Bilateral Credit Corp, LLC (hereinafter referred to as Company), is in the business
of collecting delinquent debts. The entity listed on the Placement Form under Client
Information (hereinafter referred to as Client), engages the Company to collect the
delinquent debt due to Client upon the terms and conditions set forth below. However,
if Company and Client have a written agreement relating to this subject matter, then
these terms and conditions shall not supersede that written agreement in any area
addressed by said written agreement.
Now, THEREFORE, it is mutually covenanted and agreed as follows:
1. Client shall refer to the Company for collection only such accounts as Client, in its sole discretion, shall elect to refer. Client shall, in respect to each account referred hereunder (hereinafter referred to as an 'Account' and collectively as “Accounts”), provide the Company with copies of all necessary documentation of the debt and any other such information concerning the debtor and the Account.
2. In performance of its services hereunder, it is intended that, in general, the Company will be free of domination or control by Client over manner and time of rendering such services provided. The Company shall comply with all Federal, State and Local consumer and collection laws, bankruptcy laws, and any and all other laws, regulations, rules and ordinances governing debt collections in general. The Company shall also comply with all internal policies of Client concerning activities which are provided to Company in writing.
3. All monies collected on Accounts shall be held by the Company in the Company's current non-interest bearing trust account in trust for Client, and no monies shall be commingled with the Company's general funds.
4. The Company's compensation shall be on a contingent fee basis as negotiated by the parties. Client agrees to notify the Company immediately of all direct payments or merchandise returns received, and Account credits granted, after the date of the initial referral of the Account by Client to the Company (the “Account Referral Date”), and the Company will bill for its fees. In the event that the Client decides to offset or forgive any portion of an Account debt in exchange for the release of any claim or counterclaim by the debtor, or for any other valuable consideration, such offset or forgiveness shall not be deemed to decrease the gross amount by which the Company’s compensation hereunder is calculated.
In order to compensate the Company for its efforts on Accounts that Client later opts to withdraw (regardless of the reason for such withdrawal), it is understood and agreed that if Client withdraws any Accounts from the Company after 3 days, but within thirty (30) days from the Account Referral Date for such Account, Client nevertheless shall pay commissions to the Company equal to ten per cent (10%) of the full principal amount to have been collected for such Accounts (but without any presumption of additional collections for penalties, interest, attorneys’ fees, etc.); and if such withdrawal occurs after such thirty day period, then the full commissions (at the above-mentioned rate) shall be paid on such amount to have been collected on such Account, even though no such collection in fact shall have been made, due to the withdrawal. Notwithstanding the previous sentence, however, any material absence or failure of support when requested of the Client by the Company, or any active or passive hindrance by the Client of the Company’s efforts with respect to any Account, shall entitle the Company to full collection fees without any reduction whatsoever, even during the initial thirty day period.
The Company shall have the absolute right to withdraw from any particular Account at any time and for any reason, in its sole discretion. If the Company withdraws because a counterclaim is asserted, or other previously undisclosed details emerge, which in the Company’s judgment are likely to make the effort in collecting same materially less cost-effective, the Company’s compensation for work done on the Account until that point shall be ten per cent (10%) of the amount to have been collected for such Account. If the Company withdraws in the absence of such a counterclaim being asserted or undisclosed details emerging, then the Company shall receive no further compensation with respect to that Account. The Company reserves the right to offset any sums it owes to the Client against any sums asserted in good faith by the Company as being owed to the Company by the Client.
5. All attorney's fees, penalties of any kind, costs and disbursements, and interest through the Account Referral Date, and any other sums in connection with an Account, which is awarded to Client, or which is collected or recovered by or on behalf of the Client, whether pursuant to any agreement between Client and the debtor, or pursuant to any court order or appropriate statute, or otherwise, shall be deemed part of the gross collection for billing purposes as part of the gross payment received (see paragraph 6 herein).However, all interest collected from the debtor on the Account from and after the Account Referral Date shall belong to the Company, to help defray its costs of collection, including without limitation credit reports, litigation reports, UCC searches, investigatory reports and other costs, and to mitigate its risk in connection therewith.
6. The Client authorizes the Company to endorse negotiable instruments received in payment of Accounts assigned to the Company for collection and/or deduct commissions on Accounts paid directly to the Client from any monies due Client. The Company agrees to remit payments in accordance with its remittance policy provided to the Client, as the same may be unilaterally amended by the Company at any time and from time to time. Remittances from the Company shall be accompanied by a report in such form and containing such information regarding the Accounts as Company normally provides to clients. Client shall reimburse the Company for all authorized and verifiable out-of-pocket costs and disbursements. Billed fees will be paid by Client within thirty (30) days after receipt of the invoice. The Company will be entitled to fees on any money or returns received in any manner on or after the Account Referral Date.
7. Client shall have the right, upon reasonable notice, during the Company's normal business hours to reasonably inspect and audit the Company's books and records relating to all of the Client's Accounts. Upon request, the Company shall provide Client with copies of forms utilized and procedures employed in connection with collection of Accounts.
8. The Client shall indemnify the Company and hold the Company harmless from any and all loss, cost, damage, claims, liability or injury (including without limitation the prompt payment of any reasonable retainer and the prompt payment of all invoices for reasonable fees and expenses of separate counsel to be engaged by the Company in connection therewith), incurred in connection with any claim, demand or lawsuit against the Company, or any notice requiring it to respond to a subpoena, document or information request or other legal requirement, in each such case arising from or related to the Company's services performed for or on behalf of Client hereunder (either directly or through attorneys or agents hired by the Company on the Client’s behalf), except to the extent that the Company’s gross negligence or intentional violation of an applicable law or government agency regulation was the proximate cause of same. Upon receipt of service for any such claim, demand, lawsuit or notice, the Company shall notify the Client in writing of such claim, demand or lawsuit. Any failure to promptly give such notice shall diminish Client’s liability to the Company hereunder only to the extent that such delay has actually harmed the Client’s ability to defend the Company.
9. The Company shall have no authority to settle any Account referred to it for collection for less than the full amount due and owing (principal and interest or judgment amount) without the authorization of the Client.
10. The Company shall immediately notify Client of any counterclaim denominated as such, asserted either by answer, motion, or other legal means, or any clear written threat of same, and shall forward to Client all relevant pleadings and other court filings containing such counterclaims.
11. The Company is hereby authorized to refer any Accounts to an attorney at the Company’s sole cost and expense (except as otherwise stated below in the case of a Formal Legal Proceeding, and except in the event of a required indemnification pursuant to Section 8 hereof), with the adjustments to compensation as negotiated by the parties. If no rate for referral of an Account to an attorney has been negotiated, then the rate for referral to an attorney shall be the higher of 30% or the rate for Accounts described in paragraph 4 plus 5%. The Company shall not commence any lawsuit, mediation, arbitration, counterclaim or similar formal procedure (a “Formal Legal Proceeding”) without first receiving from Client written authorization to do so. The Company shall notify Client of the names of those attorneys, if known, who are retained by the Company to act on behalf of Client for the aforementioned purpose within ten (10) days after such engagement, and within ten (10) days after any change made by the Company in such selection. Client may reject the hiring of any particular counsel, for reasonable cause, by written notice given to the Company within such ten (10) day period, setting forth in reasonable detail the reasons for such rejection; in which case the Company shall locate alternate counsel. If Client gives no such notice within such ten day period, Client shall have no further right or discretion thereafter to disapprove of such counsel.
The fee charged by an attorney for a simple Formal Legal Proceeding shall be borne by the Company. All other fees and expenses incurred by such attorneys in connection with the filing of, and further services with regard to, a Formal Legal Proceeding (including the attorney’s fees for defense of a counterclaim) shall be borne by the Client. Prior to the preparation or filing of a Formal Legal Proceeding, the Company may shall send to Client, if provided by the attorney, an estimate of the costs of a Formal Legal Proceeding to be paid by Client, along with any other financial and logistical requirements and other terms and conditions which the attorney requires at that time (the “Suit Requirements”), as a precondition to his filing of, and assuming the responsibility of representing the Client in, the Formal Legal Proceeding. Client acknowledges that not all of the needs of a Formal Legal Proceeding can be anticipated in advance with any degree of precision. Therefore, if Client approves the filing of such Formal Legal Proceeding, then Client will be deemed to have agreed to all of the Suit Requirements, as well as all other financial and logistical requirements of the Formal Legal Proceeding, whether or not contained in the Suit Requirements. Alternatively, payment of the court costs or arbitration fees outlined in the Suit Requirements shall imply Client’s agreement with all of the terms of the Suit Requirements. Even in the absence of any Suit Requirements, however, the Company may infer from the payment of any court costs or arbitration fees by Client that Client has consented to the institution of the Formal Legal Proceeding, and to be responsible for all further costs and expenses thereof, including legal fees and expenses, all of which shall be payable by Client promptly upon invoicing by the Company. The Client will compensate the Company based on any funds recovered after commencement of a Formal Legal Proceeding at the rates negotiated by the parties, and if no such rate has been negotiated, at the greater of 35% or the rate described in paragraph 4 plus 10%.
12. No modification or amendment of any provision of this Agreement shall be made except by written agreement signed by the parties hereto. Any waiver of a provision hereof shall be in writing and signed by an officer of the waiving party. No waiver of a breach of any provision of this Agreement shall constitute a waiver of any subsequent breach.
13. This Agreement shall become effective immediately and shall remain in effect until terminated by either party as provided herein. This Agreement may be terminated for reasonable cause, by either party, on giving 30 days written notice to the other at its respective addresses above or to any other address designated in writing, or with immediate written notice in the event of a material breach hereof. All rights and obligations arising or accruing under this Agreement prior to termination shall survive such termination. Any termination by either party shall be regarded as a withdrawal by Client of all its pending Accounts, and shall be dealt with as provided in Section 4 above; except that any Account theretofore assigned by the Company to an attorney, with the approval of the Client as provided herein, may not be withdrawn by the Client without the written approval of the Company.
14. This Agreement shall be governed and constructed under the laws of the State of Rhode Island and Providence Plantations, without regard to its conflict of laws provisions, and shall not be submitted to a Federal or state court, arbitration forum, or other tribunal, outside of the State of Rhode Island.
15. The Company may (including a referral to counsel hereunder) assign any of its rights, duties and obligations under this Agreement without the prior written consent of Client.
16. This Agreement contains the entire understanding of the parties with respect to the subject matter and supersedes and integrates all previous verbal and written Agreements with respect thereto. Without limiting the generality of the foregoing sentence, this Agreement is intended to replace and repeal any prior agreement between the Client and the Company regarding the collection of debts due and owing to Client that are delinquent. This Agreement shall apply to all matters referred to the Company before or after the date of execution hereof.
17. Any notice, request, demand or other communication permitted or required hereunder shall be in writing to the address listed below, or at any other address given by any Party in writing to the other Party pursuant to this Section, and shall be effective upon delivery if personally delivered, or sent via nationally recognized overnight courier or via certified mail, return receipt requested, postage prepaid. Notices given by electronic mail, facsimile or other electronic means shall be effective upon receipt, but only if such receipt is acknowledged by the recipient in like manner or in any other manner permitted hereunder.
The Client information provided on the Placement Form shall be used for notice to the Client.
If to the Company:
Bilateral Credit Corp, LLC
1980 Pawtucket Ave., Suite 2A
East Providence, RI 02914
Attn: Chief Financial Officer