Equipment and Leases. (a) Prior to the date of each transfer of any Leases and Equipment in accordance with Sections 1.01 and 1.02, respectively, the Transferor purchased each item of Equipment from either (i) the manufacturer or other supplier following receipt of an invoice from such manufacturer or supplier or (ii) a Lessee following confirmation that such item of Equipment was on such Lessee's premises. The Transferor has paid in full, to the manufacturer or supplier or Lessee, as the case may be, the purchase price and any related charges in connection with the acquisition of the Equipment. The transfer to the Issuer of the Leases and all of the Transferor's right, title and interest in each item of Equipment does not violate the terms or provisions of any Lease or any other agreement to which the Transferor is a party or by which it is bound. (b) Upon completion of the transfer described in Article I hereof, the Issuer will (i) be the legal owner of the Leases (including the right to receive all payments due or to become due thereunder), (ii) have good title to each item of the Equipment subject to any Lease other than a Nominal Buy-Out Lease (or other finance lease), (iii) have a valid security interest in each item of Equipment subject to any Lease other than a Nominal Buy-Out Lease (or other finance lease) and (iv) have a perfected security interest in each item of Equipment with a purchase price in excess of $25,000 subject to a Nominal Buy-Out Lease (or other finance lease). At such time, the Leases (including the right to receive all payments due or to become due thereunder) and the Transferor's interest in the Equipment will be free and clear of all Liens other than the rights of each Lessee under the Lease to which such Lessee is a party and the Lien created by the Indenture; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens prior to, or equal or coordinate with, the Lien of the Trustee under the Indenture. (c) At the time of each transfer of a Lease hereunder, each such Lease (i) is or will be a triple-net lease, (ii) is or will be a legal, valid and binding full recourse obligation of the Lessee thereunder, enforceable by the Issuer (and by the Trustee as assignee of the Issuer) against such Lessee in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors' rights and by general equity principles, (iii) is noncancellable by the Lessee and is in full force and effect, and any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to each Lease have been complied with; and the Transferor has no knowledge (after due inquiry) of any challenge, dispute or claim by or against the Lessee under or affecting any Lease or of the bankruptcy or insolvency of any such Lessee and (iv) is assignable. As of the initial Determination Date, or the effective date of the transfer of any Additional Lease or Substitute Lease, each Lessee has paid at least one installment of rent under its respective Lease. (d) As of the Cut-Off Date, each Lease hereunder is not a Non-Performing Lease. (e) At the time that any item of Equipment (including the Transferor's security interest in any item not owned by it) is contributed hereunder, the Transferor will have no knowledge that any item of the Equipment has suffered any loss or damage which has not been repaired. (f) Each Lease requires the Lessee thereunder to maintain insurance on the Equipment subject thereto in an amount at least equal to the fair market value thereof. (g) In addition to the insurance maintained by the Lessees with respect to the Equipment, the Transferor (or an Affiliate of the Transferor) maintains (i) one or more casualty insurance policies which, in the aggregate, are in an amount not less than the aggregate Outstanding Principal Amount of the Notes, (ii) a general liability insurance policy in the aggregate amount of $1,000,000 and (iii) an excess liability insurance policy in umbrella form in the aggregate amount of $10,000,000. Each of such policies is in full force and effect and covers all equipment owned by the Transferor and the Issuer. All premiums in respect of such policies have been paid. Each of the Trustee and the Issuer are named as loss payees and additional insureds, as their interests may appear, on such casualty and liability policies maintained by the Transferor. (h) At the time of each transfer of a Lease hereunder, no Lease had outstanding rent which was 63 or more days past due as of the Cut-Off Date. (i) Each Lease was entered into or acquired by the Transferor in accordance with the Transferor's regular credit approval process described in the Prospectus, and no selection procedures adverse to the credit quality of the Leases were employed in selecting the Leases for contribution under this Assignment and Servicing Agreement. (j) The obligation of each Lessee to pay rent under each of the Leases throughout the term thereof is and will be unconditional, without any right of setoff by such Lessee and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Lessee against the Issuer, the Transferor or the Servicer or any change in circumstance of such Lessee or any other circumstance whatsoever except to the extent that in the event of a casualty of any item of Equipment, the Lessee is obligated to pay, in lieu of the future Lease Payments with respect to such item, an amount which equals or exceeds the Discounted Present Value of the Lease as of the Payment Date next succeeding the making of such payment (plus any unpaid rents). (k) In the case of each Lease which consists of a master lease and one or more exhibits or schedules thereto, the Transferor has neither assigned such master lease in its entirety, nor delivered physical possession of such master lease, to any Person other than the Issuer or the Trustee (including the trustee under another indenture in a transaction substantially similar to the transaction contemplated hereby, which other indenture provides that the lien thereof on such master lease extends only to such master lease insofar as it relates to lease schedules which are not part of the Trust Estate). (l) As of the time of each transfer of Leases and Equipment hereunder, there are no facts or circumstances which give rise, or would give rise at any time in the future, to any right of rescission, setoff, counterclaim or defense, including the defense of usury, to obligations of any Lessee, including the obligation of such Lessee to pay all amounts due with respect to any Lease to which such Lessee is a party, and neither the operation of any of the terms of any Lease or the exercise of any right thereunder will render such Lease unenforceable in whole or in part or subject to any right of rescission, setoff, counterclaim or defense, including the defense of usury, and no such right of rescission, setoff, counterclaim or defense has been asserted with respect thereto. (m) As of the time of each transfer of Leases and Equipment hereunder, no Lease has been amended, altered or modified in any respect, except in writing and copies of all such writings are attached to the Lease delivered to the Trustee. (n) As of the time of each transfer of Leases and Equipment hereunder, no Lessee will have been released, in whole or in part, from any of its obligations in respect of any Lease; no Lease will have been satisfied, cancelled or subordinated, in whole, or in part, or rescinded, and no Equipment covered by any Lease will have been released from such Lease, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission. (o) As of the time of each transfer of Leases and Equipment hereunder, each Lease was either (i) originated by the Transferor in the ordinary course of its business or (ii) purchased by the Transferor for value and taken into possession prior to the Cut-Off Date in the ordinary course of its business. (p) No Lease was originated in or is subject to the laws of any jurisdiction whose laws would make any of the transfers thereof under this Assignment and Servicing Agreement unlawful. (q) All parties to each Lease had all requisite authority and capacity to execute such Lease. (r) None of the Leases is a consumer lease and each Lessee has accepted the Equipment leased to it. (s) The Booked Residual Value of the Equipment as of the Cut-Off Date equals $___________. (t) As of the Cut-Off Date, the final lease payment on each Lease was due and payable on or prior to __________. (u) Each Lease agreement is "chattel paper" within the meaning of The Uniform Commercial Code in the states of New York and New Jersey. (v) As of the Cut-Off date, no more than 2% of the Leases are Leases not originated by the Transferor.
Appears in 1 contract
Samples: Assignment and Servicing Agreement (Copelco Capital Funding LLC 99-B)
Equipment and Leases. (a) Prior to the date of each transfer of any Leases and Equipment in accordance with Sections 1.01 and 1.02, respectively, the Transferor purchased each item of Equipment from either (i) the manufacturer or other supplier following receipt of an invoice from such manufacturer or supplier or (ii) a Lessee following confirmation that such item of Equipment was on such Lessee's premises. The Transferor has paid in full, to the manufacturer or supplier or Lessee, as the case may be, the purchase price and any related charges in connection with the acquisition of the Equipment. The transfer to the Issuer of the Leases and all of the Transferor's right, title and interest in each item of Equipment does not violate the terms or provisions of any Lease or any other agreement to which the Transferor is a party or by which it is bound.
(b) Upon completion of the transfer described in Article I hereof, the Issuer will (i) be the legal owner of the Leases (including the right to receive all payments due or to become due thereunderthereunder other than payments due or to become due in April 2000), (ii) have good title to each item of the Equipment subject to any Lease other than a Nominal Buy-Out Lease (or other finance lease), (iii) have a valid security interest in each item of Equipment subject to any Lease other than a Nominal Buy-Out Lease (or other finance lease) and (iv) have a perfected security interest in each item of Equipment with a purchase price in excess of $25,000 subject to a Nominal Buy-Out Lease (or other finance lease). At such time, the Leases (including the right to receive all payments due or to become due thereunderthereunder other than payments due or to become due in April 2000) and the Transferor's interest in the Equipment will be free and clear of all Liens other than the rights of each Lessee under the Lease to which such Lessee is a party and the Lien created by the Indenture; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens prior to, or equal or coordinate with, the Lien of the Trustee under the Indenture.
(c) At the time of each transfer of a Lease hereunder, each such Lease (i) is or will be a triple-net lease, (ii) is or will be a legal, valid and binding full recourse obligation of the Lessee thereunder, enforceable by the Issuer (and by the Trustee as assignee of the Issuer) against such Lessee in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors' rights and by general equity principles, (iii) is noncancellable by the Lessee and is in full force and effect, and any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to each Lease have been complied with; and the Transferor has no knowledge (after due inquiry) of any challenge, dispute or claim by or against the Lessee under or affecting any Lease or of the bankruptcy or insolvency of any such Lessee and (iv) is assignable. As of the initial Determination Date, or the effective date of the transfer of any Additional Lease or Substitute Lease, each Lessee has paid at least one installment of rent under its respective Lease.
(d) As of the Cut-Off Date, each Lease hereunder is not a Non-Performing Lease.
(e) At the time that any item of Equipment (including the Transferor's security interest in any item not owned by it) is contributed hereunder, the Transferor will have no knowledge that any item of the Equipment has suffered any loss or damage which has not been repaired.
(f) Each Lease requires the Lessee thereunder to maintain insurance on the Equipment subject thereto in an amount at least equal to the fair market value thereof.
(g) In addition to the insurance maintained by the Lessees with respect to the Equipment, the Transferor (or an Affiliate of the Transferor) maintains (i) one or more casualty insurance policies which, in the aggregate, are in an amount not less than the aggregate Outstanding Principal Amount of the Notes, (ii) a general liability insurance policy in the aggregate amount of $1,000,000 and (iii) an excess liability insurance policy in umbrella form in the aggregate amount of $10,000,000. Each of such policies is in full force and effect and covers all equipment owned by the Transferor and the Issuer. All premiums in respect of such policies have been paid. Each of the Trustee and the Issuer are named as loss payees and additional insureds, as their interests may appear, on such casualty and liability policies maintained by the Transferor.
(h) At the time of each transfer of a Lease hereunder, no Lease had outstanding rent which was 63 or more days past due as of the Cut-Off Date.
(i) Each Lease was entered into or acquired by the Transferor in accordance with the Transferor's regular credit approval process described in the Prospectus, and no selection procedures adverse to the credit quality of the Leases were employed in selecting the Leases for contribution under this Assignment and Servicing Agreement.
(j) The obligation of each Lessee to pay rent under each of the Leases throughout the term thereof is and will be unconditional, without any right of setoff by such Lessee and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Lessee against the Issuer, the Transferor or the Servicer or any change in circumstance of such Lessee or any other circumstance whatsoever except to the extent that in the event of a casualty of any item of Equipment, the Lessee is obligated to pay, in lieu of the future Lease Payments with respect to such item, an amount which equals or exceeds the Discounted Present Value of the Lease as of the Payment Date next succeeding the making of such payment (plus any unpaid rents).
(k) In the case of each Lease which consists of a master lease and one or more exhibits or schedules thereto, the Transferor has neither assigned such master lease in its entirety, nor delivered physical possession of such master lease, to any Person other than the Issuer or the Trustee (including the trustee under another indenture in a transaction substantially similar to the transaction contemplated hereby, which other indenture provides that the lien thereof on such master lease extends only to such master lease insofar as it relates to lease schedules which are not part of the Trust Estate).
(l) As of the time of each transfer of Leases and Equipment hereunder, there are no facts or circumstances which give rise, or would give rise at any time in the future, to any right of rescission, setoff, counterclaim or defense, including the defense of usury, to obligations of any Lessee, including the obligation of such Lessee to pay all amounts due with respect to any Lease to which such Lessee is a party, and neither the operation of any of the terms of any Lease or the exercise of any right thereunder will render such Lease unenforceable in whole or in part or subject to any right of rescission, setoff, counterclaim or defense, including the defense of usury, and no such right of rescission, setoff, counterclaim or defense has been asserted with respect thereto.
(m) As of the time of each transfer of Leases and Equipment hereunder, no Lease has been amended, altered or modified in any respect, except in writing and copies of all such writings are attached to the Lease delivered to the Trustee.
(n) As of the time of each transfer of Leases and Equipment hereunder, no Lessee will have been released, in whole or in part, from any of its obligations in respect of any Lease; no Lease will have been satisfied, cancelled or subordinated, in whole, or in part, or rescinded, and no Equipment covered by any Lease will have been released from such Lease, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission.
(o) As of the time of each transfer of Leases and Equipment hereunder, each Lease was either (i) originated by the Transferor in the ordinary course of its business or (ii) purchased by the Transferor for value and taken into possession prior to the Cut-Off Date in the ordinary course of its business.
(p) No Lease was originated in or is subject to the laws of any jurisdiction whose laws would make any of the transfers thereof under this Assignment and Servicing Agreement unlawful.
(q) All parties to each Lease had all requisite authority and capacity to execute such Lease.
(r) None of the Leases is a consumer lease and each Lessee has accepted the Equipment leased to it.
(s) The Booked Residual Value of the Equipment as of the Cut-Off Date equals $___________103,536,126.
(t) As of the Cut-Off Date, the final lease payment on each Lease was due and payable on or prior to __________March 28, 2000.
(u) Each Lease agreement is "chattel paper" within the meaning of The Uniform Commercial Code as in effect in the states of New York and New Jersey.
(v) As of the Cut-Cut Off date, no more than 2% of the Leases are Leases not originated by the Transferor.
Appears in 1 contract
Samples: Assignment and Servicing Agreement (Copelco Capital Receivables LLC)
Equipment and Leases. (a) Prior to the date of each transfer of any Leases and Equipment in accordance with Sections 1.01 2.01 and 1.022.02, respectively, the Transferor purchased each item of Equipment from either (i) Charter Financial, Inc. pursuant to the manufacturer or other supplier following receipt of an invoice from such manufacturer or supplier or (ii) a Lessee following confirmation that such item of Equipment was on such Lessee's premisesSeller Contribution and Sale Agreement. The Transferor has paid in full, to the manufacturer or supplier or LesseeCharter Financial, Inc., as the case may be, the purchase price and any related charges in connection with the acquisition of the Equipment. The transfer to the Issuer of the Leases and all of the Transferor's right, title and interest in each item of Equipment does not violate the terms or provisions of any Lease or any other agreement to which the Transferor is a party or by which it is bound.
(b) Upon completion of the transfer described in Article I II hereof, the Issuer will (i) be the legal owner of the Leases (including the right to receive all payments due or to become due thereunder), (ii) have good title to each item of the Equipment subject to any Lease other than a Nominal Buy-Out Lease (or other finance lease), (iii) have a valid security interest in each item of Equipment subject to any Lease other than a Nominal Buy-Out Lease (or other finance lease) and (iv) have a perfected security interest in each item of Equipment with a purchase price in excess of $25,000 subject to a Nominal Buy-Out Lease (or other finance lease)Rent Stream Obligation. At such time, the Leases (including the right to receive all payments due or to become due thereunder) and the Transferor's interest in the Equipment will be free and clear of all Liens other than the rights of each Lessee under the Lease to which such Lessee is a party and the Lien created by the Indenture; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens prior to, or equal or coordinate with, the Lien of the Trustee under the IndenturePermitted Encumbrances.
(c) At the time of each transfer of a Lease hereunderWith respect to any Lease, each such Lease (i) is or will be a triple-net lease, (ii) is or will be a legal, valid and binding full recourse obligation of the Lessee thereunder, enforceable by the Issuer (and by the Trustee as assignee of the Issuer) against such Lessee in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors' rights and by general equity principles, (iii) is noncancellable by the Lessee and is in full force and effect, and any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to each Lease have been complied with; and the Transferor has no knowledge (after due inquiry) of any challenge, dispute or claim by or against the Lessee under or affecting any Lease or of the bankruptcy or insolvency of any such Lessee and (iv) is assignable. As of the initial Determination Date, or the effective date of the transfer of any than an Additional Lease or a Substitute Lease, each Lessee has paid at least one installment of rent under its respective Lease.
(d) As as of the Cut-Off Date, or with respect to any Additional Lease or any Substitute Lease, as of the related Transfer Date, the Transferor represents and warrants that each Lease hereunder shall comply with the following:
(i) the Lease is a valid and binding obligation of the Lessee enforceable against such Lessee in accordance with its terms (except as may be limited by bankruptcy laws, other laws affecting creditor's rights in similar transactions generally, and judicial powers of equity);
(ii) the Lease constitutes a non-cancellable, "hell or high water" obligation of the Lessee and requires the Lessee to make all Lease Payments thereon regardless of the condition of the Equipment to which the Lease relates;
(iii) the Lease is non-cancellable by the Lessee and does not contain early termination options (except for a Lease which contains early termination or prepayment clauses, which requires the Lessee to pay the Prepayment Amount for such Lease upon such cancellation or prepayment);
(iv) all payments payable under the Lease are absolute, unconditional obligations of the Lessee without right to offset for any reason;
(v) the Lease requires the Lessee or a third party to maintain the Equipment in good working order, to bear all the costs of operating the Equipment, including taxes and insurance relating thereto;
(vi) the Lease does not materially violate any U.S. or state laws;
(vii) the Lease provides for periodic payments;
(viii) in the event of a Casualty Loss, with respect to the Lease, the Lessee, at the Lessee's expense, is required to replace the Equipment with like equipment in good repair, acceptable to the Servicer or pay at a minimum the outstanding principal or net book value of the Leases and any applicable make whole premium, if any;
(ix) the Lease was originated by the Seller, or was acquired by the Seller in a "true sale" in the ordinary course of its business and in a manner which satisfies the underwriting practices set forth in the Credit and Collection Policy as in effect from time to time;
(x) the Lease has been sold to the Transferor free and clear of any Liens other than Permitted Encumbrances;
(xi) the Lease is assignable without prior written consent of the Lessee;
(xii) the Lease is denominated and payable only in U.S. dollars, the Lessor is located in the United States and one or more Obligors who are fully liable under the Lease are located in the United States;
(xiii) the Lease is not a Non-Performing Lease."consumer lease" within the meaning of Article 2A of the UCC in any jurisdiction where such Article 2A has been adopted and governs the construction thereof;
(exiv) At the Lease, to the extent such Lease was reacquired by the Seller from an affiliate prior to xxx conveyance in this transaction, was acquired by the Seller in a "true sale";
(xv) no adverse selection was used in selecting the Lease for transfer to the Transferor or the Issuer;
(xvi) the Lessee has represented to the Seller or Vendor that it has accepted the Equipment;
(xvii) the Lessee is not a subject of an insolvency or bankruptcy proceeding at the time of the transfer;
(xviii) the Lease is not a Defaulted Lease;
(xix) the maximum remaining term of the Lease does not exceed 84 months; and
(xx) the Lease is not more than 60 days past due at time of transfer to the Transferor or the Issuer;
(xxi) (A) with respect to any Lease other than a Rent Stream Obligation, such Lease is a Finance Lease, and (B) with respect to any Lease other than a Rent Stream Obligation or a Synthetic Lease, such Lease provides that by the end of the lease term, the Lessee may elect to purchase the related Equipment upon the exercise of a nominal purchase option;
(xxii) at least one Lease Payment has been paid by the Obligor on such Lease;
(xxiii) at the time that any item of Equipment (including the Transferor's security Seller conveyed its right, title and interest in any item not owned by it) is contributed hereunderthe Lease and the related Equipment, the Transferor will have Seller had no knowledge that any item of the such Equipment has had suffered any loss or damage which has not been repaired.;
(fxxiv) Each at the time that the Seller conveyed its right, title and interest in the Lease requires and the Lessee thereunder to maintain insurance on the Equipment subject thereto in an amount at least equal to the fair market value thereof.
(g) In addition to the insurance maintained by the Lessees with respect to the related Equipment, the Transferor (or an Affiliate of the Transferor) maintains (i) one or more casualty insurance policies which, in the aggregate, are in an amount not less than the aggregate Outstanding Principal Amount of the Notes, (ii) a general liability insurance policy in the aggregate amount of $1,000,000 and (iii) an excess liability insurance policy in umbrella form in the aggregate amount of $10,000,000. Each of such policies is in full force and effect and covers all equipment owned by the Transferor and the Issuer. All premiums in respect of such policies have been paid. Each of the Trustee and the Issuer are named as loss payees and additional insureds, as their interests may appear, on such casualty and liability policies maintained by the Transferor.
(h) At the time of each transfer of a Lease hereunder, no Lease had outstanding rent which was 63 or more days past due as of the Cut-Off Date.
(i) Each Lease was entered into or acquired by the Transferor in accordance with the Transferor's regular credit approval process described in the Prospectus, and no selection procedures adverse to the credit quality of the Leases were employed in selecting the Leases for contribution under this Assignment and Servicing Agreement.
(j) The obligation of each Lessee to pay rent under each of the Leases throughout the term thereof is and will be unconditional, without any right of setoff by such Lessee and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Lessee against the Issuer, the Transferor or the Servicer or any change in circumstance of such Lessee or any other circumstance whatsoever except to the extent that in the event of a casualty of any item of Equipment, the Lessee is obligated to pay, in lieu of the future Lease Payments with respect to such item, an amount which equals or exceeds the Discounted Present Value of the Lease as of the Payment Date next succeeding the making of such payment (plus any unpaid rents).
(k) In the case of each Lease which consists of a master lease and one or more exhibits or schedules thereto, the Transferor has neither assigned such master lease in its entirety, nor delivered physical possession of such master lease, to any Person other than the Issuer or the Trustee (including the trustee under another indenture in a transaction substantially similar to the transaction contemplated hereby, which other indenture provides that the lien thereof on such master lease extends only to such master lease insofar as it relates to lease schedules which are not part of the Trust Estate).
(l) As of the time of each transfer of Leases and Equipment hereunder, there are no facts or circumstances which give rise, or would give rise at any time in the future, to any right of rescission, setoff, counterclaim or defense, including the defense of usury, to obligations of any Lessee, including the obligation of such Lessee to pay all amounts due with respect to any Lease to which such Lessee is a party, and neither the operation of any of the terms of any Lease or the exercise of any right thereunder will render such Lease unenforceable in whole or in part or subject to any right of rescission, setoff, counterclaim or defense, including the defense of usury, and no such right of rescission, setoff, counterclaim or defense has been asserted with respect thereto.
(m) As of the time of each transfer of Leases and Equipment hereunder, no Lease has shall not have been amended, altered or modified in any respect, except in writing and copies of all such writings are attached shall be contained in the Lease File in which the Lease itself is contained;
(xxv) if a Synthetic Lease, such Lease was originated by the Seller and not acquired by the Seller from a third party;
(xxvi) at the time that the Seller conveyed its right title and interest in the Lease and the related Equipment, (A) except to the Lease delivered to extent that payments have been previously received on such Lease, the Trustee.
(n) As of the time of each transfer of Leases and Equipment hereunder, no Lessee Obligor will not have been released, in whole or in part, from any of its obligations in respect of any such Lease; , (B) except as shown in the Lease File, no Equipment related to such Lease will have been satisfied, cancelled or subordinated, in whole, or in part, or rescinded, and no Equipment covered by any Lease will have been released from such Leasereleased, in whole or in part, from such Lease, and (C) except as shown in the Lease File, neither the operation of the Lease nor the exercise of any rights thereunder, nor the execution of any instrument, nor the occurrence of any facts or circumstances, has rendered or will render such Lease unenforceable, in whole or in part, or subject such Lease or any instrument related Equipment to any right of rescission, setoff, counterclaim or defense (including, without limitation, the defense of usury);
(xxvii) with respect to a Lease which had been executed that would effect any acquired by Charter Financial, Inc. from a third party originator, other than an affiliate of Charter Financial, Inc., UCC filings have been filed to reflect the assignment of the security interest from the third party originator to Charter Financial, Inc.; and
(xxviii) with respect to a Lease which is a Financial Lease, Charter Financial, Inc. has made all necessary UCC filings in all states where the related Equipment is located, naming the Lessee as debtor and Charter Financial, Inc. as secured party, to perfect the security interest of Charter Financial, Inc. in such satisfaction, release, cancellation, subordination or rescissionEquipment.
(od) As of the time of each transfer of Leases and Equipment hereunder, each Lease was either (i) originated by the Transferor in the ordinary course of its business or (ii) purchased by the Transferor for value represents and taken into possession prior to the Cut-Off Date in the ordinary course of its business.
(p) No Lease was originated in or is subject to the laws of any jurisdiction whose laws would make any of the transfers thereof under this Assignment and Servicing Agreement unlawful.
(q) All parties to each Lease had all requisite authority and capacity to execute such Lease.
(r) None of the Leases is a consumer lease and each Lessee has accepted the Equipment leased to it.
(s) The Booked Residual Value of the Equipment warrants that as of the Cut-Off Date equals $___________.Off-Date:
(ti) As of the Cut-Off Date, the final lease payment on each Lease was due and payable on or prior to __________.
(u) Each Lease agreement is "chattel paper" within the meaning of The Uniform Commercial Code in the states of New York and New Jersey.
(v) As of the Cut-Off date, no more than 22.5% of the Leases by Discounted Lease Balance have Equipment which is subject to certificate of title regulations in any jurisdiction;
(ii) the information set forth in the Schedule of Leases is true and correct.
(iii) no less than 98% of the Leases by Discounted Lease Balance have Lease Payments which are scheduled to be paid in monthly intervals; and
(iv) the Leases which are Rent Stream Obligations which were issued by any individual third party issuer (including, without limitation, an affiliate of Charter Financial, Inc.) do not originated by represent more than 1.5% of the TransferorAggregate Discounted Lease Balance.
Appears in 1 contract
Samples: Transferor Contribution and Sale Agreement (Charter Equipment Lease 1998-1 LLC)
Equipment and Leases. (a) Prior to the date of each transfer of any Leases and Equipment in accordance with Sections 1.01 and 1.02, respectively, the Transferor purchased each item of Equipment from either (i) the manufacturer or other supplier following receipt of an invoice from such manufacturer or supplier or (ii) a Lessee following confirmation that such item of Equipment was on such Lessee's premises. The Transferor has paid in full, to the manufacturer or supplier or Lessee, as the case may be, the purchase price and any related charges in connection with the acquisition of the Equipment. The transfer to the Issuer of the Leases and all of the Transferor's right, title and interest in each item of Equipment does not violate the terms or provisions of any Lease or any other agreement to which the Transferor is a party or by which it is bound.
(b) Upon completion of the transfer described in Article I hereof, the Issuer will (i) be the legal owner of the Leases (including the right to receive all payments due or to become due thereunder), (ii) have good title to each item of the Equipment subject to any Lease other than a Nominal Buy-Out Lease (or other finance lease), (iii) have a valid security interest in each item of Equipment subject to any Lease other than a Nominal Buy-Out Lease (or other finance lease) and (iv) have a perfected security interest in each item of Equipment with a purchase price in excess of $25,000 subject to a Nominal Buy-Out Lease (or other finance lease). At such time, the Leases (including the right to receive all payments due or to become due thereunder) and the Transferor's interest in the Equipment will be free and clear of all Liens other than the rights of each Lessee under the Lease to which such Lessee is a party and the Lien created by the Indenture; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens prior to, or equal or coordinate with, the Lien of the Trustee under the Indenture.
(c) At the time of each transfer of a Lease hereunder, each such Lease (i) is or will be a triple-net lease, (ii) is or will be a legal, valid and binding full recourse obligation of the Lessee thereunder, enforceable by the Issuer (and by the Trustee as assignee of the Issuer) against such Lessee in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors' rights and by general equity principles, (iii) is noncancellable by the Lessee and is in full force and effect, and any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to each Lease have been complied with; and the Transferor has no knowledge (after due inquiry) of any challenge, dispute or claim by or against the Lessee under or affecting any Lease or of the bankruptcy or insolvency of any such Lessee and (iv) is assignable. As of the initial Determination Date, or the effective date of the transfer of any Additional Lease or Substitute Lease, each Lessee has paid at least one installment of rent under its respective Lease.
(d) As of the Cut-Off Date, each Lease hereunder is not a Non-Performing Lease.
(e) At the time that any item of Equipment (including the Transferor's security interest in any item not owned by it) is contributed hereunder, the Transferor will have no knowledge that any item of the Equipment has suffered any loss or damage which has not been repaired.
(f) Each Lease requires the Lessee thereunder to maintain insurance on the Equipment subject thereto in an amount at least equal to the fair market value thereof.
(g) In addition to the insurance maintained by the Lessees with respect to the Equipment, the Transferor (or an Affiliate of the Transferor) maintains (i) one or more casualty insurance policies which, in the aggregate, are in an amount not less than the aggregate Outstanding Principal Amount of the Notes, (ii) a general liability insurance policy in the aggregate amount of $1,000,000 and (iii) an excess liability insurance policy in umbrella form in the aggregate amount of $10,000,000. Each of such policies is in full force and effect and covers all equipment owned by the Transferor and the Issuer. All premiums in respect of such policies have been paid. Each of the Trustee and the Issuer are named as loss payees and additional insureds, as their interests may appear, on such casualty and liability policies maintained by the Transferor.
(h) At the time of each transfer of a Lease hereunder, no Lease had outstanding rent which was 63 or more days past due as of the Cut-Off Date.
(i) Each Lease was entered into or acquired by the Transferor in accordance with the Transferor's regular credit approval process described in the Prospectus, and no selection procedures adverse to the credit quality of the Leases were employed in selecting the Leases for contribution under this Assignment and Servicing Agreement.
(j) The obligation of each Lessee to pay rent under each of the Leases throughout the term thereof is and will be unconditional, without any right of setoff by such Lessee and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Lessee against the Issuer, the Transferor or the Servicer or any change in circumstance of such Lessee or any other circumstance whatsoever except to the extent that in the event of a casualty of any item of Equipment, the Lessee is obligated to pay, in lieu of the future Lease Payments with respect to such item, an amount which equals or exceeds the Discounted Present Value of the Lease as of the Payment Date next succeeding the making of such payment (plus any unpaid rents).
(k) In the case of each Lease which consists of a master lease and one or more exhibits or schedules thereto, the Transferor has neither assigned such master lease in its entirety, nor delivered physical possession of such master lease, to any Person other than the Issuer or the Trustee (including the trustee under another indenture in a transaction substantially similar to the transaction contemplated hereby, which other indenture provides that the lien thereof on such master lease extends only to such master lease insofar as it relates to lease schedules which are not part of the Trust Estate).
(l) As of the time of each transfer of Leases and Equipment hereunder, there are no facts or circumstances which give rise, or would give rise at any time in the future, to any right of rescission, setoff, counterclaim or defense, including the defense of usury, to obligations of any Lessee, including the obligation of such Lessee to pay all amounts due with respect to any Lease to which such Lessee is a party, and neither the operation of any of the terms of any Lease or the exercise of any right thereunder will render such Lease unenforceable in whole or in part or subject to any right of rescission, setoff, counterclaim or defense, including the defense of usury, and no such right of rescission, setoff, counterclaim or defense has been asserted with respect thereto.
(m) As of the time of each transfer of Leases and Equipment hereunder, no Lease has been amended, altered or modified in any respect, except in writing and copies of all such writings are attached to the Lease delivered to the Trustee.
(n) As of the time of each transfer of Leases and Equipment hereunder, no Lessee will have been released, in whole or in part, from any of its obligations in respect of any Lease; no Lease will have been satisfied, cancelled or subordinated, in whole, or in part, or rescinded, and no Equipment covered by any Lease will have been released from such Lease, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission.
(o) As of the time of each transfer of Leases and Equipment hereunder, each Lease was either (i) originated by the Transferor in the ordinary course of its business or (ii) purchased by the Transferor for value and taken into possession prior to the Cut-Off Date in the ordinary course of its business.
(p) No Lease was originated in or is subject to the laws of any jurisdiction whose laws would make any of the transfers thereof under this Assignment and Servicing Agreement unlawful.
(q) All parties to each Lease had all requisite authority and capacity to execute such Lease.
(r) None of the Leases is a consumer lease and each Lessee has accepted the Equipment leased to it.
(s) The Booked Residual Value of the Equipment as of the Cut-Off Date equals $___________.
(t) As of the Cut-Off Date, the final lease payment on each Lease was due and payable on or prior to __________.
(u) Each Lease agreement is "chattel paper" within the meaning of The Uniform Commercial Code in the states of New York and New Jersey.
(v) As of the Cut-Off date, no more than 2% of the Leases are Leases not originated by the Transferor.
Appears in 1 contract
Samples: Assignment and Servicing Agreement (Copelco Capital Funding LLC 2000-A)
Equipment and Leases. (a) Prior to the date of each transfer of any Leases and contribution of Equipment in accordance with Sections 1.01 and 1.021.03, respectively, the Transferor Originator purchased each item of Equipment from either (i) the manufacturer or other supplier following receipt of an invoice from such manufacturer or supplier or (ii) a Lessee following confirmation that such item of Equipment was on such Lessee's premises. The Transferor Originator has paid in full, to the manufacturer or supplier or Lessee, as the case may be, the purchase price and any related charges in connection with the acquisition of the Equipment. The transfer sale to the Issuer Trust of the Leases and all of the TransferorOriginator's right, title and interest in each item of Equipment does not violate the terms or provisions of any Lease or any other agreement to which the Transferor Originator is a party or by which it is bound.
(b) Upon completion of the transfer transfers described in Article I hereof, the Issuer Trust will (i) be the legal owner of the Leases (including the right to receive all payments due or to become due thereunder), (ii) have good title to each item of the Equipment subject to any Lease other than a Nominal Buy-Out Lease (or other finance lease)Lease, and (iii) have a valid security interest in each item of Equipment subject to any Lease other than a Nominal Buy-Out Lease (or other finance lease) and (iv) have a perfected security interest in each item of Equipment with a purchase price in excess of $25,000 subject to a Nominal Buy-Out Lease (or other finance lease)Lease. At such time, the Leases (including the right to receive all payments due or to become due thereunder) and the TransferorOriginator's interest in the Equipment will be free and clear of all Liens other than the rights of each Lessee under the Lease to which such Lessee is a party and the Lien created by the Indenture; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens prior to, or equal or coordinate with, the Lien of the Trustee under the Indenture.
(c) At the time of each transfer of a Lease hereunder, each such Lease (i) is or will be a triple-net lease, lease and (ii) is or will be a legal, valid and binding full recourse obligation of the Lessee thereunder, enforceable by the Issuer Trust (and by the Trustee as assignee of the IssuerTrust) against such Lessee in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors' rights and by general equity principles, (iii) is noncancellable by the Lessee and is in full force and effect, and any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to each Lease have been complied with; and the Transferor Originator has no knowledge (after due inquiry) of any challenge, dispute or claim by or against the Lessee under or affecting any Lease or of the bankruptcy or insolvency of any such Lessee and (iv) is assignableLessee. As of the initial Determination Date, or the effective date of the transfer of any Additional Lease or Substitute Lease, each Lessee has paid at least one installment of rent under its respective Lease.
(d) As of the Cut-Off Date, each Lease hereunder is not a Non-Performing Lease.
(e) At the time that any item of Equipment (including the TransferorOriginator's security interest in any item not owned by it) is contributed hereunder, the Transferor Originator will have no knowledge that any item of the Equipment has suffered any loss or damage which has not been repaired.
(fe) Each Lease requires the Lessee thereunder to maintain insurance on the Equipment subject thereto in an amount at least equal to the fair market value thereof.
(gf) In addition to the insurance maintained by the Lessees with respect to the Equipment, the Transferor Originator (or an Affiliate of the TransferorOriginator) maintains (i) one or more casualty insurance policies which, in the aggregate, are in an amount not less than the aggregate Outstanding Principal Amount of the Notes, (ii) a general liability insurance policy in the aggregate amount of $1,000,000 and (iii) an excess liability insurance policy in umbrella form in the aggregate amount of $10,000,000. Each of such policies is in full force and effect and covers all equipment owned by the Transferor Originator and the IssuerTrust. All premiums in respect of such policies have been paid. Each of the Trustee and the Issuer Trust are named as loss payees and additional insureds, as their interests may appear, on such casualty and liability policies maintained by the TransferorOriginator.
(hg) At the time of each transfer of a Lease hereunder, no Lease had outstanding rent which was 63 or more days past due as of the Cut-Off Date.
(ih) Each Lease was entered into or acquired by the Transferor Originator in accordance with the TransferorOriginator's regular credit approval process described in the Prospectus, and no selection procedures adverse to the credit quality of the Leases were employed in selecting the Leases for contribution sale under this Assignment Sales and Servicing Agreement.
(ji) The obligation of each Lessee to pay rent under each of the Leases throughout the term thereof is and will be unconditional, without any right of setoff by such Lessee and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Lessee against the IssuerTrust, the Transferor Originator or the Servicer or any change in circumstance of such Lessee or any other circumstance whatsoever except to the extent that in the event of a casualty of any item of Equipment, the Lessee is obligated to pay, in lieu of the future Lease Payments with respect to such item, an amount which equals or exceeds the Discounted Present Value of the Lease as of the Payment Date next succeeding the making of such payment (plus any unpaid rents)payment.
(kj) In the case of each Lease which consists of a master lease and one or more exhibits or schedules thereto, the Transferor Originator has neither assigned such master lease in its entirety, nor delivered physical possession of such master lease, to any Person other than the Issuer Seller, the Trust or the Trustee (including the trustee under another indenture in a transaction substantially similar to the transaction contemplated hereby, which other indenture provides that the lien thereof on such master lease extends only to such master lease insofar as it relates to lease schedules which are not part of the Trust Estate).
(lk) As of the time of each transfer of Leases and Equipment hereunder, there are no facts or circumstances which give rise, or would give rise at any time in the future, to any right of rescission, setoff, counterclaim or defense, including the defense of usury, to obligations of any Lessee, including the obligation of such Lessee to pay all amounts due with respect to any Lease to which such Lessee is a party, and neither the operation of any of the terms of any Lease or the exercise of any right thereunder will render such Lease unenforceable in whole or in part or subject to any right of rescission, setoff, counterclaim or defense, including the defense of usury, and no such right of rescission, setoff, counterclaim or defense has been asserted with respect thereto.
(ml) As of the time of each transfer of Leases and Equipment hereunder, no Lease has been amended, altered or modified in any respect, except in writing and copies of all such writings are attached to the Lease delivered to the Trustee.
(nm) As of the time of each transfer of Leases and Equipment hereunder, no Lessee will have been released, in whole or in part, from any of its obligations in respect of any Lease; no Lease will have been satisfied, cancelled or subordinated, in whole, or in part, or rescinded, and no Equipment covered by any Lease will have been released from such Lease, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission.
(on) As of the time of each transfer of Leases and Equipment hereunder, each Lease was either (i) originated by the Transferor Originator in the ordinary course of its business or (ii) purchased by the Transferor Originator for value and taken into possession prior to the Cut-Off Date in the ordinary course of its business.
(po) No Lease was originated in or is subject to the laws of any jurisdiction whose laws would make any of the transfers transfer and sale thereof under this Assignment Sales and Servicing Agreement unlawful.
(qp) All parties to each Lease had all requisite authority and capacity to execute such Lease.
(rq) None of the Leases is a consumer lease and each Lessee has accepted the Equipment leased to it.
(sr) The Booked Residual Value of the Equipment as of the Cut-Off Date equals $____________.
(s) All parties to each Lease had all requisite authority and capacity to execute such Lease.
(t) As of the Cut-Off Date, the final lease payment Final Lease Payment on each Lease was due and payable on or prior to __________May 2005.
(u) Each Lease agreement is "chattel paper" within the meaning of The Uniform Commercial Code in the states of New York and New Jersey.
(v) As of the Cut-Off date, no more than 2% of the Leases are Leases not originated by the Transferor.
Appears in 1 contract
Samples: Sales and Servicing Agreement (Copelco Capital Funding Corp Xi)
Equipment and Leases. (a) Prior to the date of each transfer of any Leases and Equipment in accordance with Sections 1.01 and 1.02, respectively, the Transferor purchased each item of Equipment from either (i) the manufacturer or other supplier following receipt of an invoice from such manufacturer or supplier or (ii) a Lessee following confirmation that such item of Equipment was on such Lessee's premises. The Transferor has paid in full, to the manufacturer or supplier or Lessee, as the case may be, the purchase price and any related charges in connection with the acquisition of the Equipment. The transfer to the Issuer of the Leases and all of the Transferor's right, title and interest in each item of Equipment does not violate the terms or provisions of any Lease or any other agreement to which the Transferor is a party or by which it is bound.
(b) Upon completion of the transfer described in Article I hereof, the Issuer will (i) be the legal owner of the Leases (including the right to receive all payments due or to become due thereunder), (ii) have good title to each item of the Equipment subject to any Lease other than a Nominal Buy-Out Lease (or other finance lease), (iii) have a valid security interest in each item of Equipment subject to any Lease other than a Nominal Buy-Out Lease (or other finance lease) and (iv) have a perfected security interest in each item of Equipment with a purchase price in excess of $25,000 subject to a Nominal Buy-Out Lease (or other finance lease). At such time, the Leases (including the right to receive all payments due or to become due thereunder) and the Transferor's interest in the Equipment will be free and clear of all Liens other than the rights of each Lessee under the Lease to which such Lessee is a party and the Lien created by the Indenture; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens prior to, or equal or coordinate with, the Lien of the Trustee under the Indenture.
(c) At the time of each transfer of a Lease hereunder, each such Lease (i) is or will be a triple-net lease, (ii) is or will be a legal, valid and binding full recourse obligation of the Lessee thereunder, enforceable by the Issuer (and by the Trustee as assignee of the Issuer) against such Lessee in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors' rights and by general equity principles, principles and (iii) is noncancellable by the Lessee and is in full force and effect, and any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to each Lease have been complied with; and the Transferor has no knowledge (after 5 10 due inquiry) of any challenge, dispute or claim by or against the Lessee under or affecting any Lease or of the bankruptcy or insolvency of any such Lessee and (iv) is assignableLessee. As of the initial Determination Date, or the effective date of the transfer of any Additional Lease or Substitute Lease, each Lessee has paid at least one installment of rent under its respective Lease.
(d) As of the Cut-Off Date, each Lease hereunder is not a Non-Performing Lease.
(e) At the time that any item of Equipment (including the Transferor's security interest in any item not owned by it) is contributed hereunder, the Transferor will have no knowledge that any item of the Equipment has suffered any loss or damage which has not been repaired.
(f) Each Lease requires the Lessee thereunder to maintain insurance on the Equipment subject thereto in an amount at least equal to the fair market value thereof.
(g) In addition to the insurance maintained by the Lessees with respect to the Equipment, the Transferor (or an Affiliate of the Transferor) maintains (i) one or more casualty insurance policies which, in the aggregate, are in an amount not less than the aggregate Outstanding Principal Amount of the Notes, (ii) a general liability insurance policy in the aggregate amount of $1,000,000 and (iii) an excess liability insurance policy in umbrella form in the aggregate amount of $10,000,000. Each of such policies is in full force and effect and covers all equipment owned by the Transferor and the Issuer. All premiums in respect of such policies have been paid. Each of the Trustee and the Issuer are named as loss payees and additional insureds, as their interests may appear, on such casualty and liability policies maintained by the Transferor.
(h) At the time of each transfer of a Lease hereunder, no Lease had outstanding rent which was 63 or more days past due as of the Cut-Off Date.
(i) Each Lease was entered into or acquired by the Transferor in accordance with the Transferor's regular credit approval process described in the Prospectus, and no selection procedures adverse to the credit quality of the Leases were employed in selecting the Leases for contribution under this Assignment and Servicing Agreement.
(j) The obligation of each Lessee to pay rent under each of the Leases throughout the term thereof is and will be unconditional, without any right of setoff by such Lessee and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Lessee against the Issuer, the Transferor or the Servicer or any change in circumstance of such Lessee or any other circumstance whatsoever except to the extent that in the event of a casualty of any item of Equipment, the Lessee is obligated to pay, in lieu of the future Lease Payments with respect to such item, an amount which equals or exceeds the Discounted Present Value of the Lease as of the Payment Date next succeeding the making of such payment (plus any unpaid rents).
(k) In the case of each Lease which consists of a master lease and one or more exhibits or schedules thereto, the Transferor has neither assigned such master lease in its entirety, nor delivered physical possession of such master lease, to any Person other than the Issuer or the Trustee (including the trustee under another indenture in a transaction substantially similar to the transaction contemplated hereby, which other indenture provides that the lien thereof on such master lease extends only to such master lease insofar as it relates to lease schedules which are not part of the Trust Estate).
(l) As of the time of each transfer of Leases and Equipment hereunder, there are no facts or circumstances which give rise, or would give rise at any time in the future, to any right of rescission, setoff, counterclaim or defense, including the defense of usury, to obligations of any Lessee, including the obligation of such Lessee to pay all amounts due with respect to any Lease to which such Lessee is a party, and neither the operation of any of the terms of any Lease or the exercise of any right thereunder will render such Lease unenforceable in whole or in part or subject to any right of rescission, setoff, counterclaim or defense, including the defense of usury, and no such right of rescission, setoff, counterclaim or defense has been asserted with respect thereto.
(m) As of the time of each transfer of Leases and Equipment hereunder, no Lease has been amended, altered or modified in any respect, except in writing and copies of all such writings are attached to the Lease delivered to the Trustee.
(n) As of the time of each transfer of Leases and Equipment hereunder, no Lessee will have been released, in whole or in part, from any of its obligations in respect of any Lease; no Lease will have been satisfied, cancelled or subordinated, in whole, or in part, or rescinded, and no Equipment covered by any Lease will have been released from such Lease, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission.
(o) As of the time of each transfer of Leases and Equipment hereunder, each Lease was either (i) originated by the Transferor in the ordinary course of its business or (ii) purchased by the Transferor for value and taken into possession prior to the Cut-Off Date in the ordinary course of its business.
(p) No Lease was originated in or is subject to the laws of any jurisdiction whose laws would make any of the transfers thereof under this Assignment and Servicing Agreement unlawful.
(q) All parties to each Lease had all requisite authority and capacity to execute such Lease.
(r) None of the Leases is a consumer lease and each Lessee has accepted the Equipment leased to it.
(s) The Booked Residual Value of the Equipment as of the Cut-Off Date equals $___________.
(t) As of the Cut-Off Date, the final lease payment on each Lease was due and payable on or prior to __________.
(u) Each Lease agreement is "chattel paper" within the meaning of The Uniform Commercial Code in the states of New York and New Jersey.
(v) As of the Cut-Off date, no more than 2% of the Leases are Leases not originated by the Transferor.
Appears in 1 contract
Samples: Assignment and Servicing Agreement (Copelco Capital Funding LLC 99-1)
Equipment and Leases. (a) Prior to the date of each transfer of any Leases and Equipment in accordance with Sections 1.01 and 1.02, respectively, the Transferor purchased each item of Equipment from either (i) the manufacturer or other supplier following receipt of an invoice from such manufacturer or supplier or (ii) a Lessee following confirmation that such item of Equipment was on such Lessee's premises. The Transferor has paid in full, to the manufacturer or supplier or Lessee, as the case may be, the purchase price and any related charges in connection with the acquisition of the Equipment. The transfer to the Issuer Transferor of the Leases and all of the TransferorSeller's right, title and interest in each item of Equipment does not violate the terms or provisions of any Lease or any other agreement to which the Transferor Seller is a party or by which it is bound.
(b) Upon completion of the transfer described in Article I II hereof, the Issuer Transferor will (i) be the legal owner of the Leases (including the right to receive all payments due or to become due thereunder), (ii) have good title to each item of the Equipment subject to any Lease other than a Nominal Buy-Out Lease (or other finance lease), (iii) have a valid security interest in each item of Equipment subject to any Lease other than a Nominal Buy-Out Lease (or other finance lease) and (iv) have a perfected security interest in each item of Equipment with a purchase price in excess of $25,000 subject to a Nominal Buy-Out Lease (or other finance lease)Rent Stream Obligation. At such time, the Leases (including the right to receive all payments due or to become due thereunder) and the TransferorSeller's interest in the Equipment will be free and clear of all Liens other than the rights of each Lessee under the Lease to which such Lessee is a party and the Lien created by the Indenture; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens prior to, or equal or coordinate with, the Lien of the Trustee under the IndenturePermitted Encumbrances.
(c) At the time of each transfer of a Lease hereunderWith respect to any Lease, each such Lease (i) is or will be a triple-net lease, (ii) is or will be a legal, valid and binding full recourse obligation of the Lessee thereunder, enforceable by the Issuer (and by the Trustee as assignee of the Issuer) against such Lessee in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors' rights and by general equity principles, (iii) is noncancellable by the Lessee and is in full force and effect, and any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to each Lease have been complied with; and the Transferor has no knowledge (after due inquiry) of any challenge, dispute or claim by or against the Lessee under or affecting any Lease or of the bankruptcy or insolvency of any such Lessee and (iv) is assignable. As of the initial Determination Date, or the effective date of the transfer of any than an Additional Lease or a Substitute Lease, each Lessee has paid at least one installment of rent under its respective Lease.
(d) As as of the Cut-Off Date, or with respect to any Additional Lease or any Substitute Lease, as of the related Transfer Date, the Seller represents and warrants that each Lease hereunder shall comply with the following:
(i) the Lease is a valid and binding obligation of the Lessee enforceable against such Lessee in accordance with its terms (except as may be limited by bankruptcy laws, other laws affecting creditor's rights in similar transactions generally, and judicial powers of equity);
(ii) the Lease constitutes a non-cancellable, "hell or high water" obligation of the Lessee and requires the Lessee to make all Lease Payments thereon regardless of the condition of the Equipment to which the Lease relates;
(iii) the Lease is non-cancellable by the Lessee and does not contain early termination options (except for a Lease which contains early termination or prepayment clauses, which requires the Lessee to pay the Prepayment Amount for such Lease upon such cancellation or prepayment);
(iv) all payments payable under the Lease are absolute, unconditional obligations of the Lessee without right to offset for any reason;
(v) the Lease requires the Lessee or a third party to maintain the Equipment in good working order, to bear all the costs of operating the Equipment, including taxes and insurance relating thereto;
(vi) the Lease does not materially violate any U.S. or state laws;
(vii) the Lease provides for periodic payments;
(viii) in the event of a Casualty Loss with respect to the Lease, the Lessee, at the Lessee's expense, is required to replace the Equipment with like equipment in good repair, acceptable to the Servicer or pay at a minimum the outstanding principal or net book value of the Leases and any applicable make whole premium, if any;
(ix) the Lease was originated by the Seller, or was acquired by the Seller in a "true sale" in the ordinary course of its business and in a manner which satisfies the underwriting practices set forth in the Credit and Collection Policy as in effect from time to time;
(x) the Lease has been sold to the Seller free and clear of any Liens other than Permitted Encumbrances;
(xi) the Lease is assignable without prior written consent of the Lessee;
(xii) the Lease is denominated and payable only in U.S. dollars, the Lessor is located in the United States and one or more Obligors who are fully liable under the Lease are located in the United States;
(xiii) the Lease is not a Non-Performing Lease."consumer lease" within the meaning of Article 2A of the UCC in any jurisdiction where such Article 2A has been adopted and governs the construction thereof;
(exiv) At the lease, to the extent such Lease was reacquired by the Seller from an affiliate prior to its conveyance in this transaction, was acquired by the Seller in a "true sale";
(xv) no adverse selection was used in selecting the Lease for transfer to the Transferor;
(xvi) the Lessee has represented to the Seller or Vendor that it has accepted the Equipment;
(xvii) the Lessee is not a subject of an insolvency or bankruptcy proceeding at the time of the transfer;
(xviii) the Lease is not a Defaulted Lease;
(xix) the maximum remaining term of the Lease does not exceed 84 months;
(xx) the Lease is not more than 60 days past due at time of transfer to the Transferor;
(xxi) (A) with respect to any Lease other than a Rent Stream Obligation, such Lease is a Finance Lease, and (B) with respect to any Lease other than a Rent Stream Obligation or a Synthetic Lease, such Lease provides that by the end of the lease term, the Lessee may elect to purchase the related Equipment upon the exercise of a nominal purchase option;
(xxii) at least one Lease Payment has been paid by the Obligor on such Lease;
(xxiii) at the time that any item of Equipment (including the Transferor's security Seller conveyed its right, title and interest in any item not owned by it) is contributed hereunderthe Lease and the related Equipment, the Transferor will have Seller had no knowledge that any item of the such Equipment has had suffered any loss or damage which has not been repaired.;
(fxxiv) Each at the time that the Seller conveyed its right, title and interest in the Lease requires and the Lessee thereunder to maintain insurance on the Equipment subject thereto in an amount at least equal to the fair market value thereof.
(g) In addition to the insurance maintained by the Lessees with respect to the related Equipment, the Transferor (or an Affiliate of the Transferor) maintains (i) one or more casualty insurance policies which, in the aggregate, are in an amount not less than the aggregate Outstanding Principal Amount of the Notes, (ii) a general liability insurance policy in the aggregate amount of $1,000,000 and (iii) an excess liability insurance policy in umbrella form in the aggregate amount of $10,000,000. Each of such policies is in full force and effect and covers all equipment owned by the Transferor and the Issuer. All premiums in respect of such policies have been paid. Each of the Trustee and the Issuer are named as loss payees and additional insureds, as their interests may appear, on such casualty and liability policies maintained by the Transferor.
(h) At the time of each transfer of a Lease hereunder, no Lease had outstanding rent which was 63 or more days past due as of the Cut-Off Date.
(i) Each Lease was entered into or acquired by the Transferor in accordance with the Transferor's regular credit approval process described in the Prospectus, and no selection procedures adverse to the credit quality of the Leases were employed in selecting the Leases for contribution under this Assignment and Servicing Agreement.
(j) The obligation of each Lessee to pay rent under each of the Leases throughout the term thereof is and will be unconditional, without any right of setoff by such Lessee and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Lessee against the Issuer, the Transferor or the Servicer or any change in circumstance of such Lessee or any other circumstance whatsoever except to the extent that in the event of a casualty of any item of Equipment, the Lessee is obligated to pay, in lieu of the future Lease Payments with respect to such item, an amount which equals or exceeds the Discounted Present Value of the Lease as of the Payment Date next succeeding the making of such payment (plus any unpaid rents).
(k) In the case of each Lease which consists of a master lease and one or more exhibits or schedules thereto, the Transferor has neither assigned such master lease in its entirety, nor delivered physical possession of such master lease, to any Person other than the Issuer or the Trustee (including the trustee under another indenture in a transaction substantially similar to the transaction contemplated hereby, which other indenture provides that the lien thereof on such master lease extends only to such master lease insofar as it relates to lease schedules which are not part of the Trust Estate).
(l) As of the time of each transfer of Leases and Equipment hereunder, there are no facts or circumstances which give rise, or would give rise at any time in the future, to any right of rescission, setoff, counterclaim or defense, including the defense of usury, to obligations of any Lessee, including the obligation of such Lessee to pay all amounts due with respect to any Lease to which such Lessee is a party, and neither the operation of any of the terms of any Lease or the exercise of any right thereunder will render such Lease unenforceable in whole or in part or subject to any right of rescission, setoff, counterclaim or defense, including the defense of usury, and no such right of rescission, setoff, counterclaim or defense has been asserted with respect thereto.
(m) As of the time of each transfer of Leases and Equipment hereunder, no Lease has shall not have been amended, altered or modified in any respect, except in writing and copies of all such writings are attached shall be contained in the Lease File in which the Lease itself is contained;
(xxv) if a Synthetic Lease, such Lease was originated by the Seller and not acquired by the Seller from a third party;
(xxvi) at the time that the Seller conveyed its right title and interest in the Lease and the related Equipment, (A) except to the Lease delivered to extent that payments have been previously received on such Lease, the Trustee.
(n) As of the time of each transfer of Leases and Equipment hereunder, no Lessee Obligor will not have been released, in whole or in part, from any of its obligations in respect of any such Lease; , (B) except as shown in the Lease File, no Equipment related to such Lease will have been satisfied, cancelled or subordinated, in whole, or in part, or rescinded, and no Equipment covered by any Lease will have been released from such Leasereleased, in whole or in part, from such Lease, and (C) except as shown in the Lease File, neither the operation of the Lease nor the exercise of any rights thereunder, nor the execution of any instrument, nor the occurrence of any facts or circumstances, has rendered or will render such Lease unenforceable, in whole or in part, or subject such Lease or any instrument related Equipment to any right of rescission, setoff, counterclaim or defense (including, without limitation, the defense of usury);
(xxvii) with respect to a Lease which had been executed that would effect any acquired by Charter Financial, Inc. from a third party originator, other than an affiliate of Charter Financial, Inc., UCC filings have been filed to reflect the assignment of the security interest from the third party originator to Charter Financial, Inc.; and
(xxviii) with respect to a Lease which is a Financial Lease, Charter Financial, Inc. has made all necessary UCC filings in all states where the related Equipment is located, naming the Lessee as debtor and Charter Financial, Inc. as secured party, to perfect the security interest of Charter Financial, Inc. in such satisfaction, release, cancellation, subordination or rescissionEquipment.
(od) As of the time of each transfer of Leases and Equipment hereunder, each Lease was either (i) originated by the Transferor in the ordinary course of its business or (ii) purchased by the Transferor for value represents and taken into possession prior to the Cut-Off Date in the ordinary course of its business.
(p) No Lease was originated in or is subject to the laws of any jurisdiction whose laws would make any of the transfers thereof under this Assignment and Servicing Agreement unlawful.
(q) All parties to each Lease had all requisite authority and capacity to execute such Lease.
(r) None of the Leases is a consumer lease and each Lessee has accepted the Equipment leased to it.
(s) The Booked Residual Value of the Equipment warrants that as of the Cut-Off Date equals $___________.Off-Date:
(ti) As of the Cut-Off Date, the final lease payment on each Lease was due and payable on or prior to __________.
(u) Each Lease agreement is "chattel paper" within the meaning of The Uniform Commercial Code in the states of New York and New Jersey.
(v) As of the Cut-Off date, no more than 22.5% of the Leases by Discounted Lease Balance have Equipment which is subject to certificate of title regulations in any jurisdiction;
(ii) the information set forth in the Schedule of Leases is true and correct;
(iii) no less than 98% of the Leases by Discounted Lease Balance have Lease Payments which are scheduled to be paid in monthly intervals; and
(iv) the Leases which are Rent Stream Obligations which were issued by any individual third party issuer (including, without limitation, an affiliate of Charter) do not originated by represent more than 1.5% of the TransferorAggregate Discounted Lease Balance.
Appears in 1 contract
Samples: Seller Contribution and Sale Agreement (Charter Equipment Lease 1998-1 LLC)
Equipment and Leases. (a) Prior to the date of each transfer of any Leases and Equipment in accordance with Sections 1.01 and 1.02, respectively, the Transferor purchased each item of Equipment from either (i) the manufacturer or other supplier following receipt of an invoice from such manufacturer or supplier or (ii) a Lessee following confirmation that such item of Equipment was on such Lessee's premises. The Transferor has paid in full, to the manufacturer or supplier or Lessee, as the case may be, the purchase price and any related charges in connection with the acquisition of the Equipment. The transfer to the Issuer Transferor of the Leases and all of the TransferorSeller's right, title and interest in each item of Equipment does not violate the terms or provisions of any Lease or any other agreement to which the Transferor Seller is a party or by which it is bound.
(b) Upon completion of the transfer described in Article I II hereof, the Issuer Transferor will (i) be the legal owner of the Leases (including the right to receive all payments due or to become due thereunder), (ii) have good title to each item of the Equipment subject to any Lease other than a Nominal Buy-Out Lease (or other finance lease), (iii) have a valid security interest in each item of Equipment subject to any Lease other than a Nominal Buy-Out Lease (or other finance lease) and (iv) have a perfected security interest in each item of Equipment with a purchase price in excess of $25,000 subject to a Nominal Buy-Out Lease (or other finance lease)Rental Stream Obligation. At such time, the Leases (including the right to receive all payments due or to become due thereunder) and the TransferorSeller's interest in the Equipment will be free and clear of all Liens other than the rights of each Lessee under the Lease to which such Lessee is a party and the Lien created by the Indenture; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens prior to, or equal or coordinate with, the Lien of the Trustee under the IndenturePermitted Encumbrances.
(c) At the time of each transfer of a Lease hereunderWith respect to any Lease, each such Lease (i) is or will be a triple-net lease, (ii) is or will be a legal, valid and binding full recourse obligation of the Lessee thereunder, enforceable by the Issuer (and by the Trustee as assignee of the Issuer) against such Lessee in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors' rights and by general equity principles, (iii) is noncancellable by the Lessee and is in full force and effect, and any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to each Lease have been complied with; and the Transferor has no knowledge (after due inquiry) of any challenge, dispute or claim by or against the Lessee under or affecting any Lease or of the bankruptcy or insolvency of any such Lessee and (iv) is assignable. As of the initial Determination Date, or the effective date of the transfer of any than an Additional Lease or a Substitute Lease, each Lessee has paid at least one installment of rent under its respective Lease.
(d) As as of the Cut-Off Date, or with respect to any Additional Lease or any Substitute Lease, as of the related Transfer Date, the Seller represents and warrants that each Lease hereunder is not a Non-Performing Lease.shall comply with the following:
(ei) At the time that any item Lease is a valid and binding obligation of Equipment the Lessee enforceable against such Lessee in accordance with its terms (including except as may be limited by bankruptcy laws, other laws affecting creditor's rights in similar transactions generally, and judicial powers of equity);
(ii) the Transferor's security interest in any item not owned by it) is contributed hereunderLease constitutes a non-cancellable, "hell or high water" obligation of the Transferor will have no knowledge that any item Lessee and requires the Lessee to make all Lease Payments thereon regardless of the condition of the Equipment has suffered any loss or damage to which has not been repaired.the Lease relates;
(fiii) Each the Lease is non-cancellable by the Lessee and does not contain early termination options (except for a Lease which contains early termination or prepayment clauses, which requires the Lessee to pay the present value of (as determined in such Lease) all remaining Scheduled Payments under such Lease upon such cancellation or prepayment);
(iv) all payments payable under the Lease are absolute, unconditional obligations of the Lessee without right to offset for any reason;
(v) the Lease requires the Lessee thereunder or a third party to maintain insurance on the Equipment subject thereto in an amount at least equal good working order, to bear all the fair market value thereof.
(g) In addition to the insurance maintained by the Lessees with respect to costs of operating the Equipment, the Transferor (or an Affiliate of the Transferor) maintains (i) one or more casualty including taxes and insurance policies which, in the aggregate, are in an amount not less than the aggregate Outstanding Principal Amount of the Notes, (ii) a general liability insurance policy in the aggregate amount of $1,000,000 and (iii) an excess liability insurance policy in umbrella form in the aggregate amount of $10,000,000. Each of such policies is in full force and effect and covers all equipment owned by the Transferor and the Issuer. All premiums in respect of such policies have been paid. Each of the Trustee and the Issuer are named as loss payees and additional insureds, as their interests may appear, on such casualty and liability policies maintained by the Transferor.relating thereto;
(hvi) At the time of each transfer of a Lease hereunder, no Lease had outstanding rent which was 63 does not materially violate any U.S. or more days past due as of the Cut-Off Date.state laws;
(ivii) Each the Lease was entered into or acquired by the Transferor in accordance with the Transferor's regular credit approval process described in the Prospectus, and no selection procedures adverse to the credit quality of the Leases were employed in selecting the Leases provides for contribution under this Assignment and Servicing Agreement.periodic payments;
(jviii) The obligation of each Lessee to pay rent under each of the Leases throughout the term thereof is and will be unconditional, without any right of setoff by such Lessee and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Lessee against the Issuer, the Transferor or the Servicer or any change in circumstance of such Lessee or any other circumstance whatsoever except to the extent that in the event of a casualty of any item of Equipment, the Lessee is obligated to pay, in lieu of the future Lease Payments Casualty Loss with respect to such itemthe Lease, an amount which equals the Lessee, at the Lessee's expense, is required to replace the Equipment with like equipment in good repair, acceptable to the Servicer or exceeds pay at a minimum the Discounted Present Value outstanding principal or net book value of the Lease as of the Payment Date next succeeding the making of such payment (plus Leases and any unpaid rents).applicable make whole premium;
(kix) In the case of each Lease which consists of a master lease and one or more exhibits or schedules thereto, the Transferor has neither assigned such master lease in its entirety, nor delivered physical possession of such master lease, to any Person other than the Issuer or the Trustee (including the trustee under another indenture in a transaction substantially similar to the transaction contemplated hereby, which other indenture provides that the lien thereof on such master lease extends only to such master lease insofar as it relates to lease schedules which are not part of the Trust Estate).
(l) As of the time of each transfer of Leases and Equipment hereunder, there are no facts or circumstances which give rise, or would give rise at any time in the future, to any right of rescission, setoff, counterclaim or defense, including the defense of usury, to obligations of any Lessee, including the obligation of such Lessee to pay all amounts due with respect to any Lease to which such Lessee is a party, and neither the operation of any of the terms of any Lease or the exercise of any right thereunder will render such Lease unenforceable in whole or in part or subject to any right of rescission, setoff, counterclaim or defense, including the defense of usury, and no such right of rescission, setoff, counterclaim or defense has been asserted with respect thereto.
(m) As of the time of each transfer of Leases and Equipment hereunder, no Lease has been amended, altered or modified in any respect, except in writing and copies of all such writings are attached to the Lease delivered to the Trustee.
(n) As of the time of each transfer of Leases and Equipment hereunder, no Lessee will have been released, in whole or in part, from any of its obligations in respect of any Lease; no Lease will have been satisfied, cancelled or subordinated, in whole, or in part, or rescinded, and no Equipment covered by any Lease will have been released from such Lease, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission.
(o) As of the time of each transfer of Leases and Equipment hereunder, each Lease was either (i) originated by the Transferor Charter or was purchased by Charter in the ordinary course of its business or in a manner which satisfies the underwriting practices set forth in the Credit and Collection Policy as in effect from time to time;
(iix) purchased the Lease has been sold to the Seller free and clear of any Liens other than Permitted Encumbrances;
(xi) the Lease is assignable without prior written consent of the Lessee;
(xii) the Lease is denominated and payable only in U.S. dollars and the Lessor and each Lessee are located in the United States;
(xiii) the Lease is not a "consumer lease" within the meaning of Article 2A of the UCC in any jurisdiction where such Article 2A has been adopted and governs the construction thereof;
(xiv) the Lease is not subject to any guaranty by the Transferor Seller;
(xv) no adverse selection was used in selecting the Lease for value and taken into possession prior transfer to the Cut-Off Date in Transferor;
(xvi) the ordinary course Lessee has represented to the Seller or Vendor that it has accepted the Equipment;
(xvii) the Lessee is not a subject of its businessan insolvency or bankruptcy proceeding at the time of the transfer;
(xviii) the Lease is not a Defaulted Lease;
(xix) the maximum remaining term of the Lease does not exceed [84] months;
(xx) the Lease is not more than 60 days past due at time of transfer to the Transferor; and
(xxi) (A) with respect to any Lease other than a Rental Stream Obligation, such Lease is a Finance Lease, and (B) with respect to any Lease other than a Rental Stream Obligation or a Synthetic Lease, such Lease provides that by the end of the lease term, the Lessee may elect to purchase the related Equipment upon the exercise of a nominal purchase option.
(pd) No Lease was originated in or is subject to the laws of any jurisdiction whose laws would make any of the transfers thereof under this Assignment Transferor represents and Servicing Agreement unlawful.
(q) All parties to each Lease had all requisite authority and capacity to execute such Lease.
(r) None of the Leases is a consumer lease and each Lessee has accepted the Equipment leased to it.
(s) The Booked Residual Value of the Equipment warrants that as of the Cut-Off Off-Date equals $___________.
(ti) As of the Cut-Off Date, the final lease payment on each Lease was due and payable on or prior to __________.
(u) Each Lease agreement is "chattel paper" within the meaning of The Uniform Commercial Code in the states of New York and New Jersey.
(v) As of the Cut-Off date, no more than 2% of the Leases are by Discounted Principal Balance have Equipment which is subject to vehicle titling regulations in any jurisdiction; and (ii) the information set forth in the Schedule of Leases not originated by the Transferoris true and correct.
Appears in 1 contract
Samples: Seller Contribution and Sale Agreement (Charter Equipment Lease 1998-1 LLC)
Equipment and Leases. (a) Prior to the date of each transfer of any Leases and Equipment in accordance with Sections 1.01 2.01 and 1.022.02, respectively, the Transferor purchased each item of Equipment from either (i) Charter Financial, Inc. pursuant to the manufacturer or other supplier following receipt of an invoice from such manufacturer or supplier or (ii) a Lessee following confirmation that such item of Equipment was on such Lessee's premisesSeller Contribution and Sale Agreement. The Transferor has paid in full, to the manufacturer or supplier or LesseeCharter Financial, Inc., as the case may be, the purchase price and any related charges in connection with the acquisition of the Equipment. The transfer to the Issuer of the Leases and all of the Transferor's right, title and interest in each item of Equipment does not violate the terms or provisions of any Lease or any other agreement to which the Transferor is a party or by which it is bound.
(b) Upon completion of the transfer described in Article I II hereof, the Issuer will (i) be the legal owner of the Leases (including the right to receive all payments due or to become due thereunder), (ii) have good title to each item of the Equipment subject to any Lease other than a Nominal Buy-Out Lease (or other finance lease), (iii) have a valid security interest in each item of Equipment subject to any Lease other than a Nominal Buy-Out Lease (or other finance lease) and (iv) have a perfected security interest in each item of Equipment with a purchase price in excess of $25,000 subject to a Nominal Buy-Out Lease (or other finance lease)Rental Stream Obligation. At such time, the Leases (including the right to receive all payments due or to become due thereunder) and the Transferor's interest in the Equipment will be free and clear of all Liens other than the rights of each Lessee under the Lease to which such Lessee is a party and the Lien created by the Indenture; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens prior to, or equal or coordinate with, the Lien of the Trustee under the IndenturePermitted Encumbrances.
(c) At the time of each transfer of a Lease hereunderWith respect to any Lease, each such Lease (i) is or will be a triple-net lease, (ii) is or will be a legal, valid and binding full recourse obligation of the Lessee thereunder, enforceable by the Issuer (and by the Trustee as assignee of the Issuer) against such Lessee in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors' rights and by general equity principles, (iii) is noncancellable by the Lessee and is in full force and effect, and any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to each Lease have been complied with; and the Transferor has no knowledge (after due inquiry) of any challenge, dispute or claim by or against the Lessee under or affecting any Lease or of the bankruptcy or insolvency of any such Lessee and (iv) is assignable. As of the initial Determination Date, or the effective date of the transfer of any than an Additional Lease or a Substitute Lease, each Lessee has paid at least one installment of rent under its respective Lease.
(d) As as of the Cut-Off Date, each or with respect to any Additional Lease hereunder is not a Non-Performing or any Substitute Lease.
(e) At , as of the time that any item of Equipment (including the Transferor's security interest in any item not owned by it) is contributed hereunderrelated Transfer Date, the Transferor will have no knowledge represents and warrants that any item each Lease shall comply with the following:
(i) the Lease is a valid and binding obligation of the Lessee enforceable against such Lessee in accordance with its terms (except as may be limited by bankruptcy laws, other laws affecting creditor's rights in similar transactions generally, and judicial powers of equity);
(ii) the Lease constitutes a non-cancellable, "hell or high water" obligation of the Lessee and requires the Lessee to make all Lease Payments thereon regardless of the condition of the Equipment has suffered any loss or damage to which has not been repaired.the Lease relates;
(fiii) Each the Lease is non-cancellable by the Lessee and does not contain early termination options (except for a Lease which contains early termination or prepayment clauses, which requires the Lessee to pay the present value of (as determined in such Lease) all remaining Scheduled Payments under such Lease upon such cancellation or prepayment);
(iv) all payments payable under the Lease are absolute, unconditional obligations of the Lessee without right to offset for any reason;
(v) the Lease requires the Lessee thereunder or a third party to maintain insurance on the Equipment subject thereto in an amount at least equal good working order, to bear all the fair market value thereof.
(g) In addition to the insurance maintained by the Lessees with respect to costs of operating the Equipment, the Transferor (or an Affiliate of the Transferor) maintains (i) one or more casualty including taxes and insurance policies which, in the aggregate, are in an amount not less than the aggregate Outstanding Principal Amount of the Notes, (ii) a general liability insurance policy in the aggregate amount of $1,000,000 and (iii) an excess liability insurance policy in umbrella form in the aggregate amount of $10,000,000. Each of such policies is in full force and effect and covers all equipment owned by the Transferor and the Issuer. All premiums in respect of such policies have been paid. Each of the Trustee and the Issuer are named as loss payees and additional insureds, as their interests may appear, on such casualty and liability policies maintained by the Transferor.relating thereto;
(hvi) At the time of each transfer of a Lease hereunder, no Lease had outstanding rent which was 63 does not materially violate any U.S. or more days past due as of the Cut-Off Date.state laws;
(ivii) Each the Lease was entered into or acquired by the Transferor in accordance with the Transferor's regular credit approval process described in the Prospectus, and no selection procedures adverse to the credit quality of the Leases were employed in selecting the Leases provides for contribution under this Assignment and Servicing Agreement.periodic payments;
(jviii) The obligation of each Lessee to pay rent under each of the Leases throughout the term thereof is and will be unconditional, without any right of setoff by such Lessee and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Lessee against the Issuer, the Transferor or the Servicer or any change in circumstance of such Lessee or any other circumstance whatsoever except to the extent that in the event of a casualty of any item of EquipmentCasualty Loss, the Lessee is obligated to pay, in lieu of the future Lease Payments with respect to such itemthe Lease, an amount which equals the Lessee, at the Lessee's expense, is required to replace the Equipment with like equipment in good repair, acceptable to the Servicer or exceeds pay at a minimum the Discounted Present Value outstanding principal or net book value of the Lease as of the Payment Date next succeeding the making of such payment (plus Leases and any unpaid rents).applicable make whole premium;
(kix) In the case of each Lease which consists of a master lease and one or more exhibits or schedules thereto, the Transferor has neither assigned such master lease in its entirety, nor delivered physical possession of such master lease, to any Person other than the Issuer or the Trustee (including the trustee under another indenture in a transaction substantially similar to the transaction contemplated hereby, which other indenture provides that the lien thereof on such master lease extends only to such master lease insofar as it relates to lease schedules which are not part of the Trust Estate).
(l) As of the time of each transfer of Leases and Equipment hereunder, there are no facts or circumstances which give rise, or would give rise at any time in the future, to any right of rescission, setoff, counterclaim or defense, including the defense of usury, to obligations of any Lessee, including the obligation of such Lessee to pay all amounts due with respect to any Lease to which such Lessee is a party, and neither the operation of any of the terms of any Lease or the exercise of any right thereunder will render such Lease unenforceable in whole or in part or subject to any right of rescission, setoff, counterclaim or defense, including the defense of usury, and no such right of rescission, setoff, counterclaim or defense has been asserted with respect thereto.
(m) As of the time of each transfer of Leases and Equipment hereunder, no Lease has been amended, altered or modified in any respect, except in writing and copies of all such writings are attached to the Lease delivered to the Trustee.
(n) As of the time of each transfer of Leases and Equipment hereunder, no Lessee will have been released, in whole or in part, from any of its obligations in respect of any Lease; no Lease will have been satisfied, cancelled or subordinated, in whole, or in part, or rescinded, and no Equipment covered by any Lease will have been released from such Lease, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission.
(o) As of the time of each transfer of Leases and Equipment hereunder, each Lease was either (i) originated by the Transferor Charter or was purchased by Charter in the ordinary course of its business or in a manner which satisfies the underwriting practices set forth in the Credit and Collection Policy as in effect from time to time;
(iix) purchased the Lease has been sold to the Transferor free and clear of any Liens other than Permitted Encumbrances;
(xi) the Lease is assignable without prior written consent of the Lessee;
(xii) the Lease is denominated and payable only in U.S. dollars and the Lessor and each Lessee are located in the United States;
(xiii) the Lease is not a "consumer lease" within the meaning of Article 2A of the UCC in any jurisdiction where such Article 2A has been adopted and governs the construction thereof;
(xiv) the Lease is not subject to any guaranty by the Transferor Seller;
(xv) no adverse selection was used in selecting the Lease for value and taken into possession prior transfer to the Cut-Off Date in Transferor or the ordinary course Issuer;
(xvi) the Lessee has represented to the Seller or Vendor that it has accepted the Equipment;
(xvii) the Lessee is not a subject of its businessan insolvency or bankruptcy proceeding at the time of the transfer;
(xviii) the Lease is not a Defaulted Lease;
(xix) the maximum remaining term of the Lease does not exceed [84] months; and
(xx) the Lease is not more than 60 days past due at time of transfer to the Transferor or the Issuer; and
(xxi) (A) with respect to any Lease other than a Rental Stream Obligation, such Lease is a Finance Lease, and (B) with respect to any Lease other than a Rental Stream Obligation or a Synthetic Lease, such Lease provides that by the end of the lease term, the Lessee may elect to purchase the related Equipment upon the exercise of a nominal purchase option.
(pd) No Lease was originated in or is subject to the laws of any jurisdiction whose laws would make any of the transfers thereof under this Assignment Transferor represents and Servicing Agreement unlawful.
(q) All parties to each Lease had all requisite authority and capacity to execute such Lease.
(r) None of the Leases is a consumer lease and each Lessee has accepted the Equipment leased to it.
(s) The Booked Residual Value of the Equipment warrants that as of the Cut-Off Off-Date equals $___________.
(ti) As of the Cut-Off Date, the final lease payment on each Lease was due and payable on or prior to __________.
(u) Each Lease agreement is "chattel paper" within the meaning of The Uniform Commercial Code in the states of New York and New Jersey.
(v) As of the Cut-Off date, no more than 2% of the Leases are by Discounted Principal Balance have Equipment which is subject to vehicle titling regulations in any jurisdiction; and (ii) the information set forth in the Schedule of Leases not originated by the Transferoris true and correct.
Appears in 1 contract
Samples: Transferor Contribution and Sale Agreement (Charter Equipment Lease 1998-1 LLC)
Equipment and Leases. (a) Prior to the date of each contribution and transfer of any Leases and Equipment in accordance with Sections 1.01 and 1.02, respectively, the Transferor Originator purchased each item of Equipment from [either (i) the manufacturer or other supplier following receipt of an invoice from such manufacturer or supplier or (ii) a Lessee following confirmation that such item of Equipment was on such Lessee's premises]. The Transferor Originator has paid in full, to the manufacturer or supplier [or Lessee], as the case may be, the purchase price and any related charges in connection with the acquisition of the Equipment. The transfer contribution to the Seller and the contribution to the Issuer of the Leases and the contribution of all of the TransferorOriginator's right, title and interest in each item of Equipment to the Seller and the subsequent contribution of the Seller's interests (other than its ownership interest) in each item of Equipment to the Issuer, does not violate the terms or provisions of any Lease or any other agreement to which the Transferor Originator is a party or by which it is bound.
(b) Upon completion of the transfer transfers described in Article I hereof, the Issuer will (i) be the legal owner of the Leases (including the right to receive all payments due or to become due thereunder), (ii) have good title to its interest in each item of the Equipment subject to any Lease [other than a Nominal Buy-Out Lease (or other finance lease)Lease], and (iii) have a valid security interest in each item of Equipment subject to any Lease [other than a Nominal Buy-Out Lease (or other finance lease) and (iv) have a perfected security interest in each item of Equipment with a purchase price in excess of $25,000 subject to a Nominal Buy-Out Lease (or other finance lease)Lease]. At such time, the Leases (including the right to receive all payments due or to become due thereunder) and the TransferorOriginator's interest in the Equipment will be free and clear of all Liens other than the rights of each Lessee under the Lease to which such Lessee is a party and the Lien created by the Indenture; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens prior to, or equal or coordinate with, the Lien of the Trustee under the Indenture.
(c) At the time of each transfer of a Lease hereunder, each such Lease (i) is or will be a triple-net lease, ; (ii) is or will be a legal, valid and binding full recourse obligation of the Lessee thereunder, enforceable by the Issuer (and by the Trustee as assignee of the Issuer) against such Lessee in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors' rights and by general equity principles, (iii) is noncancellable by the Lessee and is in full force and effect, and any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to each Lease have been complied with; and (iii) the Transferor Originator has no knowledge (after due inquiry) of any challenge, dispute or claim by or against the Lessee under or affecting any Lease or of the bankruptcy or insolvency of any such Lessee and (iv) is assignableLease. As of the initial Determination Date, or the effective date of the transfer of any Additional Lease or Substitute Lease, each Lessee has paid at least one installment of rent under its respective Lease.
(d) As of the Cut-Off Date, each Lease hereunder is not a Non-Performing Lease.
(e) At the time that any item of Equipment (including the TransferorOriginator's security interest in any item not owned by it) is contributed hereunder, the Transferor Originator will have no knowledge that any item of the Equipment has suffered any loss or damage which has not been repaired.
(fe) Each Lease requires the Lessee thereunder to maintain insurance on the Equipment subject thereto in an amount at least equal to the fair market value thereof.
(gf) In addition to the insurance maintained by the Lessees with respect to the Equipment, the Transferor Originator (or an Affiliate of the TransferorOriginator) maintains (i) one or more casualty insurance policies which, in the aggregate, are in an amount not less than the aggregate Outstanding Principal Amount of the Notes, (ii) a general liability insurance policy in the aggregate amount of $1,000,000 and (iii) an excess liability insurance policy in umbrella form in the aggregate amount of $10,000,000. Each of such policies is in full force and effect and covers all equipment owned by the Transferor Originator and the IssuerSeller. All premiums in respect of such policies have been paid. Each of the Trustee and the Issuer are named as loss payees and additional insureds, as their interests may appear, on such casualty and liability policies maintained by the TransferorOriginator.
(hg) At the time of each transfer of a Lease hereunder, no Lease had outstanding rent which was 63 60 or more days past due as of the Cut-Off Date.
(ih) Each Lease was entered into or acquired by the Transferor Originator in accordance with the TransferorOriginator's regular credit approval process described in the ProspectusProspectus and the Prospectus Supplement, and no selection procedures adverse to the credit quality of the Leases were employed in selecting the Leases for contribution under this Assignment and Servicing Agreement.
(ji) The obligation of each Lessee to pay rent under each of the Leases throughout the term thereof is and will be unconditional, without any right of setoff by such Lessee and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Lessee against the Issuer, the Transferor Originator or the Servicer or any change in circumstance of such Lessee or any other circumstance whatsoever except to the extent that in the event of a casualty of any item of Equipment, the Lessee Lessee, at a minimum, is obligated to pay, in lieu of the future Lease Payments with respect to such item, an amount which equals the outstanding principal or exceeds the Discounted Present Value net book value of the Lease as of the Payment Date next succeeding the making of such payment (plus Leases and any unpaid rents)applicable make whole premium.
(kj) In the case of each Lease which consists of a master lease and one or more exhibits or schedules thereto, the Transferor Originator has neither assigned such master lease in its entirety, nor delivered physical possession of such master lease, to any Person other than the Seller, the Issuer or the Trustee (including the trustee Trustee under another indenture in a transaction substantially similar to the transaction contemplated hereby, which other indenture provides that the lien thereof on such master lease extends only to such master lease insofar as it relates to lease schedules which are not part of the Trust Estate).
(lk) As of the time of each transfer of Leases and Equipment hereunder, there are no facts or circumstances which give rise, or would give rise at any time in the future, to any right of rescission, setoff, counterclaim or defense, including the defense of usury, to obligations of any Lessee, including the obligation of such Lessee to pay all amounts due with respect to any Lease to which such Lessee is a party, and neither the operation of any of the terms of any Lease or the exercise of any right thereunder will render such Lease unenforceable in whole or in part or subject to any right of rescission, setoff, counterclaim or defense, including the defense of usury, and no such right of rescission, setoff, counterclaim or defense has been asserted with respect thereto.
(ml) As of the time of each transfer of Leases and Equipment hereunder, no Lease has been amended, altered or modified in any respect, except in writing and copies of all such writings are attached to the Lease delivered to the Trustee.
(nm) As of the time of each transfer of Leases and Equipment hereunder, no Lessee will have been released, in whole or in part, from any of its obligations in respect of any Lease; no Lease will have been satisfied, cancelled or subordinated, in whole, or in part, or rescinded, and no Equipment covered by any Lease will have been released from such Lease, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission.
(on) As of the time of each transfer of Leases and Equipment hereunder, each Lease was either (i) originated by the Transferor Originator in the ordinary course of its business or (ii) purchased acquired by the Transferor Originator for value and taken into possession prior to the Cut-Off Date in the ordinary course of its business.
(po) No The Leases do not materially violate any U.S. or state laws and no Lease was originated in or is subject to the laws of any jurisdiction whose laws would make any of the transfers thereof and contributions under this Assignment and Servicing Agreement unlawful.
(qp) All parties to each Lease had all requisite authority and capacity to execute such Lease.
(rq) None of the Leases is a consumer lease and each Lessee has accepted the Equipment leased to it.
(sr) The Booked Residual Value of the Equipment as of the Cut-Off Date equals $___________[$ ].
(s) All parties to each Lease had all requisite authority and capacity to execute such Lease.
(t) As of the Cut-Off Date, the final lease payment Final Lease Payment on each Lease was due and payable on or prior to __________[ ].
(u) Each Lease agreement is "chattel paper" within the meaning of The Uniform Commercial Code in the states of [New York and New JerseyGeorgia].
(v) As Each Lease is noncancellable by the Lessee and none of the Cut-Off dateLeases contain early termination options (except for Leases which contain early termination or prepayment clauses, no more than 2% which require the Lessee to pay the remainder of all remaining Scheduled Payments under such Lease upon such cancellation or prepayment);
(w) None of the Leases are Leases not originated subject to any guaranty by the TransferorOriginator.
(x) No adverse selection was used in selecting the Lease for transfer to the Issuer.
(y) The Leases have been sold to the Issuer free and clear of any liens and are assignable without prior written consent of the Lessee.
(z) The Leases are U.S. dollar-denominated and the Lessor and each Lessee are located in the United States.
(aa) No more than three percent (3%) of the Leases in any Asset Pool will consist of Leases with government entities as the obligor.
(bb) Each Lessee has represented to the Originator that it has accepted the Equipment.
(cc) No Lessee is a subject of an insolvency or bankruptcy proceeding at the time of the transfer.
(dd) No Lease is a Defaulted Lease.
(ee) The maximum remaining term of any Lease shall not exceed [ ] months ("Maximum Lease Term").
(ff) Each Lease provides for periodic payments.
(gg) All the Leases were originated in the United States.
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Samples: Assignment and Servicing Agreement (Ikon Receivables LLC)