EXHIBIT 10.7
LOAN SALE AND PURCHASE AGREEMENT
Loan Sale and Purchase Agreement ("Agreement"), dated as of March 14,
1997, between Xxxxxxxx Capital Incorporated (the "Seller") and Orinda Management
Company (the "Purchaser").
The Seller agrees to sell and the Purchaser agrees to purchase certain
loans made to owners or lessees of franchised restaurant concepts identified on
the schedule (the "List of Loans") annexed hereto as Exhibit 1 (the "Loans") as
described herein. The Purchaser will sell the Loans to Xxxxxxxx Franchisee Loan
Funding 1997-A LLC (the "Issuer") in exchange for the Issuer's Class A Notes,
certain membership interests in the Issuer and immediately available funds. The
Loan Documents will be held and the Loans will be serviced pursuant to a
Servicing and Custodial Agreement (the "Servicing Agreement") to be dated as of
March 14, 1997, by and among the Issuer, Bankers Trust Company (in its capacity
as servicer thereunder, the "Servicer", and in its capacity as custodian
thereunder, the "Custodian"), the Seller and First Bank National Association, as
indenture trustee (the "Indenture Trustee") under the Indenture (as defined
below).
The Issuer will pledge, among other things, the Loans and the Loan
Collateral to the Indenture Trustee pursuant to an Indenture of Trust (the
"Indenture") to be dated as of March 14, 1997. The Issuer will issue its
Xxxxxxxx Franchisee Loan Notes, Series 1997-A, pursuant to the Indenture.
Pursuant to the Master Custodial Agreement to be dated as of March 1, 1997
between Bankers Trust Company, as note custodian, and the Purchaser, as
depositor, the Purchaser will exchange the Class A Notes for Class A Custody
Receipts and Class A-IO Custody Receipts (together, the "Custody Receipts").
The Purchaser intends to sell the Custody Receipts to certain
qualified institutional buyers. Pursuant to a Placement Agent Agreement dated
March 14, 1997 (the "Placement Agent Agreement") with Xxxxxx Brothers Inc. (the
"Placement Agent"), the Placement Agent will offer the Custody Receipts, as well
as the Class B Notes and Class C Notes to be sold by the Issuer, for sale to
certain qualified institutional buyers in transactions exempt from the
registration requirements of the Securities Act of 1933. Such securities are
described in a Private Placement Memorandum dated as of March 14, 1997 (the
"Memorandum").
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Indenture.
In consideration of the mutual agreements contained herein, the Seller
and the Purchaser hereby agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, and the
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Purchaser agrees to purchase, on the date hereof and on a servicing released
basis, the Loans. The Loans have an aggregate principal balance as of the close
of business on the Cut Off Date, after giving
effect to any payments due before such date, whether or not received, of
$97,276,237.82. The consideration paid by the Purchaser for the Loans is 100
shares of the Purchaser's common stock.
On the date hereof, (1) the Purchaser will assign to the Issuer
(pursuant to a Loan Sale and Purchase Agreement between the Purchaser and the
Issuer) all of its right, title and interest in and to the Loans and its rights
under this Agreement, (2) the Issuer will then pledge and assign to the
Indenture Trustee pursuant to the Indenture, all of its right, title and
interest in and to the Loans and its rights under this Agreement, and the
Indenture Trustee shall succeed to such right, title and interest in and to the
Loans and the Purchaser's rights under this Agreement.
SECTION 2. Conveyance of Loans. The Seller does hereby transfer,
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assign, set over and otherwise convey to the Purchaser, without recourse, all
the right, title and interest of the Seller in and to the Loans, the Loan Files
and other Loan Documents, together with all escrow deposits related thereto. In
connection with such transfer and assignment, except as set forth in the fourth
paragraph of this Section 2, the Seller has delivered to the Custodian, on
behalf of the Purchaser, on or prior to the date hereof, all of the Loan Files.
The Loan File for each Loan, which is described more specifically in
the Loan Submission Summary delivered to the Custodian in connection with such
Loan, shall contain the following documents:
(a) the executed original of the Promissory Note endorsed "Pay to the
order of ____________, without recourse," with all intervening endorsements, if
any, showing a complete chain of title from the originator to the party
endorsing such Promissory Note, plus amendments thereto;
(b) an executed original of the Franchisee Loan Agreement;
(c) an executed original Security Agreement;
(d) the original Mortgage, if applicable, with evidence of recording
thereon, or a duplicate original Mortgage, if applicable, together with escrow
instructions requiring such Mortgage to be dispatched to the appropriate public
recording office for recordation;
(e) the original Leasehold Mortgage with evidence of recording thereon
or in appropriate form for recording (subject to, with respect to each Loan
listed on Schedule A to Exhibit 2 hereto, the exception of the obtaining of a
landlord signature), if applicable, or a duplicate original Leasehold Mortgage,
if applicable, together with escrow instructions requiring such Leasehold
Mortgage to be dispatched to the appropriate public recording office for
recordation;
(f) an executed original Guaranty, if applicable;
(g) the UCC-1 Financing Statement, with evidence of filing thereon, or
a copy of the original UCC-1 Financing Statement, together with escrow
instructions requiring such UCC-1 Financing Statement to be dispatched to the
appropriate public filing office;
(h) one or more UCC-2 or UCC-3 Assignments in form and substance
acceptable for filing;
(i) an executed original of each landlord, mortgagee or prior lien or
estoppel, if applicable;
(j) an executed original of a Franchisor Intercreditor Agreement, if
applicable;
(k) an executed original of a Franchisor Subordination of Lessor's
Lien, if applicable;
(l) the original title insurance policy, if applicable;
(m) applicable certificate(s) of insurance;
(n) the environmental indemnity, if applicable;
(o) an assignment of Mortgage, if applicable;
(p) a general assignment of the Loan File from the Seller, assigning,
without recourse, all of the Seller's right, title and interest in each Loan,
Loan File and other Loan Documents, including but not limited to, the Franchisee
Loan Agreement, the Promissory Note, the Security Agreement, the Mortgage, the
Leasehold Mortgage, the Franchisor Intercreditor Agreement, the Franchisor
Subordination of Lessor's Lien, the origination escrow agreement and the
Guaranty, as applicable; and
(q) any other credit or security document necessary for the
documentation and enforcement of such Loan.
The assignment of Mortgage and general assignment of Loan File
referred to in clauses (o) and (p) may be in the form of a single instrument
assigning the Mortgage and Loan File to the extent permitted by applicable law.
The Seller will deliver the original Promissory Note to the Custodian on behalf
of the Purchaser, endorsed in blank, to effect the transfer to the Purchaser of
the Promissory Notes and all related Leasehold Mortgages, Mortgages and other
Loan Documents. Concurrently herewith, the Purchaser has contracted to sell the
Loans to the Issuer and the Issuer in turn has pledged the Loans (pursuant to
the Indenture) to the Indenture Trustee on behalf of the Noteholders. To avoid
the unnecessary expense and administrative inconvenience associated with the
execution and recording or filing of multiple assignments of mortgages and
assignments of UCC financing statements the Seller has executed and recorded or
filed assignments of mortgages and assignments of UCC financing statements
naming the
Indenture Trustee on behalf of the Noteholders as assignee. Notwithstanding the
fact that the assignments of mortgages and the assignments of UCC financing
statements name the Indenture Trustee on behalf of the Noteholders as assignee,
the parties hereto acknowledge and agree that the Loans shall for all purposes
be deemed to have been transferred from the Seller to the Purchaser, from the
Purchaser to the Issuer and from the Issuer to the Indenture Trustee on behalf
of the Noteholders.
If the Seller cannot deliver, or cause to be delivered, to the
Custodian any of the documents or instruments referred to in clause (d), (e) or
(g) with evidence of recording thereon for any reason, the Seller shall deliver
or cause to be delivered to the Custodian within 180 days of the date hereof a
photocopy of such document or instrument with evidence of recording thereon and
certified by the appropriate county recorder's office to be a true and complete
copy of the original thereof submitted for recording.
The Indenture Trustee, as assignee or pledgee of the Issuer, shall be
entitled to all scheduled payments of principal due after the Cut Off Date, all
other payments of principal collected after the Cut Off Date (other than
scheduled payments of principal due on or before the Cut Off Date), and all
payments of interest on the Loans allocable to the period commencing on the Cut
Off Date. All scheduled payments of principal and interest due on or before the
Cut Off Date and collected after the Cut Off Date shall belong to the Seller.
Upon the sale of the Loans by the Seller to the Purchaser pursuant to
this Agreement, the ownership of each Promissory Note, Mortgage, Leasehold
Mortgage and the other contents of the related Loan File shall be vested in the
Purchaser and its assigns, and the ownership of all records and documents with
respect to the related Loan prepared by or which come into the possession of the
Seller shall immediately vest in the Purchaser and its assigns, and shall be
delivered promptly by the Seller to the Custodian. The Seller's records shall
reflect the transfer of each Loan to the Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the conveyance of
the Loans and related property to the Purchaser, by the Seller as provided in
this Section 2 be, and be construed as, an absolute sale of the Loans and
related property. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Loans and related property by the Seller to
the Purchaser to secure a debt or other obligation of the Seller. However, in
the event that, notwithstanding the intent of the parties, the Loans or any
related property is held to be the property of the Seller, or if for any other
reason this Agreement is held or deemed to create a security interest in the
Loans or any related property, then:
(i) this Agreement shall be deemed to be a security agreement;
and
(ii) the conveyance provided for in this Section 2 shall be
deemed to be a grant by the Seller to the Purchaser, of a
security interest in all of the Seller's right, title, and
interest, whether now owned or hereafter acquired, in and
to:
(A) All accounts, contract rights, general intangibles, chattel
paper, instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment property
and uncertificated securities consisting of, arising from or relating to
any of the following property: the Loans including the Promissory Notes,
the related Leasehold Mortgages, the related Mortgages, the related
Security Agreements, and title, hazard and other insurance policies, all
distributions with respect thereto payable on and after the Cut Off Date,
and the Loan Files;
(B) All accounts, contract rights, general intangibles, chattel
paper, instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, uncertificated
securities, investment property, and other rights arising from or by virtue
of the disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other Persons with
respect to, all or any part of the collateral described in clause (A) above
(including any accrued discount realized on liquidation of any investment
purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above and all products, rents and profits of such
property.
The possession by the Purchaser or its designee of the Promissory
Notes, the Leasehold Mortgages, the Mortgages and such other goods, letters of
credit, advices of credit, instruments, money, documents, chattel paper or
certificated securities shall be deemed to be "possession by the secured party,"
or possession by a purchaser or a person designated by him or her, for purposes
of perfecting the security interest pursuant to the Uniform Commercial Code
(including, without limitation, Sections 9-305, 8-313 or 8-321 thereof) as in
force in the relevant jurisdiction.
Notifications to Persons holding such property, and
acknowledgments, receipts or confirmations from Persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Purchaser or its designee for the purpose of perfecting such security
interest under applicable law.
The Seller shall, to the extent consistent with this Agreement,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the property described
above, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Agreement. The Seller shall file all filings
necessary to maintain the effectiveness of any original filings necessary under
the Uniform Commercial Code as in effect in any jurisdiction to perfect such
security interest in such property. In connection herewith, the Purchaser shall
have all of the rights and remedies of a secured party and creditor under the
Uniform Commercial Code as in force in the relevant jurisdiction.
SECTION 3. Examination of Loan Files and Due Diligence Review. On
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or prior to the date hereof, the Seller has delivered to the Custodian, Loan
Files with respect to the Loans. The fact that the Custodian has conducted or
has failed to conduct any partial or complete examination of the Loan Files for
the Loans shall not affect the right of the Purchaser or the Indenture Trustee
to cause the Seller to cure any Material Document Defect or Material Breach
(each as defined below), or to repurchase or replace the defective Loans
pursuant to Section 5 of this Agreement.
SECTION 4. Representations and Warranties of the Seller and the
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Purchaser. (a) To induce the Purchaser to enter into this Agreement, the Seller
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hereby makes for the benefit of the Purchaser and its assigns with respect to
each Loan as of the date hereof (or as of such other date specifically set forth
in the particular representation and warranty) each of the representations and
warranties set forth on Exhibit 2 hereto and hereby further represents and
warrants to the Purchaser as of the date hereof that:
(i) The Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and is qualified and in
good standing in each other jurisdiction where such qualification is required
for the Seller in connection with its ownership of the Loans and performance of
its obligations under this Agreement. The Seller has the requisite power and
authority and legal right to own the Loans and to transfer and convey the Loans
to the Purchaser and has the requisite power and authority to execute and
deliver, engage in the transactions contemplated by, and perform and observe the
terms and conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized, executed and
delivered by the Seller, and (assuming the due authorization, execution and
delivery hereof by the Purchaser) this Agreement constitutes the valid, legal
and binding agreement of the Seller, enforceable in accordance with its terms,
except as such enforcement may be limited by (A) laws relating to bankruptcy,
insolvency, reorganization, receivership or moratorium, (B) other laws relating
to or affecting the rights of creditors generally or (C) general equity
principles (regardless of whether such enforcement is considered in a proceeding
in equity or at law).
(iii) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court, is required,
under federal or state law, for the execution, delivery and performance of or
compliance by the Seller with this Agreement, or the consummation by the Seller
of any transaction contemplated hereby.
(iv) Neither the transfer of the Loans to the Purchaser, nor the
execution, delivery or performance of this Agreement by the Seller, conflicts or
will conflict with, results or will result in a breach of, or constitutes or
will constitute a default under (A) any term or provision of the Seller's
certificate of incorporation or by-laws, (B) any term or provision of any
material agreement, contract, instrument or indenture, to which the Seller is a
party or which may be applicable to any of its assets, or (C) any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller or its assets.
(v) There are no actions or proceedings against, or investigations of,
the Seller pending or, to the Seller's knowledge, threatened against the Seller
before any court, administrative agency or other tribunal.
(vi) The form of this Agreement and the related instruments of
transfer are in form sufficient to transfer all rights, title and interest in
and to the Loans to the Purchaser. The Seller has given or caused to be given
all notices legally necessary to be given by the Seller to effect the sale of
the Loans. The sale of the Loans pursuant to this Agreement will effect a
transfer by the Seller of all of its right, title and interest in and to the
Loans to the Purchaser.
(vii) The transfer of the Loans to the Purchaser will be treated by
the Seller for financial accounting and reporting purposes as a sale of assets.
(viii) The Seller's principal place of business and chief executive
office is in the State of California.
(ix) The Seller is not insolvent and will not be rendered insolvent as
a result of the transactions contemplated hereby and it has not entered into
this Agreement with any intent to hinder, delay or defraud any of its creditors.
Each of the representations, warranties and covenants made by the
Seller pursuant to this Section 4(a) shall survive the sale of the Loans and
shall continue in full force and effect notwithstanding any restrictive or
qualified endorsement on the Promissory Notes.
(b) To induce the Seller to enter into this Agreement, the Purchaser
hereby represents and warrants to the Seller as of the date hereof:
(i) The Purchaser is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Delaware with full power and
authority to carry on its business as presently conducted by it.
(ii) The Purchaser has full power and authority to acquire the Loans,
to execute and deliver this Agreement and to enter into and consummate all
transactions contemplated by this Agreement. The Purchaser has duly and validly
authorized the execution, delivery and performance of this Agreement and has
duly and validly executed and delivered this Agreement. This Agreement, assuming
due authorization, execution and delivery by the Seller, constitutes the valid
and binding obligation of the Purchaser, enforceable against it in accordance
with its terms, except as such enforcement may be limited by (A) laws relating
to bankruptcy, insolvency, reorganization, receivership or moratorium, (B) other
laws relating to or affecting the rights of creditors generally or (C) general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii) The execution, delivery and performance of this Agreement by the
Purchaser will not violate the Purchaser's certificate of incorporation or by-
laws or constitute a default (or an event that, with notice or lapse of time or
both, would constitute a default) under,
or result in a breach of, any material agreement, contract, instrument or
indenture to which the Purchaser is a party or which may be applicable to the
Purchaser or its assets.
(iv) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, rule, writ,
injunction, or any order or decree of any court, or any order or regulation of
any federal, state or municipal government agency having jurisdiction over the
Purchaser or its assets, which violation could materially and adversely affect
the condition (financial or otherwise) or the operation of the Purchaser or its
assets or could materially and adversely affect its ability to perform its
obligations and duties hereunder.
(v) There are no actions or proceedings against, or investigations of,
the Purchaser pending or, to the Purchaser's knowledge, threatened against the
Purchaser before any court, administrative agency or other tribunal, the outcome
of which could reasonably be expected to adversely affect the execution,
delivery or performance by, or enforceability against the Purchaser of this
Agreement or have an effect on the financial condition of the Purchaser that
would materially and adversely affect the ability of the Purchaser to perform
its obligation and duties hereunder.
Each of the representations and warranties made by the Purchaser
pursuant to this Section 4(b) shall survive the purchase of the Loans.
SECTION 5. Remedies Upon Breach of Representations and Warranties
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Made by the Seller. (a) It is hereby acknowledged that the Purchaser shall make
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for the benefit of the holders of the Notes and the Custody Receipts, whether
directly or by way of assignment of its rights hereunder to the Indenture
Trustee, the representations and warranties set forth on Exhibit 2 hereto.
(b) It is hereby further acknowledged that if any document
required to be delivered to the Custodian pursuant to Section 2 with respect to
a Loan is not delivered as and when required, not properly executed or is
defective on its face, or if there is a breach of any of the representations and
warranties required to be made by the Seller regarding the characteristics of a
Loan as set forth in Exhibit 2 hereto, and in either case such defect or breach,
individually or in the aggregate with any other defect or breach, materially and
adversely affects such Loan (a "Material Document Defect" and a "Material
Breach", respectively) the party discovering such Material Document Defect or
Material Breach shall promptly notify the other parties and within 60 days of
receipt by the Seller of notice of such Material Document Defect or such
Material Breach, as the case may be, the Seller shall correct or cure such
Material Document Defect or Material Breach. Any delay or failure to provide the
notice called for in the prior sentence shall not limit or impair any of the
rights and obligations of the Purchaser hereunder.
The Seller hereby covenants and agrees that, if any such Material
Document Defect or Material Breach cannot be corrected or cured within the above
cure periods, the Seller shall, not later than 60 days after its discovery or
the Purchaser's or its assignee's notice to it respecting such Material Document
Defect or Material Breach, either (i) repurchase the related
Loan from the Purchaser or its assignee at a price equal to the sum of (x) 100%
of the unpaid principal balance of such Loan, plus (y) accrued but unpaid
interest thereon calculated at the applicable interest rate for such Loan, but
not including, the scheduled payment date for such Loan in the Due Period in
which such purchase occurs such price, the "Purchase Price," and any such
purchase, the "Repurchase Option"), or (ii) within one year of the date hereof,
at its option replace any Loan to which such defect relates with another Loan
satisfactory to the Credit Enhancer and meeting the requirements set forth in
the Indenture. The Seller agrees that any such substitution shall be completed
in accordance with the terms and conditions of the Indenture.
The obligations of the Seller set forth in this Section 5(b) to cure a
Material Document Defect or a Material Breach or repurchase or replace a
defective Loan constitute the sole remedies of the Purchaser or its assignees
with respect to a Material Document Defect or Material Breach against the
Seller; provided, that this limitation shall not in any way limit the
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Purchaser's rights or remedies upon breach of any other representation or
warranty or covenant by the Seller set forth in this Agreement (other than those
set forth in Exhibit 2).
(c) If the Seller repurchases any Loan pursuant to this Section
5, the Purchaser or its assignee, following receipt by the Custodian of the
Purchase Price therefor, promptly shall deliver or cause to be delivered to the
Seller all Loan Documents with respect to such Loan, and each document that
constitutes a part of the Loan File that was endorsed or assigned to the
Indenture Trustee shall be endorsed and assigned to the Seller in the same
manner.
SECTION 6. Closing. The closing of the sale of the Loans shall be
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held at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 at 10:00 a.m. (New York time) on the date hereof.
The closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller
and the Purchaser specified in Section 4 of this Agreement (including,
without limitation, the representations and warranties set forth on
Exhibit 2 to this Agreement) shall be true and correct as of the date
hereof.
(b) All Closing Documents specified in Section 7 of this
Agreement, in such forms as are agreed upon and acceptable to the
Seller or the Purchaser, as applicable, shall be duly executed and
delivered by all signatories as required pursuant to the respective
terms thereof.
(c) All other terms and conditions of this Agreement required
to be complied with on or before the date hereof shall have been
complied with and the Seller and the Purchaser shall have the ability
to comply with all terms and conditions and perform all duties and
obligations required to be complied with or performed after the date
hereof.
(d) The Notes and the Custody Receipts shall have been assigned
ratings by the Rating Agencies that are at least as high as those
specified in the Memorandum.
(e) The Placement Agent shall not have terminated the Placement
Agent Agreement.
The Seller and the Purchaser agree to use their best efforts to
perform their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Loans on the date hereof. If any of the foregoing
conditions is not satisfied by the Seller, other than as a result of bad faith
nonperformance on the part of the Purchaser, the Purchaser shall be entitled to
terminate this Agreement (exclusive of any payment or reimbursement obligations
of the Seller hereunder).
SECTION 7. Closing Documents. The Closing Documents shall consist of
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the following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the date hereof, and upon which the
Purchaser and its successors and assigns may rely, to the effect that
the Seller has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied on or prior to the
date hereof.
(c) True, complete and correct copies of the Seller's certificate
of incorporation and by-laws;
(d) A good standing certificate of the Seller from the Secretary
of State of Delaware, dated not earlier than 30 days prior to the date
hereof.
(e) A certificate of the Secretary of the Seller, dated the date
hereof, and upon which the Purchaser may rely, to the effect that each
individual who, as an officer or representative of the Seller, signed
this Agreement or any other document or certificate delivered on or
before the date hereof in connection with the transactions
contemplated herein, was at the respective times of such signing and
delivery, and is as of the date hereof, duly elected or appointed,
qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents and
certificates are their genuine signatures.
(f) An opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special
counsel to the Seller, dated the date hereof and in the form attached
hereto as Exhibit 3.
(g) Such other opinions of counsel as the Rating Agencies or
the Credit Enhancer may request in connection with the sale of the
Loans by the
Seller to the Purchaser or the Seller's execution and delivery of, or
performance under, this Agreement.
(h) A letter from KPMG Peat Marwick LLP, certified public
accountants, dated the date hereof, to the effect that they have
performed certain specified procedures as a result of which they
determined that certain information of an accounting, financial or
statistical nature set forth in the Memorandum under the caption "The
Pool" agrees with the records of the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 8. Notices. All communications provided for or permitted
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hereunder shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to the Purchaser, addressed to the Purchaser at Xxx Xxxx
Xxxxxx, Xxx Xxxx Xxx Xxxx 00000, Attention: President (or such other address as
may hereafter be furnished in writing by the Purchaser); (ii) if to the Seller,
addressed to the Seller at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx
00000, Attention: Xxxxx Xxxxx (or to such other address as the Seller may
designate in writing); or (iii) if to the Indenture Trustee or the Credit
Enhancer, at their respective addresses set forth in the Indenture (or to such
other address as the Indenture Trustee or the Credit Enhancer may designate in
writing).
SECTION 9. Severability of Provisions. Any part, provision,
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representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 10. Further Assurances. The Seller and the Purchaser each
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agree to execute and deliver such instruments and take such actions as the other
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
SECTION 11. Survival. The Seller agrees that the representations,
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warranties and agreements made by it herein and in any certificate or other
instrument delivered pursuant
hereto shall be deemed to be relied upon by the Purchaser, notwithstanding any
investigation heretofore or hereafter made by the Purchaser or on its behalf,
and that the representations, warranties and agreements made by the Seller
herein or in any such certificate or other instrument shall survive the delivery
of and payment for the Loans and shall continue in full force and effect until
the Seller ceases to exist pursuant to the terms of its certificate of
incorporation and by-laws, notwithstanding any restrictive or qualified
endorsement on the Promissory Notes and notwithstanding subsequent termination
of this Agreement.
SECTION 12. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
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OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK AND THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL AND
CONSENT TO THE JURISDICTION OF ANY NEW YORK STATE COURT OF COMPETENT
JURISDICTION. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 13. Benefits of Loan Sale and Purchase Agreement. This
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Agreement shall inure to the benefit of and shall be binding upon the Seller,
the Purchaser and their respective successors, legal representatives, and
permitted assigns.
SECTION 14. No Petition. Neither the Seller nor the Purchaser
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shall file a bankruptcy petition against the other in connection with any
obligations arising from this Agreement.
SECTION 15. Credit Enhancer as Third-Party Beneficiary. The
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Credit Enhancer is a third-party beneficiary of this Agreement entitled to
enforce its rights hereunder as if actually a party hereto. Any right conferred
upon the Credit Enhancer shall be suspended during any period in which the
Credit Enhancer is in default (as defined in Section 11.3 of the Indenture).
During any period of suspension, the Credit Enhancer's rights hereunder shall
vest in the Noteholders and shall be exercisable by the Majority-in-Interest
(unless specified otherwise in a particular provision of the Indenture). At such
time as the Class A Notes are no longer Outstanding under the Indenture and the
Credit Enhancer has been paid all Credit Enhancement Premiums, reimbursable
expenses and Credit Enhancement Reimbursement Amounts, the Credit Enhancer's
rights hereunder shall terminate.
Unless the Class A Notes are no longer Outstanding under the Indenture
and the Credit Enhancer has been paid all Credit Enhancement Premiums,
reimbursable expenses and Credit Enhancement Reimbursement Amounts, or the
Credit Enhancer is in default (as defined in Section 11.3 of the Indenture), (i)
this Agreement shall not be amended without the consent of the Credit Enhancer,
and (ii) any notices to be sent pursuant to this Agreement also shall be sent to
the Credit Enhancer at the address provided in the Indenture.
SECTION 16. Miscellaneous. This Agreement may be executed in two or
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more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
rights and obligations of the Seller under this Agreement shall not be assigned
by the Seller without the prior written consent of the Purchaser, except that
any person into which the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Seller is a party, or any person succeeding to the entire business of the Seller
shall be the successor to the Seller hereunder.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused their
names to be signed by their respective duly authorized officers as of the date
first above written.
XXXXXXXX CAPITAL INCORPORATED
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: President
ORINDA MANAGEMENT COMPANY
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: President
