Exhibit 10.12
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MANAGEMENT AGREEMENT
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THIS MANAGEMENT AGREEMENT made and entered into as of this 1st day of
January, 2002 by and between NATIONAL PREARRANGED SERVICES, INC. a Missouri
corporation ("NPS") and BDC PROPERTIES, INC., a Missouri corporation
("Management Company").
WHEREAS, NPS maintains a sales force to sell trust funded prearranged
funeral contracts in certain states and serves as approved insurance agencies
to sell insurance policies and/or annuities used to fund preneed funeral
contracts in other states;
WHEREAS, NPS desires to enter into sales management agreement with
Management Company in order to supervise its sales force in return for a fixed
percentage payment of net revenues;
WHEREAS, Management Company desires to enter into a sales management
agreement with NPS in return for a percentage of the ongoing net sales
revenues of NPS.
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual terms, covenants and agreements hereinafter set forth and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties do hereby agree as follows:
1. Sales Force Management Services. Management Company shall provide
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NPS with all necessary personnel to supervise NPS field sales force,
including but, not limited to, the services of ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇.
Such supervisory sales services will be provided by Management Company
employees who at all times will act under the control and direction of the
Management Company.
2. Management Fee. NPS shall pay to Management Company a monthly
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management fee equal to the percentage set forth below of the net sales
revenues of NPS (net of cancellations and surrenders) as payment for the
services provided hereunder ("Management Fee"):
Annual Net Management Fee
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Sales Revenues (computed
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on a calendar year basis)
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$0 - $52,000,000 8%
$52,000,001 - $104,000,000 3%
$104,000,000 + 1%
The Management Fee shall be paid on the first day of each month based on the
net revenues of NPS for the preceding month. NPS shall not be responsible
for any expenses of Management Company of any kind. Management Company agrees
to pay all of its expenses that have been incurred in the performance of its
duties under this Agreement.
3. Authority. Management Company shall, at all times, have the exclusive
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authority
to direct, control, hire, fire and set wages of Management Company personnel
who render supervisory services to NPS. Management Company is not authorized
to make any contract or incur any debt in NPS's name. Management Company's
authority shall not exceed that expressly granted herein and no forbearance or
neglect on NPS's part or Management Company's part shall be a waiver of any of
the terms of this Agreement or imply the existence of any authority not
expressly granted herein.
4. Independent Contractor. The sole intention of this Agreement is to
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secure for NPS the services of Management Company as an independent contractor,
and this Agreement shall not be construed as creating a partnership between
NPS and Management Company or creating a master servant relationship between
NPS and Management Company's employees. Management Company shall not be liable
to NPS except for gross negligence or willful misconduct in the performance of
Management Company's obligations hereunder. NPS agrees to indemnify and hold
Management Company harmless from and against any and all demands or legal
proceedings (including all costs, expense and reasonable attorneys' fees
incurred in defense of any such matter) which may be made or brought against
Management Company arising out of its supervision of the NPS sales force,
except for claims arising out of matters within the scope of Management
Company's authority hereunder and alleged to be due to Management Company's
gross negligence or willful misconduct.
5. Contract Payment. As additional consideration to NPS for entering
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into this Management Agreement, Management Company has agreed to pay NPS Ten
Million Dollars ($10,000,000.00) by the contemporaneous delivery of this
promissory note attached hereto as Exhibit A ("Note").
6. Indemnification. Management Company shall be responsible for and
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indemnify NPS against all wages payable to Management Company employees who
participate in rendering services to NPS and employer taxes thereto (including,
but not limited to, FICA and Missouri unemployment taxes) and all other
expenses incurred in the performance of its duties. NPS shall be entitled to
offset dollar-for-dollar amounts owed to it under this paragraph 6 against
the Management Fee.
7. Termination. This Agreement cannot be terminated by either party
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except as hereinafter set forth.
(A) Notwithstanding anything contained herein to the contrary this
Agreement can be cancelled by NPS at its sole written election upon the
happening of any of the following specified events:
(i) Default by Management Company under the Note;
(ii) Default by Management Company in the performance of its
obligations under this Agreement following written notice
and failure to correct same within thirty (30) days after
receipt of such notice; or
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(iii) Insolvency (however evidenced) of Management Company, the
making of a general assignment for the benefit of creditors
by Management Company; the filing of any petition or the
commencement of any proceeding by or against Management
Company for any relief under any bankruptcy or insolvency
laws, or any laws relating the relief of debtors, readjustments
of indebtedness, reorganization, compositions or extensions.
(B) Notwithstanding anything herein to the contrary this Agreement may
be terminated by Management Company at its sole written election upon the
happening of any of the following specified events:
(i) Default by NPS payment of the Management Fee; or
(ii) Insolvency (however evidenced) of NPS, the making of a general
assignment for the benefit of creditors by NPS; the filing
for any petition or the commencement of any proceeding by or
against NPS for any relief under any bankruptcy or insolvency
laws, or any laws relating to the relief of debtors,
readjustments or indebtedness, reorganizations, compensations
or extensions.
8. Assignment. This Agreement is not transferrable by either party
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without the prior written consent of the non-transferring party.
9. Entire Agreement. This Agreement constitutes the entire understanding
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between the parties and there are no further or other agreements or
understandings, written or oral, in effect between the parties unless expressly
referred to herein. This Agreement may not be modified, altered or amended
except by written agreement signed by the party against which enforcement is
sought.
10. Severability. In the event any provision of this Agreement shall be
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held to be invalid or enforceable, in full or in part, neither the validity
nor the enforceability of the remainder of this Agreement shall be affected
in any way.
11. Governing Law. This Agreement is entered into and shall be governed
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by the laws of the State of Missouri.
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IN WITNESS WHEREOF, this Agreement has been made and entered into
as of the date and year first above written.
NATIONAL PREARRANGED SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
"NPS"
BDC PROPERTIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
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Exhibit A
PROMISSORY NOTE
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$10,000,000.00 January 1, 2002
St. Louis County, Missouri
FOR VALUE RECEIVED, the undersigned, BDC PROPERTIES, INC., a Missouri
corporation ("Borrower"), hereby promises to pay to the order of National
Prearranged Services, Inc., a Missouri corporation ("Lender"), the principal
sum of Ten Million Dollars and 00/100 ($10,000,000.00) with interest from
the date hereof at eight and one-half percent (8.5%) per annum. Except as
otherwise set forth herein, the principal and interest under this promissory
note (this "Note") shall be payable in forty-eight (48) equal consecutive
monthly blended installments of Two Hundred Forty-Six Thousand Four Hundred
Eight-Three Dollars and 03/100 ($246,483.03) each, commencing on February 1,
2002 and thereafter on the first (1st) day of each succeeding month.
All payments hereunder shall be made in lawful money of the United
States. This Note may be prepaid in part or in full at any time without
charge or penalty. Each payment and prepayment received by Lender shall be
applied first against late charges, if any, next against unpaid accrued
interest and the balance, if any, against the principal balance hereof.
As used in this Note, the term "Default" means any one or more of the
following: (i) the failure of Borrower to make any payment of principal or
interest when due hereunder and such default is not cured within ten (10)
business days; (ii) the occurrence of a default or an event of default under
any deed of trust which may be given as collateral for this Note, said
default not being cured within any applicable cure period; (iii) the
execution of any assignment for the benefit of creditors by the Borrower or
the filing or commencement of any proceeding for relief under the Bankruptcy
Code, as amended from time to time, or insolvency laws or any law relating
to the relief of debtors, readjustment of any indebtedness, reorganization,
composition, extension of debt, or the appointment of a receiver or trustee
for, by or against the Borrower; and (iv) the dissolution or termination of
existence of the Borrower whether by voluntary or involuntary action.
If a Default shall occur, which is not cured within any applicable cure
period, Lender shall have the right, in addition to any other right or
remedy available hereunder and/or under applicable law and without prior
notice or demand, to: (i) accelerate this Note in which event all principal
and interest due hereunder shall be immediately due and payable, and (ii)
exercise any remedies available to Lender under any collateral documents
securing this Note. Failure to exercise any such remedy shall not constitute
a waiver of the right to exercise the same in the event of any subsequent
Default. If this Note shall be collected by legal proceedings or through a
probate or bankruptcy court, or shall be placed in the hands of an attorney
for collection after Default or maturity, Borrower agrees to pay all costs
of collection, including, without limitation, reasonable attorneys' fees and
expenses (incurred both before and after litigation is commended), court
costs and other litigation expenses.
After Default or maturity, this Note shall bear interest at a rate
equal to ten percent (10%) per annum (the "Default Rate"). The Default Rate
shall be applicable both before and after any judgment may be rendered by a
court of competent jurisdiction.
Borrower hereby severally waive demand, presentment, notice of
dishonor, notice of intent to demand or accelerate payment hereof, diligence
in collecting, and notice and protest of every kind and nature in reference
to this Note.
The obligations of the Borrower under this Note shall be binding upon
the Borrower and the respective successors and assigns thereof and shall
inure to the benefit of Lender and Lender's successors and assigns. If any
provision of this Note or any portion thereof, is adjudicated by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of this
Note shall be construed as if such invalid or unenforceable provision was
never included herein.
This Note shall be construed in accordance with the laws of the State
of Missouri and the laws of the United States applicable to transactions in
Missouri. If any litigation arises hereunder, the situs for jurisdiction
shall be in any state court located in St. Louis County, Missouri or the
federal court district and division in which the aforesaid County is
located. Borrower hereby consents to such jurisdiction and venue and waives
any right to commence any action against Lender in any other jurisdiction.
BORROWER AND LENDER HEREBY WAIVE AND RELINQUISH ALL RIGHTS TO TRIAL BY JURY
IN ANY LITIGATION ARISING UNDER THIS NOTE.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has executed this Note as of the date first above written.
BDC PROPERTIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President