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Exhibit 10.13
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement"), effective as of
this 20th day of August, 1996, is entered into by and between ADVANTA PARTNERS
LP, a Pennsylvania limited partnership ("Advanta Partners"), and RMH
TELESERVICES, INC., a Pennsylvania corporation ("the Company").
WHEREAS, Advanta Partners purchased a substantial portion of
the capital stock of the Company on May 24, 1996, in connection with a
recapitalization of the Company (the "Recapitalization");
WHEREAS, in connection with the Company's Recapitalization,
the Company and Advanta Partners entered into a Management Fee Agreement
pursuant to which the Company agreed to pay Advanta Partners a management fee in
exchange for Advanta Partners' agreement to provide certain consulting services
to the Company;
WHEREAS, the Company intends to complete an initial public
offering of shares of its common stock, no par value, on or about September 15,
1996 (the "IPO"), pursuant to a Registration Statement, File No. 333-07501,
first filed with the U.S. Securities and Exchange Commission on July 3, 1996;
WHEREAS, Advanta Partners and the Company wish to terminate
the Management Fee Agreement and enter an agreement to govern the providing of
consulting services by Advanta Partners to the Company upon completion of the
IPO.
NOW, THEREFORE, in consideration of the foregoing recitals and
the terms and conditions stated below, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, Advanta Partners and
the Company, intending to be legally bound, agree as follows:
SECTION 1: CONSULTING SERVICES TO BE PERFORMED.
In consideration of the fee set forth in Section 2, Advanta
Partners agrees to perform the following services for the Company, upon the
Company's request:
Provide assistance to the Company, including: (i) causing
representatives of Advanta Partners to perform duties as board members and
officers of the Company without separate compensation therefor; and (ii)
providing guidance and advice on such subjects as strategic direction,
budgeting, recruiting, financing, and establishing a management compensation
system.
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SECTION 2: FEES.
The Company shall pay an annual fee of $50,000 to Advanta
Partners for the services provided pursuant to this Agreement. Such fee shall be
paid in quarterly installments in arrears, with the first $12,500 installment
being due and payable on September 30, 1996; provided, however, that no such
installment or installments shall be paid if an Event of Default, as that term
is defined in that certain Credit Agreement between the Company and Chemical
Bank, individually and as Agent, dated as of May 24, 1996, shall have occurred
and be continuing; provided, further, that if such Event of Default is
subsequently cured, all such fees that were not paid by reason of the first
proviso herein may be paid on the next installment date or dates to the extent
such payment would not cause an Event of Default.
SECTION 3: EXTRAORDINARY SERVICES.
In the event Advanta Partners is required to perform
extraordinary services, including without limitation, investment banking
services, or undertake an extraordinary project in carrying out those services
contemplated in Section 1, Advanta Partners and the Company shall, in good
faith, negotiate an additional fee that shall be paid to Advanta Partners by the
Company, and in the event the parties are unable to agree upon the amount of
such extra fee, Advanta Partners shall not be obligated to perform such
extraordinary services.
SECTION 4: OUT-OF-POCKET EXPENSES.
All reasonable and necessary out-of-pocket expenses incurred
by Advanta Partners in carrying out its foregoing obligations under Section 1
shall be reimbursed by the Company promptly upon demand by Advanta Partners.
SECTION 5: ADVANTA PARTNERS' PERFORMANCE STANDARD.
Advanta Partners shall perform all of its obligations set
forth in Section 1 with all due care, in a commercially reasonable manner, and
in a manner consistent with its own administrative practices and standards or
the standards prevailing in the telemarketing industry, whichever standard is
more stringent.
SECTION 6: COMPLIANCE WITH THE LAW.
Each party represents, warrants and covenants to the other
party that all of its practices and acts in connection with this Agreement are,
and at all times will be, in compliance with all applicable federal, state and
local laws, statutes, rules and regulations.
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SECTION 7: LIABILITY.
(a) Indemnification. The Company agrees to indemnify
and hold Advanta Partners harmless from all claims and liabilities (including
attorney's fees) incurred or assessed against it in connection with the
performance of services, except such as may arise from Advanta Partner's own
negligent action, negligent failure to act, willful misconduct or willful
violation of applicable law.
(b) No Personal Liability. No liability shall attain
in favor of one party to this Agreement against any officer, director or
employee of the other party. The party attaining such liability agrees to look
solely to the assets of the other party for satisfaction.
SECTION 8: TERM.
This Agreement shall extend for a term commencing with the IPO
and ending at midnight on May 24, 2001.
SECTION 9: INDEPENDENT CONTRACTOR STATUS OF Advanta Partners.
The relationship of Advanta Partners to the Company is that of
independent contractor. Nothing herein shall be construed as constituting a
partnership, joint venture or agency between Advanta Partners and the Company.
SECTION 10: CONFIDENTIALITY.
It is understood between the parties hereto that during the
term of this Agreement, each of the parties may be dealing with confidential
information and processes that are the other party's property, used in the
course of its respective business. Each of the parties agrees that it will not
intentionally disclose any such confidential information to anyone, directly or
indirectly, without the prior consent of the other party.
SECTION 11: MISCELLANEOUS.
(a) No Assignment. This Agreement may not be assigned
by either party without the prior written consent of the other party, which,
because of the nature of the parties' respective obligations hereunder, may be
declined by such party for any reason or for no reason whatsoever.
(b) Notices. Any notice or other communication
required or permitted to be given under this Agreement must be in writing and
will be deemed effective when
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delivered in person or sent by facsimile, cable, telegram or telex, or by
overnight courier or registered or certified mail, postage prepaid, return
receipt requested, to the following addresses:
If to Advanta Partners:
Advanta Partners LP
Five Horsham Business Center
000 Xxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Senior Managing Director
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Company:
RMH Teleservices, Inc.
00 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(c) Amendment. This Agreement may be amended, and the
observance of any term hereof may be waived (either prospectively or
retroactively and either generally or in a particular instance) only by written
amendment signed by authorized representatives of the parties hereto.
(d) Choice of Law. This Agreement will be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania
without regard to doctrines of conflicts of laws. Any and all legal actions
brought by one party against the other shall be brought in the state or federal
courts of the Commonwealth of Pennsylvania.
(d) Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto and supersedes any and all prior
oral or written understandings and agreements between the parties regarding the
subject matter addressed in this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered, effective as of the date specified
at the beginning hereof.
ADVANTA PARTNERS LP RMH TELESERVICES, INC.
By AP Capital, Inc., general partner
By:/s/ Xxxxxxxx X. Xxxxxx By: /s/ XxxxXxx Xxxxx Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxx Name: XxxxXxx Xxxxx Xxxxxxx
Title: Vice President Title: President
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