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EXHIBIT 10.7
ADMINISTRATION SERVICES AGREEMENT
This ADMINISTRATION SERVICES AGREEMENT (the "Agreement") is between
XxXxxxxxXxxxxxx.xxx, a Delaware corporation with its principal place of business
located at 0000 Xxxxxx Xxxxxxxxx, Xxx Xxxxxx, Xxxxxxxxxx 00000 ("RPC"), and
Phoenix Precision Graphics, Inc., a Nevada corporation with its principal place
of business located at 0000 Xxxxxx Xxxxxxxxx, Xxx Xxxxxx, Xxxxxxxxxx 00000
("Customer"). This Agreement is effective as of August 1, 1999 (the "Effective
Date").
WHEREAS, this Agreement sets forth the terms and conditions pursuant to
which RPC shall provide certain accounting, tax, legal, administrative,
financial and data processing services, and other consulting services (defined
herein as the "Administration Services") to Customer as described herein;
NOW, THEREFORE, the parties agree as follows:
1. ADMINISTRATION SERVICES.
1.1 Services. RPC shall perform the Administration Services described in
Exhibit A for Customer during the term of this Agreement. The parties
acknowledge that in performing such Services, RPC may rely on certifications and
instructions of Customer in connection with the performance of any Services, and
upon any signature which RPC believes in good faith to be genuine.
1.2 Phoenix Leasing Incorporated. RPC shall have the right to use of the
"Phoenix Leasing" name, trademarks, and logos only so long as this Agreement is
in effect. Upon termination of this Agreement, RPC and all its subsidiaries and
affiliates shall cease using the "Phoenix Leasing" name, trademarks and logos
for any further business dealings apart from the fulfillment of any remaining
obligation hereunder. Customer shall have the right to control the scope of the
use of the "Phoenix Leasing" name, trademark and logo and has the right of
review and approval of documentation bearing such name prior to its use.
2. ADDITIONAL CONSULTING SERVICES. Customer may request that RPC perform
additional Services as described in Exhibit B hereto, at any time during the
term of this Agreement by providing RPC with a written work request ("Work
Request"). Each Work Request shall describe the requested services to be
completed and, if applicable, the requested date of completion. All Work
Requests are subject to written acceptance by RPC. Unless otherwise agreed to by
the parties, services performed under Work Requests shall be charged at RPC's
standard consulting service fee rate as set forth in Exhibit C, as modified from
time to time pursuant to the Agreement.
3. CUSTOMER OBLIGATIONS. As a condition precedent to RPC's obligations
hereunder, Customer shall (a) provide RPC with full, good faith cooperation and
such information as may be required by RPC in order to render the services as
required hereunder, (b) provide such assistance, including support services,
information and other assistance, as may be reasonably requested by RPC from
time to time and (c) timely and fully carry out all other Customer
responsibilities set forth herein.
4. FEES AND EXPENSES.
4.1. Fees and Expenses.
4.1.1 Monthly Program Fee. For all Services provided by RPC to
Customer under this Agreement, Customer shall pay RPC a monthly fee as set forth
in Exhibit C. Any partial months
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shall be prorated as applicable. For any of the optional services described in
Section 4, Customer shall pay RPC at RPC's standard consulting fee rate set
forth in Exhibit B for all time incurred by RPC in the performance of such
Services.
4.1.2 Other Expenses. All services performed by RPC for Customer
pursuant to this Agreement, including any optional services, shall be
collectively known as the "Services." In addition, Customer shall be responsible
for all actual, reasonable out-of-pocket expenses incurred by RPC in performing
the Services, including but not limited to any special printing requests,
Customer letterhead, envelopes and labels, insertions to mailings and postage
costs, overnight delivery charges, and out-of-pocket travel and related expenses
associated with the Services. If RPC is required to pay any federal, state or
local taxes based on the Services or other deliverables (other than taxes based
on RPC's net income), such taxes shall be billed to and paid by Customer, in
addition to the fees and expenses stated above.
4.2. Invoices and Payment. RPC shall invoice Customer monthly as of the
first of each month for Services performed by RPC during the preceding month.
Each invoice is due and payable thirty (30) days after the invoice date. If RPC
has not received payment within five (5) days after the due date, interest shall
accrue on past due amounts at the rate of 10% per annum commencing with the due
date and continuing until fully paid.
5. WARRANTIES.
5.1. Warranty for Services. RPC warrants during the term of the Agreement
that the Services shall be performed in a timely manner and of a quality
conforming to generally accepted industry standards and practices. At any time
following completion of any Services, RPC shall, at RPC's expense, upon receipt
of written notice from Customer describing a breach of the foregoing warranty in
such reasonable detail as is requested by RPC, reperform the Services described
in such written notice so as to conform to generally accepted industry standards
and practices.
5.2. Compliance with Rules and Regulations. RPC has taken reasonable care
to review the applicable laws and regulations which govern the Services provided
in connection with this Agreement. Such laws and regulations are subject to
different interpretations, which may change due to court decisions,
administrative rulings and modifications and additions to existing regulations.
5.3. Disclaimers. CUSTOMER AGREES THAT RPC MAKES NO WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OR ANY OTHER MATTER, OTHER THAN THE EXPRESS WARRANTIES
CONTAINED IN THIS AGREEMENT. NO REPRESENTATION OR STATEMENT NOT EXPRESSLY
CONTAINED IN THIS AGREEMENT SHALL BE BINDING UPON RPC AS A WARRANTY OR
OTHERWISE.
6. TERM AND TERMINATION. The term of this Agreement shall commence on the
Effective Date and continue for one (1) year thereafter, unless earlier
terminated in accordance with its terms. Thereafter, the Agreement shall renew
automatically for successive one (1) year terms unless written notice of
termination is received by either party at least ninety (90) days prior to the
end of such initial term or any renewal term. If either party shall materially
fail to fulfill any obligation under this Agreement, and such failure has not
been cured within sixty (60) days after receipt of the other party's written
notice thereof, the party giving notice may, at any time thereafter, terminate
this Agreement. The obligations of RPC and Customer in Sections 5, 6, 7, 8, 9,
10 and 11 shall survive termination or
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expiration of this Agreement. Upon termination, each party shall return and make
no further use of equipment, property, materials and other items (and all copies
thereof) belonging to the other party. RPC may destroy or otherwise dispose of
any of Customer's data in its possession unless Customer furnishes RPC with
reasonable written instruction for return to Customer or other disposition not
earlier than sixty (60) days prior to the date of expiration or cancellation and
not later than ten (10) days thereafter. RPC shall have no obligation to convert
Customer's data to be returned to Customer into any format other than a RPC
standard format, or such other format as the parties may mutually agree in
writing. Any expense incurred by RPC in returning or disposing of Customer's
data shall be borne by Customer.
7. CUSTOMER INDEMNIFICATION. RPC shall have no duties or obligations other than
those specified in this Agreement. It is expressly understood that Customer and
RPC are independent contractors of one another, and that neither has the
authority to bind the other to any third person. RPC is acting solely as a third
party service provider under this Agreement and shall not participate in
management decisions regarding Customer's business. RPC shall not be responsible
for loss, destruction, alteration or disclosure to any person of Customer's data
submitted by Customer or resultant output thereof (or loss, destruction,
alteration or disclosure to any person of any physical media on which such
Customer data or resultant output are stored), unless caused by gross negligence
or willful misconduct on the part of RPC. Furthermore, RPC shall have no
liability for any errors or omissions in any information or instructions
provided to RPC by Customer or any Customer investors, broker-dealers, lessees,
borrowers, trustees, or any other third party in connection with the performance
of the Services for processing or in connection with the Services provided
hereunder. Customer shall indemnify RPC, and the directors, officers, employees,
affiliates and agents of each of them, and shall hold them and hold it harmless
against any claims, losses or damages asserted by any person, including, but not
limited to, any Customer investor, including court costs and reasonable
attorney's fees, arising out of or in connection with the performance of
Services hereunder, except for any such claims, losses or damages arising out of
the indemnified party's willful misconduct.
8. LIMITATION OF LIABILITY. EXCEPT FOR THE INDEMNITY PROVIDED BY CUSTOMER TO RPC
IN SECTION 7 HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY
FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST
PROFITS OR REVENUE, LOST SAVINGS,[LOSS OF USE OF THE XXXXXXX X.X.X.X. SYSTEM OR
ANY COMPONENT OF SUBPART THEREOF,] BUSINESS INTERRUPTION, OR COST OF SUBSTITUTED
FACILITIES, EQUIPMENT OR SERVICES, OR OTHER ECONOMIC LOSS ARISING OUT OF BREACH
BY THE OTHER PARTY OF ANY OF ITS REPRESENTATIONS, WARRANTIES OR AGREEMENTS
CONTAINED IN THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON
THEORIES OF CONTRACT, NEGLIGENCE OR TORT (INCLUDING STRICT LIABILITY).
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, CUSTOMER AGREES THAT IN
NO EVENT SHALL RPC'S AGGREGATE LIABILITY TO CUSTOMER, CUSTOMER'S INVESTORS,
BROKER-DEALERS, LESSEES, BORROWERS, TRUSTEES, OR ANY OTHER THIRD PARTY IN
CONNECTION WITH THE PERFORMANCE OF ANY OR ALL OF THE SERVICES ARISING IN
CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF CLAIM OR ACTION,
EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF MONTHLY FEES PAID BY CUSTOMER FOR
THE FIRST THREE MONTHS OF THIS AGREEMENT AS SET FORTH IN EXHIBIT "C."
9. FORCE MAJEURE. Neither party shall be liable hereunder by reason of any
failure or delay in the performance of its obligations hereunder (except for the
payment of money) on account of strikes,
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shortages, riots, insurrection, fires, flood, storm, explosions, acts of God,
war, governmental action, labor conditions, earthquakes, material shortages, or
any other cause beyond the reasonable control of such party.
10. OTHER PROJECTS. This Agreement shall not prevent RPC from entering into
similar agreements with third parties, or from independently developing, using,
selling or licensing materials, products or services which are similar to those
provided hereunder.
11. MISCELLANEOUS. This Agreement shall be governed by the laws of the State of
California without regard to its choice of law provisions. It is agreed that
exclusive jurisdiction and venue for any legal action between the parties
arising out of or relating to the performance of this Agreement and the
Confidentiality Agreement shall be in the state and federal courts, as
applicable, sitting in the Northern District of California; provided, that RPC
shall be entitled to seek injunctive or other interim or equitable relief in
other jurisdictions as may be required to protect its rights. All notices
required to be sent hereunder shall be in writing and shall be deemed to have
been given when mailed to the address shown at the beginning of this Agreement.
If any provision of this Agreement is held to be invalid or unenforceable, the
invalid or unenforceable provision shall be deemed modified to the limited
extent required to permit its enforcement in a manner most closely approximating
the intention of the parties as expressed herein; the remaining provisions shall
remain in full force and effect. The waiver by either party of any default or
breach of this Agreement shall not constitute a waiver of any other or
subsequent default or breach. This Agreement, and the Exhibits hereto, and the
Confidentiality Agreement, constitute the entire agreement between the parties
and supersede all previous agreements or representations, written or oral, with
respect to the Services. This Agreement may not be modified or amended except in
writing signed by a duly authorized representative of each party. In the event
of any dispute arising out of or with respect to this Agreement, the prevailing
party shall be entitled to recover its reasonable attorney's fees, whether or
not the dispute is prosecuted to judgment.
12. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be considered an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by
their duly authorized representatives.
XXXXXXXXXXXXXXX.XXX. PHOENIX PRECISION GRAPHICS, INC.
By: By:
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Name: Name:
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Title: Title:
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EXHIBIT A
DESCRIPTION OF SERVICES
Services Summary
RPC shall provide the following services to Customer:
All accounting operations
Maintenance of the Computer accounting software
General ledger
Cash management services
Financial reporting
XXXXX filing services
Corporate State and Federal Income, Property, Sales and Use Tax compliance
and payment processing
Partnership State and Federal Income, Property, Sales and Use Tax compliance
and payment processing
Partnership investor K-1 tax processing
Investor relations
Investor accounting to include all profit and loss allocation
Investor performance calls
Investor transfer services
Employee payroll processing
All Human Resources
Employee benefits management
Employee recruiting support
Facilities management
Phone system management
Mailing services
Corporate Communications coordination services
Receptionists
Corporate legal services
Computer data center management
Maintenance of the computer lease system
Information Technology Services
Certain programming support services
Word Processing services
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EXHIBIT B
OPTIONAL SERVICES
At Customer's option, and at a fee to be mutually agreed upon, RPC may
provide the following Optional Services as mutually agreed upon:
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EXHIBIT C
FEES, CHARGES AND EXPENSES
Customer shall pay to RPC a monthly fee of $31,718.
