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PURCHASE AND INDUCEMENT AGREEMENT
Dated as of May 17, 1996
By and Among
OSI HOLDINGS CORP.
ACCOUNT PORTFOLIOS, INC.
ACCOUNT PORTFOLIOS, L.P.
GULF STATE CREDIT, L.P.
PERIMETER CREDIT, L.P.
MLQ INVESTORS, L.P.
AND
XXXXXXX, XXXXX & CO.
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PURCHASE AND INDUCEMENT AGREEMENT
PURCHASE AND INDUCEMENT AGREEMENT dated as of May 17, 1996 by and among OSI
HOLDINGS CORP., a corporation organized under the laws of the State of Delaware
("OSI Holdings"), ACCOUNT PORTFOLIOS, INC., a corporation organized under the
laws of the State of Delaware ("API"), ACCOUNT PORTFOLIOS, L.P., a limited
partnership organized under the laws of the State of Georgia ("APLP"), GULF
STATE CREDIT, L.P., a limited partnership organized under the laws of the State
of Georgia ("Gulf State"), PERIMETER CREDIT, L.P., a limited partnership
organized under the laws of the State of Georgia ("Perimeter", and together with
OSI Holdings, API, APLP and Gulf State, the "Purchasers"), MTGLQ INVESTORS, L.P.
("MTGLQ") and MLQ INVESTORS, L.P. ("MLQ"), each a limited partnership organized
under the laws of the State of Delaware (collectively, the "Seller") and
XXXXXXX, SACHS & CO., a partnership organized under the laws of the State of New
York ("Xxxxxxx Xxxxx").
WHEREAS, the Seller owns all of the Interests (as defined below),
which are owned by MTGLQ and MLQ as indicated on Schedule I hereto;
WHEREAS, upon the terms and subject to the conditions set forth in
this Agreement, the Seller desires to sell the Interests, and the Purchasers
desire to purchase the Interests;
WHEREAS, as a further inducement to enter into this Agreement, the
Purchasers and Xxxxxxx Sachs have made further agreements as set forth herein;
and
WHEREAS, it is the intention of the parties hereto that, upon the
consummation of the transactions contemplated by this Agreement, the Purchasers
shall own all of the Interests.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
ss.1.1. Definitions. In addition to the terms defined elsewhere in
this Agreement, the following terms shall have the respective meanings specified
therefor
below (such meanings to be equally applicable to both the singular and the
plural forms of the terms defined).
"Agreement" shall mean this Agreement, as amended, modified or
supplemented from time to time.
"API" shall have the meaning specified in the preamble to this
Agreement.
"APLP" shall have the meaning specified in the preamble to this
Agreement.
"Charged-Off Loans" shall mean consumer loans, consumer receivables,
retail installment sales contracts or other like consumer assets including
deficiency claims against borrowers following foreclosure on home mortgage loans
(but otherwise excluding mortgage loans): (i) the full face amount of which has
been charged off by the seller and (ii) which are capable of being purchased at
less than 15% of their original face amount.
"Charged-Off Loan Portfolio" shall mean a portfolio of loans 75% of
which (by value) are Charged-Off Loans.
"Closing" shall have the meaning specified in Section 3.1.
"Closing Date" shall have the meaning specified in Section 3.1.
"Encumbrances" shall mean any encumbrance, lien, charge, security
interest or other restriction of any kind or character.
"Xxxxxxx Xxxxx" shall have the meaning specified in the preamble to
this Agreement.
"GS-Sourced Portfolio" shall mean each Charged-Off Loan Portfolio for
which the Xxxxxxx Sachs Mortgage Securities Department shall give API written
notice of a purchasing opportunity in accordance with Section 7.1(b) unless API
shall have, prior, or contemporaneously with, receiving such notice from Xxxxxxx
Xxxxx, notified the Xxxxxxx Sachs Mortgage Securities Department in writing that
it has received such opportunity from another source.
"Gulf State" shall have the meaning specified in the preamble to this
Agreement.
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"Interests" shall mean collectively the undivided interests owned by
the Seller in each of the portfolios of loans, consumer receivables, retail
installment sales contracts or other assets set forth on Schedule I attached
hereto.
"Material Adverse Change" means, with respect to any Person, a
material adverse change in such Person's business, assets, liabilities,
financial condition, operations or business prospects.
"Material Adverse Effect" means, with respect to any Person, a
material adverse effect upon such Person's business, assets, liabilities,
financial condition, operations or business prospects.
"Note" shall have the meaning specified in Section 2.2.
"OSI Holdings" shall have the meaning specified in the preamble to
this Agreement.
"Perimeter" shall have the meaning specified in the preamble to this
Agreement.
"Person" means an individual, a partnership, a corporation, an
association, a limited liability company, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Purchase Price" shall have the meaning specified in Section 2.2.
"Purchasers" shall have the meaning specified in the preamble to this
Agreement.
"Seller" shall have the meaning specified in the preamble to this
Agreement.
"Shares" shall have the meaning specified in Section 2.2.
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ARTICLE II
PURCHASE OF INTERESTS
ss.2.1 Purchase and Sale of Interests. Upon the terms and subject to the
conditions set forth in this Agreement, OSI Holdings and API agree to purchase
from MTGLQ and MLQ, and MTGLQ and MLQ agree to sell, convey, transfer, assign
and deliver to OSI Holdings and API, as applicable, on the Closing Date, against
the receipt by MTGLQ and MLQ of the consideration specified in Section 2.2 (an
aggregate value of $14,772,771.18, $8,000,000 of which is being purchased by OSI
Holdings from MLQ and $6,772,771.18 of which is being purchased by API from
MTGLQ and MLQ), the Interests, free and clear of any Encumbrances of any kind.
ss.2.2. Purchase Price. In consideration for the sale by MTGLQ and MLQ of
the Interests to OSI Holdings and API, on the Closing Date, OSI Holdings and
API, as applicable, shall deliver to MTGLQ and MLQ, as applicable, the following
(the "Purchase Price"):
(a) from OSI Holdings to MLQ, 640,000 shares of Class C Non-Voting
Common Stock, par value $.01 per share, of OSI Holdings (the "Shares"),
made out in the name of MLQ (an aggregate value of $8,000,000);
(b) from API, (i) an unsecured promissory note in an aggregate
principal amount of $3,500,000 due September 1, 2000, issued by API to
MTGLQ in the form attached hereto as Exhibit I (the "Note") and (ii) to
MLQ, an amount equal to $3,272,771.18, by wire transfer of immediately
available funds to an account specified by MLQ;
(c) from OSI Holdings the letter agreement in the form attached as
Exhibit II;
(d) from OSI Holdings a subordinated guarantee of the Note in the form
attached as Exhibit III.
ARTICLE III.
CLOSING
ss.3.1 Closing. The closing of the sale referred to in Section 2.1 (the
"Closing") shall take place at 10:00 A.M. at the offices of White & Case, New
York, New York on the date hereof, or at such other time, date and place as the
parties hereto shall by
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written instrument designate. Such time and date are herein referred to as the
"Closing Date."
ss.3.2. Deliveries by the Seller at the Closing. At the Closing, the Seller
shall deliver to OSI Holdings and API such documents, instruments and evidences
of transfer and conveyance, duly executed by the Seller, as the Purchasers shall
reasonably deem necessary to vest in OSI Holdings and API, as applicable, valid
title to the Interests free and clear of any Encumbrance of any kind, and such
other documents as the Purchasers may reasonably request to demonstrate
compliance with this Agreement by the Seller and Xxxxxxx Xxxxx.
ss.3.3. Deliveries by the Purchasers at Closing. At the Closing, OSI
Holdings and API, as applicable, shall deliver to the Seller (a) the cash
payments referred to above in Section 2.2, (b) the Shares, (c) the Note and (d)
such documents, instruments and other evidences as shall be reasonably required
by the Seller.
ss.3.4. Further Assurances. On or after the Closing Date, the Seller shall,
at the Purchasers' reasonable request, from time to time execute and deliver
such further instruments of conveyance, assignment and transfer, or cause to be
taken, such other actions as the Purchasers may reasonably request for the more
effective conveyance, assignment and transfer of the Interests to OSI Holdings
and API, respectively.
ARTICLE IV
REPRESENTATIONS OF THE SELLER
ss.4. Representations of the Seller. The Seller represents, warrants and
agrees with the Purchasers as follows:
ss.4.1. Existence in Good Standing. The Seller is a limited partnership
duly organized, validly existing and in good standing under the laws of the
State of Delaware.
ss.4.2 Authorization and Validity of Agreement. The Seller has the
requisite power and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by the Seller and the performance
of its obligations hereunder have been duly authorized and approved by the
Seller and no other action on the part of the Seller is necessary to authorize
the execution, delivery and performance of this Agreement by the Seller. This
Agreement has been duly executed and delivered by the Seller and is a valid and
binding obligation of the Seller, enforceable against the Seller
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in accordance with its terms, except to the extent that enforceability may be
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting the enforcement of creditors' rights generally and to
general equitable principles.
ss.4.3 No Conflicts. The execution, delivery and performance of this
Agreement by the Seller will not (a) violate or contravene any provision of the
organizational documents of the Seller, (b) result in a violation of any law,
rule, ordinance, regulation, order, judgment or decree by which the Seller is
bound (c) require any filing with, or permit, consent or approval of, or the
giving of any notice to, any governmental or regulatory body, agency or
authority, or any other Person, or (d) conflict with or result in a breach of or
default under any mortgage, lien, lease, license, permit, agreement, contract or
instrument to which the Seller is a party or by which the Seller is bound, which
conflict, breach or default would have a material adverse effect on the ability
of the Seller to perform its obligations under this Agreement or to consummate
the transactions contemplated hereby.
ss.4.4 Ownership of Interests. The Seller is the lawful owner of the
Interests, free and clear of all Encumbrances of every kind.
ss.4.5 Restrictions on Shares; Shares Subject to Stockholders Agreement.
The Seller acknowledges that the Shares to be delivered to the Seller as part of
the Purchase Price hereunder have not been registered under the Securities Act
of 1933 and are subject to various restrictions (including restrictions on
transfer) contained in that Amended and Restated Stockholders Agreement, dated
as of February 16, 1996, and attached hereto as Exhibit IV. The Seller hereby
makes the representations and warranties contained in Section 4.1 of the
Stockholders Agreement.
ARTICLE V
REPRESENTATIONS OF XXXXXXX SACHS
ss.5. Representations of Xxxxxxx Xxxxx. Xxxxxxx Xxxxx represents, warrants
and agrees with the Purchasers as follows:
ss.5.1. Existence in Good Standing. Xxxxxxx Sachs is a partnership duly
organized, validly existing and in good standing under the laws of the State of
New York.
ss.5.2 Authorization and Validity of Agreement. Xxxxxxx Xxxxx has the
requisite power and authority to enter into this Agreement and to perform its
obligations
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hereunder. The execution and delivery of this Agreement by Xxxxxxx Sachs and the
performance of its obligations hereunder have been duly authorized and approved
by Xxxxxxx Xxxxx and no other action on the part of Xxxxxxx Sachs is necessary
to authorize the execution, delivery and performance of this Agreement by
Xxxxxxx Xxxxx. This Agreement has been duly executed and delivered by Xxxxxxx
Sachs and is a valid and binding obligation of Xxxxxxx Xxxxx enforceable against
Xxxxxxx Sachs in accordance with its terms, except to the extent that
enforceability may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the enforcement of
creditors' rights generally and to general equitable principles.
ss.5.3 No Conflicts. The execution, delivery and performance of this
Agreement by Xxxxxxx Xxxxx will not (a) violate or contravene any provision of
the organizational documents of Xxxxxxx Sachs, (b) result in a violation of any
law, rule, ordinance, regulation, order, judgment or decree by which Xxxxxxx
Xxxxx is bound (c) require any filing with, or permit, consent or approval of,
or the giving of any notice to, any governmental or regulatory body, agency or
authority, or any other Person, or (d) conflict with or result in a breach of or
default under any mortgage, lien, lease, license, permit, agreement, contract or
instrument to which Xxxxxxx Sachs is a party or by which Xxxxxxx Xxxxx is bound,
which conflict, breach or default would have a material adverse effect on the
ability of Xxxxxxx Sachs to perform its obligations under this Agreement.
ARTICLE VI
REPRESENTATIONS OF THE PURCHASERS
ss.6. Representations of the Purchasers. The Purchasers, jointly and
severally, represent, warrant and agree with the Seller and Xxxxxxx Xxxxx as
follows:
ss.6.1. Existence in Good Standing. Each of the Purchasers is a corporation
or limited partnership, as the case may be, duly organized, validly existing and
in good standing under the laws of the State of its respective jurisdiction of
organization.
ss.6.2 Authorization and Validity of Agreement. Each of the Purchasers has
the requisite power and authority to perform its respective obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by the Purchasers (including in the case of API,
the execution and delivery of the Note) and the performance of their respective
obligations hereunder have been duly authorized and approved by the Purchasers
and no other action on the part of the Purchasers is necessary to authorize the
execution, delivery and performance of this
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Agreement by the Purchasers (including in the case of API, the Note). This
Agreement (and in the case of API, the Note) has been duly executed and
delivered by the Purchasers and is a valid and binding obligation of such
Purchasers, enforceable against such Purchasers in accordance with its terms,
except to the extent that enforceability may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the enforcement of creditors' rights generally and to general equitable
principles.
ss.6.3 No Conflicts. The execution, delivery and performance of this
Agreement (and in the case of API, the Note) by the Purchasers will not (a)
violate or contravene any provision of the organizational documents of the
Purchasers, (b) result in a violation of any law, rule, ordinance, regulation,
order, judgment or decree by which the Purchasers are bound, (c) require any
filing with, or permit, consent or approval of, or the giving of any notice to,
any governmental or regulatory body, agency or authority, or any other Person,
or (d) conflict with or result in a breach of or default under any mortgage,
lien, lease, license, permit, agreement, contract or instrument to which any of
the Purchasers are a party or by which the Purchasers are bound, which conflict,
breach or default would have a material adverse effect on the ability of the
Purchasers to perform their respective obligations under this Agreement or to
consummate the transactions contemplated hereby.
ss.6.4 Capital Stock. The authorized capital stock of OSI Holdings consists
of 1,000,000 shares of Preferred Stock, no par value (the "Preferred Stock"),
7,500,00 shares of Voting Common Stock, par value $.01 per share (the "Voting
Common Stock"), 7,500,000 shares of Class A Non-Voting Common Stock, par value
$.01 per share (the "Class A Non-Voting Common Stock"), 500,000 shares of Class
B NonVoting Stock, par value $.01 per share (the "Class B Non-Voting Common
Stock") and 1,500,000 shares of Class C Non-Voting Common Stock, par value $.01
per share (the "Class C Non-Voting Common Stock") of which 800,000 shares of
Preferred Stock, 3,417,134.01 shares of Voting Common Stock, 391,740.58 shares
of Class A NonVoting Common Stock, 400,000 shares of Class B Non-Voting Common
Stock and 400,000 shares of Class C Non-Voting Common Stock are outstanding. All
of the issued shares of capital stock of OSI Holdings have been duly and validly
authorized and issued and are fully paid and non-assessable. Except for warrants
to purchase 46,089 shares of Common Stock of OSI Holdings at a strike price of
$12.50 per share and except for OSI Holdings' 1995 Stock Option and Stock Award
Plan under which 294,182 shares of Common Stock of OSI Holdings has been
reserved for issuance, there are no options, warrants, conversion or other
rights, agreements or commitments of any kind obligating OSI Holdings,
contingently or otherwise, to issue or sell any shares of OSI Holdings capital
stock or any securities convertible into or exchangeable for any such shares.
All of the issued shares of capital stock of each subsidiary of OSI Holdings
have been duly and validly authorized and issued, are fully paid and non-
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assessable and are owned directly or indirectly by OSI Holdings, free and clear
of all liens, encumbrances, equities or claim. The Shares to be received by the
Seller in accordance with the terms of this Agreement will, upon issuance and
sale to Seller in accordance with this Agreement, be duly authorized, validly
issued and fully paid and nonassessable.
ss.6.5. Financial Statements. Purchasers have furnished or caused to
be furnished to Xxxxxxx Sachs copies of the unaudited balance sheet of OSI
Holdings as of September 21, 1995, the audited balance sheet of Continental
Credit Services Inc. and related companies as of September 30, 1995 and the
unaudited balance sheet of A.M. Xxxxxx & Associates Inc. as of September 30,
1995, and the related statements of income and cash flow for the periods covered
thereby. Such balance sheets and statements present fairly in all material
respects, and in the case of OSI Holdings and Continental Credit Services Inc.
in accordance with generally accepted accounting principles ("GAAP")
consistently applied throughout the periods involved, the consolidated financial
position of OSI Holdings and of A.M. Xxxxxx & Associates Inc. and Continental
Credit Services Inc. as at their respective dates and the results of operations
and the cash flow of such companies for such periods. Except as disclosed in
such balance sheets or statements, OSI Holdings and its subsidiaries (taken as a
whole) have no material liabilities, contingent or otherwise, nor were there any
material unrealized or anticipated losses of OSI Holdings and its subsidiaries
(taken as a whole) as of the date hereof. Since the date of such financial
statements, there has been no Material Adverse Change for OSI Holdings and its
subsidiaries, taken as a whole.
ss.6.6 No Violations. None of the Purchasers nor any of their
respective subsidiaries is in violation of its Certificate of Incorporation or
By-laws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound except for such
defaults as would not individually or in the aggregate have a Material Adverse
Effect upon OSI Holdings and its subsidiaries taken as a whole.
ss.6.7 Litigation. There are no legal or governmental proceedings
pending to which any of the Purchasers or any of their respective subsidiaries
is a party or of which any property of any of the Purchasers or any of their
respective subsidiaries is the subject which, if determined adversely to any of
the Purchasers or any of their respective subsidiaries, would individually or in
the aggregate have a Material Adverse Effect on OSI Holdings and its
subsidiaries taken as a whole; and, to the best of each Purchaser's knowledge,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others.
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ss.6.8 Accuracy and Completeness of Information. All written
information, reports and other papers and data furnished to Xxxxxxx Xxxxx by, on
behalf of, or at the direction of, any Purchaser or any subsidiary thereof were,
at the time the same were so furnished, complete and correct in all material
respects, to the extent necessary to give Xxxxxxx Sachs a true and accurate
knowledge of the subject matter. No document furnished or written statement made
to Xxxxxxx Xxxxx in connection with the negotiation, preparation of execution of
this Agreement contains or will contain any untrue statement of a fact material
to any Purchasers or omits or will omit to state a material fact necessary, in
light of the circumstances under which they were given, in order to make the
statements contained therein not misleading.
ss.6.9 Investment Company Act. None of the Purchasers is and, after
giving effect to the transactions contemplated hereby, none of the Purchasers
will be an "investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act of 1940, as
amended.
ARTICLE VII
OTHER AGREEMENTS
ss.7.1 Devotion of Resources. Exclusive Right to Purchase Portfolios. (a)
For a period of three years from the date hereof and so long as no event
specified in Schedule II attached hereto shall have occurred and be continuing,
Xxxxxxx Sachs agrees that it will cause its Mortgage Securities Department to
use its reasonable best efforts to find opportunities to purchase Charged Off
Loan Portfolios from consumer finance companies, banks, thrifts and retailers
that are in the business of providing consumer credit in order to assist API and
its affiliates in sourcing Charged-Off Loan Portfolio purchasing opportunities.
(b) In addition, for a period of three years from the date hereof and
so long as no event specified in Schedule II attached hereto shall have occurred
and be continuing, Xxxxxxx Xxxxx will provide API and its affiliates with the
exclusive opportunity, on not less than 15 days written notice, to purchase any
portfolios of Charged-Off Loans sourced, directly or indirectly, by Xxxxxxx
Sachs Mortgage Securities Department, except that such opportunity shall be
non-exclusive on no less favorable terms than may be offered to other customers
of the Xxxxxxx Xxxxx Mortgage Securities Department if Xxxxxxx Sachs is acting
as financial advisor to the seller of such Charged-Off Loan Portfolio or
otherwise may be deemed to have a legal duty to such seller to offer such
opportunities to others. For purposes of this Section 7.1(b), API shall be
deemed to have received the exclusive opportunity to purchase a Charged-Off Loan
Portfolio if it shall have received written notice of such opportunity
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at least 15 days before the Xxxxxxx Xxxxx Mortgage Securities Department shall
make such opportunity known to any of its other clients. Purchasers understand
and agree, however, that nothing herein shall obligate Xxxxxxx Sachs to cause
any prospective seller of a Charged-Off Loan Portfolio to make such opportunity
available to API on an exclusive basis for any period of time nor shall Xxxxxxx
Xxxxx be obligated to prevent any seller from independently offering such
opportunity to other prospective purchasers, including prospective purchasers
who may be customers or clients of Xxxxxxx Sachs.
ss.7.2 Participation Rights. In consideration of the transactions
contemplated hereby, API and its affiliates will, for a period of three years
from the date hereof and so long as Xxxxxxx Xxxxx shall be obligated to perform
the services contemplated by Section 7.1, provide the Seller with the
opportunity to purchase, on the same terms and conditions as API on not less
than 30 days prior written notice, up to a 25% participation interest in all
GS-Sourced Portfolio purchases by API or its affiliates in excess of $5,000,000
per year; provided that it is understood that any portfolio of Charged-Off Loans
purchased by API or its affiliates from Bally's Health and Tennis Corporation
shall not be deemed to be GS-Sourced Portfolios and therefore would not be
counted in calculating the $5,000,000 of GS-Sourced Portfolio purchases. Such
participations will be offered pursuant to, and in the form of, a participation
agreement along with a related servicing agreement and collateral assignments,
each in the form attached hereto as Exhibits V, VI, VII and VIII, respectively.
Without limiting the generality of the foregoing, the parties understand and
agree that (i) Xxxxxxx Sachs's right to a 25% participation interest shall apply
to each dollar of GS-Sourced Portfolios that API and its affiliates purchase in
any year in excess of the $5,000,000 threshold so that, for instance, if API
purchases a $2,000,000 GS-Sourced Portfolio, having previously purchased in such
year $4,000,000 of GS-Sourced Portfolios, Xxxxxxx Xxxxx shall be entitled to
purchase a $250,000 undivided participation interest in such $2,000,000
portfolio and (ii) "per year" means in each of the one-year periods ending on
each of the first three anniversaries of the date of this Agreement.
ss.7.3 Termination of Letter Agreement Obligations. In consideration of the
transactions contemplated hereby, each of APLP and Xxxxxxx Sachs agree that the
obligations of each such party pursuant to each of the respective Letter
Agreements dated June 29, 1994 and September 8, 1994 (collectively the "Letter
Agreements") between such parties shall be terminated and shall be of no further
force and effect.
ss.7.4 Release of Claims. Each party hereto hereby releases and discharges
every other party hereto and all of such other party's officers, directors,
employees, agents, affiliates, successors and assigns from any and all claims,
causes of action and liabilities, known or unknown which any of them ever had or
now have, arising out of or resulting from the Interests or the Letter
Agreements, except with respect to the
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representations, warranties, covenants, agreements and other terms and
conditions of this Agreement.
ARTICLE VIII
MISCELLANEOUS
ss.8.1 Survival of Representations and Warranties. The representations and
warranties of the parties contained herein shall survive the consummation of the
transactions contemplated by this Agreement.
ss.8.2 Expenses. Each of the parties hereto shall pay their own expenses
relating to the transactions contemplated by this Agreement, including, without
limitation, the fees and expenses of their respective counsel.
ss.8.3 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
ss.8.4 Jurisdiction. The Seller and the Purchasers each hereby irrevocably:
(a) submits to the non-exclusive jurisdiction of any court of the State of New
York sitting in Manhattan and the federal courts of the United States of America
for the Southern District of New York for the purpose of any action or
proceeding relating to this Agreement; (b) waives, to the fullest extent
permitted by law, the defense of an inconvenient forum in any action or
proceeding in any such New York State or federal court; (c) agrees that a final
judgment in any action or proceeding in any such court shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law; (d) consents to service of process upon it by mailing a
copy thereof by certified or registered mail addressed to it as provided for
notices hereunder; and (e) to the extent that it or its properties have or
hereafter may acquire immunity (sovereign or otherwise) from jurisdiction of any
court or from any legal process (whether through service or notice, attachment
prior to judgment, attachment in aide of execution, execution or otherwise),
waives such immunity in respect of its obligations under this Agreement.
ss.8.5 Notices. All notices pursuant to this Agreement shall be given in
writing hand-delivered or mailed or sent by facsimile transmission to the
address or facsimile number (as the case may be) specified for the intended
recipient on Schedule III attached hereto, or to such other address or number as
the intended recipient may have designated by notice to the other party. All
such notices shall be effective upon receipt.
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ss.8.6 Captions. The Article and Section captions used herein are for
reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
ss.8.7 Parties in Interest. This Agreement may not be transferred,
assigned, pledged or hypothecated by any party hereto, other than by operation
of law. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors and permitted assigns.
ss.8.8 Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one instrument.
ss.8.9 Entire Agreement. This Agreement, including the other documents
referred to herein or which form a part hereof, contains the entire
understanding of the parties hereto with respect to the subject matter contained
herein and therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
ss.8.10 Amendments. This Agreement may not be changed orally, but only by
an agreement in writing signed by the parties hereto.
ss.8.11 Severability. In case any provision in this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof will not in any way be affected or impaired
thereby.
ss.8.12 Third Party Beneficiaries. Each party hereto intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any Person other than the parties hereto.
ss.8.13 Transfer Taxes. All sales, value added, use, transfer,
registration, stamp, documentary and similar taxes imposed in connection with
the sale of the Interests or any other transaction which occurs pursuant to this
Agreement shall be borne equally by the Purchasers, on the one hand, and by the
Seller, on the other hand.
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IN WITNESS WHEREOF, each of the parties have duly executed this Agreement,
all as of the day and year first above written.
OSI HOLDINGS CORP.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: President
ACCOUNT PORTFOLIOS, INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: President
ACCOUNT PORTFOLIOS, L.P.
By: Account Portfolios G.P., Inc.,
its general partner
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: President
GULF STATE CREDIT, L.P.
By: Account Portfolios G.P., Inc.,
its general partner
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: President
PERIMETER CREDIT, L.P.
By: Account Portfolios G.P., Inc.,
its general partner
By: /s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X. Xxxx
Title: President
MLQ INVESTORS, L.P.
By: MLQ, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
MTGLQ INVESTORS, L.P.
By: MTGLQ INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
