SERVICING AGREEMENT
Exhibit
10.4
This
Servicing Agreement (this "Agreement") is made as of
December 31, 2009, by and between CarePayment, LLC, an Oregon limited liability
company ("Owner"), and
WS Technologies, LLC, an Oregon limited liability company ("Servicer"). Aequitas
Holdings, LLC, an Oregon limited liability company ("Aequitas") is a party to this
Agreement solely for purposes of agreeing to Section 8.1.
Recitals
A. Owner
is in the business of purchasing or obtaining the right to collect consumer
receivables generated by hospitals on a recourse basis with respect to the
hospital ("Receivables").
B. Servicer
provides Receivables origination, servicing, collection and administration
services.
C. Owner
desires to engage Servicer to originate, manage and service the collection of
Receivables purchased or controlled by Owner, and Servicer wishes to provide
such services, all on the terms and conditions provided for in this
Agreement.
Agreement
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements hereinafter set forth, Owner and Servicer hereby agree as
follows:
1. Servicing.
1.1 Appointment of
Servicer. Owner hereby appoints Servicer as the sole and
exclusive servicer to collect, administer and service the Receivables purchased
or controlled by Owner, including negotiating with hospitals on behalf Owner
with respect to such services. Owner hereby appoints Servicer as the
non-exclusive originator of Receivables purchased or controlled by Owner,
including negotiating with hospitals on behalf Owner with respect to such
services. Servicer shall have the full power and authority to do or
cause to be done any and all things in connection with such servicing,
administration and collection as Servicer may deem to be necessary or desirable
to optimize the recoverable value from such Receivables, and in furtherance
thereof is authorized and shall have the sole authority to (a) collect and
post all payments on the Receivables, (b) communicate with the hospitals
and patients to whom the Receivables relate, (c) commence and pursue
collection actions with respect to any Receivable, and (d) perform such
other practices and procedures as Servicer may deem necessary or desirable in
connection with servicing, administering and collecting
Receivables. Upon request, Owner shall furnish Servicer with any
powers of attorney or other documents that Servicer may reasonably request in
order for Servicer to perform its obligations under this
Agreement. Servicer agrees to employ lawful means in its efforts to
collect Receivables. In providing its services, Servicer shall
conform to a standard of practice and care consistent with industry
standards.
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1.2 Receivable
Files. Owner shall deliver or cause to be delivered to the
Servicer all files and records related to the Receivables, together with such
other documents as Servicer may reasonably require in order to perform its
duties under this Agreement. All documents described in this Section 1.2 are
referred to collectively herein as the "Receivable
Documents." Servicer will retain in its possession originals
of the Receivable Documents and will hold all such documents on behalf of
Owner. Such documents shall be accessible for inspection and copying
by Owner or its representative or agent upon reasonable advance notice during
normal business hours. For purposes of this Agreement, "original"
Receivable Documents may include documents received in electronic form (whether
by facsimile transmission, in "pdf" files or otherwise).
1.3 Subservicing.
1.3.1 Servicer
may appoint one or more sub-servicers from the list of Approved Sub-servicers
(defined below) to perform Servicer's duties under this Agreement (each, a
"Sub-servicer"). The
appointment of any Sub-servicer by the Servicer does not relieve Servicer of any
of its duties or responsibilities under this Agreement, and Servicer shall be
responsible for managing the activities of any Sub-servicer. The
amount of the subservicing fees payable to any Sub-servicer shall be payable by
Servicer from the Servicing Fee paid to Servicer by Owner.
1.3.2 Servicer's
list of approved Sub-servicers ("Approved Sub-servicers") and
sub-contractors is on the attached Exhibit A. Servicer
shall not add or remove Sub-servicers from the list of Approved Sub-servicers or
amend, modify or replace any agreement it may have with its Sub-servicers
without the prior written consent of Owner, which consent shall not be
unreasonably withheld, delayed or conditioned.
1.4 Payment
Collections. Servicer is responsible for collection of all
payments made with respect to Receivables. and for accounting to Owner for all
Collections. Servicer is responsible for instructing hospitals and
patients to remit payments and/or settlements to Servicer. Owner will
promptly report to Servicer any direct payments it receives from hospitals or
patients with respect to any Receivables.
1.5 Deposit to Collection
Account; Reports. Servicer shall cause all collections of Receivables
("Collections") received
by Servicer to be deposited daily into an account (the "Collection Account") within
two business days after receipt. Servicer shall provide Owner with a
daily and weekly (on Monday of each week unless such day is a legal holiday)
reconciliation report, in electronic form reasonably satisfactory to Owner, of
all Collections and deposits since the date of the last daily or weekly report,
as applicable (the "Reconciliation
Report").
1.6 Insurance. Servicer
shall maintain policies of insurance or other evidence of insurance coverage as
follows:
1.6.1 Comprehensive
general liability insurance with a combined single limit of not less than
$1 million.
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1.6.2 Comprehensive
errors and omissions insurance providing coverage in the amount of not less than
$1 million covering any loss or damage for which Servicer may become liable
arising out of errors, omissions or other defects arising out of or relating to
collection and administration of the Receivables, including alleged violations
of federal or state laws relating to collection practices, including credit
protection laws.
1.6.3 Employee
dishonesty insurance (or similarly named and purposed insurance or bond)
providing coverage in the amount of not less than $2 million.
Owner
shall be designated as an additional insured on all such liability
policies. In addition, Servicer shall use commercially reasonable
efforts, to the extent possible, to extend coverage under Servicer's liability
and errors and omissions policies to include coverage for the liabilities,
errors and omissions of its Sub-servicers. Servicer shall maintain
all insurance required above and by applicable law with financially sound and
reputable independent insurers. Servicer shall provide to Owner, upon
Owner's request, copies of such policies or certificates of
insurance. The policies required above shall provide that Owner shall
receive 30 days' written notice prior to amendment or cancellation.
Servicer
shall adhere to Servicer's standard practices and policies in the selection of
all Sub-servicers and shall use Sub-servicers that are reputable and licensed
and shall use commercially reasonable efforts to ensure that all Sub-servicers
are bonded (where appropriate) and that they maintain commercially reasonable
forms and levels of insurance coverage.
1.7 Access By Financing
Sources. Upon reasonable advance notice, Servicer agrees to
make its representatives reasonably available from time to time to discuss with
Owner and/or its financing sources the status of Servicer's servicing activities
and the status of the Receivable portfolios.
2. Compensation.
2.1 Servicing
Fee. Owner will pay Servicer the following fees:
2.1.1 a
monthly Servicing Fee (the "Servicing Fee") in an amount
equal to 0.4167% of total Eligible Receivables existing as of the last business
day of the preceding month;
2.1.2 an
origination fee ("Origination
Fee") equal to 6.0% of the original balance of all newly generated
Eligible Receivables, plus 6.0% of the
balance of all Transferred Billing Receivables, and
2.1.3 The
Back End Fee.
2.2 "Eligible Receivables" are
those Receivables owed by a debtor deemed credit worthy by mutual agreement of
Owner and Servicer that have been funded by Owner.
2.3 "Transferred Billing
Receivables" are those Receivables that are not initially Eligible
Receivables, but become Eligible Receivables following satisfaction of
performance metrics as developed from time to time by Owner and Servicer and are
funded by Owner.
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2.4 "Back End Fee" means 25.0% of
the amount calculated as follows with respect to each calendar quarter during
the Term:
2.4.1 The
net income of Owner as determined on a quarterly basis in accordance with
generally accepted accounting principles,
2.4.2 plus actual interest
expense for the quarterly period,
2.4.3 minus an assumed cost
of funds of Owner of 18% per annum with respect to all funded
Receivables.
2.5 Payment of Servicing Fee,
Origination Fee and Back End Fee.
2.5.1 On
or after the first business day of each month, Servicer shall invoice Owner for
the Servicing Fee for the immediately preceding month. Such invoice
shall include Servicer's calculation of the unpaid balance of Eligible
Receivables and Transferred Billing Receivables serviced by Servicer during the
immediately preceding month in reasonable detail satisfactory to
Owner. The Servicing Fee shall be due on the 15th day of
the month immediately following the month in which Services were performed or,
if the 15th day of
the month is not a business day, then the first business day
thereafter.
2.5.2 Owner
shall pay Servicer all Origination Fees simultaneously with Owner's funding of
Eligible Receivables and Transferred Billing Receivables. Such
payments shall be accompanied by certificates, in reasonable detail satisfactory
to Servicer, identifying the Eligible Receivables and/or Transferred Billing
Receivables to which such payments apply.
2.5.3 Owner
shall pay Servicer all Back End Fees quarterly in arrears, with each payment due
by the 30th day following the end of each calendar quarter.
2.6 Additional
Compensation. Owner shall pay Servicer an amount equal to
Servicer's actual monthly losses incurred during the first three months of the
Term, and an amount equal to 50% of Servicer's actual monthly losses incurred
during months four through six of the Term (each such payment being a "Shortfall Fee"). If
Servicer incurs actual monthly losses in months four through six of the Term,
the parties will negotiate in good faith as to whether the Shortfall Fee will
continue after month six of the Term. Beginning on February 15, 2010,
such payments shall be made within 15 days after the end of each month,
following Owner's receipt from Servicer of information detailing the amount of
the loss for each month, in such form as is reasonably acceptable to
Owner. Owner may, in its discretion, make an advance payment under
this Section 2.6 in January 2010, which payment would be credited toward any
future payments due under this Section 2.6.
2.7 Owner's
Offset. Owner may offset any amounts due from Owner under this
Agreement against amounts owed by Servicer to Owner under the Administrative
Services Agreement dated December 31, 2009 between Owner and Servicer and the
Sublease dated December 31, 2009 between Owner and Servicer.
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2.8 Taxes. All
taxes, duties or charges in the nature of sales, use or excise taxes resulting
from Servicer's performance under this Agreement will be treated as operating
costs of, and will be paid by, Owner. Notwithstanding the prior
sentence, Owner shall have no responsibility for any taxes based on Servicer's
income, which taxes will be Servicer's sole responsibility.
3. Books and Records; Reports;
Inspection Rights.
3.1 Books and
Records. Servicer shall keep books and records pertaining to
the Receivables. Owner shall keep books and records pertaining to the
Back End Fee. Upon reasonable prior notice, each party shall grant
the other reasonable access to such books and records. All such books
and records and all Receivable Documents, whether or not developed or originated
by Servicer, shall remain at all times the property of Owner;
provided, however, that Servicer shall have the right to maintain a copy of such
books, records and Receivable Documents and shall retain the right to use such
books, records and Receivable Documents to develop data, databases, information
and reports (collectively, the "Data"). All right,
title and interest in and to the Data shall remain at all times the sole
property of Servicer, and Owner shall not have any rights to the Data, except
that Owner shall have a nonexclusive, royalty-free perpetual license to use the
Data developed by Servicer in connection with this Agreement.
3.2 Reporting. In
addition to the Reconciliation Reports, Servicer shall provide Owner mutually
agreed upon reports and information on a weekly or as needed basis.
3.3 Inspection and Audit
Rights.
3.3.1 Servicer
will be responsible to make such examinations of the books and records of each
Sub-servicer that is servicing Receivables owned or controlled by Owner as
Servicer deems reasonably necessary in order to verify the accuracy of cash
receipts and disbursements reported by each Sub-servicer.
3.3.2 Subject
to Section 3.3.3
below, on not less than five business days prior written notice, each party
shall permit the other party or its respective agents, representatives or
designees, at the sole cost and expense of the examining party, during normal
business hours, to examine or make copies of abstracts from all books, records
and documents, including computer tapes and disks and constituting Receivable
Documents or otherwise relating to the Receivables or Servicer's or any
Sub-servicer's collection activities with respect to the Receivables, or the
Back End Fee. Subject to Section 3.3.3
below, the examining party shall reimburse all costs and expenses of the party
whose books and records are being examined, or its respective agents,
representatives or designees incurred under this Section at prevailing
rates. Examinations may be performed either on-site or remotely at
Owner's discretion. Upon request, the party whose books and records
are being examined shall provide to the examiner(s) a reasonable workspace and
the use of on-site photocopying equipment. The party whose books and
records are being examined shall allow full and free access to records relating
to the Receivable Documents or the Back End Fee and shall provide necessary
technical assistance as required to access such records. The party
whose books and records are being examined shall deliver any document or
instrument necessary for the examining party, as it may from time to time
reasonably request, to obtain records from any service bureau or other person
that maintains records for the party whose books and records are being examined,
and shall maintain duplicate records or supporting documentation on media,
including computer tapes and discs owned by the party whose books and records
are being examined. The examining party agrees to advise the party
whose books and records are being examined of the exceptions/discrepancies
identified in any examination and agrees to allow the party whose books and
records are being examined a reasonable period of time to respond to
them.
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3.3.3 If,
after examination, there is a discrepancy as to the amount of any fees paid or
payable under this Agreement with respect to the period examined (which period
shall not be less than 90 days), the parties will use commercially reasonable
efforts to resolve the discrepancy. If the parties cannot resolve the
discrepancy within 30 days after the last date on which the examination of the
records giving rise to the discrepancy occurred, the parties will submit the
discrepancy to an independent accounting firm to be agreed to by the parties for
resolution. If the discrepancy, as agreed by the parties or as
determined by the independent accountants, is 10% or greater, the fees and
expenses of the examination and of the independent accountants will be borne by
the losing party.
3.3.4 So
long as the party whose books and records are being examined is not in default
of its obligations under this Agreement, examination of that party's books and
records shall occur no more often than once per calendar quarter.
3.4 Record
Retention. Each party agrees to maintain all records relating
to this Agreement for a period of not less than seven years from the date of
origination of such records or such longer time as may be required by law or
regulation. Such records may be retained in electronic format unless
otherwise required by specific law or regulation in which case the records will
be retained in the required format.
4. Term and
Termination.
4.1 Term. This
Agreement will be for term ending on December 31, 2034 (the "Term").
4.2 Termination by
Owner. Notwithstanding anything herein to the contrary, Owner
may terminate Servicer's services under this Agreement, by giving at least 30
days' prior written notice to Servicer upon the occurrence of any of the
following (each a "Termination
Event"):
4.2.1 Servicer's
failure to observe or perform in any material respect any obligation, covenant
or agreement required to be performed by Servicer under this Agreement or
Servicer's material breach of any agreement with a third party that would
materially affect Servicer's ability to observe or perform in any material
respect any obligation, covenant or agreement required to be performed by
Servicer under this Agreement, which failure or material breach is not cured (if
capable of being cured) within 90 days after receipt of notice from Owner or the
third party specifying such failure or material breach or, if the cure requires
more than 90 days, the failure of Servicer to promptly initiate steps to cure
such failure or material breach and thereafter to diligently continue and
complete all commercially reasonable and necessary steps sufficient to cure such
material breach.
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4.2.2 Any
gross negligence or willful misconduct by Servicer directly resulting in
material damage to Owner's reputation in the industry and an actual monetary
loss to Owner, regardless of whether Owner has been reimbursed by Servicer or
its insurer.
4.2.3 Servicer
closes for business, dissolves, becomes insolvent, admits in writing its
inability to pay its debts generally, applies for the appointment of a receiver
or custodian, makes an assignment for the benefit of creditors, or a voluntary
or involuntary petition under any state or federal bankruptcy laws is filed by
or against Servicer and, in the case of any involuntary filing, the petition is
not dismissed within 30 days after the filing thereof.
4.2.4 Servicer
fails to meet the Benchmark during any 12 month period during the Term on a
rolling basis, beginning with the twelve month period ending December 31, 2010,
which failure remains uncured for more than 90 days following Servicer's receipt
of written notice identifying with specificity any failure to meet the
Benchmark. For purposes of this Agreement, the "Benchmark" means, with respect
to Receivables and Transferred Billing Receivables for a calendar year, the
finance charge income of Owner from such Receivables for such calendar year
represents at least an 18% annual internal rate of return on Owner's funding of
such Receivables, after deduction of Servicing Fees and Origination Fees paid to
Servicer during such calendar year.
4.3 Termination by
Servicer. Notwithstanding anything herein to the contrary,
Servicer may terminate this Agreement by giving at least 30 days' prior written
notice to Owner and Lender upon the occurrence of any of the following
events:
4.3.1 Owner
fails to pay to Servicer any undisputed Servicing Fee, Origination Fee, Back End
Fee or Shortfall Fee payment when due and such failure is not cured within 30
days after receipt of notice from Servicer specifying such failure.
4.3.2 Any
gross negligence or willful misconduct by Owner or any member, employee, agent
or Affiliate of Owner resulting in damage to Servicer's reputation and a
material loss or damage to Servicer, regardless of whether Servicer has been
reimbursed by Owner or its insurer.
4.3.3 Owner
closes for business, dissolves, becomes insolvent, admits in writing its
inability to pay its debts generally, applies for the appointment of a receiver
or custodian, makes an assignment for the benefit of creditors, or a voluntary
or involuntary petition under any state or federal bankruptcy laws is filed by
or against Owner and, in the case of any involuntary filing, the petition is not
dismissed within 30 days after the filing thereof.
4.4 Effect of
Termination. Upon termination of this Agreement, Servicer
shall:
4.4.1 within
10 business days, deliver or cause to be delivered to Owner all Receivable
Documents then in the possession of Servicer or any Sub-servicer, together with
all Data and all other information and documentation relating to the servicing
and collection of the Receivables (with Servicer having the right to retain
copies thereof), in an orderly form as reasonably requested by
Owner;
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4.4.2 within
five business days after termination and thereafter within five business days
after receipt by Servicer, remit all Collections to Owner;
4.4.3 within
two business days after receipt, forward to Owner or other person designated by
Owner all correspondence received by Servicer or, to Servicer's knowledge, any
Sub-servicer with respect to any Receivable; and
4.4.4 upon
written request from Owner, Servicer shall (i) prepare, execute and deliver
any and all documents and other instruments reasonably required by Owner in
connection with the succession by Owner, (ii) place in Owner's possession
all records related to the Receivables and all other servicing files,
(iii) transfer to Owner for administration by it all cash amounts, if any,
which as of such time have been deposited by Servicer, or Sub-servicer in the
Collection Account or thereafter be received by Servicer or Sub-servicer with
respect to the Receivables, and (iv) use commercially reasonable efforts to
do or accomplish all other acts or things reasonably necessary or appropriate to
enable Owner to assume and discharge the servicing obligations. In
addition, Servicer agrees to cooperate and use commercially reasonable efforts
in providing at the Servicer's expense Owner with reasonable access (including
at the premises of the Servicer or Sub-servicer) to Servicer's employees, and to
use commercially reasonable efforts to cause its Sub-servicers to provide Owner
with access to the employees of any Sub-servicer, and reasonable access to any
and all of the books, records (in electronic or other form) or other information
reasonably requested by it to enable Owner to assume the servicing
functions.
5. Representations and
Warranties.
5.1 By
Servicer. Servicer represents and warrants to Owner as
follows:
5.1.1 Servicer
is a corporation duly organized and validly existing under the laws of the State
of Oregon, and is authorized to conduct business in all states in which a
failure to qualify would materially and adversely affect its ability to perform
its services, including origination services, pursuant to this
Agreement.
5.1.2 The
execution, delivery and performance of this Agreement have been duly authorized
by all necessary corporate action by Servicer. This Agreement has
been duly and validly executed and delivered on behalf of Servicer and is
binding upon and enforceable against Servicer in accordance with its terms,
except as enforceability may be limited or affected by applicable bankruptcy,
insolvency, reorganization or other laws of general application relating to or
affecting the rights of creditors, and except as enforceability may be limited
by rules of law governing specific performance, injunctive relief or other
applicable remedies.
5.1.3 Servicer
has operated and will continue to operate its business in accordance with all
federal, state and local laws, statutes and regulations, including credit
protection laws and the Health Insurance Portability and Accountability Act of
1996 ("HIPAA"), and
Servicer is not in violation of any such laws or regulations other than such
violations which singly or in the aggregate do not, and, with the passage of
time will not, have a material adverse effect on its business or assets, or its
ability to perform its obligations under this Agreement.
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5.2 By
Owner. Owner represents and warrants to Servicer as
follows:
5.2.1 Owner
is a limited liability company duly organized and validly existing under the
laws of the State of Oregon.
5.2.2 The
execution, delivery and performance of this Agreement have been duly authorized
by all necessary limited liability company action by Owner. This
Agreement has been duly and validly executed and delivered on behalf of Owner
and is binding upon and enforceable against Owner in accordance with its terms,
except as enforceability may be limited or affected by applicable bankruptcy,
insolvency, reorganization or other laws of general application relating to or
affecting the rights of creditors, and except as enforceability may be limited
by rules of law governing specific performance, injunctive relief or other
applicable remedies.
5.2.3 Neither
the execution and delivery of this Agreement by Servicer nor the consummation of
the transactions contemplated by this Agreement will (i) violate any
applicable law, judgment, order, decree, regulation or ruling of any
governmental authority, or (ii) either alone or with the giving of notice
or the passage of time or both, conflict with, constitute grounds for
termination of, or result in the breach of the terms, conditions or provisions
of or constitute a default under any agreement, instrument, license or permit to
which Servicer is a party or by which Servicer is bound.
6. Indemnification; Limitation of
Liability.
6.1 Indemnity by
Servicer. Servicer agrees to indemnify, defend and hold
harmless Owner and its respective officers, directors, managers, employees,
agents and affiliates (each an "Owner Indemnified Party"),
from and against any and all claims, losses, liabilities, damages, penalties,
fines, forfeitures, legal and accounting fees and all other fees or costs of any
kind, judgments or expenses (collectively, "Losses") resulting from or
arising out of (a) any breach by Servicer of any of the representations and
warranties made by it in this Agreement; (b) any failure of Servicer to comply
with and perform all of its duties and agreements under this Agreement; and (c)
any and all claims, actions or proceedings brought against Owner by any third
party as a result of or based upon the actions or omissions by Servicer in the
performance of its obligations under this Agreement (provided that such action
or inaction was not undertaken at the direction of Owner Indemnified Party),
including any failure by Servicer, any Sub-servicer or any of their agents,
representatives or employees to comply with all applicable laws, rules and
regulations, including credit protection laws and HIPAA, and any other action
taken in collection of the Receivables. Servicer shall have no
obligation to indemnify, defend or hold any Owner Indemnified Party harmless in
the event that any Losses result from the negligent or wrongful acts or
omissions of such person or its respective agents or employees.
6.2 Indemnity by Owner.
Owner agrees to indemnify, defend and hold harmless Servicer and its officers,
directors, employees, agents and affiliates (each a "Servicer Indemnified Party")
from and against any and all Losses resulting from or arising out of (a) any
breach by Owner of any of the representations and warranties made by it in this
Agreement; (b) any failure of Owner to comply with and perform all of its duties
and agreements under this Agreement; (c) and any and all claims, actions or
proceedings brought against Servicer by any third party as a result of or based
upon the actions or omissions of Owner in the performance of its obligations
under this Agreement (provided that such action or inaction was not undertaken
at the direction of the Servicer Indemnified Party). Owner shall have
no obligation to indemnify, defend or hold any Servicer Indemnified Party
harmless in the event that any Losses result from the negligent or wrongful acts
or omissions of such person or its agents or employees.
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6.3 Limitation of
Liability. Except as set forth above, in no event will any
party be liable to another party for any punitive or exemplary damages, even if
a party has been advised of the possibility of such damages, arising out of this
Agreement. In no event will Servicer be liable for the
uncollectibility of any Receivables or the timing of actual collections on any
Receivables under any circumstances.
7. Confidential
Information.
7.1 Confidentiality. Each
party hereto agrees that it shall not disclose or transfer to any third party
any information concerning the customers, trade secrets, methods, processes or
procedures or any other confidential, financial or business information
(collectively, "Confidential
Information") of the other party which it learns during the course of
this Agreement, without the prior written consent of such other
party. Notwithstanding the foregoing, the parties may disclose each
other's Confidential Information without obtaining prior written consent in the
following circumstances only: (i) to employees of the disclosing party or
the disclosing party's consultants or agents or attorneys, on a "need to know
basis," who require such information in order to assist the disclosing party in
performing this Agreement (so long as the disclosing party takes such
precautions or obtains such agreements as it would take or obtain in the
ordinary course of its business to protect its own confidential and proprietary
information); and (ii) as required in order to comply with any subpoena,
court order or applicable law, rule or regulation, provided that the disclosing
party gives the other party prior written notice of such disclosure (unless
prohibited by applicable law) and reasonably cooperates with the other party in
protecting the confidential or proprietary nature of the information which must
be so disclosed, at the other party's expense. Notwithstanding
anything to the contrary in this Agreement, no party shall have an obligation to
keep secret any Confidential Information which is in or becomes part of the
public domain not due to the fault of any such party or is known to such party
prior to entry into this Agreement.
7.2 Protection of Confidential
Information. Each party agrees that it will take all
commercially reasonable steps to protect the secrecy of and avoid disclosure of
Confidential Information of the other party in order to prevent it from falling
into the public domain or the possession of unauthorized
persons. Each party agrees to promptly notify the other party in
writing of any misuse or misappropriation of Confidential Information of the
other party that may come to its attention.
7.3 Relief. In
the event of a breach or threatened breach by any party of the foregoing
provisions, because of the uncertainty of damages resulting there from, each
party shall be entitled to an injunction restraining another party from any such
breach or threatened breach. Nothing herein shall be construed as
prohibiting a party from pursuing any other remedies available to it for such
breach or threatened breach, including the recovery of damages from the
breaching party.
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7.4 Continuing
Obligations. The obligations of the parties under this Section 7 shall
survive the expiration, cancellation or other termination of this
Agreement.
8. Exclusivity.
8.1 Owner and Aequitas
Exclusivity. Each of Owner and Aequitas agrees
that:
8.1.1 During
the Term, Servicer will be entitled, at Servicer’s option, to service any
Receivables purchased by Owner or Aequitas or any affiliate of Owner or Aequitas
on terms substantially identical to those included herein, whether or not such
Receivables were identified for purchase by Servicer, Owner, Aequitas, any
affiliate of Servicer, Owner or Aequitas or any third party. This subsection shall
terminate upon the occurrence of Servicer’s material breach of this Agreement,
which material breach is not cured by Servicer within any applicable cure period
(which shall not be less than thirty (30) days) following Servicer’s receipt of
a reasonably detailed written notice from Owner describing the alleged
breach.
8.1.2 During
the Term, neither Owner, Aequitas, nor any affiliate of Owner or Aequitas will,
acting alone or in conjunction with others, directly or indirectly, engage
(either as sole proprietor, owner, partner, manager, member, shareholder,
employer, employee, officer, director, consultant or agent) in the United States
in the creation, management or ownership of or in any sole proprietorship,
corporation, partnership, limited liability company or other entity that has or
obtains the right to collect or service Receivables in any manner that would
circumvent Servicer's rights under Section
8.1.1. Ownership of not more than 1% of the equity securities
of any company having securities listed on an exchange or regularly traded in
the over-the-counter market will not, of itself, be deemed inconsistent with
this Section 8.1.2.
8.2 Servicer
Exclusivity. Servicer agrees that:
8.2.1 During
the Term, Owner will have the exclusive right to purchase any receivables
identified for purchase by Servicer and its affiliates.
8.2.2 During
the Term, Servicer will not (and will cause its affiliates to not) participate
in the purchase, sale or funding of any receivables unless and until Owner or
any of its affiliates has waived in writing its rights to purchase such
receivables.
9. Miscellaneous.
9.1 Severability. Any
part, provision, representation or warranty of this Agreement which is
prohibited or which is held to be void or unenforceable shall be ineffective to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any part, provision, representation or
warranty of this Agreement which is prohibited or unenforceable or is held to be
void or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the
extent permitted by applicable law, the parties to this Agreement waive any
provision of law which prohibits or renders void or unenforceable any provision
of this Agreement. If the invalidity of any part, provision,
representation or warranty of this Agreement shall deprive any party of the
economic benefit intended to be conferred by this Agreement, the parties shall
negotiate in good faith to develop a structure the economic effect of which is
as nearly as possible the same as the economic effect of this Agreement without
regard to such invalidity.
Page 11 – MICROHELIX/CAREPAYMENT SERVICING AGREEMENT
9.2 Notices. Each
notice, consent, request, or other communication required or permitted under
this Agreement will be in writing, will be delivered personally or sent by
certified mail (postage prepaid, return receipt requested) or by a recognized US
overnight courier, and will be addressed as follows:
If
to
Servicer: WS
Technologies LLC
Attn: President
0000 XX Xxxxxxx Xxxx, Xxxxx
000
Xxxx Xxxxxx, XX 00000
If
to
Owner: CarePayment,
LLC
Attn: Legal
Department
0000 XX Xxxxxxx Xxxx, Xxxxx
000
Xxxx Xxxxxx, XX 00000
Each
notice, consent, request, or other communication will be deemed to have been
received by the party to whom it was addressed (a) when delivered if delivered
personally; (b) on the second business day after the date of mailing if mailed;
or (c) on the date officially recorded as delivered according to the record of
delivery if delivered by overnight courier. Each party may change its
address for purposes of this Agreement by giving written notice to the other
party in the manner set forth above.
9.3 Counterparts. This
Agreement may be executed in counterparts. Each counterpart will be
considered an original, and all of them, taken together, will constitute a
single Agreement. This Agreement may be delivered by facsimile or
electronically, and any such delivery will have the same effect as physical
delivery of a signed original. At the request of any party, the other
party will confirm facsimile or electronic transmission signatures by signing an
original document.
9.4 Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Oregon, without giving effect to
conflicts of laws principles thereunder.
Page 12 – MICROHELIX/CAREPAYMENT SERVICING AGREEMENT
9.5 Venue/Jurisdiction. Each
of the parties hereby irrevocably agrees that any dispute arising under or in
any way relating to this Agreement shall be litigated solely and exclusively in
a federal or state court sitting in Multnomah County, Oregon. Each
party hereby agrees that if it attempts to commence any action regarding a
dispute arising under or in any way relating to this Agreement in any court
other than a federal or state court sitting in Multnomah County, Oregon, the
other party may obtain an immediate order dismissing such action for improper
venue or an order transferring venue to a federal or state court sitting in
Multnomah County, Oregon. Each of the parties hereby irrevocably
submits to the personal jurisdiction of any federal or state court sitting in
Multnomah County, Oregon, in any action or proceeding arising out of or in any
way relating to this Agreement. Each of the parties agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Each party also irrevocably waives the right to a
trial by jury in connection with any action brought to construe or enforce this
Agreement.
9.6 Amendments. This
Agreement may be amended from time to time by a written instrument signed by
Servicer and Owner and no waiver of any of the terms hereof by any party shall
be effective unless it is in writing and signed by the other
parties.
9.7 Integration. This
Agreement comprises the final and complete integration of all prior expressions
by the parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to such
subject matter, superseding all prior oral or written
understandings.
9.8 Agreement
Effectiveness. This Agreement shall become effective upon
delivery of fully executed counterparts hereof to each of the parties
hereto.
9.9 Headings Descriptive;
Interpretation. The headings of the sections and subsections
of this Agreement are inserted for convenience only and shall not in any way
affect the meaning or construction of any provision of this
Agreement. All references in this Agreement to "Section" or
"Sections" without additional identification refer to the Section or Sections of
this Agreement. The words "will" and "shall" have the same
meaning. The words "include," "includes" and "including" shall not be
deemed to be terms of limitation, but rather shall be deemed to be followed by
the words "without limitation."
9.10 Advice from Independent
Counsel. The parties hereto understand that this Agreement is
a legally binding agreement that may affect such party's rights. Each
party hereto represents to the other that it has received legal advice from
counsel of its choice regarding the meaning and legal significance of this
Agreement and that it is satisfied with its legal counsel and the advice
received from it.
9.11 Assignment. Except
as may otherwise be provided herein, Servicer may not assign, delegate and/or
subcontract all or substantially all of this Agreement or its rights hereunder,
or delegate its obligations hereunder without the prior written consent of
Owner. Any attempted assignment, delegation, and/or subcontracting
without the requisite consent of Owner shall be null and
void. Subject to the foregoing, this Agreement shall be binding upon
and shall inure to the benefit of the parties and their respective successors
and assigns.
9.12 Judicial
Interpretation. Should any provision of this Agreement require
judicial interpretation, it is agreed that a court interpreting or construing
the same shall not apply a presumption that the terms hereof shall be more
strictly construed against any person by reason of the rule of construction that
a document is to be construed more strictly against the person who itself or
through its agent prepared the same, it being agreed that all parties hereto
have participated in the preparation of this Agreement.
Page 13 – MICROHELIX/CAREPAYMENT SERVICING AGREEMENT
9.13 Further
Assurances. The parties agree to execute such other documents
as may be necessary to implement this Agreement and carry out the intent of the
parties to this Agreement.
9.14 Survival. Sections 2, 3, 6, 7,
8 and 9
and each other provision of this Agreement that expressly or by its nature
provides for rights, obligations or remedies that extend beyond the expiration
or earlier termination of this agreement, will survive and continue in full
force and effect after this Agreement expires or is earlier
terminated.
9.15 Independent Contractor
Status. Servicer's relationship to Owner with respect to the
services to be performed under this Agreement shall be that of an independent
contractor. Servicer assumes full responsibility for the actions of
its personnel in the performance of the services under this Agreement and will
be solely responsible for their supervision, daily direction and control and
will be responsible for their acts or omissions in performing Servicer's
obligations hereunder. Servicer shall have sole responsibility for
the payment of salary (including withholding of income taxes and social
security), worker's compensation and all other forms of compensation for its
personnel.
9.16 Attorney
Fees. In the event arbitration, suit or action is instituted
to enforce or determine the parties' rights or duties in connection with this
Agreement, the prevailing party shall recover from the losing party all costs
and expenses, including reasonable attorney fees, incurred in such proceedings,
including any appellate or bankruptcy proceedings.
9.17 Public
Announcements. Except as required by applicable law or
regulations, no party to this Agreement will make any public announcement or any
press release regarding this Agreement, or the transactions contemplated herein,
without the prior written consent of the other parties. In addition,
prior to making any public announcement or press release, each party will afford
the other parties the opportunity to review and reasonably comment on the
contents of such release.
[Signature
page follows]
Page 14 – MICROHELIX/CAREPAYMENT SERVICING AGREEMENT
IN WITNESS WHEREOF, the undersigned
have caused this Agreement to be executed by their authorized officer as of the
day and year first above written.
|
MICROHELIX, INC., as
Servicer
|
||
|
By
|
s/ Xxxxx X. Xxxxxx
|
|
|
Xxxxx
X. Xxxxxx
|
||
|
Secretary
|
||
|
CAREPAYMENT,
LLC
|
||
|
By
|
Aequitas
Capital Management, Inc., its Manager
|
|
|
By
|
/s/ Xxxxxx X. Jesenik
|
|
|
Xxxxxx
X. Jesenik, President
|
||
|
For
purposes of agreeing to Section 8.1 only:
|
||
|
AEQUITAS
HOLDINGS, LLC
|
||
|
By
|
Aequitas
Capital Management, Inc., its Manager
|
|
|
By
|
/s/ Xxxxxx X. Jesenik
|
|
|
Xxxxxx
X. Jesenik,
President
|
||
Signature
page to Servicing Agreement
