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Exhibit 10.1
FORM OF RECEIVABLES SALE AGREEMENT
by and among
[NAME OF ORIGINATOR]
as Originator,
[NAME OF TRANSFEROR]
as Transferor
and
[NAME OF TRANSFEROR]
as Transferor
Dated as of [_____], 200[_]
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01Definitions...................................................1
Section 1.02Other Definitional Provisions.................................1
ARTICLE II
TRANSFER OF CONVEYED ASSETS
Section 2.01Direction; Acquisition; Capital Contribution..................2
Section 2.02Custody of Contract Files.....................................4
Section 2.03Intention of the Parties; Grant of Security Interest..........4
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01Representations and Warranties of the Originator..............4
Section 3.02Representations and Warranties of the Transferors.............7
Section 3.03Representations and Warranties of the Originator with
respect to the Conveyed Assets.............................9
Section 3.04Substitution of Contracts and Equipment by the Originator.....9
ARTICLE IV
COVENANTS
Section 4.01Originator Covenants.........................................10
Section 4.02Transferor Covenants.........................................13
Section 4.03Transfer of Conveyed Assets..................................14
ARTICLE V
CONDITIONS PRECEDENT
Section 5.01Conditions to Transferors Obligations........................15
Section 5.02Conditions to the Originator's Obligations...................15
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ARTICLE VI
TERMINATION; LIABILITIES
Section 6.01Termination..................................................16
Section 6.02Effect of Termination........................................16
Section 6.03Liabilities..................................................16
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01Amendment....................................................16
Section 7.02GOVERNING LAW................................................17
Section 7.03Notices......................................................17
Section 7.04Severability of Provisions...................................17
Section 7.05Assignment...................................................17
Section 7.06Further Assurances...........................................18
Section 7.07No Waiver; Cumulative Remedies...............................18
Section 7.08Counterparts.................................................18
Section 7.09Binding Effect: Third-Party Beneficiaries...................18
Section 7.10Merger and Integration.......................................18
Section 7.11Headings.....................................................18
Section 7.12Schedules and Exhibits.......................................18
Section 7.13No Bankruptcy Petition Against the Transferors, the
Manager or the Trust......................................18
Schedule I -- List of Initial Contracts
Exhibit A -- Form of Subsequent Receivables Sale Agreement
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This RECEIVABLES SALE AGREEMENT, dated as of [_______] [__], 200[_]
(this "Agreement"), by and among [NAME OF ORIGINATOR], a [____________________]
(the "Originator"), [NAME OF TRANSFEROR], a [____________________] ("Transferor
I"), and [NAME OF TRANSFEROR], a [____________________] ("Transferor II" and,
together with Transferor I, the "Transferors").
WITNESSETH:
WHEREAS, the Originator, in the ordinary course of its business,
acquires and originates equipment contracts in the United States; and
WHEREAS, the Originator desires to convey, transfer, contribute and
assign all of its right title and interest in and to (x) Contracts, other than
any Contracts which are "true" or "operating" leases, to Transferor I, and (y)
any Contracts which are "true" or "operating" leases, the ownership interest or
security interest of the Originator in each item of Equipment and any Residual
Receipts to Transferor II, each upon the terms and conditions hereinafter set
forth; and
WHEREAS, the Originator and the Transferors agree that all
representations, warranties, covenants and agreements made by it herein shall be
for the benefit of the Depositor, the Collateral Agent, the Noteholders, the
Residual Holders, the Note Insurer, the Owner Trustee and the Indenture Trustee.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS. Whenever used in this Agreement,
capitalized terms used herein but not defined herein shall have the meanings set
forth in Annex A to the Indenture, dated as of [______] [__], 200[_] (the
"Indenture"), by and among [___________________] Trust 200[_]-[__], as issuer
(the "Issuer"), the Originator, as servicer (in such capacity, the "Servicer"),
and [___________________], as indenture trustee (the "Indenture Trustee") and as
back-up servicer (the "Back-up Servicer").
Section 1.02 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.
(b) Accounting Terms. As used in this Agreement, accounting terms
which are not defined pursuant to Section 1.01 have the respective meanings
given to them under GAAP, 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 GAAP, the definitions
contained in this Agreement will control.
(c) "Hereof," etc. The words "hereof," "herein" and "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
Article, Section, Schedule and Exhibit references contained in this Agreement
are references to Articles, 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 listing will be interpreted to
be illustrative only and will not be interpreted as a limitation on, or
exclusive listing of, the items within that classification.
ARTICLE II
TRANSFER OF CONVEYED ASSETS
Section 2.01 DIRECTION; ACQUISITION; CAPITAL CONTRIBUTION. (a)
Subject to the terms and condition of this Agreement, the Originator hereby
agrees to sell, convey and contribute, on the Closing Date, all of its right,
title and interest in and to the Initial Conveyed Assets to the Transferors, as
set forth in subsection (c) below, which sale, contribution and conveyance shall
be evidenced by the execution of this Agreement. Upon receipt of the
consideration specified in subsection (d) below, the Originator hereby releases
all of its right, title and interest in, to and under the related Initial
Conveyed Assets, such receipt being hereby acknowledged by the execution of this
Agreement by the Originator.
(b) Each sale, conveyance and contribution of Subsequent Conveyed
Assets shall be evidenced by the execution and delivery by the Originator and
Transferors of a Subsequent Receivables Sale Agreement in the form of Exhibit A
hereto. Each such sale, conveyance and contribution shall be effective as of the
related Subsequent Funding Date.
(c) The transfers occurring on each Conveyance Date shall be
consummated such that those Conveyed Assets which are considered "financial
assets" within the meaning of the Statement of Financial Accountings Standards
No. 125 ("FAS 125") (such Conveyed Assets include,
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without limitation, the Contracts, other than any Contract which is an
"operating" or "true" lease) are acquired by Transferor I, and such that those
Conveyed Assets which are not considered "financial assets" within the meaning
of FAS 125 (such Conveyed Assets include, without limitation, any Contract which
is an "operating" or "true" lease, the ownership interest or security interest
of the Originator in each item of Equipment and any Residual Receipts) are
acquired by Transferor II.
(d) In consideration of (x) the receipt by the Originator of a
[__]% membership interest in each of the Transferors, (y) the receipt by the
Originator of $[_________] and the Class B Notes from the Transferors and (z)
other good and valuable consideration, the Originator hereby conveys to the
applicable Transferor all of its right, title and interest in, to and under the
Initial Conveyed Assets, whether now existing or hereinafter arising, without
recourse, except as may be set forth herein. The purchase price for any
Subsequent Conveyed Assets will be paid by the applicable Transferor to the
Originator in immediately available funds on the related Subsequent Funding Date
in accordance with the terms of the related Subsequent Receivables Sale
Agreement. In connection with the transfers on each Conveyance Date, the
Originator hereby makes a capital contribution to the related Transferor in the
amount by which the fair market value of the related Conveyed Assets exceeds the
cash consideration received by the Originator in connection therewith.
(e) In connection with each sale, contribution and conveyance of
Conveyed Assets, the Originator agrees to record and file, at its own expense,
financing statements (and thereafter will file continuation statements with
respect to such financing statements) with respect to such Conveyed Assets,
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, (x)
the transfer, conveyance and contribution of such Conveyed Assets (subject to
the Filing Requirements with respect to the Equipment) from the Originator to
the related Transferors, (y) the pledge of such Conveyed Assets (subject to the
Filing Requirements with respect to the Equipment) from the Transferors to the
Trust as security for the Pledged Notes, and (z) the pledge of the related
Pledged Property from the Trust to the Indenture Trustee, on behalf of the
Noteholders and the Note Insurer, and to deliver a file-stamped copy of such
financing statements or other evidence of such filings to the related Transferor
(and copies to the Indenture Trustee and the Note Insurer) on or prior to each
Conveyance Date; provided, however, that the Contract Files (including each
original executed Contract) will not be physically delivered to either of the
Transferors, but instead will be held by the Collateral Agent, on behalf of the
Indenture Trustee, as bailee for the Noteholders and the Note Insurer. In
addition, the Originator will assign to the Transferors any UCC-1 financing
statement filed by the Originator against the Source with respect to any
Contract originated by a Source.
(f) In connection with each sale, contribution and conveyance of
Conveyed Assets, the Originator shall, at its own expense, on or prior to the
related Conveyance Date, and with respect to Substitute Contracts, as soon as
possible, but in no event later than two (2) Business Days after the related
Conveyance Date (i) cause the Contract Management System to be marked with a
specified code (the "Contract Management Code") to show that such Conveyed
Assets have been assigned and transferred to the Transferors in accordance with
this Agreement or a Subsequent Receivables Transfer Agreement, as applicable,
subsequently pledged by the Transferors to the Trust in accordance with the
Receivables Pledge Agreement or a Subsequent Receivables Pledge Agreement, as
applicable, and such security interest was assigned by the Trust to the
Indenture Trustee, on behalf of the Noteholders and the Note Insurer, pursuant
to the Indenture or an Assignment, as applicable, and (ii) cause the Servicer to
prepare and hold on
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behalf of the Transferors and the Indenture Trustee, (x) the List of Contracts
on or prior to the Closing Date and (y) the List of Contracts as supplemented by
the List of Subsequent Contracts on or prior to each Subsequent Funding Date.
Pursuant to Section 3.04, the Originator from time to time may make capital
contributions of (A) Substitute Contracts to Transferor I and (B) the ownership
interest or security interest of the Originator in each item of Substitute
Equipment and any Residual Receipts to Transferor II, at any time pursuant to
Section 3.04. Upon delivery of any such List of Subsequent Contracts or List of
Substitute Contracts, the List of Contracts shall be deemed amended to
incorporate therein the information contained in such List of Subsequent
Contracts or List of Substitute Contracts, as applicable.
(g) Except for the obligations of the Originator pursuant to
Section 3.03 and Article IV of the Indenture with respect to any breach of a
representation, warranty or covenant made herein, the sale, contribution and
conveyance of the Contracts will be without recourse to the Originator.
Section 2.02 CUSTODY OF CONTRACT FILES. In connection with the sale,
contribution, assignment, transfer and conveyance of the Conveyed Assets to the
Transferors pursuant to this Agreement, the pledge of the Conveyed Assets to the
Trust, and the pledge of the Pledged Assets to the Indenture Trustee, for the
benefit of the Noteholders and the Note Issuer, the Collateral Agent, on behalf
of the Indenture Trustee, for the benefit of the Noteholders and the Note
Insurer, will retain the Contract Files, any related evidence of insurance and
payments and original executed counterparts of each Contract in accordance with
the terms of the Indenture.
Section 2.03 INTENTION OF THE PARTIES; GRANT OF SECURITY INTEREST.
It is the intention of the parties hereto that each transfer of Conveyed Assets
to be made pursuant to the terms hereof shall constitute a sale or capital
contribution of (x) the Contracts by the Originator to Transferor I, and (y) the
ownership interest or security interest of the Originator in each item of
Equipment and any Residual Receipts by the Originator to Transferor II, and, in
either case, not a loan. In the event, however, that a court of competent
jurisdiction were to hold that any such transfer constitutes a loan and not a
sale or capital contribution, it is the intention of the parties hereto that
this Agreement is deemed to be a security agreement and that the Originator
shall be deemed to have granted to the related Transferor as of the date hereof
a first priority perfected security interest in all of the Originator's right,
title and interest in, to and under the related Conveyed Asset, and all income
and proceeds thereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 REPRESENTATIONS AND WARRANTIES OF THE Originator. The
Originator hereby makes the following representations and warranties for the
benefit of the Indenture Trustee, the Depositor, the Trust, the Owner Trustee,
the Collateral Agent, the Noteholders, the Note Insurer and the Transferors.
Such representations and warranties are made as of the Closing Date (with
respect to Initial Conveyed Assets), any Subsequent Funding Date (with respect
to Subsequent Conveyed Assets transferred to the Transferors on such
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date) or any Transfer Date (with respect to Substitute Conveyed Assets
transferred to the Transferors on such date) and shall survive each sale,
contribution, assignment, transfer and conveyance by the Originator of the
Conveyed Assets to the Transferors and their respective successors and assigns.
(a) Organization and Good Standing. The Originator is a
corporation duly organized, validly existing and in good standing, under the
laws of the state of its incorporation, with corporate power and authority to
own its properties and to conduct its business as such properties are currently
owned and such business is currently conducted, and had at all relevant times,
and now has, power, authority, and legal right to acquire and own the Conveyed
Assets;
(b) Due Qualification. The Originator is qualified as a foreign
corporation in any state where it is required to be so qualified to conduct its
business and enforce the Source Agreements to which it is a party, and has
obtained all necessary licenses, consents, approvals,
authorizations,...registrations or declarations as required by any Person or any
Governmental Authority under federal and state law, in each case, where the
failure to be so qualified, licensed, consented to, authorized, registered,
declared or approved could reasonably be expected to materially and adversely
affect the ability of the Originator to execute and deliver, or comply with the
terms of, this Agreement or any other Transaction Document to which it is a
party;
(c) Power and Authority. The Originator has the corporate power
and authority to execute and deliver this Agreement, the Source Agreements to
which it is a party, the Contracts and any other Transaction Document to which
it is a party, and to carry out their respective terms; the Originator has duly
authorized the sale, contribution, assignment, transfer and conveyance to the
Transferors of the Conveyed Assets by all necessary corporate action; and the
execution, delivery, and performance of this Agreement, the Source Agreements,
the Contracts and any other Transaction Document to which it is a party, has
been duly authorized by the Originator by all necessary corporate action;
(d) Due Execution and Delivery. Each of this Agreement, the Source
Agreements, the Contracts and any other Transaction Document to which it is a
party has been duly executed and delivered on behalf of the Originator;
(e) Valid Assignment; Binding Obligations. This Agreement
constitutes a valid sale, contribution, assignment, transfer and conveyance to
the Transferors of all right, title, and interest of the Originator in, to and
under the Conveyed Assets and the Conveyed Assets will be held by the
Transferors free and clear of any Lien of any Person claiming, through or under
the Originator, except for Liens permitted under, or to be created by the
Indenture; and this Agreement, and the other Transaction Documents to which it
is a party, when duly executed and delivered, will constitute legal, valid, and
binding obligations of the Originator enforceable against the Originator in
accordance with their respective terms subject as to enforceability to
applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law);
(f) No Violation. The consummation of the transactions
contemplated by, and the fulfillment of the terms of, this Agreement, the Source
Agreements, the Contracts and the other Transaction Documents to which it is a
party will not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time) a
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default under, the articles of incorporation or bylaws of the Originator, or any
material term of any indenture, agreement, mortgage, deed of trust, or other
instrument to which the Originator is a party or by which it is bound, or 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 violate any law or any order,
injunction, writ, rule, or regulation applicable to the Originator of any court
or of any federal or state regulatory body, administrative agency, or other
Governmental Authority having jurisdiction over the Originator or any of its
properties which would have a material adverse effect on the Conveyed Assets;
(g) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of the Originator, threatened, before any court,
regulatory body, administrative agency, or other tribunal or Governmental
Authority (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 the Originator) materially and adversely affect the performance by the
Originator of its obligations under, or the validity or enforceability of, this
Agreement;
(h) Tax Returns. The Originator has filed on a timely basis all
tax returns (federal, state and local) required to be filed and has paid or made
adequate provisions for the payment of all taxes, assessments and other
governmental charges due from the Originator;
(i) Pensions. Each pension plan or profit sharing plan to which
the Originator is a party has been fully funded in accordance with the
obligations of the Originator set forth in such plan;
(j) Valid Business Reasons. The Originator has valid business
reasons for selling its interests in the Conveyed Assets rather than
obtaining a loan with the Conveyed Assets as collateral;
(k) Insolvency. The Originator is not insolvent nor will it be
rendered insolvent by the transactions contemplated by this Agreement and the
Originator has an adequate amount of capital to conduct its business in the
ordinary course and to carry out its obligations hereunder and under each
Transaction Document to which it is a party;
(l) Principal Place of Business. The principal place of business
and chief executive office of the Originator is located at the respective
addresses set forth herein and, there are now no, and during the past four
months there have not been, any other locations where the Originator is located
(as that term is used in the UCC in the state of such location) except that,
with respect to such changes occurring after the date of this Agreement, as
shall have been specifically disclosed to the Servicer, the Depositor, the
Collateral Agent, the Note Insurer and the Indenture Trustee in writing;
(m) Accounting and Tax Treatment. The Originator will treat the
assignment of the related Conveyed Assets to the Transferors pursuant to Article
II as a sale and contribution of the Conveyed Assets to the capital of the
related Transferor for Federal income tax purposes, and as a contribution for
financial reporting and accounting purposes; the Originator will respond
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to any inquiries from third parties by indicating that the Conveyed Assets are
owned by the Transferors;
(n) Legal Name. The legal name of the Originator is as set forth
in the signature line of this Agreement and the Originator has not changed its
name since its incorporation and since its incorporation, the Originator has not
used, nor does the Originator now use, any trade names, fictitious names,
assumed names or "doing business as" names;
(o) Material Adverse Change. Since March 31, 200[_], no event has
occurred and is continuing which materially and adversely affects the
Originator's operations, including, without limitation, the ability of the
Originator to perform the transactions contemplated hereunder; and
(p) Fair Consideration. The consideration received by the
Originator as set forth herein is fair consideration having value reasonably
equivalent to or in excess of the value of the related Conveyed Assets conveyed
by it and the performance of the Originator's obligations hereunder.
Section 3.02 REPRESENTATIONS AND WARRANTIES OF THE TRANSFERORS. Each
of the Transferors hereby makes the following representations and warranties for
the benefit of the Originator, the Note Insurer, the Depositor, the Collateral
Agent, the Trust, the Owner Trustee, the Indenture Trustee and the Noteholders.
Such representations and warranties speak as of the Closing Date, each
Subsequent Funding Date and each Transfer Date.
(a) Organization and Good Standing. Each of the Transferors is a
limited liability company duly organized and validly existing in good standing
under the laws of the State of [____________], with full power and authority to
own its properties and to conduct its business as presently conducted and has
the power, authority and legal right to acquire and own the related Conveyed
Assets;
(b) Due Qualification. Each of the Transferors is duly qualified
to do business as a foreign limited liability company in good standing, and has
obtained all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business requires such
qualification, except to the extent that the failure to be so qualified,
licensed or approved would not, in the aggregate, materially and adversely
affect the ability of such Transferor to comply with the terms of this Agreement
and the other Transaction Documents to which it is a party;
(c) Power and Authority. Each of the Transferors has the power and
authority to execute and deliver this Agreement and the other Transaction
Documents to which it is a party and to carry out their respective terms; and
the execution, delivery, and performance of this Agreement and other Transaction
Documents to which it is a party have been duly authorized by such Transferor by
all necessary action;
(d) Due Execution and Delivery. This Agreement and the other
Transaction Documents to which it is a party have been duly executed and
delivered on behalf of each Transferor;
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(e) Binding Obligations. This Agreement and the other Transaction
Documents to which it is a party constitute legal, valid, and binding
obligations of each Transferor and are enforceable in accordance with their
respective terms subject as to enforceability to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors' rights
generally and to general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law);
(f) No Violation. The consummation of the transactions
contemplated by and the fulfillment of the terms of this Agreement and other
Transaction Documents to which it is a party will not conflict with, result in
any breach of any of the terms and provisions of, or constitute (with or without
notice of lapse of time) a default under, the Certificate of Formation or
Limited Liability Company Agreement of either Transferor, or any material term
to any indenture to which either Transferor is a party or violate any law or any
order, injunction, writ, rule or regulation applicable to either Transferor of
any court or of any federal or state regulatory body, administrative agency or
other Governmental Authority having jurisdiction over either Transferor or any
of its properties which would have a material adverse effect on the Conveyed
Assets;
(g) Membership Interests. The Originator is the registered owner
of [__]% of the membership interests of each of the Transferors, each of which
are owned of record, free and clear of all mortgages, assignments and pledges,
and security interests;
(h) No Proceedings. There are no proceedings or investigations
pending or, to the knowledge of each of the Transferors, threatened, before any
court, regulatory body, administrative agency or other tribunal or governmental
instrumentality (A) asserting the invalidity of or any of the Transaction
Documents, (B) seeking to prevent the consummation of any of the transactions
contemplated by any of the Transaction Documents or (C) seeking any
determination or ruling that would materially and adversely affect the
performance by either Transferor of its obligations under, or the validity or
enforceability of, any of the Transaction Documents;
(i) Approvals and Compliance. All approvals, authorizations,
consents, orders or other actions of any person, corporation or other
organization, or of any court, governmental agency or body or official, required
in connection with the execution and delivery of the Transaction Documents, have
been or will be taken or obtained on or prior to the Closing Date and each
Transferor is in compliance with all applicable laws, rules, regulations and
orders with respect to such Transferor, its business and properties and all
Conveyed Assets, except to the extent that non-compliance, or failure to be so
approved, authorized or consented to, would not, in the aggregate, materially
and adversely affect the ability of such Transferor to comply with the terms of
this Agreement and the other Transaction Documents to which it is a party;
(j) Solvency. Each Transferor is solvent and will not be rendered
insolvent by the transactions contemplated by this Agreement and the other
Transaction Documents and each Transferor has an adequate amount of capital to
conduct its business in the ordinary course and to carry out its obligations
under this Agreement and the other Transaction Documents;
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(k) Subsidiaries. Neither of the Transferors has any
subsidiaries other than the Trust;
(l) Tax Returns. Each Transferor has filed on a timely basis all
tax returns (federal, state and local) required to be filed and has paid or made
adequate provisions for the payment of all taxes, assessments and other
governmental charges due from such Transferor;
(m) Principal Place of Business. The principal place of business
and chief executive office of each Transferor are located at the address of such
Transferor set forth herein and, there are now no, and during the past four
months there have not been, any other locations where such Transferor is located
(as that term is used in the UCC in the state of such location) except that,
with respect to such changes occurring after the date of this Agreement, as
shall have been specifically disclosed to the Servicer, the Note Insurer and the
Indenture Trustee in writing;
(n) Accounting and Tax Treatment. Each Transferor will treat the
assignment of the related Conveyed Assets from the Originator to the Transferors
pursuant to this Agreement as a contribution of such Conveyed Assets for Federal
income tax purposes, and as a sale and contribution for financial reporting and
accounting purposes; each Transferor will respond to any inquiries by third
parties by indicating that the Conveyed Assets are owned by the Transferors; and
(o) Legal Name. The legal name of each Transferor is as set forth
in the related signature line of this Agreement and neither Transferor has
changed its name since its incorporation and since its incorporation, such
Transferor did not use, nor does such Transferor now use, any trade names,
fictitious names, assumed names or "doing business as" names.
Section 3.03 REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR WITH
RESPECT TO THE CONVEYED ASSETS. (a) With respect to each Contract, the
Originator hereby remakes to the Transferors the representations, warranties and
covenants set forth in Section 2.02 of the Servicing Agreement. Such
representations, warranties and covenants are made or deemed to be made, (x)
with respect to the Initial Conveyed Assets, as of the Cut-Off Date, (y) with
respect to the Subsequent Conveyed Assets, as of the Subsequent Cut-Off Date,
and (z) with respect to the Substitute Conveyed Assets, as of the related
Transfer Date.
(b) Upon the discovery by the Originator, either Transferor, the
Collateral Agent, the Depositor, the Indenture Trustee or the Note Insurer of a
breach of any of the representations or warranties set forth in Section 2.02 of
the Servicing Agreement that materially and adversely affects any Contract, the
related Equipment or the related Contract File, as the case may be, or if the
Servicer fails to cause delivery of evidence of filing or copies of any UCC
financing statement in accordance with the Servicing Agreement (any such event,
a "Warranty Event"), the party discovering such breach shall give prompt written
notice to the other parties hereto, the Indenture Trustee, the Trust and the
Note Insurer, and the Originator shall be required to reacquire or replace such
Contract in accordance with Article IV of the Indenture.
Section 3.04 SUBSTITUTION OF CONTRACTS AND EQUIPMENT BY THE
ORIGINATOR. (a) With respect to a substitution of Contracts in accordance with
the provisions of this Section 3.04, each proposed Substitute Contract must (i)
be an Eligible Contract, (ii) satisfy all of the
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representations and warranties set forth in Section 2.02 of the Servicing
Agreement, (iii) have a Discounted Contract Principal Balance of not less than
the Discounted Contract Principal Balance of the Contract being replaced, (iv)
have a Booked Residual Value of not less than the Booked Residual Value of the
Contract being replaced, and (v) satisfy the requirements of Section 4.02(d) of
the Indenture. For purposes of determining compliance with clauses (iii) and
(iv) of the preceding sentence, if more than one Substitute Contract is being
provided on any date, the Discounted Contract Principal Balances and Booked
Residual Values of the Substitute Contracts and the Contracts being replaced
shall be determined on an aggregate basis.
(b) Any substitution of a Contract pursuant to this Agreement will
be effected by (i) delivery to the Collateral Agent, on behalf of the Indenture
Trustee, of the Contract File for each such Substitute Contracts, (ii) filing of
any UCC financing statements necessary to comply with the Filing Requirements
and to perfect the interest of the Indenture Trustee in the Substitute
Contracts, (iii) delivery to the Indenture Trustee and the Collateral Agent of a
supplement to the List of Contracts reflecting such substitution and (iv)
delivery to the Collateral Agent, on behalf of the Indenture Trustee, of a
release request for the replaced Contract and the originally executed trust
receipt relating thereto.
(c) The parties hereto agree that in addition to the obligation of
the Originator to reacquire or to substitute any Contract and the related
Equipment as to which a breach of the representations set forth in the Servicing
Agreement has occurred and is continuing, the Originator will enforce its
remedies, if any, against any Source under any Source Agreement. In
consideration of the reacquisition of the Equipment and the Contract, the
Originator shall remit the Reacquisition Amount to the Servicer for allocation
of such Reacquisition Amount pursuant to the terms of the Indenture. Except as
may be set forth in the Transaction Documents, it is understood and agreed that
the obligations of the Originator with respect to a breach as provided in this
Section 3.04 and Section 4.01 of the Indenture constitute the sole remedy
against the Originator for such breach available to the Transferor, the Note
Insurer, the Depositor, the Collateral Agent, the Indenture Trustee and
Noteholders, except to the extent that such breach is proven by final judgment
of a court of law having due jurisdiction to be the result of any fraud or
wilfull misconduct on the part of such Obligor. The representations and
warranties set forth in Sections 3.01, 3.02 and 3.03 shall survive the
assignment of the Conveyed Assets to the Transferors, the pledge of the Conveyed
Assets to the Trust and the pledge of the Pledged Property to the Indenture
Trustee.
ARTICLE IV
COVENANTS
Section 4.01 ORIGINATOR COVENANTS. The Originator hereby covenants
and agrees with the Transferor, the Trust, the Owner Trustee, the Note Insurer,
the Depositor, the Collateral Agent, the Noteholders and the Indenture Trustee
with respect to itself as follows:
(a) Preservation of Security Interest. The Originator shall
execute and file such financing statements and cause to be executed and filed
such continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain, and protect the respective right,
title and interest of the Transferors, the Trust and the Indenture
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Trustee in the Conveyed Assets. The Originator shall deliver (or cause to be
delivered) to the Transferors file-stamped copies of, or filing receipts for,
any document filed as provided above, as soon as available following such
filing.
(b) Preservation of Name, etc. The Originator will not change its
name, identity or corporate structure in any manner that would, could, or might
make any financing statement or continuation statement filed by the Originator
in accordance with paragraph (a) above or under any Transaction Document
seriously misleading within the meaning of Section 9-402(7) of the UCC, unless
it shall have given the Transferors, the Note Insurer, the Depositor, the
Collateral Agent and the Indenture Trustee at least 60 days' prior written
notice thereof.
(c) Preservation of Office. The Originator will give the
Transferors, the Depositor, the Collateral Agent, the Note Insurer and the
Indenture Trustee at least 60 days' prior written notice of any relocation of
its principal executive office if, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new financing
statement.
(d) Obligations with Respect to Conveyed Assets. The Originator
will duly fulfill all obligations on its part to be fulfilled under or in
connection with each Contract and each Source Agreement, and will do nothing to
impair the rights of the Transferors, the Trust, the Note Insurer or the
Indenture Trustee in any of the Conveyed Assets.
(e) Compliance with Law. The Originator will comply, in all
material respects, with all acts, rules, requisitions, orders, decrees and
directions of any Governmental Authority applicable to its business and to the
Conveyed Assets or any part thereof; provided, however, that the Originator may
contest any act, regulation, order, decree or direction in any reasonable manner
which shall not materially and adversely affect the rights of the Transferors,
the Indenture Trustee, the Note Insurer or the Trust in any of the Conveyed
Assets.
(f) Conveyance of Conveyed Assets; Security Interests. Except for
the transfers and conveyances hereunder, or under any Transaction Document, the
Originator will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist any Lien, on any Conveyed Asset,
or any interest therein and the Originator shall defend the right, title, and
interest of the Transferors, the Trust, the Indenture Trustee, the Note Insurer
and their respective successors and assigns in, to, and under the Conveyed
Assets, against all claims of third parties claiming, through or under the
Originator; provided, however, that nothing in this Section 4.01(f) shall
prevent or be deemed to prohibit the Originator from suffering to exist upon any
of the Conveyed Assets any Liens for municipal or other local taxes if such
taxes shall not at the time be due and payable or if the Originator shall
concurrently be contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with respect
thereto and such contests pose no risk of forfeiture.
(g) Notification of Breach. The Originator will advise the
Transferors, the Indenture Trustee, the Collateral Agent, the Depositor, the
Trust and the Note Insurer promptly, in reasonable detail, upon discovery of the
occurrence of any breach by the Originator of any of its representations,
warranties and covenants contained herein.
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(h) Further Assurances. The Originator will make, execute or
endorse, acknowledge and file or deliver to the Transferors, the Trust, the
Collateral Agent, the Depositor, the Note Insurer and the Indenture Trustee 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 Conveyed Assets and
other rights covered by this Agreement, as the Transferors, the Trust, the
Indenture Trustee, the Collateral Agent, the Depositor and the Note Insurer may
request and reasonably require; provided, that no UCC filing will be required
with respect to the Equipment, except as required by the Filing Requirements.
(i) Indemnification. The Originator agrees to indemnify, defend
and hold the Transferors, the Trust, the Owner Trustee, the Indenture Trustee,
the Collateral Agent, the Depositor and the Note Insurer 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 any of them may become subject insofar as such
loss, liability, damage, judgment, claim, deficiency, or expense arises out of
or is based upon a breach by the Originator of its representations and
warranties contained in Article III, its covenants contained in Section 4.01, or
in any certificate or in any schedule delivered by the Originator hereunder,
being untrue in any material respect at any time; provided, that the obligations
of the Originator with respect to the representations and warranties set forth
in Section 3.03(a) shall be limited as set forth in Section 3.04(c). The
obligations of the Originator under this Section 4.01(i) shall be considered to
have been relied upon by the Transferors, the Indenture Trustee, the Trust, the
Owner Trustee, the Collateral Agent, the Depositor and the Note Insurer and
shall survive the execution, delivery, and performance of this Agreement
regardless of any investigation made by the Transferors, the Indenture Trustee,
the Trust, the Owner Trustee, the Collateral Agent, the Depositor and the Note
Insurer or on their respective behalf. THE INDEMNIFICATION OBLIGATIONS OF THE
ORIGINATOR PURSUANT TO THE PRECEDING PROVISIONS OF THIS PARAGRAPH SHALL APPLY
REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT ON THE PART OF THE TRANSFERORS, THE
INDENTURE TRUSTEE, THE DEPOSITOR, THE TRUST, THE OWNER TRUSTEE, THE COLLATERAL
AGENT, THE NOTE INSURER OR ANY OF THEIR RESPECTIVE OFFICERS, EMPLOYEES OR
AGENTS.
(j) Notice of Liens. The Originator shall notify the Transferors,
the Depositor, the Collateral Agent, the Indenture Trustee and the Note Insurer
promptly after becoming aware of any Lien (other than any Permitted Liens) on
any Conveyed Asset.
(k) Taxes. The Originator shall promptly pay all applicable taxes
required to be paid in connection with the assignment of the Conveyed Assets and
acknowledges that the Transferors shall have no responsibility with respect
thereto. The Originator shall promptly pay and discharge, or cause the payment
and discharge of, all federal income taxes (and all other material taxes) when
due and payable by the Originator, except (i) such as may be paid thereafter
without penalty or (ii) such as may be contested in good faith by appropriate
proceedings and for which an adequate reserve has been established and is
maintained in accordance with GAAP. The Originator shall promptly notify the
Transferors, the Depositor, the Collateral Agent, the Indenture Trustee, the
Noteholders and the Note Insurer of any material challenge, contest or
proceeding pending by or against the Originator before any taxing authority.
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(l) Taxes and Other Liabilities. The Originator shall promptly pay
and discharge all material taxes, assessments, fees, claims and other
governmental charges when due and payable by the Originator, except (i) such as
may be paid thereafter without penalty or (ii) such as may be contested in good
faith by appropriate proceedings and for which an adequate reserve has been
established and is maintained in accordance with GAAP. The Originator shall
promptly notify the Transferors, the Depositor, the Collateral Agent, the Note
Insurer, the Rating Agencies and the Indenture Trustee of any material
challenge, contest or proceeding pending by or against the Originator before any
taxing authority.
(m) Non-Consolidation. The Originator shall take all action
necessary to ensure that neither of the Transferors nor the Manager would be
substantially consolidated with the Originator, such that the separate corporate
existence of the Originator and either Transferor or the Manager would be
ignored in the event of a bankruptcy of the Originator.
Section 4.02 TRANSFEROR COVENANTS. Each of the Transferors hereby
covenants and agrees with the Originator, the Depositor, the Trust, the Owner
Trustee, the Collateral Agent, the Note Insurer and the Indenture Trustee as
follows:
(a) Transferor Certificate. Prior to each date as of which
Contracts and the [___________] subject to such Contracts are to be reacquired
by the Originator pursuant to the Indenture, the Transferors shall submit to the
Originator a certificate signed by the president, executive vice president, any
vice president or the treasurer of the Manager of each of the Transferors (a
"Transferors Certificate") and completed as to its date and the date of this
Agreement. Each Transferors Certificate shall operate as an assignment, without
recourse, representation, or warranty, to the Originator of all of the
Transferors' respective right, title and interests in and to such Contracts and
[___________], and all security and documents relating thereto, such assignment
being an assignment outright and not for security; and upon payment of the
Reacquisition Amount, the Originator will thereupon own such Contract, such
interest in the related [___________] and all such security and documents, free
of any further obligation to the Transferors with respect thereto. If in any
enforcement suit or legal proceeding it is held that the Servicer may not
enforce a Contract on the ground that it is not a real party-in-interest or
holder entitled to enforce the Contract, the Transferors shall, at the
Servicer's expense, take such steps as the Servicer deems necessary to enforce
the Contract, including bringing suit in a Transferor's name.
(b) Obligor's Quiet Enjoyment. Transferor II hereby acknowledges
and agrees that its rights in the [___________] are expressly subject to the
rights of the related Obligors in such [___________] pursuant to the applicable
Contracts. Transferor II covenants and agrees that, so long as an Obligor shall
not be in default of any of the provisions of the applicable Contract, neither
Transferor II nor any assignee of Transferor II will disturb the Obligor's quiet
and peaceful possession of such [___________] and the Obligor's use thereof for
its intended purpose.
(c) Operation of Transferor. Each of the Transferors shall be
operated in such a manner that it should not be substantively consolidated in
the trust estate of another Person (that is, such that the separate legal
existence of such Transferor and such Person should be disregarded) and in that
regard, each Transferor shall:
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(i) not engage in any action that would cause the separate legal
identity of such Transferor not to be respected, including, without
limitation, (x) holding itself out as being liable for the debts of any
other party or (y) acting other than through its duly authorized agents;
(ii) not incur, assume or guarantee any indebtedness except for
such indebtedness as may be incurred by such Transferor in connection with
the issuance of the Pledged Notes or as otherwise permitted by the Note
Insurer;
(iii) not commingle its funds with those of any other
entity;
(iv) act solely in its name in the conduct of its business
and shall conduct its business so as not to mislead others as to the
identity of the entity with which they are concerned;
(v) maintain company records and books of account and shall not
commingle its company records and books of account with the records and
books of account of any entity;
(vi) not engage in any business or activity other than in
connection with or relating to the activities allowed by its Certificate
of Formation and/or Limited Liability Company Agreement;
(vii) not form, or cause to be formed, any subsidiaries;
(viii) comply with all restrictions and covenants in, and shall
not fail to comply with the corporate formalities established in, the
Certificate of Formation and/or Limited Liability Company Agreement;
(ix) maintain separate bank accounts, if any;
(x) not act as an agent of the Originator; and
(xi) have as its managing member a limited purpose corporation
who maintains at all times one independent director as required by the
Certificate of Incorporation and/or Bylaws.
Section 4.03 TRANSFER OF CONVEYED ASSETS. The Originator understands
that the Transferors intend to pledge the Conveyed Assets and their respective
rights under this Agreement to the Indenture Trustee, on behalf of the Trust, as
collateral security for its obligations on the Pledged Notes, and that the Trust
intends to pledge the Pledged Property to the Indenture Trustee, on behalf of
the Note Insurer and the Noteholders, pursuant to the Indenture. The Originator
agrees that any such assignee of the Transferors may exercise the rights of the
Transferors hereunder, without any consent or action by either Transferor, and
shall be entitled to all of the benefits of the Transferors hereunder to the
extent provided for in such assignment.
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ARTICLE V
CONDITIONS PRECEDENT
Section 5.01 CONDITIONS TO TRANSFERORS OBLIGATIONS. The obligations
of the Transferors to accept the transfer of the Initial Conveyed Assets on the
Closing Date shall be subject to the satisfaction of the following conditions:
(a) All representations and warranties of the Originator contained
in this Agreement shall be true and correct on the Closing Date with the same
effect as though such representations and warranties had been made on such date;
(b) All information concerning the Initial Conveyed Assets
provided to the Transferors shall be true and correct as of the Cut-Off Date in
all material respects;
(c) The Originator shall have delivered to the Transferors a List
of Contracts with respect to its respective Contracts as of the Cut-Off Date and
shall have substantially performed all other obligations required to be
performed by the provisions of this Agreement;
(d) The Originator shall have recorded and filed, at its expense,
any financing statement with respect to the Initial Conveyed Assets to be
transferred from time to time to the related Transferor from the Originator
pursuant to this Agreement meeting the requirements of applicable state law in
such manner in such jurisdictions as are necessary to perfect the transfer of
the Initial Conveyed Assets from the Originator to the related Transferor, and
shall deliver a file-stamped copy of such financing statements or other evidence
of such filings to the related Transferor;
(e) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Transferors, and the Transferors shall
have received from the Originator copies of all documents (including, without
limitation, records of corporate proceedings) relevant to the transactions
herein contemplated as the Transferors may reasonably have requested; and
(f) All respective conditions necessary to vest in the Originator
good title, free and clear of all Liens (other than Liens permitted in the
proviso contained in Section 4.01(f) hereof), to its respective Contracts and
interests in Equipment shall have been satisfied.
Section 5.02 CONDITIONS TO THE ORIGINATOR'S OBLIGATIONS. The
obligations of the Originator to convey and contribute the Initial Conveyed
Assets to the Transferors on the Closing Date shall be subject to the
satisfaction of the following conditions:
(a) All representations and warranties of the Transferors
contained in this Agreement shall be true and correct with the same effect as
though such representations and warranties had been made on such date; and
(b) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Originator, and the Originator shall
have received from the Transferors copies of all
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documents (including, without limitation, records of corporate proceedings)
relevant to the transactions herein contemplated as the Originator may
reasonably have requested.
ARTICLE VI
TERMINATION; LIABILITIES
Section 6.01 TERMINATION. The respective obligations and
responsibilities of the Originator and the Transferors created by this Agreement
shall terminate upon the latest of (i) the maturity or other liquidation of the
last Contract and the disposition of any amounts received upon disposition of
any Defaulted Contracts and any [____________________]; (ii) the distribution to
the Transferors of all amounts required to be paid thereto pursuant to this
Agreement; (iii) the termination of the Indenture in accordance with the terms
thereof and (iv) the payment in full of all amounts owed to the Note Insurer
under the Transaction Documents; provided, however, that (A) the
indemnifications contained in Section 4.01(i) herein and (B) the covenant
contained in Section 7.13 hereof, shall survive the termination of this
Agreement.
Section 6.02 EFFECT OF TERMINATION. No termination or rejection or
failure to assume the executory obligations of this Agreement in the bankruptcy
of the Originator or the Transferors shall be deemed to impair or affect the
obligations pertaining to any executed contribution or executed obligations,
including, without limitation, pre-termination breaches of representations and
warranties by the Originator or the Transferors. Without limiting the foregoing,
prior to termination, neither the failure of the Transferors to deliver a
Transferors Certificate pursuant to Section 4.02, nor the failure of the
Originator to pay a Reacquisition Amount shall render such transfer or
obligation executory, nor shall the continued duties of the parties pursuant to
Article IV or Section 7.06 of this Agreement render an executed contribution
executory.
Section 6.03 LIABILITIES. By entering into this Agreement, the
Transferors agree to be liable, directly to each of the Issuer, the Indenture
Trustee, the Owner Trustee, the Note Insurer, the Collateral Agent, the
Depositor and each Noteholder, for the entire amount of any losses, claims,
damages or liabilities (other than those incurred by a Noteholder in the
capacity of an investor in the Notes or those which arise from any action or
omission by any Noteholder) of the Trust (to the extent Trust Assets remaining
after the Noteholders have been paid in full are insufficient to pay such
losses, claims, damages or liabilities).
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 AMENDMENT. This Agreement may be amended from time to
time by the parties hereto only with (x) the prior written consent of the
Servicer, the Indenture Trustee and the Note Insurer (or, in the event of a Note
Insurer Default, the Majority Holders), (y) satisfaction of the Rating Agency
Condition and (z) prior written notice to the Owner Trustee.
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Section 7.02 GOVERNING LAW. THIS AGREEMENT AND ANY AMENDMENT HEREOF
PURSUANT TO SECTION 7.01 SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CHOICE OF LAW
PRINCIPLES) APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN AND THE
OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.03 NOTICES. All demands, notices, and communications under
this Agreement shall be in writing and shall be deemed to have been duly given,
made and received (i) when delivered against receipt of registered or certified
mail or upon actual receipt of registered or certified mail, postage prepaid,
return receipt requested; (ii) when delivered by courier with appropriate
evidence of receipt; or (iii) upon transmission via facsimile or telex with
appropriate evidence of receipt (a) in the case of the Originator, at the
following address: [_________________________________________________________],
Attention: [______________], telecopy [_____________], (b) in the case of
the Indenture Trustee, [_______________________________], Attention:
[__________________], telecopy [_____________]; (c) in the case of Transferor
I, [__________________________],
[_____________________________________________________________________________],
Attention: [__________], telecopy [_____________], (d) in the case of
Transferor II, [_______________________________________________________],
Attention: [______________], telecopy [___________], (e) in the case of the
Collateral Agent, at the address set forth in the Servicing Agreement, (f) in
the case of the Depositor, as the address set forth in the Receivables Pledge
Agreement, and (g) in the case of the Note Insurer, the Rating Agencies or the
Owner Trustee at their respective addresses set forth in Section 11.06 of the
Indenture. Either party may alter the address to which communications are to be
sent by giving notice of such change of address in conformity with the
provisions of this Section 7.03 for giving notice and by otherwise complying
with any applicable terms of this Agreement, including, but not limited to,
subsections 4.01(b) and (c).
Section 7.04 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions, or
terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
Section 7.05 ASSIGNMENT. Notwithstanding anything to the contrary
contained in this Agreement, this Agreement may not be assigned by the
Originator, without the prior written consent of the Transferors, the Note
Insurer (or, in the event of a Note Insurer Default, the Majority Holders) and
the Indenture Trustee (acting upon the written direction of the Controlling
Party) and, except as provided in Section 4.03, this Agreement may not be
assigned by the Transferors without the prior written consent of the Originator,
the Note Insurer (or, in the event of a Note Insurer Default, the Majority
Holders) and the Indenture Trustee. Whether or not expressly stated, all
representations, warranties, covenants and agreements of the Originator and the
Transferors in this Agreement, or in any document delivered by any of them in
connection with this Agreement, shall be for the benefit of, and shall be
exercisable by, the Indenture Trustee for the benefit of the Noteholders and the
Note Insurer.
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Section 7.06 FURTHER ASSURANCES. Each of the parties hereto agrees
to do such further acts and things and to execute and deliver to the Indenture
Trustee such additional assignments, agreements, powers and instruments as are
required by the Indenture Trustee or the Note Insurer to carry into effect the
purposes of this Agreement or to better assure and confirm unto the Indenture
Trustee or the Note Insurer its rights, powers and remedies hereunder.
Section 7.07 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of either Transferor or the Originator,
any right, remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise hereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privilege provided by law.
Section 7.08 COUNTERPARTS. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which shall constitute one and the same
instrument.
Section 7.09 BINDING EFFECT: THIRD-PARTY BENEFICIARIES. This
Agreement will inure to the benefit of and be binding upon the parties hereto.
The Indenture Trustee, the Owner Trustee, the Trust, the Note Insurer, the
Collateral Agent, the Depositor and the Noteholders are intended third party
beneficiaries of this Agreement.
Section 7.10 MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 7.11 HEADINGS. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
Section 7.12 SCHEDULES AND EXHIBITS. The schedules and exhibits
attached hereto and referred to herein shall constitute a part of this Agreement
and are incorporated into this Agreement for all purposes.
Section 7.13 NO BANKRUPTCY PETITION AGAINST THE TRANSFERORS, THE
MANAGER OR THE TRUST. Each of the parties hereto agrees that, prior to the date
that is one year and one day after the payment in full of (a) the of the latest
maturing Notes issued by the Trust and (b) all amounts owed to the Note Insurer
under the Transaction Documents, it will not institute against any of the
Transferors, the Manager or the Trust, or join any other Person in instituting
against any of the Transferors, the Manager or the Trust, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under the laws of the United States or any state of the United
States. This Section 7.13 shall survive the termination of this Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers as of the day and year first above
written.
[NAME OF ORIGINATOR], as Originator
By: ___________________________________
Name:
Title:
[NAME OF TRANSFEROR], as Transferor I
By:
By: ___________________________________
Name:
Title:
[NAME OF TRANSFEROR], as Transferor II
By: ABFS Special Purpose Management,
Inc.,
as Managing Member
By: ___________________________________
Name:
Title:
[Signature Page for Receivables Sale Agreement]
SCHEDULE I
LIST OF INITIAL CONTRACTS
Schedule I-1
EXHIBIT A
FORM OF SUBSEQUENT
RECEIVABLES SALE AGREEMENT
This SUBSEQUENT RECEIVABLES SALE AGREEMENT, dated as of ____________ (the
"Subsequent Funding Date"), by and among ___________________________, a
___________________ (the "Originator"), __________________, a
____________________ ("Transferor I"), and _________________________, a
_____________________ ("Transferor II", and, together with Transferor I, the
"Transferors").
WITNESSETH:
Reference is hereby made to that certain Receivables Sale Agreement,
dated as of _____ 1, 1999 (the "Receivables Sale Agreement"), by and among the
Originator and the Transferors. Pursuant to the Receivables Sale Agreement, the
Originator agreed to sell, convey and contribute, and the Transferors agreed to
accept, from time to time, Subsequent Conveyed Assets. The Receivables Sale
Agreement provides that each such sale, conveyance and contribution of
Subsequent Conveyed Assets be evidenced by the execution and delivery of a
Subsequent Receivables Sale Agreement such as this Subsequent Receivables Sale
Agreement (this "Agreement").
The "Subsequent Contracts" are those listed on the List of
Subsequent Contracts attached hereto.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions. For the purposes of this Agreement,
capitalized terms used herein but not otherwise defined shall have the
respective meanings assigned to such terms in the Receivables Sale Agreement or
in Annex A to the Indenture.
Section 2. Direction; Acquisition; Capital Contribution. (a) Subject
to the terms and conditions of this Agreement, the Originator hereby agrees to
sell, convey and contribute, on the Subsequent Funding Date, all of the
Subsequent Conveyed Assets to the Transferors, as set forth in subsection (b)
below. Upon receipt of the consideration specified in subsection (c) below, the
Originator hereby releases all of its right, title and interest in, to and under
the Subsequent Conveyed Assets, such receipt being hereby acknowledged by the
execution of this Agreement by the Originator.
(b) The transfers occurring on the Subsequent Funding Date shall
be consummated such that those Conveyed Assets which are considered "financial
assets" within the meaning of the Statement of Financial Accounting Standards
No. 125 ("FAS 125") (such Conveyed Assets include, without limitation, the
Contracts, other than any Contract which is a "true" or "operating" lease) are
acquired by Transferor I, and such that those Conveyed Assets
A-1
which are not considered "financial assets" within the meaning of FAS 125 (such
Conveyed Assets include, without limitation, any Contract which is a "true" or
"operating" lease, the ownership or security interest of the Originator in each
item of Equipment and any Residual Receipts) are acquired by Transferor II.
(c) In consideration for (x) the receipt by the Originator of
$__________ from the Transferors and (y) other good and valuable consideration,
the Originator hereby conveys to the applicable Transferor all of its right,
title and interest in, to and under the Subsequent Conveyed Assets, whether now
existing or hereinafter arising, without recourse, except as may be set forth
herein. In connection with the transfers on Subsequent Funding Date, the
Originator hereby makes a capital contribution to the related Transferor in the
amount by which the fair market value of the Subsequent Conveyed Assets exceeds
the cash consideration received by the Originator in connection therewith.
(d) In connection with the sale, contribution and conveyance of
the Subsequent Conveyed Assets, the Originator shall, at its own expense, on or
prior to the Subsequent Funding Date (i) cause the Contract Management System to
be marked with a specified code (the "Contract Management Code") to show that
such Subsequent Conveyed Assets have been transferred and contributed to the
Transferors in accordance with this Agreement, subsequently pledged to the
Trust, as collateral security for the Pledged Notes in accordance with the
related Subsequent Receivables Pledge Agreement, and such security interest was
assigned to the Indenture Trustee, on behalf of the Noteholders and the Note
Insurer, pursuant to the related Assignment, and (ii) cause the Servicer to
prepare and hold on behalf of the Transferors and the Indenture Trustee the List
of Contracts as supplemented by the List of Subsequent Contracts on or prior to
the Subsequent Funding Date.
(e) Except for the obligations of the Originator pursuant to
Section 3 hereof, Section 3.03 of the Receivables Sale Agreement and Article IV
of the Indenture with respect to any breach of a representation, warranty or
covenant made herein, the sale and contribution of the Subsequent Contracts will
be without recourse to the Originator.
Section 3. Representations and Warranties of the Originator. (a)
With respect to each Subsequent Contract, the Originator hereby remakes to the
Transferors the representations, warranties and covenants set forth in Section
2.02 of the Servicing Agreement.
(b) Upon the discovery by the Originator, either Transferor, the
Depositor, the Collateral Agent, the Indenture Trustee or the Note Insurer of a
breach of any of the representations or warranties set forth in Section 2.02 of
the Servicing Agreement that materially and adversely affects any Contract, the
related Equipment or the related Contract File, as the case may be, or if the
Servicer fails to cause delivery of evidence of filing or copies of any UCC
financing statement in accordance with the Servicing Agreement (any such event,
a "Warranty Event"), the party discovering such breach shall give prompt written
notice to the other parties hereto, the Indenture Trustee, the Trust and the
Note Insurer, the Depositor, the Collateral Agent and the Originator shall be
required to reacquire or replace such Contract in accordance with Article IV of
the Indenture.
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(c) The Originator understands that the Transferors intend to
pledge the Subsequent Conveyed Assets and their respective rights under this
Agreement to the Trust, as collateral security for its obligations on the
Pledged Notes, and that the Trust intends to pledge the Pledged Property to the
Indenture Trustee, on behalf of the Note Insurer and the Noteholders, pursuant
to the Indenture. The Originator agrees that any such assignee of the
Transferors may exercise the rights of the Transferors hereunder, without any
consent or action by either Transferor, and shall be entitled to all of the
benefits of the Transferors hereunder to the extent provided for in such
assignment.
Section 4. Amendment. This Agreement may be amended from time to
time by the parties hereto only with (x) the prior written consent of the
Servicer, the Indenture Trustee and the Note Insurer (or, in the event of a Note
Insurer Default, the Majority Holders) and (y) satisfaction of the Rating Agency
Condition.
Section 5. GOVERNING LAW. THIS AGREEMENT AND ANY AMENDMENT HEREOF
PURSUANT TO SECTION 4 SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CHOICE OF LAW
PRINCIPLES) APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN AND THE
OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 6. Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which shall constitute one and the same
instrument.
Section 7. Binding Effect; Third-Party Beneficiaries. This Agreement
will inure to the benefit of and be binding upon the parties hereto. The
Indenture Trustee, the Owner Trustee, the Trust, the Depositor, the Collateral
Agent, the Note Insurer and the Noteholders are intended third party
beneficiaries of this Agreement.
Section 8. Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
Section 9. Exhibits. The schedules and exhibits attached hereto and
referred to herein shall constitute a part of this Agreement and are
incorporated into this Agreement for all purposes.
Section 10. Intent of Parties; Security Agreement. It is the
intention of the parties hereto that the transfer of the Subsequent Conveyed
Assets to be made pursuant to the terms hereof shall constitute a sale or
capital contribution of (x) the Contracts by the Originator to Transferor I, and
(y) the ownership interest or security interest of the Originator in each item
of Equipment and any Residual Receipts by the Originator to Transferor II, and,
in either case, not a loan. In the event, however, that a court of competent
jurisdiction were to hold that any such transfer constitutes a loan and not a
sale or capital contribution, it is the intention of the parties hereto that
this Agreement is deemed to be a security agreement and that the Originator
shall be deemed to have granted to the related Transferor as of the date hereof
a first priority perfected
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security interest in all of the Originator's right, title and interest in, to
and under the related Subsequent Conveyed Asset, and all income and proceeds
thereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers as of the day and year first above
written.
____________________________, as
Originator
By: ___________________________________
Name:
Title:
_______________________, as Transferor
I By:
By: ___________________________________
Name:
Title:
__________________________, as
Transferor II
By:
By: ___________________________________
Name:
Title:
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