Exhibit 2.2
PORTFOLIO PURCHASE AGREEMENT
PARTIES: Great Lakes Collection Bureau, Inc.
a New York corporation ("Seller")
00 Xxx Xxxxxx
Xxxxxxx, Xxx Xxxx
XXXX Lakes Inc.
a Nevada corporation ("Buyer")
000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
DATE: August 19, 2002
BACKGROUND: Seller is in the business of providing collection services for
itself and for third parties with respect to delinquent consumer accounts
receivable (the "Business"). The parties desire that Seller sell and Buyer buy
the Specified Assets (as defined in Section 2.1) and that Buyer assumes and
satisfies in full (in accordance with the terms thereof) the Specified
Liabilities (as defined in Section 2.1), all on and subject to the terms and
conditions of this Portfolio Purchase Agreement ("Agreement"). Simultaneously
herewith and subject to the Closing hereunder, NCO Lakes, LLC ("NCO Lakes"), an
affiliate of Buyer, is purchasing substantially all of the assets of Seller's
collection services business pursuant to an Asset Acquisition Agreement by and
between NCO Lakes and Seller dated as of the date hereof (the "NCO Lakes Asset
Acquisition Agreement").
INTENDING TO BE LEGALLY BOUND, in consideration of the mutual agreements
contained herein, and subject to the satisfaction of the terms and conditions
set forth herein, the parties agree as follows:
1. DEFINED TERMS Certain defined terms used in this Agreement and not
specifically defined in context are defined in this Section 1, as follows:
1.1 "Account" means those accounts in Seller's portfolio which are listed
in the Computer File, other than any accounts coded as "PIF" (paid-in-full),
"SIF" (settled-in-full), "sold" or "fraud".
1.2 "Account Document" means, with respect to each Account, any
application, purchase or other agreement, billing statement, notice,
correspondence or other information in the Seller's possession that relates to
an Account. An Account Document may include, without limitation, original
documents or copies thereof, whether by photocopy, microfiche, microfilm or
other reproduction process. Notwithstanding the foregoing, Account Document
shall not include any correspondence, report, information, internal analyses,
attorney-client privileged documents, internal memoranda, documents, credit
information, regulatory reports, and/or internal assessments of valuation of
such Account.
1.3 "Computer File" means the computer file, tape, cartridge or disk or
other electronic medium previously delivered to Buyer by Seller in respect of
the period ending June 30, 2002.
1.4 "Consent" means any consent, approval, order or authorization of, or
any declaration, filing or registration with, or any application or report to,
or any waiver by, or any other action (whether similar or dissimilar to any of
the foregoing) of, by or with, any Person (as defined in Section 1.13), which is
necessary in order to take a specified action or actions in a specified manner
and/or to achieve a specified result.
1.5 "Contract" means any written or oral contract, agreement, instrument,
order, arrangement, commitment or understanding of any nature, including, but
not limited to, sales orders, purchase orders, leases, subleases, data
processing agreements, maintenance agreements, license agreements, sublicense
agreements, loan agreements, promissory notes, security agreements, pledge
agreements, deeds, mortgages, guaranties, indemnities, warranties, employment
agreements, consulting agreements, sales representative agreements, joint
venture agreements, buy-sell agreements, options or warrants.
1.6 "Encumbrance" means any lien, security interest, pledge, mortgage,
easement, covenant, restriction, reservation, conditional sale, prior
assignment, or other encumbrance, claim, burden or charge of any nature.
1.7 "Judgment" means any order, writ, injunction, citation, award, decree
or other judgment of any nature of any foreign, federal, state or local court,
governmental body, administrative agency, regulatory authority or arbitration
tribunal.
1.8 "Law" means any provision of any foreign, federal, state or local law,
statute, ordinance, charter, constitution, treaty, rule or regulation.
1.9 "Obligation" means any debt, liability or obligation of any nature,
whether secured, unsecured, recourse, nonrecourse, liquidated, unliquidated,
accrued, absolute, fixed, contingent, ascertained, unascertained, known, unknown
or otherwise.
1.10 "Obligor" means any Person who is or may become obligated under, with
respect to, or on account of, an Account.
1.11 "Original Purchase Agreements" means each of the Contracts listed on
Schedule 1.11.
1.12 "Permit" means any license, permit, approval, waiver, order,
authorization, right or privilege of any nature, granted, issued, approved or
allowed by any foreign, federal, state or local governmental body,
administrative agency or regulatory authority.
1.13 "Person" means any individual, sole proprietorship, joint venture,
partnership, limited liability company, corporation, association, cooperative,
trust, estate, governmental body, administrative agency, regulatory authority or
other entity of any nature.
1.14 "Performing Account" means, as of any date, any account receivable in
respect of which the related Obligor has made a payment of not less than two
percent of the account balance in respect thereof during the 60-day period
immediately preceding such date.
1.15 "Proceeding" means any demand, claim, suit, action, litigation,
investigation, arbitration, administrative hearing, mediation or other
proceeding of any nature.
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1.16 "Repurchase Factor" means (i) with respect to the first one hundred
Accounts repurchased by Seller pursuant to Section 8, zero (0), and (ii) with
respect to each Account repurchased by Seller pursuant to Section 8 in excess of
one hundred, (A) 0.006, for each Account which is not a Performing Account and
(B) 1, for each Account which is a Performing Account.
1.17 "Tax" means (a) any foreign, federal, state or local income, earnings,
profits, gross receipts, franchise, capital stock, net worth, sales, use,
occupancy, general property, real property, personal property, intangible
property, transfer, fuel, excise, payroll, withholding, unemployment
compensation, social security or other tax of any nature; (b) any foreign,
federal, state or local organization fee, qualification fee, annual report fee,
filing fee, occupation fee, assessment, sewer rent or other fee or charge of any
nature; or (c) any deficiency, interest or penalty imposed with respect to any
of the foregoing.
2. THE TRANSACTION
2.1 Sale and Purchase of Specified Assets. On the Closing Date (as defined
in Section 6.1), effective to the fullest extent possible as of the opening of
business on the Closing Date, subject to the other terms and conditions of this
Agreement, (i) the Seller shall sell, transfer, assign and convey to Buyer, and
Buyer shall purchase, all right, title and interest of Seller in and to: (a) all
of Seller's Accounts excluding Accounts requiring a Consent that is not obtained
on or before the Closing Date ("Non-Assigned Accounts"), provided that, once
such Consent is obtained, such Accounts shall be deemed, automatically and
without further action by the parties, to be included in the Specified Assets as
of the date such Consent is delivered to Buyer, (b) all Account Documents
relating to Seller's Accounts in Seller's possession excluding all Account
Documents requiring a Consent that is not obtained on or before the Closing Date
("Non-Assigned Account Documents"), provided that, once such Consent is
obtained, the Account Documents shall be deemed, automatically and without
further action by the parties, to be included in the Specified Assets as of the
date such Consent is delivered to Buyer and (c) all of Seller's claims, causes
of action, Contract rights, powers and remedies and other legal rights and
remedies, whether or not known as of the Closing Date, arising under the
Original Purchase Agreements, including without limitation, all indemnification
rights under such Contracts but excluding any such claims, causes of action,
rights and remedies requiring a Consent that is not obtained on or before the
Closing Date ("Non-Assigned Rights"), provided that, once such Consent is
obtained, such claims, causes of action, rights and remedies shall be deemed,
automatically and without further action by the parties, to be included in the
Specified Assets as of the date such Consent is delivered to Buyer and excluding
any rights to cash constituting proceeds of any of the foregoing which is held
by Seller as of the close of business on August 16, 2002 (collectively, the
"Specified Assets"); and (ii) Buyer shall assume and satisfy in full (in
accordance with the terms thereof) all Obligations of Seller arising under or
related to the Original Purchase Agreements; provided that the incurrence or
existence of any such Obligation does not constitute a breach, failure, or
default of Seller under, any representation, warranty, covenant or other
provision of this Agreement; and provided further that Buyer shall only assume
such Obligations to the extent that such Obligations arise in connection with
the performance or non-performance of such Contracts from and after the Closing
Date (such assumed liabilities are referred to herein as the "Specified
Liabilities"); and provided further that the Specified Liabilities shall not
include any Obligations arising under any Non-Assigned Account Documents (it
being agreed that as soon as a Consent in respect of such Non-Assigned Account
Documents is obtained, such Obligations shall be deemed, automatically and
without further action by the parties, to be included in the Specified
Liabilities as of the date such Consent is delivered to Buyer).
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2.1.1 No Assumption of other Liabilities. Notwithstanding any other
provisions of this Agreement, Buyer shall not purchase the Specified Assets
subject to, and Buyer shall not in any manner assume or be liable or responsible
for, any Obligations of Seller other than the Specified Liabilities and all
other Obligations of Seller shall remain the sole responsibility of Seller.
2.2 Authorization. Seller hereby authorizes Buyer to file or record
financing statements and other filing or recording documents or instruments
without the signature of Seller in such form and in such offices as Buyer
reasonably determines appropriate to evidence and perfect the sale of Accounts
from Seller to Buyer. A photographic or other reproduction of this Agreement
shall be sufficient as a financing statement or other filing or recording
document or instrument for filing or recording in any jurisdiction.
3. PURCHASE PRICE
3.1 Purchase Price. The total purchase price for the Specified Assets and
the Specified Liabilities ("Purchase Price") shall be Twenty-Two Million, Nine
Hundred Thousand Dollars ($22,900,000).
3.2 Currency and Method of Payment. All dollar amounts stated in this
Agreement are stated in United States currency, and all payments required under
this Agreement shall be paid in United States currency by wire transfer of
immediately available United States federal funds.
4. REPRESENTATIONS OF SELLER
Knowing that the Buyer is relying thereon, Seller represents and warrants
to Buyer, and covenants with Buyer, as follows:
4.1 Organization. Seller is a corporation that is duly organized, validly
existing and in good standing under the Laws of the State of New York. Seller
possesses the full corporate power and authority to own the Specified Assets and
conduct its business as and where presently conducted. Seller possesses the full
corporate power and authority to enter into and perform this Agreement. Schedule
4.1 states, for Seller (a) its exact legal name; (b) its date of formation; (c)
its federal employer identification number; (d) its headquarters address,
telephone number and facsimile number; (e) all foreign jurisdictions in which it
is qualified or registered to do business and; (f) all fictitious, assumed or
other names of any type that are registered or used by it or under which it has
done business at any time since June 30, 2001.
4.2 Effect of Agreement. The execution, delivery and performance of this
Agreement by Seller and the consummation by Seller of the transactions
contemplated hereby, (a) have been duly authorized by all necessary corporate
action by its board of directors (to the extent necessary); (b) do not
constitute a violation of, a default under, or termination of the certificate of
incorporation or bylaws of Seller; (c) do not constitute a default or breach of
(immediately after the giving of notice, passage of time or both), or
termination of any Contract to which Seller is a party or by which Seller is
bound; (d) do not constitute a violation of any Law applicable to Seller or to
Seller's Business or to the Specified Assets; (e) except as stated on Schedule
4.2, do not require the Consent of any Person; and (f) do not result in the
creation of any Encumbrance upon, or give to any other Person any interest in,
the Specified Assets (other than any Encumbrance arising under this Agreement).
There exist no rights of first refusal or other preemptive rights with respect
to the Specified Assets. Subject to Section 10.18, this Agreement constitutes
the valid and legally binding agreement of Seller, enforceable against it in
accordance with its terms.
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4.3 Financial Condition. Seller is not insolvent, as defined in the United
States Bankruptcy Code, 11 U.S.C. Section 101 et seq., and as defined under
applicable state Law (including, without limitation, the Uniform Fraudulent
Transfer Act), and will not be rendered insolvent by the transactions
contemplated by this Agreement.
4.4 Portfolio of Accounts.
4.4.1 The Computer File sets forth, as of June 30, 2002, an accurate
and complete list of Seller's Accounts and the status of each Account, except
with respect to ordinary course of business delays in reporting. The Accounts
transferred hereunder and the accounts receivable transferred to NCOP Lakes,
Inc. under the NCO Lakes Acquisition Agreement constitute all of the accounts
receivable of the Seller.
4.4.2 To the knowledge of Seller, the Computer File taken as a whole
accurately reflects, in all material respects, all activities on the Accounts
during the period from November 4, 1999 through June 30, 2002, except with
respect to ordinary course of business delays in reporting.
4.4.3 From the period commencing on July 1, 2002 and ending on the date
hereof, Seller has operated in the ordinary course with respect to the Accounts
and has made appropriate adjustments in the data base in which entries on the
Accounts are made in the ordinary and normal course of its business, consistent
with its past practices.
4.4.4 Seller (a) has good and valid title to each Account and
corresponding Account Documents, is the sole owner thereof and (b) except for
the Consents listed on Schedule 4.4.4 which are required to be obtained with
respect to the transfer of Accounts purchased under the Original Purchase
Agreements listed on Schedule 4.4.4, (i) has full right to transfer and sell
such Account and related Account Documents, and (ii) is transferring and
selling, all of its right, title and interest in and to the Accounts and Account
Documents to Buyer, free and clear of any Encumbrance (other than, with respect
to any Account, (A) any Encumbrance arising under the Original Purchase
Agreement in respect thereof and (B) any Encumbrance arising in connection with
the collection activity of third party collection agencies or attorneys
previously retained by Seller).
4.4.5 Seller has no knowledge of any pervasive defect with respect to
the legality, validity or binding nature of the Accounts taken as a whole;
provided, however, that no representation, warranty or covenant is made herein
as to the collectability or enforceability of any particular Account or
Accounts.
4.4.6 The Original Purchase Agreements constitute all of the purchase
agreements relating to the Accounts. Seller is not in breach of or default
under, any of the Original Purchase Agreements.
4.4.7 Seller has instructed all servicers of the accounts to not settle
amounts owed with respect to the Accounts below prescribed guidelines.
4.5 Proceedings and Judgments. Except (i) with respect to collection
Proceedings initiated by or on behalf of Seller and (ii) as described on
Schedule 4.5, (a) no Proceeding involving or related to the Specified Assets is
currently pending or, to the knowledge of Seller, threatened; (b) no Judgment
(other than in connection with collection Proceedings in the ordinary course),
including, without limitation, any order or consent decree issued by the Federal
Trade Commission, involving or related to the Seller or Seller's Business or the
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Specified Assets is currently outstanding; and (c) no breach of contract, breach
of warranty or other claim of any nature solely related to the Specified Assets
has been asserted or to the knowledge of Seller threatened in writing against
Seller at any time since July 1, 2001. As to each matter described on Schedule
4.5, accurate and complete copies of all pertinent pleadings, judgments, orders,
correspondence and other legal documents have been delivered to Buyer.
4.6 Brokerage Fees. Except as set forth on Schedule 4.6, no Person acting
on behalf of Seller is or shall be entitled to any brokerage or finder's fee in
connection with the transactions contemplated by this Agreement.
4.7 Litigation. There are no Proceedings pending or, to the knowledge of
Seller, threatened that are reasonably likely to prohibit or restrain the
ability of Seller to enter into this Agreement or consummate the transaction
contemplated hereby.
4.8 True Copies. The copies of the agreements listed on or attached as
Schedules to this Agreement or listed on such Schedules (and delivered to Buyer
at Closing) are accurate and complete, in all material respects, and are not
missing any amendments or waivers in respect thereof.
5. REPRESENTATIONS OF BUYER
Knowing that Seller shall rely thereon, Buyer represents and warrants to
Seller, and covenants with Seller, as follows:
5.1 Organization. Buyer is a corporation that is duly organized, validly
existing and in good standing under the Law of its jurisdiction of
incorporation. Buyer has the full corporate power and authority to own its
assets and conduct its business as and where such business is presently
conducted. Buyer has the full corporate power and authority to enter into this
Agreement. Buyer is a wholly owned subsidiary of NCOP Nevada Holdings, Inc.
("NCOP Holdings") and NCOP Holdings is a wholly owned subsidiary of NCO
Portfolio Management, Inc. ("NCOPM").
5.2 Agreement. Buyer's execution, delivery and performance of this
Agreement, and its consummation of the transactions contemplated by this
Agreement, (a) have been duly authorized by all necessary corporate action by
its board of directors; (b) do not constitute a violation of or default under
its charter or bylaws; (c) do not constitute a default or breach (immediately or
after the giving of notice, passage of time or both) under any Contract to which
it is a party or by which it is bound; (d) do not constitute a violation of any
Law or Judgment that is applicable to it or to the business or assets of the
Buyer, or to the transactions contemplated by this Agreement; and (e) except as
stated on Schedule 5.2, do not require the Consent of any Person. Subject to
Section 10.18, this Agreement constitutes the valid and legally binding
agreement of Buyer, enforceable against it in accordance with its terms.
5.3 Brokerage Fees. No Person acting on behalf of Buyer is entitled to any
brokerage, finder's or investment banking fee in connection with the
transactions contemplated by this Agreement.
5.4 Litigation. There are no Proceedings pending or, to the best knowledge
of Buyer, threatened that are reasonably likely to prohibit or restrain the
ability of Buyer to enter into this Agreement or consummate the transaction
contemplated hereby.
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6. CLOSING
6.1 Closing. The closing of the transactions contemplated by this Agreement
(the "Closing") shall be held on the date hereof (the "Closing Date"), at the
offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 unless another place is agreed to by the parties hereto. Except to the
extent prohibited by Law and regardless of the actual time of Closing, the
Closing shall be considered to have been effective at the opening of business on
the Closing Date.
6.2 Obligations of Seller at Closing. At the Closing, Seller shall deliver
to the Buyer the following:
6.2.1 Specified Assets. To the extent that such are capable of being
physically delivered, all of the Specified Assets, including, without limitation
all Account Documents related thereto.
6.2.2 Documents of Transfer. Such bills of sale, assignments, deeds,
endorsements, affidavits, and other instruments and documents of sale, transfer,
assignment and conveyance as Buyer may reasonably request at or prior to the
Closing, in order to lawfully and effectively sell, transfer, assign and convey
to Buyer all right, title and interest in and to all of the Specified Assets, in
each case in form acceptable to Seller and Buyer, dated as of the Closing Date,
and duly executed and, if necessary, acknowledged by the Seller.
6.2.3 Incumbency and Secretary's Certificate. A certificate of the
Secretary of Seller as to the incumbency and signatures of the officers of
Seller executing this Agreement or any other agreement or document in connection
herewith, which certificate shall attach a copy of Seller's Certificate of
Incorporation, certified by the Secretary of State for the State of New York.
6.2.4 Resolutions. Copies of the resolutions duly adopted by the board
of directors and, if applicable, shareholders of Seller authorizing Seller to
enter into and perform this Agreement, certified by proper officers as in full
force and effect on and as of the Closing Date.
6.2.5 Good Standing. A good standing certificate for Seller from its
jurisdiction of incorporation, dated no earlier than 15 days before the Closing
Date.
6.2.6 Opinion of Counsel. An opinion of counsel to Seller addressed to
the Buyer and dated the Closing Date, in the form attached hereto as Exhibit
6.2.6.
6.2.7 Consents. Signed copies of all Consents listed on Schedule 4.2
and obtained by Seller prior to the Closing.
6.2.8 Federal Trade Commission Notices. Seller shall have notified the
Federal Trade Commission, in writing, of the transactions contemplated by this
Agreement (which notice shall be in the form attached hereto as Exhibit 6.2.8).
6.2.9 Closing of NCO Lakes Asset Acquisition Agreement. Evidence
reasonably satisfactory to the Buyer that the closing under the NCO Lakes Asset
Acquisition Agreement has occurred or shall occur simultaneously with the
Closing.
6.2.10 GE Capital Guarantee. An executed original guarantee of General
Electric Capital Corporation ("GE Capital") pursuant to which GE Capital
guarantees the full and prompt performance by Seller of all of its obligations
to the Buyer under this Agreement.
6.2.11 Other Documents. All other agreements, certificates, instruments
and documents reasonably requested by the Buyer at or prior to Closing in order
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to fully consummate the transactions contemplated by this Agreement and carry
out the purposes and intent of this Agreement.
6.3 Obligations of Buyer at Closing. At the Closing, the Buyer shall
deliver to Seller the following:
6.3.1 Purchase Price. A wire transfer of immediately available United
States federal funds in the amount of the Purchase Price, in accordance with
Seller's instructions as to payment.
6.3.2 Incumbency and Secretary's Certificate. A certificate of
Secretary of Buyer as to the incumbency and signatures of the officers of the
Buyer executing this Agreement and any other agreement or document in connection
herewith, which certificate shall attach a copy of Buyer's Articles of
Incorporation, certified by the Secretary of State for the State of Nevada.
6.3.3 Resolutions. Copies of the resolutions duly adopted by the board
of directors of the Buyer, authorizing the Buyer to enter into and perform this
Agreement, certified by proper officers as in full force and effect on and as of
the Closing Date.
6.3.4 Good Standing. A good standing certificate for Buyer from its
jurisdiction of incorporation, dated no earlier than 15 days before the Closing
Date.
6.3.5 Closing of NCO Lakes Asset Acquisition Agreement. Evidence
reasonably satisfactory to Seller that the closing under the NCO Lakes Asset
Acquisition Agreement has occurred or shall occur simultaneously with the
Closing.
6.3.6 NCOPM Guarantee. An executed original guarantee of NCO Portfolio
Management, Inc. ("NCOPM") pursuant to which NCOPM guarantees the full and
prompt performance by Buyer of all of its obligations to Seller under this
Agreement.
6.3.7 Opinion of Counsel. An opinion of counsel to Buyer addressed to
the Seller and dated the Closing Date, in the form attached hereto as Exhibit
6.3.7.
6.3.8 Other Documents. All other agreements, certificates, instruments
and documents reasonably requested by Seller at or prior to Closing in order to
fully consummate the transactions contemplated by this Agreement and carry out
the purposes and intent of this Agreement.
7. CERTAIN POST-CLOSING OBLIGATIONS
7.1 Transition and Cooperation. From and after the Closing Date, (a) Seller
shall cooperate to transfer to the Buyer, to the extent deliverable, the control
and enjoyment of the Specified Assets; (b) Seller shall not take any action,
directly or indirectly, alone or together with others, which obstructs or
impairs the smooth assumption by Buyer of the Specified Assets; and (c) Seller
shall promptly deliver to Buyer all of the Specified Assets sold to Buyer which
are described in Section 2.1 received by Seller or in the possession of Seller
and not previously delivered to Buyer.
7.2 Covenants of Seller Relating to Accounts.
(A) Seller agrees to take all appropriate steps to indicate on
its records that the Accounts (other than the Non-Assigned Accounts until the
applicable Consent is obtained) have been sold to, and are the property of,
Buyer.
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(B) Within sixty (60) days following the Closing Date, Seller
shall notify all credit reporting agencies, which were previously notified of
any Account's delinquency status, of the sale and transfer of such Account to
Buyer.
(C) Seller shall provide an affidavit stating that a specific
Account was purchased by Buyer within ten (10) business days of Buyer's request.
Buyer shall be reasonable in requesting affidavits and shall limit such requests
to circumstances where an affidavit is necessary in order to collect the
Account.
7.3 Covenants of Buyer Relating to Accounts. From and after the Closing
Date, Buyer shall ensure that any and all servicing, billing, processing,
communications, collections or recovery by or on behalf of Buyer with respect to
the Accounts shall comply, in all material respects, with all applicable Laws
(including, without limitation, all applicable consents, decrees, orders or
Judgments).
7.3.1 Use of Names. Until such time as the name change amendment
referred to in Section 6.2.9 of the NCO Lakes Asset Acquisition Agreement is
filed (the "Name Change Date"), Buyer shall use only Buyer's own name when
taking action in respect of Accounts. Buyer shall not state, represent or imply
that Buyer is connected in any manner with, or acting for or on behalf of,
Seller, Seller's affiliates or Seller's predecessors in interest with respect to
the Accounts. Buyer shall not refer to Seller, any of Seller's affiliates or
Seller's predecessors in interest with respect to the Accounts. The foregoing
notwithstanding, however, Buyer (and any person acting on behalf of Buyer, any
permitted assignee, subsequent purchaser of Accounts and any other Person
servicing such Accounts) may use the name of Seller or Seller's affiliates or
Seller's predecessors in interest with respect to the Accounts solely for the
purpose of identifying an Account (a) in communications with an Obligor on such
Account in order to collect amounts outstanding thereon, (b) in connection with
filing suit, (c) in connection with the sale or financing of the purchase of
such Account, (d) for internal reporting purposes, (e) in bankruptcy and probate
proceedings or (f) in connection with entering into any servicing arrangement;
provided, however, that neither Buyer nor any person acting on behalf of Buyer
or any permitted assignee, any subsequent purchaser of Accounts and any other
Person servicing such Accounts) shall state or represent in any way that it is
taking action for or on behalf of Seller or any of Seller's affiliates or
Seller's predecessors in interest with respect to the Accounts.
7.3.2 Collection of Certain Accounts. From and after the Closing Date,
Buyer shall not collect or attempt to collect any account listed in the Computer
File which does not constitute an Account (i.e., any accounts coded "PIF",
"SIF", "sold" or "fraud").
7.4 Further Assurances. At any time and from time to time after the Closing
Date, at Buyer's request and expense, and without further consideration, Seller
shall promptly execute and deliver all such further agreements, certificates,
instruments and documents, and perform such further actions, as Buyer may
reasonably request in order to fully consummate the transactions contemplated
hereby and carry out the purposes and intent of this Agreement; provided,
however, that notwithstanding the foregoing, in no event shall Seller have any
obligation to provide to or for the benefit of Buyer an affidavit certifying
account information including the validity, enforceability or account balance of
any particular Account or Accounts. Without limiting the generality of the
foregoing, Seller shall timely file all Tax returns and reports required to be
filed with respect to the Specified Assets and the Specified Liabilities for all
periods ending on or before the Closing Date.
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7.5 Post Closing Payments.
7.5.1 Subject to Sections 7.5.2 and 7.6 below, during the three (3)
year period beginning on the Closing Date, all payments received by Seller on
account of Accounts shall be held in trust for Buyer and shall be promptly paid
to Buyer.
7.5.2 After any repurchase of Accounts by Seller from Buyer pursuant to
Section 8.1, Buyer shall provide to Seller, within fifteen (15) days after the
end of each of Buyer's fiscal months, a report indicating the amount of payments
received by Buyer during the immediately preceding fiscal month in respect of
all Accounts repurchased pursuant to Section 8.1 hereof and shall remit to
Seller such amounts promptly after its provision of such report, except that,
with respect to any payments received during the fiscal month in which the date
of repurchase occurs, such report and remittance shall reflect only amounts
received on or after the date of repurchase.
7.6 Contract Matters. After the Closing, each Non-Assigned Account, each
Non-Assigned Account Document and each Non-Assigned Right shall be handled in
accordance with the following provisions:
7.6.1 Consent. Seller shall fully cooperate with Buyer in the Buyer's
efforts to obtain any required Consent to the assignment of such Non-Assigned
Account, Non-Assigned Account Document or Non-Assigned Right, as applicable. If
and when Consent to the assignment of such Non-Assigned Account, Non-Assigned
Account Document or Non-Assigned Right is obtained, such Non-Assigned Account,
Non-Assigned Account Document or Non-Assigned Right (as applicable) shall no
longer be subject to the provisions of this Section 7.6.
7.6.2 Subcontracting. Seller shall, to the fullest extent permissible,
make available to Buyer all Contract Rights and other benefits of the
Non-Assigned Account, Non-Assigned Account Document and Non-Assigned Right, on a
subcontract or sublease basis or in any other manner the parties deem
appropriate. In respect of any such arrangement between Seller and Buyer, Buyer
shall be deemed to be an independent subcontractor or sublessee of Seller. In
addition to and notwithstanding the foregoing, Buyer shall be considered
Seller's agent solely for purposes of (a) collecting all amounts that may be due
from Obligors in respect of the Non-Assigned Accounts and the other party or
parties to the Non-Assigned Account Documents; and (b) negotiating or otherwise
handling all disputes and issues that relate exclusively to such Non-Assigned
Account, Non-Assigned Account Document or Non-Assigned Right. Without Buyer's
prior written consent, Seller shall not agree to any amendment, modification,
extension, renewal, termination or other change in the terms of any Non-Assigned
Account, Non-Assigned Account Document or Non-Assigned Right, nor shall Seller
exercise any right under any Non-Assigned Account, Non-Assigned Account Document
or Non-Assigned Right.
7.6.3 Buyer's Instructions. To the extent permissible under such
Non-Assigned Account, Non-Assigned Account Document or Non-Assigned Right, upon
Buyer's request, Seller shall (a) notify the Obligor in respect of such
Non-Assigned Accounts and the other party or parties to such Non-Assigned
Account Documents or Non-Assigned Rights that Buyer is Seller's subcontractor or
sublessee with respect thereto and that all further payments, notices and other
communications with respect thereto shall be directed to Buyer; (b) exercise any
Contract Right in respect of such Non-Assigned Account, Non-Assigned Account
Document or Non-Assigned Right (as applicable) at such time and in such manner
as Buyer determines, in its sole discretion, to be advisable.
7.6.4 Collateral Assignment. Effective as of the Closing Date, Seller
hereby collaterally assigns to Buyer (except and only to the extent that such
collateral assignment is expressly prohibited by the terms of any Non-Assigned
Account, Non-Assigned Account Document or Non-Assigned Right), and grants to
Buyer a security interest in, all of Seller's Contract Rights in respect of such
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Non-Assigned Account, Non-Assigned Account Document and Non-Assigned Right and
all cash and non-cash proceeds thereof, as security for the prompt and timely
satisfaction and performance of Seller's obligations under this Section 7.6.
Buyer shall have, and Seller shall deliver to Buyer at the Closing, possession
of the original executed copy of each Non-Assigned Account Document. Effective
as of the Closing Date, Seller hereby appoints Buyer as Seller's attorney to
take such actions, in Seller's name and on its behalf, as Buyer determines, in
its reasonable discretion, to be necessary or advisable to protect, perfect and
continue perfected the security interest granted hereunder, including, but not
limited to, the execution and filing of such financing statements and other
instruments and documents as such attorney determines, in its reasonable
discretion, to be necessary or advisable for such purposes.
7.7 Access. Upon reasonable notice, each of Seller, on the one hand, and
Buyer, on the other hand, shall afford to the officers, employees, accountants,
counsel, financial advisors and other representatives of the other reasonable
access during normal business hours, to all of its properties, books, contracts,
files, papers and records, including, but not limited to, any computer software,
systems, hard drives or records (whether in hard copy or stored electronically),
and to its officers, employees and other personnel to the extent relating to the
Specified Assets or Specified Liabilities in connection with any Proceeding to
which Seller (or any of its affiliates or Buyer shall from time to time become a
party. The costs (including reasonable out of pocket costs) of any such access
shall be borne exclusively by the requesting party.
7.8 Maintenance of Records. Buyer shall maintain all Account Documents and
books and records related thereto, including, but not limited to, any computer
software, systems, hard drives or records (whether in hard copy or stored
electronically) transferred by Seller to it pursuant to the terms of this
Agreement for a period of six (6) years following the Closing Date. If Buyer
intends to destroy any or all of such Account Documents or related books and
records after six (6) years of the Closing Date, Buyer will promptly notify
Seller in writing of such intent and Buyer shall deliver such Account Documents
and/or related books and records to Seller, if so requested by Seller, following
its receipt of such notice from Buyer. In addition to the foregoing, Buyer shall
maintain, for a period of six (6) years from and after the Closing Date, an
electronic copy of the books and records of Seller relating to the Specified
Assets as at the Closing Date (or within a reasonable period of time thereafter)
in the format maintained by Seller immediately prior to the Closing.
7.9 Confidentiality.
7.9.1 General. All oral and written information about Seller and Buyer,
their respective businesses and clients, including Obligors, and this Agreement
(including the Purchase Price) (collectively, the "Confidential Information"),
are valuable and proprietary assets. Seller and Buyer (and each of their
respective employees and agents) shall treat the Confidential Information as
strictly confidential and, except as required by applicable Law, applicable
stock exchange rule or otherwise expressly authorized hereunder, will not
disclose such Confidential Information to any Person or use such Confidential
Information other than in accordance therewith; provided that Buyer may disclose
such Confidential Information to any subsequent purchaser or potential purchaser
of the Accounts or any lender providing financing for Buyer's acquisition of the
Accounts if (i) such purchaser or potential purchaser agrees to the terms of
this confidentiality provision in writing, (ii) such Confidential Information
directly relates to the Accounts purchased or proposed to be purchased and (iii)
the disclosure of such Confidential Information is reasonably required by such
purchaser or subsequent purchaser to collect or assess the Accounts. Each party
hereto will use its best efforts to ensure that its employees and agents
maintain such confidentiality. Each party hereto will notify the other party
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hereto immediately upon receiving a subpoena or other legal process about the
other party's Confidential Information and will cooperate with the other party
thereto to comply with or oppose the subpoena or legal process.
7.9.2 Limitation. This Section 7.9 will not apply to information,
documents, and material that are in or enter the public domain other than
through a wrongful act or omission of a party hereto.
8. REPURCHASE OF ACCOUNTS
8.1 Seller's Right to Repurchase. In the event that Seller at any time
determines that (i) there is a pending or threatened Proceeding against Seller
relating to an Account and resolution of the matter would be facilitated if
Seller owned such Account, or (ii) such Account should not be recovered or
collected or should not have been sold due to a possible legal defect or
infirmity, Seller may advise Buyer that it wishes to repurchase the same, in
which event Seller shall (x) purchase such Account for an amount equal to the
outstanding amount on the Account as of the date of repurchase multiplied by the
Repurchase Factor (provided that in lieu of purchasing any Performing Account
for cash, Seller may elect to transfer to Buyer a Performing Account of Buyer
which is substantially similar in balance, aging and performance to the Account
proposed to be repurchased pursuant to this Section 8) and (y) if Buyer is a
party to such Proceeding, agree, in writing, to indemnify Buyer against any and
all claims arising in respect of such Proceeding. Nothing contained in clause
(ii) of the immediately preceding sentence shall impose any duty on or
constitute a representation of Seller with respect to the validity,
enforceability or collectability of any Account.
9. INDEMNIFICATION
9.1 Seller Indemnification. From and after the Closing Date, Seller shall
indemnify and hold harmless the Buyer, its affiliates and their successors and
assigns, and their respective directors, officers, employees, agents and
representatives, from and against any and all actions, suits, claims, demands,
debts, liabilities, obligations, losses, damages, costs and expenses, including
without limitation reasonable attorney's fees and court costs, arising out of or
caused by, directly or indirectly, any or all of the following:
9.1.1 Misrepresentation. Any misrepresentation, breach or failure of
any warranty or representation made by Seller in or pursuant to this Agreement.
9.1.2 Nonperformance. Any failure or refusal by Seller to perform any
covenant of this Agreement required to be performed by it.
9.1.3 Unasserted Claims. Any action, suit or claim arising out of,
caused by or based upon any act or omission of Seller or any of its
shareholders, partners, directors, executives, officers, employees, agents or
representatives at any time before the Closing Date.
9.1.4 Non-Assumed Obligations. Any Obligation of Seller (other than any
Specified Liabilities), including, but not limited to (a) any such Obligation
that may be imposed upon the Buyer as a result of the failure by Seller to
comply with any bulk sales, bulk transfer, fraudulent conveyance or similar Law
of any jurisdiction that may be applicable to some or all of the transactions
contemplated by this Agreement; and (b) any such Obligation that may be imposed
upon Buyer or its affiliates as a result of any Law under which Buyer or its
affiliates may have successor liability for any Tax or other Obligations of
Seller.
9.2 Buyer Indemnification. From and after the Closing Date, the Buyer shall
indemnify and hold harmless Seller, its affiliates and their successors and
assigns, and their respective directors, officers, employees, agents and
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representatives, from and against any and all actions, suits, claims, demands,
debts, liabilities, obligations, losses, damages, costs and expenses, including
without limitation reasonable attorney's fees and court costs, arising out of or
caused by, directly or indirectly, any of all of the following:
9.2.1 Misrepresentation. Any misrepresentation, breach or failure of
any warranty or representation made by Buyer in or pursuant to this Agreement.
9.2.2 Nonperformance. Any failure or refusal by Buyer to perform any
covenant of this Agreement required to be performed by it.
9.2.3 Specified Liabilities . Any failure or refusal of the Buyer to
perform or satisfy in full (in accordance with the terms thereof) any of the
Specified Liabilities .
9.2.4 Unasserted Claims. Any action, suit or claim arising out of,
caused by or based upon any act or omission of Buyer or any of its shareholders,
partners, directors, executives, officers, employees, agents, independent
contractors or representatives at any time after the Closing Date.
9.2.5 Certain Other Liabilities. Any Proceeding or claim arising out
of, caused by or based upon, any action of Buyer or any of its employees,
officers, directors, agents, representatives, attorneys, assignees or affiliates
taken pursuant to or in connection with Section 7.6 hereof.
9.2.6 Subsequent Purchasers. Any action, suit or claim arising out of,
caused by or based upon any act or omission of any subsequent purchaser of any
Accounts and any of their respective shareholders, partners, directors,
executives, officers, employees, agents, or representatives at any time after
the Closing Date, to the extent it relates to the collection of the respective
Accounts.
9.3 Indemnification Procedures. With respect to each event, occurrence or
matter ("Indemnification Matter") as to which Buyer or Seller, as the case may
be, (in either case, referred to collectively as the "Indemnitee") is entitled
to indemnification from Seller or Buyer, as the case may be (in either case,
referred to collectively as the "Indemnitor") under this Section 9:
9.3.1 Notice. Within ten (10) days after the Indemnitee receives
written documents underlying the Indemnification Matter or, if the
Indemnification Matter does not involve a third-party action, suit, claim or
demand, promptly after the Indemnitee first has actual knowledge of the
Indemnification Matter, the Indemnitee shall give notice to the Indemnitor of
the nature of the Indemnification Matter and the amount demanded or claimed in
connection therewith ("Indemnification Notice"), together with copies of any
such written documents.
9.3.2 Defense. If a third-party action, suit, claim or demand is
involved, then, upon receipt of the Indemnification Notice, the Indemnitor
shall, at its expense and through counsel of its choice, promptly assume and
have sole control over the litigation, defense or settlement (the "Defense") of
the Indemnification Matter, except that (a) the Indemnitee may, at its option
and expense and through counsel of its choice, participate in (but not control)
the Defense; (b) the Indemnitor shall not consent to any Judgment, or agree to
any settlement, without the Indemnitee's prior written consent; provided,
however, (x) in the case of a monetary settlement of a type described in Section
8 hereof, the Indemnitee shall provide its consent to the Indemnitor if the
Indemnitor obtains a full release of liability of Indemnitee in connection with
such settlement and (y) in the case of any other monetary settlement where
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Indemnitor obtains a full release of liability of the Indemnitee in connection
with such settlement, the Indemnitee shall either (i) provide its consent to the
Indemnitor or (ii) continue to pursue the Indemnification Matter, at its sole
cost and expense, in which event Indemnitor shall have no further Obligation to
Indemnitee in respect of the Indemnification Matter, other than to indemnify the
Indemnitee in respect of such Indemnification Matter in an amount up to (and not
in excess of) the amount of the proposed Settlement; and (c) if the Indemnitor
does not promptly assume control over the Defense or, after doing so, does not
continue to prosecute the Defense in good faith, the Indemnitee may, at its
option and through counsel of its choice, but at the Indemnitor's expense,
assume control over the Defense. In any event, the Indemnitor and the Indemnitee
shall fully cooperate with each other in connection with the Defense, including
without limitation by furnishing all available documentary or other evidence as
is reasonably requested by the other.
9.3.3 Payments. All amounts owed by the Indemnitor to the Indemnitee
(if any) shall be paid in full within fifteen (15) business days after a final
Judgment (without further right of appeal) determining the amount owed is
rendered, or after a final settlement or agreement as to the amount owed is
executed.
9.3.4 Limits on Indemnification. Indemnitor's liability under this
Section 9 shall be limited as follows:
9.3.5 Basket. No amount shall be payable by the Indemnitor under this
Section 9 unless and until the aggregate amount otherwise payable by the
Indemnitor under this Section 9 exceeds One Hundred Thousand Dollars ($100,000)
(the "Basket"), in which event the Indemnitor shall pay all future amounts
payable by the Indemnitor under this Section 9 in excess of the Basket.
9.3.6 Ceiling. The Indemnitor's total liability under this Section 9
shall not exceed Twenty-Two Million, Nine Hundred Thousand Dollars ($22,900,000)
(the "Ceiling").
9.3.7 Time Periods. The Indemnitor shall have no liability with respect
to any Indemnification Matter unless the Indemnitee gives an Indemnification
Notice with respect thereto within eighteen (18) months after the Closing Date.
9.3.8 Basis of Sale. Buyer acknowledges that it is purchasing the
Accounts without reliance on any representations or warranties of Seller except
as expressly provided herein, and that the Purchase Price reflects such fact.
Buyer also agrees that no subsequent purchaser or assignee of the Accounts shall
have a direct cause of action against, or right of indemnification from, Seller
and that all purchase agreements with such Persons shall so provide.
9.3.9 Exceptions. None of the foregoing limitations shall apply in the
case of any Indemnification Matter involving (i) recklessness, intentional
misrepresentation, fraud or criminal matters; (ii) Taxes; (iii) covenants or
obligations to be performed after Closing; (iv) any non-assumed Obligations or
(v) acts or omissions arising from or in connection with the collection of
Accounts from and after the Closing Date.
9.4 Exclusive Remedy. Except with respect to fraud, willful misconduct or
any claims in respect of which injunctive relief or specific performance is the
sole remedy sought, this Section 9 and the indemnification rights provided for
herein shall be the sole remedies of the parties hereto in connection with any
dispute or claim arising under or related to this Agreement. The parties hereby
waive, with respect to each other, to the fullest extent permitted by law, any
and all other rights and remedies. In no event shall Seller be liable to Buyer
(or any assignee or successor in interest thereof) under this Section 9 for any
punitive damages arising hereunder.
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10. OTHER PROVISIONS
10.1 Fees and Expenses. The Buyer shall pay all of the fees and expenses
incurred by them, and Seller shall pay all of the fees and expenses incurred by
them, in negotiating and preparing this Agreement (and all other Contracts
executed in connection herewith or therewith) and in consummating the
transactions contemplated by this Agreement.
10.2 Notice. All notices, consents or other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given (a) when delivered personally, (b) three business
days after being mailed by first class certified mail, return receipt requested,
postage prepaid, or (c) one business day after being sent by a reputable
overnight delivery service, postage or delivery charges prepaid, to the parties
at their respective addresses stated on the first page of this Agreement.
Notices may also be given by prepaid telegram or facsimile and shall be
effective on the date transmitted if confirmed within 24 hours thereafter by a
signed original sent in the manner provided in the preceding sentence. Notice to
Seller at the address specified on page one of this Agreement shall suffice as
notice to Seller, provided that a copies thereof are simultaneously sent to
Seller's ultimate parent, GE Capital, addressed to the attention of each of the
President and General Counsel of GE Consumer Finance U.S. and Canada at 0000
Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000. Notice to the Buyer at the address
specified on page one of this Agreement, with a copy addressed to the attention
of the General Counsel at 000 Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000,
shall suffice as notice to Buyer. Any party may change its address for notice
and the address to which copies must be sent by giving notice of the new
addresses to the other parties in accordance with this Section 10.2, except that
any such change of address notice shall not be effective unless and until
received.
10.3 Survival of Representations. All representations and warranties made
in this Agreement or pursuant hereto shall survive for a period of eighteen (18)
months after the Closing Date.
10.4 Interpretation of Representations. Each representation and warranty
made in this Agreement or pursuant hereto is independent of all other
representations and warranties made by the same parties, whether or not covering
related or similar matters, and must be independently and separately satisfied.
Exceptions or qualifications to any such representation or warranty shall not be
construed as exceptions or qualifications to any other representation or
warranty.
10.5 Reliance by Buyer. Notwithstanding the right of the Buyer to
investigate the Seller's Business, the Specified Assets and financial condition
of Seller (but subject to the representation and warranty of Buyer set forth in
Section 5.3 hereof), the Buyer has the right to rely upon, and has relied upon,
each of the representations and warranties made by Seller in this Agreement or
pursuant hereto.
10.6 Entire Understanding. This Agreement, together with the Exhibits and
Schedules hereto, states the entire understanding among the parties with respect
to the subject matter hereof, and supersedes all prior oral and written
communications and agreements, and all contemporaneous oral communications and
agreements, with respect to the subject matter hereof, including without
limitation all confidentiality letter agreements and letters of intent
previously entered into among some or all of the parties hereto. No amendment or
modification of this Agreement shall be effective unless in writing and signed
by the party against whom enforcement is sought.
15
10.7 Publicity. Following the Closing Date, Seller and/or Buyer may issue a
press release concerning the transactions contemplated by this Agreement,
provided that such release is mutually acceptable to both Buyer and Seller.
Unless required by Law or stock exchange or The Nasdaq Stock Market regulation,
the parties shall not make any public announcement or issue any press release
concerning the transactions contemplated by this Agreement without the prior
written consent of the other parties, which shall not be unreasonably withheld
or delayed. With respect to any announcement that any of the parties is required
by Law or stock exchange or The Nasdaq Stock Market regulation to issue, such
party shall, to the extent possible under the circumstances, review the
necessity for and the contents of the announcement with the other parties before
issuing the announcement.
10.8 Parties in Interest. None of the parties may assign this Agreement or
any rights or obligations under this Agreement without the prior written consent
of the other parties. This Agreement shall bind, benefit, and be enforceable by
and against the parties hereto, and their respective successors and consented-to
assigns. Notwithstanding the foregoing provisions of this Section 10.8, the
Buyer may assign and pledge a security interest in and to its rights and
obligations under this Agreement to a lender providing financing for Buyer's
acquisition of the Accounts without obtaining Seller's prior written consent.
10.9 Waivers. Except as otherwise expressly provided herein, no waiver with
respect to this Agreement shall be enforceable unless in writing and signed by
the party against whom enforcement is sought. Except as otherwise expressly
provided herein, no failure to exercise, delay in exercising, or single or
partial exercise of any right, power or remedy by any party, and no course of
dealing between or among any of the parties, shall constitute a waiver of, or
shall preclude any other or further exercise of, any right, power or remedy.
10.10 Severability. If any provision of this Agreement is construed to be
invalid, illegal or unenforceable, then the remaining provisions hereof shall
not be affected thereby and shall be enforceable without regard thereto.
10.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original
hereof, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one counterpart hereof.
10.12 Section Headings. The section and subsection headings in this
Agreement are used solely for convenience of reference, do not constitute a part
of this Agreement, and shall not affect its interpretation.
10.13 References. All words used in this Agreement shall be construed to be
of such number and gender as the context requires or permits. Unless a
particular context clearly requires otherwise, the words "hereof" and
"hereunder" and similar references refer to this Agreement in its entirety and
not to any specific section or subsection of this Agreement.
10.14 Controlling Law. THIS AGREEMENT IS MADE UNDER, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED SOLELY THEREIN, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW.
10.15 Jurisdiction and Process. In any action between or among any of the
parties, whether arising out of this Agreement or otherwise, (a) each of the
parties irrevocably consents to the exclusive jurisdiction and venue of the
federal and state courts located in the Commonwealth of Pennsylvania and the
00
Xxxxx xx Xxx Xxxx; (b) if any such action is commenced in a state court, then,
subject to applicable law, no party shall object to the removal of such action
to any federal court located in the Commonwealth of Pennsylvania or the State of
New York; (c) each of the parties irrevocably waives the right to trial by jury;
(d) each of the parties irrevocably consents to service of process by first
class certified mail, return receipt requested, postage prepaid, to the address
at which such party is to receive notice in accordance with Section 10.2; and
(e) the prevailing parties shall be entitled to recover their reasonable
attorney's fees (including, if applicable, charges for in-house counsel) and
court costs from the other parties.
10.16 No Third-Party Beneficiaries. No provision of this Agreement is
intended to or shall be construed to grant or confer any right to enforce this
Agreement, or any remedy for breach of this Agreement, to or upon any Person
other than the parties hereto, including, but not limited to, any client,
prospect, supplier, employee, contractor, salesman, agent or representative of
Seller.
10.17 Neutral Construction. In view of the fact that each of the parties
hereto have been represented by their own counsel and this Agreement has been
fully negotiated by all parties, the legal principle that ambiguities in a
document are construed against the draftsperson of that document shall not apply
to this Agreement.
10.18 Bankruptcy Qualification. Each representation or warranty made in or
pursuant to this Agreement regarding the enforceability of any Contract shall be
qualified to the extent that such enforceability may be effected by bankruptcy,
insolvency and other similar Laws or equitable principles (but not those
concerning fraudulent conveyance) generally affecting creditors' rights and
remedies.
10.19 Escheat Laws. Notwithstanding anything to the contrary set forth
herein (including, without limitation, Section 2.1.1), Buyer shall be
responsible for, and assumes all liabilities with respect to, any applicable
abandoned property law, escheat Law or similar law relating to the Specified
Assets.
10.20 Knowledge of Seller. Every reference in this Agreement to the
knowledge of Seller shall refer to the knowledge of Xxxxxxx X. Xxxx (the
President of Seller), Xxxxx X. Xxxxxxx (the Chief Financial Officer of Seller)
or Xxxxx X. Xxxxxxx (the Secretary of Seller).
[signature page follows]
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EACH PARTY HAS CAUSED THIS AGREEMENT TO BE EXECUTED ON ITS BEHALF BY A DULY
AUTHORIZED OFFICER, AS OF THE DATE FIRST STATED ABOVE.
SELLER:
GREAT LAKES COLLECTION BUREAU, INC.
By:____________________________________
Title:_________________________________
BUYER:
NCOP LAKES, INC.
By:____________________________________
Title:_________________________________
