EXHIBIT 2.3
RECEIVABLES PURCHASE AGREEMENT dated as of April 1, 2004 by and between
SEAWEST FINANCIAL CORPORATION, a California corporation (the "SELLER"), having
its principal executive office at 4800 Airport Plaza Drive, Fourth Floor, Long
Beach, CA 90815, and 71270 Corp., a Delaware corporation (the "PURCHASER"),
having its principal executive office at 16355 Laguna Canyon Drive, Irvine, CA
92618.
WHEREAS, the Seller wishes to sell, and the Purchaser wishes to
purchase, all of Seller's rights, title and interest in and to certain retail
installment sale contracts secured by liens on motor vehicles acquired from
motor vehicle dealers.
WHEREAS, the Seller and the Purchaser wish to set forth the terms
pursuant to which such retail installment sale contracts are to be sold by the
Seller to the Purchaser.
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration, and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
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CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall, unless the
context otherwise requires, have the following meanings (such meanings to be
equally applicable to the singular and plural forms of the terms defined):
"AGREEMENTS" means, collectively, this Receivables Purchase Agreement
and the Assignment.
"AMOUNT FINANCED" means, with respect to a Transferred Receivable, the
aggregate amount advanced under such Transferred Receivable toward the purchase
price of the Financed Vehicle and any related costs, including amounts advanced
in respect of accessories, insurance premiums, service and warranty contracts,
other items customarily financed as part of retail automobile installment sale
contracts or promissory notes, and related costs.
"ANNUAL PERCENTAGE RATE" or "APR" of a Transferred Receivable means the
annual percentage rate of finance charges or service charges, as stated in the
related Receivable.
"ASSIGNMENT" means the Bill of Sale and Assignment dated April 1, 2004,
by the Seller in favor of the Purchaser, relating to the purchaser of the
Transferred Receivables and certain other property related thereto by the
Purchaser from the Seller pursuant to this Agreement, which shall be in
substantially the form attached hereto as EXHIBIT A.
"BUSINESS DAY" means any day that is not (a) a Saturday, (b) a Sunday,
or (c) any other day in which commercial banks are required or permitted to be
closed in the State of New York.
"CLOSING DATE" means April 1, 2004.
"CPS" means Consumer Portfolio Services, Inc., a California corporation
and its successors and assigns.
"CUSTODIAN" means Wells Fargo Bank National Association, in its
capacity as custodian under the Custody Agreement, and its successors and
permitted assigns.
"CUSTODY AGREEMENT" means that certain Custodial Agreement dated as of
April 1, 2004 by and among the Custodian, Pacific Coast Receivables Corp., CPS
and Greenwich Capital Financial Products, Inc.
"CUTOFF DATE" means the close of business on April 1, 2004.
"DEALER" means, with respect to a Receivable, the seller of the related
Financed Vehicle, who originated and assigned such Receivable, directly or
indirectly, to the Seller.
"FINANCED VEHICLE" means a new or used automobile, light truck, van or
minivan, together with all accessions thereto, securing an Obligor's
indebtedness under a Receivable.
"GREENWICH" means Greenwich Capital Financial Products, Inc.
"GREENWICH LIEN RELEASE" means the lien release in substantially the
form attached hereto as EXHIBIT C-1, evidencing the release by Greenwich of its
lien with respect to the Transferred Property.
"LIEN RELEASES" means the LLCP Lien Release and the Greenwich Lien
Release, collectively.
"LLCP" means Levine Leichtman Capital Partners, L.P., a California
limited partnership.
"LLCP LIEN RELEASE" means the lien release in substantially the form
attached hereto as EXHIBIT C-2, evidencing the release by LLCP of its lien with
respect to the Transferred Property.
"LOAN DOCUMENTS" shall have the meaning assigned to such term in the
Loan and Security Agreement.
"LOAN AND SECURITY AGREEMENT" means that certain Loan and Security
Agreement, dated as of the date hereof, by and among Purchaser, CPS, Wells Fargo
Bank, National Association, as paying agent, and Greenwich.
"NON-CERTIFICATED TITLE STATES" means the states of Arizona, Kansas,
Kentucky, Maine, Maryland, Michigan, Minnesota, Montana, New York, Oklahoma,
Wisconsin and such other states in which the applicable Department of Motor
Vehicles or similar authority issues evidence of title to a Financed Vehicle in
a non-certificated form.
"OBLIGOR(S)" means the purchaser or co-purchasers of a Financed Vehicle
or any other Person who owes or may be liable for payments under a Receivable.
"PURCHASER" means 71270 Corp., a Delaware corporation, and its
successors and assigns.
"RECEIVABLE" means a retail installment sale contract for a Financed
Vehicle and all rights thereunder.
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"RECEIVABLE FILE" means, with respect to a Receivable (i) the fully
executed original of the Receivable (together with any agreements modifying the
Receivable, including without limitation any extension agreements); and (ii) the
original certificate of title in the name of Seller (except for bulk purchases)
or such documents that Seller would keep on file, in accordance with its
customary procedures, (A) indicating that the Financed Vehicles is owned by the
Obligor and (B) evidencing the security interest, and the perfection thereof, of
Seller as the holder of a first priority perfected security interest in the
Financed Vehicle or, if not yet received, a copy of the application therefor
showing Seller as secured party, or a dealer guarantee of title.
"RECEIVABLES PURCHASE AGREEMENT" means this Receivables Purchase
Agreement, as this agreement may be amended, supplemented or otherwise modified
from time to time in accordance with the terms hereof.
"RECEIVABLES PURCHASE PRICE" means $219,316.11.
"RELATED DOCUMENTS" means the Loan Documents, the Residual Cashflow
Allocation Agreement, the SeaWest Pledge Agreement, the Subordinated Note, the
Subordinated Residual Pledge Agreement the Termination Notice, Consent,
Appointment and Acceptance Agreements, collectively.
"RESIDUAL CASHFLOW ALLOCATION AGREEMENT" means that certain Residual
Cashflow Allocation Agreement dated as of April 1, 2004 by and among Consumer
Portfolio Services, Inc., Greenwich Capital Financial Products, Inc., Levine
Leichtman Capital Partners, L.P., SeaWest Financial Corporation and SeaWest
Residual 2003, LLC.
"SCHEDULE OF TRANSFERRED RECEIVABLES" means the schedule of Transferred
Receivables attached hereto as EXHIBIT B.
"SEAWEST PLEDGE AGREEMENT" means that certain Subordinated Parent
Security and Pledge Agreement dated as of April 1, 2004 by and between SeaWest
Financial Corporation and Consumer Portfolio Services, Inc.
"SELLER" means Seawest Financial Corporation, a California corporation,
in its capacity as seller of the Transferred Receivables and the other
Transferred Property relating thereto, and its successors and assigns.
"SUBORDINATED NOTE" means that certain Subordinated Promissory Note
dated as of April 1, 2004 made by SeaWest Residual 2003, LLC in favor of
Consumer Portfolio Services, Inc.
"SUBORDINATED RESIDUAL PLEDGE AGREEMENT" means that certain
Subordinated Residual Pledge Agreement dated as of April 1, 2004 by and between
SeaWest Residual 2003, LLC and Consumer Portfolio Services, Inc.
"TERMINATION NOTICE, CONSENT, APPOINTMENT AND ACCEPTANCE AGREEMENTS"
means (i) that certain Termination Notice, Consent, Appointment and Acceptance
Agreement (SeaWest Securitization I, LLC) dated as of April 1, 2004 by and among
SeaWest Financial Corporation, Royal Indemnity Company, Financial Security
Assurance Inc., Wells Fargo Bank, National Association, Wells Fargo Financial
Servicing Solutions, LLC, SeaWest Financial Agency, Inc. and Consumer Portfolio
Services, Inc.; (ii) that certain Termination Notice, Consent, Appointment and
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Acceptance Agreement (SeaWest Securitization 2002-A, LLC) dated as of April 1,
2004, by and among SeaWest Financial Corporation, SeaWest Securitization 2002-A,
LLC, XL Capital Assurance Inc., Wells Fargo Bank, National Association, Wells
Fargo Financial Servicing Solutions, LLC and Consumer Portfolio Services, Inc.;
and (iii) that certain Termination Notice, Consent, Appointment and Acceptance
Agreement (SeaWest Securitization 2003-A, LLC) dated as of April 1, 2004 by and
among SeaWest Financial Corporation, SeaWest Securitization 2003-A, LLC, XL
Capital Assurance Inc., Wells Fargo Bank, National Association, a national
banking association, Wells Fargo Financial Servicing Solutions, LLC and Consumer
Portfolio Services, Inc., collectively.
"TRANSFERRED PROPERTY" shall have the meaning specified in SECTION
2.1(A).
"TRANSFERRED RECEIVABLE" means a Receivable that is listed on the
Schedule of Transferred Receivables.
"UCC" means the Uniform Commercial Code, as in effect from time to time
in the relevant jurisdictions.
ARTICLE II
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PURCHASE AND SALE OF RECEIVABLES
2.1 PURCHASE AND SALE OF RECEIVABLES. On the Closing Date, subject to
the terms and conditions of this Receivables Purchase Agreement, the Seller
agrees to sell to the Purchaser, and the Purchaser agrees to purchase from the
Seller, without recourse (subject to the obligations in this Agreement) and on a
"servicing released" basis, all of the Seller's right, title and interest in and
to the Transferred Property. The conveyance to the Purchaser of the Transferred
Property is intended as a sale free and clear of all liens and it is intended
that the Transferred Property and other property of the Purchaser shall not be
part of the Seller's estate in the event of the filing of a bankruptcy petition
by or against the Seller under any bankruptcy law.
(a) TRANSFER OF RECEIVABLES. On the Closing Date, the Seller
shall sell, transfer, assign, grant, set over and otherwise convey to
the Purchaser, without recourse (subject to the obligations in this
Agreement) and on a "servicing-released" basis, all right, title and
interest of the Seller in and to (i) the Transferred Receivables (which
constitute all Receivables owned by the Seller) and all monies received
thereunder after the Cutoff Date and all liquidation proceeds received
with respect to such Transferred Receivables after the Cutoff Date;
(ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Transferred Receivables and any other interest
of the Seller in such Financed Vehicles, including, without limitation,
the certificates of title or, with respect to Financed Vehicles in the
Non-Certificated Title States, other evidence of ownership with respect
to such Financed Vehicles issued by the applicable Department of Motor
Vehicles or similar authority; (iii) any proceeds from claims on any
physical damage, credit life and credit accident and health insurance
policies or certificates relating to the Financed Vehicles securing the
Transferred Receivables or the Obligors thereunder; (iv) all proceeds
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from recourse against Dealers with respect to the Transferred
Receivables; (v) refunds for the costs of extended service contracts
with respect to Financed Vehicles securing the Transferred Receivables,
refunds of unearned premiums with respect to credit life and credit
accident and health insurance policies or certificates covering an
Obligor under a Transferred Receivable or Financed Vehicle securing a
Transferred Receivable or his or her obligations with respect to a
Financed Vehicle and any recourse to Dealers for any of the foregoing;
(vi) the Receivable File related to each Receivable; (vii) all property
(including the right to receive future liquidation proceeds) that
secures a Transferred Receivable that has been acquired by or on behalf
of the Seller, pursuant to a liquidation of such Receivable; (viii) the
proceeds of any and all of the foregoing; and (ix) all present and
future claims, demands, causes and choses in action in respect of any
or all of the foregoing and all payments on or under and all proceeds
of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion, voluntary or
involuntary, into cash or other liquid property, all cash proceeds,
accounts, accounts receivable, notes, drafts, acceptances, chattel
paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at
any time constitute all or part of or are included in the proceeds of
any of the foregoing (collectively, the "TRANSFERRED PROPERTY"). The
foregoing sale does not constitute and is not intended to result in any
assumption by the Purchaser of any obligation of the Seller to the
Obligors, insurers or any other Person in connection with the
Transferred Receivables, Receivable Files, any insurance policies or
any agreement or instrument relating to any of them.
(b) RECEIVABLES PURCHASE PRICE. In consideration for the
Transferred Receivables and other Transferred Property described in
SECTION 2.1(A), the Purchaser shall, on the Closing Date, pay to the
Seller the Receivables Purchase Price by federal wire transfer (same
day) funds.
2.2 THE CLOSING. The sale and purchase of the Transferred Receivables
shall take place at a closing (the "Closing") at the offices of Andrews Kurth
LLP, 1717 Main Street, Suite 3700, Dallas, Texas 75201 on the Closing Date, or
at such other place and time as the parties hereto may agree.
ARTICLE III
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REPRESENTATIONS AND WARRANTIES
2.3 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
hereby represents and warrants to the Seller as of the date hereof and as of the
Closing Date (which representations and warranties shall survive the Closing
Date):
(a) ORGANIZATION AND GOOD STANDING. The Purchaser has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of California, with power and
authority to own its properties and to conduct its business as such
properties shall be currently owned and such business is presently
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conducted, and had at all relevant times, and shall have, power,
authority and legal right to acquire and own the Transferred Property.
(b) POWER AND AUTHORITY. The Purchaser has the power and
authority to execute and deliver the Agreements and to carry out its
terms and the execution, delivery and performance of the Agreements
have been duly authorized by the Purchaser by all necessary corporate
action.
(c) BINDING OBLIGATION. The Agreements shall constitute a
legal, valid and binding obligation of the Purchaser enforceable in
accordance with its terms.
(d) NO VIOLATION. The execution, delivery and performance by
the Purchaser of the Agreements and the consummation of the
transactions contemplated hereby and thereby and the fulfillment of the
terms hereof do not conflict with, result in a breach of any of the
terms and provisions of, nor constitute (with or without notice or
lapse of time) a default under, the certificate of incorporation or
by-laws of the Purchaser, or any indenture, agreement, mortgage, deed
of trust, or other instrument to which the Purchaser is a party or by
which it is bound or to which any of its properties are subject; nor
result in the creation or imposition of any lien upon any of its
properties pursuant to the terms of any indenture, agreement, mortgage,
deed of trust, or other instrument; nor violate any law, order, rule or
regulation applicable to the Purchaser of any court or of any Federal
or State regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Purchaser or its
properties.
(e) NO PROCEEDINGS. There are no proceedings or investigations
pending, or to the Purchaser's best knowledge, threatened, before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Purchaser or its
properties: (A) asserting the invalidity of the Agreements; (B) seeking
to prevent the consummation of any of the transactions contemplated by
the Agreements; or (C) seeking any determination or ruling that might
materially and adversely affect the performance by the Purchaser of its
obligations under, or the validity or enforceability of, the
Agreements.
(f) NO CONSENTS. No consent, approval, authorization or order
of or declaration or filing with any governmental authority is required
to be obtained by the Purchaser for the consummation of the
transactions contemplated by the Agreements, except such as have been
duly made or obtained.
2.4 [Intentionally omitted]
2.5 REPRESENTATIONS AND WARRANTIES OF THE SELLER. (a) The Seller hereby
represents and warrants to the Purchaser as of the date hereof and as of the
Closing Date (which representations and warranties shall survive the Closing
Date):
(i) ORGANIZATION AND GOOD STANDING. The Seller has
been duly organized and is validly existing as a corporation
in good standing under the laws of the State of California,
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with power and authority to own its properties and to conduct
its business as such properties shall be currently owned and
such business is presently conducted and had at all relevant
times, and shall have, power, authority and legal right to
acquire, own and sell the Transferred Receivables.
(ii) DUE QUALIFICATION. The Seller is duly qualified
to do business as a foreign corporation in good standing, and
has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or
the conduct of its business shall require such qualifications.
(iii) POWER AND AUTHORITY. The Seller has the power
and authority to execute and deliver the Agreements and to
carry out their terms; the Seller has full power and authority
to sell and assign the property sold and assigned to the
Purchaser and has duly authorized such sale and assignment to
the Purchaser by all necessary corporate action; and the
execution, delivery and performance of the Agreements have
been duly authorized by the Seller by all necessary corporate
action.
(iv) VALID SALE; BINDING OBLIGATION. This Receivables
Purchase Agreement effects a valid sale, transfer and
assignment of the Transferred Receivables and the other
Transferred Property conveyed to the Purchaser pursuant to
SECTION 2.1, enforceable against creditors of and purchasers
from the Seller; and this Agreement shall constitute a legal,
valid and binding obligation of the Seller enforceable in
accordance with its terms.
(v) NO VIOLATION. The execution, delivery and
performance by the Seller of the Agreements and the
consummation of the transactions contemplated hereby and
thereby and the fulfillment of the terms hereof and thereof do
not conflict with, result in any breach of any of the terms
and provisions of, nor constitute (with or without notice or
lapse of time) a default under, the certificate of
incorporation, as amended, or by-laws of the Seller, or any
indenture, agreement, mortgage, deed of trust, or other
instrument to which the Seller is a party or by which it is
bound or to which any of its properties are subject; nor
result in the creation or imposition of any lien upon any of
its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust, or other instrument; nor
violate any law, order, rule or regulation applicable to the
Seller of any court or of any Federal or State regulatory
body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its
properties.
(vi) NO PROCEEDINGS. There are no proceedings or
investigations pending, or to the Seller's best knowledge,
threatened, before any court, regulatory body, administrative
agency, or other governmental instrumentality having
jurisdiction over the Seller or its properties: (A) asserting
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the invalidity of the Agreements; (B) seeking to prevent the
consummation of any of the transactions contemplated by the
Agreements; or (C) seeking any determination or ruling that
might materially and adversely affect the performance by the
Seller of its obligations under, or the validity or
enforceability of, the Agreements or the Securities.
(vii) NO CONSENTS. No consent, approval,
authorization or order of or declaration or filing with any
governmental authority is required for the consummation of the
transactions contemplated by the Agreements, except such as
have been duly made or obtained.
(viii) RECEIVABLES PURCHASE PRICE. The Seller has
solicited bids for the purchase of the Transferred Receivables
from various third parties other than the Purchaser, and the
Purchaser's bid (evidenced by the Receivables Purchase Price)
is higher, and offers more favorable terms to the Seller, than
any bona fide bid that the Seller has received from any such
third party.
(ix) FINANCIAL CONDITION. The Seller will not use the
proceeds from the transactions contemplated by the Agreements
to give any preference to any creditor or class of creditors,
and this transaction will not leave the Seller with remaining
assets which are unreasonably small compared to its ongoing
operations.
(x) FRAUDULENT CONVEYANCE. The Seller is not selling
the Transferred Receivables to the Purchaser with any intent
to hinder, delay or defraud any of its creditors; the Seller
will not be rendered insolvent as a result of the sale of the
Transferred Receivables to the Purchaser. The Receivables
Purchase Price constitutes reasonably equivalent value for the
Transferred Property.
(xi) CERTIFICATE, STATEMENTS AND REPORTS. The
certificates, statements, reports and other documents prepared
by the Seller and furnished by the Seller to the Purchaser
pursuant to this Receivables Purchase Agreement or in
connection with the transactions contemplated hereby, when
taken as a whole, do not contain any untrue statement of
material fact or omit to state a material fact necessary to
make the statements contained herein or therein not
misleading.
(xii) SELLER'S INTENTION. The Transferred Receivables
and other Transferred Property are being transferred with the
intention of removing them from Seller's estate pursuant to
Section 541 of the United States Bankruptcy Code, as the same
may be amended from time to time.
(b) Seller makes the following representations and warranties
as to all of the Transferred Receivables and the other Transferred
Property relating thereto on which the Purchaser relies in accepting
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the Transferred Receivables and the other Transferred Property relating
thereto. Such representations and warranties speak as of the execution
and delivery of this Agreement and as of the Closing Date (in the case
of the Transferred Receivables and the other Transferred Property
related thereto), but shall survive the sale, transfer, and assignment
of the Transferred Receivables and the other Transferred Property
relating thereto to the Purchaser:
(i) TITLE. Immediately prior to the transfer and
assignment herein contemplated, the Seller had good and
marketable title to each Transferred Receivable and the other
Transferred Property and was the sole owner thereof, free and
clear of all liens, claims, encumbrances, security interests,
and rights of others, and, immediately upon the transfer
thereof, the Purchaser shall have good and marketable title to
each such Transferred Receivable and will be the sole owner
thereof, free and clear of all liens, encumbrances, security
interests, and rights of others, and the transfer has been
perfected under the UCC.
(ii) LAWFUL ASSIGNMENT. No Transferred Receivable has
been originated in, or is subject to the laws of, any
jurisdiction under which the sale, transfer, and assignment of
such Transferred Receivable under this Agreement shall be
unlawful, void, or voidable. The Seller has not entered into
any agreement with any Obligor that prohibits, restricts or
conditions the assignment of any portion of the Transferred
Receivables.
(iii) SERVICING. The servicing of each Transferred
Receivable and the collection practices relating thereto have
been conducted in compliance with all applicable laws.
(iv) NO OTHER SECURITY INTERESTS. Other than the
security interest granted to the Purchaser pursuant to Section
2.1, and the security interests granted to Greenwich and LLCP
have been released pursuant to the Lien Releases, the Seller
has not pledged, assigned, sold, granted a security interest
in, or otherwise conveyed any of the Transferred Property. The
Seller has not authorized the filing of and is not aware of
any financing statements filed against the Seller that include
a description of collateral covering the Transferred Property
other than any financing statement relating to the security
interest granted to the Purchaser hereunder or that has been
terminated. The Seller is not aware of any judgment or tax
lien filings against the Seller.
(c) The representations and warranties contained in this
Agreement shall not be construed as a warranty or guaranty by the
Seller as to the future payments by any Obligor. The sale of the
Transferred Receivables pursuant to this Agreement shall be "without
recourse" except for the representations, warranties and covenants made
by the Seller in this Agreement.
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ARTICLE III
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CONDITIONS
3.1 CONDITIONS TO OBLIGATION OF THE PURCHASER. On the Closing Date, the
obligation of the Purchaser to purchase the Transferred Receivables is subject
to the satisfaction of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties of the Seller hereunder shall be true and correct on the
Closing Date with the same effect as if then made, and the Seller shall
have performed all obligations to be performed by it hereunder on or
prior to the Closing Date.
(b) COMPUTER FILES MARKED. The Seller shall, at its own
expense, on or prior to the Closing Date, indicate in its computer
files that the related Transferred Receivables have been sold to the
Purchaser pursuant to this Receivables Purchase Agreement and shall
deliver to the Purchaser the Schedule of Transferred Receivables
certified by the Chairman, the President, the Vice President or the
Treasurer of the Seller to be true, correct and complete as of, and
after giving effect to all transfers of Transferred Receivables on, the
Closing Date.
(c) RECEIVABLE FILES DELIVERED. The Seller shall, at its own
expense, have delivered the related Receivable Files to the Custodian
and the Custodian shall have delivered a Master Custodial Report and a
Master Exception Report to the Purchaser.
(d) ACQUISITION FINANCING. The Purchaser shall have obtained
financing for the acquisition of the Transferred Receivables upon terms
and conditions satisfactory to the Purchaser in its sole discretion.
(e) RELATED DOCUMENTS. The Related Documents shall have been
executed and delivered by the applicable parties thereto.
(f) DOCUMENTS TO BE DELIVERED BY THE SELLER AT THE CLOSING.
Except as set forth below, the Seller shall deliver or cause to be
delivered the following documents to the Purchaser at the Closing:
(i) THE ASSIGNMENT. On the Closing Date, the Seller
will execute and deliver the Assignment.
(ii) LIEN RELEASES. On the Closing Date, the Seller
shall provide copies of the executed Lien Releases to the
Purchaser.
(iii) EVIDENCE OF UCC-2 FILING. Within 2 Business
Days after the Closing Date, the Seller shall cause to be
recorded and filed, at its own expense, appropriate UCC-2
termination statements (or UCC-3 termination statements, as
applicable in the relevant UCC jurisdiction), meeting the
requirements of the laws of each such jurisdiction and in such
manner as is necessary to release the interests of LLCP and
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Greenwich in the related Transferred Receivables, including
without limitation, the security interests in the Financed
Vehicles securing the Transferred Receivables, if any, and any
proceeds of such security interests or the Transferred
Receivables. The Seller shall deliver a file-stamped copy, or
other evidence satisfactory to the Purchaser of such filing,
to the Purchaser at the Purchaser's request.
(iv) LIMITED POWER OF ATTORNEY. On the Closing Date,
the Seller shall deliver to the Purchaser an original executed
Limited Power of Attorney in substantially the form attached
hereto as EXHIBIT D.
(v) OTHER DOCUMENTS. On or prior to the Closing Date,
the Seller shall deliver such other documents as the Purchaser
may reasonably request to carry out the intent of this
Agreement.
3.2 CONDITIONS TO OBLIGATION OF THE SELLER. The obligation of the
Seller to sell the Transferred Receivables, to the Purchaser is subject to the
satisfaction of the following conditions.
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties of the Purchaser hereunder shall be true and correct on
the Closing Date, with the same effect as if then made, and the Seller
shall have performed all obligations to be performed by it hereunder on
or prior to the Closing Date.
(b) RECEIVABLES PURCHASE PRICE. On the Closing Date, the
Purchaser will deliver to the Seller the Receivables Purchase Price as
provided in SECTION 2.1(B). The Seller hereby directs the Purchaser to
wire such purchase price pursuant to wire instructions to be delivered
to the Purchaser on or prior to the Closing Date.
ARTICLE IV
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COVENANTS OF THE SELLER
The Seller agrees with the Purchaser as follows:
4.1 PROTECTION OF PURCHASER'S RIGHT, TITLE AND INTEREST IN TRANSFERRED
PROPERTY FILINGS. Seller shall cause all financing statements and continuation
statements and any other necessary documents covering the right, title and
interest of the Purchaser in and to the Transferred Property to be promptly
filed all in such manner and in such places as may be required by law fully to
preserve and protect the right, title and interest of the Purchaser hereunder to
the Transferred Property. The Seller shall deliver to the Purchaser file stamped
copies of, or filing receipts for, any document recorded, registered or filed as
provided above, as soon as available following such recordation, registration or
filing. The Purchaser shall cooperate fully with the Seller in connection with
the obligations set forth above and will execute any and all documents
reasonably required to fulfill the intent of this SECTION 4.1.
4.2 OTHER LIENS OR INTERESTS. Except for the conveyances hereunder, the
Seller will not sell, pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist any lien on any interest therein, and
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each of the Seller and SeaWest shall defend the right, title, and interest of
the Purchaser in, to and under the Transferred Receivables against all claims of
third parties claiming through or under the Seller or SeaWest.
4.3 DELIVERY OF RECEIVABLE FILES. On or prior to the Closing Date, the
Seller shall deliver the Receivable Files for the Transferred Receivables to the
Custodian and shall deliver the credit files with respect to the related
Obligor(s), including the original application, credit bureau reports and
insurance information, or copies of the same, to the Purchaser or its designee.
4.4 FURTHER ASSURANCES. In order to protect and secure the Purchaser's
rights hereunder, the Seller, upon the request of the Purchaser or its assigns,
shall promptly perform or cause to be promptly done and performed, every
reasonable act necessary or advisable to put the Purchaser in the position to
enforce the payment of the Transferred Receivables and to carry out the intent
of this Agreement, including without limitation the execution of applications
for certificates of title and the execution and, if necessary, recording of
additional documents, including separate endorsements and assignments, with
respect to the Transferred Property.
4.5 INDEMNIFICATION.
(a) The Seller shall indemnify the Purchaser and CPS for any
liability as a result of the failure of a Transferred Receivable to be
originated in compliance with all requirements of law and for any
breach of any of the representations and warranties of the Seller
contained herein.
(b) The Seller shall defend, indemnify, and hold harmless the
Purchaser and CPS from and against any and all costs, expenses, losses,
damages, claims, and liabilities, arising out of or resulting from the
use, ownership, or operation by the Seller or any Affiliate thereof of
a Financed Vehicle.
(c) The Seller shall defend, indemnify, and hold harmless the
Purchaser and CPS from and against any and all taxes, except for taxes
on the net income of the Purchaser or CPS, that may at any time be
asserted against the Purchaser or CPS with respect to the transactions
contemplated herein, including, without limitation, any sales, gross
receipts, general corporation, tangible personal property, privilege,
or license taxes and costs and expenses in defending against the same.
(d) The Seller shall defend, indemnify, and hold harmless the
Purchaser and CPS from and against any and all costs, expenses, losses,
damages, claims and liabilities to the extent that such cost, expense,
loss, damage, claim or liability arose out of, or was imposed upon the
Purchaser or CPS through, the negligence, willful misfeasance, or bad
faith of the Seller in the performance of its duties under the
Agreements, or by reason of reckless disregard of the Seller's
obligations and duties under the Agreements.
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Indemnification under this SECTION 4.5 shall include reasonable fees
and expenses of litigation incurred by the Purchaser or CPS. These
indemnification obligations shall be in addition to any obligations that Seller
may otherwise have to the Purchaser and its Affiliates.
ARTICLE V
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MISCELLANEOUS PROVISIONS
5.1 CONVEYANCE AS SALE OF RECEIVABLES NOT FINANCING. The parties hereto
intend that the conveyances hereunder be a sale of the Transferred Receivables
and the other Transferred Property from the Seller to the Purchaser and not a
financing secured by such assets; and the beneficial interest in and title to
the Transferred Receivables and the other Transferred Property shall not be part
of the Seller's estate in the event of the filing of a bankruptcy petition by or
against the Seller under any bankruptcy law. In the event that any conveyance
hereunder is for any reason not considered a sale, the parties intend that this
Agreement constitute a security agreement under the UCC (as defined in the UCC
as in effect in the State of California) and applicable law, and the Seller
hereby grants to the Purchaser a first priority perfected security interest in,
to and under the Transferred Receivables and the other Transferred Property
being delivered to the Purchaser on the Closing Date, and other property
conveyed hereunder and all proceeds of any of the foregoing for the purpose of
securing performance by the Seller of its obligations hereunder.
5.2 WAIVERS. No failure or delay on the part of the Purchaser in
exercising any power, right or remedy under the Agreements shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy.
5.3 NOTICES. All communications and notices pursuant hereto to either
party shall be in writing or by fax and addressed or delivered to it at its
address (or in case of telex, at its telex number at such address) shown in the
preamble of this Receivables Purchase Agreement or at such other address as may
be designated by it by notice to the other party and, if mailed or sent by fax,
shall be deemed given when mailed or transmitted by fax (with telephonic
confirmation of receipt).
5.4 COSTS AND EXPENSES. Each party shall be responsible for the payment
of its own expenses incident to the performance of its obligations under this
Receivables Purchase Agreement, including without limitation the fees and
expenses of its counsel.
5.5 REPRESENTATIONS OF THE SELLER AND THE PURCHASER. The respective
agreements, representations, warranties and other statements by the Seller and
the Purchaser set forth in or made pursuant to this Receivables Purchase
Agreement shall survive the Closing Date.
5.6 CONFIDENTIAL INFORMATION. The Purchaser agrees that it will neither
use nor disclose to any Person the names and addresses of the Obligors, except
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in connection with the enforcement of the Purchaser's rights hereunder, under
the Transferred Receivables or as required by law.
5.7 HEADINGS AND CROSS-REFERENCES. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Receivables Purchase Agreement.
References in this Receivables Purchase Agreement to Section names or numbers
are to such Sections of this Receivables Purchase Agreement.
5.8 GOVERNING LAW. THIS RECEIVABLES PURCHASE AGREEMENT AND THE
ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
5.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
5.10 ASSIGNMENT. This Agreement may not be assigned without the prior
written consent of the Purchaser, SeaWest and the Seller. The Seller, SeaWest
and the Purchaser agree to perform their respective obligations hereunder for
the benefit of Greenwich and agree that Greenwich may and is entitled to (but
shall have no obligation to) enforce the provisions of this Agreement and
exercise the rights of the Purchaser to enforce the obligations of the Seller
hereunder without the consent of the Purchaser.
The Seller acknowledges that the Purchaser intends, pursuant to the Loan and
Security Agreement, to pledge the Transferred Receivables and the other
Transferred Property, together with its rights under this Agreement, to
Greenwich on the Closing Date. The Seller acknowledges and consents to such
transaction and waives any further notice thereof and covenants and agrees that
the representations and warranties of the Seller and SeaWest contained in this
Agreement and the rights of the Purchaser hereunder are intended to benefit CPS
and Greenwich. In furtherance of the foregoing, each of the Seller and SeaWest
covenants and agrees to perform its respective duties and obligations hereunder
for the benefit of CPS and Greenwich. Notwithstanding anything to the contrary
in this Agreement, each of the Seller and SeaWest shall be directly liable to
CPS and Greenwich (notwithstanding any failure by the Purchaser to perform its
duties and obligations hereunder) and CPS and Greenwich may enforce the duties
and obligations of the Seller and SeaWest under this Agreement against the
Seller and SeaWest for the benefit of CPS and Greenwich without the consent or
joinder of the Purchaser.
5.11 THIRD-PARTY BENEFICIARIES. This Agreement will inure to the
benefit of and be binding upon the parties hereto, and shall inure to the
benefit of CPS and Greenwich, each of which shall be considered to be a third
party beneficiary hereof. Except as otherwise provided in this Agreement, no
other Person will have any right or obligation hereunder.
5.12 MERGER AND INTEGRATION. Except as specifically stated otherwise
herein, this Agreement sets forth the entire understanding of the parties
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relating to the subject matter hereof, and all prior understandings, written or
oral, are superseded by this Agreement. This Agreement may not be modified,
amended, waived or supplemented except as provided herein.
5.13 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT, OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN CONNECTION
WITH THIS AGREEMENT. INSTEAD, ANY DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN
A BENCH TRIAL WITHOUT A JURY.
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IN WITNESS WHEREOF, the parties hereby have caused this Receivables
Purchase Agreement to be executed by their respective officers thereunto duly
authorized as of the date and year first above written.
SEAWEST FINANCIAL CORPORATION
By:________________________________________
Name:______________________________________
Title:_____________________________________
71270 CORP.
By:________________________________________
Name:______________________________________
Title:_____________________________________
RECEIVABLES PURCHASE AGREEMENT - SIGNATURE PAGE
EXHIBIT A
BILL OF SALE AND ASSIGNMENT
For value received, on this 1st day of April 2004, in accordance with
the Receivables Purchase Agreement dated as of April 1, 2004, between the
undersigned (the "SELLER") and 71270 Corp. (the "PURCHASER") (the "RECEIVABLES
PURCHASE AGREEMENT"), the undersigned does hereby sell, transfer, assign and
otherwise convey unto the Purchaser, without recourse (subject to the
obligations in the Receivables Purchase Agreement), all right, title and
interest of the Seller in and to (i) the Transferred Receivables listed in the
Schedule of Transferred Receivables, and all monies received thereunder after
the Cutoff Date and all liquidation proceeds received with respect to such
Transferred Receivables after the Cutoff Date; (ii) the security interests in
the Financed Vehicles granted by Obligors pursuant to the Transferred
Receivables and any other interest of the Seller in such Financed Vehicles,
including, without limitation, the certificates of title or, with respect to
Financed Vehicles in the Non-Certificated Title States, other evidence of
ownership with respect to such Financed Vehicles issued by the applicable
Department of Motor Vehicles or similar authority; (iii) any proceeds from
claims on any physical damage, credit life and credit accident and health
insurance policies or certificates relating to the Financed Vehicles securing
the Transferred Receivables or the Obligors thereunder; (iv) all proceeds from
recourse against Dealers with respect to the Transferred Receivables; (v)
refunds for the costs of extended service contracts with respect to Financed
Vehicles securing the Transferred Receivables, refunds of unearned premiums with
respect to credit life and credit accident and health insurance policies or
certificates covering an Obligor or Financed Vehicle or his or her obligations
with respect to a Financed Vehicle related to a Transferred Receivable and any
recourse to Dealers for any of the foregoing; (vi) the Receivable File related
to each Receivable; (vii) all property (including the right to receive future
liquidation proceeds) that secures a Transferred Receivable that has been
acquired by or on behalf of the Purchaser, pursuant to a liquidation of such
Receivable; (viii) the proceeds of any and all of the foregoing; and (ix) all
present and future claims, demands, causes and choses in action in respect of
any or all of the foregoing and all payments on or under and all proceeds of
every kind and nature whatsoever in respect of any or all of the foregoing,
including all proceeds of the conversion, voluntary or involuntary, into cash or
other liquid property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and other
forms of obligations and receivables, instruments and other property which at
any time constitute all or part of or are included in the proceeds of any of the
foregoing (collectively, the "Transferred Property"). The foregoing sale does
not constitute and is not intended to result in any assumption by the Purchaser
of any obligation of the undersigned to the Obligors, insurers or any other
Person in connection with the Transferred Receivables, the related Receivable
Files, any insurance policies or any agreement or instrument relating to any of
them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Receivables Purchase Agreement and is to be governed by the Receivables Purchase
Agreement.
It is the intention of the Seller and the Purchaser that the transfer
and assignment of the Transferred Property contemplated by this Assignment shall
constitute a sale of the Transferred Property from the Seller to the Purchaser,
conveying good title thereto free and clear of any liens, and the beneficial
interest in and title to the Transferred Property shall not be part of the
Seller's estate in the event of the filing of a bankruptcy petition by or
against the Seller under any bankruptcy or similar law. Capitalized terms used
herein and not otherwise defined shall have the meanings assigned to them in the
Receivables Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of the day and year first above written.
SEAWEST FINANCIAL CORPORATION
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT B
SCHEDULE OF TRANSFERRED RECEIVABLES
EXHIBIT C-1
GREENWICH LIEN RELEASE
EXHIBIT C-2
LLCP LIEN RELEASE
EXHIBIT D
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned (the "Seller") for
valuable consideration, given and paid by 71270 Corp., a Delaware corporation
("Purchaser"), the receipt and sufficiency of which is hereby acknowledged,
pursuant to that certain Receivables Purchase Agreement dated as of April 1,
2004 (the "Agreement") by and among the Purchaser and SeaWest Financial
Corporation does hereby appoint _________________, _____________________ and
_____________________, or their successors in office (the each, an "Attorney"),
the true and lawful attorney-in-fact of the Seller, with full power by an
instrument in writing to appoint a substitute for and in the name and stead of
the Seller, but for the benefit of the Purchaser, to:
(i) endorse checks and other negotiable instruments that are made payable to
the Seller and that are for payments made by debtors under the motor vehicle
retail installment contracts that the Purchaser has acquired from the Seller
pursuant to the Agreement (the "Receivables");
(ii) execute to the extent necessary by reason of lost, misplaced, damaged or
destroyed documentation, lost promissory note affidavits with respect to any
Receivables;
(iii) endorse and/or assign, as applicable, without recourse (except as
provided in the Agreement), any and all of the Receivables and other property
conveyed to Purchaser pursuant to the Agreement; and
(iv) executed acknowledge or handle proper assignments or other such
instruments writing which may become necessary to file into the public records
in order to carry out the foregoing powers.
The Attorney's powers hereunder are limited as set forth above. Any and
all acts undertaken by an Attorney under or pursuant to this Limited Power of
Attorney shall be at the sole expense of the Purchaser.
To induce any third party to act hereunder, Seller hereby agrees that
any third party receiving a duly executed copy or facsimile of this Limited
Power of Attorney may act in reliance hereon, and that revocation or termination
hereof shall be ineffective as to such third party unless and until actual
notice or knowledge of such revocation or termination have been received by such
third party.
IN WITNESS WHEREOF, Seller has executed this Limited Power of Attorney
this 1st day of April 2004 by and through its duly authorized officer.
SEAWEST FINANCIAL CORPORATION
By:_________________________________
Name:_______________________________
Title:______________________________
State of California
County of __________
The foregoing instrument was acknowledged before me on this 1st day of April
2004 by _____________, who is personally known to me or satisfactorily
established her identity to me, and in her capacity as ___________ of SEAWEST
FINANCIAL CORPORATION and on its behalf.
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Notary Public
My Commission Expires on: ________________________