RECEIVABLES PURCHASE AGREEMENT
This Receivables Purchase Agreement (the "Agreement") is entered into as of
October 14, 1999 by and between MONTEREY FINANCIAL SERVICES., INC. (MFS), a
California Corporation ("MFS"), with its address at 0000 Xxxxxxx xx xx Xxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000 and ELECTIVE INVESTMENTS, INC., a(n) Pennsylvania
Corporation ("SELLER"), with its address at 000 Xxxx 0xx Xxxxxx, Xxxx
Xxxxxxxxxxx, Xxxxxxxxxxxx 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 therefore 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 Offer Documentation Package; 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 when made or,
although true when made, will not be true and correct at the time the products
and/or services related to such Contract are rendered to the Customer; or
(iii) a breach of any term of such Contract, or of any related guaranty or
credit support agreement, 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.
(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) a Uniform
Commercial Code financing statement 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, 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) "Origination Fee" means the one-time fee payable from SELLER to MFS in the
amount set forth on Schedule "A," attached hereto, to cover the expenses of
MFS in reviewing SELLER and this transaction including, without limitation,
expenses in obtaining credit reports concerning SELLER, in obtaining a Dun and
Bradstreet rating concerning SELLER, in performing and title or Uniform
Commercial Code searches concerning SELLER and in the filing of Uniform
Commercial Code financing statements.
(1) "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.
"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.
(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.
2. PURCHASE OF CONTRACTS.
During the Term, MFS shall have the option, but not the obligation, in its
sole discretion, to purchase 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 therefore notwithstanding an
assignment of a Purchased Contract to MFS.
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 (noninterest bearing account) and may be commingled with MFS's
other funds, and (ii) the amount of the Origination Fee which shall be
withheld by MFS from the Purchase Price and/or Servicing Fee of the first
Contract(s) purchased or serviced hereunder until the full Origination Fee has
been paid.
(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 twelve months. MFS shall deliver to SELLER by no later than the
last day of January and July of each year a report which identifies the
remaining amount of the Reserve Account as of January 1 and July 1 of each
year following the initial twelve (12) month minimum period. By no later than
the last day of January and July of each year during the Term of this
Agreement beginning on the first of such dates to occur. 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 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 and the performance
by SELLER of the transactions contemplated hereby have been duly authorized by
all necessary action, including and action required under Seller's governing
instruments;
(3) this Agreement constitutes a legal, valid and binding obligation
of SELLER enforceable in accordance with its terms, without any offsets or
counterclaims;
(4) 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;
(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) each Customer is bona fide and has legal capacity to enter into
such Contract and the signature of the named Customer is genuine;
(10) 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) 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;
(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 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;
(13) SELLER owns each Contract submitted to MFS hereunder free and
clear of any liens, charges, security interests, encumbrances or other
restrictions which may adversely affect MFS's rights with respect thereto,
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) the execution and delivery by SELLER of this Agreement does not
conflict with or constitute a material default with respect to any indenture,
loan agreement, mortgage, lease, deed or other agreement to which it is a
party
or by which it is 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; and
(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 since the date of the latest such financial statements, there has
been no Material Adverse Change in the Financial Condition of SELLER.
(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 Monterey
under all Purchase Contracts.
5. SELLER'S REPURCHASE OBLIGATIONS; MFS'S PROTECTION AGAINST LOSSES UPON
DEFAULT.
(a) If (i) any of SELLER's representations or warranties contained in
this Agreement shall be materially untrue or incorrect; (ii) any of SELLER's
covenants and agreements contained herein shall be breached by SELLER with
respect to any particular Purchased Contract(s) and, if capable of being
cured, SELLER fails to cure such breach within thirty (30) days after written
notice thereof; (iii) the Customer does not receive the products and/or
services contracted for in the Contract; (iv) the Customer cancels the
Contract pursuant to the terms of such Contract; or (v) the Customer is due a
tuitional refund pursuant to applicable state law, SELLER unconditionally
agrees that it will, within thirty (30) days after MFS's written notice and
demand to SELLER, either (x) repurchase the Purchased Contract(s) affected by
such breach for a price equal to the Repurchase Price; or (y) replace the
Purchased Contract affected by such breach by assigning to MFS all of its
right, title and interest in and to Contract(s) owned by SELLER with a
principal balance(s) identical to the Repurchase Price, which substituted
Contracts shall be subject to review and approval of MFS in its sole
discretion. In such event, MFS agrees to reassign the applicable Purchased
Contract to SELLER, AS IS, WHERE IS, WITHOUT RECOURSE OR WARRANTY OF ANY KIND
(except that MFS shall represent and warrant that it owns the applicable
Purchased Contract an it has not transferred it to a third party).
(b) In addition to Section 5(a), if (i) any installment on a Contract
becomes due and remains unpaid for more than ninety (90) days; (ii) if a
Customer dies or becomes incapacitated; (iii) if a Customer becomes insolvent
or makes an assignment for the benefit of creditors, or (iv) if a petition for
a receiver or a bankruptcy is filed by or against any Customer (each, a
"Defaulted Contract" and collectively, the "Defaulted Contracts"), then in any
of such events, SELLER shall, within thirty (30) days after MFS's written
notice of the Defaulted Contract, either (x) repurchase the Defaulted
Contract; or (y) replace the Defaulted Contract(s) on the terms set forth in
Section 5(a) above. Notwithstanding the foregoing, SELLER's obligation to
repurchase or replace Purchased Contracts pursuant to this section 5(b) shall
be limited to the amounts held in the Reserve Account.
6. 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 security interest (the
"Security Interest") in (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 Uniform Commercial Code financing statements
describing the Collateral to be filed in all offices where appropriate as may
be necessary or advisable to perfect SELLER's security interest in the
Collateral.
7. RIGHT OF OFFSET. Although the first course of action relating to Section
5(b) of this agreement will be to withdraw defaulted contracts balances from
the reserve account, 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 notice to SELLER to offset amounts owed by SELLER
to MFS hereunder against (i) 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.
8. RIGHT TO INSPECT. MFS (through any of its officers, employees, or
agents) shall have the right from time to time hereafter at (BUYERS) sole cost
and expense to audit and inspect (SELLERS) books and to check, test and
appraise the collateral in order to verify (SELLERS) financial condition or
the amount, quality, value, condition of, or any other matter relating to
collateral.
9. 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 (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.
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: (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. 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, 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; or (d) 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. ORIGINATION FEE. A one-time Origination Fee in the amount set forth on
Schedule "A" must accompany application for financing the SELLERS receivables.
This fee covers the credit check of the SELLER and to perfect MFS interest in
the Purchased receivables, with the filing of a UCC-1.
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.
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(f) If at any time any provision of this Agreement shall be held by any court
of competant Jurisdiction to be illegal void or unenforceable, such provision
shall be of no force and effect, but the illegality or unenforcability of such
provision shall have no effect upon and shall not impair the enforceabilty of
any other provision of this Agreement.
(g.) This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof and incorporates all representatations
made in connection with negotiation of the same. 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.
(h) Subject to the provisions of Section 16(b), this Agreement and any
amendments hereto shall be binding on and inure to the benefit of the parties
hereto end 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) 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 (list):
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by there respective duly authorized representatives on the date text
above written
SELLER MFS:
ELECTIVE INVESTMENTS, INC MONTEREY FINANCIAL SERVICES,
INC.
a Pennsylvania Corporation a California Corporation
By: /s/ Xxxxxx X Xxxxxx By: /s/Xxxxxx X. Xxxxxxx
Title: President Title: President
