EXECUTION COPY
ACCOUNT PURCHASE AGREEMENT
This ACCOUNT PURCHASE AGREEMENT, dated as of August 15, 2001, is by and
among YOUR:)BANK.COM, a Utah industrial loan corporation ("Seller"); Computer
Receivable Acquisition Group, LLC, a Delaware limited liability company
("Purchaser"), (i) with respect to Sections 6.5 and 7.1 only; Gateway, Inc., a
Delaware Corporation, (ii) with respect to Section 7.2 only; the following
companies: EMCC Servicing LLC, an Ohio limited liability company, Computer
Finance LLC, a Delaware limited liability company, EMCC, Inc., a Delaware
corporation ("EMCC") and Asta Funding, Inc., a Delaware corporation ("Asta").
W I T N E S S E T H:
WHEREAS, Seller has originated and has acquired certain credit card
accounts used to finance the purchase of personal computers and related
peripherals and software sold by Gateway, Inc. and its Affiliates ("Gateway");
and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller certain of the accounts and related property;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Definitions. For purposes of this Agreement, the following
terms shall have the meanings indicated:
"Account(s)" means a credit account (excluding accounts that have been
charged off as of the Effective Time) on which a purchase transaction has been
made by (or by a person authorized by) the Customer pursuant to a Credit Card
originally issued by Hurley State Bank or Seller that is identified on the Tape
in the "AMBS-INT-STATUS" field with the designate of "A" signifying an active
account. For purposes hereof, an "Account" includes, without limitation, all
Receivables thereunder, all rights to receive payment thereunder, all security
interests granted by the Customer (as hereinafter defined) and all Books and
Records with respect thereto. Descriptively, each Account is a consumer line of
credit owned by Seller, a wholly-owned subsidiary of Gateway. The Accounts
represent specialty credit card accounts issued by Hurley State Bank or Seller
since September 1999 to finance consumer purchases of Gateway's products having
an aggregate outstanding principal balance (including billed interest fees and
charges) as of the end of business of May 31, 2001 of approximately $264.3
million, excluding accounts that have been charged off as of the Effective Time.
For purposes of this Agreement, Account(s) excludes any account where a legal
claim or counterclaim has been filed by the Customer prior to the Closing Date
and accounts which reflect a zero or negative balance. However, Accounts from
Customers that are the subject of litigation listed on Schedule 5.2(l) are not
Accounts even though contained on the Tape.
"Account Balance" means the aggregate outstanding balance on any
Account including, but not limited to principal , billed interest, fees and
charges, which amount as of the Effective Time is identified on the Tape.
"Affiliate" means with respect to any person, any other person
controlling or controlled by or under common control with such person. For
purposes of this definition "control", when used with respect to any specified
person, means the power to direct the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; the terms "controlling" and "controlled" having meanings
correlative to the foregoing. For purposes of this definition, "person" means
any natural person or person by operation of law.
"Agreement" means this Account Purchase Agreement, including all
schedules and exhibits hereto, and, if amended, modified or supplemented, as the
same may be so amended, modified or supplemented from time to time.
"Applicable Law" means any applicable law, rule, regulation or
judicial, governmental or administrative order, decree, ruling, opinion or
interpretation.
"Assets to be Sold" shall have the meaning set forth in Section 2.1.
"August Collection Period" shall have the meaning set forth in Section
3.2(a).
"Bill of Sale Agreement" means a Bill of Sale Agreement in
substantially the form of Exhibit A hereto.
"Books and Records" means all of Seller's books, records, manuals,
documents, materials and other information related to the Accounts and used for
the creation and ongoing servicing or enforcement of the Accounts, in the paper,
electronic or other form in which they are maintained by Seller, including,
without limitation, each Loan Application, if any, Loan Agreement, retained
correspondence from or to any holder of an Account, individual FICO scores and
other underwriting data involved in the lending decision, all information
provided by or obtained from any credit reporting agencies relating to the
holder of the Account, and any other documents and materials specifically
relating to each Account.
"Closing" shall have the meaning set forth in Section 4.
"Closing Date" means August 23, 2001, or such later date as (a)
Purchaser may elect in accordance with Section 3.2 (such date not to be later
than August 31, 2001), or (b) such date as the parties may otherwise agree.
"Closing Statement" means a statement prepared by Seller and Purchaser
with respect to the Assets to be Sold as of the Time of Transfer and attached as
Exhibit B.
"Credit Account Information" shall mean Accounts, Loan Agreements, Loan
Applications, Account documents, credit cards, credit agreements, sales slips,
credit slips and other related documents relating to the Accounts.
"Credit Card" means a card originally issued by Hurley State Bank or
Seller and bearing the name, logo or symbol(s) of Gateway or bearing or
including the name "Gateway" and commonly known as a credit card.
"Customer" means an obligor under an Account.
"Effective Time " means 12:01 AM on June 1, 2001.
"Gross Collections" refers to the gross collections received on an
Account without reduction for expenses or other reasons.
"Lien" means any lien, mortgage, security interest, pledge, charge,
equity, encumbrance or interest of any kind whatsoever with respect to the
Assets to be Sold.
"Loan Agreement" means, with respect to any Account, the written
agreement entered into by and between the Seller or Hurley State Bank, as
applicable, and the Customer on such account in respect thereof setting forth
the terms and conditions for such Account, all forms of which are attached
hereto as Exhibit D-1.
"Loan Application" means, with respect to any Account, the electronic
data relating to an applicant captured at the point of sale by the sales
representative when the applicant applied for an Account, all forms of which are
attached hereto as Exhibit D-2.
"Purchase Percentage" shall mean thirty-three percent (33%)
"Purchase Price" shall have the meaning set forth in Section 3.1 below.
"Receivable" means all financial obligations of each Customer arising
under the Accounts, including but not limited to, any amounts owing for the
payment of goods and services, periodic finance charges, late charges, returned
checks and any other fee, expense or charge of every nature, kind and
description whatsoever, excluding receivables deemed charged off accounts prior
to the Effective Time.
"Refund" means the amount payable under Section 6.5.
"Tape" shall refer to an electronic tape of Accounts for the
Receivables which is readable and easily convertible encompassing the entire
master file, together with a copy of the record layout thereof.
"Time of Transfer" means 12:01 AM PST on the Closing Date.
"Trust Account" shall have the meaning set forth in Section 3.2(b).
"Total Outstanding Receivables Balance" means the aggregate of the
Account Balances of all Receivables.
2. Assets to be Sold
2.1 Sale and Purchase. On the Closing Date, effective as of the
Effective Time and subject to the terms and conditions set forth herein, Seller
shall sell, transfer, assign and otherwise convey to Purchaser, on a servicing
released basis, free, clear and unencumbered title in and to the following: (i)
the Accounts, (ii) the Credit Account Information, and (iii) all other rights,
businesses, properties, agreements and assets relating to the foregoing ((i),
(ii) and (iii) above collectively, the "Assets to be Sold").
Except as specifically provided for in this Agreement, the sale of the
Accounts and the other Assets to be Sold is made without recourse to Seller (and
Seller shall have no right in any event to reacquire the Accounts or the Assets
to be Sold).
3. Consideration for Assets to be Sold.
3.1 Purchase Price. In consideration for the sale by Seller to
Purchaser of the Assets to be Sold as provided in Section 2.1 above, Purchaser
agrees to pay Seller, as adjusted in Section 3.2 below, on the Closing Date, an
amount equal to (1) the product of (i) the Purchase Percentage, multiplied by
(ii) the Total Outstanding Receivables Balance as of the Effective Time (which
amount is as set forth on the Tape)(the product of (i) and (ii) being the
"Purchase Price"), plus (2) the amount of compensation due and payable by Seller
to Ironwood Capital in connection with the sale of the Receivables to Purchaser
(being 33 basis points (.33%) of the Purchase Price, not to exceed $300,000),
less (3) the amount the Purchaser has identified as qualifying for a Refund
prior to the Closing Date pursuant to the standards set forth in Section 6.5
below. Assuming the aggregate principal balance of the Receivables as of the
Effective Time is $264,267,727, and that no Accounts are determined to qualify
for a Refund prior to the Closing Date, then the Purchase Price for the
Receivables is $87,208,350, plus $287,788 in commissions for Ironwood Capital.
3.2 Purchase Price Payment Adjustments.
(a) At Closing. The actual payment made by Purchaser to Seller on
the Closing Date in respect of the Purchase Price shall be (x) reduced in an
amount equal to (i) the Gross Collections from the Effective Time through July
31, 2001 because Seller will be deemed to have collected such payments on
Purchaser's account during such time period, plus (ii) $8,000,000, which amount
is an estimate of the collections from August 1, 2001 through August 31, 2001
(the "August Collection Period"), and (y) increased in an amount equal to the
direct out of pocket servicing costs associated with the Accounts, paid by
Seller to Associates Commerce Solutions ("Associates") for the Effective Time
through the Closing Date (consistent with the pricing set forth on Exhibit B of
the current Service Agreement between Seller and Associates, a copy of which has
been provided by Seller to Purchaser and is attached hereto as Exhibit F (the
"Servicing Agreement")) because Seller will be deemed to have made any such
payments on Purchaser's account during such time period.
Purchaser shall have the right to extend the Closing Date beyond August
23, 2001, but in no event beyond August 31, 2001, unless such extension is due
to Seller's inability to close on or before August 31, 2001 or the failure of a
condition precedent to Purchaser's closing obligation (an "Extending Event"). In
the event Purchaser extends the Closing Date beyond August 23, 2001 and such
extension is not due to an Extending Event, Purchaser shall pay Seller a per
diem amount equal to the net amount to be wired to Seller by Purchaser as set
forth on the Closing Statement, multiplied by a factor of .000132, until the
earlier of the actual Closing Date or August 31, 2001.
(b) Reconciliation. Purchaser and Seller shall no later that
September 10, 2001 reconcile actual Gross Collections for the August Collection
Period. To the extent that Gross Collections during the August Collection Period
are (i) less than $8,000,000, then Purchaser shall pay to Seller the difference
between such Gross Collections and $8,000,000 within five business days of
determining such amount, or (ii) greater than $8,000,000, then Seller shall pay
to Purchaser the difference between such Gross Collections and $8,000,000 within
five business days of determining such amount. Purchaser shall receive the full
benefit of all collections received by Seller or its agents after the Effective
Date regardless of whether agents of Seller, such as outside third party
collection agencies, may have received the funds prior to the Effective Date
(net of any outside third party collection agency fees or the like).
Seller shall cause Associates to deposit on a daily basis all Gross
Collections and all other collections on the Seller's receivables received after
September 1, 2001 by Associates which cannot be properly identified as being due
either Seller or Purchaser into a trust account in a form reasonably acceptable
to Seller and Purchaser (the "Trust Account") requiring the joint signatures of
Purchaser and Seller. Purchaser's and Seller's representatives shall on a daily
basis cause collections deposited into the Trust Account to be transferred as
follows: (i) Gross Collections and gross collections on those certain charged
off receivables purchased by Purchaser from Seller pursuant to an Account
Purchase Agreement dated as of August 15, 2001 and executed simultaneously with
this Agreement shall be transferred to the Purchaser, and (ii) all other
collections on Seller's receivables shall be transferred to the Seller. Seller
and Purchaser shall work in good faith together and with Associates to attempt
to have Customers redirect their payments to Purchaser or Seller, as may be
appropriate.
3.3 Closing Statement. Seller and Purchaser will execute a Closing
Statement, as Exhibit B, detailing the Purchase Price calculations described in
Sections 3.1 and 3.2 above.
3.4 Documents Due on or before the Closing Date. On or before the
Closing Date, (a) Seller and Purchaser shall each execute and deliver a Bill of
Sale Agreement in the form attached as Exhibit A; (b) Seller shall deliver to
Purchaser (i) the Credit Account Information, and (ii) the Tape with data as of
the Effective Time which Seller has delivered to Purchaser, the contents of
which are hereby incorporated herein by reference; and (c) Seller shall execute
and deliver to Purchaser (i) such Uniform Commercial Code financing statements
as may be reasonably required to evidence the sale contemplated hereby, (ii) an
incumbency, secretary's or similar certificate, (iii) powers of endorsement in
the form attached hereto as Exhibit E, and (iv) a "Goodbye Letter" signed by
Seller and Addressed to Customers in a form to be mutually agreed upon, provided
that the expense and responsibility for sending such Goodbye Letters shall be
borne by Purchaser; and (d) Purchaser shall execute and deliver to Seller an
incumbency, secretary's or similar certificate.
3.5 Treatment as a Sale. The parties intend that the sale of the
Assets to be Sold hereunder shall constitute a purchase and sale and not a loan.
4. Closing. The closing with respect to the sale and purchase of
the Assets to be Sold (the "Closing") shall take place on the Closing Date at
the offices of Gateway, Inc. located in San Diego, California or such other
mutually agreed location. If the Closing has not occurred: (i) on or before
August 31, 2001 because the conditions precedent (as specified in Sections 9) to
Seller's obligation to close have not been satisfied or waived, or (ii) on or
before October 6, 2001 because the conditions precedent (as specified in Section
8) to Purchaser's obligation to close have not been satisfied or waived, then
the party who was prepared to close but for the other party's inability to close
may elect to terminate this Agreement. The parties shall each attempt in good
faith to satisfy all conditions precedent and close this transaction.
5. Representations, Warranties and Covenants
5.1 Purchaser's Representations, Warranties and Covenants.
Purchaser hereby represents and warrants, as of the Closing Date and as of the
date of execution of this Agreement, that:
(a) Purchaser is a limited liability company duly organized,
validly existing and in good standing under the laws of the state of Delaware
and has the full power, authority and legal right to execute and deliver, engage
in the transactions contemplated by, and perform and observe the terms and
conditions of, this Agreement. The members of Purchaser and their respective
ownership interests of Purchaser are EMCC Servicing LLC (50%) and Computer
Finance LLC (50%).
(b) Purchaser (and its Affiliates) are solely liable and
responsible for compensating any of its brokers and agents in connection with
the transactions contemplated by this Agreement and as reimbursement to Seller
for its broker pursuant to Section 3.1.
(c) Assuming the due authorization, execution and delivery of this
Agreement by Seller, this Agreement constitutes the legal, valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms, subject as to enforceability to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting the sale of accounts receivable
generally, and to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(d) The execution, delivery and performance by Purchaser of this
Agreement and the transactions contemplated hereby do not and will not violate,
conflict with or result in a breach or default under Purchaser's organizational
documents, any federal or state law applicable to Purchaser or any agreement to
which Purchaser is a party or by which Purchaser or any of its property is
bound.
(e) No authorization, approval, consent or other action by, and no
notice to or filing with, any governmental authority or other person needs to or
will be made or obtained by Purchaser for the due execution, delivery or
performance of this Agreement and the transactions contemplated hereby.
5.2 Seller's Representations, Warranties and Covenants. Seller
hereby represents and warrants, as of the Closing Date and as of the Effective
Time, or such other date specifically set forth below, that:
(a) Seller is an Industrial Loan Corporation duly organized,
validly existing and in good standing under the laws of State of Utah and has
the full power, authority and legal right to execute and deliver, engage in the
transactions contemplated by and perform and observe the terms and conditions of
this Agreement.
(b) Seller (and its Affiliates) are solely liable and responsible
for compensating any of its brokers and agents in connection with the
transactions contemplated by this Agreement, except that, pursuant to Section
3.1, the amount of any compensation otherwise due and payable by Seller to
Ironwood Capital (up to $300,000) in connection with the transactions
contemplated by this Agreement shall instead be paid by Purchaser on the Closing
Date.
(c) Assuming the due authorization, execution and delivery of this
Agreement by the Purchaser, this Agreement constitutes the legal, valid and
binding obligation of Seller, enforceable against Seller in accordance with its
terms, subject as to enforceability to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting the sale of accounts receivable
generally, and to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(d) The execution, delivery and performance by Seller of this
Agreement and the transactions contemplated hereby do not and will not violate,
conflict with or result in a breach or default under Seller's organizational
documents, any federal or state law applicable to Seller or any agreement to
which Seller is a party or by which Seller or any of its property is bound.
(e) No authorization, approval, consent or other action by, and no
notice to or filing with, any governmental authority or other person needs to or
will be made or obtained by Seller for the due execution, delivery or
performance of this Agreement and the transactions contemplated hereby, except
for a notice required to be given and which shall be provided to the FDIC in the
ordinary course prior to the Closing Date.
(f) Liens, Encumbrances and Title:
(1) Seller is the lawful owner of the Assets to be
Sold, free and clear of all Liens and encumbrances, including
claims of servicers and any other agents of Seller, Gateway
and their respective Affiliates.
(2) Upon the purchase of the Assets to be Sold by
Purchaser hereunder, Purchaser will acquire free, clear and
unencumbered title in and to the Assets to be Sold.
(g) Books and Records and Accounting:
(1) All balances stated as being due on the Tape and
the Books and Records as delivered to Purchaser are true and
correct as of each delivery of the Tape and Books and Records
to Purchaser.
(2) All Books and Records and other information (not
stated in subsection (g)(1)) relating to the Accounts
delivered to Purchaser under this Agreement (including the
Tape) are true and correct. All information relating to the
credit, charges, fees, payment history, customer inquiries,
regulatory correspondence and other relevant information which
is known or available to Seller relating to such Account is
contained in the relevant Books and Records.
(3) All payments or monies received with respect to
the payment of any Receivable have been properly applied and
set forth on the Tape and Books and Records, and except as
described in Section 5.2(n), the Receivables have not been
settled in full or in part for a lesser amount.
(h) The origination, administration and collection of each Account
prior to the Closing Date complied in all material respects with all applicable
federal and state laws and regulations, including, without limitation, the
requirements of the Fair Debt Collection Practices Act (15 U.S.C. 1692 et seq.).
(i) No Account is subject to any valid defense or set-off.
(j) Each Account has been properly created, maintained and
serviced in all material respects solely by Seller or Hurley State Bank (or
their respective Affiliates) or any other third-party contractor, including
Associates, in full accordance with Seller's or Hurley State Bank's (as
applicable) policies and procedures, all requirements of Applicable Law and in a
manner consistent with, and not in violation of, any standard and customary
practices utilized by prudent lenders engaged in the consumer lending
businesses.
(k) [Intentionally Omitted]
(l) Litigation:
(1) There are no actions, suits or proceedings by or on
behalf of a Customer or other third party which are pending
against or affecting the Accounts. There are no actions, suits
or proceedings which are pending against or affecting other
lines of credit owned by Seller or Gateway similar to the
Accounts except as identified on Schedule 5.2(l) attached
hereto and incorporated herein by this reference.
(2) There are no actions, suits or proceedings by or on
behalf of a Customer or other third party which have been
threatened in writing against or affecting the Accounts,
except as identified on Schedule 5.2(l) attached hereto and
incorporated herein by this reference.
(m) Each Account was entered into pursuant to one of the Loan
Agreements and Loan Applications attached hereto as Exhibits D-1 and D-2.
(n) Settlement offers were provided to certain Customers who
became sixty or more days delinquent. No discounts greater than 20% to 50% have
been offered on the Receivables in the ordinary course, with such settlement
amounts generally determined based upon a variety of factors, including severity
of delinquency, ability to pay and other reasonable data; provided, however that
greater discounts have been offered from time to time outside the ordinary
course in extenuating circumstances to not more than six percent (6%) of the
Accounts, such as in the case of a deceased Customer or where payment is being
made by the parent or guardian of a young Customer. In no event were any
discounts offered until the relevant Account became sixty or more days
delinquent. If a settlement was received and accepted as payment in full for an
Account, the Account Balance has been written down to $0 and is so reflected on
the Tape.
(o) The terms of the Loan Agreements in existence as of the
Effective Time are legally enforceable.
(p) [Intentionally Omitted]
(q) Fraud.
(1) No Account was fraudulently created by Seller.
(2) No Account was fraudulently created by the Customer.
(r) The sale of the Receivables hereunder is not a fact or
circumstance indicating that an indebtedness has been discharged with respect to
the Receivables in accordance with 26 U.S.C.ss.6050P and 26
C.F.R.ss.1.6060P-1(b)(2)(iv)(B). Seller agrees that it shall not file a Form
1099-C with respect to any of the Receivables.
(s) As of the Effective Time, no Customer was deceased, nor was
any Customer in a case under the Bankruptcy Code (whether Chapter 7 or Chapter
13), nor had any Customer filed for a case under the Bankruptcy Code prior to
the Effective Time and after the creation of the Account (even if such petition
was later dismissed).
(t) Seller and Gateway are solvent as defined in Section 548 of
the United States Bankruptcy Code.
(u) Seller shall or shall cause Gateway to continue providing
warranty and similar coverage, including customer and product support, to
Customers consistent with Gateway policy then in effect covering Gateway's
customers in general.
6. Certain Agreements of Purchaser and Seller
6.1 Further Assurances
(a) By Seller. On and after the Closing Date, Seller shall (i)
give such further assurances to Purchaser and shall execute, acknowledge and
deliver all such acknowledgments and other instruments and take such further
action as may be reasonably necessary and appropriate to effectively vest in
Purchaser the full legal and equitable title to the Assets to be Sold, free,
clear and unencumbered of Liens and to effectuate the purposes of this
Agreement; and (ii) effect the orderly transition of the Accounts acquired by
Purchaser.
(b) By Purchaser. On and after the Closing Date, Purchaser shall
give such further assurances to Seller and shall execute, acknowledge and
deliver all such acknowledgments and other instruments and take such further
action as may be necessary and appropriate to relieve and discharge effectively
Seller from any obligations remaining under those liabilities and obligations
specifically assumed by Purchaser hereunder and to effectuate the purposes of
this Agreement.
(c) Litigation. Purchaser may be required to commence litigation
with respect to the collection of the Accounts transferred to Purchaser. Seller
shall, or shall cause Gateway, to provide reasonable cooperation to Purchaser in
order to provide reasonable, non-privileged, non-proprietary or confidential
documentation that may be in Seller's possession after the Closing that were not
transferred to Purchaser at Closing in order to assist Purchaser's efforts to
prove that the debt is owed. Seller shall also provide affidavits of debt to
Purchaser should Purchaser reasonably request such affidavit in order to
effectuate collection. Any reasonable out-of-pocket costs of Seller incurred in
this process shall be paid by Purchaser.
(d) Additional Credit. Seller shall legally cancel all rights of
Customers to receive additional credit under the Accounts prior to the Closing
Date.
6.2 Use of Customer Data. Purchaser shall not be permitted to
sell, transfer or otherwise provide any Credit Account Information to any direct
or indirect competitor of Gateway listed on Schedule 6.2 attached hereto and
incorporated herein by this reference ("Competitor(s)"). The Competitors listed
on Schedule 6.2 are sellers or providers of personal computers, servers,
Internet access devices, peripheral devices, software, Internet access services
or training, education, service or support relating to any of the foregoing
("Competitive Products"). Purchaser shall not solicit Customers to offer to them
any Competitive Products, and no solicitations or offers for Gateway products or
services shall be made without the prior written consent of Gateway.
Purchaser acknowledges that a breach of this Section 6.2 would cause
irreparable harm, and that it would be difficult to compensate fully with
damages for a violation of this Section 6.2. Accordingly, Purchaser agrees that
Gateway shall be entitled to temporary and permanent injunctive relief to
enforce this Section 6.2; this provision shall not however be deemed to diminish
or supplant the right of Gateway to claim and recover money damages for any
breach hereof in addition to obtaining equitable relief therefor.
6.3 Certain Transitional Matters
(a) Changes in Ownership and Terms. Seller and Purchaser shall
work together to create the required regulatory notices.
(b) Reporting to Credit Bureaus. Seller and Purchaser shall
jointly assume responsibility for reporting the sale of the Accounts to the
relevant credit bureaus.
(c) Servicing of Accounts.
(1) From the Effective Time through (30) thirty days after the
Closing Date or September 30, 2001, whichever is later (the
"Transition Date") Seller shall continue to service the
Receivables through Associates consistent with past practice
at a reimbursable cost solely related to the Receivables not
to exceed the monthly per account charge set forth on Schedule
B of the Servicing Agreement (provided that Purchaser shall
not be obligated to pay any costs charged by Associates in
connection with the transfer of the Receivables to Purchaser).
After the Effective Time, no mass or blanket settlements on
Accounts have occurred unless such accounts were at least
ninety (90) days past due on or before July 16, 2001. No mass
or blanket settlements on Accounts shall be offered after July
16, 2001 without Purchaser's direction or consent in its sole
discretion.
(2) On the Closing Date, Seller shall notify Associates in
writing (in a form reasonably acceptable to Purchaser and
which shall include an executed acknowledgment from
Associates) that from the Closing Date through the Transition
Date Purchaser shall have the right to monitor and direct
Associates' activity and collection programs relative to the
Accounts, provided such monitoring and direction are in
compliance with the terms and provisions of the Servicing
Agreement. This right shall terminate in the event of a
termination of this Agreement.
(3) From and after the Transition Date, Purchaser shall have
sole responsibility to maintain and service the Accounts in
accordance with all requirements of Applicable Law, and shall
be responsible for all payments therefore accruing from and
after the Closing Date.
(4) From and after the Transition Date, Purchaser shall have
the sole and exclusive right to collect the Receivables.
Seller, to the extent it receives collections from the
Receivables which are not deposited into the Trust Account
shall transfer such collections to Purchaser within five
business days. Seller shall also cause any Affiliate to comply
with the provisions of this section as if it was a Seller
hereunder or shall otherwise be liable for the failure of an
Affiliate or servicer with which Purchaser is not in privity
to comply with this section.
(5) Seller shall irrevocably notify Associates on the Closing
Date, and Associates shall acknowledge, that Purchaser shall
have the sole and exclusive right to direct payments and
otherwise monitor and direct Associates' activity and
collection programs relative to the Accounts through the
Transition Date pursuant to the terms and conditions of the
Servicing Agreement. Thereafter, all servicing shall be
released to Purchaser.
(d) Seller shall cause Associates to effectuate an orderly
transfer of servicing to Purchaser, including, but not limited to: (i) the
timely delivery of cash, (ii) the providing of an accurate Tape as of the close
of business on September 30, 2001, on or before October 10, 2001, and (iii) on
or before October 10, 2001, the completion of all of the items on attached
Schedule 6.3(d) provided that Associates shall continue thereafter be
responsible for remitting all collections on the Accounts to the Purchaser.
(e) Notification of Account Debtors and Third Parties. Purchaser
may at any time on or after the Closing Date notify Customers that their Account
and the servicing thereof has been sold and assigned to Purchaser, and that
amounts due with respect thereto shall be paid directly to Purchaser. Seller
shall, at Purchaser's request and in a form reasonably acceptable to Purchaser,
notify Customers that their Accounts have been sold or otherwise assigned to
Purchaser via the Goodbye Letter. After the Closing Date Seller shall, at
Purchaser's request, notify collection agencies and collection attorneys that
the Receivables have been sold to Purchaser and that all amounts collected on
the Receivables shall be delivered directly to Purchaser and that they shall
only take directions from Purchaser. The letter to said collection agencies and
attorneys shall be jointly prepared by Purchaser and the Seller promptly and in
any event prior to the Closing Date.
(f) Seller shall, or shall cause Gateway to take the following
actions with respect to any payment made by a Customer which was either
unapplied or misapplied on the records of Seller as represented by the Tape for
the amounts set forth below:
(1) with respect to any unapplied or misapplied
payments prior to or on the Effective Time which Purchaser did
not otherwise receive or receive credit for, Purchaser shall
be reimbursed in an amount equal to the amount of such
unapplied or misapplied payments multiplied by the Purchase
Percentage;
(2) with respect to any unapplied or misapplied
payment after the Effective Time which Purchaser did not
otherwise receive or receive credit for, Purchaser shall be
reimbursed by an amount equal to the amount of such unapplied
or misapplied payment multiplied by 100%; and
(3) any payments due pursuant to this subsection (f)
shall be paid within five business days of notice of such
unapplied or misapplied payment.
6.4 No Assumption of Liabilities. Except as provided in this
Agreement, Purchaser, in acquiring Receivables pursuant to this Agreement, is
not assuming any liability or any obligation of Seller, Gateway or their
Affiliates or servicers that arises out of any event or condition occurring or
existing at any time through the Closing Date, including without limitation any
litigation threatened, pending or instituted against such parties, unpaid sales
or intangible taxes or any products liability claim (with respect to product
liability claims relating to Gateway products, Purchaser will assume no
liability whatsoever regardless of when occurring or existing), and Gateway and
Seller acknowledge that such obligations shall remain with either Gateway or
Seller as may be appropriate.
6.5 Remedies of Purchaser for breaches of Section 5.2. The
following provisions shall apply solely for valuing the reduction in value in
connection with claims relating to a breach of Section 5.2 ("Claims") and shall
not limit Purchaser's or any other party's rights pursuant to Section 7.1 or
otherwise to claim for other losses or damages other than loss of the value of
any Account (provided that Purchaser shall have the right to seek reimbursement
of all or a portion of the Purchase Price in seeking indemnification pursuant to
Section 7.1 in connection with third party claims):
(a) Right to Refund. A breach of any representation or warranty
contained in subsections 5.2(g)(1), (g)(3), (i), (l)(1), (o), (q)(1), (q)(2) or
(s) shall entitle Purchaser to recover from Seller an amount equal to the
Account Balance of the affected Account(s) as of the date of notification by
Purchaser to Seller of the Claim, multiplied by the Purchase Percentage,
provided that such loss shall not exceed an amount equal to the Account Balance
of the affected Account(s) as of the Effective Time multiplied by the Purchase
Percentage.
(b) Other Rights to Refund. A breach of any subsection of Section
5.2 other than a subsection expressly numerated in Section 6.5(a) shall entitle
Purchaser to recover from Seller the loss in value of the affected Account
provided that such loss shall not exceed an amount equal to the Account Balance
of the affected Account(s) as of the Effective Time multiplied by the Purchase
Percentage.
(c) Time Period. For purposes of determining if Purchaser may
recover under Section 6.5(a) or (b), the breach of the representations and
warranties in subsections 5.2(g)(1) and (3), (n) and (s) must be presented to
Seller, in writing, with reasonable proof on or before December 31, 2001. In
addition, after December 31, 2001, Purchaser shall not assert a claim under
Section 6.5(a) arising from a defense raised by an individual Customer on an
individual basis unless (i) that Customer is acting in concert with other
similarly situated Customers or with third parties (including without limitation
legal counsel for other Customers, or government agencies), (ii) the defense is
based on a ruling order or directive of a government authority that may affect a
cluster (being 25 or more Accounts or Customers) of similar Accounts or
Customers, or (iii) the same defense affects a cluster (being 25 more Accounts
or Customers) of similar Accounts or Customers.
(d) Submissions of Claims. Purchaser may submit to Seller all
Claims and the parties will cooperate to resolve such Claims under the following
process.
(1) Purchaser may submit a list of Claims to Seller along
with reasonable evidence of the basis for such Claims and the
amount in which Purchaser believes it is entitled to be paid.
If evidence as outlined in Schedule 6.5 is provided to Seller
and certified by Purchaser, such evidence is presumptively
sufficient as to the breach;
(2) Within thirty (30) days of receipt of such list,
Seller shall either accept or reject each individual Claim by
notifying Purchaser in writing, except for such Claims where
evidence in compliance with Schedule 6.5 has been provided to
Seller, in which case Seller may not reject the Claim
(although Seller may object to the amount of any Claim
pursuant to Section 6.5(b). If Purchaser shall not have been
notified in writing of Seller's acceptance or rejection of any
Claim during such (30) thirty-day period, the Claim shall be
deemed accepted;
(3) Seller will pay to Purchaser the amount owing related
to accepted Claims within thirty (30) days from the date such
Claim is deemed accepted, or within thirty (30) days after
acceptance or other final resolution of each Claim.
(4) In the event Seller expressly rejects any Claim
within the time period allotted, Seller shall provide to
Purchaser within such time period the basis of the objection
in writing. Seller and Purchaser shall negotiate in good faith
for up to thirty (30) days from notice of rejection to resolve
all rejected Claims;
(5) In the event a resolution has not been reached within
said thirty (30) days, the Purchaser and Seller shall attempt
to resolve the dispute under the following procedure, and the
parties agree that legal remedies cannot be resorted to until
such time that this procedure has been followed. The dispute,
including all supporting documentation and the positions of
the parties shall be submitted for resolution to each party's
most senior officer in charge of the party's business or
business unit. Such officers shall meet in person at a neutral
location within ten (10) days from expiration of the thirty
day period specified above or such earlier rejection. The
parties must mutually agree to the resolution within ten-days
after meeting or such longer time as they may mutually agree
upon. In the event the officers are unable to reach
resolution, then the provisions of subsection (6) shall apply.
(6) If any controversy or claim arising out of this
Section 6.5 cannot be settled by the parties through the
procedures outlined in subsections (1) - (5) above, then each
party will have the right to have the dispute settled by
binding arbitration. The parties shall within (10) ten days of
notice to elect arbitration pursuant to this section select a
mutually agreeable arbitrator in accordance with the then
applicable provisions of the Commercial Arbitration Rules of
the American Arbitration Association, as it may be amended
(the "Rules"); otherwise the arbitration will be conducted by
three arbitrators according to the Rules. The arbitration
shall take place in New York, New York or such other location
as the Parties may mutually agree. The arbitration decision
shall be final and binding upon the Parties, and judgment upon
the award may be enforced in any jurisdiction or court having
jurisdiction over the Parties against which enforcement is
sought. Seller and Purchaser shall equally share the cost of
arbitration provided that the arbitrator shall have the
discretion to charge all, or a greater than fifty percent
(50%) share of the costs to either Seller or Purchaser if the
arbitrator determines that such party has acted in bad faith.
Any award shall be paid within five business days of the award
being granted by the arbitration panel.
(e) Notwithstanding any other provision of this Agreement,
Purchaser shall not assert, and neither Seller nor Gateway shall be liable for
any Claim unless such Claim exceeds $50.
7. Indemnification
7.1 Indemnification by Seller. Seller and Gateway will, on a joint
and several basis, indemnify Purchaser, EMCC Servicing LLC, and Computer Finance
LLC, EMCC and Asta and their respective Affiliates (the foregoing being the
"Purchaser Indemnified Parties") and hold each such party harmless from any
liability, loss, cost or expense, including reasonable attorneys' fees, which
shall result from or arise out of (i) the breach (or any third-party allegation,
which if true would constitute a breach of a Seller representation or warranty)
of any of Seller's representations or warranties contained in this Agreement;
(ii) the breach by Seller of any of its covenants or agreements herein
contained; or (iii) the Assets to be Sold which exists on, or arises out of any
event or condition occurring or existing at any time through the Closing Date;
or (iv) the retention of title to any Account which was subject to the
provisions of Section 6.5; provided, however, in no event shall Seller be
obligated under this Section 7.1 to indemnify the Purchaser Indemnified Parties
for any liability, loss, cost or expense which shall result from a Purchaser
Indemnified Party's willful misconduct or gross negligence. In case any claim is
made, or any suit or action is commenced, against a Purchaser Indemnified Party
in respect of which indemnification may be sought by it under this Section 7.1,
Purchaser shall promptly give Seller notice thereof and Seller shall be entitled
to participate in (or, if Purchaser does not desire to defend, to conduct) the
defense thereof at Seller's expense. Seller may (but need not) defend or
participate in the defense of any such claim, suit or action, but Seller shall
promptly notify Purchaser if Seller shall not desire to defend or participate in
the defense of any such claim, suit or action. Purchaser may at any time notify
Seller of its intention to settle or compromise any claim, suit or action
against a Purchaser Indemnified Party in respect of which payments may be sought
by the Purchaser Indemnified Parties hereunder, and Purchaser may settle or
compromise any such claim, suit or action unless Seller notifies Purchaser in
writing (within ten (10) days after Purchaser has given written notice of its
intention to settle or compromise) that Seller intends to indemnify the
Purchaser Indemnified Parties and conduct the defense of such claim, suit or
action. Any such settlement or compromise of, or any final judgment or decree
entered on or in, any claim, suit or action which Purchaser has defended or
participated in the defense of in accordance herewith, shall be deemed to have
been consented to by, and shall be binding upon, Seller as fully as if Seller
had assumed the defense thereof and a final judgment or decree had been entered
in such suit or action, or with regard to such claim, by a court of competent
jurisdiction for the amount of such settlement, compromise, judgment or decree.
Seller or Gateway shall have the option to purchase from Purchaser any
Account which is the subject of a third party claim and the provisions of this
Section 7.1 for an amount equal to the Account Balance as of the date of
purchase, multiplied by the Purchase Percentage. Purchaser and Seller shall
execute such documents as are deemed reasonably necessary to effectuate such
purchase on a non-recourse basis.
7.2 Indemnification by Purchaser. Purchaser will indemnify Seller,
Gateway and their respective Affiliates (the forgoing being the "Seller
Indemnified Parties") and hold each such party harmless from any liability,
loss, cost or expense, including reasonable attorneys' fees, which shall result
from or arise out of (i) the breach (or any third-party allegation, which if
true would constitute a breach of a Purchaser representation or warranty) of any
of Purchaser's representations or warranties in this Agreement; (ii) the breach
by Purchaser of any of its covenants or agreements herein; or (iii) any
liability or obligation relating to the Assets to be Sold which arises out of
any event or condition occurring or existing after the Closing Date; provided,
however, that in no event shall Purchaser be obligated under this Section 7.2 to
indemnify Seller Indemnified Parties against any liability, loss, cost or
expense which shall result from Seller Indemnified Parties's willful misconduct
or gross negligence. In case any claim is made, or any suit or action is
commenced against Seller Indemnified Parties in respect of which indemnification
may be sought by Seller Indemnified Parties under this Section 7.2, Seller shall
promptly give Purchaser notice thereof and Purchaser shall be entitled to
participate in (or, if Seller does not desire to defend, to conduct) the defense
thereof at Purchaser's expense. Purchaser may (but need not) defend or
participate in the defense of any such claim, suit or action, but Purchaser
shall promptly notify Seller if Purchaser shall not desire to defend or
participate in the defense of any such claim, suit or action. Seller may at any
time notify Purchaser of its intention to settle or compromise any claim, suit
or action against Seller Indemnified Parties in respect of which payments may be
sought by Seller Indemnified Parties hereunder (and in the defense of which
Purchaser has not previously elected to participate), and Seller may settle or
compromise any such claim, suit or action unless Purchaser notifies Seller in
writing (within ten (10) days after Seller has given Purchaser written notice of
its intention to settle or compromise) that Purchaser intends to indemnify
Seller Indemnified Parties and conduct the defense of such claim, suit or
action. Any such settlement or compromise of, or any final judgment or decree
entered on or in, any claim, suit or action which Seller has defended or
participated in the defense of in accordance herewith shall be deemed to have
been consented to by, and shall be binding upon, Purchaser as fully as if
Purchaser had assumed the defense thereof and a final judgment or decree had
been entered in such suit or action, or with regard to such claim, by a court of
competent jurisdiction for the amount of such settlement, compromise, judgment
or decree.
EMCC Servicing LLC and EMCC (collectively the "EMCC Party"), and
Computer Finance LLC and Asta (collectively the "Asta Party") intend to split
the Receivables into two separate and distinct pools, an entity from each group
purchasing a pool. To the extent Seller Indemnified Parties have a claim against
Purchaser pursuant to this Section 7.2, the EMCC Party join in the indemnity to
the extent the claim arose from an action or failure to act by an EMCC Party,
and the Asta Party joins in the indemnity to the extent the claim arose from an
action or failure to act by an Asta Party. In no event shall an EMCC Party to
liable to Seller pursuant to this Section 7.2 as a result of an act or failure
to act by an Asta Party, nor shall an Asta Party be liable for an act or failure
to act by an EMCC Party.
8. Conditions Precedent to the Obligations of Purchaser. The
obligations of Purchaser to consummate the purchase provided for herein are
subject to the fulfillment (except to the extent, if any, waived by Purchaser)
of the following conditions at or prior to the Closing Date:
8.1 Regulatory Approvals. All required licenses, approvals,
consents and notifications of any relevant state and federal regulatory agencies
in respect of the transactions provided for herein shall have been obtained or
made and all necessary conditions, including all legally required waiting,
notice or protest periods, of such licenses, approvals, consents and
notifications shall have been fully satisfied.
8.2 Absence of Litigation. There shall not be pending on the
Closing Date any action or proceeding instituted by any person, entity or
governmental authority against Seller or Purchaser to prevent the consummation
of the sale of the Assets to be Sold hereunder and, on the Closing Date, there
shall be no injunction, decree or similar legal restraint preventing the
consummation of such sale.
8.3 Truth of Representations. The representations and warranties
of Seller set forth in this Agreement shall be true in all material respects as
though made again on and as of the Closing Date.
8.4 Performance of Covenants. The covenants and agreements of
Seller set forth in this Agreement and to be performed on or before the Closing
Date shall have been performed in all material respects.
8.5 Items to be Delivered by Seller. Seller shall have delivered
to Purchaser:
(a) The Bill of Sale Agreement, and other instruments and
documents as counsel for Purchaser may reasonably require as necessary or
desirable for confirming the transfer, assignment and conveyance of title to the
Assets to be Sold to Purchaser, all in form and substance satisfactory to
Purchaser.
(b) A certificate signed by a duly authorized officer of Seller to
the effect that (i) the warranties and representations of Seller in this
Agreement are true as of the Closing Date or, if any such warranties and
representations are not then true, specifying the deficiency in reasonable
detail; and (ii) the covenants and agreements of Seller to be performed
hereunder on or before the Closing Date have been performed in all material
respects, or, if any such covenants have not been so performed, specifying the
deficiency in reasonable detail and providing a timetable for such covenants to
be performed, in which event the Closing Date may be postponed at the option of
the Purchaser.
(c) The Closing Statement.
(d) Such other documents as set forth in Section 3.4.
(e) The Goodbye Letter and similar letters to Associates and third
parties otherwise collecting or servicing the Accounts, each in the form
prepared by Purchaser and approved by Seller.
9. Conditions Precedent to the Obligations of Seller. The
obligation of Seller to consummate the sale provided for herein is subject to
the fulfillment (except to the extent, if any, waived by Seller) of the
following conditions at or prior to the Closing Date:
9.1 Regulatory Approvals. All required licenses, approvals,
consents and notifications of any relevant state and federal regulatory agencies
in respect of the transactions provided for herein shall have been obtained or
made and all necessary conditions, including all legally required waiting,
notice or protest periods, of such licenses, approvals, consents and
notifications shall have been fully satisfied.
9.2 Absence of Litigation. There shall not be pending on the
Closing Date any action or proceeding instituted by any person, entity or
governmental authority against Seller or Purchaser to prevent the consummation
of the sale of the Assets to be Sold by Seller to Purchaser pursuant hereto, and
on the Closing Date there shall be no injunction, decree or similar legal
restraint preventing the consummation of such sale.
9.3 Truth of Representations. The representations and warranties
of Purchaser set forth in this Agreement shall be true in all material respects
as though made again on and as of the Closing Date.
9.4 Performance of Covenants. The covenants and agreements of
Purchaser set forth in this Agreement and to be performed on or before the
Closing Date shall have been performed in all material respects.
9.5 Items to be Delivered by Purchaser. Purchaser shall have
delivered to Seller:
(a) A payment to Seller by transfer of funds immediately available
of the purchase price provided for in Sections 3.1 and 3.2.
(b) The Bill of Sale Agreement, and other instruments and
documents as counsel for Seller may reasonably require as necessary or desirable
for confirming the receipt and assumption of title to the Assets to be Sold by
Purchaser, all in form and substance satisfactory to Seller.
(c) A certificate signed by a duly authorized officer of Purchaser
to the effect that (i) the warranties and representations of Purchaser in this
Agreement are true as of the Closing Date or, if any such warranties and
representations are not then true, specifying the deficiency in reasonable
detail; and (ii) the covenants and agreements of Purchaser to be performed
hereunder on or before the Closing Date have been performed in all material
respects, or, if any such covenants have not been so performed, specifying the
deficiency in reasonable detail and providing a timetable for such covenants to
be performed, in which event the Closing Date may be postponed at the option of
the Seller.
(d) The Closing Statement.
(e) Such other documents as set forth in Section 3.4.
(f) The form of Goodbye Letter and similar letters to Associates
and third parties otherwise collecting or servicing the Accounts (each such form
subject to the approval of Seller).
10. Miscellaneous
10.1 Expenses. Except as is otherwise specifically provided in this
Agreement, each party shall pay its own costs and expenses in connection with
this Agreement and the transactions contemplated hereby, including, but not by
way of limitation, all regulatory fees, attorneys' fees, broker fees (except as
otherwise provided elsewhere in this Agreement), conversion costs, accounting
fees and other expenses.
10.2 Notices. All notices, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered in person or by United States mail, certified or registered, with
return receipt requested, or otherwise actually delivered, via nationally
recognized overnight courier service, return receipt requested:
If to Seller: Your:)Bank.com
5420 West 2100 South, Mail Drop UT-133
Salt Lake City, UT 84120
Attn: President
With copies to: Gateway, Inc.
4545 Towne Centre Court
San Diego, CA 92121
Fax#: (858) 799-3413
Attention: General Counsel
If to Purchaser: Computer Receivable Acquisition Group LLC
33 Riverside Drive
Pembroke, MA 02359
Fax#: (781) 829-1802
Attention: General Counsel
Computer Finance LLC
210 Sylvan Avenue
Englewood Cliffs, NJ 07632
Fax#: (201) 569-4595
Attention: Manager
The persons or addresses to which mailings or deliveries shall be made
may be changed from time to time by notice given pursuant to the provisions of
this Section 10.2. Any notice, demand or other communication given pursuant to
the provisions of this Section 10.2 shall be deemed to have been given on the
date actually delivered or five (5) days following the date deposited in the
United States mail, properly addressed, postage prepaid, as the case may be.
10.3 Successors and Assigns. All terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective transferees, successors and assigns; provided,
however, that this Agreement and all rights, privileges, duties and obligations
of the parties hereto may not be assigned or delegated by Seller without the
written consent of Purchaser.
10.4 Counterparts/Facsimile. This Agreement may be executed in one
or more counterparts, all of which taken together shall constitute one
instrument. This agreement may also be executed by facsimile provided that
original signatures are sent immediately to the other parties hereto.
10.5 Governing Law. The laws of the State of New York applicable to
contracts executed and wholly performed therein shall govern the validity and
interpretation hereof and the performance of the parties hereto of their
respective duties and obligations hereunder.
10.6 Captions. The captions contained in this Agreement are for
convenience of reference only and do not form a part of this Agreement.
10.7 No Third Party Rights. Nothing in this Agreement shall create
or be deemed to create any third party beneficiary rights in any person not
party to this Agreement.
10.8 Entire Agreement. The making, execution and delivery of this
Agreement by the parties hereto have been induced by no representations,
statements, warranties or agreements other than those herein expressed. This
Agreement and the other written agreements specifically referred to herein
embody the entire understanding of the parties and there are no further or other
agreements or understandings, written or oral, in effect between the parties
relating to the subject matter hereof. This instrument and the agreements
contained herein may be amended or modified only by a written instrument signed
by both parties or their duly authorized agents.
10.9 Severability. If any of the provision of this Agreement shall
be for any reason whatsoever held invalid, then such provision shall be deemed
severable from the remaining terms of this Agreement and shall in no way affect
the validity or enforceability of the remainder of this Agreement.
10.10 Sale Does Not Constitute a Securities Transaction. The
transactions contemplated by this Agreement do not involve, nor are they
intended in any way to constitute, the purchase of a "security" or "securities"
within the meaning of any applicable securities laws, and none of the
representations, warranties or agreements of the Seller shall create any
inference that the transactions involve any "security" or "securities".
10.11 Gramm-Leach-Bliley Act. Notwithstanding this Agreement or any
other agreement to the contrary, it is understood and agreed that member and
customer information obtained pursuant to this Agreement will be held in strict
confidence and used only as necessary as contemplated by this Agreement and as
permitted by applicable law in compliance with the Gramm-Leach-Bliley Act.
Access to member and customer information will be limited to those employees and
agents needing such information as contemplated by this Agreement and pursuant
to reasonable business practices adopted to limit access and unauthorized
disclosure of same or as permitted by applicable law. Member and customer
information will be disclosed to non-Affiliated third parties only as necessary
as contemplated by this Agreement or as permitted by applicable law. This
provision shall survive termination of this Agreement.
10.12 Non-Merger. The provisions of this Agreement shall not merge
with the Bill of Sale or any other documents after the Closing Date.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the ___ day of August, 2001.
YOUR:)BANK.COM
By:________________________________
John L. Richards
President
Dated:__________________________
COMPUTER RECEIVABLE ACQUISITION GROUP, LLC
By: EMCC SERVICING LLC
By: EMCC, Inc., its Sole Manager and Member
By:________________________________________
Name: Stacey Schacter, CEO
Dated:_____________________________
By: COMPUTER FINANCE LLC
By: Asta Funding, Inc., its Sole Member
By:___________________________________________
Name: Mitch Herman, Manager
Dated:________________________________________
As to Sections 6.5 and 7.1:
GATEWAY, INC.
By:________________________________
Joseph Burke
Chief Financial Officer
As to Section 7.2:
EMCC SERVICING LLC
By: EMCC, INC., its sole member
By:________________________________
Name: Stacey Schacter
As to Section 7.2:
COMPUTER FINANCE LLC
By: _______________________________
Name: _____________________________
Its: _______________________________
As to Section 7.2:
EMCC, INC.
By:________________________________
Name: Arthur Levine, President
Dated August 16, 2001
As to Section 7.2
ASTA FUNDING, INC.
By:________________________________
Name: Mitchell Herman, CFO
EXHIBIT A
BILL OF SALE AGREEMENT
THIS BILL OF SALE AND ASSUMPTION AGREEMENT is effective as of August
15, 2001, is between Your:)Bank.com, a Utah Industrial Loan Corporation
("Seller"), and Computer Receivable Acquisition Group, LLC, a Delaware limited
liability company ("Purchaser"). Unless otherwise defined herein, terms used
herein shall have the meanings specified in the Account Purchase Agreement
effective as of August 15, 2001, between Seller and Purchaser (the "Purchase
Agreement").
Seller, for value received and in connection with the Purchase
Agreement, transfers, sells, assigns, conveys, grants, and delivers to Purchaser
and Purchaser's successors and assigns free, clear and unencumbered title to the
Assets to be Sold as defined in the Purchase Agreement and all of Seller's
rights thereto effective as of 12:01 AM on June 1, 2001 (the "Effective Time").
The sale will be without recourse to Seller and without warranty of any kind
(including, without limitation, warranties pertaining to title, validity,
collectibility, accuracy or sufficiency of information, and applicability of any
statute of limitations), except as stated in the Purchase Agreement or herein.
YOUR:)BANK.COM
By:________________________________
John L. Richards
President
Dated:__________________________
COMPUTER RECEIVABLE ACQUISITION GROUP, LLC
By: EMCC SERVICING LLC
By: EMCC, Inc., its Sole Manager and Member
By:________________________________________
Name: Stacey Schacter, CEO
Dated:_____________________________
By: COMPUTER FINANCE LLC
By:___________________________________________
Name: Mitch Herman, Manager
Dated:________________________________________
EXHIBIT B
CLOSING STATEMENT
TO BE PROVIDED AT CLOSING
EXHIBIT C
[Intentionally Omitted]
EXHIBIT D-1
FORMS OF LOAN AGREEMENTS
EXHIBIT D-2
FORMS OF LOAN APPLICATIONS
EXHIBIT E
FORM OF POWER OF ENDORSEMENT
BLANKET ENDORSEMENT
YOUR:)BANK.COM, a Utah Industrial Loan Company ("Seller"), by execution
of this instrument, does hereby endorse any and all checks, money orders, or
other payment instruments which are made payable to Seller and received by
Computer Receivable Acquisition Group LLC, its successors and assigns (including
without limitation EMCC Servicing LLC and Computer Finance LLC) ("Purchaser")
relating to payment on any Accounts which are received after August 15, 2001 as
payment or satisfaction of any Receivables transferred and described under the
terms and provisions of the Account Purchase Agreement dated as of August 15,
2001 between Purchaser and Seller.
This endorsement is without recourse or warranties.
This endorsement may be effectuated by attaching either this instrument
or a copy or facsimile hereof to each or any instrument of the type referred to
above.
YOUR:)BANK.COM
By: ___________________________
John L. Richards, President
Schedule 5.2(l)
Litigation
California:
o Marvin R. Hamm v. Gateway, Inc., San Diego, CA, Superior
Court, Civil Matter No. GIC-756082
Alabama:
o James A. Anthony et al v Gateway Companies, Inc and Hurley
State Bank, Bullock County, AL, Circuit Court, Civil Matter No. CV 01-14
o Gerthie Brown et al v. Gateway Companies, Inc. and Hurley
State Bank, Bullock County, AL, Circuit Court, Civil Matter No. CV-00-137
o Darlene Cooks et al v. Gateway Companies, Inc. and Hurley
State Bank, Bullock County, AL, Circuit Court, Civil Matter No. CV01-13
o Christine G. Foster et al v. Gateway Companies, Inc and Hurley
State Bank, Bullock County, AL, Circuit Court, Civil Matter No. CV 01-011
o Margaret O. Pickett et. al v. Gateway Companies, Inc. and
MBNA, Bullock County, AL, Circuit Court, Civil Matter No. CV-00-184
o Cametria Scott v. Gateway Companies, Inc. and MBNA America,
Bullock County, AL, Circuit Court, Civil Matter No. CV-00-136
o Mary E Williams et al v. Gateway Companies, Inc. and Hurley
State Bank, Bullock County, AL, Circuit Court, Civil Matter No. CV 01-34
Schedule 6.2
Gateway Competitors
Apple
IBM
Hewlett Packard
Dell
Compaq
eMachines
Toshiba
MicronPC
Sony
Acer
Best Buy
Staples
CompUSA
Office Depot
OfficeMax
Circuit City
America Online
Microsoft
AT&T
Schedule 6.3(d)
Transition Schedule
August 23: Closing
This closing will be based on a settlement statement prepared as
follows:
Effective date of May 31, 2001
Recognition of cash transactions through July 31, 2001
Holdback of $8 million, pending true-up (August cash)
Exclusion of bankrupt and deceased accounts
Inclusion of all tier 5 and 6 accounts remaining in 7 logos
September 6 (or so): True-up
This true-up will reconcile all settlement statement items, and all
August cash activity against the closing holdback for August cash.
September 1 through September 30:
ACS will service the accounts including, without limitation,
statements, calls, etc. All cash will be deposited into a YB trust
account, with a daily wire of funds and electronic transmission of
corresponding activity detail to the buying group. Statements sent out
for cycles 23 and 25 will include a new payment address (of the buying
group) for only the accounts sold.
As of September 30, 2001, to be delivered to Purchaser no later than October 6,
2001, final conversion tape.
October 1 forward:
Buying group will begin servicing and statement preparation.
Any cash received by ACS will be bundled (either into one bundle for
the buying group, or one bundle for EMCC and one bundle for Asta) and
overnighted to the address(es) provided to ACS. EMCC and Asta will post
any such payments manually.
October 10 (or so): True-up
This true-up will reconcile September activity and payments to the
final conversion file sent to the buying group.
Schedule 6.5
Reasonable Evidence of Breaches of Representations and Warranties
Section: Evidence:
5.2(g)(1), (g)(3) cancelled checks, money order receipts and credit
card statements
5.2(s) Death certificate, obituary, copy of bankruptcy
petition notice or other pleading, report from a
reputable service bureau such as BANKO
5.2(o) Filed complaint in a legal proceeding, copy of a
writing from a government official, copy of a letter
from an attorney
5.2(n) Written settlement offer, Associates collector notes
in Books and Records
5.2(f) UCC Filing, title search
5.2(i) Filed complaint in a legal proceeding, copy of a
writing from a government official, copy of a letter
from an attorney
5.2(l) Ccopy of filing(s)