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EXHIBIT 10.1
SALES AGREEMENT
BETWEEN
THE SUMITOMO BANK OF CALIFORNIA
AND
PURCHASERS
AUGUST 17, 1995
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TABLE OF CONTENTS
Page No.
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ARTICLE 1 - DEFINITIONS 1
1.01 Defined Terms. 1
1.02 Certain Terms. 3
ARTICLE 2 - CLOSING 3
2.01 Closing 3
2.02 Failure to Close 3
ARTICLE 3 - TRANSFER OF TITLE 3
3.01 Conveyance of Dealer Loans 3
3.02 Delivery of Dealer Loan Documents 3
3.03 Conveyance of Collateral Security 3
3.04 Conveyance of Foreclosed Portfolio 3
3.05 Transfer as Sale 3
3.06 Deliver of Lease Documents 4
3.07 Transfer of Title 4
ARTICLE 4 - CONSIDERATION AND PAYMENT 4
4.01 Purchase Price 4
4.02 Interest on Purchase Price 4
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES 4
5.01 Representations and Warranties of the Seller 4
5.02 Representations and Warranties of the Purchaser 6
5.03 Limitation on Representation 6
5.04 Survival of Representations and Warranties 6
5.05 Remedies 6
ARTICLE 6 - COVENANTS 7
6.01 Covenants of the Seller 7
6.02 Covenants of the Purchaser 7
6.03 Survival of Covenants 8
ARTICLE 7 - CONDITIONS PRECEDENT 8
7.01 Conditions to the Purchaser's Obligations 8
7.02 Conditions to Seller's Obligations 9
ARTICLE 8 - ADMINISTRATION AND REPURCHASES 9
8.01 Repurchase Obligations 9
8.02 Legal Actions 9
ARTICLE 9 - SERVICING 9
9.01 Conveyance of Servicing. 9
9.02 Interim Servicing 9
9.03 Receipt of Payments 9
9.04 Interim Servicing Fees 9
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ARTICLE 10 - PRESERVATION OF ASSETS 9
10.01 Rights of Purchaser 9
10.02 Rights Cumulative 9
ARTICLE 11 DEFAULT 10
11.01 Purchaser' Default 10
11.02 Seller's Default 10
ARTICLE 12 - MISCELLANEOUS 10
12.01 Notice 10
12.02 Successors and Assigns 11
12.03 Amendments 11
12.04 Survival of Representations, Warranties, and Covenants 11
12.05 Integration 11
12.06 Governing Law 11
12.07 No Third Party Beneficiaries 12
12.08 Waiver of Jury Trial 12
12.09 Arbitration 12
12.10 Attorney's Fees 14
12.11 Time is of the Essence 14
EXHIBIT A ZERO BALANCE LOANS
EXHIBIT B OUTSTANDING LOAN BALANCES
EXHIBIT C EXCLUDED ASSETS
EXHIBIT D FORECLOSED PORTFOLIO
EXHIBIT E PERFORMING LOANS
EXHIBIT F FORM OF XXXX OF SALE FOR LOANS AND VEHICLES
EXHIBIT G LIST OF SERVICERS
EXHIBIT H FORM OF ASSIGNMENT OF ASSETS
EXHIBIT I FORM OF PURCHASER'S OPINION LETTER
EXHIBIT J NOTIFICATION LETTER FROM PURCHASER TO LESSORS
EXHIBIT K NOTIFICATION LETTER FROM PURCHASER TO LESSEES
EXHIBIT L BORROWER'S WAIVERS
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THIS SALES AGREEMENT is made as of this 17th day of August, 1995 between The
Sumitomo Bank of California, a state bank organized under the laws of
California ("Seller"), and Westminster Capital, Inc., a Delaware corporation,
and Executive Car Leasing, Inc., a Delaware corporation (together their
successors and assigns, the "Purchasers").
WITNESSETH:
WHEREAS, the Purchasers desire to purchase and the Seller desires to
sell the Assets (defined below) upon the terms and conditions hereinafter set
forth; and
WHEREAS, Seller will convey to the Purchasers all its right, title and
interest in the Assets.
Purchasers are sophisticated and experienced purchasers of auto loans
and auto leases who has access to expert technical and legal advice and has
conducted their own extensive due diligence with respect to the Assets defined
below.
NOW, THEREFORE, it is hereby agreed by and between the parties hereto
as follows:
ARTICLE 1 - DEFINITIONS
1.01 Defined Terms. For purposes of this Agreement the following
terms shall have the meanings specified herein:
"Assets" shall mean the Seller's rights and interests in: (i) the
Loans, (ii) the Foreclosed Portfolio, (iii) Loan Payments, Lease Payments and
Lease Proceeds received after the Closing Date, and (iv) Zero Balance Loans.
The Assets do not include loans and leases identified as Excluded Assets.
"Assignment" shall mean the Assignment of Leases, as of the Closing
date, from the Seller to the Purchaser.
"Customer Balance" shall mean the Seller's outstanding loan balance as
reflected on Exhibit B.
"Borrowers" shall mean the leasing companies to whom the seller
provided loans secured by vehicles and assignment of individual leases.
"Closing Date" shall mean August 17, 1995.
"Cut Off Date" shall mean June 30, 1995.
"Excluded Assets" shall mean certain loans and leases identified as
per attached Exhibit C.
"Foreclosed Portfolio" shall mean Owned Vehicles and Owned Leases for
which the Seller acquired ownership interest in the assigned vehicles and
leases through foreclosure of Loans identified on Exhibit D.
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"Insurance Policies" shall mean each casualty insurance policy, and
each renewal or replacement therefore, maintained by or on behalf of a Lessee,
(including, without limitation, policies purchased or maintained by the Seller
or its agent) which insures against the loss of, or damage to, a Vehicle.
"Insurance Proceeds" shall mean the proceeds of the Insurance
Policies.
"Interim Servicer" shall mean The Sumitomo Bank of California in its
capacity as servicer of the Assets from the Closing Date through the Servicing
Transfer Date pursuant to Article 9 hereof.
"Leases" shall mean the leases of the Vehicles partly securing the
Loans, as set forth on Exhibits D and E hereto.
"Lease Documents" shall mean with respect to the Foreclosed Portfolio
the lease agreements and all related documents held by the Servicer except for
the original titles held by Seller.
"Lease Payments" shall mean with respect to each Lease, any payments
received from a Lessee pursuant to the terms of a Lease.
"Lease Proceeds" shall mean collectively the Lease Payments under a
Lease.
"Lessees" shall mean the lessees under the Leases.
"Loan Documents" shall mean the loan agreement, UCC financing
statements and all related documents which constitute the agreements between
the Seller and the obligor or guarantor of the Loan together with any known
judgments, court orders or documents relating to actual or threatened
litigation with respect to any of the Performing Loans.
"Loan File" shall mean the promissory note, security agreement, and
other such documents which constitute part of the agreements between Seller and
Obligor(s) delivered to the Purchasers on the Closing Date.
"Loans" shall mean loans provided to the Borrower secured by vehicles
and assignments of individual leases.
"Owned Leases" shall mean the leases of the Foreclosed Portfolio, as
set forth on Exhibit D hereto.
"Owned Vehicles" shall mean the Vehicles of the Foreclosed Portfolio.
"Performing Loans" means the loans identified on Exhibit E hereto,
together with the Loan Documents and all interests of the Seller in any and all
collateral security for such loans, including, without limitation, the
Vehicles, Leases.
"Purchase Price" shall mean 82% of the Customer Balance, as shown on
Exhibit B, as of the Cut Off Date, less 100% of the Lease Payments, Lease
Proceeds, payments and prepayments on the Loan, received by Seller after the
Cutoff Date and before the Closing Date, less any DMV fees, repo fees,
servicing fees, sales tax, lien fees or similar fees paid by Seller.
"Security Deposit" shall mean with respect to each Lease, the
aggregate amount of funds held by the Borrowers. For the Foreclosed Portfolio
the Seller holds no security deposit.
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"Seller's Prime Rate" shall mean the rate of interest set from time to
time by Seller at its Head Office in San Francisco, California as its Prime
Rate.
"Servicer" shall mean the Servicer of the Foreclosed Portfolio as
identified on Exhibit G.
"Vehicles" shall mean the vehicles partly securing the Loans as set
forth on Exhibits D and E hereto and the Owned Vehicles.
"Zero Balance Loans" shall mean the foreclosed portfolio with no loan
balances as set forth on Exhibit A.
1.02 Certain Terms. Terms defined herein shall include the plural
as well as the singular.
ARTICLE 2 - CLOSING
2.01 Closing. Subject to and upon the terms and conditions
hereinafter set forth, the Purchasers agrees to purchase from the Seller and
the Seller agrees to sell to the Purchaser, on the Closing Date, the Assets.
ARTICLE 3 - TRANSFER OF TITLE
3.01 Conveyance of Assets. Seller hereby assigns, transfers, sets
over and conveys to the Purchasers all its rights, title, and interest in and
to all of the Assets.
3.02 Delivery of Loan Documents. On the Closing Date, Seller shall
deliver the Loan Files to the Purchasers at the Seller's place of business
located at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx. Conveyance of the
Loan Documents shall be accomplished by the Seller executing a Xxxx of Sale in
the form attached hereto as Exhibit F and an assignment on the terms of Exhibit
H and the endorsement of each promissory note in blank without recourse. In
the event that Seller retains or comes into possession of any Loan File after
the Closing Date, Seller shall hold such documents as custodian for the
Purchasers and will forward such documents to the Purchasers as soon as
possible.
3.03 Conveyance of Collateral Security. Seller will deliver a
power of attorney in a form substantially similar to Exhibit M. Seller shall
assign its interests in the Leases and any related Insurance Policies and
Insurance Proceeds by executing an assignment in favor of the Purchasers in the
form attached hereto as Exhibit H. Seller will execute and deliver to the
Purchasers assignments of all UCC financing statements filed with respect to
any Loan.
3.04 Conveyance of Vehicles. On the Closing Date, seller shall
sell, set over, assign, transfer and convey to the Purchasers all right, title
and interest of the Seller in the Foreclosed Portfolio and the Zero Balance
Loans, including all interest of the Seller in the Insurance Policies and
Insurance Proceeds. Seller shall assign its interests in the Owned Leases by
executing an assignment in favor of the Purchasers in the form attached hereto
as Exhibit H.
3.05 Transfer as Sale. It is the express intent of the parties
hereto that the conveyance of the Assets by the Seller to the Purchasers as
contemplated by this Agreement be construed as a sale and absolute conveyance
of the Assets by the Seller to the Purchasers.
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3.06 Delivery of Lease Documents. On the Closing Date Seller is
deemed to have delivered the Lease Documents actually held on the Closing Date
by a Servicer on Exhibit G to the Purchasers at the respective Servicer's
location.
3.07 Transfer of Title. After the Closing Date the Purchasers are
responsible for all title transfers of the vehicles and all associated fees.
Purchasers warrants that they will be responsible for all subsequent fees and
title transfers.
ARTICLE 4 - CONSIDERATION AND PAYMENT
4.01 Purchase Price. The Purchasers shall pay an amount equal to
the Purchase Price, plus the Interest Component, plus the Interim Servicing
fee, with immediately available funds by wire transfer to be received by Seller
by 10:00 a.m. Pacific Daylight Time on the Closing Date, at Route No.
121002042, attention Automotive Finance Department.
4.02 Interest Component. The Interest Component shall be interest
on the Purchase Price at the Seller's Prime Rate from the Cut Off date to the
Closing Date. Interest shall be calculated by the actual number of days
elapsed over three hundred and sixty-five days.
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES
5.01 Representations and Warranties of the Seller Seller hereby
represents and warrants to the Purchasers as of the Closing Date, except as
known to the Purchaser as of the Closing Date that:
(a) Seller is a state bank duly organized and validly existing
under the laws of the State of California.
(b) This Agreement has been duly authorized, executed and
delivered by the Seller and is the legal, valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms.
(c) Seller is the sole holder of all right, title and interest in
and to the Assets with full right to transfer ownership thereof to the
Purchasers.
(d) Seller has provided the Purchasers or their agents with access
to the original certificates of title relating to each Vehicle, which are true
and complete originals of the certificates of title.
(e) No Vehicle which is securing a Performing Loan has been
released by the Seller from the lien granted under the terms of the related Loan
by the Seller in whole or in part;
(f) The Seller has required that it be named as loss payee or an
additional insured in each Insurance Policy, free from any lien, security
interest, charge, encumbrance or other right, title or interest of any person.
(g) Seller is the owner of each Owned Vehicle, free from any lien,
security interest, charge encumbrance or other right, title or interest of any
person, (subject however, to the rights of the Lessees under the Owned Leases,
any garageman lien, any DMV transfer or
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registration fee, any rights in any Owned Vehicle created by the Lessee without
Seller's written consent).
(h) Seller will deliver to Purchasers all original Leases that it
has in its possession or under its control, which may be counterpart originals,
and, to the best of its knowledge, are true and complete copies of the Leases,
and have not been otherwise amended or modified.
(i) Borrower is indebted to Seller on The Performing Loans in
accordance with their respective Loan Documents except as modified or waived as
provided in Exhibit L. Notwithstanding this representation and any other
representation by Seller in this Agreement, Seller makes no representation as
to enforceability of any late charge, default interest rate or prepayment fee
in any of the Loan Documents.
(j) The amount shown as the Current Balance of the Loans on
Exhibit E hereto is the current outstanding balance of such Loan as of the Cut
Off Date.
(k) At the time a Performing Loan was made, it was a valid,
binding and enforceable obligation against the respective Borrower.
(l) The Seller has not waived or altered the terms of the Loan
Documents in any manner, and has not waived, canceled, satisfied subordinated
or rescinded any of the Loan Documents, other than as specified in the Loan
Files or specified in Exhibit L.
(m) Seller has no outstanding funding commitments under any of the
Loan Documents for the Performing Loans.
(n) The sale of the Assets, the execution and delivery of the
Assignment, the performance of the Seller's obligations under this Agreement
and the consummation of the transactions herein contemplated, will not conflict
with or result in a breach of any of the term or provisions of, or constitute a
default under, or result in the creation or imposition of lien, security
interest, charge or encumbrance (except in favor of the Purchasers) upon any of
the Assets pursuant to the terms of any indenture, mortgage, deed of trust,
loan agreement or other agreement (including the Loans) or instruments to which
it is a party or by which it is bound or to which any of Assets is subject, nor
will such action result in the violation of any order of any court or
governmental agency or body having jurisdiction over it or the Assets; and no
consent, approval, authorization, order, registration or qualification of or
with any court or any such regulatory authority or other governmental agency or
body, is required for the sale of the Assets, the performance of Seller's
obligations under this Agreement or the consummation of any of the other
transactions herein contemplated.
(o) Except for the financing statements contemplated by Section
3.03 hereof and certificates of title, the Seller will neither execute nor
authorize there to be on file in any public office any financing statement or
similar statement or instrument of registration under the laws of any
jurisdiction relating to the Assets.
(p) The Seller does not have actual knowledge of any litigation or
other proceeding threatened or pending with respect to any Asset except as
disclosed in Exhibit L.
(q) To the best of Seller's knowledge, each Lease complies with
applicable state and federal law and regulation, including consumer credit
laws, in all material respects.
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5.02 Representations and Warranties of the Purchasers. Subject to
Section 5.03 hereof, the Purchasers hereby represents and warrants to the
Seller that:
(a) The Purchasers have been duly organized and are validly
existing and in good standing as a corporations under the laws of their state
of incorporation with corporate power and authority to own their properties and
to transact the business in which they are now engaged or in which they
proposes to engage.
(b) The purchase by the Purchasers of the Assets pursuant to this
Agreement and the consummation of the transactions herein contemplated will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
security interest, charge or encumbrance upon any of the property or assets of
the Purchasers (except the Assets purchased hereunder) pursuant to the terms of
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Purchasers are a party or by which they are bound or to
which any of the property or assets of the Purchasers is subject, nor will such
action result in the violation of any provision of the Certificates of
Incorporation or By-Laws of the Purchasers or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Purchasers and any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any court or any
such regulatory authority or other governmental agency or body, is required for
the purchase of the Assets hereunder.
(c) There are no judgments, orders, or decrees of any kind against
the Purchasers that are unpaid or unsatisfied of record, nor is there any legal
action, suit or other legal or administrative proceeding pending and served on,
or, or to the Purchasers' actual knowledge, threatened or reasonably
anticipated that could be filed against the Purchasers, that would, taken in
the aggregate materially adversely affect the ability of the Purchasers to
carry out the transaction contemplated in this Agreement.
(d) The Purchasers are not in the hands of a receiver and have not
committed an act of bankruptcy or insolvency. The Purchasers now have and will
have as of the Closing Date sufficient capital, net worth and/or commitments to
meet their obligations, including payment of the Purchase Price under this
Agreement.
(e) This Agreement has been authorized, executed and delivered by
the Purchasers and constitutes the valid and legally binding obligation of the
Purchasers enforceable against the Purchasers in accordance with its terms.
5.03 Limitation on Representations. The representations and
warranties of the Seller contained in Section 5.01(d), (e), and (f) are not
made with respect to the Zero Balance Loans.
5.04 Survival of Representations and Warranties. The
representations and warranties contained in this Article 5 shall survive, for a
period of twenty four (24) months, the sale and delivery of the Assets to the
Purchasers and the performance of this agreement.
5.05 Remedies. In the event of any breach of warranty or
representation by Seller under this Agreement, Purchaser shall have no remedy
in tort or equity and shall be limited to damages in an action for breach of
contract. In the event of any breach of warranty or representation under this
Article 5 as to any Asset by Seller, Purchaser shall give prompt notice thereof
to Seller and Seller, at Seller's sole and exclusive option, may repurchase the
Asset to which the warranty or representation was allegedly breached in
consideration for that portion of the Purchase Price attributable to the Asset
less all sums received by Purchasers on account of the Asset.
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ARTICLE 6 - COVENANTS
6.01 Covenants of the Seller. Seller hereby covenants and agrees
with the Purchasers as follows:
(a) The Seller's originals of all titles to Vehicles will be
delivered to the Purchasers or Purchasers' designee on the Closing Date;
(b) The Seller shall take no action which would result in the
cancellation or modification of any of the Insurance Policies, without the
prior written consent of the Purchasers;
(c) The Seller will do nothing to impair the rights of the
Purchasers in the Assets;
(d) The Seller may make, execute or endorse, acknowledge to the
Purchasers from time to time such confirmatory assignments, conveyances,
transfer endorsements, powers of attorney, and certificates relating to the
Assets as the Purchasers may request and reasonably require;
(e) The Seller shall forward to the Purchasers within five (5)
business days of receipt any Lease Payments, Lease Proceeds and any payments it
hereafter receives pursuant to the Insurance Policies;
(f) The Seller will cooperate with the Purchasers and any servicer
or other agent of the Purchasers in transferring all documents, files and other
information necessary for servicing the Assets.
(g) The Seller shall execute such instruments, deliver such
documents, and take such actions necessary to substitute the Purchasers as a
party, and the Purchasers' attorneys as attorneys of record, in any ongoing
litigation and for the Purchasers to proceed with such litigation relating to
an Asset and to assign any rights of the Seller therein.
(h) The Seller shall indemnify, defend, and hold Purchasers
harmless from any and all claims, demands, causes of actions, liabilities (and
attorneys fees and costs in defense thereof), arising after the Closing Date in
favor of a Borrower or Lessee arising out of or related to, any of the Assets
or Leases (each a "Claim"), except to the extent that the Claim arises out of a
breach by Purchaser of any alleged representation under Article 5 of this
Agreement or any action of the Purchasers after the Closing Date. Seller shall
defend Purchasers under this subsection (c) with counsel approved by Purchasers
at Seller's expense.
6.02 Covenants of the Purchasers
(a) The Purchasers hereby covenant and agree with the Seller that
as long as no default in payment on the part of any Lessee exists under any
Lease, the Purchasers will do nothing to disturb or impair such Lessee's use
and quiet enjoyment of the Vehicle for the Foreclosed Portfolio.
(b) The Purchasers hereby covenants and agrees that the Purchaser
will take the Foreclosed Portfolio subject to any and all existing servicing
arrangements which may be terminated by Purchaser according to their terms
after the Cut Off Date. Purchaser shall assume all of Seller's obligations for
servicing fees on the Foreclosed Portfolio from the Cut Off Date.
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(c) The Purchasers shall indemnify, defend, and hold Seller
harmless from any all claims, demands, causes of actions, liabilities (and
attorneys fees and costs in defense thereof), including claims for security
deposits, arising after the Closing Date in favor of a Borrower or Lessee
arising out of or related to, any of the Assets or Leases (each a "Claim"),
except to the extent that the Claim arises out of a breach by Seller of any
alleged representation under Article 5 of this Agreement. Purchasers shall
defend Seller under this subsection (c) with counsel approved by Seller at
Purchaser's expense.
(d) Purchasers shall perform each written obligation contained in
the Loan Documents, except as Modified in Exhibit L and Owned Leases except to
the extent that the existence of the obligation is a breach of any
representation by Seller under Article 5 or is a liability which will be
indemnified by Seller under Article 6.
(e) Purchaser shall maintain all records concerning the Assets in
California and shall make the records available upon reasonable Seller's
request during normal business hour, at a reasonable cost to Seller, up to a
period of five years from the Closing Date.
(f) Purchasers shall notify Seller of its intention to destroy any
records concerning the Assets for a period of five years from the Closing Date.
6.03 Survival of Covenants. With the exception of 6.02(e) and (f)
the covenants contained in this Article 6 shall survive the sale and delivery
of the Assets to the Purchasers and the performance of this Agreement for a
period of twenty-four (24) months from the Closing Date.
ARTICLE 7 - CONDITIONS PRECEDENT
7.01 Conditions to the Purchaser's Obligations. The obligations of
the Purchasers to make any purchase pursuant to this Agreement shall be subject
to the satisfaction of the following conditions:
(a) All representations and warranties of the Seller contained in
this Agreement and shall be true and correct as of the Closing Date;
(b) Seller shall have given the Purchasers and their respective
designees full access to its books and records concerning the Assets, and all
other information theretofore required or reasonably requested by the
Purchasers to be delivered by the Seller hereunder, duly certified by an
officer of the Seller, and shall have performed all other obligations required
to be performed by the provisions of this Agreement to the satisfaction of the
Purchasers;
(c) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Purchasers.
(d) Seller shall have delivered or provided for the delivery of
the originals which may be counterpart originals of the Leases and the related
title documents to the Purchasers.
(e) Seller shall have complied with all the terms of this
Agreement.
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7.02 Conditions to the Seller's Obligation's. The obligations of
the Seller to perform pursuant to the Agreement shall be subject to the
satisfaction of the following conditions:
(a) Receipt of the Purchase Price on the Closing Date.
(b) All representations and warranties of the Purchasers contained
in this Agreement and all information provided by Purchasers shall be true and
correct on the Closing Date;
(c) Receipt of an opinion letter by Purchasers' counsel in the
form provided in Exhibit I.
ARTICLE 8 - ADMINISTRATION AND REPURCHASES
8.01 Repurchase Obligations. The Assets are sold by the Seller to
the Purchasers on non-recourse basis. The Seller has no obligation to
repurchase any of the Assets.
8.02 Legal Actions. In addition to the foregoing, if the
Purchasers shall so request, the Seller shall, within reason, cooperate with
the Purchasers in any legal proceedings instituted by or on behalf of, or in
the name of, the Purchasers, or otherwise as appropriate, against any Borrower
or Lessee in default under any Loan or owned Lease.
ARTICLE 9 - SERVICING
9.01 Conveyance of Servicing. On the Closing Date, the Seller
shall transfer all rights to servicing with respect to the Assets to the
Purchasers or to the Purchasers' designee.
Within five (5) business days the Seller shall remit to the Purchasers
all payments with respect to any Asset, including Insurance Proceeds, Lease
Payment, and loan proceeds received by the Seller on or after the Closing Date.
9.02 Interim Servicing. The Seller has no obligations to provide
interim servicing beyond the Closing Date.
9.03 Interim Servicing Fees. The Purchasers shall pay to Seller
$25,000.00 as an Interim Serving Fee.
ARTICLE 10 - PRESERVATION OF ASSETS
10.01 Rights of Purchasers. In addition to any rights and remedies
now or hereafter granted under applicable law and not by way of limitation of
any such rights and remedies, the Purchasers shall have the right to notify all
obligors and guarantors under the Loans, Lessees of the Foreclosed Portfolio
and insurance carriers under the Insurance Policies to make payments to the
Purchasers at the address specified in the notice. Purchasers will provide
samples of these notices as Exhibits J and K.
10.02 Rights Cumulative. All rights and remedies conferred upon or
reserved to the Purchasers under this Agreement are cumulative, and none is
intended to be exclusive of another. No delay or omission in insisting upon
the strict observance or performance of any provision of this Agreement, or in
exercising any right or remedy, will be construed as a
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waiver or relinquishment of that provision or will impair that right or remedy.
Every right and remedy may be exercised from time to time and as often as
deemed expedient.
ARTICLE 11 - DEFAULT
11.01 Purchasers' Default. In the event that the Purchaser defaults
in its obligations to purchase the Assets, or breaches a material
representation or material warranty or covenant contained in this Agreement, or
otherwise fails to perform any of its obligations to purchase the Assets, the
Seller shall be entitled to assert all claims and to exercise all remedies
available to it at law or in equity with respect to any default by the
Purchasers in performing any obligations required to be performed by the
Purchaser under this Agreement after the Closing Date; provided, however, that
the Seller shall have no right to consequential damages.
11.02 Seller's Default. In the event the Seller defaults in any
material respect in its obligations hereunder, then, if such default occurs
subsequent to the Closing, the Purchasers may avail themselves of any legal or
equitable rights and remedies that the Purchasers may have under this Agreement
with respect to the Seller. The Purchasers shall have no right to
consequential damages. With respect to a default by the Seller or the breach
of any representation or warranty, in either case that does not have a material
adverse effect on the Purchasers, the Purchasers shall have no remedy. In no
event shall the Purchasers have the right to offset amounts due to the Seller
under any contract or agreement between the Seller and the Purchasers or any
Affiliate of the Purchasers on account of default by the Seller hereunder.
Notwithstanding anything herein contained to the contrary, in no event shall
the Seller have any liability hereunder or at law or in equity for the payment
of money damages nor shall the Seller be required to make any payment to cure
defects or pursuant to any indemnity hereunder, if the amount of such payment,
when added to the amount of all other payments made by the Seller, for such
purposes would exceed the Purchase Price.
ARTICLE 12 - MISCELLANEOUS
12.01 Notice. Except as otherwise specified herein, wherever this
Agreement provides for notice to any party (except as expressly provided to the
contrary), it shall be given by messenger, facsimile, electronic transmission,
telegram or mail, effective when received by the party to whom addressed, and
shall be addressed as follows or to such other address as the party affected
may hereinafter designate:
If to the Seller: If to the Purchasers:
The Sumitomo Bank of California -----------------------------------
Chief Credit Officer -----------------------------------
000 Xxxxxxxxxx Xxxxxx -----------------------------------
Xxx Xxxxxxxxx, XX 00000
-----------------------------------
-----------------------------------
-----------------------------------
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12.02 Successors and Assigns. This Agreement shall be binding upon
the parties hereto and their successors and assigns.
12.03 Amendments. This Agreement and the rights and obligations of
the parties hereunder may not be changed orally but only by an instrument in
writing signed by the party against which enforcement is sought.
12.04 Survival of Representations, Warranties, and Covenants. All
representations, warranties and covenants made herein shall be continuing
representations, warranties and covenants and shall survive the execution and
delivery of this Agreement for a period of twenty four (24) months from the
Closing Date.
12.05 Integration. Except for the Confidentiality Agreements, this
Agreement supersedes any and all agreements and oral or written communications,
including, without limitation, discussions, correspondence and statements of
interpretation or assumption, between the Seller and the Purchasers with
respect to this Agreement, the purchase of the Assets or any of the other
matters contained herein, and this Agreement, the Confidentiality Agreements
and the documents contemplated herein contain the sole, final and complete
expression and understanding between the Seller and the Purchasers with respect
to the transactions contemplated herein and therein. This Agreement shall not
be altered or modified except by a subsequent writing, signed by the Purchasers
and the Seller. Anything to the contrary contained herein or in the
Confidentiality Agreements notwithstanding prior to the closing, the Purchasers
may disclose confidential information (including, without limitation, the
Schedule Prices for the respective Assets) to actual or potential lenders in
connection with their loans in connection with the transactions contemplated by
this Agreement; provided, however, that each such actual or potential lender to
which the Purchasers proposes to provide such information shall first have (i)
agreed in writing for the benefit of the Seller to be bound by the terms of the
Confidentiality Agreements, (ii) delivered a copy of such agreements to the
Seller, and (iii) certified in writing to the Seller that copies of the
Confidentiality Agreements and such written agreements to be bound thereby have
been delivered to each person to whom such confidential information is to be
disclosed.
12.06 Governing Law; Jurisdiction; Venue.
(a) THIS AGREEMENT SHALL BE CONSTRUED, AND THE RIGHTS AND OBLIGATIONS
OF THE SELLER AND THE PURCHASERS HEREUNDER DETERMINED, IN ACCORDANCE WITH THE
LAWS OF THE STATE OF CALIFORNIA AS APPLIED TO DOMICILIARIES THEREOF.
(b) Subject to the arbitration provisions set forth in Section 12,
for the purposes of any Legal Proceeding arising out of or relating to this
Agreement, the Purchasers hereby expressly acknowledges and agrees that it is
subject to, and hereby submits to, the jurisdiction of all federal and state
courts sitting in the City and County of San Francisco, State of California and
consents that any order, process, notice of notion or other application to or
by any such court or a judge thereof may be served within or without such
court's jurisdiction by registered mail or by personal service provided that a
reasonable time for appearance is allowed, and the Purchasers agree that such
courts shall have exclusive jurisdiction over any Legal Proceeding commenced by
either or both of said parties. In furtherance of this Section, the Purchasers
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agree, immediately upon the request of the Seller, to discontinue (or to cause
the discontinuance of) any Legal Proceeding pending in any other jurisdiction.
(c) The Purchasers hereby irrevocably waive any objection that
they may have now or hereafter to the laying of venue of any Legal Proceeding
arising out of or relating to this Agreement brought in any federal or state
court sitting in the City and County of San Francisco, State of California and
hereby further irrevocably waives any claim that any Legal Proceeding brought
in any such Court has been brought in an inconvenient forum.
12.07 No Third-Party Beneficiaries. No person, firm or other entity
other than the parties hereto, which, for purposes of this section, shall be
the Seller and the Purchasers, shall have any rights or claims under this
Agreement. No brokerage commission shall be payable to any party, other than
Communication Systems., Inc., who is not a third party beneficiary to the
contract, in connection with the sale of the Assets. Any commission owed to
Communication Systems., Inc., is the sole responsibility of Purchasers.
12.08 Waiver of Trial by Jury. IF, FOR ANY REASON, ANY DISPUTE
BETWEEN THE PARTIES IS NOT SUBMITTED TO ARBITRATION AS PROVIDED IN THIS
AGREEMENT, BUT RATHER IS SUBMITTED TO A COURT OF COMPETENT JURISDICTION, THEN
IN SUCH EVENT EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
(TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT AND AGREES THAT
ANY SUCH DISPUTE, AT THE ELECTION OF ANY OTHER PARTY, SHALL BE TRIED BEFORE A
JUDGE SITTING WITHOUT A JURY.
SELLER'S INITIALS: PURCHASERS' INITIALS: &
------- ------- -------
12.09 Arbitration
(a) Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof or any tort allegedly pertaining thereto,
shall at the request of any party be determined by arbitration. The
arbitration shall be conducted in accordance with the United States Arbitration
Act (Title 9, United States Code), notwithstanding any choice of law provision
in this contract, and under the Commercial Rules and Guidelines for Expediting
Larger, Complex Commercial Arbitrations of the American Arbitration
Association.
(b) The exclusive venue for both the administration of and the
hearing in any arbitration under this Section 12 shall be San Francisco,
California. The Purchasers hereby irrevocably waives any objection that they
may now or hereafter have to the laying of venue of any arbitration arising out
of or relation to this Agreement in San Francisco and hereby covenants that
they will not bring or maintain any such arbitration proceeding in any other
locale. Judgment upon the arbitration award shall be entered in any court
venued in San Francisco, California as provided in Section 12.
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(c) If the amount in controversy, as determined by reference to
the statement of claim or any cross-claim filed in connection therewith filed
by either party, is less than $500,000, then the dispute shall be submitted to
a single arbitrator. All other disputes shall be submitted to a panel of three
(3) arbitrators.
(d) The arbitrator(s) shall give effect to applicable statutes of
limitations. Any controversy concerning whether an issue is arbitrable shall
be determined by the arbitrator(s). The arbitrator(s) shall have the power to
consider, rule upon and include in any award claims for equitable relief. The
arbitrator(s) shall not be authorized to award consequential, punitive or
exemplary damages, and each party hereby expressly waives its right to seek to
recover consequential, punitive or exemplary damages with respect to any claim
arising out of or relating to this Agreement, or the breach thereof or any tort
allegedly pertaining thereto.
(e) The institution and maintenance of an action for judicial
relief or pursuit of a provisional or ancillary remedy shall not constitute a
waiver of the right of any party, including the plaintiff in any such action to
submit the controversy or claim to arbitration if any other party contests such
action for judicial relief. Further no provision of this Section 12 shall
limit the right of any party to this Agreement to exercise self-help remedies
such as setoff, foreclosure against or sale of any real or personal property
collateral or security.
(f) In the event any party fails or refuses to post timely all
fees and costs imposed or assessed by the American Arbitration Association,
including, without limitation the fees and costs of the arbitrator(s), or
otherwise fails or refuses without just cause to appear and participate in the
arbitration proceedings at the time and in the manner prescribed by the
American Arbitration Association and/or the arbitrator(s), then the
arbitrator(s) are authorized and directed by this Agreement to proceed without
undue delay to take the default of such party and to enter an award based on
such default.
(g) The administrative fees of the American Arbitration
Association and the arbitrator(s) fees and costs shall be paid one-half by the
Purchasers and one-half by the Seller. The prevailing party shall recover as
part of the arbitrator(s) award its one-half of such fees and costs.
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12.10 Attorney's Fees. If any Legal Proceeding is instituted to
enforce any of the provisions of this Agreement, unless otherwise set forth
herein, the prevailing party shall be entitled to its reasonable attorney's
fees and costs, including expert witness fees, and the allocated cost of
in-house counsel.
12.11 Time is of the Essence. The Purchasers acknowledges that it
has been informed by the Seller that its failure to close the purchase and sale
of the Assets on the Closing Date will prevent the Seller from realizing
certain material accounting and other benefits associated with the closing of
said purchase and sale, that potential fluctuations in market conditions could
adversely affect the sale of assets such as the Assets, and that a delay in the
closing will otherwise cause severe prejudice to the Seller. Accordingly, the
Purchasers and the Seller each acknowledge and agree that time is of the
essence of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date
hereof.
THE SUMITOMO BANK OF CALIFORNIA PURCHASERS
By: /s/ By: /s/
---------------------------- ----------------------------------
Title: Chief Credit Officer Title: EVP & CFO
------------------------- -------------------------------
By: /s/
----------------------------------
Title: Senior VP
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