Charge-Off
Partners #4, L.P.
9611 Bell Mountain Dr.
Phone (512) 502-0300
THIS
AGREEMENT, made this _____________, 200_, by and between the
Charge-Off Partners #4, L.P., a Texas Limit
1.
In consideration of $____.00 with consideration to be made by cashier’s check or by
wire transfer, the Seller hereby sells, assigns, transfers and conveys to Buyer
without recourse, warranty, either express
2. With respect to the
Receivables, the Seller warrants that in reliance upon documents and
information furnished to it by Issuer or Owner immediately preceding Seller, to
the best of Seller’s knowledge and belief:
A. It has complied, to the best
of its knowledge and belief, with applicable federal, state and local laws, and
regulations relating to the making and collection of the Receivables up to the
date of the sale contemplated herein.
B. It owns good and marketable
title to all of the Receivables, free and clear of all liens and pledges,
except as described in this agreement.
C. It has full power and authority
to sell, assign, transfer and convey the Receivables to the Buyer, and all
other necessary proceedings required by state or federal statute on the part of
the Seller have been duly taken to authorize the sale.
D. All of the Receivables were
made for valuable considerations and are now legally enforceable obligations of
the respective persons shown as indebted thereon, except as may be limited by
statutes of limitations, bankruptcy, insolvency, moratorium, receivership,
conservatorship, reorganization, death, or similar laws affecting the rights of
creditors generally or equitable principles limiting the right to obtain
specific performance or other similar relief.
E. The persons shown as
indebted on the Receivables have not initiated any lawsuits against Seller, and
such persons have not asserted against Seller any legally enforceable rights to
set-off, counterclaim, cancellation, or legally enforceable claim that the
Receivables suffer from lack of consideration, forgery or alteration of such
person’s signature, except as may be disclosed or contained in the relevant
file or documents.
F. The amounts shown on the
hard copy and/or spreadsheet to be owing and unpaid on the respective
Receivables represent the amount that was represented to Seller by Issuer or
Owner immediately preceding Seller, to be due.
G. There are no judgments
against the Seller that could become a lien against the Receivables.
3. Seller agrees that if, as to
any of the Receivables, any of its warranties herein are breached or any claim
or defense exists against Buyer arising out of a breach of any warranty herein,
Seller will repurchase such Receivables on written demand from Buyer containing
proof of the breach for the same percentage of the net outstanding balance that
Buyer paid for such Receivables. Such
repurchase shall be Buyer’s exclusive remedy for any such breach.
4. Buyer shall not assume or
incur liability for any debt or other obligation on behalf of Seller. Buyer
shall not use Seller’s name nor the name of any of
Seller’s predecessors-in-interest, except for the limited purpose of describing
the account history or providing the name of the original creditor. Buyer shall
not claim connection or affiliation with Seller or any of its predecessors-in-interest.
5. Buyer may advise debtors who
are obligated on the Receivables that it has purchased such Receivables and
that all payments thereon shall be made to the Buyer and all legal and other
action respecting the Receivables shall be taken to the Buyer in its own name
and not the name of Seller. However, Buyer shall not own and may not collect
any of the receivables until it has paid the full purchase price for the
Receivables. Buyer and Buyer’s officers, directors, and shareholders agree that
until the full purchase price has been paid, any sums that they collect on the
Receivables shall be held in trust for Seller’s benefit and Buyer and Buyer’s
officers, directors, and shareholders shall be Seller’s fiduciaries with
respect to such collected funds.
6. Seller hereby constitutes
and appoints Buyer the true and lawful special attorney-in-fact of Seller in
the name and stead of Seller, on behalf of and for the benefit of Buyer, for
the sole and limited purpose of endorsing the name of the Seller without
recourse upon all checks, drafts, notes powers and other forms of exchange
received as payment on any of the affected Receivables, for a period not to
exceed 90 days from the closing date of this Agreement.
7. Seller further agrees that
any payments made by any account purchased herein, on or after the Closing Date
of this Agreement, and received by the Seller, shall be turned over and
delivered to Buyer. Seller may charge a
service fee of twenty percent of the funds received to cover administrative
costs.
8. The purchase and sale
contemplated by this Agreement may be subject to the approval of certain
regulatory authorities, and if so the parties agree to obtain such approval
prior to the Closing Date; otherwise, this Agreement shall be void at the other
party’s sole option. With respect to any of the Receivables, Buyer and any
subsequent owner shall have the right, at any time after the Closing Date,
after obtaining written consent from Seller and Original Seller, which will not
be unreasonably withheld, to assign its rights in and/or to any of the Receivables
to any subsequent transferee of such asset provided, however, that such
transferee shall be bound by all of the terms and provisions of this Agreement,
and Buyer shall remain liable for all of its obligations to Seller hereunder,
notwithstanding such assignment. As may be reasonably required by the Seller,
Buyer shall provide Seller with the request for consent to transfer the name,
address, and telephone number of proposed transferee(s) and a listing of the
related Assets transferred to such transferee(s) .
9. The parties acknowledge that
Seller and Seller’s predecessors-in-interest may recall or compel repurchase of
a Receivable. Therefore, Seller may recall any Receivable for any commercially reasonable
reason, upon notice to Buyer at any time after the Closing Date. (It shall not
be commercially reasonable to recall an account solely because the Account
Debtor or any third party is making payments on the Account.) Upon receipt of
such notice, Buyer shall immediately cease all communications with the Debtor
and other collection activity, and shall promptly cause its tradeline
to be deleted from any Credit Reporting Agencies as may be applicable, or cause
such tradeline to reflect the Account as having been
recalled. Within
five (5) business days of said recall notice, Buyer shall return said
Receivable to Seller. Within thirty (30)
business days of said recall notification, Buyer shall re-sell the
Receivable(s) back to Seller for the same percentage of the net outstanding
balance that Buyer paid for such Receivables. Any such repurchase may be
compelled by a suit for specific performance and shall not be subject to the
mandatory mediation requirement in Section 11(J) below.
10. This Agreement and any
disputes arising under or as a result of the negotiations or execution of this
Agreement shall be governed by and its provisions construed under the laws of
the State of
11. Buyer represents and
warrants to Seller that:
A. It is qualified to transact
business and duly licensed in all jurisdictions where necessary to purchase,
hold, collect or enforce the Receivables or any amounts due thereon.
B. That it has full power and
authority to purchase the Receivables from Seller and that all necessary
proceedings on its part have been duly taken to authorize this purchase.
C. It will comply with all
applicable laws, rules, regulations, ordinances and judgments relating to or in
any way affecting the purchase of the Receivables by Buyer, the ownership
thereof by Buyer or the collection or enforcement thereof by Buyer.
D. It will comply with all applicable
laws, rules, regulations, ordinances and judgments relating to or in any way
affecting its collection procedures.
E. Except as provided in
paragraph 5 hereof, the relationship of the parties is solely that of seller
and buyer and Buyer shall have no authority or capacity otherwise to bind or
commit Seller to any act, obligation or liability, nor shall Buyer have any
authority to bind Seller contractually.
F.
Buyer or its assignees will
not contact or in any way communicate with the Originator or as may be
applicable, Seller’s predecessor(s) in interest without Seller’s prior written
authorization.
G. Buyer expressly agrees and
warrants that the accounts that it has purchased pursuant to this agreement are
not “securities” as defined in any state or federal law, and that it will not
ever assert that the Receivables are securities.
H. As an express condition of
this sale, Buyer expressly warrants that it is knowledgeable and sophisticated
in the field of debt buying, that it has conducted its own investigation of and
due diligence concerning the receivables, and that it is relying solely upon
such investigation and not on any statement or representation of Seller
concerning the Receivables.
I.
Buyer will indemnify and hold Seller harmless from any and all claims,
demands, actions, causes of actions, suits, judgements actual or punitive
damages, statutory penalties, costs, fees and expenses arising from or in any
way connected with Buyer’s attempt(s) to collect on any Receivables or
concerning the failure of Buyer to keep or comply with any term, condition,
representation, warranty or agreement contained herein or the incorrectness or
falsity of any representation or warranty, which is or becomes untrue in any
material respect. The Seller will extend
all of its rights to indemnification against the original creditor and/or prior
owners of these receivables. The Seller
agrees that the Buyer will have no responsibility and will be fully indemnified
for all losses, judgements, expenses, and/or other costs (including all fees
and costs of legal counsel), for any acts or claims created by Seller.
J. All notices and other
communications between the parties shall be in writing and will be deemed given
on the date when delivered or the day received by facsimile transmission or
five days after mailed by registered or certified mail, return receipt
requested, to a party at the address shown on the signature page thereto. The
parties will negotiate in good faith in any effort to resolve any dispute. Any
controversy concerning this Agreement, which the parties cannot resolve within
thirty days, will first be directed to mediation in Austin, Travis County,
Texas, at the
12.
For a period of 12 months after the Closing
Date, Seller agrees to use reasonable efforts to deliver to Buyer copies of
available Evidence of Indebtedness for the same terms and for the costs as
charged or listed in Exhibit E. The terms
and costs charged or listed in Exhibit E are subject to changes imposed on
Seller by its predecessor-in-interest. Seller shall notify Buyer of any change
upon receipt of a request from Buyer for copies of available Evidences of
Indebtedness, after which time Buyer will remit to Seller any additional funds.
Buyer may request that Seller sign and notarize
affidavits using Seller’s form (or one approved by Seller) and prepared by
Buyer at a prepaid cost of $10.00 per account.
13. This Agreement represents
the entire agreement between the parties.
There are no promises, inducements, representations, or warranties not
expressly stated herein. This Agreement
may not be modified except by written instrument signed by all of the parties
hereto. This Agreement supersedes any
prior understandings or written or oral agreements between the parties
respecting the Receivables, or the rights and obligations of the parties
hereto. No waiver of any single breach or default will be deemed a waiver of
any other breach or default of this Agreement.
All rights and remedies, either under this Agreement or by law or
otherwise afforded to a party, will be cumulative and not taken in the
alternative.
ANY ADDENDUM OR EXHIBITS ATTACHED HERETO BECOME A PART OF AND ARE INCORPORATED INTO THIS AGREEMENT. THIS AGREEMENT MAY BE EXECUTED IN MULTIPLE IDENTICAL COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL.
Seller: Charge-Off Partners #4, L.P.
___________________________
By: Louise
Epstein, President,
Charge-Off General, G.P.
Charge-Off Partners #4, L.P.
Date:
Buyer:
________________________________
By:
Date:
EXHIBIT A
RECOURSE PROCEDURES
1. All accounts submitted for recourse must meet qualifications as outlined in Addendum to Purchase Agreement, Exhibit B.
2. Buyer agrees to provide
Seller hard copy verification of collection activity on each account submitted
for recourse, and with such backup documentation as Seller may reasonably
require.
3. Buyer agrees to provide
verification of Bankruptcy Discharge and Deceased as outlined in Addendum to
Purchase Agreement, Exhibit B.
4. Seller agrees to refund qualifying recourse accounts with the amount equal to the purchase price of that particular account.
5. Buyer must submit to Seller
all qualifying recourse accounts no later than _________.
6. Buyer agrees to forward to
Seller all files and documentation on qualifying recourse accounts as outlined
in Addendum to Purchase Agreement, Exhibit B, at Buyers expense, to:
Louise Epstein
9611 Bell Mountain Dr.,
________________________ ____________________________
By: Louise Epstein, President By:
Charge-Off General, G.P.
Charge-Off Partners #4, L.P.
EXHIBIT B
ADDENDUM TO PURCHASE AGREEMENT
RECOURSE QUALIFICATIONS
Bankruptcy
1. Account must have filed for bankruptcy (and the case must have not been dismissed) prior to the Closing date of this Agreement.
2. If there are two or more debtors or obligors on the same account, all debtors must have filed.
3. Bankruptcy must be verified by providing a copy of the filing or a letter from the attorney specifying the date of filing and the present status of the case; or a copy of a PACER Report specifying the filing date and present status.
Deceased
1. Debtor must have been deceased prior to the Closing date of this Agreement.
2. If there are two or more debtors on the same account or the debtor is in a non-community property state, all debtors must be deceased prior to the Closing Date.
Paid in Full /
Settled in Full
Verification must be provided.
Forgery / Fraud
Verification must be provided by forgery or fraud affidavit consisting of a signed, sworn statement saying that the alleged account holder had no involvement in or with the account and that he or she will participate in any criminal or civil proceeding related to the matter, accompanied by a copy of a drivers license or social security card and/or police reports or any other documentation which supports the claim for repurchase. The affidavit must be witnessed by a Notary Public or similarly appointed authority.
________________________ ____________________________
By: Louise Epstein, President By:
Charge-Off General, G.P.
Charge-Off Partners #4, L.P.
EXHIBIT C
Charge-Off
Partners #4, L.P.
9611 Bell Mountain Dr.
Phone (512) 502-0300
Charge-Off Partners #4,
L.P. (“Seller”) has enter
NOW, THEREFORE, for good and valuable consideration, Seller hereby sells, assigns, and transfers to Buyer all of Seller’s rights, title and interest in each and every one of the Receivables described in the Agreement, provided however that such transfer is made without any representations, warranties or recourse, except as provided in the Agreement.
Buyer and Seller agree that
the Purchase Price shall be as stat
IN WITNESS WHEREOF, Seller
has signed and delivered this instrument on the ___ day of ____________, 200_.
Louise Epstein,
President
Charge-Off
General, G.P.
Charge-Off
Partners #4, L.P.
EXHIBIT D
Charge-Off
Partners #4, L.P.
9611 Bell Mountain Dr.
Phone (512) 502-0300
States
Number
of Accounts
Outstanding
Balance $
Purchase
Rate $0.0
Shipping/Handling Includ
On or before the Closing Date of _______________, Buyer shall pay to Seller by cashier’s check or by
wire transfer or by otherwise imm
Funds
must be wired as follows:
Bank
Name
Credit
Bank Account Name
Credit
Bank Account Number
Signatory
Bank
Address:
Bank
Telephone: