RECEIVABLES AND SERVICING RIGHTS PURCHASE AND SALE AGREEMENT
RECEIVABLES
AND SERVICING RIGHTS
PURCHASE
AND SALE AGREEMENT
THIS RECEIVABLES
AND SERVICING RIGHTS PURCHASE AND SALE AGREEMENT dated
as
of December 29, 2006, (the “Agreement”) executed by SOLAR
POWER, INC.,
a Nevada
corporation, formerly known as Welund Fund, Inc., as seller (“Seller”)
and
VILLAGE
AUTO, LLC,
a
California limited liability company, as purchaser (“Purchaser”).
W
I T N E S S E T H:
WHEREAS,
Purchaser has agreed to purchase from the Seller, and the Seller, pursuant
to
this Agreement, is transferring to Purchaser the Receivables, the Servicing
Rights and Other Conveyed Property.
WHEREAS,
Purchaser and its affiliate Accredited Adjusters, LLC are currently servicing
and administering the collection of the monthly payments on the Receivables
on
behalf of Seller.
NOW,
THEREFORE,
in
consideration of the premises and the mutual agreements hereinafter contained,
and for other good and valuable consideration, the receipt of which is
acknowledged, Purchaser and the Seller, intending to be legally bound, hereby
agree as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.1 General.
The
specific terms defined in this Article include the plural as well as the
singular. The words “herein,” “hereof” and “hereunder” and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision, and Article, Section, Schedule and
Exhibit references, unless otherwise specified, refer to Articles and Sections
of and Schedules and Exhibits to this Agreement.
SECTION
1.2 Specific Terms.
Whenever used in this Agreement, the following words and phrases, unless
the
context otherwise requires, shall have the following meanings:
“Agreement”
shall mean this Receivables and Servicing Rights Purchase and Sale Agreement
and
all amendments hereof and supplements hereto.
“Amount
Financed” means, with respect to a Receivable, the aggregate amount advanced
under such Receivable toward the purchase price of the Financed Vehicle and
any
related costs, including amounts advanced in respect of accessories, insurance
premiums, service and warranty contracts, other items customarily financed
as
part of retail automobile installment sale contracts or promissory notes,
and
related costs.
“Cutoff
Date” means September 30, 2006.
1
“Electronic
Ledger” means the electronic master record of the retail installment sales
contracts or installment loans of the Seller.
“Financed
Vehicle” means an automobile or light-duty-truck, van or minivan, together with
all accessories thereto, securing an Obligor’s indebtedness under the respective
Receivable.
“Lien”
means a security interest, lien, charge, pledge, equity, or encumbrance of
any
kind, other than tax liens, mechanics’ liens and any liens that attach to the
respective Receivable by operation of law as a result of any act or omission
by
the related Obligor.
“Obligor”
on a Receivable means the purchaser or co-purchasers of the Financed Vehicle
and
any other Person who owes payments under the Receivable.
“Other
Conveyed Property” means all property conveyed by the Seller to the Purchaser
pursuant to this Agreement other than the Receivables.
“Person”
means any individual, corporation, estate, partnership, joint venture,
association, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
“Payoff
Balance” means the amount required to satisfy a Receivable in full, which amount
includes the unpaid principal balance, accrued and unpaid interest due on
the
account, advances on the account and any other costs as applicable.
“Purchased
Receivable” means a Receivable repurchased by the Seller.
“Receivables”
means the motor vehicle receivables listed on the Schedule of Receivables
attached hereto.
“Schedule
of Receivables” means the schedule of Receivables sold and transferred pursuant
to this Agreement which is attached hereto as Schedule A.
“Servicing
Rights” means all of Seller’s right, title and interest in and to the servicing
of the Receivables and the securities backed thereby, including, without
limitation, the right to receive servicing fees, and the associated right,
title
and interest of the Seller in the Receivables, advances on the Receivables,
collection account balances, escrow account balances, contract rights,
incidental income and benefits, and exclusive rights to possession and use
of
custodial and servicing files and records directly or indirectly related
thereto, including, without limitation, Obligor lists and insurance policies.
SECTION
1.3 Usage of Terms.
With
respect to all terms used in this Agreement, the singular includes the plural
and the plural the singular; words importing any gender include the other
gender; references to “writing” include printing, typing, lithography, and other
means of reproducing words in a visible form; references to agreements and
other
contractual instruments include all subsequent amendments thereto or changes
therein entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their permitted
successors and assigns; and the terms “include” or “including” mean “include
without limitation” or “including without limitation.”
2
SECTION
1.4 No Recourse.
Without
limiting the obligations of Seller hereunder, no recourse may be taken, directly
or indirectly, under this Agreement or any certificate or other writing
delivered in connection herewith or therewith, against any stockholder, officer
or director, as such, of Seller, or of any predecessor or successor of Seller.
ARTICLE
II
CONVEYANCE
OF THE RECEIVABLES
AND
THE OTHER CONVEYED PROPERTY
SECTION
2.1 Conveyance of the Receivables and the Other Conveyed Property.
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a.
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Subject
to the terms and conditions of this Agreement, Seller hereby sells,
transfers, assigns, and otherwise conveys to Purchaser without
recourse
and Purchaser hereby purchases, all right, title and interest of
Seller in
and to the Receivables, the Servicing Rights and the Other Conveyed
Property. It is the intention of Seller and Purchaser that the
transfer
and assignment contemplated by this Agreement shall constitute
a sale of
the Receivables, the Servicing Rights and the Other Conveyed Property
from
Seller to Purchaser, conveying good title thereto free and clear
of any
Liens, and the beneficial interest in and title to the Receivables,
the
Servicing Rights and the Other Conveyed Property shall not be part
of
Seller’s estate in the event of the filing of a bankruptcy petition by
or
against Seller under any bankruptcy or similar law.
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b.
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Simultaneously
with the conveyance of the Receivables, the Servicing Rights and
the Other
Conveyed Property to Purchaser, Purchaser has paid or caused to
be paid to
or upon the order of Seller $12,694.00 by wire transfer of immediately
available funds.
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SECTION
2.2 Termination of Servicing Agreement. The
Purchase and Servicing Agreement entered into as of March 30, 2005 between
Purchaser and Seller relating to the servicing and administration of the
collection of the Receivables is hereby terminated. Furthermore, as of December
29, 2006, (a) the Seller has paid all amounts due to Purchaser and its
affiliates, including Accredited Adjusters, LLC in full and Seller has no
obligation to make any payments to the Purchaser, and (b) Purchaser and its
affiliates have paid Seller all of Seller’s receivables collected by Purchaser
and its affiliates.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
SECTION
3.1 Representations and Warranties of Seller Relating to
Seller.
Seller
makes the following representations and warranties as of the date hereof
on
which Purchaser relies in purchasing the Receivables and the Other Conveyed
Property.
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a.
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Organization
and Good Standing.
Seller has been duly organized and is validly existing as a corporation
in
good standing under the laws of the State of Nevada, with power
and
authority to own its properties and to conduct its business as
such
properties are currently owned and such business is currently conducted,
and had at all relevant times, and now has, power, authority and
legal
right to acquire, own and sell the Receivables and the Other Conveyed
Property to be transferred to Purchaser.
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3
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b.
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Power
and Authority.
Seller has the power and authority to execute and deliver this
Agreement
and to carry out its terms and their terms, respectively; Seller
has full
power and authority to sell and assign the Receivables and the
Other
Conveyed Property to be sold and assigned to and deposited with
Purchaser
hereunder and has duly authorized such sale and assignment to Purchaser
by
all necessary corporate action; and the execution, delivery and
performance of this Agreement has been duly authorized by Seller
by all
necessary corporate action.
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c.
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True
Sale.
The Receivables are being transferred with the intention of removing
them
from Seller’s estate pursuant to Section 541 of the Bankruptcy Code,
as the same may be amended from time to
time.
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d.
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Chief
Executive Office.
The chief executive office of Seller is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
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SECTION
3.2 Representations and Warranties of Seller Relating to the Receivables
and
Other Conveyed Property.
Seller
makes the following representations and warranties as of the date hereof
on
which Purchaser relies in purchasing the Receivables and the Other Conveyed
Property.
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a.
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Schedules
of Receivables.
The information set forth in the Schedules of Receivables has been
produced from the Electronic Ledger and was true and correct in
all
material respects as of the close of business on the Cutoff Date.
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b.
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Receivables
in Force.
No
Receivable has been satisfied, subordinated or rescinded, and the
Financed
Vehicle securing each such Receivable has not been released from
the lien
of the related Receivable in whole or in part. No terms of any
Receivable
have been waived, altered or modified in any respect since its
origination, except by instruments or documents identified in the
Receivable File.
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c.
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Good
Title.
Immediately prior to the conveyance of the Receivables to Purchaser
pursuant to this Agreement, Seller was the sole owner thereof and
had good
and indefeasible title thereto, free of any Lien and, upon execution
and
delivery of this Agreement by Seller, Purchaser shall have good
and
indefeasible title to and will be the sole owner of such Receivables,
free
of any Lien.
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d.
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Payoff
Balance.
At
the Cutoff Date, the Payoff Balance of each Receivable set forth
in the
Schedule of Receivables is true and accurate in all material respects.
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SECTION
3.3 Representations and Warranties of Purchaser.
Purchaser makes the following representations and warranties, on which Seller
relies in selling, assigning, transferring and conveying the Receivables
and the
Other Conveyed Property to Purchaser hereunder. Such representations are
made as
of the execution and delivery of this Agreement
4
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a.
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Organization
and Good Standing.
Purchaser has been duly organized and is validly existing and in
good
standing as a limited liability company under the laws of the State
of
California, with the power and authority to own its properties
and to
conduct its business as such properties are currently owned and
such
business is currently conducted, and had at all relevant times,
and has,
full power, authority and legal right to acquire and own the Receivables
and the Other Conveyed Property.
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b.
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Due
Qualification.
Purchaser is duly qualified to do business as a foreign corporation
in
good standing, and has obtained all necessary licenses and approvals
in
all jurisdictions where the failure to do so would materially and
adversely affect the validity or enforceability of the Receivables
and the
Other Conveyed Property, or Purchaser’s ability to acquire the Receivables
or the Other Conveyed Property or to perform its obligations hereunder.
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c.
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Power
and Authority.
Purchaser has the power, authority and legal right to execute and
deliver
this Agreement and to carry out the terms hereof and to acquire
the
Receivables and the Other Conveyed Property hereunder; and the
execution,
delivery and performance of this Agreement and all of the documents
required pursuant hereto have been duly authorized by Purchaser
by all
necessary corporate action.
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d.
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Binding
Obligation.
This Agreement constitutes a legal, valid and binding obligation
of
Purchaser, enforceable against Purchaser in accordance with its
terms,
subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and
other
similar laws and to general equitable principles.
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ARTICLE
IV
MISCELLANEOUS
SECTION
4.1 Liability of Seller. Seller
shall be liable in accordance herewith only to the extent of the obligations
in
this Agreement specifically undertaken by Seller and the representations
and
warranties of Seller.
SECTION
4.2 Limitation on Liability of Seller and Others.
Seller
and any director, officer, employee or agent thereof may rely in good faith
on
the advice of counsel or on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising under
this
Agreement. Seller shall not be under any obligation to appear in, prosecute
or
defend any legal action that is not incidental to its obligations under this
Agreement and that in its opinion may involve it in any expense or liability.
SECTION
4.3 Amendment. This
Agreement may be amended from time to time by the parties only by written
agreement signed by the Seller and the Purchaser.
5
SECTION
4.4 Notices.
All
demands, notices and communications to Seller or Purchaser hereunder shall
be in
writing, personally delivered, or sent by telecopier (subsequently confirmed
in
writing), reputable overnight courier or mailed by certified mail, return
receipt requested, and shall be deemed to have been given upon receipt
(a) in the case of Seller, to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, or (b) in the case of Purchaser, to
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
or such other address as shall be designated by a party in a written notice
delivered to the other party.
SECTION
4.5 Merger and Integration.
Except
as specifically stated otherwise herein, this Agreement sets forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Agreement.
This
Agreement may not be modified, amended, waived or supplemented except as
provided herein.
SECTION
4.6 Severability of Provisions.
If any
one or more of the covenants, provisions or terms of this Agreement shall
be for
any reason whatsoever held invalid, then such covenants, provisions or terms
shall be deemed severable from the remaining covenants, provisions or terms
of
this Agreement and shall in no way affect the validity or enforceability
of the
other provisions of this Agreement.
SECTION
4.7 Intention of the Parties.
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a.
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The
execution and delivery of this Agreement shall constitute an
acknowledgment by Seller and Purchaser that they intend that the
assignment and transfer herein contemplated constitute a sale and
assignment outright, and not for security, of the Receivables,
the
Servicing Rights and the Other Conveyed Property, conveying good
title
thereto free and clear of any Liens, from Seller to Purchaser,
and that
the Receivables, the Servicing Rights and the Other Conveyed Property
shall not be a part of Seller’s estates in the event of the bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding,
or
other proceeding under any federal or state bankruptcy or similar
law, or
the occurrence of another similar event, of, or with respect to
Seller. In
the event that such conveyance is determined to be made as security
for a
loan made by Purchaser or Seller, the parties intend that Seller
shall
have granted to Purchaser a security interest in all of Seller’s right,
title and interest in and to (collectively, the “Collateral”):
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1.
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the
Receivables and all moneys received thereon after the Cutoff Date,
as
applicable,
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2.
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the
Servicing Rights,
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3.
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the
Other Conveyed Property conveyed to Purchaser by Seller pursuant
to this
Agreement including (a) an assignment of the security interests in
the Financed Vehicles granted by Obligors pursuant to the Receivables
and
any other interest of the Seller in such Financed Vehicles, (b) any
proceeds and the right to receive any proceeds with respect to
the
Receivables from claims on any physical damage, credit life or
disability
insurance policies covering Financed Vehicles or Obligors and any
proceeds
from the liquidation of the Receivables, net of reasonable liquidation
expense, (c) the related Receivables Files and (d) the proceeds
of any and all of the foregoing,
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6
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4.
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all
of the Seller’s (a) Accounts, (b) Chattel Paper, (c) Documents,
(d) Instruments, and (e) General Intangibles (as such terms are
defined in the applicable UCC) relating to the property described
in items
(1), (2) and (3), and
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5.
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all
proceeds and investments with respect to items (1), (2), (3) and
(4) above.
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b.
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This
Agreement shall constitute a security agreement under applicable
law.
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SECTION
4.8 Governing Law.
This
Agreement shall be construed in accordance with, and this Agreement and all
matters arising out of or relating in any way to the Agreement shall be governed
by, the law of the State of Nevada.
SECTION
4.9 Counterparts.
For the
purpose of facilitating the execution of this Agreement and for other purposes,
this Agreement may be executed simultaneously in any number of counterparts,
each of which counterparts shall be deemed to be an original, and all of
which
counterparts shall constitute but one and the same instrument.
(Signature
page follows.)
7
IN
WITNESS WHEREOF, the parties have caused this Purchase and Servicing Agreement
to be duly executed by their respective officers as of the day and year first
above written.
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as
Seller
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By
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title:
President
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VILLAGE
AUTO, LLC
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as
Purchaser
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By
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title:
Managing Member
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8
SCHEDULE
A
SCHEDULE
OF RECEIVABLES
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PER
STATEMENTS
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||||||||||||||||
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Customer
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Contract
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Payoff
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Collections
for 10/1 to 12/28/06
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Payoff
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Principal
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|||||||||||
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Stock
#
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Name
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Date
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9/30/2006
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Total
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Interest
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Principal
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12/28/2006
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12/28/2006
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||||||||
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330
|
Apple,
B.
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3/15/2004
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3,441.17
|
773.97
|
156.84
|
617.13
|
2,805.76
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2,783.79
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||||||||
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1155
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▇▇
▇▇▇▇▇, A.
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6/7/2004
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782.08
|
300.00
|
40.87
|
259.13
|
503.95
|
152.50
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||||||||
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1040
|
Fines,
F.
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2/15/2004
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1,690.32
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725.40
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59.14
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666.26
|
1,019.64
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1,004.30
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||||||||
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03BHPH634
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▇▇▇▇▇,
M.
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12/12/2003
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7,680.80
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1,000.00
|
246.22
|
753.78
|
6,928.19
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5,085.86
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||||||||
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1057
|
▇▇▇▇▇▇▇▇,
M.
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3/2/2004
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123.29
|
-
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-
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-
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128.75
|
106.58
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||||||||
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1148
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Prasad,
U.
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5/6/2004
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831.92
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860.59
|
47.41
|
813.18
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-
|
-
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||||||||
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1209
|
▇▇▇▇▇▇▇▇,
S.
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12/17/2004
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7,513.11
|
1,000.00
|
362.22
|
637.78
|
6,794.13
|
6,584.52
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||||||||
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1125
|
▇▇▇▇▇▇,
J.
|
5/7/2004
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576.98
|
-
|
-
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-
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604.96
|
546.40
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||||||||
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1003
|
▇▇▇▇▇▇▇-▇▇▇▇▇,
R.
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1/27/2004
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1,359.82
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1,400.00
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44.50
|
1,355.50
|
-
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-
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||||||||
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1171
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Zeno,
L.
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5/28/2004
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1,387.51
|
435.00
|
134.95
|
300.05
|
1,020.45
|
996.03
|
||||||||
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Totals
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25,387.00
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6,494.96
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1,092.15
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5,402.81
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19,805.83
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17,259.98
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9