Common use of Financing Contracts Clause in Contracts

Financing Contracts. (a) Section 4.26 of the Seller Disclosure Letter includes a list of each Financing Contract as of the date hereof. All Financing Records relating to the Financing Contracts, including any Credit Enhancements with respect thereto, have been furnished or made available for inspection by Purchaser. The Company or a Company Subsidiary has in its possession (i) an executed original or a true, correct and complete copy of any lease, note or chattel paper relating to each Financing Contract, (ii) an executed original or a true, correct and complete copy of all other documents relating to each such Financing Contract and each Credit Enhancement relating thereto and (iii) all other documents reasonably necessary to enforce such Financing Contracts and Credit Enhancements or perfect the security interest thereunder. (b) Each Financing Contract, and each Credit Enhancement relating thereto, is valid, binding and enforceable by the Company or the appropriate Company Subsidiary against the lessee, obligor or borrower thereunder in accordance with its written terms, except as may be limited by the Bankruptcy Exception, and (ii) arose out of a bona fide business transaction entered into in the ordinary course of business; provided, however, that Seller makes no representation or warranty with respect to the ability of the obligor under any Financing Contract or Credit Enhancement to discharge its payment obligations thereunder. (i) There are no payments under any Financing Contract that are more than 90 days past due as of December 1, 1998, (ii) the Company or the appropriate Company Subsidiary is not in breach or default of any of its material obligations under any Financing Contract or Credit Enhancement related thereto and (iii) neither the Company nor any Company Subsidiary has received any notice of (A) any event other than a payment default which is, or with notice and/or lapse of time would constitute, a material default under any Financing Contract or Credit Enhancement related thereto by any other party thereto or (B) any claim that any obligation to the Company or the appropriate Company Subsidiary under any Financing Contract or Credit Enhancement related thereto is subject to any defense, offset, claim, right of rescission or counterclaim of any party.

Financing Contracts. (a) Section 4.26 6.9(a) of the Seller Disclosure Letter includes a list of Schedule sets forth for each Financing Contract entered into by Seller on or before the date of this Agreement the following information as of the date hereof. All of this Agreement: (i) the name and address of the Obligor; (ii) the principal amount of the loan, the remaining term of the Financing Records relating to Contract and all amounts outstanding thereunder; (iii) the amortization schedule in respect of each amount outstanding under the Financing Contracts, including any Credit Enhancements with respect thereto, (iv) whether the debt under the Financing Contract is subordinate; (v) the number of shares or other units for which Securities have been furnished or made available for inspection by Purchaser. The Company or a Company Subsidiary has issued to Seller in its possession (i) an executed original or a true, correct and complete copy of any lease, note or chattel paper relating to each Financing Contract, (ii) an executed original or a true, correct and complete copy of all other documents relating to each such connection with the Financing Contract and each Credit Enhancement relating thereto the unadjusted exercise or conversion price thereunder; (vi) the material terms and amounts of any additional equity interest held by Seller in the Obligor (if any), and (iiivii) all other documents reasonably necessary to enforce such Financing Contracts and Credit Enhancements the value reflected on Seller's books of any debt or perfect equity interest in the security interest thereunderObligor. (b) Each Financing Contract, Contract and each Credit Enhancement relating thereto(i) is legal, is valid, binding and enforceable by the Company or the appropriate Company Subsidiary Seller against the lessee, obligor or borrower thereunder in accordance with its written terms, except as may be limited by the Bankruptcy and Equity Exception, and (ii) constitutes and arose out of a bona fide business transaction entered into in the ordinary course of business; provided, however, that Seller makes no representation or warranty with respect to the ability business of the obligor under any Financing Contract or Credit Enhancement to discharge its payment obligations thereunderSeller. (i) There are no payments under any Each Financing Contract that are more than 90 days past due as of December 1, 1998, (ii) the Company or the appropriate Company Subsidiary is not in breach or default of any of its material obligations under any Financing Contract or and Credit Enhancement related thereto and (iii) neither the Company nor any Company Subsidiary has received any notice of (A) any event other than a payment default which is, or with notice and/or lapse as of time would constitutethe Closing Date will be, a material default under any Financing Contract in full force and effect, free and clear of all Liens (whether or Credit Enhancement related thereto by any other party thereto or (B) any claim that any obligation not perfected), except for Permitted Liens, and to the Company or the appropriate Company Subsidiary under any Financing Contract or Credit Enhancement related thereto is Seller's Knowledge not subject to any defense, offset, claim, right of rescission or counterclaim by the Obligor under such Financing Contract in the case of a Financing Contract or by the Obligor thereunder in the case of a Credit Enhancement, or any Person claiming under any such right, (ii) each Financing Contract and Credit Enhancement is without (A) any default thereunder by Seller, (B) to Seller's Knowledge, any monetary default by the Obligor thereunder or (C) to Seller's Knowledge, any material non-monetary default by any Obligor or other party thereto, (iii) Seller is the owner and holder of all right, title and interest in each Financing Contract and each Credit Enhancement, (iv) to Seller's Knowledge, no Obligor under any Financing Contract (A) has acquired any Portfolio Property, any interest in any Portfolio Property or the use of any partyPortfolio Property pursuant to such Financing Contract for personal, family or household use or for agricultural purposes or (B) is required under any applicable Law to withhold any Taxes from payments on any such Financing Contracts, (v) Seller has in its possession a fully executed original, or valid, binding and enforceable copy, of any lease or note (and an executed original or true and correct copy of all other documents) comprising such Financing Contract and each such Credit Enhancement and all other documents required by the credit or investment approval of each Financing Contract, (vi) Seller has in its possession documentation sufficient to establish the original cost or value (as used by Seller) of all Portfolio Property for purposes of determining personal property tax liability, (vii) all payments pursuant to each Financing Contract are made directly to Seller and (viii) Seller neither is or has been, nor is committed to become, a party to any agreement, contract or commitment with respect to the Residual as to any Portfolio Property. (d) Except as set forth in Section 6.9(d) of the Disclosure Schedule, no Financing Contract is subject to any subordination agreement or Disposition Agreement. (e) Section 6.9(e) of the Disclosure Schedule sets forth (i) a list of each Credit Enhancement as of the date of this Agreement, (ii) with respect to each such Credit Enhancement which is a security deposit, the amount thereof and the depositor and (iii) with respect to each such Credit Enhancement which is a letter of credit, the issuer thereof, the maximum amount drawable thereunder, the expiration date thereof and the physical location thereof. Seller neither has accepted, nor possesses or is required, pursuant to the terms of any investment or credit approval, to have obtained any Credit Enhancement that is a certificate of deposit or stock certificate. (f) To Seller's Knowledge, each Obligor under a Financing Contract is solvent and has the ability to pay its debts and obligations under such Financing Contract. (g) With respect to each Financing Contract in which Seller has been issued Securities, to the actual knowledge of Seller each such Security was issued in compliance with the requirements of the Securities Act and Seller has not taken any actions which would violate the restrictions imposed upon Seller in connection with such Securities under the applicable securities laws, pursuant to contract or otherwise. (h) Section 6.9(a) of the Disclosure Schedule sets forth each of the Securities issued by Obligors under Financing Contracts which are held by Seller as of the date of this Agreement. To the actual knowledge of Seller, each such security or warrant has been duly authorized and validly issued and are fully paid and nonassessable and free of preemptive and similar rights. To the actual knowledge of Seller, the securities to be issued upon exercise of the warrants have been reserved for issuance to Seller by the Obligors. To the actual knowledge of Seller, upon exercise of any such warrant and payment of the exercise price, the shares of the Obligor's capital stock issuable upon such exercise shall be duly authorized, validly issued and fully paid and nonassessable and free of preemptive and similar rights.

Financing Contracts. (a) Section 4.26 6.9(a) of the Seller Disclosure Letter includes a list of Schedule sets forth for each Financing Contract entered into by Seller on or before the date of this Agreement the following information as of the date hereof. All of this Agreement: (i) the name and address of the Obligor; (ii) the principal amount of the loan, the remaining term of the Financing Records relating to Contract and all amounts outstanding thereunder; (iii) the amortization schedule in respect of each amount outstanding under the Financing Contracts, including any Credit Enhancements with respect thereto, (iv) whether the debt under the Financing Contract is subordinate; (v) the number of shares or other units for which Securities have been furnished or made available for inspection by Purchaser. The Company or a Company Subsidiary has issued to Seller in its possession (i) an executed original or a true, correct and complete copy of any lease, note or chattel paper relating to each Financing Contract, (ii) an executed original or a true, correct and complete copy of all other documents relating to each such connection with the Financing Contract and each Credit Enhancement relating thereto the unadjusted exercise or conversion price thereunder; (vi) the material terms and amounts of any additional equity interest held by Seller in the Obligor (if any), and (iiivii) all other documents reasonably necessary to enforce such Financing Contracts and Credit Enhancements the value reflected on Seller’s books of any debt or perfect equity interest in the security interest thereunderObligor. (b) Each Financing Contract, Contract and each Credit Enhancement relating thereto(i) is legal, is valid, binding and enforceable by the Company or the appropriate Company Subsidiary Seller against the lessee, obligor or borrower thereunder in accordance with its written terms, except as may be limited by the Bankruptcy and Equity Exception, and (ii) constitutes and arose out of a bona fide business transaction entered into in the ordinary course of business; provided, however, that Seller makes no representation or warranty with respect to the ability business of the obligor under any Financing Contract or Credit Enhancement to discharge its payment obligations thereunderSeller. (i) There are no payments under any Each Financing Contract that are more than 90 days past due as of December 1, 1998, (ii) the Company or the appropriate Company Subsidiary is not in breach or default of any of its material obligations under any Financing Contract or and Credit Enhancement related thereto and (iii) neither the Company nor any Company Subsidiary has received any notice of (A) any event other than a payment default which is, or with notice and/or lapse as of time would constitutethe Closing Date will be, a material default under any Financing Contract in full force and effect, free and clear of all Liens (whether or Credit Enhancement related thereto by any other party thereto or (B) any claim that any obligation not perfected), except for Permitted Liens, and to the Company or the appropriate Company Subsidiary under any Financing Contract or Credit Enhancement related thereto is Seller’s Knowledge not subject to any defense, offset, claim, right of rescission or counterclaim by the Obligor under such Financing Contract in the case of a Financing Contract or by the Obligor thereunder in the case of a Credit Enhancement, or any Person claiming under any such right, (ii) each Financing Contract and Credit Enhancement is without (A) any default thereunder by Seller, (B) to Seller’s Knowledge, any monetary default by the Obligor thereunder or (C) to Seller’s Knowledge, any material non-monetary default by any Obligor or other party thereto, (iii) Seller is the owner and holder of all right, title and interest in each Financing Contract and each Credit Enhancement, (iv) to Seller’s Knowledge, no Obligor under any Financing Contract (A) has acquired any Portfolio Property, any interest in any Portfolio Property or the use of any partyPortfolio Property pursuant to such Financing Contract for personal, family or household use or for agricultural purposes or (B) is required under any applicable Law to withhold any Taxes from payments on any such Financing Contracts, (v) Seller has in its possession a fully executed original, or valid, binding and enforceable copy, of any lease or note (and an executed original or true and correct copy of all other documents) comprising such Financing Contract and each such Credit Enhancement and all other documents required by the credit or investment approval of each Financing Contract, (vi) Seller has in its possession documentation sufficient to establish the original cost or value (as used by Seller) of all Portfolio Property for purposes of determining personal property tax liability, (vii) all payments pursuant to each Financing Contract are made directly to Seller and (viii) Seller neither is or has been, nor is committed to become, a party to any agreement, contract or commitment with respect to the Residual as to any Portfolio Property. (d) Except as set forth in Section 6.9(d) of the Disclosure Schedule, no Financing Contract is subject to any subordination agreement or Disposition Agreement. (e) Section 6.9(e) of the Disclosure Schedule sets forth (i) a list of each Credit Enhancement as of the date of this Agreement, (ii) with respect to each such Credit Enhancement which is a security deposit, the amount thereof and the depositor and (iii) with respect to each such Credit Enhancement which is a letter of credit, the issuer thereof, the maximum amount drawable thereunder, the expiration date thereof and the physical location thereof. Seller neither has accepted, nor possesses or is required, pursuant to the terms of any investment or credit approval, to have obtained any Credit Enhancement that is a certificate of deposit or stock certificate. (f) To Seller’s Knowledge, each Obligor under a Financing Contract is solvent and has the ability to pay its debts and obligations under such Financing Contract. (g) With respect to each Financing Contract in which Seller has been issued Securities, to the actual knowledge of Seller each such Security was issued in compliance with the requirements of the Securities Act and Seller has not taken any actions which would violate the restrictions imposed upon Seller in connection with such Securities under the applicable securities laws, pursuant to contract or otherwise. (h) Section 6.9(a) of the Disclosure Schedule sets forth each of the Securities issued by Obligors under Financing Contracts which are held by Seller as of the date of this Agreement. To the actual knowledge of Seller, each such security or warrant has been duly authorized and validly issued and are fully paid and nonassessable and free of preemptive and similar rights. To the actual knowledge of Seller, the securities to be issued upon exercise of the warrants have been reserved for issuance to Seller by the Obligors. To the actual knowledge of Seller, upon exercise of any such warrant and payment of the exercise price, the shares of the Obligor’s capital stock issuable upon such exercise shall be duly authorized, validly issued and fully paid and nonassessable and free of preemptive and similar rights.

Financing Contracts. (a) Section 4.26 of the Seller Disclosure Letter includes a list of each Each Financing Contract as of the date hereof. All Financing Records relating to the Financing Contracts, including any and Credit Enhancements with respect thereto, have been furnished or made available for inspection by Purchaser. The Company or a Company Subsidiary has in its possession Enhancement (i) an executed original or a true, correct and complete copy of any lease, note or chattel paper relating to each Financing Contract, (ii) an executed original or a true, correct and complete copy of all other documents relating to each such Financing Contract and each Credit Enhancement relating thereto and (iii) all other documents reasonably necessary to enforce such Financing Contracts and Credit Enhancements or perfect the security interest thereunder. (b) Each Financing Contract, and each Credit Enhancement relating thereto, is valid, binding and enforceable by the Company or the appropriate Company Subsidiary Seller against the lessee, obligor Obligor or borrower provider of such Credit Enhancement thereunder in accordance with its written terms, except as may be limited by the Bankruptcy Exception, and (ii) constitutes and arose out of a bona fide business transaction entered into in the ordinary course of business; provided, however, that Seller makes no representation or warranty with respect to the ability business of the obligor under any Financing Contract or Credit Enhancement to discharge its payment obligations thereunderSeller. (i) There are no payments under any Each Financing Contract that are more than 90 days past due as of December 1, 1998, (ii) the Company or the appropriate Company Subsidiary is not in breach or default of any of its material obligations under any Financing Contract or and Credit Enhancement related thereto is in full force and (iii) neither the Company nor any Company Subsidiary has received any notice effect, free and clear of (A) any event Encumbrances other than a payment default which isPermitted Encumbrances, or with notice and/or lapse of time would constitute, a material default under any Financing Contract or Credit Enhancement related thereto by any other party thereto or (B) any claim that any obligation to the Company or the appropriate Company Subsidiary under any Financing Contract or Credit Enhancement related thereto is and not subject to any defense, offset, claim, right of rescission or counterclaim by the Obligor or provider thereof, or any Person claiming under any such right, (ii) Seller is not in breach of or default under any Financing Contract or Credit Enhancement, no other party is in breach or default thereunder and, to Seller's Knowledge, no other event has occurred which, with notice and/or lapse of time, would constitute a default by Seller or any other party thereunder, (iii) no Obligor under any Financing Contract is required under any applicable law to withhold from payments on any such Financing Contract any interest or other withholdings for the payment of Taxes to any Governmental Entity, (iv) Seller has in its possession a fully executed original (or, if not in Seller's possession, copies certified as true and correct by an officer of the Seller as available) of any partylease or note (and an executed original or a true and correct copy of all other documents) comprising each Financing Contract and Credit Enhancement and all other documents required by Seller's credit or investment approval with respect to each Financing Contract, (v) no Financing Contract is terminable at the option of the Obligor thereunder except to the extent that such Obligor is required to pay to Seller a termination fee, (vi) Seller has in its possession Documents reasonably sufficient to establish the Original Equipment Cost of all Leased Property, and (vii) except with respect to Lease Exceptions, no Obligor with respect to any Financing Contract has notified Seller of such Obligor's intent not to make scheduled lease rental payments as and when such scheduled lease rental payments become due and payable. (c) As of the date of this Agreement, Schedule 4.1(c) sets forth a list of each Credit Enhancement constituting a Purchased Asset that is a letter of credit, guarantee, certificate of deposit or stock certificate, along with, to the extent applicable to such Credit Enhancement, (i) the issuer thereof, (ii) the maximum amount drawable thereunder, principal amount thereof or number of shares represented thereby, (iii) the expiration or maturity date thereof, if applicable, and (iv) the physical location thereof. (d) Schedule 4.1(d) sets forth all of the Required Consent Financing Contracts. (e) No Financing Contract is subject to any debt subordination agreement, participation agreement, intercreditor agreement, owner trust agreement, purchase agreement, collateral sharing agreement, residual sharing agreement, remarketing agreement or vendor recourse agreement.