Exhibit 7
TERMINATION AND SETTLEMENT AGREEMENT
WITH RESPECT TO
INVESTMENT AGREEMENT AND CONTINUING GUARANTY
THIS TERMINATION AND SETTLEMENT AGREEMENT is entered into as of the 15th
day of March 2000 (this "Agreement"), by and among XXXXXX XXXXXXXXX CAPITAL
PARTNERS II, L.P., a California limited partnership ("LLCP"), CONSUMER PORTFOLIO
SERVICES, INC., a California corporation (the "Company"), STANWICH FINANCIAL
SERVICES CORP., a Rhode Island corporation ("Stanwich"), XXXXXXX X. XXXXXXX,
XX., an individual ("CEB"), and XXXXXXX X. XXXXXXX, XX., an individual
("Xxxxxxx" and, together with CEB and Stanwich, the "Guarantors").
R E C I T A L S
A. The parties entered into that certain Investment Agreement and
Continuing Guaranty dated as of April 15, 1999 (the "Investment and Guaranty
Agreement"), pursuant to which, among other things, in order to induce LLCP to
waive the Existing Defaults, amend the Amended November 1998 Securities Purchase
Agreement and purchase from the Company the April 1999 Note and the April 1999
Warrant, (i) Stanwich agreed to perform the Stanwich Investment Obligation, (ii)
the Guarantors jointly and severally guaranteed the Obligations to LLCP and
certain other matters and (iii) the Guarantors pledged certain of their assets
to LLCP under the Pledge Agreements to secure, among other things, the
Obligations to LLCP. Unless otherwise indicated, all capitalized terms used
herein shall have the respectively meanings given to them in the Investment and
Guaranty Agreement.
B. Pursuant to (i) a Pledge and Security Agreement dated as of April 15,
1999, between Stanwich and LLCP, (ii) a Pledge and Security Agreement dated as
of April 15, 1999, between CEB and LLCP, and (iii) a Pledge and Security
Agreement dated as of April 15, 1999, between Xxxxxxx and LLCP (the Pledge and
Security Agreements described in clauses (i) through (iii) are collectively
referred to herein as the "Pledge Agreements"), the Guarantors pledged the
Collateral (as such term is defined therein, respectively) to secure the payment
and performance of, among other things, the Obligations to LLCP.
C. Certain breaches, violations and defaults by the Company and the
Guarantors have occurred under the Investment and Guaranty Agreement, including,
without limitation, the failure by the Company and Stanwich to comply with
Section 3.1 of the Investment and Guaranty Agreement with respect to the
Stanwich Investment Obligation.
D. LLCP and the Company are entering to that certain Amended and Restated
Securities Purchase Agreement dated of even date herewith (the "Securities
Purchase Agreement") pursuant to which, among other things, the Company and LLCP
are amending
and restating (i) the Amended November 1998 Securities Purchase Agreement and
the April 1999 Securities Purchase Agreement, as provided therein, and (ii) the
Amended November 1998 Primary Note and the April 1999 Note into one Amended and
Restated Secured Senior Note Due 2003 in the principal amount of $30,000,000.
Unless otherwise indicated, all capitalized terms used herein shall have the
respectively meanings given to them in the Securities Purchase Agreement.
E. As part of the transactions contemplated by the Securities Purchase
Agreement, the Company and the Guarantors have requested that LLCP terminate the
Investment and Guaranty Agreement and the Pledge Agreements and release the
Guarantors from all liabilities and obligations thereunder, respectively, and
LLCP is willing to do so only on the terms and subject to the conditions set
forth herein.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
Section 1. Termination of Investment and Guaranty Agreement. Effective on
and as of the Closing Date, the Investment and Guaranty Agreement shall
terminate in its entirety and be of no further force or effect, and each of
LLCP, the Company and the Guarantors shall have no further liabilities or
obligations thereunder.
Section 2. Termination of Pledge Agreements; Release of Pledged
Collateral. Effective on and as of the Closing Date, each Pledge Agreement (and
the security interest created thereby) shall terminate and be of no further
force or effect, and the parties to such Pledge Agreement shall have no further
liabilities or obligations thereunder. Within two (2) business days following
the Closing Date, LLCP will deliver to the Company, on behalf of each Guarantor,
the Pledged Collateral held by LLCP under the Pledge Agreements. In addition,
LLCP agrees to execute and deliver to each Guarantor such instruments,
termination statements and other documents as such Guarantor may reasonably
request (such Guarantor to prepare the same) for the purposes of evidencing the
termination of the Pledge Agreement (and the security interest created thereby)
to which such Guarantor is a party and of effectuating the release of his or its
Pledged Collateral. LLCP represents and warrants to the Guarantors that it has
not, on or prior to the date hereof, sold, assigned, pledged or otherwise
transferred to any Person (a) any of its rights under any of the Investment and
Guaranty Agreement, the Pledge Agreements, the Amended November 1998 Securities
Purchase Agreement or the April 1999 Securities Purchase Agreement or (b) any of
the
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Pledged Collateral, and will not do so on or prior to the Closing Date. The
Company shall deliver the Pledged Collateral to the applicable Guarantors
promptly after its receipt thereof from LLCP.
Section 3. Mutual Releases.
(a) In consideration of the covenants and other agreements set forth
herein, effective on and as of the Closing Date, the Company and each Guarantor,
on behalf of themselves and on behalf of each of their respective principals,
shareholders, officers, directors, employees, agents, representatives, partners,
owners, subsidiaries, affiliates, attorneys, predecessors, successors,
executors, administrators, heirs and assigns, as applicable (collectively, the
"CPS/Guarantor Releasing Parties"), except as provided in Section 3(d), fully
release and discharge LLCP, Xxxxxx Xxxxxxxxx Capital Partners, Inc. ("LLCP
Inc.") and each of their respective principals, shareholders, officers,
directors, employees, agents, representatives, general partners, limited
partners, owners, subsidiaries, Affiliates, attorneys, predecessors, successors,
executors, administrators, heirs and assigns (collectively, the "LLCP
Releasees"), of and from any and all liabilities, claims, demands, obligations,
actions, causes of action, damages, costs, expenses (including, without
limitation, attorneys' fees) or losses, of whatever nature, character, type or
description, whether known or unknown, existing or potential, or suspected or
unsuspected, which any CPS/Guarantor Releasing Party now has, owns or holds, or
at any time heretofore ever had, owned or held, against LLCP, LLCP Inc. or any
other LLCP Releasee, based upon, related to or by reason of any facts or
circumstances occurring prior to the Closing Date and relating to the
performance by LLCP, LLCP Inc. or any other LLCP Releasee of its or their
obligations under the Investment and Guaranty Agreement or the Pledge Agreements
or in connection with the transactions contemplated thereby.
(b) In consideration of the covenants and other agreements set forth
herein, effective on and as of the Closing Date, LLCP, on behalf of itself and
on behalf of LLCP Inc. and of their principals, shareholders, officers,
directors, employees, agents, representatives, general partners, limited
partners, owners, subsidiaries, affiliates, attorneys, predecessors, successors,
executors, administrators, heirs and assigns, as applicable (collectively, the
"LLCP Releasing Parties"), except as provided in Section 3(d), fully releases
and discharges the Guarantors and their respective principals, shareholders,
officers, directors, employees, agents, representatives, partners, owners,
attorneys, predecessors, successors, executors, heirs and assigns, if applicable
(collectively, the "Guarantor Releasees"), of and from any and all liabilities,
claims, demands, obligations, actions, causes of action, damages, costs,
expenses (including, without limitation, attorneys' fees) or losses, of whatever
nature, character, type or description, whether known or unknown, existing or
potential, or suspected or unsuspected, which any LLCP Releasing Party now has,
owns or holds, or at any time heretofore ever had, owned or held, against any
Guarantor Releasee
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based upon, related to or by reason of any facts or circumstances occurring
prior to the Closing Date and relating to the performance by any Guarantor
Releasee of its or his obligations under the Investment and Guaranty Agreement
or the Pledge Agreements or in connection with the transactions contemplated
thereby. For purposes of clarification, (i) the commitments and other
obligations of Stanwich, one of the Guarantor Releasees, under Section 3.1 of
the Investment and Guaranty Agreement represent the same commitments and other
obligations that Stanwich had or has under Sections 8.24 and 8.25 of the Amended
November 1998 Securities Purchase Agreement and the April 1999 Securities
Purchase Agreement and, therefore, Stanwich shall be deemed to have been
released from such same commitments and other obligations under Sections 8.24
and 8.25 of the Amended November 1998 Securities Purchase Agreement and the
April 1999 Securities Purchase Agreement to the same extent that it is being
released from its commitments and other obligations under the Investment and
Guaranty Agreement, and (ii) nothing contained in this Agreement or otherwise
shall be construed or otherwise deemed to release or otherwise discharge the
Company from any of its obligations, liabilities or commitments in any respect
under the November 1998 Transaction Documents, the April 1999 Note Documents,
the Securities Purchase Agreement, any Related Agreement or any other agreement,
instrument or other document related thereto or contemplated thereby.
(c) The CPS/Guarantor Releasing Parties acknowledge that there is a
risk that, subsequent to the execution of this Agreement, it, he or they may
incur, suffer or sustain additional injury, loss, damage, costs, attorneys'
fees, expenses, or any of these, which are in some way caused by an LLCP
Releasee arising out of the Investment and Guaranty Agreement or the Pledge
Agreements or the transactions contemplated thereby, which are unknown or
unanticipated at the time this Agreement is signed, or which are not presently
capable of being ascertained. In addition, the LLCP Releasing Parties
acknowledge that there is a risk that, subsequent to the execution of this
Agreement, it, he or they may incur, suffer or sustain additional injury, loss,
damage, costs, attorneys' fees, expenses, or any of these, which are in some way
caused by a Guarantor Releasee arising out of the Investment and Guaranty
Agreement or the Pledge Agreements or the transactions contemplated thereby,
which are unknown or unanticipated at the time this Agreement is signed, or
which are not presently capable of being ascertained. The CPS/Guarantor
Releasing Parties, on the one hand, and the LLCP Releasing Parties, on the other
hand, acknowledge that there is a risk that such damages as are known may become
more serious than any of them now expects or anticipates. Nevertheless, the
CPS/Guarantor Releasing Parties, on the one hand, and the LLCP Releasing
Parties, on the other hand, acknowledge that this Agreement has been negotiated
and agreed upon in light of those realizations and the CPS/Guarantor Releasing
Parties, on the one hand, and the LLCP Releasing Parties, on the other hand,
hereby expressly waive all rights each may have against any LLCP Releasee or
Guarantor Releasee, as the case may be, in such unsuspected claims or damages,
except as provided in Section 3(d). In doing so, the CPS/Guarantor Releasing
Parties, on the one hand, and the LLCP
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Releasing Parties, on the other hand, acknowledge that they have had the benefit
of counsel, has been advised of, understands and knowingly and specifically
waives its rights under California Civil Code Section 1542 which provides as
follows:
A GENERAL RELEASE DOES NOT EXTENT TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OR EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
The CPS/Guarantor Releasing Parties acknowledge that it, he or they are
aware that they may hereafter discover facts in addition to, or different from,
those which they now know or believe to be true, but it is their intention
hereby fully and finally to settle and to release any and all matters, disputes
and differences, known or unknown, suspected or unsuspected, which do not exist,
may exist or heretofore have existed against any LLCP Releasee which arise out
of the Investment and Guaranty Agreement and/or the Pledge Agreements. The LLCP
Releasing Parties acknowledge that it, he or they are aware that they may
hereafter discover facts in addition to, or different from, those which they now
know or believe to be true, but it is their intention hereby fully and finally
to settle and to release any and all matters, disputes and differences, known or
unknown, suspected or unsuspected, which do not exist, may exist or heretofore
have existed against any Guarantor Releasee which arise out of the Investment
and Guaranty Agreement or the Pledge Agreements. In furtherance of this
intention, the releases provided for herein shall be and remain in effect as a
full and complete general release notwithstanding discovery or existence of any
such additional or different facts.
(d) The parties recognize and acknowledge that the releases provided
for by the CPS/Guarantor Releasing Parties in Section 4(a) and by the LLCP
Releasing Parties in Section 4(b) are not intended, and shall not be construed,
to release or discharge any LLCP Releasee and Guarantor Releasee, respectively,
from any liabilities, claims, demands, obligations, actions, causes of action,
damages, costs, expenses (including, without limitation, attorneys' fees) or
losses, if any, caused by or arising out of (i) the breach or violation by any
Guarantor Releasee of its representations and warranties under this Agreement,
(ii) the breach or violation by LLCP of its representations and warranties in
Section 2, (iii) the failure or refusal by any LLCP Releasee or Guarantor
Releasee, as the case may be, to perform its or his covenants and other
obligations required in accordance with the terms and conditions of this
Agreement or (iv) fraud (including, without limitation, intentional
misrepresentation and misappropriation of funds) on the part of any Guarantor
Releasee, whether occurring prior to, on or at any time after the Closing Date.
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Section 4. Representations and Warranties. As a material inducement to
LLCP to enter into this Agreement and consummate the transactions contemplated
hereby, each of the Company and the Guarantors hereby severally, and not
jointly, represent and warrant to LLCP the following, all of which
representations and warranties shall survive the Closing Date indefinitely:
(a) Power and Enforceability. The Company or such Guarantor has the
full right, power and authority to enter into, deliver and perform this
Agreement and each of the agreements, instruments and other documents
contemplated hereby or relating hereto to which it or he is a party
(collectively, the "Investment Agreement Documents"). The execution, delivery
and performance of this Agreement and each other Investment Agreement Document
to which the Company or such Guarantor, as the case may be, is a party has been
duly authorized by all necessary action on the part of the Company or such
Guarantor, as the case may be. This Agreement and each other Investment
Agreement Document to which the Company or such Guarantor, as the case may be,
is a party has been duly authorized, executed and delivered by the Company or
such Guarantor, as the case may be, and constitutes the legal, valid and binding
obligation of the Company or such Guarantor, as the case may be, enforceable
against the Company or such Guarantor, as the case may be, in accordance with
its terms.
(b) No Conflicts. The execution, delivery and performance of this
Agreement by the Company or such Guarantor, as the case may be, and the
consummation of the transactions contemplated hereby, do not and will not (i)
violate the charter and bylaws of the Company or Stanwich, as amended through
the date hereof, (ii) with respect to the Company, violate any Applicable Laws,
except where such violation could not, individually or in the aggregate, have a
Material Adverse Effect and would not subject LLCP to liability, (iii) with
respect to such Guarantor, violate any material laws, rules or regulations
applicable to such Guarantor, (iv) conflict with, result in a breach of, or
constitute a default under, any term of any lease, credit agreement, indenture,
note, mortgage, instrument or other material agreement to which the Company or
such Guarantor, as the case may be, is a party or by which any of the Company's
or such Guarantor's properties or assets, as the case may be, are bound or (v)
without limiting clause (iv) above, any agreement regarding any other
Indebtedness of the Company or such Guarantor, as the case may be, or pursuant
to which Material Assets of the Company or such Guarantor, as the case may be,
are subject to any Lien.
(c) No Consents. Neither the Company or such Guarantor, as the case
may be, nor any of its or his Affiliates is required to obtain the Consent of
any Person in connection with the execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated hereby.
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Section 5. Indemnification of LLCP. As additional consideration for LLCP's
agreement to waive the Investment and Guaranty Agreement Defaults and terminate
the Investment and Guaranty Agreement as provided in this Agreement, the Company
and the Guarantors hereby jointly and severally agree to indemnify and hold
harmless LLCP, LLCP Inc. and their respective principals, shareholders,
officers, directors, employees, agents, representatives, general partners,
limited partners, owners, subsidiaries, Affiliates, attorneys, predecessors,
successors, executors, administrators, heirs and assigns (collectively, the
"Indemnified Parties"), from and against any and all losses, claims, damages,
liabilities, expenses and costs, including, without limitation, attorneys' fees
and other fees and expenses incurred in, and the costs of preparing for,
investigating or defending any matter (collectively, "Losses"), incurred by such
Indemnified Party in connection with or arising from any breach of any warranty
or the inaccuracy of any representation made by any Guarantor or the failure of
any Guarantor to fulfill any of its covenants, obligations or undertakings under
this Agreement or any other agreement, instruments or document contemplated
hereby or relating hereto. The Company and the Guarantors shall either pay
directly all Losses which it is required to pay hereunder or reimburse any
Indemnified Party within ten (10) days after any request for such payment. The
obligations of the Company and the Guarantors to the Indemnified Parties under
this Section 5 shall be separate obligations to each Indemnified Party, and the
liability of the Company and any Guarantor to such Indemnified Parties for which
LLCP may seek indemnity shall not be extinguished solely because any Indemnified
Party is not entitled to indemnity under this Section 5. The indemnification
obligations of the Guarantors under this Section 5 shall survive for the period
ending one year after all statutes of limitations relevant hereto have expired,
including any extensions thereof, and shall be extended as necessary to resolve
any indemnification claim by an Indemnified Party asserted prior to that date.
Section 6. Miscellaneous Provisions.
(a) Survival. The representations and warranties of the Company and
the Guarantors set forth in this Agreement shall survive the execution and
delivery hereof.
(b) Governing Law. In all respects, including all matters of
construction, validity and performance, this Agreement and the rights and
obligations arising hereunder shall be governed by, and construed and enforced
in accordance with, the laws of the State of California applicable to contracts
made and performed in such state, without regard to the choice of law or
conflicts of law principles thereof.
(c) Notices. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given if transmitted by telecopier with
receipt acknowledged, or upon delivery, if delivered personally or by recognized
commercial courier with receipt
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acknowledged, or upon the expiration of 72 hours after mailing, if mailed by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to LLCP, to:
Xxxxxx Xxxxxxxxx Capital Partners II, L.P.
c/o Levine Xxxxxxxxx Capital Partners, Inc.
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, President
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx & XxXxxxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
If to the Company, to:
Consumer Portfolio Services, Inc.
00000 Xxxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx., President
Telecopier: (000) 000-0000
If to any Guarantor, to the address set forth under such
Guarantor's signature on the signature pages hereto;
or at such other address or addresses as any party may specify after the date
hereof by written notice given in accordance with this Section 6(c).
(d) Further Assurances. Each party agrees to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary or
desirable to consummate the transactions contemplated by this Agreement.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by facsimile, each of which shall be deemed an original, but
all of which taken together shall constitute one and the same instrument.
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(f) Successors and Assigns; Amendments. This Agreement shall be
binding upon, and inure to the benefit of, the parties and their respective
successors and permitted assigns. This Agreement may not be amended,
supplemented or otherwise modified except in a writing signed by the parties.
(g) Governing Law; Failure or Delay. In all respects, including all
matters of construction, validity and performance, this Agreement and the rights
and obligations arising hereunder shall be governed by, and construed and
enforced in accordance with, the laws of the State of California applicable to
contracts made and performed in such state, without regard to principles
regarding choice of law or conflicts of laws. No failure or delay by LLCP in the
exercise of any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any power, right or
remedy preclude any other exercise thereof or of any other power, right or
remedy.
(h) Entire Agreement. This Agreement constitutes the entire
agreement and understanding among the parties with respect to the subject matter
hereof and supersedes all prior oral and written, and all contemporaneous oral,
agreements and understandings relating to the subject matter hereof.
(i) Advice of Counsel. Each party acknowledges and agrees that it
has received legal advice from counsel of its choice regarding the meaning and
legal significance of this Agreement, that it has had an opportunity to ask
questions of its legal counsel and that it is satisfied with its legal counsel
and the advice received from it.
(j) Waiver of Trial by Jury. EACH PARTY HEREBY WAIVES THE RIGHT TO A
TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF, CONNECTED
WITH OR RELATED TO THIS AGREEMENT, OR ANY CLAIM, CONTROVERSY OR DISPUTE ARISING
OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED HEREBY, REGARDLESS OF WHICH
PARTY INITIATES SUCH ACTION OR ACTIONS.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first written above.
LLCP
XXXXXX XXXXXXXXX CAPITAL PARTNERS,
INC., a California corporation
On behalf of XXXXXX XXXXXXXXX
CAPITAL PARTNERS II, L.P., a California
limited partnership
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
President
COMPANY
CONSUMER PORTFOLIO SERVICES, INC.,
a California corporation
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
-----------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
President and Chief Executive Officer
By: /s/ Xxxxx X. Stock
-----------------------------------------
Xxxxx X. Stock
Senior Vice President and Chief Financial
Officer
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GUARANTORS
STANWICH FINANCIAL SERVICES CORP., a
Rhode Island Corporation
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
--------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
President
Address: c/o Stanwich Partners, Inc.
One Stamford Landing
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
CEB
/s/ Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
Address: c/o Stanwich Partners, Inc.
One Stamford Landing
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
Address: c/o Consumer Portfolio Services, Inc.
00000 Xxxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
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