Exhibit 10.16
RECEIVABLES PURCHASE AGREEMENT
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This Receivables Purchase Agreement (the "Agreement") is entered into as of
June 20, 2001 by and between MONTEREY FINANCIAL SERVICES, INC. (MFS), a
California Corporation with its address at 0000 Xxxxxxx xx x Xxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000 and COLLEGE BOUND STUDENT ALLIANCE, INC. a Nevada corporation
and its subsidiary COLLEGE PARTNERSHIP, INC. a Delaware company , ("SELLER"),
with its address at 000 X. Xxxxxxx Xxxx., Xxx. 000, Xxxxxxxx, XX 00000 , with
respect to the following facts:
RECITALS
A. SELLER is in the business of providing certain products and services to
various individuals from time to time and SELLER finances the cost of such
products and services by entering into retail installment contracts, promissory
notes, security agreements, membership agreements and/or other instruments
(each, a "Contract" and collectively, the "Contracts") with such individuals.
Seller's services and/or products are described on Schedule "A" attached hereto
and incorporated herein by this reference.
B. MFS is in the business of purchasing instruments such as the Contracts
in its ordinary course of business.
NOW, THEREFORE, in consideration of the above premises and of the
representations, warranties and agreements contained herein, the parties hereby
covenant and agree as follows:
1. DEFINITIONS. The following terms shall have the following meaning as
used in this Agreement.
(a) "Assignment" means an Irrevocable Assignment in a form approved by
MFS, transferring and assigning to MFS all of SELLER's right, title and interest
in and to a Purchased Contract, all payments thereunder and all related
guaranties and collateral therefor on a form prescribed by MFS.
(b) "Collected Funds," with respect to a Servicing Contract, means all
monies collected on such Servicing Contract due to SELLER or any of SELLER's
affiliates.
(c) "Contract" has the meaning set forth in Recital A above and must be
on a form approved by MFS.
(d) "Contract/Credit Application" means an executed original Contract,
an original credit application, and/or an original credit report or statement
concerning the Customer and any related documents and information from time to
time required by MFS in accordance with MFS's standard procedures.
(e) "Customer" means an individual who enters into a Contract with
SELLER.
(f) "Default" means (i) a breach by SELLER, which has not been cured
during any applicable cure period, of any representation, warranty, covenant,
term or condition of this Agreement or of any documents to which SELLER is
obligated or by which it is bound in connection with a Contract, (ii) a default
under any guaranty of the obligations of SELLER hereunder which has not been
cured during any applicable cure period, (iii) a default by SELLER under any
other agreement by and between SELLER or any affiliate thereof and MFS and any
affiliate thereof which has not been cured during any applicable cure period, or
(iv) a Material Adverse Change in Financial Condition with respect to SELLER.
(g) "Defaulted Contract" has the meaning set forth in Section 5 hereof.
(h) "Event of Cancellation" shall, with respect to a Contract, refer to
(i) a Material Adverse Change in Financial Condition, business or operations of
SELLER since the date of this Agreement or of the Customer since the date of the
related Final Contract/Credit Applications or (ii) the occurrence of an event
which causes a representation made by the Customer, SELLER or any other party in
connection with the Contract or under this Agreement to be or become false or
misleading in any material respect whether or not true when made or,(iii) a
breach of any term of such Contract, or of any related guaranty or credit
support agreement, whether by the customer or SELLER, including without
limitation, failure or SELLER to deliver the underlying products or services to
customer or (iv) any Default; or (v) notification by a Customer to SELLER or to
MFS of its intent to cancel all or any part of the Contract or (vi) if the
SELLER and/or MFS is named in a lawsuit over the actions of the SELLER.
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(i) "Final Contract/Credit Application" means such documents as MFS
shall from time to time require in accordance with its standard procedures in
order to complete the purchase of a Contract and to pay the Purchase Price of
the Contract to SELLER including, without limitation, (i) an Assignment; (ii)
the one and only executed original of the Purchased Contract; (iii) any Uniform
Commercial Code financing statements necessary to perfect MFS's interest in the
Purchased Contract; and (iv) any other document or instrument required by the
terms of MFS's written notice to SELLER pursuant to Section 2 below including,
without limitation any guaranties or security agreements.
(j) "Material Adverse Change in Financial Condition" means a significant
negative change in the balance sheet or profit and loss statements of SELLER or
a Customer from time to time, insolvency, inability to pay debts as they mature,
failure to operate as a going concern, voluntarily or involuntarily filing
bankruptcy, making an assignment for the benefit of creditors, appointment of a
receiver, dissolution, change in the corporate structure or in a material
portion of the stock ownership or, as to a Customer, the death or incapacity of
the Customer.
(k) "Purchased Contract" means a Contract, the Customer of which meets
all of the credit and income requirements of MFS at the time it is purchased and
which MFS elects, in its sole discretion, to purchase pursuant to the terms
hereof.
(l) "Purchase Price," with respect to each Contract, means the amount
set forth on the attached Schedule "A".
(m) "Repurchased Contract" means a Purchased Contract which has been
repurchased by SELLER pursuant to the terms hereof.
(n) "Repurchase Price" means the price at which SELLER is obligated to
repurchase a Purchased Contract from MFS and shall be an amount equal to (i) the
Purchase Price paid by MFS to SELLER less all payments attributable to principal
received on such Purchased Contract; plus (ii) a Repurchase Fee in an amount set
forth on Schedule "A" attached hereto.
(o) "Reserve Amount," with respect to each Contract, means the amount to
be withheld by MFS from the Purchase Price for each Purchased Contract as set
forth on Schedule "A" attached hereto, which Reserve Amount shall be withheld as
a reserve against losses which may be incurred by MFS on any of the Purchased
Contracts.
(p) "Reserve Account" means the balance of all Reserve Amounts for all
Purchased Contracts withheld by MFS from time to time, which shall be held by
MFS in a non-interest bearing account.
(q) "Reserve Rebate" means the amount set forth on Schedule "A" attached
hereto which will be paid by MFS to SELLER from time to time pursuant to Section
3(b) of this Agreement.
(r) "Servicing Contract" means any Contract which MFS has elected not to
purchase for any reason and any Repurchased Contracts, which MFS elects, in its
sole discretion, to administer and service pursuant to the terms of this
Agreement.
(s) "Servicing Fee," with respect to each Servicing Contract, means the
amount set forth on Schedule "A" attached hereto which will be paid by SELLER to
MFS as compensation for MFS's administration and servicing of the Servicing
Contracts.
(t) "Term," with respect to this Agreement, means the period of time set
forth on Schedule "A" attached hereto; provided, however, that MFS may terminate
this Agreement immediately upon notice to SELLER in the event of a Default not
cured by Seller.
2. PURCHASE OF CONTRACTS. Subject to the terms and conditions of this
Agreement during the Term, MFS shall have the option, but not the obligation, in
its sole discretion on a case by case basis, to purchase all of SELLER'S rights,
title and interest in and to the Contracts submitted by SELLER to MFS. Upon the
execution of a Contract, SELLER shall provide to MFS the Contract/Credit
Application. Upon receipt thereof, MFS shall review the Contract/Credit
Application and shall notify SELLER whether it elects to exercise its option to
purchase such Contract by delivery of written notice to SELLER within ten (10)
days after MFS's receipt of the Contract/Credit Application. If MFS exercises
its right to purchase a Contract, SELLER shall submit a Final Contract/Credit
Application to MFS. MFS's obligation to purchase any Contracts shall be
conditioned upon MFS's receipt of a complete Final Contract/Credit Application
with respect thereto in form and substance acceptable to MFS. In no event shall
MFS assume or be delegated any of SELLER's duties, responsibilities, liabilities
or obligations to the Customer under any Contract and SELLER shall remain liable
therefor notwithstanding an assignment of a Purchased Contract to MFS. The
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parties agree that MFS shall be entitled to directly receive and retain any and
all amounts due and payable under the Purchased Contracts. All Purchased
contracts shall be sold to MFS subject to the representations, warranties,
covenants, agreements, terms and conditIons set forth in this Agreement, and
shall be accompanied by an Irrevocable Assignment, substantially in the form
attached hereto as Exhibit A, SELLER acknowledges and agrees that MFS shall be
entitled to elect not to purchase or service any Contract for any reason
whatsoever in its sole and absolute discretion.
3. FUNDING OF PURCHASE PRICE; RESERVE ACCOUNT.
(a) Provided that no Event of Cancellation has occurred with respect to
a Contract that MFS has elected to purchase, MFS shall, within five (5) business
days after SELLER's submission of a complete Final Contract/Credit Application
to MFS, pay to SELLER the Purchase Price for each Purchased Contract less(i) the
Reserve Amount which shall be retained by MFS in the Reserve Account (non-
interest bearing account) and may be commingled with MFS's other funds, (ii) any
adjustment to Purchase Price, if applicable, as set forth in Schedule A.
(b) The amount of the Reserve Account shall, at all times, be at least
equal to the Minimum Reserve as such term is defined in Schedule "A" attached
hereto. The reserve account, which is a pooled reserve, shall be held for a
minimum of six months from the date of the first bulk purchase. MFS shall
deliver to SELLER by no later than the last day of the seventh month from the
date of the first bulk purchase and every three months thereafter, a report
which identifies the Reserve Amount and a Reserve Rebate as identified in
Schedule "A". SELLER acknowledges and agrees that MFS shall retain the Reserve
Account in MFS's sole possession and control in accordance with this Section 3.
MFS shall pay to SELLER the Reserve Rebate calculated as set forth on Schedule
"A" and as follows: The minimum as stated in schedule "A" will always be kept in
the Reserve Account. Other than the Reserve Rebate, no interest or other sum
will ever be paid by MFS to SELLER on amounts held in the Reserve Account.
Except with respect to the Reserve Rebate, the Reserve Account shall be held by
MFS until the later of the date on which (i) all sums due to MFS on all
Purchased Contracts have been paid in full, (ii) this Agreement has been
terminated and MFS has been paid in full for all amounts due hereunder, or (iii)
MFS no longer has any contingent liability to return any amounts which it may
have received pursuant to any Purchased Contract under applicable laws.
4. REPRESENTATIONS AND WARRANTIES.
(a) SELLER hereby represents, warrants and covenants to MFS, its
successors and assigns, as of the date hereof and as of the date of submission
of each Contract/Credit Application, Final Contract/Credit Application and
Assignment in respect of each Contract, that:
(1) If a corporation, partnership or limited liability company,
SELLER is duly organized and validly existing and in good standing in the state
or its incorporation as such, and has full power to carry on its business as it
is presently conducted including, without limitation, the sale of the Contracts,
to enter into this Agreement and to carry out the transactions contemplated
hereby;
(2) the execution and delivery of this Agreement, the assignment of
the Purchased Contracts to MFS, and the performance by SELLER of the
transactions contemplated hereby have been duly authorized by all necessary
action, including any action required under Seller's governing instruments;
(3) the execution, delivery and performance of this Agreement and
the assignment of the Purchased Contracts to MFS, and the execution of any other
instrument related to this Agreement, constitute a legal, valid and binding
obligation of SELLER enforceable in accordance with its terms, without any
offsets or counterclaims, and no further actions are required for SELLER to
enter into this Agreement and such other instruments;
(4) to the best of SELLER's knowledge, all of SELLER's business
operations are duly licensed and permitted under all federal, state and local
laws, rules and regulations of any governmental authority;
(5) SELLER has duly paid any and all license, franchise, corporation
or other taxes, fees, imposts, duties or charges levied, assessed or imposed
upon it or upon any of its properties of whatsoever kind or description;
(6) neither the execution of this Agreement nor the consummation of
the transactions contemplated hereby will constitute a violation or default of
any statute, rule or decree of any court, administrative agency or governmental
body to which SELLER is or may be subject;
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(7) there are and will be no agreements between SELLER or its agents
and any Customer in connection with any Purchased Contract and no express or
implied warranties have been or will be made by SELLER or its agents to such
Customer, except as set forth in the Contract;
(8) SELLER and its agents have not participated in and have no
knowledge of any fraudulent and/or misleading act in connection with any
Contract or with respect to any Customer;
(9) to the best of SELLER's knowledge, each Customer is bonafide and
has legal capacity to enter into such Contract and the signature of the named
Customer is genuine;
(10) to the best of SELLER's knowledge, each Contract is and shall
be valid, genuine and noncancellable, enforceable according to its terms and in
compliance with applicable laws, rules and regulations of any governmental
authority whether federal, state, county, municipal or otherwise including,
without limitation, usury laws, the Federal Truth-in-Lending Act, the Equal
Credit Opportunity Act, the Fair Credit Billing Act, the Fair Credit Reporting
Act, the Fair Debt Collection Practices Act, the Federal Trade Commission Act,
the Xxxxxxxx-Xxxx Warranty Act, Federal Reserve Board Regulations B, M and Z,
state adaptions of the National Consumer Act and of the Uniform Consumer Credit
Code and any other consumer credit, equal opportunity, disclosure or
repossession laws or regulations applicable with respect to a particular
Contract.
(11) to SELLER's actual knowledge, each Contract is a valid deferred
payment obligation for the amount therein set forth and such Contract shall not
be subject to any disputes, offsets or counterclaims and the property, goods or
services described in the Contract have never been the subject of any other
Contract between SELLER and the Customer and the Contract has not been rescinded
by SELLER or Customer for any reason whatsoever, SELLER is not in breach under
any obligation to any Customer under any Contract, and has no actual knowledge
of any personal defenses that the Customer could raise against the enforcement
of the terms of any Contract; SELLER has no actual knowledge of any facts which
may result in the uncollectability or unenforecability of any contract;
(12) all credit or other information reasonably relevant to a credit
determination concerning the Customer known to SELLER will have been disclosed
to MFS and such credit information and all other information supplied by SELLER
in connections with any Contract shall be true, complete and correct as of the
date submitted; SELLER shall supplement such information as necessary so that
such information remains true, complete and correct; SELLER has no knowledge of
any facts, which presently or upon the occurrence of certain events in the
future, may result in the uncollectability and/or unenforceability of the
Contract; SELLER acknowledges that MFS will rely upon information appearing on
SELLER's records relating to all Contracts and Final Contracts/Credit
Applications, and in light of such acknowledgment, each item of information
contained in and appearing on such records accurately reflects their true
status;
(13) except as otherwise disclosed by SELLER, SELLER owns each
Contract submitted to MFS hereunder free and clear of any liens, charges,
security interests, encumbrances or other restrictions or transfer which may
adversely affect MFS's rights with respect thereto, including without
limitation, MFS's rights under this Agreement to be the assignee of all
Purchased Contracts and to collect all monies due thereunder, SELLER has the
absolute right to sell, assign and transfer the contracts free and clear of all
rights of third parties, and upon assignment MFS will obtain good title to such
Purchased Contract free and clear of any liens, charges, encumbrances or other
restrictions whatsoever;
(14) except as otherwise disclosed by SELLER, the execution and
delivery by SELLER of this Agreement and the assignment of the Purchased
Contracts to MRS and the security interests granted to MFS from time to time
pursuant to the terms hereof, do not conflict with or constitute a material
breach or default with respect to any indenture, loan or credit agreement,
mortgage, lease, deed or other agreement to which it is a party or by which it
or its properties are bound and there are no suits or proceedings pending or, to
the knowledge of SELLER, threatened in any court or before any regulatory
commission, board or other administrative or governmental agency against or
affecting SELLER which could materially impair SELLER's ability to perform its
obligations hereunder;
(15) the financial statements of SELLER delivered to MFS from time
to time fairly present the financial position of SELLER as of the date thereof
in conformity with generally accepted accounting principles consistently applied
and the results of operations of SELLER for the periods covered thereby and do
not, as of the date thereof, include any material misstatement or omit to state
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any material liability, absolute or contingent, and since the date of the latest
such financial statements, there has been no Material Adverse Change in the
Financial Condition of SELLER.
(16) except as otherwise disclosed by SELLER, there is no litigation
or other proceeding pending, or to the best of SELLER's knowledge, threatened
against SELLER that would affect SELLER'S ability to perform each and every of
its obligations under this Agreement or any Agreement or instrument related
hereto;
(17) SELLER has or will deliver to Customer all products and
services required to be delivered and/or performed in accordance with the
Contract; and
(18) to the best of SELLER's knowledge, no false, fraudulent or
misleading representations were made nor were unfair or deceptive trade
practices engaged in by SELLER with respect to the Customer or the Contract and
no statements, promises or representations about the payment terms under the
Contract, except as stated in writing in the Contract.
(b) The representations and warranties contained herein shall be deemed
to be continuing representations, warranties and covenants of Seller and shall
continue beyond the term of this Agreement and until all obligations of Seller
hereunder have been performed and all payments have been made to MFS under all
Purchased Contracts. The sole remedy for breach of any of the above shall be
full recourse and repurchase of the contract.
(1) In the event of any (a) transfer of control of Seller,
including, without limitation, any merger, consolidation or reorganization of
Seller with or into any person, firm or entity, where Seller is not the
surviving entity in such merger, consolidation or reorganization ( a "Change of
Control Event"), (b) sale, lease conveyance, exchange, transfer or other
disposition of all, or substantially all, the assets of Seller (an "Asset
Sale"), or (c) dissolution or liquidation of Seller, prior to such event Seller
shall (x) give Monterey written notice of the date of such event and, in the
event of a Change of Control Event or an Asset Sale, the identity of the
surviving or acquiring entity, and (y) purchase all outstanding amounts on the
Purchased contracts at the same rate as originally purchased by Monterey
hereunder; provided, however that in the event of a Change of Control Event or
an Asset Sale, Monterey shall be entitled to elect, in its sole and absolute
discretion, to have the surviving or acquiring corporation, as the case may be,
to continue to honor the Purchased Contracts and assume Seller's obligations
hereunder, including, without limitation, providing any ongoing services
described thereunder, subject to executing such documents as Monterey may
reasonable request.
(c) MFS hereby represents, warrants and covenants to SELLER, its
successors and assigns, as of the date hereof and as of the date of submission
of each Contract/Credit Application, Final Contract/Credit Application and
Assignment in respect of each Contract, that:
(1) If a corporation, partnership or limited liability company, MFS
is duly organized and validly existing and in good standing in the state or its
incorporation as such, and has full power to carry on its business as it is
presently conducted including, without limitation, the sale of the Contracts, to
enter into this Agreement and to carry out the transactions contemplated hereby;
(2) the execution and delivery of this Agreement, the assignment of
the Purchased Contracts by SELLER, and the performance by MFS of the
transactions contemplated hereby have been duly authorized by all necessary
action, including any action required under MFS's governing instruments;
(3) the execution, delivery and performance of this Agreement and
the assignment of the Purchased Contracts by SELLER, and the execution of any
other instrument related to this Agreement, constitute a legal, valid and
binding obligation of MFS enforceable in accordance with its terms, without any
offsets or counterclaims, and no further actions are required for MFS to enter
into this Agreement and such other instruments;
5. SECURITY AGREEMENT IN COLLATERAL. To secure the accuracy and full
performance of each of SELLER's representations, warranties, covenants and
obligations hereunder, SELLER hereby grants to MFS a first priority security
interest (the "Security Interest") in all of SELLER's rights, titles and
interest in and to (i) all of the Purchased Contracts, (ii) all amounts held in
the Reserve Account, (iii) all of the Servicing Contracts, and (iv) all proceeds
of the foregoing. The Purchased Contracts, the Reserve Account, the Servicing
Contracts and all proceeds of the foregoing are sometimes hereinafter
collectively referred to as the "Collateral." SELLER shall execute and deliver
to MFS one or more original Uniform Commercial Code financing statements
describing the Collateral executed by SELLER in a form approved by MFS to be
filed in all offices where appropriate as may be necessary or advisable to
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perfect SELLER's security interest in the Collateral; provided, however, to
perfect MFS's security interest in the Reserve Account, MFS shall remain in
possession thereof. The transactions contemplated hereby are a full and absolute
sale of the Purchased Contracts, subject to the conditions herein, and except
for the Reserve Rebate, and no obligations and/or rights of SELLER hereunder
shall in any way be construed to imply or grant SELLER any direct or indirect
ownership interest and/or legal or equitable title in and/or to the purchased
contracts.
6. RIGHT OF OFFSET. MFS has the right, with 30 day notice to SELLER, to
offset amounts owed by SELLER to MFS hereunder against amounts held by MFS in
the Reserve Account. Without limiting the generality of the foregoing, if SELLER
is obligated to repurchase a Purchased Contract for any reason and does not
provide MFS with cash or an acceptable replacement Contract within thirty (30)
days following notice by MFS to SELLER of the Customer's default, then MFS has
the right, without further notice to SELLER (i) to offset such amounts held by
MFS in the Reserve Account, (ii) the Reserve Rebate, (iii) the amount of any
Collected Funds otherwise payable to SELLER by MFS hereunder, and/or (iv) any
other amounts payable by MFS to SELLER. Nothing herein shall require MFS to
first seek or exhaust any remedy against the Customer, its successors and
assigns, or any other person obligated with respect to the Contract, or to first
foreclose, exhaust or otherwise proceed against any collateral or security which
may be given in connection with the Contract, if any.
7. RIGHT TO INSPECT. MFS (through any of its officers, employees, or
agents) shall have the right from time to time hereafter at its sole cost and
expense to audit and inspect books and to check, test and appraise the
collateral in order to verify financial condition or the amount, quality, value,
condition of, or any other matter relating to collateral.
8. INDEMNIFICATION. SELLER and MFS each hereby agree to defend, indemnify
and hold harmless each other, and the other party's affiliates, subsidiaries,
employees, officers, directors, shareholders, attorneys and agents, from and
against any and all losses, claims, liabilities, demands and expenses
whatsoever, including without limitation reasonable attorneys' fees and costs
arising out of or in connection with any breach by the indemnifying party of its
representations, warranties, covenants or obligations hereunder. Further, SELLER
hereby agrees to defend, indemnify and hold harmless MFS, and its affiliates,
subsidiaries, employees, officers, directors, shareholders, attorneys and
agents, from and against any and all losses, claims, liabilities, demands and
expenses whatsoever, in contract or tort, including without limitation
reasonable attorneys' fees and costs arising out of or in connection with any
breach by SELLER of it representations, warranties, covenants, or obligations
under this Agreement or any contract, or arising out of (i) the selection,
manufacture, purchase, acceptance or rejection by a Customer of any of the
products or services, as applicable, relating to any Purchased Contract, and the
delivery, possession, maintenance, use, condition, return or operation of any of
such products or services, as applicable, (including, without limitation, latent
and other defects in any product, whether or not discoverable by MFS or the
Customer), and (ii) any and all of the Servicing Contracts, unless caused by the
gross negligence or willful misconduct of MFS. SELLER shall, upon request,
immediately defend any and all actions based on, or arising out of, any of the
foregoing. All indemnities and obligations contained herein shall survive the
expiration or termination of the Agreement and the expiration or termination of
any Purchased Contract or any Servicing Contract.
9. SERVICING OF CONTRACTS.
(a) As part of the consideration for MFS entering into this Agreement
and agreeing to purchase Contracts from SELLER, SELLER agrees that during the
Term hereof, MFS shall have the option but not the obligation, in MFS's sole
discretion, to service, as SELLER's exclusive collection agent, all Servicing
Contracts entered into by SELLER and shall be entitled to retain the Servicing
Fee for its performance of such services. If MFS elects to administer and
service any Servicing Contracts, MFS shall perform the following duties with
respect to such Servicing Contracts to the best of its skill and ability: (i)
inform each Customer of the billing arrangements, send a welcome letter and a
monthly billing statement or coupon book to each Customer of a Servicing
Contract, proceed to collect all payments due thereunder by posting and
depositing all payments or like monies received on the Servicing Contracts
within forty-eight (48) hours of receipt; (ii) promptly return incomplete
checks, drafts or other items of payment received with respect to the Servicing
Contract to SELLER or as otherwise directed by SELLER; (iii) re-deposit checks,
drafts and other items of payment returned to MFS for reasons of "Return to
Maker" or "Non-sufficient funds" or words of similar effect according to MFS's
standard collection procedures; (iv) notify SELLER of any items of payment
received bearing a notation "payment in full," "interest only" or words to that
effect and follow SELLER's instructions with respect to such items; (v) hold all
post-dated checks, drafts or other items of payment and deposit them on the date
appearing on the check, draft or other item of payment; (vi) use its own funds,
tools, supplies and equipment in the performance of its services hereunder,
(vii) maintain books and records of all Servicing Contracts in accordance with
generally accepted accounting principles including, without limitation records
concerning principal, interest, late charges, and pre-payments received through
pre-authorized debits, checks, drafts or other items of payment and, upon
SELLER's written request, give access thereto to SELLER; (viii) provide SELLER
monthly with a full and complete accounting in respect of each and every
Servicing Contract, and weekly e-mail Aged Balance Reports from Finance and Loan
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Servicing; (ix) in the event a Customer becomes delinquent over fifteen (15)
days, mail written delinquent notice letters to such Customer; (x) service such
delinquent Servicing Contracts with as many telephone calls as MFS deems
necessary; (xi) notify SELLER of any Servicing Contract serviced hereunder which
is delinquent for a period in excess of ninety (90) days; (xii) remit to SELLER,
on a monthly basis, the Collected Funds less (A) the Servicing Fee, (B) the
amount of any funds which MFS is required to return to a Customer for any reason
including, without limitations, the Customer's bankruptcy or an erroneous
payment, and (C) any other amounts due to MFS which may be offset pursuant to
the terms of this Agreement, and (xiii) perform such other duties and furnish
such reports as are reasonable and customary for billing agents in California.
(b) SELLER shall fully cooperate with MFS in MFS's performance of the
foregoing duties. Notwithstanding the generality of the foregoing, SELLER agrees
that it will submit to MFS in a timely manner, each of its Servicing Contracts
including the credit statement, the executed Contract, all supporting
documentation, the current balance and the date of the next payment in order to
enable MFS to arrange for the periodic servicing of such Servicing Contract.
(c) MFS shall use the same degree of care in performing the services
for the Servicing Contracts that it uses in processing similar payments and data
for its own use. MFS shall be liable only for its negligence or willful
misconduct in the performance of its duties hereunder.
(d) In the event any legal action or other proceeding is brought
relating to any of the Servicing Contracts, MFS will deliver to SELLER promptly
after SELLER's request therefor, such papers as MFS may have in its possession
that SELLER deems relevant to such action, and SELLER shall be obligated to
indemnify MFS pursuant to the terms of Section 8.
(e) MFS may at any time, in its sole discretion, withdraw from
administering and servicing any or all Servicing Contracts.
(f) SELLER acknowledges and agrees MFS's rights with respect to the
Service Contracts shall serve as additional collateral for the security
interest, and in accordance therewith, MFS shall be entitled to retain all
Service Contracts until such time as all amounts due MFS under all Purchased
Contracts have been paid in full.
10. MFS'S RIGHTS TO DEAL WITH CONTRACTS. MFS shall have the right to deal
with all Contracts and Customers in the sole exercise of its business judgment,
and without limiting the generality of the foregoing, may do the following
without notice to or consent by SELLER, but only for its own account and without
effect on SELLER reserves or recourse: (a) amend any Contract or renew or extend
the time for payment or performance or grant any other indulgence to any
Customer; (b) make any settlements or compromises therewith; (c) demand
additional collateral or release any collateral securing such Contract; (d)
restructure, defer or otherwise alter payment terms of such Contract; and (e)
transfer or assign any of its rights or obligations in regard of any Contract
without the prior written consent of SELLER. MFS'S and SELLER's rights and
obligations hereunder shall remain unaffected by any such activities.
11. COVENANTS OF SELLER. During the Term hereof, SELLER agrees to: (a)
cooperate with MFS in giving notice to the Customer of the assignment of the
Purchased Contract; (b) comply with all of SELLER's representations, warranties
and other statutory and contractual obligations to the Customer; (c) in the
event SELLER receives any payment on a Contract, SELLER shall promptly forward
such payment to MFS and SELLER hereby irrevocably appoints MFS its
attorney-in-fact to act in its name and stead in regard of the Contracts,
including without limitation, the right to endorse or sign SELLER's name on all
checks, collections, receipts or other documents with regard to the Contracts,
as MFS deems necessary or appropriate to protect MFS'S right, title and interest
in and to the Contract and any security intended to be afforded thereby, (e)
give MFS written notice of any Default hereunder or any claim which might
adversely affect the rights of MFS hereunder; (f) conduct its business in
accordance with sound business practices and standards and perform and fulfill
all obligations to Customers under Contracts and related marketing materials,
brochures and/or agreements delivered to Customers; (g) maintain all licenses
and authorizations required by all applicable regulatory authorities; (h)
secure, maintain and provide evidence of liability insurance in amounts as may
be required by MFS; and (i) promptly deliver to MFS such information concerning
the financial or other condition of SELLER as MFS may reasonably request.
12. DEFAULT AND REMEDIES. Upon the occurrence of a Default by or with
respect to SELLER following thirty (30) days' notice from MFS to SELLER and a
SELLER's failure thereafter to cure, MFS may exercise any or all of the
following remedies in addition to any other remedies available to MFS under
applicable law: (a) declare all amounts payable hereunder to MFS to be
immediately due and payable (including the Servicing Fees and any amounts due
with respect to the repurchase of Purchased Contracts) and withdraw and offset
such amount from and against the Reserve Account,the Collected Funds and/or any
other amounts due to SELLER hereunder; (b) require the repurchase of any or all
of the Purchased Contracts; (c) terminate this Agreement; (d) substitute other
7
new Contracts delivered by SELLER for purchase for the defaulted Purchased
Contract, in like amount, automatically without the prior written consent of
SELLER, provided that MFS shall give SELLER written notice of such substitution;
or (e) exercise all remedies provided to a secured party by this Agreement
and/or by the Uniform Commercial Code in effect from time to time or any other
applicable law, including, without limitation, the right to take possession of
any collateral and to use such collateral in the operation of Seller's business
pursuant to the appointment of a receiver or trustee for Seller's business.
13. FULL RECOURSE BY SELLER; GUARANTY OF SELLER'S OBLIGATIONS; ADDITIONAL
SECURITY. MFS may, at its option and in its sole discretion, condition its
execution of this Agreement upon SELLER providing to MFS certain additional
protections against losses including, without limitation, (i) a condition that
SELLER agree to provide full recourse to MFS for some or all Contracts purchased
hereunder, (ii) a condition that SELLER execute a security agreement pursuant to
which a security interest in certain collateral is granted to MFS to secure
SELLER'S obligations hereunder.
14. MISCELLANEOUS.
(a) MFS and SELLER acknowledge that they are separate entities, each of
which has entered into this Agreement for independent business reasons. There
shall be no restriction on MFS's or SELLER's independent business judgment,
including, but not limited to, decisions regarding selection of a Customer,
pricing, market decisions or credit decisions hereunder.
(b) SELLER further acknowledges and agrees that an assignment, transfer
or sale to a third party of a controlling ownership and/or voting interest in
SELLER shall be deemed to be an assignment under this Agreement, which shall
require the consent of MFS. SELLER further acknowledges and agrees that MFS may
condition any consent to an assignment on both SELLER and the proposed assignee
continuing to be jointly and severally bound by all obligations of SELLER
hereunder. In addition, MFS may withhold its consent to such assignment, in its
sole and absolute discretion, in light of SELLER's unique ability to provide
services and/or products to its Customers who enter into Contracts purchased
hereunder.
(c) The provisions of this Agreement and the representations, rights
and obligations of the parties hereto shall survive the execution and delivery
hereof, and except as they relate to entering into further Contracts, shall
survive the termination of this Agreement.
(d) Any notice required to be given hereunder shall be delivered
personally, shall be sent by first class mail, postage prepaid, return receipt
requested, by overnight courier, or by facsimile, to the respective parties at
the addresses given in the preamble of this Agreement, which addresses may be
changed by the parties by notice conforming to the requirements of this
Agreement. Any such notice deposited in the mail shall be conclusively deemed
delivered to and received by the addressee four (4) days after deposit in the
mail, if all of the foregoing conditions of notice shall have been satisfied.
All facsimile communications shall be deemed delivered and received on the date
of the facsimile, if (1) the transmittal form showing a successful transmittal
is retained by the sender, and (b) the facsimile communication is followed by
mailing a copy thereof to the addressee of the facsimile in accordance with this
paragraph. Any communication sent by overnight courier shall be deemed delivered
on the earlier of proof of actual receipt or the first day upon which the
overnight courier will guarantee delivery.
(e) The parties agree that this Agreement has been executed and
delivered in, and shall be construed in accordance with the internal laws of the
State of California as applied to contracts between California residents entered
into and to be performed wholly within California. SELLER hereby consents to the
jurisdiction of any local, state or federal court located within the County of
San Diego, State of California; provided, however, nothing contained herein
shall preclude MFS from commencing any action hereunder in any Court having
jurisdiction thereof.
(f) If at any time any provision of this Agreement shall be held by any
court of competent jurisdiction to be illegal, void or unenforceable, such
provision shall be of no force and effect, but the illegality or
unenforceability of such provision shall have no effect upon and shall not
impair the enforceability of any other provision of this Agreement.
(g) This Agreement together with all schedules and exhibits attached
hereto, constitutes the entire agreement between the parties concerning the
subject matter hereof and incorporates all representations made in connection
with negotiation of the same. All prior or contemporaneous agreements,
understandings, representation, warranties and statements, oral or written,
relating to the subject matter hereof are superseded and are null and void. The
terms hereof may not be terminated, amended, supplemented or modified orally,
but only by an instrument duly executed by each of the parties hereto. The
recitals set forth above are incorporated herein by this reference.
8
(h) This Agreement and any amendments hereto shall be binding on and
inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
(i) In the event there is any conflict between this Agreement and any
ancillary agreements with respect to any Contract, the terms and conditions of
this Agreement shall control.
(j) If either party commences legal proceedings for any relief against
the other party arising out this Agreement, the losing party shall pay the
prevailing parties legal costs and expenses, including without limitation,
reasonable attorney's fees.
(k) This Agreement may be executed in one or more identical
counterparts, all of which shall together constitute one and the same instrument
when each party has signed one counterpart. To them as much extent permitted by
applicable law, this Agreement may be executed by facsimile, with original
signatures to immediately follow by overnight courier.
(l) Additional terms of this Agreement, all of which are hereby
incorporated herein by this reference, are set forth in the following schedules,
addenda, exhibits or riders attached hereto:
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized representatives on the date first above
written.
SELLER: MFS:
COLLEGE BOUND STUDENT ALLIANCE, INC. MONTEREY FINANCIAL SERVICES, INC.
------------------------------------- ---------------------------------
and its subsidiary COLLEGE PARTNERSHIP, INC. a(n) California Corporation
-------------------------------------------- ---------------------------
By: By:
-------------------------------
Title:President Title:President
--------- ---------
9
SCHEDULE "A"
TO RECEIVABLES PURCHASE AGREEMENT
DATED June 20, 2001
-------------
BETWEEN MONTEREY FINANCIAL SERVICES, INC.
AND
COLLEGE BOUND STUDENT ALLIANCE, INC.
------------------------------------
and its subsidiary COLLEGE PARTNERSHIP, INC.
--------------------------------------------
EXHIBIT A
FORM OF IRREVOCABLE ASSIGNMENT
FOR VALUE RECEIVED, the undersigned COLLEGE BOUND STUDENT ALLIANCE, INC. and its
subsidiary COLLEGE PARTNERSHIP, INC. , (the "Assignor") hereby sells, assigns
and transfers unto MONTEREY FINANCIAL SERVICES, INC., (MFS) a California
corporation ("Assignee"), its successors and assigns, all of Assignor's right,
title and interest in and to the contracts, promissory notes, security
agreements, membership agreements, instruments and accounts receivable (each, a
"Contract" and collectively, the "Contracts") described on the attached Annex A,
together with the property described therein, if any, and all rights and
remedies thereunder, including all guaranties thereof or collateral security
therefor, without recourse or warranty except as provided herein. Assignor
authorizes Assignee to collect any and all installments and payments due on each
Contract and to take action thereunder which Assignor might otherwise take with
respect to each Contract. This Assignment is being delivered pursuant to and
upon all of the representations, warranties, covenants and agreements on the
part of the undersigned Assignor contained in that certain Receivables Purchase
Agreement, dated as of June 20, 2001 (the "Agreement") between Assignor and
Assignee, which Agreement contains certain representations, warranties and
covenants from Assignor to Assignee, including, without limitation, certain
obligations on behalf of the Assignor to repurchase the Contracts or to replace
the Contracts upon the terms and conditions set forth therein. This Assignment
shall be governed by and interpreted in accordance with the terms of the
Agreement and the laws of the State of California. Capitalized terms used herein
which are not defined herein shall have the meanings set forth in the Agreement.
Assignee may, without notice to Assignor, enter into any settlement,
forbearance or other variation in terms in connection with any Contract, or
discharge or release the obligations of the Obligor or other person, by
operation of law or otherwise, without affecting Assignor's liability hereunder,
or any other rights of Assignor including, but not limited to all rights of
Assignor under the agreement, and that any settlement, forbearance, or other
variation by Assignee or its assigns shall not cause Assignor's Repurchase Price
to be greater than it would have been in the absence of the settlement,
forbearance, or other variation. Assignee's failure or delay in enforcing any
right hereunder does not constitute a waiver of that right. Assignor shall not
make any collections or repossessions with respect to the Contracts.
Assignor hereby certifies on and as of the date hereof (a) that each and
every representation and warranty of the undersigned contained in the Agreement
is true and correct on and as of the date hereof in all material respects with
the same force and effect as if originally expressed on and as of the date
hereof and (b) that each of the conditions set forth in the Agreement with
respect to the purchase of the Contracts hereunder has been fulfilled or waived
on the date hereof.
Assignor does not delegate and Assignee shall not be required to assume any
of the duties, responsibilities, liabilities or obligations of Assignor under
any Contract assigned hereunder and Assignor shall remain liable therefor
notwithstanding the assignment contained herein.
IN WITNESS WHEREOF, the undersigned has executed this Limited Recourse
Assignment to be duly executed this _______ day of ____________________, 2001.
COLLEGE BOUND STUDENT ALLIANCE, INC.
------------------------------------
and its subsidiary COLLEGE PARTNERSHIP, INC.
--------------------------------------------
By:
Title:
A-1
FORM OF FULL RECOURSE ASSIGNMENT
FOR VALUE RECEIVED, the undersigned COLLEGE BOUND STUDENT ALLIANCE, INC.
and its subsidiary COLLEGE PARTNERSHIP, INC. (the "Assignor") hereby sells,
assigns and transfers unto MONTEREY FINANCIAL SERVICES, INC., (MFS) a California
corporation ("Assignee"), its successors and assigns, all of Assignor's right,
title and interest in and to the contracts, promissory notes, security
agreements, membership agreements, instruments and accounts receivable (each, a
"Contract" and collectively, the "Contracts") described on the attached Annex A,
together with the property described therein, if any, and all rights and
remedies thereunder, including all guaranties thereof or collateral security
therefor, without recourse or warranty except as provided herein. Assignor
authorizes Assignee to collect any and all installments and payments due on each
Contract and to take action thereunder which Assignor might otherwise take with
respect to each Contract. This Assignment is being delivered pursuant to and
upon all of the representations, warranties, covenants and agreements on the
part of the undersigned Assignor contained in that certain Receivables Purchase
Agreement, dated as of June 20, 2001 (the "Agreement") between Assignor and
Assignee, which Agreement contains certain representations, warranties and
covenants from Assignor to Assignee, including, without limitation, certain
obligations on behalf of the Assignor to repurchase the Contracts or to replace
the Contracts upon the terms and conditions set forth therein. This Assignment
shall be governed by and interpreted in accordance with the terms of the
Agreement and the laws of the State of California. Capitalized terms used herein
which are not defined herein shall have the meanings set forth in the Agreement.
In addition to the foregoing, Assignor agrees that if any installment on a
Contract becomes due and remains unpaid for more than sixty (60) days, or if a
Customer otherwise fails to perform in accordance with the Contract terms, or if
a Customer becomes insolvent or makes an assignment for the benefit of
creditors, or if a petition for a receiver or in bankruptcy is filed by or
against any Customer, then in any of such events, Assignor will, within thirty
(30) days after Assignor's written notice of the applicable Contract and demand
to Assignor, either (i) repurchase the Purchased Contract to which the default
or bankruptcy relates in lawful money of the United States of America for a
price equal to the Repurchase Price; or (ii) to replace the Purchased Contract
to which the default relates by assigning to Assignee an undivided interest in
and to a Contract owned by Assignor with a principal balance identical to the
Repurchase Price. In such event, Assignee agrees to reassign the Purchased
Contract to Assignor, AS IS, WHERE IS, WITHOUT RECOURSE OR WARRANTY OF ANY KIND
(except that Assignee shall represent and warrant that it owns the applicable
Purchased Contract and it has not transferred the applicable Purchased Contract
to a third party).
Assignee may, without notice to Assignor, enter into any settlement,
forbearance or other variation in terms in connection with any Contract, or
discharge or release the obligations of the Obligor or other person, by
operation of law or otherwise, without affecting Assignor's liability hereunder,
except that any settlement, forbearance, or other variation by Assignee or its
assigns shall not cause Assignor's Repurchase Price to be greater than it would
have been in the absence of the settlement, forbearance, or other variation.
Assignee's failure or delay in enforcing any right hereunder does not constitute
a waiver of that right. Assignor shall not make any collections or repossessions
with respect to the Contracts.
Assignor hereby certifies on and as of the date hereof (a) that each and
every representation and warranty of the undersigned contained in the Agreement
is true and correct on and as of the date hereof in all material respects with
the same force and effect as if originally expressed on and as of the date
hereof and (b) that each of the conditions set forth in the Agreement with
respect to the purchase of the Contracts hereunder has been fulfilled or waived
on the date hereof.
Assignor does not delegate and Assignee shall not be required to assume any
of the duties, responsibilities, liabilities or obligations of Assignor under
any Contract assigned hereunder and Assignor shall remain liable therefor
notwithstanding the assignment contained herein.
A-2
IN WITNESS WHEREOF, the undersigned has executed this Limited Recourse
Assignment to be duly executed this _______ day of _______________, 2001.
SELLER: MFS:
COLLEGE BOUND STUDENT ALLIANCE, INC. MONTEREY FINANCIAL SERVICES, INC.,
------------------------------------ ----------------------------------
and its subsidiary COLLEGE PARTNERSHIP, INC. a California Corporation
-------------------------------------------- ------------------------
By: By:
-----------------------------------------
President Xxxxxx X. Xxxxxxx, President
Date: Date:
--------------------------------------- -----------------------------
A-3
ADDENDUM "A"
dated June 20, 2001
TO RECEIVABLES PURCHASE AGREEMENT SCHEDULE "A"
dated June 20, 2001
-------------
BETWEEN: MONTEREY FINANCIAL SERVICES, INC.,
AND
COLLEGE BOUND STUDENT ALLIANCE, INC.
------------------------------------
and its subsidiary COLLEGE PARTNERSHIP, INC.
--------------------------------------------
* * * * *
COLLEGE BOUND STUDENT ALLIANCE, INC. and its subsidiary COLLEGE PARTNERSHIP,
INC. (Client), agrees upon the following:
Client agrees to keep the finance portfolio and the billing portfolio at a
minimum 1:1 dollar ratio which will go into effect after the first bulk
purchase (which requires a 1:2 ratio, finance and billing) and continue
until there is a zero balance in the finance portfolio.
* All other terms remain the same *
MONTEREY FINANCIAL SERVICES, INC. COLLEGE BOUND STUDENT ALLIANCE, INC.
--------------------------------- ------------------------------------
a California Corporation and its subsidiary COLLEGE PARTNERSHIP, INC.
------------------------ --------------------------------------------
Signed: Signed:
--------------------------
Xxxxxx X. Xxxxxxx Print:
President
Title:
Dated: Dated:
---------------------------
A-4
