
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Counterparts.
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This
Agreement may be executed in any number of counterparts and by each of the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which together shall constitute one and the
same agreement.
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12.
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Severability.
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If in any
judicial or arbitral proceedings a court or arbitrator shall refuse to enforce
any provision of this Agreement, then such unenforceable provision shall be
deemed eliminated from this Agreement for the purpose of such proceedings to the
extent necessary to permit the remaining provisions to be enforced. To the full
extent, however, that the provisions of any applicable law may be waived, they
are hereby waived to the end that this Agreement be deemed to be valid and
binding agreement enforceable in accordance with its terms, and in the event
that any provision hereof shall be found to be invalid or unenforceable, such
provision shall be construed by limiting it so as to be valid and enforceable to
the maximum extent consistent with and possible under applicable
law.
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IN
WITNESS WHEREOF, the parties have executed this Management and Advisory
Agreement as of the date first above written.
| WESTERN CAPITAL RESOURCES, INC. | |||
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By:
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/s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | ||
| Title: | Chief Executive Officer | ||
| BLACKSTREET CAPITAL MANAGEMENT, LLC | |||
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By:
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/s/ Xxxxx X. Xxxxx | |
| Name: | Xxxxx X. Xxxxx | ||
| Title: | Managerge | ||
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