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EXHIBIT 10.1
_________________________________________________________________
AMENDED AND RESTATED CONTRIBUTION AND SALE AGREEMENT
______________________
between
TRANS LEASING INTERNATIONAL, INC.
and
TL LEASE FUNDING CORP. IV
_______________________
Dated as of
November 26, 1996
_________________________________________________________________
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.02 Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE II
CONTRIBUTION OF CONTRIBUTED ASSETS;
SALE OF PURCHASED ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.01 [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.02 Contributions and Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.03 Contribution and Sale of Additional Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.04 Custody of Lease Files . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE III
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.01 Representations and Warranties of Trans Leasing . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.02 Representations and Warranties of TLFC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.03 Purchase of Leases and Equipment by Trans Leasing . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.04 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE IV
COVENANTS OF TRANS LEASING AND TLFC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.01 Trans Leasing Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.02 TLFC Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.03 Assignment; Grant of Security Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE V
TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.01 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.02 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE VI
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.01 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.02 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.03 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.04 Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.05 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.06 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.07 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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6.08 Binding Effect; Third-Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.09 Merger and Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.10 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.11 Schedules and Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.12 No Petition Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.13 Confidential Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
LIST OF EXHIBITS
Exhibit A Form of Assignment for the Closing Date Assets
Exhibit B Form of Assignment for the Additional Assets
Exhibit C Forms of Lease
LIST OF SCHEDULES
Lease Schedule
Contributed Lease Schedule
Purchased Lease Schedule
Closing Date Lease Schedule
Excluded Lease Schedule
Lease Criteria Schedule
Specified Portfolio Characteristics Schedule
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AMENDED AND RESTATED CONTRIBUTION AND SALE AGREEMENT
THIS AMENDED AND RESTATED CONTRIBUTION AND SALE AGREEMENT,
dated as of November 26, 1996 (this "Agreement"), is entered into between Trans
Leasing International, Inc. ("Trans Leasing"), a Delaware corporation, and TL
Lease Funding Corp. IV ("TLFC"), a Delaware corporation. Capitalized terms used
and not otherwise defined herein have the respective meanings set forth in
Article I below.
Trans Leasing in the ordinary course of its business
originates and acquires equipment and other leases in the United States.
Trans Leasing and TLFC entered into a Contribution and Sale
Agreement dated as of November 28, 1995 (the "Original Agreement"), pursuant to
which, among other things, Trans Leasing transferred the Purchased Leases, the
Contributed Leases, its interests in the related Equipment and other assets to
TLFC upon the terms and conditions set forth in the Original Agreement.
Trans Leasing and TLFC desire to amend and restate in its
entirety the Original Agreement.
On the date hereof, Trans Leasing desires to sell and
contribute to TLFC additional Leases, its interests in the related Equipment
and other assets and it is contemplated that, from time to time after the date
hereof, Trans Leasing and TLFC may agree that Trans Leasing will transfer
additional Leases, its interests in the related Equipment and other assets to
TLFC, in each case, upon the terms and conditions set forth in this Agreement.
It is contemplated that, TLFC will transfer the Leases, its
interests in the related Equipment and other assets to the Trust, which in turn
will pledge such Leases, interests in the related Equipment and other assets to
the Indenture Trustee, and that, following such transfers and pledge, Trans
Leasing, in its capacity as Servicer pursuant to the Pooling and Servicing
Agreement, will administer and service such Leases and the related Equipment.
In connection with the transactions contemplated hereby, and
as contemplated by the Original Agreement, Trans Leasing is willing to restate
certain representations, warranties, covenants and agreements made under the
Original Agreement and make additional representations and warranties,
covenants and agreements.
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In consideration of the mutual covenants set forth in this
Agreement, and other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, Trans Leasing and TLFC agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Whenever used in this Agreement,
the following words and phrases will have the following meanings:
"Addition Cut-Off Date" means, with respect to an Additional
Lease, the close of business on the last day of the month preceding the related
Addition Date.
"Addition Date" has the meaning set forth in Section 2.03(a).
"Additional Assets" means all right, title and interest of
Trans Leasing in, to, and under (i) the Additional Leases (including Trans
Leasing's obligations under the Additional Leases) and all monies due or to
become due thereunder after the related Addition Cut-Off Date, (ii) the related
Equipment (other than any licensed products that may accompany any of such
Equipment), (iii) the Lease Files for the Additional Leases, (iv) any Insurance
Policies and the related Insurance Proceeds with respect to the Additional
Leases and (v) all income and proceeds relating to the foregoing.
"Additional Leases" means the Leases listed on any Additional
Lease Schedule delivered by Trans Leasing to TLFC pursuant to Section 2.03(a).
"Assets" means the Purchased Assets, the Contributed Assets,
the Closing Date Assets and any Additional Assets, but does not include any
Excluded Assets.
"Business Day" means any day other than a Saturday, a Sunday
or a day on which banking institutions in Chicago, Illinois, Wilmington,
Delaware or New York, New York are authorized or obligated by any law or
regulation to be closed.
"Closing Date" means November 26, 1996.
"Closing Date Assets" means all right, title and interest of
Trans Leasing in, to and under (i) the Closing Date Leases (including all of
Trans Leasing's obligations under the Closing
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Date Leases) and all monies due or to become due under the Closing Date Leases
after the Cut-Off Date, (ii) the related Equipment (other than any licensed
products that may accompany any of such Equipment), (iii) the Lease Files for
the Closing Date Leases, (iv) any Insurance Policies and the related Insurance
Proceeds with respect to the Closing Date Leases and (v) all income and
proceeds relating to the foregoing.
"Closing Date Leases" means the Leases listed on the Closing
Date Lease Schedule attached to the assignment executed and delivered by Trans
Leasing to TLFC as described in Section 2.02(c).
"Common Stock" means 1,000 shares of the common stock of TLFC,
par value $0.01 per share, constituting all of its authorized capital stock.
"Contributed Assets" means all right, title and interest of
Trans Leasing in, to and under (i) the Contributed Leases (including Trans
Leasing's obligations under the Contributed Leases) and all monies due or to
become due thereunder after the date set forth in the related assignments with
respect thereto, (ii) the related Equipment (other than any licensed products
that may accompany any of such Equipment), (iii) the Lease Files for the
Contributed Leases, (iv) any Insurance Policies and the related Insurance
Proceeds with respect to the Contributed Leases and (v) all income and proceeds
relating to the foregoing.
"Contributed Leases" means the Leases listed on the
Contributed Lease Schedule, as amended to reflect the contribution by Trans
Leasing to TLFC of certain additional Leases on the Subsequent Closing Dates,
attached to the Original Agreement.
"Credit Agreement" means the Revolving Credit and Term Loan
and Security Agreement between TLFC and the Lender, dated as of November 28,
1995, as amended, together with all amendments, restatements, supplements and
modifications thereof or thereto.
"Cut-Off Date" means October 31, 1996.
"Discounted Lease Balance" has the meaning ascribed to such
term in the Pooling and Servicing Agreement.
"Discounted Lease and Residual Balance" has the meaning
ascribed to such term in the Pooling and Servicing Agreement.
"Equipment" means the assets leased to a Lessee pursuant to
any Lease and/or, unless the context otherwise requires, a security interest
therein.
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"Excluded Assets" means all right, title and interest of Trans
Leasing in, to and under (i) the Excluded Leases (including Trans Leasing's
obligations under the Excluded Leases) and all monies due or to become due
thereunder, (ii) the Equipment related to the Excluded Lease (other than any
licensed products that may accompany any of such Equipment), (iii) the Lease
Files for the Excluded Leases, (iv) any Insurance Policies and the related
Insurance Proceeds with respect to the Excluded Leases and (v) all income and
proceeds relating to the foregoing.
"Excluded Leases" means Contributed Leases and Purchased
Leases listed in the Excluded Leases Schedule attached hereto.
"Filing Locations" means the states of Arizona, California,
Delaware, Florida, Georgia, Illinois, Maryland, Michigan, New Jersey, New York,
North Carolina, Ohio, Pennsylvania, Texas and Virginia.
"Governmental Authority" means (a) any federal, state, county,
municipal or foreign government, or political subdivision thereof, (b) any
governmental or quasi-governmental agency, authority, board, bureau,
commission, department, instrumentality or public body, (c) any court or
administrative tribunal or (d) with respect to any Person, any arbitration
tribunal or other non-governmental authority to the jurisdiction of which such
Person has consented.
"Holders" has the meaning set forth in the Pooling and
Servicing Agreement.
"Indenture" means the Indenture of even date herewith between
the Trust and the Indenture Trustee, as such agreement may be amended, modified
or supplemented from time to time.
"Indenture Trustee" means Manufacturers and Traders Trust
Company, as Indenture Trustee under the Indenture, or any successor thereto.
"Initial Closing Date" means November 28, 1995.
"Insurance Policy" means with respect to any Lease, an
insurance policy covering physical damage to or loss of the related Equipment.
"Insurance Proceeds" means, depending on the context, any
amounts payable or any payments made, to the Servicer under an Insurance
Policy.
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"Interested Parties" means the Trust, the Holders and the
Indenture Trustee, in each case to the extent of their respective interests in
the Assets.
"Lease" means each agreement, including, as applicable,
schedules, subschedules, summary schedules, supplements and amendments to a
master lease, pursuant to which (immediately prior to the acquisition thereof
by TLFC) Trans Leasing, as lessor, leases specified assets to a Lessee at a
specified monthly or quarterly rental, and which is identified in the Lease
Schedule, including all Contributed Leases, Purchased Leases, Closing Date
Leases and Additional Leases but not including any Excluded Leases; provided,
that, from and after the date on which a Lease is purchased by Trans Leasing
pursuant to Section 3.03 of this Agreement or a Lease is otherwise purchased by
Trans Leasing, such Lease shall no longer be a Lease for purposes of this
Agreement.
"Lease File" means, with respect to any Lease, the Lease and
all other documents relating to such Lease in the possession of Trans Leasing
or held by the Servicer under the Pooling and Servicing Agreement, as the
context requires.
"Lease Management System" means the computerized electronic
lease management system maintained by Trans Leasing for all Leases and other
agreements similar to the Leases.
"Lease Schedule" means a list of all Leases included in the
Assets, as amended to show the deletion of Leases purchased by Trans Leasing
pursuant to Section 3.03 or otherwise transferred by TLFC to Trans Leasing.
"Lender" means First Union National Bank of North Carolina.
"Lessee" means with respect to any Lease, the Person or
Persons obligated to make payments with respect to such Lease, including any
guarantor thereof.
"Lien" means any mortgage, pledge, hypothecation, assignment
for security, security interest, encumbrance, xxxx, xxxx or charge of any kind,
whether voluntarily incurred or arising by operation of law or otherwise,
affecting any Property, including any agreement to grant any of the foregoing,
any conditional sale or other title retention agreement, any lease in the
nature of a security interest, and the filing of or agreement to file or
deliver any financing statement (other than a precautionary financing statement
with respect to a lease that is not in the nature of a security interest, and
until five Business Days after the Closing Date, financing statements filed in
connection with the
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Credit Agreement, other than those filed in Delaware, Illinois and New York)
under the UCC or comparable law of any jurisdiction.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel to Trans Leasing or other counsel, acceptable to TLFC.
"Person" means any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization, association,
corporation, institution, public benefit corporation, firm, joint stock
company, estate, entity or Governmental Authority.
"Pooling and Servicing Agreement" means the Pooling and
Servicing Agreement dated as of the date hereof among TLFC, the Trust and Trans
Leasing, in its capacity as the initial servicer thereunder, as such agreement
may be amended, modified or supplemented from time to time.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, whether tangible or intangible.
"Purchased Assets" means all right, title and interest of
Trans Leasing in, to, and under (i) the Purchased Leases (including Trans
Leasing's obligations under the Purchased Leases), and all monies due or to
become due thereunder after the date set forth in the related assignments with
respect thereto, (ii) the related Equipment (other than any licensed products
that may accompany any of such Equipment), (iii) the Lease Files for the
Purchased Leases, (iv) any Insurance Policies and the related Insurance
Proceeds with respect to the Purchased Leases and (v) all income and proceeds
relating to the foregoing.
"Purchased Leases" means the Leases listed on the Purchased
Lease Schedule, as amended to reflect the sale by Trans Leasing to TLFC of
certain additional Leases on the Subsequent Closing Dates, attached to the
Original Agreement.
"Responsible Officer" of any Person means any of the
President, Executive Vice President, Vice President, Chief Financial Officer,
Treasurer, Corporate Controller or Trust Officer of such Person.
"Scheduled Lease Payments" means with respect to any Lease,
the monthly or quarterly rent payments scheduled to be made by the related
Lessee under the terms of such Lease after the Cut-Off Date or, with respect to
any Additional Lease, after the applicable Addition Cut-Off Date, in each case
after giving effect
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to any adjustments as a result of a portion of such Lease being terminated
prior to its scheduled expiration date (it being understood that Scheduled
Lease Payments do not include any Excluded Amounts).
"Servicer" means, at any time, any Person then acting as
servicer under the Pooling and Servicing Agreement, and shall initially refer
to Trans Leasing in its capacity as the initial servicer under the Pooling and
Servicing Agreement.
"Subsequent Closing Dates" has the meaning set forth in Section
2.02(b).
"Trust" means TLFC IV Equipment Lease Trust 1996-1, a Delaware
business trust.
"Trust Certificate" has the meaning ascribed to such term in
the Trust Agreement of even date herewith between TLFC and Bankers Trust
(Delaware), as Owner Trustee.
"UCC" means the Uniform Commercial Code as the same may, from
time to time, be in effect in the State of Illinois provided, however, in the
event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of the Lien of TLFC or an Interested Party
in and to the Collateral is governed by the Uniform Commercial Code as in
effect in a jurisdiction other than the State of Illinois the term "UCC" shall
mean the Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such attachment, perfection or
priority and for purposes of definitions related to such provisions.
"Warranty Event" means, with respect to any Lease, that Trans
Leasing is obligated to purchase such Lease pursuant to Section 3.03.
"Warranty Purchase Price" means, with respect to any Lease and
the related Equipment to be purchased by Trans Leasing, the amount set forth as
such in the Pooling and Servicing Agreement.
1.2 Other Definitional Provisions.
(a) Terms used in Related Documents. Each term
defined in this Agreement will have the meaning assigned to such term in this
Agreement when used in any certificate or other document made or delivered
pursuant to this Agreement, unless such term is otherwise defined therein.
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(b) Accounting Terms. As used in this Agreement,
accounting terms which are not defined in Section 1.01 have the respective
meanings given to them under generally accepted accounting principles as in
effect on the date of this Agreement. To the extent that the definitions of
accounting terms in this Agreement are inconsistent with the meanings of such
terms under generally accepted accounting principles, the definitions contained
in this Agreement will control.
(c) "Hereof," etc. The words "hereof," "herein,"
"hereunder" and words of similar import when used in this Agreement will refer
to this Agreement as a whole and not to any particular provision of this
Agreement, and Section, Schedule and Exhibit references contained in this
Agreement are references to Sections, Schedules and Exhibits in or to this
Agreement, unless otherwise specified.
(d) Number and Gender. Each defined term used in
this Agreement has a comparable meaning when used in its plural or singular
form. Each gender-specific term used in this Agreement has a comparable
meaning whether used in a masculine, feminine or gender-neutral form.
(e) Including. Whenever the term "including"
(whether or not that term is followed by the phrase "but not limited to" or
"without limitation" or words of similar effect) is used in this Agreement in
connection with a listing of items within a particular classification, that
list will be interpreted to be illustrative only and will not be interpreted as
a limitation on, or an exclusive list of, the items within that classification.
ARTICLE II
CONTRIBUTION OF CONTRIBUTED ASSETS;
SALE OF PURCHASED ASSETS;
SALE OF ADDITIONAL ASSETS
2.1 [Reserved]
2.2 Contributions and Sales.
(a) Initial Contribution and Sale. On the
Initial Closing Date, Trans Leasing made a capital contribution to TLFC of
certain of the Contributed Assets, and Trans Leasing delivered to TLFC an
executed assignment with respect thereto. Such capital contribution was made
without recourse to Trans Leasing, subject to the obligations of Trans Leasing
pursuant to Section 3.03. For a purchase price of $16,035,208 in cash, on the
Initial Closing Date,
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Trans Leasing sold to TLFC certain of the Purchased Assets and delivered to
TLFC an executed assignment with respect thereto. Except for the obligations
of Trans Leasing pursuant to Section 3.03, the sale of such Purchased Assets
was made without recourse to Trans Leasing.
(b) Subsequent Contributions, Sales and
Transfers. On December 28, 1995, April 1, 1996, June 10, 1996, August 1, 1996
and October 1, 1996 (the "Subsequent Closing Dates"), Trans Leasing made
capital contributions to TLFC of certain of the Contributed Assets and sold
certain of the Purchased Assets to TLFC for a purchase price of $18,001,338,
$30,033,803, $18,195,640, $30,290,594 and $15,615,668, respectively (the
"Subsequent Purchase Prices"), in cash, and certain Assets described below. In
each case, Trans Leasing delivered to TLFC an executed assignment with respect
thereto. Except for the obligations of Trans Leasing pursuant to Section 3.03,
the contributions of such Contributed Assets and the sales of such Purchased
Assets were made without recourse to Trans Leasing. In addition, on the
Subsequent Closing Dates, TLFC transferred to Trans Leasing certain Assets
which theretofore constituted Contributed Assets and Purchased Assets, and, in
each case, TLFC executed an assignment with respect thereto.
(c) Closing Date Contributions and Sales. Trans
Leasing agrees to contribute and sell to TLFC, and TLFC agrees to accept and
purchase on the date hereof, the Closing Date Assets, as an additional
contribution by Trans Leasing to the equity of TLFC and in exchange for the
payment and delivery to Trans Leasing by TLFC of $32,379,241.97 in cash, the
Excluded Assets and a one percent (1%) interest in the Trust Certificate, with
the value ascribed to each Lease and the related Equipment equal to the
Discounted Lease and Residual Balance with respect to such Lease. On the date
hereof, Trans Leasing will execute and deliver to TLFC an assignment with
respect to the Closing Date Assets in the form attached as Exhibit A. Such
contribution and sale will be made without recourse, subject to the obligations
of Trans Leasing pursuant to Section 3.03.
(d) Distribution to Trans Leasing. TLFC agrees
to transfer to Trans Leasing the Excluded Assets as described in (c) above.
(e) Recordation. Trans Leasing agrees to record
and file at its own expense financing statements and continuation statements
with respect to the Leases meeting the requirements of applicable state law, in
such manner and in such jurisdictions as are necessary to perfect and to
maintain the perfection of the contributions and sales of the Leases and Trans
Leasing's interests
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in the related Equipment contributed or sold by Trans Leasing to TLFC as
described in this Section 2.02, and to deliver a file-stamped copy of such
financing statements or other evidence of such filings to TLFC promptly after
the Closing Date; provided, however, that (i) the Lease Files for the Leases
will not be physically delivered to TLFC but instead will be held by the
Servicer pursuant to the Pooling and Servicing Agreement, (ii) Trans Leasing
will not be required to file any financing or continuation statements with
respect to the Equipment in any jurisdiction other than in the Filing
Locations, (iii) the financing statements to be filed in the Filing Locations
other than the States of Delaware, Illinois and New York will not be filed
until after the Closing Date (and Trans Leasing agrees to make such filings
within 5 Business Days of the Closing Date) and (iv) Trans Leasing will not be
required to cause the certificate of title or other title document to any
Equipment consisting of motor vehicles to be transferred to TLFC or transferred
from TLFC to the Trust or the security interest of the Indenture Trustee
granted pursuant to the Indenture marked on such certificate of title or other
title document.
(f) Marking of Lease Management System. On or
prior to the Closing Date, Trans Leasing will, for the benefit of TLFC and the
Interested Parties, at its own expense, cause the Lease Management System to be
marked to show that the Contributed Assets, the Purchased Assets and the
Closing Date Assets have been contributed and sold to TLFC in accordance with
this Agreement, sold by TLFC to the Trust pursuant to the Pooling and Servicing
Agreement and pledged by the Trust to the Indenture Trustee pursuant to the
Indenture.
2.3 Contribution and Sale of Additional Assets.
(a) Additional Sales and Contributions. From
time to time after the date hereof, TLFC may request to purchase Additional
Assets from Trans Leasing. If Trans Leasing so agrees to sell any Additional
Assets, the purchase price thereof shall be an amount agreed to by Trans
Leasing and TLFC, which price shall represent reasonably equivalent value
therefor, shall be no less than the fair market value of such Additional Assets
as then determined, including consideration of then current interest rates, and
shall be no less than the Discounted Lease and Residual Balance of the related
Additional Lease (as determined pursuant to the Pooling and Servicing
Agreement) as of the related Addition Cut-Off Date. From time to time after
the date hereof, in connection with a sale of Additional Assets or otherwise,
Trans Leasing may contribute to TLFC as an additional contribution to the
equity of TLFC, Additional Assets. The date on which any such sale or
contribution of Additional Assets takes place is herein referred to as a
"Addition Date." The purchase price for any Additional Assets
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to be purchased by TLFC will be payable by TLFC on the related Addition Date in
cash. On each Addition Date, Trans Leasing will deliver to TLFC an executed
assignment substantially in the form of Exhibit B attached hereto together with
a schedule identifying each Additional Lease included in the Additional Assets
(an "Additional Lease Schedule"). Except for the obligations of Trans Leasing
pursuant to Section 3.03, the sale and contribution of any Additional Assets
will be without recourse to Trans Leasing.
(b) Recordation. In connection with any
contribution or sale of Additional Assets, Trans Leasing agrees to record and
file at its own expense financing statements and continuation statements with
respect to the related Additional Leases meeting the requirements of applicable
state law, in such manner and in such jurisdictions as are necessary to perfect
and to maintain the perfection of the contributions and sales of the Additional
Leases by Trans Leasing to TLFC and Trans Leasing's interests in the related
Equipment contributed or sold by Trans Leasing to TLFC as described in this
Section 2.03, and to deliver a file-stamped copy of such financing statements
or other evidence of such filings to TLFC promptly after the applicable
Addition Date; provided, however, that (i) the Lease Files for such Additional
Leases will not be physically delivered to TLFC but instead will be held by the
Servicer pursuant to the Pooling and Servicing Agreement, (ii) Trans Leasing
will not be required to file any financing or continuation statements with
respect to the Equipment in any jurisdiction other than the Filing Locations
and (iii) Trans Leasing will not be required to cause the certificate of title
or other title document of any Equipment consisting of motor vehicles to be
transferred to TLFC or transferred from TLFC to the Trust or the pledge to the
Indenture Trustee pursuant to the Indenture marked on such certificate of title
or other document.
(c) Marking of Lease Management System. On or
prior to the applicable Addition Date, in connection with any contribution or
sale of Additional Assets, Trans Leasing will, at its own expense, cause the
Lease Management System to be marked to show that such Additional Assets have
been contributed or sold to TLFC in accordance with this Agreement and, as
necessary, further transferred and pledged.
2.4 Custody of Lease Files. In connection with the
contribution and sale of the Assets, Trans Leasing, in its capacity as the
Servicer pursuant to the Pooling and Servicing Agreement, will retain custody
of the Lease Files and any related evidence of Insurance Policies, Insurance
Proceeds and other payments.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01 Representations and Warranties of Trans Leasing. Trans
Leasing confirms and makes the following representations and warranties for the
benefit of TLFC and the Interested Parties, on which TLFC has relied and will
rely in accepting the contribution of and purchasing the Assets and on which
the Interested Parties will rely in connection with the transactions
contemplated by the Pooling and Servicing Agreement. Unless otherwise
indicated, such representations and warranties, with respect to the Assets
(other than any Additional Assets), speak as of the Closing Date and, with
respect to any Additional Assets, as of the related Addition Date, but in each
case will survive the contribution and the sale of the Assets to TLFC and the
transfer or grant of a security interest therein to any Interested Party.
(a) Representations and Warranties with respect
to the Assets. As to the Assets:
(i) the information with respect to the Leases
and the related Equipment in the Lease Schedule is true and correct in
all material respects;
(ii) no provision of any Lease has been waived,
altered or modified in any respect, except by an instrument or
document contained in the related Lease File and except with respect
to a Skipped Payment (as defined in the Pooling and Servicing
Agreement);
(iii) each Lease is a valid and binding payment
obligation of the related Lessee and is enforceable in accordance with
its terms, except as such enforceability may be limited by (A)
applicable bankruptcy, insolvency, moratorium, reorganization or other
similar laws now or hereafter in effect affecting the enforcement of
creditors' rights generally, and (B) general principles of equity
(whether considered in a suit at law or in equity);
(iv) the Leases are not and will not be subject to
rights of rescission, setoff, counterclaim or defense;
(v) the Leases, at the time they were made, did
not violate applicable state or federal laws;
(vi) each Lease contains provisions requiring the
Lessee to assume all risk of loss or malfunction of the related
Equipment;
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16
(vii) except as set forth in the provisos of
Sections 2.02(e) and 2.03(b), all action has or will be taken by Trans
Leasing to transfer all its right, title and interest in, to and under
the Leases and the related Equipment to TLFC;
(viii) each party to a Lease had the authority and
legal capacity to execute such Lease at the time that it did so;
(ix) no Asset has been sold, transferred, assigned
or pledged by Trans Leasing to any Person (other than TLFC), and
immediately prior to contributing or selling such Asset to TLFC, Trans
Leasing is the sole owner of, and holder of title to, the Leases, the
related Equipment (or a security interest therein) and the other
Assets free and clear of any Liens (except for the interests of
Lessees under the Leases), and immediately following the transfer by
Trans Leasing to TLFC of the Assets, the Assets will be free and clear
of all Liens (except for the interests of Lessees under the Leases and
interests of the Interested Parties);
(x) no Lease requires the substitution, addition
or exchange of any item of Equipment which would result in any
reduction of the Scheduled Lease Payments pursuant to such Lease;
(xi) there is only one secured party's original of
each Lease that constitutes "chattel paper" for purposes of the UCC
and such original has not been delivered to any Person other than the
Servicer pursuant to the Pooling and Servicing Agreement;
(xii) Trans Leasing has duly fulfilled in all
material respects all obligations on its part in connection with the
Leases and has done nothing to materially impair the rights of TLFC or
any Interested Party in the Leases or the proceeds with respect
thereto;
(xiii) to the best of Trans Leasing's knowledge, no
proceedings or investigations are pending or have been threatened
asserting the invalidity of any Lease or seeking any determination or
ruling that might adversely and materially affect the validity or
enforceability of any Lease;
(xiv) except as set forth in the provisos of
Sections 2.02(e) and 2.03(b), all filings necessary to evidence the
contribution and sale of the Leases to TLFC have been made in all
appropriate jurisdictions;
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17
(xv) none of the Lessees are, to Trans Leasing's
knowledge, the subject of bankruptcy or other insolvency proceedings;
(xvi) each Lessee's billing address is in the
United States;
(xvii) all payments under the Leases are required to
be made in United States dollars;
(xviii) the substance of each Lease is substantially
similar to one of the forms of Lease in Exhibit C attached hereto,
except that any guaranty provision may have been varied or deleted and
any purchase option at Lease termination may be contained in a
separate side letter; provided that any variation or deletion will not
cause any representation herein with respect to such Lease to be
untrue and will not reasonably be expected to adversely affect the
transactions contemplated by this Agreement and the Pooling and
Servicing Agreement;
(xix) each of the Leases satisfies the criteria set
forth on the Lease Criteria Schedule attached hereto;
(xx) the Lease Schedule (as attached hereto) is a
true and complete list of all Leases and each Additional Lease
Schedule will be a true and complete list of all Additional Leases to
be transferred on the related Addition Date, in each case identified
by, among other things, its Lease Number, its original Equipment cost,
the effective date of such Lease, the original term of such Lease, and
the amount of Scheduled Lease Payments pursuant to such Lease, in each
case as of the Cut-Off Date or the related Addition Cut-Off Date,
respectively; and
(xxi) (A) as of the Closing Date, the Leases
satisfy, as of the Cut-Off Date, the criteria set forth on the
Specified Portfolio Characteristics Schedule attached hereto and (B)
as of any Addition Date, the addition of the related Additional Leases
will not cause any of the criteria set forth on the attached Specified
Portfolio Characteristics Schedule attached hereto not to be satisfied
as of the related Addition Cut-Off Date or, if any of such criteria
are not satisfied as of the first day of the month in which the
related Addition Date occurs (without giving effect to the addition of
such Additional Leases), such addition will not increase the amount by
which such criteria are not satisfied (in each case, based on the
characteristics of such Additional Leases as of the related Addition
Cut-Off Date).
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(b) Representations and Warranties with respect to
Trans Leasing. As to Trans Leasing:
(i) Organization and Good Standing. Trans
Leasing is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, with all requisite
corporate power and authority to own its properties and to conduct its
business as presently conducted;
(ii) Due Qualification. Trans Leasing is
qualified to do business as a foreign corporation, is in good
standing, and has obtained all licenses and approvals required under
the laws of, all states in which the ownership or lease of its
property, the performance of its obligations pursuant to this
Agreement or the conduct of its business requires such qualification,
standing, license or approval, except to the extent that the failure
to so qualify, maintain such standing or be so licensed or approved,
would not, in the aggregate, materially and adversely affect the
ability of Trans Leasing to comply with this Agreement;
(iii) Power and Authority. Trans Leasing has the
corporate power and authority to execute and deliver this Agreement
and to carry out its terms, and Trans Leasing has duly authorized the
execution, delivery, and performance of this Agreement by all
requisite corporate action;
(iv) Valid Contribution and Sale; Binding
Obligations. The contributions and sales of the Contributed Assets,
the Closing Date Assets and the Purchased Assets constitute, and each
contribution and sale of any Additional Assets will constitute, a
legal and valid contribution, assignment, transfer and conveyance to
TLFC of all right, title and interest of Trans Leasing in, to and
under such Assets, and such Assets will be held by TLFC free and clear
of any Lien of any Person claiming through or under Trans Leasing,
except for Liens permitted under, or to be created by, the Pooling and
Servicing Agreement and the Indenture; and this Agreement constitutes
a legal, valid and binding obligation of Trans Leasing, enforceable
against Trans Leasing in accordance with its terms, except as such
enforceability may be limited by (A) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights
generally and (B) general principles of equity (whether considered in
a suit at law or in equity);
(v) No Violation. The consummation of the
transactions contemplated by, and the performance of the terms of,
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this Agreement by Trans Leasing (with or without the giving of any
notice or the lapse of time) will not (after giving effect to all
consents and waivers received on or prior to the date hereof or the
Addition Date, as the case may be) (A) conflict with, result in any
breach of any of the terms or provisions of or constitute a default
under the certificate of incorporation or by-laws of Trans Leasing or
any term of any indenture, agreement, mortgage, deed of trust or other
instrument to which Trans Leasing is a party or by which it is bound;
(B) result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument (other than this
Agreement); or (C) violate any legal requirement applicable to Trans
Leasing or any of its properties in any manner; which conflict,
breach, default, Lien or violation would have a material and adverse
effect on the ability of Trans Leasing to comply with this Agreement;
(vi) No Consent. No consent, approval,
authorization, order, registration, filing, qualification, license or
permit of or with any Governmental Authority having jurisdiction over
Trans Leasing or any of its properties or assets is required to be
obtained by or with respect to Trans Leasing in connection with the
execution, delivery and performance by Trans Leasing of this Agreement
and the consummation of the transactions contemplated herein;
(vii) No Proceedings. To the best of Trans
Leasing's knowledge, there are no proceedings or investigations
pending or threatened before any Governmental Authority having
jurisdiction over Trans Leasing or its properties against Trans
Leasing or its properties (A) asserting the invalidity of this
Agreement, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, or (C) seeking any
determination or ruling that might (in the reasonable judgment of
Trans Leasing) materially and adversely affect the performance by
Trans Leasing of its obligations under, or the validity or
enforceability of, this Agreement;
(viii) Insolvency. Trans Leasing is not insolvent
and will not be rendered insolvent by the consummation of the
transactions contemplated by this Agreement;
(ix) Principal Place of Business. Trans Leasing's
principal place of business and chief executive office are in the
State of Illinois, County of Xxxx;
(x) Ability to Perform. At the date hereof,
Trans Leasing does not believe, nor does it have any reasonable
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cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
(xi) Fair Consideration. The consideration
received by Trans Leasing in exchange for the contribution and sale of
the Assets contributed and sold on the Initial Closing Date and the
Subsequent Closing Dates was, and for the contribution and sale of the
Assets on the date hereof and on each Addition Date will be, fair
consideration having value equivalent to or in excess of the value of
the Assets transferred on each such date;
(xii) Bulk Transfer Provisions. The sale,
transfer, assignment and conveyance of the Leases and its interests in
the related Equipment by Trans Leasing described in this Agreement is
not subject to the bulk transfer or any similar statutory provisions
in effect in any applicable jurisdiction;
(xiii) Transfer Taxes. The sale, transfer,
assignment and conveyance of the Assets by Trans Leasing described in
this Agreement will not result in the imposition of any tax Lien or
any liability of TLFC for any tax on such sale, transfer, assignment
and conveyance; and
(xiv) Common Stock. Trans Leasing owns all of the
Common Stock free and clear of all mortgages, assignments, pledges,
security interests, warrants, options and rights to purchase.
3.02 Representations and Warranties of TLFC. TLFC makes the
following representations and warranties on which Trans Leasing has and will
rely in contributing and selling any Assets. Such representations and
warranties speak as of the Closing Date and each Addition Date, but will
survive the contribution and sale of the Assets to TLFC and the transfer and
pledge of the Assets to the Interested Parties.
(a) Organization and Good Standing. TLFC is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, with all requisite corporate power and authority
to own its properties and to conduct its business as presently conducted and to
enter into and perform its obligations under this Agreement;
(b) Due Qualification. TLFC is qualified to do
business as a foreign corporation, is in good standing, and has obtained all
licenses and approvals required under the laws of, all states in which the
ownership or lease of its property or the conduct of its business requires such
qualification, standing,
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license or approval, except to the extent that the failure to so qualify,
maintain such standing or be so licensed or approved would not, in the
aggregate, materially and adversely affect the ability of TLFC to perform its
obligations under this Agreement;
(c) Power and Authority. TLFC has the corporate
power and authority to execute and deliver this Agreement and to carry out its
terms, and TLFC has duly authorized the execution, delivery, and performance of
this Agreement by all requisite corporate action;
(d) Binding Obligations. This Agreement
constitutes a legal, valid and binding obligation of TLFC, enforceable in
accordance with its terms, except as such enforcement may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other laws now or hereafter in effect affecting the enforcement
of creditors' rights generally and (ii) general principles of equity (whether
considered in a suit at law or in equity);
(e) No Violation. The consummation of the
transactions contemplated by, and the fulfillment of the terms of, this
Agreement by TLFC (with or without the giving of any notice or the lapse of
time) will not (after giving effect to all consents and waivers received on or
prior to the date hereof or such Addition Date, as the case may be) (i)
conflict with, result in any breach of any of the terms and provisions of or
constitute a default under the certificate of incorporation or by-laws of TLFC
or any term of any indenture, agreement, mortgage, deed of trust or other
instrument to which TLFC is a party or by which it is bound; (ii) result in the
creation or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement, mortgage, deed of trust or other
instrument (other than this Agreement); or (iii) violate any legal requirement
applicable to TLFC or any of its properties in any manner; which conflict,
breach, default, Lien or violation would have a material and adverse effect on
the ability of TLFC to comply with this Agreement;
(f) No Proceedings. To the best of TLFC's
knowledge, there are no proceedings or investigations pending or threatened
before any Governmental Authority having jurisdiction over TLFC or its
properties against TLFC or its properties (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, or (iii) seeking any determination or ruling
that might materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this Agreement;
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(g) Insolvency. TLFC is not insolvent and will
not be rendered insolvent by the consummation of the transactions contemplated
by this Agreement and has an adequate amount of capital to conduct its business
in the ordinary course and to carry out its obligations under this Agreement;
(h) Ability to Perform. As of the date hereof,
TLFC does not believe, nor does it have any reasonable cause to believe, that
it cannot perform each and every covenant contained in this Agreement;
(i) Common Stock. Trans Leasing is the
registered owner of all the issued and outstanding capital stock of TLFC, and
the Common Stock is validly issued, fully paid and nonassessable and owned of
record by Trans Leasing; and
(j) Places of Business. TLFC's sole places of
business and offices are located in Northbrook, Illinois and Wilmington,
Delaware.
3.03 Purchase of Leases and Equipment by Trans Leasing. In
the event of discovery at any time that a representation or warranty set forth
in Section 3.01 is untrue in any respect, TLFC (or any Interested Party or
other Person to the extent provided in the Pooling and Servicing Agreement) may
by written notice direct Trans Leasing to purchase each Lease materially and
adversely affected by such untruth, and all related Equipment, on or prior to
the thirtieth day after such notice is received by Trans Leasing (or such later
date as any Interested Party may specify), and Trans Leasing will purchase each
such Lease and the related Equipment, for the Warranty Purchase Price, on or
prior to such thirtieth (or later) day; provided that Trans Leasing will not be
required to purchase any such Lease (or the related Equipment) if prior to such
thirtieth (or later) day (i) such untruth has been cured with respect to such
Lease in all material respects and (ii) Trans Leasing delivers to TLFC (and to
other Persons, if any, required by the Pooling and Servicing Agreement) a
certificate of a Responsible Officer to that effect. In consideration for the
purchase of any such Lease and the related Equipment, Trans Leasing will remit
the Warranty Purchase Price to the Servicer for allocation of such Warranty
Purchase Price pursuant to the terms of the Pooling and Servicing Agreement or,
if not required to be so remitted by such Agreement, will remit the Warranty
Purchase Price to TLFC. It is understood and agreed that in the event that any
representation or warranty set forth in Section 3.01 is untrue, the purchase of
any affected Lease and the related Equipment as provided in this Section 3.03
and the indemnification provided in Section 3.04 will constitute the only
remedies available to TLFC and the Interested Parties in respect of such
untruth.
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3.04 Indemnification. In addition to any remedy pursuant to
Section 3.03, Trans Leasing agrees to indemnify, defend and hold TLFC harmless
from and against any out of pocket expense (including interest, penalties,
reasonable attorneys' fees and amounts paid in settlement) to which TLFC may
become subject insofar as such expense arises solely out of or is based solely
upon the untruth of any representation or warranty of Trans Leasing set forth
in Section 3.01. The obligations of Trans Leasing under this Section 3.04 will
be considered to have been relied upon by TLFC and will survive the execution,
delivery and performance of this Agreement regardless of any investigation made
by TLFC or on its behalf.
ARTICLE IV
COVENANTS OF TRANS LEASING AND TLFC
4.01 Trans Leasing Covenants. Trans Leasing covenants and
agrees with TLFC as follows for the benefit of TLFC and the Interested Parties:
(a) Merger, Consolidation or Assumption of the
Obligations of Trans Leasing. Any Person (i) into which Trans Leasing may be
merged or consolidated, (ii) resulting from any merger, conversion or
consolidation to which Trans Leasing is a party, or (iii) succeeding to the
business of Trans Leasing substantially as a whole, which Person in any of the
foregoing cases executes an agreement of assumption to perform every obligation
of Trans Leasing under this Agreement, will be the successor to Trans Leasing
under this Agreement, without the execution or filing of any document or any
further act on the part of Trans Leasing, TLFC or such Person, anything in this
Agreement to the contrary notwithstanding; provided, however, that (i)
immediately after giving effect to such transaction, no representation or
warranty made pursuant to Section 3.01 will have been breached, (ii) Trans
Leasing will have delivered to TLFC a certificate of a Responsible Officer and
an Opinion of Counsel each stating that such consolidation, merger or
succession and such agreement of assumption comply with this Section 4.01(a)
and that all conditions precedent, if any, provided for in this Agreement
relating to such transaction have been complied with and (iii) Trans Leasing
will have delivered an Opinion of Counsel either (A) stating that, in the
opinion of such counsel, all financing statements and continuation statements
and amendments thereto that are necessary fully to preserve and protect the
interests of TLFC in the Leases have been executed and filed or (B) stating
that, in the opinion of such counsel, no such action is necessary to preserve
and protect such interest.
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(b) Limitation of Liability of Trans Leasing and
Others. Trans Leasing and any director, officer, employee or agent of Trans
Leasing may rely in good faith on any document of any kind submitted by any
Person respecting any matters arising under this Agreement as being prima facie
properly executed. Other than in its capacity as the Servicer pursuant to the
Pooling and Servicing Agreement and except as provided in Sections 3.04,
4.01(e) and 4.01(i), Trans Leasing will not be under any obligation to appear
in, prosecute or defend any legal action in any way relating to the Assets that
is not incidental to its obligations as the contributor and seller of the
Assets under this Agreement and that in its opinion may cause it to incur any
expense or liability.
(c) Preservation of Security Interest. Subject
to the provisos contained in Sections 2.02(e) and 2.02(b), Trans Leasing will
execute and file such continuation statements and any other documents requested
by TLFC to be filed or which may be required to be filed by any legal
requirement to preserve fully and protect the interest of TLFC in, to and under
the Assets; provided, however, that Trans Leasing will not be required to
deliver physical possession of the Lease Files to TLFC and may retain
possession of the Lease Files in its capacity as the Servicer.
(d) Preservation of Name and Office. Unless
Trans Leasing provides not less than thirty days prior written notice to TLFC
and files such amendments to any previously filed financing or continuation
statements as TLFC may require, Trans Leasing will not (i) change the location
of its principal executive office, (ii) change its name, identity or corporate
structure in any manner which would make any financing statement or
continuation statement filed by Trans Leasing in accordance with this Agreement
seriously misleading within the meaning of Article 9-402(7) of the UCC or (iii)
delete or otherwise modify the marking of the Lease Management System referred
to in Section 2.02(f) or Section 2.03(c) of this Agreement or in the Pooling
and Servicing Agreement.
(e) Obligations with Respect to Leases; Defense
of Assets. Trans Leasing will do nothing to impair the rights of TLFC in the
Leases or the related Equipment except as it is expressly permitted to do so in
its capacity as the Servicer in accordance with the terms of the Pooling and
Servicing Agreement, and Trans Leasing will defend the interests of TLFC in the
Assets contributed and sold hereby against all claims of third parties claiming
through or under Trans Leasing.
(f) Compliance with Law. Trans Leasing will
comply, in all material respects, with all legal requirements applicable to
Trans Leasing with respect to the Assets; provided, however, that Trans Leasing
may contest any such legal requirement
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in any reasonable manner which will not materially and adversely affect the
rights of TLFC or any Interested Party in the Assets or the value thereof.
(g) Notification of Breach. Trans Leasing will
advise TLFC, the Servicer (if Trans Leasing is not the Servicer) and the
Indenture Trustee, in reasonable detail, of the occurrence of any breach by
Trans Leasing of any of its representations, warranties and covenants contained
herein, promptly after it becomes aware of any such breach unless such breach
has been or will be cured in all material respects within 30 days or the
related Lease(s) has been repurchased in accordance with Section 3.03.
(h) Further Assurances. Trans Leasing will make,
execute or endorse, acknowledge and file or deliver to TLFC from time to time
such schedules, confirmatory assignments, conveyances, transfer endorsements,
powers of attorney, certificates, reports and other assurances or instruments
and take such further steps relating to the Assets and other rights covered by
this Agreement as TLFC may request and reasonably require.
(i) Indemnification. Trans Leasing agrees to
indemnify, defend and hold TLFC harmless from and against any and all loss,
liability, damage, judgment, claim, deficiency, or expense (including interest,
penalties, reasonable attorneys' fees and amounts paid in settlement) to which
TLFC may become subject insofar as such loss, liability, damage, judgment,
claim, deficiency or expense arises out of or is based upon a breach by Trans
Leasing of its covenants contained in this Section 4.01. The obligations of
Trans Leasing under this Section 4.01(i) will be considered to have been relied
upon by TLFC and will survive the execution, delivery and performance of this
Agreement regardless of any investigation made by TLFC or on its behalf.
(j) Insurance Premiums. With respect to
any Lease on which the related Lessee pays insurance premiums directly to Trans
Leasing (or such premiums are otherwise included in the Scheduled Lease
Payments under such Lease), until such Lease expires, otherwise terminates, is
purchased under Section 3.03 hereof or is charged- off as uncollectible by
Trans Leasing, Trans Leasing shall pay the insurance premiums required to
maintain the insurance on the related Equipment required by such Lease.
4.2 TLFC Covenants. TLFC covenants and agrees with Trans
Leasing not to disclose to any Person (except as contemplated by the Pooling
and Servicing Agreement) any of the information contained in the Lease
Management System, the Lease Files, the Lease Schedule or any Additional Lease
Schedule, except as required
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upon the appointment of a successor Servicer pursuant to the Pooling and
Servicing Agreement or by any legal requirement. TLFC agrees to take such
measures as Trans Leasing reasonably requests to protect and maintain the
security and confidentiality of such information and, in connection therewith,
will allow Trans Leasing to inspect the applicable security and confidentiality
arrangements during normal business hours. TLFC will provide Trans Leasing
written notice not less than five Business Days prior to any disclosure which
TLFC proposes to make in accordance with this Section 4.02.
4.03 Assignment; Grant of Security Interest. Trans Leasing
understands that TLFC intends to transfer the Assets (including certain rights
of TLFC under this Agreement) to the Trust, which will grant a security
interest in the Assets to the Indenture Trustee. Trans Leasing consents to
such transfers and grants. Trans Leasing agrees that the rights of TLFC
hereunder may be exercised by or on behalf of the Interested Parties to the
extent provided in the Pooling and Servicing Agreement or the Indenture.
ARTICLE V
TERMINATION
5.01 Termination. The respective obligations and
responsibilities of Trans Leasing and TLFC created by this Agreement will
terminate upon the termination of the Pooling and Servicing Agreement.
5.02 Effect of Termination. No termination, rejection or
failure to assume the executory obligations of this Agreement in the bankruptcy
of Trans Leasing or TLFC will be deemed to impair or affect the obligations
pertaining to any executed contribution, executed sale or executed obligations,
including breaches of representations and warranties by Trans Leasing or TLFC
prior to termination. Without limiting the foregoing, prior to termination,
the failure of Trans Leasing to pay a Warranty Purchase Price will not render
such contribution, sale or obligations executory and the continued respective
duties of Trans Leasing and TLFC pursuant to Article IV will not render an
executed sale or contribution executory.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01 Amendment. This Agreement may be amended only by written
agreement of TLFC and Trans Leasing.
6.02 GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT PROVISION OR RULE
(WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE
THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW
YORK. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF NEW
YORK WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN
IN THE EVENT THAT UNDER SUCH JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW
ANALYSIS THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
6.03 Notice. Except as otherwise provided in this Agreement,
any notice or other communication herein required or permitted to be given will
be in writing and may be delivered in person, with receipt acknowledged, or
sent by United States mail, registered or certified, return receipt requested,
or by Federal Express or other nationally recognized overnight courier service,
postage prepaid and confirmation of receipt requested, and addressed as follows
(or at such other address as may be substituted by notice given as herein
provided):
If to TLFC:
TL Lease Funding Corp. IV
c/o The Corporation Trust Company
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
with a copy (which copy will not constitute
notice to TLFC) to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Sugar
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If to Trans Leasing:
Trans Leasing International, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Chief Financial Officer
with a copy (which copy will not constitute
notice to Trans Leasing) to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Sugar
Every notice, demand, request, consent, approval, declaration or other
communication hereunder will be deemed to have been duly given or served on the
date on which the same will have been personally delivered, with receipt
acknowledged, three (3) Business Days after the same will have been deposited
in the United States mail or on the next succeeding Business Day if the same
has been sent by Federal Express or other nationally recognized overnight
courier service. Failure or delay in delivering copies of any notice, demand,
request, consent, approval, declaration or other communication to the persons
designated above to receive copies will in no way adversely affect the
effectiveness of such notice, demand, request, consent, approval, declaration
or other communication.
6.04 Severability of Provisions. If any covenant, agreement,
provision or term of this Agreement is held invalid for any reason whatsoever,
then such covenant, agreement, provision or term will be deemed severable from
the remaining covenants, agreements, provisions and terms of this Agreement and
will in no way affect the validity or enforceability of the other provisions of
this Agreement.
6.05 Assignment. This Agreement may not be assigned by Trans
Leasing or TLFC, except as otherwise provided herein.
6.06 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of TLFC or Trans Leasing, any right,
remedy, power or privilege under this Agreement will operate as a waiver of
such right, remedy, power or privilege, nor will any single or partial exercise
of any right, remedy, power or privilege under this Agreement preclude any
other or further exercise of such right, remedy, power or privilege. The
rights, remedies, powers and privileges provided under this Agreement are
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29
cumulative and not exhaustive of any other rights, remedies, powers and
privileges provided by law.
6.07 Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which will be an original, but all of which will constitute one and the same
instrument.
6.08 Binding Effect; Third-Party Beneficiaries. This
Agreement will inure to the benefit of and be binding upon Trans Leasing, TLFC
and their respective successors and permitted assigns and will also, to the
extent expressly provided in Section 4.03 or elsewhere in this Agreement, inure
to the benefit of the Servicer and the Interested Parties. Except as otherwise
provided in this Agreement, no other Person will have any right or obligation
pursuant to this Agreement.
6.09 Merger and Integration. Except as specifically stated
otherwise in this Agreement, this Agreement sets forth the entire understanding
of the parties relating to the subject matter hereof, and all prior
understandings, written or oral, are superseded by this Agreement.
6.10 Headings. The headings used in this Agreement are for
purposes of reference only and will not otherwise affect the meaning or
interpretation of any provision of this Agreement.
6.11 Schedules and Exhibits. The Schedules and Exhibits
constitute a part of this Agreement and are incorporated into this Agreement
for all purposes.
6.12 No Petition Covenants. Notwithstanding any prior
termination of this Agreement, Trans Leasing shall not, prior to the date which
is one year and one day after the final distribution with respect to (i) the
Notes(as defined in the Pooling and Servicing Agreement), (ii) the 1995-1 Notes
(as defined in the Pooling and Servicing Agreement), and (iii) any other
indebtness of the Trust, TLFC or any other trust formed by TLFC permitted under
Section 2.7(l) of the Pooling and Servicing Agreement, acquiesce, petition or
otherwise invoke or cause TLFC to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against TLFC under
any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of TLFC or any substantial part of its property, or ordering
the winding up or liquidation of the affairs of TLFC.
6.13 Confidential Information. TLFC agrees that it shall
neither use nor disclose to any Person the names and
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30
addresses of the Lessees or the vendors of the Equipment, except in connection
with the enforcement of TLFC's rights hereunder, under the Pooling and
Servicing Agreement or under the Assets or as required by law.
* * * * *
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31
Trans Leasing and TLFC have caused this Amended and Restated
Contribution and Sale Agreement to be duly executed by their respective
officers as of the day and year written above.
TRANS LEASING INTERNATIONAL, INC.
By: ____________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President, Finance
and Chief Financial
Officer
TL LEASE FUNDING CORP. IV
By: ____________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President, Finance
and Secretary
32
EXHIBIT A
FORM OF ASSIGNMENT FOR CLOSING DATE ASSETS
For value received, in accordance with the Amended and
Restated Contribution and Sale Agreement dated as of November 26, 1996 (the
"Sale Agreement"), between Trans Leasing International, Inc., a Delaware
corporation ("Trans Leasing"), and TL Lease Funding Corp. IV, a Delaware
corporation ("TLFC"), Trans Leasing does hereby sell, assign, transfer and
otherwise convey unto TLFC, without recourse, all of its right, title and
interest in, to and under (i) the Closing Date Leases listed on the Closing
Date Lease Schedule attached hereto (including all of Trans Leasing's
obligations under the Closing Date Leases) and all monies due or to become due
under such Closing Date Leases after October 31, 1996, (ii) the related
Equipment (other than any licensed products that may accompany any of such
Equipment), (iii) the Lease Files for the Closing Date Leases, (iv) any
Insurance Policies and the related Insurance Proceeds with respect to the
Closing Date Leases and (v) all income and proceeds relating to the foregoing.
It is the intention of Trans Leasing and TLFC that the sales,
transfers, assignments and conveyances contemplated by this Assignment
constitute a sale of the property described herein and in the Sale Agreement
from Trans Leasing to TLFC and the beneficial interest in and title to such
property will not be part of Trans Leasing's estate in the event of the filing
of a bankruptcy petition by or against Trans Leasing under any bankruptcy law.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Sale Agreement and is to be governed by the Sale Agreement.
Capitalized terms used herein and not otherwise defined will
have the meanings assigned to them in the Sale Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed as of November 26, 1996.
TRANS LEASING INTERNATIONAL, INC.
By: _____________________________
Name:
Title:
33
EXHIBIT B
FORM OF ASSIGNMENT FOR ADDITIONAL ASSETS
For value received, in accordance with the Amended Restated
Contribution and Sale Agreement dated as of November 26, 1996 (the "Sale
Agreement"), between Trans Leasing International, Inc., a Delaware corporation
("Trans Leasing") and TL Lease Funding Corp. IV, a Delaware corporation
("TLFC"), Trans Leasing does hereby sell, assign, transfer and otherwise convey
unto TLFC, without recourse, all of its right, title and interest in, to and
under (i) the Additional Leases listed on the Additional Lease Schedule
attached hereto (including all Trans Leasing's obligations under such
Additional Leases) and all monies due or to become due thereunder after
[__________], (ii) the related Equipment (other than any licensed products that
may accompany any of such Equipment), (iii) the Lease Files for such Additional
Leases, (iv) any Insurance Policies and the related Insurance Proceeds with
respect to such Additional Leases and (v) all income and proceeds relating to
the foregoing.
It is the intention of Trans Leasing and TLFC that the sales,
transfers, assignments and conveyances contemplated by this Assignment
constitute a contribution and/or sale of the property described herein and in
the Sale Agreement from Trans Leasing to TLFC and the beneficial interest in
and title to such property will not be part of Trans Leasing's estate in the
event of the filing of a bankruptcy petition by or against Trans Leasing under
any bankruptcy law.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Sale Agreement and is to be governed by the Sale Agreement.
Capitalized terms used herein and not otherwise defined will
have the meanings assigned to them in the Sale Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed as of _______ __, ____.
TRANS LEASING INTERNATIONAL, INC.
By: _____________________________
Name:
Title:
34
EXHIBIT C
FORMS OF LEASE
See Attached.
35
LEASE SCHEDULE
See List of Leases
attached to the
Pooling and Servicing Agreement.
36
CONTRIBUTED LEASE SCHEDULE
See portion of List of Leases
attached to the Pooling and Servicing
Agreement marked "Contributed Leases"
37
PURCHASED LEASE SCHEDULE
See portion of List of Leases
attached to the Pooling and Servicing
Agreement marked "Purchased Leases"
38
CLOSING DATE LEASE SCHEDULE
See portion of List of Leases
attached to the Pooling and Servicing
Agreement marked "Closing Date Leases"
39
EXCLUDED LEASE SCHEDULE
See Attached.
40
LEASE CRITERIA SCHEDULE
1. As of the Cut-Off Date or the applicable Addition Cut-Off
Date, as the case may be, the remaining term of each Lease is between 2 months
and 60 months; provided that there is no Lease with a term that extends beyond
October 31, 2001 or, with respect to Additional Leases, October 31, 2002.
2. As of the Cut-Off Date or the applicable Addition Cut-Off
Date, as the case may be, no unpaid scheduled lease payment pursuant to any
Lease (other than a Skipped Payment, as defined in the Pooling and Servicing
Agreement) has been due and payable for more than 30 days (other than due to
administrative delays, such as initial xxxxxxxx) and Trans Leasing has received
at least one scheduled lease payment on each Lease.
3. As of the Cut-Off Date or the applicable Addition Cut-Off
Date, as the case may be, no scheduled lease payment on any Lease other than a
Skipped Payment (as defined in the Pooling and Servicing Agreement) was more
than 90 days delinquent during the 12-month period prior to such Date (other
than due to administrative delays, such as initial xxxxxxxx).
4. Each Lease is a finance lease for financial accounting
purposes.
41
SPECIFIED PORTFOLIO CHARACTERISTICS SCHEDULE
1. The sum of the Discounted Lease Balances of the 25
Leases with the greatest Discounted Lease Balances does not exceed 10% of the
Aggregate Discounted Lease Balance.
2. The sum of the Discounted Lease Balances of all
Leases with respect to which the billing address of the related Lessees are
located in the same state does not exceed 30% of the Aggregate Discounted Lease
Balance.
3. The sum of the Discounted Lease Balances of all
Leases with respect to which the related Equipment is of the same type (as
determined by Trans Leasing in accordance with its customary procedures) does
not exceed 45% of the Aggregate Discounted Lease Balance.
4. With respect to any Lessee, the aggregate Discounted
Lease Balance of all Leases of such Lessee does not exceed 0.75% of the
Aggregate Discounted Lease Balance.
5. The sum of the Discounted Lease Balances of all
Leases with respect to which the related Equipment was purchased from one
Person (as determined by Trans Leasing in accordance with its customary
procedures) does not exceed 10% of the Aggregate Discounted Lease Balance.
6. The sum of the Discounted Lease Balances of all
Leases with respect to which the related Lessees operate in the same industry
(as determined by Trans Leasing in accordance with its customary procedures)
does not exceed 40% of the Aggregate Discounted Lease Balance.
7. The average original acquisition cost of the
Equipment (as capitalized in accordance with GAAP) does not exceed $20,000.
8. The sum of the Discounted Lease Balances of all
Leases with respect to which the related Lessee is a governmental agency does
not exceed 5% of the Aggregate Discounted Lease Balance.
9. The sum of the Discounted Lease Balances of all
Leases with respect to which there has been a Skipped Payment (as defined in
the Pooling and Servicing Agreement) prior to the Cut-Off Date does not exceed
5% of the Aggregate Discounted Lease Balance as of the Cut-Off Date.
10. The sum of the Discounted Lease Balances of all
Leases with respect to which the related Equipment is motor vehicles does not
exceed 5.5% of the Aggregate Discounted Lease Balance.
