EXHIBIT 2.4
71270 CORP.
GENERAL ASSIGNMENT AND BILL OF SALE
FOR CERTAIN ASSETS OF SEAWEST FINANCIAL CORPORATION
APRIL 2, 2004
TABLE OF CONTENTS
PAGE
ARTICLE I ASSIGNMENT OF ASSETS....................................2
1.1 Incorporation by Reference..................................2
1.2 Assignment..................................................2
1.3 No Assumed Liabilities......................................2
1.4 Further Assurances..........................................2
ARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLER................3
2.1 Organization and Authority..................................3
2.2 No Violations or Conflicts..................................3
2.3 No Consents or Approvals of Governmental Authorities........3
2.4 Title to Assets.............................................4
ARTICLE III REPRESENTATIONS AND WARRANTIES OF BUYER.................4
3.1 Organization and Authority..................................4
3.2 No Violations or Conflicts..................................4
ARTICLE IV MISCELLANEOUS...........................................4
4.1 Notices.....................................................4
4.2 Entire Agreement............................................5
4.3 Waiver......................................................5
4.4 Governing Law...............................................5
4.5 Severability................................................6
4.6 Descriptive Headings........................................6
4.7 Expenses....................................................6
4.8 Parties in Interest.........................................6
4.9 Counterparts................................................6
Exhibit A TRANSFERRED ASSETS.........................................8
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GENERAL ASSIGNMENT AND BILL OF SALE
This General Assignment and Bill of Sale (this "AGREEMENT") is entered
into as of April 2, 2004, by 71270 Corp., a Delaware corporation ("BUYER") and
SeaWest Financial Corporation, a California corporation ("SELLER").
RECITALS
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WHEREAS, the Seller wishes to sell, and the Purchaser wishes to
purchase, all of Seller's rights, title and interest in and to certain assets.
WHEREAS, the Seller and the Purchaser wish to set forth the terms
pursuant to which such assets 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:
AGREEMENT
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ARTICLE I
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ASSIGNMENT OF ASSETS
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1.1 INCORPORATION BY REFERENCE. The Recitals set forth above are
incorporated by reference into this SECTION 1.1 as if they were set forth in
full herein.
1.2 ASSIGNMENT. For and in consideration of the amount of Seven Hundred
and Fifty Thousand Dollars ($750,000.00) paid by Buyer to Seller, or an account
or an entity designated by Seller, in immediately available funds, as of or
before the execution and delivery hereof, Seller hereby irrevocably sells,
transfers, conveys, assigns and delivers to Purchaser, all of Seller's right,
title and interest in, to and under all of the assets of Seller set forth on
EXHIBIT A hereto (the "TRANSFERRED ASSETS") free and clear of all claims,
charges, liens, security interests, encumbrances and restrictions whatsoever
(collectively, "CLAIMS").
1.3 NO ASSUMED LIABILITIES. Buyer is not assuming and shall not be
liable for any liabilities, debts or obligations of Seller whatsoever,
including, without limitation: liability for payment of accounts payable and any
and all other liabilities of Seller; liability for making payments of any kind
to employees of Seller, including severance pay obligations and pension
liabilities; liabilities under any real estate lease; liability for payroll
taxes for employees of Seller; Seller's liabilities for other accrued taxes,
including income, sales, real estate, personal property or transfer taxes; any
liability arising out of or relating to the provision of services by Seller
prior to the date hereof; liability of Seller arising under any environmental
laws or in connection with any environmental claim; and any obligations, charges
or liabilities of Seller, the existence of which constitutes a breach of any
representation, warranty or agreement of Seller contained in this Agreement.
1.4 FURTHER ASSURANCES. At any time or from time to time after the date
hereof, at Purchaser's request and without further consideration, Seller shall
execute and deliver to Purchaser such other instruments of sale, transfer,
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conveyance, assignment and confirmation, provide such materials and information
and take such other actions as Purchaser may reasonably deem necessary or
desirable in order to more effectively transfer, convey and assign to Purchaser,
and to confirm Purchaser's title to, all of the Transferred Assets, and, to the
full extent permitted by law, to put Purchaser in actual possession and
operating control of the Transferred Assets and to assist Purchaser in
exercising all rights with respect thereto.
ARTICLE II
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REPRESENTATIONS AND WARRANTIES OF SELLER
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Seller represents and warrants to Buyer that the following
representations and warranties are true and correct as of the date hereof. The
term "to the best knowledge of Seller," or other similar references to the
knowledge of Seller used in this Agreement, shall mean (A) the information
contained in the files of Seller, and (B) the knowledge of Frederick Cooper,
Kenneth H. Terkel and Jeffrey Fritz, the Company's Chief Executive Officer,
Executive Vice President/Secretary and Chief Financial Officer, respectively.
2.1 ORGANIZATION AND AUTHORITY. Seller is duly organized, validly
existing and in good standing under the laws of the State of California and has
corporate power necessary to carry on its business as now being conducted.
Seller has full authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized and no other corporate proceedings on the part of Seller
are necessary to authorize this Agreement or to consummate the transactions so
contemplated. This Agreement has been duly and validly executed and delivered by
Seller and constitutes a legal, valid and binding obligation of Seller
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance or
other laws affecting the rights and remedies of creditors generally and general
principles of equity.
2.2 NO VIOLATIONS OR CONFLICTS. The execution and delivery of this
Agreement, together with all documents and instruments contemplated herein, the
consummation of the transactions contemplated hereby, and the compliance with
the terms, conditions and provisions hereof by Seller do not (i) contravene any
provisions of the Articles of Incorporation or Bylaws of Seller, (ii) conflict
with or result in a breach of or constitute a default (or an event that might,
with the passage of time or the giving of notice or both, constitute a default)
or give rise to any right to terminate, cancel or accelerate or to any loss of
benefit under any of the terms, conditions, or provisions of any lease,
indenture, mortgage, loan, or credit agreement or any other agreement or
instrument to which Seller is a party or by which Seller or its assets may be
bound or affected, (iii) violate or constitute a breach of any decision,
judgment, or order of any court or arbitration board or of any governmental
department, commission, board, agency, or instrumentality, domestic or foreign,
by which Seller is bound or to which Seller is subject or (iv) violate any
applicable law, rule, or regulation to which Seller or any of its property is
bound.
2.3 NO CONSENTS OR APPROVALS OF GOVERNMENTAL AUTHORITIES. No consent or
approval of, or filing and expiration of a waiting period or a period for
disapproval by, any governmental authority is required for Seller to consummate
the transactions contemplated by this Agreement.
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2.4 TITLE TO ASSETS. Seller has good and sufficient title to the
Transferred Assets, free and clear of all Claims (as defined in SECTION 1.2),
except the lien of taxes not yet due or payable or being contested in good faith
by appropriate proceedings.
ARTICLE III
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REPRESENTATIONS AND WARRANTIES OF BUYER
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Buyer represents and warrants to Seller that the following
representations and warranties are true and correct as of the date hereof:
3.1 ORGANIZATION AND AUTHORITY. Buyer is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
formation and has all requisite power and authority to conduct its business and
own its properties as now conducted and owned. Buyer has full power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized, and no other proceedings are necessary to authorize this
Agreement or to consummate the transactions contemplated by this Agreement. This
Agreement has been duly and validly executed and delivered by Buyer and
constitutes a valid and binding agreement, enforceable against it in accordance
with its terms.
3.2 NO VIOLATIONS OR CONFLICTS. Neither the execution and delivery of
this Agreement by Buyer nor the consummation of the transactions contemplated
hereby will (i) conflict with or result in any breach of any provision of the
Articles of Incorporation or Bylaws of Buyer, (ii) require any consent,
approval, authorization, or permit of, or filing with or notification to, any
governmental or regulatory authority, (iii) result in a default (or an event
that might, with the passage of time or the giving of notice or both, constitute
a default) or give rise to any right to terminate, cancel or accelerate or to
any loss of benefit under any of the terms, conditions, or provisions of any
note, license, lease, agreement, or other instrument or obligation to which
Buyer is a party or by which Buyer or any assets of Buyer may be bound or (iv)
violate any order, writ, injunction, decree, statute, rule, or regulation
applicable to Buyer or any of its assets.
ARTICLE IV
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MISCELLANEOUS
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4.1 NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, addressed to the receiving party's address set
forth below or to such other address as a party may designate by notice
hereunder, and either (i) delivered by hand, (ii) made by facsimile
transmission, (iii) sent by recognized overnight courier, or (iv) sent by
registered or certified mail, return receipt requested, postage prepaid.
If to Buyer:
71270 Corp.
16355 Laguna Canyon Road
Irvine, CA 92618
Attention: Charles Bradley, Jr.
Facsimile: (949) 450-3951
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With a copy to:
Andrews Kurth LLP
1717 Main Street
Suite 3700
Dallas, Texas 75201
Attention: Mark Harris
Facsimile: (214) 659-4773
If to Seller:
SeaWest Financial Corporation
4800 Airport Plaza Avenue
Long Beach, California 90815
Attention: Frederick Cooper
Facsimile: (562) 420-5200
with a copy to:
Squire, Sanders & Dempsey L.L.P.
40 North Central Avenue
Suite 2700
Phoenix, Arizona 85004-4498
Attention: John M. Welch, Esq.
Timothy W. Moser, Esq.
Facsimile: (602) 253-8129
All notices, requests, consents and other communications hereunder shall be
deemed to have been properly given (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if made by facsimile transmission, at the time that receipt thereof has
been acknowledged by electronic confirmation or otherwise, (iii) if sent by
overnight courier, on the next business day following the day such notice is
delivered to the courier service, or (iv) if sent by registered or certified
mail, on the fifth business day following the day such mailing is made.
4.2 ENTIRE AGREEMENT. It is agreed that all offers, statements of
intent, understandings and agreements heretofore had among the parties or their
affiliates respecting this transaction are merged in this Agreement, which fully
and completely expresses the agreement of the parties, and that there are no
representations, warranties or agreements, except as specifically set forth or
referred to in this Agreement.
4.3 WAIVER. No waiver of any breach of any provision of this Agreement
shall constitute a waiver of any other breach of that or any other provision
hereof.
4.4 GOVERNING LAW. This Agreement and the rights and obligations of the
parties hereunder shall be construed in accordance with and governed by the laws
of the State of California, without giving effect to the conflict of law
principles thereof.
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4.5 SEVERABILITY. In the event that any court of competent jurisdiction
shall finally determine that any provision, or any portion thereof, contained in
this Agreement shall be void or unenforceable in any respect, then such
provision shall be deemed limited to the extent that such court determines it
enforceable, and as so limited shall remain in full force and effect. In the
event that such court shall determine any such provision, or portion thereof,
wholly unenforceable, the remaining provisions of this Agreement shall
nevertheless remain in full force and effect.
4.6 DESCRIPTIVE HEADINGS. The descriptive headings herein are inserted
for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
4.7 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Agreement (including without limitation
attorneys' and accountants' fees) shall be paid by the party incurring such
expenses.
4.8 PARTIES IN INTEREST. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto, and nothing in this Agreement,
expressed or implied, is intended to confer upon any other person any rights or
remedies of any nature whatsoever under or by reason of this Agreement.
4.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, which together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, Buyer and Seller have executed this General
Assignment and Bill of Sale as of the day and year first above written.
BUYER:
71270 corp.
By:
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Name:
Title:
SELLER:
SEAWEST FINANCIAL CORPORATION
By:
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Name:
Title:
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EXHIBIT A
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TRANSFERRED ASSETS