PURCHASE AGREEMENT
AGREEMENT made and entered into as of the 14th day of March, 1997 by and between
Western Fidelity Funding, Inc., a Colorado corporation, with a place of business
at 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx, 00000 ("Seller"); and
Mountain Parks Financial Services, Inc., MP Financial Services, (MPFS), a
Colorado corporation with a place of business at 00000 Xxxx Xxxxxx
Xxxxxx, Xxxxxx, XX 00000-0000 ("Buyer").
WITNESSETH THAT
WHEREAS, Seller wishes to sell and Buyer wishes to buy all of Seller's
right, title and interest in certain consumer credit sale contracts, retail
installment contracts, promissory notes and Security agreements and similar
instruments, hereafter defined as "Contracts", upon the terms and conditions
contained herein.
NOW THEREFORE, in consideration of the Mutual promises and covenants
contained in this Agreement, the parties agree as follows:
1. DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meaning:
a. Agreement means this Purchase Agreement, including all schedules and
exhibits attached hereto.
b. Contract means a consumer credit sale contract, retail installment
contract, promissory note and related security agreement, chattel
paper, or similar instrument which evidences an Obligor's indebtedness
which is secured by a motor vehicle and which is owned, held by, and
payable to Seller. The term "Contract" includes all monies due or to
become due on such Contract, all claims, rights and causes of action
at any time belonging to Seller in connection therewith, and all
information, instruments, documents and collateral related thereto,
including but not limited to Certificates of Title, guaranties, credit
information and reports, lien search reports, files, ledger cards,
payment history reports, files, and policies or certificates of
property insurance and credit insurance.
c. Purchase Date shall be March 14, 1997, or such other date as may be
agreed upon by Buyer and Seller.
d. Determination Date shall mean March 13, 1997.
e. Obligor means the person or persons who obtained credit from Seller
or, if Seller's ownership of a Contract was established by purchase,
who obtained the credit from Seller's predecessor in interest, and who
is obligated to pay Seller in accordance with a Contract.
f. Net Outstanding Balance means the unpaid principal balance of a
Contract not including accrued but unpaid late charges or accrued but
unpaid interest as of the Determination Date.
2. SALE OF CONTRACTS
On the Purchase Date, Seller will sell, assign, transfer and set over to
Buyer all of its right, title and interest in and to the Contracts listed
on the Schedule of Contracts to be attached to this Agreement as Exhibit
"A", and Buyer will purchase the Contracts and all monies due and owing on
the Contracts. Exhibit "A" shall be prepared as of the close of business on
the Determination Date and shall list each Contract to be purchased on the
Purchase Date, The Contracts to be sold and purchased hereunder shall not
include any Contract (a) that is ten (10) days delinquent on the Purchase
Date or which is otherwise in default, (b) for which the Obligor has been
or is Currently the subject of bankruptcy proceedings, _(C) for which the
collateral has been repossessed, or which is the subject of any litigation,
or (d) for which the Seller does not have complete or proper documentation.
3. PURCHASE PRICE - CONTRACTS
a. On the Purchase Date, Buyer shall pay to Seller the purchase price for
the Contracts, which shall be an amount equal to 90% of the aggregate
Net Outstanding Balances of the Contracts shown on Exhibit "A".
Payment of the Purchase Price shall be in U.S. Dollars, delivered by
wire transfer, check or other form of payment mutually agreed by the
parties.
b. If, following the Purchase Date, it is determined that Buyer has
purchased any Contract(s) which should not have been included in the
sale for any of the reasons specified ill Paragraph Two (2) above,
Seller shall repurchase each such Contract and pay to Buyer an amount
equal to 90% of the Net Outstanding Balance owing oil said
Contract(s).
4. ENDORSEMENTS
On the Purchase Date, upon payment of the Purchase Price, Seller will
execute and deliver such endorsements, assignments or other documents as
shall be necessary to evidence Setter's sale of the Contracts to Buyer and
Buyer's Security interest (to be no less than that of Seller) in the
property securing the Contracts. In addition, Seller will authorize Buyer
to endorse and assign Seller's interest in each Contract in order to
evidence the transfer of Seller's interest in the Contracts to Buyer in
such mariner as may be reasonable and appropriate. On the Purchase Date,
Seller shall furnish Buyer with a Power of Attorney in form of the document
attached hereto as Exhibit "B". Buyer agrees to save and hold Seller
harmless from any loss occasioned by Buyer's use of tile Power of Attorney.
Seller further agrees, from time to time following the Purchase Date, to
execute any individual assignments which are necessary to effect assignment
of each Contract to Buyer.
5. BUYER'S AUTHORIZATION
On the Purchase Date, upon payment of the Purchase Price, Seller
irrevocably authorizes Buyer to effect the endorsements and assignments as
provided in Paragraph Four (4) above by the impression of a rubber stamp or
stamps, facsimile signature or sticker and to endorse Seller's name upon
any notes, acceptances, checks, drafts, money order or other instruments of
payment that may come into the possession of Buyer as payment of or upon
the Contracts and, also, to execute releases, statements of termination,
satisfactions and any and all other documents required to be executed in
conjunction with the Contracts.
6. OTHER ITEMS SUBJECT TO SALE
On the Purchase Date, upon payment of the Purchase Price, Seller will also
sell, assign, transfer, and set over to Buyer in connection with the
Contracts:
a. All of Seller's interest and benefits in, to and under all
endorsements and guaranties by or of others held by it with respect to
the Contracts.
b. All of Seller's rights, title and interest in all security
instruments, and the liens created thereunder with respect to the
Contracts.
c. All individual ledger cards, bookkeeping memoranda, receipts,
correspondence, folders, credit files, fan folds, indexes, and all
other records of Seller pertaining to the Contracts. All such
materials, which may be in the form of computer disc, microfilm or
magnetic tape, shall be delivered to Buyer on the Purchase Date.
d. All filing receipts evidencing recordation or filing in governmental
filing or recording offices of financing statements and/or other
filing instruments oil all Contracts.
e. All of the interest of Seller under each and every existing policy or
certificate of insurance, if any, to the extent such relates to any
property securing any Contracts and as relates to the life or lives or
health of any Obligors of said Contracts. Seller shall provide
reasonable assistance to Buyer in securing Long Form Loss Payable
Clauses to be issued in favor of Buyer with respect to all such
insurance covering any property described in its Contracts and also an
assignment of beneficial interest in any policy(ies) covering the life
or lives and/or sickness or disability of any Obligors of such
Contracts. Seller agrees that the insurance carrier(s) shall pay to
Buyer any and all unearned premiums from cancellations occurring after
the Purchase Date and to return premium claims or hereafter to become
due to Seller.
f. All pending insurance claims and all claims filed in the future, if
any, and the proceeds thereof if any, in connection with any of the
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Contracts purchased by Buyer. Seller agrees to save and Buyer harmless
from any loss to Buyer occasioned by reason of insurance policy
defenses raised by the carrier of such insurance, where such defense
is based upon any action of or failure to act by Seller prior to the
Purchase Date.
7. SELLER'S WARRANTIES
The following covenants, warranties and representations are made by Seller
to Buyer as of the date of this Agreement, all of which shall be true and
correct as of the Purchase Date as a material condition precedent to
Buyer's obligation to purchase the Contracts as contemplated hereby, and
all of which covenants, warranties and representations shall survive the
execution of this Agreement and the Closing hereunder:
a. Seller covenants, represents and warrants that Seller is a duly
organized, validly existing and in good standing under the laws of the
State of Colorado, that is duly registered and authorized to conduct
business in every other state where the nature or conduct of its
business or its ownership of property requires it to be so registered
and authorized; and that it has obtained and maintained all licenses,
registrations and other authorizations required under any federal,
state, or local law, regulation or ordinance in connection with the
conduct of its business, its ownership of the Contracts, or otherwise.
b. Seller covenants, represents and warrants that the execution and
delivery of this Agreement and the consummation of the transaction
contemplated hereby have been duly and validly authorized by all
necessary corporate action, and no other actions or proceedings on the
part of Seller are necessary to authorize this Agreement. This
Agreement constitutes a valid and legally binding obligation of
Seller.
c. Seller covenants, represents, and warrants that neither the execution
and delivery of this Agreement nor the consummation of the transaction
contemplated hereby, nor compliance by Seller with the provisions
hereof, will violate, conflict with or result in any breach of, or
constitute a default tinder, any instrument or agreement to which
Seller is a party, or by which it is bound, or any federal or state
statute or any judicial or administrative decree, order or ruling
applicable to Seller or to the Contracts to be sold.
d. Seller covenants, represents, and warrants that the ledger cards or
equivalent records delivered to Buyer shall fully and accurately
reflect the true outstanding Unpaid balances of the Contracts as of
the close of business on the Determination Date, and the cards or
equivalent records will accurately reflect the collection activity on
the Contracts and the payments received on the Contracts from the
respective Obligors.
e. Seller covenants, represents and warrants that Seller has good title
to the Contracts to be sold under this Agreement, free and clear of
any liens, encumbrances or charges whatsoever, and that Seller is the
absolute owner thereof with full and sole right to transfer title to
the Contracts and all other items sold under Paragraph Six (6) hereof,
and that no person, firm, corporation or association has any claim
whatsoever to the Contracts sold under this Agreement or the proceeds
of the Contracts.
f. Seller covenants, represents, and warrants that, except as may be set
forth on Exhibit "C" hereto, it is not a party to and there is no
pending or threatened litigation, legal or administrative proceeding,
or otherwise, which would, if decided against Seller, have any adverse
effect on the Contracts or Seller's right to transfer same, or on any
of the other items to be sold pursuant to this Agreement.
g. Seller covenants, represents, and warrants that each Contract sold
under this Agreement is genuine, valid and complete in all respects
and is enforceable in accordance with its terms; that no understanding
or agreement has been reached with any Obligor for any variation of
the interest rate, schedule of payments or other material item or
condition of any Contract except for any modification entered into in
the ordinary course of business and noted on Seller's records; that
all information contained in Seller's books, records and files and
other documents provided to Buyer in connection with the Contracts is
true, complete and accurate, except for information Supplied by
Obligors or third parties, which information is true, complete and
correct to the best of Seller's knowledge; and that none of the
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Contracts is or will be delinquent or otherwise in default on the
Purchase Date, that none of the collateral for the Contracts has been
repossessed, and that none of the Contracts is the subject of any
litigation.
h. Seller covenants, represents and warrants that no deferments have been
granted to any Obligor.
i. Seller covenants, represents, and warrants that no Contract is subject
to any defense, set-off or counterclaim to the payment of the amount
of the unpaid balance due on the Contract, or a proceeding in
bankruptcy.
j. Seller covenants, represents, and warrants that each instrument, or
the property or goods described in each instrument, representing or
securing a Contract is in the possession of Seller; and that each
security instrument or other agreement evidencing and Securing any
Contract sold hereunder will constitute as of the close of business on
the Purchase Date, a valid enforceable and perfected first lien on the
property or goods described in Such instrument.
k. Seller covenants, represents, and warrants that all of the Contracts
and security instruments sold by Seller under this Agreement, Seller's
statements and application- relating thereto, and Seller's practices
and the conduct of its business with reference to the Contracts comply
with all applicable state, federal, and local laws and regulations.
Seller specifically covenants, represents and warrants that all
deferral fees and charges, insufficient funds check fees, and all
other fees and charges imposed by Seller on any of the Obligors were
validly imposed in accordance with applicable law.
1. Seller covenants, represents, and warrants that it has paid or will
cause to be paid any and all license, franchise, intangible or stamp
taxes or fees due and owing at the Purchase Date to the Federal
government, any State government and any political subdivision
thereof, arising from or growing out of the acquisition, collection,
or holding of any and all of the Contracts; not including, however,
any fee or charge to change the name of the first lien holder on any
titles securing the Contracts.
m. Seller covenants, represents, and warrants that it will, from and
after the Purchase Date, pay over to Buyer any payments received in
payment on the Contracts, after the Determination Date.
n. Seller covenants, represents and warrants that, on or before the
Purchase Date, it will have obtained any and all approvals necessary
to effectuate the sale of the Contracts from any and all relevant
administrative, quasi-administrative or other governmental agencies.
In the event of any breach or breaches of any of (he warranties
contained herein, Seller will, upon five (5) days prior written notice
(which notice shall describe the breach, including the nature of the
breach and such other information, documents, records and papers as
necessary) to Seller by Buyer, repurchase each Contract to which such
breach relates, by paying Buyer the Net Outstanding Balance owing on
such Contract(s) on the date of repurchase.
o. Seller covenants, represents and warrants that none of the credits
entered on any contract, and no part thereof, was gratuitous or was
given for a consideration other than the payment of money oil property
given as trade-ins for down payment credit.
8. INDEMNIFICATION
a. Indemnification: To the Buyer. The Seller agrees to defend, indemnify
and hold harmless the Buyer and its officers, directors, employees,
successors and assigns, from and against any and all losses, damages,
claims, suits, proceedings, liabilities, costs and expenses, including
without limitation reasonable attorneys' fees ("Losses" or "Claims" as
the context requires), which may be imposed on, sustained, incurred or
suffered by, or asserted against any Such persons, directly or
indirectly, as a result of or relating to or arising Out of the breach
of any representation or warranty or covenant or agreement of the
Seller contained in this Agreement.
b. Indemnification: To the Seller. The Buyer agrees to defend, indemnify
and [told harmless the Seller and its officers, directors, employees,
successors and assigns, from and against any and all losses, damages,
claims, suits, proceedings, liabilities, costs and expenses including
without limitation reasonable attorneys' fees ("Losses" or "Claims" as
the context requires) which may be imposed on, sustained, incurred or
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suffered by or asserted against any such persons, directly or
indirectly, as a result of or relating to or arising out of the breach
of any representation or warranty or covenant or agreement of the
buyer contained in this Agreement, or arising from Buyer's ownership
or servicing of the Contracts purchased under this Agreement, at any
time on or after the Purchase Date.
9. USE OF RECORDS BY SELLER
Buyer agrees that all records and memoranda of Seller hereby transferred
will be made available for the use of Seller in making tax returns or for
any other legitimate purpose which does not tend to idjure Buyer in its
competition with other companies and will remain so available for a period
of not less than 18 months after the date of this Agreement.
10. BUYER'S WARRANTIES
Buyer hereby represents and warrants to Seller, as of the Purchase Date,
which representations and warranties shall survive the execution of this
Agreement and the Purchase Date, that it is a corporation, duly organized,
validly existing and in good standing under the laws of the state of
Colorado, and has taken all corporate action necessary or advisable to
authorize the execution and consummation of the transactions contemplated
by this Agreement.
11. ADDITIONAL SELLER WARRANTY: DEFENSE AND EVIDENCE OF OWNERSHIP
Seller warrants, represents and agrees that it will warrant and defend
Buyer's title to and ownership of the Contracts after the Purchase Date;
and that Seller will, at its own expense, upon the reasonable request of
Buyer after the Purchase Date, supply copies of any additional documents it
may still have in it possession, if any, which evidence Seller's ownership
of the Contracts sold hereby, and will do, execute, acknowledge and deliver
such other acts, deeds, assignments, releases, transfers or other
instruments and assurances as Buyer may reasonably request to fully
effectuate and confirm Buyer's purchase and ownership of the Contracts.
12. ASSIGNMENT
It is understood that the contract(s) covered by this Agreement have been
pledged to BNY Financial Corporation, a New York corporation, to secure a
portion of Seller's indebtedness to Lender. It is also understood that in
lieu of paying the amounts specified in paragraph three (3) above to
Seller, Buyer will pay such amount jointly to Seller and Lender in partial
satisfaction of Seller's indebtedness to Lender and Seller will make
arrangements to procure the release including any reassignment of
individual contracts) deemed necessary by Buyer to effectuate said release)
of the Receivables pledged to Lender in a manner and form satisfactory to
Buyer and will insure their physical delivery to Buyer on the fifth day
after closing.
13. RESERVE
Buyer will retain and hold on Seller's behalf an amount equal to five
percent (5%) of the Net Outstanding Balance as noted on page one (1) of
Exhibit "A" of this Agreement (the "Reserve"). The Reserve shall be debited
by Buyer the Net Outstanding Principal Balance on any Contract that fails
to make three (3) payments not more than 30 days past due for Seller's
repurchase. Buyer will execute and deliver such endorsements, assignments
or other documents as shall be necessary to evidence the Seller's
repurchase of such Contract. Buyer will provide a monthly accounting
statement to Seller on the Reserve account no later than ten days after
month end. After all contracts shown on Exhibit "A" have met the three (3)
payment requirement, any funds remaining ill the Reserve account subject to
provisions in 13A will be remitted to Seller within 10 business days.
13 A. RESERVE OPTION
Buyer may at its discretion utilize the reserve described in item number 13
to pay the Net Outstanding Balance of any contract(s) that Seller within 90
days of the date of any contract does not provide title and/or
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documentation that guarantees Buyer that all taxes, fees or other related
costs are paid that may prevent Buyer from having a first lien position and
a valid title.
Additionally, Buyer may retain any Reserve until all requirements in items
number 13 and 13A have been met. In the event there is insufficient Reserve
to allow debiting the account because of failure to produce a valid title
within 90 days, Seller will, with Five (5) days notification from the
Buyer, repurchase any Contract for the Net Outstanding Balance.
14. INSURANCE
All of the collateral securing the contract(s) were at the time of Contract
purchase covered by property damage insurance which includes the coverages
normally required for transactions of the nature of the contracts, with the
contract obligors as the insureds and the Seller as loss payee.
15. ANNOUNCEMENTS: NOTIFICATIONS
Neither party hereto will make any announcement of this transaction either
prior to or subsequent to the Purchase Date without prior written approval
of the other, which will not be unreasonably withheld. Seller hereby agrees
that Buyer may notify its customers verbally and by mail following the
Purchase Date that a change in ownership of their account from the Seller
to Buyer has been effected. Seller authorizes the use of its name in the
notices and agrees to execute such notices if requested by Buyer. Neither
Seller nor Buyer shall disclose any material provisions of this Agreement
to any third party without the prior consent of the other, except as may be
specifically required by law or any governmental agency.
16. NOTICES
Any notice to be given or other documents to be delivered by any party to
the other party may be delivered in person to such party, or may be
deposited in the United States certified mail, return receipt requested,
with postage thereon fully prepaid and addressed to the party for whom
intended at the address shown below:
TO BUYER: Mountain Parks Financial Services, Inc.
Xxxxxx Xxxxxxxx, Presideiit/CEO
00000 Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
TO SELLER: Western Fidelity Funding, Inc.
Xxxx Xxxxxx, President
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Any party to this Agreement may, from time to time by written notice to the
other, designate a different address which shall be substituted for the one
above. Notices sent by certified mail shall be deemed effective when
receipted for.
17. SOLE UNDERSTANDING
It is understood and agreed that this Agreement constitutes the sole mutual
understanding regarding the subject matter of this Agreement, and that no
provision hereof shall be modified or altered except in writing duly signed
by both parties to this Agreement.
18. APPLICABLE LAW
The laws of the State of Colorado shall govern the validity and
interpretation of this Agreement and the performance of the parties to this
Agreement.
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19. HEADINGS NOT PART OF AGREEMENT
Marginal headings are informational only and not a part of this Agreement.
20. EXPENSES
Except as is otherwise specifically provided in this Agreement, regardless
whether the execution of this agreement takes place or whether this
Agreement is terminated, all parties shall pay their own costs and expenses
in connection with this Agreement and the transactions contemplated hereby,
including, but not by way of limitations all regulatory fees, attorneys'
fees, accounting fees and other expenses.
21. ATTORNEY'S FEES
In the event of any action, suit, or other proceeding to interpret or
enforce this Agreement, the prevailing party shall be entitled to recover
its reasonable attorney's fees and costs incurred from the other party.
22. SUCCESSORS AND ASSIGNS
All terms and provisions of this Agreement shall be binding upon and shall
inure to the benefit of the parties to this Agreement and their respective
transferees, successors and assigns.
23. MULTIPLE COUNTERPARTS
This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original for all purposes and all of which shall be
deemed, collectively, one agreement, but in making proof hereof it shall
not be necessary to exhibit more than one such Counterpart.
24. INVALID PROVISIONS
If any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future laws effective during the term of
this Agreement, the provision shall be fully severable; this document shall
be construed and enforced as if the illegal, invalid or unenforceable
provision had never comprised a part of this Agreement, and the remaining
provisions shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from
this Agreement.
Furthermore, in lieu of the illegal, invalid or unenforceable provision
there shall be added automatically as a part hereof a provision as similar
in terms to the illegal, invalid or unenforceable provision as may be
possible and be legal, valid and enforceable, and, as changed or amended,
continue to reflect the original intent of the parties hereto.
25. ENTIRE AGREEMENT
The making, execution and delivery of this Agreement by the parties have
been induced by no representations, statements, warranties, or agreements
other than those herein expressed. This Agreement embodies the entire
understanding of the parties and there are no further or other agreements
or understanding, written or oral, in effect between the parties relating
to the subject matter of this Agreement.
26. TIME OF ESSENCE
The parties to this Agreement agree and stipulate that time is of the
essence with regard to the performance by each party of its obligations
under this Agreement.
27. BROKERAGE
Each of said parties hereby indemnifies and agrees to hold the other
harmless against any and all claims, losses, liabilities or expenses which
may be asserted against the other as the result of the other party's
dealings, arrangements or agreements with any such broker, finder or person
or entity.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed for it and on its behalf by its respective duly authorized officers.
SELLER:
WESTERN FIDELITY FUNDING, INC.
Witness: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxxx
---------------------------- -----------------------------
Xxxx Xxxxxx
Its President
BUYER:
MOUNTAIN PARKS FINANCIAL SERVICES, INC.
Witness: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxxxx
---------------------------- -----------------------------
Xxxxxx Xxxxxxxx
Its: President/CEO
Attachments:
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Release Agreement
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EXHIBIT "A"
CLOSING STATEMENT
Seller: WESTERN FIDELITY FUNDING, INC.
Buyer: MP FINANCIAL SERVICES
Date: March 14, 1997
1. Net Outstanding Balances $4,459,417.60
2. Less Discount (445,941.76) = 10 %of #1
3. Purchase Price $4,013,475.84
3. Less Reserve (222,970.88) = 5% of #1
3. Amount to Seller $3,790,504.96
Seller: Buyer:
WESTERN FIDELITY FUNDING, INC. MP FINANCIAL SERVICES
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx Xxxxxxxx
----------------------------- -----------------------------
Xxxx Xxxxxx Xxxxxx Xxxxxxxx
(Typed or Printed Name) (Typed or Printed Name)
Its: President President/CEO
(Title) (Title)
Page 1 of 10
EXHIBIT B
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that, pursuant to that certain Purchase
Agreement dated March 13, 1997, between Western Fidelity Funding, Inc., a
Colorado corporation, its successors and assigns, and MP Financial Services, a
Colorado corporation, the undersigned (herein termed the "Principal") does
constitute and appoint MP Financial Services, its successors and assigns (herein
termed the "Attorney" and sometimes termed the "Purchaser"), acting by and
through such Attorney's designated officers and employees, the true and lawful
Attorney and Attorney of the Principal, with full power by an instrument in
writing to appoint a substitute or substitutes for and in the name and stead of
the Principal but for the benefit of the Purchaser, its successors and assigns,
to demand, reduce to possession, collect, receive, receipt for, endorse,
compromise, settle or assign without recourse any and all indebtedness, notes,
commercial paper, promises to pay, retail installment sales contracts, chattel
paper, instruments, chooses in action and other obligations described in Exhibit
"A" to that certain Xxxx of Sale and Assignment of Receivables dated March 14,
1997, from the Principal to the Purchaser ("Receivables") together with all
monies due or to become due under said Receivables, and any and all claims,
chooses in action, and rights and causes of action relating thereto, including
without limitation any and all real estate and personal property, security
instruments and insurance policies held as security for said Receivables, and
all other property of every kind identified in said Exhibit "A"; to cancel or
release the Receivables and release any security, in whole or in part and in
connection therewith to execute, acknowledge or handle proper discharges,
releases, satisfactions or other instruments in writing which may become
necessary in order to carry the foregoing powers into effect, the Principal
hereby ratifying and confirming all acts and things lawfully and reasonably done
by the Attorney or its substitute or substitutes in pursuance of the authority
herein granted.
IN WITNESS WHEREOF, the Principal has executed this instrument this
13th day of March, 1997.
WESTERN FIDELITY FUNDING, INC.
By: /s/ Xxxx Xxxxxx
------------------------------
Xxxx Xxxxxx, President
STATE OF COLORADO )
COUNTY OF XXXXX )
The above and foregoing Limited Power of Attorney was acknowledged before
me on March 14, 1997, by Xxxx Xxxxxx as President of Western Fidelity Funding,
Inc.,
WITNESS my hand and official seal.
/s/ Xxxx Xxxxxxxx
-------------------------------------
Notary Public - State of Colorado
Xxxx Xxxxxxxx
[Name Printed]
My Commission Expires November 13. 1999
EXHIBIT "C'
LITIGATION, LEGAL OR ADMINISTRATIVE PROCEEDINGS
NONE
EXHIBIT "D"
XXXX OF SALE AND ASSIGNMENT OF RECEIVABLES
IN CONSIDERATION OF the sum of One and no/100 ($1.00) Dollars and other
good and valuable consideration, the receipt of which is hereby acknowledged,
and pursuant to and in furtherance of a certain Agreement dated March 13, 1997
and between Western Fidelity Funding, Inc. (herein called "Seller"), a Colorado
corporation, and MP Financial Services (herein called "Purchaser"), a Colorado
corporation, Seller does hereby grant, bargain, sell, assign, convey and
transfer to, and vest in, Purchaser, its successors and assigns, forever, all of
Seller's right, title and interest (legal or equitable) in and to the following
described property and assets, all in accordance with the terms and provisions
of said Agreement.
All indebtedness, notes, commercial paper, promises to pay, retail
installment sales contracts, chattel paper, instruments, choses in actions and
other obligations described in Exhibit "A" attached hereto ("Receivables"),
together with all monies due or to become due on such Receivables; all claims,
rights and causes of action at any time belonging to Seller in connection with
the Receivables; and all rights, title and interest of the Seller in all other
instruments, documents, information and collateral related thereto, including
but not limited to credit information reports, lien search reports, files,
ledger cards and certificates of title pertaining thereto, all policies or
certificates of insurance in force on collateral securing any and all of the
Receivables or insuring Seller as the owner thereof or otherwise as a party in
interest with respect thereto, such credit life and credit disability policies
and unearned premiums herein as are described in the aforesaid Agreement; and
any and all collateral securing the Receivables, including but not limited to
security agreements and chattel mortgages.
This Xxxx of Sale and Assignment is hereby incorporated and made a part
of said Agreement.
IN WITNESS WHEREOF, Seller has caused this instrument to be duly
executed this 13th day of March, 1997.
WESTERN FIDELITY FUNDING, INC.
By: /s/ Xxxx Xxxxxx
---------------------------------
Xxxx Xxxxxx, President
EXHIBIT "E"
CERTIFIED COPY OF CORPORATE RESOLUTION
I hereby certify that at a special meeting of the Board of Directors of
Western Fidelity Funding, Inc., a Colorado corporation, duly called and held on
the 14th day of March, 1997, at the principal office of the corporation at 0000
Xxxxxx Xxxxxx, Xxxxx 000, at which a quorum was present, the following
resolution was unanimously adopted:
WHEREAS, this corporation is about to execute air Agreement with MP
Financial Services, a Colorado corporation ("MPFS") pursuant to which this
corporation will sell to MP Financial Services certain assets of this
corporation consisting of retail installment contracts, promissory, Security
notes, security agreements and similar instruments (the "Contracts") for and in
consideration of the payment of approximately $ 4,000 000.00 by MP Financial
Services to this corporation; and
WHEREAS, it is the opinion of this Board of Directors that the sale of such
Contracts by this corporation to MP Financial Services is in the best interest
of this corporation, and that the consideration offered by MP Financial Services
for such Contracts is fair and adequate;
NOW THEREFORE, BE IT RESOLVED that the execution and delivery of a Purchase
Agreement by and between this corporation as the Seller and MP Financial
Services as the Buyer for the sale of Contracts owned by this corporation for a
consideration of approximately $ 4,100,000.00 by any one of the officers,
employees and agents of this corporation listed below, upon such terms and
conditions and with such covenants. representations and warranties as such
designated officers, employees and agents may deem necessary or desirable, be
and the same is hereby authorized, approved and ratified as the act and deed of
this corporation.
RESOLVED FURTHER that any one of the officers, employees and agents of this
corporation listed below are authorized to execute the Purchase Agreement; and
deal on behalf of and in the name of this corporation with MP Financial
Services:
Names Titles
----- ------
Xxxx Xxxxxx President
------------------ -----------------
RESOLVED FURTHER that any of the above designated officers, employees and
agents of' this corporation are authorized to sign, endorse, make, execute,
deliver, transfer, assign and convey any and all instruments and documents
necessary or desirable to consummate the sale of the Contracts to MP Financial
Services as contemplated by the Purchase Agreement.
I further certify that said resolution is duly recorded and appears in the
Minute Book of this corporation, and has not been alerted, amended or revoked.
IN WITNESS WHEREOF I have hereunto set my hand and the seal of this
corporation this 14th day of March, 1997.
President:
[Corporate Seal] /s/ Xxxx Xxxxxx
------------------------------------
------------------------------------
------------------
RELEASE AGREEMENT
This RELEASE AGREEMENT (this "Agreement") is entered into as of March 14,
1997, by and among WESTERN FIDELITY FUNDING, INC., a Colorado corporation
("Borrower"), BNY FINANCIAL CORPORATION, a New York corporation ("BNYFC"), and
MP FINANCIAL SERVICES, INC., a Colorado corporation ("MPFS").
Recitals
A. BNYFC and Borrower have entered into that certain Revolving Credit and
Security Agreement dated as of June 24, 1996 (as amended, supplemented
or otherwise modified from time to time, the "Loan Agreement").
Pursuant to which BNYFC has provided to Borrower a line of credit in
the amount of Twenty Million and No/100 Dollars (20,000,000) (the "Line
of Credit").
B. The Line of Credit is secured by, among other things, security
interests and liens (the "BNYFC Lien") in and to certain receivables
and other assets described on Annex A to the Colorado UCC-3 Statement
of Change (the "UCC-3") attached hereto on Schedule A and made a part
hereof (such property described on the Annex A is the "Released
Assets").
C. Pursuant to that certain Purchase Agreement dated March 14, 1997, (the
"Purchase Agreement"), by and between Borrower and MPFS, Borrower has
agreed to sell to MPFS certain property including, without limitation,
the Released Assets (the "Purchased Assets").
D. As a condition to its purchase of the Purchased Assets pursuant to the
Purchase Agreement, BNYFC is to release the BNYFC Lien on the Released
Assets in order to permit Borrower to transfer the Purchased Assets to
MPFS free and clear of the BNYFC Lien.
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Release of Lien. BNYFC hereby releases any and all of BNYFC's security
interests in, and any and all liens on and rights of lien on or set-
off against, the Released Assets, effective upon the closing of the
sale of the Purchased Assets to the MPFS pursuant to the Purchase
Agreement and the receipt of BNYFC of $4,236,446.7 via wire transfer
of federal funds to *(see below) (the time of such closing and receipt
of such funds being referred to as the "Effective Time"). BNYFC
warrants that, as of the Effective Time, BNYFC has not assigned any of
the foregoing security interests, liens or rights in the Released
Assets.
2. Deliveries. Further Assurances. BNYFC further agrees to deliver to
MPFS, (i) concurrently with the Effective Time, execute and deliver to
MPFS the UCC-e with respect to the UCC filings listed on Schedule A,
and such other instruments of release or discharge pertaining to the
BNYFC Lien on the Released Assets as MPFS may reasonably request to
*Bank of New York, 48 Wall Street, A/C #8090653114, ABA #000000000, for the
account of: BNY Financial Corp. - Reference: Western Fidelity Funding, Inc.
effectuate, or reflect of public record, the release and discharge of
the BNYFC Lien on the Released Assets, and (ii) not later than five
business days following the Effective Time, send via Federal Express
next day delivery the original Receivable Files which includes the
original retail installment contract and certificate of title or title
documents to MPFS at 00000 Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx
00000-0000, Attention: Xxxxxx Xxxxxxxx. BNYFC further agrees, from and
after the Effective Time, (i) all Receivable Files held or sent
pursuant to the preceding sentence by BNYFC prior to delivery to MPFS
are and shall be held or sent as agent for MPFS; and (ii) to deliver
such other release statements or documents as MPFS may from time to
time deem necessary or required to effectuate the foregoing. All of the
foregoing deliveries shall be at the expense of the Borrower.
3. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Colorado.
4. Beneficiary. MPFS shall be a beneficiary of this Agreement, BNYFC
acknowledges that MPFS is relying on this Agreement in executing the
Purchase Agreement and purchasing the Purchased Assets.
5. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the undersigned have executed this Consent and Release
Agreement as of the date first written above.
WESTERN FIDELITY FUNDING, INC.,
a Colorado corporation
By: /s/Xxxx X. Xxxxxx
-----------------------------------
Xxxx X. Xxxxxx, President
BNY FINANCIAL CORPORATION,
a New York corporation
By: /s/Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: SVP
STATE OF COLORADO )
)ss.
COUNTY OF JEFFERSON )
The foregoing instrument was acknowledged before me this 14th day of March,
1997, by Xxxx X. Xxxxxx, the President of WESTERN FIDELITY FUNDING, INC., a
Colorado corporation, on behalf of the corporation.
WITNESS my hand and official seal.
My Commission Expires: November 20, 2000
/s/
-------------------------------------
Notary Public
[SEAL]
STATE OF NEW YORK )
)ss.
COUNTY OF MAN. )
The foregoing instrument was acknowledged before me this 14th day of March,
1997, by Xxxx Xxxxx, the SRV of BNY FINANCIAL CORPORATION, a New York
corporation, on behalf of the corporation.
WITNESS my hand and official seal.
My Commission Expires: 8/31/97
/s/
----------------------------------------
Notary Public
[SEAL]
