ACCOUNT PURCHASE AGREEMENT
EXHIBIT
10.1
DATED
AND EFFECTIVE AS OF January 15, 2010
BY AND
BETWEEN
|
SELLER:
|
Performance Capital Management,
LLC
|
SELLER
INFORMATION:
|
|
ADDRESS:
|
0000
Xxxxxxx Xx Xxxxx 000
|
|
|
Xxxxx
Xxxx, XX 00000
|
|
TELEPHONE
NO.:
|
000-000-0000
|
FAX
NO.:
AND
|
BUYER:
|
Xxxxxxxx
Financial Group, LLC
|
|
BUYER
INFORMATION:
|
|
|
ADDRESS:
|
0000
Xxxx Xxxxxx Xxxxxxx
|
|
|
Xxxxxxxx
Xxxxx, XX 00000
|
|
TELEPHONE
NO.:
|
000-000-0000
|
|
|
FAX
NO.:
|
000-000-0000
|
CLOSING
DATE: January 15, 2010
PURCHASE
PRICE: $925,000.00
Page
1
THIS
ACCOUNT PURCHASE AGREEMENT is entered into effective January 15, 2010, by
and between Performance Capital Management, LLC (“Seller") and Xxxxxxxx
Financial Group, LLC ("Buyer"). Seller
and Buyer are more specifically identified on the cover page to this Agreement,
which is incorporated herein
RECITALS:
WHEREAS,
Buyer reviewed and evaluated the Accounts and Account Information, and Buyer submitted the
winning bid to purchase the Accounts from Seller for the consideration and under
the express terms, provisions, conditions and limitations as set forth herein;
and
WHEREAS,
Seller desires to sell and Buyer desires to buy the Accounts; and
WHEREAS,
Seller is willing, subject to the express terms, provisions, conditions,
limitations, waivers and disclaimers as may be expressly set forth herein, and
in that certain Confidentiality Agreement heretofore executed by Buyer (or
Buyer’s agent/reviewer) with Seller, all of the terms and conditions of which
are expressly incorporated herein and made a part of Buyer’s representations to
Seller herein, to sell, transfer, assign and convey to Buyer all of Seller's
right, title and interest, in, to and under the Accounts.
NOW,
THEREFORE, in
consideration of the premises, the mutual promises herein set forth and other
valuable considerations, the receipt and sufficiency of which is hereby
acknowledged, Seller and Buyer agree as follows:
ARTICLE
I - DEFINITIONS
For
purposes of this Agreement, the following terms shall have the meanings
indicated:
"Account(s)" means: (a) the
obligations evidenced by any Evidence of Indebtedness or any deficiency
thereunder, consisting primarily of charged-off credit accounts and similar
non-commercial bad consumer debts that are in default, non-performing or
underperforming and that have been sold off by the original issuer; (b) any
rewrite contracts; (c) any judgments founded upon any such obligations, or other
Evidence of Indebtedness, to the extent attributable thereto, and any lien
arising therefrom; and (d) the proprietary interest of Seller in any Account, or
Evidence of Indebtedness forming the subject matter of any litigation or
bankruptcy to which Seller is a party or claimant.
"Account
File" means, with respect to each Account included on the Account
Schedule, all available documents and instruments, whether originals or
photocopies, in the possession of Seller.
"Account
Schedule" means the schedule, attached as Exhibit
"A” hereto,
setting forth the following information concerning each Account: the Account
numbers, if any, for Seller, the name of the Obligor, and the Approximate
Current Balance of each of the Accounts. The Account Schedule shall
be attached as an Exhibit to the Xxxx of Sale.
"Agreement"
means this Account Purchase Agreement, including the cover page and all Addenda,
Exhibits and Schedules hereto.
“Approximate
Current Balance” means the approximate unpaid balance in U. S. Dollars
for each Account identified in the Account Schedule attached hereto as Exhibit
“A” and
specified as either the current balance or the current principal
balance. This may include interest (accrued or unaccrued), costs, fees and
expenses. It is possible that payments may be made by or on behalf of
any obligor prior to the Cut-Off Date or the date of this Agreement which are
not reflected in the Approximate Current Balance. This figure may
also reflect payments made by or on behalf of any Obligor which have been
deposited and credited to the Approximate Current Balance of such Account, but
which may later be returned uncollected due to insufficient funds or other
reasons.
"Xxxx of
Sale and Assignment" means the document to be delivered to Buyer on or
before the Transfer Date, in the form attached hereto as Exhibit
"B", together
with the attached Account Schedule.
"Claim"
means any claim, demand or legal proceeding.
“Cut-off
Date” means
December 1, 2009.
"Evidence
of Indebtedness" means with respect to each Account, the original or any
copy (including any microfilm, microfiche, photocopy or machine readable format)
of: (a) a promissory note, rewrite contract, loan application, statements,
record of debt, account, agreement, document or instrument and any other
evidence of debt owed by an obligor, which a creditor could reasonably rely in
asserting that the same represents a balance due and owing, any Account payment
history data or computer printouts, creditor notations or any other Account
summary (b) the spreadsheet listing the Accounts and balances which is a
schedule to the Xxxx of Sale; (c) any such documents relating to any guarantor
or co-maker on an Account (if any); and (d) any obligation or other evidence
extending or renewing the Account.
Page
2
"Obligor"
means the current and unreleased obligor(s) on an obligation or on the Evidence
of Indebtedness, including, without limitation, any and all guarantors, sureties
or other persons or entities liable on an Account.
"Purchase
Price" means the amount bid by Buyer to purchase the Accounts as set
forth on the Letter of Intent and reproduced on the cover page of this Agreement
and incorporated herein.
"Seller"
means Performance Capital Management, LLC.
"Transfer
Date" means the date upon which Seller transfers the Accounts to Buyer
and makes available for pick-up by, or delivery of the Transfer Documents to
Buyer, which Transfer Date shall be at Seller's discretion on any date after
full payment by Buyer of the Purchase Price but not later than January 15,
2010.
"Transfer
Documents" means all documents that are required to be delivered on the
Transfer Date by Seller or the Buyer pursuant to Article
III.
ARTICLE
II - PURCHASE AND SALE OF THE ACCOUNTS
Section
2.1. Agreement
to Sell and Purchase Accounts. Seller agrees to
sell, and Buyer agrees to purchase, the Accounts described in the Account
Schedule, subject to the terms, provisions, conditions, limitations, waivers and
disclaimers set forth in this Agreement. The Accounts shall be
transferred and assigned pursuant to the Xxxx of Sale and
Assignment.
Section
2.2. Agreement
to Assign/Buyer's Right to Act. On the Transfer Date, Seller
shall deliver to Buyer a Xxxx of Sale and Assignment, in the form of Exhibit
"B" hereto,
executed by an authorized representative of Seller, which Xxxx of Sale and
Assignment shall sell, transfer, assign, set-over, quitclaim and convey to Buyer
all right, title and interest of Seller in and to each of the Accounts, the
proceeds of the Accounts received by Seller from and after the Cut-off Date, if
any, and the Account Files. The Account Schedule shall be attached as
an exhibit to the Xxxx of Sale and Assignment, identifying the Accounts conveyed
to the Buyer. Buyer shall have no right to communicate with any
obligor or otherwise take any action with respect to any Account or any Obligor
until the Transfer Date.
Section
2.3. Account
Schedule. Seller has provided as Exhibit
"A” hereto
the Account Schedule setting forth all of the Accounts, which Buyer has agreed
to purchase and Buyer acknowledges that it has reviewed the same to its full
satisfaction.
Section
2.4. Purchase
Price/Payment. Buyer shall pay to Seller for the Accounts to
be sold hereunder, the total sum of $925,000.00, as and for the Purchase Price,
payable as follows:
(a) Deposit. Buyer’s
deposit ($112,859.27) heretofore received. The deposit consists of
collections received since the cut-off date. The deposit shall be
non-interest bearing and shall be non-refundable.
(b) Balance. On
or before 5:00 p.m., (EST), January 15, 2010, Buyer shall pay to Seller the
balance of the Purchase Price ($812,140.73), in full. All of such
funds must be paid in immediately available funds in U. S. Dollars by wire
transfer as instructed by Seller.
Section
2.5. Payments
Received Before/After Cut-Off Date; Adjustments;
Remittance. If Seller (or original creditor) receives any
payments or other consideration distributed or paid by or on behalf of an
Obligor with respect to an Account (hereinafter "payment") prior to or on the
Cut-off Date, Seller shall be entitled to accept and retain such payment in
full, except to the extent that the Approximate Current Balance for any such
Account did not reflect a reduction for any such payment, in which event Seller
shall retain the payment and Buyer shall be given a credit on such Account equal
to the bid percentage (as a percent of the Approximate Current
Balance) bid by Buyer times the amount of such payment. Payments on
Accounts received by Seller after the Cut-off Date shall belong to Buyer, and
Seller shall pay over and/or deliver such payments to Buyer (without recourse
and without interest thereon from Seller) not later than thirty days after
receipt.
ARTICLE
III - TRANSFER OF ACCOUNTS AND ACCOUNT FILES
Section
3.1. Assignment
of Accounts and Account Files. On the
Transfer Date, Seller shall execute and deliver to Buyer the Xxxx of Sale and
Assignment and such other documents necessary, proper or appropriate for the
legal transfer of its right, title and interest in and to the Accounts, and
shall deliver or make available the Account Files as set forth in Section 3.2
herein for all Accounts purchased pursuant to this Agreement (collectively, the
“Transfer Documents”). The Xxxx of Sale and Assignment shall have the
same effect as an individual and separate xxxx of sale and assignment of each
and every Account referenced therein. The responsibility and cost of
preparing and executing the Xxxx of Sale and Assignment and such assignments or
such other documents as Seller deems necessary, proper and appropriate, to be
executed and made available on the Transfer Date shall be borne by
Seller. However, Buyer shall be responsible for the recording and/or
filing of the originals of any such assignments as the same may be necessary,
proper or appropriate and shall pay all costs, fees and expenses for such
recording and/or filing. Seller reserves the right to retain copies
of all or any portion of the Account Files. Buyer shall bear the
expenses of transportation of such Transfer Documents and of the other
documents, instruments and files to be delivered to Buyer pursuant to this
Article III. The Seller through Xxxx Xxxxxxxx shall facilitate
executing and delivering to the Buyer an originally executed Assignment of
Judgment for any and all Judgment accounts within sixty (60) days of this
Agreement with the Buyer reimbursing reasonable expenses for
same.
Page
3
Section
3.2. Account
Documents. In the event Buyer requests Seller to execute and
deliver assignments or other documents in addition to the initial Transfer
Documents, Buyer shall furnish Seller with copies of the proposed additional
assignments or other documentation for review, analysis, approval, amendment and
execution. The responsibility for all costs, fees and expenses of
preparing and filing or recording any such additional assignments or such other
documentation shall be the sole responsibility of Buyer.
Seller
shall provide Buyer with information concerning availability and fees for
document requests from the original creditors.
Seller
will provide Buyer with a power of attorney to execute any documents necessary
to effect a transfer or assignment to Buyer of any existing judgments or other
legal actions on any purchased Accounts.
In
compliance with the Fair Credit Reporting Act, Seller will report to each of the
credit bureaus it uses that the Accounts have been sold to Buyer, to the extent
that each bureau provides such reporting.
ARTICLE
IV - SERVICING
Section
4.1. Servicing
After Transfer Date. As of the Transfer Date, all
rights, obligations, liabilities and responsibilities with respect to the
servicing of the Accounts shall pass to Buyer, and Seller shall be discharged
from all liability or obligation therefor.
Section
4.3. Servicer
Requirements. Buyer shall be responsible for complying
with all state and federal laws, if any, with respect to the ownership and/or
servicing of any of the Accounts from and after the Transfer Date including,
without limitation, the obligation to notify any obligor or guarantor of the
transfer of servicing rights from Seller to Buyer. Further, Seller
shall have the right, but not the obligation, to mail a notice addressed to any
obligor or guarantor, at the address shown in its records, notifying such
obligor or guarantor of the transfer of any Account from Seller to
Buyer.
ARTICLE
V – Intentionally left blank (RECALL OF ACCOUNTS AND REFUND OPTION OF
SELLER)
ARTICLE VI – Intentionally left blank
(BUYER’S LIMITED RIGHT TO REQUIRE SELLER TO REPURCHASE CERTAIN ACCOUNTS
AFTER TRANSFER
DATE)
ARTICLE
VII - REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BUYER
Buyer
hereby makes the following representations, warranties and covenants, as of the
date of this Agreement and as of the Transfer Date, all of which shall survive
the Transfer Date, and the execution and delivery of the Transfer
Documents:
Section
7. 1. Identity
of Buyer; Independent Evaluation. Buyer warrants and
represents that it is a sophisticated, informed Buyer purchasing the Accounts
for its own account, and that it has knowledge, experience and expertise in the
buying, valuing, managing, collecting and pursuing of legal remedies to collect
and realize upon under-performing and/or non-performing consumer credit accounts
and other bad consumer loans such as the Accounts in the ordinary course of its
business. Buyer further warrants, represents and covenants that it
has knowledge and experience in financial and business matters that enable it to
evaluate the merits and risks of the transactions contemplated by this
Agreement. The Buyer has made such independent investigations as it
deems to be warranted into the nature, validity, enforceability, collectibility,
and value of the Accounts, and all other facts it deems material to its purchase
and is entering into this transaction solely on the basis of that investigation
and the Buyer's own judgment.
Section
7.2. No
Collusion. Neither the Buyer nor any of its officers,
partners, agents, representatives, employees or parties in interest has in any
way colluded, conspired, connived or agreed directly or indirectly with any
other bidder, firm or person to submit a collusive or sham bid, or any bid other
than a bona fide bid, or to fix prices.
Section
7.3. Authorization. Buyer is duly and
legally authorized to enter into this Agreement and has complied with all laws,
rules, regulations, charter provisions and bylaws to which it may be subject and
that the undersigned representative is authorized to act on behalf of and
bind Buyer to the terms of this Agreement.
Section
7.4. Binding
Obligations. Assuming due authorization, execution and
delivery by each party hereto, this Agreement and all of the obligations of
Buyer hereunder are the legal, valid and binding obligations of Buyer,
enforceable in accordance with the terms of this Agreement, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally and
by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
Page
4
Section
7.5. No
Breach or Default. The execution and delivery of this
Agreement and the performance of its obligations hereunder by Buyer will not
conflict with any provision of any law or regulation to which Buyer is subject
or conflict with or result in a breach of or constitute a default under any of
the terms, conditions or provisions of any agreement or instrument to which
Buyer is a party or by which it is bound or any order or decree applicable to
Buyer.
Section
7.6. Due
Diligence. Buyer has been urged, invited and directed to
conduct such due diligence review and analysis of the Account Information and
related information, together with such records as are generally available to
the public from local, county, state and federal authorities, record-keeping
offices and courts (including, without limitation, any bankruptcy
courts in which any obligor(s) , guarantor or surety, if any, may be subject to
any pending bankruptcy proceedings), as the Buyer deemed
necessary, proper or appropriate in order to make a considered
decision with respect to the purchase and acquisition of the
Accounts.
Section
7.7. Accounts
Sold As Is. BUYER ACKNOWLEDGES AND AGREES THAT SELLER HAS
NOT AND DOES NOT REPRESENT, WARRANT OR COVENANT THE NATURE, ACCURACY,
COMPLETENESS, ENFORCEABILITY OR VALIDITY OF ANY OF THE ACCOUNTS AND/OR ACCOUNT
FILES. ALL DOCUMENTATION, INFORMATION, ANALYSIS AND/OR CORRESPONDENCE, IF
ANY, WHICH IS OR MAY BE SOLD, TRANSFERRED, ASSIGNED AND CONVEYED TO BUYER WITH
RESPECT TO ANY AND ALL ACCOUNTS IS DONE SO ON AN "AS IS, WHERE IS"
BASIS, WITH ALL FAULTS.
Section
7.8. Economic
Risk. The Buyer represents, warrants and covenants that all
transactions contemplated by this Agreement do not involve, nor are they
intended in any way to constitute, the sale of a "security" or "securities"
within the meaning of any applicable securities laws, and none of the
representations, warranties or agreements of the Buyer shall create any
inference that the transactions involve any "security" or
"securities". The Buyer acknowledges, understands and agrees that the
acquisition of these Accounts involves a high degree of risk and they are
suitable only for persons or entities of substantial financial means who have no
need for liquidity and who can hold the Accounts indefinitely or bear the
partial or entire loss of the value.
Section
7.9. Confidentiality
Agreement. Buyer is in full
compliance with its obligations under the terms of any Confidentiality Agreement
executed by Buyer (or its agent, Reviewer) to review the information made
available by Seller or its agents, and the terms thereof are hereby incorporated
herein subject to Buyer's ownership rights and interests acquired by Buyer
hereunder.
Section
7.10. Identity. Buyer
is a "United States person" within the meaning of Paragraph 7701 (a) (30) of the
Internal Revenue Code of 1986, as amended.
Section
7.11. No
Affiliation With Seller. Except as may have been previously
disclosed to Seller in writing, Buyer is not or has not been affiliated,
directly or indirectly, with Seller, or any of its Servicing
Agents.
Section
7.12. Assistance
of Third Parties. Buyer hereby agrees, acknowledges, confirms
and understands that Seller shall not have any responsibility or liability to
Buyer arising out of or related to any third parties’ failure to assist or
cooperate with Buyer. In addition, Buyer is not relying upon the
continued actions or efforts of Seller or any third party in connection with its
decision to purchase the Accounts. The risks attendant to the
potential failure or refusal of third parties to assist or cooperate
with Buyer and/or Seller in the effective transfer, assignment, and conveyance
of the purchased Accounts, and/or assigned rights shall be borne by
Buyer.
Section
7.13. Enforcement/Legal
Actions. Buyer agrees and represents that Buyer shall not
institute any enforcement or legal action or proceeding in the name of Seller,
or make reference to any of the foregoing entities in any correspondence to or
discussion with any particular Obligor regarding enforcement or collection of
the Accounts other than to identify Seller as the previous
owner. Buyer also warrants and covenants not to take any enforcement
action against any Obligor, which would be commercially
unreasonable. Buyer shall not misrepresent, mislead, deceive, or
otherwise fail to adequately disclose to any particular Obligor or guarantor the
identity of Buyer as the owner of the Accounts.
Section
7.14. Status
of Buyer. The Buyer represents, warrants and certifies to the
Seller that it is (a) a financial institution; (b) an institutional purchaser
including a sophisticated, informed purchaser that is in the business of buying
or originating or collecting Accounts of the type being purchased or that
otherwise deals in such Accounts in the ordinary course of the Buyer's business;
or (c.) an entity or individual that is defined as an accredited investor under
the federal securities laws.
Section 7.15. Non-Consumer
Transaction; Waiver. The Buyer
represents and warrants to the Seller that this is not a consumer transaction,
within the meaning of any applicable federal, state or local statute or common
law, and that Buyer has knowledge and experience in financial and
business-matters that enables Buyer to evaluate the merits and risks of the
transactions contemplated hereby. Further, the Buyer represents and warrants to the Seller
that it is not in a disparate bargaining position relative to the
Seller. The Buyer
hereby waives, to the
maximum extent permitted by law, any and all rights, benefits and remedies under any state
deceptive trade practices consumer protection act, with respect to any
matters pertaining to this Agreement and the transactions
contemplated hereby.
Page
5
Section
7.16 No
Brokers’ or Finders’ Fee. Buyer has not employed any
investment banker, broker or finder in connection with the transaction
contemplated hereby who might be entitled to a fee or commission from the Seller
upon consummation of the transaction contemplated in this
Agreement.
ARTICLE
VIII - LIMITED REPRESENTATION AND WARRANTY OF THE SELLER
This sale of Accounts is
made without recourse, and without any representation or warranty, express or
implied, of Seller, except solely that Seller does hereby represent and warrant
that Seller is the owner and holder of the Evidence of Indebtedness for each of
the Accounts. Any other provisions of this Agreement to the
contrary notwithstanding, BUYER’S PURCHASE OF THE ACCOUNTS HEREUNDER IS
FINAL AND WITH THE SOLE EXCEPTION OF SELLER’S LIMITED WARRANTY OF TITLE TO
THE EVIDENCE OF INDEBTEDNESS FOR EACH OF THE ACCOUNTS, BUYER
ACCEPTS THE SAME "AS IS-WHERE IS" WITHOUT EXPRESS OR
IMPLIED REPRESENTATIONS OR WARRANTY BY SELLER OF: (A) THE AMOUNT OF THE
PRINCIPAL OR INTEREST
BALANCES OF ANY ACCOUNT OR LOT OF ACCOUNTS; (B) THE COLLECTIBILITY OF ANY
ACCOUNT; (C.) “FITNESS FOR A PARTICULAR PURPOSE;” (D) “MERCHANTABILITY;” OR (E)
ANY OTHER TYPE OR KIND BY SELLER WHETHER ANY SUCH WARRANTY WOULD ARISE BY
STATUTE OR AT COMMON LAW.
Buyer
shall have no "put backs" or similar rights or options regarding the Accounts it
purchases hereunder except under the express provisions of Article VI of this
Agreement. In any event, the Seller’s liability hereunder as to any
Account shall be limited to the repurchase of any such Account under the limited
terms and conditions specified in said Article VI.
ARTICLE
IX - BUYER’S AND SELLER’S INDEMNIFICATION
Section
9.1 Buyer’s
Indemnification of Seller. From and after the date
of this Agreement, Buyer shall indemnify and hold harmless Seller against and
from any and all liability for, and from and against any and all losses or
damages Seller may suffer as a result of, any claim, demand, cost, expense, or
judgment of any type, kind, character or nature (including reasonable attorneys,
fees), which Seller shall incur or suffer as a result of: (a) any act
or omission of Buyer or Buyer's agents in connection with the Accounts and its
purchase of the Accounts pursuant to the Agreement; or (b) the
material inaccuracy or breach of any of Buyer's representations, warranties
or covenants herein; or (c.) any claim by any Obligor or anyone
claiming by, through or under any Obligor or other person liable on any Account
regarding the assignment, subsequent enforcement, servicing or administration of
the Accounts by Buyer from and after the date of this Agreement; or (d) the violation of any statute, regulation or common
law, whether state or federal, by Buyer or Buyer’s agents with respect to an
Account. This indemnification shall survive the execution and
delivery of the Transfer Documents.
Section
9.2 Seller’s
Indemnification of Buyer. From and after the date of this
Agreement, Seller shall indemnify and hold harmless Buyer against and from any
and all liability for, and from and against any and all losses or damages Buyer
may suffer as a result of, any claim, demand, cost, expense, or judgment of any
type, kind, character or nature (including reasonable attorneys' fees), which
Buyer shall incur or suffer as a result of: (a) any act or omission
of Seller or Seller's agents in connection with the Accounts and its purchase of
the Accounts pursuant to the Agreement; or (b) the material
inaccuracy or breach of any of Seller's representations, warranties
or covenants herein; or (c.) any claim by any Obligor or anyone
claiming by, through or under any Obligor or other person liable on any Account
regarding the assignment, subsequent enforcement, servicing or administration of
the Accounts by Seller; or (d) the violation of
any statute, regulation or common law, whether state or federal, by Seller or
Seller’s agents with respect to an Account. This indemnification
shall survive the execution and delivery of the Transfer Documents.
ARTICLE
X – Intentionally left blank (SELLER OR ITS PREDECESSOR AS WITNESS)
ARTICLE
XI - USE OF THE ORIGINAL CREDITOR’S NAME
Section
11.1 Use
of the Original Creditor’s Name. Buyer
and it’s Successors will not use or refer to the Original Creditor’s name for
any purpose relating to any Account including, without limitation, the
promotion, marketing, or advertising of any Account. However, Buyer
may use the Original Creditor’s name for purposes of identifying an Account in
communications with the Account’s cardholder in order to collect amounts
outstanding on the Account and in accordance with Article XII
below. Buyer may use the original creditor and Seller name as the
transferor in any lawsuit filed by buyer.
Page
6
ARTICLE
XII - EFFECT OF ASSIGNMENT TO THIRD PARTIES
Neither
party hereto shall have the right to assign its rights or obligations under this
Agreement to any third party, including subsequent transferees of any
Account. While Buyer shall be free to sell, transfer, or
dispose of any of the Accounts from and after the Transfer Date, the Buyer shall
have no right, at any time after the Transfer Date, to assign or transfer any
its rights under this Agreement to any subsequent transferee of such Account(s)
in whole or in part; any such transfer of the Buyer’s rights in or to the
Accounts shall automatically terminate any warranties, representations,
covenants, or continuing obligations of Seller hereunder; notwithstanding
any such transfer or assignment of Accounts by Buyer,
Buyer shall remain obligated with respect to any of its obligations to Seller
remaining hereunder.
ARTICLE XIII – Intentionally left blank
(NOTICE OF OBLIGOR CLAIMS OR
LITIGATION)
ARTICLE
XIV - CONFORMITY TO LAW; FILES AND RECORDS
Section
14.1. Conformity
to Law. Buyer agrees, at its sole cost and expense, to abide
by all applicable state and federal laws, rules and regulations regarding the
handling, maintenance and servicing of all Accounts and all documents and
records relating to the Accounts purchased hereunder including, but not limited
to, the length of time such documents and records are to be retained and making
any disclosures to Obligors as may be required by law.
Section
14.2 Informational
Tax Reporting. Buyer hereby agrees to perform all obligations
with respect to federal and/or state tax reporting relating to or arising out of
the Accounts sold and assigned pursuant to this Agreement including, without
limitation, the obligations with respect to Forms 1098 and 1099 and backup
withholding with respect to the same, if required, for the year 2009 and
thereafter.
ARTICLE
XV - NOTICES
Unless
otherwise provided for herein, notices and other communications required or
permitted hereunder shall be in writing (including a writing delivered by
facsimile transmission) and shall be deemed to have been duly given (a) when
delivered, if sent by registered or certified mail return receipt requested, (b)
when delivered, if delivered personally, (c.) when received but no later than
the second business day following mailing, if sent by overnight mail or
overnight courier, or (d) when received, if sent by facsimile, in each case to
the parties at the following addresses (or at such other addresses as shall be
specified by like notice):
|
If
to the Buyer:
|
Xxxxxxxx
Financial Group, LLC
|
|
0000
Xxxx Xxxxxx Xxxxxxx
|
|
|
Xxxxxxxx
Xxxxx, XX 00000
|
|
|
Attention: Xxxxxx
X. Cuff
|
|
|
Facsimile
No.: 000-000-0000
|
|
|
If
to the Seller:
|
Performance
Capital Management, LLC
|
|
0000
Xxxxxxx Xx Xxxxx 000
|
|
|
Xxxxx
Xxxx, XX 00000
|
|
|
Attention:
Xxxx Xxxxxxxx
|
ARTICLE
XVI - DISCLAIMER
Buyer,
all successors or assignees thereof and all subsequent transferees of the
Accounts hereby disclaim and waive any right or cause of action they may now or
in the future have against Seller and any and all of its respective officers,
directors, employees, attorneys, agents, predecessors in interest, and
independent contractors as a result of the purchase of the Accounts; provided,
however, that this waiver shall not extend to any liability of Seller arising
from Seller's failure to perform its obligations in accordance with the terms of
this Agreement, as limited to the remedies set forth in Article VI.
ARTICLE
XVII- MISCELLANEOUS PROVISIONS
Section
17.1. Severability. If
any term, covenant, condition or provision hereof is unlawful, invalid, or
unenforceable for any reason whatsoever, and such illegality, invalidity, or
unenforceability does not affect the remaining parts of this Agreement, then all
such remaining parts hereof shall be valid and enforceable and have full force
and effect as if the invalid or unenforceable part had not been
included.
Section
17.2. Rights
Cumulative: Waivers. The rights of each of the parties under
this Agreement are cumulative and may be exercised as often as any party
considers appropriate under the terms and conditions specifically set
forth. The rights of each of the parties hereunder shall not be
capable of being waived or varied otherwise than by an express waiver or
variation in writing. Any failure to exercise or any delay in
exercising any of such rights shall not operate as a waiver or variation of that
or any other such right. Any defective or partial exercise of any of
such rights shall not preclude any other or further exercise of that or any
other such right. No act or course of conduct or negotiation on the
part of any party shall in any way preclude such party from exercising any such
right or constitute a suspension or any variation of any such
right.
Page
7
Section
17.3. Headings. The
headings of the Articles and Sections contained in this Agreement are inserted
for convenience only and shall not affect the meaning or interpretation of this
Agreement or any provision hereof.
Section
17.4. Construction. Unless
the context otherwise requires, singular nouns and pronouns, when used herein,
shall be deemed to include the plural of such noun or pronoun and pronouns of
one gender shall be deemed to include the equivalent pronoun of the other
gender. This agreement shall be deemed to have been written by both
Buyer and Seller and, in the event of an ambiguity, its interpretation shall not
be construed against either party.
Section
17.5. Assignment. Subject
to Article XII, this Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights and benefits hereof, including the Addenda,
Exhibits and Schedules hereto, shall be binding upon, and shall inure to the
benefit of, the undersigned parties and their respective heirs, executors,
administrators, representatives, successors, and assigns.
Section
17.6. Prior
Understandings. This Agreement
supersedes any and all prior discussions and agreements between Seller and
Buyer with respect to the purchase of the Accounts and other matters contained
herein, and this Agreement contains the sole and entire understanding between
the parties hereto with respect to the transactions contemplated
herein.
Section
17.7. Integrated
Agreement. This Agreement
and all Addenda, Exhibits and Schedules hereto constitute the final complete
expression of the intent and understanding of the Buyer and the
Seller. This Agreement shall not be altered or modified except by a
subsequent writing, signed by Buyer and Seller.
Section
17.8. Counterparts;
Fax Signatures. This Agreement
may be executed in any number of counterparts, each of which shall constitute
one and the same instrument, and either party hereto may execute this Agreement
by signing any such counterpart. Fax signatures, bearing the
identification of the sender’s fax machine, shall be treated for all purposes as
original signatures on this Agreement and any notice or other document provided
for herein.
Section
17.9. Non-Merger/Survival. Each and every
covenant hereinabove made by Buyer or Seller shall survive the delivery of the
Transfer Documents and shall not merge into the Transfer Documents, but instead
shall be independently enforceable.
Section
17.10. Governing
Law/Choice of Forum. This Agreement shall be construed, and
the rights and obligations of Seller, and Buyer hereunder determined, in
accordance with the law of the State of Florida, without giving effect to any
choice of law principles. The parties agree that any legal actions
between Buyer and Seller regarding the purchase of the Accounts hereunder shall
be originated in the United States District Court in and for the State of
Florida, Northern District, and Buyer hereby consents to the jurisdiction of
said court in connection with any action or proceeding initiated concerning this
Agreement and agrees that service by mail to the address specified on the cover
page of this Agreement shall be sufficient to confer jurisdiction over Buyer in
such United States District Court. In the event of litigation under
this Agreement, the prevailing party shall be entitled to an award of attorneys,
fees and costs.
Section
17.11. Third-Party
Beneficiaries. This Agreement is for the sole and exclusive
benefit of the parties hereto, and none of the provisions of this Agreement
shall be deemed to be for the benefit of any other person or
entity.
Page
8
Section
17.12. Waiver
of Jury Trial. As a specifically bargained inducement for
Seller to enter into this agreement, and after having the opportunity to consult
counsel, buyer hereby expressly waives the right to trial by jury in any lawsuit
or proceeding relating to this agreement or arising in any way from the
transaction contemplated herein.
IN
TESTIMONY WHEREOF, the parties hereto have executed this Agreement
effective as of the year and day above written.
BUYER: Xxxxxxxx
Financial Group, LLC
By: /s/ Xxxxxx X.
Cuff
Name
(print): Xxxxxx X.
Cuff
Title:
Senior Vice
President
SELLER: Performance
Capital Management, LLC
By: /s/
Xxxxx X.
Xxxxxxxx
Name
(print): Xxxx
Xxxxxxxx
Title: C.O.O
Page
9
EXHIBIT
"A”
ACCOUNT
SCHEDULE
|
Total Balance
|
Total Number of Accounts
|
|
|
$518,976,775.82
|
290,206
|
Page
10
EXHIBIT
"B"
XXXX OF SALE AND ASSIGNMENT OF
ACCOUNTS
Performance
Capital Management, LLC, ("Assignor") hereby absolutely sells, transfers,
assigns, sets-over and conveys to Xxxxxxxx Financial Group, LLC ("Assignee")
without recourse and without representations or warranties, express or implied,
of any type, kind or nature, except solely that Seller does hereby
represent and warrant that Seller is the owner and holder of the Evidence of
Indebtedness for each of the Accounts:
(a) all
of Assignor's right, title and interest in and to each of the Accounts
identified in the Account Schedule attached hereto as Exhibit
"A” (the
"Accounts") , together with all promissory notes or other evidence of
indebtedness, if any, and together with all instruments and documents
constituting the Account Files pertaining to such Accounts, if any;
and
(b) all
principal, interest or other proceeds of any kind with respect to the Accounts
(including but not limited to proceeds derived from the conversion, voluntary or
involuntary, of any of the Accounts into cash or other liquidated property, but
excluding any payments or other consideration received by or on behalf of
Assignor prior to December 1, 2009 with respect to the Accounts.
This Xxxx
of Sale is being executed and delivered pursuant to and in accordance with the
terms and provisions of that certain Account Purchase Agreement made and entered
into by and between the Assignor as Seller, and the Assignee as Buyer dated
January 15, 2010 (the "Agreement"). The Accounts are defined and
described in the Agreement and are being conveyed hereby subject to the terms,
conditions and provisions set forth in the Agreement. Assignor
represents that this Xxxx of Sale has been duly authorized and that the person
signing for same has full power and authority in the premises.
THIS XXXX OF SALE SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO THE CONFLICTS OF
LAWS RULES THEREOF.
DATED:
1
– 19 –
2010
|
Seller: Performance
Capital Management, LLC
|
|
|
By: /s/ Xxxxx
X.
Xxxxxxxx
|
|
|
Name
(print):
Xxxx
Xxxxxxxx
|
|
|
Title: C.O.O
|
STATE OF
____________
SS.
COUNTY OF
__________
The
foregoing instrument was acknowledged before me this _____ day of
____________2010, by ________________ as ____________ on behalf of Performance Capital
Management, LLC.
| ________________________________________ | |
| Signature of Notary Public – State of ____________ | |
| Personally Known ____ Or Produced Identification ____ | VR 1/19/2010 |
| Type of Identification Produced ___________________ |
Page 11
