MASTER SERVICES AGREEMENT
THIS SERVICES AGREEMENT is made and entered into as of the 1st day of
October, 1992, by and between ACCOUNT PORTFOLIOS, L.P., a Georgia limited
partnership ("Client") and HBR CAPITAL, LTD., a Georgia corporation ("HBR").
W I T N E S S E T H :
WHEREAS, HBR is a corporation which provides management and investment
services; and
WHEREAS, Client desires that HBR provide certain management and
investment services on the terms and conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the covenants and
conditions hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
mutually agree as follows:
ARTICLE 1
TERM
This Agreement shall commence as of the date hereof and shall continue
for a period of one (1) year (hereinafter, sometimes referred to as the "Initial
Term"). Thereafter, this Agreement shall renew for successive one (1) year
periods unless at least sixty (60) days prior to the end of the Initial Term or
any renewal thereof (as the case may be) notice of termination shall be given by
either party to the other. As used herein, the "Term" of this Agreement means
the Initial Term and all renewals thereof.
ARTICLE 2
SERVICES
HBR shall render, or shall cause to be rendered, to Client all of the
management and investment services described on Exhibit A attached hereto and
made a part hereof
(as said Exhibit A may, from time to time, be amended in a writing executed by
both HBR and Client).
ARTICLE 3
COMPENSATION
3.1 Fees. Client shall pay to HBR a fee equal to Seventy Five Thousand
Dollars ($75,000.00) per month for the first six months and Fifty Thousand
Dollars ($50,000.00) per month thereafter as compensation for the management and
investment services provided by HBR pursuant to this Agreement.
3.2 Invoices. HBR shall invoice the Client monthly for all amounts
payable hereunder, and such invoice shall be payable in thirty (30) days. The
balance of any payment to be made by Client to HBR pursuant to this Agreement
not paid when due, shall bear interest at an annual rate equal to the Prime
Rate, as adjusted, and shall be payable upon demand. As used herein, "Prime
Rate" means the prime rate per annum as announced from time to time in the Wall
Street Journal under "Money Rates," in effect on the first day of a calendar
quarter, and adjusted to such rate in effect on the first day of each subsequent
calendar quarter.
ARTICLE 4
CLIENT'S REPRESENTATIONS AND WARRANTIES
As an inducement to HBR to enter into this Agreement, Client hereby
makes the following representations and warranties to HBR (which representations
and warranties shall survive the execution of this Agreement and shall continue
at all times during the Term hereof):
4.1 Organization. Client is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Georgia,
and has all requisite power and authority to conduct its business and own,
operate and lease its properties as and in the places where such business is now
conducted and such properties are now owned, leased or operated, and is
qualified as a foreign limited partnership in all jurisdictions in which the
character of its activities makes qualification necessary.
4.2 Binding Obligation and Authority. This Agreement has been duly
executed and constitutes the valid obligation of Client enforceable in
accordance with
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its terms. The execution and delivery of this Agreement, and the consummation of
the transactions provided for in this Agreement, by Client will not conflict
with, or result in a breach of, any relevant law or regulations or violate any
order, writ, injunction or decree of any court, administrative agency or
governmental body. The execution, delivery and performance of this Agreement and
the performance of its duties hereunder will not conflict with the Articles of
Limited Partnership or Partnership Agreement of Client.
4.3 Liability of Client. Notwithstanding any other provision herein,
Client shall be responsible for its own liabilities, debts and contracts, and
HBR does not assume and shall not be responsible for any such debt, liability,
contract or other obligation of Client. Client does hereby agree to indemnify
HBR and hold it harmless from any claim, liability, expense or cost of defense
of any kind or nature whatsoever (other than those solely resulting from HBR's
gross negligence, willful misconduct or failure to exercise good faith) arising
from or out of this Agreement, or the operations of the Client.
ARTICLE 5
HBR'S REPRESENTATIONS AND WARRANTIES
HBR represents and warrants to Client (which representations and
warranties shall survive the execution of this Agreement shall continue at all
times during the Term hereof) as follows:
5.1 Organization. HBR is a corporation duly organized, validly
existing and in good standing under the laws of the State of Georgia.
5.2 Valid and Binding Agreement. This Agreement has been duly executed
and delivered and constitutes the valid and binding obligation of HBR,
enforceable in accordance with its terms subject, however, to creditors' rights
in general and the exercise of judicial discretion.
5.3 Binding Obligations. The execution and delivery of this Agreement,
and the consummation of the transactions provided for in this Agreement, by HBR
will not conflict with, or result in a breach of, any relevant law or
regulations or violate any order, writ, injunction or decree of any court,
administrative agency or governmental body to which HBR is subject.
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5.4 Authority. The execution, delivery and performance of this
Agreement and the performance of its duties hereunder shall not conflict with
the Articles of Incorporation or By-laws of HBR.
ARTICLE 6
INDEMNIFICATION
6.1 Indemnification by Client. Client shall indemnify, defend and hold
harmless HBR and its officers, directors, shareholders, employees and agents
against any and all liabilities, claims, damages, actions, causes of action,
losses, costs and expenses (collectively, the "Claims") it, they, or any of them
may incur which arise out of or due to a breach of any representation, warranty
or undertaking of Client contained herein or any other action or failure to act
of Client. Any such Claims of HBR, or sums which HBR shall be required to pay in
this respect, shall be immediately paid by Client to HBR. The obligations of
Client set forth in this Section 6.1 shall include the payment of any and all
interest, penalties and reasonable attorneys' fees incurred by HBR in connection
with the defense or satisfaction of any Claims. HBR shall promptly advise Client
of the assertion of any claim which might give rise to a Claim against Client;
HBR shall have the right to defend such Claims with counsel of its choice at
Client's sole cost; provided, that HBR shall consult with Client during the
course of such defense; provided further, however, that in the event HBR shall
not exercise its right to defend such Claims, such defense shall be undertaken
by Client at its sole expense. This indemnification shall not apply to any Claim
arising out of or due to the gross negligence or willful misconduct of HBR.
6.2 Indemnification by HBR. HBR shall indemnify, defend and hold
harmless Client and its officers, directors, shareholders, employees and agents
against any and all liabilities, claims, damages, actions, causes of action,
losses, costs and expenses (collectively, the "Claims") it, they, or any of them
may incur which arise out of or due to a breach of any representation, warranty
or undertaking of HBR contained herein or any other action or failure to act of
HBR. Any such Claims of Client, or sums which Client shall be required to pay in
this respect, shall be immediately paid by HBR to Client. The obligations of HBR
set forth in this Section 6.2 shall include the payment of any and all interest,
penalties and reasonable attorneys' fees incurred by Client in connection with
the defense or satisfaction of any Claims. Client shall promptly advise HBR of
the assertion of any claim which might give rise to a Claim against HBR; Client
shall have the right to defend such Claims with counsel of its choice at HBR's
sole cost; provided, that Client shall consult with HBR during the course of
such defense; provided further, however, that in the event Client shall not
exercise its right to defend such Claims, such defense shall be undertaken by
HBR at
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its sole expense. This indemnification shall not apply to any Claim arising out
of or due to the gross negligence or willful misconduct of Client.
ARTICLE 7
RELATIONSHIP OF PARTIES
Any implication in this Agreement to the contrary notwithstanding, in
performing its services hereunder, HBR shall act solely as an independent
contractor. Nothing in this Agreement shall be construed to establish a
partnership, joint venture or agency between HBR and Client. No provision
contained herein shall be construed as authorizing or empowering either party to
assume or create any obligation or responsibility whatsoever, express or
implied, on behalf, or in the name, of the other party in any manner, or to make
any representation, warranty or commitment on behalf of the other party, except
as shall be provided for herein. In no event shall either party be liable for
(i) any loss incurred by the other party in the course of its operations, or
(ii) any debts, obligations or liabilities of the other party, whether due or to
become due. All activities of HBR hereunder shall be conducted in its own name
(except where Client's consent or participation is reasonably required, in which
event Client shall, as the case may be, consent or participate).
ARTICLE 8
DEFAULT; REMEDIES
In the event either party shall breach any term or condition of this
Agreement and shall fail to cure such breach within fifteen (15) days from the
date of written notice from the non-breaching party specifying such breach, the
non-breaching party may terminate this Agreement and the breaching party shall,
in the event of any such termination, pay to non-breaching party any fees or
other payments due to the non-breaching party as of the date of termination, and
the non-breaching party may pursue any remedy available to it at law or equity.
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ARTICLE 9
TERMINATION
Subject to Article 8 hereof, this Agreement may be terminated prior to
the expiration of the Term set forth in Article 1 hereof only by mutual written
agreement of the parties.
ARTICLE 10
BOOKS AND RECORDS
HBR shall keep, in a form reasonably acceptable to Client, books of
account and records of its activities, collections and expenditures pursuant to
this Agreement. Said books of account and records of HBR shall be available for
inspection by any officer of Client upon reasonable request and with reasonable
advance notice.
ARTICLE 11
NONDISCLOSURE
HBR, in the course of its activities pursuant to this Agreement, will
have access to, and will have disclosed to it, trade secrets, proprietary
information and other confidential information concerning, inter alia, customer
lists and business affairs of Client. These constitute valuable business assets
of Client, any of which, if used, applied or disclosed, even in part, will cause
substantial and irreparable damage to Client's business and asset value.
Accordingly, HBR shall not, during the term of this Agreement, use, apply or
disclose any of these trade secrets or proprietary information without Client's
prior written consent. Moreover, HBR shall not, during the term of this
Agreement and for a period of one (1) year thereafter, use, apply or disclose
any other confidential information without Client's prior written consent. If
HBR shall not comply with these restrictions, Client shall, in addition to any
other rights and remedies it may have, be entitled to enjoin and restrain HBR
from violating or continuing to violate them. Also, in the event this Agreement
shall be terminated, HBR agrees that, if requested by Client, HBR shall
acknowledge that it has received the disclosures and is under the obligations
referred to in this Article 11.
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ARTICLE 12
MISCELLANEOUS PROVISIONS
12.1 Interpretation. This Agreement shall be subject to, and
interpreted in accordance with, the laws of the State of Georgia.
12.2 Severability. If any term, covenant, condition or provision of
this Agreement, or the application thereof to any person or circumstance, shall,
to any extent, be invalid or unenforceable, the remainder of this Agreement, or
the application of such term or provision to persons or circumstances other than
those as to which it is invalid or unenforceable, shall not be affected thereby,
and each term, covenant, condition and provision of this Agreement shall be
valid and be enforced to the fullest extent permitted by law.
12.3 Headings. Any title or heading is inserted only for convenience,
and is in no way to be construed as a part of this Agreement or as a limitation
on the scope of the particular provision to which they refer.
12.4 Entire Agreement. This Agreement shall constitute the entire
agreement between the parties, and no variance or modification thereof shall be
valid and enforceable unless in writing and signed by the parties hereto.
12.5 Notices. All notices to be given pursuant to this Agreement shall
be in writing and shall be deemed to have been fully given when deposited in the
United States Mail, registered or certified, return receipt requested, postage
prepaid, and addressed as follows:
If to HBR at:
HBR Capital, Ltd.
Xxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
If to Client at:
Account Portfolios, L.P.
Xxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
or any other address as may be given at any time, and from time to time, by HBR,
to Client, or to HBR by Client, in accordance with this Section 12.5.
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12.6 Successors and Assigns. This Agreement shall be binding upon, and
shall inure to the benefit of, the successors and assigns of the respective
parties (unless cancelled pursuant to the terms of this Agreement).
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IN WITNESS WHEREOF, the parties have caused their duly authorized
officers to execute and deliver this Agreement all as of the date first above
written.
HBR CAPITAL, LTD.
By: /s/ Xxxxx X. Xxxxx, III
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Title: C.E.O.
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ACCOUNT PORTFOLIOS, L.P.
BY: AP Management, Inc.,
General Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Title: President
--------------------------
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EXHIBIT A
HBR shall perform the following services to Client:
1) It will advise Client on the purchase of new portfolios;
2) It will manage and provide oversight for Client operations;
3) It will perform the accounting and financial functions for Client;
4) It will examine new opportunities for Client; and
5) It will ensure the Client performs regulatory compliance.
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